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.

The DILG regional director's opinion is off course

The regional director of the Department of Interior and Local Government (DILG) named Pedro A. Noval Jr., has also issued his own opinion on the querry of vice mayor William Ablong about the ex officio membership of the liga president in the sanggunian.
But I think the good DILG regional director did not understand the issue.
That is why the regional director's opinion, is not only unresponsive, but is also way off course like a golf ball heading toward the forest.
But we need to comment on this opinion.
He says "Hence, a punong barangay who filed his certificate of candidacy is not considered resigned."
We are not saying that Harrison Gonzales, punong barangay of Tinago resigned from being puonong barangay when he filed his certificate of candidacy.
As a matter of fact, we contentd that Gonzales retains his being punong barangay and liga president even if he filed his certificate of candidacy.
What we are saying is that he was deemed resigned from his ex officio membership in the sanggunian when he filed his certificate of candidacy, such membership being appointive.
The regional director is not responsive.
Next, the regional director said " consequently, a punong barangay who is at the same time an officer of the liga ng mga barangay shall continue to be an officer thereof even if he has filed his certificate of candidacy in view of the fact that he is not considered resigned as punong barangay."
The regional director is more lost.
Again, there is no dispute that Harrison Gonzales, when he filed his certificate of candidacy, continues to be officer or president of the liga, such position being elective.
But this is not the issue.
In any event, if you would notice, the opinion of the DILG regional office is dated May 22, 2007.
Subsequently, two days after or on May 24, 2007, the city DILG operations officer rendered another opinion apart from that of the regional director.
From my analysis of things, when city hall received the opinion of the regional director, they realized that the opinion would not hold water because it was lost deep in the forest, so unresponsive, and not even able to spot the issue.
That is why perhaps---and we can only surmise--- legal people from city hall asked the city DILG operations officer to render a "separate opinion" in view of the unresponsive opinion of the regional director.
Personally I can't even rule out the possibility that people from city hall "helped" draft the opinion of th DILG operations officer.
In any event, both opinions, from my view, are far unconvincing.

DILG opinion inconsistent, flawed, baseless

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.

DILG rules ABC membership in council is elective, not appointive

The Department of Interior and Local Government has issued two opinions adverse to the charge that the ex officio membership of the president of the liga ng mga barangays in the sangguniang panlunsod (city council) is appointive in nature.
The DILG says the position is elective.
I challenged that when the Dumaguete City liga president filed his certificate of candidacy for regular membership of the sangguniang panlunsod for the May 14, 2007 elections, he was deemed ipso facto resigned by virtue of Section 66 of the omnibus election code.
Section 66 of the omnibus election code mandates that those in appointive office or position are ipso facto resigned from their positions upon the filing of their certificates of candidacies.
The objective of the law is to prevent abuse by the appointive officer of his position while he is a candidate for election.
As an example, Secretary Mike Defensor resigned from being presidential chief of staff (an appointive position) when he filed his certificate of candidacy for senator.
The DILG has ruled that the ABC ex officio membership in the city council is an elective, and not an appointive position.
Therefore, the liga ng mga barangay president Harrison Gonzales was not deemed resigned from his ex officio membership, even when he filed his certificate of candidacy for regular membership of the Dumaguete city council.
The following were the reasons advanced by the local government operations officer Leopoldo Y. Gravador for their conclusion that the ex officio membership of the liga president in the sangunian is elective in nature:
1. Section 469-490 of the local government code enumerates the appointive officials for cities. Since the ex officio memebrship of the liga president is not among those enumerated, then such office or position is not appointive and therefore elective.
2. Section 41 (b) provides along with the manner of election of the regular members of the sanggunian the ex officio memership of the liga president in the sanggunian. (The provision states: The presidents of the liga ng mga barangay elected by their respective chapters shall serve as ex officio members of the sanggunian).
Aside from this Mr. Gravador claims that the liga president continues to sit in the sanggunian until the next barangay elections on a holdover capacity pursuant to R.A. 9340 Section 5.
Meanwhile, the regional director of the Department of Interior and Local Government Pedro A. Noval Jr. explained that a punong barangay who filed his certificate of candidacy is not considered resigned.
He said that under R.A. 9006 any elective official whether national or local, running for any office shall not be considered resigned.
This was contained in a 2nd Indorsement dated May 22, 2007.
He also explained that under the constitution and by laws of the liga ng mga barangay, the term of all officers and members of the liga at all levels shall be concurrent with their term and tenure of office of the sangguniang barangay.
Conseuqently, the regional director said, a punong barangay who is at the same time an officer of the liga ng mga barangay shall continue to be an officer thereeven if he has filed a certificagte of candidacy in view of the fact that he is not considered resigned as a punong barangay.
My comments on these opinions on my next blog....

Gonzales liable for usurpation?

