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Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 196271               October 18, 2011

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, JAMILON T. ODIN, ASRIN TIMBOL JAIYARI, MUJIB M. KALANG, ALIH AL-SAIDI J. SAPI-E, KESSAR DAMSIE ABDIL, and BASSAM ALUH SAUPI, Petitioners,
vs.
SENATE OF THE PHILIPPINES, represented by its President JUAN PONCE ENRILE, HOUSE OF REPRESENTATIVES, thru SPEAKER FELICIANO BELMONTE, COMMISSION ON ELECTIONS, thru its Chairman, SIXTO BRILLANTES, JR., PAQUITO OCHOA, JR., Office of the President Executive Secretary, FLORENCIO ABAD, JR., Secretary of Budget, and ROBERTO TAN, Treasurer of the Philippines, Respondents.

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G.R. No. 196305

BASARI D. MAPUPUNO, Petitioner,
vs.
SIXTO BRILLANTES, in his capacity as Chairman of the Commission on Elections, FLORENCIO ABAD, JR. in his capacity as Secretary of the Department of Budget and Management, PACQUITO OCHOA, JR., in his capacity as Executive Secretary, JUAN PONCE ENRILE, in his capacity as Senate President, and FELICIANO BELMONTE, in his capacity as Speaker of the House of Representatives, Respondents.

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G.R. No. 197221

REP. EDCEL C. LAGMAN, Petitioner,
vs.
PAQUITO N. OCHOA, JR., in his capacity as the Executive Secretary, and the COMMISSION ON ELECTIONS, Respondents.

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G.R. No. 197280

ALMARIM CENTI TILLAH, DATU CASAN CONDING CANA, and PARTIDO DEMOKRATIKO PILIPINO LAKAS NG BAYAN (PDP-LABAN), Petitioners,
vs.
THE COMMISSION ON ELECTIONS, through its Chairman, SIXTO BRILLANTES, JR., HON. PAQUITO N. OCHOA, JR., in his capacity as Executive Secretary, HON. FLORENCIO B. ABAD, JR., in his capacity as Secretary of the Department of Budget and Management, and HON. ROBERTO B. TAN, in his capacity as Treasurer of the Philippines, Respondents.

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G.R. No. 197282

ATTY. ROMULO B. MACALINTAL, Petitioner,
vs.
COMMISSION ON ELECTIONS and THE OFFICE OF THE PRESIDENT, through EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., Respondents.

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G.R. No. 197392

LUIS "BAROK" BIRAOGO, Petitioner,
vs.
THE COMMISSION ON ELECTIONS and EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., Respondents.

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G.R. No. 197454

JACINTO V. PARAS, Petitioner,
vs.
EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., and the COMMISSION ON ELECTIONS, Respondents.

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MINORITY RIGHTS FORUM, PHILIPPINES, INC., Respondents-Intervenor.

D E C I S I O N

BRION, J.:

On June 30, 2011, Republic Act (RA) No. 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" was enacted. The law reset the ARMM elections from the 8th of August 2011, to the second Monday of May 2013 and every three (3) years thereafter, to coincide with the country’s regular national and local elections. The law as well granted the President the power to "appoint officers-in-charge (OICs) for the Office of the Regional Governor, the Regional Vice-Governor, and the 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."

Even before its formal passage, the bills that became RA No. 10153 already spawned petitions against their validity; House Bill No. 4146 and Senate Bill No. 2756 were challenged in petitions filed with this Court. These petitions multiplied after RA No. 10153 was passed.

Factual Antecedents

The State, through Sections 15 to 22, Article X of the 1987 Constitution, mandated the creation of autonomous regions in Muslim Mindanao and the Cordilleras. Section 15 states:

Section 15. There shall be created autonomous regions in Muslim Mindanao and in the Cordilleras consisting of provinces, cities, municipalities, and geographical areas sharing common and distinctive historical and cultural heritage, economic and social structures, and other relevant characteristics within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines.

Section 18 of the Article, on the other hand, directed Congress to enact an organic act for these autonomous regions to concretely carry into effect the granted autonomy.

Section 18. 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 multisectoral 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.

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, provided that only provinces, cities, and geographic areas voting favorably in such plebiscite shall be included in the autonomous region.

On August 1, 1989 or two years after the effectivity of the 1987 Constitution, Congress acted through Republic Act (RA) No. 6734 entitled "An Act Providing for an Organic Act for the Autonomous Region in Muslim Mindanao." A plebiscite was held on November 6, 1990 as required by Section 18(2), Article X of RA No. 6734, thus fully establishing the Autonomous Region of Muslim Mindanao (ARMM). The initially assenting provinces were Lanao del Sur, Maguindanao, Sulu and Tawi-tawi. RA No. 6734 scheduled the first regular elections for the regional officials of the ARMM on a date not earlier than 60 days nor later than 90 days after its ratification.

RA 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, entitled An Act Providing for the Autonomous Region in Muslim Mindanao, as Amended") was the next legislative act passed. This law provided further refinement in the basic ARMM structure first defined in the original organic act, and reset the regular elections for the ARMM regional officials to the second Monday of September 2001.

Congress passed the next law affecting ARMM – RA No. 9140¹ - on June 22, 2001. This law reset the first regular elections originally scheduled under RA No. 9054, to November 26, 2001. It likewise set the plebiscite to ratify RA No. 9054 to not later than August 15, 2001.

RA No. 9054 was ratified in a plebiscite held on August 14, 2001. The province of Basilan and Marawi City voted to join ARMM on the same date.

RA No. 9333² was subsequently passed by Congress to reset the ARMM regional elections to the 2nd Monday of August 2005, and on the same date every 3 years thereafter. Unlike RA No. 6734 and RA No. 9054, RA No. 9333 was not ratified in a plebiscite.

Pursuant to RA No. 9333, the next ARMM regional elections should have been held on August 8, 2011. COMELEC had begun preparations for these elections and had accepted certificates of candidacies for the various regional offices to be elected. But on June 30, 2011, RA No. 10153 was enacted, resetting the ARMM elections to May 2013, to coincide with the regular national and local elections of the country.

RA No. 10153 originated in the House of Representatives as House Bill (HB) No. 4146, seeking the postponement of the ARMM elections scheduled on August 8, 2011. On March 22, 2011, the House of Representatives passed HB No. 4146, with one hundred ninety one (191) Members voting in its favor.

After the Senate received HB No. 4146, it adopted its own version, Senate Bill No. 2756 (SB No. 2756), on June 6, 2011. Thirteen (13) Senators voted favorably for its passage. On June 7, 2011, the House of Representative concurred with the Senate amendments, and on June 30, 2011, the President signed RA No. 10153 into law.

As mentioned, the early challenge to RA No. 10153 came through a petition filed with this Court – G.R. No. 196271³ - assailing the constitutionality of both HB No. 4146 and SB No. 2756, and challenging the validity of RA No. 9333 as well for non-compliance with the constitutional plebiscite requirement. Thereafter, petitioner Basari Mapupuno in G.R. No. 196305 filed another petition⁴ also assailing the validity of RA No. 9333.

With the enactment into law of RA No. 10153, the COMELEC stopped its preparations for the ARMM elections. The law gave rise as well to the filing of the following petitions against its constitutionality:

a) Petition for Certiorari and Prohibition⁵ filed by Rep. Edcel Lagman as a member of the House of Representatives against Paquito Ochoa, Jr. (in his capacity as the Executive Secretary) and the COMELEC, docketed as G.R. No. 197221;

b) Petition for Mandamus and Prohibition⁶ filed by Atty. Romulo Macalintal as a taxpayer against the COMELEC, docketed as G.R. No. 197282;

c) Petition for Certiorari and Mandamus, Injunction and Preliminary Injunction⁷ filed by Louis "Barok" Biraogo against the COMELEC and Executive Secretary Paquito N. Ochoa, Jr., docketed as G.R. No. 197392; and

d) Petition for Certiorari and Mandamus⁸ filed by Jacinto Paras as a member of the House of Representatives against Executive Secretary Paquito Ochoa, Jr. and the COMELEC, docketed as G.R. No. 197454.

Petitioners Alamarim Centi Tillah and Datu Casan Conding Cana as registered voters from the ARMM, with the Partido Demokratiko Pilipino Lakas ng Bayan (a political party with candidates in the ARMM regional elections scheduled for August 8, 2011), also filed a Petition for Prohibition and Mandamus⁹ against the COMELEC, docketed as G.R. No. 197280, to assail the constitutionality of RA No. 9140, RA No. 9333 and RA No. 10153.

Subsequently, Anak Mindanao Party-List, Minority Rights Forum Philippines, Inc. and Bangsamoro Solidarity Movement filed their own Motion for Leave to Admit their Motion for Intervention and Comment-in-Intervention dated July 18, 2011. On July 26, 2011, the Court granted the motion. In the same Resolution, the Court ordered the consolidation of all the petitions relating to the constitutionality of HB No. 4146, SB No. 2756, RA No. 9333, and RA No. 10153.

Oral arguments were held on August 9, 2011 and August 16, 2011. Thereafter, the parties were instructed to submit their respective memoranda within twenty (20) days.

On September 13, 2011, the Court issued a temporary restraining order enjoining the implementation of RA No. 10153 and ordering the incumbent elective officials of ARMM to continue to perform their functions should these cases not be decided by the end of their term on September 30, 2011.

The Arguments

The petitioners assailing RA No. 9140, RA No. 9333 and RA No. 10153 assert that these laws amend RA No. 9054 and thus, have to comply with the supermajority vote and plebiscite requirements prescribed under Sections 1 and 3, Article XVII of RA No. 9094 in order to become effective.

The petitions assailing RA No. 10153 further maintain that it is unconstitutional for its failure to comply with the three-reading requirement of Section 26(2), Article VI of the Constitution. Also cited as grounds are the alleged violations of the right of suffrage of the people of ARMM, as well as the failure to adhere to the "elective and representative" character of the executive and legislative departments of the ARMM. Lastly, the petitioners challenged the grant to the President of the power to appoint OICs to undertake the functions of the elective ARMM officials until the officials elected under the May 2013 regular elections shall have assumed office. Corrolarily, they also argue that the power of appointment also gave the President the power of control over the ARMM, in complete violation of Section 16, Article X of the Constitution.

The Issues

From the parties’ submissions, the following issues were recognized and argued by the parties in the oral arguments of August 9 and 16, 2011:

I. Whether the 1987 Constitution mandates the synchronization of elections

II. Whether the passage of RA No. 10153 violates Section 26(2), Article VI of the 1987 Constitution

III. Whether the passage of RA No. 10153 requires a supermajority vote and plebiscite

A. Does the postponement of the ARMM regular elections constitute an amendment to Section 7, Article XVIII of RA No. 9054?

B. Does the requirement of a supermajority vote for amendments or revisions to RA No. 9054 violate Section 1 and Section 16(2), Article VI of the 1987 Constitution and the corollary doctrine on irrepealable laws?

C. Does the requirement of a plebiscite apply only in the creation of autonomous regions under paragraph 2, Section 18, Article X of the 1987 Constitution?

