EN BANC
[G.R. No.
134213. July 20, 1999]
Romeo J. Gamboa, Jr., petitioner,
vs. Marcelo Aguirre, Jr., and Juan Y. Araneta, respondents.
D E C I S I O N
YNARES-SANTIAGO, J.:
The query
herein is purely legal. May an
incumbent Vice-Governor, while concurrently the Acting Governor, continue to
preside over the sessions of the Sangguniang Panlalawigan (SP)?
The facts
are not in dispute.
In the
1995 elections, Rafael Coscolluela, petitioner Romeo J. Gamboa, Jr. and
respondents Marcelo Aguirre, Jr., and Juan Y. Araneta were elected Negros
Occidental Governor, Vice-Governor and SP members, respectively. Sometime in August of 1995, the governor
designated petitioner as Acting Governor for the duration of the former’s official
trip abroad until his return. When the
SP held its regular session on September 6, 1995, respondents questioned the
authority of petitioner to preside therein in view of his designation as Acting
Governor and asked him to vacate the Chair.
The latter, however, refused to do so.
In another session, seven (7) members of the SP voted to allow
petitioner to continue presiding while four (4) others voted against with one
(1) abstention. On September 22, 1995,
respondents filed before the lower court a petition for declaratory relief and
prohibition. In the meantime, on
October 2, 1995, the Governor re-assumed his office. Later, the trial court rendered a decision and declared
petitioner as “temporarily legally incapacitated to preside over the sessions
of the SP during the period that he is the Acting Governor.”[1] Aggrieved, petitioner filed a petition for review
raising the issue earlier mentioned.
Although this case is dismissible for having become moot and academic
considering the expiration in 1998 of the terms of office of the local
officials involved herein, the Court nonetheless proceeds to resolve this
common controversy but novel issue under the existing laws on local government.
Sections
49(a) and 466(a)(1) of Republic Act (R.A.) No. 7160 otherwise known as the
Local Government Code of 1991, provide that the Vice-Governor shall be the
presiding officer of the SP.[2] In addition to such function, he “become(s)”[3] the Governor and “assume(s)”[4] the higher office for the unexpired term of his predecessor,
in case of “permanent vacancy” therein.
When the vacancy, however, is merely temporary, the Vice-Governor “shall
automatically exercise the powers (subject to certain limitations) and perform
the duties and functions”[5] of the Governor.
It may be noted that the Code provides only for modes of succession in
case of permanent vacancy in the office of the Governor and the Vice-Governor
(whether single or simultaneously) as well as in case of a temporary vacancy in
the office of the Governor. But, no such
contingency is provided in case of temporary vacancy in the office of the
Vice-Governor, just like the 1983 Local Government Code.[6]
It is
correct that when the Vice-Governor exercises the “powers and duties” of the
Office of the Governor, he does not assume the latter office. He only “acts” as the Governor but does not
“become” the Governor. His assumption
of the powers, duties and functions of the provincial Chief Executive does not
create a permanent vacuum or vacancy in his position as the Vice-Governor. Necessarily, he does not relinquish nor
abandon his position and title as Vice-Governor by merely becoming an Acting
Governor, (not Governor) or by merely exercising the powers and duties of the
higher office. But the problem is,
while in such capacity, does he temporarily relinquish the powers, functions,
duties and responsibilities of the Vice-Governor, including the power to
preside over the sessions of the SP?
Sad to
say the new Local Government Code is silent on this matter, yet this query should
be answered in the positive. A
Vice-Governor who is concurrently an Acting Governor is actually a
quasi-Governor. This means, that for
purposes of exercising his legislative prerogatives and powers, he is deemed as
a non-member of the SP for the time being.
By tradition, the offices of the provincial Governor and Vice-Governor
are essentially executive in nature, whereas plain members of the provincial
board perform functions partaking of a legislative character. This is because the authority vested by law
in the provincial boards involves primarily a delegation of some legislative
powers of Congress.[7] Unlike under the old Code, where the Governor is not
only the provincial Chief Executive,[8] but also the presiding officer of the local
legislative body,[9] the new Code delineated the union of the
executive-legislative powers in the provincial, city and municipal levels
except in the Barangay. Under R.A. 7160, the Governor was deprived of the power
to preside over the SP and is no longer considered a member thereof.[10] This is clear from the law, when it provides that
“local legislative power shall be vested in the SP,”[11] which is “the legislative body of the province,” and
enumerates therein its membership consisting of the:
1.) Vice-Governor, as presiding officer,
2.) regular elective SP members,
3.) three elective sectoral representatives, and
4.) those ex-officio members, namely:
a.) president of the provincial chapter of the liga ng mga barangay,
b.) president of the panlalawigang pederasyon ng mga sangguniang kabataan,
c.) president
of the provincial federation of sanggunian members of municipalities and
component cities.[12]
Not being
included in the enumeration, the Governor is deemed excluded applying the rule
in legal hermeneutics that when the law enumerates, the law necessarily
excludes. On the contrary, local
executive power in the province is vested alone in the Governor.[13] Consequently, the union of legislative-executive
powers in the office of the local chief executive under the former Code has been
disbanded, so that either department now comprises different and
non-intermingling official personalities with the end in view of ensuring a
better delivery of public service and provide a system of check and balance
between the two.
