6.

Romualdez - Marcos vs Commission on Elections

G.R. No.119976/September 18, 1995
Facts:
Petitioner Imelda Romualdez-Marcos filed her Certificate of Candidacy
for the position of Representative of the First District of Leyte. Private
respondent Cirilo Roy Montejo, a candidate for the same position, filed a
petition for cancellation and disqualification with the COMELEC alleging that
petitioner did not meet the constitutional requirement for residency. Private
respondent contended that petitioner lacked the Constitutions one-year
residency requirement for candidates for the House of Representatives.
Issue:
Whether or not petitioner has satisfied the residency requirement as
mandated by Art. VI, Sec. 6 of the Constitution
Held:
Yes. For election purposes, residence is used synonymously with
domicile. The Court upheld the qualification of petitioner, despite her own
declaration in her certificate of candidacy that she had resided in the district
for only 7 months, because of the following: (a) a minor follows the domicile
of her parents; Tacloban became petitioners domicile of origin by operation
of law when her father brought the family to Leyte; (b) domicile of origin is
lost only when there is actual removal or change of domicile, a bona fide
intention of abandoning the former residence and establishing a new one,
and acts which correspond with the purpose; in the absence of clear and
positive proof of the concurrence of all these, the domicile of origin should be
deemed to continue; (c) the wife does not automatically gain the husbands
domicile because the term residence in Civil Law does not mean the same
thing in Political Law; when petitioner married President Marcos in 1954, she
kept her domicile of origin and merely gained a new home, not a domicilium
necessarium; (d) even assuming that she gained a new domicile after her
marriage and acquired the right to choose a new one only after her husband
died, her acts following her return to the country clearly indicate that she
chose Tacloban, her domicile of origin, as her domicile of choice.

1.
Dumpit-Michelena vs Boado
Nov. 17, 2005
This is a petition assailing COMELEC resolution disqualifying Dumpit in the
May 2004 election.
Facts:
Dumpit-Michelena was a candidate for the position of mayor in the
municipality of Agoo, La Union during the May 10, 2004 Synchronized
National and Local Elections. Boado sought Dumpit-Michelenas
disqualification and the denial or cancellation of her COC on the ground of
material misrepresentation under Sections 74 and 78of Batas Pambansa Blg.
881. Boado, et al. alleged that Dumpit-Michelena, the daughter of
Congressman Tomas Dumpit, Sr. of the Second District of La Union, is not a
resident of Agoo, La Union. Boado, et al. claimed that Dumpit Michelena is a
resident and was a registered voter of Naguilian, La Union and that DumpitMichelena only transferred her registration as voter to San Julian West, Agoo,
La Union on October 24, 2003. Dumpit-Michelena countered that she already
acquired a new domicile in San Julian West when she purchased from her
father, Congressman Dumpit, a residential lot on April 19, 2003. She even
designated a caretaker of her residential house. Dumpit-Michelena presented
the affidavits and certifications of her neighbors in San Julian West to prove
that she actually resides in the area. COMELEC rules in favor of Boado et al.
The COMELEC En Banc denied in its ruling the motion for reconsideration
filed by Dumpit-Michelena.
Issues:
WON Dumpit-Michelena satisfied the residency requirement under the
Local Government Code of 1991.
Held:
Dumpit-Michelena failed to prove that she has complied with the
residency requirement. The concept of residence in determining a

candidates qualification is already a settled matter. For election purposes,

residence is used synonymously with domicile.

