RESOLVING THE BSK TERMS OF OFFICE

July 15, 2023 Opinion

The recent decision by the Supreme Court (SC) striking down as unconstitutional RA 11953 entitled, “An Act Postponing the December 2022 Barangay and Sangguniang Kabataan Elections, Amending for the Purpose Republic Act No. 9164, as amended, Appropriating Funds therefor, and for Other Purposes” cleared the way for the Barangay and Sangguniang Kabataan Elections (BSKE) to be held this October 2023. It is significant to note that the decision gave weight to the right of suffrage or the right to vote which is guaranteed and protected by the constitution.

The SC said that the free and meaningful exercise of the right to vote requires the holding of genuine periodic elections held at intervals which must not be unduly long and thus ensuring that the authority of government is based on the free expression of the will of electors. The decision of the highest court likewise observed that RA 11935 “unconstitutionally and arbitrarily overreaches the exercise the rights of suffrage, liberty and expression” and therefore said law was attended with grave abuse of discretion amounting to lack or excess of jurisdiction.

Nevertheless, even while the SC decided that RA 11935 as unconstitutional it also recognized it as an operative fact which have consequences and effects which cannot be reversed or ignored. It is
established that the doctrine of operative fact pertains to the “recognition of the existence of a law or executive act prior to the determination of its unconstitutionality as an operative fact that produced consequences that cannot be always be erased, ignored or disregarded”. (https:// coa.gov.ph/wp-content/u p l o a d s / a b c – h e l p / j u r i s p r u d e n c e _ b / Ruling42.htm)

Now in recognizing the existence of RA 11935 as an operative fact which had consequences and effects that cannot be avoided the SC determined that the unconstitutionality of RA 11935 resulted in the revival of RA 11462 which is an act postponing the May 2020 Barangay and Sangguniang
Kabataan Elections, amending for the purpose Republic Act No. 9164, as amended by Republic Act No. 9340, Republic Act 10632, Republic Act No. 10656, Republic Act No. 10923 and Republic Act
No. 10952, and for other purposes.

This resulted in the SC declaring that the BSKE for October 2023 shall then proceed as scheduled and following further the provisions of RA 11462, the term of office of the current barangay and SK officials shall be deemed to have ended on December 31, 2022. Thus, during the interim the said BSK officials in the discharge of their functions shall hold office in a hold-over capacity. What is of course disconcerting in the SC ruling is the fact that when the BSK elections shall have been concluded on October 2023 the winners in that election will get to serve only two years since the court also ruled that the succeeding BSK elections shall be held once again on the first Monday of December 2025.

With this definitive ruling by the SC it is hoped that the schedule for the BSK elections will finally be settled. However, because of the very short term of office (2 years) for the next set of barangay and SK officials there is a move in the Lower House of Congress to pass a law that would fix the term of Barangay and SK Officials. The legislative proposal being pushed is contained in House
Bill 7123 filed in February 2023 by Cagayan de Oro City 2nd District Rep. Rufus Rodriguez seeking to establish a five-year term of office for Barangay and SK Officials.

In the explanatory note of his legislative proposal Congressman Rodriguez stated that, “the three-year term of barangay officials is too short a time for the unity and stability in barangay leadership and affairs. It is not enough to ensure that the programs of the barangay are carried out properly especially considering the fact that it cannot be denied that the last year of the term is basically used for campaigning”.

And in light of the recent SC ruling that inadvertently adjusted once more the term of office of the Barangay and SK officials Rodriquez in a statement said that, “it would not be fair for village officials to be elected in October this year to have a shortened tenure of only two years following the
Supreme Court ruling that Republic Act No. 11935, which postponed the grassroots polls from Dec. 5, 2022 to Oct. 30, 2023, is unconstitutional.” He further added that, “Let’s give all of those to be voted this year and succeeding elections a uniform term of office of five years, instead of those to be
voted in October having a twoyear tenure, and those to be elected in 2025 enjoying three years.”

The proposal for a fix fiveyear term for Barangay Officials is not a new one since it has long been urged that providing a lengthier term of office for elective officials in the grassroots level would
strengthen and enhance local governance and ensure that the delivery of needed services in the community is achieved. For now let us wait if the house bill will be indorsed and approved in the lower house and later on certified as an urgent bill to be immediately approved before the BSK elections on October 2023.