EN BANC
G.R. No. 196271 (Datu Michael Abas Kida, in his personal
capacity, and in representation of Maguindanao Federation of Autonomous
Irrigators Association, Inc., Hadji Muhmina J. Usman, John Anthony L. Lim, et
al. v. Senate of the Philippines, represented by its President, Juan Ponce
Enrile, House of Representatives, thru Speaker Feliciano B. Belmonte,
Commission on Elections, thru its Chairman, Sixto Brillantes, Jr., et al.)
G.R. No. 196305 (Basari D. Mapupuno v. Sixto Brillantes, in
his capacity as Chairman of the Commission on Elections, Florencio Abad, in his
capacity as Secretary of the Department of Budget and Management, Paquito
Ochoa, Jr., in his capacity as Executive Secretary, et al.)
G.R. No. 197221 (Rep. Edcel C. Lagman v. Paquito N. Ochoa,
Jr., in his capacity as the Executive Secretary, and the Commission on
Elections)
G.R. No. 197280 (Almarim Centi Tillah, Datu Casan Conding
G.R. No. 197282 (Atty. Romulo B. Macalintal v. Commission on
Elections and The Office of the President, through Executive Secretary Paquito
N. Ochoa, Jr.)
G.R. No. 197392 (Luis ÒBarokÓ Biraogo v. The Commission on
Elections, and Secretary Paquito N. Ochoa, Jr.)
(Minority Rights Forum, Philippines, Inc., Respondent-Intervenor)
(Bangsamoro Solidarity Movement, Inc., Respondent-Intervenor)
(Hadzri H. Matba, Julhusin Estino, and Malli
Kadil, Respondents-Intervenors)
(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
D I S S E N T I N
G O P I N I O N
VELASCO, JR., J.:
I join Justice
CarpioÕs dissent and agree that the Ò[C]ongressÕ power to provide for the
simultaneous holding of elections for national and local officials x x x does
not encompass the power to authorize the President to appoint
officers-in-charge in place of elective officials x x x. To hold otherwise is
to sanction the perversion of the Philippine StateÕs democratic and republican
nature,Ó and so sustain the holdover of the incumbent ARMM officials pending
the election and qualification of their successors.
At bar are
original actions assailing the validity of statutes and bills on the holding of
elections in the Autonomous Region in Muslim Mindanao (ARMM), the latest of
which is Republic Act No. (RA) 10153 entitled An Act Providing for the Synchronization of the Elections in the
Autonomous Region In Muslim Mindanao (ARMM) with the National and Local
Elections and for Other Purposes. RA 10153 provides, in part:
SECTION 1. Declaration of
Policy.ÑIn accordance with the intent and mandate of the Constitution and
Republic Act No. 7166, entitled: ÒAn Act Providing for Synchronized National
and Local Elections and for Electoral Reforms, Authorizing Appropriations
Therefor, and for Other PurposesÓ, it is hereby declared the policy of the
State to synchronize national and local elections. Pursuant thereto, the
elections in the Autonomous Region in Muslim Mindanao (ARMM) is hereby
synchronized with the national and local elections as hereinafter provided.
SEC. 2. Regular Elections.ÑThe
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.
SEC. 3. Appointment of
Officers-in-Charge.ÑThe 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.
The
petitions assailing the validity of RA 10153 argue that (1) the postponement of
the ARMM elections to the second Monday of May 2013 undermines the republican
and autonomous region of the ARMM, in violation of the Constitution and RA
9054,[1]
the expanded organic law of ARMM; and (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.
The ponencia sustains the constitutionality of RA 10153 in toto, while Justice CarpioÕs dissent
declares unconstitutional Sections 3, 4, and 5 of RA 10153 authorizing the
President to appoint OICs in place of elective ARMM officials, ordering instead
the respondent COMELEC Òto hold special elections in the ARMM as soon as
possible.Ó On this, I am in full agreement with Justice CarpioÕs dissent.
But unlike Justice CarpioÕs curious
proposal that in the interregnum and
pending the holding of special elections, the President has the power to
appoint an OIC in the Office of the ARMM Governor, I differ and vote for the
holding over of the incumbent pursuant to Sec. 7(1), Article VII of RA 9054,
which states:
Sec. 7. Terms of Office of
Elective Regional Officials. Ð (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 effect until their
successors are elected and qualified. (Emphasis supplied.)
