Saturday, April 23, 2011


There is a bill already approved by the House of Representatives but still pending in the Senate which aims to synchronize the ARRM elections with the national elections. Under the current law, the term of the incumbent local officials of the ARRM will end on September 30, 2011. The election of the next officials is currently set for Monday of August, 2011. If the current bill is approved, the elections will not be held on the first Monday of August, 2011 but in May 2013. Hence, there would be a vacancy in the ARRM offices from September 30, 2011 to June 30, 2013 – or a period of twenty-one months. How should these vacancies be filled?
Before answering that question, a prior question need be answered. Why synchronize the ARRM elections with the national elections? One big reason being used, I understand, is economy. But synchronization also finds support in the desire of the Transitory Provisions of the 1987 Constitution that local elections be synchronized with national elections. This desire is not explicitly stated but it can be deduced from Section 2 and 5 of the Transitory Provisions. And since the ARRM elections are local elections, it stands to reason that they should be synchronized with other local elections. Moreover, I think that there is a reason for synchronization peculiar to the ARRM. The absence of synchronization in ARRM gives undue advantage to the powerful lords of the area to control the results of local elections. Synchronization will have the effect of diffusing the energies of the local lords since they would be attending to both local and national elections. Whether these reasons are enough to convince the Senate to go along with the House bill remains to be seen.
To come back now to the matter of filling the vacancies, the House bill rejected the option of filling the twenty-one month hiatus by allowing the incumbents to hold over until their successors are elected. Apparently the rejection of the hold-over option was based on the 1991 case of OsmeƱa v. Comelec which had held that hold over would change the three year term set by the Constitution and therefore would be unconstitutional. I doubt, however, that the current Court would hold the same position considering that more recent decisions have made a distinction between term and tenure. The term of local officials is fixed by law at three years and may be changed only by constitutional amendment. Tenure, however, which is the actual period an official holds office, can be shorter or longer than the term.
At any rate, the rejection of the hold-over option may have been based on other reasons also. The House may have considered that a hold over of twenty-one months would be too long. Indeed, in instances where hold over has been allowed, the periods involved were usually short temporary vacancies in an office. The House may have reasoned that, if there is to be a prolonged hold-over, there must be a way of renewing the public mandate. Hence, the House opted for appointment as the vehicle for filling the vacancy by a new mandate.
The House bill proposes that the vacancies necessitated by the synchronization should be filled by appointment by the President. The only limitation imposed on the President is that the appointees should possess the legal qualifications for the office. As to the appointees themselves, they are made ineligible to run as candidates for elective positions in the next regular ARRM elections.
The affirmation of the power of the President to appoint officers to an elective position is based on necessity of public service. In the 1991 case of Menzon v. Petilla, the Court affirmed that such power can be assumed by the President. But the issue in the Menzon case was whether the temporary occupant of the office was entitled to compensation. In the end the Court concluded that he was, at least as a de facto officer. It was not a clear affirmation of a power of the President to fill temporary vacancies in elective positions by appointment without statutory authorization..
I suggest that the better model for empowering the President to fill temporary vacancies by appointment is Section 7 of the Transitory Provisions of the 1987 Constitution. Said Section 7 authorized the President to fill by appointment the seats reserved for sectoral representatives -- but only from a list of nominees prepared by various sectors. A role thus was given to the concerned sectors in filling vacancies. A similar limitation on the choice to be made by the President can be included in the synchronization law. Unless such limitation on the President’s discretion is placed, he could very well fill the offices with his party mates. Imposing such limitation will make the appointment closer to a democratic process.
25 April 2011

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