EN BANC

 

 

G.R No. 196271 DATU MICHAEL ABAS KIDA, ET AL., Petitioners,

v. SENATE OF THE PHILIPPINES, ET AL., Respondents.

 

G.R. No. 196305 BASARI D. MAPUPUNO, Petitioner, v. SIXTO BRILLANTES, ET AL., Respondents.

G.R. No. 197221 REP. EDCEL C. LAGMAN, Petitioner, v. PAQUITO N. OCHOA, JR., ET AL., Respondents.

 

G.R. No. 197280 ALMARIM CENTI TILLAH, ET AL., Petitioners, v.

THE COMMISSION ON ELECTIONS, ET AL., Respondents.

G.R. No. 197282 ATTY. ROMULO B. MACALINTAL, Petitioner, v.

COMMISSION ON ELECTIONS, ET AL., Respondents.

G.R. No. 197392 LUIS BAROK BIRAOGO, Petitioner, v. THE COMMISSION ON ELECTIONS, ET AL., Respondents.

 

G.R. No. 197454 JACINTO V. PARAS, Petitioner, v. EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., ET AL., Respondents.

MINORITY RIGHTS FORUM, PHILIPPINES, INC., BANGSAMORO SOLIDARITY MOVEMENT, INC., HADZRI H. MATBA, JULHUSIN ESTINO, and MALLI KADIL, SIAD Initiatives in Mindanao Convergence For Asset Reform and Regional Development (SIM -CARRD) (represented by TOMASITO VILLARIN), ABDUL RASHID LADAYO, and SAMIRA GUTOC-TOMAWIS, Respondents-Intervenors.

 

 

Promulgated:

 

October 18, 2011

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

 

 

 

 

 

 

 

DISSENTING OPINION

 

 

CARPIO, J.:

 

The Cases

 

These are original actions1 assailing the validity of statutes and bills on the holding of elections in the Autonomous Region in Muslim Mindanao (ARMM).

 

Background

 

The ARMM Organic Act, Republic Act No. 6734 (RA 6734), as amended by Republic Act No. 9054 (RA 9054), mandated the holding of the first regular elections for Governor, Vice-Governor and Members of the Regional Legislative Assembly x x x on the second Monday of September 2001.2 The elected officials would serve a three-year term beginning 30 September 2001.3 Before the September 2001 elections could take place, however, Congress moved the elections to 26 November 2001 by enacting Republic Act No. 9140 (RA 9140).4

 

Nearly four years later, Congress enacted Republic Act No. 9333 (RA 9333) fixing the date of the regular elections in the ARMM on the second Monday of August 2005 [and] x x x every three years thereafter.5 Elections in the ARMM took place on the second Mondays of August 2005 and August 2008 following RA 9333.

A few months before the ARMM elections on the second Monday of August 2011, several members of the House of Representatives jointly filed House Bill No. 4146 (HB 4146), moving the date of the elections to the second Monday of May 2013 and x x x every three years thereafter. As the term of office of the then incumbent elective officials in the ARMM would expire on 30 September 2011, HB 4146 authorized the President to appoint officers-in-charge who would hold office from 30 September 2011 until 30 June 2013 when the officials elected in the May 2013 elections would have assumed office. HB 4146 aimed to synchronize the ARMM elections with the local and national elections scheduled on the second Monday of May 2013.6 The House of Representatives approved HB 4146 on 23 March 2011, voting 191- 47 with two abstentions.

 

After receiving HB 4146, the Senate, where a counterpart measure (Senate Bill No. 2756 [SB 2756]) was pending, approved its own version on 6 June 2011 by a vote of 13-7, modifying some parts of HB 4146 but otherwise leaving its core provisions intact. The affirmative votes were two votes short of 2/3 of the Senate membership (23). The following day, the House of Representatives adopted the Senates version. On 30 June 2011, the President signed the measure into law as Republic Act No. 10153 (RA 10153).

 

After the House of Representatives approved HB 4146, petitioners in G.R. No. 196271 filed their petition assailing the constitutionality of HB 4146, SB 2756 and RA 9333. Soon after, petitioner in G.R. No. 196305 filed suit assailing the constitutionality of RA 9333. After the President signed into law RA 10153, petitioners in G.R. Nos. 197221, 197280, 197282, 197392 and 197454 filed their petitions assailing the constitutionality of RA 10153. Petitioners in G.R. No. 197280 also assail the constitutionality of RA 9140 and RA 9333. In a supplemental petition, petitioners in G.R. No. 196271 joined these latter petitions in questioning the constitutionality of RA 10153.

 

The petitions against RA 9140, RA 9333 and RA 101537 treat these laws as amending RA 9054 and charge Congress with failing to comply with the twin requirements prescribed in Sections 1 and 3, Article XVII of RA 90548 for amending RA 9054. These twin requirements are: (1) approval by a 2/3 vote of the members of the House of Representatives and the Senate voting separately, and (2) submission of the amendments to ARMM voters in a plebiscite. RA 9140, RA 9333 and RA 10153 do not provide for their submission to ARMM voters in a plebiscite. On the other hand, although the 191 affirmative votes in the Lower House for HB 4146 satisfied the 2/3 vote threshold in RA 9054, the 13 affirmative votes in the Senate for SB 2756 fell two votes short of the 2/3 vote threshold.

 

Petitioners unanimity ends here, however, for they differ on when the elections in the ARMM should take place. The petitions against RA 10153 favor the holding of elections on the second Monday of August 20119 while those attacking RA 9333 only,10 or together with RA 9140 and RA 10153,11 seek the holding of elections on the second Monday of September 2011, purportedly following RA 9054. Another petition, which finds RA 10153 unconstitutional, leave it to the Court to order special elections within a period reasonably close to the elections mandated in RA 9333.12

 

The petitions against RA 10153 further raise the following issues: (1) postponing the ARMM elections to the second Monday of May 2013 undermines the republican and autonomous nature of the ARMM, in violation of the Constitution and RA 9054; (2) granting the President the power to appoint OICs unconstitutionally expands his power over the ARMM to encompass not only general supervision but also control; and, for the petition in G.R. No. 197280, (3) Congress, in enacting RA 10153, defectively waived the Constitutions requirement for the separate reading of bills and the advance distribution of their printed copies because the Presidents certification for the urgent passage of HB 4146 and SB 2756 was not grounded on public calamity or emergency.

 

The petition in G.R. No. 196271 extends the reach of its attack to HB 4146 and SB 2756, for failing to include a provision requiring the submission of the anticipated law to ARMM voters in a plebiscite.

 

In their separate Comments to the petitions in G.R. No. 196271 and G.R. No. 196305, the Senate and the House of Representatives pray for the dismissal of the petitions. The Senate disagrees with the proposition that RA 9333 constitutes an amendment to RA 9054, treating RA 9333 as merely filling the void left by RA 9054 in failing to schedule the succeeding regular elections in the ARMM. Thus, the Senate finds irrelevant the twin requirements in RA 9054 in the enactment of the assailed laws. Alternatively, the Senate gives a narrow construction to the plebiscite requirement in RA 9054, limiting the plebiscite to cover amendatory laws affecting substantive matters, as opposed to administrative concerns such as fixing election dates.13

 

The House of Representatives accepts the amendatory nature of RA 9333 but attacks the constitutionality of the twin requirements in RA 9054 mandating a supermajority vote of each House of Congress and the approval by ARMM voters in a plebiscite for purposes of amending RA 9054. The Lower House grounds its attack on two points: (1) save in exceptional cases not applicable to the present petitions, the Constitution only requires a simple majority of a quorum in each House of Congress to enact, amend or repeal laws; and (2) the rule against the passage of irrepealable laws. Alternatively, the House of Representatives, like the Senate, narrowly construes the plebiscite requirement in RA 9054 to cover only amendatory laws creating or expanding the ARMMs territory.

 

The Senate and the House of Representatives uniformly contend that the question on the constitutionality of HB 4146 and SB 2756 is non-justiciable.

 

The Office of the Solicitor General (OSG), representing respondent Commission on Elections (COMELEC) and the other individual public respondents, joined causes with the House of Representatives on the issue of the validity of the twin requirements in RA 9054 for the passage of amendatory laws. In defending the Presidents authority under RA 10153 to appoint OICs, the OSG treats the authority as a species of legislation falling under Section 16, Article VII of the Constitution authorizing the President to appoint those whom he may be authorized by law to appoint. The OSG rejects petitioners treatment of this authority as granting the President control over the ARMM, contending instead that it is analogous to Section 7, Article XVIII of the Constitution, authorizing the President for a limited period to appoint sectoral representatives in the House of Representatives.

 

On 9 August 2011, the Court heard the parties in oral argument.

 

On 13 September 2011, the Court issued a temporary restraining order enjoining respondents from implementing RA 10153. Meanwhile, the Court authorized the then incumbent elective officials in the ARMM to continue in office in the event that the present petitions remain unresolved after the officials term of office expires on 30 September 2011.