2.
RIVERA III V. COMELEC
G.R. No. 167591May 9, 2007FACTS:
A petition for cancelation of the Certificate of Candidacy of Marino Morales as
mayoralty candidate in Mabalacat,Pampanga for the May 2004 mayoralty was filed on
the ground the he already served three consecutive terms in the office he seeks to
run.Morales argues that this is not so because although he really served in 1995-1998
(1St term) and 2004-2007 (3 rd term), he was merely a caretaker or de facto mayor
in1998-2001(2nd term) because his election was declared void by the RTC due to an
election protest. Comelec ruled that Morales already served his third term and after an
MR was filed ,declared it final and executory on May 14,2004.
ISSUE:
WON Morales had already served his 3consecutive terms and if so, who should
take his position.
HELD:
For the three-term limit for elective local government officials to apply, two
conditions or requisites must concur, to wit:(1) that the official concerned has been
elected for three (3) consecutive terms in the same local government post, and (2)that
he has fully served three (3)consecutive terms. Here, Morales was elected for the term
July1, 1998 to June 30, 2001. He assumed the position. He served as mayor until June
30,2001. He was mayor for the entire period not with standing the Decision of the RTC
in the electoral protest case filed by petitioner Dee ousting him (respondent) as mayor.
Such circumstance does not constitute an interruption in serving the full term. Whether
as "caretaker" or "de facto" officer, he exercises the powers and enjoys the prerequisites
of the office which enables him "to stay on indefinitely". With regard to the person who
will replace Morales, it is a rule that the ineligibility of a candidate receiving majority
votes does note n title the eligible candidate receiving the next highest number of votes
to be declared elected. A minority or defeated candidate cannot be deemed elected
to the office. Since his disqualification became final and executory after the elections,
the candidate having the second highest number of votes cannot assume the position.
Hence, it is the petitioner, the elected Vice Mayor Anthony Dee who should be declared
as the mayor.

4.
BORJA V. COMELEC
G.R. No. 133495 September 3, 1998
FACTS:
Respondent Jose Carpo is the vice-mayor of Pateros for a term ending
June 1992. When the mayor Cesar Borja died, Carpo became the mayor by
operation of law. In 1992, Carpo ran and elected as mayor and in 1998 he
again filed his COC for reelection but petitioner Benjamin Borja Jr. contested
it on the ground that he had already served the three-consecutive term
allowed by law.
ISSUE:
WON Carpo has already served three consecutive terms.
HELD:
The contention of Borja is unmeritorious. The three term limit of local
officials must be taken to the right to be elected and the right to serve the
same elective position. Consequently, it is not enough that an individual has
served three consecutive terms but he must also be elected in the to the
same position in the same number of times before the disqualification can
apply. In this case, the first term of Carpo cannot be included in the
computation because he was not elected in that instance but rather only
served the remaining term of the deceased mayor by virtue of operation of
law.

11.
LOZANIDA V. COMELEC
G.R. No. 135150 July 28, 1999
FACTS:
Romeo Lonzanida was the mayor of San Antonio, Zambales for two
consecutive terms. In 1995, he ran again for his third term and won.
However, after an election protest has been filed by his opponent Juan Alves,
the Comelec declared a failure of election and the position vacant but
Lonzanida still continued to function as such. After the recounting of votes,
Comelec declared Aves as the winner of the election and issued a resolution
for such in February 1998, a few months after the next election. Lonzanida
acceded to the resolution and Aves took over the position. In the May 1998
elections, Lonzanida again filed his COC to run as mayor of the place but his
opponent this time, Eufemio Muli filed a disqualification case on the ground
that he has already served his three-term limit. Muli contends that even
though Aves has been declared as the winner in the 1995 polls, Lonzanida
still functioned as the mayor for almost the entire term.
ISSUE:
WON Lonzanida has already served his three-term limit.
HELD:
The argument of Muli is without merit. The three-term limitation
provided by the Constitution and the LCG provides that The term of office of
elective local officials, except barangay officials, which shall be determined
by law shall be three years and no such officials shall serve for more than
three consecutive terms. Voluntary renunciation of the office for any length

of time shall not be considered as an interruption in the continuity of his

service for the full term for which he was elected. In the present case the
assumption in office of Lonzanida in 1995 cannot be considered as part of
the three-term limit because of the absence of two requisites. First, the
petitioner cannot be considered as having been duly elected to the post in
the May 1995 elections, and second, the petitioner did not fully serve the
1995-1998 mayoral term by reason of involuntary relinquishment of office. To
recapitulate, the term limit for elective local officials must be taken to refer
to the right to be elected as well as the right to serve in the same elective
position. Consequently, it is not enough that an individual has served three
consecutive terms in an elective local office, he must also have been elected
to the same position for the same number of times before the disqualification
can apply.

