CONSTITUTIONAL ISSUES IN THE SYNCHRONIZATION
OF NATIONAL AND LOCAL ELECTIONS
By
Senator Miriam Defensor Santiago
(Remarks on 6 June 2011 at the Senate plenary debate over S. B. No. 2756)

THE PRINCIPLE OF SYNCHRONIZATION

The Constitution does not explicitly provide that national and local elections shall be synchronized. Instead, the Constitution under Article 18, Transitory Provisions, Section 5, uses the phrase "for purposes of synchronization of elections." Thus, the Constitution implicitly places constitutional value on synchronized elections. By constitutional value, I mean that the Constitution recognizes the significance, desirability, or utility of synchronized elections to the general public.

I am surprised that critics of the bill do not even bother to raise the threshold question of whether synchronization is a constitutional mandate. I presume that this remarkable omission signifies unquestioning acceptance of the proposition that a constitutional implication is as effective as an outright constitutional provision.

For, as I have written in my casebook on constitutional law: Implication plays a very important part in constitutional construction, because the constitution being general rather than detailed, it treats many essential items by implication. It has been said that implied limitations are essential to the effectiveness of every constitution. What is implied is as much a part of the instrument as what is expressed. Later cases have ruled that the intent of a constitution may be shown by the implications, as well as by the words of express provisions. Implication is only another term for meaning and intention.

The Supreme Court has construed the use of the phrase "synchronization of elections" as nothing less than a constitutional mandate in the 1991 case of Osmeña v. Comelec. The Court ruled: "It thus becomes very evident that the Constitution has mandated a synchronized national and local elections." (Emphasis added.) It summarized its findings thus: "With the clear mandate of the 1987 Constitution to hold synchronized (simultaneous) national and local election . . . . R.A. No. 7056 is clearly violative of the Constitution because it provides for the holding of a desynchronized election." (199 SCRA 750 [1991]).

THE PRINCIPLE OF LOCAL AUTONOMY

The Constitution provides in Article 10 Section 1: "There shall be autonomous regions in Muslim Mindanao . . . ." And in Sec. 2: "The territorial and political subdivisions shall enjoy local autonomy." Thus, just like synchronized elections, local autonomy is a constitutional principle.. But there is no basis for the view that these two values should be viewed as necessarily conflicting with each other, such that the existence of one should necessarily mandate the death of the other.

THE RULE OF IN PARI MATERIA

In pari materia is a Latin phrase meaning "on the same subject." Provisions on the same subject occupy comparable and equal positions. It is a canon of constitutional construction that constitutional provisions that are in pari materia should be construed together, so that inconsistencies in one provision may be resolved by looking at another provision on the same subject. Synchronization as well as local autonomy in the ARMM are in pari materia. Effect should be given to each of these two constitutional principles, and neither one should be treated as superfluous. The court will avoid a construction which renders the principle of synchronization and the principle of local autonomy as conflicting with each other.

An elementary rule of construction is that, if possible, effect should be given to every part and word of a constitution, unless there is clear reason for doing otherwise. As an American court ruled recently: "All constitutional provisions enjoy equal dignity." (National Pride at Work Inc. v. Governor of Michigan, 481 Mich 56 [2008]). Another recent 2009 decision ruled: "Each word, phrase, clause, and sentence must be given meaning so that no part will be void, redundant, or trivial." (Caine v. Horne, 220 Ariz. 77 [2009]). It is a basic rule of construction that a constitutional provision should be construed to make all its parts harmonize.

The conflict between the constitutional principle of synchronization and the principle of local autonomy is more apparent than real. The conflict, if any, is not irreconcilable. There is irreconcilable conflict, only if one authorizes what the other forbids, or vice versa. Where there is no irreconcilable conflict, both constitutional principles must stand, even if there is some tension between them.

Before the court declares a statute unconstitutional, the court must be convinced beyond a reasonable doubt that the legislation and the constitutional provision are incompatible. If an averted conflict or repugnancy between a law and the constitution can be reconciled, the court must do so. While construing this bill, the Supreme Court will interpret it as consistent with applicable constitutional provisions, and seek to harmonize the constitution and the statute.

THE RULE OF EXPRESSIO UNIUS

The Constitution, Article 10 Section 17 provides: "All powers, functions, and responsibilities not granted by this Constitution or by law to the autonomous regions shall be vested in the National Government." The Constitution then goes on in Section 20 to provide that the organic act of the autonomous region shall provide for legislative powers over nine subjects, none of which is the synchronization of elections. This being so, such synchronization is vested in the national government through the Congress.