 

The Court granted intervention to four groups of parties who filed comments-in-intervention joining causes with respondents.

 

The Issues

 

The following are the issues for resolution:

 

       I.            Did the passage of RA 10153 violate Section 26(2), Article VI of the Constitution?

 

    II.            Do Section 2 of RA 10153, Section 1 of RA 9333 and Section 2 of RA 9140 constitute an amendment to Section 7, Article XVIII of RA 9054? If in the affirmative

 

1.      Is Section 1, Article XVII of RA 9054 repugnant to Section 1 and Section 16(2), Article VI of the Constitution and violative of the rule against the passage of irrepealable laws?; and

 

2.      Does Section 3, Article XVII of RA 9054 apply only in the creation of autonomous regions under paragraph 2, Section 18, Article X of the Constitution?

 

III.            Do Sections 3, 4 and 5 of RA 10153

 

1.      Violate Sections 15, 16, and 18, Article X of the Constitution?;

 

2.      Fall under Section 16, Article VII of the Constitution?; and

 

3.      Repeal the second sentence of Section 7(1), Article VII of RA 9054?

 

IV.            Does RA 10153 implement Sections 2 and 5, Article XVIII of the Constitution?

 

I vote to declare RA 9333 constitutional, and RA 10153 partly unconstitutional. The synchronization of the ARMM elections with the national and local elections under RA 10153 is constitutional. However, Sections 3, 4 and 5 of RA 10153 authorizing the President to appoint OICs in place of elective ARMM officials are unconstitutional. Save in newly created local government units prior to special or regular elections, elective officials of local government units like the ARMM cannot be appointed by the President but must be elected in special or regular elections. Hence, respondent COMELEC should be ordered to hold special elections in the ARMM as soon as possible.

 

Pending the assumption to office of the elected ARMM Governor, the President, under his general supervision over local governments, may appoint an officer-in-charge in the office of the ARMM Governor. Such appointment is absolutely necessary and unavoidable to keep functioning essential government services in the ARMM. On the other hand, I vote to declare unconstitutional the second sentence of Section 7(1), Article VII of RA 9054 authorizing ARMM elective officials to hold over until the election and qualification of their successors. Such hold over violates the fixed term of office of elective local officials under the Constitution.

 

The challenge against the constitutionality of HB 4146 and SB 2756 raises a non-justiciable question, hence immediately dismissible. Until legislative bills become laws, attacks against their constitutionality are premature, lying beyond the pale of judicial review.14

 

The Presidents Certification on Urgency of Legislation

Not Subject to Heightened Scrutiny

 

Petitioners in G.R. No. 197280 claim that Congress defectively passed RA 10153 for failing to comply with the requirement in the Constitution for the reading of bills on three separate days and the advanced distribution of their printed copies in final form under the second paragraph of Section 26, Article VI, which provides:

 

No bill passed by either House shall become a law unless it has passed three readings on separate days, and printed copies thereof in its final form have been distributed to its Members three days before its passage, except when the President certifies to the necessity of its immediate enactment to meet a public calamity or emergency. Upon the last reading of a bill, no amendment thereto shall be allowed, and the vote thereon shall be taken immediately thereafter, and the yeas and nays entered in the Journal. (Emphasis supplied)

 

Although the President certified HB 4146 and SB 2756 as urgent measures, thus dispensing with the bills separate reading and advanced distribution, petitioners in G.R. No. 197280 find the basis of the Presidents certification, namely, the need to protect x x x ARMMs autonomy x x x and provide mechanism to institutionalize electoral reforms, as flimsy, falling short of the Constitutions requirement of public calamity or emergency.15

 

The Court has refused in the past to subject to heightened scrutiny presidential certifications on the urgency of the passage of legislative measures. In Tolentino v. Secretary of Finance,16 petitioners in that case questioned the sufficiency of the Presidents certification of a growing budget deficit as basis for the urgent passage of revenue measures, claiming that this does not amount to a public calamity or emergency. The Court declined to strike down the Presidents certification upon a showing that members of both Houses of Congress had the opportunity to study the bills and no fundamental constitutional rights were at hazard:

 

It is nonetheless urged that the certification of the bill in this case was invalid because there was no emergency, the condition stated in the certification of a growing budget deficit not being an unusual condition in this country.

 

It is noteworthy that no member of the Senate saw fit to controvert the reality of the factual basis of the certification. To the contrary, by passing S. No. 1630 on second and third readings on March 24, 1994, the Senate accepted the Presidents certification. Should such certification be now reviewed by this Court, especially when no evidence has been shown that, because S. No. 1630 was taken up on second and third readings on the same day, the members of the Senate were deprived of the time needed for the study of a vital piece of legislation?

 

The sufficiency of the factual basis of the suspension of the writ of habeas corpus or declaration of martial law under Art. VII, 18, or the existence of a national emergency justifying the delegation of extraordinary powers to the President under Art. VI, 23(2), is subject to judicial review because basic rights of individuals may be at hazard. But the factual basis of presidential certification of bills, which involves doing away with procedural requirements designed to insure that bills are duly considered by members of Congress, certainly should elicit a different standard of review. (Emphasis supplied)

 

 

As in Tolentino, Congress, in passing RA 10153, found sufficient the factual bases for President Aquinos certification of HB 4146 and SB 2756 as emergency measures. Petitioners in G.R. No. 197280 do not allege, and there is nothing on record to show, that members of Congress were denied the opportunity to examine HB 4146 and SB 2756 because of the Presidents certification. There is thus no basis to depart from Tolentino.17

 

RA 9333 and RA 10153 Supplement

and do not Amend RA 9054

 

 

The petitions assailing RA 9333 and RA 10153 are united in their contention that these amendatory laws to RA 9054 are invalid for failure to comply with the twin requirements in RA 9054, namely, that the amendments must be approved by a 2/3 vote of each House of Congress and submitted to ARMM voters in a plebiscite. The underlying assumption of petitioners theory that RA 9333 and RA 10153 amend RA 9054 is legally baseless.

Section 7, Article XVIII of RA 9054 on the holding of ARMM elections provides in part:

 

First Regular Elections. The first regular elections of the Regional Governor, Regional Vice-Governor and members of the regional legislative assembly under this Organic Act shall be held on the second Monday of September 2001. The Commission on Elections shall promulgate rules and regulations as may be necessary for the conduct of said election. (Emphasis supplied)

 

x x x x

 

The ambit of Section 7 is narrow, confined to the first regular elections, scheduled on the second Monday of September 2001. This left open the scheduling of elections succeeding the first regular elections.

 

In the exercise of its plenary legislative power, Congress filled this void by enacting RA 9333, Section 1 of which provides:

 

Section 1. Date of Election. The regular election for regional Governor and Regional Vice-Governor and Members of the Regional Legislative Assembly of the Autonomous Region in Muslim Mindanao (ARMM) shall be held on the second Monday of August 2005. Succeeding regular elections shall be held on the same date every three years thereafter. (Emphasis supplied)

In the discharge of the same power, Congress subsequently passed RA 10153, Section 2 of which states:

 

SEC. 2. Regular Elections. - The regular elections for the Regional Governor, Regional Vice-Governor and Members of the Regional Legislative Assembly of the Autonomous Region in Muslim Mindanao (ARMM) shall be held on the second (2nd) Monday of May 2013. Succeeding regular elections shall be held on the same date every three (3) years thereafter. (Emphasis supplied)

 

 

Had Congress intended RA 9054 to govern not only the first regular elections but also succeeding regular elections, it would have included in Section 7 of Article XVIII a provision stating to the effect that the succeeding regular elections shall be held on the same date every three years thereafter, consistent with the three-year term of office of elective officials in the ARMM.18 Instead, RA 9054 confines itself to the first regular elections. Tellingly, it is only in Section 1 of RA 9333 and Section 2 of RA 10153 that Congress touched on the succeeding regular elections in the ARMM, by uniformly providing that [s]ucceeding regular elections shall be held on the date indicated every three years thereafter.

 

The legislative practice of limiting the reach of the ARMM Organic Act to the first regular elections, leaving the date of the succeeding regular elections for Congress to fix in a subsequent legislation, traces its roots in the ARMMs first Organic Act, RA 6734. Section 7, Article XIX of RA 6734 fixed the date of the first regular elections, to take place not earlier than sixty (60) days or later than ninety (90) days after the ratification of RA 6743. Section 7 reads in full:

 

The first regular elections of the Regional Governor, Vice-Governor and Members of the Regional Assembly under this Organic Act shall be held not earlier than sixty (60) days or later than ninety (90) days after the ratification of this Act. The Commission on Elections shall promulgate such rules and regulations as may be necessary for the conduct of said election. (Emphasis supplied)

 

To fix the date of the succeeding regular elections, Congress passed several measures, moving the election day as it deemed proper.19 Like RA 9333 and RA 10153, these enactments merely filled a void created by the narrow wording of RA 6734. RA 9333 and RA 10153 are therefore separate, stand-alone statutes that do not amend any provision of RA 9054.

