CALUANG, Al-Hassan T.
Re: Appointments; Authority to Appoint

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RESOLUTION No. 97-3979

Director Rogelio C. Limare, Civil Service Regional Office (CSRO) No. IX, Zamboanga City, requests clarification on whether the Officer-In-Charge (OIC), Office of the Provincial Governor of the Province of Sulu, Al-Hassan T. Caluang, may exercise authority to appoint/renew temporary appointments of personnel in the said Province. Said request for clarification stemmed from a letter dated May 31, 1996 of Assistance Commission Adelina B. Sarmiento answering said query in the affirmative.

Records show that Caluang was elected Provincial Board member for the Province of Sulu in the May 1995 elections. Due to protests lodged by contending parties, the election of Governor, Vice-Governor as well as some Provincial Board Members of the First District of said Province remained undecided by the commission on Election.

In a letter dated July 15, 1995, then Secretary Alunan of the Department of Interior and Local Government advised Board Member Caluang to assume the position OIC, Province of Sulu, subject to the limitations prescribed under Office of the President (OP) Memorandum Circular No. 123 dated 30 June 1995, and under Chapter 2, Title II, Book I of the Local Government Code on automatic succession.

In a letter dated April 26, 1996, Caluang represented that he has been holding subject position for over nine (9) months; that the Provincial Government of Sulu is encountering difficulty in the renewal of temporary appointments in said office in view of the purported stand of CSRO No. IX; and that Caluang being a "designated Officer-In-Charge" in the Office of the Local Chief executive is not authorized to appoint or remove local government officials and employees, citing OP Memorandum Circular No. 123 and Chapter 2, Title II, Book I of the Local Government Code of 1991, thus:

x x x

For close to a year now, the Province of Sulu has been without an effectively functioning Provincial Government. The undersigned has tried his best to, on the one hand, maintain the day-to-day operations of the Provincial Government in the face of adverse conditions - continuing terrorist activities and military operations, strife among political factions, etc. - while on the other hand trying to introduce development programs to uplift the condition of the people of Sulu. Needless to say, these efforts have been met with all kinds of hurdles and stumbling blocks, the latest of which has been the expiry of the temporary appointments of approximately 20% of the personnel of the Provincial Government and the refusal of the Provincial and Regional Representatives of the Civil Service Commission to honor the renewal of appointments of these personnel." (Emphasis ours)

x x x

In response to the query of Caluang, Assistant Commissioner Sarmiento opined that as OIC, Caluang may exercise the authority to appoint/renew subject temporary appointments having as basis the rule on automatic succession as provided for in the Local Government Code. Hence, the instant request for clarification of Director Limare. In his letter, Director Limare is of the following opinion, thus:

"Earlier, this Office opined that the designated OIC Provincial Governor of Sulu is not authorized to appoint or remove LOCAL government official and employees based on the ground that in that province, there are temporary vacancies in the OFFICES OF THE Provincial Governor and Vice Governor respectively. It is the view of this Office (Director Limare) that neither the Local Government Code of 1991 nor the local code of ARMM did not (sic) have appropriate provision/s to cover such eventuality."

"It is clear from the afore-cited provisions that they contemplate only temporary absence of the governor where the vice-governor may exercise the power to appoint, suspend or dismiss an employee after the temporary incapacity exceeds thirty working days. However, it is silent as to whether such power could also be exercised by the designated Officer-in-Charge, Provincial Governor in the event that both the Governor and the Vice-Governor of the Province are temporarily incapacitated to perform their functions in excess of thirty (30) days.

"It is our position that the designated Office-in-Charge Provincial Governor in Sulu Province is not authorized to appoint or dismiss an employee by operation of law. Instead, his powers are limited by the terms of his designation subject to the limitations under existing laws and regulations."

The sole issue in this case is whether Caluang as OIC, Office of the Provincial Governor, assumed said position by mere designation or in accordance with the rules on automatic succession as provided for under R.C. 7160.

After a circumspect review of the documents at hand, including the representation of Director Limare vis-à-vis the circumstances obtaining in the case at bar, the Commission believes that Al-Hassan T. Caluang as Officer-in-Charge, Office of the Provincial Governor of Sulu, has the authority to issue renewal of the temporary appointments.

A line of distinction should be drawn between a mere OIC by designation and an OIC who assumed the position under the rule on succession.

