Reforms in the time of (ARMM) election. By Atty. Mehol K. Sadain

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By ATTY. MEHOL K. SADAIN

A lecture delivered in the RTD on the ARMM Election: To Postpone or Not?
Congressional Internship Program for Young Mindanao Leaders
House of Representatives, Quezon City
March 28, 2011

I chose to title this talk “Reforms in the Time of Election” because I believe that we can have reform in the ARMM even if we go through an election. In fact, I think present circumstances being what they are now, we simply have to go on with the ARMM elections this year, and introduce reforms in the process.

I will present my position in four parts, and I will present these parts as simply as possible:

The first part is a short discourse on the meaning of autonomy.

The second part is a presentation of the justifications given for the postponement of the ARMM elections and the appointment, in lieu of the election, of its officials; and my brief reaction to these justifications.

The third part consists of the legal provisions that are pertinent to the ARMM elections, their postponement and the appointment of officials, together with a discussion of these provisions.

Finally, the fourth part is the election option, and my recommendations on how the Aquino administration can go about instituting reforms while having elections.

First, some caveat and explanations: I am refuting the proposed election postponement and appointment not because I am anti-government, but because I think there are more reasonable, practical and legally arguable recourses, which will equally address the reform concerns of this government while at the same time, abiding by the law.

Neither does it mean that I am anti-reform, as in fact, I shall be outlining what and how reforms may be undertaken without destroying the ARMM constituents’ right to suffrage.

It does not also mean that I am against those who favor postponement and appointment. My position is not about personalities; it is about the law. I have many friends who are for postponement and appointment. Some of them may even be among those being eyed for appointment. My position is not about who gets appointed or elected. It is about respecting the law because I believe that the reforms we conceive are best implemented within the bounds of law.

We now go to the meat of this talk.

I.

For the first part, we ask: What is autonomy, or for that matter, what is regional autonomy as embodied in the Constitution and in the Organic Law of the ARMM or R.A. 9054?

There is no direct and specific definition of “autonomy” in our laws, but Webster’s Dictionary (Ninth Collegiate Edition) defines it as “the quality or state of being self-governing”. “Autonomous” on the other hand is defined as “having the right or power of self-government, undertaken or carried on without outside control.”  The 1987 Constitution provides for it in Art. X, Secs. 15 to 21, and R.A. 9054 or the Organic Act for the ARMM states that regional autonomy is governance and administration of the region “in accordance with the laws enacted by the Regional Assembly and this Organic Act”, meaning R.A. 9054 [Art. III, Sec. 1, R.A. 9054]. The primary responsibility of governing the ARMM is vested in the Regional Government [Art. I, Sec. 1. R.A. 9054], and the President merely exercises “general supervision” over the “autonomous regions” [Art. X, Sec. 16, 1987 Constitution] and over the “Regional Governor” [Art. V, Sec. 1, R.A. 9054] to “ensure that laws are faithfully executed.” [Art. X, Sec. 16, Constitution].

In other words, even if we say that what we have in the ARMM is limited autonomy, in the sense that certain controls are exercised by the national government, these controls are, however, limited and circumscribed by law and the Constitution. The spirit of the law is toward “autonomy”, such that the powers of the national government to intervene in this autonomy are provided by law.

Please note that both the Constitution and the ARMM Organic Act are in agreement that the President’s role in the ARMM is to see to it that the laws are obeyed. On this basis alone, the President should be wary of moves that tend to violate the provisions of R.A. 9054, as well as, and particularly, the Constitution.

II.

We move to the second part: the justifications offered for postponement and appointment.

Allow me to draw the justifications for postponement from House Bill 4146 itself and its explanatory note, and please bear with me as we analyze the propriety and advisability of each of these justifications.

  1. The explanatory note says: “(T)he ARMM elections had been marred with intervention of elected national officials, and even of other local elective officials as these officials were already in office at the time the ARMM elections were being conducted… The ARMM autonomy would be safeguarded if the elections for the ARMM are conducted simultaneously with the elections for the national and other local officials as mandated by the Constitution.”

