comment in intervention (re synchronization of election in armm, constitutionality of ra 10153)

8/6/2019 Comment in Intervention (Re Synchronization of Election in ARMM, constitutionality of RA 10153)

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Republic of the PhilippinesSUPREME COURT

Manila

En BancREP. EDCEL C. LAGMAN,

Petitioner,-versus- G.R. No. 197221

PAQUITO N. OCHOA, JR., ET. AL,Respondents.

x--------------------------------------------------xROMULO B. MAKALINTAL,

Petitioner,-versus- G.R. No. 197282

COMMISSION ON ELECTIONS ET.AL,

Respondents,x----------------------------------------------------xALMARIM CENTI TILLAH, ET. AL,

Petitioners,-versus- G.R. No. 197282

COMMISSION ON ELECTIONS, ET.AL,

Respondents,x----------------------------------------------------x

MINORITY RIGHTS FORUMPHILIPPINES, INC.,

Respondent-in-Intervention,x----------------------------------------------------x

BANGSAMORO SOLIDARITYMOVEMENT,Respondent-in-Intervention,

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

COMMENT-IN-INTERVENTION

(For readers, this is not part of the pleading: Excluded here are the twomotions: 1. Motion for Leave to Admit the Attached Motion for Intervention and

Comment-and-Intervention; and Comment-In-Intervention, 4 pages ; and 2.Motion for Intervention, 12pages)


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Respondents-in-Intervention, Bangsamoro Solidarity

Movement (BANGSA) and Minority Rights Forum Philippines, Inc.

(MRF Philippines), by themselves, most respectfully state:

PROLOGUE

These petitions seek to adjudicate a constitutional controversy

this Honorable Court had firmly settled in Osmena vs. Commission on

Election.1Rejecting this ruling, petitioners come to this Court holding

an opposite view. The obvious outcome of the petitions, following

the pronouncement in Osmena, is an outright denial of the petitions.

In these petitions, they advanced that synchronization of

election of Autonomous Region in Muslim Mindanao (ARMM) with

national and local election is unconstitutional.

Thus, petitioners assailed Republic Act No. 10153.2

Unfortunately, their arguments failed to show that the holding of a

synchronized election in ARMM runs counter to the Constitution.

Rather, they cited inapplicable and off-tangent constitutional

provisions that cannot operate to nullify RA 10153.

Petitioners also asserted that RA 10153 is unconstitutional for it

is contrary to the procedural requirements in passing a law alleging

that RA 10153 was not approved in the Senate by a vote of two-third

of all its members and that it was not submitted to a plebiscite.

1 G.R. No. 100318, 30 July 1991.2An Act Providing for the Synchronization of the Elections in the Autonomous Region in MuslimMindanao (ARMM) with the National and Local Elections, and for other Purposes.


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The petitions are all filed under Rule 65 of the Rules of Civil

Procedure for Certiorari, Mandamus and Prohibition to declare RA

10153 unconstitutional.

Likewise, petitioners asked for provisional injunctive reliefs for

the issuance of Temporary Restraining Order and Writs of

Preliminary Prohibitory and Mandatory Injunction among others:

1. to direct the Commission on Election to hold election inARMM on 8 August 20113 or 12 September 2011.4

2. to restrain public respondents from performing acts toenforce and for releasing public fund to implement R.

A. No. 10153, including, but not limited to: (1) the

creation of a Screening Committee; and (2) the

issuance of appointment of OICs to fill the temporary

vacancies in the ARMM regional elective offices.

STATEMENT OF FACTS

Pursuant to Section 15, Art. X of the Constitution which

provides for the creation of autonomous regions in Muslim

Mindanao and in the Cordilleras consisting of provinces, cities,

municipalities, and geographical areas. The first ARMM Organic

Act, Republic Act No. 6734,5 was enacted and signed into law on 1

August 1990. It was ratified on 17 November 1990.

3 Lagman and Makalintals Petition.4 Tillahs Petition.5An Act Providing for An Organic Act for the Autonomous Region in Muslim Mindanao.


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On 7 February 2001, Republic Act No. 9054 or the Second

ARMM Organic Act which expanded the powers and functions of

ARMM took effect. And because it also provides for the expansion of

the territorial coverage of the local government units of the ARMM,

the people of the LGUs not previously covered were asked if they

will join the proposed expansion of ARMM.

Between the effectivity of RA 6734 and RA 9054, there were

various laws have been enacted postponing the elections in ARMM

without the benefit of plebiscite they are: (5 March 1993), Republic

Act No. 8176 (29 December 1995), Republic Act No. 8746 (4 March

1999), Republic Act No. 8753 (8 September 1999), Republic Act No.

8953 (1 September 2000), Republic Act 9140 (22 June 2001), and

Republic Act No. 9333. The subject of these laws were to postpone

ARMM elections and make the incumbents extended their terms in

holdover capacity.

On 22 March 2011, House Bill 4146 was approved in the Third

Reading in the House of Representatives wherein 191 voted in favor

and 47 were against the bill. Prior to that, on 14 March 2011, said bill

was certified by President Simeon Benigno C. Aquino III as urgent bill

pursuant to Sec. 26 (2), Art. VI of the Constitution.

The approved Bill was, thereafter, transmitted to the Senate and

later docketed as Senate Bill 2756. After due deliberations and public

hearings, it was passed with amendment on 6 June 2011.


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In the Third Reading, there were 13 Senators who voted for the

Bill while 7 Senators cast the negative votes. In the next day, the

House of Representatives approved the amendments of the Senate in

toto. The consolidated bills were subsequently forwarded to the

President for signature. On 30 June 2011, President Aquino signed

the consolidated bills into law, it became RA 10153.

Hence, these petitions assailing the constitutionality of RA

10153.

ISSUES

1. WHETHER OR NOT R.A. NO. 10153 WHICHPROVIDES FOR THE SYNCHRONIZATION OFARMM ELECTION WITH NATIONAL ANDLOCAL ELECTIONS IS UNCONSTITUTIONAL.

2. WHETHER OR NOT R.A. NO. 10153 IS ANENABLING LAW FOR THE SYNCHRONIZATIONOF ARMM ELECTIONS WITH THE NATIONALAND LOCAL ELECTIONS UNDER SEC. 2 AND 5OF ART. XVIII OF THE CONSTITUTION ANDNOT AS AN AMENDMENT OF RA 9054 AND ASSUCH IT IS NOT SUBJECT TO THEPROCEDURAL REQUIREMENT SET FORTH IN

SEC. 1 AND 3, ART. XVII OF RA 9054.

3. WHETHER OR NOT SECS. 1 AND 3, ARTICLEXVII OF RA 9054 IS UNCONSTITUTIONAL ONTHE GROUND THAT IT UNDULY LIMITS THECONGRESS PLENARY LEGISLATIVE POWERTO ENACT, AMEND, AND REVISE LAWSRELATIVE TO ARMM.

4.

WHETHER OR NOT R.A. 10153 ISUNCONSTITUTIONAL ON THE GROUND THATIT DID NOT COMPLY THREE READINGS ONSEPARATE DAYS IN VIOLATION OF ARTICLEVI, SECTION 26(2) OF THE 1987 CONSTITUTION.


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5. WHETHER OR NOT SEC. 7 (1), ART. VII OF RA9054 IS UNCONSTITUTIONAL INASMUCH AS ITPROVIDES FOR A HOLDOVER CAPACITY OFTHE INCUMBENTS.

6. WHETHER OR NOT SECS. 3 AND 4 OF R.A. NO.10153 IS UNCONSTITUTIONAL ON THEGROUND THAT APPOINTMENT OF OFFICER-IN-CHARGE IN THE ARMM IS NOT PERMITTEDUNDER THE SECTIONS 16 AND 18, ART. X OF1987 CONSTITUTION.

ARGUMENTS

1. WHETHER OR NOT R.A. NO. 10153 WHICHPROVIDES FOR THE SYNCHRONIZATIONOF ARMM ELECTION WITH NATIONALAND LOCAL ELECTIONS ISUNCONSTITUTIONAL.

Synchronization of election is a settled constitutional injunction.

The simultaneous holding of national and local elections, including

ARMM, is a mandatory ordinance of the 1987 Constitution.

We invoke Sections 2 and 5, Article XVIII of the 1987

Constitution and Osmena vs. Commission on Election.6 The two sections

are mandatory provisions of the Constitution on synchronized

national and local elections and its obedience is compulsory. Osmena,

on the other hand, upheld and interpreted said provisions declaring

its mandatory character.

Sections 2 and 5, Article XVIII of the 1987 Constitution

provides:

Sec. 2. The Senators, Members of the House of

6 G.R. No. 100318, 30 July 1991.


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Representatives and the local officials first electedunder this Constitution shall serve until noon ofJune 30, 1992.