It has
been held that if a Mayor who is out of the country is considered “effectively
absent”, the Vice-Mayor should discharge the duties of the mayor during the
latter’s absence.[14] This doctrine should equally apply to the
Vice-Governor since he is similarly situated as the Vice-Mayor. Although it is difficult to lay down a
definite rule as to what constitutes absence, yet this term should be
reasonably construed to mean “effective” absence,[15] that is, one that renders the officer concerned
powerless, for the time being, to discharge the powers and prerogatives of his
office.[16] There is no vacancy whenever the office is occupied
by a legally qualified incumbent. A
sensu contrario, there is a vacancy when there is no person lawfully
authorized to assume and exercise at present the duties of the office.[17] By virtue of the foregoing definition, it can be said
that the designation, appointment or assumption of the Vice-Governor as the
Acting Governor creates a corresponding temporary vacancy in the office of the
Vice-Governor during such contingency.
Considering the silence of the law on the matter, the mode of succession
provided for permanent vacancies, under the new Code, in the office of the
Vice-Governor may likewise be observed in the event of temporary vacancy
occurring in the same office.[18] This is so because in the eyes of the law, the office
to which he was elected was left barren of a legally qualified person to
exercise the duties of the office of the Vice-Governor.
Being the
Acting Governor, the Vice-Governor cannot continue to simultaneously exercise
the duties of the latter office, since the nature of the duties of the
provincial Governor call for a full-time occupant to discharge them.[19] Such is not only consistent with but also appears to
be the clear rationale of the new Code wherein the policy of performing dual
functions in both offices has already been abandoned. To repeat, the creation of a temporary vacancy in the office of
the Governor creates a corresponding temporary vacancy in the office of the
Vice-Governor whenever the latter acts as Governor by virtue of such temporary
vacancy. This event constitutes an
“inability” on the part of the regular presiding officer (Vice Governor) to
preside during the SP sessions, which thus calls for the operation of the
remedy set in Article 49(b) of the Local Government Code – concerning the
election of a temporary presiding officer.
The continuity of the Acting Governor’s (Vice-Governor) powers as
presiding officer of the SP is suspended so long as he is in such
capacity. Under Section 49(b), “(i)n
the event of the inability of the regular presiding officer to preside at the
sanggunian session, the members present and constituting a quorum shall elect
from among themselves a temporary presiding officer.”[20]
WHEREFORE, the petition is DENIED for lack of merit.
SO
ORDERED.
Davide,
Jr., C.J., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban,
Quisumbing, Purisima, Pardo, Buena, and Gonzaga-Reyes,
JJ., concur.
[1] RTC Decision
(Branch 62, Bago City) dated May 8, 1998 penned by Judge Edgardo L. Catilo, p.
10; Rollo, p. 29. The
dispositive portion of the decision reads in full as follows:
“WHEREFORE, in view of the foregoing consideration, this court hereby declares that the respondent Negros Occidental Vice Governor Romeo J. Gamboa, Jr., is temporarily legally incapacitated or disqualified to preside over the sessions of the Sangguniang Panlalawigan of Negros Occidental during the period that he is Acting Provincial Governor of the said province, exercising the powers and performing the duties of the Governor who is abroad or incapacitated temporarily pursuant to Section 46 of the Local Government Code of 1991, and prohibiting the respondent from presiding over the sessions of Sangguniang Panlalawigan of Negros Occidental in the future during such circumstance. In such event and under such circumstance, the highest ranking Sangguniang Panlalawigan member of Negros Occidental is hereby declared to be entitled to preside over the sessions of the said body in conformity with the rules provided for under Section 44 (a) of the said code. No pronouncement as to costs.
“SO
ORDERED.”
[2] SEC.
49. - Presiding Officer. -
(a) The vice-governor shall be the presiding officer of the Sangguniang Panlalawigan; the city vice-mayor, of the Sangguniang Panlungsod; the municipal vice-mayor, of the Sangguniang Bayan; and the Punong-Barangay, of the Sangguniang Barangay. The presiding officer shall vote only to break a tie.
