Synchronizing ARMM elections

The senate has approved the bill synchronizing the next ARMM elections with the 2013 national elections. The bill originated from the House of Representatives but, even with the changes made by the Senate, the House re-approved it. The President will certainly approve it. He has been asking for it.

The effect, once it becomes law, is that positions presently held by elective officials will become vacant and will have to be filled somehow. The bill provides that the resulting vacancies should be filled by appointment by the President. Thus it will be, unless the Supreme Court declares it unconstitutional. What are the constitutional issues that might be brought to the Supreme Court?

I hear it being said that changing the date of election fixed by the current law will violate the autonomy of the Autonomous Region. I doubt that such a challenge will prosper. The current date of elections, first Monday of August 2011, was determined neither by the Constitution nor by the Organic Act of the ARMM. The current date was fixed by simple statute. And since Congress has no authority to pass irrepealable laws, the current date may be changed by Congress—as in fact it has been changed in the past.

Moreover, the Autonomous Region is not an independent sovereignty. It is still within the sovereignty of the Republic and the laws that govern it must conform with the Constitution of the Republic. It is the intent of the Constitution, clearly apparent in the deliberations of the 1987 Constitution and affirmed by the Supreme Court in 1991, that local elections must be synchronized with the national elections. Clearly ARMM elections are local elections.

The more delicate problem, however, is the manner of filling the resulting vacancies. The law will create vacancies lasting for 21 months. Both the House and the Senate have opted against giving to current incumbents the right to hold over in the position. Could Congress have opted for giving them the right to hold over?

It is said that allowing holdover would violate the Constitution which says that the term of local officials is fixed at three years. In my view, however, allowing holdover will not amend the three-year term. It will only extend the tenure of the officials and the constitutional term will remain at three years. Our Court has on a number of occasions pointed to the difference between term and tenure. Constitutional term may be changed only by constitutional amendment whereas tenure can be shorter or longer than the term. For instance, the death of an incumbent before the end of three years does not change the term.

Congress has opted not to allow holdover by the current elected officials. Instead, it has provided for filling the vacancies by appointment by the President.

Again, the principle in the law on public officers is that when there is a vacancy and the law has not provided for the manner of filling the vacancy, the vacancy may be filled by appointment of the President. What Congress has done is merely to affirm a residual power of the President to make the appointment.

Here again the provision is being criticized for giving to the President a free hand on whom to appoint. But that is the nature of the appointing power. It is the executive’s discretion to decide to whom to entrust the powers and duties of an office.

The discretion of the appointing authority may be limited by law as when the President is allowed to choose only from among a list prepared by another body. This is the case in the appointment of judges and justices, including justices of the Supreme Court and the Ombudsman. The President can choose only from among a list submitted by the Judicial and Bar Council. (Not that the Judicial and Bar Council is immune from being influenced by the President!) Similarly, in the drafting of the Organic Law for Muslim Mindanao, Congress was supposed to be assisted by a consultative commission composed of representatives “appointed by the President from a list of nominees from multi-sectoral bodies.”

In the synchronization bill there is an attempt to limit the appointing authority of the President by requiring that the President choose from among a list submitted by a consultative body. But as I understand it, the consultative body itself will be formed by the President. In effect, the President will, for all practical purposes, have a free hand in the choice of appointees. Naturally, the opposition is bound to cry foul. It is not clear what the crying will do.

There is an important provision in the House version which the Senate chose to eliminate. The House version prohibited those appointed by the President from running in the 2013 local elections for ARMM positions. The Senate eliminated the prohibition but the House did not object. Clearly, the majority in Congress is having its way. So, what’s new?