3.
FRANCIS G. ONG, Petitioner, vs. JOSEPH STANLEY ALEGRE and COMMISSION
ON ELECTIONS, Respondents.
G.R. No. 163295 January 23, 2006
FACTS:
Alegre and Ong were candidates who filed certificates of candidacy for
mayor of San Vicente, Camarines Norte in the May 10, 2004 elections.
Francis was then the incumbent mayor. On January 9, 2004, Alegre filed the
petition to disqualify Ong which was predicated on the threeconsecutive term
rule. Francis ran in the May 1995, May 1998, and May 2001 mayoralty
elections and have assumed office as mayor and discharged the duties
thereof for three (3) consecutive full terms corresponding to those elections.
The May 1998 elections, both Alegre and Ong ran for the office of mayor,
with Ong was proclaimed winner. Alegre filed an election protest. In it, the
RTC declared Alegre as the duly elected mayor in that 1998 mayoralty
contest, but the decision came out only when Francis had fully served the
1998-2001 mayoralty term and starting to serve the 2001-2004 term as
mayor-elect. Acting on Alegres petition to disqualify and to cancel Francis
certificate of candidacy for the May 10, 2004 elections, the First Division of
the COMELEC rendered on March 31, 2004 a resolution5 dismissing the said
petition of Alegre. Alegre filed a motion for reconsideration. The COMELEC en
banc issued, a resolution6 reversing the resolution of the COMELECs First

Division and thereby (a) declaring Francis "as disqualified to run for mayor in
the May 10, 2004"; (b) ordering the deletion of Francis name from the official
list of candidates; and (c) directing the concerned board of election
inspectors not to count the votes cast in his favor. The following day, May 8
at about 5:05 p.m. of the very same day - which is past the deadline for filing
a certificate of candidacy, Rommel Ong filed his own certificate of candidacy
for the position of mayor, as substitute candidate for his brother Francis.
However, it is recommended that the substitute certificate of candidacy of
Rommel Ong should be denied due course and the election officer be
directed to delete his name from the list of candidates.

3. Cont.
ISSUE:
a) whether or not petitioner Franciss assumption of office for the
mayoralty term 1998 to 2001 should be considered as full service for the
purpose of the three-term limit rule. b) whether the COMELEC acted with
grave abuse of discretion amounting to lack or excess of jurisdiction in
declaring petitioner Francis as disqualified to run c) whether the COMELEC
committed grave abuse of discretion when it denied due course to Rommels
certificate of candidacy in the same mayoralty election as substitute for his
brother Francis.
HELD:
a) Respondent COMELEC resolved the question in the affirmative. The
three-term limit rule for elective local officials is found in Section 8, Article X
of the 1987 Constitution. For the three-term limit for elective local
government officials to apply, two conditions or requisites must concur, to
wit: (1) that the official concerned has been elected for three consecutive
terms in the same local government post, and (2) that he has fully served
three (3) consecutive terms. The disqualifying requisites are present herein,
thus effectively barring petitioner Francis from running for mayor. His

proclamation by the Municipal Board of Canvassers of San Vicente as the

duly elected mayor in the 1998 mayoralty election coupled by his
assumption of office and his continuous exercise of the functions thereof
from start to finish of the term, should legally be taken as service for a full
term in contemplation of the three-term rule. b) The ascription of grave
abuse of discretion on the part of the COMELEC en banc when it disqualified
Francis from running in the May 10, 2004 elections for the mayoralty post
cannot be sustained. c) A person without a valid certificate of candidacy
cannot be considered a candidate in much the same way as any person who
has not filed any certificate of candidacy at all can not, by any stretch of the
imagination, be a candidate at all. WHEREFORE, the instant petitions are
DISMISSED and the assailed en banc Resolution dated May 7, 2004 of the
COMELEC, in SPA No. 04-048 AFFIRMED.

5.
Frivaldo v. COMELEC
G.R. No. 120295, June 28, 1996.
Facts:
Juan G. Frivaldo unquestionably obtained the highest number of votes in
three successive elections but he was twice declared to be disqualified to
hold such office due to his alien citizenship, and he now claims to have reassumed his lost Philippine citizenship thru repatriation.
Issues:
1. Was the repatriation of Frivaldo valid?
(Secondary Issues)

Who should be declared the rightful governor of Sorsogon? Should

it be Frivaldo who is said to be an alien, Lee who got the second mostnumber
of votes or Vice- Governor Deri as the rules on political succession states?
Held:
Frivaldos repatriation is valid and it was
given a retroactiveeffect. He is also allowed to take office for he got the
popular supportas is shown in the ballots.

