G.R. No. 263590 - Separate Concurring Opinion

G.R. No. 263590, June 27, 2023,
♦ Decision, Kho, Jr., [J]
♦ Separate Opinion, Gesmundo, [CJ]
♦ Separate Concurring Opinion, Singh, [J]
♦ Separate Concurring Opinion, Dimaampao, [J]
♦ Separate Concurring Opinion, Zalameda, [J]
♦ Concurring Opinion, Lazaro-Javier, [J]
♦ Separate Opinion, Caguioa, [J]
♦ Separate Concurring Opinion, Leonen, [J]

ATTY. ROMULO B. MACALINTAL, PETITIONER, VS. COMMISSION ON ELECTIONS AND THE OFFICE OF THE PRESIDENT, THROUGH EXECUTIVE SECRETARY LUCAS P. BERSAMIN, RESPONDENTS.

ATTY. ALBERTO N. HIDALGO, ATTY. ALUINO O. ALA, ATTY. AGERICO A. AVILA, ATTY. TED CASSEY B. CASTELLO, ATTY. JOYCE IVY C. MACASA, AND ATTY. FRANCES MAY C. REALINO, PETITIONERS, VS. EXECUTIVE SECRETARY LUCAS P. BERSAMIN, THE SENATE OF THE PHILIPPINES, DULY REPRESENTED BY ITS SENATE PRESIDENT, JUAN MIGUEL ZUBIRI, THE HOUSE OF REPRESENTATIVES, DULY REPRESENTED BY ITS SPEAKER OF THE HOUSE, FERDINAND MARTIN ROMUALDEZ, AND THE COMMISSION ON ELECTIONS, DULY REPRESENTED BY ITS CHAIRMAN, GEORGE ERWIN M. GARCIA, RESPONDENTS.

I concur in the result that the assailed statute is unconstitutional. However, in reviewing statutes that postpone elections, I submit that this Court must apply the strict scrutiny test; it is not sufficient that the assailed statute satisfies the requirements of substantive due process. Moreover, the assailed statute is unconstitutional because it tramples upon the Commission on Elections' independence and fiscal autonomy as a constitutional commission.

This Court, by the exercise of its judicial power, bears a special burden of exercising judicial power while "remaining concerned, realistic, and alert to the political and social and even economic significance of what it is doing."1 "While this Court should presume representation in the deliberative and political forums, it should not be blind to present realities."2

We must be mindful of the preparations required for the conduct of elections and the practical effects of postponing it.

The conduct of elections requires meticulous assessment and logistical planning, such as the preparing and procuring election paraphernalia and services, registering voters, processing certificates of candidacies of those seeking to run for public office, installing polling booths, training personnel, and monitoring election offenses, among others. The conduct of elections entails expenditures and therefore, the release of public funds to various stakeholders ahead of the date of elections.

Furthermore, the postponement of elections to another month or year is not inconsequential; it requires planning and has a range of anticipated consequences. As expounded during the oral arguments:

Commission on Elections Chairperson George Erwin Garcia (Garcia) narrated the activities done by the Commission upon signing of the assailed law and the logistical implications of postponing the elections:

Upon the signing by the President on October 10, 2022 of the [l]aw, we suspended the printing of the ballots simply because the ballot does not reflect the date that the election will be continued which will be on October 31 of next year, 2023. And if we are to count the number of ballots that have not been printed during this period, from October 10 to the present then if we are supposed to print 3 million ballots per day, twelve days then that will be about 36 million ballots, Your Honor. And from now to the conduct of election on December 5 almost at least 44 days. Definitely, Your Honor, we would not be able to finish printing the ballots. Now, as regards the other election paraphernalia such as for example indelible ink. We have been preparing for the procurement of indelible ink. But, however, indelible ink will be expiring by one year. And so if we'll proceed with the procurement of indelible ink even after the signing by the President on October 10 then there is already a law which said that the election is postponed then definitely by next year, all of these indelible ink will dry up. So, surely, we will not proceed with the procurement of the indelible ink. Such other election paraphernalia, Your Honor, we have a legal issue and the legal issue is whether we can legally proceed with the procurement despite the postponement of the election. And so we instructed our Law Department, to inquire and to make a recommendation to the COMELEC En Banc what the COMELEC En Banc will be doing as regards the pending award of contracts, the pending notice to proceed. Because we do not want to violate any auditing rules, and we do not want that [the Commission on Audit] will be giving notices to the Commission as far as this award is concerned. So, we are in a dire predicament, Your Honors[.]4

