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2|Local Government (Guanzon) S . Y. 08-09: 2nd Sem.

SYLLABUS PART 1: LOCAL GOVERNMENTS; Paredes vs Executive Secretary (same issue but concerns
Petitioners have averred without contradiction that after the
Creation of Local Government Units: creation of Negros del Norte, the province of Negros
Occidental would be deprived of the long established Cities
Patricio Tan et al. v. COMELEC of Silay, Cadiz, and San Carlos, as well as the municipality of
Facts: Prompted by the enactment of BP 885 (Act Creating Victorias. No controversion has been made regarding
Province of Negros del Norte), petitioners who are residents petitioners' assertion that the areas of the Province of
of the Province of Negros Occidental filed with this Court a Negros Occidental will be diminished by about 285,656
case for Prohibition for the purpose of stopping Comelec hectares and it will lose seven of the fifteen sugar mills
from conducting the plebiscite which, pursuant to and in which contribute to the economy of the whole province. In
implementation of the law. Petitioners contend that BP 885 is the language of petitioners, "to create Negros del Norte, the
unconstitutional and it is not in complete accord with the existing territory and political subdivision known as Negros
LGC as in Article XI, Section 3 of our Constitution regarding Occidental has to be partitioned and dismembered. What
the requirements in land area and estimated annual income. was involved was no 'birth' but "amputation." We agree with
Petitioners also contend that a number of voters were the petitioners that in the case of Negros what was involved
excluded since the plebiscite was confined only to the was a division, a separation; and consequently, as Sec. 3 of
inhabitants of three cities and eight municipalities in Negros Article XI of the Constitution anticipates, a substantial
del Norte, to the exclusion of the voters of the Province of alteration of boundary.
Negros Occidental..
Comelec contends that the law is not unconstitutional. They Issue: WON the new Province of Negros del Norte
claim that BP 885 does not infringe the Constitution because complied with the requirements as to land area
the requisites of the LGC have been complied with. They
submit that the case has now become moot and academic Held: No
with the proclamation of Negros del Norte as during the
plebiscite, 164,734 were in favor of the creation of the new Ratio: The original parliamentary bill no 3644 expressly
province while only 30,400 were against it. declared that the new province contained an area of 285,656
ha. More or less. However, when Parliamentary bill was
Issue: WON the province complied with the plebiscite enacted into BP 885, the province now comprised a territory
requirement of 4,019.95 square kilometers. The certification of the
provincial treasurer also indicates that there the province
Held: No comprised of a lesser area. Although the certification stated
that the land area of the municipality of Don Salvador was
Ratio: The more significant and pivotal issue in the not available, it appeared that such is only 80.2 kilometers.
present case revolves around in the interpretation and This area if added to 2,685.2 square kilometers will result in
application in the case at bar of Article XI, Section 3 of the approximately an area of only 2,765.4 square kilometers.
Constitution. It can be plainly seen that the constitutional The last sentence of the first paragraph of Section 197 LGC 1
provision makes it imperative that there be first obtained (requirements) is most revealing. As so stated therein the
"the approval of a majority of votes in the plebiscite in the "territory need not be contiguous if it comprises two or more
unit or units affected" whenever a province is created, islands." The use of the word territory in this particular
divided or merged and there is substantial alteration of the provision of the Local Government Code and in the very last
boundaries. It is thus inescapable to conclude that the sentence thereof, clearly, reflects that "territory" as therein
boundaries of the existing province of Negros Occidental used, has reference only to the mass of land area and
would necessarily be substantially altered by the division of excludes the waters over which the political unit exercises
its existing boundaries in order that there can be created the control. Said sentence states that the "territory need not be
proposed new province of Negros del Norte. Plain and simple contiguous."
logic will demonstrate than that two political units would be Contiguous means (a) in physical contact; (b) touching along
affected. The first would be the parent province of Negros all or most of one side; (c) near, text, or
Occidental because its boundaries would be substantially adjacent."Contiguous", when employed as an adjective, as in
altered. The other affected entity would be composed of the above sentence, is only used when it describes physical
those in the area subtracted from the mother province to contact, or a touching of sides of two solid masses of matter.
constitute the proposed province of Negros del Norte. The meaning of particular terms in a statute may be
We find no way to reconcile the holding of a plebiscite that ascertained by reference to words associated with or related
should conform to said constitutional requirement but to them in the statute. Therefore, in the context of the
eliminates the participation of either of these two component sentence above, what need not be "contiguous" is the
political units. No one should be allowed to pay homage to a
supposed fundamental policy intended to guarantee and 1
SEC. 197. Requisites for Creation. A province may be
promote autonomy of local government units but at the
created if it has a territory of at least three thousand five
same time transgress, ignore and disregard what the
hundred square kilometers, a population of at least five hun-
Constitution commands in Article XI Section 3 thereof
dred thousand persons, an average estimated annual in-
We fail to find any legal basis for the unexplained change
come, as certified by the Ministry of Finance, of not less than
made when Parliamentary Bill No. 3644 was enacted into
ten million pesos for the last three consecutive years, and its
Batas Pambansa Blg. 885 so that it is now provided in said
creation shall not reduce the population and income of the
enabling law that the plebiscite "shall be conducted in the
mother province or provinces at the time of said creation to
proposed new province which are the areas affected." We
less than the minimum requirements under this section. The
are not disposed to agree that by mere legislative fiat the
territory need not be contiguous if it comprises two or more
unit or units affected referred in the fundamental law can be
diminished or restricted by the Batasang Pambansa to cities
The average estimated annual income shall include
and municipalities comprising the new province, thereby
the income alloted for both the general and infrastructural
ignoring the evident reality that there are other people
funds, exclusive of trust funds, transfers and nonrecurring in-
necessarily affected. The court reversed the ruling in
3|Local Government (Guanzon) S . Y. 08-09: 2nd Sem.

"territory" ---- the physical mass of land area. There would Torralba v. Mun. of Sibagat (1987)
arise no need for the legislators to use the word contiguous Facts: BP 56, creating the Municipality of Sibagat, Province
if they had intended that the term "territory" embrace not of Agusan del Sur, is being challenged as violative of Section
only land area but also territorial waters, It can be safely 3 Article XI of the 1973 Constitution2. Petitioners are
concluded that the word territory in the first paragraph of residents and taxpayers of Butuan City, with petitioner,
Section 197 is meant to be synonymous with "land area" Clementino Torralba, being a member of the Sangguniang
only. The words and phrases used in a statute should be Panglunsod of the same City. Respondent municipal officers
given the meaning intended by the legislature. The sense in are the local public officials of the new Municipality.
which the words are used furnished the rule of construction. According to the petitioners, the Local Government Code
The distinction between "territory" and "land area" which must first be enacted to determine the criteria for the
respondents make is an artificial or strained construction of creation, division, merger, abolition, or substantial alteration
the disputed provision whereby the words of the statute are of the boundary of any province, city, municipality, or barrio;
arrested from their plain and obvious meaning and made to and that since no Local Government Code had as yet been
bear an entirely different meaning to justify an absurd or enacted as of the date BP 56 was passed, that statute could
unjust result. The plain meaning in the language in a statute not have possibly complied with any criteria when
is the safest guide to follow in construing the statute. A respondent Municipality was created, hence, it is null and
construction based on a forced or artificial meaning of its void.
words and out of harmony of the statutory scheme is not to
be favored. Issue: WON BP 56 is invalid
Teehankee, concurring: The challenged Act is manifestly Held: No
void and unconstitutional. Consequently, all the
implementing acts complained of, viz. the plebiscite, the Ratio: The absence of the Local Government Code at the
proclamation of a new province of Negros del Norte and the time of its enactment did not curtail nor was it intended to
appointment of its officials are equally void. The limited cripple legislative competence to create municipal
holding of the plebiscite only in the areas of the proposed corporations. Section 3, Article XI of the 1973 Constitution
new province (as provided by Section 4 of the Act) to the does not proscribe nor prohibit the modification of territorial
exclusion of the voters of the remaining areas of the integral and political subdivisions before the enactment of the LGC. It
province of Negros Occidental (namely, the three cities of contains no requirement that the LGC a condition sine qua
Bacolod, Bago and La Carlota and the Municipalities of La non for the creation of a municipality, in much the same way
Castellana, Isabela, Moises Padilla, Pontevedra, Hinigaran, that the creation of a new municipality does not preclude the
Himamaylan, Kabankalan, Murcia, Valladolid, San Enrique, enactment of a LGC. What the Constitutional provision
Ilog, Cauayan, Hinoba-an and Sipalay and Candoni), grossly means is that once said Code is enacted, the creation,
contravenes and disregards the mandate of Article XI, modification or dissolution of local government units should
section 3 of the then prevailing 1973 Constitution that no conform with the criteria thus laid down. In the interregnum,
province may be created or divided or its boundary before the enactment of such Code, the legislative power
substantially altered without "the approval of a majority of remains plenary except that the creation of the new local
the votes in a plebiscite in the unit or units affected. " It is government unit should be approved by the people
plain that all the cities and municipalities of the province of concerned in a plebiscite called for the purpose.
Negros Occidental, not merely those of the proposed new The creation of the new Municipality of Sibagat conformed to
province, comprise the units affected. It follows that the said requisite. A plebiscite was conducted and the people of
voters of the whole and entire province of Negros Occidental the unit/units affected endorsed and approved the creation
have to participate and give their approval in the plebiscite, of the new local government unit. The officials of the new
because the whole province is affected by its proposed Municipality have effectively taken their oaths of office and
division and substantial alteration of its boundary. To limit are performing their functions. A de jure entity has thus been
the plebiscite to only the voters of the areas to be created.
partitioned and seceded from the province is as absurd and It is a long-recognized principle that the power to create a
illogical as allowing only the secessionists to vote for the municipal corporation is essentially legislative in nature. In
secession that they demanded against the wishes of the the absence of any constitutional limitations, a legislative
majority and to nullify the basic principle of majority rule. body may create any corporation it deems essential for the
The argument of fait accompli viz. that the railroaded more efficient administration of government.The creation of
plebiscite of January 3, 1986 was held and can no longer be the new Municipality of Sibagat was a valid exercise of
enjoined and that the new province of Negros del Norte has legislative power then vested by the 1973 Constitution in the
been constituted, begs the issue of invalidity of the Interim Batasang Pambansa.
challenged Act. This Court has always held that it "does not There are significant differences, however, in Tan vs Comelec
look with favor upon parties 'racing to beat an injunction or and in this case: in the Tan case, the LGC already existed at
restraining order' which they have reason to believe might the time that the challenged statute was enacted on 3
be forthcoming from the Court by virtue of the filing and December 1985; not so in the case at bar. Secondly, BP 885
pendency of the appropriate petition therefor. Where the in the Tan case confined the plebiscite to the "proposed new
restraining order or preliminary injunction are found to have province" to the exclusion of the voters in the remaining
been properly issued, as in the case at bar, mandatory writs areas, in contravention of the Constitutional mandate and of
shall be issued by the Court to restore matters to the status the LGC that the plebiscite should be held "in the unit or
quo ante." Where, as in this case, there was somehow a units affected." In contrast, BP 56 specifically provides for a
failure to properly issue the restraining order stopping the plebiscite "in the area or areas affected." Thirdly, in the Tan
holding of the illegal plebiscite, the Court will issue the case, even the requisite area for the creation of a new
mandatory writ or judgment to restore matters to the status
quo ante and restore the territorial integrity of the province 2
of Negros Occidental by declaring the unconstitutionality of "Sec. 3. No province, city, municipality, or barrio may be
the challenged Act and nullifying the invalid proclamation of created, divided, merged, abolished, or its boundary sub-
the proposed new province of Negros del Norte and the stantially altered, except in accordance with the criteria es-
equally invalid appointment of its officials. tablished in the Local Government Code, and subject to the
approval by a majority of the votes cast in a plebiscite in the
unit or units affected."
4|Local Government (Guanzon) S . Y. 08-09: 2nd Sem.

province was not complied with in BP Blg. 885. No such issue Ratio: The creation of any of the four local government
in the creation of the new municipality has been raised here. units - province, city, municipality or barangay - must
And lastly, "indecent haste" attended the enactment of BP comply with three conditions. First, the creation of a local
Blg. 885 and the holding of the plebiscite thereafter in the government unit must follow the criteria fixed in the Local
Tan case; on the other hand, BP 56 creating the Municipality Government Code. Second, such creation must not conflict
of Sibagat, was enacted in the normal course of legislation, with any provision of the Constitution. Third, there must be
and the plebiscite was held within the period specified in a plebiscite in the political units affected.
that law. There is neither an express prohibition nor an express grant
of authority in the Constitution for Congress to delegate to
regional or local legislative bodies the power to create local
Province of Shariff Kabunsuan government units. However, under its plenary legislative
powers, Congress can delegate to local legislative bodies the
Bai Sema v. Comelec (2008) power to create local government units, subject to
Facts: The Ordinance appended to the 1987 Constitution of reasonable standards and provided no conflict arises with
the Philippines apportioned 2 legislative districts for any provision of the Constitution. In fact, Congress has
Maguindanao. The first consists of Cotabato City and 8 delegated to provincial boards, and city and municipal
municipalities. Maguindanao forms part of the ARMM, councils, the power to create barangays within their
created under its Organic Act, RA 6734, as amended by RA jurisdiction, subject to compliance with the criteria
9054. Cotabato City, as part of Maguindanao’s first established in the Local Government Code, and the
legislative district, is not part of the ARMM but of Region XII plebiscite requirement in Section 10, Article X of the
(having voted against its inclusion in November 1989 Constitution. However, under the Local Government Code,
plebiscite). "only x x x an Act of Congress" can create provinces, cities
On 28 August 2006, the ARMM’s legislature, the ARMM or municipalities.
Regional Assembly, exercising its power to create provinces Under Section 19, Article VI of RA 9054, Congress delegated
under Section 19, Article VI of RA 9054, enacted Muslim to the ARMM Regional Assembly the power to create
Mindanao Autonomy Act No. 201 (MMA Act 201) creating the provinces, cities, municipalities and barangays within the
Province of Shariff Kabunsuan composed of the 8 ARMM. Congress made the delegation under its plenary
municipalities in the first district of Maguindanao. legislative powers because the power to create local
Later, 3 new municipalities were carved out of the original 9, government units is not one of the express legislative
constituting Shariff Kabunsuan, resulting to total of 11. powers granted by the Constitution to regional legislative
Cotabato City is not part of Maguindanao. Maguindanao bodies. In the present case, the question arises whether the
voters ratified Shariff Kabunsuan’s creation in 29 October delegation to the ARMM Regional Assembly of the power to
2006 plebiscite. create provinces, cities, municipalities and barangays
On 6 February 2007, Cotabato City passed Board Resolution conflicts with any provision of the Constitution.
No. 3999, requesting the COMELEC to “clarify the status of There is no provision in the Constitution that conflicts with
Cotabato City in view of the conversion of the First District of the delegation to regional legislative bodies of the power to
Maguindanao into a regular province” under MMA Act 201. create municipalities and barangays, provided Section 10,
The COMELEC issued Resolution No. 07-0407 on 6 March Article X of the Constitution is followed. However, the
2007 "maintaining the status quo with Cotabato City as part creation of provinces and cities is another matter. Section 5
of Shariff Kabunsuan in the First Legislative District of (3), Article VI of the Constitution provides, "Each city with a
Maguindanao.” Resolution No. 07-0407, adopted the population of at least two hundred fifty thousand, or each
COMELEC’s Law Department recommendation under a province, shall have at least one representative" in the
Memorandum dated 27 February 2007. The COMELEC issued House of Representatives. Similarly, Section 3 of the
on 29 March 2007 Resolution No. 7845 stating that Ordinance appended to the Constitution provides, "Any
Maguindanao’s first legislative district is composed only of province that may hereafter be created, or any city whose
Cotabato City because of the enactment of MMA Act 201. population may hereafter increase to more than two hundred
On 10 May 2007, the COMELEC issued Resolution No. 7902 fifty thousand shall be entitled in the immediately following
(subject of these cases), amending Resolution No. 07-0407 election to at least one Member x x x."
by renaming the legislative district in question as “Shariff Clearly, a province cannot be created without a legislative
Kabunsuan Province with Cotabato City (formerly First district because it will violate Section 5 (3), Article VI of the
District of Maguindanao with Cotabato City).” Constitution as well as Section 3 of the Ordinance appended
Meanwhile, the Shariff Kabunsuan creation plebiscite was to the Constitution. For the same reason, a city with a
supervised and officiated by the COMELEC pursuant to population of 250,000 or more cannot also be created
Resolution No. 7727. (Option Votes: In favor for creation without a legislative district. Thus, the power to create a
285,372; Against the creation 8,802) province, or a city with a population of 250,000 or more,
The following municipalities seceded from Maguindanao and requires also the power to create a legislative district. Even
formed the new province. All of them were from the first the creation of a city with a population of less than 250,000
legislative district of Maguindanao. (Barira, Buldon, Datu involves the power to create a legislative district because
Blah T. Sinsuat, Datu Odin Sinsuat, Kabuntalan, Matanog, once the city's population reaches 250,000, the city
Parang, Sultan Kudarat, Sultan Mastura, Upi) Kabuntalan was automatically becomes entitled to one representative under
chosen as the capital of the new province. The province was Section 5 (3), Article VI of the Constitution and Section 3 of
the first to be created under Republic Act No. 9054 or the the Ordinance appended to the Constitution. Thus, the
Expanded ARMM law. power to create a province or city inherently involves
Sandra Sema questioned COMELEC Resolution 7902 which the power to create a legislative district.
combined Shariff Kabunsuan and Cotabato City into a single
legislative district during the Philippine general election, Legislative Districts are Created or Reapportioned
2007. Sema lost to incumbent Congress representative of Only by an Act of Congress
the Shariff Kabunsuan and Cotabato district, Didagen Under the present Constitution, as well as in past
Dilangalen. Constitutions, the power to increase the allowable
membership in the House of Representatives, and to
Issue: Whether the ARMM Regional Assembly Can reapportion legislative districts, is vested exclusively in
Create the Province of Shariff Kabunsuan Congress. Section 5, Article VI of the Constitution provides
5|Local Government (Guanzon) S . Y. 08-09: 2nd Sem.

that Congress of the exclusive power to create or from the general tenor of the provision above quoted, but,
reapportion legislative districts is logical. Congress is a also, from the fact that the apportionment therein alluded to
national legislature and any increase in its allowable refers to that which is made by an Act of Congress. Indeed,
membership or in its incumbent membership through the when a province is created by statute, the
creation of legislative districts must be embodied in a corresponding representative district, comes into
national law. Only Congress can enact such a law. It would existence neither by authority of that statute —
be anomalous for regional or local legislative bodies to which cannot provide otherwise — nor by
create or reapportion legislative districts for a national apportionment, but by operation of the Constitution,
legislature like Congress. An inferior legislative body, created without a reapportionment.
by a superior legislative body, cannot change the Second. Sema's theory also undermines the composition and
membership of the superior legislative body. independence of the House of Representatives. Under
The creation of the ARMM, and the grant of legislative Section 19,Article VI of RA 9054, the ARMM Regional
powers to its Regional Assembly under its organic act, did Assembly can create provinces and cities within the ARMM
not divest Congress of its exclusive authority to create with or without regard to the criteria fixed in Section 461
legislative districts. This is clear from the Constitution and of RA 7160, namely: minimum annual income of
the ARMM Organic Act, as amended. P20,000,000, and minimum contiguous territory of 2,000
Nothing in Section 20, Article X of the Constitution square kilometers or minimum population of 250,000. The
authorizes autonomous regions, expressly or following scenarios thus become distinct possibilities:
impliedly, to create or reapportion legislative districts An inferior legislative body like the ARMM Regional Assembly
for Congress. can create 100 or more provinces and thus increase the
On the other hand, Section 3, Article IV of RA 9054 amending membership of a superior legislative body, the House of
the ARMM Organic Act, provides, "The Regional Assembly Representatives, beyond the maximum limit of 250 fixed in
may exercise legislative power x x x except on the the Constitution (unless a national law provides otherwise);
following matters: x x x (k) National elections. x x x." (2) The proportional representation in the House of
Since the ARMM Regional Assembly has no legislative power Representatives based on one representative for at least
to enact laws relating to national elections, it cannot create a every 250,000 residents will be negated because the ARMM
legislative district whose representative is elected in national Regional Assembly need not comply with the requirement in
elections. Whenever Congress enacts a law creating a Section 461(a)(ii) of RA 7160 that every province created
legislative district, the first representative is always elected must have a population of at least 250,000; and
in the "next national elections" from the effectivity of the (3) Representatives from the ARMM provinces can become
law. the majority in the House of Representatives through the
Indeed, the office of a legislative district representative to ARMM Regional Assembly's continuous creation of provinces
Congress is a national office, and its occupant, a Member or cities within the ARMM.
of the House of Representatives, is a national official. It Neither the framers of the 1987 Constitution in adopting the
would be incongruous for a regional legislative body like the provisions in Article X on regional autonomy,[37] nor Congress
ARMM Regional Assembly to create a national office when its in enacting RA 9054, envisioned or intended these disastrous
legislative powers extend only to its regional territory. The consequences that certainly would wreck the tri-branch
office of a district representative is maintained by national system of government under our Constitution. Clearly, the
funds and the salary of its occupant is paid out of national power to create or reapportion legislative districts cannot be
funds. It is a self-evident inherent limitation on the legislative delegated by Congress but must be exercised by Congress
powers of every local or regional legislative body that it can itself. Even the ARMM Regional Assembly recognizes this.
only create local or regional offices, respectively, and it can The Constitution empowered Congress to create or
never create a national office. reapportion legislative districts, not the regional assemblies.
To allow the ARMM Regional Assembly to create a national Section 3 of the Ordinance to the Constitution which states,
office is to allow its legislative powers to operate outside the "[A]ny province that may hereafter be created x x x shall be
ARMM's territorial jurisdiction. This violates Section 20, entitled in the immediately following election to at least one
Article X of the Constitution which expressly limits Member," refers to a province created by Congress itself
the coverage of the Regional Assembly's legislative through a national law. The reason is that the creation of a
powers "[w]ithin its territorial jurisdiction x x x." province increases the actual membership of the House of
The ARMM Regional Assembly itself, in creating Shariff Representatives, an increase that only Congress can decide.
Kabunsuan, recognized the exclusive nature of Congress' Incidentally, in the present 14th Congress, there are 219[38]
power to create or reapportion legislative districts by district representatives out of the maximum 250 seats in the
abstaining from creating a legislative district for Shariff House of Representatives. Since party-list members shall
Kabunsuan. constitute 20 percent of total membership of the House,
First. The issue in Felwa, among others, was whether there should at least be 50 party-list seats available in every
Republic Act No. 4695 (RA 4695), creating the provinces of election in case 50 party-list candidates are proclaimed
Benguet, Mountain Province, Ifugao, and Kalinga-Apayao and winners. This leaves only 200 seats for district
providing for congressional representation in the old and representatives, much less than the 219 incumbent district
new provinces, was unconstitutional for "creati[ng] representatives. Thus, there is a need now for Congress to
congressional districts without the apportionment provided increase by law the allowable membership of the House,
in the Constitution." The Court answered in the negative. even before Congress can create new provinces.
Pursuant to this Section, a representative district may The present case involves the creation of a local government
come into existence: (a) indirectly, through the unit that necessarily involves also the creation of a
creation of a province — for "each province shall legislative district. The Court will not pass upon the
have at least one member" in the House of constitutionality of the creation of municipalities and
Representatives; or (b) by direct creation of several barangays that does not comply with the criteria established
representative districts within a province. The in Section 461 of RA 7160, as mandated in Section 10,
requirements concerning the apportionment of Article X of the Constitution, because the creation of such
representative districts and the territory thereof refer only to municipalities and barangays does not involve the creation
the second method of creation of representative districts, of legislative districts. We leave the resolution of this issue
and do not apply to those incidental to the creation of to an appropriate case.
provinces, under the first method. This is deducible, not only
6|Local Government (Guanzon) S . Y. 08-09: 2nd Sem.

In summary, we rule that Section 19, Article VI of RA 9054, MILF.

insofar as it grants to the ARMM Regional Assembly the When President Gloria Macapagal-Arroyo assumed office, the
power to create provinces and cities, is void for being military offensive against the MILF was suspended and the
contrary to Section 5 of Article VI and Section 20 of Article X government sought a resumption of the peace talks. The
of the Constitution, as well as Section 3 of the Ordinance MILF, according to a leading MILF member, initially
appended to the Constitution. Only Congress can create responded with deep reservation, but when President Arroyo
provinces and cities because the creation of provinces and asked the Government of Malaysia through Prime Minister
cities necessarily includes the creation of legislative districts, Mahathir Mohammad to help convince the MILF to return to
a power only Congress can exercise under Section 5, Article the negotiating table, the MILF convened its Central
VI of the Constitution and Section 3 of the Ordinance Committee to seriously discuss the matter and, eventually,
appended to the Constitution. The ARMM Regional Assembly decided to meet with the GRP.
cannot create a province without a legislative district The parties met in Kuala Lumpur on March 24, 2001, with the
because the Constitution mandates that every province shall talks being facilitated by the Malaysian government, the
have a legislative district. Moreover, the ARMM Regional parties signing on the same date the Agreement on the
Assembly cannot enact a law creating a national office like General Framework for the Resumption of Peace Talks
the office of a district representative of Congress because Between the GRP and the MILF. The MILF thereafter
the legislative powers of the ARMM Regional Assembly suspended all its military actions.
operate only within its territorial jurisdiction as provided in Formal peace talks between the parties were held in Tripoli,
Section 20, Article X of the Constitution. Thus, we rule that Libya from June 20-22, 2001, the outcome of which was the
MMA Act 201, enacted by the ARMM Regional Assembly and GRP-MILF Tripoli Agreement on Peace (Tripoli Agreement
creating the Province of Shariff Kabunsuan, is void. 2001) containing the basic principles and agenda on the
Resolution No. 7902 Complies with the Constitution following aspects of the negotiation: Security Aspect,
Consequently, we hold that COMELEC Resolution No. 7902, Rehabilitation Aspect, and Ancestral Domain Aspect. With
preserving the geographic and legislative district of the First regard to the Ancestral Domain Aspect, the parties in Tripoli
District of Maguindanao with Cotabato City, is valid as it Agreement 2001 simply agreed "that the same be discussed
merely complies with Section 5 of Article VI and Section 20 further by the Parties in their next meeting."
of Article X of the Constitution, as well as Section 1 of the A second round of peace talks was held in Cyberjaya,
Ordinance appended to the Constitution. Malaysia on August 5-7, 2001 which ended with the signing
of the Implementing Guidelines on the Security Aspect of the
The Prov. Of North Cotabato et al v. Government Tripoli Agreement 2001 leading to a ceasefire status
(2008) between the parties. This was followed by the Implementing
Facts: On August 5, 2008, the Government of the Republic Guidelines on the Humanitarian Rehabilitation and
of the Philippines (GRP) and the MILF, through the Development Aspects of the Tripoli Agreement 2001, which
Chairpersons of their respective peace negotiating panels, was signed on May 7, 2002 at Putrajaya, Malaysia.
were scheduled to sign a Memorandum of Agreement on the Nonetheless, there were many incidence of violence
Ancestral Domain (MOA-AD) Aspect of the GRP-MILF Tripoli between government forces and the MILF from 2002 to
Agreement on Peace of 2001 in Kuala Lumpur, Malaysia. 2003.
The MILF is a rebel group which was established in March Meanwhile, then MILF Chairman Salamat Hashim passed
1984 when, under the leadership of the late Salamat away on July 13, 2003 and he was replaced by Al Haj Murad,
Hashim, it splintered from the Moro National Liberation Front who was then the chief peace negotiator of the MILF. Murad's
(MNLF) then headed by Nur Misuari, on the ground, among position as chief peace negotiator was taken over by
others, of what Salamat perceived to be the manipulation of Mohagher Iqbal.[6]
the MNLF away from an Islamic basis towards Marxist-Maoist In 2005, several exploratory talks were held between the
orientations.[1] parties in Kuala Lumpur, eventually leading to the crafting of
The signing of the MOA-AD between the GRP and the MILF the draft MOA-AD in its final form, which, as mentioned, was
was not to materialize, however, for upon motion of set to be signed last August 5, 2008.
petitioners, specifically those who filed their cases before the
scheduled signing of the MOA-AD, this Court issued a Held: The Memorandum of Agreement on the Ancestral
Temporary Restraining Order enjoining the GRP from signing Domain Aspect of the GRP-MILF Tripoli Agreement on Peace
the same. of 2001 is declared contrary to law and the Constitution.
The MOA-AD was preceded by a long process of negotiation
and the concluding of several prior agreements between the
two parties beginning in 1996, when the GRP-MILF peace Ratio: The petitions are ripe for adjudication. The failure of
negotiations began. On July 18, 1997, the GRP and MILF respondents to consult the local government units or
Peace Panels signed the Agreement on General Cessation of communities affected constitutes a departure by
Hostilities. The following year, they signed the General respondents from their mandate under E.O. No. 3. Moreover,
Framework of Agreement of Intent on August 27, 1998. respondents exceeded their authority by the mere act of
The Solicitor General, who represents respondents, guaranteeing amendments to the Constitution. Any alleged
summarizes the MOA-AD by stating that the same contained, violation of the Constitution by any branch of government is
among others, the commitment of the parties to pursue a proper matter for judicial review.
peace negotiations, protect and respect human rights, As the petitions involve constitutional issues which are of
negotiate with sincerity in the resolution and pacific paramount public interest or of transcendental importance,
settlement of the conflict, and refrain from the use of threat the Court grants the petitioners, petitioners-in-intervention
or force to attain undue advantage while the peace and intervening respondents the requisite locus standi in
negotiations on the substantive agenda are on-going.[2] keeping with the liberal stance adopted in David v.
Early on, however, it was evident that there was not going to Macapagal-Arroyo.
be any smooth sailing in the GRP-MILF peace process. Contrary to the assertion of respondents that the non-
Towards the end of 1999 up to early 2000, the MILF attacked signing of the MOA-AD and the eventual dissolution of the
a number of municipalities in Central Mindanao and, in GRP Peace Panel mooted the present petitions, the Court
March 2000, it took control of the town hall of Kauswagan, finds that the present petitions provide an exception to the
Lanao del Norte.[3] In response, then President Joseph "moot and academic" principle in view of (a) the grave
Estrada declared and carried out an "all-out-war" against the violation of the Constitution involved; (b) the exceptional
7|Local Government (Guanzon) S . Y. 08-09: 2nd Sem.

character of the situation and paramount public interest; (c) respondents effectively waived such defense after it
the need to formulate controlling principles to guide the unconditionally disclosed the official copies of the final draft
bench, the bar, and the public; and (d) the fact that the case of the MOA-AD, for judicial compliance and public scrutiny.
is capable of repetition yet evading review. In sum, the Presidential Adviser on the Peace Process
The MOA-AD is a significant part of a series of agreements committed grave abuse of discretion when he failed to carry
necessary to carry out the GRP-MILF Tripoli Agreement on out the pertinent consultation process, as mandated by E.O.
Peace signed by the government and the MILF back in June No. 3, Republic Act No. 7160, and Republic Act No. 8371. The
2001. Hence, the present MOA-AD can be renegotiated or furtive process by which the MOA-AD was designed and
another one drawn up that could contain similar or crafted runs contrary to and in excess of the legal authority,
significantly dissimilar provisions compared to the original. and amounts to a whimsical, capricious, oppressive,
The Court, however, finds that the prayers for mandamus arbitrary and despotic exercise thereof. It illustrates a gross
have been rendered moot in view of the respondents' action evasion of positive duty and a virtual refusal to perform the
in providing the Court and the petitioners with the official duty enjoined.
copy of the final draft of the MOA-AD and its annexes. The MOA-AD cannot be reconciled with the present
The people's right to information on matters of public Constitution and laws. Not only its specific provisions but the
concern under Sec. 7, Article III of the Constitution is in very concept underlying them, namely, the associative
splendid symmetry with the state policy of full public relationship envisioned between the GRP and the BJE, are
disclosure of all its transactions involving public interest unconstitutional , for the concept presupposes that the
under Sec. 28, Article II of the Constitution. The right to associated entity is a state and implies that the same is on
information guarantees the right of the people to demand its way to independence.
information, while Section 28 recognizes the duty of While there is a clause in the MOA-AD stating that the
officialdom to give information even if nobody demands. The provisions thereof inconsistent with the present legal
complete and effective exercise of the right to information framework will not be effective until that framework is
necessitates that its complementary provision on public amended, the same does not cure its defect. The inclusion of
disclosure derive the same self-executory nature, subject provisions in the MOA-AD establishing an associative
only to reasonable safeguards or limitations as may be relationship between the BJE and the Central Government is,
provided by law. itself, a violation of the Memorandum of Instructions From
The contents of the MOA-AD is a matter of paramount public The President dated March 1, 2001, addressed to the
concern involving public interest in the highest order. In government peace panel. Moreover, as the clause is worded,
declaring that the right to information contemplates steps it virtually guarantees that the necessary amendments to
and negotiations leading to the consummation of the the Constitution and the laws will eventually be put in place.
contract, jurisprudence finds no distinction as to the Neither the GRP Peace Panel nor the President herself is
executory nature or commercial character of the agreement. authorized to make such a guarantee. Upholding such an act
An essential element of these twin freedoms is to keep a would amount to authorizing a usurpation of the constituent
continuing dialogue or process of communication between powers vested only in Congress, a Constitutional Convention,
the government and the people. Corollary to these twin or the people themselves through the process of initiative,
rights is the design for feedback mechanisms. The right to for the only way that the Executive can ensure the outcome
public consultation was envisioned to be a species of these of the amendment process is through an undue influence or
public rights. interference with that process.
At least three pertinent laws animate these constitutional While the MOA-AD would not amount to an international
imperatives and justify the exercise of the people's right to agreement or unilateral declaration binding on the
be consulted on relevant matters relating to the peace Philippines under international law, respondents' act of
agenda. guaranteeing amendments is, by itself, already a
One, E.O. No. 3 itself is replete with mechanics for continuing constitutional violation that renders the MOA-AD fatally
consultations on both national and local levels and for a defective.
principal forum for consensus-building. In fact, it is the duty
of the Presidential Adviser on the Peace Process to conduct
Metro Manila Commission:
regular dialogues to seek relevant information, comments,
advice, and recommendations from peace partners and
concerned sectors of society. Gemiliano Lopez, Jr. v. Hon. Comelec (1985)
Two, Republic Act No. 7160 or the Local Government Code of Facts: PD 824 or an act creating the Metropolitan Manila,
1991 requires all national offices to conduct consultations was enacted to establish and administer program and
before any project or program critical to the environment provide services common to" the cities of Manila, Quezon,
and human ecology including those that may call for the Pasay, and Caloocan as well as thirteen municipalities in the
eviction of a particular group of people residing in such surrounding area. This is in response to the sharp growth in
locality, is implemented therein. The MOA-AD is one peculiar the population of Manila and the proliferation of commercial
program that unequivocally and unilaterally vests ownership firms and industries, which resulted to the ever-increasing
of a vast territory to the Bangsamoro people, which could inability of the separate local governments to cope with the
pervasively and drastically result to the diaspora or ensuing serious problems. Metro Manila shall be
displacement of a great number of inhabitants from their administered by the Commission.
total environment. Petitioners assail the constitutionality of PD 824. They rely
Three, Republic Act No. 8371 or the Indigenous Peoples on this provision: "No province, city, municipality, or barrio
Rights Act of 1997 provides for clear-cut procedure for the may be created, divided, merged, abolished, or its boundary
recognition and delineation of ancestral domain, which substantially altered, except in accordance with the criteria
entails, among other things, the observance of the free and established in the local government code, and subject to the
prior informed consent of the Indigenous Cultural approval by a majority of the votes cast in a plebiscite in the
Communities/Indigenous Peoples. Notably, the statute does unit or units affected." The Local Government Code was not
not grant the Executive Department or any government enacted until 1983.
agency the power to delineate and recognize an ancestral
domain claim by mere agreement or compromise. Issue: WON PD 824 is unconstitutional as it was enacted
The invocation of the doctrine of executive privilege as a prior to the creation of a local government code
defense to the general right to information or the specific
right to consultation is untenable. The various explicit legal
8|Local Government (Guanzon) S . Y. 08-09: 2nd Sem.

