Datu Michael Abas Kida v. Senate of the Philippines, et al., G.R. No.

196271, October 18, 2011

D E C I S I O N

BRION, J .:

I. THE FACTS

Several laws pertaining to the Autonomous Region in Muslim Mindanao (ARMM) were
enacted by Congress. Republic Act (RA) No. 6734 is the organic act that established the ARMM
and scheduled the first regular elections for the ARMM regional officials. RA No. 9054 amended the
ARMM Charter and reset the regular elections for the ARMM regional officials to the second Monday
of September 2001. RA No. 9140 further reset the first regular elections to November 26, 2001. RA
No. 9333 reset for the third time the ARMM regional elections to the 2
nd
Monday of August 2005 and
on the same date every 3 years thereafter.
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 next ARMM regular elections to May 2013 to coincide with the
regular national and local elections of the country.

In these consolidated petitions filed directly with the Supreme Court, the petitioners assailed
the constitutionality of RA No. 10153.


II. THE ISSUES:

1. Does the 1987 Constitution mandate the synchronization of elections [including the ARMM
elections]?
2. Does the passage of RA No. 10153 violate the three-readings-on-separate-days rule under Section
26(2), Article VI of the 1987 Constitution?
3. Is the grant [to the President] of the power to appoint OICs constitutional?


III. THE RULING

[The Supreme Court] DISMISSED the petitions and UPHELD the constitutionality of RA No.
10153 in toto.]

1. YES, the 1987 Constitution mandates the synchronization of elections.

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, 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. The 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.

In this case, the ARMM elections, although called regional 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.

Thus, it is clear from the foregoing that the 1987 Constitution mandates the synchronization
of elections, including the ARMM elections.


2. NO, the passage of RA No. 10153 DOES NOT violate the three-readings-on-separate-days
requirement in Section 26(2), Article VI of the 1987 Constitution.

The general rule that before bills passed by either the House or the Senate can become laws
they must pass through three readings on separate days, is subject to the EXCEPTION when the
President certifies to the necessity of the bills immediate enactment. The Court, in Tolentino v.
Secretary of Finance, explained the effect of the Presidents 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.

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. Following our Tolentino ruling, the Presidents
certification exempted both the House and the Senate from having to comply with the three separate
readings requirement.

3. YES, the grant [to the President] of the power to appoint OICs in the ARMM is constitutional

[During the oral arguments, the Court identified the three options open to Congress in order
to resolve the problem on who should sit as ARMM officials in the interim [in order to achieve
synchronization in the 2013 elections]: (1) allow the [incumbent] elective officials in the ARMM to
remain in office in a hold over capacity until those elected in the synchronized elections assume
office; (2) hold special elections in the ARMM, with the terms of those elected to expire when those
elected in the [2013] synchronized elections assume office; or (3) authorize the President to appoint
OICs, [their respective terms to last also until those elected in the 2013 synchronized elections
assume office.]

3.1. 1
st
option: Holdover is unconstitutional since it would extend the terms of office of the
incumbent ARMM officials

We rule out the [hold over] option since it 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. xxx.

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. 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. Hence, holdover whichever way it is viewed is a constitutionally infirm option that
Congress could not have undertaken.

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, 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.

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, except where an attendant unconstitutionality or grave abuse of
discretion results.

3.2. 2
nd
option: Calling special elections is unconstitutional since COMELEC, on its own, has no
authority to order special elections.

The power to fix the date of elections is essentially legislative in nature. [N]o 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.

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. 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, 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.

3.3. 3
rd
option: Grant to the President of the power to appoint ARMM OICs in the interim is valid.

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. 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.

Since the Presidents 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.

[T]he 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. Aside from its order for synchronization, it is purely and
simply an interim measure responding to the adjustments that the synchronization requires.