IV. Whether RA No. 10153 violates the autonomy granted to the ARMM

V. Whether the grant of the power to appoint OICs violates:

A. Section 15, Article X of the 1987 Constitution

B. Section 16, Article X of the 1987 Constitution

C. Section 18, Article X of the 1987 Constitution

VI. Whether the proposal to hold special elections is constitutional and legal.

We shall discuss these issues in the order they are presented above.

OUR RULING

We resolve to DISMISS the petitions and thereby UPHOLD the constitutionality of RA No. 10153 in toto.

I. Synchronization as a recognized constitutional mandate

The respondent Office of the Solicitor General (OSG) argues that the Constitution mandates synchronization, and in support of this position, cites Sections 1, 2 and 5, Article XVIII (Transitory Provisions) of the 1987 Constitution, which provides:

Section 1. The first elections of Members of the Congress under this Constitution shall be held on the second Monday of May, 1987.

The first local elections shall be held on a date to be determined by the President, which may be simultaneous with the election of the Members of the Congress. It shall include the election of all Members of the city or municipal councils in the Metropolitan Manila area.

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 election in 1992, the first twelve obtaining the highest number of votes shall serve for six year and the remaining twelve for three years.

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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 President and Vice-President under this Constitution shall be held on the second Monday of May, 1992.

We agree with this position.

While the Constitution does not expressly state that Congress has to synchronize national and local elections, the clear intent towards this objective can be gleaned from the Transitory Provisions (Article XVIII) of the Constitution,¹⁰ which show the extent to which the Constitutional Commission, by deliberately making adjustments to the terms of the incumbent officials, sought to attain synchronization of elections.¹¹

The objective behind setting a common termination date for all elective officials, done among others through the shortening the terms of the twelve winning senators with the least number of votes, is to synchronize the holding of all future elections – whether national or local – to once every three years.¹² This intention finds full support in the discussions during the Constitutional Commission deliberations.¹³

These Constitutional Commission exchanges, read with the provisions of the Transitory Provisions of the Constitution, all serve as patent indicators of the constitutional mandate to hold synchronized national and local elections, starting the second Monday of May, 1992 and for all the following elections.

This Court was not left behind in recognizing the synchronization of the national and local elections as a constitutional mandate. In Osmeña v. Commission on Elections,¹⁴ we explained:

It is clear from the aforequoted provisions of the 1987 Constitution that the terms of office of Senators, Members of the House of Representatives, the local officials, the President and the Vice-President have been synchronized to end on the same hour, date and year — noon of June 30, 1992.

It is likewise evident from the wording of the above-mentioned Sections that the term of synchronization is used synonymously as the phrase holding simultaneously since this is the precise intent in terminating their Office Tenure on the same day or occasion. This common termination date will synchronize future elections to once every three years (Bernas, the Constitution of the Republic of the Philippines, Vol. II, p. 605).

That the election for Senators, Members of the House of Representatives and the local officials (under Sec. 2, Art. XVIII) will have to be synchronized with the election for President and Vice President (under Sec. 5, Art. XVIII) is likewise evident from the x x x records of the proceedings in the Constitutional Commission. [Emphasis supplied.]

Although called regional elections, the ARMM elections should be included among the elections to be synchronized as it is a "local" election based on the wording and structure of the Constitution.1avvphil

A basic rule in constitutional construction is that the words used should be understood in the sense that they have in common use and given their ordinary meaning, except when technical terms are employed, in which case the significance thus attached to them prevails.¹⁵ As this Court explained in People v. Derilo,¹⁶ "[a]s the Constitution is not primarily a lawyer’s document, its language should be understood in the sense that it may have in common. Its words should be given their ordinary meaning except where technical terms are employed."

Understood in its ordinary sense, the word "local" refers to something that primarily serves the needs of a particular limited district, often a community or minor political subdivision.¹⁷ Regional elections in the ARMM for the positions of governor, vice-governor and regional assembly representatives obviously fall within this classification, since they pertain to the elected officials who will serve within the limited region of ARMM.

From the perspective of the Constitution, autonomous regions are considered one of the forms of local governments, as evident from Article X of the Constitution entitled "Local Government." Autonomous regions are established and discussed under Sections 15 to 21 of this Article – the article wholly devoted to Local Government. That an autonomous region is considered a form of local government is also reflected in Section 1, Article X of the Constitution, which provides:

Section 1. 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.

Thus, we find the contention – that the synchronization mandated by the Constitution does not include the regional elections of the ARMM –unmeritorious. We shall refer to synchronization in the course of our discussions below, as this concept permeates the consideration of the various issues posed in this case and must be recalled time and again for its complete resolution.

II. The President’s Certification on the Urgency of RA No. 10153

The petitioners in G.R. No. 197280 also challenge the validity of RA No. 10153 for its alleged failure to comply with Section 26(2), Article VI of the Constitution¹⁸ which provides that before bills passed by either the House or the Senate can become laws, they must pass through three readings on separate days. The exception is when the President certifies to the necessity of the bill’s immediate enactment.

The Court, in Tolentino v. Secretary of Finance,¹⁹ explained the effect of the President’s certification of necessity in the following manner:

The presidential certification dispensed with the requirement not only of printing but also that of reading the bill on separate days. The phrase "except when the President certifies to the necessity of its immediate enactment, etc." in Art. VI, Section 26[2] qualifies the two stated conditions before a bill can become a law: [i] the bill has passed three readings on separate days and [ii] it has been printed in its final form and distributed three days before it is finally approved.

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That upon the certification of a bill by the President, the requirement of three readings on separate days and of printing and distribution can be dispensed with is supported by the weight of legislative practice. For example, the bill defining the certiorari jurisdiction of this Court which, in consolidation with the Senate version, became Republic Act No. 5440, was passed on second and third readings in the House of Representatives on the same day [May 14, 1968] after the bill had been certified by the President as urgent.

In the present case, the records show that the President wrote to the Speaker of the House of Representatives to certify the necessity of the immediate enactment of a law synchronizing the ARMM elections with the national and local elections.²⁰ Following our Tolentino ruling, the President’s certification exempted both the House and the Senate from having to comply with the three separate readings requirement.

On the follow-up contention that no necessity existed for the immediate enactment of these bills since there was no public calamity or emergency that had to be met, again we hark back to our ruling in Tolentino:

The sufficiency of the factual basis of the suspension of the writ of habeas corpus or declaration of martial law Art. VII, Section 18, or the existence of a national emergency justifying the delegation of extraordinary powers to the President under Art. VI, Section 23(2) is subject to judicial review because basic rights of individuals may be of 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.]

The House of Representatives and the Senate – in the exercise of their legislative discretion – gave full recognition to the President’s certification and promptly enacted RA No. 10153. Under the circumstances, nothing short of grave abuse of discretion on the part of the two houses of Congress can justify our intrusion under our power of judicial review.²¹

The petitioners, however, failed to provide us with any cause or justification for this course of action. Hence, while the judicial department and this Court are not bound by the acceptance of the President's certification by both the House of Representatives and the Senate, prudent exercise of our powers and respect due our co-equal branches of government in matters committed to them by the Constitution, caution a stay of the judicial hand.²²

In any case, despite the President’s certification, the two-fold purpose that underlies the requirement for three readings on separate days of every bill must always be observed to enable our legislators and other parties interested in pending bills to intelligently respond to them. Specifically, the purpose with respect to Members of Congress is: (1) to inform the legislators of the matters they shall vote on and (2) to give them notice that a measure is in progress through the enactment process.²³

We find, based on the records of the deliberations on the law, that both advocates and the opponents of the proposed measure had sufficient opportunities to present their views. In this light, no reason exists to nullify RA No. 10153 on the cited ground.

III. A. RA No. 9333 and RA No. 10153 are not amendments to RA No. 9054

The effectivity of RA No. 9333 and RA No. 10153 has also been challenged because they did not comply with Sections 1 and 3, Article XVII of RA No. 9054 in amending this law. These provisions require:

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.

We find no merit in this contention.

In the first place, neither RA No. 9333 nor RA No. 10153 amends RA No. 9054. As an examination of these laws will show, RA No. 9054 only provides for the schedule of the first ARMM elections and does not fix the date of the regular elections. A need therefore existed for the Congress to fix the date of the subsequent ARMM regular elections, which it did by enacting RA No. 9333 and thereafter, RA No. 10153. Obviously, these subsequent laws – RA No. 9333 and RA No. 10153 – cannot be considered amendments to RA No. 9054 as they did not change or revise any provision in the latter law; they merely filled in a gap in RA No. 9054 or supplemented the law by providing the date of the subsequent regular elections.

This view – that Congress thought it best to leave the determination of the date of succeeding ARMM elections to legislative discretion – finds support in ARMM’s recent history.

To recall, RA No. 10153 is not the first law passed that rescheduled the ARMM elections. The First Organic Act – RA No. 6734 – not only did not fix the date of the subsequent elections; it did not even fix the specific date of the first ARMM elections,²⁴ leaving the date to be fixed in another legislative enactment. Consequently, RA No. 7647,²⁵ RA No. 8176,²⁶ RA No. 8746,²⁷ RA No. 8753,²⁸ and RA No. 9012²⁹ were all enacted by Congress to fix the dates of the ARMM elections. Since these laws did not change or modify any part or provision of RA No. 6734, they were not amendments to this latter law. Consequently, there was no need to submit them to any plebiscite for ratification.

The Second Organic Act – RA No. 9054 – which lapsed into law on March 31, 2001, provided that the first elections would be held on the second Monday of September 2001. Thereafter, Congress passed RA No. 9140³⁰ to reset the date of the ARMM elections. Significantly, while RA No. 9140 also scheduled the plebiscite for the ratification of the Second Organic Act (RA No. 9054), the new date of the ARMM regional elections fixed in RA No. 9140 was not among the provisions ratified in the plebiscite held to approve RA No. 9054. Thereafter, Congress passed RA No. 9333,³¹ which further reset the date of the ARMM regional elections. Again, this law was not ratified through a plebiscite.

From these legislative actions, we see the clear intention of Congress to treat the laws which fix the date of the subsequent ARMM elections as separate and distinct from the Organic Acts. Congress only acted consistently with this intent when it passed RA No. 10153 without requiring compliance with the amendment prerequisites embodied in Section 1 and Section 3, Article XVII of RA No. 9054.

III. B. Supermajority voting requirement unconstitutional for giving RA No. 9054 the character of an irrepealable law

Even assuming that RA No. 9333 and RA No. 10153 did in fact amend RA No. 9054, the supermajority (2/3) voting requirement required under Section 1, Article XVII of RA No. 9054³² has to be struck down for giving RA No. 9054 the character of an irrepealable law by requiring more than what the Constitution demands.

Section 16(2), Article VI of the Constitution provides that a "majority of each House shall constitute a quorum to do business." In other words, as long as majority of the members of the House of Representatives or the Senate are present, these bodies have the quorum needed to conduct business and hold session. Within a quorum, a vote of majority is generally sufficient to enact laws or approve acts.