 

 

RA 9140 Rendered Functus Officio

after 26 November 2001 Elections

 

 

Petitioners in G.R. No. 197280 attack Section 2 of RA 9140 also for its failure to comply with the twin requirements in amending RA 9054.20 To recall, under Section 2 of RA 9140, which immediately preceded RA 9333, the date of the first elections in the ARMM under RA 9054 was moved to 26 November 2001.

 

There is no reason to traverse this issue for the simple reason that Congress passed RA 9140 solely for the narrow purpose of fixing the date of the plebiscite for RA 9054 (Section 1) and the date of the first regular elections in the ARMM under RA 9054 (Section 2). These electoral exercises took place on 14 August 2001 and 26 November 2001, respectively. Hence, RA 9140 became functus officio after 26 November 2001. It is futile, in this case, to review the validity of a functus officio law.

 

Granting that RA 9333 and RA 10153 Amend

RA 9054, these Laws Remain Valid

 

That RA 9333 and RA 10153 merely filled a void in RA 9054 would have sufficed to dispose of the argument that these laws are invalid for non-compliance with the twin requirements in RA 9054. These requirements would have been left unreviewed were it not for the fact that respondents and intervenors vigorously insist on their invalidity. The issue having been raised squarely, the Court should pass upon it.

 

 

 

 

Section 1, Article XVII of RA 9054

Requiring 2/3 Vote to Amend RA 9054

Unconstitutional

 

Section 1, Article XVII of RA 9054 requires a 2/3 supermajority vote of the members of each House of Congress to amend or repeal RA 9054. This provision states:

 

Consistent with the provisions of the Constitution, this Organic Act may be reamended or revised by the Congress of the Philippines upon a vote of two-thirds (2/3) of the Members of the House of Representatives and of the Senate voting separately. (Emphasis supplied)

 

Respondents House of Representatives, COMELEC and individual officials assail this provisions constitutionality on two grounds. First, it is repugnant to Section 16 (2), Article VI of the Constitution requiring a mere majority of members of both Houses of Congress to constitute a quorum to do business.21 Second, it violates the doctrine barring the passage of irrepealable laws, a doctrine rooted on the plenary power of Congress to amend or repeal laws that it enacts.

 

Section 16 (2), Article VI of the Constitution, which provides that [a] majority of each House shall constitute a quorum to do business x x x, sets the vote threshold for Congress to conduct its legislative work in plenary session. Under this provision, a majority of each House suffices for Congress to hold sessions and pass, amend, or repeal bills and resolutions, upon a vote of a majority of the members present who constitute a quorum. In short, a majority of a quorum, or a majority of a majority, can enact, amend or repeal laws or approve acts requiring the affirmative action of Congress, unless the Constitution prescribes a qualified or supermajority in specific cases.22

 

By providing that RA 9054 may be reamended or revised by the Congress of the Philippines upon a vote of two-thirds (2/3) of the Members of the House of Representatives and of the Senate voting separately, Section 1, Article XVII of RA 9054 raised the vote threshold necessary to amend RA 9054 to a level higher than what Section 16 (2), Article VI of the Constitution requires. Thus, without Section 1, Article XVII of RA 9054, it takes only 7223 votes in the Lower House and 724 votes in the Senate to pass amendments or revisions to RA 9054, assuming a simple quorum in attendance in either House. With the same provision in the statute books, at least 189 votes in the House of Representatives and at least 15 in the Senate are needed to enact the same amendatory or repealing legislation, assuming the same simple quorum in either House. The repugnancy between the statutory provision and the Constitution is irreconcilable. Needless to say, the Constitution prevails.

 

Section 1, Article XVII of RA 9054 also runs afoul of the inherent limitation on Congress power barring it from passing irrepealable laws.25 Section 1, Article XVII of RA 9054 erects a high vote threshold for each House of Congress to surmount, effectively and unconstitutionally, taking RA 9054 beyond the reach of Congress amendatory powers. One Congress cannot limit or reduce the plenary legislative power of succeeding Congresses by requiring a higher vote threshold than what the Constitution requires to enact, amend or repeal laws. No law can be passed fixing such a higher vote threshold because Congress has no power, by ordinary legislation, to amend the Constitution.

 

The Constitutions rule allowing a simple majority of each House of Congress to do business evinces the framers familiarity with the perennial difficulty plaguing national legislative assemblies in constituting a quorum. Set the quorum requirement any higher and plenary legislative work will most likely slow down if not grind to a halt. The 2/3 vote threshold in Section 1, Article XVII of RA 9054 effectively ensures the near immutability of RA 9054, in derogation of Congress plenary power to amend or repeal laws. Unless the Constitution itself mandates a higher vote threshold to enact, amend or repeal laws,26 each House of Congress can do so by simple majority of the members present who constitute a quorum.

 

There is no merit in the proposition that Section 1, Article XVII of RA 9054 is an additional safeguard[] to protect and guarantee the autonomy of the ARMM.27 Autonomy, even of the expanded type prevailing in the ARMM, means vesting of more powers and resources to the local or regional government units. To say that autonomy means shackling the hands of Congress in improving laws or passing remedial legislations betrays a gross misconception of autonomy.

 

Nor is the provision in Section 27(1), Article VI of the Constitution requiring a 2/3 vote for Congress to override a presidential veto an argument for the validity of Section 1, Article XVII of RA 9054. The veto-override provision neither negates the simple majority rule for Congress to legislate nor allows the passage of irrepealable laws. The Presidential veto is a power of the Executive to reject a law28 passed by Congress, with the associated power of Congress to override such veto by a 2/3 vote. This associated power of Congress is not an independent power to prescribe a higher vote threshold to enact, amend or repeal laws, an act which does not involve any Presidential veto but operates as an auto-limitation on the plenary power of Congress to legislate.

 

The veto-override provision is a small but vital mechanism presidential systems adopt to calibrate the balance of power between the Executive and the Legislature. It ensures the Executive a substantial voice in legislation by requiring the Legislature to surmount a vote threshold higher than the simple majority required to pass the vetoed legislation. The veto-override provision cannot be used to immobilize future Congresses from amending or repealing laws by a simple majority vote as provided in Section 16(2), Article VI of the Constitution.

 

Plebiscite Mandatory only

in Approving Creation or Expansion

of the ARMM

 

 

The second paragraph of Section 18, Article X of the Constitution requires the holding of a plebiscite in the autonomous region for the approval of its creation, thus:

 

The creation of the autonomous region shall be effective when approved by a majority of the votes cast by the constituent units in a plebiscite called for the purpose. (Emphasis supplied)

 

Section 18 of Article X is substantially similar to Section 10, Article X of the Constitution, mandating that no local government unit shall be created, divided, merged, abolished, or its boundaries substantially altered29 unless, among others, voters of the affected units approve the proposed measure in a plebiscite.

 

The narrow ambit of these constitutional provisions, limiting the plebiscite to changes in the size of the units territory, is commonsensical. The Constitution requires that territorial changes, affecting the jurisdiction, income, and population of a local government unit, should not be left solely for politicians to decide but must be submitted for approval or rejection by the people affected.30

 

In sharp contrast to the narrow scope of Section 10 and Section 18 of Article X of the Constitution, Section 3, Article XVII of RA 9054 mandates the holding of a plebiscite in the ARMM to approve [a]ny amendment to or revision of RA 9054, thus:

Any amendment to or revision of this Organic Act shall become effective only when approved by a majority of the vote cast in a plebiscite called for the purpose, which shall be held not earlier than sixty (60) days or later than ninety (90) days after the approval of such amendment or revision. (Emphasis supplied)

 

Petitioners give a literal interpretation to this provision by applying it to all amendments to or revisions of RA 9054, including the fixing of the date of elections in the ARMM that RA 10153 mandates.

 

By requiring the holding of a plebiscite to approve any amendment to or revision of RA 9054, Section 3, Article XVII of RA 9054, a supposed statutory implementation of the second paragraph of Section 18, Article X of the Constitution, impermissibly expands the scope of the subject matter that the Constitution requires to be submitted to a plebiscite. By barring any change to RA 9054 from taking effect unless approved by ARMM voters in a plebiscite, even if unrelated to the ARMMs creation, reduction or expansion, Section 3 of Article XVII directly contravenes Section 18, Article X of the Constitution.31

 

True, the Court held in Disomangcop v. Datumanong32 that Republic Act No. 8999 (RA 8999) creating an engineering office within the ARMM is an amendatory law which should x x x first obtain the approval of the people of the ARMM before it can validly take effect.33 This statement, obviously an obiter dicta, furnishes no ground to support petitioners interpretation of Section 3, Article XVII of RA 9054. What the Court resolved in Disomangcop was whether RA 8999, creating an office performing functions inconsistent with those created under the ARMM Organic Act, prevails over the latter. The Court anchored its negative answer, not on the ground that RA 8999 was invalid for not having been approved in a plebiscite, but on the fact that RA 8999, signed into law in January 2001, was repealed and superseded by RA 9054, enacted in March 2001. Thus, in disposing of the case, we ruled:

 

WHEREFORE, considering that Republic Act No. 9054 repealed Republic Act No. 8999 and rendered DPWH Department Order No. 119 functus officio, the petition insofar as it seeks the writs of certiorari and prohibition is GRANTED.34 x x x x (Emphasis supplied)

The Court was not confronted in Disomangcop, as it is now, with the issue of whether a law changing the date of elections in the ARMM should be submitted to ARMM voters in a plebiscite.

