COMMENTARY: RA 10153: Unconstitutional, Illegal, Defiling of sacred right of suffrage

(Oral Argument presented by former Senate President Aquilino Pimentel, a Mindanawon, assailing the constitutionality, validity and effectivity of R.A. 10153 before the Supreme Court on August 8, 2011)

I speak for the petitioners in G.R. 197280, namely, Former Governor Almarin Tillah of Tawi-Tawi, Datu Hassan Cana of Lanao del Sur, and, the Pilipino Democratic Party Lakas ng Bayan that has fielded candidates for the elective positions in the Autonomous Region of Muslim Mindanao prior to the enactment of Republic Act No. 10153 last July 30.

The issues raised by our Petitioners and by the others have already been probably mangled to death like the carcass of the proverbial beaten horse. Not only within the hallowed halls of this Chamber but outside of it in the cafes, in the Internet, and, indeed in the halls of Congress.

Still with the Court’s indulgence, kindly allow us to stress that Republic Act No. 10153 is:
I. Unconstitutional;
II. Illegal, and
III. Defiling of the sacred right of suffrage that the peoples of the ARMM had earned through the blood, sweat and tears of their martyrs and the goodwill of their fellow Mindanaonons and similarly-minded .citizens from the Visayas and Luzon.

Chain that binds

With all the respect that this representation can muster, may I beg that to stress that an unbreakable chain binds the Organic Acts of Muslim Mindanao, meaning the first Organic Act, Republic Act 6734, and, the second Organic Act, Republic Act 9054 that amended the first, primarily to the present Constitution of 1987; subsidiarily to the Local Government Code of
1991,   and, finally even if only inferentially to the Universal Declaration of Human Rights of 1948.

Unique autonomy

These basic and fundamental Acts uniformly bestow and categorically grant – in divergent prose perhaps – but in similar, if not the same, intent to invest the ARMM a uniquely crucial autonomy.

It is a crucial autonomy because it is an indispensable aspect in the search for justice, peace and development in the region.

That autonomous character, then, cannot just be cavalierly shoved aside, repelled or rejected by Republic Act 10154 under the deceptive legal formularium of the need to ‘synchronize’ the ARMM elections that were set for August 8, 2011, with the rest of the national elections in 2013. 0r by simply ‘cancelling’ the said autonomous regional elections that enables the President to engage in a misleading maneuver to appoint Officers-in-Charge (OICs) and put them, albeit illegally, in places of power to govern the region from 2011 until 2013 when the next so-called synchronized elections are scheduled to be held.

Fallacy

It is fallacious to even insinuate that the law providing for the synchronization of elections is all inclusive. The fact is that the said law excludes the officials of the ARMM from the other elective national and local officials who had to be elected in a ‘synchronized’ manner.

Yet, all these purported rationaIizations aim to reject the legal requirements, nay, fundamental demands of both the Constitution and the original and the amended Organic Acts of Muslim Mindanao that the people of the ARMM are empowered to elect the elective leaders of the ARMM.

Vacuum abhored but …

Neither does the cancellation of the ARMM elections justify the projected appointments of OICs to govern the region on the ground that the appointments would fill up the unwarranted gaps in the governmental structure of the ARMM. Simplistically, the argument posits the view that
nature abhors a vacuum.

But when we are discussing  a vacuum in legal structures it becomes vital to find out why the vacuum exists in the first place.

If the vacuum was artificially created so that simulated circumstances are used to justify the exercise of arbitrary power such as the President’s appointing OICs in the ARMM, that would be highly questionable. In the words of a friend, that would be tautology of the first order.

In any case, with the Court’s permission, may we now submit more substantial arguments to show that R.A. 10153 does not rest on solid legal premises but stands shakily on shifting sands of illogic and sophistry.

ARGUMENT

I. Republic Act 10153 unconstitutionally brushes aside the autonomy granted to the ARMM. That autonomy is vital to the search for justice, peace and development in the region as well as for the rest of the country.

It is unconstitutional because, among other things, in the guise of the need to ‘synchronize’ the ARMM elections with the legislative and local elections, the Act arbitrarily cancels the scheduled ARMM elections this month, authorizes the President to appoint OICs to govern the autonomous region and in effect dares the devil and the deep blue sea to do their worse.

Arrogance

One of its net effects is to empower people in the august palaces of power in Manila and disempower the people of the ARMM of their sovereign power to choose the leaders of their region.

The arrogance that underpins the passage of the questioned Act requires the corrective intervention of the Court.

11. Organic Act elections

The first Organic Act that created the Autonomous Region of Muslim Mindanao, Republc Act 6734, specifically mandated the elections of the governor and the vice governor and the membrs of the Regional Legislative Assembly. (secs)

The amendatory Organic Act, R.A. No. 9054 requires the same procedure for putting  officials in the elective positions in the ARMM (secs).

The requirements that the ARMM governor, vice governor and the members of the Regional Assembly are  to be elected did not spring only from the provisions of the Organic Acts.

It is also a fundamental mandate of the Basic Charter of the Country, the Constitution of 1987 that is still extant today.