Allow me to comment on the practical side, and leave the legal discussion for Part 3. If the problem with the ARMM elections is due to the “intervention of elected national officials which marred these elections”, then the proper solution is for this government to abandon the practice of past administrations, and refrain from intervening in the ARMM elections. This problem is an offshoot of national intervention, and not inherent to ARMM elections per se. Secondly, to say that the reason why these officials, whether national or local, are able to intervene in the ARMM elections  is that they are already in office at the time of the ARMM elections, is to forget that whether or not you schedule the ARMM outside or with the national elections, these so-called national and local officials will still be in office during the campaign and actual elections in May. Having simultaneous elections does not mean that the incumbent officials can no longer intervene. The truth is THEY WILL STILL BE IN OFFICE, and will have more reasons to intervene because they may ALSO BE SEEKING REELECTION. It is not correct to say that their chance of intervening is lesser when they are also seeking re-election. Experience tells us that they will be compelled to intervene more because their re-election or the election of their chosen candidates may be at stake.

2. The explanatory note says: “It bears emphasis that pushing through with the 2011 elections may mar the ongoing peace talks with the insurgent groups which can disrupt and worsen the peace and security situation in the region.”

We have been having peace talks and ARMM elections from the 90s to the present, and there has been no instance, when the ARMM elections have significantly “marred the ongoing peace talks”. This reason is not valid, unless the government wants the ongoing peace talks to be factored into the ARMM elections. And if this is the case, then it is as if the government is saying that we should make this elections dependent on the outcome of the peace talks, which is complete anathema to the idea of suffrage. My point here is that it appears to be a negation of the will of the ARMM electorate for ARMM governance to be promised to a group (whether the MNLF or the MILF), as if the ARMM is part of the “spoils of war”. Finally and on a more practical consideration, we cannot even be sure that the peace negotiations will be completed in time for the resetting of the ARMM elections in 2013. In other words, why make something definite (the scheduled ARMM elections) dependent on something indefinite (the completion of the peace negotiations)?

3. The explanatory note says: “Likewise, the election will just throw ARMM in a vicious cycle characterized by misgovernance and corruption, which it is currently in. Under the same ineffective leadership, ARMM’s development will continue to be an impossible goal.”

First of all, I believe that this statement will be contradicted by all past ARMM regional governments and governors, and each will have their own arguments as well as list of achievements to show that their leadership is or was not “ineffective”. That is not my point though; I think all past and present governors can argue for their own administrations. The danger in this justification is that it presumes and pre-judges that the incoming ARMM officials who will be elected if the elections push through in 2011, will be ineffective, and will be corrupt and will not know how to govern. I think this does not speak well of our politicians or political hopefuls, as well as the Muslims or Moros in general. The presumption or pre-judgment is rather rash and uncalled for. Are we GOD who can tell how the next ARMM officials will govern, before they are actually elected and given the chance to govern? Worse, is the present administration saying that all the ARMM politicians are corrupt, ineffective and do not know how to govern?

4.  The explanatory note says: “With the ending of the term of the incumbent officials … significant reforms will be introduced in the regional government with the appointment of Officers-in-Charge towards the achievement of peace and security in the region. The interim period will allow the region’s new governing mechanism, with the aid and support from the central government, to improve its capabilities in addressing the issues in beleaguering the region. Introducing reforms can be a major agenda of the national government… In two years, the introduction of reforms can initiate the transformation of ARMM into the self determining unit as envisioned by the Constitution which will hopefully continue upon the election of its officials in 2013.”