Held: No those of other cities or municipalities. There is ample

justification for such a distinction
Ratio: The challenge does not suffice to call for a Basis in the Constitution. Article VIII, Section 2 of the
declaration of unconstitutionality. The last vestige of doubt Constitution expressly recognized the juridical entity known
has been removed by the present constitutional provision as Metropolitan Manila. Such express constitutional
regarding the Batasang Pambansa. That provision clearly affirmation of its existence in the fundamental law calls for
recognizes the existence of the Metropolitan Manila. the dismissal of these petitions, there being no legal
Justification as to PD 824. In PD 824, reference was made justification for the declaration of unconstitutionality of
to "the referendum held on February 27, 1975 wherein the Presidential Decree No. 824. Nor was it the first time that
residents of the Greater Manila Area authorized the President there has been acknowledgment in law of the creation of
to restructure the local governments into an integrated unit Metropolitan Manila. (Election Code of 1978, Presidential
of the manager or commission form of government.” It was Decree No. 1396 creating the Ministry of Human
then pointed out that "the rapid growth of population and Settlements, Presidential Decree No. 824, creating the
the corresponding increase of social and economic Metropolitan Manila Commission, Amendments to the
requirements in the contiguous communities has brought Constitution, Ordinance)
into being a large area that calls for development both Control of the President. It is undeniable that the
simultaneous and unified. It "is vital to the survival and creation of the Metropolitan Manila Commission is free from
growth of the aforementioned Greater Manila Area that a any constitutional objection. There is, however, a question
workable and effective system be established for the that may arise in connection with the powers of the
coordination, integration and unified management of such President over the Commission. According to PD 824: "The
local government services or functions" therein. There is Commission, the General Manager and any official of the
necessity for "the unified metropolitan services or functions Commission shall be under the direct supervision and control
to be planned, administered, and operated [based on] the of the President. Notwithstanding any provision in this
highest professional technical standards." 15 The foregoing Decree, the President shall have the power to revoke, amend
constitutes the justification for and the objective of such or modify any ordinance, resolution or act of the
Presidential Decree. Commission, the General and the Commissioners." It may
Application of Paredes vs Executive Secretary. In give rise to doubts as to its validity insofar as it confers the
Paredes vs Executive Secretary, the Court did came to the power of control on the President. That control he certainly
conclusion that the constitutional provision on the need for a exercises under the present Constitution over the ministries.
majority of the votes cast in the plebiscite in the unit or units His power over local governments does not go that far. It
affected would be satisfied even if "those voters who are not extends no further than general supervision. These doubts,
from the barangay to be separated were excluded in the however, do not suffice to nullify such a provision. Succinctly
plebiscite." It cannot be argued therefore that the plebiscite put, that construction that would save is to be preferred as
held in the areas affected to constitute Metropolitan Manila against one that will destroy.
in the referendum on February 27, 1975 was not a sufficient To show fidelity to this basic principle of construction is to
compliance with the constitutional provision. With the voters lend substance to the equally basic doctrine that the
in such four cities and thirteen municipalities, now constitution enters into and forms part of every statute.
composing Metropolitan Manila, having manifested their will, Accordingly, the presidential power of control over acts of
the constitutional provision relied upon by petitioners has the Metro Manila Commission is limited to those that may be
been satisfied. It is to be noted likewise that at the time of considered national in character. There can be no valid
such plebiscite in February, 1975, there was no Local objection to such exercise of authority. That is a clear
Government Code. recognition that some of its attributes are those of a national
Presidential Authority to Issue the PD. At that time character. Where, however, the acts of the Metro Manila
there was no interim Batasang Pambansa. It was the Commission may be considered as properly appertaining to
President who was entrusted with such responsibility. The local government functions, the power of the President is
legality of the law making authority by the President during confined to general supervision. As thus construed, Section
the period of Martial Law was already established in Aquino 13 clearly appears to be free from any constitutional
vs Comelec. infirmity.
Sangguniang Bayan. The point has been raised, however,
that unless Presidential Decree No. 824 be construed in such Abad Santos, dissenting. 1. The referendum of February
a way that along with the rest of the other cities and 27, 1975, did not satisfy the prohibition contained in Art. XI,
municipalities, there should be elections for the Sangguniang Sec. 3 of the 1973 Constitution. For one thing the provision
Bayan, then there is a denial of the equal protection speaks of "the criteria established in the local government
provision of the Constitution. The point is not well-taken. It is code." There was then no local government code so there
clear that under the equal protection clause, classification is were no criteria. Also the grant of power to restructure the 4
not forbidden. But classification on a reasonable basis, and cities and 13 municipalities in the Greater Manila area
not made arbitrarily or capriciously is permitted. . . . The "under such terms and conditions as the President may
classification, however, to be reasonable must be based on decide" was so broad that it was in fact not an intelligent
substantial distinction which make real differences; it must decision on the part of the people. I submit that a grant of
be germane to the purposes of the law; it must not be power must be definite to be valid; it must not be nebulous
limited to existing conditions only, and must apply equally to and uncircumscribed so as to amount to a total abdication
each member of the class." All such elements are present. thereof. Finally, the referendum did not include all of the
There is no need to set forth anew the compelling reasons peoples of Bulacan and Rizal to ascertain if they were willing
that called for the creation of Metropolitan Manila. It is quite to give up some of their towns to Metropolitan Manila. The
obvious that under the conditions then existing - still present referendum suffers from the same infirmity present in the
and, with the continued growth of population, attended with case of Paredes vs. Executive Secretary, cited in the main
more complexity - what was done was a response to a great opinion, where I dissented.
public need. The government was called upon to act. PD 824 2. The January 27, 1984, amendment to the Constitution
was the result. It is not a condition for the validity of the providing for representation in the Batasang Pambansa and
Sangguniang Bayans provided for in the four cities and which allocates representatives to "districts in Metropolitan
thirteen municipalities that the membership be identical with Manila" cannot be construed to constitutionally validate P.D.
No. 824 for the simple reason that the issue before the
9|Local Government (Guanzon) S . Y. 08-09: 2nd Sem.

people when the amendment was submitted for ratification allotments (IRAs); and (3) the right to be given its equitable
was not the creation of the Metropolitan Manila Commission. share in the proceeds of the utilization and development of
the national wealth, if any, within its territorial boundaries.
Presumption of constitutionality: For purposes of budget preparation, which budget should
reflect the estimates of the income of the local government
Alvarez v. Guingona (1996) unit, among others, the IRAs and the share in the national
Facts: This concerns the validity of RA 7330 converting the wealth utilization proceeds are considered items of income.
municipality of Santiago Isabela into an independent This is as it should be, since income is defined in the Local
component city to be known as the city of Santiago. The law Government Code to be all revenues and receipts collected
was challenged mainly because the act did not allegedly or received forming the gross accretions of funds of the local
originate exclusively in the House of Representatives as government unit.
mandated by Section 24, Article VI of the 1987 Consitution. The IRAs are items of income because they form part of the
Also, petitioner claims that the Municipality of Santiago has gross accretion of the funds of the local government unit.
not met the minimum average annual income required under The IRAs regularly and automatically accrue to the local
Section 450 of the LGC in order to be converted into a treasury without need of any further action on the part of the
component city. Apparently, RA 7330 originated from HB local government unit. 11 They thus constitute income which
8817 which was filed on April 18, 1993. After the third the local government can invariably rely upon as the source
reading, the bill was transmitted to the Senate on January of much needed funds.
18, 1994. Meanwhile, a counterpart bill SB 1243 was filed on To reiterate, IRAs are a regular, recurring item of income; nil
May 19, 1993. On February 23, 1994, HB 8817 was is there a basis, too, to classify the same as a special fund or
transmitted to the senate. The committee recommended transfer, since IRAs have a technical definition and meaning
that HB 8817 be approved without amendment, taking into all its own as used in the Local Government Code that
consideration that the house bill was identical to the senate unequivocally makes it distinct from special funds or
bill. transfers referred to when the Code speaks of "funding
support from the national government, its instrumentalities
Issue: WON the IRAs are to be included in the computation and government-owned-or-controlled corporations".
of the average annual income of a municipality for the
purposes of its conversion into an independent component Issue: WON considering that Senate passed SB 1243, its
city own version of HB 8817, RA 2770 can be sait to have
originated in the House of Representatives
Held: Yes
Held: Yes
Ratio: Petitioners claim that Santiago could not qualify into
a component city because its average annual income for the Ratio: Although a bill of local application like HB No. 8817
last two (2) consecutive years based on 1991 constant prices should, by constitutional prescription, originate exclusively in
falls below the required annual income of P20,000,000 for its the House of Representatives, the claim of petitioners that
conversion into a city. After deducting the IRA, ti appears RA 7720 did not originate exclusively in the House of
that the average annual income arrived at would only be Representatives because a bill of the same import, SB No.
P13,109,560.47 based on the 1991 constant prices. 1243, was passed in the Senate, is untenable because it
Petitioners asseverate that the IRAs are not actually income cannot be denied that HB No. 8817 was filed in the House of
but transfers and/or budgetary aid from the national Representatives first before SB No. 1243 was filed in the
government and that they fluctuate, increase or decrease, Senate. Petitioners themselves cannot disavow their own
depending on factors like population, land and equal sharing. admission that HB No. 8817 was filed on April 18, 1993 while
Petitioners asseverations are untenable because Internal SB No. 1243 was filed on May 19, 1993. The filing of HB No.
Revenue Allotments form part of the income of Local 8817 was thus precursive not only of the said Act in question
Government Units. It is true that for a municipality to be but also of SB No. 1243. Thus, HB No. 8817, was the bill that
converted into a component city, it must, among others, initiated the legislative process that culminated in the
have an average annual income of at least Twenty Million enactment of Republic Act No. 7720. No violation of Section
Pesos for the last two (2) consecutive years based on 1991 24, Article VI, of the 1987 Constitution is perceptible under
constant prices. Such income must be duly certified by the the circumstances attending the instant controversy.
Department of Finance. Furthermore, petitioners themselves acknowledge that HB
A Local Government Unit is a political subdivision of the No. 8817 was already approved on Third Reading and duly
State which is constituted by law and possessed of transmitted to the Senate when the Senate Committee on
substantial control over its own affairs. Remaining to be an Local Government conducted its public hearing on HB No.
intra sovereign subdivision of one sovereign nation, but not 8817. HB No. 8817 was approved on the Third Reading on
intended, however, to be an imperium in imperio, the local December 17, 1993 and transmitted to the Senate on
government unit is autonomous in the sense that it is given January 28, 1994; a little less than a month thereafter, or on
more powers, authority, responsibilities and resources. February 23, 1994, the Senate Committee on Local
The practical side to development through a decentralized Government conducted public hearings on SB No. 1243.
local government system certainly concerns the matter of Clearly, the Senate held in abeyance any action on SB No.
financial resources. With its broadened powers and increased 1243 until it received HB No. 8817, already approved on the
responsibilities, a local government unit must now operate Third Reading, from the House of Representatives. The filing
on a much wider scale. More extensive operations, in turn, in the Senate of a substitute bill in anticipation of its receipt
entail more expenses. Understandably, the vesting of duty, of the bill from the House, does not contravene the
responsibility and accountability in every local government constitutional requirement that a bill of local application
unit is accompanied with a provision for reasonably should originate in the House of Representatives, for as long
adequate resources to discharge its powers and effectively as the Senate does not act thereupon until it receives the
carry out its functions. Availment of such resources is House bill.
effectuated through the vesting in every local government Tolentino v. Secretary of Finance: Nor does the Constitution
unit of (1) the right to create and broaden its own source of prohibit the filing in the Senate of a substitute bill in
revenue; (2) the right to be allocated a just share in national anticipation of its receipt of the bill from the House, so long
taxes, such share being in the form of internal revenue
10 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

as action by the Senate as a body is withheld pending enable a person to sue the government for an alleged quasi-
receipt of the House bill. delict. Consent is implied when the government enters into
business contracts, thereby descending to the level of the
Every law, including RA No. 7720,has in its favor the other contracting party, and also when the State files a
presumption of constitutionality It is a well-entrenched complaint, thus opening itself to a counterclaim.
jurisprudential rule that on the side of every law lies the Municipal corporations are agencies of the State when they
presumption of constitutionality. Consequently, for RA No. are engaged in governmental functions and therefore should
7720 to be nullified, it must be shown that there is a clear enjoy the sovereign immunity from suit. Nevertheless, they
and unequivocal breach of the Constitution, not merely a are subject to suit even in the performance of such functions
doubtful and equivocal one; in other words, the grounds for because their charter provided that they can sue and be
nullity must be clear and beyond reasonable doubt. Those sued.
who petition this court to declare a law to be A distinction should first be made between suability and
unconstitutional must clearly and fully establish the basis liability. "Suability depends on the consent of the state to be
that will justify such a declaration; otherwise, their petition sued, liability on the applicable law and the established
must fail. Taking into consideration the justification of our facts. The circumstance that a state is suable does not
stand on the immediately preceding ground raised by necessarily mean that it is liable; on the other hand, it can
petitioners to challenge the constitutionality of RA No. 7720, never be held liable if it does not first consent to be sued.
the Court stands on the holding that petitioners have failed Liability is not conceded by the mere fact that the state has
to overcome the presumption. The dismissal of this petition allowed itself to be sued. When the state does waive its
is, therefore, inevitable. sovereign immunity, it is only giving the plaintiff the chance
to prove, if it can, that the defendant is liable."
Anent the issue of whether or not the municipality is liable
Governmental powers/ functions: for the torts committed by its employee, the test of liability
of the municipality depends on whether or not the driver,
Municipality of San Fernando v. Firme (1991) acting in behalf of the municipality, is performing
Facts: Petitioner is a municipal corporation existing under governmental or proprietary functions (Torio vs. Fontanilla).
and in accordance with the laws of the Republic of the According to City of Kokomo vs Loy(Indiana SC), municipal
Philippines. At about 7 am of December 16, 1965, a collision corporations exist in a dual capacity, and their functions are
occurred involving a passenger jeepney driven by Bernardo twofold. In one they exercise the right springing from
Balagot and owned by the Estate of Macario Nieveras, a sovereignty, and while in the performance of the duties
gravel and sand truck driven by Jose Manandeg and owned pertaining thereto, their acts are political and governmental.
by Tanquilino Velasquez and a dump truck of the petitioner Their officers and agents in such capacity, though elected or
and driven by Alfredo Bislig. Several passengers of the appointed by them, are nevertheless public functionaries
jeepney including Laureano Baniña Sr. died as a result of the performing a public service, and as such they are officers,
injuries they sustained and 4 others suffered physical agents, and servants of the state. In the other capacity the
injuries. municipalities exercise a private, proprietary or corporate
Private respondents instituted an action against Nieveras right, arising from their existence as legal persons and not as
and Balagot before the CFI. The defendants filed a third public agencies. Their officers and agents in the performance
party complaint against petitioner and Bislig. The complaint of such functions act in behalf of the municipalities in their
was then amended to implead petitioner and Bislig. corporate or individual capacity, and not for the state or
Petitioner raised as defense lack of cause of action, non sovereign power."
suability of the State, prescription and negligence of the It has already been remarked that municipal corporations are
owner and driver of the jeepney. suable because their charters grant them the competence to
The trial court rendered a decision ordering the petitioner sue and be sued. Nevertheless, they are generally not liable
and Bislig to pay the plaintiffs. The owner and driver of the for torts committed by them in the discharge of
jeepney were absolved from liability. Petitioner filed an MR governmental functions and can be held answerable only if it
which was dismissed for having been filed out of time. can be shown that they were acting in a proprietary capacity.
In the case at bar, the driver of the dump truck of the
Issue: WON the court committed grave abuse of discretion municipality insists that "he was on his way to the Naguilian
when it deferred and failed to resolve the defense of non- river to get a load of sand and gravel for the repair of San
suability of the State amounting to lack of jurisdiction in a Fernando's municipal streets." In the absence of any
motion to dismiss. evidence to the contrary, the regularity of the performance
of official duty is presumed pursuant to Section 3(m) of Rule
Held: Yes 131 of the Revised Rules of Court. Hence, We rule that the
driver of the dump truck was performing duties or tasks
Ratio: In the case at bar, the judge deferred the resolution pertaining to his office.We already stressed in the case of
of the defense of non-suability of the State until trial. Palafox, et. al. vs. Province of Ilocos Norte, the District
However, the judge failed to resolve such defense, Engineer, and the Provincial Treasurer that "the construction
proceeded with the trial and then rendered a decision or maintenance of roads in which the truck and the driver
against the municipality and its driver. The judge did not worked at the time of the accident are admittedly
commit GAD when it arbitrarily failed to resolve the issue of governmental activities."
non-suability of the State in the guise of the municipality. After a careful examination of existing laws and
However, the judge acted in excess of his jurisdiction when jurisprudence, We arrive at the conclusion that the
in his decision he held the municipality liable for the quasi- municipality cannot be held liable for the torts committed by
delict committed by its regular employee. its regular employee, who was then engaged in the
The doctrine of non-suability of the State is expressly discharge of governmental functions. Hence, the death of
provided for in Article XVI, Section 3 of the Consti, to wit: the passenger tragic and deplorable though it may be
"the State may not be sued without its consent." Express imposed on the municipality no duty to pay monetary
consent may be embodied in a general law or a special law. compensation.
The standing consent of the State to be sued in case of
money claims involving liability arising from contracts is Proprietary powers/ functions:
found in Act No. 3083. A special law may be passed to
11 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

City of Manila v. Intermediate Appellate Court Under the foregoing considerations and in the absence of a
(1989) special law, the North Cemetery is a patrimonial property of
Facts: Vivencio Sto. Domingo, Sr. died and was buried in the City of Manila. The administration and government of the
North Cemetery which lot was leased by the city to Irene Sto. cemetery are under the City Health Officer, the order and
Domingo for the period from June 6, 1971 to June 6, 2021. police of the cemetery, the opening of graves, niches, or
The wife paid the full amount of the lease. Apart, however tombs, the exhuming of remains, and the purification of the
from the receipt, no other document embodied such lease same are under the charge and responsibility of the
over the lot. Believing that the lease was only for five years, superintendent of the cemetery. With the acts of dominion,
the city certified the lot as ready for exhumation. there is no doubt that the North Cemetery is within the class
On the basis of the certification, Joseph Helmuth authorized of property which the City of Manila owns in its proprietary or
the exhumation and removal of the remains of Vicencio. His private character. Furthermore, there is no dispute that the
bones were placed in a bag and kept in the bodega of the burial lot was leased in favor of the private respondents.
cemetery. The lot was also leased to another lessee. During Hence, obligations arising from contracts have the force of
the next all souls day, the private respondents were shocked law between the contracting parties. Thus a lease contract
to find out that Vicencio’s remains were removed. The executed by the lessor and lessee remains as the law
cemetery told Irene to look for the bones of the husband in between them. Therefore, a breach of contractual provision
the bodega. entitles the other party to damages even if no penalty for
Aggrieved, the widow and the children brought an action for such breach is prescribed in the contract.
damages against the City of Manila; Evangeline Suva of the
City Health Office; Sergio Mallari, officer-in-charge of the Issue: WON the city is liable for damages
North Cemetery; and Joseph Helmuth, the latter's
predecessor as officer-in-charge of the said burial grounds Held: Yes
owned and operated by the City Government of Manila. The
court ordered defendants to give plaintiffs the right to make Ratio: All things considered, even as the Court
use of another lot. The CA affirmed and included the award commiserates with plaintiffs for the unfortunate happening
of damages in favor of the private respondents. complained of and untimely desecration of the resting place
and remains of their deceased dearly beloved, it finds the
Issue: WON the operations and functions of a public reliefs prayed for by them lacking in legal and factual basis.
cemetery are a governmental, or a corporate or proprietary Under the aforementioned facts and circumstances, the
function of the City of Manila. most that plaintiffs ran ask for is the replacement of subject
lot with another lot of equal size and similar location in the
Held: Proprietary North Cemetery which substitute lot plaintiffs can make use
of without paying any rental to the city government for a
Ratio: Petitioners alleged in their petition that the North period of forty-three (43) years, four (4) months and eleven
Cemetery is exclusively devoted for public use or purpose as (11) days corresponding to the unexpired portion of the term
stated in Sec. 316 of the Compilation of the Ordinances of of the lease sued upon as of January 25, 1978 when the
the City of Manila. They conclude that since the City is a remains of the late Vivencio Sto. Domingo, Sr. were
political subdivision in the performance of its governmental prematurely removed from the disputed lot; and to require
function, it is immune from tort liability which may be caused the defendants to look in earnest for the bones and skull of
by its public officers and subordinate employees. Private the late Vivencio Sto. Domingo Sr. and to bury the same in
respondents maintain that the City of Manila entered into a the substitute lot adjudged in favor of plaintiffs hereunder.
contract of lease which involve the exercise of proprietary As regards the issue of the validity of the contract of lease of
functions with Irene Sto. Domingo. The city and its officers grave lot No. 159, Block No. 195 of the North Cemetery for
therefore can be sued for any-violation of the contract of 50 years beginning from June 6, 1971 to June 6, 2021 as
lease. clearly stated in the receipt duly signed by the deputy
The City of Manila is a political body corporate and as such treasurer of the City of Manila and sealed by the city
endowed with the faculties of municipal corporations to be government, there is nothing in the record that justifies the
exercised by and through its city government in conformity reversal of the conclusion of both the trial court and the
with law, and in its proper corporate name. It may sue and Intermediate Appellate Court to the effect that the receipt is
be sued, and contract and be contracted with. Its powers are in itself a contract of lease. (
twofold in character-public, governmental or political on the Under the doctrine of respondent superior, (Torio v.
one hand, and corporate, private and proprietary on the Fontanilla), petitioner City of Manila is liable for the tortious
other. Governmental powers are those exercised in act committed by its agents who failed to verify and check
administering the powers of the state and promoting the the duration of the contract of lease. The contention of the
public welfare and they include the legislative, judicial, petitioner-city that the lease is covered by Administrative
public and political. Municipal powers on the one hand are Order No. 5, series of 1975 dated March 6, 1975 of the City
exercised for the special benefit and advantage of the of Manila for five (5) years only beginning from June 6, 1971
community and include those which are ministerial, private is not meritorious for the said administrative order covers
and corporate. In connection with the powers of a municipal new leases. When subject lot was certified on January 25,
corporation, it may acquire property in its public or 1978 as ready for exhumation, the lease contract for fifty
governmental capacity, and private or proprietary capacity. (50) years was still in full force and effect.
The New Civil Code divides such properties into property for
public use and patrimonial properties (Article 423), and
further enumerates the properties for public use as
provincial roads, city streets, municipal streets, the squares,
fountains, public waters, promenades, and public works for
public service paid for by said provisions, cities or
municipalities, all other property is patrimonial without
prejudice to the provisions of special laws. Thus in Torio v.
Fontanilla, the Court declared that with respect to
proprietary functions the settled rule is that a municipal
corporation can be held liable to third persons ex contractu.
12 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.
13 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

SYLLABUS PART 2: DECENTRALIZATION; LOCAL by them to be in accordance with the fundamental law
AUTONOMY; POWERS OF MUNICIPAL CORPORATIONS before it was finally approved. To doubt is to sustain. The
presumption of constitutionality can be overcome only by
5. Local Government Units vis a vis National Government: the clearest showing that there was indeed an infraction of
the Constitution.
Power of general supervision:
Issue: WON Section 187 of the LGC is unconstitutional
Drilon v. Lim (1994)
Facts: The principal issue in this case is the constitutionality Held: Yes
of Section 187 of the Local Government Code . The Ratio: Section 187 authorizes the Secretary of Justice to
Secretary of Justice (on appeal to him of four oil companies review only the constitutionality or legality of the tax
and a taxpayer) declared Ordinance No. 7794 (Manila ordinance and, if warranted, to revoke it on either or both of
Revenue Code) null and void for non-compliance with the these grounds. When he alters or modifies or sets aside a
procedure in the enactment of tax ordinances and for tax ordinance, he is not also permitted to substitute his own
containing certain provisions contrary to law and public judgment for the judgment of the local government that
policy. enacted the measure. Secretary Drilon did set aside the
The RTC revoked the Secretary’s resolution and sustained Manila Revenue Code, but he did not replace it with his own
the ordinance. It declared Sec 187 of the LGC as version of what the Code should be.. What he found only was
unconstitutional because it vests on the Secretary the power that it was illegal. All he did in reviewing the said measure
of control over LGUs in violation of the policy of local was determine if the petitioners were performing their
autonomy mandated in the Constitution. The Secretary functions in accordance with law, that is, with the prescribed
argues that the annulled Section 187 is constitutional and procedure for the enactment of tax ordinances and the grant
that the procedural requirements for the enactment of tax of powers to the city government under the Local
ordinances as specified in the Local Government Code had Government Code. As we see it, that was an act not of
indeed not been observed. (Petition originally dismissed by control but of mere supervision.
the Court due to failure to submit certified true copy of the An officer in control lays down the rules in the doing of an
decision, but reinstated it anyway.) act. If they are not followed, he may, in his discretion, order
the act undone or re-done by his subordinate or he may
Issue: WON the lower court has jurisdiction to consider the even decide to do it himself. Supervision does not cover such
constitutionality of Sec 187 of the LGC authority. The supervisor or superintendent merely sees to it
that the rules are followed, but he himself does not lay down
Held: Yes such rules, nor does he have the discretion to modify or
replace them.
Ratio: BP 129 vests in the regional trial courts jurisdiction Significantly, a rule similar to Section 187 appeared in the
over all civil cases in which the subject of the litigation is Local Autonomy Act. That section allowed the Secretary of
incapable of pecuniary estimation. Moreover, Article X, Finance to suspend the effectivity of a tax ordinance if, in his
Section 5(2), of the Constitution vests in the Supreme Court opinion, the tax or fee levied was unjust, excessive,
appellate jurisdiction over final judgments and orders of oppressive or confiscatory. Determination of these flaws
lower courts in all cases in which the constitutionality or would involve the exercise of judgment or discretion and not
validity of any treaty, international or executive agreement, merely an examination of whether or not the requirements
law, presidential decree, proclamation, order, instruction, or limitations of the law had been observed; hence, it would
ordinance, or regulation is in question. smack of control rather than mere supervision. That power
In the exercise of this jurisdiction, lower courts are advised was never questioned before this Court but, at any rate, the
to act with the utmost circumspection, bearing in mind the Secretary of Justice is not given the same latitude under
consequences of a declaration of unconstitutionality upon Section 187. All he is permitted to do is ascertain the
the stability of laws, no less than on the doctrine of constitutionality or legality of the tax measure, without the
separation of powers. It is also emphasized that every court, right to declare that, in his opinion, it is unjust, excessive,
including this Court, is charged with the duty of a purposeful oppressive or confiscatory. He has no discretion on this
hesitation before declaring a law unconstitutional, on the matter. In fact, Secretary Drilon set aside the Manila
theory that the measure was first carefully studied by the Revenue Code only on two grounds, to with, the inclusion
executive and the legislative departments and determined therein of certain ultra vires provisions and non-compliance
with the prescribed procedure in its enactment. These
3 grounds affected the legality, not the wisdom or
Procedure For Approval And Effectivity Of Tax Ordinances reasonableness, of the tax measure.
And Revenue Measures; Mandatory Public Hearings. The The issue of non-compliance with the prescribed procedure
procedure for approval of local tax ordinances and revenue in the enactment of the Manila Revenue Code is another
measures shall be in accordance with the provisions of this matter. (allegations: No written notices of public hearing, no
Code: Provided, That public hearings shall be conducted for publication of the ordinance, no minutes of public hearing,
the purpose prior to the enactment thereof; Provided, no posting, no translation into Tagalog)
further, That any question on the constitutionality or legality Judge Palattao however found that all the procedural
of tax ordinances or revenue measures may be raised on requirements had been observed in the enactment of the
appeal within thirty (30) days from the effectivity thereof to Manila Revenue Code and that the City of Manila had not
the Secretary of Justice who shall render a decision within been able to prove such compliance before the Secretary
sixty (60) days from the date of receipt of the appeal: only because he had given it only five days within which to
Provided, however, That such appeal shall not have the gather and present to him all the evidence (consisting of 25
effect of suspending the effectivity of the ordinance and the exhibits) later submitted to the trial court. We agree with the
accrual and payment of the tax, fee, or charge levied trial court that the procedural requirements have indeed
therein: Provided, finally, That within thirty (30) days after been observed. Notices of the public hearings were sent to
receipt of the decision or the lapse of the sixty-day period interested parties as evidenced. The minutes of the hearings
without the Secretary of Justice acting upon the appeal, the are found in Exhibits M, M-1, M-2, and M-3. Exhibits B and C
aggrieved party may file appropriate proceedings with a show that the proposed ordinances were published in the
court of competent jurisdiction.
14 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