Expressio unius est exclusio alterius. To express or include one thing implies the exclusion of the other. When a constitutional provision serves to point out certain exceptions to some of its own general rules, the court may not say that other exceptions were intended, though not mentioned. In the grant of the power of local autonomy, and in the regulation of the mode of their exercise, there is an implied negative. This is the implication that no other than the expressly granted powers passes by the grant, and that they are to be exercised only in the prescribed mode.

If Congress were to be prohibited from legislating on synchronized elections, then what agency shall legislate? There would be a vacuum in the law, which is an absurd result. The Supreme Court itself, in the 2004 case of Disomangcop v. Datumanong (444 SCRA 203[2004]) noted that when the Constitution enumerates the legislative powers of the ARMM, what is not included is excluded. The Court said categorically: "Expressly not included therein are powers over certain areas."

SUPREME COURT PROHIBITS HOLDOVER

The Constitution, Article 10 Section 8 provides: "The term of office of elective local officials , . . . shall be three years . . . ."

The Supreme Court in the 1991 case of Osmeña v. Comelec cited American cases from both Corpus Juris and American Jurisprudence to rule against holdover, thus: "It is not competent for the legislature to extend the term of officers by providing that they should hold over until their successors are elected and qualified, where the Constitution has in effect or by clear implication prescribed the term." And again: "The legislature cannot, by an act postponing the election to file an office the term of which is limited by the Constitution, extend the term of the incumbent beyond the period as limited by the Constitution."

Since the Supreme Court prohibits holdovers, how should ensuing vacant public offices be filled? The Supreme Court ruled that such vacancies should be filled by the President, in the 1991 case of Menzon v. Petilla (197 SCRA 251). In that case, the Court noted that existing laws gave to the President the power to make temporary appointments in certain appointive offices, pursuant to his power of general supervision over local governments. The Court ruled: "However, in the absence of any contrary provision in the

Local Government Code and in the interest of public service, we see no cogent reason why" the power of presidential appointment should not be exercised.

PRESUMPTION OF CONSTITUTIONALITY

If we pass this bill and it is subsequently questioned in the Supreme Court, this bill will enjoy the presumption of constitutionality. In the 1991 case of Dimaporo v. Mitra (202 SCRA 779), the Supreme Court ruled: "This Court has enunciated the presumption in favor of constitutionality of legislative enactment. To justify the nullification of a law, there must be a clear and unequivocal breach of the Constitution, not a doubtful and argumentative implication. A doubt, even if well-founded, does not suffice."

The burden of proof lies on the critics to prove that this bill is unconstitutional. The basic principle of constitutional adjudication is the presumption of constitutionality - the strong presumption that all regularly enacted statutes are constitutional. Consequently, the Supreme Court will favor validating the legislation rather than invalidating it. The Court will favor that interpretation of legislation that gives it the greater chance of surviving the test of constitutionality.

A party who alleges the unconstitutionality of a statute normally has the burden of substantiating his or her claim. This is a heavy burden. The quantum of proof is "clear, palpable, or manifest" violation of the Constitution. The critics should show proof of unconstitutionality beyond reasonable doubt.

THE POWER OF CONGRESSIONAL CONSTRUCTION

In the first instance, it is Congress which has power to construe the Constitution. In fact, in the 1946 case of Vera v. Avelino (77 Phil. 192), the Supreme Court ruled: "The proceedings of the convention are less conclusive of the proper construction of the fundamental law than are legislative proceedings of the proper construction of a statute, since in the latter case, it is the intent of the legislators that courts seek, while in the former, courts are endeavoring to arrive at the intent of the people through the discussions and deliberations of their representatives."

The passage of time has led to the long-standing rule that a practical construction by Congress of a provision of the Constitution is entitled to great weight and ought not to be lightly disregarded. Congress has passed seven laws, beginning with R.A. No. 7647 and ending so far with R.A. No. 9333, changing the date of ARMM elections. These seven laws constitute a long-continued practical construction by Congress of power under the provisions of the Constitution. Thus, these seven laws should be taken as fixing the meaning of the constitutional principles of synchronization and of local autonomy taken together.

CONCLUSION

The principle of synchronization of national and local elections should be harmonized with the principle of local autonomy. Congress has the power to synchronize elections, while the powers of ARMM are limited to those enumerated in the Constitution, Article 10, Section 20. In view of repeated Supreme Court rulings that holdovers are prohibited, any ensuing vacancy in the ARMM should be filled by the President in the exercise, not of the power of control or of the power of general supervision, but in the exercise of the executive power of appointment.