Based on the Local Government Code. Section 44. (b) If a permanent vacancy occurs in the office of the punong barangay, the highest ranking sanggunian barangay member or, in case of his permanent inability, the second highest ranking sanggunian member, shall become the punong barangay. “Section 45. Permanent Vacancies in the Sanggunian. (a) Permanent vacancies in the sanggunian where automatic succession provided above do not apply shall be filled by appointment in the following manner” Xxx
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(3) The city or municipal mayor, in the case of sangguniang barangay, upon recommendation of the sangguniang barangay concerned. The mayor is vested with the power to appoint a Sangguniang Barangay Member to fill up in case a permanent vacancy occurs in the Sangguniang Barangay. Such power to appoint, is subject to the requirement of recommendation from the Sangguniang Barangay where the vacancy occurred. a. Rule of succession and filling up of permanent vacancies in the sangguniang barangay; b. Distinction between elective and appointive officials; and c. Ranking of appointed sangguniang barangay members (number 1 or number 7).
In reply thereto, please be informed that a permanent vacancy arises when an elective official fills a higher vacant office, refuses to assume office, fails to qualify, dies, is removed from office, voluntarily resigns or is otherwise permanently incapacitated to discharge the functions of his office (Sec. 44, RA 7160). If a permanent vacancy occurs in the office of the punong barangay, the highest ranking sangguniang barangay member or, in case of his permanent inability, the second highest ranking sanggunian member, shall become the punong barangay (Sec. 44 [b], RA 7160). The subsequent vacancies therein shall be filled up by succession by the other sanggunian members according to their ranking. The resulting vacancy in the sangguniang barangay where the rule of succession is no longer applicable (referring to the number seven position) shall be filled up by appointment to be issued by the municipal mayor upon the recommendation of the sangguniang barangay concerned (Sec. 45 (a) (3) of the Local Government Code).
-2As to the distinction between elective and appointive officials, an elective official is one who acquired official relations to his office by way of election while appointive official is one who acquired official relation to his office by way of appointment in accordance with law. Elective positions are thus occupied by elective officials. However, there are elective positions where the law mandates that the same be filled up by appointment in case of vacancy therein. An example of that is the appointment of a sanggunian member to fill up a permanent vacancy in the sanggunian as provided for Section 45 of the Local Government Code. In such case, though the replacement acquired his official relation to the office through appointment, he is considered as an elective official because he is occupying an elective position/office. With respect to the query on ranking, please be advised that the sangguniang barangay kagawad appointed pursuant to Section 45 (a) (3) of the Local Government Code shall occupy the number seven position. This is evident from the opening statement of Section 45, Ibid, which vests unto the enumerated appointing authorities therein the power to appoint a sanggunian member only when the law of succession does not apply. This means that since the vacancy in the office of the punong barangay shall be filled up through succession by the highest ranking sangguniang barangay member and the subsequent vacancies thereon to be filled up also by succession by the other sangguniang barangay members according to their ranking, the power to appoint a replacement in the sangguniang barangay pertains only to the number seven position because it is in the latter position that the rule of succession can no longer apply, there being nobody to succeed anymore.
From the said provision, it is clear that the city or municipal mayor is the one vested with the power to appoint a Sangguniang Barangay Member to fill up a permanent vacancy in the Sangguniang Barangay. Such power to appoint, however, is subject to the requirement of recommendation from the Sangguniang Barangay where the vacancy occurred. Please note however, that the law does not specifically provide for a particular form by which the recommendation of the Sangguniang Barangay concerned has to be expressed. Measures enacted by Sanggunians, including the Sangguniang Barangay for that matter, could either be in the form of an ordinance or a resolution. An ordinance has been defined as that measure enacted by the Sanggunian which provides for a permanent rule of conduct within its territorial jurisdiction. On the other hand, a resolution is one enacted by the Sanggunian translating its expression of opinions, views or sentiments. Generally, therefore, since a “recommendation” is an expression
of opinion and sentiment of the Sanggunian, the same has to be done in the form of a resolution. As to the manner on how the decision of whom to recommend was made, strict compliance with their IRP may not be required, because the sanggunian council may decide among them the process of selection. Thus, where the resolution recommending the appointment of the new Barangay Kagawad is a joint and collective action of the Sanggunian thru a vote of majority by the members present there being a quorum, the same would already be a substantial compliance on the requirement of recommendation as mandated under the Local Government Code. The right to abstain of a member of the sanggunian cannot be restrained. “The right to abstain from voting for a position deserves the same respect as the exercise of the right to vote.”(G.R. No. 105214 August 30, 1993, CARAM vs COMELEC et al.) The Mayor should not refuse an appointment when the recommendee possesses all the qualifications and none of the disqualifications. Any withholding on the part of the mayor may be considered whimsical, arbitrary, and unjustifiable and will thus be tantamount to abuse of authority. Should there be objections, the Mayor should put them in writing citing clearly the basis of his objections thereto. Thus, in case of inaction, by the Mayor, without any explanations in writing to the members of the Sangguniang Barangay, then the Sangguniang Barangay Members may file a petition for Mandamus in the Court of general jurisdiction in order to compel the Mayor to act on the matter.