Balita and the Manila Standard on April 21 and 25, 1993, discriminatory; 4) must not prohibit but may regulate trade;
respectively, and the approved ordinance was published in 5) must not be unreasonable; and 6) must be general and
the July 3, 4, 5, 1993 issues of the Manila Standard and in consistent with public policy.
the July 6, 1993 issue of Balita. The only exceptions are the A careful study of the Gonong decision will show that the
posting of the ordinance as approved but this omission does measures under consideration do not pass the first criterion
not affect its validity, considering that its publication in three because they do not conform to existing law. The pertinent
successive issues of a newspaper of general circulation will law is PD 1605. PD 1605 does not allow either the removal of
satisfy due process. It has also not been shown that the text license plates or the confiscation of driver's licenses for
of the ordinance has been translated and disseminated, but traffic violations committed in Metropolitan Manila. There is
this requirement applies to the approval of local nothing in the following provisions of the decree authorizing
development plans and public investment programs of the the Metropolitan Manila Commission to impose such
local government unit and not to tax ordinances. sanctions. In fact, the provisions prohibit the imposition of
such sanctions in Metropolitan Manila. The Commission was
Solicitor General v. Metopolitan Manila Authority allowed to "impose fines and otherwise discipline" traffic
(1991) violators only "in such amounts and under such penalties as
Facts: In Metropolitan Traffic Command, West Traffic are herein prescribed," that is, by the decree itself. Nowhere
District vs. Hon. Arsenio M. Gonong, the Court held that the is the removal of license plates directly imposed by the
confiscation of the license plates of motor vehicles for traffic decree or at least allowed by it to be imposed by the
violations was not among the sanctions that could be Commission. Notably, Section 5 thereof expressly provides
imposed by the Metro Manila Commission under PD 1605 that "in case of traffic violations, the driver's license shall not
and was permitted only under the conditions laid dowm by be confiscated." These restrictions are applicable to the
LOI 43 in the case of stalled vehicles obstructing the public Metropolitan Manila Authority and all other local political
streets. It was there also observed that even the confiscation subdivisions comprising Metropolitan Manila, including the
of driver's licenses for traffic violations was not directly Municipality of Mandaluyong.
prescribed by the decree nor was it allowed by the decree to `The requirement that the municipal enactment must not
be imposed by the Commission. However, petitioners alleged violate existing law explains itself. Local political subdivisions
that Traffic Enforces continued with the confiscation of are able to legislate only by virtue of a valid delegation of
driver’s licenses and removal of license plates. Dir General legislative power from the national legislature. They are
Cesar P. Nazareno of the PNP assured the Court that his mere agents vested with what is called the power of
office had never authorized the removal of the license plates subordinate legislation. As delegates of the Congress, the
of illegally parked vehicles. local government unit cannot contravene but must obey at
Later, the Metropolitan Manila Authority issued Ordinance all times the will of their principal. In the case before us, the
No. 11, authorizing itself "to detach the license plate/tow and enactments in question, which are merely local in origin,
impound attended/ unattended/ abandoned motor vehicles cannot prevail against the decree, which has the force and
illegally parked or obstructing the flow of traffic in Metro effect of a statute.
Manila." The Court issued a resolution requiring the To sustain the ordinance would be to open the floodgates to
Metropolitan Manila Authority and the SolGen to submit other ordinances amending and so violating national laws in
separate comments in light of the contradiction between the the guise of implementing them. Thus, ordinances could be
Ordinance and the SC ruling. passed imposing additional requirements for the issuance of
The MMA defended the ordinance on the ground that it was marriage licenses, to prevent bigamy; the registration of
adopted pursuant to the power conferred upon it by EO 32 vehicles, to minimize carnapping; the execution of contracts,
(formulation of policies, promulgation of resolutions). The Sol to forestall fraud; the validation of parts, to deter imposture;
Gen expressed the view that the ordinance was null and void the exercise of freedom of speech, to reduce disorder; and
because it represented an invalid exercise of a delegated so on. The list is endless, but the means, even if the end be
legislative power. The flaw in the measure was that it valid, would be ultra vires.
violated existing law, specifically PD 1605, which does not The measures in question do not merely add to the
permit, and so impliedly prohibits, the removal of license requirement of PD 1605 but, worse, impose sanctions the
plates and the confiscation of driver's licenses for traffic decree does not allow and in fact actually prohibits. In so
violations in Metropolitan Manila. He made no mention, doing, the ordinances disregard and violate and in effect
however, of the alleged impropriety of examining the said partially repeal the law.
ordinance in the absence of a formal challenge to its validity. We here emphasize the ruling in the Gonong case that PD
1605 applies only to the Metropolitan Manila area. It is an
Issue: WON Ordinance 11 is justified on the basis of the exception to the general authority conferred by R.A. No. 413
General Welfare Clause embodied in the LGC on the Commissioner of Land Transportation to punish
violations of traffic rules elsewhere in the country with the
Held: No sanction therein prescribed, including those here questioned.
The Court agrees that the challenged ordinances were
Ratio: The Court holds that there is a valid delegation of enacted with the best of motives and shares the concern of
legislative power to promulgate such measures, it appearing the rest of the public for the effective reduction of traffic
that the requisites of such delegation are present. These problems in Metropolitan Manila through the imposition and
requisites are. 1) the completeness of the statute making the enforcement of more deterrent penalties upon traffic
delegation; and 2) the presence of a sufficient standard. violators. At the same time, it must also reiterate the public
The measures in question are enactments of local misgivings over the abuses that may attend the enforcement
governments acting only as agents of the national of such sanction in eluding the illicit practices described in
legislature. Necessarily, the acts of these agents must reflect detail in the Gonong decision. At any rate, the fact is that
and conform to the will of their principal. To test the validity there is no statutory authority for and indeed there is a
of such acts in the specific case now before us, we apply the statutory prohibition against the imposition of such
particular requisites of a valid ordinance as laid down by the penalties in the Metropolitan Manila area. Hence, regardless
accepted principles governing municipal corporations. of their merits, they cannot be impose by the challenged
According to Elliot, a municipal ordinance, to be valid: 1) enactments by virtue only of the delegated legislative
must not contravene the Constitution or any statute; 2) must powers.
not be unfair or oppressive; 3) must not be partial or
15 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

It is for Congress to determine, in the exercise of its own Autonomy does not, after all, contemplate making mini-
discretion, whether or not to impose such sanctions, either states out of local government units, as in the federal
directly through a statute or by simply delegating authority governments of the USA. Autonomy, in the constitutional
to this effect to the local governments in Metropolitan sense, is subject to the guiding star, though not control, of
Manila. Without such action, PD 1605 remains effective and the legislature, albeit the legislative responsibility under the
continues prohibit the confiscation of license plates of motor Constitution - and as the "supervision clause" itself suggest -
vehicles (except under the conditions prescribed in LOI 43) is to wean local government units from over dependence on
and of driver licenses as well for traffic violations in the central government.
Metropolitan Manila. It is noteworthy that under the Charter, "local autonomy" is
not instantly self-executing, but subject to, among other
Ganzon v. Court of Appeals (1991) things, the passage of a local government code, a local tax
Facts: The petitions of Mayor Ganzon originated from a law, income distribution legislation, and a national
series of administrative complaints, ten in number, filed representation law, and measures designed to realize
against him by various city officials sometime in 1988, on autonomy at the local level. It is also noteworthy that in
various charges, among them, abuse of authority, spite of autonomy, the Constitution places the local
oppression, grave misconduct, disgraceful and immoral government under the general supervision of the Executive.
conduct, intimidation, culpable violation of the Constitution, It is noteworthy finally, that the Charter allows Congress to
and arbitrary detention. Finding probable grounds and include in the local government code provisions for removal
reasons, the respondent (Sec of Local Government) issued a of local officials, which suggest that Congress may exercise
preventive suspension order for a period of sixty days. In the removal powers, and as the existing Local Government Code
other case, respondent ordered petitioner's second has done, delegate its exercise to the President.
preventive suspension for another sixty (60) days. The The deletion of "as may be provided by law" was meant to
petitioner was able to obtain a restraining order and a writ of stress, sub silencio, the objective of the framers to
preliminary injunction in the RTC. The second preventive strengthen local autonomy by severing congressional control
suspension was not enforced. of its affairs, as observed by the Court of Appeals, like the
Amidst the two successive suspensions, Mayor Ganzon power of local legislation. The Constitution did nothing
instituted an action for prohibition against the respondent in more, however, and insofar as existing legislation authorizes
the RTC. Presently, he instituted an action for prohibition, in the President (through the Secretary of Local Government) to
the respondent CA. Meanwhile, the respondent issued proceed against local officials administratively, the
another order, preventively suspending Mayor Ganzon for Constitution contains no prohibition.
another sixty days, the third time in twenty months, and The petitioners are under the impression that the
designating meantime Vice-Mayor Mansueto Malabor as Constitution has left the President mere supervisory powers,
acting mayor. Undaunted, Mayor Ganzon commenced before which supposedly excludes the power of investigation, and
the CA, a petition for prohibition. The CA rendered judgment denied her control, which allegedly embraces disciplinary
dismissing the cases. authority. It is a mistaken impression because legally,
"supervision" is not incompatible with disciplinary authority
Issue: WON the Secretary of Local Government, as the The Court does not believe that the petitioners can rightfully
President's alter ego, can suspend and or remove local point to the debates of the Constitutional Commission to
officials. defeat the President's powers. The Court believes that the
deliberations are by themselves inconclusive, because
Issue: Yes although Commissioner Jose Nolledo would exclude the
power of removal from the President, Commissioner Blas
Ratio: It is the petitioners' argument that the 1987 Ople would not.
Constitution no longer allows the President, as the 1935 and The Court is consequently reluctant to say that the new
1973 Constitutions did, to exercise the power of suspension Constitution has repealed the Local Government Code, Batas
and/or removal over local officials. According to both Blg. 337. As we said, "supervision" and "removal" are not
petitioners, the Constitution is meant, first, to strengthen incompatible terms and one may stand with the other
self-rule by local government units and second, by deleting notwithstanding the stronger expression of local autonomy
the phrase "as may be provided by law," to strip the under the new Charter. We have indeed held that in spite of
President of the power of control over local governments. It the approval of the Charter, Batas Blg. 337 is still in force
is a view, so they contend, that finds support in the debates and effect. As the Constitution itself declares, local
of the Constitutional Commission. The issue consists of three autonomy means "a more responsive and accountable local
questions: (1) Did the 1987 Constitution, in deleting the government structure instituted through a system of
phrase "as may be provided by law" intend to divest the decentralization." The Constitution, as we observed, does
President of the power to investigate, suspend, discipline, nothing more than to break up the monopoly of the national
and or remove local officials? (2) Has the Constitution government over the affairs of local governments and as put
repealed Sections 62 and 63 of the Local Government Code? by political adherents, to "liberate the local governments
(3) What is the significance of the change in the from the imperialism of Manila." Autonomy, however, is not
constitutional language? meant to end the relation of partnership and
It is the considered opinion of the Court that notwithstanding interdependence between the central administration and
the change in the constitutional language, the charter did local government units, or otherwise, to usher in a regime of
not intend to divest the legislature of its right - or the federalism. The Charter has not taken such a radical step.
President of her prerogative as conferred by existing Local governments, under the Constitution, are subject to
legislation to provide administrative sanctions against local regulation, however limited, and for no other purpose than
officials. It is our opinion that the omission (of "as may be precisely, albeit paradoxically, to enhance self-government.
provided by law") signifies nothing more than to underscore As we observed in one case, decentralization means
local governments' autonomy from congress and to break devolution of national administration - but not power - to the
Congress' "control" over local government affairs. The local levels. Thus:
Constitution did not, however, intend, for the sake of local Now, autonomy is either decentralization of administration
autonomy, to deprive the legislature of all authority over or decentralization of power. There is decentralization of
municipal corporations, in particular, concerning discipline. administration when the central government delegates
administrative powers to political subdivisions in order to
16 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

broaden the base of government power and in the process to latter from legislative regulations provided regulation is
make local governments "more responsive and consistent with the fundamental premise of autonomy;
accountable," and "ensure their fullest development as self- Since local governments remain accountable to the
reliant communities and make them more effective partners national authority, the latter may, by law, and in the
in the pursuit of national development and social progress." manner set forth therein, impose disciplinary action
At the same time, it relieves the central government of the against local officials;
burden of managing local affairs and enables it to "Supervision" and "investigation" are not inconsistent
concentrate on national concerns. The President exercises terms; "investigation" does not signify "control" (which the
"general supervision" over them, but only to "ensure that President does not have);
local affairs are administered according to law." He has no The petitioner, Mayor Rodolfo Ganzon, may serve the
control over their acts in the sense that he can substitute suspension so far ordered, but may no longer be
their judgments with his own. suspended for the offenses he was charged originally;
Decentralization of power, on the other hand, involves an provided:
abdication of political power in the favor of local that delays in the investigation of those charges "due to
governments units declared to be autonomous, In that case, his fault, neglect or request, (the time of the delay) shall
the autonomous government is free to chart its own destiny not be counted in computing the time of suspension."
and shape its future with minimum intervention from central [Supra, sec. 63(3)]
authorities. According to a constitutional author, that if during, or after the expiration of, his preventive
decentralization of power amounts to "self-immolation," suspension, the petitioner commits another or other
since in that event, the autonomous government becomes crimes and abuses for which proper charges are fled
accountable not to the central authorities but to its against him by the aggrieved party or parties, his previous
contituency. suspension shall not be a bar to his being preventively
suspended again, if warranted under subpar. (2), Section
Issue: WON the several suspensions imposed upon Mayon 63 of the Local Government Code.
Ganzon are proper
MCIAA v. Marcos (1996)
Held: No
Facts: Petitioner was created by virtue of RA6958,
Ratio: The successive sixty-day suspensions imposed on mandated to "principally undertake the economical, efficient
Mayor Ganzon is albeit another matter. What bothers the and effective control, management and supervision of the
Court, and what indeed looms very large, is the fact that Mactan International Airport in the Province of Cebu and the
since the Mayor is facing ten administrative charges, the Lahug Airport in Cebu City. Under Section 1: The authority
Mayor is in fact facing the possibility of 600 days of shall be exempt from realty taxes imposed by the National
suspension, in the event that all ten cases yield prima facie Government or any of its political subdivisions, agencies and
findings. The Court is not of course tolerating misfeasance in instrumentalities.
public office (assuming that Ganzon is guilty of misfeasance) However, the Officer of the Treasurer of Cebu City demanded
but it is certainly another question to make him serve 600 payment for realty taxes on parcels of land belonging to
days of suspension, which is effectively, to suspend him out petitioner. Petitioner objected invoking its tax exemption. It
of office. also asserted that it is an instrumentality of the government
The plain truth is that this Court has been ill at ease with performing governmental functions, citing section 133 of the
suspensions, for the above reasons, and so also, because it LGC which puts limitations on the taxing powers of LGUs.
is out of the ordinary to have a vacancy in local government. The city refused insisting that petitioner is a GOCC
The sole objective of a suspension, as we have held, is performing proprietary functions whose tax exemption was
simply "to prevent the accused from hampering the normal withdrawn by Sections 193 and 234 of the LGC.
cause of the investigation with his influence and authority Petitioner filed a declaratory relief before the RTC. The trial
over possible witnesses" or to keep him off "the records court dismissed the petitioner ruling that the LGC withdrew
and other evidence." It is a means, and no more, to assist the tax exemption granted the GOCCs.
prosecutors in firming up a case, if any, against an erring
local official. Under the Local Government Code, it can not Issue: WON the City of Cebu has the power to impose
exceed sixty days, which is to say that it need not be taxes on petitioner
exactly sixty days long if a shorter period is otherwise
sufficient, and which is also to say that it ought to be lifted if Held: Yes
prosecutors have achieved their purpose in a shorter span.
Suspension finally is temporary, and as the Local Ratio: As a general rule, the power to tax is an incident of
Government Code provides, it may be imposed for no more sovereignty and is unlimited in its range, acknowledging in
than sixty days. As we held, a longer suspension is unjust its very nature no limits, so that security against its abuse is
and unreasonable, and nothing less than tyranny. We to be found only in the responsibility of the legislature which
reiterate that we are not precluding the President, through imposes the tax on the constituency who are to pay it. Since
the Secretary of Interior from exercising a legal power, yet taxes are what we pay for civilized society, or are the
we are of the opinion that the Secretary of Interior is lifeblood of the nation, the law frowns against exemptions
exercising that power oppressively, and needless to say, with from taxation and statutes granting tax exemptions are thus
a grave abuse of discretion. construed strictissimi juris against the taxpayers and
liberally in favor of the taxing authority. A claim of exemption
from tax payment must be clearly shown and based on
Ganzon Supplement:
language in the law too plain to be mistaken.
Local autonomy, under the Constitution, involves a mere
There can be no question that under Section 14 RA 6958 the
decentralization of administration, not of power, in which
petitioner is exempt from the payment of realty taxes
local officials remain accountable to the central
imposed by the National Government or any of its political
government in the manner the law may provide;
subdivisions, agencies, and instrumentalities. Nevertheless,
The new Constitution does not prescribe federalism;
since taxation is the rule and exemption is the exception, the
The change in constitutional language (with respect to the
exemption may thus be withdrawn at the pleasure of the
supervision clause) was meant but to deny legislative
taxing authority.
control over local governments; it did not exempt the
17 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

The LGC, enacted pursuant to Section 3, Article X of the place it fails to consider the fact that the legislature used the
constitution provides for the exercise by LGUs of their power phrase "National Government, its agencies and
to tax, the scope thereof or its limitations, and the instrumentalities" "in Section 133(o),but only the phrase
exemption from taxation. Section 133 of the LGC prescribes "Republic of the Philippines or any of its political subdivision
the common limitations on the taxing powers of LGUs: (o) "in Section 234(a).
Taxes, fees or charges of any kind on the national The terms "Republic of the Philippines" and "National
government, its agencies and instrumentalities and LGUs. Government" are not interchangeable. The former is boarder
Among the "taxes" enumerated in the LGC is real property and synonymous with "Government of the Republic of the
tax. Section 234 of LGC provides for the exemptions from Philippines" which the Administrative Code of the 1987
payment of GOCCs, except as provided therein. On the other defines as the "corporate governmental entity though which
hand, the LGC authorizes LGUs to grant tax exemption the functions of the government are exercised through at the
privileges. Reading together Section 133, 232 and 234 of Philippines, including, saves as the contrary appears from
the LGC, we conclude that as a general rule, as laid down in the context, the various arms through which political
Secs 133 the taxing powers of LGUs cannot extend to the authority is made effective in the Philippines, whether
levy of inter alia, "taxes, fees, and charges of any kind of the pertaining to the autonomous reason, the provincial, city,
National Government, its agencies and instrumentalties, and municipal or barangay subdivision or other forms of local
LGUs"; however, pursuant to Sec 232, provinces, cities, government." These autonomous regions, provincial, city,
municipalities in the Metropolitan Manila Area may impose municipal or barangay subdivisions" are the political
the real property tax except on, inter alia, "real property subdivision. On the other hand, "National Government"
owned by the Republic of the Philippines or any of its refers "to the entire machinery of the central government, as
political subdivisions except when the beneficial used distinguished from the different forms of local Governments."
thereof has been granted to a taxable person." The National Government then is composed of the three
As to tax exemptions or incentives granted to or presently great departments the executive, the legislative and the
enjoyed by natural or juridical persons, including judicial. An "agency" of the Government refers to "any of the
government-owned and controlled corporations, Section 193 various units of the Government, including a department,
of the LGC prescribes the general rule, viz., they are bureau, office instrumentality, or government-owned or
withdrawn upon the effectivity of the LGC, except upon the controlled corporation, or a local government or a distinct
effectivity of the LGC, except those granted to local water unit therein;" while an "instrumentality" refers to "any
districts, cooperatives duly registered under R.A. No. 6938, agency of the National Government, not integrated within
non stock and non-profit hospitals and educational the department framework, vested with special functions or
institutions, and unless otherwise provided in the LGC. The jurisdiction by law, endowed with some if not all corporate
latter proviso could refer to Section 234, which enumerates powers, administering special funds, and enjoying
the properties exempt from real property tax. But the last operational autonomy; usually through a charter. This term
paragraph of Section 234 further qualifies the retention of includes regulatory agencies, chartered institutions and
the exemption in so far as the real property taxes are government-owned and controlled corporations".
concerned by limiting the retention only to those If Section 234(a) intended to extend the exception therein to
enumerated there-in; all others not included in the the withdrawal of the exemption from payment of real
enumeration lost the privilege upon the effectivity of the property taxes under the last sentence of the said section to
LGC. Moreover, even as the real property is owned by the the agencies and instrumentalities of the National
Republic of the Philippines, or any of its political subdivisions Government mentioned in Section 133(o), then it should
covered by item (a) of the first paragraph of Section 234, the have restated the wording of the latter. Yet, it did not
exemption is withdrawn if the beneficial use of such property Moreover, that Congress did not wish to expand the scope of
has been granted to taxable person for consideration or the exemption in Section 234(a) to include real property
otherwise. owned by other instrumentalities or agencies of the
Since the last paragraph of Section 234 unequivocally government including government-owned and controlled
withdrew, upon the effectivity of the LGC, exemptions from corporations is further borne out by the fact that the source
real property taxes granted to natural or juridical persons, of this exemption is Section 40(a) of P.D. No. 646, otherwise
including GOCCs, except as provided in the said section, and known as the Real Property Tax Code.
the petitioner is, undoubtedly, a government-owned Note that as a reproduced in Section 234(a), the phrase "and
corporation, it necessarily follows that its exemption from any government-owned or controlled corporation so exempt
such tax granted it in Section 14 of its charter, R.A. No. by its charter" was excluded. The justification for this
6958, has been withdrawn. Any claim to the contrary can restricted exemption in Section 234(a) seems obvious: to
only be justified if the petitioner can seek refuge under any limit further tax exemption privileges, specially in light of the
of the exceptions provided in Section 234, but not under general provision on withdrawal of exemption from payment
Section 133, as it now asserts, since, as shown above, the of real property taxes in the last paragraph of property taxes
said section is qualified by Section 232 and 234. In short, the in the last paragraph of Section 234. These policy
petitioner can no longer invoke the general rule in Section considerations are consistent with the State policy to ensure
133. autonomy to local governments 33 and the objective of the
It must show that the parcels of land in question, which are LGC that they enjoy genuine and meaningful local autonomy
real property, are any one of those enumerated in Section to enable them to attain their fullest development as self-
234, either by virtue of ownership, character, or use of the reliant communities and make them effective partners in the
property. Most likely, it could only be the first, but not under attainment of national goals. 34 The power to tax is the most
any explicit provision of the said section, for one exists. In effective instrument to raise needed revenues to finance and
light of the petitioner's theory that it is an "instrumentality of support myriad activities of local government units for the
the Government", it could only be within be first item of the delivery of basic services essential to the promotion of the
first paragraph of the section by expanding the scope of the general welfare and the enhancement of peace, progress,
terms Republic of the Philippines" to embrace and prosperity of the people. It may also be relevant to recall
."instrumentalities" and "agencies." that the original reasons for the withdrawal of tax exemption
This view does not persuade us. In the first place, the privileges granted to government-owned and controlled
petitioner's claim that it is an instrumentality of the corporations and all other units of government were that
Government is based on Section 133(o), which expressly such privilege resulted in serious tax base erosion and
mentions the word "instrumentalities"; and in the second distortions in the tax treatment of similarly situated
18 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

enterprises, and there was a need for this entities to share in Batasan Pampook, Region XII held on March 12, 1987 valid
the requirements of the development, fiscal or otherwise, by and subsisting, and(e) Making the injunction permanent.
paying the taxes and other charges due from them.
The crucial issues then to be addressed are: (a) whether the Issue: WON the expulsion of the petitioner (pending
parcels of land in question belong to the Republic of the litigation) has made the case moot and academic.
Philippines whose beneficial use has been granted to the
petitioner, and (b) whether the petitioner is a "taxable Ratio: We do not agree that the case has been rendered
person". It may be reasonable to assume that the term moot and academic by reason simply of the expulsion
"lands" refer to "lands" in Cebu City then administered by resolution so issued. For, if the petitioner's expulsion was
the Lahug Air Port and includes the parcels of land the done purposely to make this petition moot and academic,
respondent City of Cebu seeks to levy on for real property and to preempt the Court, it will not make it academic.
taxes. This section involves a "transfer" of the "lands" among On the ground of the immutable principle of due process
other things, to the petitioner and not just the transfer of the alone, we hold that the expulsion in question is of no force
beneficial use thereof, with the ownership being retained by and effect. In the first place, there is no showing that the
the Republic of the Philippines. Sanggunian had conducted an investigation, and whether or
This "transfer" is actually an absolute conveyance of the not the petitioner had been heard in his defense, assuming
ownership thereof because the petitioner's authorized that there was an investigation, or otherwise given the
capital stock consists of "the value of such real estate owned opportunity to do so. What appears in the records is an
and/or administered by the airports." Hence, the petitioner is admission by the Assembly that "since November, 1987 up
now the owner of the land in question and the exception in to this writing, the petitioner has not set foot at the
Sec 234(c) of the LGC is inapplicable. Petitioner cannot claim Sangguniang Pampook." To be sure, respondents aver that
that it was never a "taxable person" under its Charter. It was "[t]he Assemblymen, in a conciliatory gesture, wanted him to
only exempted from the payment of real property taxes. The come to Cotabato City," but that was "so that their
grant of the privilege only in respect of this tax is conclusive differences could be threshed out and settled." Certainly,
proof of the legislative intent to make it a taxable person that avowed wanting or desire to thresh out and settle, no
subject to all taxes, except real property tax. matter how conciliatory it may be cannot be a substitute for
Finally, even if the petitioner was originally not a taxable the notice and hearing contemplated by law.
person for purposes of real property tax, in light of the In the second place, the resolution appears strongly to be a
forgoing disquisitions, it had already become even if it be bare act of vendetta by the other Assemblymen against the
conceded to be an "agency" or "instrumentality" of the petitioner arising from what the former perceive to be
Government, a taxable person for such purpose in view of abduracy on the part of the latter. Indeed, it (the resolution)
the withdrawal in the last paragraph of Section 234 of speaks of "a case [having been filed] [by the petitioner]
exemptions from the payment of real property taxes, which, before the Supreme Court . . . on question which should have
as earlier adverted to, applies to the petitioner. Accordingly, been resolved within the confines of the Assembly ---- an act
the position taken by the petitioner is untenable. Reliance on which some members claimed unnecessarily and unduly
Basco vs. Pagcor is unavailing since it was decided before assails their integrity and character as representative of the
the effectivity of the LGC. Besides, nothing can prevent people," an act that cannot possibly justify expulsion. Access
Congress from decreeing that even instrumentalities or to judicial remedies is guaranteed by the Constitution, and,
agencies of the government performing governmental unless the recourse amounts to malicious prosecution, no
functions may be subject to tax. Where it is done precisely to one may be punished for seeking redress in the courts.
fulfill a constitutional mandate and national policy, no one We therefore order reinstatement, with the caution that
can doubt its wisdom. should the past acts of the petitioner indeed warrant his
removal, the Assembly is enjoined, should it still be so
minded, to commence proper proceedings therefor in line
with the most elementary requirements of due process. And
Decentralization, local autonomy: while it is within the discretion of the members of the
Sanggunian to punish their erring colleagues, their acts are
Limbona v. Mangelin (1989) nonetheless subject to the moderating hand of this Court in
Facts: Sultan Alimbusar Limbona was appointed as a the event that such discretion is exercised with grave abuse.
member of the Sangguniang Pampook, Regional
Autonomous Government, Region XII, representing Lanao del Issue: What is the extent of self-government given to the
Sur. He was then elected speaker of the regional legislative two autonomous governments of Region IX and XII?
assembly of central Mindanao, composed of 18 members.
Later, Congressman Datu Guimid Matalam, Chairman of the Ratio: The autonomous governments of Mindanao were
Committee on Muslim Affairs of the House of organized in Regions IX and XII by Presidential Decree No.
Representatives, invited Mr. Xavier Razul, Pampook Speaker 1618. Among other things, the Decree established "internal
of Region XI, Zamboanga City and the petitioner in his autonomy" in the two regions "[w]ithin the framework of the
capacity as Speaker of the Assembly, Region XII, in a national sovereignty and territorial integrity of the Republic
conference. Petitioner then ordered Acting Secretary of the Philippines and its Constitution," "with legislative and
Alimbuyao to inform the assemblymen that there will be no executive machinery to exercise the powers and
session on said date as petitioner and Razul are attending responsibilities"' specified therein.
the house committee hearing. It requires the autonomous regional governments to
The Assembly held session in defiance of petitioner's advice. "undertake all internal administrative matters for the
After declaring the presence of a quorum, the Speaker Pro- respective regions," except to "act on matters which are
Tempore was authorized to preside in the session. On Motion within the jurisdiction and competence of the National
to declare the seat of the Speaker vacant, all Assemblymen Government," "which include, but are not limited to, the
in attendance voted in the affirmative, hence, the chair following:
declared said seat of the Speaker vacant. 1. National defense and security;
The petitioner then went to court praying that judgment be 2. Foreign relations;
rendered declaring the proceedings held by respondents 3. Foreign trade;
during the session as null and void and holding the election 4. Currency, monetary affairs, foreign exchange,
of petitioner as Speaker of said Legislative Assembly or banking and quasi-banking, and external borrowing,
19 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