The ponencia holds that the foregoing provision is unconstitutional in
accordance with our previous ruling in Osme–a
v. COMELEC.[2] However, it must be noted that the issue
in Osme–a on the power of local
elective officials to hold on to their respective positions pending the
election of their successors was not the very lis mota of the case. The main issue in Osme–a was the proposed desynchronization
of the elections. Hence, the statement on the issue of holdover can be
considered a mere obiter dictum that
cannot be held a binding judicial precedent.
To recall, in Osme–a, the Congress enacted
RA 7056, entitled An Act Providing for
the National and Local Elections in 1992, Paving the Way for Synchronized and
Simultaneous Elections beginning 1995, and Authorizing Appropriations Therefor. Sec. 2 provided for two (2) separate
elections in 1992 as follows:
Section 2. Start of
Synchronization. - To start the process of synchronization of elections in
accordance with the policy herein before declared, there shall be held.
(a)
An
election for President and Vice-President of the Philippines, twenty-four (24)
Senators, and all elective Members of the House of Representatives on the second
Monday of May 1992; and
(b)
An
election of all provincial, city, and municipal elective officials on the second
Monday of November 1992.
(Emphasis supplied.)
Hence, the Court struck down RA 7056 on
the principal ground that it occasioned a desynchronized election, viz:
With the clear mandate of the
1987 Constitution to hold synchronized (simultaneous) national and local
elections in the second Monday of May, 1992, the inevitable conclusion would be
that Republic Act 7056 is clearly violative of the Constitution because it
provides for the holding of a desynchronized election. Stated differently,
Republic Act 7056 particularly Sections 1 and 2 thereof contravenes Article
XVIII, Sections 2 and 5 of the 1987 Constitution. (Emphasis supplied.)
Clearly, the determination of the
validity of RA 7056 in Osme–a relied
mainly on the resolution of the issue of the postponement of elections, and the
judicial opinion on the issue of holdover was not necessary for the disposition
of the case. Since an opinion expressed by the Court in the decision upon a
cause Òby the wayÓÐÐi.e., incidentally or collaterally, and not directly upon
the question before itÐÐis not a binding precedent,[3]
the obiter
dictum of the Court in Osme–a on the issue of holdover is not a binding
judicial doctrine material to the resolution of the issue on desynchronization.
Nonetheless, even assuming that the
pronouncement in Osme–a v. COMELEC on
the issue of holdover is not an obiter
dictum, the facts of the present case do not justify a similar conclusion,
since the rule of stare decisis et non
quieta movere states that a
principle of law laid down by the court as applicable to a certain state of
facts will only be applied to cases involving the same facts.[4]
A comparison
of the factual milieu in Osme–a and the instant petition reveals an
ocean of dissimilarities. In Osme–a,
RA 7065 provided for synchronization of the national and local elections in
1995 but it also prescribed that the national elections will be held in May,
1992 while the local elections will be held in November 1992. There is also no provision for the
President to appoint OICs.
Meanwhile, in RA 10153, the law provided for synchronization in May 2013
but suspended the elections scheduled in August, 2011 and authorized the
President to appoint OICs. In view
of the substantial and significant differences in the factual setting of the
two cases, then it cannot be gainsaid that the Osme–a ruling is not a
precedent to the instant petitions.
Further, the
Court in Osme–a opined that the holdover of elective officials espoused
by RA 7065 violated Sec. 2, Art. XVIII and Sec. 8, Art. X of the Constitution
by adopting and applying certain selected American jurisprudence. The assailed obiter dictum reads:
[T]here are other
provisions of the Constitution violated by RA 7056. For one, there is Section
2, Article XVIII of the Constitution which 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, (citing State v.
Clark 89 A. 172, 87 Conn537) 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. (See 67 CJS p.379,
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. (43 Am Jur.,
152, page 13) citing Gemmer v. State, 71 NE 478
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.
A closer look of the American cases on which
the above quoted American Jurisprudence (Am
Jur) and Corpus Juris Secundum (CJS) passages
were ultimately based, however, reveals that they do not justify the
conclusions reached in Osme–a and so,
with more reason, they are inapplicable to the present case.