Of the Senators elected in the election in 1992, thefirst twelve obtaining the highest number of votesshall serve for six year and the remaining twelve forthree years.

xxx xxx xxx

Sec. 5. The six-year term of the incumbentPresident and Vice President elected in the February7, 1986 election is, for purposes of synchronization ofelections

, hereby extended to noon of June 30, 1992.(emphasis supplied)

Here is the brief factual setting of Osmena: when Republic Act

7056 was enacted wherein the local government elections was

desynchronized from the simultaneous national and local elections

on the 2nd Monday of 1992; it provided that only national election will

be held on said date. Thus, local election was desynchronized,

instead it will be held on the 2nd Monday of November 1992.

Petitioners, in Osmena, brought the controversy to this

Honorable Court, asserting that the holding of desynchronized two

elections between national on the 2

nd

Monday of 1992 and localelections on 2nd Monday of November 1992 is directly opposed to the

Constitution; they invoked Sections 2 and 5, Article XVIII of the

Constitution.

Expectedly, this Honorable Court nullified RA 7056 because it

desynchronized national and local elections, it ruled: Republic Act

7056 is hereby declared UNCONSTITUTIONAL, hence, NULL and

VOID.


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In Osmena, it was held:

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 localofficials, the President and the Vice-President havebeen synchronized to end on the same hour, date andyear noon of June 30, 1992.

It is likewise evident from the wording of theabove-mentioned Sections that the term ofsynchronization is used synonymously as the phraseholding simultaneously since this is the precise intent interminating their Office Tenure on the same day oroccasion. This common termination date will

synchronize future elections to once every threeyears.7

xxx xxx xxx

With the clear mandate of the 1987 Constitution tohold synchronized (simultaneous) national and localelections in the second Monday of May, 1992, theinevitable conclusion would be that Republic Act 7056is clearly violative of the Constitution because itprovides for the holding of a desynchronized election.

Stated differently, Republic Act 7056 particularlySections 1 and 2 thereof contravenes Article XVIII,Sections 2 and 5 of the 1987 Constitution.

It thus becomes very evident that the Constitution has

mandated a synchronized national and local elections.8 The reason

for the said adjustment, as well as those of the Senators, members of

the House of Representatives, President and Vice-President, is the

same to synchronize the national and local elections.9

This is precisely the legal opinion10 of Fr. Joaquin G. Bernas, S.J.,

an expert in constitutional law and had been for so many occasion

appeared before this Court as amicus cureau, thus:

7 Citing Bernas the Constitution of the Republic of the Philippines, Vol. II, p. 605).8Osmena vs. Commission on Election, G.R. No. 100318, 30 July 1991.9Id.10 Fr. Joaquin G. Bernas, S.J. Sounding Board, Philippine Daily Inquirer, First Posted 04:42:0004/25/2011, at http://opinion.inquirer.net/inquireropinion/columns/view/20110425-332803/Synchronizing-ARMM-elections (last visited 10 July 2011)


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Before answering that question, a priorquestion need be answered. Why synchronize theARMM elections with the national elections? One bigreason being used, I understand, is economy. But

synchronization also finds support in the desire of theTransitory Provisions of the 1987 Constitution thatlocal elections be synchronized with nationalelections. This desire is not explicitly stated but it can be deduced from Sections 2 and 5 of the TransitoryProvisions. And since the ARMM elections are localelections, it stands to reason that they should besynchronized with other local elections. Moreover, Ithink that there is a reason for synchronizationpeculiar to the ARMM. The absence ofsynchronization in the ARMM gives undueadvantage to the powerful lords of the area to control

the results of local elections. Synchronization willhave the effect of diffusing the energies of the locallords since they would be attending to both local andnational elections. Whether these reasons are enoughto convince the Senate to go along with the House billremains to be seen.

Though there was no ambiguity in the language of the

Constitution to resort to the transcript of the Constitutional

Convention, this Honorable Court proceeded to refer to the Records

to finally erase any lingering doubt as to the intent of the Framers of

the Constitution in the synchronization of national and local

elections.

The Records11 as quoted in Osmena reveal:

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

MR. DAVIDE. Before going to the proposedamendment, I would only state that in view of theaction taken by the Commission on Section 2 earlier, Iam formulating a new proposal. It will read asfollows THE SENATORS, MEMBERS OF THE

HOUSE OF REPRESENTATIVES AND THE LOCALOFFICIALS FIRST ELECTED UNDER THISCONSTITUTION SHALL SERVE UNTIL NOON OFJUNE 30, 1992.

11 cited Osmena vs. Commission on Election, G.R. No. 100318, 30 July 1991.


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I proposed this because of the proposed section of theArticle on Transitory Provisions giving a term to theincumbent President and Vice-President until 1992,Necessarily then, since the term provided by the

Commission for Members of the Lower House and forlocal officials is three years, if there will be an electionin 1987, the next election for said officers will be in1990, and it would be very close to 1992. We couldnever attain, subsequently, any synchronization ofelection which is once every three years.

So under my proposal we will be able to begin actualsynchronization in 1992, and consequently, we shouldnot have a local election or an election for Members ofthe Lower House in 1990 for them to be able tocomplete their term of three years each. And if we

also stagger the Senate, on the first election it willresult in an election in 1993 for the Senate alone, andthere will be an election for 12 Senators in 1990. Butfor the remaining 12 who will be elected in 1987, iftheir term is for six years, their election will be in1993. So, consequently we will have elections in 1990,in 1992 and in 1993, the later election will be limitedto only 12 Senators and of course to the House of theLower House. But, definitely, thereafter we can neverhave an election once every three years, thereforedefeating the very purpose of the Commission when

we adopted the term of six years for the President andanother six years for the Senators with the possibilityof staggering with 12 to serve for six years and 12 forthree years insofar as the first Senators are concerned.And so my proposal is the only way to effect the firstsynchronized election which would mean, necessarily, abonus of two years to the Members of the Lower House anda bonus of two years to the local elective officials.

xxx xxx xxx

MR. DE CASTRO Thank you.

During the discussion on the legislative and thesynchronization of elections, I was the one whoproposed that in order to synchronize the electionsevery three years, which the body approved thefirst national and local officials to be elected in 1987shall continue in office for five years, the same thingthe Honorable Davide is now proposing. That meansthey will all serve until 1992, assuming that the termof the President will be for six years and continuebeginning in 1986. So from 1992, we will again have

national, local and presidential elections. This time, in1992, the President shall have a term until 1998 and whilethe next 12 shall serve until 1995, and then the localofficials elected in 1992 will serve until 1995. From thenon, we shall have an election every three years.


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So, I will say that the proposition of CommissionerDavide is in order, if we have to synchronize ourelections every three years which was alreadyapproved by the body.

Thank you, Mr. Presiding Officer.

xxx xxx xxx

MR. DAVIDE. In other words, there will be a singleelection in 1992 for all, from the President up to themunicipal officials.

xxx xxx xxx

MR. SUAREZ. Last point of inquiry to the HonorableDavide. From 1987 up to 1992, as envisioned underthe Gentlemen's proposal, will there be no local ornational election?

MR. DAVIDE. None, Mr. Presiding Officer.

MR. SUAREZ. And the second local and national electionswill be held in 1992?

MR. DAVIDE. That is correct, Mr. Presiding Officer.

MR. SUAREZ. Prior to June 30, 1992?

MR. DAVIDE. Yes, Mr. Presiding Officer.

(Record, October 3, 1986, pp. 429-432)

Clearly, the synchronization of election of national and local

elections inclusive of ARMM election is a well-established

constitutional edict.

Unfortunately, petitioners do not share the view of this

Honorable Court.

Petitioners contrary view is premised on flawed argument that

the autonomous character of ARMM demands that its elections be

desynchronized from the national and local elections because it is not


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constitutionally covered by the provision on synchronization. That it

will lessen the autonomy of ARMM.

This argument is bereft of merit.

The characterization that synchronization of election will

diminish ARMMs autonomous nature is obviously based on

speculations and purely self-serving allegations anchored on

assumed anticipated facts. This Honorable Court, with all due

respect, cannot declare a law unconstitutional based on unproven

factual allegations rather than on a constitutional ground.

As to petitioners argument that ARMM is not embraced within

the term of local government, this too must be disregarded.

Under the Constitution, the provision on Local Government is

found in Article X. In Article X, it has two sub-headings namely,

General Provisions (Sec. 1 to 14) and Autonomous Regions ( Sec.