5. Disposition, exploration, development, exploitation their legislative arm, is made to discharge chiefly
or utilization of all natural resources; administrative services.
6. Air and sea transport; Hence, we assume jurisdiction. And if we can make an
7. Postal matters and telecommunications; inquiry in the validity of the expulsion in question, with more
8. Customs and quarantine; reason can we review the petitioner's removal as Speaker.
9. Immigration and deportation;
10. Citizenship and naturalization; San Juan v. Civil Service Commission (1991)
11. National economic, social and educational planning; Facts: The position of Provincial Budget Officer (PBO) for
and Rizal Province was left vacated. Petitioner, Gov. Reynaldo
12. General auditing." San Juan informed Dir. Reynaldo Abella of the DBM that Ms.
In relation to the central government, it provides that "[t]he Dalisay Santos assumed office as Acting PBO and requested
President shall have the power of general supervision and Dir Abella to endorse the appointment of Santos. In a memo,
control over the Autonomous Regions. however, Dir Abella appointed Cecilia Almajose as PBO of
Now, autonomy is either decentralization of administration Rizal on the basis of a comparative study of all Municipal
or decentralization of power. There is decentralization of Budget Officers. According to Abella, Almajose was most
administration when the central government delegates qualified as she was a CPA. DBM Undersecretary Nazario
administrative powers to political subdivisions in order to Cabuquit signed the appointment papers of Almajose.
broaden the base of government power and in the process to In a letter, Petitioner reiterated his request for Santos’
make local governments "more responsive and appointment. DBM Regional Dir Agripino Galvez denied the
accountable," and "ensure their fullest development as self- request as Santos was not qualified. When petitioner learned
reliant communities and make them more effective partners of Almajose’s appointment, he protested on the grounds that
in the pursuit of national development and social progress." Cabuquit as DBM Undersecretary is not legally authorized to
At the same time, it relieves the central government of the appoint the PBO; that Almajose lacks the required three
burden of managing local affairs and enables it to years work experience as provided in Local Budget Circular
concentrate on national concerns. The President exercises No. 31; and that under EO 112, it is the Governor, not the
"general supervision" over them, but only to "ensure that Regional Director or a Congressman, who has the power to
local affairs are administered according to law." He has no recommend nominees for the position of PBO. The DBM
control over their acts in the sense that he can substitute issued a memo ruling that petitioner’s protest is not
their judgments with his own. meritorious as the DBM validly exercised its prerogative in
Decentralization of power, on the other hand, involves an filling-up the contested position since none of the petitioner's
abdication of political power in the favor of local nominees met the prescribed requirements. The CSC
governments units declared to be autonomous. In that case, affirmed.
the autonomous government is free to chart its own destiny
and shape its future with minimum intervention from central Issue: WON petitioner has the right and privilege to
authorities. According to a constitutional author, recommend the nominees to the position of PBO
decentralization of power amounts to "self-immolation,"
since in that event, the autonomous government becomes Held: Yes
accountable not to the central authorities but to its
constituency. Ratio: The tug of war between the Secretary of DBM and
But the question of whether or not the grant of autonomy to the Governor of Rizal over a position involves the application
Muslim Mindanao under the 1987 Constitution involves, of a most important constitutional policy and principle, that
truly, an effort to decentralize power rather than mere of local autonomy. We have to obey the clear mandate on
administration is a question foreign to this petition, since local autonomy. Where a law is capable of two
what is involved herein is a local government unit interpretations, one in favor of centralized power in
constituted prior to the ratification of the present Malacañang and the other beneficial to local autonomy, the
Constitution. Hence, the Court will not resolve that scales must be weighed in favor of autonomy. The exercise
controversy now, in this case, since no controversy in fact by LGUs of meaningful power has been a national goal since
exists. We will resolve it at the proper time and in the proper the turn of the century. And yet, inspite of constitutional
case. Under the 1987 Constitution, local government units provisions and legislation mandating greater autonomy for
enjoy autonomy in these two senses local officials, national officers cannot seem to let go of
An autonomous government that enjoys autonomy of the centralized powers. They deny or water down what little
latter category is subject alone to the decree of the organic grants of autonomy have so far been given to municipal
act creating it and accepted principles on the effects and corporations.
limits of "autonomy." On the other hand, an autonomous President McKinley's Instructions to the Second Philippine
government of the former class is, as we noted, under the Commission ordered the new Government "to devote their
supervision of the national government acting through the attention in the first instance to the establishment of
President (and the Department of Local Government). If the municipal governments in which natives of the Islands, both
Sangguniang Pampook (of Region XII), then, is autonomous in the cities and rural communities, shall be afforded the
in the latter sense, its acts are, debatably, beyond the opportunity to manage their own local officers to the fullest
domain of this Court in perhaps the same way that the extent of which they are capable and subject to the least
internal acts, say, of the Congress of the Philippines are degree of supervision and control which a careful study of
beyond our jurisdiction. But if it is autonomous in the former their capacities and observation of the workings of native
category only, it comes unarguably under our jurisdiction. control show to be consistent with the maintenance of law,
An examination of the very Presidential Decree creating the order and loyalty." In this initial organic act for the
autonomous governments of Mindanao persuades us that Philippines, the Commission which combined both executive
they were never meant to exercise autonomy in the second and legislative powers was directed to give top priority to
sense, that is, in which the central government commits an making local autonomy effective. The 1935 Constitution had
act of self-immolation. Presidential Decree No. 1618, in the no specific article on local autonomy. However, the
first place, mandates that "[t]he President shall have the Constitution clearly limited the executive power over local
power of general supervision and control over Autonomous governments to "general supervision as may be provided by
Regions." 33 the second place, the Sangguniang Pampook, law." The President controls the executive departments. He
has no such power over local governments. He has only
20 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

supervision and that is both general and circumscribed by US. Autonomy, in the constitutional sense, is subject to the
statute. Pursuant to this principle under the 1935 guiding star, though not control, of the legislature, albeit the
Constitution, legislation implementing local autonomy was legislative responsibility under the Constitution and as the
enacted. In 1959, Republic Act No. 2264 (Local Autonomy "supervision clause" itself suggest is to wean local LGUs
Act) was enacted. The provisions of the 1973 Constitution from over-dependence on the central government.
moved the country further towards greater autonomy. An Under the Constitution, "local autonomy" is not instantly self-
entire article on Local Government was incorporated into the executing, but subject to, among other things, the passage
Constitution. It called for a local government code defining of a local government code, a local tax law, income
more responsive and accountable local government distribution legislation, and a national representation law,
structures. Any creation, merger, abolition, or substantial and measures designed to realize autonomy at the local
boundary alteration cannot be done except in accordance level. Also, despite the autonomy, the Constitution places
with the local government code and upon approval by a the local government under the general supervision of the
plebiscite. The power to create sources of revenue and to Executive. Finally, the Charter allows Congress to include in
levy taxes was specifically settled upon local governments. the LGC provisions for removal of local officials, which
The exercise of greater local autonomy is even more marked suggest that Congress may exercise removal powers, and as
in the present Constitution (Art II Sec 25, Art X Sec 2-3). the existing LGC has done, delegate its exercise to the
When the Civil Service Commission interpreted the President.
recommending power of the Provincial Governor as purely The petitioners are under the mistaken impression that the
directory, it went against the letter and spirit of the Constitution has left the President mere supervisory powers,
constitutional provisions on local autonomy. If the DBM which supposedly excludes the power of investigation, and
Secretary jealously hoards the entirety of budgetary powers denied her control, which allegedly embraces disciplinary
and ignores the right of local governments to develop self- authority. Legally, "supervision" is not incompatible with
reliance and resoluteness in the handling of their own funds, disciplinary authority.
the goal of meaningful local autonomy is frustrated and set "Control" = the power of an officer to alter or modify or
back. nullify or set aside what a subordinate officer had done in
Provincial and municipal budgets are prepared at the local the performance of his duties and to substitute the judgment
level and after completion are forwarded to the national of the former for test of the latter. "Supervision" =
officials for review. They are prepared by the local officials overseeing or the power or authority of an officer to see that
who must work within the constraints of those budgets. They subordinate officers perform their duties. As we held,
are not formulated in the inner sanctums of an all-knowing however, "investigating" is not inconsistent with
DBM and unilaterally imposed on local governments whether "overseeing", although it is a lesser power than "altering".
or not they are relevant to local needs and resources. It is for
this reason that there should be a genuine interplay, a Cordillera Broad Coalition v. COA (1990)
balancing of viewpoints, and a harmonization of proposals Issue: Constitutionality of EO 220, dated July 15, 1987,
from both the local and national officials. It is for this reason which created the Cordillera Administrative Region - assailed
that the nomination and appointment process involves a on the primary ground that the President pre-empts the
sharing of power between the two levels of government. It enactment of an organic act by Congress and the approval of
may not be amiss to give by way of analogy the procedure such act through a plebiscite.
followed in the appointments of Justices and Judges. Under
Article VIII of the Constitution, nominations for judicial Held: EO 220 envisions the consolidation and
positions are made by the Judicial and Bar Council. coordination of the delivery of services of line departments
DBM’s grave abuse of discretion is aggravated by the fact and agencies of the National Government in the areas
that Dir Galvez required the Governor to submit at least covered by the administrative region as a step preparatory
three other names of nominees better qualified than his to the grant of autonomy to the Cordilleras. It does not
earlier recommendation. The appointment of Almajose was create the autonomous region contemplated in the
formalized before the Governor was extended the courtesy Constitution. It merely provides for transitory measures in
of being informed that his nominee had been rejected. The anticipation of the enactment of an organic act and the
complete disregard of the LGUs prerogative and the smug creation of an autonomous region. In short, it prepares the
belief that the DBM has absolute wisdom, authority, and ground for autonomy. This does not necessarily conflict with
discretion are manifest. In his work, Dean Vicente G. Sinco the provisions of the Constitution on autonomous regions.
stated that the value of LGUs as institutions of democracy is The Constitution outlines a complex procedure for the
measured by the degree of autonomy that they enjoy. He creation of an autonomous region in the Cordilleras which
stated that "local assemblies of citizens constitute the undoubtedly, will take time. The President, in 1987 still
strength of free nations. A people may establish a system of exercising legislative powers, as the first Congress had not
free government but without the spirit of municipal yet convened, saw it fit to provide for some measures to
institutions, it cannot have the spirit of liberty." Our national address the urgent needs of the Cordilleras in the meantime
officials should not only comply with the constitutional the organic act had not yet been passed.
provisions on local autonomy but should also appreciate the Petitioners incidentally argue that the creation of the CAR
spirit of liberty upon which these provisions are based. contravened the constitutional guarantee of the local
autonomy for the provinces composing it. It must be clarified
Ganzon v. Court of Appeals (1991), supra. that the constitutional guarantee of local autonomy in the
Held: The 1987 Constitution did not divest the President Constitution [Art. X, sec. 2] refers to the administrative
[in this case acting through Sec of LocGov] of the power of autonomy of local government units or, in more technical
supervision over LGUs. The change in the constitutional language, the decentralization of government authority. On
language merely underscores local governments' autonomy the other hand, the creation of autonomous regions in
from congress and to break Congress’ "control" over local Muslim Mindanao and the Cordilleras, which is peculiar to the
government affairs. The Constitution did not, however, 1987 Constitution contemplates the grant of political
intend, for the sake of local autonomy, to deprive the autonomy, not just administrative, to these regions. As said
legislature of all authority over municipal corporations, in earlier, the CAR is a mere transitory coordinating agency
particular, concerning discipline. that would prepare the stage for political autonomy for the
Autonomy does not contemplate making mini-states out of Cordilleras. It fills in the resulting gap in the process of
local government units, as in the federal governments of the transforming a group of adjacent territorial and political
21 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

subdivisions already enjoying local or administrative valid, an ordinance must conform to the following
autonomy into an autonomous region vested with political substantive requirements: 1) It must not contravene the
autonomy. constitution or any statute. 2) It must not be unfair or
oppressive. 3) It must not be partial or discriminatory. 4) It
Magtajas v. Pryce Properties Corp, Inc. (1991) must not prohibit but may regulate trade. 5) It must be
Facts: In 1992, representatives from PPC made general and consistent with public policy. 6) It must not be
representations with the Pagcor on the possibility of setting unreasonable.
up a casino in Pryce Plaza Hotel in Cagayan de Oro City. On We begin by observing that under Sec. 458 of the LGC, LGUs
November 1992, the parties executed a contract of lease are authorized to prevent or suppress, among others,
involving the ballroom of the hotel which would be converted "gambling and other prohibited games of chance."
into a casino. Obviously, this provision excludes games of chance which
Way back in 1950, the Sangguniang Panglungsod of CDO are not prohibited but are in fact permitted by law. The
passed Resolution 2295 prohibiting the establishment of a petitioners are less than accurate in claiming that the Code
gambling casino. Resolution 2673, dated October 19, 1992, could have excluded such games of chance but did not. In
reiterated this prohibition. On December 7, 1992, Ordinance fact it does. The language of the section is clear and
No. 3353 was enacted prohibiting the issuance of business unmistakable. We conclude that since the word "gambling" is
permits for the operation of a casino. On January 4, 1993, associated with "and other prohibited games of chance," the
Ordinance 3375-93 was passed prohibiting the operation of word should be read as referring to only illegal gambling
casinos. which, like the other prohibited games of chance, must be
PPC filed a petition for prohibition with preliminary injunction prevented.
against CDO before the CA. It prayed for the declaration of Contravention of PD 1896. The apparent flaw in the
unconstitutionality of Ordinance 3353. Pagcor intervened ordinances in question is that they contravene P.D. 1869 and
claiming that Ordinance 4475 was violative of the non- the public policy embodied therein insofar as they prevent
impairment of contracts and EP clauses. The CA declared the PAGCOR from exercising the power conferred on it to operate
ordinances unconstitutional and void. a casino in CDO. Petitioner deny that the ordinance changed
the PD, rather the LGC itself changed the PD. It seems to us
Issue: WON the Sangguniang Panglungsod has the that the petitioners are playing with words. While insisting
authority to enact said ordinances that the decree has only been "modified pro tanto," they are
actually arguing that it is already dead, repealed and useless
Held: No for all intents and purposes because the Code has shorn
PAGCOR of all power to centralize and regulate casinos.
Ratio: Petitioner’s Contention. CDO, like other local Strictly speaking, its operations may now be not only
political subdivisions, is empowered to enact ordinances for prohibited by the local government unit; in fact, the
the purposes indicated in the LGC. It is expressly vested with prohibition is not only discretionary but mandated by Sec
the police power under what is known as the General 458 of the Code if the word "shall" as used therein is to be
Welfare Clause now embodied in Section 16. In addition, given its accepted meaning. Local government units have
Section 458 declares that the Sangguniang Panglungsod has now no choice but to prevent and suppress gambling, which
the power to approve ordinances and pass resolutions for in the petitioners' view includes both legal and illegal
the efficient and effective city government. The petitioners gambling. Under this construction, PAGCOR will have no
argue that by virtue of these provisions, the Sangguniang more games of chance to regulate or centralize as they must
Panlungsod may prohibit the operation of casinos because all be prohibited by the local government units pursuant to
they involve games of chance, which are detrimental to the the mandatory duty imposed upon them by the Code. In this
people. situation, PAGCOR cannot continue to exist except only as a
The adoption of the LGC, it is pointed out, had the effect of toothless tiger or a white elephant and will no longer be able
modifying the charter of the PAGCOR. The Code is not only a to exercise its powers as a prime source of government
later enactment than P.D. 1869 and so is deemed to prevail revenue through the operation of casinos.
in case of inconsistencies between them. More than this, the It is noteworthy that the petitioners have cited only Par. (f) of
powers of the PAGCOR under the decree are expressly the repealing clause, conveniently discarding the rest of the
discontinued by the Code insofar as they do not conform to provision which painstakingly mentions the specific laws or
its philosophy and provisions, pursuant to Par. (f) of its the parts thereof which are repealed (or modified) by the
repealing clause. It is also maintained that assuming there is Code. Significantly, P.D. 1869 is not one of them.
doubt regarding the effect of the Local Government Code on Furthermore, it is a familiar rule that implied repeals are not
P.D. 1869, the doubt must be resolved in favor of the lightly presumed in the absence of a clear and unmistakable
petitioners, in accordance with the direction in the Code showing of such intention.
calling for its liberal interpretation in favor of the local Moreover, the petitioners' suggestion that the Code
government units. authorizes them to prohibit all kinds of gambling would erase
Morality of Gambling Not Justiciable. The morality of the distinction between these two forms of gambling without
gambling is not a justiciable issue. Gambling is not illegal per a clear indication that this is the will of the legislature. In
se. While it is generally considered inimical to the interests light of all the above considerations, we see no way of
of the people, there is nothing in the Constitution arriving at the conclusion urged on us by the petitioners that
categorically proscribing or penalizing gambling or, for that the ordinances in question are valid. On the contrary, we find
matter, even mentioning it at all. It is left to Congress to deal that the ordinances violate P.D. 1869, which has the
with the activity as it sees fit. In the exercise of its own character and force of a statute, as well as the public policy
discretion, the legislature may prohibit gambling altogether expressed in the decree allowing the playing of certain
or allow it without limitation or it may prohibit some forms of games of chance despite the prohibition of gambling in
gambling and allow others for whatever reasons it may general.
consider sufficient. The only question we can and shall Rationale for the rule that ordinances should not
resolve in this petition is the validity of Ordinance No. 3355 contravene a statute. The rationale of the requirement
and Ordinance No. 3375-93 as enacted by the Sangguniang that the ordinances should not contravene a statute is
Panlungsod of CDO. obvious. Municipal governments are only agents of the
Test of Validity. The tests of a valid ordinance are well national government. Local councils exercise only delegated
established. A long line of decisions 9 has held that to be legislative powers conferred on them by Congress as the
22 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

national lawmaking body. The delegate cannot be superior to even if they be conceded as offending P.D. No. 1869. They
the principal or exercise powers higher than those of the can be reconciled, which is not impossible to do. So
latter. It is a heresy to suggest that the local government reconciled, the ordinances should be construed as not
units can undo the acts of Congress, from which they have applying to PAGCOR.
derived their power in the first place, and negate by mere
ordinance the mandate of the statute. Taule v. Santos (1991)
Municipal corporations owe their origin to, and derive their Facts: On June 18,1989, the Federation of Associations of
powers and rights wholly from the legislature. It breathes Barangay Councils (FABC) of Catanduanes, composed of
into them the breath of life, without which they cannot exist. eleven (11) members convened with six members in
As it creates, so it may destroy. As it may destroy, it may attendance for the purpose of holding the election of its
abridge and control. Unless there is some constitutional officers. The election proceeded with petitioner Ruperto
limitation on the right, the legislature might, by a single act, Taule declared as president.
and if we can suppose it capable of so great a folly and so The governor, Leandro Verceles sent a letter to respondent
great a wrong, sweep from existence all of the municipal Luis Santos, Secretary of DILG protesting the election of the
corporations in the State, and the corporation could not officers of the FABC on the ground of certain irregularities.
prevent it. We know of no limitation on the right so far as to Taule, as president of FABC, filed his comment on the protest
the corporation themselves are concerned. They are, so to of Governor denying the alleged irregularities and
phrase it, the mere tenants at will of the legislature. denouncing the governor’s acts of meddling and intervening
Relationship between national legislature and local in the election. Secretary Santos nullified the election of the
government. This basic relationship between the national officers of FABC and ordered the conduct of a new one.
legislature and the local government units has not been In the present petitioner for certiorari, petitioner seeks the
enfeebled by the new provisions in the Constitution reversal of the resolutions of the respondent Secretary.
strengthening the policy of local autonomy. Without meaning
to detract from that policy, we here confirm that Congress Issue: WON the Comelec has jurisdiction over election
retains control of the local government units although in contests involving the election of officers of the FABC
significantly reduced degree now than under our previous
Constitutions. The power to create still includes the power to Held: No
destroy. The power to grant still includes the power to
withhold or recall. True, there are certain notable innovations Ratio: Under Article IX, C, Section 2(2) of the 1987 Consti,
in the Constitution, like the direct conferment on the local the Comelec shall exercise "exclusive original jurisdiction
government units of the power to tax, which cannot now be over all contests relating to the elections, returns, and
withdrawn by mere statute. By and large, however, the qualifications of all elective regional, provincial, and city
national legislature is still the principal of the local officials, and appellate jurisdiction over all contests involving
government units, which cannot defy its will or modify or elective municipal officials decided by trial courts of general
violate it. jurisdiction, or involving elective barangay officials decided
Casino gambling is authorized by P.D. 1869. This decree has by trial courts of limited jurisdiction." The 1987 Constitution
the status of a statute that cannot be amended or nullified expanded the jurisdiction of the COMELEC by granting it
by a mere ordinance. Hence, it was not competent for the appellate jurisdiction over all contests involving elective
Sangguniang Panlungsod of Cagayan de Oro City to enact municipal officials decided by trial courts of general
Ordinance No. 3353 prohibiting the use of buildings for the jurisdiction or elective barangay officials decided by trial
operation of a casino and Ordinance No. 3375-93 prohibiting courts of limited jurisdiction.
the operation of casinos. For all their praiseworthy motives, The jurisdiction of the COMELEC over contests involving
these ordinances are contrary to P.D. 1869 and the public elective barangay officials is limited to appellate jurisdiction
policy announced therein and are therefore ultra vires and from decisions of the trial courts. The jurisdiction of the
void. COMELEC is over popular elections, the elected officials of
which are determined through the will of the electorate. An
Padilla, concurring: I concur with the majority holding that election is the embodiment of the popular will, the
the city ordinances in question cannot modify much less expression of the sovereign power of the people. Specifically,
repeal PAGCOR's general authority to establish and maintain the term "election," in the context of the Constitution, may
gambling casinos anywhere in the Philippines under refer to the conduct of the polls, including the listing of
Presidential Decree No. 1869. However, despite the legality voters, the holding of the electoral campaign, and the
of the opening and operation of a casino in Cagayan de Oro casting and counting of the votes which do not characterize
City by respondent PAGCOR, I wish to reiterate my view that the election of officers in the Katipunan ng mga barangay.
gambling in any form runs counter to the government's own
efforts to re-establish and resurrect the Filipino moral Issue: WON the Secretary has jurisdiction over the
character which is generally perceived to be in a state of elections contests involving the FABC elections
continuing erosion.
Held: No
Davide, concurring: Wrong mode, not prohibition but
declaratory relief. The issue that necessarily arises is Ratio: The Secretary of Local Government is not vested
whether in granting local governments (such as the City of with jurisdiction to entertain any protest involving the
Cagayan de Oro) the above powers and functions, the Local election of officers of the FABC. There is no question that he
Government Code has, pro tanto, repealed P.D. No. 1869 is vested with the power to promulgate rules and regulations
insofar as PAGCOR's general authority to establish and as set forth in Section 222 of the LGC and the Administrative
maintain gambling casinos anywhere in the Philippines is Code.
concerned. I join the majority in holding that the ordinances Now the question that arises is whether or not a violation of
cannot repeal P.D. No. 1869. said circular vests jurisdiction upon the respondent
The nullification by the Court of Appeals of the challenged Secretary, as claimed by him, to hear a protest filed in
ordinances as unconstitutional primarily because it is in relation thereto and consequently declare an election null
contravention to P.D. No. 1869 is unwarranted. A and void.
contravention of a law is not necessarily a contravention of It is a well-settled principle of administrative law that unless
the constitution. In any case, the ordinances can still stand expressly empowered, administrative agencies are bereft of
23 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

quasi- judicial powers.The jurisdiction of administrative elected president becomes a member of the assembly. If the
authorities is dependent entirely upon the provisions of the president of the FABC assumes his presidency under
statutes reposing power in them; they cannot confer it upon questionable circumstances and is allowed to sit in the
themselves. Such jurisdiction is essential to give validity to sangguniang panlalawigan the official actions of the
their determinations. sanggunian may be vulnerable to attacks as to their validity
There is neither a statutory nor constitutional provision or legality. Hence, respondent governor is a proper party to
expressly or even by necessary implication conferring upon question the regularity of the elections of the officers of the
the Secretary of Local Government the power to assume FABC.
jurisdiction over an election protect involving officers of the
katipunan ng mga barangay. Presidential power over local Issue: WON the election was valid
governments is limited by the Constitution to the exercise of
general supervision "to ensure that local affairs are Held: No
administered according to law." The general supervision is
exercised by the President through the Secretary of Local Ratio: The elections were declared null and void primarily
Government. for failure to comply with Section 2.4 of DLG Circular No. 89-
Supervision vs Control: In administrative law, supervision 09 which provides that "the incumbent FABC President or the
means overseeing or the power or authority of an officer to Vice-President shall preside over the reorganizational
see that the subordinate officers perform their duties. If the meeting, there being a quorum." The rule specifically
latter fails or neglects to fulfill them the former may take provides that it is the incumbent FABC President or Vice-
such action or step as prescribed by law to make them President who shall preside over the meeting. The word
perform their duties. Control, on the other hand, means the "shall" should be taken in its ordinary signification, i.e., it
power of an officer to alter or modify or nullify or set aside must be imperative or mandatory and not merely
what a subordinate officer had done in the performance of permissive, as the rule is explicit and requires no other
his duties and to substitute the judgment of the former for interpretation. If it had been intended that any other official
that of the latter. The fundamental law permits the Chief should preside, the rules would have provided so, as it did in
Executive to wield no more authority than that of checking the elections at the town and city levels as well as the
whether said local government or the officers thereof regional level. It is admitted that neither the incumbent FABC
perform their duties as provided by statutory enactments. President nor the Vice-President presided over the meeting
Hence, the President cannot interfere with local governments and elections but Alberto P. Molina, Jr., the Chairman of the
so long as the same or its officers act within the scope of Board of Election Supervisors/Consultants. Thus, there was a
their authority. Supervisory power, when contrasted with clear violation of the aforesaid mandatory provision. On this
control, is the power of mere oversight over an inferior body; ground, the elections should be nullified.
it does not include any restraining authority over such body. In case at bar, PGOO Molina, the Chairman of the Board,
Construing the constitutional limitation on the power of presided over the elections. There was direct participation by
general supervision of the President over local governments, the Chairman of the Board in the elections contrary to what
We hold that Secretary has no authority to pass upon the is dictated by the rules. Worse, there was no Board of
validity or regularity of the election of the officers of the Election Supervisors to oversee the elections in view of the
katipunan. To allow the Secretary to do so will give him more walk out staged by its two other members, the Provincial
power than the law or the Constitution grants. It will in effect COMELEC Supervisor and the Provincial Treasurer. The
give him control over local government officials for it will objective of keeping the election free and honest was
permit him to interfere in a purely democratic and non- therefore compromised.
partisan activity aimed at strengthening the barangay as the
basic component of local governments so that the ultimate Issue: WON the President’s appointment given to Augusto
goal of fullest autonomy may be achieved. In fact, his order Antonio as temporary representative of the FABC was valid
that the new elections to be conducted be presided by the
Regional Director is a clear and direct interference by the Held: No
Department with the political affairs of the barangays which
is not permitted by the limitation of presidential power to Ratio: In the present controversy involving the
general supervision over local governments. sangguniang panlalawigan, the law is likewise explicit. To be
Indeed, it is the policy of the state to ensure the autonomy of appointed by the President of the Philippines to sit in the
local governments. To deny the Secretary of Local sangguniang panlalawigan is the president of the katipunang
Government the power to review the regularity of the panlalawigan. The appointee must meet the qualifications
elections of officers of the katipunan would be to enhance set by law. The appointing power is bound by law to comply
the avowed state policy of promoting the autonomy of local with the requirements as to the basic qualifications of the
governments. The RTCs have the exclusive original appointee to the sangguniang panlalawigan. The President of
jurisdiction to hear the protest the Philippines or his alter ego, the Secretary of Local
Government, has no authority to appoint anyone who does
Issue: WON the Governor has the personality to file the not meet the minimum qualification to be the president of
protest the federation of barangay councils.
Augusto Antonio is not the president of the federation. He is
Held: Yes a member of the federation but he was not even present
during the elections despite notice. The argument that
Ratio: The Governor has the personality to file the Antonio was appointed as a remedial measure in the
protest. Under Section 205 of the Local Government Code, exigency of the service cannot be sustained. Since Antonio
the membership of the sangguniang panlalawigan consists does not meet the basic qualification of being president of
of the governor, the vice-governor, elective members of the the federation, his appointment to the sangguniang
said sanggunian and the presidents of the katipunang panlalawigan is not justified notwithstanding that such
panlalawigan and the kabataang barangay provincial appointment is merely in a temporary capacity. If the
federation. The governor acts as the presiding officer of the intention of the respondent Secretary was to protect the
sangguniang panlalawigan. As presiding officer of the interest of the federation in the sanggunian, he should have
sagguniang panlalawigan, the respondent governor has an appointed the incumbent FABC President in a hold-over
interest in the election of the officers of the FABC since its capacity. For even under the guidelines, the term of office of
24 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

officers of the katipunan at all levels shall be from the date Section 7 of BP 337, "every local government unit shall
of their election until their successors shall have been duly exercise the powers expressly granted, those necessarily
elected and qualified, without prejudice to the terms of their implied therefrom, as well as powers necessary and proper
appointments as members of the sanggunian to which they for governance such as to promote health and safety,
may be correspondingly appointed. Since the election is still enhance prosperity, improve morals, and maintain peace
under protest such that no successor of the incumbent has and order in the local government unit, and preserve the
as yet qualified, the respondent Secretary has no choice but comfort and convenience of the inhabitants therein."
to have the incumbent FABC President sit as member of the Police power is the power to prescribe regulations to
sanggunian. He could even have appointed petitioner since promote the health, morals, peace, education, good order or
he was elected the president of the federation but not safety and general welfare of the people. It is the most
Antonio. The appointment of Antonio, allegedly the protege essential, insistent, and illimitable of powers. In a sense it is
of respondent Governor, gives credence to petitioner's the greatest and most powerful attribute of the government.
charge of political interference by respondent Governor in The police power of a municipal corporation is broad, and
the organization. This should not be allowed. The barangays has been said to be commensurate with, but not to exceed,
should be insulated from any partisan activity or political the duty to provide for the real needs of the people in their
intervention if only to give true meaning to local autonomy. health, safety, comfort, and convenience as consistently as
may be with private rights. It extends to all the great public
Binay v. Domingo (1991) needs, and, in a broad sense includes all legislation and
Facts: On September 27, 1988, petitioner Municipality, almost every function of the municipal government. It covers
through its Council, approved Resolution No. 60 (A resolution a wide scope of subjects, and, while it is especially occupied
to confirm and/or ratify the ongoing burial assistance with whatever affects the peace, security, health, morals,
program extending P500 to a bereaved family, funds to be and general welfare of the community, it is not limited
taken out of unappropriated available funds existing in the thereto, but is broadened to deal with conditions which
municipal treasury.) Metro Manila Commission approved exists so as to bring out of them the greatest welfare of the
Resolution No. 60. Thereafter, the municipal secretary people by promoting public convenience or general
certified a disbursement fired of P400,000 for the prosperity, and to everything worthwhile for the preservation
implementation of the program. of comfort of the inhabitants of the corporation. Thus, it is
However, COA disapproved Resolution 60 and disallowed in deemed inadvisable to attempt to frame any definition which
audit the disbursement of funds. COA denied the petitioners’ shall absolutely indicate the limits of police power.
reconsideration as Resolution 60 has no connection or COA is not attuned to the changing of the times. Public
relation between the objective sought to be attained and the purpose is not unconstitutional merely because it
alleged public safety, general welfare, etc of the inhabitant incidentally benefits a limited number of persons. As
of Makati. Also, the Resolution will only benefit a few correctly pointed out by the Office of the Solicitor General,
individuals. Public funds should only be used for public "the drift is towards social welfare legislation geared towards
purposes. state policies to provide adequate social services, the
promotion of the general welfare social justice (Section 10,
Issue: WON Resolution No. 60, re-enacted under Ibid) as well as human dignity and respect for human rights.
Resolution No. 243, of the Municipality of Makati is a valid The care for the poor is generally recognized as a public
exercise of police power under the general welfare clause duty. The support for the poor has long been an accepted
exercise of police power in the promotion of the common
Held: Yes good.
There is no violation of the equal protection clause in
Ratio: The police power is a governmental function, an classifying paupers as subject of legislation. Paupers may be
inherent attribute of sovereignty, which was born with reasonably classified. Different groups may receive varying
civilized government. It is founded largely on the maxims, treatment. Precious to the hearts of our legislators, down to
"Sic utere tuo et ahenum non laedas and "Salus populi est our local councilors, is the welfare of the paupers. Thus,
suprema lex Its fundamental purpose is securing the general statutes have been passed giving rights and benefits to the
welfare, comfort and convenience of the people. disabled, emancipating the tenant-farmer from the bondage
Police power is inherent in the state but not in municipal of the soil, housing the urban poor, etc.
corporations). Before a municipal corporation may exercise Resolution No. 60, re-enacted under Resolution No. 243, of
such power, there must be a valid delegation of such power the Municipality of Makati is a paragon of the continuing
by the legislature which is the repository of the inherent program of our government towards social justice. The Burial
powers of the State. A valid delegation of police power may Assistance Program is a relief of pauperism, though not
arise from express delegation, or be inferred from the mere complete. The loss of a member of a family is a painful
fact of the creation of the municipal corporation; and as a experience, and it is more painful for the poor to be
general rule, municipal corporations may exercise police financially burdened by such death. Resolution No. 60
powers within the fair intent and purpose of their creation vivifies the very words of the late President Ramon
which are reasonably proper to give effect to the powers Magsaysay 'those who have less in life, should have more in
expressly granted, and statutes conferring powers on public law." This decision, however must not be taken as a
corporations have been construed as empowering them to precedent, or as an official go-signal for municipal
do the things essential to the enjoyment of life and desirable governments to embark on a philanthropic orgy of inordinate
for the safety of the people. dole-outs for motives political or otherwise.
Municipal governments exercise this power under the
general welfare clause: pursuant thereto they are clothed City Government of Quezon City v. Ericta (1983)
with authority to "enact such ordinances and issue such Facts: Section 9 of Ordinance No 6118 requires that at
regulations as may be necessary to carry out and discharge least 6% of the total area of a memorial park cemetery shall
the responsibilities conferred upon it by law, and such as be set aside for charity burial. For several years, the section
shall be necessary and proper to provide for the health, of the Ordinance was not enforced by city authorities but
safety, comfort and convenience, maintain peace and order, seven years after the enactment of the ordinance, the
improve public morals, promote the prosperity and general Quezon City Council passed the a resolution directing the
welfare of the municipality and the inhabitants thereof, and City Engineer to stop selling memorial park lots where the
insure the protection of property therein." And under
25 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