To distinguish one from the other in this particular case, the OP Memorandum Circular No. 123 must be read in its entirely in relation to the Local Government Code, viz;

"Section 1. No Proclamation. In LGU's where all of the local executive officials have not been proclaimed or where a failure of election had been declared by the Comelec, the President of the Philippines shall designate an Office-In-Charge for the office of the governor, vice-governor, mayor, Sangguniang Panglungsod and Sangguniang Bayan. Provided, however, that any and all designees have not been a candidate for any elective position during the recently concluded election…"

Section 3(b) of OP Memorandum Circular No. 123 provides as follows:

"(b) The designated Officer-In-Charge of the office of the Local Chief Executive shall perform all the regular duties and responsibilities of their respective offices, as provided for by law, except the following:

x x x

"(2) appointment, suspension or dismissal of local government officials and employees."

From the foregoing, it is safe to conclude that OIC by designation is so designated by the President of the Philippines only in case where (1) all of the local executive officials have not been proclaimed and (2) where a failure of election had been declared by the Comelec, but the designees must not have been a candidate for any elective position during the recently concluded election.

On the other hand Section 2 of MC No. 123 which speaks of Partial Proclamation provides in no uncertain terms the following, to wit:

"Section 2. Partial Proclamation. In LGU's where the newly elected local officials have partially been proclaimed, the rule on automatic succession prescribed under Chapter 2, Title II, Book 1 of the Local Government Code of 1991 shall strictly be observed in filling-up any temporary vacancy arising thereof."

It is represented that in the elections of May 1995, Caluang was one of the four (4) Sanggunian Members who was proclaimed. Verily, there was partial proclamation. Such being the case, Caluang's case falls within the purview of the aforequoted Section 2 which speaks of partial proclamation. Consequently, the rule on automatic succession will come into place. The said rule which may be found in Section 46, Chapter 2, Title II, Book I of R.A. 7160, on Temporary Vacancy in the Office of the Chief Executive, provides, as follows:

"Section 46, (a) When the governor, city or municipal mayor, or punong barangay is temporarily incapacitated to perform his duties for physical or legal reasons such as, but not limited to, leave of absence, travel abroad, and suspension from office, the vice-governor, city of municipal vice-mayor or the highest ranking sangguniang member shall automatically exercise the powers and perform the functions of the local chief executive concerned, except the power to appoint, suspend, or dismiss employee which can only exercised if the period of temporary incapacity exceeds thirty (30) working days." (Emphasis supplied)

It is indubitable in this case that the temporary incapacity for a period of thirty days has elapsed. Thus, it is now order for Caluang, being the highest ranking Sanggunian Member of the restrictions imposed by law. Likewise, the exercise of such authority is necessary for the continued operation of the local government. While at first glance, there may appear contradictions in the language of the law, the true intent or the spirit of the law which clarifies must prevail over the letter of provisions which suppresses the intent.

It is quite clear that the intention of MC No. 123 is to provide avenues for continued governance in the locality as public service cannot operate in a vacuum. In sum, the President of the Philippines may designate in case there is no proclamation made; whereas in case of partial proclamation the rules under R.A. 7160 finds application.

Again, this must not be confused from designation made by the President under Section 1 of MC No. 123. It is not entirely correct, as Director Limare insisted, that no provision of law shall such eventuality as in this case.

Moreover, this must none in the letter of Secretary Alunan which refers to Caluang as mere designated OIC. What we have here is a notice by Secretary Alunan to Caluang which says that:

"… pursuant to MC 123 (the entire text of said Circular) and on automatic succession prescribed: Under Chapter 2, Title II, Book I of Local Government Code of 1991, being the No. 1 SP member, second district, that Province, you are advised to assume the position of OIC Provincial Governor same province and to exercise powers and function inherent on the position subject to the limitations prescribed under existing laws and regulations, until such time that the governor-elect, vice governor-elect and SB members, first district shall have been proclaimed and qualified x x x."

The law referred to above is Section 46 of R.A. 7160 on temporary incapacity cited earlier, whereas the limitation imposed refers to period of incapacity exceeding thirty days.

Suffice it to state, there is no legal impediment for Caluang to issue renewal of appointment as the requirements of the law have been met and/or satisfied.

WHEREFORE, the Commission finds that Al-Hassan T. Caluang is an Officer-In-Charge, Office of the Provincial Governor, by automatic succession and thus may exercise the authority to renew temporary appointments in the Province of Sulu as provided for under Section 46, Chapter 2, Title II, Book 1 of R.A. 7160, otherwise known as the Local Government Code of 1991.

Quezon City, October 5, 1997

 

                                          (Signed)
                                             CORAZON ALMA G. DE LEON
                                            Chairman

 

                  (Signed)
JOSE F. ERESTAIN, JR.
               Commissioner

 

                (Signed)
JOSE F. ERESTAIN, JR.
           Commissioner

 

Attested by:

                           (Signed)                                

CARMENCITA GISELLE E.B. BRINGAS
                 Board Secretary VI