15 to 20). This categorization, therefore, shows that the Constitution

have treated ARMM as part of the local government. This finds

support from Fr. Bernas who opined that: And since the ARMM

elections are local elections, it stands to reason that they should be

synchronized with other local elections12

With all the foregoing disquisitions, the petitions clearly show

that they deserve dismissal.

Establishing the foregoing argument, we will proceed on the

nature of the enactment of RA 10153.

12 Fr. Joaquin G. Bernas, S.J. Sounding Board, supra.


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2. WHETHER OR NOT R.A. NO. 10153 IS ANENABLING LAW FOR THE SYNCHRONIZATIONOF ARMM ELECTIONS WITH THE NATIONAL

AND LOCAL ELECTIONS UNDER SEC. 2 AND 5OF ART. XVIII OF THE CONSTITUTION ANDNOT AS AN AMENDMENT OF RA 9054 AND ASSUCH IT IS NOT SUBJECT TO THEPROCEDURAL REQUIREMENT SET FORTH INSEC. 1 AND 3, ART. XVII OF RA 9054.

We respectfully submit that RA 10153 is an enabling law of Sec.

2 and 5 of Art. XVIII of the Constitution.

As opposed to petitioners claim, we contend that RA 10153 is

not subject to Sections 1 and 3, Art. XVII of RA 9054 which,

respectively, require two-third votes by the Congress, separately

voting, and approval in a plebiscite before any amendment to it can

take effect.

In this issue, we argue that RA 10153 is not an amendment of

RA 9054 but a constitutional implement of synchronization of

election.

As a background: since the first synchronization on 2nd Monday

of May 1992 of both the national and local elections took place there

had been consistently a synchronized elections occurring three years

thereafter, viz.: 1995, 1998, 2001, 2004, 2007 and 2010. Regrettably, the

ARMM is left out in these elections.

These synchronized elections had served its constitutional

purpose of regular election and the denial of holdover capacity of the

incumbents. There were no postponement laws enacted by the

Congress for 19 years. The synchronized election had, therefore,


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proven the stability and continuity of democratic process and

supremacy of the people.

It should be underscored that ARMM is marred by erratic

electoral schedule and extension of term of imcumbents via holdover

capacity.

During the first election in February 1990, there were six

postponements and there were also unduly overextension the term of

offices of officials for an aggregate period of 35 months or nearly

equivalent to full term of 3 years.

Upon ratification of Organic Act, RA 6734, Zacaria Candao and

Benjamin Loong were elected as ARMM Governor and Vice-

Governor, respectively, on 12 February 1990. The members of the

Regional Legislative Assembly (RLA) were also elected.

The next election was set on 25 March 1993 by virtue of RA

7647. During the election, Lininding Pangandaman and Nabil Tan

won as ARMM Governor and Vice-Governors as well as members of

the RLA. Under RA 7647, they will assume on the 30th of March 1993,

necessarily, their term will end on 30th of March 1996.

But before the expiration of term of Gov. Pangandaman and

Vice-Gov. Tan and the members of RLA, RA 8176 was passed

postponing the scheduled March 1996 election to 9 September 1996.

RA 8176 further provided that the newly elective officers will assume

on the 30th of September 1996. Consequently, the law had effectively


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over-extended the term of the incumbents by virtue of holdover

capacity for six more months (April to September 1996).

Subsequently, RA 8746 was legislated on 4 March 1999 stating

that elections should be on the 2nd Monday of September 1996 and

every three years thereafter. It also permitted that incumbents therein

shall continue in office until September 30, 1999 in a holdover

capacity.

In ARMM election on 9 September 1996, Nur Misuari and

Guimid Matalam were proclaimed winners as Governor and Vice-

governor, respectively. The RLA members were also proclaimed. But

a month before their terms expire a new law RA 8763 was approved

resetting the election to 2nd Monday of September 2000. Hence, the

incumbents were given an extension of term of one year from 30

September 1999 to 30 September 2000 in a holdover capacity.

Another law, RA 8953, was approved extending the term of

Gov. Misuari et. al from 30 September 2000 to 30 June 2001 or eight

months. Therefore, the aggregate extension of these officials (which

term should have been expired on 30 September 1999) was already

one year and a half or 18 months.

Again, RA 9010 was enacted on 28 February 2001, its Sec. 1

provides:

Section 1. Section 2 of Republic Act No. 8953 ishereby amended to read as follows.

"SEC. 2. The regular elections for theregional governor, vice-governor and


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members of the regional legislativeassembly of the Autonomous Region inMuslim Mindanao (ARMM) set forth underRepublic Act. No. 8953 is hereby reset to the

second Monday of September 2001"

The foregoing provision again has repudiated the ARMM

election set on the 2nd Monday of May 2001; it was postponed to 2nd

Monday of September 2001. It also extended the term of office of

Gov. Misuari, Vice-Gov. Mataalam and the RLA members from 30

June 2001 to 30 September 2001 or an additional 3 months. Their

terms of offices were again unduly extended by legislation for 21

months in holdover capacity.

Then another law was passed, RA 9140, approved in 22 June

2001 stating indefinitely in Sec. 3 that 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.

An election was held on 26 November 2001, this time under RA

9054 which was ratified on 14 August 2001, Parouk Hussin andMahid Mutilan were elected as Governor and Vice-Governor,

respectively, and so were the members of RLA.

Gov. Hussein and other elective officials whose term will end

on November 2004 was again given an additional extension of eleven

months by virtue of RA 9333. Their term instead will end on 30

September 2005.


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In summary, below are the statistical facts of the various

postponements. There were 6 laws that postponed ARMM and that

they resulted to an aggregate of 35 months holdover capacity, to wit:

1. Gov. Pangandaman Administration:a. six months holdover by virtue of RA 8176.

2. Gov. Misuari Administration:a. First holdover, 12 months under RA 8763.

b. Second holdover, 8 months RA 8953.c. Third holdover, 3 months RA 9010.d. Fourth holdover, 2 months RA 9140.e. Total holdover, 23 months

3. Gov. Hussein:a. 12 months holdover under RA 9333.

A total of 35 months or nearly three-years full term holdover

capacities is simply repulsive to the very tenet of the objective of

republican system, synchronization of election and the ruling in

Osmena.

Given the foregoing facts, the legislative intent in enacting RA

10153 by the present Congress is to strictly enforce and implement

Sec. 2 and 5, Art. XVII of the Constitution, to synchronize ARMM

election with the national and local elections. And to avoid theunwarranted electoral postponements in ARMM and holdover of

incumbents.


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This is the evil that RA 10153 sought to prevent and this is the

ratio legis of the law. By synchronizing ARMM national elections, its

election will become regular and it is a guarantee against

postponements and holdover capacity.

This is the opportunity for this Honorable Court to

institutionalize the synchronization of elections.

RA 10153s Declaration of Policy in Sec. 1 is worded in an

unambiguous language that it is enacted to give life to the mandate

of the Constitution and RA 7166 entitled Act Providing for

Synchronized National and Local Elections and for Electoral Reforms,

Authorizing Appropriations Therefor, and for Other Purposes, thus:

SECTION 1. Declaration of Policy.Inaccordance with the intent and mandate of theConstitution and Republic Act No. 7166

, entitled:An Act Providing for Synchronized National andLocal Elections and for Electoral Reforms,Authorizing Appropriations Therefor, and for OtherPurposes, it is hereby declared the policy of theState to synchronize national and local elections.Pursuant thereto, the elections in the AutonomousRegion in Muslim Mindanao (ARMM) is herebysynchronized with the national and local elections as

hereinafter provided. (emphasis supplied)

RA 10153 is in effect is placed in the same category of RA 7166,

also an enabling law, to fulfill the mandate of a synchronized

elections.

In view of the fact that RA 10153 is a curative law and its

purpose is to conform to the mandate of the Constitution, it is not

subject to the provisions of RA 9054. Since its legal existence is


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derived from the provision of the constitution itself its effectivity will

not depend upon compliance with other statutory enactments such as

RA 9054. Likewise, the provisions on synchronization of elections

have not set any parameters and conditions before it can take effect.

They did not provide that it be subjected to, first, two-third of the

Members of the House of Representatives and of the Senate voting

separately,13 and, second, its approval by a majority of the vote cast in

a plebiscite.14

Consequently, RA 10153 as enabling law it is separate and

distinct and can stand independent of any statute such as RA 9054.

Be that as it may, the two third votes and the plebiscite will be

discussed below.

3. WHETHER OR NOT SECS. 1 AND 3, ARTICLEXVII OF RA 9054 IS UNCONSTITUTIONALON THE GROUND THAT IT UNDULYLIMITS THE CONGRESS LEGISLATIVEPOWER TO ENACT, AMEND, AND REVISELAWS RELATIVE TO ARMM.