Notably, this was not the first time that the barangay elections have been postponed:

The postponement of elections also triggers the application of the holdover doctrine. While the term of incumbent public officers is not extended, their tenure, that is, the actual holding of public office, is effectively extended.

The ponencia explained that this Court frowns upon any interpretation of a law that "would have the effect of hindering, in any way, ... the free and intelligent casting of votes in an election."6 This being the case, quoting Reynolds v. Sims,7 the ponencia stated that "any alleged infringement on the right of citizens to vote must be carefully and meticulously scrutinized."8

The ponencia, instead of applying the strict scrutiny test, utilized the two-prong requirements under the substantive due process clause, that is, the existence of a lawful subject and the employment of reasonable means.9 Contrary to the position adopted by the majority, I submit that any legislative act that tends to impede, however lightly, the actual exercise of the right of suffrage and the State's concomitant obligation and duty to hold elections at regular intervals, must pass the strict scrutiny test, especially, when it is alleged to be unjustified and unconstitutional under the circumstances.

In Samahan ng mga Progresibong Kabataan v. Quezon City,10 this Court established the three tests of judicial scrutiny used in reviewing statutes allegedly violative of fundamental rights and basic liberties. It enumerated:

Philippine jurisprudence has developed three (3) tests of judicial scrutiny to determine the reasonableness of classifications. The strict scrutiny test applies when a classification either (i) interferes with the exercise of fundamental rights, including the basic liberties guaranteed under the Constitution, or (ii) burdens suspect classes. The intermediate scrutiny test applies when a classification does not involve suspect classes or fundamental rights, but requires heightened scrutiny, such as in classifications based on gender and legitimacy. Lastly, the rational basis test applies to all other subjects not covered by the first two tests.11 (Citations omitted)

In Zafe III v. People,12 this Court discussed the application of the strict scrutiny test:

Strict scrutiny applies when what is at stake are fundamental freedoms or what is involved are suspect classifications. It requires that there [b]e a compelling state interest and that the means employed to effect it are narrowly-tailored, actually-not only conceptually-being the least restrictive means for effecting the invoked interest. Here, it does not suffice that the government contemplated on the means available to it. Rather, it must show an active effort at demonstrating the inefficacy of all possible alternatives. Here, it is required to not only explore all possible avenues but to even debunk the viability of alternatives so as to ensure that its chosen course of action is the sole effective means. To the extent practicable, this must be supported by sound data gathering mechanisms.13 (Citation omitted)

The danger of the propositions adopted by the ponencia is that it does not seem to acknowledge the importance of the right of suffrage in a democratic and republican society, as well as international covenants that require the Philippines to safeguard the right to cast a vote for a chosen elective local official at an expected time.

The right of suffrage is a basic fundamental, primordial, and constitutional right. It involves the right to vote, the right to choose government leaders, and registered voters should be able to exercise such right at certain intervals. Its importance was further discussed in Pabillo v. Commission on Elections:14

On election day, the country's registered voters will come out to exercise the sacred right of suffrage. Not only is it an exercise that ensures the preservation of our democracy, the coming elections also embodies our people's last ounce of hope for a better future. It is the final opportunity, patiently awaited by our people, for the peaceful transition of power to the next chosen leaders of our country. If there is anything capable of directly affecting the lives of ordinary Filipinos so as to come within the ambit of a public concern, it is the coming elections[.]15 (Citation omitted)

