G.R. No. 181367 – La Carlota City, Negros Occidental, represented by its Mayor, Hon. Jeffrey P. Ferrer, et al. v. Atty. Rex G. Rojo

 

                                                                                    Promulgated: April 24, 2012

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DISSENTING OPINION

 

 

DEL CASTILLO, J.:

 

 

            The best interpreter of a statute is the statute itself.[1]

 

Among the questions raised in the petition is whether respondent’s resignation from the Sangguniang Panlungsod was effective.  According to Section 82 of Republic Act (RA) No. 7160 or the Local Government Code (LGC), the resignation is effective when it is presented before an open session of the concerned sanggunian and duly entered in its records.[2] Relating this to Section 53,[3] the session where the resignation is read must have a quorum, which is defined as the majority “of all the members of the sanggunian.”  Majority is defined as a number greater than half of the total.[4] 

 

            In the instant case, respondent’s resignation was read in a session where six councilors and the presiding officer were in attendance, while six other councilors were absent.  Given that councilors in attendance and in absentia were equal in number, it became imperative to determine whether the presiding officer should be counted for purposes of quorum.  If he is counted, there was a quorum of the sanggunian and respondent’s resignation was effective.  If the presiding officer is not counted, there was no quorum and respondent’s resignation was ineffective.  Thus, the resolution of the controversy is centered on whether the phrase “of all the members of the sanggunian in Section 53 of the LGC refers to the entire composition of the sanggunian (including the presiding officer) or only the members of the sanggunian (excluding the presiding officer). 

 

            While both parties referred to Section 457 of the LGC on the composition of the Sangguniang Panlungsod for their respective positions, they emphasized different phrases thereof.  For the respondent, the phrase “of all the members of the sanggunian” includes the presiding officer because he is included in the composition of the legislative body.  Respondent’s reading of Section 457 thus made the following emphasis:

 

                Section 457.  Composition.  (a)  The sangguniang panglungsod, the legislative body of the city, shall be composed of the city vice-mayor as presiding officer, the regular sanggunian members, the president of the city chapter of the liga ng mga barangay, the president of the panglungsod na pederasyon ng mga sangguniang kabataan, and the sectoral representatives, as members.

 

 

Respondent contends that since the presiding officer is included in the composition of the sanggunian, he should also be included in the phrase “of all the members of the sanggunian.”  

 

            On the other hand, petitioners argue that the presiding officer is not included in the phrase “of all the members of the sanggunian” because Section 457 does not make him a member of the sanggunian.  Petitioners’ reading of Section 457 focuses on the following qualifying phrases:

 

                Section 457.  Composition.  (a)  The sangguniang panglungsod, the legislative body of the city, shall be composed of the city vice-mayor as presiding officer, the regular sanggunian members, the president of the city chapter of the liga ng mga barangay, the president of the panglungsod na pederasyon ng mga sangguniang kabataan, and the sectoral representatives, as members.

 

 

            In finding that the presiding officer is also a member counted for purposes of quorum, the ponencia cites three grounds:  First, it argues that Section 457 clearly includes the presiding officer in the composition of the sanggunian, which necessarily means that he is a member counted for purposes of quorum.  It submits that a contrary construction would present an anomaly where the presiding officer has the power to break a tie-vote in the sanggunian but is not counted for purposes of quorum.  Second, it claims that in Zamora v. Caballero,[5] this Court has ruled that the Vice Governor, as Presiding Officer of the Sangguniang Panlalawigan, is part of the entire membership of the sanggunian who must be included in computing the quorum.  Finally, it cites DILG Opinion Nos. 46, S. 2007 and 13, S. 2010 stating that the vice-mayor is included in determining the quorum of the sanggunian.

 

I regret that I cannot accept the ponencia's arguments.  