The passage quoted from CJS was based on
State v. Clark[5] and State
v. McIntosh.[6] The 1913 case of State v. Clark, however, does not have the same factual milieu as Osme–a or this case: the office involved
in State v. Clark was not elective
but appointive and a successor has already been appointed.[7]
More importantly, the pivotal issue of the case was whether an appointment for
a period beyond the term set by the constitution vests the appointed official
with a de jure, as opposed to a de facto, title to occupy the office beyond the constitutionally prescribed
period.[8]
That is not the issue of the present case.
Similarly, State v. McIntosh is not squarely in point with either Osme–a or this case involving as it does
the validity of an act performed by the outgoing members of the board of county
commissioners less than two hours before their successors, who were already
elected, were qualified to assume office.[9]
The principal doctrine laid down in State
v. McIntosh was the limitation of the acts performed by outgoing officials
to the closing up of pending matters and to matters of necessity, and not to
matters naturally pertaining to the official year. The case did not preclude the
possibility of a holdover when no successor has yet been elected. In fact, the
case intimated that the rule is that in the absence of constitutional
restrictions, outgoing officers are
entitled to holdover until such time as their successors will qualify.[10] Thus, the cases of Clark and McIntosh cited
in Osme–a are likewise not precedent to
the instant petitions.
Indeed, numerous American cases laid down the rule allowing holdover of
officials beyond the term set by the Constitution as long as there is no
constitutional proscription against it. This is obvious in the CJS passages
omitted in Osme–a v. COMELEC. The
annotation quoted from 67 CJS 379 in Osme–a
on holding over is incomplete and
the full and complete text reads:
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. (Quoted in Osme–a) When the legislature has
the power to fix the commencement of the term, a provision for holding over under such circumstances is not in violation
of a constitutional provision that the term of no officer shall be extended to
a longer period than that for which he is elected or appointed, and such a provision, contained in an act
creating an office, is not violative of a constitutional provision that
the legislature shall not create any office, the tenure of which shall be
longer than a prescribed number of years, when a like provision is in
the constitution.[11] (Emphasis supplied.)
Furthermore,
on the specific topic of Òholding over,Ó the CJS provides:
The term Òholding overÓ when
applied to an officer, implies that the office has a fixed term, and the
incumbent is holding over into the succeeding term. Since the public interest
ordinarily requires that public offices should be filled at all times without
interruption, as a general rule, in the
absence of an express or implied constitutional or statutory provision to the
contrary, an officer is entitled to hold his office until his successor is
appointed or chosen and has qualified. [12]
(Emphasis supplied.)
As
previously explained, the annotation that Òit 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 termÓ[13]
has no application to the instant petitions, because the cases of Clark and McIntosh upon which it is anchored are factually dissimilar to the
herein petitions. I point out, however, that the second sentence in the annotation
that a provision for holdover is not unconstitutional when the legislature has
the power to fix the commencement of the term applies squarely to RA 9054,
particularly its assailed Sec. 7, Art. VII which, to reiterate, reads:
SEC. 7. Terms of
Office of Elective Regional Officials. Ð (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 effect
until their successors are elected and qualified. (Emphasis supplied.)
It cannot
be disputed that the Organic Act of Muslim Mindanao (RA 6734) did not provide
for the commencement of the term of the Governor, Deputy Governor and the
Members of the Regional Legislative Assembly of ARMM. As such, it falls on the shoulders of
Congress to fix the date of elections which power is concededly legislative in
nature. In the exercise of this power, Congress enacted RA 9054 which set the
elections of the ARMM officials on the second Monday of September 2001. In addition,
said law, in the aforequoted Sec. 7, Art. VII of said law provided for the holdover
of said officials until their successors shall have been duly elected and
qualified. Following the jurisprudence cited in CJS, then the provision of holdover
in Sec. 7, Art. VII of RA 9054 is valid and does not offend the Constitution.
To restate, Òwhen the legislature has the power to fix the commencement of the
term, a provision for holding over under such circumstances is not in violation
of a constitutional provision that the term of no officer shall be extended to
a longer period than that for which he is elected or appointed, and such a
provision x x x is not violative of a constitutional provision that the
legislature shall not create any office, the tenure of which shall be longer
than a prescribed number of years x x x.Ó[14] Ergo, it is clear as day that the
holdover provision in RA 9054 is valid and constitutional.
