The Rule of Succession

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In the aftermath of the untimely demise of our beloved Governor Emilio Macias II there are conflicting views regarding the status of the Office of the Governor considering that an election has just been carried out and a proclamation duly done. The issue at hand is succession and the law on the matter is Section 44 of the Local Government Code. Let us therefore educate ourselves. The law says:

“(a) If a permanent vacancy occurs in the office of the Governor or mayor, the vice-governor or vice-mayor concerned shall become the governor or mayor. If a permanent vacancy occurs in the offices of the governor, vice-governor, mayor or vice-mayor, the highest ranking sanggunian member or, or in case of his permanent inability, the second highest ranking sanggunian member, shall become governor, vice-governor, mayor or vice-mayor as the case may be. Subsequent vacancies in said offices shall be filled automatically by the other sanggunian members according to their rank as defined herein.

(b) 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.

(c) A tie between and among the highest ranking sanguniang members shall be resolved by the drawing of lots.

(d) THE SUCCESSOR AS DEFINED HEREIN SHALL SERVE ONLY THE UNEXPIRED TERMS OF THEIR PREDECEESORS.

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, removed from office, voluntarily resigns or is otherwise permanently incapacitated to discharge the functions of his office.

For purposes of succession as provided in this chapter, ranking in the sangunian shall be determined on the basis of the proportion of votes obtained by each winning candidate to the total number of registered voters in each district in the immediately preceding local elections.”

Let us observe that the law defines what a vacancy is and also describes the parameters of the term of the successor. There are seven ways that is contemplated by law that cause a vacancy — 1) when the officer fills a higher position, 2) when the officer refuses to assume office, 3) when the officer fails to qualify, 4) when the officer dies, 5) when the officer is removed from office, 6) when the officer resigns and 7) when the officer is permanently incapacitated to discharge the functions of his office. In all these circumstances the aforesaid successors shall take over and assume the vacated position. Take note however, that the law mandates that the successor shall serve only the unexpired term of his predecessor.

A mature perusal of the entire provision of law leads us to conclude that in order for succession under this provision to occur, the TERM OF OFFICE OF THE PREDECCESOR should have started to begin and the SUCCESSOR shall merely serve the unexpired term.

The question to be asked therefore is whether or not the TERM OF THE LATE GOVERNOR MACIAS EVER STARTED TO BEGIN. I humbly submit, as a former member of the legal academe, that the term has never started to begin. The reason is that Macias’ term under his previous mandate is yet to end at noon of June 30, 2010, then and only then shall his new term begin. Certainly, there could not have been an overlapping of term. As a matter of fact, as of the time of demise of the Governor, the vice-governor took over and he shall serve the unexpired term of the former up to and until noon of June 30, 2010.

Incidentally, the DILG rendered an opposite opinion in a similar situation where the late Hon. Heraldo D. Dacayo of the Municipality of Solano, Nueva Viscaya was proclaimed winner in the May 10, 2004 election but died before assuming office. Clearly, the Dacayo case is exactly the same as the present situation in the Province of Negros Oriental. In that case, the DILG, quite wrongly I would say, interpreted the death of the officer as equivalent to failure to qualify for the reason that he could not take his oath of office and assume the powers, duties and functions thereof. It should be underscored that by reason of death, the officer concerned is no longer in office long before the expiration of his supposed term and long before the new term is to begin. Failure to qualify by noon of June 30, 2010 is out of the issue. Moreover, at a closer examination, the issue in the DACAYO CASE is not whether Section 44 of the LGC applies; rather the primordial issue there is whether or not a special election is to be had.

In summation, there is NO GOVERNOR of Negros Oriental after noon of June 30, 2010. The vice-governor elect nor anybody else could not assume the office of the governor under Section 44 of the Local Government Code. Whatever solution, political or otherwise, to be had under the given circumstances I am certain that Section 44 of the LGC is not the law to apply.

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