owners thereof have failed to donate the required 6% space taking without compensation of a certain area from a private
for pauper burial. cemetery to benefit paupers who are charges of the
Respondent reacted by filing with the CFI a petition for municipal corporation. Instead of building or maintaining a
declaratory relief, prohibition and mandamus with public cemetery for this purpose, the city passes the burden
preliminary injunction seeking to annul Section 9 of the to private cemeteries.
Ordinance in question The respondent alleged that the same The expropriation without compensation of a portion of
is contrary to the Constitution, the Quezon City Charter, the private cemeteries is not covered by Section 12(t) of the
Local Autonomy Act, and the Revised Administrative Code. Revised Charter of Quezon City which empowers the city
The Court declared the Section 9 null and void. council to prohibit the burial of the dead within the center of
Petitioners argue that the taking of the respondent's population of the city and to provide for their burial in a
property is a valid and reasonable exercise of police power proper place subject to the provisions of general law
and that the land is taken for a public use as it is intended regulating burial grounds and cemeteries. When the Local
for the burial ground of paupers. They further argue that the Government Code, Batas Pambansa Blg. 337 provides in
Quezon City Council is authorized under its charter, in the Section 177 (q) that a Sangguniang panlungsod may
exercise of local police power. On the other hand, respondent "provide for the burial of the dead in such place and in such
contends that the taking or confiscation of property is manner as prescribed by law or ordinance" it simply
obvious because the ordinance permanently restricts the use authorizes the city to provide its own city owned land or to
of the property such that it cannot be used for any buy or expropriate private properties to construct public
reasonable purpose and deprives the owner of all beneficial cemeteries. This has been the law and practise in the past. It
use of his property. continues to the present. Expropriation, however, requires
payment of just compensation. The questioned ordinance is
Issue: WON Section 9 of the ordinance in question a valid different from laws and regulations requiring owners of
exercise of the police power subdivisions to set aside certain areas for streets, parks,
playgrounds, and other public facilities from the land they
Held: No sell to buyers of subdivision lots. The necessities of public
safety, health, and convenience are very clear from said
Ratio: An examination of the Charter of Quezon City does requirements which are intended to insure the development
not reveal any provision that would justify the ordinance in of communities with salubrious and wholesome
question except the provision granting police power to the environments. The beneficiaries of the regulation, in turn,
City. The power to regulate does not include the power to are made to pay by the subdivision developer when
prohibit (. A fortiori, the power to regulate does not include individual lots are sold to home-owners. As a matter of fact,
the power to confiscate. The ordinance in question not only the petitioners rely solely on the general welfare clause or on
confiscates but also prohibits the operation of a memorial implied powers of the municipal corporation, not on any
park cemetery. express provision of law as statutory basis of their exercise
There are three inherent powers of government by which the of power. The clause has always received broad and liberal
state interferes with the property rights, namely-. (1) police interpretation but we cannot stretch it to cover this
power, (2) eminent domain, (3) taxation. These are said to particular taking. Moreover, the questioned ordinance was
exist independently of the Constitution as necessary passed after Himlayang Pilipino, Inc. had incorporated.
attributes of sovereignty. received necessary licenses and permits and commenced
Police power is defined by Freund as 'the power of promoting operating. The sequestration of six percent of the cemetery
the public welfare by restraining and regulating the use of cannot even be considered as having been impliedly
liberty and property'. It is usually exerted in order to merely acknowledged by the private respondent when it accepted
regulate the use and enjoyment of property of the owner. If the permits to commence operations.
he is deprived of his property outright, it is not taken for
public use but rather to destroy in order to promote the Villanueva v. Castaneda (1987)
general welfare. In police power, the owner does not recover Facts: On November 7, 1961, the municipal council of San
from the government for injury sustained in consequence Fernando adopted Resolution No. 218 authorizing some 24
thereof. The police power being the most active power of the members of the Fernandino United Merchants and Traders
government and the due process clause being the broadest Association to construct permanent stags and sell in the said
station on governmental power, the conflict between this place. A protest was filed and the CFI decided that the land
power of government and the due process clause of the occupied by the petitioners, being public in nature, was
Constitution is oftentimes inevitable. beyond the commerce of man and therefore could not be the
It will be seen from the foregoing authorities that police subject of private occupancy. This decision was not enforced
power is usually exercised in the form of mere regulation or for the petitioners were not evicted. In fact, the petitioners
restriction in the use of liberty or property for the promotion paid daily fees to the municipal government.
of the general welfare. It does not involve the taking or On January 12, 1982, the Association of Concerned Citizens
confiscation of property with the exception of a few cases and Consumers of San Fernando filed a petition for the
where there is a necessity to confiscate private property in immediate implementation of Resolution No. 29, to restore
order to destroy it for the purpose of protecting the peace the subject property "to its original and customary use as a
and order and of promoting the general welfare as for public plaza. Vicente Macalino (officer in charge in the office
instance, the confiscation of an illegally possessed article, of the mayor) required the municipal treasurer and engineer
such as opium and firearms. to demolish the stalls. Petitioners filed a prohibition with the
It seems to the court that Section 9 of Ordinance No. 6118, CFI claiming that the disputed area was leased to them by
Series of 1964 of Quezon City is not a mere police regulation the municipal government. The CFI denied the petition/
but an outright confiscation. It deprives a person of his
private property without due process of law, nay, even Issue: WON the petitioners have a right to the said land
without compensation.
There is no reasonable relation between the setting aside of Held: No
at least six (6) percent of the total area of an private
cemeteries for charity burial grounds of deceased paupers Ratio: There is no question that the place occupied by the
and the promotion of health, morals, good order, safety, or petitioners and from which they are sought to be evicted is a
the general welfare of the people. The ordinance is actually a public plaza pursuant to the previous case. It does not
26 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

appear that the decision in this case was appealed or has necessary and proper to provide for the health and safety,
been reversed. promote the prosperity, improve the morals, peace, good
A public plaza is beyond the commerce of man and so order, comfort, and convenience of the municipality and the
cannot be the subject of lease or any other contractual inhabitants thereof, and for the protection of property
undertaking. This is elementary. Indeed, this point was therein." This authority was validly exercised in this case
settled as early as in Municipality of Cavite vs. Rojas, where through the adoption of Resolution No. 29, by the municipal
the Court declared as null and void the lease of a public council of San Fernando.
plaza of the said municipality in favor of a private person. In Even assuming a valid lease of the property in dispute, the
Muyot vs. de la Fuente, it was held that the City of Manila resolution could have effectively terminated the agreement
could not lease a portion of a public sidewalk on Plaza Sta. for it is settled that the police power cannot be surrendered
Cruz, being likewise beyond the commerce of man. We rule or bargained away through the medium of a contract. In fact,
that the petitioners had no right in the first place to occupy every contract affecting the public interest suffers a
the disputed premises and cannot insist in remaining there congenital infirmity in that it contains an implied reservation
now on the strength of their alleged lease contracts. They of the police power as a postulate of the existing legal order.
should have realized and accepted this earlier, considering This power can be activated at any time to change the
that even before case was decided, the municipal council provisions of the contract, or even abrogate it entirely, for
already adopted Resolution No. 29, declaring the area as the the promotion or protection of the general welfare. Such an
parking place and public plaza of the municipality. act will not militate against the impairment clause, which is
It is the decision in Civil Case No. 2040 and the said subject to and limited by the paramount police power.
resolution of the municipal council of San Fernando that
respondent Macalino was seeking to enforce when he Republic v. Gonzalez (1991)
ordered the demolition of the stags constructed in the Facts: The Republic of the Philippines is the owner of two
disputed area. As officer-in-charge of the office of the mayor, (2) parcels of land situated in Tañong Malabon, Metro Manila.
he had the duty to clear the area and restore it to its This piece of property was formerly a deep swamp until the
intended use as a parking place and public plaza of the occupants thereof, among them appellants Policarpio
municipality of San Fernando, conformably to the orders Gonzales and Augusta Josue, started filling it.
from the court and the council. It is, therefore, not correct to On 14 April 1955, then President Ramon Magsaysay issued
say that he had acted without authority or taken the law into Proclamation No. 144, entitled "Reserving for Street
his hands in issuing his order. Widening and Parking Space Purposes Certain Parcels of the
Neither can it be said that he acted whimsically in exercising Public Domain." Lots 1 and 2 were specifically withdrawn
his authority for it has been established that he directed the from sale or settlement and reserved for the purposes
demolition of the stalls only after, upon his instructions, the mentioned in the Proclamation. The Municipality of Malabon
municipal attorney had conducted an investigation, to look passed Resolution authorizing the filing of ejectment cases
into the complaint filed by the Association of Concerned against appellants. Separate complaints were then filed
Citizens and Consumers of San Fernando. There is evidence against them.
that the petitioners were notified of this hearing, which they Appellants disputed the right of the Government to recover
chose to disregard. Photographs of the disputed area, which the lot as: (a) the already filed sales application with the
does look congested and ugly, show that the complaint was Bureau of Lands, (b) he had a municipal permit to construct
valid and that the area really needed to be cleared, as buildings thereon, (c) the lot occupied was not needed to
recommended by the municipal attorney. widen the street and that the setting aside of the lots for
Since the occupation of the place in question, it has parking space purposes does not redound to the public
deteriorated increasingly to the great prejudice of the benefit. The trial court ordered appellants to reconvey the
community in general. The proliferation of stags therein, property to the government.
most of them makeshift and of flammable materials, has
converted it into a veritable fire trap, which, added to the Issue: WON Proclamation 144 is invalid
fact that it obstructs access to and from the public market
itself, has seriously endangered public safety. The filthy Held: Yes
condition of the talipapa, where fish and other wet items are
sold, has aggravated health and sanitation problems, Ratio: Proclamation No. 144 was issued by then President
besides pervading the place with a foul odor that has spread Ramon Magsaysay in response to several resolutions passed
into the surrounding areas. The entire place is unsightly, to by the Municipal Council of Malabon, Rizal, which had
the dismay and embarrassment of the inhabitants, who want become particularly aware of the increasing vehicular traffic
it converted into a showcase of the town of which they can and congestion along F. Sevilla Boulevard. The Municipal
all be proud. The vendors in the talipapa have also spilled Council had proposed to widen F. Sevilla Boulevard and at
into the street and obstruct the flow of traffic, thereby the same time, to reserve an area for parking space to ease
impairing the convenience of motorists and pedestrians up traffic problems, in anticipation of the completion of the
alike. The regular stallholders in the public market, who pay then proposed market and slaughterhouse located to the
substantial rentals to the municipality, are deprived of a west of F. Sevilla Boulevard. In this day and age, it is hardly
sizable volume of business from prospective customers who open to debate that the public has much to gain from the
are intercepted by the talipapa vendors before they can proposed widening of F. Sevilla Boulevard and from
reach the market proper. On top of all these, the people are establishment of a municipal parking area. Indiscriminate
denied the proper use of the place as a public plaza, where parking along F. Sevilla Boulevard and other main
they may spend their leisure in a relaxed and even beautiful thoroughfares was prevalent; this, of course, caused the
environment and civic and other communal activities of the build up of traffic in the surrounding area to the great
town can be held. discomfort and inconvenience of the public who use the
The problems caused by the usurpation of the place by the streets.
petitioners are covered by the police power as delegated to Under the Land Transportation and Traffic Code, parking in
the municipality under the general welfare clause. This designated areas along public streets or highways is allowed
authorizes the municipal council "to enact such ordinances which clearly indicates that provision for parking spaces
and make such regulations, not repugnant to law, as may be serves a useful purpose.
necessary to carry into effect and discharge the powers and Appellants, however, allege that the benefits, if any, that
duties conferred upon it by law and such as shall seem may be derived from the proposed street-widening and
27 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

parking space will be confined to people who have cars, nearest residential structure, owned by Wilfred G. Tepoot is
hence there would be lacking the essential feature of only 8 inches to the south.
property reserved for public use or benefit. The conception Private respondents filed a case for the declaration of nullity
urged by appellants is both flawed and obsolete since the of the building permit. After conducting an inspection, the
number of users is not the yardstick in determining whether court dismissed the complaint holding that (a) the chapel is
property is properly reserved for public use or public benefit. 55.95 meters away from the funeral parlor and (b) the
In the first place, Section 83 above speaks not only of use by building owned by Mr. Tepoot is being rented to Mr. Asiaten
a local government but also of "quasi-public uses or who devotes said place to his laundry business.
purposes." To constitute public use, the public in general On appeal, the CA reversed. It disagreed with the lower
should have equal or common rights to use the land or court's determination that Tepoot's building was commercial
facility involved on the same terms, however limited in and ruled that although it was used by Mr. Tepoot's lessee for
number the people who can actually avail themselves of it at laundry business, it was a residential lot as reflected in the
a given time. There is nothing in Proclamation No. 144 which tax declaration, thus paving the way for the application of
excludes non-car-owners from using a widened street or a Ordinance No. 363.
parking area should they in fact happen to be driving cars;
the opportunity to avail of the use thereof remains open for Issue: WON petitioner's operation of a funeral home
the public in general. constitutes permissible use within a particular district or
Besides, the benefits directly obtained by car-owners do not zone in Davao City.
determine either the validity or invalidity of Proclamation No.
144. What is important are the long-term benefits which the Held: Yes
proposed street widening and parking areas make available
to the public in the form of enhanced, safe and orderly Ratio: In the case at bar, the testimony of City Councilor
transportation on land. This is the kind of public benefit Vergara shows that Mr. Tepoot's building was used for a dual
envisioned by the Municipal Council of Malabon, Rizal and purpose both as a dwelling and as a place where a laundry
which was sought to be promoted by the President in issuing business was conducted. 8 But while its commercial aspect
Proclamation No. 144. We believe and so hold that has been established by the presence of machineries and
Proclamation No. 144 was lawful and valid. laundry paraphernalia, its use as a residence, other than
Proclamation No. 144 specifically provided that the being declared for taxation purposes as such, was not fully
withdrawal of Lots No. 1 and 2 shall be subject to existing substantiated.
private rights, if any there be. Prior to the issuance of The reversal by the CA of the trial court's decision was based
Proclamation No. 144, appellants had applied for on Tepoot's building being declared for taxation purposes as
miscellaneous sales applications over the lots respectively residential. It is our considered view, however, that a tax
occupied by them. Insofar as appellant Policarpio Gonzales is declaration is not conclusive of the nature of the property for
concerned, it is not disputed that he had acknowledged the zoning purposes. A property may have been declared by its
ownership of the National Government of the land applied owner as residential for real estate taxation purposes but it
for by him. The miscellaneous sales application, however, of may well be within a commercial zone. A discrepancy may
appellant Policarpio Gonzales had not been approved by the thus exist in the determination of the nature of property for
Bureau of Lands at the time Proclamation No. 144 was real estate taxation purposes vis-a-vis the determination of a
issued; the land therefore retained its character as land of property for zoning purposes.
the public domain. Upon the other hand, the miscellaneous Needless to say, even if we are to examine the evidentiary
sales application of appellant Augusto Josue had already value of a tax declaration under the Real Property Tax Code,
been rejected in an Order of the Director of Lands dated 8 a tax declaration only enables the assessor to identify the
January 1954. same for assessment levels. In fact, a tax declaration does
Appellants allege having built mixed residential and not bind a provincial/city assessor, for under Sec. 22 of the
commercial buildings on Lot 2. The evidence of record Real Estate Tax Code, appraisal and assessment are based
discloses that appellants had secured the appropriate on the actual use irrespective of "any previous assessment
municipal permits or licenses therefor, that is, for the or taxpayer's valuation thereon," which is based on a
construction of said buildings as well as the carrying on of taxpayer's declaration. In fact, a piece of land declared by a
business therein. However, since the lease, sale or any other taxpayer as residential may be assessed by the provincial or
form of concession or disposition and management of lands city assessor as commercial because its actual use is
of the public domain was directly under the executive control commercial.
of the Director of Lands, and not of local government The trial court's determination that Mr. Tepoot's building is
officials, the Malabon Municipal Mayor must be held to have commercial and, therefore, Sec. 8 is inapplicable, is
exceeded his authority in allowing the use of lands of the strengthened by the fact that the Sanggunian has declared
public domain to appellants by constructing thereon the questioned area as commercial. Consequently, even if
commercial and residential use buildings, or any other kind Tepoot's building was declared for taxation purposes as
of building for that matter. residential, once a local government has reclassified an area
as commercial, that determination for zoning purposes must
Patalinghug v. CA (1994) prevail. While the commercial character of the questioned
Facts: On November 17, 1982, the Sangguniang vicinity has been declared thru the ordinance, private
Panlungsod of Davao City enacted Ordinance No. 363, series respondents have failed to present convincing arguments to
of 1982 otherwise known as the "Expanded Zoning substantiate their claim that Cabaguio Ave, where the
Ordinance of Davao City." Petitioner was able to obtain a funeral parlor was constructed, was still a residential zone.
building permit for the construction of a funeral parlor. Unquestionably, the operation of a funeral parlor constitutes
Thereafter, petitioner commenced the construction of his a "commercial purpose," as gleaned from Ordinance 363.
funeral parlor. The declaration of the said area as a commercial zone thru a
Acting on the complaint of several residents of Barangay municipal ordinance is an exercise of police power to
Agdao, Davao City that the construction of petitioner's promote the good order and general welfare of the people in
funeral parlor violated Ordinance No. 363, since it was the locality. Corollary thereto, the state, in order to promote
allegedly situated within a 50-meter radius from the Iglesia the general welfare, may interfere with personal liberty, with
ni Kristo Chapel and several residential structures, the property, and with business and occupations. Thus, persons
may be subjected to certain kinds of restraints and burdens
28 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

in order to secure the general welfare of the state and to this Chua Huat v. CA (1991)
fundamental aim of government, the rights of the individual Facts: First case is a petition for review on certiorari of the
may be subordinated. The ordinance which regulates the decision of the CA and the second is a petition for prohibition
location of funeral homes has been adopted as part of with PI directed against the notices of condemnation and
comprehensive zoning plans for the orderly development of demolition orders issued by the City Engineer upon authority
the area covered thereunder. of the City Mayor.
In a civil case, the CFI sentenced the petitioners to pay one
Powers of municipal corporations/local governments Uy certain sums of money as well as to vacate the property
and surrender to the same Uy. The CA affirmed. Petitioners,
8.1 Police Power: except Ong Choan, filed a petition for review on certiorari
with the SC contending that the case is actually an unlawful
Binay v. Domingo ( 1991) – supra. detainer case, and therefore the CFI had no jurisdiction over
Ratio: The police power is a governmental function, an it. The SC denied the petition. After the decision in the civil
inherent attribute of sovereignty, which was born with case became final and executory, the private respondents
civilized government. It is founded largely on the maxims, filed a motion to execute the same. The court granted this.
"Sic utere tuo et ahenum non laedas and "Salus populi est Petitioner Chua Huat filed with the CFI a complaint for the
suprema lex Its fundamental purpose is securing the general annulment of judgment on the ground that the CFI has no
welfare, comfort and convenience of the people. jurisdiction over the civil case which was one for ejectment
Police power is inherent in the state but not in municipal and not for recovery of possession. Despite the case, the CFI
corporations). Before a municipal corporation may exercise ordered the execution of the judgment. The petitioners filed
such power, there must be a valid delegation of such power a Petition for Certiorari and Prohibition with the CA to set
by the legislature which is the repository of the inherent aside the order of execution of judgment and to prohibit the
powers of the State. A valid delegation of police power may respondents from executing the judgment. The CA denied
arise from express delegation, or be inferred from the mere the petition for lack of merit. The CA invoked finality of
fact of the creation of the municipal corporation; and as a judgment and res judicata. On appeal, petitioners contend
general rule, municipal corporations may exercise police that there is no res judicata as there is no identity of causes
powers within the fair intent and purpose of their creation of action (annulment of judgment, recovery of poseession).
which are reasonably proper to give effect to the powers
expressly granted, and statutes conferring powers on public Issue: WON the present action is barred by res judicata
corporations have been construed as empowering them to
do the things essential to the enjoyment of life and desirable Held: Yes
for the safety of the people.
Municipal governments exercise this power under the Ratio: The records of the two cases will bear it out that the
general welfare clause: pursuant thereto they are clothed issue of lack of jurisdiction (which is the cause of action in
with authority to "enact such ordinances and issue such Civil Case No. 119751) has been squarely ruled upon, not
regulations as may be necessary to carry out and discharge only by the trial court in Civil Case No. 74634 but also by the
the responsibilities conferred upon it by law, and such as Court of Appeals and by the Supreme Court.
shall be necessary and proper to provide for the health, Plaintiff-appellant further contends that since the issue of
safety, comfort and convenience, maintain peace and order, jurisdiction in Civil Case No. 74634 was raised in their MR
improve public morals, promote the prosperity and general before the CA in CA-G.R. No. 51337-R, the CA did not, in its
welfare of the municipality and the inhabitants thereof, and resolution denying said motion, pass on the same and on
insure the protection of property therein." And under appeal by petition for review to the Supreme Court in L-
Section 7 of BP 337, "every local government unit shall 47603 and L-48649, where the same issue among others
exercise the powers expressly granted, those necessarily was raised, the High Court in its minutes' (sic) did not rule
implied therefrom, as well as powers necessary and proper squarely on said issue. We find the same likewise untenable.
for governance such as to promote health and safety, Issues raised by the parties in their brief and passed upon
enhance prosperity, improve morals, and maintain peace subsilencio by the appellate court in a decision which has
and order in the local government unit, and preserve the become final and executory are considered closed and can
comfort and convenience of the inhabitants therein." no longer be revived by the parties in a subsequent litigation
Police power is the power to prescribe regulations to without doing violence to the principle of res judicata.
promote the health, morals, peace, education, good order or What more, neither the Supreme Court nor the Appellate
safety and general welfare of the people. It is the most Court is duty bound to discuss the pros and cons of
essential, insistent, and illimitable of powers. In a sense it is appellant's argument.
the greatest and most powerful attribute of the government.
The police power of a municipal corporation is broad, and Tatel v. Mun. of Virac (1992)
has been said to be commensurate with, but not to exceed, Facts: On the basis of the complaints received from the
the duty to provide for the real needs of the people in their residents of barrio Sta. Elena against the disturbance caused
health, safety, comfort, and convenience as consistently as by the operation of the abaca bailing machine inside
may be with private rights. It extends to all the great public petitioner’s warehouse which emitted obnoxious odor and
needs, and, in a broad sense includes all legislation and dust, a committee was appointed by the municipal council of
almost every function of the municipal government. It covers Virac to investigate the matter. The committee noted that
a wide scope of subjects, and, while it is especially occupied the warehouse was near residential houses and that the
with whatever affects the peace, security, health, morals, inflammable materials inside created danger to the lives and
and general welfare of the community, it is not limited properties of the people within the neighborhood. Resolution
thereto, but is broadened to deal with conditions which 29 was passed by the Municipal Council declaring the
exists so as to bring out of them the greatest welfare of the warehouse as a public nuisance within the purview of Article
people by promoting public convenience or general 694 of the CC. The petitioner’s MR was denied.
prosperity, and to everything worthwhile for the preservation Petitioner filed a petition for prohibition with preliminary
of comfort of the inhabitants of the corporation. Thus, it is injunction with the CFI enjoining them from enforcing
deemed inadvisable to attempt to frame any definition which Resolution 29 of the Council. The municipal officials contend
shall absolutely indicate the limits of police power. that the warehouse was constructed in violation of
29 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

Ordinance No. 134, s 1952, prohibiting the construction of Ordinance 13 is no reason to claim that the ordinance is
warehouses near a block of houses either in the poblacion or discriminatory. A distinction must be made between the law
barrios without maintaining the necessary distance of 200 itself and the manner in which said law is implemented by
meters from said block of houses to avoid loss of lives and the agencies in charge with its administration/enforcement.
properties by accidental fire. Petitioner contends that said There is no valid reason for the petitioner to complain, in the
ordinance is unconstitutional, contrary to the due process absence of proof that the other bodegas mentioned by him
and equal protection clause of the Constitution and null and are operating in violation of the ordinance and that the
void for not having been passed in accordance with law. The complaints have been lodged against the bodegas
court ruled in favor of the municipal council and held that concerned without the municipal authorities doing anything
the ordinance was a legitimate and valid exercise of police about it.
power by the municipal council. The objections interposed by the petitioner to the validity of
the ordinance have not been substantiated. Its purpose is
Issue: WON the enactment was pursuant to a legitimate well within the objectives of sound government. No undue
exercise of police power restraint is placed upon the petitioner or for anybody to
engage in trade but merely a prohibition from storing
Held: Yes inflammable products in the warehouse because of the
danger of fire to the lives and properties of the people
Ratio: Ordinance No. 13, series of 1952, was passed by residing in the vicinity. As far as public policy is concerned,
the Municipal Council of Virac in the exercise of its police there can be no better policy than what has been conceived
power. It is a settled principle of law that municipal by the municipal government.
corporations are agencies of the State for the promotion and
maintenance of local self-government and as such are Power of Mayor to issue permits for rallies; BP 880
endowed with the police powers in order to effectively
accomplish and carry out the declared objects of their Bayan v. Ermita (2006)
creation. Its authority emanates from the general welfare Issue: They have, in fact, purposely engaged in public
clause under the Administrative Code. assemblies without the required permits to press their claim
For an ordinance to be valid, it must not only be within the that no such permit can be validly required without violating
corporate powers of the municipality to enact but must also the Constitutional guarantee.  PERMIT IS REQUIRED! LG
be passed according to the procedure prescribed by law, and SHOULD PLACE FREEDOM PARKS!
must be in consonance with certain well established and
basic principles of a substantive nature. These principles Petitioners’ standing cannot be seriously challenged. Their
require that a municipal ordinance (1) must not contravene right as citizens to engage in peaceful assembly and
the Constitution or any statute (2) must not be unfair or exercise the right of petition, as guaranteed by the
oppressive (3) must not be partial or discriminatory (4) must Constitution, is directly affected by B.P. No. 880 which
not prohibit but may regulate trade (5) must be general and requires a permit for all who would publicly assemble in the
consistent with public policy, and (6) must not be national streets and parks.
unreasonable. Ordinance No. 13, s1952, meets these
criteria. There is no question as to the petitioners rights to peaceful
In spite of its fractured syntax, basically, what is regulated assembly to petition the government for a redress of
by the ordinance is the construction of warehouses wherein grievances and, for that matter, to organize or form
inflammable materials are stored where such warehouses associations for purposes not contrary to law, as well as to
are located at a distance of 200 meters from a block of engage in peaceful concerted activities. These rights are
houses and not the construction per se of a warehouse. The guaranteed by no less than the Constitution, particularly
purpose is to avoid the loss of life and property in case of fire Sections 4 and 8 of the Bill of Rights, Section 2(5) of Article
which is one of the primordial obligation of the government. IX, and Section 3 of Article XIII. Jurisprudence abounds with
Experience, however, will show that this is not uncommon in hallowed pronouncements defending and promoting the
law making bodies in small towns where local authorities and peoples exercise of these rights.
in particular the persons charged with the drafting and There are, of course, well-defined limits. What is guaranteed
preparation of municipal resolutions and ordinances lack is peaceable assembly. One may not advocate disorder in
sufficient education and training and are not well grounded the name of protest, much less preach rebellion under the
even on the basic and fundamental elements of the English cloak of dissent. The Constitution frowns on disorder or
language commonly used throughout the country in such tumult attending a rally or assembly. Resort to force is ruled
matters. out and outbreaks of violence to be avoided. The utmost
The ambiguity therefore is more apparent than real and calm though is not required. As pointed out in an early
springs from simple error in grammar but otherwise, the Philippine case, penned in 1907 to be precise, United States
meaning and intent is clear that what is prohibited is the v. Apurado: "It is rather to be expected that more or less
construction or maintenance of warehouses for the storage disorder will mark the public assembly of the people to
of inflammable articles at a distance within 200 meters from protest against grievances whether real or imaginary,
a block of houses either in the poblacion or in the barrios. because on such occasions feeling is always wrought to a
And the purpose of the ordinance is to avoid loss of life and high pitch of excitement, and the greater the grievance and
property in case of accidental fire which is one of the the more intense the feeling, the less perfect, as a rule, will
primordial and basic obligation of any government. be the disciplinary control of the leaders over their
As to the contention, that warehouses similarly situated as irresponsible followers." It bears repeating that for the
that of the petitioner were not prosecuted, the mere fact constitutional right to be invoked, riotous conduct, injury to
that the municipal authorities have not proceeded against property, and acts of vandalism must be avoided. To give
other warehouses in the municipality allegedly violating free rein to one’s destructive urges is to call for
condemnation. It is to make a mockery of the high estate
TION OF WAREHOUSE IN ANY FORM NEAR A BLOCK OF Held: In this Decision, the Court goes even one step
HOUSES EITHER IN POBLACION OR BARRIO WITH NECESSARY further in safeguarding liberty by giving local governments a
DISTANCE TO AVOID GREAT LOSSES OF PROPERTY AND LIVES deadline of 30 days within which to designate specific
BY FIRE ACCIDENT. freedom parks as provided under B.P. No. 880. If, after that
30 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

period, no such parks are so identified in accordance with dealing in, petroleum products subject to the specific tax
Section 15 of the law, all public parks and plazas of the under the NIRC.
municipality or city concerned shall in effect be deemed Respondent enacted Municipal Tax Ordinance No. 1, S-1974
freedom parks; no prior permit of whatever kind shall be otherwise known as "The Pililla Tax Code of 1974" which took
required to hold an assembly therein. The only requirement effect on July 1, 1974. Sections 9 and 10 of the said
will be written notices to the police and the mayor’s office to ordinance imposed a tax on business, except for those for
allow proper coordination and orderly activities. which fixed taxes are provided in the Local Tax Code on
manufacturers, importers, or producers of any article of
Disposition. Petition GRANTED and respondents are commerce of whatever kind or nature, including brewers,
DIRECTED comply with Section 15 of BP No. 880 through distillers, rectifiers, repackers, and compounders of liquors,
the establishment or designation of at least one suitable distilled spirits and/or wines in accordance with the schedule
freedom park or plaza in every city and municipality of the found in the Local Tax Code, as well as mayor's permit,
country. After 30 days from the finality of this Decision, sanitary inspection fee and storage permit fee for
subject to the giving of advance notices, no prior permit flammable, combustible or explosive substances, while
shall be required to exercise the right to peaceably assemble Section 139 of the disputed ordinance imposed surcharges
and petition in the public parks or plazas of a city or and interests on unpaid taxes, fees or charges .
municipality that has not yet complied with Section 15 of the On April 13, 1974, P.D. 436 was promulgated increasing the
law. Furthermore, Calibrated Preemptive Response (CPR), specific tax on lubricating oils, gasoline, bunker fuel oil,
insofar as it would purport to differ from or be in lieu of diesel fuel oil and other similar petroleum products levied
maximum tolerance, is VOID. The constitutionality of Batas under Sections 142, 144 and 145 of the NIRC, and granting
Pambansa No. 880 is SUSTAINED. provinces, cities and municipalities certain shares in the
specific tax on such products in lieu of local taxes imposed
8.2 Power of taxation: local taxes and real property tax on petroleum products. The questioned Municipal Tax
Ordinance No. 1 was reviewed and approved by the
Local taxation: Provincial Treasurer of Rizal, but was not implemented and/or
enforced by the Municipality of Pililla because of its having
Basco v. Phil Amusement and Gaming Corp (1991) been suspended up to now in view of Provincial Circular Nos.
Manila, being a mere municipal corporation, has no inherent 26-73 and 26 A-73.
right to impose taxes. Congress has the power of control On June 3, 1977, P.D. 1158 otherwise known as the National
over local governments. If Congress can grant Manila the Internal Revenue Code of 1977 was enacted, Section 153 of
power to tax certain matters, it can also provide for which specifically imposes specific tax on refined and
exemptions or even take back the power. manufactured mineral oils and motor fuels.
LGUs also have no power to tax instrumentalities of the Enforcing the provisions of the ordinance, the respondent
National Government. PAGCOR, being such, should be and filed a complaint against PPC for the collection of the
actually is exempt from local taxes. Otherwise, mere business tax from 1979 to 1986; storage permit fees from
creatures of the State can defeat national policies thru 1975 to 1986; mayor's permit and sanitary inspection fees
extermination of what local authorities may perceive to be from 1975 to 1984. PPC, however, have already paid the
undesirable activities or enterprise using the power to tax as last-named fees starting 1985. The RTC rendered a decision
a tool for regulation. against petitioner.
From class notes: LGU no inherent power to tax? Not
exactly true, because there is constitutional basis (but can’t Issue: WON PPC whose oil products are subject to specific
say that it is inherent) BASCO IS NO LONGER GOOD tax under the NIRC, is still liable to pay (a) tax on business
LAW!!! and (b) storage fees, considering Provincial Circular No. 6-77;
and mayor's permit and sanitary inspection fee unto the
respondent Municipality of Pililla, Rizal, based on Municipal
Phil Petroleum Corp v. Mun. of Pililia (1991)
Ordinance No. 1
Facts: Petitioner is a business enterprise engaged in the
manufacture of lubricated oil basestock which is a petroleum Held: Yes
product, with its refinery plant situated at Malaya, Pililla,
Rizal. PPC owns and maintains an oil refinery including 49 Ratio: PPC contends that: (a) Provincial Circular No. 2673
storage tanks for its petroleum products in Malaya, Pililla, declared as contrary to national economic policy the
Rizal. Under Section 142 of the NIRC of 1939, manufactured imposition of local taxes on the manufacture of petroleum
oils and other fuels are subject to specific tax. products as they are already subject to specific tax under
On June 28, 1973, PD 231 (Local Tax Code) was issued the National Internal Revenue Code; (b) the above
enacted. Sections 19 and 19 (a) provide that the declaration covers not only old tax ordinances but new ones,
municipality may impose taxes on business, except on those as well as those which may be enacted in the future; (c) both
for which fixed taxes are provided on manufacturers, Provincial Circulars (PC) 26-73 and 26 A-73 are still effective,
importers or producers of any article of commerce of hence, unless and until revoked, any effort on the part of the
whatever kind or nature, including brewers, distillers, respondent to collect the suspended tax on business from
rectifiers, repackers, and compounders of liquors, distilled the petitioner would be illegal and unauthorized; and (d)
spirits and/or wines in accordance with the schedule listed Section 2 of P.D. 436 prohibits the imposition of local taxes
therein. on petroleum products.
The Secretary of Finance issued Provincial Circular No. 26-73 PC No. 26-73 and PC No. 26 A-73 suspended the effectivity
(December 27, 1973) directed to all provincial, city and of local tax ordinances imposing a tax on business under
municipal treasurers to refrain from collecting any local tax Section 19 (a) of the Local Tax Code, with regard to
imposed in old or new tax ordinances in the business of manufacturers, retailers, wholesalers or dealers in petroleum
manufacturing, wholesaling, retailing, or dealing in products subject to the specific tax under the NIRC, in view
petroleum products subject to the specific tax under the of Section 22 (b) of the Code regarding non-imposition by
NIRC. Provincial Circular No. 26 A-73 (January 9, 1973)was municipalities of taxes on articles, subject to specific tax
also issued instructing all City Treasurers to refrain from under the provisions of the NIRC.
collecting any local tax imposed in tax ordinances enacted There is no question that Pililla's Municipal Tax Ordinance No.
before or after the effectivity of the Local Tax Code, on the 1 imposing the assailed taxes, fees and charges is valid
businesses of manufacturing, wholesaling, retailing, or
31 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

