Republic of the Philippines DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT ‘A. Francisco Gold Condominium I! Bidg., cor EDSA Mapagmahal Street, Diliman, Quezon City LEGAL SERVICE DILG OPINION NO. 22 S. 2010 March 10, 2010 MARILYN L, DELA CRUZ MLGOO, Municipality of Labrador Province of Pangasinan Dear Ms. DeLa Cruz: ‘his pertains to your letter seeking the Department's legal opinion, onthe following issues, hich we hereunder quote “(Is there aneed to declare the position of Mr. Escano vacant so that the Barangay Council can recommend and the Municipal Mayor appoint his replacement? If so, who will declare it vacant and how? {2) Can not the Barangay Council recommend and the Municipal Mayor appoint he replacement of Mr. Escano outight sans the declaration of vacany in the said position considenng that he has not been reporting for work anymore since May 20087 Per your letter, i appears that on May 17, 2008, Mr, Teofisto P. Escano, a Sangguniang Barangay Member of | Ugong, Labrador, Pangasinan, sufered a stoke resulting ffom his non- attendance to sessions and non-performance from his dutes and responsblties. On November 9, 2008, the Barangay Council of Ugong passed Resolutions No, 028-2008, requesting the Municipal Health Officer thru Mayor Emeslo L, cain to conduct a medical examination on Mr. Escano to determine his physical status to go back to work. On February 5, 2009, Mayor Acain aso wrote Mr. Escano to submit himself for Medical Check-up before the Municipal Health Offce orto any other ‘authorized physicians. Up tothe date of your letter, no information was sent by Mr. Escano to the Sangguniang Barangay or to Mayor Acain as to his physical status lo go back to work. Hence, your queries. We shall answer your queries in one (1) discussion since they are related In reply thereto, alow us first to restate the pertinent provision of the Local Government Code, Section 44 provides and we quote: "Sec. 44. Permanent vacancies in the offices of the Governor, Vice- Governor, Mayor, and Vice-Mayor--(a) a permanent vacancy occurs inte office of the governor or mayor , the vice-govemor or vice-mayor concered shal ‘become the governor or mayor. @ permanent vacancy occurs the offices ofthe {overnor, vice-governor, mayor, or vice-mayor, the highest ranking sanggunian ‘member ‘of, in case of his permanent inability, the second highest ranking‘sanggunian member, shall become the govemor, vioe-govemor, mayor or vice- ‘mayor, asthe case may be. Subsequent vacancies in the said office shal be filed ‘automaticaly by the other sanggunian members according to their ranking as defined herein. (b) Ifa permanent vacancy occurs in the office of the punong barangay, the highest ranking sangguniang barangay member or, in case of his permanent inabiity, the second highest ranking sanggunian member, shall become the punong barangay. (©) A tie between or among the highest ranking sanggunian members shal be resolved by the drawing of ots (4) The successors as defined herein shall served only the unexpired terms of their predecessors For purposes of this Chapter, a permanent vacancy arises when an elective local officials fils a higher vacant office, refuses to assume office, fais to qualify, dies, is removed trom offce, voluntarily resigns, or is otherwise ‘permanent incapacitated to discharge the functions of his office. tay be observed thatthe last paragraph of the aforequoted provision enumerated the specific causes of permanent vacancies. Such enumeration was followed by a general statement, to wit: “ox is otherwise permanently incapacitated fo discharge the functins of his office.’ This {general statement may refer to permanent vacancies brought about by application of laws, such as hil interdiction or disqualification to hold ofice as an aocessory penalty to criminal conviction. It ‘may also refer to severe illness by the incumbent, such as the case of Sangguniang Barangay ‘Member Escano, which could effectively afect the performance of his duties and functions. With respect to severe iiness ofthe incumbent, the normal course of things would be for him to ether resign or fle a leave of absence, whichever he opts to do so, in which case, the rule of succession may now be propery applied, whether referring to permanent or temporary vacancy. The problem, however, would arise if the il incumbent wil not resign or will not fle a leave of ‘absence but on the contrary, wil insist to continue to hold Office when in the meantime his physical ‘or mental sickness will ot allow him to do so anymore. Parenthetically, there being no permanent (or temporary vacancy to speak of, the rule on permanent vacancy under Section 44 ofthe Code or the rule on temporary vacancy under Section 46 ofthe same Code cannot yet be applied. bears to stess that in situations lke this, the Local Goverment Code did not empower any agency oF official of the goverment to declare permanent or temporary vacancy due to the illness of the incumbent. At this point, it bears to stress that due to lack of provision in the Local Government Code, the determination as fo whether or not there is permanent or temporary vacancy due to ilness of the incumbent would necessariy become an adjudicatory matter, meaning, such declaration should be obtained from our courts of justice in order forthe sad court to adjudicate and apply the law involved. {tis inthis regard, that we stongly suggest thatin order for this hiatus not o be lft without ‘emedy as it would undoubtedly affect the operations of your barangay, you may invoke the ad of the Regional Trial Court, a cour of general urisccton, seeking a decaration pursuant to the Rules ‘of Cour, as to whether or not your incumbent Sangguniang Barangay Member is sil physically and mentally fit to discharge the functions of his offce. Its only the court which can judicially ociare a vacancy in the ofce ofthe Sangguniang Barangay, whether permanent or temporary.‘Should the court decides that there exists a permanent vacancy in your Sangunian, may \Wwe invite your attenton to Section 45 (a) (3 of the Local Government Code of 1991 which provides. for the proper procedure in fling up of permanent vacancies inthe sanggunian. it states that: “Sec. 45, Permanent Vacancies in the Sanggunian.- (a) Permanent Vacancies in the sanggunian where automatic successions provided ‘above (Section 44) do not apply shall be fled by appointment inthe following manner: (3) The city or municipal mayor, in the case of Sangguniang Barangay, upon recommendation of the Sangguniang Barangay concerned. In view ofthe foregoing, its clear that in cases wherein automate succession does not apply, a permanent vacancy in the Sangguniang Barangay is 1 be filed by appointment by the Mayor, upon recommendation of the Sangguniang Barangay concemed. It must be noted however, that the required prior recommendation is a collective ac of the Sanggunian, Hope we have enlightened you accordingly. \Very truly yours, By Authority ofthe Secretary i snrestbooa cmusd Ce: Manuel V. Biason Regional Director, San Fernando City LaUnion Legal: 20'corz