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Datu Michael Abas Kida v. Senate of the Philippines, et al., G.R.

No. 196271, October 18, 2011



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

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.


1. Does the 1987 Constitution mandate the synchronization of elections [including the ARMM
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?


[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

[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
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. 2nd 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. 3rd option: Grant to the President of the power to appoint ARMM OICs in the interim is

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.

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Philip L. Go,
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rendered its
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