In contrast, Section 1, Article XVII of RA No. 9054 requires a vote of no less than two-thirds (2/3) of the Members of the House of Representatives and of the Senate, voting separately, in order to effectively amend RA No. 9054. Clearly, this 2/3 voting requirement is higher than what the Constitution requires for the passage of bills, and served to restrain the plenary powers of Congress to amend, revise or repeal the laws it had passed. The Court’s pronouncement in City of Davao v. GSIS³³ on this subject best explains the basis and reason for the unconstitutionality:

Moreover, it would be noxious anathema to democratic principles for a legislative body to have the ability to bind the actions of future legislative body, considering that both assemblies are regarded with equal footing, exercising as they do the same plenary powers. Perpetual infallibility is not one of the attributes desired in a legislative body, and a legislature which attempts to forestall future amendments or repeals of its enactments labors under delusions of omniscience.

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A state legislature has a plenary law-making power over all subjects, whether pertaining to persons or things, within its territorial jurisdiction, either to introduce new laws or repeal the old, unless prohibited expressly or by implication by the federal constitution or limited or restrained by its own. It cannot bind itself or its successors by enacting irrepealable laws except when so restrained. Every legislative body may modify or abolish the acts passed by itself or its predecessors. This power of repeal may be exercised at the same session at which the original act was passed; and even while a bill is in its progress and before it becomes a law. This legislature cannot bind a future legislature to a particular mode of repeal. It cannot declare in advance the intent of subsequent legislatures or the effect of subsequent legislation upon existing statutes.³⁴ (Emphasis ours.)

Thus, while a supermajority is not a total ban against a repeal, it is a limitation in excess of what the Constitution requires on the passage of bills and is constitutionally obnoxious because it significantly constricts the future legislators’ room for action and flexibility.

III. C. Section 3, Article XVII of RA No. 9054 excessively enlarged the plebiscite requirement found in Section 18, Article X of the Constitution

The requirements of RA No. 9054 not only required an unwarranted supermajority, but enlarged as well the plebiscite requirement, as embodied in its Section 3, Article XVII of that Act. As we did on the supermajority requirement, we find the enlargement of the plebiscite requirement required under Section 18, Article X of the Constitution to be excessive to point of absurdity and, hence, a violation of the Constitution.

Section 18, Article X of the Constitution states that the plebiscite is required only for the creation of autonomous regions and for determining which provinces, cities and geographic areas will be included in the autonomous regions. While the settled rule is that amendments to the Organic Act have to comply with the plebiscite requirement in order to become effective,³⁵ questions on the extent of the matters requiring ratification may unavoidably arise because of the seemingly general terms of the Constitution and the obvious absurdity that would result if a plebiscite were to be required for every statutory amendment.

Section 18, Article X of the Constitution plainly states that "The creation of the autonomous region shall be effective when approved by the majority of the votes case by the constituent units in a plebiscite called for the purpose." With these wordings as standard, we interpret the requirement to mean that only amendments to, or revisions of, the Organic Act constitutionally-essential to the creation of autonomous regions – i.e., those aspects specifically mentioned in the Constitution which Congress must provide for in the Organic Act – require ratification through a plebiscite. These amendments to the Organic Act are those that relate to: (a) the basic structure of the regional government; (b) the region’s judicial system, i.e., the special courts with personal, family, and property law jurisdiction; and, (c) the grant and extent of the legislative powers constitutionally conceded to the regional government under Section 20, Article X of the Constitution.³⁶

The date of the ARMM elections does not fall under any of the matters that the Constitution specifically mandated Congress to provide for in the Organic Act. Therefore, even assuming that the supermajority votes and the plebiscite requirements are valid, any change in the date of elections cannot be construed as a substantial amendment of the Organic Act that would require compliance with these requirements.

IV. The synchronization issue

As we discussed above, synchronization of national and local elections is a constitutional mandate that Congress must provide for and this synchronization must include the ARMM elections. On this point, an existing law in fact already exists – RA No. 7166 – as the forerunner of the current RA No. 10153. RA No. 7166 already provides for the synchronization of local elections with the national and congressional elections. Thus, what RA No. 10153 provides is an old matter for local governments (with the exception of barangay and Sanggunian Kabataan elections where the terms are not constitutionally provided) and is technically a reiteration of what is already reflected in the law, given that regional elections are in reality local elections by express constitutional recognition.³⁷

To achieve synchronization, Congress necessarily has to reconcile the schedule of the ARMM’s regular elections (which should have been held in August 2011 based on RA No. 9333) with the fixed schedule of the national and local elections (fixed by RA No. 7166 to be held in May 2013).

During the oral arguments, the Court identified the three options open to Congress in order to resolve this problem. These options are: (1) to allow the elective officials in the ARMM to remain in office in a hold over capacity, pursuant to Section 7(1), Article VII of RA No. 9054, until those elected in the synchronized elections assume office;³⁸ (2) to hold special elections in the ARMM, with the terms of those elected to expire when those elected in the synchronized elections assume office; or (3) to authorize the President to appoint OICs, pursuant to Section 3 of RA No. 10153, also until those elected in the synchronized elections assume office.

As will be abundantly clear in the discussion below, Congress, in choosing to grant the President the power to appoint OICs, chose the correct option and passed RA No. 10153 as a completely valid law.

V. The Constitutionality of RA No. 10153

A. Basic Underlying Premises

To fully appreciate the available options, certain underlying material premises must be fully understood. The first is the extent of the powers of Congress to legislate; the second is the constitutional mandate for the synchronization of elections; and the third is on the concept of autonomy as recognized and established under the 1987 Constitution.

The grant of legislative power to Congress is broad, general and comprehensive.³⁹ The legislative body possesses plenary power for all purposes of civil government.⁴⁰ Any power, deemed to be legislative by usage and tradition, is necessarily possessed by Congress, unless the Constitution has lodged it elsewhere.⁴¹ Except as limited by the Constitution, either expressly or impliedly, legislative power embraces all subjects and extends to all matters of general concern or common interest.⁴²

The constitutional limitations on legislative power are either express or implied. The express limitations are generally provided in some provisions of the Declaration of Principles and State Policies (Article 2) and in the provisions Bill of Rights (Article 3). Other constitutional provisions (such as the initiative and referendum clause of Article 6, Sections 1 and 32, and the autonomy provisions of Article X) provide their own express limitations. The implied limitations are found "in the evident purpose which was in view and the circumstances and historical events which led to the enactment of the particular provision as a part of organic law."⁴³

The constitutional provisions on autonomy – specifically, Sections 15 to 21 of Article X of the Constitution – constitute express limitations on legislative power as they define autonomy, its requirements and its parameters, thus limiting what is otherwise the unlimited power of Congress to legislate on the governance of the autonomous region.

Of particular relevance to the issues of the present case are the limitations posed by the prescribed basic structure of government – i.e., that the government must have an executive department and a legislative assembly, both of which must be elective and representative of the constituent political units; national government, too, must not encroach on the legislative powers granted under Section 20, Article X. Conversely and as expressly reflected in Section 17, Article X, "all powers and functions not granted by this Constitution or by law to the autonomous regions shall be vested in the National Government."

The totality of Sections 15 to 21 of Article X should likewise serve as a standard that Congress must observe in dealing with legislation touching on the affairs of the autonomous regions. The terms of these sections leave no doubt on what the Constitution intends – the idea of self-rule or self-government, in particular, the power to legislate on a wide array of social, economic and administrative matters. But equally clear under these provisions are the permeating principles of national sovereignty and the territorial integrity of the Republic, as expressed in the above-quoted Section 17 and in Section 15.⁴⁴ In other words, the Constitution and the supporting jurisprudence, as they now stand, reject the notion of imperium et imperio⁴⁵ in the relationship between the national and the regional governments.

In relation with synchronization, both autonomy and the synchronization of national and local elections are recognized and established constitutional mandates, with one being as compelling as the other. If their compelling force differs at all, the difference is in their coverage; synchronization operates on and affects the whole country, while regional autonomy – as the term suggests – directly carries a narrower regional effect although its national effect cannot be discounted.

These underlying basic concepts characterize the powers and limitations of Congress when it acted on RA No. 10153. To succinctly describe the legal situation that faced Congress then, its decision to synchronize the regional elections with the national, congressional and all other local elections (save for barangay and sangguniang kabataan elections) left it with the problem of how to provide the ARMM with governance in the intervening period between the expiration of the term of those elected in August 2008 and the assumption to office – twenty-one (21) months away – of those who will win in the synchronized elections on May 13, 2013.

The problem, in other words, was for interim measures for this period, consistent with the terms of the Constitution and its established supporting jurisprudence, and with the respect due to the concept of autonomy. Interim measures, to be sure, is not a strange phenomenon in the Philippine legal landscape. The Constitution’s Transitory Provisions themselves collectively provide measures for transition from the old constitution to the new⁴⁶ and for the introduction of new concepts.⁴⁷ As previously mentioned, the adjustment of elective terms and of elections towards the goal of synchronization first transpired under the Transitory Provisions. The adjustments, however, failed to look far enough or deeply enough, particularly into the problems that synchronizing regional autonomous elections would entail; thus, the present problem is with us today.

The creation of local government units also represents instances when interim measures are required. In the creation of Quezon del Sur⁴⁸ and Dinagat Islands,⁴⁹ the creating statutes authorized the President to appoint an interim governor, vice-governor and members of the sangguniang panlalawigan although these positions are essentially elective in character; the appointive officials were to serve until a new set of provincial officials shall have been elected and qualified.⁵⁰ A similar authority to appoint is provided in the transition of a local government from a sub-province to a province.⁵¹

In all these, the need for interim measures is dictated by necessity; out-of-the-way arrangements and approaches were adopted or used in order to adjust to the goal or objective in sight in a manner that does not do violence to the Constitution and to reasonably accepted norms. Under these limitations, the choice of measures was a question of wisdom left to congressional discretion.

To return to the underlying basic concepts, these concepts shall serve as the guideposts and markers in our discussion of the options available to Congress to address the problems brought about by the synchronization of the ARMM elections, properly understood as interim measures that Congress had to provide. The proper understanding of the options as interim measures assume prime materiality as it is under these terms that the passage of RA No. 10153 should be measured, i.e., given the constitutional objective of synchronization that cannot legally be faulted, did Congress gravely abuse its discretion or violate the Constitution when it addressed through RA No. 10153 the concomitant problems that the adjustment of elections necessarily brought with it?

B. Holdover Option is Unconstitutional

We rule out the first option – holdover for those who were elected in executive and legislative positions in the ARMM during the 2008-2011 term – as an option that Congress could have chosen because a holdover violates Section 8, Article X of the Constitution. This provision states:

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. [emphases ours]

Since elective ARMM officials are local officials, they are covered and bound by the three-year term limit prescribed by the Constitution; they cannot extend their term through a holdover. As this Court put in Osmeña v. COMELEC:⁵²

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 within the time.

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." [Emphasis ours.]

Independently of the Osmeña ruling, the primacy of the Constitution as the supreme law of the land dictates that where the Constitution has itself made a determination or given its mandate, then the matters so determined or mandated should be respected until the Constitution itself is changed by amendment or repeal through the applicable constitutional process. A necessary corollary is that none of the three branches of government can deviate from the constitutional mandate except only as the Constitution itself may allow.⁵³ If at all, Congress may only pass legislation filing in details to fully operationalize the constitutional command or to implement it by legislation if it is non-self-executing; this Court, on the other hand, may only interpret the mandate if an interpretation is appropriate and called for.⁵⁴

In the case of the terms of local officials, their term has been fixed clearly and unequivocally, allowing no room for any implementing legislation with respect to the fixed term itself and no vagueness that would allow an interpretation from this Court. Thus, the term of three years for local officials should stay at three (3) years as fixed by the Constitution and cannot be extended by holdover by Congress.