 

I.  Section 457 of the LGC does not include the presiding officer as member of the sanggunian for purposes of quorum.

 

 

            The vice-mayor is not a member, even if he is a part of the composition of the Sanggunian.  Section 457 itself does not treat everyone in the composition of the sanggunian as members.  Instead, Section 457 divides the composition of the sanggunian into two:  (a) the vice-mayor, as presiding officer, and (b) the rest, as members.  This division is not an imaginary distinction, but is dictated by the very language of Section 457:

 

Section 457.  Composition.  (a)  The sangguniang panglungsod, the legislative body of the city, shall be composed of the city vice-mayor as presiding officer, the regular sanggunian members, the president of the city chapter of the liga ng mga barangay, the president of the panglungsod na pederasyon ng mga sangguniang kabataan, and the sectoral representatives, as members.

 

                There are two qualifying phrases in this provision – “as presiding officer” and “as members.”  Qualifying phrases refer only to the words to which they are immediately associated.  The phrase “as presiding officer” refers only to the vice- mayor, while the phrase “as members” refers only to the component parts that are mentioned after the phrase “as presiding officer.” Since the phrase “as members” cannot in any manner refer to the vice-mayor, Section 457 itself does not support the argument that the vice-mayor is a member that is included in the quorum requirement “of all the members of the sanggunian.”

 

            With due respect, the ponencia ignores the foregoing division or distinction made by Section 457, by the expedient of ignoring the qualifiers found in Section 457.  I am unable to accept this because no valid reason was offered for such selective reading of Section 457.  It is a basic rule of statutory construction that all the words in a statute should be given effect; thus, the qualifiers cannot be disregarded without doing violence to the provision. 

 

            Going over the relevant provisions of the LGC, I find nothing therein which makes the presiding officer also a member of the legislative body.  Even in Section 457, which respondent cites, the city vice-mayor was described as the presiding officer of the sanggunian, not a member:

 

SEC. 457.  Composition. – (a) The sangguniang panlungsod, the legislative body of the city, shall be composed of the city vice-mayor as presiding officer, the regular sanggunian members, the president of the city chapter of the liga ng mga barangay, the president of the panlungsod na pederasyon ng mga sangguniang kabataan, 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 communities, or disabled persons.

 

(c)  The regular members of the sangguniang panlungsod and the sectoral representatives shall be elected in the manner as may be provided by law.

 

 

In describing the composition of the sangguniang panlungsod, Section 457 states that it has the city vice-mayor as its presiding officer, and the regular members, ex officio members, and sectoral representatives, as members.  The present wording of the sanggunian’s composition, when read in conjunction with Section 53, which describes quorum as “a majority of all the members,” leads to the conclusion that quorum refers to the majority of the regular, ex officio and sectoral members.  The word “all” was added to encompass the three kinds of members of the sanggunian; not to encompass its entire composition.

 

The inclusion of the presiding officer in the composition of the sangguniang panlungsod is only logical considering that the presiding officer is the administrative head of the said body.  But his inclusion as such does not automatically make him a member thereof.  If it was the lawmakers’ intent to make him a member of the body, the provision could have easily been made to reflect such an intention. 

 

            Moreover, the Local Government Code treats the vice-mayor and his office separately from that of the Sangguniang Panlungsod.  The powers and duties of the vice-mayor are provided in Section 456 and there is nothing therein which states or even suggests that he is also a member of the Sangguniang Panlungsod:

 

Article Two. – The City Vice-Mayor

 

SEC. 456.  Powers, Duties and Compensation. – (a) The city vice-mayor shall:

 

(1)  Be the presiding officer of the sangguniang panlungsod and sign all warrants drawn on the city treasury for all expenditures appropriated for the operation of the sangguniang panlungsod;

 

(2)  Subject to civil service law, rules and regulations, appoint all officials and employees of the sangguniang panlungsod, except those whose manner of appointment is specifically provided in this Code;

 

(3)  Assume the office of the city mayor for the unexpired term of the latter in the event of permanent vacancy as provided for in Section 44, Book I of this Code;

 

(4)  Exercise the powers and perform the duties and functions of the city mayor in cases of temporary vacancy as provided for in Section 46, Book I of this Code; and

 

(5)  Exercise such other powers and functions as may be prescribed by law or ordinance.

 

(b)   The city vice-mayor shall receive a monthly compensation corresponding to Salary Grade twenty eight (28) for a highly urbanized city and Salary Grade twenty six (26) for a component city, as prescribed under R.A. No. 6758 and the implementing guidelines issued pursuant thereto.

