It would have been different if Section 50, RA 11559 of its transitory provision states in this wise:
“(a) The newly elected officials of the newly created provinces shall be elected on the second Monday of May 2022 National and Local elections:
Provided, That, if this Act is approved and ratified xxxxx, the vice-governor and the next ranking elective member of the Sangguniang Panlalawigan of the present Province of Maguindanao, who are residents of the new province of Maguindanao del Norte, shall assume as its acting Governor and acting Vice-Governor, respectively, and both shall continue to serve in office until their successors shall have been appointed by the President.”
But that is not to be so. What Section 50, Ra 11550 expressly and clearly says: “xxxx both (i.e. the elected Vice-Governor and the ranking member of the Sangguniang Panlalawigan in the Maguindanao local elections of 2022) shall continue to serve in office until their successors shall have been elected and qualified xxxx.”
The intention of Congress in passing the said transitory provision is crystal clear; the acting Governor and Vice Governor shall continue to serve as such “until their successors shall have been elected and qualified xxx” and NOT APPOINTED BY THE PRESIDENT.
The legislators were wise and prudent enough to ensure that the people of Mindanao del Norte would be the ones to choose their acting Governor and Vic-Governor who would temporarily run the affairs of the newly created province of Mindanao del Norte until they elected their successors.
As the Supreme Court puts it in the mandamus case, “the law abhors a vacuum in public offices.” It can never be the intent of the legislature to pass a law that will create a vacancy in the office or have it remain unoccupied. It would be against public policy because the people will suffer if there is a vacancy — and there is a hiatus in the performance of public functions, resulting in the delay — or failure in the delivery of basic services.
While the President under the Constitution has the authority to appoint officials in the government, the fundamental charter, however, limits the same to “whose appointments are not otherwise provided for by law and those whom he may be authorized by law to appoint.” (Section 16, Article 7, Constitution)
The President’s power to appoint other officials in the government does not apply to appointing the acting Governor and acting Vice-Governor of Maguindanao del Norte because the law itself (Section 50, RA 11550) provides the manner by which the acting Governor and acting Vice-Governor will be placed in such capacity, which is by election. Both of them will continue to serve in office until their successors are “elected and qualified.”
Again, to repeat, “until the successors are elected and qualified” and NOT APPOINTED by the President.
The government lawyers should discard their mistaken legal opinion on the non-applicability of Section 50, RA 11550 to the assumption of office of acting Governor Fatima Ainee Limbona-Sinauat and acting Vice-Governor Sharifudin Mastura, which apparently became the basis of the appointment of acting OIC Macacua, which caused the present impasse in the governance of Maguindanao del Norte.
They should also halt the invocation of technicality to delay, if not frustrate, the enforcement of the decision in the mandamus case. No matter how well-intentioned that motivated them to render the injurious and incorrect legal opinion, they must now bow to the majesty of the law.
The President cannot be faulted on the appointment of Abdulraof Macacua as he understandably relied on the opinion and counsel of the government lawyers.
In the past, the President has exhibited fairness and a sense of justice, as exemplified by his dismissal of Department Undersecretary Leocadio Sebastian and the three other former members of the Sugar Regulatory Administration when they were wrongly sacked in connection with the importation of 300 thousand metric tons of sugar, and putting back in office Sebastian, which was a stinging rebuke to the findings and recommendation of the Senate Blue Ribbon Committee that grossly erred in adjudging them guilty of serious misconduct in office.
It will not be a surprise if he again demonstrates the same fairness and justice in resolving the destructive impasse in Maguindanao del Norte.
It is also hoped that the government’s lawyers rectify their blunder and not further embarrass the President for, indeed, their legal faux pas was a disservice to the appointing power.