If it will be claimed that the holdover period is effectively another term mandated by Congress, the net result is for Congress to create a new term and to appoint the occupant for the new term. This view – like the extension of the elective term – is constitutionally infirm because Congress cannot do indirectly what it cannot do directly, i.e., to act in a way that would effectively extend the term of the incumbents. Indeed, if acts that cannot be legally done directly can be done indirectly, then all laws would be illusory.⁵⁵ Congress cannot also create a new term and effectively appoint the occupant of the position for the new term. This is effectively an act of appointment by Congress and an unconstitutional intrusion into the constitutional appointment power of the President.⁵⁶ Hence, holdover – whichever way it is viewed – is a constitutionally infirm option that Congress could not have undertaken.

Jurisprudence, of course, is not without examples of cases where the question of holdover was brought before, and given the imprimatur of approval by, this Court. The present case though differs significantly from past cases with contrary rulings, particularly from Sambarani v. COMELEC,⁵⁷ Adap v. Comelec,⁵⁸ and Montesclaros v. Comelec,⁵⁹ where the Court ruled that the elective officials could hold on to their positions in a hold over capacity.

All these past cases refer to elective barangay or sangguniang kabataan officials whose terms of office are not explicitly provided for in the Constitution; the present case, on the other hand, refers to local elective officials – the ARMM Governor, the ARMM Vice-Governor, and the members of the Regional Legislative Assembly – whose terms fall within the three-year term limit set by Section 8, Article X of the Constitution. Because of their constitutionally limited term, Congress cannot legislate an extension beyond the term for which they were originally elected.

Even assuming that holdover is constitutionally permissible, and there had been statutory basis for it (namely Section 7, Article VII of RA No. 9054) in the past,⁶⁰ we have to remember that the rule of holdover can only apply as an available option where no express or implied legislative intent to the contrary exists; it cannot apply where such contrary intent is evident.⁶¹

Congress, in passing RA No. 10153, made it explicitly clear that it had the intention of suppressing the holdover rule that prevailed under RA No. 9054 by completely removing this provision. The deletion is a policy decision that is wholly within the discretion of Congress to make in the exercise of its plenary legislative powers; this Court cannot pass upon questions of wisdom, justice or expediency of legislation,⁶² except where an attendant unconstitutionality or grave abuse of discretion results.

C. The COMELEC has no authority to order special elections

Another option proposed by the petitioner in G.R. No. 197282 is for this Court to compel COMELEC to immediately conduct special elections pursuant to Section 5 and 6 of Batas Pambansa Bilang (BP) 881.

The power to fix the date of elections is essentially legislative in nature, as evident from, and exemplified by, the following provisions of the Constitution:

Section 8, Article VI, applicable to the legislature, provides:

Section 8. Unless otherwise provided by law, the regular election of the Senators and the Members of the House of Representatives shall be held on the second Monday of May. [Emphasis ours]

Section 4(3), Article VII, with the same tenor but applicable solely to the President and Vice-President, states:

xxxx

Section 4. xxx Unless otherwise provided by law, the regular election for President and Vice-President shall be held on the second Monday of May. [Emphasis ours]

while Section 3, Article X, on local government, provides:

Section 3. The Congress shall enact a local government code which shall provide for xxx the qualifications, election, appointment and removal, term, salaries, powers and functions and duties of local officials[.] [Emphases ours]

These provisions support the conclusion that no elections may be held on any other date for the positions of President, Vice President, Members of Congress and local officials, except when so provided by another Act of Congress, or upon orders of a body or officer to whom Congress may have delegated either the power or the authority to ascertain or fill in the details in the execution of that power.⁶³

Notably, Congress has acted on the ARMM elections by postponing the scheduled August 2011 elections and setting another date – May 13, 2011 – for regional elections synchronized with the presidential, congressional and other local elections. By so doing, Congress itself has made a policy decision in the exercise of its legislative wisdom that it shall not call special elections as an adjustment measure in synchronizing the ARMM elections with the other elections.

After Congress has so acted, neither the Executive nor the Judiciary can act to the contrary by ordering special elections instead at the call of the COMELEC. This Court, particularly, cannot make this call without thereby supplanting the legislative decision and effectively legislating. To be sure, the Court is not without the power to declare an act of Congress null and void for being unconstitutional or for having been exercised in grave abuse of discretion.⁶⁴ But our power rests on very narrow ground and is merely to annul a contravening act of Congress; it is not to supplant the decision of Congress nor to mandate what Congress itself should have done in the exercise of its legislative powers. Thus, contrary to what the petition in G.R. No. 197282 urges, we cannot compel COMELEC to call for special elections.

Furthermore, we have to bear in mind that the constitutional power of the COMELEC, in contrast with the power of Congress to call for, and to set the date of, elections, is limited to enforcing and administering all laws and regulations relative to the conduct of an election.⁶⁵ Statutorily, COMELEC has no power to call for the holding of special elections unless pursuant to a specific statutory grant. True, Congress did grant, via Sections 5 and 6 of BP 881, COMELEC with the power to postpone elections to another date. However, this power is limited to, and can only be exercised within, the specific terms and circumstances provided for in the law. We quote:

Section 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.

Section 6. Failure of election. - If, on account of force majeure, violence, terrorism, fraud, or other analogous causes the election in any polling place has not been held on the date fixed, or had been suspended before the hour fixed by law for the closing of the voting, or after the voting and during the preparation and the transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect, and in any of such cases the failure or suspension of election would affect the result of the election, the Commission shall, on the basis of a verified petition by any interested party and after due notice and hearing, call for the holding or continuation of the election not held, suspended or which resulted in a failure to elect on a date 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 of such postponement or suspension of the election or failure to elect. [Emphasis ours]

A close reading of Section 5 of BP 881 reveals that it is meant to address instances where elections have already been scheduled to take place but have to be postponed because of (a) violence, (b) terrorism, (c) loss or destruction of election paraphernalia or records, (d) force majeure, and (e) other analogous causes of such a nature that the holding of a free, orderly and honest election should become impossible in any political subdivision. Under the principle of ejusdem generis, the term "analogous causes" will be restricted to those unforeseen or unexpected events that prevent the holding of the scheduled elections. These "analogous causes" are further defined by the phrase "of such nature that the holding of a free, orderly and honest election should become impossible."

Similarly, Section 6 of BP 881 applies only to those situations where elections have already been scheduled but do not take place because of (a) force majeure, (b) violence, (c) terrorism, (d) fraud, or (e) other analogous causes the election in any polling place has not been held on the date fixed, or had been suspended before the hour fixed by law for the closing of the voting, or after the voting and during the preparation and the transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect. As in Section 5 of BP 881, Section 6 addresses instances where the elections do not occur or had to be suspended because of unexpected and unforeseen circumstances.

In the present case, the postponement of the ARMM elections is by law – i.e., by congressional policy – and is pursuant to the constitutional mandate of synchronization of national and local elections. By no stretch of the imagination can these reasons be given the same character as the circumstances contemplated by Section 5 or Section 6 of BP 881, which all pertain to extralegal causes that obstruct the holding of elections. Courts, to be sure, cannot enlarge the scope of a statute under the guise of interpretation, nor include situations not provided nor intended by the lawmakers.⁶⁶ Clearly, neither Section 5 nor Section 6 of BP 881 can apply to the present case and this Court has absolutely no legal basis to compel the COMELEC to hold special elections.

D. The Court has no power to shorten the terms of elective officials

Even assuming that it is legally permissible for the Court to compel the COMELEC to hold special elections, no legal basis likewise exists to rule that the newly elected ARMM officials shall hold office only until the ARMM officials elected in the synchronized elections shall have assumed office.

In the first place, the Court is not empowered to adjust the terms of elective officials. Based on the Constitution, the power to fix the term of office of elective officials, which can be exercised only in the case of barangay officials,⁶⁷ is specifically given to Congress. Even Congress itself may be denied such power, as shown when the Constitution shortened the terms of twelve Senators obtaining the least votes,⁶⁸ and extended the terms of the President and the Vice-President⁶⁹ in order to synchronize elections; Congress was not granted this same power. The settled rule is that terms fixed by the Constitution cannot be changed by mere statute.⁷⁰ More particularly, not even Congress and certainly not this Court, has the authority to fix the terms of elective local officials in the ARMM for less, or more, than the constitutionally mandated three years⁷¹ as this tinkering would directly contravene Section 8, Article X of the Constitution as we ruled in Osmena.

Thus, in the same way that the term of elective ARMM officials cannot be extended through a holdover, the term cannot be shortened by putting an expiration date earlier than the three (3) years that the Constitution itself commands. This is what will happen – a term of less than two years – if a call for special elections shall prevail. In sum, while synchronization is achieved, the result is at the cost of a violation of an express provision of the Constitution.

Neither we nor Congress can opt to shorten the tenure of those officials to be elected in the ARMM elections instead of acting on their term (where the "term" means the time during which the officer may claim to hold office as of right and fixes the interval after which the several incumbents shall succeed one another, while the "tenure" represents the term during which the incumbent actually holds the office).⁷² As with the fixing of the elective term, neither Congress nor the Court has any legal basis to shorten the tenure of elective ARMM officials. They would commit an unconstitutional act and gravely abuse their discretion if they do so.

E. The President’s Power to Appoint OICs

The above considerations leave only Congress’ chosen interim measure – RA No. 10153 and the appointment by the President of OICs to govern the ARMM during the pre-synchronization period pursuant to Sections 3, 4 and 5 of this law – as the only measure that Congress can make. This choice itself, however, should be examined for any attendant constitutional infirmity.

At the outset, the power to appoint is essentially executive in nature, and the limitations on or qualifications to the exercise of this power should be strictly construed; these limitations or qualifications must be clearly stated in order to be recognized.⁷³ The appointing power is embodied in Section 16, Article VII of the Constitution, which states:

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 ours]

This provision classifies into four groups the officers that the President can appoint. These are:

First, the heads of the executive departments; ambassadors; other public ministers and consuls; officers of the Armed Forces of the Philippines, from the rank of colonel or naval captain; and other officers whose appointments are vested in the President in this Constitution;

Second, all other officers of the government whose appointments are not otherwise provided for by law;

Third, those whom the President may be authorized by law to appoint; and

Fourth, officers lower in rank whose appointments the Congress may by law vest in the President alone.⁷⁴

Since the President’s authority to appoint OICs emanates from RA No. 10153, it falls under the third group of officials that the President can appoint pursuant to Section 16, Article VII of the Constitution. Thus, the assailed law facially rests on clear constitutional basis.

If at all, the gravest challenge posed by the petitions to the authority to appoint OICs under Section 3 of RA No. 10153 is the assertion that the Constitution requires that the ARMM executive and legislative officials to be "elective and representative of the constituent political units." This requirement indeed is an express limitation whose non-observance in the assailed law leaves the appointment of OICs constitutionally defective.

