REPUBLIC OF THE PHILIPPINES

@ DEPARTMENT OF THE |NTEB|OR AND LOCAL GOVERNMENT

Francisco Gold Condominium ll
EDSA Cor. Mapagmahal St., Diliman
Quezon Citv

LEGAL SERVICE
DILG OPINION NO. I48 S. 2O1O

REGIONAL DIRECTOR CORAZON P. GURAY

0E{J 09 20{l
DILG-Cordillera Administrative Region
Barangay Center, Baguio 2600

Dear Regional Director Guray:

This has reference to your letter, seeking the Department's position pertaining
to
issues in connection with the recenfly concluded synchronized Barangay
Elections. to wit:
and SK

a. which will prevail between section 6, Article lx-82, 19g7 constitution and
secrron 94 (b)" of the Locar Government code of 1991 (RA 7160)? Said
section 6 did not provide exemption for those losing candidaies in a nirangay
election;

o. Which will prevait between Se-ction 7, Article lX_84, 1987 philippine

constitution and Section 94 (a)5 of the Local Government code of rsei '(nA
7160)?..The first paragraph of said Section 7 mentioned onry erective '(no
appointive) official and made no mention of "elective"
lonly appointivey otriciar
in its second paragraph;

what
.the mode of filring up the elective sK posts which were reft vacant
is
due to absence of candidates coupled with the absence of kabataan or youth
who are in the official barangay rist in the custody of the barangay secretary?;

d. Pending the fiiling up of such vacancies in the erective sK posts, what will
happen to the ten percent (10%) SK budget?

We shall answer your queries in seriatim.

.betweenIn reply to your first and second query, while it appears that there is a confrict
Section 6, Article 'section
lx-B, 19gz constitution and 94 (b) of the Local
Gove.rnment code (LGC) (r.e., the LGC provides an exception to the prohibition on
the
appointment of candidates.who lost in any election wiihin one (1j year after
'election; such
whereas the constitution provides a general prohibition on'the appointment of

'?section 6 No canddate who has lost in any election shall, within one year afler such etection, be appointed lo any office in
Govemment-owned or controlled corporationsor in any oftheir subsdiari;s. lhe covernment or any
" Section 94. Appo,hlmert ot Ehctive
and Appointite Local Otficiats; Candidates Who Lost in an El'ctioo. _

. . (b) Except for losino candidates in barang"y

.De appoinled eteaon", no olJJate who tost in any erectlon sha , within one (.r) year atter such erec1on,
to any office in the Govamment or any lovemmenlowned or conlrotled corporatioirs orin any of their subsidi;rj;;.
' secflon 7No elective otficial shall b eligible for apporntmed or designalion in any capacity to any pubtrc
oftice or posation during his tenure.
ljnless otheMise allowed by law or bv the prlmary functions of hi; positton, no appointive omait
^
Govemmenl or any subdivision, agency or inslrumentality ihereof, includi;g covernmeiri-o*nea
snatt trord any otrer oince iie-.lroimenr rn rne
orcontrolled corporations or heir sr.,osiiiiires.
- sctlon 94' Appottfme nt ot Etective and Appointive Local oficiats; candidates who Lost in an Etectior.
shall be eligible.for appoinlmenl or designalion in any capacity to any
- {a) No elective or appointive local official
y public oflice or position during his lenure.
Unless ohrwse
uness otherwise albwed
allowed by
bv law
taw or by the ptimary functions of his posilion, elective or.nMintivA
Dosilion no eleclive
. or appointive r.
local offciat sha hold any oiher office or
ernploymenl in lhe government or any subdivision. agency or instrumendlity theieof, inctuding govemmenl-owned
or contrc ed corporalions or lheir
subsidiaries