More importantly, neither Sec. 2, Art. XVIII or Sec. 8, Art. X of the Constitution
contain any provision against a holdover by an elective local official of his
office pending the election and qualification of his successor. To recall, Sec. 2, Art. XVIII of
the Constitution provides:
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.
Of the Senators
elected in the elections in 1992, the first twelve obtaining the highest number
of votes shall serve for six years and the remaining twelve for three years.
(Emphasis supplied.)
Similarly,
the absence of any prohibition in Sec. 8, Art. X of the Constitution is
clear:
Section
8. 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.
Thus, the Constitution does not bar a
holdover situation. Accordingly, Congress may legislate what elective positions
can be accorded holdover privilege of the incumbent officials.
Also,
besides the absence of a constitutional prohibition against a holdover, the
legislature was conferred by the Constitution with (1) the power to create the
executive and legislative offices in the ARMM, with the sole limitation that
they be elective and representative, and therefore, (2) the authority to
determine the commencement of the term of the ARMM local officials. Hence, in
conformity with the foregoing American cases, the holdover clause in Sec. 7(1),
Art. VII of RA 9054 is constitutional and must be respected as a valid
legislative intent.
Even under the passage quoted by Osme–a from Am Jur, the same conclusion
can be reached considering that it is not disputed in this case that the
possibility of holdover by the ARMM officials is but incidental to the
synchronization of the ARMM elections with the national elections. Hence, the
holdover of the incumbent ARMM officials can be sustained. Read in full, the
passages from the Am Jur provide that a holdover occasioned by a legislation
postponing an election, which is not passed for the sole purpose of extending
official terms but which merely effects an extension as an incidental result,[15]
is valid:
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. (Quoted in Osme–a). It has been
declared, however, that legislation
postponing an election which is not passed for the sole purpose of extending
official terms, but which merely effects an extension as an incidental result,
does not affect a legislative appointment of his successor. In this
respect, however, a distinction is sometimes drawn between constitutional and
statutory offices. Postponement of an
election by the legislature does not fly in the face of the Constitution so
long as such postponement is reasonable and does not destroy the elective
character of the office affected.[16]
(Emphasis supplied.)
The part quoted by Osme–a v. COMELEC does not apply to the case at bar, since the
facts of the cases from which the quoted sentence was culledÐÐGemmer v. State,[17]
State ex rel. Hensley v. Plasters,[18]
and Commonwealth v. Gamble[19]ÐÐare not the same as either the facts
of Osme–a v. COMELEC or the present
case: in Gemmer v. State the holdover of the officials per se was not declared invalid, rather, since
the date of election was specifically provided in the stateÕs constitution, the
court found the postponement of the elections invalid and unconstitutional and
so declared the holdover incidental to the postponement unnecessary and equally
invalid; similarly, State ex rel. Hensley v. Plasters
involved a nullification of the postponement of an election and, hence, the
nullification of the incidental holdover; and Commonwealth v. Gamble principally involved the declaration of the
abolition of a judicial office created by the constitution as an unwarranted
intrusion by the legislature into judicial independence. Clearly, the passage
from the Am Jur quoted by Osme–a v.
COMELEC and the cases of Gemmer, Hensley, and Gamble cited
in Am Jur cannot be considered applicable to the present case.
Furthermore, it should be considered
that a holdover is not technically an
extension of the term of the
officer but a recognition of the incumbent as a de facto officer, which is made imperative by the necessity for a
continuous performance of public functions. In State v. Clark, the Supreme
Court of Errors of Connecticut held:
The claim of the respondent that
it was his right and his duty to hold over and exercise the duties and
functions of the office after the expiration of his term until his successor
should be appointed may be conceded. The
public interest requires that such officers shall hold over when no successor
is ready and qualified to fill the office x x x. The rule has grown out of the necessities of the case, so that there
may be no time when such offices shall be without an incumbent. But such
hold-over incumbent is not a de jure
officer. He is in for no term, but holds the office only temporarily until the
vacancy can be filled by competent authority x x x.[20]
(Emphasis supplied.)
Thus, considering the weight of
authority and the circumstances of the present case, the incumbent ARMM
officials have the right, as well as the duty, to continue in office under the
principle of holdover pending the holding of the special elections and the
election and qualification of their successors. This is to prevent a vacuum in
the government services. It is imperative that there shall be continuity in the
vital services so as not to prejudice the public in general. In Adap v.
