G.R. No. 263590 - Separate 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.

Republic Act No. (RA) 11935,1 which postponed the holding of the 2022 Synchronized Barangay and Sangguniang Kabataang Elections (BSKE), from December 5, 2022 to the last Monday of October 2023,2 is undoubtedly unconstitutional and void, as its primary purpose, as found in the ponencia, of allowing a constitutionally impermissible reallocation or transfer of the Commission on Election's budget for the 2022 BSKE3 would fail any tier of judicial scrutiny, even the least stringent standard of rational basis.

Thus, the ponencia correctly ruled that the Court is possessed of the power, and is compelled by the duty, to end a continuing and continued denial of the right to vote and vindicate the public's right of suffrage.

I write this Separate Opinion for the purpose of stating my position that nothing less than strict scrutiny can suffice to protect so fundamental a right as the right of suffrage, and that the need to employ strict scrutiny is especially manifest in the context of an election postponement which cannot but be seen as a direct infringement, if not total abrogation, of the right to vote, in a manner that makes a mockery of the sacred trust reposed in our elected officials by the vote. Accordingly, I firmly believe that strict scrutiny is necessarily the proper standard by which to test the validity of an election postponement.

In addition, I also opine that the use of hold-over provisions in election postponements by legislative fiat, whereby elective officials are kept in office so as to bridge a gap or fill a vacuum that the postponement itself creates, further crystallizes and cements the use of strict scrutiny, lest we run the risk of allowing the very democratic and republican underpinnings of our nation to unravel.

In the first place, it is clear that this case presents a novel question, if not in the minds of the public, at least as posed before the Court in a proper justiciable controversy. It is thus, quite literally, unprecedented.

As indicated by the spirited deliberations and discussions that culminated in the Court's Decision, and which necessitated these Separate Opinions from the Members of the Court justifying varying standards of review, it should be evident that the issue of the appropriate standard of review to apply to election postponements cannot be readily and neatly dealt with by reference to jurisprudence, as there are no cases definitively on all fours with the one before the Court here, and therefore there is no clearly controlling judicial precedent to be relied upon.

I thus seek guidance in the prior doctrinal pronouncements of the Court, but first and foremost, in the one true beacon and touchstone that is the Constitution.

The Court has previously ruled that strict scrutiny is the appropriate tier of judicial scrutiny for legislation that is assailed as violative of fundamental rights.4

In the landmark case of White Light Corp., et al. vs. City of Manila5 (White Light), the Court discussed the tiers of judicial scrutiny, and when these are to apply, in the following manner:

The varying standards of review, and their roots in the guarantee of due process, are also discussed in City of Manila v. Hon. Laguio, Jr., (Laguio):7

From the foregoing broad jurisprudential doctrines in White Light and Laguio, it is established that the test of strict scrutiny is used to examine acts that are assailed as violative of fundamental rights, and that the right to suffrage is undoubtedly one of these fundamental rights.

Further, the components or prongs of the test of strict scrutiny are laid down as follows:

Under the strict scrutiny test, a legislative classification that interferes with the exercise of a fundamental right or operates to the disadvantage of a suspect, class is presumed unconstitutional. Thus, the government has the burden of proving that the classification (i) is necessary to achieve a compelling State interest, and (ii) is the least restrictive means to protect such interest or the means chosen is narrowly tailored to accomplish the interest.9 (Emphasis supplied and citations omitted)

What is clear to me is that the choice of the appropriate standard of review is inextricably bound to our characterization of just how fundamental the right that we seek to protect is. This, to my mind, results in a simple formula: the more important the right, the greater the protection, and resultingly, the higher the scrutiny that ought to be applied to acts which violate or curtail that right.

It is thus my earnest belief that the very nature, importance, and fundamentality of the right to vote, certainly when infringed by an election postponement, must be afforded nothing less than the application of strict scrutiny.

To anchor a discussion as to how fundamental the right to suffrage is, we have but to return to the lodestar of all the efforts, not only of the Court, but of the Filipino people as a collective, to fashion a nation pursuant to our shared and common ideals: our Constitution. I thus return, quite literally, to first principles.

The first principle enunciated in the Constitution, first not only in number but in priority, is that "[t]he Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them."10

The ponencia devotes a substantial portion of its discussion to an exposition on the nature of sovereignty and the right of suffrage,11 the length and content of which underscores just "how fundamental and primary the right to vote truly is. The right to suffrage is "preservative of all rights"12 to such an extent that "[o]ther rights, even the most basic, are rendered illusory if the right to vote is undermined."13

Given how imperatively fundamental the right of suffrage is for any people who proclaim to live under the rule of democracy, I opine that, as a matter of course, the standard of strict scrutiny should be applied in the context of election postponements.

One issue that merits further discussion is the fact that the decision to apply the test of strict scrutiny carries with it a presumption of the invalidity or unconstitutionality of the act subject of scrutiny.

It has been raised that the general presumption in favor of the validity and constitutionality of laws should behoove the Court to engage in judicial restraint and refrain from applying so stringent a test to election postponements.

