Saturday, March 26, 2011
POSTPONEMENT OF THE ARMM ELECTIONS: TO BE OR NOT TO BE?
The right to self-governance and self-determination has always been the elusive dream of every Muslim in Southern Mindanao. For this reason, the 1987 Constitution ordained the establishment of a regional autonomy in Muslim Mindanao which was supposed to be the messianic solution to the aged quest for Muslim autonomy. Thus, Congress enacted RA 6734 otherwise known as “The Organic Act of the Autonomous Region in Muslim Mindanao,” which calls for extensive autonomous powers to be exercised by the regional government. I say ‘extensive’ because the organic act speaks of fiscal autonomy, jurisdiction over ancestral domain, ancestral lands, agrarian reform, urban and rural planning, economy and natural resources, public order, education, science and technology, and even sports development. The regional government is also provided with an annual subsidy from the national government of at least 12 billion, 700 Million for its public works and 800 Million local funds derived from internal revenue collections.
Yet in spite of the enormous support coming from the national government, ARMM remains to be a huge failure. Every election held under it had been marred with violence and intervention from national officials. Worse still, even the incumbent Governor of ARMM calls for its abolition because it did not meet the haughty objectives of the Organic Act. At the committee meetings, representative of the DILG cited grounds why the PNOY administration supports postponement of the ARMM elections. Accordingly, during the interregnum, it would be the best time to introduce good governance in the system by addressing the volatile political atmosphere of the ARMM. In fact said Bill has a provision which mandates the appointed members to conduct a study and review of RA 9054 (The amendatory act which expanded the coverage of the Organic law.) and submit recommendations to Congress within a specified time-frame. More than this, the 2-year transition period will give enough time to initiate electoral reforms in the region by cl eansing the ARMM voters’ list. There is also the general apprehension that the peace process might be affected if the ARMM election will push through this year.
True or not, I have no quarrel with the objectives of said measure. My main concern however, is how it can pass the litmus test of legal scrutiny. Here are some of my arguments against HR 4146.
It is my view that HB 1446 violates RA 6734, the ARMM’s organic act. First, the authority of the President to appoint OICs during the supposed transition period raises legal doubts among lawyer-legislators in the lower house. Section 4 of said Bill provides that during the transitory period, the President shall appoint officers-in-charge who will take over the functions of the incumbent elective officials of the ARMM. Note that nowhere in the provisions of the organic act and RA 9054 grant the president the power to appoint OICs in case there is postponement of elections.(This is where 'residual power' comes in, more on this later.) Nor is there a provision both in the Organic Act or RA 9054 that allows postponement or cancellation of the ARMM elections to begin with. But even assuming there is, still the authority of the President to fill temporary vacancies in elective offices by appointment is without legal basis if viewed in the context of autonomy. (Note that as a general rule, Congress has the power to postpone elections.)To vest the president with appointing authority not otherwise provided by the Organic Act is a patent intrusion to the autonomy granted by the Constitution to the autonomous regions. Is the principle of autonomy therefore, stated in the constitution, a big joke? Article 10 Section 16 of the 1987 Constitution explains the nature of the powers of the President over autonomous regions: THE PRESIDENT SHALL EXERCISE GENERAL SUPERVISION OVER AUTONOMOUS REGIONS TO ENSURE THAT LAWS ARE FAITHFULLY EXECUTED. Yes, the President has the power to ensure that subordinate officers execute and act within existing laws. If you read the records of the 1986 Constitutional Commissions, the phrase as “may be provided by law” was deliberately removed from the original text because it gives Congress the power to expand the nature of the power of the President over autonomous region that goes beyond “general supervision.” Clearly, the appointing authority given to the President by HR 4146 is not premised on the power of ‘general supervision’ but control. Thus said Bill runs contrary not only to the intent of the constitution but to the very principle of autonomy itself as envisioned by the Constitution.
