LEGAL GUIDELINES ON THE FILLING OF A VACANCY IN THE SANGGUNIANG BARANGAY ARISING FROM THE DEATH OF A BARANGAY OFFICIAL 

Republic Act No. 7160
(Local Government Code of 1991)

I.                 DEATH OF A BARANGAY OFFICIAL CREATES A PERMANENT VACANCY UNDER SECTION 44 OF THE LOCAL GOVERNMENT CODE. Section 44 of Republic Act No. 7160 provides that a permanent vacancy arises when an elective local official dies, resigns, is removed from office, becomes permanently incapacitated, or otherwise vacates the office under circumstances recognized by law.

The law expressly states:

"For purposes of this Chapter, a permanent vacancy arises when an elective local 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."

Accordingly, upon the death of a Barangay Councilor (Kagawad), a permanent vacancy immediately exists in the Sangguniang Barangay which must be filled in the manner prescribed by law.

Likewise, if the vacancy occurs in the office of the Punong Barangay and the highest-ranking Barangay Councilor succeeds thereto pursuant to Section 44, the assumption of such Barangay Councilor to the position of Punong Barangay creates another permanent vacancy in the Sangguniang Barangay which must likewise be filled in accordance with Section 45 of the Local Government Code.

 

II.               SECTION 45 OF THE LOCAL GOVERNMENT CODE REQUIRES APPOINTMENT BY THE MUNICIPAL MAYOR UPON RECOMMENDATION OF THE SANGGUNIANG BARANGAY.

Section 45(a)(3) of the Local Government Code provides:

"The city or municipal mayor, in the case of the sangguniang barangay, upon recommendation of the sangguniang barangay concerned."

Under this provision, the authority to appoint a replacement Barangay Councilor belongs to the Municipal Mayor (or City Mayor, as the case may be). However, such appointment must be made upon the recommendation of the Sangguniang Barangay concerned.

The law therefore contemplates two distinct acts:

1. The Sangguniang Barangay shall deliberate upon and determine the person it will recommend to fill the vacancy; and
2. The Municipal Mayor shall thereafter exercise the appointing authority and issue the appointment.

Thus, the recommendation is not the sole prerogative of the Punong Barangay. Rather, it must emanate from the Sangguniang Barangay acting as a collegial body in accordance with law and proper parliamentary procedure.

 

III.              THE RECOMMENDATION MUST EMANATE FROM THE SANGGUNIANG BARANGAY AS A COLLEGIAL BODY. The recommendation required under Section 45 refers to the recommendation of the Sangguniang Barangay itself and not merely that of the Punong Barangay.

 

A recommendation made solely by the Punong Barangay, without deliberation and approval by the Sangguniang Barangay, may be questioned for failure to comply with the requirements of Section 45 of the Local Government Code.

 

Accordingly, before any recommendation is transmitted to the Municipal Mayor, the matter should first be included in the agenda of a duly convened session of the Sangguniang Barangay, deliberated upon by its members, and approved through a Resolution duly adopted by the body.

 

IV.             MEMBERS OF THE SANGGUNIANG BARANGAY AUTHORIZED TO PARTICIPATE IN THE DELIBERATION AND VOTING.

Section 390 of the Local Government Code provides:

"The Sangguniang Barangay, the legislative body of the barangay, shall be composed of the Punong Barangay as presiding officer, and the seven (7) regular Sangguniang Barangay Members elected at large and the Sangguniang Kabataan Chairman, as members."

Thus, the Sangguniang Barangay is composed of:

a.      The Punong Barangay, as Presiding Officer;

b.      Seven (7) elected Barangay Councilors (Kagawads); and

c.      The Sangguniang Kabataan Chairperson, as ex officio member.

The Barangay Secretary and Barangay Treasurer are not members of the Sangguniang Barangay and are therefore not entitled to vote on the recommendation.

Consequently, only the members constituting the Sangguniang Barangay under Section 390 may participate in the deliberation and voting concerning the recommendation of a replacement Barangay Councilor.

 

V.               RECOMMENDED PROCEDURE 

To ensure compliance with the Local Government Code, the following procedure should be observed:

1. Official recognition of the permanent vacancy through the presentation of the Death Certificate and/or appropriate documentation;
2. Inclusion of the matter in the agenda of a duly called session of the Sangguniang Barangay;
3. Deliberation by the members of the Sangguniang Barangay regarding qualified nominees;
4. Adoption of a Resolution recommending a qualified person to fill the vacancy;
5. Transmission of the Resolution and supporting documents to the Office of the Municipal Mayor; and
6. Issuance of the appointment by the Municipal Mayor and subsequent taking of the oath by the appointee. 

Strict observance of Sections 44, 45, and 390 of the Local Government Code ensures transparency, collegial decision-making, and compliance with the law in filling vacancies in the Sangguniang Barangay.

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Remedies if the Recommendation Was Made in Violation of Section 45 of the Local Government Code of 1991 or Without Due Process:

1)     Administrative Protest/Objection before the Municipal Mayor

-        Before the appointment is finalized, the concerned Kagawads may submit a written objection informing the Mayor that the recommendation did not come from the Sangguniang Barangay as required by law.

2)     Request for Reconsideration or Revocation

-        If the Mayor has already issued the appointment, the affected parties may request its reconsideration or revocation on the ground that the statutory requirement under Section 45 was not complied with.

3)     Petition before the Regional Trial Court

-        If the appointment has been made and assumed, the proper judicial remedy is often a Petition for Quo Warranto questioning the appointee's right to hold the office if the appointment is alleged to be void for non-compliance with Section 45. Depending on the circumstances, a Petition for Certiorari and Prohibition may also be considered if there is grave abuse of discretion in the appointment process.

4)     Administrative Complaint

-        If there is evidence of bad faith, abuse of authority, or deliberate circumvention of the law, an administrative complaint may be filed against the responsible local officials before the appropriate authority, such as the Office of the Ombudsman.