 

 

Chapter 3, Title II of Book I of the Local Government Code, which is entitled Local Legislation also did not describe the city vice-mayor as a member of the Sangguniang Panlungsod.  Section 49 thereof was devoted to designating the vice-mayor as the presiding officer of the sanggunian, nothing more. 

 

The law is clear: the city vice-mayor is the presiding officer of the sangguniang panlungsod, and not a member.  As such, the vice-mayor should not be counted for purposes of quorum.

 

            This interpretation of the Vice-Mayor’s role in the Sangguniang Panlungsod also finds support from the congressional deliberations of the bills which eventually became Republic Act (RA) No. 7160 or the LGC.  The deliberations on the Senate floor reveal that the city vice-mayor’s role in the Sangguniang Panlungsod was that of a presiding officer with administrative duties. Not once did our lawmakers intimate that the vice-mayor’s powers extend to the legislative functions of a Sangguniang Panlungsod member. 

On August 6, 1990, Senator Ernesto Maceda (Sen. Maceda) suggested that, unlike sanggunian members who are allowed limited practice of profession, the incumbent vice-mayors should be prohibited from practicing their professions because they will be busy with their administrative functions in the sanggunian.  He stated that the vice-mayors will now “be administrative heads.  They will sign appointments; they will prepare the budget for the x x x sanggunian.  The vice-mayor, as presiding officer acquires a lot of administrative duties.”[6]  Sen. Maceda also proposed that the vice mayors be given monthly salaries instead of per diems because they now have administrative duties as presiding officers of their respective sanggunian.[7] 

 

            On September 11, 1990, Sen. Pimentel revealed that some mayors resist the proposal to make the vice-mayors the presiding officers of the sanggunian.[8] 

 

            The deliberations before the House of Representatives also revealed that the only intention of its members was to make the vice-mayor the presiding officer of the sanggunian.  No mention was ever made that the vice-mayor would also have the role and prerogatives of a sanggunian member.[9]

 

            In maintaining that the presiding officer should be counted for purposes of quorum, the ponencia puts emphasis on the presiding officer’s tie-breaking vote in the sanggunian.[10]  According to the ponencia, the conferment of this power on the presiding officer naturally makes him a member of the sanggunian.

 

            I disagree.  Contrary to the inference drawn by the ponencia, the fact that a presiding officer can only vote on very limited and exceptional occasions (in case of a tie) would tend to show that he is not considered a member of the sanggunian.  A presiding officer’s right to vote is highly contingent, very much unlike the actual members whose right to vote is absolute (i.e., they can always vote).

 

Just like other deliberative assemblies,  the sanggunian acts through voting. 

Official business is transacted by a majority vote (or 2/3 vote in some cases), where each member gets one vote.  When the law deprived the presiding officer of the right to vote on the business of the sanggunian, the law declares that his presence is not determinative of whether the body can or cannot transact official business.  His tie-breaking vote would not alter this, as it is merely an exigency measure to prevent deadlocks in the legislative body.  It is no different from drawing straws or flipping a coin to settle a deadlocked situation.  Thus, if the presiding officer’s presence is not determinative of the body’s ability to transact official business, why should he be counted for purposes of quorum?

 

            According to American Jurisprudence, the conferment of a tie-breaking vote does not necessarily confer membership on a presiding officer:

 

§6.  Presiding officer 

 

x x x x

 

Usually, the presiding officer of a body does not have a vote except in case of a tie, but this power does not of itself make the officer a member of the body.  Where the presiding officer is a member of the body, and as such member is entitled to vote with the other members, the fact of being chosen to act as presiding officer does not remove that privilege.[11]  (Emphasis supplied.)

 

§7.  Quorum  

 

x x x x

 

The fact that a statute gives a certain official the right to cast the deciding vote in case of a tie in a governmental body does not of itself make that official a member of that body for the purposes of ascertaining a quorum or majority, or for any other purpose.  However, when an official is made a member of a governmental body by its charter, the fact that he is given the right to vote only in case of a tie does not affect his membership, and he must be counted toward a quorum and in determining the number of votes necessary to pass a measure.[12]  (Emphasis supplied.)