7.
Facts:
Montebon had been elected for three consecutive terms as municipal councilor of
Tuburan, Cebu in 1998, 2001, and 2004 elections. However, in January 2004, or during
his second term, he succeeded and assumed the position of vice-mayor of Tuburan
when the incumbent vice-mayor retired. When he filed his certificate of candidacy again
as municipal councilor for 2007 elections, a petition for disqualification was filed against
him based on the three-term limit rule. In his answer, Montebon argued that he cannot
be disqualified on the ground of the 3-term limit rule because his second term was
interrupted when he assumed the position of vice-mayor due to the retirement of elected
vicemayor Petronilo Mendoza. Petitioners maintained that Montebon's assumption of
office as vice-mayor in January 2004 should not be considered an interruption in the

service of his second term since it was a voluntary renunciation of his office as
municipal councilor.
Issue:
Was Montebon's assumption to the vice-mayoralty position considered an involuntary
severance or interruption?
Held:
Yes. Succession in local government offices is by operation of law. Section 44 of
Republic Act No. 7160, provides that if a permanent vacancy occurs in the office of the
vice mayor, the highest ranking sanggunian member shall become vice mayor.
The legal successor is not given any option under the law on whether to accept the
vacated post or not. Section 44 of the Local Government Code makes no exception.
Only if the highest-ranking councilor is permanently unable to succeed to the post does
the law speak of alternate succession. Under no circumstances can simple refusal of
the official concerned be considered as permanent inability within the contemplation of
law. Essentially therefore, the successor cannot refuse to assume the office that he is
mandated to occupy by virtue of succession. He can only do so if for some reason he is
permanently unable to succeed and occupy the post vacated.
Thus, succession by law to a vacated government office is characteristically not
voluntary since it involves the performance of a public duty by a government official, the
non-performance of which exposes said official to possible administrative and criminal
charges of dereliction of duty and neglect in the performance of public functions. It is
therefore more compulsory and obligatory rather than voluntary.
In this case, a permanent vacancy occurred in the office of the vice-mayor due to the
retirement of Vice Mayor Mendoza. Montebon, being the highest ranking municipal
councilor, succeeded him in accordance with law. Thus, Montebon's assumption of
office as vice-mayor in January 2004 was an involuntary severance from his office as
cont. 7.
municipal councilor, resulting in an interruption in the service of his 2001-2004 term. It
cannot be deemed to have been by reason of voluntary renunciation because it was by
operation of law. (Montebon vs. Comelec, G.R. No. 180444. April 9, 2008)
Note:
Since the law no less allowed Montebon to vacate his post as councilor in order to
assume office as vicemayor, his occupation of the higher office cannot, without more, be
deemed as a voluntary renunciation of his position as councilor.

8.
GOVERNOR RODOLFO C. FARIAS and AL NACINO, petitioners,
vs.
MAYOR ANGELO N. BARBA, VICE MAYOR MANUEL S. HERNANDO and
EDWARD PALAFOX, respondents.
L-116763; 256 SCRA 396
April 19, 1996

FACTS:

Carlito B. Domingo was a member of the Sangguniang Bayan of San Nicolas,

Ilocos Norte. On March 24, 1994, he resigned after going without leave to the United
States.
To fill the vacancy created by his resignation, a recommendation for the appointment of
Edward Palafox was made by the Sangguniang Bayan of San Nicolas but the
recommendation was made to Mayor Barba. The resolution, containing the
recommendation, was submitted to the Sangguniang Panlalawigan of Ilocos Norte
purportedly in compliance with Sec. 56 of the Local Government Code (R.A. No. 7160).
The Sangguniang Panlalawigan, purporting to act under this provision of the Local
Government Code, disapproved the resolution for the reason that the authority and
power to appoint Sangguniang Bayan members are lodged in the Governor.
Accordingly, the Sangguniang Panlalawigan recommended to the Governor the
appointment of petitioner Al Nacino. On June 8, 1994, the Governor appointed petitioner
Nacino and swore him in office that same day. On the other hand, respondent Mayor
Barba appointed respondent Edward Palafox to the same position.
On June 14, 1994, petitioners filed with the Regional Trial Court of Ilocos Norte a
petition for quo warranto and prohibition.
On July 8, 1994 the trial court rendered its decision, upholding the appointment of
respondent Palafox by respondent Mayor Barba.
ISSUE:

Who can appoint the replacement and in accordance with what procedure?