The president of the liga ng mga barangay in Dumaguete City can be held liable for criminal, civil and administrative charges for continuing to function as member of the city council, despite a vacancy in such office or position owing to his ipso facto resignation when he filed his certificate of candidacy.
Harrison Gonzales, punong barangay of Tinago Dumaguete City and president of the city's liga ng mga barangay became the ex officio member of the city council having been appointed as such pursuant to the local government code.
But the office or position of ex officio city councilor was vacated by Gonzales when he filed his certificate of candidacy for city councilor for the May 14, 2007 elections
Gonzales’ appointment as ex officio member of the city council being the president of the liga ng mga barangay, is pursuant to law, i.e. Section 494 of the local government code (R.A. 7160).
The local government code states that “the duly elected presidents of the liga…shall serve as ex-officio members of the sanguniang panlunsod. They shall serve as such only during their term of office as presidents of the liga chapters which in no case shall be beyond the term of office of the sanggunian concerned.”
Thus, while being punong barangay and being president of the liga is an elective position, the ex officio membership in the city council is an appointive position, Gonzales not being elected as a regular member of the city council.
According to Section 457 © of the local government code, the regular members of the city council are those who are elected by the people as such.
Gonzales was never elected as a member of the city council. His (ex officio) membership in the city council is appointive in nature, pursuant to law, Section 494 of the local government code.
Section 66 of the omnibus election code mandates that, “any person holding a public appointive office or position…shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy.
When Harrison Gonzales filed his certificate of candidacy for city councilor in March 2007, he was considered ipso facto resigned from the office as ex officio member of the city council, and the position became vacant at that time.
There is a valid, logical and laudable reason for the ipso facto resignation: to prevent such officer from taking advantage of the position to advance his political interests.
Section 45 (d) of the local government code provides that in case of vacancy in the representation of the barangay in the sanggunian, said vacancy shall be filled automatically by the official next in rank of the organization concerned.
Yet, even after having filed his certificate of candidacy, Gonzales illegally continued to hold office and function as an ex officio member of the city council, records and minutes of the council show.
Such illegal acts can constitute usurpation, a criminal offense under the revised penal code.
Article 177 of the penal code punishes any person who shall perform any act pertaining to any person in authority or public officer of the government or any agency thereof, without being lawfully entitled to do so.
If convicted, the accused can face over four years imprisonment.


Gonzales continued to function as city councilor.
What was he doing?

The Omnibus election code considers people in appointive office ipso facto resigned upon the filing of their certificates of candidacy.
The laudable objection is to prevent the abuse of the position during the campaign period.
Even after the barangay ex officio membership in the city council became vacant by the ipso facto resignation of Harrison Gonzales when he filed his certificate of candidacy, he still continued to function as city councilor.
In the April 2007 sessions of the city council, Harrison Gonzales, the candidate, wasted no time in using his illegally occupied position, by sponsoring politically charged and motivated actions in the council.
For instance, records of the city council would show that during the April 12, 2007 session of the city council Gonzales, a candidate for councilor, initiated moves for the disbursement of taxpayers’ money for all sorts of purposes and for the proliferation of gambling activities.
The following were pushed by Gonzales during the April 12, 2007 session of the city council:
Authorizing the issuance of a special permit, subject to the mayor’s approval to hold a 5-cock 3-day derby on April 19, 20, 21, 2007 at the Dumaguete cockpit. Proceeds of the activity were to be used to support the activities of the women with disabilities of Dumaguete (together with Catan). As to how disabled women can be related to cockfighting, is unknown.
Another measure pushed by Gonzales was authorizing the city treasurer to disburse P145,000 to be used for the partial expenses of the so-called Kabulakan Festival funds to be taken from the tourism council trust fund (with Kag. Catan).
Another Gonzales-pushed measure was appropriating P1,282,000 for the concreting of unamed barangay road to Bajumpandan Habitat 4, with funds to be taken from the unappropriated surplus code 501 (with Kag Esmena and Catan).
These and other disbursement of peoples’ funds were made at the height of the election campaign where Gonzales was a candidate.
The question now is how could Harrison Gonzales illegally continue to function as city councilor, pushing for disbursement of peoples’ money, while at the same time courting the constituency for their votes?
Does this not strike at the very heart of the noble objectives of Section 66 of the omnibus election code?
How could he illegally use public office as a means ostensibly to advance his political interests, considering that these authorities to disburse came during the election campaign period?

Rejected by the people

After the May 14 2007 elections, Gonzales bid for regular membership in the city council was resoundingly rejected by the people of Dumaguete.
There arises now an monumental anomaly where a directly rejected candidate, still continues to function as ex officio city councilor by virtue of his being president of the liga ng mga barangay.
After having been severely beaten in the elections (he placed 19th out of 20 candidates) , Harrison Gonzales continues to claim membership in the council, attending its session, even as his appointment as ex officio member has been terminated by his ipso facto resignation in March.
Gonzales bases his title as city council member through ex officio membership.
But the people don’t want him in the city council in the first place.
For Harrison Gonzales to continue functioning as ex officio city councilor even if he is deemed resigned from such appointment, and worse even after having been rejected by the sovereign electorate, is the height of absurdity.
This is a case of Gonzales having his cake and eating it too.