This is the bill’s argument for appointment. Without yet going into its legality, allow me just to focus on its practicality and common sense. Again this assumes that we can only have reform or this government can only implement reforms if it chooses or appoints its own OIC in place of erstwhile elective officials. The fallacy in this argument is that it pre-supposes that all appointive ARMM officials will be automatically effective in implementing government reforms, while those to be elected in the 2011 elections, if it pushes through, will be automatically ineffective. I say that the justification is fallacious because if it is true then we should by now have a well-reformed bureaucracy considering that all of its officials are appointive. We all know, however, that our bureaucracy is far from ideal and reformed; hence, how can we be assured that the appointment of ARMM officials will bring about the much needed reforms in two years time? More to the point, why violate the right of suffrage to bring about reforms the achievement of which cannot be guaranteed in two years time?

The truth is that NO appointive official or officials can guarantee ARMM reform because reform is the result of so many interventions, one of which is national government support. And national government support that is apolitical can and should be extended by this administration to the ARMM leadership, whether it is appointed or elected. The bottom line is you do not need appointive officials to introduce reforms. The truth is if the national government is serious about reforming the ARMM, it has all the powers to push any elective regional officials to implement reforms in the ARMM.

5.  Finally, the explanatory note says: “(T)he two year period will enable the Commission on Elections to institute electoral reforms such as purging of the voters’ list and biometric voters’ registration.”

I will reserve my comments on this for the fourth part of this lecture.

III.

Let us now go to the third part and discuss the legal provisions that are pertinent to the ARMM Elections, and the possibility of postponing it and appointing otherwise elective officials.

There are areas here where the constitutionality or unconstitutionality of the provisions of H.B. 4146 is a gray area, particularly in the “resetting” or “synchronization” portion. I would like to believe that the final say here is with the Supreme Court. On the other hand, there are provisions in H.B. 4146, particularly in the “appointment” part where the 1987 Constitution is very clear, and which stands to be violated if the appointment of ARMM OICs is pushed through.

Let us look at the pertinent legal provisions, and let us first focus on the provisions which clearly affect the constitutionality of H.B. 4146:

The CONSTITUTIONAL PROVISIONS

ART. X. SEC. 16.

“The President shall exercise general supervision over autonomous regions to ensure that laws are faithfully executed.”

Compare this to ART. VII, SEC. 17.

“The President shall have control of all the executive departments, bureaus and offices. He shall ensure that the laws be faithfully executed.”

There is a reason for the difference in the words used: “general supervision” for the autonomous regions (which is similarly found in the local government provisions), and “control” for the executive departments, bureaus and offices. You will also note that the power of “general supervision” by the President over the autonomous regions is “to ensure that laws are faithfully executed”, which gives us an idea of the primordial importance of the law above all else — or of the primordial importance of R.A. 9054, which is the law governing the ARMM. As a rule, the power of “general supervision” does not necessarily include the power “to appoint” — ESPECIALLY IF THERE ARE PROVISIONS IN THE CONSTITUTION OR THE LAW THAT MITIGATE OR ARGUE AGAINST APPOINTMENT, or to put it differently, ESPECIALLY IF THERE ARE CONSTITUTIONAL OR LEGAL PROVISIONS THAT SAY THAT OFFICIALS SHOULD BE ELECTED.

So we ask, does the Constitution or R.A. 9054 mandate the election of ARMM top officials? The answer is a resounding YES!

ART. X. SEC. 18.

“The Congress shall enact an organic act for each autonomous region with the assistance and participation of the regional consultative commission composed of representatives appointed by the President from a list of nominees from multisectoral bodies. The organic act shall define the basic structure of government for the region consisting of the executive department and the legislative assembly, both of which shall be elective and representative of the constituent political units. x x x

The creation of the autonomous region shall be effective when approved by a majority of the votes cast by the constituent units in a plebiscite called for the purpose, provided that only provinces, cities and geographic areas voting favorably in such plebiscite shall be included in the autonomous region.”

We have therefore seen that the Constitution itself states that “the executive department and legislative assembly (of the autonomous region) … shall be elective and representative of the constituent political units.”

Because of this constitutional provision, R.A. 9054 likewise provides for elected, instead of appointed posts, thus:

The PROVISIONS OF R.A. 9054

ART. VI, SEC. 2. Election of Regional Assembly

“The Regional Assembly shall be composed of Members elected by popular vote, with three members elected from each of the legislative districts.”

