Opinion No. 40, s.

2000

11 April 2000

MR. ERWIN B. VERGARA

Office of the Provincial Attorney
Provincial Capitol, Dumaguete City

Dear Atty. Vergara:

This pertains to your letter dated 13 March 2000, requesting for legal
opinion relative to Sangguniang Panlalawigan Resolution No. 144 resolving to
bypass your appointment as Provincial Attorney in the Province of Negros
Oriental. Specifically, you cited the following questions, to wit:

1. Does the term “to bypass” mean rejection of the appointment? Or

merely a deferment of action?

2. What is the legal effect of such resolution to the appointment?

Does the Governor have to resubmit the appointment of Atty.
Vergara to the Sangguniang Panlalawigan?

3. Assuming the appointment is already valid by operation of law or

Atty. Vergara later secured the necessary concurrence, when does
his appointment take effect? Does it retroact to the date of his
appointment or only on the date the sanggunian gave its
concurrence?

In reply to the first query, please be informed that when an

appointment of a provincial attorney is presented before the sanggunian for
its concurrence, that sanggunian is mandated to act thereon within fifteen
(15) days from the date of its submission (Sec. 463, RA 7160). The word
“act” in the foregoing provision means either expressly to concur or not to
concur on the appointment upon determining whether or not the appointee
possesses all the required qualifications and none of the disqualification for
the said office (DILG Opinion Nos. 154, 157, s. 1999). However, questions as
to whether Sangguniang Panlalawigan Resolution No. 144 dated 28 February
2000 resolving to “by pass” your appointment as Provincial Attorney in the
Province of Negros Oriental should be interepreted to mean as non-
concurrence or merely deferment of the action should be best addressed to
that deliberative body as it involves the wisdom of that body. Any attempt
by this Department to interpret it might be construed as an
unwarranted encroachment into the powers and prerogatives of that
sanggunian. But for whatever purpose it may serve, please be informed that
the principle of by passing an appointment is applicable only to Presidential
appointees whose appointment requires the confirmation of the Commission
on Appointments and such appointee was appointed by the President at a
time when Congress is not in session. If, upon resumption of the session of
Congress, the Commission on Appointments did not deliberate on the matter
until the next adjournment of the body, such appointment is deemed by
passed (Aytona v. Castillo [4 SCRA 22]; Guevarra v. Inocentes [16 SCRA
379]). Be that as it may, it is suggested that your request for clarification be
addressed to the sanggunian concerned.
 Anent the second query, as intimated above, the answer thereto would
greatly depend on how the sanggunian would interpret the term “ by pass”
contained in its Resolution.

Anent the third query, please be informed that generally, where the
assent or confirmation of some offices or body is required, the appointment
may be completed only when such assent or confirmation is obtained
(Corpuz vs. C.A., 285 SCRA 23; DILG Opinion No. 130, s. 1999). Moreover,
under Section 1, Rule IV of CSC Memorandum Circular No. 40, s. 1998, in
case of local government unit appointment requiring concurrence of the
Sangguniang Bayan, effectivity thereof shall not be earlier than the date of
such concurrence.

Hope we have enlightened you on the matter.

Very truly yours,

ALFREDO S. LIM
Secretary

LS:80/La