COMELEC,[21]
it was held that Òthe application of the holdover principle preserves
continuity in the transaction of official business and prevents hiatus in
government pending the assumption of a successor into office.Ó In Topacio
Nuevo v. Angeles,[22]
the Court explained that cases of extreme necessity justify the application of
the holdover principle.
The
majority is of the view that 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. Hence, the holdover of the incumbent officials which amounts to
an appointment by Congress is unconstitutional. I beg to disagree. RA 9054, by
providing a holdover of the incumbent officials did NOT extend the term of said
officials. RA 9054 is clear and devoid of any equivocation. The law merely provided for a procedure
in case the scheduled elections for one reason or another do not push through
and COMELEC resets the elections pursuant to its power under Sec. 5 of the
Omnibus Election Code (Batas Pambansa Blg.
881). The possibility of a vacuum
in the performance of essential government services is addressed by the holdover
provision to avoid any uncertainty, as in this case, as to the procedure on how
the gap is resolved in determining the interim official who will perform the
functions of the incumbent. As aptly pointed out by Justice Carpio in his
dissent, the necessity of providing for a successor in the office contested in
the last elections in case of failure of elections is Òabsolutely necessary and
unavoidable to keep functioning essential government services.Ó
And to reiterate
a previous point, a holdover is not
technically an extension of the term of a sitting officer but a recognition of
the incumbent as a de facto officer made necessary to obviate a
detrimental hiatus in public service.
A scenario where
Congress passes a law that provides holdover for all the elective officials
(except barangay officials) from
President down to the local officials is flawed in the sense that if the
President does not qualify, Sec. 7, Art. VII of the Constitution kicks in.
However, we can concede that Congress may so provide if the President is not
elected. In this factual setting, it is claimed that the Congress has arrogated
to itself the power to lengthen the terms of office of said officials in
contravention of the Constitution. Again, I submit that the power of holdover
in the imagined statute does NOT lengthen the prescribed terms of offices of
said officials under the Constitution, unless said law also postpones the
elections as in RA 10153. In such a case, I agree that the postponement of the
elections and the attendant holdover provision are clear contraventions of the
basic law. In RA 9054, however, the elections are fixed but with the corollary
holdover provision in case elections are not held. To me, this is perfectly
valid and constitutional. To reiterate, the holdover provision has no relevance
to the prescribed terms of offices in the Constitution and is simply a
temporary measure to avoid a vacuum in the office.
Further, while
the Local Government Code does not authorize the holdover of elective
officials, there is nothing to prevent Congress from subsequently enacting a
law that effectively amends the general law for local governments and empowers,
pursuant to its law making power under the Constitution, local officials to hold
over in case of failure of elections or in case all the elective officials
failed to qualify. RA 9054 did not trench on the Constitution, because there is
no prohibition in the Constitution against the holdover of elective officials.
Consequently, Congress by law may provide for holdover as it did in RA 9054 and
other laws postponing elections in the ARMM, namely, RA 7647, RA 8746, RA 8753,
RA 8953 and RA 9140. Over the passage of time, these laws were not assailed as
unconstitutional. Even up to the present time, these laws have not been
challenged as void. As a matter of fact, it appears that not one of the
petitioners sought the nullification of RA 9054 as unconstitutional. The Court,
without such an issue being presented in any of these fused petitions, should
not declare the assailed portion of RA 9054 unconstitutional. However, even if the Court feels it
proper to take the bull by the horns on that issue, the outcome will be in
favor of the validity and constitutionality of Sec. 7, Art. VII of RA 9054.
The alternative choice
to allow the President to appoint the ARMM Governor pending the holding of the
special elections is not only intrinsically infirm but also constitutionally
invalid for violating the only limitation provided by the Constitution when it
conferred on Congress the power to create the local offices of the ARMM.
Sec. 18(1), Art. 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.
(Emphasis supplied.)
Considering the express requirement that
the executive and legislative offices in the ARMM be both Òelective and
representative,Ó it should not have even been contemplated to allow the
President to substitute his discretion for the will of the electorate by
allowing him to appoint, no matter how briefly, the ARMM Governor pending the
holding of the special elections.