ART. VII, SEC. 1. Executive Power

“The executive power shall be vested in a Regional Governor. He shall be elected by the qualified voters of the autonomous region”.

We therefore have a situation here, where the law, R.A. 9054, provides for elections BASED on the constitutional provision which provides for the same. In effect, if you advocate appointment you are going against Art. VI, Sec. 2 and Art. VII, Sec. 1 of R.A. 9054, which are in turn based on Art. X, Sec. 18 of the Constitution. If you want to appoint, you therefore have to amend these provisions. Without such amendment, the appointment will not only violate R.A. 9054, it will also GO AGAINST Art. X, Sec. 18 of the Constitution, a VERY CLEAR CASE of unconstitutionality of H.B. 4146. You cannot justify appointment by citing the residual powers of the President. In the first place, residual powers can be invoked only if there is NO CLEAR GRANT of POWER. If the grant and LIMITS of POWER are clearly provided for either by law or by the Constitution, you have to institute amendment/s to enable you to exercise such power. Otherwise, the power thus exercised is either contrary to law or contrary to the Constitution, or both. Secondly, residual powers that are not so provided by law are usually exercised only during times of exigency, which is not the case in the ARMM today.

The foregoing provisions are pristine clear, when the provisions of law are clear and express, there is no room for interpretation or construction. This is a basic rule in statutory construction.

Now, let us go to the resetting and synchronization of the ARMM elections to 2013:

The main legal arguments of the proponents of postponement are:

  1. The Constitution provides for National and Local Elections synchronization;
  2. The ARMM elections have been reset so many times in the past without any amendment to the Organic Law; hence, a resetting this time, will not also need an amendment;
  3. Even if a change in R.A. 9054 needs an amendment and a plebiscite, H.B. 4146 is not actually amending R.A. 9054, but R.A. 9333 which amended R.A. 9140 and did not go through a plebiscite; hence, in the event H.B. 4146 becomes a law, it will not also need a plebiscite; and
  4. Resetting the ARMM elections may be done through the passage of a law without a plebiscite because even the 1987 Constitution allows Congress to pass a law to change the election date without need of a plebiscite.

Unlike R.A. 6734 or the previous regional autonomous charter, R.A. 9054 contains a specific date for the ARMM elections, in this wise:

ART. XVIII on the Transitory Provisions, Sec. 7.

The first regular elections of the Regional Governor, Regional VG and members of the Regional Legislative Assembly under this Organic Act shall be held on the second Monday of September 2001. The Commission on Elections shall promulgate rules and regulations as may be necessary for the conduct of the said elections.

The provision may directly refer to the FIRST regular elections under R.A. 9054, but together with the other pertinent provisions in R.A. 9054, it provides a good basis for determining the proper date of ARMM elections.

Here are the other pertinent provisions:

ART. VI, SEC. 4. Term of Office

The members of the Regional Assembly, including the sectoral representatives, shall have a term of three years which shall begin at noon on the 30th day of September next following the day of the election and shall end at noon of the same date three years thereafter.

ART. VII, SEC. 7. Terms of Office of Elective Regional Officials.

The terms of office of the RG, RVG and members of the RA shall be for a period of three years, which shall begin at noon on the 30th day of September next following the day of the election and shall end at noon of the same date three years thereafter. The incumbent elective officials of the autonomous region shall continue in effect until their successors are elected and qualified.

If we look at all three provisions, we can see that if ever we do not consider the 2nd Monday of September 2001 as the date of the succeeding ARMM elections on the ground that Art. XVIII, Sec. 7 is transitory and applies only to the first ARMM elections, still, Art. VI, Sec. 4 and Art. VII, Sec. 7 on the terms of office will tell us that any specification of the subsequent elections in the ARMM should be close to September 30, the date specified for the beginning of the term of office of elective ARMM officials.

