REPUBLIC OF THE PHILIPPINES DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT: A. Francisco Gold Condominium II TOPE: EDSA Cor. Mapagmahal St., Diliman |=: Quezon City LEGAL SERVICE DILG Legal Opinion No. DIR. FRANCISCO C. JOSE, CESO IV eV 8 20H, pees Regional Director DILG-Region XI 58 Mac Arthur Highway, Matina, Davao City Dear Dir. Jose: This has reference to the 21 October 2011 Memorandum of former Region XI Director Ananias M. Villacorta seeking clarification on the following: a. Whether or not a declaration of permanent incapacity by an appropriate body or court is required before a local elective post is filled up; and b. Whether or not the attainment of finality of conviction of local elective official which carries the penalty of perpetual disqualification to hold office would suffice to give rise to the existence of permanent vacancy in the sanggunian post sans “declaration of permanent vacancy” by the proper courts. ‘The above queries were brought about by the 08 October 2009 Decision of the Fifth Division of the Sandiganbayan against Joel Reyes R. Lachica, an incumbent councilor and member of the SB of Jose Abad Santos, Davao del Sur, who was found guilty beyond reasonable doubt for violation of Section 3 (e) of RA 3019, as amended, and was sentenced to suffer the indeterminate penalty of imprisonment of six (6) years and one (1) month as minimum, to ten (10) years as maximum with perpetual disqualification to hold office. Thereafter, on 14 March 2011, the Sandiganbayan issued an Order of Arrest against Councilor Lachica on account of his failure to appear on 08 March 2011 for the execution of judgment. Since 22 March 2011, Councilor Lachica has not been attending the regular legislative sessions of the SB of Jose Abad Santos prompting the latter to seek your office's opinion on the following: a) whether or not a permanent vacancy in the SB may be declared on the basis of the "Order of Arrest” issued by the Division of the Sandiganbayan against Councilor Lachica; b) The appropriate agency or office to declare such vacancy; and c) Authority of the SB to declare said vacancy and its legal basi In an opinion dated 21 October 2011, your office opined that the judgment of conviction against Councilor Lachica may have attained its finality and the accessory penalty to perpetual disqualification to hold public office operates as a disqualification for him to discharge the functions of his office. However, as you opined, the SB of Jose Abad Santos should officially validate from the Sandiganbayan the finality of the judgment of conviction of Councilor Lachica prior to any official action of the legislative council acting as a collegial body. Anent the appropriate agency to declare such a vacancy, your office informed the SB that the Local Government Code of 1991 is silent on the matter. Neither the Department, nor the concerned legislative council is expressly conferred by law to declare a permanent vacancy occasioned by permanent incapacity lies within the power of the regular courts invoking pertinent provisions of the Rules of Court (DILG Opinion No. 151, s. 2002). Your office now seeks the Central Office’s clarification on the necessity of declaring such permanent vacancy by prover courts or body haced on the forenoina facts.We shall answer your queries in a single discussion. As mentioned in your 21 October 2011 opinion to the Members of the SB of Jose Abad Santos, Davao del Sur, Section 44 of the Local Government Code of 1991 (LGC) enumerates the instances when a permanent vacancy arises, viz.: “Section 44. x x x For purposes of this Chapter, @ permanent vacancy arises when an elective local official fils @ higher vacant office, refuses to assume office, fails to qualify, dies, is removed from office, voluntarily resigns, or is otherwise permanently incapacitated to discharge the functions of his office.” Emphasis, ous) We opine that permanent and temporary vacancies may be further classified in two (2), ie., vacancy due to illness/physical disability and vacancy due to legal causes. In DILG Opinion No. 151, s. 2002 and DILG Opinion No. 22, s. 2010, we discussed the consequence of a permanent/temporary vacancy due to the iliness/physical disability of the incumbent, vi “sox the Local Government Code did not empower any agency or official of the government to declare permanent vacancy due to illness of the incumbent. At this point, it bears to stress that due to the lack of provision in the local Government Code, the determination as to whether or not there is @ permanent or temporary vacancy due to illness of the Jncumbent would necessarily become an adjudicatory matter, meaning, such declaration should be obtained from our courts of justice in order for the said court to adjudicate and apply the law involved. Its in this regard, that we strongly suggest that in order for this hiatus not fo be left without remedy as it would undoubtedly affect the operations of your barangay, you may invoke the aid of the Regional Trial Cour, @ court of general jurisdiction, seeking a declaration pursuant to the Rules of Cour, as to whether or not your incumbent Sangguniang Barangay Member is still physicaly and ‘mental it to discharge the functions of his office. It fs only the court which can judicially dectare a vacancy inthe office ofthe Sangguniang Barangay, whether permanent or temporary.” As for permanent incapacity due to legal causes, in DILG Opinion No. 15, s. 2010, the Department had the occasion to interpret the last paragraph of Section 44 of the LGC, viz. “It may be observed that the last paragraph of the aforequoted provision enumerated the specific causes of permanent vacancies. Such enumeration was followed by the general statement, to wit: “xxx is otherwise permanently incapacitated to discharge the functions of his office.” This general statement may refer to permanent vacancies brought about by application of laws, such 2s civil interdiction or disqualification to hold office as an accessory penalty to criminal conviction. ‘such permanent incapacity. will thus give ise to the existence of permanent vacancy.” In the above-quoted opinion, we opined that permanent incapacity brought by application of laws such as civil interdiction or disqualification to hold office as an accessory penalty to criminal conviction gives rise to permanent incapacity. Applying the foregoing in this instance, assuming that the Sandiganbayan’s Decision convicting Councilor Lachica for violation of RA 3019, a special law, has become final and executory, the accessory penalty of perpetual disqualification to hold office meted upon him by the Sandiganbayan renders him incapacitated to discharge the functions of his office. In view thereof, we opine that the Sandiganbayan’s Decision meting upon Councilor Lachica the accessory penalty of perpetual disqualification to hold office operates as a permanent incapacity which gives rise to the existence of permanent vacancy in the membership of the SB of Jose Abad Santos, Davao del Sur. Menait ak pha Meru ocak sik dei ad Mile coe Oc auameue Menuet akaedhon‘We hope the foregoing sufficiently addresses your concern. Very truly yours, P ise o