After fully examining the issue, we hold that this alleged constitutional problem is more apparent than real and becomes very real only if RA No. 10153 were to be mistakenly read as a law that changes the elective and representative character of ARMM positions. RA No. 10153, however, does not in any way amend what the organic law of the ARMM (RA No. 9054) sets outs in terms of structure of governance. What RA No. 10153 in fact only does is to "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." This power is far different from appointing elective ARMM officials for the abbreviated term ending on the assumption to office of the officials elected in the May 2013 elections.

As we have already established in our discussion of the supermajority and plebiscite requirements, the legal reality is that RA No. 10153 did not amend RA No. 9054. RA No. 10153, in fact, provides only for synchronization of elections and for the interim measures that must in the meanwhile prevail. And this is how RA No. 10153 should be read – in the manner it was written and based on its unambiguous facial terms.⁷⁵ Aside from its order for synchronization, it is purely and simply an interim measure responding to the adjustments that the synchronization requires.

Thus, the appropriate question to ask is whether the interim measure is an unreasonable move for Congress to adopt, given the legal situation that the synchronization unavoidably brought with it. In more concrete terms and based on the above considerations, given the plain unconstitutionality of providing for a holdover and the unavailability of constitutional possibilities for lengthening or shortening the term of the elected ARMM officials, is the choice of the President’s power to appoint – for a fixed and specific period as an interim measure, and as allowed under Section 16, Article VII of the Constitution – an unconstitutional or unreasonable choice for Congress to make?

Admittedly, the grant of the power to the President under other situations or where the power of appointment would extend beyond the adjustment period for synchronization would be to foster a government that is not "democratic and republican." For then, the people’s right to choose the leaders to govern them may be said to be systemically withdrawn to the point of fostering an undemocratic regime. This is the grant that would frontally breach the "elective and representative" governance requirement of Section 18, Article X of the Constitution.

But this conclusion would not be true under the very limited circumstances contemplated in RA No. 10153 where the period is fixed and, more importantly, the terms of governance – both under Section 18, Article X of the Constitution and RA No. 9054 – will not systemically be touched nor affected at all. To repeat what has previously been said, RA No. 9054 will govern unchanged and continuously, with full effect in accordance with the Constitution, save only for the interim and temporary measures that synchronization of elections requires.

Viewed from another perspective, synchronization will temporarily disrupt the election process in a local community, the ARMM, as well as the community’s choice of leaders, but this will take place under a situation of necessity and as an interim measure in the manner that interim measures have been adopted and used in the creation of local government units⁷⁶ and the adjustments of sub-provinces to the status of provinces.⁷⁷ These measures, too, are used in light of the wider national demand for the synchronization of elections (considered vis-à-vis the regional interests involved). The adoption of these measures, in other words, is no different from the exercise by Congress of the inherent police power of the State, where one of the essential tests is the reasonableness of the interim measure taken in light of the given circumstances.

Furthermore, the "representative" character of the chosen leaders need not necessarily be affected by the appointment of OICs as this requirement is really a function of the appointment process; only the "elective" aspect shall be supplanted by the appointment of OICs. In this regard, RA No. 10153 significantly seeks to address concerns arising from the appointments by providing, under Sections 3, 4 and 5 of the assailed law, concrete terms in the Appointment of OIC, the Manner and Procedure of Appointing OICs, and their Qualifications.

Based on these considerations, we hold that RA No. 10153 – viewed in its proper context – is a law that is not violative of the Constitution (specifically, its autonomy provisions), and one that is reasonable as well under the circumstances.

VI. Other Constitutional Concerns

Outside of the above concerns, it has been argued during the oral arguments that upholding the constitutionality of RA No. 10153 would set a dangerous precedent of giving the President the power to cancel elections anywhere in the country, thus allowing him to replace elective officials with OICs.

This claim apparently misunderstands that an across-the-board cancellation of elections is a matter for Congress, not for the President, to address. It is a power that falls within the powers of Congress in the exercise of its legislative powers. Even Congress, as discussed above, is limited in what it can legislatively undertake with respect to elections.

If RA No. 10153 cancelled the regular August 2011 elections, it was for a very specific and limited purpose – the synchronization of elections. It was a temporary means to a lasting end – the synchronization of elections. Thus, RA No. 10153 and the support that the Court gives this legislation are likewise clear and specific, and cannot be transferred or applied to any other cause for the cancellation of elections. Any other localized cancellation of elections and call for special elections can occur only in accordance with the power already delegated by Congress to the COMELEC, as above discussed.

Given that the incumbent ARMM elective officials cannot continue to act in a holdover capacity upon the expiration of their terms, and this Court cannot compel the COMELEC to conduct special elections, the Court now has to deal with the dilemma of a vacuum in governance in the ARMM.

To emphasize the dire situation a vacuum brings, it should not be forgotten that a period of 21 months – or close to 2 years – intervenes from the time that the incumbent ARMM elective officials’ terms expired and the time the new ARMM elective officials begin their terms in 2013. As the lessons of our Mindanao history – past and current – teach us, many developments, some of them critical and adverse, can transpire in the country’s Muslim areas in this span of time in the way they transpired in the past.⁷⁸ Thus, it would be reckless to assume that the presence of an acting ARMM Governor, an acting Vice-Governor and a fully functioning Regional Legislative Assembly can be done away with even temporarily. To our mind, the appointment of OICs under the present circumstances is an absolute necessity.

Significantly, the grant to the President of the power to appoint OICs to undertake the functions of the elective members of the Regional Legislative Assembly is neither novel nor innovative. We hark back to our earlier pronouncement in Menzon v. Petilla, etc., et al.:⁷⁹

It may be noted that under Commonwealth Act No. 588 and the Revised Administrative Code of 1987, the President is empowered to make temporary appointments in certain public offices, in case of any vacancy that may occur. Albeit both laws deal only with the filling of vacancies in appointive positions. However, in the absence of any contrary provision in the Local Government Code and in the best interest of public service, we see no cogent reason why the procedure thus outlined by the two laws may not be similarly applied in the present case. The respondents contend that the provincial board is the correct appointing power. This argument has no merit. As between the President who has supervision over local governments as provided by law and the members of the board who are junior to the vice-governor, we have no problem ruling in favor of the President, until the law provides otherwise.

A vacancy creates an anomalous situation and finds no approbation under the law for it deprives the constituents of their right of representation and governance in their own local government.

In a republican form of government, the majority rules through their chosen few, and if one of them is incapacitated or absent, etc., the management of governmental affairs is, to that extent, may be hampered. Necessarily, there will be a consequent delay in the delivery of basic services to the people of Leyte if the Governor or the Vice-Governor is missing.⁸⁰ (Emphasis ours.)

As in Menzon, leaving the positions of ARMM Governor, Vice Governor, and members of the Regional Legislative Assembly vacant for 21 months, or almost 2 years, would clearly cause disruptions and delays in the delivery of basic services to the people, in the proper management of the affairs of the regional government, and in responding to critical developments that may arise. When viewed in this context, allowing the President in the exercise of his constitutionally-recognized appointment power to appoint OICs is, in our judgment, a reasonable measure to take.

B. Autonomy in the ARMM

It is further argued that while synchronization may be constitutionally mandated, it cannot be used to defeat or to impede the autonomy that the Constitution granted to the ARMM. Phrased in this manner, one would presume that there exists a conflict between two recognized Constitutional mandates – synchronization and regional autonomy – such that it is necessary to choose one over the other.

We find this to be an erroneous approach that violates a basic principle in constitutional construction – ut magis valeat quam pereat: that the Constitution is to be interpreted as a whole,⁸¹ and one mandate should not be given importance over the other except where the primacy of one over the other is clear.⁸² We refer to the Court’s declaration in Ang-Angco v. Castillo, et al.,⁸³ thus:

A provision of the constitution should not be construed in isolation from the rest. Rather, the constitution must be interpreted as a whole, and apparently, conflicting provisions should be reconciled and harmonized in a manner that may give to all of them full force and effect. [Emphasis supplied.]

Synchronization is an interest that is as constitutionally entrenched as regional autonomy. They are interests that this Court should reconcile and give effect to, in the way that Congress did in RA No. 10153 which provides the measure to transit to synchronized regional elections with the least disturbance on the interests that must be respected. Particularly, regional autonomy will be respected instead of being sidelined, as the law does not in any way alter, change or modify its governing features, except in a very temporary manner and only as necessitated by the attendant circumstances.

Elsewhere, it has also been argued that the ARMM elections should not be synchronized with the national and local elections in order to maintain the autonomy of the ARMM and insulate its own electoral processes from the rough and tumble of nationwide and local elections. This argument leaves us far from convinced of its merits.

As heretofore mentioned and discussed, while autonomous regions are granted political autonomy, the framers of the Constitution never equated autonomy with independence. The ARMM as a regional entity thus continues to operate within the larger framework of the State and is still subject to the national policies set by the national government, save only for those specific areas reserved by the Constitution for regional autonomous determination. As reflected during the constitutional deliberations of the provisions on autonomous regions:

Mr. Bennagen. xxx We do not see here a complete separation from the central government, but rather an efficient working relationship between the autonomous region and the central government. We see this as an effective partnership, not a separation.

Mr. Romulo. Therefore, complete autonomy is not really thought of as complete independence.

Mr. Ople. We define it as a measure of self-government within the larger political framework of the nation.⁸⁴ [Emphasis supplied.]

This exchange of course is fully and expressly reflected in the above-quoted Section 17, Article X of the Constitution, and by the express reservation under Section 1 of the same Article that autonomy shall be "within the framework of this Constitution and the national sovereignty as well as the territorial integrity of the Republic of the Philippines."

Interestingly, the framers of the Constitution initially proposed to remove Section 17 of Article X, believing it to be unnecessary in light of the enumeration of powers granted to autonomous regions in Section 20, Article X of the Constitution. Upon further reflection, the framers decided to reinstate the provision in order to "make it clear, once and for all, that these are the limits of the powers of the autonomous government. Those not enumerated are actually to be exercised by the national government[.]"⁸⁵ Of note is the Court’s pronouncement in Pimentel, Jr. v. Hon. Aguirre⁸⁶ which we quote:

Under the Philippine concept of local autonomy, the national government has not completely relinquished all its powers over local governments, including autonomous regions. Only administrative powers over local affairs are delegated to political subdivisions. The purpose of the delegation is to make governance more directly responsive and effective at the local levels. In turn, economic, political and social development at the smaller political units are expected to propel social and economic growth and development. But to enable the country to develop as a whole, the programs and policies effected locally must be integrated and coordinated towards a common national goal. Thus, policy-setting for the entire country still lies in the President and Congress. [Emphasis ours.]

In other words, the autonomy granted to the ARMM cannot be invoked to defeat national policies and concerns. Since the synchronization of elections is not just a regional concern but a national one, the ARMM is subject to it; the regional autonomy granted to the ARMM cannot be used to exempt the region from having to act in accordance with a national policy mandated by no less than the Constitution.

