Datu Michael Abas Kida v. Senate of the
YES, the 1987 Constitution mandates the
Philippines, et al., G.R. No. 196271, October
18, 2011
DECISION
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 2nd 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.
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 bill’s immediate enactment. The Court,
in Tolentino v. Secretary of Finance, explained
the effect of the President’s certification of
necessity in the following manner:
The presidential certification dispensed
with the requirement not only of printing but
also that of reading the bill on separate
days. The phrase "except when the President
certifies to the necessity of its immediate
enactment, etc." in Art. VI, Section 26[2]
qualifies the two stated conditions before a bill
can become a law: [i] the bill has passed three
readings on separate days and [ii] it has been
printed in its final form and distributed three
days before it is finally approved.

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 President’s 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. 1st 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 3.2. 2nd option: Calling special elections is
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 provided by another Act of Congress, or upon
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.
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
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. 3rd 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 President’s authority to
appoint OICs emanates from RA No. 10153, it
falls under the third group of officials that the
President can appoint pursuant to Section 16,
Article VII of the Constitution. Thus, the assailed
law facially rests on clear constitutional basis.
If at all, the gravest challenge posed by
the petitions to the authority to appoint OICs
under Section 3 of RA No. 10153 is the assertion
that the Constitution requires that the ARMM
executive and legislative officials to be “elective
and representative of the constituent political
units.” This requirement indeed is an express
limitation whose non-observance in the assailed
law leaves the appointment of OICs
constitutionally defective.
After fully examining the issue, we hold
that this alleged constitutional problem is more
apparent than real and becomes very real only if
RA No. 10153 were to be mistakenly read as a
law that changes the elective and representative
character of ARMM positions. RA No. 10153,
however, does not in any way amend what the
organic law of the ARMM (RA No. 9054) sets
outs in terms of structure of governance. What
RA No. 10153 in fact only does is to “appoint
officers-in-charge for the Office of the Regional
Governor, Regional Vice Governor and Members
of the Regional Legislative Assembly who shall
perform the functions pertaining to the said
offices until the officials duly elected in the May
2013 elections shall have qualified and assumed
office.” This power is far different from
appointing elective ARMM officials for the
abbreviated term ending on the assumption to
office of the official 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.