I thus hark back to the passage from White Light, which refers to what is perhaps the most seminal footnote in legal history, for in it lies the seeds that birthed the test of strict scrutiny, and which today serves as an invaluable jurisprudential bulwark for our most sacred of rights, and our most vulnerable of people: "Footnote 4 of the Carolene Products case acknowledged that the judiciary would defer to the legislature unless there is a discrimination against a 'discrete and insular' minority or infringement of a 'fundamental right.'"14

It can never be in doubt that the Constitution is the supreme law of the land, and that it is the standard and benchmark against which all things claimed to be lawful and legal are to be weighed and measured. While deference to the legislature will always be a hallmark of our legal system, it cannot countenance allowing a law that so deeply offends the constitutional order to survive a constitutional challenge before the Court.

It is thus my belief that, as the Court's first duty is to the Constitution, it is therefore our bounden duty to protect those rights which our Constitution, as the embodiment of the hopes and dreams of the Filipino people, so dearly cherish.1aшphi1 I therefore espouse that the presumption of invalidity and unconstitutionality, if it should be applied at all to protect any of our fundamental rights, and especially those that are constitutionally enshrined, should without a shadow of a doubt be used to protect the right of suffrage.

I also refer to words penned nearly a century ago, on the role of the Court in settling judicial controversies involving the Constitution. Although made in the specific context of the issue of separation of powers, it should be remembered that a right draws a limitation what a power can and cannot touch. Thus, in Angara v. Electoral Commission:15

It has always been, and continues to be, the role of this Court to defend and preserve the Constitution. While this task is not exclusive to us, as it is indeed the mandate of everyone, it is upon the Court that falls the role of the "ultimate arbiter" as to what the Constitution intends, "[f]or whether or not laws passed by Congress comply with the requirements of the Constitution pose questions that this Court alone can decide. The proposition that this Court is the ultimate arbiter of the meaning and nuances of the Constitution need not be the subject of a prolix explanation."17

Further Development on the Nature of the Right of Suffrage, and Suffrage and Elections as a Sacred Contract

It has also been raised that even while this Court acknowledges the fundamental status of the right to suffrage, there may well be instances when a restriction or burden on suffrage can be deemed "incidental" and not "direct," as would justify a lower standard of review. It is suggested that the "time" of the holding of an election can, in certain instances, be deemed merely an incidental burden that can be met with a standard of review lower than strict scrutiny.

I find, however, that, unlike the right to free speech or expression, which is the focus of most jurisprudence delineating between an incidental versus a direct infringement of a fundamental right,18 and where the "incidents" are the time, place, and manner of the exercise of the right, the right of suffrage "itself," or its "core," is not nearly so easily separated—if at all—from its "incidents," especially of "time"

I believe that the time when suffrage is exercised, which is necessarily the time when elections are held, is not a mere "incident" that can be made to stand apart from the "core" of suffrage. Rather, it is part and parcel so as to be nearly indistinguishable from the right of suffrage itself, and it cannot be gainsaid that the unhampered, i.e., the timely, exercise of the right of suffrage is the very foundation for the democratic and republican character of our nation.

At the very least, I believe that ejection postponements, particularly when hold-over provisions are employed, cannot be considered anything other than a direct infringement on the right of suffrage. And this must perforce be met with strict scrutiny.

The reason for this is, to me, self-evident: when the right to vote is hampered by an election postponement, and "elective" officials remain in power beyond the limited mandate given to them by virtue of duly held democratic elections, this is a breach of the sacred contract whereby the people surrender, for a duration specifically limited in time, a portion of their sovereign power.

In this vein, we have, from the dissent of then Associate Justice and later Chief Justice Reynato Puno in the case of Tolentino v. Commission on Elections,19 the following passage:

Elections serve as a crevice in the democratic field where voters, for themselves and. the public good, plant the seeds of their ideals and freedoms. Yick Wo is emphatic that voting is a fundamental right that preserves and cultivates all other rights. In a republic undergirded by a social contract, the threshold consent of equal people to form a government that will rule them is renewed in every election where people exercise their fundamental right to vote to the end that their chosen representatives will protect their natural rights to life, liberty and property. It is this sacred contract which makes legitimate the government's exercise of its powers and the chosen representatives' performance of their duties and functions. The electoral exercise should be nothing less than a pure moment of informed judgment where the electorate speaks its mind on the issues of the day and choose the men and women of the hour who are seeking their mandate.20 (Emphasis supplied)

Thus, the holding of elections, and the exercise of the right to vote therein, constitutes a "sacred" contract. In keeping with the language of contract law, the fact that this contract is for a limited period reveals that time here is most certainly of the essence, and therefore postponement of elections is an unsanctioned delay21 which prevents renewal of that contract. What occurs then when the right to vote is curtailed by an election postponement is, firstly, a breach of the agreement to hold elections, and concomitantly, a unilateral imposition or a new contract or the governed, but one utterly devoid of consent.