 

 

Congress Power to Synchronize National and Local Elections

does not Encompass Appointment of OICs

in Place of Elective Officials

 

 

The Constitution impliedly requires the synchronization of elections for President, Vice-President, members of Congress and local officials after the end of their first term by simultaneously ending their tenure on 30 June 1992, extending in the process the initial tenure of the members of Congress and local officials.35 As the Court confirmed in Osmea v. Commission on Elections:36 [t]he Constitution has mandated a synchronized national and local election prior to June 30, 1992 or more specifically as provided for in Article XVIII, Sec. 5 on the second Monday of May 1992.37 After the Court struck down Republic Act No. 7065 in Osmea for desynchronizing local and national elections, Congress subsequently passed Republic Act No. 7166 (RA 7166) synchronizing elections for presidential, vice-presidential, congressional, provincial, city and municipal officials. RA 10153 widens the ambit of the Constitutions policy of synchronizing elections by including the ARMM into the loop of synchronized elections. With the passage of RA 10153, only barangay and sangguniang kabataan elections are excluded from the synchronized national and local elections.38

 

The contention of petitioners in G.R. No. 196271 that the elections in the ARMM cannot be synchronized with the existing synchronized national and local elections is untenable. Petitioners advance the theory that elections in the ARMM are not local elections because ARMM officials are not local officials within the meaning of Sections 2 and 5, Article XVIII of the Constitution.39

 

Under Section 1, Article X of the Constitution, the ARMM is a local government unit just like provinces, cities, municipalities, and barangays. Section 1, Article X of the Constitution provides:

 

The territorial and political subdivisions of the Republic of the Philippines are the provinces, cities, municipalities, and barangays. There shall be autonomous regions in Muslim Mindanao and the Cordilleras as hereinafter provided. (Emphasis supplied)

 

The entire Article X of the Constitution is entitled Local Government because Article X governs the creation of, and the grant of powers to, all local government units, including autonomous regions.40 Thus, elective officials of the ARMM are local officials because the ARMM is a local government unit, just like provinces, cities and municipalities.

 

Section 8, Article X of the Constitution provides that [t]he term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years x x x. In compliance with this provision, ARMM elective officials serve three-year terms under RA 9054.41 Congress cannot fix the term of elective local officials in the ARMM for less, or more, than three years. Clearly, elective officials in the ARMM are local officials and elections in the ARMM, a local government unit, are local elections.

Congress power to provide for the simultaneous holding of elections for national and local officials, however, does not encompass the power to authorize the President to appoint officers-in-charge in place of elective local officials, canceling in the process scheduled local elections. To hold otherwise is to sanction the perversion of the Philippine States democratic and republican nature.42 Offices declared by the Constitution as elective must be filled up by election and not by appointment. To appoint officials to offices mandated by the Constitution to be elective, absent an absolutely unavoidable necessity to keep functioning essential government services, is a blatant violation of an express command of the Constitution.

 

Options to Fill Vacancies in the ARMM

Elective Offices After 30 September 2011

 

In desiring to include elections in the ARMM in the existing synchronized national and local elections, Congress faced a dilemma arising from the different schedules of the election cycles under RA 7166 and RA 9333. Under RA 7166, national and local elections simultaneously take place every second Monday of May in a three-year cycle starting 1992. On the other hand, under RA 9333, elections in the ARMM take place every second Monday of August in a three-year cycle starting 2005. Thus, a 21-month gap separates the two electoral cycles. The horn of the dilemma lies in how to fill up elective offices in the ARMM during this gap.

 

There are three apparent ways out of this dilemma, namely: (1) allow the elective officials in the ARMM to remain in office in a hold over capacity; (2) authorize the President to appoint OICs; or (3) hold special elections in the ARMM, with the terms of those elected to expire on 30 June 2013. Two petitions favor partial hold over pending the holding of special elections.43 On the other hand, the OSG defends Congress choice under RA 10153 authorizing the President to appoint OICs who will hold office until 30 June 2013.

 

 

Sections 3, 4 and 5 of RA 10153 Authorizing

the President to Appoint OICs

in Elective Local Offices in the

ARMM Unconstitutional

 

Historically, the legislature has authorized the President to appoint OICs for elective local offices only as an incident to the creation of a new local government unit or to its transition from a sub-unit to a full-fledged political subdivision. Thus, statutes creating the provinces of Quezon del Sur44 and Dinagat Islands45 uniformly authorized the President to appoint an interim governor, vice-governor and members of the sangguniang panlalawigan, who shall serve only until a new set of provincial officials have been elected and qualified.46 Similarly, the statute creating the municipality of Tboli in South Cotabato authorized the President to appoint the elective officials of the new Municipality who shall hold office until their successors shall have been duly elected in the general elections next following the issuance of this Decree.47 The same authorization is found in the Local Government Code for sub-provinces, authorizing the President to appoint the interim governor, vice-governor and members of the sangguniang panlalawigan while the sub-provinces are transitioning to the status of a province.48

These legislative authorizations are rendered imperative by the fact that incipient or transitioning local government units are devoid of elective officials prior to special or regular local elections. Where the law provides for the creation of a local government unit prior to the election of its local officials, it becomes absolutely necessary and unavoidable for the legislature to authorize the President to appoint interim officials in elective local offices to insure that essential government services start to function.

 

In authorizing the President to appoint OICs in the ARMM, Section 3 of RA 10153 provides:

 

Appointment of Officers-in-Charge.The President shall appoint officers-in-charge for the Office of the Regional Governor, Regional Vice-Governor and Members of the Regional Legislative Assembly who shall perform the functions pertaining to the said offices until the officials duly elected in the May 2013 elections shall have qualified and assumed office.

 

Section 3 is supplemented by Section 4 which provides the manner and procedure of appointment49 while Section 5 states the qualifications for the OICs.50

 

It takes no extensive analysis to conclude that Section 3 is neither necessary nor unavoidable for the ARMM to function. The ARMM is an existing, as opposed to a newly created or transitioning, local government unit created more than two decades ago in 1989. At the time of the passage of RA 10153, elected officials occupied all the elective offices in the ARMM. No one claims that it is impossible to hold special local elections in the ARMM to determine its next set of elective officials.

 

Section 3 of RA 10153 negates the representative and democratic nature of the Philippine State and its political subdivisions such as the ARMM.51 Section 18, Article X of the Constitution on the organic act of autonomous regions expressly requires the organic act to define the [b]asic structure of government for the region consisting of the executive department and legislative assembly, both of which shall be elective and representative of the constituent political units.52 The ARMMs Organic Act, RA 6734, as amended by RA 9054, implements Section 18, Article X of the Constitution by mandating the popular election of its executive and legislative officials.53 Section 3 of RA 10153, however, negates Congress implementation of the Constitution under RA 9054 by making the executive and legislative offices in the ARMM appointive.

 

There is no merit in the OSGs argument that Section 3 of RA 10153 is similar to Section 7, Article XVIII of the 1987 Constitution, authorizing the President to appoint sectoral representatives in Congress pending the passage of legislation on party-list representation.54 The filling of seats in the House of Representatives under Section 7, Article XVIII of the Constitution is authorized by the Constitution itself and thus can never be questioned as unconstitutional. In ratifying the Constitution, the Filipino people authorized the President to appoint sectoral representatives for a limited period. However, the appointment by the President of OICs in the ARMM under Sections 3, 4 and 5 of RA 10153 is not authorized under the Constitution but is in fact in violation of the Constitution that the Filipino people ratified overwhelmingly.

 

What Section 3 of RA 10153 approximates is the provision in the Freedom Constitution allowing [a]ll elective x x x officials [to] continue in office until otherwise provided by proclamation or executive order or upon the designation or appointment and qualification of their successors, if such is made within a period of one year from February 25, 1986.55 Wisely enough, none of the respondents saw fit to invoke this provision as precedent. The mass replacement of elective local officials following the EDSA uprising in 1986 was part of the then revolutionary governments purging of the local government ranks of officials linked to the excesses of the previous regime. In making her appointments, then President Corazon C. Aquino wielded executive and legislative powers unconstrained by any specific constitutional limitation. This is not the situation in the present case.