It is ironical that petitioners seek the declaration of RA 10153 as

contrary to the Constitution but invoking statutory provisions of RA

9054 (Sec. 1 and 3, Art. XVII). Their line of argument is that because

RA 9054, a previous law, is inconsistent with RA 10153, a later law, it

is unconstitutional.

There is no instance where this Honorable Court declares a law

unconstitutional on the ground that it is contrary to another law. As

13 Sec. 1, RA 9054.14 Sec. 3, RA 9054.


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matter of course, the later law always prevails and is deem an

amendment and superseding the previous law.

Petitioners having failed to quote any specific provisions of the

Constitution showing that RA 10153 is repugnant to the Constitution,

the presumption of its constitutionality must be upheld.

Corollary to this, a law enacted by Congress enjoys the strong

presumption of constitutionality. To justify its nullification, there

must be a clear and unequivocal breach of the Constitution, not a

doubtful and unequivocal one. To invalidate a law based on baseless

supposition is an affront to the wisdom not only of the legislature

that passed it but also of the executive which approved it. 15

In Francisco vs. House of Representatives16

this Court highlighted

the presumption of constitutionality of legislative acts, thus:

More than that, courts accord thepresumption of constitutionality to legislativeenactments, not only because the legislature ispresumed to abide by the Constitution but also because the judiciary in the determination of actualcases and controversies must reflect the wisdom and justice of the people as expressed through their

representatives in the executive and legislativedepartments of the government.

These petitions, therefore, must necessary fail.

Be that as it may, we will proceed to discuss the unmeritorious

contentions of petitioners.

15Abakada Guro Party List v. Purisima, G.R. No. 166715, 14 August 2008.16 GR 160261, 10 November 2003.


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Petitioners presented Sections 1 and 2, Art. XVII of RA 9054 as

the provisions that will invalidate RA 10153, they state:

SECTION 1. Consistent with the provisions of theConstitution, this Organic Act may be are amended orrevised by the Congress of the Philippines upon avote of two-thirds (2/3) of the Members of the Houseof Representatives and of the Senate votingseparately.

xxx xxx xxx

SEC. 3. Any amendment to or revision of thisOrganic Act shall become effective only whenapproved by a majority of the vote cast in a plebiscitecalled for the purpose, which shall be held not earlierthan sixty (60) days or later than ninety (90) days afterthe approval of such amendment or revision.

We respectfully argue that these cited two provisions are

unconstitutional on the following grounds:

1.

it is repugnant to the plenary power of the legislature.2. the higher votes of two-thirds of the Members of the

House of Representatives and of the Senate voting

separately are not one of those non-legislative cases

requiring two-third vote.

3.

a plebiscite is not a prerequisite in law-making process.

Sections 1 and 3 of Articles XVII of RA 9054are repugnant to the legislatures plenary

power to enact, amend or revise laws.

The power of the Congress to enact law is plenary. And it is

only the Constitution that can impose limitations in the exercise of

such plenary power.


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passed authorizing any transfer of appropriations,23 tax imposition

must be uniform and equitable,24 non-establishment clause,25

prohibition against law granting a title of royalty or nobility,26 among

others.

The Congress that enacted RA 9054 had required an additional

burden in the procedural law-making inasmuch as it

unconstitutionally enjoined that: (1) any amendment of said law must

be approved by two-third of the Members of the House of

Representatives and of the Senate voting separately;27 and, (2) its

submission to plebiscite.28

These two requirements have no constitutional authority.

It must be underscored that prior to RA 9054, the Organic Law

of ARMM is RA 6734 does not require two-third but a majority vote

in the amendment of that law, thus RA 6734 states: may be amended

or revised by the Congress of the Philippines upon a majority vote of

the House of Representatives and of the Senate voting separately.29

Clearly, RA 9054 had made an additional legislative burden in the

procedural law-making of the Congress by increasing the number of

vote from majority to two-third votes of the Congress.

Evidently, the Congress who passed RA 9054 has effectively

tied the hands of the current and future Congress of these twin

23 Sec. 25 (5), Art. VI, Const.24 Sec. 28 (1), Art. VI, Const.25 Sec. 29 (2), Art. VI, Const26 Sec. 29 (2), Art. VI, Const27 Sec. 1, Art. XVII, RA 9054.28 Sec. 3, Art. XVII, RA 9054.29 Sec. 1, Art. XVIII, RA 6734.


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additional legislative burden which are unsupported by any

constitutional authority. The twin burden had effectively hindered

and restricted the amendment of RA 9054. This has the consequence

of making the previous Congress unequal and superior to the present

and future Congress to amend RA 9054. It obstructs the future

legislative body to exercise its inherent plenary legislative power.

In one case it as held that 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.30

This being the case, the twin provisions are clearly

unconstitutional.

The higher votes of two-thirds of the Membersof the House of Representatives and of theSenate voting separately are not one of thosespecial votes provided in the Constitution.

Petitioners insist that since the Senate had failed to muster two-

third vote because it was only voted by 13 Senators which fell short

of the two-third vote in the approval of Senate Bill No. 2756, RA

10153 must be declared unconstitutional

30The City of Davao vs. Regional Trial Court, Branch XII, Davao City, G.R. No. 127383, 18 August2005


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There is no constitutional justification to support petitioners

claim.

Sections 16 (2) and 27 (1), Art. VI of the Constitution required a

mere majority for the passage of a legislation. Likewise, the two-

thirds votes are required only by the Constitution in exceptional

cases, peculiarly, all of these are not legislative in nature.

First , Section 16 (2), Art. VI of the Constitution provides for

majority vote for each House of the Congress to transact business:

Section 16. xxx.

(2) A majority of each House shall constitute aquorum to do business

, but a smaller number mayadjourn from day to day and may compel theattendance of absent Members in such manner, andunder such penalties, as such House may provide.

In Avelino vs. Cuenco,31 it elucidated that:

In fine, all the four justice agree that the Court being confronted with the practical situation that ofthe twenty three senators who may participate in theSenate deliberations in the days immediately after this

decision, twelve senators will support Senator Cuencoand, at most, eleven will side with Senator Avelino, itwould be most injudicious to declare the latter as therightful President of the Senate, that office beingessentially one that depends exclusively upon the willof the majority of the senators, the rule of the Senateabout tenure of the President of that body beingamenable at any time by that majority. And at anysession hereafter held with thirteen or more senators,in order to avoid all controversy arising from thedivergence of opinion here about quorum and for thebenefit of all concerned, the said twelve senatorswho approved the resolutions herein involved couldratify all their acts and thereby place them beyondthe shadow of a doubt.

31 G.R. No. L-2821, 4 March1949


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It is clear from the foregoing decision that a quorom of the

Senate is 13 being majority of the composition of 23 Senators. 32 And

when the 12 votes approved the resolution, being a majority, the

same is binding and perfected as an act of the Senate.

Applying Avelino , the 13 votes cast by the Senators in

approving Senate Bill 2756 being a majority vote of the 23 Senators

composing the Senate,33 said vote is sufficient to approve a

legislation.

Second, the foregoing reasoning is sustained by Sec. 27 (1), Art.

VI of the Constitution which reads:

Section 27. (1) Every bill passed by theCongress shall, before it becomes a law, be presentedto the President. If he approves the same he shall signit; otherwise, he shall veto it and return the same withhis objections to the House where it originated, whichshall enter the objections at large in its Journal andproceed to reconsider it. If, after such reconsideration,two-thirds of all the Members of such House shallagree to pass the bill

, it shall be sent, together withthe objections, to the other House by which it shalllikewise be reconsidered, and if approved by two-thirds of all the Members of that House, it shall

become a law. xxx.

This provision presupposes that the vote in the passage of law

is not a two-third vote. The vivid language of the above-provision is

that two-third vote is required only when there is a veto by the

President and the Congress will override that veto. In order to32 The composition of the Senate was 24 Senators, but since one Senator is in abroad the basis of

computation was 23 Senators because the absence the Senator is outside the coercive jurisdiction of the

Senate.33 Pres. Aquino effectively relinquish his position as Senator when he was elected as President. Thus,

making the Senate composition to 23.


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Said enumeration cannot be expanded by a mere legislative fiat

under the doctrine ofexpressio unius est exclusio alterius.

Thus, in an analogous case ofOffice of the Ombudsman vs. Court

of Appeals,40 this Honorable Court declared that PD No. 1606 is

unconstitutional when it included Sandiganbayan Justices as one of

the impeachable officers, thus:

It is now provided by decree (see P.D. No.