 

 

Simply put, the presiding officer is not a member by the mere fact that he is the presiding officer of the body and that he has a tie-breaking vote.  He only becomes a member when the law says he is so. 

 

            The authority on the issue of whether a presiding officer of a local legislative body is also a member thereof is Perez v. Hon. Dela Cruz.[13]   The Court held therein that a city vice-mayor who serves as presiding officer of the local legislative board cannot be considered a member thereof, in the absence of any specific statutory authority constituting him as a member.  Otherwise stated, a presiding officer will only have the same rights as the members of the local legislative council when the law itself confers on him such membership status:

 

[I]n the absence of any statutory authority constituting the vice-mayor as a member of the municipal board, in addition to being the presiding officer thereof, we cannot read into the law something which is not there.  For, as aptly put, differences in law beget differences in legal effects.[14]  (Emphasis supplied.)

 

 

            In Perez, the charter of Naga City[15] simply provided that “the vice-mayor shall be the presiding officer of the City Council or Municipal Board.”  On that basis the Court said that the vice-mayor is not a member of the municipal board:

 

In no manner does the law, either in its original form under Rep. Act 305, or in its amendatory shape under Rep. Act 2259, constitute the vice- mayor as a member of the municipal board.  It simply says that “the vice-mayor shall be the presiding officer of the City Council or Municipal Board.”  Nothing more.

 

                In this connection, American Jurisprudence has this to say:

 

“When the statutes provide that the mayor shall preside at the meetings of the municipal council, he is a constituent part of the council for certain purposes, and he sits and acts therein, but he is not in any proper sense a member of the council, unless the statutes expressly so provide.”

 

x x x x

 

The mere fact, therefore, that the vice-mayor was made the ‘presiding officer’ of the board did not ipso jure make him a member thereof; and even if he “is an integral part of the Municipal Board” such fact does not necessarily confer on him “either the status of a regular member of its municipal board or the powers and attributes of a municipal councilor.”  In sum, the vice-mayor of Naga possesses in the municipal board of Naga no more than the prerogatives and authority of a “presiding officer” as such, and no more.[16]  (Emphasis supplied.)

 

               

            While Perez was decided prior to the enactment of the LGC, the principle remains the same.  The law determines whether the vice-mayor, as presiding officer of the local legislative body, is considered a member thereof.  If the law provides that he is a member, the presiding officer should have all the rights and privileges of a member, in addition to being a presiding officer.  This includes the right to be counted for purposes of determining quorum.  On the other hand, if the law does not make the presiding officer a member, there is no basis for conferring membership on him.  In the language of Perez, “[t]he mere fact, therefore, that the vice-mayor was made the 'presiding officer' of the board did not ipso jure make him a member thereof.”

 

            The ruling in Perez that a presiding officer is not always a member of the body is not alone in the legal wilderness. There are a number of American decisions supporting Perez.

 

The facts of People ex rel. Lewis v. Brush[17] are similar to the case at bar.  Under the charter of the city of Mt. Vernon, the city’s common council is composed of 10 aldermen, with the mayor as its presiding officer.  A quorum for the transaction of the council’s business is defined as a majority of the common council.

 

After the mayoral elections, the canvass was conducted by the common council (as mandated by the charter), but only the mayor and five aldermen[18] were present.  The other five aldermen were absent.

 

Lewis filed a mandamus petition to compel the defendants (the common council and mayor of the city of Mt. Vernon) to recognize him as the new mayor of the said city.  He maintained that there was a proper quorum during the canvassing because the mayor is also a member of the common council.  He cited as his basis Section 159 of the charter which states that “[i]n the proceedings of the common council each member present shall have a vote except the mayor when presiding, who shall have only a casting vote when the votes of the other members are tied.” 