 

Nor is Section 3 of RA 10153 a species of legislation falling under Section 16, Article VII of the Constitution authorizing the President to appoint those whom he may be authorized by law to appoint. This provision does not empower Congress to authorize the President to fill up by appointment positions that, by express mandate of the Constitution, are elective and representative offices. Section 16, Article VII of the Constitution obviously refers only to appointive and not elective offices.

 

Clearly, authorizing the President to appoint OICs in place of elective officials in the ARMM, an existing local government unit, contravenes Section 18, Article X of the Constitution, which mandates that the executive department and legislative assembly of the ARMM shall be elective and representative. Elective local offices in the ARMM, after the ARMMs creation and holding of regular local elections, cannot be filled up through the appointment of OICs by the President without violating Section 18, Article X of the Constitution.

 

However, under Section 4, Article X of the Constitution, the President exercises general supervision over all local governments. In case it is absolutely necessary and unavoidable to keep functioning essential government services, the President may, under his power of general supervision over local governments, appoint OICs where vacancies occur in existing elective local offices and the law does not provide for succession, or where succession is inapplicable because the terms of elective officials have expired.

 

Thus, the President may appoint an officer-in-charge in the office of the ARMM Governor pending the holding of special local elections in the ARMM. The appointment of such officer-in-charge is absolutely necessary and unavoidable because someone must insure that essential government services continue to function in the ARMM. The officer-in-charge shall exercise the powers and perform the functions of the ARMM Governor under RA 9054 and related laws until the assumption to office of the elected ARMM Governor. However, all appointments made by the officer-in-charge shall terminate upon the assumption to office of the elected Governor.

 

It is, however, not absolutely necessary and unavoidable to appoint OICs in the ARMM Regional Legislative Assembly because Section 22, Article VII of RA 9054 provides for the automatic reenactment of the ARMM budget if the Regional Legislative Assembly fails to pass the appropriation bill for the ensuing fiscal year.56 Even without OIC regional assembly members, the ARMM will have an operational budget for the next fiscal year. However, following the Local Government Code, which applies suppletorily to the ARMM,57 only the annual appropriations for salaries and wages of existing positions, statutory and contractual obligations, and essential operating expenses authorized in the annual and supplemental budgets for the preceding year are deemed reenacted.58 The officer-in-charge in the office of the ARMM Governor shall disburse funds from the reenacted budget in accordance with the applicable provisions of the Local Government Code and its implementing rules.

 

 

Second Sentence of Section 7(1),

Article VII of RA 9054 Authorizing

the Hold Over of ARMM Officials

Unconstitutional

 

Petitioner in G.R. No. 197282 invokes the second sentence of Section 7(1), Article VII of RA 9054, which provides:

 

Terms of Office of Elective Regional Officials. (1) Terms of Office. The terms of office of the Regional Governor, Regional Vice-Governor and members of the Regional Assembly shall be for a period of three (3) years, which shall begin at noon on the 30th day of September next following the day of the election and shall end at noon of the same date three (3) years thereafter. The incumbent elective officials of the autonomous region shall continue in office until their successors are elected and qualified.59 (Emphasis supplied)

 

as statutory authorization for ARMM elective officials at the time of the passage of RA 10153 to remain in office until their successors, elected in special elections, assume office. Petitioner in G.R. No. 197221 adopts the same view. On the other hand, respondents-intervenors60 consider the same provision unconstitutional for extending the term of office of ARMM officials beyond the three years mandated in Section 8, Article X of the Constitution. There is merit to this latter claim.

 

Section 8, Article X of the Constitution limits the term of office of elective local officials, except barangay officials, to three years:

 

The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected. (Emphasis supplied)

Elective ARMM officials are local officials61 within the meaning of Section 8, Article X of the Constitution. The ARMM Charter, RA 9054, complies with Section 8, Article X of the Constitution by providing that [t]he terms of office of the Regional Governor, Regional Vice-Governor and members of the Regional Assembly shall be for a period of three (3) years.62

 

The question of whether a law may constitutionally mandate the hold over of local officials beyond the expiration of their term as fixed in the Constitution is not novel. The Court reviewed such a law in Osmea and struck down the law, holding that it is not competent of the legislature to extend the term of officers by providing that they shall hold over until their successors are elected and qualified where the [C]onstitution has x x x prescribed the term:

 

[S]ection 2, Article XVIII of the Constitution x x x provides that the local official first elected under the Constitution shall serve until noon of June 30, 1992. But under Sec. 3 of RA 7056, these incumbent local officials shall hold over beyond June 30, 1992 and shall serve until their successors shall have been duly elected and qualified. It has been held that:

 

It is not competent for the legislature to extend the term of officers by providing that they shall hold over until their successors are elected and qualified where the constitution has in effect or by clear implication prescribed the term and when the Constitution fixes the day on which the official term shall begin, there is no legislative authority to continue the office beyond that period, even though the successors fail to qualify with the time. x x x x

 

In American Jurisprudence it has been stated as follows:

 

It has been broadly stated that the legislature cannot, by an act postponing the election to fill an office the term of which is limited by the Constitution, extend the term of the incumbent beyond the period as limited by the Constitution.

 

Also, there is Section 8, Article X of the Constitution which provides that:

 

The term of office of elective local officials, except barangay officials which shall be determined by law shall be three years and no such official shall serve for more than three consecutive terms. . .

 

x x x .63 (Boldfacing supplied; italicization in the original)

 

 

Osmea is grounded on reasons of power and public policy. First, the power of Congress to fix the terms of public offices stems from (1) its inherent power to create such public offices or (2) a constitutionally delegated power to that effect. Thus, if a public office is created by the Constitution with a fixed term, or if the term of a public office created by Congress is fixed by the Constitution, Congress is devoid of any power to change the term of that office. Thus, statutes which extend the term of an elective office as fixed in the Constitution either by postponing elections, changing the date of commencement of term of the successor, or authorizing the incumbent to remain in office until his successor is elected and qualified are unconstitutional as it amounts to an appointment of an official by Congress to a constitutional office, a power vested either in the Executive or in the electorate,64 or a negation of the term of office fixed in the Constitution.

 

Second, constitutional provisions fixing the terms of elective officials serve the ends of democratic republicanism by depriving elective officials of any legal basis to remain in office after the end of their terms, ensuring the holding of elections, and paving the way for the newly elected officials to assume office.65 Such provisions, which are found in the 1987 Constitution, are framed upon the belief that to ensure democratic values, there must be periodic electoral exercises. By refusing to include hold over provisions in fixing the terms of elective national and non-barangay local officials, the framers of the 1987 Constitution guaranteed not only the elective nature of these offices66 but also secured our democratic values.

 

The wisdom of Osmea is magnified when the evils it seeks to bar are applied to the elective officials whose terms of office the 1987 Constitution fixed, namely:

 

1.      President, with a single term of six years, beginning at noon on the thirtieth day of June next following the day of the election;67

2.      Vice-President, with a term of six years beginning at noon on the thirtieth day of June next following the day of the election, eligible for one reelection;68

3.      Senators, with a term of six years beginning at noon on the thirtieth day of June next following the day of the election, unless otherwise provided by law, eligible for two consecutive reelections;69

4.      Members of the House of Representatives, with a term of three years beginning at noon on the thirtieth day of June next following the day of the election, unless otherwise provided by law, eligible for two consecutive reelections;70 and

5.      Local officials, except barangay officials, with a term of three years, for a maximum of three consecutive terms.71

 

A ruling contrary to Osmea would allow Congress to pass a law, in the guise of ensuring the continuity of public service and preventing a hiatus in office, mandating the President, Vice-President, Senators, Congressmen and elective local officials other than barangay officials to remain in office until their successors are elected and qualified. In doing so, Congress would have arrogated to itself the power to lengthen the terms of office of the President, Vice-President, Senators, Congressmen and non-barangay elective local officials in contravention of their terms as fixed in the Constitution. The absence in the Constitution of any provision allowing the hold over of national and non-barangay elective local officials or of any provision vesting on Congress the power to fix the terms of office of these officials means that any alteration in their terms of office can only be effected through a constitutional amendment.

 

The Local Government Code does not authorize the hold over of elective local officials.72 This is consistent with the constitutional provision fixing the term, without hold over, of all elective non-barangay local officials. With the exception of the hold over provision in RA 9054, Congress refrained from passing laws allowing hold over of non-barangay elective local officials. Congress passed a law to that effect (Section 5 of Republic Act No. 9164 [RA 9164]) only for barangay and sangguniang kabataan officials which the Court reviewed and upheld in Sambarani v. COMELEC.73 The legislatures passage of RA 9164 is in accord with the Constitutions grant to Congress of the power to determine the term of barangay officials.