In a republican and democratic state, are we suppose to favor appointments rather than democratic elections? Let us go beyond the lofty objectives of HR 4146 and look deeper. In essence what is given to the President here is the authority to substitute the judgment of the people to freely choose their leaders. In essence, the Bill has the effect of substituting the choice of the people for the choice of one man-the President. I would like to emphasize that the will of the people can never be superseded even with the noblest of intentions coming from a highly popular president.
And so what legal justification do the proponents have in pushing for the passage of HR 4146? Are they saying that we are in fact amending the Organic Act? That too is legally impossible under pertinent laws and they know it. For instance, nowhere in the provisions of the Organic law nor its amending law provides for the synchronization of ARMM elections with national and local elections. But for purposes of discussion let us tackle the role of Congress on the amendatory process of the Organic act.
CAN CONGRESS PASS A LAW AMENDING ANY PROVISION OF THE ORGANIC ACT? In Pandi v. Court of Appeals (G.R. No.116850, April 11, 2002.) the Supreme Court ruled in this wise, “An ordinary statute, whether general or special, cannot amend any provision of the organic act. Its creation or amendment can only be through a plebiscite for the purpose.”
What then is the procedure for amendment or revision of the organic law and RA No.9054? Both the organic law and the amending act lodge the power to initiate amendment or revision on the Regional Assembly. Or it may also call for a Regional Consultative Commission to propose the amendment or revision. In any case, the amendment or revision shall require the approval of the Congress of the Philippines by a vote of two- thirds (2/3) of the Members of the House of Representatives and of the Senate voting separately. Section 7 of HB 4146 states in unequivocal terms that, “The appointed members of the Regional Legislative Assembly of the ARMM shall conduct a study and a review of Republic Act 9054 (amending law) and submit recommendations to the Congress of the Philippines within six months from their assumption into office.” Here I subscribe to the view of Congressman Rufus Rodriguez. He pointed out that this specific provision surreptitiously amends the Organic Act and its amending law for it allows appointive officials to conduct a study on the Organic Act while it is the Regional Assembly, composed of elective officials, who has the power to initiate amendments.
When does amendment or revision shall become effective? Both the Organic Act and RA No.9054 clearly provide: Any amendment to or revision of this Organic Act shall become effective only when approved by a majority of the votes cast in a plebiscite called for the purpose, which shall be held not earlier than sixty (60) days or later than ninety (90) days after the approval of such amendment or revision. Thus, since some of the provisions of HR 4146 are in the nature of amendments, the same is illegal for being contrary to the provisions of the Organic Act and RA 9054. Again, the power to initiate amendments rests solely on the Regional Assembly of the ARMM and not with Congress. Albeit Congress plays an important role with regard to the process of amendments, it should be remembered that Congress is deemed inutile sans the initiative or proposal of the Regional Assembly. Moreover, the law is clear, amendments to the Organic Act can only become effective when approved by a majority of the vote cast in a plebiscite.
The ball game is far from over. Nor can it be said that the issue is already moot. I’m not inclined to believe that said measure can withstand scrutiny in the Senate. In an interview, Senator Bongbong Marcos expressed the view that postponement of elections should be frowned upon by the legislative branch. I guess that gives us a hint of what would be the fate of HR 4146 in the days to come. More than this, the passage of this measure does not speak well of President Aquino’s leadership. When this agenda was thrown into the plenary a week before, the majority could not even master a quorum. It’s just ironic that after the impeachment saga of Merci, all things seem to fall places for HB 4146. I am just newbie in the House of Representatives but something tells me that HB 4146 and the impeachment were symbiotically played. I just can’t clearly draw the line for now.
On June 6, 2011, after heated debates, the Senate has approved the Bill postponing this year’s ARMM elections to 2013. 13 Senators voted in favor while 7 voted against postponement. The two chambers then will convene in a bicameral conference to reconcile both versions and transmit it respectively back to the House and the Senate for ratification. After ratification by both chambers, the reconciled bill will be transmitted to the President for signature. I surmise that after approval by the President, timely petitions will be filed before the Supreme Court questioning the constitutionality of said ‘law.’ This writer maintains his position that said Bill is unconstitutional for reasons discussed above. (June 7, 2011)