Maguindanao legal fuzz

At a glance, the text of the law appears unambiguous, but a closer look will reveal a Gordian knot.

Man is fallible. Just when he thinks he has perfected his craft, he finds out there are loopholes yet to be covered. And this becomes a conundrum affecting personal and public interests. Frailties like lack of foresight, clash of political and turf interests and an unexpected turn of events could be the suspects.

Lawyers in the Bangsamoro Autonomous Region in Muslim Mindanao are agog over a legal question that might have been avoided but for a lack of foresight. The authors of Republic Act 11550, which called for a plebiscite that paved the way for the gerrymandering of Maguindanao province into South and North, thought they had covered all grounds of concern. They provided provisions for contingencies when the law would take effect before the May 2023 election. But unexpectedly the law was approved after the election. There were provisions to address who would govern these two political entities in the interregnum while transiting into full political life with the election of their officials, but the scenario changed. Its transitory provisions are like a cheesecake full of holes susceptible to varied interpretations. Yes, at a glance, the text of the law appears unambiguous, but a closer look will reveal a Gordian knot.

Who will serve as governors of the new provinces? The law says the incumbent governor of the mother province shall serve as governor of Maguindanao del Sur (she was reelected in the May 2022 election). This is not contested. The problem arises in the case of Maguindanao del Norte. The law says the incumbent vice governor (Bae Fatima Aimee Sinsuat) shall “assume as its acting governor” premised on the fact that she would be reelected in the May 2022 election. Did that provision settle the issue? No. There are questions begging for an answer. Meantime, there is a cloud of uncertainty as to who will legitimately manage the affairs of Maguindanao del Norte.

Armchair analysts say there was a lack of foresight when Congress approved the law. The law speaks of the May 2022 election and the assumption of the vice governor as acting governor of Maguindanao del Norte which is qualified by the phrase “if this Act is approved and ratified within six (6) months or more prior to 2022 . . . elections.” And since the plebiscite occurred AFTER the election, the law looks inoperable insofar as succession to the governorship. They likewise pointed out that while the law speaks of appointment by the President of the members of the Sangguniang Panlalawigan it did not mention “appointment” in the case of the vice governor assuming as governor. Why? Because of the assumption that whoever would be elected vice governor in the May 2022 election would assume the governorship of Maguindanao del Norte without the need for an appointment. The latter observation has prompted the camp of VG Sinsuat to argue that there is no need for an appointment, which to some is misplaced. On the opposite side of the spectrum are those who say that for the vice governor to assume as acting governor she shall first have to be extended an appointment by the President, which up to now has not happened.

My 2 cents are this: There is a need for an appointment by the President. The appointment is an inherent executive power of the presidency. It seeks to implement what the law provides. Yes, the law provides that the Vice Governor shall assume as Governor of the new province, but it still needs an imprimatur by way of appointment by the President. Otherwise, it would result in the anomaly of Congress creating an office and appointing its officials, which is an encroachment on the presidential power — an executive function congruent with the Republican government’s tenet of Montesquieu’s checks and balances. This is a basic principle of law. Has anyone heard of an “appointment by operation of law”?

More in my Wednesday column.

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