HELD:

The person who has the power to appoint under such circumstance is the Governor
upon the recommendation of the Sangguniang concerned which is the Sangguniang
Bayan of San Nicolas where the vacancy occurs.
Cont. 8.
The upshot of this is that in the case at bar, since neither petitioner Al Nacino nor
respondent Edward Palafox was appointed in the manner indicated in the preceding
paragraph, neither is entitled to the seat in the Sangguniang Bayan of San Nicolas,
Ilocos Norte which was vacated by member Carlito B. Domingo. For while petitioner Al
Nacino was appointed by the provincial governor, he was not recommended by the
Sangguniang Bayan of San Nicolas. On the other hand, respondent Edward Palafox
was recommended by the Sangguniang Bayan but it was the mayor and not the
provincial governor who appointed him.

9.
Navarro and Tamayo vs CA
[GR 141307; March 28, 2001]
(Local Government, Permanent vacancies in the Sanggunian, Section 45 (b) of the
Local Government Code)
Facts:
With the death of the Mayor Calimlim, a vacancy was created in the Office of the
Mayor so by operation of law, he was succeeded by Aquino the then Vice-Mayor.
Petitioner Tamayo, the highest ranking member of the Sangguniang Bayan was
elevated to the position of the Vice Mayor pursuant to the same law.
Since vacancy occurred in the Sangguniang Bayan by the elevation of the petitioner,
Governor Agbayani appointed herein petitioner Navarro as Member of the Sangguniang
Bayan.
Aquino belonged to the political party Lakas NUCD-KAMPI, while both Navarro and
Tamayo belonged to REFORMA-LM political party.
Private respondents seek to nullify the appointment of petitioner Navarro arguing that it
was the former vice-mayor, succeeding to the position of the mayor, who created the
permament vacancy in the Sanggunian Bayan because under the law he was also a
member of the Sanggunian. Thus, the appointee must come from said former vicemayors political party.
Petitioners, on the other hand, contended that it was the elevation of petitioner Tamayo,
who was the highest ranking member of the Sanggunian Bayan, to the office of the
Vice-Mayor which resulted in a permanent vacancy. The person to be appointed to the
position vacated by him should come from the same political party affiliation as that of
petitioner Tamayo.

However, the CA concluded that it was the appointment of the 8 th councilor, to the
number 7 position which created the last vacancy; therefore, the person to be appointed
to the vacant position should come from the same political party to which the latter
belonged, which was Lakas-NUCD KAMPI.
Issue:
WON the elevation of the highest ranking member of the Sanggunian to the position
of vice-mayor created the last vacancy in the Sanggunian Bayan.

Cont. 9.
Held:
Yes. Under Sec 44 of the LGC, 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 45 (b) of the same law provides that only the nominee of the political party under
which the Sanggunian member concerned has been elected and whose elevation to the
position next higher in rank created the last vacancy in the Sanggunian shall be
appointed in the manner herein provided. The appointee shall come from the political
party as that of the Sanggunian member who caused the vacancy
The reason behind the right given to a political party to nominate a replacement where a
permanent vacancy occurs in the Sanggunian is to maintain the party representation as
willed by the people in the election.
With the elevation of the petitioner, who belonged to REFORMA-LM, to the position of
vice-mayor, a vacancy occurred in the Sanggunian that whould be filled up with
someone who should belong to the political party of petitioner Tamayo. Otherwise,
REFORMA-LMs representation would be diminished.

10.
EN BANC
[G.R. No. 134213. July 20, 1999]
Romeo

J. Gamboa, Jr., petitioner,

Araneta, respondents.

vs. Marcelo

Aguirre,

Jr.,

and

Juan

Y.