1606) that justices of the Sandiganbayan may beremoved only through process of impeachment, thepurpose evidently being to withdraw them from theremoval power of the Supreme Court. Thisprohibition is of dubious constitutionality. In the firstplace, the list of impeachable officers is covered by themaxim "expressio unius est exclusio alterius."

Hence, Sec. 1, Art.XVII of RA 9054 is unconstitutional.

Section 3, Art. XVII of RA 9054 which requiresthat amendment to RA 9054 cannot be hadwithout a plebiscite is unconstitutional.

Petitioners stated the indispensable role of a plebiscite in the

law-making process in amending RA 9054. They maintained that

since RA 10153 lack the imprimatur of the plebiscite, it is a nullity, as

such, it did not take effect.

We again invoke Sec. 27 (1), Art. VI of the Constitution

provides:

Section 27. (1) Every bill passed by theCongress shall, before it becomes a law, be presentedto the President. If he approves the same he shall signit; otherwise, he shall veto it and return the same withhis objections to the House where it originated, which

40 G.R. No. 146486, 4 March 2005.


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shall enter the objections at large in its Journal andproceed to reconsider it. If, after such reconsideration,two-thirds of all the Members of such House shallagree to pass the bill

, it shall be sent, together with

the objections, to the other House by which it shalllikewise be reconsidered, and if approved by two-thirds of all the Members of that House, it shallbecome a law. xxx. (emphasis supplied)

The clear language of the Constitution is that bills approved by

Congress are directly sent to the President for signing. The

procedures in the legislation of law was described in Abakada Guro

Party List v. Purisima,41states:

In sum, two steps are required before a bill becomes a law. First, it must be approved by bothHouses of Congress. Second, it must be presented toand approved by the President. As summarized by Justice Isagani Cruz and Fr. Joaquin G. Bernas, S.J.,the following is the procedure for the approval ofbills:

xxx xxx xxx

Once the bill passes third reading, it is sent tothe other chamber, where it will also undergo thethree readings. If there are differences betweenthe versions approved by the two chambers, aconference committee representing both Houseswill draft a compromise measure that if ratifiedby the Senate and the House of Representatives

will then be submitted to the President for hisconsideration.

The bill is enrolled when printed as finallyapproved by the Congress, thereafterauthenticated with the signatures of the SenatePresident, the Speaker, and the Secretaries oftheir respective chambers

The Presidents role in law-making.

The final step is submission to thePresident for approval. Once approved, it takeseffect as law after the required publication.(citations omitted) (emphasis supplied)

41 G.R. No. 166715, 14 August 2008


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The constitutional process in the law-making is purely the

exclusive domain of the Congress and the President. This is so

because of the republican system adhered to by the Constitution

where the people do not directly legislate law but entrusted this

power to their representative in the government.42

Subject to certain limitations, the Filipino people, through their

delegates, have committed legislative power in a most general way to

the National Assembly has plenary legislative power in all matters of

legislation except as limited by the constitution.43

Nevertheless, plebiscite as a condition in making the law

effective is recognized in the Constitution but only in three

exceptional cases, namely: first , the creation, division, merger,

abolition and alteration of a local government units; second , the

creation of special metropolitan political subdivisions; and, third, the

creation of autonomous region in Muslim Mindanao and Cordilleras.

These are found in Sections. 10, 11, and 18, Art. X of the

Constitution:

Section 10. No province, city, municipality, orbarangay may be created, divided, merged, abolished,or its boundary substantially altered, except inaccordance with the criteria established in the localgovernment code and subject to approval by amajority of the votes cast in a plebiscite in thepolitical units directly affected.

42There is only few exceptions where law originate from the constituencies themselves and that ispeoples initiative.

43Schneckenburger vs. Moran, G.R. No. L-44896, 31 July 1936.


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Section 11. The Congress may, by law, createspecial metropolitan political subdivisions, subject toa plebiscite as set forth in Section 10 hereof. xxx.

xxx xxx xxx

Section 18. xxx.

The creation of the autonomous region shall beeffective when approved by majority of the votescast by the constituent units in a plebiscite called forthe purpose, provided that only provinces, cities, andgeographic areas voting favorably in such plebisciteshall be included in the autonomous region.

In the case of the provision on autonomous region under

Section 18, it is unequivocal that plebiscite is required only in the

event of creation of the autonomous region.Corollary to Sec. 18 is

Sec. 10. In Sec. 10, it governs when autonomous region or LGUs will

be divided, merged, abolished, or its boundary substantially

altered. Thus, ARMM was created by RA 6734 pursuant to Sec. 18,

while the expansion of the territorial coverage of ARMM was upon

the enactment of RA 9054 in conformity to Sec. 10 when the ARMM

was expanded both in terms of devolved powers and territorial

coverage.

Under the creation of ARMM in RA 6734, there were only four

original provinces: Maguindanao, Lanao del Sur, Sulu and Tawi-

Tawi who joined the ARMM. This was in pursuant to Sec. 18, Art. X

of the Constitution.

While under RA 9054 it was an expansion as can be gleaned

from Sec. 1 (2), Art. II of RA 9054 which proposed to include 11

provinces, to wit: Basilan, Cotabato, Davao del Sur, Lanao del Norte,


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Palawan, Sarangani, South Cotabato, Sultan Kudarat, Zamboanga

del Norte, Zamboanga del Sur and Zamboanga Sibugay. And 13

cities, namely: Cotabato, Dapitan, Dipolog, General Santos, Iligan,

Kidapawan, Marawi, Pagadian, Puerto Princes, Digos, Koronadal,

Tacurong and Zamboanga. (Of these, only Basilan and Marawi City

joined the expansion).

Though there was a plebiscite also conducted with respect to

the original four provinces, the plebiscite is just a mere incidental to

the expansion of ARMM territorial coverage.

Since the 11 provinces and 13 cities were proposed to be

included by RA 9054, it is necessary to have said law submitted to

plebiscite to these provinces and cities in order to obtain their

consent. This is contemplated in Sec. 10, Art. X of the Constitution

because they will be merged with the proposed expansion of ARMM

and that is the reason on why plebiscite was needed.

Apart from the act of creation of ARMM and its territorial

expansion, any legislative act to amend it does not require a

plebiscite.

Petitioners, on the other hand, does not share this view. They

put forward a faulty argument that RA 10153 must be treated with

the same legislative class vis--vis RA 6734 and RA 9054 which are

Organic Act. And since, RA 10153 is treated as such, it must be

submitted to a plebiscite petitioners contended.

Petitioners argument is without merit.


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It must stressed that RA 10153 does not seek to enlarge the

coverage of territorial coverage of ARMM neither it confers

additional structural powers and devolution to the ARMM.

Accordingly, the submission of plebiscite is not justified both under

the Sec. 10 and 18, Art. X of the Constitution. This is the very reason

why the Congress has not previously subjected amendments to both

RA 6734 and RA 9054 to plebiscite such as: RA 7647, RA 8176, RA

8746, RA 8753 , RA 8953, RA 9012, RA 9140 , and RA 9333. There is,

therefore, no cause to subject RA 10153 to plebiscite.

Petitioners in support of their claim cited the case of Pandi vs.

Court of Appeals44 and Disomangcop vs. Datumanong,45 arguing that

these decisions support their thesis that any amendment to RA 9054

requires plebiscite.

The two cases are not applicable in this case.

In Pandi it pronounced:

An ordinary statute, whether general or special,cannot amend an organic act that provides for an

autonomous region which under the Constitution mayonly be created, and therefore changed, through aplebiscite called for the purpose. Under Section 3, ArticleXVIII of the Organic Act of 1989, any amendment to theOrganic Act required the approval of a majority of thevotes cast in a plebiscite called for the purpose within theconstituent units of the ARMM.

This ruling is not obtaining because: First , this case was

decided by Third Division which under Sec. 4 (2), Art. VIII of the

44380 SCRA 436.45444 SCRA 203.


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Constitution only this En Banc can declare a law unconstitutional.

Second , RA 9054 was not the subject of the litigation rather it is RA

6734. Third , the passage cited above is not the ratio decidendi of the

case, rather an obiter dictum as can be gleaned from the dispostive

portion of the decision, thus:

WHEREFORE, the petition is GRANTED and theassailed decision of the Court of Appeals dated April 15,1994 in CA-G.R. SP No. 32242 is SET ASIDE. The

designation on September 15, 1993 of Dr. Amer A. Saberas Officer-in-Charge of the Integrated Provincial HealthOffice of Lanao del Sur is declared void. On the otherhand, the designation on November 6, 1993 of Dr. LampaI. Pandi as Officer-in-Charge of the Integrated ProvincialHealth Office of Lanao del Sur, and the assignment onNovember 6, 1993 of Dr. Mamasao Sani to the DOH-ARMM Regional Office in Cotabato City, are declaredvalid. No costs.