especially Section 9 (A) which according to the trial court Municipality of Pililla can therefore enforce the collection of
"was lifted in toto and/or is a literal reproduction of Section the tax on business of petitioner PPC due from 1976 to 1986,
19 (a) of the Local Tax Code as amended by P.D. No. 426." It and NOT the tax that had accrued prior to 1976.
conforms with the mandate of said law.
But P.D. No. 426 amending the Local Tax Code is deemed to Floro Cement Corporation v. Gorospe (1991)
have repealed Provincial Circular Nos. 26-73 and 26 A-73 Facts: The municipality of Lugait filed with the SC a
issued by the Secretary of Finance when Sections 19 and 19 verified complaint for collection of taxes against the
(a), were carried over into P.D. No. 426 and no exemptions defendant Floro Cement Corporation. The taxes sought to be
were given to manufacturers, wholesalers, retailers, or collected by the plaintiff refers to "manufacturers" and'
dealers in petroleum products. exporter's "taxes for the period from January 1, 1974 to
Well-settled is the rule that administrative regulations must September 30, 1975, inclusive, in the total amount of
be in harmony with the provisions of the law. In case of P161,875.00 plus 25% thereof as surcharge. Plaintiff alleged
discrepancy between the basic law and an implementing that the imposition and collection of these taxes" is based on
rule or regulation, the former prevails. Furthermore, while its Municipal Ordinance No. 5, otherwise known as the
Section 2 of P.D. 436 prohibits the imposition of local taxes Municipal Revenue Code of 1974, which was passed
on petroleum products, said decree did not amend Sections pursuant to PD 231 and also Municipal Ordinance No. 10
19 and 19 (a) of P.D. 231 as amended by P.D. 426, wherein passed pursuant PD 426,amending PD 231.
the municipality is granted the right to levy taxes on Petitioner set up the defense that it is not liable to pay
business of manufacturers, importers, producers of any manufacturer's and exporter's taxes alleging among others
article of commerce of whatever kind or nature. A tax on that the plaintiffs power to levy and collect taxes, fees,
business is distinct from a tax on the article itself. Thus, if rentals, royalties or charges of any kind whatsoever on
the imposition of tax on business of manufacturers, etc. in defendant has been limited or withdrawn by Section 52 of PD
petroleum products contravenes a declared national policy, 463. It also contended that the defendant was granted by
it should have been expressly stated in P.D. No. 436. the Secretary of Agriculture and Natural Resources a
The exercise by local governments of the power to tax is Certificate of Qualification for Tax Exemption, entitling
ordained by the present Constitution. To allow the continuous defendant to exemption for a period of 5 years from April
effectivity of the prohibition set forth in PC No. 26-73 (1) 30,1969 to April 29, 1974 from payment of all taxes, except
would be tantamount to restricting their power to tax by income tax, and which Certificate was amended on
mere administrative issuances. Under Section 5, Article X of November 5, 1974 CQTE P.D. 463-22), entitling defendant to
the 1987 Constitution, only guidelines and limitations that exemption from all taxes, duties and fees except income tax,
may be established by Congress can define and limit such for five (5) years from the first date of actual commercial
power of local governments. production of saleable mineral products that is from May 17,
Provincial Circular No. 6-77 enjoining all city and municipal 1974 to January 1, 1978; and that RA 3823, as implemented
treasurers to refrain from collecting the so-called storage fee by Mines Administrative Order No. V-25, and P.D. No. 463
on flammable or combustible materials imposed in the local which are the basis for the exemption granted to defendant
tax ordinance of their respective locality frees petitioner PPC are special laws whereas, the municipal ordinance
from the payment of storage permit fee. mentioned in the complaint which are based on P.D. No. 231
The storage permit fee being imposed by Pililla's tax and P.D No. 426, respectively, are general laws; and that it is
ordinance is a fee for the installation and keeping in storage axiomatic that a special law can not be amended and/or
of any flammable, combustible or explosive substances. repealed by a general law unless there is an express intent
Inasmuch as said storage makes use of tanks owned not by to repeal or abrogate the provisions of the special law. The
the municipality of Pililla, but by petitioner PPC, same is trial court rendered a decision ordering defendant to pay the
obviously not a charge for any service rendered by the amount of P161,875 as manufacturer’s and exporter’s taxes
municipality as what is envisioned in Section 37 of the same and surcharges.
Section 10 (z) (13) of Pililla's Municipal Tax Ordinance No. 1 Issue: WON Ordinances Nos. 5 and 10 of Lugait apply to
prescribing a permit fee is a permit fee allowed under Floro Corporation notwithstanding the limitation on the
Section 36 of the amended Code. taxing power of local government as provided for in Sec. 52
As to the authority of the mayor to waive payment of the of P.D. 231 and Sec. 52 of P.D. 463.
mayor's permit and sanitary inspection fees, the trial court
did not err in holding that "since the power to tax includes Held: Yes
the power to exempt thereof which is essentially a legislative
prerogative, it follows that a municipal mayor who is an Ratio: Floro Cement Corporation holds that since
executive officer may not unilaterally withdraw such an Ordinances Nos. 5 and 10 were enacted pursuant to P.D. No.
expression of a policy thru the enactment of a tax." The 231 and P.D. No. 426, respectively, said ordinances do not
waiver partakes of the nature of an exemption. It is an apply to its business in view of the limitation on the taxing
ancient rule that exemptions from taxation are construed in power of local government provided in Sec. 5m of P.D. No.
strictissimi juris against the taxpayer and liberally in favor of 231 [(m) Taxes on mines, mining operations and mineral
the taxing authority. Tax exemptions are looked upon with products and their by-products when sold domestically by
disfavor. Thus, in the absence of a clear and express the operator.]. Petitioner likewise contends that cement is a
exemption from the payment of said fees, the waiver cannot mineral product, relying on the case of Cebu Portland
be recognized. As already stated, it is the law-making body, Cement Company vs. CIR. Petitioner further contends that
and not an executive like the mayor, who can make an the partial exemption was rendered absolute by Sec. 52 of
exemption. Under Section 36 of the Code, a permit fee like P.D. No. 463, which expressly prohibits the province, city
the mayor's permit, shall be required before any individual or municipality, barrio and municipal district from levying and
juridical entity shall engage in any business or occupation collecting taxes, fees, rentals, royalties or charges of any
under the provisions of the Code. kind whatsoever on mines, mining claims and mineral
However, since the Local Tax Code does not provide the products, any law to the contrary notwithstanding.
prescriptive period for collection of local taxes, Article 1143 On other hand, while respondent municipality admits that
of the Civil Code applies. Said law provides that an action petitioner undertakes exploration, development and
upon an obligation created by law prescribes within ten (10) exploitation of mineral products, the taxes sought to be
years from the time the right of action accrues. The collected were not imposed on these activities in view of the
32 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

mentioned prohibition under Sec. 52 of P.D. No. 463. Said declaratory judgment against the said resolution (and the
taxes were levied on the corporation's business of implementing agreement) for being illegal either as a
manufacturing and exporting cement. The business of donation or as a tax measure. The trial court upheld the
manufacturing and exporting cement does not fall under challenged measure. However, it dismissed the claims for
exploration, development nor exploitation of mineral damages of both parties for lack of evidence. The CA
resources as defined in Sec. 2 of P.D. No. 463, hence, it is affirmed, nevertheless, it found Tuzon and Mapagu to have
outside the scope of application of Sec. 52 of said decree. acted maliciously and in bad faith when they denied Jurado's
On the question of whether or not cement is a mineral application for the mayor's permit and license.
product, this Court has held that it is not a mineral product Consequently, they were held liable to pay damages.
but rather a manufactured product. While cement is On appeal, petitioners stress that they were acting in their
composed of 80% minerals, it is not merely an admixture or official capacity and therefore they should not be liable for
blending of raw materials, as lime, silica, shale and others. It damages. Jurado claimed that the refusal to issue the permit
is the result of a definite process-the crushing of minerals, and license constituted bad faith on the part of petitioners.
grinding, mixing, calcining adding of retarder or raw gypsum Also, he claimed that Resolution 9 contravened the
In short, before cement reaches its saleable form, the limitations on the taxing powers of LGUs under Section 5 of
minerals had already undergone a chemical change through the Tax Code.
manufacturing process. It appears that the foregoing cases
overruled the case of Cebu Portland Cement Company vs. Issue: WON the Resolution is valid
CIR which was cited by petitioner.
On the exemption claimed by petitioner, this Court has laid Held: Yes
down the rule that as the power of taxation is a high
prerogative of sovereignty, the relinquishment is never Ratio: We need not concern ourselves at this time with
presumed and any reduction or diminution thereof with the validity of Resolution 9 and the implementing agreement
respect to its mode or its rate, must be strictly construed, because the issue has not been raised in this petition as an
and the same must be coached in clear and unmistakable assigned error of the respondent court. The measures have
terms in order that it may be applied. More specifically been sustained in the challenged decision, from which the
stated, the general rule is that any claim for exemption from respondent has not appealed. The decision is final and
the tax statute should be strictly construed against the binding as to him. We may observe at this time that in
taxpayer. He who claims an exemption must be able to point sustaining Resolution No. 9, the CA said no more than that:
out some provision of law creating the right; it cannot be “It was passed by the Sangguniang Bayan of Camalaniugan
allowed to exist upon a mere vague implication or inference. in the lawful exercise of its legislative powers in pursuance
It must be shown indubitably to exist, for every presumption to Article XI, Section 5 of the 1973 Constitution which
is against it, and a well-founded doubt is fatal to the claim. provided that: "Each local government unit shall have the
The petitioner failed to meet this requirement. power to create its own source of revenue and to levy taxes,
As held by the lower court, the exemption mentioned in Sec. subject to such limitation as may be provided by law." And
52 of P.D. No. 463 refers only to machineries, equipment, under Article 4, Section 29 of PD 231 (Enacting a Local Tax
tools for production, etc., as provided in Sec. 53 of the same Code for Provinces, Cities, Municipalities and Barrios), it is
decree. The manufacture and the export of cement does not provided that:
fall under the said provision for it is not a mineral product. It Section 29. Contributions.In addition to the above specified
is not cement that is mined only the mineral products taxing and other revenue-raising powers, the barrio council
composing the finished product. may solicit monies, materials, and other contributions from
Furthermore, by the parties' own stipulation of facts the following sources: (c) Monies from private agencies and
submitted before the court a quo, it is admitted that Floro individuals."
Cement Corporation is engaged in the manufacturing and That is an over simplification. The CA has not offered any
selling, including exporting of cement. As such, and since the explanation for its conclusion that the challenged measures
taxes sought to be collected were levied on these activities are valid nor does it discuss its own concept of the nature of
pursuant to Sec. 19 of P.D. No. 231, Ordinances Nos. 5 and the resolution.
10, which were enacted pursuant to P.D. No. 231 and P.D. No. While it would appear from the wording of the resolution that
426, respectively, properly apply to petitioner. the municipal government merely intends to "solicit" the 1%
contribution from the threshers, the implementing
Tuzon and Mapagu v. CA (1992) agreement seems to make the donation obligatory and a
Facts: On March 14, 1977, Sangguniang Bayan of condition precedent to the issuance of the mayor's permit.
Camalaniugan, Cagayan, adopted Resolution No. 95 Soon This goes against the nature of a donation, which is an act of
Saturnino Jurado sent his agent to the municipal treasurer's liberality and is never obligatory.
office to pay the license fee of P285 for thresher operators. If, on the other hand, it is to be considered a tax ordinance,
Mapagu refused to accept the payment and required him to then it must be shown in view of the challenge raised by the
first secure a mayor's permit. For his part, Mayor Domingo private respondents to have been enacted in accordance
Tuzon said that Jurado should first comply with Resolution 9 with the requirements of the Local Tax Code. These would
and sign the agreement before the permit could be issued. include the holding of a public hearing on the measure and
Jurado ignored the requirement. Instead, he sent the P285 its subsequent approval by the Secretary of Finance, in
license fee by postal money order to the office of the addition to the usual requisites for publication of ordinances
treasurer who, returned the said amount. The reason given in general.
was the failure of the respondent to comply with Resolution
No. 9. Issue: WON petitioners are liable for damages
Jurado filed with the CFICagayan a special civil action for
mandamus with actual and moral damages to compel the Held: No
issuance of the mayor's permit and license. He also filed a
Ratio: The private respondent anchors his claim for
5 damages on Article 27 CC (Refusal to Render Service). It has
Find raising scheme to finance the construction of the been remarked that one purpose of this article is to end the
Sports and Nutrition Center Building by soliciting 1% "bribery system, where the public official, for some flimsy
donation form the thresher operators who will apply for a excuse, delays or refuses the performance of his duty until
permit to thresh within the municipality.
33 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

he gets some kind of pabagsak." Official inaction may also grantee shall further pay to the Treasurer of the Philippines
be due to plain indolence or a cynical indifference to the each year, within ten days after the audit and approval of
responsibilities of public service. The provision presupposes the accounts as prescribed in this Act, one and one-half per
that the refusal or omission of a public official to perform his centum of all gross receipts from the business transacted
official duty is attributable to malice or inexcusable under this franchise by the said grantee
negligence. In any event, the erring public functionary is The LGC took effect and granted the LGUS within Metro
justly punishable under this article for whatever loss or Manila the power to levy on real properties. On July 20,
damage the complainant has sustained. 1992, barely few months after the LGC took effect, Congress
In the present case, it has not even been alleged that the enacted RA 7633, amending Bayantel's original franchise.
Mayor Tuzon's refusal to act on the private respondent's The amendatory law contained an in lieu of taxes clause
application was an attempt to compel him to resort to (3%).
bribery to obtain approval of his application. It cannot be In 1993, the government of Quezon City, pursuant to the
said either that the mayor and the municipal treasurer were taxing power vested on local government units by Section 5,
motivated by spite or were grossly negligent in refusing to Article X of the 1987 Constitution, infra, in relation to Section
issue the permit and license to Jurado. 232 of the LGC, supra, enacted City Ordinance No. SP-91, S-
It is no less significant that no evidence has been offered to 93, otherwise known as the Quezon City Revenue Code
show that the petitioners singled out the private respondent (QCRC), 5 imposing, under Section 5 thereof, a real property
for persecution. Neither does it appear that the petitioners tax on all real properties in Quezon City, and, reiterating in
stood to gain personally from refusing to issue to Jurado the its Section 6, the withdrawal of exemption from real property
mayor's permit and license he needed. The petitioners were tax under Section 234 of the LGC, supra. Furthermore, much
not Jurado's business competitors nor has it been like the LGC, the QCRC, under its Section 230, withdrew tax
established that they intended to favor his competitors. On exemption privileges in general.
the contrary, the record discloses that the resolution was Conformably with the City's Revenue Code, new tax
uniformly applied to all the threshers in the municipality declarations for Bayantel's real properties in Quezon City
without discrimination or preference. were issued by the City Assessor and were received by
The Court is convinced that the petitioners acted within the Bayantel on August 13, 1998, except one (Tax Declaration
scope of their authority and in consonance with their honest No. 124-01013) which was received on July 14, 1999.
interpretation of the resolution in question. We agree that it Meanwhile, on March 16, 1995, Rep. Act No. 7925, otherwise
was not for them to rule on its validity. In the absence of a known as the "Public Telecommunications Policy Act of the
judicial decision declaring it invalid, its legality would have to Philippines," envisaged to level the playing field among
be presumed (in fact, both the trial court and the appellate telecommunications companies, took effect. Section 23 of
court said there was nothing wrong with it). As executive the Act provides an equality clause.
officials of the municipality, they had the duty to enforce it On January 7, 1999, Bayantel wrote the office of the City
as long as it had not been repealed by the Sangguniang Assessor seeking the exclusion of its real properties in the
Bayan or annulled by the courts. city from the roll of taxable real properties. With its request
The private respondent complains that as a result of the having been denied, Bayantel interposed an appeal with the
petitioners' acts, he was prevented from operating his LBAA. And, evidently on its firm belief of its exempt status,
business all this time and earning substantial profit Bayantel did not pay the real property taxes assessed
therefrom, as he had in previous years. But as the against it by the Quezon City government.
petitioners correctly observed, he could have taken the On account thereof, the Quezon City Treasurer sent out
prudent course of signing the agreement under protest and notices of delinquency for the total amount of
later challenging it in court to relieve him of the obligation to P43,878,208.18, followed by the issuance of several
"donate." Pendente lite, he could have continued to operate warrants of levy against Bayantel's properties preparatory to
his threshing business and thus avoided the lucro cesante their sale at a public auction set on July 30, 2002.
that he now says was the consequence of the petitioners' Threatened with the imminent loss of its properties, Bayantel
wrongful act. He could have opted for the less obstinate but immediately withdrew its appeal with the LBAA and instead
still dissentient action, without loss of face, or principle, or filed with the RTC of Quezon City a petition for prohibition
profit. with an urgent application for a temporary restraining order
(TRO) and/or writ of preliminary injunction. The RTC then
Franchises rendered judgment exempting Bayantel from taxes.

PLDT v. City of Davao (2001) Issue: WON Bayantel failed to exhaust administrative
PLDT is liable for the local franchise tax. Section 137 does remedies
not state that it covers future exemptions. The grant of
taxing powers to LGU's in the consti and the LGC does not Held: No
affect the power of Congress to grant exemptions in the
future. The only legal effect of the constitutional grant to Ratio: With the reality that Bayantel's real properties were
local governemnts: in interpreting statutory provisions on already levied upon on account of its nonpayment of real
municipal taxing powers, doubts should be resolved in favor estate taxes thereon, the Court agrees with Bayantel that an
of municipal corporations. appeal to the LBAA is not a speedy and adequate remedy
within the context of the aforequoted Section 2 of Rule 65.
This is not to mention of the auction sale of said properties
City Government of Q.C. v. Bayantel (2006)
already scheduled on July 30, 2002.
Facts: Bayantel is a legislative franchise holder under RA Moreover, one of the recognized exceptions to the
3259 to establish and operate radio stations for domestic exhaustion-of-administrative remedies rule is when, as here,
telecommunications, radiophone, broadcasting and only legal issues are to be resolved. In fact, the Court,
telecasting. Of relevance to this controversy is the tax cognizant of the nature of the questions presently involved,
provision of Rep. Act No. 3259, embodied in Section 14 gave due course to the instant petition. As the Court has
thereof, which reads: said in Ty v. Trampe: . . . . Although as a rule, administrative
SECTION 14. (a) The grantee shall be liable to pay the same remedies must first be exhausted before resort to judicial
taxes on its real estate, buildings and personal property, action can prosper, there is a well-settled exception in cases
exclusive of the franchise, as other persons or corporations
are now or hereafter may be required by law to pay. (b) The
34 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

where the controversy does not involve questions of fact but Bayantel's franchise being national in character, the
only of law. . . . . "exemption" thus granted under Section 14 of Rep. Act No.
Lest it be overlooked, an appeal to the LBAA, to be properly 3259 applies to all its real or personal properties found
considered, required prior payment under protest of the anywhere within the Philippine archipelago.
amount of P43,878,208.18, a figure which, in the light of the However, with the LGC's taking effect on January 1, 1992,
then prevailing Asian financial crisis, may have been difficult Bayantel's "exemption" from real estate taxes for properties
to raise up. Given this reality, an appeal to the LBAA may not of whatever kind located within the Metro Manila area was,
be considered as a plain, speedy and adequate remedy. It is by force of Section 234 of the Code, supra, expressly
thus understandable why Bayantel opted to withdraw its withdrawn. But, not long thereafter, however, or on July 20,
earlier appeal with the LBAA and, instead, filed its petition 1992, Congress passed Rep. Act No. 7633 amending
for prohibition with urgent application for injunctive relief in Bayantel's original franchise. Worthy of note is that Section
Civil Case No. Q-02-47292. The remedy availed of by 11 of Rep. Act No. 7633 is a virtual reenacment of the tax
Bayantel under Section 2, Rule 65 of the Rules of Court must provision, i.e., Section 14, supra, of Bayantel's original
be upheld. franchise under Rep. Act No. 3259. Stated otherwise, Section
14 of Rep. Act No. 3259 which was deemed impliedly
Issue: WON Bayantel's real properties in Quezon City are, repealed by Section 234 of the LGC was expressly revived
under its franchise, exempt from real property tax. under Section 14 of Rep. Act No. 7633. In concrete terms,
the realty tax exemption heretofore enjoyed by Bayantel
Held: No. under its original franchise, but subsequently withdrawn by
force of Section 234 of the LGC, has been restored by
Ratio: The lower court resolved the issue in the affirmative, Section 14 of Rep. Act No. 7633.
basically owing to the phrase "exclusive of this franchise" The Court has taken stock of the fact that by virtue of
found in Section 11 of Bayantel's amended franchise, Rep. Section 5, Article X of the 1987 Constitution, local
Act No. 7633. To petitioners, however, the language of governments are empowered to levy taxes. And pursuant to
Section 11 of Rep. Act No. 7633 is neither clear nor this constitutional empowerment, juxtaposed with Section
unequivocal. The elaborate and extensive discussion 232 of the LGC, the Quezon City government enacted in
devoted by the trial court on the meaning and import of said 1993 its local Revenue Code, imposing real property tax on
phrase, they add, suggests as much. It is petitioners' thesis all real properties found within its territorial jurisdiction. And
that Bayantel was in no time given any express exemption as earlier stated, the City's Revenue Code, just like the LGC,
from the payment of real property tax under its amendatory expressly withdrew, under Section 230 thereof, supra, all tax
franchise. exemption privileges in general.
There seems to be no issue as to Bayantel's exemption from This thus raises the question of whether or not the City's
real estate taxes by virtue of the term "exclusive of the Revenue Code pursuant to which the city treasurer of
franchise" qualifying the phrase "same taxes on its real Quezon City levied real property taxes against Bayantel's
estate, buildings and personal property," found in Section real properties located within the City effectively withdrew
14, supra, of its franchise, Rep. Act No. 3259, as originally the tax exemption enjoyed by Bayantel under its franchise,
granted. as amended.
The legislative intent expressed in the phrase "exclusive of Bayantel answers the poser in the negative arguing that
this franchise" cannot be construed other than distinguishing once again it is only "liable to pay the same taxes, as any
between two (2) sets of properties, be they real or personal, other persons or corporations on all its real or personal
owned by the franchisee, namely, (a) those actually, directly properties, exclusive of its franchise." Bayantel's posture is
and exclusively used in its radio or telecommunications well-taken. While the system of local government taxation
business, and (b) those properties which are not so used. It has changed with the onset of the 1987 Constitution, the
is worthy to note that the properties subject of the present power of local government units to tax is still limited. As we
controversy are only those which are admittedly falling explained in Mactan Cebu International Airport Authority:
under the first category. The power to tax is primarily vested in the Congress;
To the mind of the Court, Section 14 of Rep. Act No. 3259 however, in our jurisdiction, it may be exercised by local
effectively works to grant or delegate to local governments legislative bodies, no longer merely be virtue of a valid
of Congress' inherent power to tax the franchisee's delegation as before, but pursuant to direct authority
properties belonging to the second group of properties conferred by Section 5, Article X of the Constitution. Under
indicated above, that is, all properties which, "exclusive of the latter, the exercise of the power may be subject to such
this franchise," are not actually and directly used in the guidelines and limitations as the Congress may provide
pursuit of its franchise. As may be recalled, the taxing power which, however, must be consistent with the basic policy of
of local governments under both the 1935 and the 1973 local autonomy.
Constitutions solely depended upon an enabling law. Absent Clearly then, while a new slant on the subject of local
such enabling law, local government units were without taxation now prevails in the sense that the former doctrine
authority to impose and collect taxes on real properties of local government units' delegated power to tax had been
within their respective territorial jurisdictions. While Section effectively modified with Article X, Section 5 of the 1987
14 of Rep. Act No. 3259 may be validly viewed as an implied Constitution now in place, the basic doctrine on local
delegation of power to tax, the delegation under that taxation remains essentially the same. For as the Court
provision, as couched, is limited to impositions over stressed in Mactan, "the power to tax is (still) primarily
properties of the franchisee which are not actually, directly vested in the Congress."
and exclusively used in the pursuit of its franchise. This new perspective is best articulated by Fr. Joaquin G.
Necessarily, other properties of Bayantel directly used in the Bernas, S.J., himself a Commissioner of the 1986
pursuit of its business are beyond the pale of the delegated Constitutional Commission which crafted the 1987
taxing power of local governments. In a very real sense, Constitution, thus:
therefore, real properties of Bayantel, save those exclusive What is the effect of Section 5 on the fiscal position of
of its franchise, are subject to realty taxes. Ultimately, municipal corporations? Section 5 does not change the
therefore, the inevitable result was that all realties which are doctrine that municipal corporations do not possess inherent
actually, directly and exclusively used in the operation of its powers of taxation. What it does is to confer municipal
franchise are "exempted" from any property tax. corporations a general power to levy taxes and otherwise
create sources of revenue. They no longer have to wait for a
35 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

statutory grant of these powers. The power of the legislative

authority relative to the fiscal powers of local governments FELS Enregy v. Prov. Of Batangas (2007)
has been reduced to the authority to impose limitations on Facts: On January 18, 1993, NPC entered into a lease
municipal powers. Moreover, these limitations must be contract with Polar Energy, Inc. over 3x30 MW diesel engine
"consistent with the basic policy of local autonomy." The power barges moored at Balayan Bay in Calaca, Batangas.
important legal effect of Section 5 is thus to reverse the The contract, denominated as an Energy Conversion
principle that doubts are resolved against municipal Agreement, was for a period of five years. Article 10 states
corporations. Henceforth, in interpreting statutory provisions that NPC shall be responsible for the payment of taxes.
on municipal fiscal powers, doubts will be resolved in favor (other than (i) taxes imposed or calculated on the basis of
of municipal corporations. It is understood, however, that the net income of POLAR and Personal Income Taxes of its
taxes imposed by local government must be for a public employees and (ii) construction permit fees, environmental
purpose, uniform within a locality, must not be confiscatory, permit fees and other similar fees and charges. Polar Energy
and must be within the jurisdiction of the local unit to pass. then assigned its rights under the Agreement to Fels despite
In net effect, the controversy presently before the Court NPC’s initial opposition.
involves, at bottom, a clash between the inherent taxing FELS received an assessment of real property taxes on the
power of the legislature, which necessarily includes the power barges from Provincial Assessor Lauro C. Andaya of
power to exempt, and the local government's delegated Batangas City. FELS referred the matter to NPC, reminding it
power to tax under the aegis of the 1987 Constitution. of its obligation under the Agreement to pay all real estate
Now to go back to the Quezon City Revenue Code which taxes. It then gave NPC the full power and authority to
imposed real estate taxes on all real properties within the represent it in any conference regarding the real property
city's territory and removed exemptions theretofore assessment of the Provincial Assessor. NPC filed a petition
"previously granted to, or presently enjoyed by all persons, with the LBAA. The LBAA ordered Fels to pay the real estate
whether natural or juridical . . . .," there can really be no taxes. The LBAA ruled that the power plant facilities, while
dispute that the power of the Quezon City Government to they may be classified as movable or personal property, are
tax is limited by Section 232 of the LGC which expressly nevertheless considered real property for taxation purposes
provides that "a province or city or municipality within the because they are installed at a specific location with a
Metropolitan Manila Area may levy an annual ad valorem tax character of permanency. The LBAA also pointed out that the
on real property such as land, building, machinery, and other owner of the barges–FELS, a private corporation–is the one
improvement not hereinafter specifically exempted." Under being taxed, not NPC. A mere agreement making NPC
this law, the Legislature highlighted its power to thereafter responsible for the payment of all real estate taxes and
exempt certain realties from the taxing power of local assessments will not justify the exemption of FELS; such a
government units. An interpretation denying Congress such privilege can only be granted to NPC and cannot be
power to exempt would reduce the phrase "not hereinafter extended to FELS. Finally, the LBAA also ruled that the
specifically exempted" as a pure jargon, without meaning petition was filed out of time.
whatsoever. Needless to state, such absurd situation is Fels appealed to the CBAA. The CBAA reversed and ruled
unacceptable. that the power barges belong to NPC; since they are
For sure, in PLDT v. City of Davao, this Court has upheld the actually, directly and exclusively used by it, the power
power of Congress to grant exemptions over the power of barges are covered by the exemptions under Section 234(c)
local government units to impose taxes. There, the Court of R.A. No. 7160. As to the other jurisdictional issue, the
wrote: CBAA ruled that prescription did not preclude the NPC from
Indeed, the grant of taxing powers to local government units pursuing its claim for tax exemption in accordance with
under the Constitution and the LGC does not affect the Section 206 of R.A. No. 7160. Upon MR, the CBAA reversed
power of Congress to grant exemptions to certain persons, itself.
pursuant to a declared national policy. The legal effect of the
constitutional grant to local governments simply means that Issue: WON the petition is time barred
in interpreting statutory provisions on municipal taxing
powers, doubts must be resolved in favor of municipal Held: Yes
As we see it, then, the issue in this case no longer dwells on Ratio: Section 226 of R.A. No. 7160, otherwise known as
whether Congress has the power to exempt Bayantel's the Local Government Code of 1991, provides: SECTION 226.
properties from realty taxes by its enactment of Rep. Act No. Local Board of Assessment Appeals. – Any owner or person
7633 which amended Bayantel's original franchise. The more having legal interest in the property who is not satisfied with
decisive question turns on whether Congress actually did the action of the provincial, city or municipal assessor in the
exempt Bayantel's properties at all by virtue of Section 11 of assessment of his property may, within sixty (60) days from
Rep. Act No. 7633. the date of receipt of the written notice of assessment,
Admittedly, Rep. Act No. 7633 was enacted subsequent to appeal to the Board of Assessment Appeals of the province
the LGC. Perfectly aware that the LGC has already withdrawn or city by filing a petition under oath in the form prescribed
Bayantel's former exemption from realty taxes, Congress for the purpose, together with copies of the tax declarations
opted to pass Rep. Act No. 7633 using, under Section 11 and such affidavits or documents submitted in support of the
thereof, exactly the same defining phrase "exclusive of this appeal.
franchise" which was the basis for Bayantel's exemption We note that the notice of assessment which the Provincial
from realty taxes prior to the LGC. In plain language, Section Assessor sent to FELS on August 7, 1995, contained a
11 of Rep. Act No. 7633 states that "the grantee, its reiteration of Section 226. Instead of appealing to the Board
successors or assigns shall be liable to pay the same taxes of Assessment Appeals (as stated in the notice), NPC opted
on their real estate, buildings and personal property, to file a motion for reconsideration of the Provincial
exclusive of this franchise, as other persons or corporations Assessor’s decision, a remedy not sanctioned by law.
are now or hereafter may be required by law to pay." The The remedy of appeal to the LBAA is available from an
Court views this subsequent piece of legislation as an adverse ruling or action of the provincial, city or municipal
express and real intention on the part of Congress to once assessor in the assessment of the property. It follows then
again remove from the LGC's delegated taxing power, all of that the determination made by the respondent Provincial
the franchisee's (Bayantel's) properties that are actually, Assessor with regard to the taxability of the subject real
directly and exclusively used in the pursuit of its franchise.
36 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