(b) In the event of the inability of the regular presiding officer to preside at a sanggunian session, the members present and constituting a quorum shall elect from among themselves a temporary presiding officer. He shall certify within ten (10) days from passage of ordinances enacted and resolutions adopted by the sanggunian in the session over which he temporarily presided. Sec. 466. Powers, Duties, and Compensation.- (a) The vice-governor shall: x x x
(1) Be the presiding
officer of the Sangguniang Panlalawigan and sign all warrants drawn
on the provincial treasury for all expenditures appropriated for the operation
of the Sangguniang Panlalawigan;
[3]
SEC. 44. Permanent Vacancies in the
Officer of the Governor, Vice-Governor, Mayor, and Vice-Mayor. - If a
permanent vacancy occurs in the office of the governor or mayor, the
vice-governor or vice-mayor concerned shall become the governor or mayor. If a permanent vacancy occurs in the offices
of the governor, vice-governor, mayor, or vice-mayor, the highest ranking Sanggunian
member or, in case of his permanent inability, the second highest ranking
Sanggunian member, shall become the governor, vice-governor, mayor, or
vice-mayor, as the case may be.
Subsequent vacancies in the said office shall be filled automatically by
the other Sanggunian members according to their ranking as defined herein.
[4] SEC.
466. Powers, Duties, and Compensation. - (a) The vice-governor shall:
x x x x x x x x x
3. ) Assume the office of the governor for the unexpired
term of the latter in the event of permanent vacancy as provided for in Section
44, Book I of this Code;
[5] SEC.
46. Temporary Vacancy in the Office
of the Local Chief Executive. - (a) When the governor, city or municipal
mayor, or punong barangay is temporarily incapacitated to perform his duties
for physical or legal reasons such as, but not limited to, leave of absence,
travel abroad, and suspension from office, the vice-governor, city or municipal
vice-mayor, or the highest ranking sangguniang barangay member shall automatically
exercise the powers and perform the duties and functions of the local chief
executive concerned, except the power to appoint, suspend, or dismiss employees
which can only be exercised if the period of temporary incapacity exceeds
thirty (30) working days.
SEC. 466. Powers, Duties, and Compensation. - (a) The vice-governor shall:
x x x x x x x x x
4.) Exercise the powers and perform the duties and functions
of the governor in cases of temporary vacancy and provided for in Section 46,
Book I of this Code;
[6] Batas Pambansa (B.P.) Blg. 337.
[7] Felwa v. Salas, 18 SCRA 606.
[8] B.P. Blg. 337, Section 203. Provincial
Governor as Chief Executive of the Province. - (1) The Governor shall be
the Chief Executive of the provincial government x x x.
[9] B.P. Blg. 337, Section 206 (3) The governor,
who shall be the presiding officer of the sangguniang panlalawigan,
shall not be entitled to vote except in case of a tie.
[10] B.P.
Blg. 337, Sec. 205. Composition.
– (1) Each provincial government shall have a provincial legislature
hereinafter known as the sangguniang panlalawigan, upon which shall be
vested the provincial legislative power.
(2) The sangguniang
panlalawigan shall be composed of the governor, the vice-governor,
elective members of the said sanggunian, and the presidents of the katipunang
panlalawigan and the kabataang barangay provincial federation who
shall be appointed by the President of the Philippines. (emphasis supplied).
[11] SEC. 48.
Local Legislative Power. - Local legislative power shall be
exercised by the sangguniang panlalawigan for the province; x x x.
[12] B.P. Blg. 337,
Section 467. Composition. – (a)
The sangguniang panlalawigan, the legislative body of the province, shall be composed
of the provincial vice-governor as presiding officer, the regular
sanggunian members, the president of the provincial chapter of the liga ng mga
barangay, the president of the panlalawigang pederasyon ng mga sangguniang
kabataan, the president of the provincial federation of sanggunian members of
municipalities and component cities, and the sectoral representatives, as
members.
(b) In addition thereto, there shall be three (3) sectoral
representatives: one (1) from the
women; and as shall be determined by the sanggunian concerned within ninety (90)
days prior to the holding of the local elections, one (1) from the agricultural
or industrial workers; and one (1) from the other sectors, including the urban
poor, indigenous cultural communites, or disabled persons.
[13] SEC. 465.
The Chief Executive: Powers,
Duties, Functions, and Compensation. - (a) The provincial governor, as the
chief executive of the provincial government, shall exercise such powers and
perform such duties and functions as provided by this Code and other laws.
[14] Paredes v. Antillon, 3 SCRA 662.
[15] Gelinas v. Fugere, 180 A. 346, 351, 55
R.I. 225; Watkins v. Mooney, 71 S.W. 622, 624, 114 Ky. 646 quoted with
approval in Grapilon v. Municipal Council of Carigara, Leyte, May 30,
1961 cited in Paredes v. Antillon, supra.; Bautista v. Garcia,
6 SCRA 603
[16] Bautista v. Garcia, 6 SCRA 603.
[17] See
Stocking v. State, 7 Ind. 326 cited in Mechem.
A Treatise on the Law on Public Offices and Officers, p. 61 cited in
Menzon v. Petilla, 197 SCRA 251.
[18] Menzon v. Petilla, supra.
[19] Menzon v. Petilla, supra.
[20] R.A. 7160, Section 49(b).