As for the case ofDisomangcop, petitioners quoted that:

The ARMM Organic Acts are deemed a part of theregional autonomy scheme. While they are classified asstatutes, the Organic Acts are more than ordinarystatutes because they enjoy affirmation by a plebiscite.Hence, the provisions thereof cannot be amended by anordinary statute, such as R.A. 8999 in this case. Theamendatory law has to be submitted to a plebiscite.

Again we argued that this ruling is not applicable in this case.

The quoted opinion of the decision is a mere obiter dictum it is not the

ratio decidendi of the main decision.

In said case, RA 8999 was not declared unconstitutional, thus

the ruling states:

At the outset, let it be made clear that it is notnecessary to declare R.A. No. 8999 unconstitutional forthe adjudication of this case. The accepted rule is thatthe Court will not resolve a constitutional questionunless it is the lis mota of the case, or if the case can bedisposed of or settled on other grounds.


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Instead, this Honorable Court opined that RA 8999 was deemed

amended and superseded by RA 9054, thus:

The plain truth is the challenged law never becameoperative and was superseded or repealed by asubsequent enactment.

xxx xxx xxx

From another perspective, R.A. 8999 was repealedand superseded by R.A. 9054. Where a statute of laterdate clearly reveals an intention on the part of the

legislature to abrogate a prior act on the subject, thatintention must be given effect.

Hence, the inapplicability ofDisomangcop.

Be that as it may Disomangcop cannot be made to apply in this

case. Here, RA 10153 is concerned with synchronization of election

and as an incident thereto appointment of Officers-In-Charge.

In Disomangcop what is involved is the issue on organization

and structural government of ARMM. It involves an issue on

decentralization which RA 8999 had taken away from ARMM. It had

deprived ARMMs Public Works and Highway in the First District of

Lanao del Sur and transferred it under the control of the Department

of Public Work and Highway of the National Government.

This Honorable Court, thus, pronounced:

Clearly, R.A. 8999 is antagonistic to and cannot bereconciled with both ARMM Organic Acts, R.A. 6734 and

R.A. 9054. The kernel of the antagonism and disharmonylies in the regional autonomy which the ARMM OrganicActs ordain pursuant to the Constitution. On the otherhand, R.A. 8999 contravenes true decentralizationwhich is the essence of regional autonomy.


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xxx xxx xxx

A necessary prerequisite of autonomy isdecentralization.

xxx xxx xxx

Decentralization of power, on the other hand,involves an abdication of political power in the favor oflocal government units declared to be autonomous. Inthat case, the autonomous government is free to chart itsown destiny and shape its future with minimumintervention from central authorities. According to aconstitutional author, decentralization of power amountsto "self-immolation," since in that event the autonomousgovernment becomes accountable not to the central

authorities but to its constituency.

xxx xxx xxx

The challenged law creates an office withfunctions and powers which, by virtue of E.O. 426, have been previously devolved to the DPWH-ARMM, FirstEngineering District in Lanao del Sur.

E.O. 426 clearly ordains the transfer of the controland supervision of the offices of the DPWH within the

ARMM, including their functions, powers andresponsibilities, personnel, equipment, properties, andbudgets to the ARG. xxx.

(citations omitted) (emphasis supplied)

In the case of RA 10153, there is no provision that it is

obnoxious to the decentralization of ARMM and neither alteration of

its structural and organizational set up.

4. WHETHER OR NOT R.A. 10153 ISUNCONSTITUTIONAL ON THE GROUNDTHAT IT DID NOT PASS THREE READINGS ONSEPARATE DAYS IN VIOLATION OF ARTICLEVI, SECTION 26(2) OF THE 1987

CONSTITUTION.

Petitioners Tillah et. al averred that the passage of RA 10153 is

unconstitutional on the ground that it violated Sec. 26 (2), Art. VI of


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the Constitution, it reads:

Sec. 26. xxx.

(2) No bill passed by either House shall become alaw unless it has passed three readings on separatedays, and printed copies thereof in its final form havebeen distributed to its Members three days before itspassage, except when the President certifies to thenecessity of its immediate enactment to meet apublic calamity or emergency. xxx. (emphasis supplied)

They argued that President Aquinos Certification does not

justify and meet the conditions of public calamity or emergency

as such there is no legal basis to consider the House Bill 4146 and

Senate Bill 2756 as urgent bill.

To prove their point, petitioners produced the Presidents

letter46 dated 14 March 2011 to the Speaker of the House Feliciano R.

Belmonte, Jr. certifying the urgency of the passage of House Bill No.

4146, it states, among others:

[T]o address the urgent need to protect and

strengthen ARMMs autonomy by synchronizing itselections with the regular elections of national andother local officials, to ensure that the ongoing peacetalks in the region will not be hindered, and toprovide a mechanism to institutionalize electoralreforms in the interim, all for the development, peace,and security of the region.

46 Annex A, Petition of Tillah et. al.


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A similar letter47 of the same imports was sent to Senate

President Juan Ponce Enrile for the urgency in the approval of Senate

Bill No. 2756.

Petitioners argued that the justification set forth by President

Aquino in the letter is not a constitutional ground. They contended

that there is no public calamity neither public emergency for the

urgent passage of the bill.

Unfortunately, petitioners refused to define the parameters on

what constitute public calamity and public emergency. They

failed to cite any jurisprudence to support their claim.

We respectfully submit that this particular issue is not

susceptible to judicial review since it is essentially a political

question.

On the determination on what constitute public emergency to

justify whether a particular bill is urgent is largely left to the

discretion of the President. Its determination is factual in nature.

Inherently, the findings of facts and whether such facts are embraced

in the definition of public emergency is necessarily a presidential

prerogative and a political question. This Honorable Court, with all

due respect, has no judicial power to substitute its judicial judgment

to that of President Aquinos executive judgment on what constitute

public emergency.

47 Annex B, Petition of Tillah et. al


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Secondly, the finding of facts by President Aquino in certifying

House Bill 4146 and Senate Bill 2756 as urgent bills were respected

and accepted by the House of Representative and Senate,

respectively. The Congress raised no doubt neither objection as to

the certification of the President, this Honorable Court must respect

these two coequal branches of the government.

With President Aquino certifying the bills and the Congress

accepting the certification, this Honorable Court has no jurisdiction to

meddle in the affairs of the Executive Branch and Legislative Branch

without violating separation of powers. This is obviously a political

question and a political question conclusively binds the judges out

of respect to the political departments, a duly certified law or

resolution also binds the judges under the enrolled bill rule born of

that respect.48

The Honorable Court applied this same principle in the case of

Tolentino vs The Secretary of Finance,49 thus:

The exception is based on the prudentialconsideration that if in all cases three readings onseparate days are required and a bill has to be printed infinal form before it can be passed, the need for a law may be rendered academic by the occurrence of the veryemergency or public calamity which it is meant toaddress.

Petitioners further contend that a "growing budget deficit" is not an emergency, especially in a

country like the Philippines where budget deficit is achronic condition. Even if this were the case, an

48Mabanag vs. Vito, G.R. No. L-1123, 5 March 194749G.R. No. 115455 October 30, 1995


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enormous budget deficit does not make the need for R.A.No. 7716 any less urgent or the situation calling for itsenactment any less an emergency.

Apparently, the members of the Senate (includingsome of the petitioners in these cases) believed that therewas an urgent need for consideration of S. No. 1630, because they responded to the call of the President byvoting on the bill on second and third readings on thesame day. While the judicial department is not boundby the Senate's acceptance of the President'scertification, the respect due coequal departments ofthe government in matters committed to them by theConstitution and the absence of a clear showing ofgrave abuse of discretion caution a stay of the judicialhand.

.

5. WHETHER OR NOT SEC. 7 (1), ART. VII OF RA9054 IS UNCONSTITUTIONAL INASMUCH AS ITPROVIDES FOR A HOLDOVER CAPACITY OFTHE INCUMBENTS.

We respectfully submit that Sec. 7 (1), Art. VII of RA 9054 isunconstitutional for it violates the constitutional proscription on

holdover capacities.

It provides:

SEC. 7. Terms of Office of Elective Regional

Officials. (1) Terms of Office. The terms of office ofthe Regional Governor, Regional Vice Governor andmembers of the Regional Assembly shall be for aperiod of three (3) years, which shall begin at noon onthe 30th day of September next following the day ofthe election and shall end at noon of the same datethree (3) years thereafter.

The incumbent elective officials of theautonomous region shall continue in effect untiltheir successors are elected and qualified.