 

The Court denied Lewis’ application.  It held that there was no quorum of the common council during the canvassing of the votes because there were only five members of the council present.  The Court held that the mayor is not a member of the common council because the statute itself does not say in express terms that he is a member.  It explained that “[w]hen the common council xxx convene[s] to make a canvass, [the mayor’s] functions are merely those of a presiding officer, without any voting power except in case of a tie.  He is no more to be counted in ascertaining whether a quorum is present than the lieutenant governor can be counted to make up a quorum of the state senate because the constitution gives that officer a casting vote therein.”  

 

In City of Somerset v. Smith,[19] the City of Somerset, through its board of council entered into a contract with Smith for the franchise of an electric light and power plant.  The resolution was approved by three members and the mayor, who is the chairman of the board.  The other three members were absent. 

The Court invalidated the contract between the city and Smith for not having been passed by a majority of the board of council.  It was explained that the mayor who is designated as the “chairman of the board” and has a tie-breaking vote should not be considered as a member of the board in computing a quorum for the transaction of business.  This is because a quorum necessarily means a majority of the members of the council, elected as such.  The mayor, who serves as the chairman of the board, should not be included in the determination of quorum.

 

Bybee  v.  Smith[20]  is also relevant.  Under the statute governing the City of

Glasgow, “a majority of the members shall constitute a quorum for the transaction of business.”  It likewise provided that “the mayor shall preside at all meetings of the council, and may vote in case of a tie vote of the council.” Based on these provisions, the Court of Appeals of Kentucky invalidated an ordinance that was passed by only three attending members and the mayor (three other members were absent).  The Court explained that the mayor should not be included in the determination of quorum because the statute excluded him from the privileges of a member, except for a vote in case of a tie.  It clarified that a quorum of the council means at least four members must have been present, not counting the mayor therein.

 

            These jurisprudence show that a presiding officer is not necessarily a member of the body over which he presides.  His authority to break a tie does not in itself make him a member. 

 

            Relating these doctrines to Section 457 of RA 7160, which referred to the vice-mayor only as the presiding officer of the sanggunian, the inevitable conclusion is that the law only designated the vice-mayor as the presiding officer of the sanggunian and not a member of the sanggunian.  Thus, he should not be considered a member, even if he has a tie-breaking vote.  We cannot read into Section 457 what is not there.

 

            Aside from the fact that the presiding officer cannot vote in the regular transaction of sanggunian business (where there is no tie vote to break), it is also noteworthy that the presiding officer can never vote in important legislative matters where a supermajority or a 2/3 vote of all the members is required (e.g., to override an executive veto,[21] closure and opening of roads,[22] suspension or expulsion of members,[23] grant of tax exemptions, incentives or reliefs to entities engaged in community growth-inducing industries).[24]  In these instances where a 2/3 vote is required, the presiding officer will never be called upon to break a tie.  When the body is tied or equally divided, it would simply mean that the proposal fails to pass, as the supermajority requirement of 2/3 is not met. 

 

            As mentioned before, the sanggunian transacts its official business by voting. The severe limitations on the voting right of the presiding officer reveal that, for the most part, he cannot take part in transacting official business in the sanggunian.  Since the quorum requirement is intended to ensure the presence of a majority of the body capable of transacting business, an official who is not necessary for transacting business should not be counted in determining the quorum. 

 

II. Zamora v. Caballero is not in point because it did not resolve the issue of whether the phrase “of all the members of the sanggunian” in Section 53 of the LGC refers to the entire composition or only to the members.

 

 

            The ponencia cites Zamora v. Caballero[25] as authority for the proposition that the entire membership of the sanggunian should be taken into account in the determination of quorum. 

 

            Two important issues on quorum were resolved in Zamora:  (1) whether a member, sitting as temporary presiding officer, can vote even without a tie;[26] and (2) whether a board member on leave of absence due to foreign travel should still be included for purposes of quorum.[27] 

 

            On the first issue, the Court held that a board member who sits as temporary presiding officer cannot exercise his right to vote as a regular member.  He can only vote in case there is a tie.[28] 

 

            On the second issue, the Court held that a board member who is on foreign travel is counted for purposes of quorum so long as that board member has already been “elected and qualified.”  The Court explained that Section 53 of the LGC provides an exacting definition of quorum, which is “majority of all the members of the sanggunian... elected and qualified.”   It goes on to explain:

 

                On the applicability of Avelino[v. Cuenco][29] to the present case:  The issue in said case was whether there was a quorum in a meeting attended by only 12 of 24 senators, one having been in the hospital while another was out of the country.  This Court held that although the total membership of the Senate was 24, the presence of 12 members already constituted a quorum since the 24th member was outside the country and beyond the coercive power of the Senate. 

