Wednesday, 25 May 2011 11:57
The proposal to postpone the scheduled elections this year of the elective officials of the Autonomous Region of Muslim Mindanao (ARMM) shows not only lack of understanding and recognition of the regional autonomy of ARMM but also lack of respect of the basic right of the people to their cultural identity. Postponing the elections without conducting a plebiscite to secure the consent of the ARMM constituents violates the human rights of the people of ARMM.
Republic Act No. 9054 (2001) or the Organic Act of ARMM provides that “[a]ny 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 (60) days or later than ninety (90) days after the approval of such amendment or revision.” The letter of the law is clear. No plebiscite means no amendment of the Organic Act can become effective.
Resetting or postponing the elections by law regardless of the wisdom behind the proposal cannot happen without the required plebiscite. Postponing the elections would mean an amendment of the Organic Act of ARMM.
The Organic Act of ARMM is not like other statutes which can be amended by an act of Congress and the approval or acquiescence of the President. Congress itself in the past imposed the pre-condition of having a plebiscite. The people must say “yes” or “no” to the amendment before it can become effective.
The Supreme Court in Disomangcop vs. Secretary of Public Works and Highways (2004) affirmed the legality of this pre-condition. In that case, there was a move to add an engineering district within ARMM. This was declared illegal since no plebiscite was conducted. What more in this case where the leadership landscape of ARMM and the exercise of one’s right to vote are involved. This case law is now part of the law of the land.
Having a pre-amendment plebiscite is not the only reason why the Organic Act of ARMM is a “special law.” Establishing the ARMM is a mandate and directive of the people to Congress enshrined in the Constitution. The Constitution allowed the formation of autonomous regions recognizing the common and distinctive historical and cultural heritage, economic and social structures within the region. Unlike provinces, cities, municipalities and barangays which only enjoy administrative autonomy, the ARMM enjoys a higher degree of autonomy – political-regional autonomy.
The Supreme Court in Disomangcop defined “regional autonomy” as the degree of self-determination exercised by the local government unit vis-à-vis the central government. Regional autonomy refers to the granting of basic internal government powers to the people of a particular area or region with least control and supervision from the central government. The objective of the autonomy system is to permit determined groups, with a common tradition and shared social-cultural characteristics, to develop freely their ways of life and heritage, exercise their rights, and be in charge of their own business. Self-determination refers to the need for a political structure that will respect the autonomous peoples' uniqueness and grant them sufficient room for self-expression and self-construction.
Regional autonomy ensures the right of peoples to the necessary level of autonomy that would guarantee the support of their own cultural identity, the establishment of priorities by the community's internal decision-making processes and the management of collective matters by themselves.
By postponing the elections without the affirmation of the amendment in a plebiscite will be not only be affront on the ARMM as an institution but it will also be insult to the people of ARMM. This is clearly a human rights violation.
If the people of ARMM cannot assert its cultural identity, will not be allowed to decide, will not be allowed to participate in governance, and will be deprived of their freedom to vote and participate in period elections, then without a doubt their human rights are violated. There are at least five (5) human rights under the Universal Declaration of Human Rights that will be infringed – one’s right to life, right to liberty, right to religion, right to take part in government, and right to periodic elections.
Changing the set of elective officials of ARMM therefore involves a 3-step process. Without one – (1) law amending the Organic Act of ARMM resetting the elections; (2) affirmation by the people of ARMM in a plebiscite; and (3) holding of the elections – there can be no valid change. No short-cut is allowed. Step 2 (plebiscite) cannot be dispensed with. Step 3 (elections) cannot be skirted and allow the President to appoint the ARMM officials. ARMM officials are elective officials under the Organic Act. If the President appoints, this may construed as a violation of the Constitution which is a ground for impeachment.
Step 1 (amendatory law) is likewise indispensable. The President or the Department of Interior and Local Government cannot even postpone the elections even if their intention is to “clean up” ARMM. The power to postpone any election lies with the Commission on Elections en banc, and not just one member of the Comelec. However, the power of Comelec to postpone is not absolute. The Omnibus Election Code outlines the grounds for postponement.
There must be a “serious cause such as violence, terrorism, loss or destruction of election paraphernalia or records, force majeure, and other analogous causes of such a nature that the holding of a free, orderly and honest election should become impossible in any political subdivision. The grounds must actually exist and must be connected to the conduct of a free, orderly and honest elections. If violence or terrorism is merely anticipated or expected or perceived to happen or is happening “now” and thus not election-related, then Comelec has no basis even talking about postponing the election.
By Alberto C. Agra,
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