Conclusion

Congress acted within its powers and pursuant to a constitutional mandate – the synchronization of national and local elections – when it enacted RA No. 10153. This Court cannot question the manner by which Congress undertook this task; the Judiciary does not and cannot pass upon questions of wisdom, justice or expediency of legislation.⁸⁷ As judges, we can only interpret and apply the law and, despite our doubts about its wisdom, cannot repeal or amend it.⁸⁸

Nor can the Court presume to dictate the means by which Congress should address what is essentially a legislative problem. It is not within the Court’s power to enlarge or abridge laws; otherwise, the Court will be guilty of usurping the exclusive prerogative of Congress.⁸⁹ The petitioners, in asking this Court to compel COMELEC to hold special elections despite its lack of authority to do so, are essentially asking us to venture into the realm of judicial legislation, which is abhorrent to one of the most basic principles of a republican and democratic government – the separation of powers.

The petitioners allege, too, that we should act because Congress acted with grave abuse of discretion in enacting RA No. 10153. Grave abuse of discretion is such capricious and whimsical exercise of judgment that is patent and gross as to amount to an evasion of a positive duty or to a virtual refusal to perform a duty enjoined by law or to act at all in contemplation of the law as where the power is exercised in an arbitrary and despotic manner by reason of passion and hostility.⁹⁰

We find that Congress, in passing RA No. 10153, acted strictly within its constitutional mandate. Given an array of choices, it acted within due constitutional bounds and with marked reasonableness in light of the necessary adjustments that synchronization demands. Congress, therefore, cannot be accused of any evasion of a positive duty or of a refusal to perform its duty. We thus find no reason to accord merit to the petitioners’ claims of grave abuse of discretion.

On the general claim that RA No. 10153 is unconstitutional, we can only reiterate the established rule that every statute is presumed valid.⁹¹ Congress, thus, has in its favor the presumption of constitutionality of its acts, and the party challenging the validity of a statute has the onerous task of rebutting this presumption.⁹² Any reasonable doubt about the validity of the law should be resolved in favor of its constitutionality.⁹³ As this Court declared in Garcia v. Executive Secretary:⁹⁴

The policy of the courts is to avoid ruling on constitutional questions and to presume that the acts of the political departments are valid in the absence of a clear and unmistakable showing to the contrary. To doubt is to sustain. This presumption is based on the doctrine of separation of powers which enjoins upon each department a becoming respect for the acts of the other departments. The theory is that as the joint act of Congress and the President of the Philippines, a law has been carefully studied and determined to be in accordance with the fundamental law before it was finally enacted.⁹⁵ [Emphasis ours.]

Given the failure of the petitioners to rebut the presumption of constitutionality in favor of RA No. 10153, we must support and confirm its validity.

WHEREFORE, premises considered, we DISMISS the consolidated petitions assailing the validity of RA No. 10153 for lack of merit, and UPHOLD the constitutionality of this law. We likewise LIFT the temporary restraining order we issued in our Resolution of September 13, 2011. No costs.

SO ORDERED.

ARTURO D. BRION
Associate Justice

WE CONCUR:

I join the dissent of J. Velasco with respect to the appointment
of the OIC Governor and vote to hold the law as unconstitutional
RENATO C. CORONA
Chief Justice

See Dissenting Opinion ANTONIO T. CARPIO Associate Justice	I join the dissent of J. Carpio but disagree on the power of the Pres. to appoint OIC-Governor of ARMM PRESBITERO J. VELASCO, JR. Associate Justice
I join the dissent of Justice Velasco TERESITA J. LEONARDO-DE CASTRO Associate Justice	DIOSDADO M. PERALTA Associate Justice
LUCAS P. BERSAMIN Associate Justice	MARIANO C. DEL CASTILLO Associate Justice
I join the dissent of J. Velasco ROBERTO A. ABAD Associate Justice	MARTIN S. VILLARAMA, JR. Associate Justice
I join the dissent of J. Carpio JOSE PORTUGAL PEREZ Associate Justice	I join the dissent of J. Carpio JOSE CATRAL MENDOZA Associate Justice
MARIA LOURDES P. A. SERENO Associate Justice	BIENVENIDO L. REYES Associate Justice

ESTELA M. PERLAS-BERNABE
Associate Justice

C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court.

RENATO C. CORONA
Chief Justice

Footnotes

¹ Entitled "An act fixing the date of the plebiscite for the approval of the amendments to Republic Act No. 6734 and setting the date of the regular elections for elective officials of the Autonomous Region in Muslim Mindanao on the last Monday of November 2001, amending for the purpose 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, entitled ‘An Act Providing for the Autonomous Region in Muslim Mindanao,’ as amended," and for other purposes.

² Entitled "An Act amending fixing the Date or Regular elections for Elective Officials of the Autonomous Region in Muslim Mindanao pursuant to 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, entitled ‘An Act Providing for an Organic Act for the Autonomous Region in Muslim Mindanao, as amended"

³ Filed by petitioners Datu Michael Abas Kida, in his personal capacity, and in representation of Maguindanao Federation of Autonomous Irrigators Association, Inc., Hadji Muhmina Usman, John Anthony L. Lim, Jamilon T. Odin, Asrin Timbol Jaiyari, Mujib M. Kalang, Alih Al-Saidi J. Sapi-e, Kessar Damsie Abdil, and Bassam Aluh Saupi.

⁴ Petition for Prohibition with Very Urgent Prayer for the Issuance of a Writ of Preliminary Injunction and/or Temporary Restraining Order dated April 11, 2011 was filed against Sixto Brillantes, as Chairperson of COMELEC, to challenge the effectivity of RA No. 9333 for not having been submitted to a plebiscite. Since RA No. 9333 is inoperative, any other law seeking to amend it is also null and void.

⁵ With Prayer for the Issuance of a Temporary Restraining Order and/or Writs of Preliminary Prohibitive and Mandatory Injunction dated June 30, 2011.

⁶ With Extremely Urgent Application for the Issuance of a Status Quo Order and Writ of Preliminary Mandatory Injunction dated July 1, 2011.

⁷ With Prayer for the issuance of a Temporary Restraining Order dated July 12, 2011.

⁸ With Injunction and Preliminary Injunction with prayer for temporary restraining order dated July 11, 2011.

⁹ With Prayer for Temporary Restraining Order and the Issuance of Writs of Preliminary Injunction, Both Prohibitory and Mandatory dated July 1, 2011.

¹⁰ Section 1. The first elections of Members of the Congress under this Constitution shall be held on the second Monday of May, 1987.

The first local elections shall be held on a date to be determined by the President, which may be simultaneous with the election of the Members of the Congress. It shall include the election of all Members of the city or municipal councils in the Metropolitan Manila area.

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 election in 1992, the first twelve obtaining the highest number of votes shall serve for six years and the remaining twelve for three years.

xxx

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 President and Vice-President under this Constitution shall be held on the second Monday of May, 1992. [emphasis ours]

¹¹ To illustrate, while Section 8, Article X of the Constitution fixes the term of office of elective local officials at three years, under the above-quoted provisions, the terms of the incumbent local officials who were elected in January 1988, which should have expired on February 2, 1991, were fixed to expire at noon of June 30, 1992. In the same vein, the terms of the incumbent President and Vice President who were elected in February 1986 were extended to noon of June 30, 1992. On the other hand, in order to synchronize the elections of the Senators, who have six-year terms, the twelve Senators who obtained the lowest votes during the 1992 elections were made to serve only half the time of their terms.

¹² Joaquin Bernas, S.J., The 1987 Constitution of the Republic of the Philippines: A Commentary (1996 ed.), p. 1199, citing Records of the Constitutional Commission, Vol. V, p. 429-4.

¹³ MR. MAAMBONG. For purposes of identification, I will now read a section which we will temporarily indicate as Section 14. It reads: "THE SENATORS, MEMBERS OF THE HOUSE OF REPRESENTATIVES AND THE LOCAL OFFICIALS ELECTED IN THE FIRST ELECTION SHALL SERVE FOR FIVE YEARS, TO EXPIRE AT NOON OF JUNE 1992."

This was presented by Commissioner Davide, so may we ask that Commissioner Davide be recognized.

THE PRESIDING OFFICER (Mr. Rodrigo). Commissioner Davide is recognized.

MR. DAVIDE. Before going to the proposed amendment, I would only state that in view of the action taken by the Commission on Section 2 earlier, I am formulating a new proposal. It will read as follows: "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."

I proposed this because of the proposed section of the Article on Transitory Provisions giving a term to the incumbent President and Vice-President until 1992. Necessarily then, since the term provided by the Commission for Members of the Lower House and for local officials is three years, if there will be an election in 1987, the next election for said officers will be in 1990, and it would be very close to 1992. We could never attain, subsequently, any synchronization of election which is once every three years.

So under my proposal we will be able to begin actual synchronization in 1992, and consequently, we should not have a local election or an election for Members of the Lower House in 1990 for them to be able to complete their term of three years each. And if we also stagger the Senate, upon the first election it will result in an election in 1993 for the Senate alone, and there will be an election for 12 Senators in 1990. But for the remaining 12 who will be elected in 1987, if their term is for six years, their election will be in 1993. So, consequently we will have elections in 1990, in 1992 and in 1993. The later election will be limited to only 12 Senators and of course to local officials and the Members of the Lower House. But, definitely, thereafter we can never have an election once every three years, therefore defeating the very purpose of the Commission when we adopted the term of six years for the President and another six years for the Senators with the possibility of staggering with 12 to serve for six years and 12 for three years insofar as the first Senators are concerned. And so my proposal is the only way to effect the first synchronized election which would mean, necessarily, a bonus of two years to the Members of the Lower House and a bonus of two years to the local elective officials.

THE PRESIDING OFFICER (Mr. Rodrigo). What does the committee say?

MR. DE CASTRO. Mr. Presiding Officer.

THE PRESIDING OFFICER (Mr. Rodrigo). Commissioner de Castro is recognized.

MR. DE CASTRO. Thank you.

During the discussion on the legislative and the synchronization of elections, I was the one who proposed that in order to synchronize the elections every three years, which the body approved — the first national and local officials to be elected in 1987 shall continue in office for five years, the same thing the Honorable Davide is now proposing. That means they will all serve until 1992, assuming that the term of the President will be for six years and continue beginning in 1986. So from 1992, we will again have national, local and presidential elections. This time, in 1992, the President shall have a term until 1998 and the first twelve Senators will serve until 1998, while the next 12 shall serve until 1995, and then the local officials elected in 1992 will serve until 1995. From then on, we shall have an election every three years.

So, I will say that the proposition of Commissioner Davide is in order, if we have to synchronize our elections every three years which was already approved by the body.

Thank you, Mr. Presiding Officer.

x x x           x x x          x x x

MR. GUINGONA. What will be synchronized, therefore, is the election of the incumbent President and Vice-President in 1992.

MR. DAVIDE. Yes.

MR. GUINGONA. Not the reverse. Will the committee not synchronize the election of the Senators and local officials with the election of the President?

MR. DAVIDE. It works both ways, Mr. Presiding Officer. The attempt here is on the assumption that the provision of the Transitory Provisions on the term of the incumbent President and Vice-President would really end in 1992.

MR. GUINGONA. Yes.

MR. DAVIDE. In other words, there will be a single election in 1992 for all, from the President up to the municipal officials. [emphasis ours] (V Record of the Constitutional Commission, pp. 429-431; October 3, 1986)

¹⁴ G.R. Nos. 100318, 100308, 100417 and 100420, July 30, 1991, 199 SCRA 750, 758.