 

                In the instant case, there is nothing on record, save for respondents’ allegation, to show that Board Member Sotto was out of the country and to thereby conclude that she was outside the coercive power of the Sanggunian when the February 8 and 26, 2001 sessions were held.  x x x

 

x x x x

 

                Also, in Avelino, the legislative body involved was the Senate and the applicable rule on quorum was that embodied in Article VI, Section 10 of the 1935 Constitution x x x

 

                x x x x

 

The present case, however, involves a local legislative body, the Sangguniang Panlalawigan of Compostela Valley Province, and the applicable rule respecting quorum is found in Section 53 (a) of the LGC x x x

 

                x x x x

 

                The difference in the wordings of the Constitution [on senate quorum requirement] and the LGC is not merely “a matter of style and writing” as respondents would argue, but is actually a matter of “meaning and intention.”  The qualification in the LGC that the majority be based on those “elected and qualified” was meant to allow sanggunians to function even when not all members thereof have been proclaimed.  And, while the intent of the legislature in qualifying the quorum requirement was to allow sanggunians to function even when not all members thereof have been proclaimed and have assumed office, the provision necessarily applies when, after all the members of the sanggunian have assumed office, one or some of its members file for leave.  What should be important then is the concurrence of election to and qualification for the office.  And election to, and qualification as member of, a local legislative body are not altered by the simple expedient of filing a leave of absence.

 

                The trial court should thus have based its determination of the existence of a quorum on the total number of members of the Sanggunian without regard to the filing of a leave of absence by Board Member Sotto.  The fear that a majority may, for reasons of political affiliation, file leaves of absence in order to cripple the functioning of the sanggunian is already addressed by the grant of coercive power to a mere majority of the sanggunian members present when there is no quorum.[30]

 

 

Zamora thus construed quorum of the sanggunian with respect to the phrase “elected and qualified” (vis-à-vis the yardstick of “within the coercive power of the body,” as pronounced in Avelino).  It did not in any manner resolve the issue of whether the phrase in Section 53 of the LGC “of all the members of the sanggunian” refers to the entire composition in Section 457, or only to the members.  It was never the issue because the parties in Zamora presented their case upon the assumption that the presiding officer is counted in the quorum.  Neither party raised this matter as an issue; hence, Zamora did not resolve the issue. 

III. The DILG Opinions are mere declarations of the DILG as the implementing agency; they do not bind the Court which has the primary mandate and duty to interpret the law.

 

 

            The ponencia also cites the opinions emanating from the Department of Interior and Local Government (DILG) that the presiding officer is included for purposes of quorum.  A careful reading of the DILG opinions, however, will expose them as totally bereft of rational and legal basis.  These opinions, in a nutshell, state that the presiding officer is included in the quorum merely because he is included in the composition of the sanggunian.  It assumes that everyone in the composition of the sanggunian is a member, which assumption is false because, as I have already discussed, Section 457 itself divides the composition of the sanggunian into two: (a) the vice-mayor, as presiding officer, and (b) the rest, as members.

 

            While these DILG opinions may have persuasive effect because the DILG is the implementing agency of the LGC, this Court is not in any way bound by the DILG’s pronouncements, especially when its opinion does not seek to persuade a critical mind but merely makes a declaration.  The Court has the primary duty to interpret the law, and any construction that is clearly erroneous cannot prevent the Court from exercising its duty.  The court’s mandate is to the law and laws remain despite non-use, non-observance and customs to the contrary.[31]  

 

The resistance to the idea that a presiding officer is not necessarily a member, may perhaps spring from the fact that in our political system, the two houses of Philippine Congress have presiding officers who are also members thereof.  But what must be remembered is that the House Speaker and the Senate President were elected first and foremost as a congressman and a senator, respectively.[32] They are both elected by their respective constituency as legislators, just as the rest of the members of their respective houses.  Their roles of presiding officers are mere adjuncts to their primary duties as legislators.