International covenants and agreements also emphasize the right of suffrage. The Universal Declaration of Human Rights states:

Meanwhile, Article 25 of the International Covenant on Civil and Political Rights provides:

During the oral arguments, Justice Ramon Paul Hernando (Justice Hernando) highlighted the right of suffrage as embodied in these international instruments:

Similar to the position adopted by Justice Hernando during the oral arguments, I submit that when registered voters do not know when they will be able to exercise their right to vote, it is almost the same as restricting the exercise of such a right:

It bears noting that the exercise of the right of suffrage is related to the freedom of expression. As stated in the ponencia, the right to participate in electoral processes is "one of the most consequential expressive acts in a person's life, when a voice becomes an action[.]"18

Seeing as what is at stake in the case at hand is the freedom of expression, a fundamental right guaranteed by no less than our Constitution,19 I submit that the applicable test to determine the constitutionality of the assailed law is the strict scrutiny test.

Registered voters should have a reasonable expectation of when they would be able to exercise the right to vote. Thus, I disagree with Solicitor General Menardo Gueverra's submission that "the matter of postponing any election does not really have any effect on the right of suffrage"20 and that "it's just that the timing of the exercise of that right is the one affected."21 On the contrary, the regulation of the means, manner, date, and time of elections directly affects the constitutional right to suffrage.

Another reason why the questioned law should be declared unconstitutional is that it tramples upon the independence of the Commission on Elections as a constitutional commission.22

In Macalintal v. Commission on Elections,23 this Court explained that the scope of legislative power is circumscribed by constitutional provisions such as Article IX-A, Section 1, which mandates the independence of constitutional commissions like the Commission on Elections.

In Araullo v. Aquino,24 this Court explained that the president is generally accorded flexibility in the execution of the General Appropriations Act, except for funds allocated to agencies with fiscal autonomy. Justice Alfredo Benjamin Caguioa pointed this out during the oral arguments:

This Court has had the opportunity to explain the meaning of the phrase "automatically and regularly released" in relation to fiscal autonomy granted by the Constitution to constitutional commissions:

Webster's Third New International Dictionary defines "automatic" as "involuntary either wholly or to a major extent so that any activity of the will is largely negligible; of a reflex nature; without volition; mechanical; like or suggestive of an automaton." Further, the word "automatically" is defined as "in an automatic manner: without thought or conscious intention." Being "automatic," thus, connotes something mechanical, spontaneous and perfunctory. As such the [Constitutional Commissions] are not required to perform any act to receive the "just share" accruing to them from the national coffers[.]"26

This was also discussed in a separate opinion in Belgica v. Executive Secretary:29

Fiscal autonomy means, among others, that the budget of the Judiciary must be released "automatically" after the General Appropriations Act becomes law. The President cannot reduce, withhold, delay, or in any manner tinker with, in the guise of budget execution, the appropriations for the Judiciary and the Constitutional Commissions. The President cannot amend, change, supplant, deduct, diminish or add to the budget of the Judiciary and Constitutional Commissions, as approved in the General Appropriations Act. The President cannot decide, as part of "budget execution," what purposes to fund, and by how much, after the General Appropriations Act becomes a law. To rule otherwise will compel the Chief Justice to lobby with the President to allocate specific amounts for specific purposes - the very evil that the fiscal autonomy provisions of the Judiciary, and of the Constitutional Commissions, were designed to prevent to preserve the very independence of the Judiciary and of the Constitutional Commissions.30

By vesting itself with the powers to realign the appropriations for the elections towards other objectives, the Congress went beyond its constitutional authority and trampled upon the independence of the Commission on Elections. Under such a situation, this Court is left with no option but to withdraw from its usual reticence in declaring a provision of law unconstitutional.

ACCORDINGLY, I vote to GRANT the consolidated Petitions and to declare Republic Act No. 11935 UNCONSTITUTIONAL.