In its Article X, after providing ‘There shall be autonomous regions in Muslim Mindanao and the Cordilleras as hereinafter provided.’ (Sec. 1, Art, X), and, after reiterating that ‘There shall be created autonomous regions in the two regions in its Section 18, the Constitution clearly and
explicitly ordains that ‘the basic structure of government for the region consisting of the executive department and the legislative assembly … shall be elective and representative of the constituent political units.’

The Constitution did not stop there.

It had previously decreed that ‘The territorial and political subdivisions shall enjoy local autonomy.’ (Sec.  2, Art. X).

And in Sec.18, Art. X, the Constitution ordered Congress to ‘enact an Organic Act for each autonomous region.’

The Constitution had decreed that Congress should pass an Organic Act to govern the autonomous regions. And the Constitution laid out the powers that the autonmous regions would exercise including the right of the people of the region to vote for their officials as previously mentioned.

Plebiscite

Perhaps, even more telling for purposes of our discussion is the fact that in both the first Organic Act of Muslim Mindanao, R.A. 6734 (Sec. 3, Art. XVIII) and in the second Organic Act, R.A. 9054 (Sec. 3, Art. XVII) that amended the first, a plebiscite is required before any law that amends any provision of the Organic Act becomes effective.

R.A. 10153 was not subjected to a plebiscite.

Therefore, it can be deemed to have become effective. If it is not effective, it is not a valid law.

There’s a mistaken notion going the rounds that the Organic Act of Muslim Mindanao is but an ordinary statute that may be amended without submitting the amendment to a plebiscite.

The idea was debunked by the Supreme Court in the case of Pandi versus Court of Appeals, 380 SCRA 436 (2002).

In the case, the Court ruled that although Organic Acts are classified as a statutes, they are ‘more than ordinary statutes because they enjoy affirmation through a plebiscite.

Moreover, aside from the plebiscitary requirement, the current Organic Act of Muslim Mindanao in Sec. 1, Art. XVII, R.A. 9054 unequivocally provides that: ‘Consistent with the provisions of the Constitution, this Organic Act may be re-amended or revised by the Congress of the Philippines upon a vote of two-thirds of the members of the House of Representatives and of the
Senate voting separately.’

While the House overwhelmingly approved its version of what eventually became R.A. 10153, the Senate failed to muster the 2/3 vote that the present Organic Act of Muslim Mindanao requires for amending or revising the said Act.

As stated in our Petition in the main, only 13 senators voted in favor of  the bill that eventually became R.A. 10153.

2/3 of the full complement of 24 Senators means 16 senators. But even if the 2/3 vote of the senate is reckoned on the basis of the 20 senators who were present at the time the bill in question was voted on, the required number of voted would still not have been reached. The actual number of senators who voted affirmatively for the bill in question was only 13. They
lacked a .33 percent to reach the 2/3 vote threshold.

While the argument may sound picayune, it is submitted that it should be given weight for the reason that were it just brushed aside, it would result in defiling the right of suffrage and the right to run for public office of the residents of the ARMM.

Suffrage is an inviolable right of the citizens in a representative democracy such as ours that enables Petitioner Tillah and Prof. Cana to vote for the leaders they want to place in positions of power in the ARMM. As a corollary, the right of the citizens possessed of the qualifications
required by law like Pax Pakung Mangudadatu, Margarita de los Reyes Cojuangco, Borgiva Tasmi Datomanong, Midpantao Musa Midtimbang, Abubakar Pendatun Paglas, Samir Makil Salic, Shameera Sulayman Matolo, Alexander Alie Sumulong, William Gubat Basaluddin, and, Ajid Omar Dalawis, among others, are recognized by law to submit their candidacies for judgment by the people of the ARMM. And they had filed their certificates of candidacies for
various elective posts in the ARMM before the elections were arbitrarily cancelled by R.A. 10153.

Incidentally, the people’s right of suffrage and inferentially their right to stand for public office are uniformly recognized in democracies all over the world.

It is, to repeat, also provided not only in the Organic Act – whether the first or the second – but also by the Constitution, and, by the Local Government Code.

And, of course, by the Universal Declaration of Human Rights of the United Nations in 1948. The Declaration has been made a part of the law of the land.

We can also go into a detailed discussion of the other legislative acts that somehow impacted also on the elections in the ARMM.

We will leave that to the kind discretion of the Court.

Suffice it to say at this point that the only legislative acts, I submit, that validly has repercussions on the current Organic Act of Muslim Mindanao and on R.A. 10153 is R.A. 9054 and the Revised Election Code that allows the Commission on Elections to exercise the reasonable power to defer elections to as close to their original dates as possible.

The elections we seek should have been held on August 8.

Obviously, the elections could no longer be held on that date.l

We harp on this fact for the reason that the issues raised in the Petitions at bar should have been resolved a long time ago.

But time and circumstance have not been accommodating to the Petitioners.

So we submit that we have to make do with what is possible.

It is possible to hold the elections in September or even in November.

Aside from the fact that originally, the elections were supposed to be held on August 8, there is really no obstacle to holding the polls next month or the month after next.

In the past the Comelec has been flexible enough to conduct elections as directed by circumstances.

There is no reason why it could not do so today.

With that, Your Honors, we submit. (Editor’s note: RA 10153 was passed by Congress on June 6. President Aquino signed it into law on June 30. The campaign period for the August 8 elections was supposed to start June 24). 

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