Tuesday, May 29, 2007

Constitutional incongruity

I find a serious constitutional incongruity in the situation of Harrison Gonzales as the ex officio member in the sanggunian panlunsod of Dumaguete, being the president of the liga ng mga barangay of the same city.
This inconguirty applies as well to all those whose situation is the same as Harrison Gonzales, whose identities I have yet to ascertain. I am referring to those appointive, hold-over ex officio sanggunian members who lost in the last elections.
Harrison Gonzales is the punong barangay of barangay Tinago, Dumaguete City.
He was elected president of the liga ng mga barangay, an organization of punong barangays in Dumaguete City created by the local government code.
The legal mandate of the liga is to promote the development of the barangay as the smallest political unit.
Pursuant to law, the president of the liga is appointed the ex officio member of the sangguniang panlunsod (city council) during his term of office.
The city council as we know, is the local legislative body.
The city council,as the local law making body, exercises derivative law-making or policy-making powers.
Since it exercises derivative powers, its members are representative of the constituents of the city who elected them in office.
Hence, according to law---the local government code---the regular members of the city council are elected at large, directly by the people FOR A SPECIFIC TERM of three years.
During elections, the people get to choose who they like to represent them in the city government's policy making body.

The ex officio member not elected
Meanwhile, the ex officio membership in the sanggunian by the president of the liga ng mga barangay, is not elected by the people at large.
Instead, the law appoints him as ex officio to the sanggunian being the liga president.

Hold-over capacity
However, Harrison Gonzales, and all barangay officials are acting in what legally is called "HOLD OVER CAPACITY".
This is because the terms for which there were elected has already come and gone. Natapos na.
Barangay officials are elected only for a three year term.
According to the law, and as echoed by the Department of Interior and Local Government the incumbent barangay officials remain in a "hold over capacity."
The fact that barangay officials are in a hold over capacity only means that they no longer have the mandate of the people and are occupying their positions in an appointive capacity.
Their contract with the people, or their mandate is only three years. This has long expired.
Therefore, the only reason why they remain in office is because the law appointed them as such in a "hold over capacity".
Thus, barangay officials like Harrison Gonzales are holding an appointed and not elected office.
That they are "hold-over" officials is admitted, even by DILG.

The anomaly
The anomaly arose in during the period of the May 14 elections.
Harrison Gonzales, the ex officio member in the sanggunian in a hold-over capacity, suddenly developed a burning desire to be a regular member of the sanggunian, and not just an ex officio and hold-over.
Apparently, he was not contented be merely being "ex officio" and being a "hold-over."
So he filed his certificate of candidacy for city councilor.
Unfortuntately for him, his lost badly in the elections.
He placed 19th among 20 candidates.
Through a direct vote by the people of Dumaguete, Gonzales was resoundingly rejected.
For whatever reason, the people didn't want him in the sanggunian.
The people did not forget the crooked leadership-by-example displayed Harrison Gonzales when he was discovered to have obtained the largest unliquidated cash advances, as per report of the Commission on Audit last year.
This was published in the November 19, 2007 issue of the Chronicle.
The Negros Chronicle will conduct a follow-up investigation on the unliquidated cash advances, and their belated liquidation.
The Negros Chronicle is interested to know and report to the public what kind of receipts were submitted to justify the advances many many months after the cash advances were incurred by barangay officials led by Gonzales.
For goodness sake, peoples' money are involved here.
For an official to liquidate and submit receipts long after the cash advances are made, is already anomalous and disdainful, to say the least.
If an official gets cash advances from the public coffers, he must liquidate it with receipts immediately. That is the rule.

What is the anomaly?
The anomaly is that we have a member of the sanggunian who at best, only derives his basis to sit in the council through an appointed "hold over capacity."
The elective nature of the office as punong brangay has long expired because he had been elected by the people for only three years, and that was long ago. His term of office is over.
Yet, the direct voice of the people during the elections resonated clearly, which is a decision to bar the hold-over Gonzales from sitting in the city council.

No basis to sit
If the people directly rejected Harrison Gonzales, what constitutional, legal, and moral basis does he have to continue sitting in the sanggunian?
Gonzales continues to sit in the council, receiving salaries (coming from taxpayers' pockets) like an ordinary city councilor.
He can choose to continue to draw cash advances if he likes, the liquidation period of which only he will know when.
He can continue to push for resolutions like calling for five-cock-three-day derby.
As a taxpayer, would you like to continue to pay your taxes, knowing that part of it will go to the salary of a city councilor whom soveriegn electorate rejected during the elections?
There is really something seriously and fundamentally wrong somewhere.
And I think the error touches a crucial the nerve in our basic democratic beliefs and foundations as expressed in our constitution.
There exists what I have described, a constitutional incongruity.

A constitutional principle violated
The most cherished constitutional principle is that stated in Section 1 Article II of the 1987 constitution. It says:
"The Philippines is a republican and democratic state. Sovereignty resides in the people and all government authority emanates from them."
This is a compelling and all-important interest which is the bedrock of our beliefs as freedom-loving people.
To the people, belong the power.
This is where we differ from monarchy ruled by kings, although some people in our city government think they are kings and the people their subjects.