 

In contrast, Section 7(1), Article VII of RA 9054, allowing for the hold over of elective local officials in the ARMM, finds no basis in the Constitution. Indeed, Section 7(1) contravenes the Constitution by extending the term of office of such elective local officials beyond the three year period fixed in Section 8, Article X of the Constitution.

 

Beyond the question of power, Osmea protects democratic values and assures public order. The certainty of departure from office that term endings and term limits bring carries with it the certainty of the holding of regular and periodic elections, securing the voters right to elect the officials for the new term. On the other hand, faced with no choice but to leave office on the day their terms end, elective officials stand to gain nothing in sabotaging electoral processes to extend their stay in office.

 

It is immaterial that the laws Congress enacted in the past postponing elections in the ARMM all contained provisions for the hold over of the incumbents until the election of their successors.74 None of these laws were challenged before the Court, thus the Court had no occasion to pass upon their validity.75

 

Nor is the Courts Resolution of 13 September 2011 authorizing the then incumbent ARMM elective officials to continue in office under Section 7(1), Article VII of RA 9054 a prejudgment of the provisions validity. The Resolution of 13 September 2011 is a preliminary, ancillary remedy to ensure the continued functioning of essential government services in the ARMM. Implicit in the issuance of the Resolution of 13 September 2011 is the understanding that such was without prejudice to the resolution of the issues raised in these petitions, including the validity of Section 7(1), Article VII of RA 9054.

 

Section 5, BP 881 Basis for

Holding of Special Elections

 

 

The unconstitutionality of Section 7(1), Article VII of RA 9054 and Sections 3, 4 and 5 of RA 10153 leaves the holding of special elections as the only constitutionally permissible option to fill up the offices of the ARMM Governor, Vice-Governor and members of the Regional Legislative Assembly after 30 September 2011. Section 5 of Batas Pambansa Bilang 881 (BP 881), as amended, authorizes respondent COMELEC to hold special elections [w]hen for any serious cause such as x x x loss or destruction of election paraphernalia or records x x x the holding of a free, orderly and honest election should become impossible in any political subdivision x x x.76 The tight timeframe in the enactment and signing into law of RA 10153 on 30 June 2011, and the filing of the present petitions shortly before and after the signing, rendering impossible the holding of elections on 8 August 2011 as scheduled under RA 9333, is a cause analogous to the administrative mishaps covered in Section 5 of BP 881. The postponement of the ARMM elections was an unavoidable result of the time lag legislative and judicial processes normally entail. The ARMM officials to be elected in the special ARMM elections shall hold office until 30 June 2013, when the terms of office of elective national and local officials covered by the synchronized elections also expire.

 

Electoral and Other Reforms Must be Consistent

With Principles of Regional Autonomy and

Representative Democracy

 

Beyond the expressly stated policy in RA 10153 of synchronizing national and local elections, the OSG calls the Courts attention to the governments other policy goals in enacting RA 10153. The OSG presents RA 10153 as the cure for the ills plaguing the ARMM, manifested in the symptoms of padded voters list, rampant criminality and highly dynastic politics, among others. Genuine regional autonomy, in the OSGs view, starts upon the assumption to office of the newly elected officials on 30 June 2013, when the national government, through the OICs, is done cleaning the ARMM government.77

 

In the first place, these policy goals to reform the ARMM society are nowhere stated or even implied in RA 10153. Electoral reform is mentioned in the Presidents certification on the urgency of HB 4146 and SB 2756 but RA 10153 itself is silent on such policy goal. The only apparent reason for the enactment of RA 10153 is to synchronize the ARMM elections with the national and local elections, a policy the legislature can pursue even in the absence of a constitutional directive to synchronize all elections.

 

In any event, it is a terribly dangerous precedent for this Court to legitimize the cancelation of scheduled local elections in the ARMM and allow the appointment of OICs in place of elected local officials for the purpose of reforming the ARMM society and curing all social, political and economic ills plaguing it. If this can be done to the ARMM, it can also be done to other regions, provinces, cities and municipalities, and worse, it can even be done to the entire Philippines: cancel scheduled elections, appoint OICs in place of elective officials, all for the ostensible purpose of reforming society a purpose that is perpetually a work-in-progress. This Court cannot allow itself to be co-opted into such a social re-engineering in clear violation of the Constitution.

One has to see the problem in the Muslim South in the larger canvass of the Filipino Muslims centuries-old struggle for self-determination. The Muslim problem in southern Mindanao is rooted on the Philippine States failure to craft solutions sensitive to the Filipino Muslims common and distinctive historical and cultural heritage, economic and social structures, and other relevant characteristics.78 The framers of the 1987 Constitution, for the first time, recognized these causes and devised a solution by mandating the creation of an autonomous region in Muslim Mindanao, a political accommodation radically vesting State powers to the region, save those withheld by the Constitution and national laws.79 Lying at the heart of this unprecedented empowerment is the Constitutions guarantee that the executive and legislative offices of the autonomous region shall be be elective and representative of the constituent political units.80 The essence of an autonomous region is the untrammeled right of the people in the region to freely choose those who will govern them. A region is not autonomous if its leaders are not elected by the people of the region but appointed by the central government in Manila. It is the solemn duty of this Court to uphold the genuine autonomy of the ARMM as crafted by the framers and enshrined in the Constitution. Otherwise, our Muslim brothers in the South who justifiably seek genuine autonomy for their region would find no peaceful solution under the Constitution.

 

By disenfranchising voters in the ARMM, even for a single electoral cycle, denying them their fundamental right of electing their leaders and representatives, RA 10153 strikes at the heart of the Constitutions project of creating autonomous regions. In the opinion of the biggest Islamic rebel group in the region, the cancelation of elections under RA 10153 speaks loudly why this entity [ARMM] is not autonomous; it is controlled, nay dictated, by Manila.81 Contrary to the OSGs view, denial of the right of suffrage is always too high a price to pay in exchange for promised reforms to be undertaken by OICs with no mandate from the people. Incidentally, the OICs to be appointed under RA 10153 are not even barred from running in the next ARMM elections, immediately putting at risk the promised reforms due to obvious conflict of interest.

 

The ARMM enjoys no monopoly of the evils the government now belatedly claims it wants to eradicate in passing RA 10153. Private armies and political dynasties litter the length and breadth of this archipelago and spurious voters registration has perennially polluted the national voters list. The solutions to these problems lie not in tinkering with democratic processes but in addressing their root causes. Notably, the government recently upgraded the countrys age-old manual elections into an automated system, ridding the elections of the fraud-prone manual system, without skipping a single electoral cycle. Similarly, the cleansing of the voters list is on track, with the incumbent head of respondent COMELEC himself admitting that the COMELEC is now 65%-70% done with biometrics registration.82

 

In reviewing legislative measures impinging on core constitutional principles such as democratic republicanism, the Court, as the last bulwark of democracy, must necessarily be deontological. The Court must determine the constitutionality of a law based on the laws adherence to the Constitution, not on the laws supposed beneficial consequences. The laudable ends of legislative measures cannot justify the denial, even if temporal, of the sovereign peoples constitutional right of suffrage to choose freely and periodically those whom they please to govern them.83 The Court should strike a balance between upholding constitutional imperatives on regional autonomy and republican democratic principles, on the one hand, and the incumbent administrations legislative initiative to synchronize elections, on the other hand. Had it done so here, the Court would have faithfully performed its sworn duty to protect and uphold the Constitution without fear or favor.

 

Accordingly, I vote to GRANT in part the petitions in G.R. Nos. 196271, 197221, 197280, 197282, 197392 and 197454 and declare UNCONSTITUTIONAL Sections 3, 4 and 5 of Republic Act No. 10153. Respondent Commission on Elections should be ordered to hold, as soon as possible, special elections in the Autonomous Region in Muslim Mindanao for the positions of Governor, Vice-Governor and members of the Regional Legislative Assembly. The officials elected in the special elections should hold office until 30 June 2013. Pending the holding of special elections and the assumption to office of the elected ARMM Governor, the President may appoint an officer-in-charge in the office of the ARMM Governor.

 

I further vote to declare UNCONSTITUTIONAL the second sentence of Section 7(1), Article VII and Sections 1 and 3, Article XVII of Republic Act No. 9054.

 

 

 

 

ANTONIO T. CARPIO

Associate Justice

 

 

 

1 For the writs of certiorari, prohibition and mandamus.

2 Section 7, Article XVIII of RA 9054.

3 Section 4, Article VI and Section 7, Article VII of RA 9054.

4 Section 2 of RA 9140 provides: First Regular Election. - The first regular election for Regional Governor, Vice-Governor and Members of the Regional Legislative Assembly under Republic Act No. 9054 shall be held on November 26, 2001.

5Section 1 of RA 9333 provides: Date of Election. The regular election for regional Governor and Regional Vice-Governor and Members of the Regional Legislative Assembly of the Autonomous Region in Muslim Mindanao (ARMM) shall be held on the second Monday of August 2005. Succeeding regular elections shall be held on the same date every three years thereafter. RA 9333 took effect upon its publication on 29 September 2004.