¹⁵ J.M. Tuason & Co., Inc. v. Land Tenure Administration, G.R. No. 21064, February 18, 1970, 31 SCRA 413; Ordillo v. Commission on Elections, 192 SCRA 100 (1990).

¹⁶ 271 SCRA 633, 668 (1997); Occena v. Commission on Elections, G.R. No. 52265, January 28, 1980, 95 SCRA 755.

¹⁷ Webster’s Third New International Dictionary Unabridged, p.1327 (1993).

¹⁸ Section 26(2) 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.

¹⁹ G. R. No. 115455, August 25, 1994, 235 SCRA 630.

²⁰ A copy of the letter that the President wrote to Honorable Feliciano Belmonte, Jr. as Speaker of the House of Representatives dated March 4, 2011 is reproduced below:

OFFICE OF THE PRESIDENT
of the Philippines
Malacañang

14 March 2011

HON. FELICIANO R. BELMONTE, JR.
Speaker
House of Representatives
Quezon City

Dear Speaker Belmonte:

Pursuant to the provisions of Article VI, Section 26 (2) of the 1987 Constitution, I hereby certify to the necessity of the immediate enactment of House Bill No. 4146, entitled:

"AN ACT PROVIDING FOR THE SYNCHRONIZATION OF THE ELECTIONS AND THE TERM OF OFFICE OF THE ELECTIVE OFFICIALS OF THE AUTONOMOUS REGION IN MUSLIM MINDANAO (ARMM) WITH THOSE OF THE NATIONAL AND OTHER LOCAL OFFICIALS, AMENDING FOR THE PURPOSE REPUBLIC ACT NO. 9333, ENTITLED ‘AN ACT FIXING THE DATE FOR REGULAR ELECTIONS FOR ELECTIVE OFFICIALS OF THE AUTONOMOUS REGION IN MUSLIM MINDANAO’, AND FOR OTHER PURPOSES"

to address the urgent need to protect and strengthen ARMM’s autonomy by synchronizing its elections with the regular elections of national and other local officials, to ensure that the on-going peace talks in the region will not be hindered, and to provide a mechanism to institutionalize electoral reforms in the interim, all for the development, peace and security of the region.

Best wishes.

Very truly yours,

(Sgd.) BENIGNO SIMEON C. AQUINO III

cc: HON. JUAN PONCE ENRILE

Senate President

Philippine Senate

Pasay City

Taken from: http://www.congress.gov.ph/download/congrec/15th/1st/15C_1RS-64b-031611.pdf. Last accessed on September 26, 2011.

²¹ See Gutierrez v. House of Representatives, G.R. No. 193459, February 15, 2011.

²² Tolentino v. Secretary of Finance, G.R. No. 115455, October 30, 1995.

²³ Tolentino, id., citing 1 J. G. Sutherland, Statutes and Statutory Construction §10.04, p. 282 (1972).

²⁴ Section 7, Article XIX of RA No. 6734 states: "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."

²⁵ Entitled "An Act Providing for the Date of Regular Elections for Regional Governor, Regional Vice-Governor and Members of the Regional Legislative Assembly for the Autonomous Region in Muslim Mindanao and for other purposes," which fixed the date of the ARMM elections on the second Monday after the Muslim month of Ramadhan.

²⁶ Entitled "An Act Changing the Date of Elections for the Elective Officials of the Autonomous Region for Muslim Mindanao, Amending for the Purpose Section One of Republic Act Numbered Seventy-Six Hundred and Forty-Seven Entitled ‘An Act Providing for the Date of the Regular Elections for Regional Governor, Regional Vice-Governor and Members of the Regional Legislative Assembly for the Autonomous Region in Muslim Mindanao and for other purposes", which changed the date of the ARMM elections to the second Monday of March, 1993 and every three (3) years thereafter.

²⁷ Entitled "An Act Providing for the Date of the Regular Elections of Regional Governor, Regional Vice-Governor and Members of the Regional Legislative Assembly of the Autonomous Region in Muslim Mindanao (ARMM) Further Amending for the Purpose Republic Act No. 7647 entitled ‘An Act Providing for the Date of Regular Elections for Regional Governor, Regional Vice-Governor and Members of the Regional Legislative Assembly for the Autonomous Region in Muslim Mindanao and for other purposes,’ As Amended, and for other purposes", which moved the regional elections to the second Monday of September and every three (3) years thereafter.

²⁸ Entitled "An Act Resetting the Regular Elections for the Elective Officials of the Autonomous Region in Muslim Mindanao Provided for Under Republic Act No. 8746 and for other purposes", which reset the regional elections, scheduled on September 13, 1999, to the second Monday of September 2000.

²⁹ Entitled "An Act Resetting the Regular Elections for Elective Officials of the Autonomous Region in Muslim Mindanao to the Second Monday of September 2001, Amending for the Purpose Republic Act No. 8953", which reset the May 2001 elections in ARMM to September 2001.

³⁰ Entitled "An Act Fixing the Date of the Plebiscite for the Approval of the Amendments to Republic Act No. 6734 and setting the date of the regular elections for elective officials of the Autonomous Region in Muslim Mindanao on the Last Monday of November 2001, Amending for the Purpose 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, Entitled ‘An Act Providing for the Autonomous Region in Muslim Mindanao,’ as amended," and For Other Purposes."

³¹ Entitled "An Act Fixing the Date of Regular Elections for Elective Officials of the Autonomous Region in Muslim Mindanao Pursuant to 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, Entitled ‘An Act Providing for an Organic Act for the Autonomous Region in Muslim Mindanao’, as Amended," which rescheduled the ARMM regional elections scheduled for the last Monday of November 2004 to "the second Monday of August 2005."

³² 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.

³³ G.R. No. 127383, August 18, 2005, 467 SCRA 280.

³⁴ Id. at 295-297, citing Duarte v. Dade, 32 Phil. 36 (1915); Lewis Southerland on Statutory Construction, Vol. 1, Section 244, pp. 456-457.

³⁵ This has been established by the following exchange during the Constitutional Commission debates:

FR. BERNAS. So, the questions I have raised so far with respect to this organic act are: What segment of the population will participate in the plebiscite? In what capacity would the legislature be acting when it passes this? Will it be a constituent assembly or merely a legislative body? What is the nature, therefore, of this organic act in relation to ordinary statutes and the Constitution? Finally, if we are going to amend this organic act, what process will be followed?

MR. NOLLEDO. May I answer that, please, in the light of what is now appearing in our report.

First, only the people who are residing in the units composing the region should be allowed to participate in the plebiscite. Second, the organic act has the character of a charter passed by Congress, not as a constituent assembly, but as an ordinary legislature and, therefore, the organic act will still be subject to amendments in the ordinary legislative process as now constituted, unless the Gentleman has another purpose.

FR. BERNAS. But with plebiscite again. [Emphasis ours.];

III Record of the Constitutional Commission, pp.182-183; August 11, 1986.

³⁶ 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.

³⁷ See discussions at pp. 14-15.

³⁸ Section 7. 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 effect until their successors are elected and qualified. [emphasis ours]

³⁹ Fernando, The Philippine Constitution, pp. 175-176 (1974).

⁴⁰ Id. at 177; citing the concurring opinion of Justice Jose P. Laurel in Schneckenburger v. Moran, 63 Phil. 249, 266 (1936).

⁴¹ Vera v. Avelino, 77 Phil. 192, 212 (1946).

⁴² Ople v. Torres, et al., 354 Phil. 948 (1998); see concurring opinion of Justice Jose P. Laurel in Schneckenburger v. Moran, supra note 40, at 266.

⁴³ State ex rel. Green v. Collison, 39 Del 245, cited in Defensor-Santiago, Constitutional Law, Vol. 1 (2000 ed.)

⁴⁴ Sec. 15. There shall be created autonomous regions in Muslim Mindanao and in the Cordilleras consisting of provinces, cities and municipalities, and geographical areas sharing common and distinctive historical and cultural heritage, economic and social structures, and other relevant characteristics within the framework of this Constitution and the national sovereignty as well as the territorial integrity of the Republic of the Philippines.

⁴⁵ An empire within an empire.

⁴⁶ Bernas, Joaquin, Constitutional Structure and Powers of Government Notes and Cases Part I, 2005 ed., p. 1249.

⁴⁷ Such as the addition of sectoral representatives in the House of Representatives (paragraph 2, Section 5, of Article VI of the Constitution), and the validation of the power of the Presidential Commission on Good Government to issue sequestration, freeze orders, and the provisional takeover orders of ill-gotten business enterprises, embodied in Section 26 of the Transitory Provisions.

⁴⁸ RA No. 9495 which created the Province of Quezon del Sur Province was rejected by the voters of Quezon Province in the plebiscite of November 13, 2008.

⁴⁹ RA No. 9355.

⁵⁰ Section 50, RA No. 9355 and Section 52 of RA No. 9495.

⁵¹ Section 462, RA No. 7160.

⁵² Supra note 14.

⁵³ In Mutuc v. Commission on Elections [146 Phil. 798 (1970)] the Court held that, "The three departments of government in the discharge of the functions with which it is [sic] entrusted have no choice but to yield obedience to [the Constitution’s] commands. Whatever limits it imposes must be observed." 146 Phil. 798 (1970).

⁵⁴ In J.M. Tuason & Co., Inc. v. Land Tenure Administration [No. L-21064, February 18, 1970, 31 SCRA 413, 423], the Court, speaking through former Chief Justice Enrique, stated: As the Constitution is not primarily a lawyer’s document, it being essential for the rule of law to obtain that it should ever be present in the people’s consciousness, its language as much as possible should be understood in the sense they have in common use. What it says according to the text of the provision to be construed compels acceptance and negates the power of the courts to alter it, based on the postulate that the framers and the people mean what they say. Thus these are cases where the need for construction is reduced to a minimum.

⁵⁵ Tawang Multi-Purpose Cooperative v. La Trinidad Water District, G.R. No. 166471, March 22, 2011.

⁵⁶ Pimentel v. Ermita, G.R. No. 164978, October 13, 2005, citing Bernas, Joaquin, The 1987 Constitution of the Republic of the Philippines: A Commentary (1996 ed.) 768.

⁵⁷ 481 Phil. 661 (2004).

⁵⁸ G.R. No. 161984, February 21, 2007, 516 SCRA 403.

⁵⁹ G.R. No. 152295, July 9, 2011.

⁶⁰ Section 7. 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 Legislative 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.

⁶¹ Guekeko v. Santos, 76 Phil. 237 (1946).

⁶² Lozano v. Nograles, G.R. 187883, June 16, 2009, 589 SCRA 356.

⁶³ Ututalum v. Commission on Elections, No. L-25349, December 3, 1965, 15 SCRA 465.

⁶⁴ See CONSTITUTION, Article VIII, Section 1.

⁶⁵ See CONSTITUTION, Article IX (C), Section 2(1).