Meaning of "republican state"
The Philippines as a republican state, is anchored on the principle that supreme power rests in the body of the people.
Republicanism more simply means a state that establishes a government of the people, by the people and for the people.
Inherent in our republican system is granting the people their sacred power to elect their representatives in government who exercise delegated derivative power.
We may define a republic to be a government which derives all its power directly or indirectly from the great body of the people; and is administered by persons holding offices during pleasure, for a limited period, or during good behavior.

So those who want to sit in the city council must seek the approval by the soveriegn people.
If the sovereign says no, the rejected applicant must bow to the will of the sovereign. It is that simple.

Elections: a judgment
The elections is the time for the sovereign to pass judgment and to make a statement, political or otherwise
The Supreme Court in Polala Sambrani versus Comelec (September 15, 2004) said it aptly: "An election is the embodiment of the popular will, the expression of the sovereign power of the people. It involves the choice or selection of candidates to public office by popular vote. The right of suffrage is enshrined in the Constitution because through suffrage the people exercise their sovereign authority to choose their representatives in the governance of the State."

Gonzales is disrespecting the peoples' will
It is already bad enough that the Gonzales has continued to cling to this appointive and hold-over ex officio position even if he is deemed resigned upon the filing of his certificate of candidacy.
It would be worse, and the height of anti-democratic behavior to continue to do so even if he has been junked by the sovereign electorate.
Soon the new term of the sanggunian will start in July.
The newly elected councilors will take their post, after receiving a fresh mandate of the electorate.
But Harrison Gonzales will be the only city councilor sitting in the Dumaguete sanggunian not only without a mandate of the electorate, but with an explicit rejection by the same sovereign during the last elections.
And more painful for the people is that Gonzlaes will to continue to suck hard earned taxpayers' money to pay his salaries.
I don't know how in good conscience Gonzales, a politcal reject, a spoil in the last elections, can sit comfortably with this.
We don't know yet if Gonzales will again draw more cash advances, in addition to the P341,000 cash advances he had incurred which fortunately was discovered by the vigilant and independent COA last year to have been unliquidated.
Believe me, this is not the democracy that the Filipino people aspired to build when they ratified the constitution.

What's the solution?
There are solutions to resolve this constitutional incongruity.
First is to litigate and resolve this in court.
But cases take eternity, and more likely the matter will just become moot and academic in view of the coming barangay elections in October.
Another possible scenario is for Harrison Gonzales and others similarly situated to be struck with a lightning sense of delicadeza and bow to the will of the people and acknowledge that the people really don't want Gonzales to sit in the Dumaguete sanggunian.
He should not justify his stay by seeking refuge in the hold-over prinicple.
Hold-over is merely performing a caretaker's job after the term is over.
A punong barangay's term of office is only three years.
An official in a hold-over capacity is always occupying an appointive position.

There will still be continuity
This caretaking can be done by his next-in-rank in the liga if Gonzales honorable steps down. There will still be continuity and there will be no gap.
If Gonzales won't have delicadeza, then another resolution for this incongruity is for the liga members who all occupy hold-over positions, to replace or remove Gonzales.
If the liga officials genuinely respects the sovereign people, then they should manifest this respect by collegially acting to replace Gonzales.
By doing this, the liga will do democracy a great favor by practicing it in a noble way.

The peoples' will must always prevail
The issue here is far greater than Harrison Gonzales or any person who continues to cling like a leech to a sanggunian even if they were dumped by the electorate.
If Harrison Gonzales or anybody similarly situated continues to sit in the sanggunian, the will of the sovereign is sidewept.
Our advocacy is to let the will of the sovereign prevail over all things.
Sovereignty always resides in the people.
All government authority must emanate from them.
This is the spirit of republicanism, enshrined in our constitution which we, as citizens have a solemn obligation to guard, defend, and uphold.

1 comment:

Anonymous said...

LEGAL OPINION No. 030-3-04

On the legal effect of filing a certificate of candidacy for other elective office/position in a national or local election on the incumbency of a Liga officer.

“Any person holding an elective office or position running for any elective office or position shall NOT be considered RESIGNED.” (Emphasis supplied). [Section 4, par. (b), COMELEC Resolution No. 6453].

Liga Officers who decide to run for other elective office or position in a national or local election shall, in the event of loss, retain their status as such Liga officers. This pronouncement is rooted on Section 3, Article XII of the Liga Constitution and By-Laws. The said section enumerates the grounds for the suspension and/or removal of a Liga officer or member. There is nothing in the said section which provides, expressly or impliedly, that the filing of a certificate of candidacy, by Liga officer/s, for other elective office or position in a national or local election shall effect the removal of the concerned Liga officer/s. Particularly, paragraph (o) thereof provides, as among the grounds of removal, adherence to “(S)uch other grounds as provided by Republic Act No. 7160 otherwise known as the Local Government Code of 1991, R.A. No. 6713, R.A. No. 3019, the Administrative Code of 1987; the Revised Penal Code of the Philippines and OTHER APPLICABLE LAWS AND STATUTES.” (Emphasis supplied). Conversely, any affirmative pronouncement by pertinent laws and statutes to the effect that a certain act shall NOT constitute a ground for the removal of an elective official shall likewise hold true to the status of Liga officer/s. Thus, the above-quoted provision of COMELEC Resolution No. 6453, which merely upholds Section 14 of the Fair Election Act of 2001 (RA 9006), shall similarly govern the status of Liga officers amid the circumstance/s herein discussed.

//Dated January 15, 2004