 

            Clearly, the role of the vice-mayor is different from that of the House Speaker and the Senate President.  Unlike the two, the vice-mayor is not elected as a legislator.  He is elected as an executive or, more particularly, as the successor of the local chief executive.

 

            Of interest and distinct nature is the Judicial and Bar Council (JBC).  Article VIII, Sections 8 and 9 of the Constitution describes the Judicial and Bar Council and its duties, as follows:

 

Sec. 8 (1).  A Judicial and Bar Council is hereby created under the supervision of the Supreme Court composed of the Chief Justice as ex officio Chairman, the Secretary of Justice, and a representative of the Congress as ex officio Members, a representative of the Integrated Bar, a professor of law, a retired Member of the Supreme Court, and a representative of the private sector.

 

(2)  The regular members of the Council shall be appointed by the President for a term of four years with the consent of the Commission on Appointments.  x x x

 

x x x x

 

(5) The Council shall have the principal function of recommending appointees to the Judiciary.  It may exercise such other functions and duties as the Supreme Court may assign to it.

 

Sec. 9.  The Members of the Supreme Court and judges of lower courts shall be appointed by the President from a list of at least three nominees prepared by the Judicial and Bar Council for every vacancy.  Such appointments need no confirmation. 

 

For the lower courts, the President shall issue the appointments within ninety days from the submission of the list.  (Emphasis supplied.)

 

 

At first blush, Section 8(1) above may appear to be the same as that of Section 457 of the LGC on the composition of the Sangguniang Panlungsod, because it describes the Chief Justice “as Chairman” and the others as “Members”.  However, unlike the LGC provisions on the sanggunian, the constitutional provisions on the JBC do not include any provision that refers solely to the members of the JBC.  Thus, any apparent distinction between the JBC chairman and the JBC members is not real.  The JBC chairman and the members are on equal terms in performing tasks within the JBC, as shown by the phrases “prepared by the Judicial and Bar Council,” “the Council shall have the principal function of recommending appointees,” and “it (the Council) may exercise such other functions and duties as the Supreme Court may assign to it.”  This is in stark contrast to the LGC provisions on quorum and voting, which do not refer to “the Sangguniang Panlungsod” as a whole, but only to “all the members of the sanggunian.” 

 

The conclusion that the vice-mayor, as presiding officer of the Sangguniang Panlungsod, is not a member for purposes of determining quorum also serves to protect the checks and balances between the executive and the legislative powers within the local government units.

 

 It must be remembered that while the vice-mayor is not strictly speaking vested with executive power while he sits as presiding officer of the sanggunian, among his functions is to take over the chief executive position, either temporarily or permanently.[33]  When he does take over, one of the crucial functions of the mayor that he assumes is the power to approve or veto[34] ordinances of the sanggunian.  If we construe the quorum requirement to include the vice-mayor, the vice-mayor will occupy a unique position of affecting an ordinance both at the legislative and executive levels.  The presiding officer could affect legislation by his attendance or absence from sessions (thereby creating or preventing a quorum for the transaction of official business) and, if he later occupies the mayoral seat in a temporary or permanent capacity, he would also affect the same legislation by approving or vetoing the sanggunian’s actions.  This potential fusion of powers is inimical to the checks and balances created by the separation of powers between the local chief executives and the legislative bodies. 

 

            My position, in sum, is this:  The presiding officer of the sanggunian, while a part thereof, is not a member that should be counted for purposes of quorum.  He  is not defined by the law as a member; and the law, by denying him the right to vote as the other members, does not make his presence determinative of whether the body can proceed to transact its business.  Quorum is not just a matter of counting attendance.  It requires counting the people that matter for the conduct of a valid business.  Otherwise stated, to be a presiding officer, whether a member or not, is to be part of the sanggunian.[35]  But while he is a part of the sanggunian, the law simply does not make him a member thereof such that he will be counted for purposes of quorum. 

 

           

            In view of the foregoing, I vote to GRANT the petition.