Synchronizing the ARMM elections with the national and local elections in May will result in a long period  — almost five months — of waiting before the duly elected ARMM officials can assume office, unless you also amend the September 30 date, or unless Congress passes a law changing the date of our national and local elections to August or September.

The constitutional provision on synchronization is not sacrosanct (and absolute) for several reasons:

  1. The provision is in Art. XVIII, Sec. 1 or in the Transitory Provisions of the 1987 Constitution. It provides:

“The first elections of Members of the Congress under this Constitution shall be held on the second Monday of May 1987. The first local elections shall be held on a date to be determined by the President, which MAY be simultaneous with the election of the Members of the Congress. It shall include the elections of all Members of the city or municipal councils in the Metropolitan Manila area.”

  1. As can be seen in the above provision, not only is it transitory, it is not also mandatory, as indicated by the used of the words “MAY BE SIMULTANEOUS”.
  2. As can be seen in the following constitutional provisions, the 2nd Monday election date is not even constitutionally fixed. What is fixed is the RIGHT OF CONGRESS to provide the date or other dates BY LAW, as can be seen below:

ART. VI. SEC. 8.

Unless otherwise provided by law, the regular election of the Senators and the Members of the House of Representatives shall be held on the second Monday of May.

ART. VII. SEC. 4.

Unless otherwise provided by law, the regular election for President and Vice-President shall be held on the second Monday of May.

What all these mean is that if there is already a law setting the ARMM election date and that law happens to be the Organic Act of the ARMM, then any move to change it should pass the proper procedure for amending R.A. 9054. More to the point, if H.B. 4146 wants to change the ARMM election date and synchronize it with the national and local election date in the 2nd Monday of May, the one way of doing it is for a LAW TO BE PASSED BY TWO THIRDS OF THE HOUSES OF CONGRESS VOTING SEPARATELY, AND THEREAFTER SUBJECTED TO A PLEBISCITE.

Incidentally, Art. VII, Sec. 7 of R.A. 9054 also provides for a situation where no election is held, or even if one is held, the officials are not proclaimed and have not qualified. The said section declares: “The incumbent elective officials of the autonomous region shall continue in effect until their successors are elected and qualified,” in short, we have here a law that specifically provides for hold-over instead of appointment. Until this is brought to the Supreme Court and struck down by the Honorable Court, the provision may be used.

It is basic in Constitutional Law that the Court will not exercise its power of judicial review unless a case ripe for adjudication is filed before it. This also applies to past laws (like R.A. 9014 and 9333) which according to the proponents of postponement and appointment supposedly changed the ARMM election date without going through a plebiscite. We should note that these laws were not brought to the Supreme Court for the Court to rule on their constitutionality or compliance with R.A. 9054. Their implementation being political and administrative actions, it does not necessarily imply that they are legal because the Court has not ruled on their legality, and the Court has not so ruled because their implementation was not brought to the Court’s attention. In other words, they cannot be used to justify a change in R.A. 9054 that does not go through a plebiscite, in accordance with Art. XVII, Sec. 3 of R.A. 9054, as follows:

ART. XVII, SEC. 3.

Any amendment to or revision of this Organic Act shall become effective only when approved by a majority of the vote cast in a plebiscite called for the purpose, which shall be held not earlier than sixty days or later than ninety days after the approval of such amendment or revision.

The other argument of the postponement and appointment proponents is that H.B. 4146 amends R.A. 9333, which in turn, amended R.A. 9140 (on the fixing of election date), and hence DOES NOT INVOLVE ANY AMENDMENT of R.A. 9054. This being the case, and inasmuch as it is only R.A. 9054 that went through a plebiscite and hence, requires a plebiscite for revisions or amendments, then they argue that H.B . 4146, not being amendatory to R.A. 9054, but only to R.A. 9333; the same does not need a plebiscite. Again, this is a fallacy that strains logic because no matter how you look at it, when you amend R.A. 9333 (or for that matter R.A. 9140) which are both transitory laws, YOU ARE IN EFFECT AMENDING R.A. 9054 which contains the election date, the term of office and the date of assumption to office by the duly elected and qualified ARMM officials.