ed&,atu? U11444 a{ Zocat fu,6aq * do ?kttpal*t

candidates who lost in any election withih the same period) and between Section 94 (a)
of theof the LGC and Section 7, Article lX-B, 1987 Constitution (r.e., the LGC provides
an exception to an elective official's appointment to other office or employment in the
Government or its subdivision, agency, or instrumentality, including government owned
and controlled corporations or its subsidiaries; whereas elective officials are absolutely
prohibited by the Constitution from being appointed or designated in any capacity to any
public office or position during his tenure), it must be emphasized that laws are
presumed valid and constitutional unless declared otherwise by the Court. In addition,
please be reminded that under DILG Memorandum Order No. 2010-02 dated 17
September 2010, the Department as matter of policy shall not act on queries on
presumptively valid acts that enjoy the presumption of regularity such as this instance.

As to your third query, may we direct your attention to the 09 November 2010
issued Department Advisory on the subject of filling up SK vacancies at the barangay
level. In your letter you cited a theoretical situation wherein no qualified youth registered
with the Katipunan ng Kabataan. This falls squarely within Section 16, Article Vll of the
Constitution wherein the President of the Philippines may exercise his residual power of
appointment where the appointment of a public officer is not lodged to any other
appointing authority, subject to formulated guidelines on the matter.

Finally, as to your query on what will happen to the ten (10%) SK budget and
your supposition that there is no legal impediment for the Punong Barangay concerned
to utilize and disburse the 10% SK fund exclusively for the benefit of the youth as
programmed and determined by the Committee on Youth and Sports Development in
the sangguniang barangay in case there are no SK officials or if there are only few of
them who do not compose a majority, may we direct your attention to the issued 20
January 2009 DILG Opinion No. 4, S. 2009 which discussed the nature of the SK Fund
and the nature and procedure and manner by which the same is to be spent, v2.:

"section 32g of the Local Government Code of 1gg1 (RA 7160)

mandates that "ten percent (7oo/o) of the general fund of the barangay shall
be set aside for the sangguniang kabataan," which, in our opinion, means
that such fund shall be included in the barangay budget as a lump sum
amount and transferred to the account of the SK as a trust fund which may
be deposited with the city or. municipal treasury of any depositary bank.
Article 423 of the Rules and Regulations Implementing the Local Government
Code of 1991 further provides that "the said ten percent share shall be spent
for the purposes provided in Rule XXVI of [these] Rules except for personal
services." Hence, the Punong Barangay has no control over the appropriation
and administration of the SK Fund. In fact, under Section 389 (b) (11), the
Punong Barangay only exercises general supervision over the activities of the
sangguniang kabataan. And, as to what activities/purposes fhe SK fund shall
be spent, note that vital and most important to the powers and functions of
the Sangguniang Kabataan under Rule xxvfi of the Rules and Regulations
Implementing the Local Government Code is the enhancement of programs
towards the members' social, political, economic, cultural, intellectual, moral
and physical development.

Before the SK Fund is withdrawn or disbursed, the same must be in

accordance with the approved budget of the sangguniang kabataan pursuant
to Section 433 of the Local Government Code of 1991. x x x"

During the pendency of the election or appointment of SK representatives, the

ten percent (10%) SK Fund cannot be utilized for any other purpose other than for the
specific purpose for which they have been appropriated pursuant to Section 336 of the
LGC. In addition, SK Funds are considered a statutory obligation that can be considered
a trust fund. Pursuant to Section 305 (e) of the LGC, "trust funds in local treasury shall
not be paid out except in fulfillment of the purpose for which the trust was created or the
-

funds received. Hence, any unexpended balances shall form part of the beginning
balance ofthe succeeding fiscal year but only to be added to the 10yo snire oittre
Fund forthe next year.6
sr
. Please be guided accordingly.

Very truly yours,

TTY. JESIJE B. DO

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f d*C.RD cwry.tu

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'Se hfrp:rrsww.dbm.qov.ph/dbm. oubl'tcationBro(iner or| bEvrb4.hbn: brur:ed oh 0g December 2010