 

 

 

MARIANO C. DEL CASTILLO

Associate Justice



[1]       Optima statuti interpretatrix est ipsum statutum.

[2]       SEC. 82.  Resignation of Elective Local Officials.  (a)  Resignations by elective local officials shall be deemed effective only upon acceptance by the following authorities:

                  x x x x

                      (3)  The sanggunian concerned, in case of sanggunian members; x x x

                  x x x x

             (d)  Irrevocable resignations by sanggunian members shall be deemed accepted upon presentation before an open session of the sanggunian concerned and duly entered in its records:  Provided, however, That this subsection does not apply to sanggunian members who are subject to recall elections or to cases where existing laws prescribe the manner of acting upon such resignations. 

[3]       SEC. 53.  Quorum.  (a)  A majority of all the members of the sanggunian who have been elected and qualified shall constitute a quorum to transact official business.  Should a question of quorum be raised during a session, the presiding officer shall immediately proceed to call the roll of the members and thereafter announce the results. 

[4]       Zamora v. Caballero, 464 Phil. 471, 488-489 (2004), citing Perez v. Hon. Dela Cruz, 137 Phil. 393, 410 (1969).

[5]       Id.

[6]     Deliberations on the Local Government Code, Part II, August 6, 1990, pp. 45-46.

[7]     Id. at 51.

[8]     Deliberations on the Local Government Code, Part II, September 11, 1990, p. 11.

[9]     Deliberations on the Local Government Code, Part I, August 14, 1990.

[10]     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.

[11]     59 Am. Jur. 2d (1987 ed.), Parliamentary Law, Section 6.

[12]     59 Am. Jur. 2d (1987 ed.), Parliamentary Law, Section 7.

[13]     137 Phil. 393 (1969).

[14]     Id. at 402-403.

[15]     REPUBLIC ACT No. 305, as deemed amended by REPUBLIC ACT No. 2259.

[16]    Perez v. Hon. Dela Cruz, supra note 13 at 404-405.

[17]     83 Hun 613, 64 N.Y. St. Rep. 139, 31 N.Y.S. 586 (1894).

[18]     Aldermen are members of legislative bodies in cities (Webster’s New International Dictionary, unabridged version, 1981).

[19]     20 Ky. L. Rptr. 1488, 105 Ky. 678, 49 S.W. 456 (1899).

[20]     22 Ky. L. Rptr. 1684, 61 S.W. 15 (1901).

[21]     Republic Act No. 7160, Sec. 54(a) and Sec. 55(c).

[22]     Republic Act No. 7160, Sec. 21.

[23]     Republic Act No. 7160, Sec. 50(5) First Proviso.

[24]     Republic Act No. 7160, Sec. 458(2) (xii).

[25]     Supra note 4.

[26]     Zamora v. Caballero, id. at 491-492.

[27]     Id. at 487-490.

[28]     Id. at 491-492.

[29]     83 Phil. 17 (1949).

[30]     Zamora v. Caballero, supra note 4 at 489-490. Emphasis supplied.

[31]     Civil Code, Art. 7.  

[32]     Constitution, Article VI, Sec. 2.  The Senate shall be composed of twenty-four Senators who shall be elected at large by the qualified voters of the Philippines, as may be provided by law.

                x x x x

Sec. 5 (1)  The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall be elected through a party-list system of registered national, regional, and sectoral parties or organizations.

                x x x x

Sec. 16 (1).  The Senate shall elect its President and the House of Representatives its Speaker, by a majority vote of all its respective Members.

                x x x x

[33]     Local Government Code, Sections 44 and 46.

[34]     SEC. 54.  Approval of Ordinances. – (a) Every ordinance enacted by the sangguniang panlalawigan, sangguniang panlungsod, or sangguniang bayan shall be presented to the provincial governor or city or municipal mayor, as the case may be.  If the local chief executive concerned approves the same, he shall affix his signature on each and every page thereof; otherwise, he shall veto it and return the same with his objections to the sanggunian, which may proceed to reconsider the same.  x x x

[35]     Perez v. Hon. Dela Cruz, supra note 9 at 402-403.