By way of concluding our discussion on Part III, we saw that “election”, the “date of elections”, the “terms of office and assumption to office of the duly elected officials”, and the “holdover” by the incumbent in case their successors are not elected or have not qualified, BEING PART OF THE PROVISIONS OF R.A. 9054, then changing them should ALWAYS be subjected to a plebiscite as provided for by law or R.A. 9054.

IV.

NOW for the fourth part, which is the holding of elections, and our recommendations on how electoral and other regional reforms can be instituted.

We start by noting that today, time is not on the side of the proponents for postponement and appointment. At the risk of making it difficult for COMELEC to prepare for the elections in August 2011, and therefore jeopardizing the electoral exercise, a prolonged period of uncertainty will take its toll on the remaining five months or so, for COMELEC to prepare for the elections.

As a rule, it is not advisable to be vacillating between holding or postponing elections at a time when the COMELEC is in the midst of election preparation, because this will have an adverse effect on the readiness of the COMELEC to conduct the elections.

The time element therefore argues for conducting the elections so that the COMELEC can go full blast in its preparations.

What about the matter of safeguarding the elections, or diminishing the chances of fraud, as this is a frequent complaint against ARMM elections (as if the elections in other part of the country are already fraud free)?

It might interest you to know that in the entire country, it is the ARMM that has the biometrics of all the voters. In other words, voters’ biometrics is 100% complete in the ARMM, hence, the region is ripe for the implementation of the Automated Fingerprint Identification System (AFIS) which can identify double or multiple registrants and therefore neutralize them come election time. Considering that the AFIS has been acquired by the COMELEC in 2009 (or maybe early 2010), then by this time, it should have already done its work in the list of ARMM voters. These lists of voters can already be cleansed of multiple as well as under-aged registrants. And after the new lists of ARMM voters are eventually cleansed, their biometrics can in turn be included in the counting machine program so that THE MACHINE WILL ONLY ISSUE BALLOTS TO VOTERS WHOSE BIOMETRICS ARE RECOGNIZED BY THE MACHINE. This will effectively eliminate substitute voting, which is the bane of many elections in far away precincts. COMELEC, however, needs time to do this, and it cannot fully utilize the remaining time, if the possibility of postponement keeps dangling over their heads.

Hence, we can therefore reduce the incidents of electoral fraud in the coming ARMM elections.

Considering, however, the limited time available, the best recourse is to go on with the present elections in 2011 (whether on the 2nd Monday of August or of September), and if there is any need for amendments to institute reforms or to synchronize elections in 2013, then these amendments may be passed and subjected to a plebiscite on election day or anytime between election day and the 2013 mid-term elections. In the meantime, whoever gets elected should now be subjected to the “general supervision” powers of the President to ensure that the intended reforms are implemented, or at least commenced by the newly- elected officials.

I believe that any national government, by virtue of its administrative and fiscal ascendancy over the regional government, will always have the power to compel those elected in 2011 to be serious in the reform campaign. And I also believe that the ARMM constituents will most likely follow their elected officials than those appointed by the national government, in the move to institute reforms in the region.  Finally, I strongly believe that if there is anybody highly interested in reforming the ARMM, it is the Moros or the Muslims themselves. It is not fair to deprive them of their right to choose their leaders, and to vigorously push for true autonomy, because of electoral problems that can be found anywhere in the country. Neither is it fair to pre-judge them and their leaders by thinking that they will elect poor leaders, or the elected leaders are not capable of conceptualizing and implementing reforms. Finally, it is not lawful to do away with legally and constitutionally-mandated autonomy and election provisions without going through the proper procedure for changing the organic act or the constitution.

THE BEST WAY TO INTRODUCE REFORM

IS TO DO IT WITHIN EXISTING LAWS.

(Atty. Mehol K. Sadain is a former commissioner at the Commission on Elections)

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