DECISION
YNARES-SANTIAGO, J.:
The query herein is purely legal. May an incumbent Vice-Governor, while concurrently the
Acting Governor, continue to preside over the sessions of the Sangguniang Panlalawigan (SP)?
The facts are not in dispute.
In the 1995 elections, Rafael Coscolluela, petitioner Romeo J. Gamboa, Jr. and respondents
Marcelo Aguirre, Jr., and Juan Y. Araneta were elected Negros Occidental Governor, ViceGovernor and SP members, respectively. Sometime in August of 1995, the governor designated
petitioner as Acting Governor for the duration of the formers official trip abroad until his
return. When the SP held its regular session on September 6, 1995, respondents questioned the

authority of petitioner to preside therein in view of his designation as Acting Governor and asked
him to vacate the Chair. The latter, however, refused to do so. In another session, seven (7)
members of the SP voted to allow petitioner to continue presiding while four (4) others voted
against with one (1) abstention. On September 22, 1995, respondents filed before the lower court
a petition for declaratory relief and prohibition. In the meantime, on October 2, 1995, the
Governor re-assumed his office. Later, the trial court rendered a decision and declared petitioner
as temporarily legally incapacitated to preside over the sessions of the SP during the period that
he is the Acting Governor.[1] Aggrieved, petitioner filed a petition for review raising the issue
earlier mentioned. Although this case is dismissible for having become moot and academic
considering the expiration in 1998 of the terms of office of the local officials involved herein, the
Court nonetheless proceeds to resolve this common controversy but novel issue under the
existing laws on local government.
Sections 49(a) and 466(a)(1) of Republic Act (R.A.) No. 7160 otherwise known as the Local
Government Code of 1991, provide that the Vice-Governor shall be the presiding officer of the
SP.[2] In addition to such function, he become(s)[3] the Governor and assume(s)[4] the higher office
for the unexpired term of his predecessor, in case of permanent vacancy therein. When the
vacancy, however, is merely temporary, the Vice-Governor shall automatically exercise the
powers (subject to certain limitations) and perform the duties and functions [5]of the Governor. It
may be noted that the Code provides only for modes of succession in case of permanent vacancy
in the office of the Governor and the Vice-Governor (whether single or simultaneously) as well
Cont. &10
Cont. 10.
as in case of a temporary vacancy in the office of the Governor.But, no such contingency is
provided in case of temporary vacancy in the office of the Vice-Governor, just like the 1983
Local Government Code.[6]
It is correct that when the Vice-Governor exercises the powers and duties of the Office of the
Governor, he does not assume the latter office. He only acts as the Governor but does not
become the Governor. His assumption of the powers, duties and functions of the provincial Chief
Executive does not create a permanent vacuum or vacancy in his position as the ViceGovernor. Necessarily, he does not relinquish nor abandon his position and title as ViceGovernor by merely becoming an Acting Governor, (not Governor) or by merely exercising the
powers and duties of the higher office. But the problem is, while in such capacity, does he
temporarily relinquish the powers, functions, duties and responsibilities of the Vice-Governor,
including the power to preside over the sessions of the SP?

Sad to say the new Local Government Code is silent on this matter, yet this query should be
answered in the positive. A Vice-Governor who is concurrently an Acting Governor is actually a
quasi-Governor. This means, that for purposes of exercising his legislative prerogatives and
powers, he is deemed as a non-member of the SP for the time being. By tradition, the offices of
the provincial Governor and Vice-Governor are essentially executive in nature, whereas plain
members of the provincial board perform functions partaking of a legislative character. This is
because the authority vested by law in the provincial boards involves primarily a delegation of
some legislative powers of Congress.[7] Unlike under the old Code, where the Governor is not
only the provincial Chief Executive,[8] but also the presiding officer of the local legislative body,
[9]
the new Code delineated the union of the executive-legislative powers in the provincial, city
and municipal levels except in the Barangay. Under R.A. 7160, the Governor was deprived of the
power to preside over the SP and is no longer considered a member thereof. [10] This is clear from
the law, when it provides that local legislative power shall be vested in the SP,[11] which is the
legislative body of the province, and enumerates therein its membership consisting of the:
1.) Vice-Governor, as presiding officer,
2.) regular elective SP members,
3.) three elective sectoral representatives, and
4.) those ex-officio members, namely:
a.) president of the provincial chapter of the liga ng mga barangay,
b.) president of the panlalawigang pederasyon ng mga sangguniang kabataan,
c.) president of the provincial federation of sanggunian members of municipalities and
component cities.[12]
Not being included in the enumeration, the Governor is deemed excluded applying the rule
in legal hermeneutics that when the law enumerates, the law necessarily excludes. On the
contrary, local executive power in the province is vested alone in the Governor.[13]Consequently,
Cont. 10.