6Section 1 of HB 4146 provides: Regular Elections. For purposes of synchronization of elections, which is envisioned by the 1987 Constitution, the regular elections for the Regional Governor, Regional Vice-Governor and Members of the Regional Legislative Assembly of the Autonomous Region in Muslim Mindanao (ARMM) shall be held on the second (2nd) Monday of May 2013. Succeeding regular elections shall be held on the same date every three (3) years thereafter.

7 G.R. Nos. 197221, 197280, 197282, 197392 and 196271 (in a supplemental petition).

8 These provide:

Section 1. Consistent with the provisions of the Constitution, this Organic Act may be reamended or revised by the Congress of the Philippines upon a vote of two-thirds (2/3) of the Members of the House of Representatives and of the Senate voting separately.

 

Section 3. Any amendment to or revision of this Organic Act shall become effective only when approved by a majority of the vote cast in a plebiscite called for the purpose, which shall be held not earlier than sixty (60) days or later than ninety (90) days after the approval of such amendment or revision.

9 G.R. Nos. 197221, 197392, and 197454.

10 G.R. Nos. 196271 and 196305.

11 G.R. No. 197280.

12Petition (G.R. No. 197282), p. 29. The petitioner proceeds from the theory that although unconstitutional, RA 9333 was validated by acquiescence. On the other hand, if the Court were to strike down RA 9333, it is impossible to comply with the election scheduled under RA 9054, the last cycle of which allegedly fell on the second Monday of September 2010.

In their Memoranda, the petitioners in G.R. Nos. 196271, G.R. No. 196305, and 197280, conceding the impracticality of holding elections on the second Monday of September this year as they initially espoused, called for the holding of special elections nearest to that schedule or at least this year. (Memorandum [G.R. No. 196271], p. 47; Memorandum [G.R. No. 196305], p. 49; Memorandum [G.R. No. 197280], p. 25).

Similarly, the petitioners G.R. No. 197221 and G.R. No. 197454, who initially favored holding the elections on the second Monday of August 2011, prayed in their Memoranda that the elections be held as soon as possible. (Memorandum [G.R. No. 197221], p. 76l; Memorandum [G.R. No. 197454, p. 22).

13 Comment (Senate), pp. 5-7.

14Macalawi v. Brillantes, G.R. No. 196270, 31 May 2011, Resolution dismissing for prematurity a petition questioning the validity of HB 4146 and SB 2756; Montesclaros v. COMELEC, 433 Phil. 620 (2002).

15 Rollo (G.R. No. 197280), pp. 28-30.

16 G.R. No. 115455, 25 August 1994, 235 SCRA 630, 666.

17Petitioners in G.R. No. 196271 belatedly joined the petitioners in G.R. No. 197280 on this issue, arguing for the first time in their Memorandum that heightened scrutiny of the Presidents certification is warranted because the right to suffrage is basic, thus falling under Tolentinos exemption (Memorandum [G.R. No. 196271], pp. 18-19). The question whether the right to suffrage is fundamental for purposes of using strict scrutiny to review the sufficiency of the factual bases of executive and legislative acts has never been raised before the Court. Our jurisprudence merely advert to the rule in the United States treating such right as fundamental (see e.g. White Light Corporation v. City of Manila, G.R. No. 122846, 20 January 2009, 576 SCRA 416 [reviewing an ordinance prohibiting the certain business practices of motels and similar establishments]; Serrano v. Gallant Maritime Services, Inc., G.R. No. 167614, 24 March 2009, 582 SCRA 254 [reviewing a statutory rule on the reimbursement of placement fees of overseas workers]) or state such rule as dicta (see e.g. ABS-CBN Broadcasting Corporation v. Commission on Elections, 380 Phil. 780 (2000) [reviewing the constitutionality of a regulation prohibiting the conduct of exit polls]). At any rate, Tolentinos exemption relates to basic rights put at hazard following the suspension of the writ of habeas corpus or declaration of martial law under Art. VII, 18, or during the existence of a national emergency under Art. VI, 23(2) such as the right against illegal arrests and detentions, right to free speech, assembly and of the press, and right against torture. The right to suffrage lies far afield from this core of fundamental rights the Constitution protects in times of national emergency, war or national security crisis by requiring heightened judicial scrutiny of the assailed measure.

18 Under Section 7, Article VII of RA 9054.

19 See Republic Act No. 7647, Republic Act No. 8176, Republic Act No. 8746, Republic Act No. 8753, Republic Act No. 8953, and Republic Act No. 9012.

20 Memorandum (G.R. No. 197280), pp. 17-28, 52.

21 Section 16(2), Article VI of the Constitution.

22 Section 28(4), Article VI of the Constitution provides: No law granting any tax exemption shall be passed without the concurrence of a majority of all the Members of Congress. Thus, the rule of a majority of a majority to enact, amend or repeal laws does not apply to the grant of tax exemptions. For other cases requiring a qualified or supermajority of Congress, see note 26.

23 This is the majority of a quorum of 143. Although the House of Representatives has a total of 285 members, only 284 is considered for quorum purposes.

24 This is the majority of a quorum of 12. The Senate currently has 23 members.

25 Asociacion De Agricultores De Talisay-Silay, Inc. v. Talisay-Silay Milling Co., Inc., 177 Phil. 247 (1979).

26The 1987 Constitution requires a qualified or supermajority vote in certain instances, none of which, however, relates to the amendment or repeal of the organic act of the autonomous regions [See Section 23(1), Article VI (to declare war); Section 28(4), Article VI (to grant tax exemption); Section 16(3), Article VI (to expel or suspend a member of either House of Congress); Section 11, Article VII (to break an impasse between the cabinet and the President on the latters capacity to discharge the powers and duties of his office); Section 21, Article VII (for the Senate to concur in treaty ratification); Section 3(6), Article XI (for the Senate to impeach the President); Section 3, Article XVII (to call a constitutional convention)].

27 Memorandum (G.R. No. 197221), p. 22. The petitioners in G.R. No. 197280 also adopt this view (Memorandum [G.R. No. 197280], p. 46).

28 Or an item or items in an appropriation, revenue or tariff bill. See Section 27(2), Article VI of the Constitution.

29Section 10. No province, city, municipality, or barangay may be created, divided, merged, abolished, or its boundary substantially altered, except in accordance with the criteria established in the local government code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected. In Miranda v. Aguirre, 373 Phil. 386 (1999), the Court extended the plebiscite requirement in the downgrading of a citys status from independent to component city.

30 In local governance, the plebiscite is seen as a check against the pernicious practice of gerrymandering. Miranda v. Aguirre, supra at 405.

31 Taken to its logical extreme, petitioners interpretation leads to preposterous scenarios. The smallest change to RA 9054 such as mandating its official promulgation (not just translation) into all native dialects widely spoken in the region, amending Section 6, Article VI for the purpose, will be subjected to the rigors and expense of a plebiscite.

32 G.R. No. 149848, 25 November 2004, 444 SCRA 203.

33 Id. at 225.

34 Id. at 249.

35Under Section 2 (The Senators, Members of the House of Representatives, and the local officials first elected under this Constitution shall serve until noon of June 30, 1992.) and Section 5 (The six-year term of the incumbent President and Vice-President elected in the February 7, 1986 election is, for purposes of synchronization of elections, hereby extended to noon of June 30, 1992. The first regular elections for the President and Vice-President under this Constitution shall be held on the second Monday of May, 1992.), Article XVIII.

36 G.R. No. 100318, 30 July 1991, 199 SCRA 750.

37 Id. at 762.

38 Under Section 8, Article X of the Constitution, [t]he term of office of elective local officials x x x shall be three years, except for barangay officials whose term of office is fixed by law.

39 Rollo (G.R. No. 196271 Supplemental Petition), p. 20.

40 See Sections 15, 16, 17, 18, 19, 20 and 21, Article X of the Constitution.

41 Section 7, Article VII of RA 9054.

42 Section 1, Article II of the Constitution.

43 G.R. Nos. 197221 and 197282.

44 Republic Act No. 9495 (RA 9495). The creation of Quezon del Sur Province was rejected by the voters of Quezon Province in the plebiscite of 13 November 2008.