(emphasis supplied)

This Honorable Court had already settled this issue in Osmena


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vs. Comelec50 when it declared, in a clear language, that holdover

capacity of elective officials is unconstitutional. It ruled that:

It is not competent for the legislature to extendthe term of officers by providing that they shall hold overuntil their successors are elected and qualified wherethe constitution has in effect or by clear implicationprescribed the term and when the Constitution fixes theday on which the official term shall begin, there is nolegislative authority to continue the office beyond thatperiod, even though the successors fail to qualify withthe time.

In American Jurisprudence it has been stated asfollows:

It has been broadly stated that thelegislature cannot, by an act postponingthe election to fill an office the term ofwhich is limited by the Constitution,extend the term of the incumbent beyondthe period as limited by the Constitution.

Sec. 7 (1), Art. VII of RA 9054, therefore, should be voided as

unconstitutional.

6. WHETHER OR NOT SECTION 3 AND 4 OF R.A.No. 10153 IS UNCONSTITUTIONAL ON THEGROUND THAT APPOINTMENT OF OFFICER-IN-CHARGE IN THE ARMM IS NOT PERMITTEDUNDER SECTIONS 16 AND 18, ART. X OF THE

1987 CONSTITUTION.

The two issues being interrelated, we will discuss them jointly.

Power of appointment is executive in nature

The case ofThe Government of the Philippines Islands vs. Spinger,51

discussed the historical background of executive nature of

50 G.R. No. 100318, 30 July 199151 G.R. No. L-26979, 1 April 1927.


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appointment, it reads:

It may finally be inferred from the books that

the appointment of public officials is generally lookedupon as properly an executive function. The power ofappointment can hardly be considered a legislativepower. xxx.

The executive should be clothed with sufficient powerto administer efficiently the affairs of state. He shouldhave complete control of the instrumentalitiesthrough whom his responsibility is discharged. It isstill true, as said by Hamilton, that "A feeble executiveimplies a geeble execution of the government. A

feeble execution is but another phrase for a badexecution; and a government ill executed, whatever itmay be in theory, must be in practice a badgovernment." The mistakes of State governmentsneed not be repeated here..

(citations omitted)

The power to appoint is essentially executive in nature, and the

legislature may not interfere with the exercise of this executive power

except in those instances when the Constitution expressly allows it to

interfere.52

President has the power to appoint OICs evenwithout express provision of law.

The petitions assailed the presidential power of appointment of

OICs in the ARMM in Sec. 3 and 4 of RA 10153 is unconstitutional.

However, petitioners failed to raise constitutional provision that

specifically run contrary to the language of Secs. 3 and 4 of RA 10153.

52Pimentel vs. Executive Secretary, G.R. No. 164978, October 13, 2005 (citation omitted).


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Even without the provisions of Sec. 3 and 4 of RA 10153, the

President under its residual power has the constitutional power to

appoint OICs in ARMM should there be temporary vacancy therein.

This argument is supported by no less than three landmark

decisions of this Honorable Court, namely: Menzo vs. Petilla,53Samad

vs. Comelec,54 and Sanchez vs. Comelec55where they affirmed the power

of the President to appoint elective officials in the local government

units despite of the fact that there is absence of law that expressly

empower the President to appoint OICs.

InMenzo it was held:

Disposing the issue of vacancy, we come to thesecond issue of whether or not the Secretary of Local

Government had the authority to designate thepetitioner.

We hold in the affirmative.

The Local Government Code is silent on themode of succession in the event of a temporaryvacancy in the Office of the Vice-Governor. However,the silence of the law must not be understood toconvey that a remedy in law is wanting.

The circumstances of the case reveal that thereis indeed a necessity for the appointment of anacting Vice-Governor. For about two years after thegovernatorial elections, there had been no de jurepermanent Governor for the province of Leyte,Governor Adelina Larrazabal, at that time, had notyet been proclaimed due to a pending election casebefore the Commission on Elections.

The two-year interregnum which would resultfrom the respondents' view of the law is disfavoredas it would cause disruptions and delays in the

delivery of basic services to the people and in theproper management of the affairs of the local

53 G.R. No. 90762, 20 May 199154 G.R. No. 108642, 16 July 199355 G.R. No. L-5564, 19 June 1982.


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government of Leyte. Definitely, it isincomprehensible that to leave the situation withoutaffording any remedy was ever intended by the LocalGovernment Code.

Under the circumstances of this case andconsidering the silence of the Local GovernmentCode, the Court rules that, in order to obviate thedilemma resulting from an interregnum created bythe vacancy, the President, acting through her alterego, the Secretary of Local Government, may remedythe situation. We declare valid the temporaryappointment extended to the petitioner to act as theVice-Governor. The exigencies of public servicedemanded nothing less than the immediateappointment of an acting Vice-Governor.

It may be noted that under Commonwealth ActNo. 588 and the Revised Administrative Code of 1987,the President is empowered to make temporaryappointments in certain public offices, in case of anyvacancy that may occur. Albeit both laws deal onlywith the filling of vacancies in appointive positions.However, in the absence of any contrary provision inthe Local Government Code and in the best interest ofpublic service, we see no cogent reason why theprocedure thus outlined by the two laws may not be

similarly applied in the present case. The respondentscontend that the provincial board is the correctappointing power. This argument has no merit. Asbetween the President who has supervision overlocal governments as provided by law and themembers of the board who are junior to the vice-governor, we have no problem ruling in favor of thePresident, until the law provides otherwise.

A vacancy creates an anomalous situation andfinds no approbation under the law for it deprives theconstituents of their right of representation and

governance in their own local government.

In a republican form of government, themajority rules through their chosen few, and if one ofthem is incapacitated or absent, etc., the managementof governmental affairs to that extent, may behampered. Necessarily, there will be a consequentdelay in the delivery of basic services to the people ofLeyte if the Governor or the Vice-Governor ismissing.

xxx xxx xxx

The appointment of the petitioner, moreover, isin full accord with the intent behind the LocalGovernment Code. There is no question that Section49 in connection with Section 52 of the Local


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Government Code shows clearly the intent to providefor continuity in the performance of the duties of theVice-Governor.

The case ofSamad vs. Comelec56 is more unequivocal, thus:

Inasmuch as it is the COMELEC that hasexclusive jurisdiction over the present controversy,the restraining order and the writ of preliminaryinjunction issued by the Regional Trial Court ofCotabato City are void ab initio. Consequently,

President Ramos did not act improperly when hedesignated the private respondent as OIC-Mayor ofKabuntalan pending final resolution of the dispute.The designation was in accordance with the case ofSanchez v. Commission on Elections (24 114 SCRA 454)where this Court recognized the authority of thePresident of the Philippines to appoint an officer-in-charge of the office of mayor of San Fernando,Pampanga, pending settlement of the controversyover the position. (emphasis supplied)

This holds true in the case ofSanchez vs. Comelec:57

Biliwang raises for the first time on review hisright to a "hold-over". Not only has this been belatedly raised but the fact also remains that hiselective term expired on December 31, 1975 and thathe already held-over by virtue of PD No. 1576. Heceased to hold-over, however, when elections were

held on January 30, 1980, besides the fact that thePresident has already appointed an officer-in-chargein San Fernando, Pampanga.

(emphasis supplied)

In sum,Menzo opined that: the silence of the law must not be

understood to convey that a remedy in law is wanting. We declare

valid the temporary appointment extended to the petitioner to act as

56 G.R. No. 108642, 16 July 199357 G.R. No. L-5564, 19 June 1982.


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the Vice-Governor. The exigencies of public service demanded

nothing less than the immediate appointment of an acting Vice-

Governor.

In Samad , this Court affirmed that: President Ramos did not

act improperly when he designated the private respondent as OIC-

Mayor of Kabuntalan pending final resolution of the dispute. And in

Sanchez, it ruled that the legality of appoint of OICs stating that: the

fact that the President has already appointed an officer-in-charge in

San Fernando, Pampanga.

In conclusion, this Honorable Court ruled that despite the

silence of the Local Government Code it uphold the power of the

President to appoint OICs in the LGUs.

There is no constitutional provisions that prohibits the President to appoint OICs inARMM

IfMenzo, Sanchez and Samad recognized Presidents authority to

appoint OICs in LGUs in the event of temporary vacancies despite of

the fact that there is no express provision of law that empowers her

or him, there is more reason to uphold presidential power of

appointment of OICs in the ARMM when there is express statutory

authority that specifically confers that power.

Sec. 3 of RA 10153 states:


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SEC. 3. Appointment of Officers-in-Charge.ThePresident shall appoint officers-in-charge for theOffice of the Regional Governor, Regional ViceGovernor and Members of the Regional Legislative

Assembly who shall perform the functions pertainingto the said offices until the officials duly elected in theMay 2013 elections shall have qualified and assumedoffice.

