The unfinished business of ARMM elections

The Supreme Court, last Tuesday, came out with a decision on what to do with the Republic Act 10153 calling for the synchronization of  local elections in the Autonomous Region in Muslim Mindanao (ARMM) with the 2013 national elections.  RA 10153 says that, after the expiration of the term on Sept. 30, 2011 of ARMM’s elected regional officials, no elections should be held until May 2013. Since that would leave the elective positions vacant, RA 10153 authorizes the President to fill them by appointing temporary officers. Expectedly, petitions for the nullification of RA 10153 were filed with the Supreme Court.

Early reports about the decision said that the Court voted 8-7 in favor of the validity of the law. But the score is not really as straightforward as a simple 8-7.  It is necessary to look at the various issues involved.  Let me attempt this on the basis what has been released on the Internet.

First, there is the issue of synchronization.  It seems clear from Supreme Court spokesperson Midas Marquez’ announcement that 15 justices were in agreement on that point. But why synchronize? Even in the early debates on the subject, the support for synchronization was founded on the desire of the Transitory Provisions of the 1987 Constitution that local elections be synchronized with the national elections.  This desire is not explicitly stated but it can be deduced from Sections 2 and 5 of the Transitory Provisions. And since the ARMM elections are local elections, it stands to reason that they should be synchronized with other local elections.

Moreover, there is another reason given for synchronization peculiar to the ARMM.  It is argued that the absence of synchronization in ARMM gives undue advantage to the powerful lords of the area to control the results of local elections. Synchronization will have the effect of diffusing the energies of the local lords since they would be attending to both local and national elections. This reason, coupled with the desire for economy, eventually convinced Congress to pass the synchronization law.

But should not RA 10153 be subjected to a plebiscite as an amendment to the Organic Act?  The simple answer is that RA 10153 is not an amendment to the Organic Act for the Autonomous Region in Muslim Mindanao or RA 9054.  The Organic Act did not set the date for regional elections. True, RA 9054 had a date for elections, but it was a date for the first election and not for regular elections. The date set by RA 9054 therefore is functus officio.  To say that a plebiscite is needed to amend it is to say that it is an irrepealable law. The date for regular elections is a matter left by the Organic Act to ordinary legislation.

The reported 8-7 split was not on the issue of synchronization but on the manner of filling the positions left vacant by the expiration of the terms of elected officials last Sept. 30.  It is not a clean split. How to break it down?

Eight justices say that the President should fill the vacancies by appointment. They oppose a holdover by the elected officials because a holdover would extend the term beyond the three years allowed by the Constitution.  What this means is that a holdover beyond the term is not just an extension of tenure.  It would be in fact an extension of term in violation of three-year constitutional limit for local officials.

As for the President’s power to appoint, I believe that it can be justified on the basis of what is called the “faithful execution clause” found in Article VII, Section 17.  In effect this means that when a vacancy exists and there is no law indicating how it is to be filled, the President, in exercise of his “residual powers,” fills it.  But in fact there already is a law. RA 10153 gives the power to the President.

Two Justices, however, would recognize only a power of the President to appoint a governor and would call on the Commission on Elections to schedule special elections for the other vacated offices. In my view it is for the legislature and the executive, and not for the Court, to decide how these vacancies are to be filled. I do not see how the Comelec can set an election date different from the date already set by RA 10153. The Comelec’s power is only to enforce the law.

I have not seen a written opinion of the rest of the justices led by Chief Justice Renato Corona.  I understand, however, from the statement of the Supreme Court spokesperson that they see no virtue at all in RA 10153 except for the call for synchronization. They do not recognize the President’s power to appoint and would have the elected officials holdover until the 2013 elections.

The decision, of course, is not yet final because reconsideration is still possible.  Already, those who had opposed the passage of RA 10153 are set to go to Court to plead for reconsideration.  What could be the final result?  With all due respect, let me speculate.

First, on the matter of synchronization, it would be difficult to foresee a reversal of the 15-vote majority—even by a Court that is accused of tending to flip-flop.

As to the power of the President to fill all regional elective positions, I do not expect those who reject this totally to budge from their negative position.

As to those who would give to the President the power to appoint only a governor, whichever direction they might eventually go will not really affect the majority.

What of special elections?  Think of the expense, considering that May 2013 is not so far away.