45 Republic Act No. 9355 (RA 9355).

46 Section 50 of 9355 and Section 52 of RA 9495 (emphasis supplied).

47 Presidential Decree No. 407, Section 3 (emphasis supplied).

48Section 462, paragraph 3 of Republic Act No. 7160 (RA 7160) provides: The incumbent elected officials of the said subprovinces converted into regular provinces shall continue to hold office until June 30, 1992. Any vacancy occurring in the offices occupied by said incumbent elected officials, or resulting from expiration of their terms of office in case of a negative vote in the plebiscite results, shall be filled by appointment by the President. The appointees shall hold office until their successors shall have been elected in the regular local elections following the plebiscite mentioned herein and qualified. After effectivity of such conversion, the President shall fill up the position of governor of the newly-created province through appointment if none has yet been appointed to the same as hereinbefore provided, and shall also appoint a vice-governor and the other members of the sangguniang panlalawigan, all of whom shall likewise hold office until their successors shall have been elected in the next regular local elections and qualified. (Emphasis supplied)

49 Section 4 provides: Manner and Procedure of Appointing Officers-in-Charge.There shall be created a screening committee, whose members shall be appointed by the President, which shall screen and recommend, in consultation with the Speaker of the House of Representatives and the Senate President, the persons who will be appointed as Officers-in-Charge.

50Section 5 reads: Qualifications.No person shall be appointed officer-in-charge unless he or she complies with the qualifications for Regional Governor, Regional Vice Governor or Members of the Regional Legislative Assembly of the ARMM, as provided in Republic Act No. 6734, entitled: An Act Providing for an Organic Act for the Autonomous Region in Muslim Mindanao, as amended by Republic Act No. 9054, entitled: An Act to Strengthen and Expand the Organic Act for the Autonomous Region in Muslim Mindanao, Amending for the Purpose Republic Act No. 6734.

51 Expressed in Section 1, Article II of the Constitution: The Philippines is a democratic and republican State. x x x

52 Paragraph 1, Section 18, Article X of the Constitution provides: The Congress shall enact an organic act for each autonomous region with the assistance and participation of the regional consultative commission composed of representatives appointed by the President from a list of nominees from multi-sectoral bodies. The organic act shall define the basic structure of government for the region consisting of the executive department and legislative assembly, both of which shall be elective and representative of the constituent political units. The organic acts shall likewise provide for special courts with personal, family, and property law jurisdiction consistent with the provisions of this Constitution and national laws.

53 Section 2, Article VI and Sections 1 and 4, Article VII of RA 9054.

54OSG Memorandum, p. 46. The provision states: Until a law is passed, the President may fill by appointment from a list of nominees by the respective sectors, the seats reserved for sectoral representation in paragraph (2), Section 5 of Article V1 of this Constitution.

55Section 2, Article III of the Freedom Constitution provides: All elective and appointive officials and employees under the 1973 Constitution shall continue in office until otherwise provided by proclamation or executive order or upon the designation or appointment and qualification of their successors, if such is made within a period of one year from February 25, 1986.

56This provides: Budget Approval; Automatic Reenactment. The Regional Governor shall approve the budget of the autonomous region within one (1) month from its passage by the Regional Assembly. If, by the end of a fiscal year, the Regional Assembly shall have failed to pass the regional appropriations bill for the ensuing fiscal year, the Regional Appropriations Act for the preceding fiscal year shall be deemed automatically reenacted and shall remain in force and effect until the regional appropriations bill is passed by the Regional Assembly.

57Under Section 4 of RA 7160, which provides: Scope of Application. - This Code shall apply to all provinces, cities, municipalities, barangays, and other political subdivisions as may be created by law, and, to the extent herein provided, to officials, offices, or agencies of the national government. (Emphasis supplied)

58Under the first paragraph of Section 323 of RA 7160 which provides: Failure to Enact the Annual Appropriations. - In case the sanggunian concerned fails to pass the ordinance authorizing the annual appropriations at the beginning of the ensuing fiscal year, it shall continue to hold sessions, without additional remuneration for its members, until such ordinance is approved, and no other business may be taken up during such sessions. If the sanggunian still fails to enact such ordinance after ninety (90) days from the beginning of the fiscal year, the ordinance authorizing the appropriations of the preceding year shall be deemed reenacted and shall remain in force and effect until the ordinance authorizing the proposed appropriations is passed by the sanggunian concerned. However, only the annual appropriations for salaries and wages of existing positions, statutory and contractual obligations, and essential operating expenses authorized in the annual and supplemental budgets for the preceding year shall be deemed reenacted and disbursement of funds shall be in accordance therewith. x x x x (Emphasis supplied)

59A substantially similar provision is found in Section 8, Article XVIII of RA 9054 which provides: The incumbent Regional Governor, Regional Vice Governor, and members of the Regional Legislative Assembly of the Autonomous Region in Muslim Mindanao shall continue in office pursuant to existing laws and until their successors shall have been duly elected and qualified.

60 E.g. Bangsamoro Solidarity Movement, Inc. and Minority Rights Forum Philippines, Inc.

61 See Sema v. Commission on Elections, G.R. No. 177597, 16 July 2008, 558 SCRA 700; Paras v. Commission on Elections, 332 Phil. 56, 66 (1996), Davide, J., concurring.

62 Section 7, Article VII of RA 9054.

63 G.R. No. 100318, 30 July 1991, 199 SCRA 750, 763 (internal citations omitted).

64 See Board of Elections for Franklin County v. State ex. rel. Schneider, 128 Ohio St. 273, 191 N.E. 115 (1934).

65 Id.

66 This contrasts with some state constitutions in the United States which allow the hold over of elective officials.

67 Section 4, Article VII.

68 Section 4, Article VII.

69 Section 4, Article VI. Under RA 7166, Senatorial term commences on 30 June following the elections.

70 Section 7, Article VI. Under RA 7166, Congressional term commences on 30 June following the elections.

71 Section 8, Article X.

72The Codes implementing rules (Section 210(d)(3)) extended the term of the heads of the barangay leagues as ex officio members of sanggunians until 31 May 1994, when their term as punong barangays end under Republic Act No. 6679 (RA 6679). The extension of the ex officio term of these barangay officials, which the Court upheld in Galarosa v. Valencia, G.R. No. 109455, 11 November 1993, 227 SCRA 728, was rendered necessary by the different length of terms of elective barangay officials under RA 6679 (five years starting 1 May 1989) and other elective local officials under the Code (three years starting 30 June 1992). RA 9164 subsequently shortened the term of elective barangay officials to three years.

The 1917 Revised Administrative Code authorized elective provincial and municipal officials to hold over until a successor shall be duly qualified. (under Sections 2074 and 2177, respectively). These provisions were, however, repealed by Commonwealth Act No. 357 (under Section 184).

73G.R. No. 160427, 15 September 2004, 438 SCRA 319, reiterated in Adap v. COMELEC, G.R. No. 161984, 21 February 2007, 516 SCRA 403. In Montesclaros v. COMELEC, 433 Phil. 620, 640 (2002), the Court dismissed a premature challenge against the legislative bills for RA 9164 as they relate to sangguniang kabataan members.

74 Under Republic Act No. 7647, Republic Act No. 8746, Republic Act No. 8753, Republic Act No. 8953, and Republic Act No. 9140.

75The cases invoked by the petitioner in G.R. No. 197282, namely, Sambarani v. Commission on Elections, G.R. No. 160427, 15 September 2004, 438 SCRA 319 and Adap v. Commission on Elections, G.R. No. 161984, 21 February 2007, 516 SCRA 403, are not in point. They all involve barangay officials, whose term of office is fixed by law, not by the Constitution.

76The provision reads in full: Sec. 5. Postponement of election. - When for any serious cause such as violence, terrorism, loss or destruction of election paraphernalia or records, force majeure, and other analogous causes of such a nature that the holding of a free, orderly and honest election should become impossible in any political subdivision, the Commission, motu proprio or upon a verified petition by any interested party, and after due notice and hearing, whereby all interested parties are afforded equal opportunity to be heard, shall postpone the election therein to a date which should be reasonably close to the date of the election not held, suspended or which resulted in a failure to elect but not later than thirty days after the cessation of the cause for such postponement or suspension of the election or failure to elect.

77 OSG Memorandum, pp. 5-6, 50-58.

78 Section 15, Article X of the Constitution.

79 Section 20, Article X of the Constitution enumerates these powers, thus:

Section 20. Within its territorial jurisdiction and subject to the provisions of this Constitution and national laws, the organic act of autonomous regions shall provide for legislative powers over:

1. Administrative organization;

2. Creation of sources of revenues;

3. Ancestral domain and natural resources;

4. Personal, family, and property relations;

5. Regional urban and rural planning development;

6. Economic, social, and tourism development;

7. Educational policies;

8. Preservation and development of the cultural heritage; and

9. Such other matters as may be authorized by law for the promotion of the general welfare of the people of the region.

Section 17, Article X provides: All powers, functions, and responsibilities not granted by this Constitution or by law to the autonomous regions shall be vested in the National Government.

80 Section 18, Article X of the Constitution.

81 MILF To Fight For Self-Determination reported in http://mindanaoexaminer.com/news.php? news _id=20110810014922 (last visited on 16 September 2011).

82 OSG Memorandum, p. 6.

83 Borja v. Commission on Elections, 356 Phil. 467, 475 (1998) citing U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 131 L.Ed.2d 881 (1995).