⁶⁶ Balagtas Multi-Purpose Cooperative, Inc. v. Court of Appeals, G.R. No. 159268, October 27, 2006, 505 SCRA 654, 663, citing Lapid v. CA, G.R. No. 142261, June 29, 2000, 334 SCRA 738, quoting Morales v. Subido, G.R. No. 29658, November 29, 1968, 26 SCRA 150.

⁶⁷ CONSTITUTION, Article X, Section 8.

⁶⁸ Article XVIII, 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.

⁶⁹ Article XVIII, 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.

⁷⁰ Cruz, Carlo. The Law of Public Officers, 2007 edition, p. 285, citing Mechem, Section 387.

⁷¹ Ponencia, p. 21.

⁷² See Topacio Nueno v. Angeles, 76 Phil. 12, 21-22 (1946); Alba, etc. v. Evangelista, etc., et al., 100 Phil. 683, 694 (1957); Aparri v. Court of Appeals, No. L-30057, January 31, 1984, 127 SCRA 231.

⁷³ Hon. Luis Mario M. General, Commissioner, National Police Commission v. Hon. Alejandro S. Urro, et al., G.R. No. 191560, March 29, 2011, citing Sarmiento III v. Mison, No. L-79974, December 17, 1987, 156 SCRA 549.

⁷⁴ Sarmiento III v. Mison, supra.

⁷⁵ If a statute is clear, plain and free from ambiguity, it must be given its literal meaning and applied without attempted interpretation. De Jesus v. Commission on Audit, 451 Phil. 812 (2003).

⁷⁶ Supra notes 47 and 48.

⁷⁷ Supra note 50.

⁷⁸ The after-effects of the Maguindanao massacre where the Ampatuans stand charged, the insurrection by the MILF and its various factions, and the on-going peace negotiations, among others, are immediately past and present events that the nation has to vigilant about.

⁷⁹ 274 Phil. 523 (1991).

⁸⁰ Id. at 532.

⁸¹ Macalintal v. Presidential Electoral Tribunal, G.R. No. 191618, November 23, 2010, 635 SCRA 783.

⁸² As noted under footnote 37.

⁸³ 118 Phil. 1468 (1963).

⁸⁴ Record of the Constitutional Commission, Vol. III, August 11, 1986, p. 179.

⁸⁵ Records of the Constitutional Commission, Vol. III, p. 560.

⁸⁶ 391 Phil. 84, 102 (2000).

⁸⁷ Angara v. Electoral Commission, 63 Phil. 139 (1936).

⁸⁸ Commissioner of Internal Revenue v. Santos, 343 Phil. 411, 427 (1997) citing Pangilinan v. Maglaya, 225 SCRA 511 (1993).

⁸⁹ Manotok IV v. Heirs of Homer L. Barque, G.R. Nos. 162335 and 162605, December 18, 2008, 574 SCRA 468, 581.

⁹⁰ Ligeralde v. Patalinghug, G.R. No. 168796, April 15, 2010, 618 SCRA 315.

⁹¹ Heirs of Juancho Ardona, etc., et al. v. Hon. Reyes, etc., et al., 210 Phil. 187, 207 (1983); Peralta v. Commission on Elections, Nos. L-47771, L-47803, L-47816, L-47767, L-47791 and L-47827, March 11, 1978, 82 SCRA 30; Ermita-Malate Hotel & Motel Operations Association, Inc. v. City Mayor of Manila, No. L-24693, July 31, 1967, 20 SCRA 849.

⁹² See Estrada v. Sandiganbayan, 421 Phil. 290 (2001); Heirs of Juancho Ardona, etc., et al. v. Hon. Reyes, etc., et al., supra; Peralta v. Commission on Elections, supra.

⁹³ Heirs of Juancho Ardona, etc., et al. v. Hon. Reyes, etc., et al., supra; Peralta v. Commission on Elections, supra.

⁹⁴ G.R. No. 100883, December 2, 1991, 204 SCRA 516.

⁹⁵ Id. at 523.

The Lawphil Project - Arellano Law Foundation

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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 Senate’s 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 Constitution’s requirement for the separate reading of bills and the advance distribution of their printed copies because the President’s 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 ARMM’s 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 President’s 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 President’s 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 President’s certification, namely, the "need to protect x x x ARMM’s autonomy x x x and provide mechanism to institutionalize electoral reforms," as "flimsy," falling short of the Constitution’s 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 President’s 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 President’s 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 President’s 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 Aquino’s 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 President’s 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 ARMM’s 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 provision’s 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 Constitution’s 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 altered"²⁹ 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 unit’s 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 ARMM’s 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 Osmeña 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 Osmeña 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 Constitution’s 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 State’s 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 T’boli 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 ARMM’s 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 OSG’s 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 government’s 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 ARMM’s 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 officials"⁶¹ 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 Osmeña 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)

Osmeña 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 Osmeña 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 Osmeña 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 legislature’s passage of RA 9164 is in accord with the Constitution’s 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, Osmeña 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 Court’s 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 provision’s 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 Court’s attention to the government’s 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 OSG’s 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 President’s 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 State’s 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 Constitution’s 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 Constitution’s 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 OSG’s 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 country’s 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 law’s adherence to the Constitution, not on the law’s supposed beneficial consequences. The laudable ends of legislative measures cannot justify the denial, even if temporal, of the sovereign people’s 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 administration’s 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

Footnotes

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."

⁵ Section 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.

⁶ Section 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.

¹² Petition (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.

¹⁴ Macalawi 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.

¹⁷ Petitioners 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 President’s certification is warranted because the right to suffrage is basic, thus falling under Tolentino’s 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, Tolentino’s 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).

²⁶ The 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 latter’s 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.

²⁹ "Section 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 city’s 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.

³⁵ Under 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).

⁴⁸ Section 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."

⁵⁰ Section 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.

⁵⁴ OSG 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."

⁵⁵ Section 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."

⁵⁶ This 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."

⁵⁷ Under 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)

⁵⁸ Under 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)

⁵⁹ A 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.

⁷² The Code’s 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).

⁷³ G.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.

⁷⁵ The 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.

⁷⁶ The 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).

The Lawphil Project - Arellano Law Foundation

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DISSENTING OPINION

VELASCO, JR., J.:

I join Justice Carpio’s dissent and agree that the "[C]ongress’ 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 State’s democratic and republican nature," 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.—In accordance with the intent and mandate of the Constitution and Republic Act No. 7166, entitled: "An Act Providing for Synchronized National and Local Elections and for Electoral Reforms, Authorizing Appropriations Therefor, and for Other Purposes", 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.—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.

SEC. 3. 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.

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 Carpio’s 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 "to hold special elections in the ARMM as soon as possible." On this, I am in full agreement with Justice Carpio’s dissent.

But unlike Justice Carpio’s 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. – (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 Osmeña v. COMELEC.² However, it must be noted that the issue in Osmeña 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 Osmeña 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 Osmeña, 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 Osmeña 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 "by the way"––i.e., incidentally or collaterally, and not directly upon the question before it––is not a binding precedent,³ the obiter dictum of the Court in Osmeña 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 Osmeña 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 Osmeña and the instant petition reveals an ocean of dissimilarities. In Osmeña, 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 Osmeña ruling is not a precedent to the instant petitions.

Further, the Court in Osmeña 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, Citing Minn.- State v. McIntosh, 122 N.W. 462, Emphasis supplied)

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 Osmeña and so, with more reason, they are inapplicable to the present case.

The passage quoted from CJS was based on State v. Clark⁵ and State v. McIntosh.⁶ The 1913 case of State v. Clark, however, does not have the same factual milieu as Osmeña 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 Osmeña 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 Osmeña 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 Osmeña v. COMELEC. The annotation quoted from 67 CJS 379 in Osmeña 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 Osmeña) 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 "holding over," the CJS provides:

The term "holding over" 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 "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"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. – (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, "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 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."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 Osmeña 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 Osmeña). 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 Osmeña v. COMELEC does not apply to the case at bar, since the facts of the cases from which the quoted sentence was culled––Gemmer v. State,¹⁷ State ex rel. Hensley v. Plasters,¹⁸ and Commonwealth v. Gamble¹⁹ ––are not the same as either the facts of Osmeña 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 state’s 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 Osmeña 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 "the 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." 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 "absolutely necessary and unavoidable to keep functioning essential government services."

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 "elective and representative," 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 "elective and representative." 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 "the people’s 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 ‘elective and representative’ governance requirement of Section 18 Article X of the Constitution." However, the ponencia evades the application of its own observation to the present case on the ground that "this 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."

Clearly, the ponencia has discounted the consequences of this supposedly "limited" enroachment of the President into the very core of the "elective" and "representative" 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 President’s power of "general supervision" over local governments in Sec. 4, Art. X of the Constitution, as it is basic that "general supervision" 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 President’s power over local governments to one of general supervision. It reads as follows:

"Sec. 4. The President of the Philippines shall exercise general supervision over local governments. x x x"

This provision has been interpreted to exclude the power of control. In Mondano v. Silvosa, the Court contrasted the President’s 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:

"x 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."

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. "Supervisory 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," 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 President’s 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 Constitution––that the offices of the executive and legislative ARMM officials be "elective" and "representative."

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

Footnotes

¹ 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, entitled ‘An Act Providing For The Autonomous Region in Muslim Mindanao, as Amended.’"

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 Conn. 537.

⁶ 122 N.W. 462, 109 Minn. 18.

⁷ State v. Clark, supra at 173. The Supreme Court of Errors of Connecticut narrated the facts as: "In January 1911, the respondent was appointed by the General Assembly, judge of said city police court ‘for the term of two years from and after the first day of July 1911, and until his successor is duly appointed and qualified.’ He qualified and accepted the office and has continued to hold and perform its duties until the present time. The General Assembly in 1913 appointed no successor of the respondent and adjourned sine die on the 4th day of June 1913. On June 24, 1913, and while the General Assembly was not in session, the Governor, acting under a statute providing that he may fill vacancies, appointed and commissioned the relator judge of said city police court ‘to fill the vacancy which will occur on the 1st day of July 1913 by the expiration on that day of the term of office of Walter H. Clark.’ The relator accepted the appointment, qualified, and demanded possession of the office on July 1, 1913, which the respondent refused. This action is brought to determine whether, since July 1, 1913 the respondent has had legal title to the office." (Emphasis supplied.)

⁸ Id. at 175.

⁹ State v. McIntosh, supra at 463.

¹⁰ Id. at 464.

¹¹ Sec. 67 C.J.S., p. 379.

¹² Id. at 380.

¹³ Id. at 379.

¹⁴ Id.

¹⁵ 43 Am. Jur. 152, p. 13.

¹⁶ Id. at 13-14. It is further held, "The use of the phrase ‘legislative appointment’ covers holdover of offices since a legislative extension of the term of an incumbent is virtually an appointment of the office for the extended time x x x. The rule has been applied to statutes x x x authorizing an incumbent to hold over until qualification of his successor, as well as statutes specifically extending the tenure of office."

¹⁷ 71 NE 478.

¹⁸ 74 Neb. 652, 105 N.W. 1092, 3 L.R.A.n.S. 887, 13 Am.Ann.Cas. 154.

¹⁹ 62 Pa. 343, 1 Am Rep. 442.

²⁰ 89 A. 172, p. 175, 87 Conn. 537, 52 L.R.A., N.S., 912

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.

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