While Sec. 4 of RA 10153 provides for the manner and

procedural aspect in appointing OIC; it also creates a Screening

Committee, thus:

SEC. 4. Manner and Procedure of AppointingOfficers-in-Charge.There shall be created a screeningcommittee, whose members shall be appointed bythePresident, which shall screen and recommend, inconsultation with the Speaker of the House ofRepresentatives and the Senate President, the personswho will be appointed as Officers-in-Charge.

Nevertheless, petitioners still maintain that Sec. 3 and 4 of RA

10153 is unconstitutional. They pointed to Sec. 16 and 18 of Art. X of

the Constitution:

Section 16. The President shall exercise generalsupervision over autonomous regions to ensure thatlaws are faithfully executed.

xxx xxx xxx

Section 18. The Congress shall enact an organicact for each autonomous region with the assistanceand participation of the regional consultativecommission composed of representatives appointedby the President from a list of nominees from multi-sectoral bodies. The organic act shall define the basicstructure of government for the region consisting ofthe executive department and legislative assembly,

both of which shall be elective and representative ofthe constituent political units. The organic acts shalllikewise provide for special courts with personal,family, and property law jurisdiction consistent withthe provisions of this Constitution and national laws.


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They framed the issues in this wise: First, the President has no

power of appointment over regional elective positions in ARMM

since its power over ARMM is a mere power of supervision. They

claimed that by empowering the President to appoint OICs, the latter

is exercising power of control, a power repugnant to Sec. 16, Art. X

of the Constitution. Second , regional elective position in ARMM can

be filled only by election and not by appointment of OICs.

The presidential power of appointment ofOICs in ARMM is not synonymous to powerof control and is not repugnant to Sec. 16, Art.

X of the Constitution.

This Honorable Court has already passed upon the same

argument brought forward by petitioners.

This has been decided by the Honorable Court in favor of

presidential power of appointment, thus, inMenzo it pronounced:

It may be noted that under Commonwealth ActNo. 588 and the Revised Administrative Code of 1987,the President is empowered to make temporaryappointments in certain public offices, in case of anyvacancy that may occur. Albeit both laws deal onlywith the filling of vacancies in appointive positions.However, in the absence of any contrary provisionin the Local Government Code and in the bestinterest of public service, we see no cogent reasonwhy the procedure thus outlined by the two laws

may not be similarly applied in the present case. Therespondents contend that the provincial board is thecorrect appointing power. This argument has nomerit. As between the President who hassupervision over local governments as provided bylaw and the members of the board who are junior tothe vice-governor, we have no problem ruling in


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favor of the President, until the law providesotherwise.

(emphasis supplied)

Significantly, Menzo upheld that appointment of OICs by the

President to temporary vacancies in the LGUs is not repulsive to the

power of supervision of the President over LGUs.

But petitioners rejected the ruling ofMenzo.

Discussion on the issue on conflict between power of control

and power of appoint it is not worthy to set the legal parameters.

There must first a distinction between power of supervision and

power of control. Supervision means overseeing or the power or

authority of an officer to see that subordinate officers perform theirduties. 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 had

done in the performance of his duties and to substitute the judgmentof the former for that of the latter.58

Petitioners posited that the power of appointment vested by RA

10153 to the President constitute as an exercise of power of control

over ARMM and as such it is unconstitutional.

Petitioners misapplied the law.

58Mondano vs. Silvosa, G. R. No. L-7708.


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To this, petitioners invoked the case ofThe National Liga Ng Mga

Barangay vs. Paredes59claiming that it has a striking similarity to the

synchronization of the ARMM elections since with the

synchronization of the ARMM elections, the President will appoint

Officers-In-Charge or interim caretakers until the election of the

ARMM regional officers on 2013.

It is submitted that the ruling in Paredes is not applicable in this

legal controversy. Since it arise from a different set of facts.

The antecedents events were: on 11 June 1997, respondent

Manuel A. Rayos, Punong Barangay of Barangay 52, District II, Zone 5,

District II, Caloocan City claimed that petitioner Alex L. David

Punong Barangay of Barangay 77, Zone 7, Caloocan City and then

president of the Liga Chapter of Caloocan City and of the Liga ng mga

Barangay National Chapter, allegedly committed certain irregularities

in the notice, venue and conduct of the proposed synchronized Liga

ng mga Barangay elections in 1997.

Thereafter, petitioner David was proclaimed President of the

Liga-Caloocan, and then took his oath and assumed the position ofex-

officio member of the Sangguniang Panlungsod of Caloocan. An action

was later filed with the lower court which after due hearing ordered

the Department of Interior and Local Government to be an interim

caretaker of the Liga on 28 July 1997.

The particular facts as gleaned from the opinion of this

59 439 SCRA 130


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Honorable Court in Paredes are as follows:

On 11 August 1997, the DILG issued

Memorandum Circular No. 97-193, providingsupplemental guidelines for the 1997 synchronizedelections of the provincial and metropolitan chaptersand for the election of the national chapter of the Ligang mga Barangay. The Memorandum Circular set thesynchronized elections for the provincial andmetropolitan chapters on 23 August 1997 and for thenational chapter on 06 September 1997.

On 12 August 1997, the DILG issued aCertificate of Appointment in favor of respondent

Rayos as president of the Liga ng mga Barangay ofCaloocan City. The appointment purportedly servedas Rayoss "legal basis for ex-officio membership in theSangguniang Panlungsod of Caloocan City" and "toqualify and participate in the forthcoming NationalChapter Election of the Liga ng mga Barangay."

On 23 August 1997, the DILG conducted thesynchronized elections of Provincial andMetropolitan Liga Chapters. Thereafter, on 06September 1997, the National Liga Chapter held itselection of officers and board of directors, wherein

James Marty L. Lim was elected as President of theNational Liga.

On 01 October 1997, public respondent judgedenied Davids motion for reconsideration, rulingthat there was no factual or legal basis to reconsiderthe appointment of the DILG as interim caretaker ofthe National Liga Board and to cite Secretary Barbersin contempt of court.

In said case, this Honorable Court ruled:

With his Department already appointed as interimcaretaker of the Liga, Secretary Barbers nullified theresults of the Liga elections and promulgated DILGMemorandum Circular No. 97-193 dated 11 August1997

, where he laid down the supplemental guidelinesfor the 1997 synchronized elections of the provincialand metropolitan chapters and for the election of thenational chapter of the Liga ng mga Barangay;scheduled dates for the new provincial, metropolitanand national chapter elections; and appointedrespondent Rayos as president of Liga-CaloocanChapter.

These acts of the DILG went beyond the sphereof general supervision and constituted directinterference with the political affairs, not only of the


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Liga, but more importantly, of the barangay as aninstitution. The election of Liga officers is part of theLigas internal organization, for which the latter hasalready provided guidelines. In succession, the DILG

assumed stewardship and jurisdiction over the Ligaaffairs, issued supplemental guidelines for theelection, and nullified the effects of the Liga-conducted elections. Clearly, what the DILG wieldedwas the power of control which even the Presidentdoes not have.

Furthermore, the DILG assumed control when itappointed respondent Rayos as president of the Liga-Caloocan Chapter prior to the newly scheduledgeneral Liga elections, although petitioner Davidsterm had not yet expired. The DILG substituted itschoice, who was Rayos, over the choice of majority ofthe punong barangay of Caloocan, who was theincumbent President, petitioner David. The latter waselected and had in fact been sitting as an ex-officiomember of the sangguniang panlungsod in accordancewith the Liga Constitution and By-Laws. Yet, the DILGextended the appointment to respondent Rayosalthough it was aware that the position was the subjectof a quo warranto proceeding instituted by Rayoshimself, thereby preempting the outcome of that case.It was bad enough that the DILG assumed the power

of control, it was worse when it made use of the powerwith evident bias and partiality.

As the entity exercising supervision over the Ligang mga Barangay, the DILGs authority over the Liga islimited to seeing to it that the rules are followed, but itcannot lay down such rules itself, nor does it havethe discretion to modify or replace them. In thisparticular case, the most that the DILG could do wasreview the acts of the incumbent officers of the Liga inthe conduct of the elections to determine if theycommitted any violation of the Ligas Constitution and

By-laws and its implementing rules. If the NationalLiga Board and its officers had violated Liga rules, theDILG should have ordered the Liga to conduct anotherelection in accordance with the Ligas own rules, butnot in obeisance to DILG-dictated guidelines.Neither had the DILG the authority to remove theincumbent officers of the Liga and replace them,even temporarily, with unelected Liga officers.

(

comment in intervention (re synchronization of election in armm, constitutionality of ra 10153)

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