properties falls within its power to assess properties for Ratio: Forum shopping exists when, as a result of an
taxation purposes subject to appeal before the LBAA. adverse judgment in one forum, a party seeks another and
We fully agree with the rationalization of the CA, citing the possibly favorable judgment in another forum other than by
case of Callanta v. Office of the Ombudsman, where we ruled appeal or special civil action or certiorari. There is also forum
that under Section 226 of R.A. No 7160, the last action of the shopping when a party institutes two or more actions or
local assessor on a particular assessment shall be the notice proceedings grounded on the same cause, on the gamble
of assessment; it is this last action which gives the owner of that one or the other court would make a favorable
the property the right to appeal to the LBAA. The procedure disposition.
likewise does not permit the property owner the remedy of FELS alleges that there is no forum shopping since the
filing a motion for reconsideration before the local assessor. elements of res judicata are not present in the cases at bar;
To reiterate, if the taxpayer fails to appeal in due course, the however, as already discussed, res judicata may be properly
right of the local government to collect the taxes due with applied herein. Petitioners engaged in forum shopping when
respect to the taxpayer’s property becomes absolute upon they filed G.R. Nos. 168557 and 170628 after the petition for
the expiration of the period to appeal. [38] It also bears review in G.R. No. 165116. Indeed, petitioners went from one
stressing that the taxpayer’s failure to question the court to another trying to get a favorable decision from one
assessment in the LBAA renders the assessment of the local of the tribunals which allowed them to pursue their cases.
assessor final, executory and demandable, thus, precluding It must be stressed that an important factor in determining
the taxpayer from questioning the correctness of the the existence of forum shopping is the vexation caused to
assessment, or from invoking any defense that would reopen the courts and the parties-litigants by the filing of similar
the question of its liability on the merits. cases to claim substantially the same reliefs. The rationale
In fine, the LBAA acted correctly when it dismissed the against forum shopping is that a party should not be allowed
petitioners’ appeal for having been filed out of time; the to pursue simultaneous remedies in two different fora. Filing
CBAA and the appellate court were likewise correct in multiple petitions or complaints constitutes abuse of court
affirming the dismissal. Elementary is the rule that the processes, which tends to degrade the administration of
perfection of an appeal within the period therefor is both justice, wreaks havoc upon orderly judicial procedure, and
mandatory and jurisdictional, and failure in this regard adds to the congestion of the heavily burdened dockets of
renders the decision final and executory. the courts.
Thus, there is forum shopping when there exist: (a) identity
Issue: WON the action was barred by res judicata of parties, or at least such parties as represent the same
interests in both actions, (b) identity of rights asserted and
Ratio: Res judicata pervades every organized system of relief prayed for, the relief being founded on the same facts,
jurisprudence and is founded upon two grounds embodied in and (c) the identity of the two preceding particulars is such
various maxims of common law, namely: (1) public policy that any judgment rendered in the pending case, regardless
and necessity, which makes it to the interest of the State of which party is successful, would amount to res judicata in
that there should be an end to litigation – republicae ut sit the other.
litium; and (2) the hardship on the individual of being vexed Having found that the elements of res judicata and forum
twice for the same cause – nemo debet bis vexari et eadem shopping are present in the consolidated cases, a discussion
causa. A conflicting doctrine would subject the public peace of the other issues is no longer necessary. Nevertheless, for
and quiet to the will and dereliction of individuals and prefer the peace and contentment of petitioners, we shall shed
the regalement of the litigious disposition on the part of light on the merits of the case.
suitors to the preservation of the public tranquility and
happiness. Issue: WON the petitioner may be assessed real property
This is in accordance with the doctrine of res judicata which taxes
has the following elements: (1) the former judgment must be
final; (2) the court which rendered it had jurisdiction over the Held: Yes
subject matter and the parties; (3) the judgment must be on
the merits; and (4) there must be between the first and the Ratio: The CBAA and LBAA power barges are real property
second actions, identity of parties, subject matter and and are thus subject to real property tax. This is also the
causes of action. The application of the doctrine of res inevitable conclusion, considering that G.R. No. 165113 was
judicata does not require absolute identity of parties but dismissed for failure to sufficiently show any reversible error.
merely substantial identity of parties. There is substantial Tax assessments by tax examiners are presumed correct and
identity of parties when there is community of interest or made in good faith, with the taxpayer having the burden of
privity of interest between a party in the first and a party in proving otherwise. [48] Besides, factual findings of
the second case even if the first case did not implead the administrative bodies, which have acquired expertise in their
latter. field, are generally binding and conclusive upon the Court;
To recall, FELS gave NPC the full power and authority to we will not assume to interfere with the sensible exercise of
represent it in any proceeding regarding real property the judgment of men especially trained in appraising
assessment. Therefore, when petitioner NPC filed its petition property. Where the judicial mind is left in doubt, it is a
for review docketed as G.R. No. 165113, it did so not only on sound policy to leave the assessment undisturbed. We find
its behalf but also on behalf of FELS. Moreover, the assailed no reason to depart from this rule in this case.
decision in the earlier petition for review filed in this Court In Consolidated Edison Company of New York, Inc., et al. v.
was the decision of the appellate court in CA-G.R. SP No. The City of New York, et al., a power company brought an
67490, in which FELS was the petitioner. Thus, the decision action to review property tax assessment. On the city’s
in G.R. No. 165116 is binding on petitioner FELS under the motion to dismiss, the Supreme Court of New York held that
principle of privity of interest. In fine, FELS and NPC are the barges on which were mounted gas turbine power plants
substantially “identical parties” as to warrant the application designated to generate electrical power, the fuel oil barges
of res judicata. FELS’s argument that it is not bound by the which supplied fuel oil to the power plant barges, and the
erroneous petition filed by NPC is thus unavailing. accessory equipment mounted on the barges were subject to
real property taxation.
Issue: WON forum shopping exists in this case Moreover, Article 415 (9) of the New Civil Code provides that
“[d]ocks and structures which, though floating, are intended
by their nature and object to remain at a fixed place on a
37 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

river, lake, or coast” are considered immovable property. development as self-reliant communities and make them
Thus, power barges are categorized as immovable property effective partners in the attainment of national goals.
by destination, being in the nature of machinery and other In conclusion, we reiterate that the power to tax is the most
implements intended by the owner for an industry or work potent instrument to raise the needed revenues to finance
which may be carried on in a building or on a piece of land and support myriad activities of the local government units
and which tend directly to meet the needs of said industry or for the delivery of basic services essential to the promotion
work. of the general welfare and the enhancement of peace,
Petitioners maintain nevertheless that the power barges are progress, and prosperity of the people.
exempt from real estate tax under Section 234 (c) of R.A. No.
7160 because they are actually, directly and exclusively Digitel v. Prov. Of Pangasinan (2007)
used by petitioner NPC, a government- owned and controlled Facts: The present petition stemmed from a Complaint for
corporation engaged in the supply, generation, and Mandamus, Collection of Sum of Money and Damages
transmission of electric power. instituted by the Province of Pangasinan against Digital
We affirm the findings of the LBAA and CBAA that the owner Telecommunications Philippines, Inc. Section 137 LGC
of the taxable properties is petitioner FELS, which in fine, is withdrew any exemption from the payment of franchise tax
the entity being taxed by the local government. As by authorizing the LGUs to impose a franchise tax on
stipulated under Section 2.11, Article 2 of the Agreement: businesses at a rate not exceeding 50% of 1% of the gross
OWNERSHIP OF POWER BARGES. POLAR shall own the Power annual receipts of the business. Section 232 lso authorizes
Barges and all the fixtures, fittings, machinery and the imposition of an ad valorem tax on real property by the
equipment on the Site used in connection with the Power LGUs within the Metropolitan Manila Area wherein the land,
Barges which have been supplied by it at its own cost. building, machinery and other improvement not thereinafter
POLAR shall operate, manage and maintain the Power specifically exempted.
Barges for the purpose of converting Fuel of NAPOCOR into Digitel was granted, under Provincial Ordinance No. 18-92, a
electricity. provincial franchise to install, maintain and operate a
It follows then that FELS cannot escape liability from the telecommunications system within Pangasinan. Under the
payment of realty taxes by invoking its exemption in Section Sec 6 of the provincial franchise, the grantee is required to
234 (c) of R.A. No. 7160. Indeed, the law states that the pay franchise and real property taxes. The Sangguniang
machinery must be actually, directly and exclusively used by Panlalawigan also enacted Provincial Tax Ordinance 1 (Real
the government owned or controlled corporation; Property Tax Ordinance of 1992). Section 4, however,
nevertheless, petitioner FELS still cannot find solace in this expanded the application of Sec. 6 of the provincial franchise
provision because Section 5.5, Article 5 of the Agreement of Digitel to include machineries and other improvements,
provides: not thereinafter exempted,. Provincial Tax Ordinance No 4
OPERATION. POLAR undertakes that until the end of the was then enacted. Sections 4, 5 and 6 positively imposed a
Lease Period, subject to the supply of the necessary Fuel franchise tax on businesses enjoying a franchise within the
pursuant to Article 6 and to the other provisions hereof, it province of Pangasinan.
will operate the Power Barges to convert such Fuel into Thereafter, Digitel was granted by RA 7678 a legislative
electricity in accordance with Part A of Article 7. franchise. Under its legislative franchise, particularly Sec. 5
It is a basic rule that obligations arising from a contract have thereof, petitioner DIGITEL became liable for the payment of
the force of law between the parties. Not being contrary to a franchise tax “as may be prescribed by law of all gross
law, morals, good customs, public order or public policy, the receipts of the telephone or other telecommunications
parties to the contract are bound by its terms and businesses transacted under it by the grantee,” as well as
conditions. real property tax “on its real estate, and buildings “exclusive
Time and again, the Supreme Court has stated that taxation of this franchise.” Later, the Province of Pangasinan found
is the rule and exemption is the exception. The law does not that Digitel had a franchise tax deficiency for the years of
look with favor on tax exemptions and the entity that would 1992, 1993 and 1994.
seek to be thus privileged must justify it by words too plain In the interregnum, on 16 March 1995, Congress passed RA
to be mistaken and too categorical to be misinterpreted. 7925, otherwise known as “The Public Telecommunications
Thus, applying the rule of strict construction of laws granting Policy Act of the Philippines.” Section 23 of this law entitled
tax exemptions, and the rule that doubts should be resolved Equality of Treatment in the Telecommunications Industry,
in favor of provincial corporations, we hold that FELS is provided for the ipso facto application to any previously
considered a taxable entity. granted telecommunications franchises of any advantage,
The mere undertaking of petitioner NPC under Section 10.1 favor, privilege, exemption or immunity granted under
of the Agreement, that it shall be responsible for the existing franchises, or those still to be granted, to be
payment of all real estate taxes and assessments, does not accorded immediately and unconditionally to earlier
justify the exemption. The privilege granted to petitioner grantees.
NPC cannot be extended to FELS. The covenant is between Thereafter, Digitel opposed Pangasinan’s claim on the
FELS and NPC and does not bind a third person not privy ground that prior to the approval of its legislative franchise,
thereto, in this case, the Province of Batangas. its operation of a telecommunications system was done
It must be pointed out that the protracted and circuitous under a Facilities Management Agreement it had previously
litigation has seriously resulted in the local government’s executed with the DOTC. It clarified that since “the facilities
deprivation of revenues. The power to tax is an incident of in Pangasinan are just part of the government owned
sovereignty and is unlimited in its magnitude, facilities awarded to DIGITEL,” not only did the DOTC retain
acknowledging in its very nature no perimeter so that ownership of said facilities, the latter likewise “provided for
security against its abuse is to be found only in the the budget for) expenses under its allocation from the
responsibility of the legislature which imposes the tax on the government;” hence, “all revenues generated from the
constituency who are to pay for it. The right of local operation of the facilities inured to the DOTC;” and all the
government units to collect taxes due must always be fees received by petitioner DIGITEL were purely for services
upheld to avoid severe tax erosion. This consideration is rendered. Further, it argued that under its legislative
consistent with the State policy to guarantee the autonomy franchise, the payment of a franchise tax to the BIR would
of local governments and the objective of the Local be “in lieu of all taxes” on said franchise or the earnings
Government Code that they enjoy genuine and meaningful therefrom.
local autonomy to empower them to achieve their fullest
38 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

The Pronvince of Pangasinan filed a Complaint for abolishing the franchise tax imposed on telecommunications
Mandamus, Collection of Sum of Money and Damages before companies effective 1 January 1996 and in its place is
Branch 68 of the RTC of Lingayen, Pangasinan. The trial court imposed a 10% VAT, the “in-lieu-of-all-taxes”
decided the Province. It ruled that Digitel’s legislative clause/provision in the legislative franchises of Globe, Smart
franchise does not work to exempt the latter from payment and Bell, among others, has now become functus officio,
of provincial franchise and real property taxes. It ruled that made inoperative for lack of a franchise tax. Therefore,
provincial and legislative franchises are separate and distinct taking into consideration the above, from 1 January 1996,
from each other. Moreover, it pointed out that LGH already Digitel ceased to be liable for national franchise tax and in
withdrew any exemption granted to anyone. its stead is imposed a 10% VAT in accordance with Section
On the other hand, Digitel maintains that its legislative 108 of the Tax Code.
franchise being an earlier enactment, by virtue of Section 23
of Republic Act No. 7925, the ipso facto, immediate and Issue: WON Digitel is exempt from payment of real estate
unconditional application to it of the tax exemption found in tax under its legislative franchise.
the franchises of Globe, Smart and Bell. Stated simply,
Section 23 of Republic Act No. 7925, in relation to the Held: No
pertinent provisions of the legislative franchises of Globe,
Smart and Bell, “the national franchise tax for which Digitel Ratio: Pertinent Provision: SECTION 5. Tax Provisions. –
is liable to pay shall be ‘in lieu of any and all taxes of any The grantee shall be liable to pay the same taxes on its real
kind, nature or description levied, established or collected by estate, buildings, and personal property exclusive of this
any authority whatsoever, municipal, provincial, or national, franchise as other persons or corporations are now or
from which the grantee is hereby expressly granted.’ hereafter may be required by law to pay x x x.
Owing to the phrase “exclusive of this franchise,” petitioner
Issue: WON Digitel is exempt from the payment of DIGITEL stands firm in its position that it is equally exempt
provincial franchise tax in view of Section 23 of RA 7925 in from the payment of real property tax. It maintains that said
relation to the exemptions enjoyed by other telcos. phrase found in Section 5 qualifies or delimits the scope of
its liability respecting real property tax –that real property
Held: No tax should only be imposed on its assets that are actually,
directly and exclusively used in the conduct of its business
Ratio: Prior to the enactment of its legislative franchise, pursuant to its franchise.
Digitel did not enjoy and exemption from the payment of According to the Province, however, “the phrase ‘exclusive
franchise and real property taxes. In fact the provincial of this franchise’ in the legislative franchise of Digitel did not
franchise made Digitel liable for the payment of such taxes. specifically or categorically express that such franchise grant
The case at bar is actually not one of first impression. intended to provide privilege to the extent of impliedly
Indeed, as far back as 2001, this Court has had the occasion repealing RA 7160.”
to rule against the claim for tax exemption under RA 7925. In Thus, the question is, whether or not petitioner DIGITEL’s
the case of PLDT v. City of Davao, we already clarified the real properties located within the territorial jurisdiction of
confusion brought about by the effect of Section 23 of respondent Province of Pangasinan are exempt from real
Republic Act No. 7925 – that the word “exemption” as used property taxes by virtue of Section 5 of Republic Act No.
in the statute refer’s or pertain’s merely to an exemption 7678. We rule in the affirmative. However, it is with the
from regulatory or reporting requirements of the DOTC or the caveat that such exemption solely applies to those real
NTC and not to the grantee’s tax liability. In said case, the properties actually, directly and exclusively used by the
Court ruled that Congress did not intend Section 23 to grantee in its franchise.
operate as a blanket tax exemption to all telcos. Moreover, The present issue actually boils down to a dispute between
tax exemptions must be expressed in the statute in clear the inherent taxing power of Congress and the delegated
language that leaves no doubt of the intention of the authority to tax of the local government borne by the 1987
legislature to grant such exemption. And, even if it is Constitution. In the PLDT v. City of Davao, we already
granted, the exemption must be interpreted in strictissimi sustained the power of Congress to grant exemptions over
juris against the taxpayer and liberally in favor of the taxing and above the power of the local government’s delegated
authority. Moreover, it ruled that PLDT’s theory will leave the taxing authority notwithstanding the source of such power.
Government with the burden of having to keep track of all Had Congress intended to tax each and every real property
granted telecommunications franchises, lest some of Digitel, regardless of whether or not it is used in the
companies be treated unequally. It is different if Congress business or operation of its franchise, it would not have
enacts a law specifically granting uniform advantages, favor, incorporated a qualifying phrase, which such manifestation
privilege, exemption, or immunity to all telecommunications admittedly is. And, to our minds, “the issue in this case no
entities. longer dwells on whether Congress has the power to
R.A. No. 7925 is thus a legislative enactment designed to set exempt” Digitel’s properties from realty taxes by its
the national policy on telecommunications and provide the enactment of RA 7678 which contains the phrase “exclusive
structures to implement it to keep up with the technological of this franchise,” in the face of the mandate of the Local
advances in the industry and the needs of the public. The Government Code. The more pertinent issue to consider is
thrust of the law is to promote gradually the deregulation of whether or not, by passing Ra7678, Congress intended to
the entry, pricing, and operations of all public exempt Digitel’s real properties actually, directly and
telecommunications entities and thus promote a level exclusively used by the grantee in its franchise.
playing field in the telecommunications industry. There is The fact that Republic Act No. 7678 was a later piece of
nothing in the language of §23 nor in the proceedings of both legislation can be taken to mean that Congress, knowing
the House of Representatives and the Senate in enacting fully well that the Local Government Code had already
R.A. No. 7925 which shows that it contemplates the grant of withdrawn exemptions from real property taxes, chose to
tax exemptions to all telecommunications entities, including restore such immunity even to a limited degree.
those whose exemptions had been withdrawn by the LGC. In view of the unequivocal intent of Congress to exempt from
The issue is then settled, the Court has no recourse but to real property tax those real properties actually, directly and
deny Digitel’s claim for exemption from payment of exclusively used by petitioner DIGITEL in the pursuit of its
provincial franchise tax. The foregoing pronouncement franchise, respondent Province of Pangasinan can only levy
notwithstanding, in view of the passage of RA 7716 real property tax on the remaining real properties of the
39 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

grantee located within its territorial jurisdiction not part of of real property tax shall in no case exceed 24% of the
the above-stated classification. Said exemption, however, delinquent tax. Upon the other hand, Section 4(c) of the
merely applies from the time of the effectivity of petitioner challenged Joint Assessment Regulations No. 1-85 and Local
DIGITEL’s legislative franchise and not a moment sooner. Treasury Regulations No. 2-85 issued by respondent
Secretary (formerly Minister) of Finance provides that “the
In fine, petitioner DIGITEL is found accountable to penalty of two percent (2%) per month of delinquency or
respondent Province of Pangasinan for the following tax twenty-four percent (24%) per annum as the case may be,
liabilities: 1) as to provincial franchise tax, from 13 shall continue to be imposed on the unpaid tax from the time
November 1992 until actually paid; and 2) as to real property the delinquency was incurred up to the time that the
tax, for the period starting from 13 November 1992 until 28 delinquency is paid for in full.” As adeptly observed by the
December 1992, it shall be imposed only on the lands and trial court, the penalty imposed under the assailed
buildings of petitioner DIGITEL located within the subject Regulations has no limit inasmuch as the 24% penalty per
jurisdiction; for the period commencing from 29 December annum shall be continuously imposed on the unpaid tax until
1992 until 16 February 1994, in addition to the lands and it is paid for in full unlike that imposed under Section 66 of
buildings aforementioned, it shall similarly be imposed on the Real Property Tax Code where the total penalty is limited
machineries and other improvements; and, by virtue of the only to twenty-four percent of the delinquent tax.
National Franchise of petitioner DIGITEL or Republic Act No. That such is the effect of an application of the Regulations
7678, in accordance with the Court’s ruling in the under review is not disclaimed by the petitioner anywhere in
abovementioned Bayantel case, from the date of effectivity his pleadings. Petitioner, however, attempts to justify the
on 17 February 1994 until the present, it shall be imposed issued Regulations’ departure from the Real Property Tax
only on real properties NOT actually, directly and exclusively Code. Said Regulations, petitioner says, are sanctioned by
used in the franchise of petitioner DIGITEL. In addition to the EO 73 and its implementing guidelines, Joint Local
foregoing summary, pertinent provisions of law respecting Assessment/Treasury Regulations No. 2-86. Joint Local
interests, penalties and surcharges shall also be made to Assessment/Treasury Regulations No. 2-86.
apply to herein subject tax liabilities. The Secretary of Finance avers in his petition that the last
paragraph of Section 1, Joint Local Assessment/Treasury
Real Property Taxation and Special Education Fund Tax Regulations No. 2-86, explicitly provides for a 2% per month
penalty without any limitation as to the maximum amount
Sec of Finance v. Ilarde & Cipriano Cabaluna (2005) thereof, which is entirely consistent with the then existing
Facts: Cipriano P. Cabaluna, Jr., was the Regional Director of Regulations, the now challenged Joint Assessment
Regional Office No. VI of the DOF. He co-owns with his wife Regulations No. 1-85 and Local Treasury Regulations No. 2-
certain properties in Jaro, Iloilo City Private respondent failed 85. Petitioner further asserts that inasmuch as Joint Local
to pay the land taxes on Lot No. 12 and Lot No. 14 for the Assessment/Treasury Regulations No. 2-86, which echoes the
years 1986 to 1992. For the years 1991 to 1992, taxes were disputed Regulations, was issued to implement E.O. No. 73,
also unpaid on Lot No. 941-D-2, on the residential house, and private respondent’s recourse is to file a case questioning
on Lot No. 941-D-1. A breakdown of the computation of the the validity of Joint Local Assessment/Treasury Regulations
delinquent taxes showed that more than 24% of the No. 2-86 in the same way that he has assailed Joint
delinquent taxes were charged and collected from private Assessment Regulations No. 1-85 and Local Treasury
respondent by way of penalties. Private respondent paid his Regulations No. 2-85.
land taxes and the receipts were issued to him by the City Petitioner’s reasoning is, to our mind, but a futile attempt to
Treasurer’s Office with the notation “paid under protest.” muddle the facts of the case and the issues involved. Recall
Soon, Cabaluna retired. He then filed a formal protest with that the present controversy cropped up when Cabaluna
the City Treasurer of Iloilo wherein he contends that the protested the payment of penalties on his delinquent taxes
computation was erroneous since the rate of penalty exceed for being in excess of the 24% cap provided in p.d. No. 464
24% in contravention of Section 66 of P.D. No. 464, or the Real Property Tax Code. In response to his letter of
otherwise known as the Real Property Tax Code. The protest, the Assistant Treasurer of Iloilo City justified the
Assistant City Treasurer Rizalina Tulio turned down the assessment by citing Sec. 4(c) of Joint Assessment
protest, citing Sec. 4(c) of Joint Assessment Regulations No. Regulations No. 1-85 and Local Treasury Regulations No. 2-
1-85 and Local Treasury Regulations No. 2-85 of the DOF. 85 issued by petitioner Minister (now Secretary) of Finance.
Despite his labors to exhaust all administrative remedies, This has lead to the filing of the present case by Cabaluna to
the denial of his protest and his MR compelled private question the validity of the said regulations. It is the validity
respondent to file a Petition for Declaratory Relief with of said regulations, not Joint Local Assessment/Treasury
Damages assailing Joint Assessment Regulations No. 1-85 Regulations No. 2-86, that is sought to be resolved herein
and Local Treasury Regulations No. 2-85 which, according to and petitioner should not depart from the issue on hand.
him, flouted Section 66 of P.D. No. 464 which fixed the The Court harbors doubts on the veracity of petitioner’s
maximum penalty for delinquency in the payment of real contention that the Regulations at issue are sanctioned by
estate taxes at 24% of the delinquent tax. The respondent E.O. No. 73. The underlying principle behind E.O. No. 73, as
judge declared as null and void the said regulations and gleaned from the whereas clauses and Section 1 thereof as
ruled that the total penalty must not exceed 24% of the quoted above, is to advance the date of effectivity of the
delinquent tax. application of the Real Property Tax Values of 1984 from 01
January 1988, the original date it was intended by E.O. No.
Issue: WON the Ministry of Finance could legally promulgate 1019 to take effect for purposes stated therein, to 01
regulations prescribing a rate of penalty on delinquent taxes January 1987. E.O. No. 73 did not, in any way, alter the
other than that provided for under PD 464, also known as structure of the real property tax assessments as provided
the Real Property Tax Code. for in P.D. No. 464 or the Real Property Tax Code.
Neither is this Court easily dissuaded by the submission of
Ratio: Petitioner’s standpoint is devoid of basis in law or in the Secretary of Finance that E.O. No. 73, which provides in
logic. The subject Regulations must be struck down for Section 2 thereof that: “The Minister of Finance shall
being repugnant to Section 66 of P.D. No. 464 or the Real promulgate the necessary rules and regulations to
Property Tax Code, which is the law prevailing at the time implement this Executive Order,” has the effect of according
material to this case. Note that under Section 66 of P.D. No. petitioner the blanket authority to tinker with the rates of
464, the maximum penalty for delinquency in the payment penalty on delinquency taxes as provided for in P.D. No. 464,
40 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

the general law on real property taxation. The Court takes forms thereof. The Real Property Tax Code covers the wide
notice that E.O. No. 73 did not touch at all on the topic of ilk of failure to promptly pay the real property taxes due and
amendment of rates of delinquent taxes or the amendment demandable for a particular period. Ubi lex non distinguit
of rates of penalty on delinquent taxes. E.O. No. 73, nec nos distinguere debemus. When the law does not
particularly in Section 2 thereof, has merely designated the distinguish, we must not distinguish. Further, P.D. No. 464
Minister of Finance to promulgate the rules and regulations covers all real property titled to individuals who become
towards the implementation of E.O. No. 73, particularly on delinquents in paying real estate tax. P.D. No. 464 is a law of
the application of the Real Property Values as of 31 general application.
December 1984, which is the general purpose for enacting On the second assigned error, the fact that private
said executive order. respondent Cabaluna was responsible for the issuance and
In our mind, what is patent from Section 3 of E.O. No. 73 is implementation of Regional Office Memorandum Circular No.
the repeal of E.O. No. 1019, not Section 66 of P.D. No. 464. 04-89 which implemented Joint Assessment Regulations No.
Neither did E.O. No. 1019 directly or indirectly vest upon the 1-85 and Local Treasury Regulations No. 2-85 does not put
Department of Finance the right to fiddle with the rates of him in estoppel from seeking the nullification of said
penalty to be assessed on delinquency taxes as contained in Regulations at this point. In the case at bar, however,
the Real Property Tax Code. Even assuming that E.O. No. petitioner is suing as a plain taxpayer, he having already
1019 had vested the then Ministry of Finance with the retired as Regional Director. His official acts as Regional
authority to impose new rates of penalty on delinquency Director could not have stripped him of his rights as a
taxes, as petitioner would have us believe, such authority taxpayer. To be sure, the official acts of petitioner as
would have been automatically stripped off from it upon the Regional Director cannot serve as estoppel for him to pursue
express repeal of E.O. No. 1019 by EO No. 73 on the 25th of the present course of action that he has taken as a taxpayer.
November 1986. In any event, a regulation which is in itself invalid for being
Despite the promulgation of EO 73, PD 464 in general and contrary to law cannot be validated by any act of
Section 66 in particular, remained to be good law. To accept endorsement of any official, much less, by a subordinate of
petitioner’s premise that EO 73 had accorded the Ministry of the official who issued such regulation. Estoppel, certainly,
Finance the authority to alter, increase, or modify the tax cannot make an invalid regulation valid.
structure would be tantamount to saying that EO 73 has At bottom, the law applicable, in the case at bar, for
repealed or amended PD 464. Repeal of laws should be purposes of computation of the real property taxes due from
made clear and expressed. Repeals by implication are not private respondent for the years 1986 to 1991, including the
favored as laws are presumed to be passed with deliberation penalties and interests, is still Section 66 of the Real
and full knowledge of all laws existing on the subject. Such Property Tax Code of 1974 or P.D. No. 464. the penalty that
repeals are not favored for a law cannot be deemed repealed ought to be imposed for delinquency in the payment of real
unless it is clearly manifest that the legislature so intended property taxes should, therefore, be that provided for in
it.[15] The failure to add a specific repealing clause indicates Section 66 of P.D. No. 464, i.e., two per centum on the
that the intent was not to repeal any existing law, unless an amount of the delinquent tax for each month of delinquency
irreconcilable inconsistency and repugnancy exist in the or fraction thereof but “in no case shall the total penalty
terms of the new and old laws. We find, as the trial court exceed twenty-four per centum of the delinquent tax.”
has found, no such inconsistency or repugnancy between EO Accordingly, the penalties imposed by respondents City
73 and Section 66 of PD 464. Jurisprudence thrives to the Treasurer and Assistant City Treasurer of Iloilo City on the
effect that it is only Republic Act No. 7160 or the Local property of private respondent are valid only up to 24% of
Government Code of 1991, which repealed the Real Property the delinquent taxes. The excess penalties paid by the
Tax Code or P.D. No. 464. private respondent should, in view of that, be refunded by
Assuming argumenti that E.O. No. 73 has authorized the the latter.
petitioner to issue the objected Regulations, such However, from 01 January 1992 onwards, the proper basis
conferment of powers is void for being repugnant to the well- for the computation of the real property tax payable,
encrusted doctrine in political law that the power of taxation including penalties or interests, if applicable, must be Rep.
is generally vested with the legislature.[ Yes, President Act No. 7160, known as the Local Government Code, which
Corazon Aquino, at that time, was exercising both executive took effect on the 1st of January 1992[23] inasmuch as
and legislative powers. But, the power delegated to the Section 534[24] thereof had expressly repealed P.D. No. 464
executive branch, in this case the Ministry of Finance, to lay or the Real Property Tax Code. Section 5(d) of Rep. Act No.
down implementing rules must, nevertheless, be germane to 7160 provides that rights and obligations existing on the
the general law it seeks to apply. The implementing rules date of effectivity of the new Code and arising out of
cannot add to or detract from the provisions of the law it is contracts or any source of prestation involving a local
designed to implement. Administrative regulations adopted government unit shall be governed by the original terms and
under legislative authority by a particular department must conditions of the said contracts or the law in force at the
be in harmony with the provisions of the law they are time such contracts were vested.
intended to carry into effect, which in this case is merely to
antedate the effectivity of the 1984 Real Property Tax values Benguet Corporation v. COA (1992), supra.
inasmuch as this is the raison d’être of E.O. No. 73. Realty taxes are national taxes collected by LGUs. While
In a last-ditch effort to salvage the impugned Regulations, LGU’s are charged with fixing the rate of real property taxes,
petitioner pushes on that Joint Local Assessment/Treasury it does not necessarily follow from that authority the
Regulations No. 2-86, or the so-called implementing rules of determination of whether or not to impose the tax. In fact,
E.O. No. 73, is not contrary to Section 66 of P.D. No. 464 LGU’s have no alternative but to collect taxes as mandated
inasmuch as the latter applies merely to simple delinquency in Sec. 38 of the Real Property Tax Code. It is thus clear that
in the payment of real property taxes while the former it is the national government, expressing itself through the
covers cases wherein there was failure to promptly pay the legislative branch, that levies the real property tax.
real property tax due, including the increase in tax due and
demandable for the tax year as a result of the application of Consequently, when LGU’s are required to fix the rates, they
the 1984 New or Revised Assessment of the value of the are merely constituted as agents of the national
subject property. government in the enforcement of the Real Property Tax
Such rationalization lacks legal traction. P.D. No. 464 makes Code. The delegation of taxing power is not even involved
no distinction as to whether it is simple delinquency or other here because the national government has already imposed
41 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

realty tax in Sec. 38 leaving only the enforcement to be done In the case at bar, no similar statement appears in the
LGU’s. stipulation of facts, hence, ownership of subject properties
should first be established. For, while it may be stated that
National Development Co. v. Cebu City (1992) the Republic owns NDC, it does not necessary follow that
Facts: National Development Company (NDC) is a GOCC properties owned by NDC, are also owned by Republic in the
authorized to engage in commercial, industrial, mining, same way that stockholders are not ipso facto owners of the
agricultural and other enterprises necessary or contributory properties of their corporation.
to economic development or important to public interest. It The Republic may form a corporation with personality and
also operates subsidiary corporations one of which is existence distinct from its own. The separate personality
National Warehousing Corporation (NWC). allows a GOCC to hold and possess properties in its own
On August 10, 1939, the President issued Proclamation No. name and, thus, permit greater independence and flexibility
430 reserving Block no. 4, Reclamation Area No. 4, of Cebu in its operations. It may, therefore, be stated that tax
City for warehousing purposes under the administration of exemption of property owned by the Republic of the
NWC. Subsequently, in 1940, a warehouse with a floor area Philippines "refers to properties owned by the Government
of 1,940 square meters more or less, was constructed and by its agencies which do not have separate and distinct
thereon. In 1947, EO 93 dissolved NWC with NDC taking personalities (unincorporated entities).
over its assets and functions. The foregoing discussion does not mean that because NDC,
In 1948, Cebu City assessed and collected from NDC real like most GOCC's engages in commercial enterprises all
estate taxes on the land and the warehouse thereon. By the properties of the government and its unincorporated
first quarter of 1970, a total of P100,316.31 was paid by NDC agencies possessed in propriety character are taxable.
11 of which only P3,895.06 was under protest. NDC asked Similarly, in the case at bar, NDC proceeded on the premise
for a full refund contending that the land and the warehouse that the BAA ruling declared all properties owed by GOCC's
belonged to the Republic and therefore exempt from as properties in the name of the Republic, hence, exempt
taxation. The CFI ordered Cebu City to refund to NDC the real under Sec. 3 of the Assessment Law.
estate taxes paid by it.
Issue: WON the property is exempt from payment of real
Issue: WON the NDC is exempt from real estate taxes estate taxes