There is also the issue of "informed judgment" referred to by Chief Justice Puno, and I believe that this necessarily covers not only issues such as the selection of persons who the voters are placing in office, but also precisely, the issue of exactly how long these persons are to be in power and a position of authority, for, in the words once more of the Constitution, all government authority emanates from the people.

Thus, just as the surrendering of sovereignty for a limited period, in exchange for the promise of public service, constitutes the object of this far from ordinary contract, so too does a unilateral amendment of the terms of this accord constitute no ordinary breach—it is a contravention that threatens the very foundation upon which our democracy rests, which is consent by the governed.

Again, I find that the grave consequences of this breach are even more evident when considered in concert with the use of provisions authorizing hold-over for "elective" officials.

While the Court has previously validated the hold-over of barangay officials until their successors are qualified and elected, as stated in the ponencia,22 I believe that when hold-over is employed to allow "elective" officials to remain in office well past the limited mandate given them by a proper exercise of suffrage, then this unquestionably calls for the strictest judicial scrutiny available.

Among other cases, the ponencia cites Sambarani v. Commission on Elections23 (Sambarani) as having held that barangay officials are permitted to hold-over in office. In Sambarani, the Court held:

I find that the reference to cases of "extreme necessity" needed to justify hold-over underscores the need to subject an election postponement to strict scrutiny. It must be emphasized that the governmental interests asserted to justify postponing elections cannot be anything short of "compelling," precisely because it is the postponement itself that creates the very "hiatus" in government functions that the expediency of hold-over is called upon to remedy. Two wrongs can hardly make a right.

In this regard, it should be noted that both Sambarani and the related case of Adap v. Commission on Elections,25 which is likewise cited in the ponencia,26 dealt with end validated the hold-over of barangay officials in the specific context of localized failures of election which necessitated the holding of special elections. In such a case, the "extreme necessity" justifying hold-over is manifest. It is only right, therefore, that an election postponement by legislative fiat be required to approximate the level of such an emergency situation or be motivated by equally urgent and "compelling" interests, as would justify resorting to the stopgap measure of hold-over, rather than the actual holding of democratic elections.

In any event, and beyond even the terminology employed, with regard to hold-over, term, and tenure, it is the naked continuance in power of "elective" officials who no longer serve by explicit mandate of the people, however, such continuance might be designated or attempted to be clothed, that lies at the very heart of the claim of disenfranchisement.

Further, I believe that the foregoing discussion on the need to test election postponements which provide for hold-over with strict scrutiny can also address the notion that, as Congress is vested by the Constitution with the power to amend the terms of barangay officials,27 this fact may somehow validate the use of a lower standard of scrutiny for the postponement of barangay elections specifically.

Again, the surrender of sovereignty through the mechanism of an election is temporary, and the duration of the mandate to govern, or more properly, to serve, is determined at the time the votes are cast. An amendment of the term of barangay officials should operate prospectively, so that voters are well aware, when they cast their votes, of the lengthened or shortened, as the case may be, duration of their parting with a portion of their sovereignty. This is not a situation where the maxim of "[w]hat cannot be legally done directly cannot be done indirectly"28 can be read to mean "what can be legally done directly can be done indirectly." To subscribe to this view would be to sanction a subversion of the very nature of an elective office.

To end, I, of course, acknowledge that there may very well arise events and circumstances of such compelling nature as would necessitate the postponement of an election and adequately justify imposing the requisite burden on the right to suffrage. To even begin to imagine otherwise would be to forget so readily, if not recklessly, the lessons of the very recent past, and I refer here to the upheaval in all aspects of life at the height of the COVID-19 pandemic.

But to demand anything less than a compelling state interest from a law that postpones the holding of democratic elections would be a travesty. While defining what exactly constitutes a "compelling" state interest, as opposed to the "important or substantial” governmental interest required to satisfy the intermediate scrutiny standard, may be difficult, the guidelines valiantly attempt to, at the very least, present a rubric for what may or may not possibly suffice as "compelling."

In any event, the evaluation of what constitutes a compelling state interest is akin to a variation of United States Supreme Court Justice Potter Stewart's famous line, with regard to what constitutes obscenity that cannot be regarded as constitutionally-protected expression, of "'I know it when I see it[.]'"29 In the case of a compelling state interest, this is a matter where the Court, cognizant of the futility of anticipating all future situations within the realm of possibility, must simply profess to know when it does not see it.

And ultimately, I hold that the choice of the standard of review here is, at the end of the day, a value judgment as to whether we consider the right of suffrage, and all that it entails, to be truly of essence and truly of fundamental importance to our nation's avowed way of life.

All told, therefore, it is my firm belief the Court would be remiss in its constitutional duty were it to meet a curtailment of this most sacred of rights with anything less than the strictest of scrutiny. The Filipino people deserve as much if we truly hope to embody, in the immortal words of Abraham Lincoln, the aspiration of a "government of the people, for the people, by the people."30

It is for the foregoing reasons that I therefore vote to APPROVE the guidelines, as enunciated in the ponencia, to test the validity and constitutionality of any future election postponements, as these are crafted and informed by the appropriate standard of review of strict scrutiny.