The Department of Interior and Local Government's (DILG) opinion that the position of ex officio membership of the liga president in the city council is an elective position, is fatally flawed and devoid of any legal basis.
At the same time, The DILG has advanced a totally inconsistent and irreconcilable position when it admitted and accepted that barangay officials are presently acting in a "hold-over" capacity.
Barangay officials like Harrison Gonzales are acting in a "hold-over capacity" because their three-year term of office had long expired.
Barangay officials were thus appointed in hold-over capacities in the meantime that the next barangay elections are yet to be held in October.
First, DILG city operations officer Leopoldo Y. Gravador contends that the ex officio membership of the liga president in the sanggunian is elective because he is not among those appointive officials enumerated in Section 469-490.
This simplistic reasoning is utterly flawed and even irrelevant.
The city DILG has failed to recognize that those appointive official he refers to are offcials exercising EXECUTIVE FUNCTIONS, or are members of the executive department except the secretary to the sanggunian, who exercises secretarial functions.
These appointive officials refered to by the DILG (Sec 469-490) are career officials, heads of executive departments.
Who are these appointive officials referred to by the city DILG under Section 469-490?
These are the city treasurer, assistant treasurer, city assessor, city accountant, city budget officer, city palnning officer, city engineer, city health officer, civil registrar, city administrator, city legal officer, city veterinarian, city social welfare officer and general services officer and the secretary to the sangunian who has the rank and salary of a head of department.
As can be easily seen, these appointive officers refered to by DILG's Gravador are officials in the executive department exercising non-legislative functions.
They are the local counterparts of cabinet secretaries, appointed by the mayor, and in the case of the treasurer and assistant treasurer, by the secretary of finance.
The appointive position of the liga president to the sanggunian as ex officio member is an appointment to a legislative body (read: lawmaking).
Naturally, the ex officio sanggunan membership (of the liga president) cannot be among those enumerated in Section 469-490 because the mayor, an executive official, cannot appoint somebody to the legislative branch in view of the separation of powers betwen the executive and legislative.
It is sad to note that in rendering his (flawed) opinion, the city DILG is unable to distinguish an executive official or function, from a legislative official or function.
How can we now expect him to distinguish between an elective position from an appointive position?
The DILG opinion, is way off-tangent.
Second, the city DILG opinion said "on the contrary, the manner of election and the ex-officio membership of the Liga President in the Sanggunian is clearly provided along with the manner of election of hte regular members of the snaggunian bayan."
This statement is grossly misleading.
There is nothing in the law that provides for "the manner of ...election of the liga president in the sanggunian."
Unless we missed the law, the city DILG needs to explain where exactly in the local government code does it provide for "the manner of election of the liga president in the sanggunian."
Our reading of the law, clearly conveys the appointive nature of the liga president's ex officio membership to the sanggunian.
The law states: "The presidents of the liga ng mga barangay and the pederasyon ng mga sagguniang kabataan elected by their respective chapters, as provided in this Code, SHALL SERVE as ex officio members of the sanggunian.
When the law commands that the liga president SHALL SERVE as ex officio member...", it is an appointment, a designation, a directive, a mandate.
How can that be elective?
If the DILG insists that the ex officio membership in the sangunian is elective, we ask the question: elected by whom? elected when? elected for what term?
Certainly it is not the sovereign electorate who elects the ex officio membership of the liga president.
I don't recall Harrison Gonzales having been elected by the people to the sanggunian.
I hope the DILG gives a more clarificatory explanation because his opinion is more confusing.
May we suggest that the DILG give the people a background of the history of the ex officio membership of the liga president to the sanggunian.
As far as history and tradition is concerned, the ex officio membership of the barangays in the sanggunian has always been appointive.
Under the old local government code (Batas Pambansa 337), the president appointed the barangay representative to the sanggunian.
Then the appointment was delegated to the secretary of the DILG.
Under the present local government code, it is now the law itself that mandates that the liga president SHALL SERVE as ex officio member in the sanggunian during his term of office.
The DILG should explain how a historically and traditionally appointive and appointed position i.e. ex officio membership of the barangay representative to the sanggunian, has suddenly become elective.
The third point by the city DILG betrays his glaring inconsistency.
By admitting that brangay officials are in a "hold over capacity", this only means that barangay officials are presently holding appointive positions.
A hold-over position is always appointive.
One is appointed in a hold-over capacity precisely because the term of office for which he was elected is already over.
An elected official whose term of office is over is supposed to step down.
But, in the words of the Supreme Court, due to the exigencies, the same official is appointed to a hold-over capacity pending the election of the next set of officials. Hold over is only temporary.
The official in a hold-over capacity therefore is always an appointive position.
To maintain the hold over rule, it should be the next in rank in the liga hierarchy who should assume the ex officio membership in the sanggunian in view of the ipso facto resignation of the liga president when he filed his certificate of candidacy.
Thus, in the case of Harrison Gonzales, since he opted to have himself subjected to the peoples' verdict, he is deemed resigned from his appointive, hold-over position as ex officio sanggunian member, upon filing of his certificate of candidacy.
Worse, since the people eventually rejected him, with more reason should he refrain from clinging to a position that is not his to savor.
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