the union of legislative-executive powers in the office of the local chief executive under the
former Code has been disbanded, so that either department now comprises different and nonintermingling official personalities with the end in view of ensuring a better delivery of public
service and provide a system of check and balance between the two.

It has been held that if a Mayor who is out of the country is considered effectively absent,
the Vice-Mayor should discharge the duties of the mayor during the latters absence. [14] This
doctrine should equally apply to the Vice-Governor since he is similarly situated as the ViceMayor. Although it is difficult to lay down a definite rule as to what constitutes absence, yet this
term should be reasonably construed to mean effective absence, [15] that is, one that renders the
officer concerned powerless, for the time being, to discharge the powers and prerogatives of his
office.[16] There is no vacancy whenever the office is occupied by a legally qualified
incumbent. A sensu contrario, there is a vacancy when there is no person lawfully authorized to
assume and exercise at present the duties of the office. [17] By virtue of the foregoing definition, it
can be said that the designation, appointment or assumption of the Vice-Governor as the Acting
Governor creates a corresponding temporary vacancy in the office of the Vice-Governor during
such contingency. Considering the silence of the law on the matter, the mode of succession
provided for permanent vacancies, under the new Code, in the office of the Vice-Governor may
likewise be observed in the event of temporary vacancy occurring in the same office. [18] This is
so because in the eyes of the law, the office to which he was elected was left barren of a legally
qualified person to exercise the duties of the office of the Vice-Governor.
Being the Acting Governor, the Vice-Governor cannot continue to simultaneously exercise
the duties of the latter office, since the nature of the duties of the provincial Governor call for a
full-time occupant to discharge them.[19] Such is not only consistent with but also appears to be
the clear rationale of the new Code wherein the policy of performing dual functions in both
offices has already been abandoned. To repeat, the creation of a temporary vacancy in the office
of the Governor creates a corresponding temporary vacancy in the office of the Vice-Governor
whenever the latter acts as Governor by virtue of such temporary vacancy. This event constitutes
an inability on the part of the regular presiding officer (Vice Governor) to preside during the SP
sessions, which thus calls for the operation of the remedy set in Article 49(b) of the Local
Government Code concerning the election of a temporary presiding officer. The continuity of the
Acting Governors (Vice-Governor) powers as presiding officer of the SP is suspended so long as
he is in such capacity. Under Section 49(b), (i)n the event of the inability of the regular presiding
officer to preside at the sanggunian session, the members present and constituting a quorum shall
elect from among themselves a temporary presiding officer.[20]
WHEREFORE, the petition is DENIED for lack of merit.
SO ORDERED.
WHEREFORE, in view of the foregoing consideration, this court hereby declares that the
respondent Negros Occidental Vice Governor Romeo J. Gamboa, Jr., is temporarily legally
incapacitated or disqualified to preside over the sessions of the Sangguniang Panlalawigan of
Negros Occidental during the period that he is Acting Provincial Governor of the said province,
exercising the powers and performing the duties of the Governor who is abroad or incapacitated

Cont. 10.

temporarily pursuant to Section 46 of the Local Government Code of 1991, and prohibiting the
respondent from presiding over the sessions of Sangguniang Panlalawigan of Negros Occidental
in the future during such circumstance. In such event and under such circumstance, the highest
ranking Sangguniang Panlalawigan member of Negros Occidental is hereby declared to be
entitled to preside over the sessions of the said body in conformity with the rules provided for
under Section 44 (a) of the said code.No pronouncement as to costs.
SO ORDERED.