As can be
clearly gleaned from Sect. 16, Art. VII of the Constitution, the appointing power
of the President is limited only to appointive offices. Consider:
Section 16. The
President shall nominate and, with the consent of the Commission on
Appointments, appoint the heads of the executive departments, ambassadors,
other public ministers and consuls, or officers of the armed forces from the
rank of colonel or naval captain, and other officers whose appointments are
vested in him in this Constitution. He
shall also appoint all other officers of the Government whose appointments are
not otherwise provided for by law, and those whom he may be authorized by law
to appoint. The Congress may, by law, vest the appointment of other
officers lower in rank in the President alone, in the courts, or in the heads
of departments, agencies, commissions, or boards. (Emphasis supplied.)
Hence,
this Court cannot expand the appointing power of the President to encompass
offices expressly required by the Constitution to be Òelective and
representative.Ó The republican form of government can only be preserved by
ensuring that elective offices can only be filled by persons voted by the
electors.
Even the ponencia recognizes that the grant of
the power to appoint the ARMM officials to the President would trample on the
democratic and republican nature of our government as Òthe peopleÕs right to
choose the leaders to govern them may be said to be systematically withdrawn to
the point of fostering an undemocratic regime x x x. [It] would likewise
frontally breach the Ôelective and representativeÕ governance requirement of
Section 18 Article X of the Constitution.Ó However, the ponencia evades the application of its own observation to the
present case on the ground that Òthis conclusion would not be true under the
very limited circumstances contemplated under RA 10153 where the period is
fixed and, more importantly, the terms of governance x x x will not
systematically be touched or affected at all.Ó
Clearly,
the ponencia has discounted the
consequences of this supposedly ÒlimitedÓ enroachment of the President into the
very core of the ÒelectiveÓ and ÒrepresentativeÓ nature of the offices subject
of the present petitions, which cannot be remedied by provisions setting the
manner and procedure for the appointment of the OICs or their quaifications. The fact still remains that Secs. 3, 4, and
5 of RA 10153 deprive the ARMM electorate of their choice of governors and
legislators.
Meanwhile, the
holdover provision will not affect the elective and representative nature of
the contested offices. For one, the periodic elections are prescribed by law
and must be implemented. Even if there is failure of elections on the scheduled
dates, COMELEC can set another day when it will be held. With this power of the
COMELEC, the elections will, as sure as day, be held. Thus, the assurance of
having an election has no relevance or connection to the holdover provision.
The mode of holdover is merely a stopgap solution whenever elections are not
held and only for the period from the date of failed elections up to the
eventual holding of the elections. If we are to ensure democratic values, then
the holding over of a duly elected official is undeniably the proper remedial
action than the appointment of OICs who were not elected by the people and
were merely chosen by the President whose choices may be viewed, rightly or
wrongly, as biased, he being the titular head of the administration political
party.
Indeed,
the appointment of a person by the President thwarts the popular will by
replacing the person who has been previously elected by the ARMM electorate to
govern them. On the other hand, an approval of the holdover of the incumbents
pending the election and
qualification of their successsors is a ratification of the constitutional
right of the people of the ARMM to select the their own officials.
With
more reason, the authority granted the
President to appoint the ARMM Governor cannot be excused by an expanded
interpretation of the PresidentÕs power of Ògeneral supervisionÓ over local
governments in Sec. 4, Art. X of
the Constitution, as it is basic that Ògeneral supervisionÓ does NOT authorize
the President or any of his alter egos to interfere with local affairs. In Pimentel v. Aguirre,[23]
We explained the scope of the power of the general supervision, thus:
Section 4 of Article
X of the Constitution confines the PresidentÕs power over local governments to
one of general supervision. It reads as follows:
ÒSec. 4. The President of the
This provision has
been interpreted to exclude the power of control. In Mondano v. Silvosa, the Court contrasted the PresidentÕs power of
supervision over local government officials with that of his power of control
over executive officials of the national government. It was emphasized that the
two terms -- supervision and control -- differed in meaning and extent. The
Court distinguished them as follows:
Òx x x In administrative law, supervision means overseeing or the power
or authority of an officer to see that subordinate officers perform their
duties. If the latter fail or neglect to fulfill them, the former may take such
action or step as prescribed by law to make them perform their duties.
Control, on the other hand, means the power of an officer to alter or modify or
nullify or set aside what a subordinate officer ha[s] done in the performance
of his duties and to substitute the judgment of the former for that of the
latter.Ó
In Taule v. Santos, we further stated that the Chief Executive wielded no more
authority than that of checking whether local governments or their officials
were performing their duties as provided by the fundamental law and by statutes.
He cannot interfere with local
governments, so long as they act within the scope of their authority. ÒSupervisory
power, when contrasted with control, is the power of mere oversight over an
inferior body; it does not include any restraining authority over such body,Ó
we said.
In a more recent
case, Drilon v. Lim, the difference
between control and supervision was further delineated. Officers in control lay
down the rules in the performance or accomplishment of an act. If these rules
are not followed, they may, in their discretion, order the act undone or redone
by their subordinates or even decide to do it themselves. On the other hand,
supervision does not cover such authority. Supervising
officials merely see to it that the rules are followed, but they themselves do
not lay down such rules, nor do they have the discretion to modify or replace
them. If the rules are not observed, they may order the work done or
redone, but only to conform to such rules. They may not prescribe their own
manner of execution of the act. They have no discretion on this matter except
to see to it that the rules are followed.
Under our present system
of government, executive power is vested in the President. The members of the
Cabinet and other executive officials are merely alter egos. As such, they are
subject to the power of control of the President, at whose will and behest they
can be removed from office; or their actions and decisions changed, suspended
or reversed. In contrast, the heads of
political subdivisions are elected by the people. Their sovereign powers
emanate from the electorate, to whom they are directly accountable. By constitutional
fiat, they are subject to the PresidentÕs supervision only, not control, so
long as their acts are exercised within the sphere of their legitimate powers.
By the same token, the President may not withhold or alter any authority or
power given them by the Constitution and the law. (Emphasis supplied.)
Clearly, the President cannot fill the
executive and legislative ARMM Offices by appointment, even temporarily and
pending the holding of the special elections. Such action will not only be
outside the scope of his constitutional authority to do so, but also further violates the principle of local autonomy,
nullifies the will of the electorate, and contravenes the only limitation set
by the ConstitutionÐÐthat the offices of the executive and legislative ARMM
officials be ÒelectiveÓ and Òrepresentative.Ó
Thus, as between the holdover provision
per Sec. 7(1), Art. VII of RA 9054 and the nebulous unconstitutional exercise
of the general supervision of the President to appoint the officers of ARMM, I
submit that the holdover provision is undeniably superior, valid,
constitutional, and anchored on relevant constitutional provision, pertinent
laws, and foreign and local jurisprudence.
I, therefore, vote to allow the holdover
of the ARMM officials pending the holding of the special elections and the
election and qualification of their successors, and for the holding of the
special elections within three (3) months from the finality of the decision.
Consequently, Sec. 7(1), Art. VII of RA 9054 is valid and constitutional. In other respects, I join the dissent of Justice Carpio.
PRESBITERO
J. VELASCO, JR.
Associate
Justice
[1] Entitled ÒAn
Act to Strengthen and Expand the Organic Act for the Autonomous Region in
Muslim Mindanao, amending for the purpose Republic Act No. 6734, entitled ÔAn
Act Providing For The Autonomous Region in Muslim Mindanao, as Amended.ÕÓ
[2] G.R.
Nos. 100318, 100308, 100417 & 100420, July 30, 1991, 199 SCRA 750.
[3] Delta Motors Corporation v. Court of Appeals,
G.R. No. 121075, July 24, 1997, 276 SCRA 212, 223; Auyong Hian v. Court of Tax Appeals, No. L-28782, 12 September
1974, 59 SCRA 110, 120.
[4] Confederation of Sugar Producers
Association, Inc. v. DAR, G.R. No. 169514, March 30, 2007, 519 SCRA 582,
618.
[5] 89 A.
172, 87
[6] 122
N.W. 462, 109
[7] State v. Clark, supra at 173. The Supreme Court of Errors of
[8]
[9] State v. McIntosh, supra at 463.
[10]
[11] Sec.
67 C.J.S., p. 379.
[12]
[13]
[14]
[15] 43 Am.
Jur. 152, p. 13.
[16]
[17] 71 NE
478.
[18] 74
[19] 62
[20] 89 A.
172, p. 175, 87
[21] G.R.
No. 161984, February 21, 2007, 516 SCRA 403, 412.
[22] G.R.
No. 160427, September 15, 2004, 438 SCRA 312, 332-333.
[23] G.R. No.
132988. July 19, 2000, 336 SCRA 201, 214-215.