Held: No Held: Yes

Ratio: As already adverted to, one of the principal issues Ratio: To come within the ambit of the exemption provided
before Us is the interpretation of a provision of the in Art. 3, par. (a), of the Assessment Law, it is important to
Assessment Law, the precursor of the then Real Property Tax establish that the property is owned by the government or
Code and the Local Government Code, where "ownership" of its unincorporated agency, and once government ownership
the property and not "use" is the test of tax liability. Section, is determined, the nature of the use of the property, whether
3 par. (a), of the Assessment Law, on which NDC claims real for proprietary or sovereign purposes, becomes immaterial.
estate tax exemption, provides Section 3. Property exempt What appears to have been ceded to NWC (later transferred
from tax. The exemptions shall be as follows: (a) Property to NDC), in the case before Us, is merely the administration
owned by the United States of America, the Commonwealth of the property while the government retains ownership of
of the Philippines, any province, city, municipality at what has been declared reserved for warehousing purposes
municipal district. under Proclamation No. 430.
The same opinion of NDC was passed upon in National A reserved land is defined as a "[p]ublic land that has been
Development Co. v. Province of Nueva Ecija where We held withheld or kept back from sale or disposition." The land
that its properties were not comprehended in Sec. 3, par (a), remains "absolute property of the government." The
of the Assessment Law. Commonwealth Act No. 182 which government "does not part with its title by reserving them
created NDC contains no provision exempting it from the (lands), but simply gives notice to all the world that it desires
payment of real estate tax on properties it may acquire. NDC them for a certain purpose." Absolute disposition of land is
does not come under classification of municipal or public not implied from reservation; it merely means "a withdrawal
corporation in the sense that it may sue and be sued in the of a specified portion of the public domain from disposal
same manner as any other private corporations, and in this under the land laws and the appropriation thereof, for the
sense, it is an entity different from the government, NPC time being, to some particular use or purpose of the general
may be sued without its consent, and is subject to taxation. government." As its title remains with the Republic, the
That plaintiff herein does not exercise sovereign powers reserved land is clearly recovered by the tax exemption
and, hence, cannot invoke the exemptions thereof but is an provision.
agency for the performance of purely corporate, proprietary CEBU nevertheless contends that the reservation of the
or business functions, is apparent from its Organic Act. property in favor of NWC or NDC is a form of disposition of
We find no compelling reason why the foregoing ruling, public land which, subjects the recipient (NDC ) to real estate
although referring to lands which would eventually be taxation under Sec. 115 of the Public Land Act.
transferred to private individuals, should not apply equally to The essential question then is whether lands reserved
this case. pursuant to Sec. 83 are comprehended in Sec. 115 and,
NDC cites Board of Assessment Appeals, Province of Laguna therefore, taxable.
v. CTA and National Waterworks and Sewerage Authority Section 115 of the Public Land Act should be treated as an
(NWSA). In that case, the properties of NWSA, a GOCC, were exception to Art. 3, par. (a), of the Assessment Law. While
exempt from real estate tax because Sec. 3, par (c), of R.A. ordinary public lands are tax exempt because title thereto
470 did not distinguish between those possessed by the belongs to the Republic, Sec. 115 subjects them to real
government in sovereign/governmental/political capacity estate tax even before ownership thereto is transferred in
and those in private proprietary patrimonial character. The the name of the beneficiaries. Sec. 115 comprehends three
conflict between NDC v. Nueva Ecija, supra, and BAA v. CTA (3) modes of disposition of Lands under the Public Land Act,
and NWSA, , is more superficial than real. The NDC decision to wit: homestead, concession, and contract.
speaks of properties owned by NDC, while the BAA ruling Liability to real property taxes under Sec. 115 is predicated
concerns properties belonging to the Republic on (a) filing of homestead application, (b) approval of
concession and, (c) signing of contract. Significantly, without
42 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

these words, the date of the accrual of the real estate tax liable, and therefore could not have been made under
would be indeterminate. Since NDC is not a homesteader protest, but with complete voluntariness. In any case, a
and no "contract" (bilateral agreement) was signed, it would taxpayer should not be held to suffer loss by his good
appear, then, that reservation under Sec. 83, being a intention to comply with what he believes is his legal
unilateral act of the President, falls under "concession". obligation, where such obligation does not really exist . . .
"Concession" as a technical term under the Public Land Act is The fact that petitioner paid thru error or mistake, and the
synonymous with "alienation" and "disposition", and is government accepted the payment, gave rise to the
defined in Sec. 10 as "any of the methods authorized by this application of the principle of solutio indebiti under Article
Act for the acquisition, lease, use, or benefit of the lands of 2154 of the New Civil Code, which provides that "if
the public domain other than timber or mineral lands." something is received when there is no right to demand it,
Logically, where Sec. 115 contemplates authorized methods and it was unduly delivered through mistake, the obligation
for acquisition, lease, use, or benefit under the Act, the to return it arises." There is, therefore, created a tie or
taxability of the land would depend on whether reservation juridical relation in the nature of solutio indebiti, expressly
under Sec. 83 is one such method of acquisition, etc. Tersely classified as quasi-contract under Section 2, Chapter I of Title
put, is reservation synonymous with alienation? Or, are the XVII CC.
two terms antithetical and mutually exclusive? Indeed, The quasi-contract of solutio indebiti is one of the concrete
reservation connotes retention, while concession (alienation) manifestations of the ancient principle that no one shall
signifies cession. enrich himself unjustly at the expense of another . . . Hence,
Section 8 and 88 of the Public Land Act provide that reserved it would seem unedifying for the government, that knowing it
lands are excluded from that may be subject of disposition. has no right at all to collect or to receive money for alleged
As We view it, the effect of reservation under Sec. 83 is to taxes paid by mistake, it would be reluctant to return the
segregate a piece of public land and transform it into non- same . . . Petitioner is not unsatisfied in the assessment of its
alienable or non-disposable under the Public Land Act. property. Assessment having been made, it paid the real
Section 115, on the other hand, applies to disposable public estate taxes without knowing that it is
lands. Clearly, therefore, Sec. 115 does not apply to lands
reserved under Sec. 83. Consequently, the subject reserved Prov. of Tarlac v. Judge Alcantara (1992)
public land remains tax exempt. Facts: Tarlac Enterprises Inc is the owner of a parcel of land
However, as regards the warehouse constructed on a public in Mabini, Tarlac, an ice drop factory in said land, machinery
reservation, a different rule should apply because "[t]he shed and other machinery. These properties were declared
exemption of public property from taxation does not extend for purposes of Taxation in the Provincial Assessor’s Office.
to improvements on the public lands made by pre- The Provincial Treasurer found that real estate taxes for the
emptioners, homesteaders and other claimants, or years 1974 until 1992 in the amount of P532,435.55
occupants, at their own expense, and these are taxable by including penalties were not yet paid. Therefore, the
the state . . ." Consequently, the warehouse constructed on Provincial Treasurer Jose Meru filed a complaint praying that
the reserved land by NWC (now under administration by the company pay the said sum as well as damages.
NDC), indeed, should properly be assessed real estate tax as The company filed a motion to dismiss. But the lower court
such improvement does not appear to belong to the denied the motion. Thereafter, petitioner set the auction sale
Republic. of the private respondent's properties to satisfy the real
Since the reservation is exempt from realty tax, the estate taxes due. This prompted the private respondent to
erroneous tax payments collected by CEBU should be file a motion praying that petitioner be directed to desist
refunded to NDC. This is in consonance with Sec. 40, par. (a) from proceeding with the public auction sale. The lower court
of the former Real Property Tax Code which exempted from issued an order granting said motion to prevent mootness of
taxation real property owned by the Republic of the the case considering that the properties to be sold were the,
Philippines or any of its political subdivisions, as well as any subjects of the complaint.
GOCC so exempt by its charter. The company then filed an answer saying that
As regards the requirement of paying under protest before under Section 40(g) of PD46 in relation to PD 551, it was
judicial recourse, CEBU argues that in any case NDC is not exempt from paying said tax. The court rendered the
entitled to refund because Sec. 75 of R.A. 3857, the Revised decision dismissing the complaint. It ruled that P.D. No. 551
Charter of the City of Cebu, requires payment under protest expressly exempts private respondent from paying the real
before resorting to judicial action for tax refund; that it could property taxes demanded, it being a grantee of a franchise
not have acted on the first demand letter of NDC of 20 May to generate, distribute and sell electric current for light. The
1970 because it was sent to the City Assessor and not to the court held that in lieu of said taxes, private respondent had
City Treasurer; that, consequently, there having been no been required to pay 2% franchise tax in line with the intent
appropriate prior demand, resort to judicial remedy is of the law to give assistance to operators such as the private
premature; and, that even on the premise that there was respondent to enable the consumers to enjoy cheaper rates.
proper demand, NDC has yet to exhaust administrative
remedies by way of appeal to the Department of Finance Issue: WON Tarlac Enterprises, Inc. is exempt from the
and/or Auditor General before taking judicial action. payment of real property tax under Sec. 40 (g) of P.D. No.
NDC does not agree. It disputes the applicability of the 464 in relation to P.D. No. 551, as amended.
payment-under-protest requirement is Sec. 75 of the Revised
Cebu City Charter because the issue is not the validity of tax Held: No
assessment but recovery of erroneous payments under Arts.
2154 and 2155 of the Civil Code. It cites the case of East Ratio: Sec. 40(g) of P.D. No. 464, the Real Property Tax
Asiaticvs City of Davao which held that where the tax is Code, provides: SEC. 40. Exemptions from Real Property Tax.
unauthorized, "it is not a tax assessed under the charter of - The exemption shall be as follows: (g) Real property
the City of Davao and for that reason no protest is necessary exempt under other laws.
for a claim or demand for its refund." Private respondent contends that the "other laws" referred to
In the case at bar, petitioner, therefore, cannot be said to in this Section is P.D. No. 551 (Lowering the Cost to
have waived his right. He had no knowledge of the fact that Consumers of Electricity by Reducing the Franchise Tax
it was exempted from payment of the realty tax under Payable by Electric Franchise Holders and the Tariff on Fuel
Commonwealth Act No. 470. Payment was made through Oils for the Generation of Electric Power by Public Utilities).
error or mistake, in the honest belief that petitioner was Its pertinent provisions state: SECTION 1. Any provision of
43 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

law or local ordinance to the contrary notwithstanding, the We also find misplaced the lower court's and the private
franchise tax payable by all grantees of franchises to respondent's reliance on Butuan Sawmill. Inc. v. City of
generate, distribute and sell electric current for light, heat Butuan. In that case, the questioned tax is a tax on the gross
and power shall be two (2%) of their gross receipts received sales or receipts of said sawmill while the tax involved herein
from the sale of electric current and from transactions is a real property tax. The City of Butuan is categorically
incident to the generation, distribution prohibited therein by Sec. 2(j) of the Local Autonomy Act
We do not agree with the lower court that the phrase "in lieu from imposing "taxes of any kind . . . on person paying
of all taxes and assessments of whatever nature" in the franchise tax." On the other hand, P.D. No. 551 is not as all-
second paragraph of Sec. 1 of P.D. No. 551 expressly encompassing as said provision of the Local Autonomy Act
exempts private respondent from paying real property taxes. for it enumerates the items which are not taxable by virtue
As correctly observed by the petitioner, said proviso is of the payment of franchise tax.
modified and delimited by the phrase "on earnings, receipts. It has always been the rule that "exemptions from taxation
income and privilege of generation, distribution and sale" are construed in strictissimi juris against the taxpayer and
which specifies the kinds of taxes and assessments which liberally in favor of the taxing authority" primarily because
shall not be collected in view of the imposition of the "taxes are the lifeblood of government and their prompt and
franchise tax. Said enumerated items upon which taxes shall certain availability is an imperious need." Thus, to be
not be imposed, have no relation at all to, and are entirely exempted from payment of taxes, it is the taxpayer's duty to
different from. real properties subject to tax. justify the exemption "by words too plain to be mistaken and
If the intention of the law is to exempt electric franchise too categorical to be misinterpreted.; Private respondent has
grantees from paying real property tax and to make the 2% utterly failed to discharge this duty.
franchise tax the only imposable tax, then said enumerated
items would not have been added when PD 852 was enacted 8.3 Shares of LGUS in national taxes
to amend P.D. No. 551. The legislative authority would have
simply stopped after the phrase "national or local authority" Pimentel v. Aguirre (2000)
by putting therein a period. On the contrary, it went on to Facts: On December, 1997, the President issued AO 372
enumerate what should not be subject to tax thereby (Adoption of Economy Measures in Government for FY 1998).
delimiting the extent of the exemption. On December, 1998, President Estrada issued AO 43,
We likewise do not find merit in private respondent's amending Section 4 of AO 372, by reducing to five percent
contention that the real properties being taxed, viz., the (5%) the amount of internal revenue allotment (IRA) to be
machinery for the generation and distribution of electric withheld from the LGUs. Petitioner contends that by issuing
power, the building housing said machinery, and the land on AO 372, the President exercised the power of control over
which said building is constructed, are necessary for the LGUs. Moreover, withholding 10% of the IRA is in
operation of its business of generation, distribution and sale contravention of Sec 286 LGC and of Sec 6 Article X of the
of electric current and, therefore, they should be exempted Constitution, providing for the automatic release to each of
from taxation. Private respondent apparently does not quite these units its share in the national internal revenue. The Sol
comprehend the distinction among the subject matters or Gen claims that AO 372 was issued merely as an exercise of
objects of the taxes involved. It bears emphasis that P.D. No. the President’s power of supervision over LGUs.
551 as amended by P.D. No. 852 deals with franchise tax and
tariff on fuel oils and the "earnings, receipts, income and Section 4 of Article X of the Consti confines the President's
privilege of generation, distribution and sale of electric power over local governments to general supervision. This
current" are the items exempted from taxation by the provision has been interpreted to exclude the power of
imposition of said tax or tariff duty. On the other hand, the control. In Mondano v. Silvosa, the SC contrasted
collection complaint filed by petitioner specified only taxes supervision and control, thus: "supervision means
due on real properties. While P.D. No. 551 was intended to overseeing or the power or authority of an officer to see that
give "assistance to the franchise holders by reducing some subordinate officers perform their duties. If the latter fail or
of their tax and tariff obligations," to construe said decree as neglect to fulfill them, the former may take such action or
having granted such franchise holders exemption from step as prescribed by law to make them perform their duties.
payment of real property tax would unduly extend the ambit Control, on the other hand, means the power of an officer to
of exemptions beyond the purview of the law. alter or modify or nullify or set aside what a subordinate
The annexes attached to private respondent's comment on officer ha[s] done in the performance of his duties and to
the petition to prove by contemporaneous interpretation its substitute the judgment of the former for that of the latter."
claimed tax exemption are not of much help to it. In Drilon v. Lim, the difference between control and
Department Order No. 35-74 dated September 16, 1974 11 supervision was further delineated. Officers in control lay
regulating the implementation of P.D. No. 551 merely down the rules in the performance or accomplishment of an
reiterates the "in lieu of all taxes" proviso. Local Tax act. If these rules are not followed, they may, in their
Regulations No. 3-75 12 issued by then Secretary of Finance discretion, order the act undone or redone by their
Cesar Virata and addressed to all Provincial and City subordinates or even decide to do it themselves. On the
Treasurers enjoins strict compliance with the directive that other hand, supervision does not cover such authority.
"the franchise tax imposed under Local Tax Ordinances Supervising officials merely see to it that the rules are
pursuant to Section 19 of the Local Tax Code, as amended, followed, but they themselves do not lay down such rules,
shall be collected from business holding franchises but not nor do they have the discretion to modify or replace them. If
from establishments whose franchise contains the in lieu of the rules are not observed, they may order the work done or
all taxes' proviso," thereby clearly indicating that said redone, but only to conform to such rules. They may not
proviso exempts taxpayers like private respondent from prescribe their own manner of execution of the act. Thus,
paying the franchise tax collected by the provinces under members of the cabined and other executive officials are
the Local Tax Code. Lastly, the letter 13 of the then Bureau merely alter egos of the President. As such, they are subject
of Internal Revenue Acting Commissioner addressed to the to the power of control of the President, at whose will and
Matic Law Office granting exemption to the latter's client behest they can be removed from office; or their actions and
from paying the "privilege (fixed) tax which is an excise tax decisions changed, suspended or reversed. In contrast, the
on the privilege of engaging in business" clearly excludes heads of political subdivisions are elected by the people. By
realty tax from such exemption. constitutional fiat, they are subject to the President’s
44 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

supervision only, not control, so long as their acts are local and national officials, who in any case are partners in
exercised within the sphere of their legitimate powers. the attainment of national goals.
Hand in hand with the constitutional restraint on the Local fiscal autonomy does not however rule out any manner
President's power over local governments is the state policy of national government intervention by way of supervision,
of ensuring local autonomy. In Ganzon v. Court of Appeals, in order to ensure that local programs, fiscal and otherwise,
we said that local autonomy signified "a more responsive are consistent with national goals. Significantly, the
and accountable local government structure instituted President, by constitutional fiat, is the head of the economic
through a system of decentralization." The grant of and planning agency of the government, primarily
autonomy is intended to "break up the monopoly of the responsible for formulating and implementing continuing,
national government over the affairs of local governments, coordinated and integrated social and economic policies,
x x x not x x x to end the relation of partnership and plans and programs for the entire country. However, under
interdependence between the central administration and the Constitution, the formulation and the implementation of
local government units x x x." Paradoxically, local such policies and programs are subject to "consultations with
governments are still subject to regulation, however limited, the appropriate public agencies, various private sectors, and
for the purpose of enhancing self-government. local government units." The President cannot do so
Decentralization simply means the devolution of national unilaterally.
administration, not power, to local governments. Local There are therefore several requisites before the President
officials remain accountable to the central government as may interfere in local fiscal matters: (1) an unmanaged
the law may provide. The difference between public sector deficit of the national government; (2)
decentralization of administration and that of power was consultations with the presiding officers of the Senate and
explained in detail in Limbona v. Mangelin as follows: the House of Representatives and the presidents of the
"Now, autonomy is either decentralization of administration various local leagues; and (3) the corresponding
or decentralization of power. There is decentralization of recommendation of the secretaries of the Department of
administration when the central government delegates Finance, Interior and Local Government, and Budget and
administrative powers to political subdivisions in order to Management. Furthermore, any adjustment in the allotment
broaden the base of government power and in the process to shall in no case be less than thirty percent (30%) of the
make local governments 'more responsive and accountable,' collection of national internal revenue taxes of the third
and 'ensure their fullest development as self-reliant fiscal year preceding the current one.
communities and make them more effective partners in the While the wordings of Section 1 of AO 372 have a rather
pursuit of national development and social progress.' At the commanding tone, and while we agree with petitioner that
same time, it relieves the central government of the burden the requirements of Section 284 of the LGC have not been
of managing local affairs and enables it to concentrate on satisfied, we are prepared to accept the solicitor general's
national concerns. The President exercises 'general assurance that the directive to "identify and implement
supervision' over them, but only to 'ensure that local affairs measures x x x that will reduce total expenditures x x x by
are administered according to law.' He has no control over at least 25% of authorized regular appropriation" is merely
their acts in the sense that he can substitute their judgments advisory in character, and does not constitute a mandatory
with his own. or binding order that interferes with local autonomy. The
Under the Philippine concept of local autonomy, the national language used, while authoritative, does not amount to a
government has not completely relinquished all its powers command that emanates from a boss to a subaltern. Rather,
over local governments, including autonomous regions. Only the provision is merely an advisory to prevail upon local
administrative powers over local affairs are delegated to executives to recognize the need for fiscal restraint in a
political subdivisions. The purpose of the delegation is to period of economic difficulty. Indeed, all concerned would do
make governance more directly responsive and effective at well to heed the President's call to unity, solidarity and
the local levels. In turn, economic, political and social teamwork to help alleviate the crisis. It is understood,
development at the smaller political units are expected to however, that no legal sanction may be imposed upon LGUs
propel social and economic growth and development. But to and their officials who do not follow such advice. It is in this
enable the country to develop as a whole, the programs and light that we sustain the solicitor general's contention in
policies effected locally must be integrated and coordinated regard to Section 1.
towards a common national goal. Thus, policy-setting for the
entire country still lies in the President and Congress. As we Issue: WON withholding a part of LGUs IRA is valid
stated in Magtajas v. Pryce Properties Corp., Inc., municipal
governments are still agents of the national government. Held: No

Issue: WON Section 1 of AO 372, insofar as it "directs" Ratio: Section 4 of AO 372 cannot, however, be upheld. A
LGUs to reduce their expenditures by 25% is valid basic feature of local fiscal autonomy is the automatic
release of the shares of LGUs in the national internal
Held: Yes revenue. This is mandated by no less than the Constitution.
The LGC specifies further that the release shall be made
Ratio: Under existing law, LGU, in addition to having directly to the LGU concerned within 5 days after every
administrative autonomy, enjoy fiscal autonomy as well. quarter of the year and "shall not be subject to any lien or
Fiscal autonomy means that local governments have the holdback that may be imposed by the national government
power to create their own sources of revenue in addition to for whatever purpose." As a rule, the term "shall" is a word
their equitable share in the national taxes released by the of command that must be given a compulsory meaning. The
national government, as well as the power to allocate their provision is, therefore, imperative. Section 4 of AO 372,
resources in accordance with their own priorities. It extends however, orders the withholding, effective January 1, 1998,
to the preparation of their budgets, and local officials in turn of 10 percent of the LGUs' IRA "pending the assessment and
have to work within the constraints thereof. They are not evaluation by the Development Budget Coordinating
formulated at the national level and imposed on local Committee of the emerging fiscal situation" in the country.
governments, whether they are relevant to local needs and Such withholding clearly contravenes the Constitution and
resources or not. Hence, the necessity of a balancing of the law. Although temporary, it is equivalent to a holdback,
viewpoints and the harmonization of proposals from both which means "something held back or withheld, often
temporarily." Hence, the "temporary" nature of the retention
45 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

by the national government does not matter. Any retention be struck down for being in contravention of the
is prohibited. requirements of due process, as originally held by the CA.
In sum, while Section 1 of AO 372 may be upheld as an Moreover, the enforcement and administration of the
advisory effected in times of national crisis, Section 4 thereof provisions of the Ordinance resides with the Zoning
has no color of validity at all. The latter provision effectively Administrator . It is said official who may call upon the City
encroaches on the fiscal autonomy of local governments. Fiscal to institute the necessary legal proceedings to enforce
Concededly, the President was well-intentioned in issuing his the provisions of the Ordinance. And any person aggrieved
Order to withhold the LGUs’ IRA, but the rule of law requires by the decision of the Zoning Administrator regarding the
that even the best intentions must be carried out within the enforcement of the Ordinance may appeal to the Board of
parameters of the Constitution and the law. Verily, laudable Zoning Appeals.
purposes must be carried out by legal methods. That a summary remedy can not be resorted to is further
evident from the penal provisions. Violation of a municipal
4 Abatement of Nuisance ordinance neither empowers the Municipal Mayor to avail of
extra-judicial remedies. On the contrary, the Local
Estate of Gregoria Francisco v. CA Government Code imposes upon him the duty "to cause to
Facts: A quonset was constructed by the American be instituted judicial proceedings in connection with the
Liberation Forces in 1944. It was purchased in 1946 by violation of ordinances".
Gregoria Francisco. It stands on a lot owned by the PPA and Respondents can not seek cover under the general welfare
faces the municipal wharf. By virtue of Proclamation No. 83 clause authorizing the abatement of nuisances without
issued by President Elpidio Quirino, said land was declared judicial proceedings. That tenet applies to a nuisance per se
for the exclusive use of port facilities. The PPA issued to Tan or one which affects the immediate safety of persons and
Gin San, spouse of Gregoria Francisco, a permit to occupy property and may be summarily abated under the undefined
the lot where the building stands for a period of one (1) year, law of necessity. The storage of copra in the quonset building
to expire on 31 December 1989. The permittee was using is a legitimate business. By its nature, it can not be said to
the quonset for the storage of copra. be injurious to rights of property, of health or of comfort of
On May 1989, the Mayor notified Tan Gin San to remove or the community. If it be a nuisance per accidens it may be so
relocate its Quonset building citing Ordinance No. 147, proven in a hearing conducted for that purpose. It is not per
noting its antiquated and dilapidated structure; and se a nuisance warranting its summary abatement without
stressing the "clean-up campaign on illegal squatters and judicial intervention. While the Sangguniang Bayan may
unsanitary surroundings along Strong Boulevard." Since the provide for the abatement of a nuisance (Local Government
notifications remained unheeded, the Mayor ordered the Code, Sec. 149 (ee) ), it can not declare a particular thing as
demolition on 24 May 1989. a nuisance per se and order its condemnation. The nuisance
Petitioner sought a Writ of Prohibition with Injunction and can only be so adjudged by judicial determination.
Damages before the RTC of Basilan. The RTC denied the writ Petitioner was in lawful possession of the lot and quonset
and upheld the power of the Mayor to order the demolition building by virtue of a permit from the PPA when demolition
without judicial authority pursuant to Ordinance 147. On 6 was effected. It was not squatting on public land. Its property
September 1989, petitioner's quonset building was was not of trifling value. It was entitled to an impartial
completely demolished. In its place sprang shanties and nipa hearing before a tribunal authorized to decide whether the
huts. quonset building did constitute a nuisance in law. There was
The CA reversed the RTC and ruled that the mayor was not no compelling necessity for precipitate action. It follows then
vested with power to order summarily without any judicial that the public officials of Isabela, Basilan, transcended their
proceeding to demolish the Quonset building which was not authority in abating summarily petitioner's quonset building.
a nuisance per se. However, upon reconsideration, the CA They had deprived petitioner of its property without due
reversed itself and ruled that the deficiency was remedied process of law. The fact that petitioner filed a suit for
when petitioner filed a petition for prohibition and injunction prohibition and was subsequently heard thereon will not cure
and was heard on oral argument. the defect, as opined by the CA, the demolition having been
a fait accompli prior to hearing and the authority to demolish
Issue: WON the Mayor could summarily, without judicial without a judicial order being a prejudicial issue.
process, order the demolition of petitioner's quonset
building. Technology Developers, Inc v. CA (1991)
Facts: Petitioner received a letter from private respondent
Held: No acting mayor Pablo N. Cruz, ordering the full cessation of the
operation of the petitioner's plant located at Guyong, Sta.
Ratio: Ordinance No. 147, enacted on 27 December 1977, Maria, Bulacan. The letter requested Plant Manager Armando
and relied upon by respondents, is entitled "An Ordinance Manese to bring with him to the office of the mayor on
Establishing Comprehensive Zoning Regulations for the February 20, 1989 the following: a) Building permit; b)
Municipality of Isabela." It is not disputed that the quonset Mayor's permit; c) Region III-Pollution of Environment and
building, which is being used for the storage of copra, is Natural Resources Anti-Pollution Permit; and of other
located outside the zone for warehouses. It is referred to in document.
Ordinance as a non-conforming structure, which should be At the requested conference, petitioner undertook to comply
relocated. And in the event that an immediate relocation of with respondent's request for the production of the required
the building can not be accomplished, Sec 16 of the documents. Petitioner commenced to secure "Region III-
Ordinance provides: A certificate of non-conformance for all DENR Anti-Pollution Permit," although among the permits
non-conforming uses shall be applied for by the owner or previously secured prior to the operation of petitioner's plant
agent of the property involved within 12mo from the was a "Temporary Permit to Operate Air Pollution Installation"
approval of this Ordinance, otherwise the non-conforming issued by the then National Pollution Control Commission
use may be condemned or removed at the owner's expense. and is now at a stage where the Environmental Management
Even granting that petitioner failed to apply for a Certificate Bureau is trying to determine the correct kind of anti-
of Non-conformance, the provision should not be interpreted pollution devise to be installed as part of petitioner's request
as authorizing the summary removal of a non-conforming for the renewal of its permit.
building by the municipal government. For if it does, it must Petitioner's attention having been called to its lack of
mayor's permit, it sent its representatives to the office of the
46 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

mayor to secure the same but were not entertained. On April directly to the surrounding houses and that no proper air
6, 1989, without previous and reasonable notice upon pollution device has been installed.
petitioner, respondent ordered the Municipality's station 5. Petitioner failed to produce a building permit from the
commander to padlock the premises of petitioner's plant, municipality of Sta. Maria, but instead presented a building
thus effectively causing the stoppage of its operation. permit issued by an official of Makati on March 6, 1987.
Petitioner instituted an action for certiorari, prohibition, 6. While petitioner was able to present a temporary permit
mandamus with preliminary injunction against private to operate by the then National Pollution Control Commission
respondent. The judge found that petitioner is entitled to the on December 15, 1987, the permit was good only up to May
issuance of a writ of preliminary injunction upon posting of a 25, 1988. Petitioner had not exerted any effort to extend or
bond worth P50,000. During the MR, the Provincial validate its permit much less to install any device to control
Prosecutor presented his evidence prepared by Marivic the pollution and prevent any hazard to the health of the
Guina, “Due to the manufacturing process and nature of raw residents of the community.
materials used, the fumes coming from the factory may All these factors justify the dissolution of the writ of
contain particulate matters which are hazardous to the preliminary injunction by the trial court and the appellate
health of the people. As such, the company should cease court correctly upheld the action of the lower court.
operating until such a time that the proper air pollution Petitioner takes note of the plea of petitioner focusing on its
device is installed and operational." The lower court then set huge investment in this dollar-earning industry. It must be
aside the order which granted a writ of preliminary stressed however, that concomitant with the need to
mandatory injunction and dissolved the writ issued. promote investment and contribute to the growth of the
economy is the equally essential imperative of protecting the
Issue: WON the writ of preliminary injunction should be health, nay the very lives of the people, from the deleterious
granted effect of the pollution of the environment.

Held: No Laguna Lake Development Authority v. CA (1995)

Facts: RA 4850 was enacted creating the "Laguna Lake
Ratio: The matter of issuance of a writ of preliminary Development Authority." This agency was supposed to
injunction is addressed to the sound judicial discretion of the accelerate the development and balanced growth of the
trial court and its action shall not be disturbed on appeal Laguna Lake area and the surrounding provinces, cities and
unless it is demonstrated that it acted without jurisdiction or towns, in the act, within the context of the national and
in excess of jurisdiction or otherwise, in grave abuse of its regional plans and policies for social and economic
discretion. By the same token the court that issued such a development.
preliminary relief may recall or dissolve the writ as the PD 813 amended certain sections RA 4850 because of the
circumstances may warrant. concern for the rapid expansion of Metropolitan Manila, the
The following circumstances militate against the suburbs and the lakeshore towns of Laguna de Bay,
maintenance of the writ of preliminary injunction sought by combined with current and prospective uses of the lake for
petitioner: municipal-industrial water supply, irrigation, fisheries, and
1. No mayor's permit had been secured. While it is true that the like.
the matter of determining whether there is a pollution of the To effectively perform the role of the Authority under RA
environment that requires control if not prohibition of the 4850, the Chief Executive issued EO 927 further defined and
operation of a business is addressed to the National Pollution enlarged the functions and powers of the Authority and
Control Commission of the Ministry of Human Settlements, named and enumerated the towns, cities and provinces
now the Environmental Management Bureau, it must be encompassed by the term "Laguna de Bay Region". Also,
recognized that the mayor of a town has as much pertinent to the issues in this case are the following
responsibility to protect its inhabitants from pollution, and by provisions of EO 927 which include in particular the sharing
virtue of his police power, he may deny the application for a of fees:
permit to operate a business or otherwise close the same Sec 2: xxx the Authority shall have exclusive jurisdiction to
unless appropriate measures are taken to control and/or issue permit for the use of all surface water for any projects
avoid injury to the health of the residents of the community or activities in or affecting the said region including
from the emissions in the operation of the business. navigation, construction, and operation of fishpens, fish
2. The Acting Mayor called the attention of petitioner to the enclosures, fish corrals and the like.
pollution emitted by the fumes of its plant whose offensive SEC. 3. Collection of Fees. The Authority is hereby
odor "not only pollute the air in the locality but also affect empowered to collect fees for the use of the lake water and
the health of the residents in the area," so that petitioner its tributaries for all beneficial purposes including but not
was ordered to stop its operation until further orders and it limited to fisheries, recreation, municipal, industrial,
was required to bring the following: (1) Building permit; (2) agricultural, navigation, irrigation, and waste disposal
Mayor's permit; and (3) Region III-DENR Anti-Pollution purpose; Provided, that the rates of the fees to be collected,
permit. and the sharing with other government agencies and
3. This action of the Acting Mayor was in response to the political subdivisions, if necessary, shall be subject to the
complaint of the residents of Barangay Guyong, Sta. Maria, approval of the President of the Philippines upon
Bulacan, directed to the Provincial Governor through recommendation of the Authority's Board, except fishpen
channels. The NBI finding that some of the signatures in the fee, which will be shared in the following manner: 20 percent
4-page petition were written by one person, appears to be of the fee shall go to the lakeshore local governments, 5
true in some instances, (particularly as among members of percent shall go to the Project Development Fund which shall
the same family), but on the whole the many signatures be administered by a Council and the remaining 75 percent
appear to be written by different persons. The certification of shall constitute the share of LLDA. However, after the
the barrio captain of said barrio that he has not received any implementation within the three-year period of the Laguna
complaint on the matter must be because the complaint Lake Fishery Zoning and Management Plan the sharing will
was sent directly to the Governor through the Acting Mayor. be modified as follows: 35 percent of the fishpen fee goes to
4. The closure order of the Acting Mayor was issued only the lakeshore local governments, 5 percent goes to the
after an investigation was made by Marivic Guina who in her Project Development Fund and the remaining 60 percent
report observed that the fumes emitted by the plant goes shall be retained by LLDA; Provided, however, that the share
of LLDA shall form part of its corporate funds and shall not
47 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

be remitted to the National Treasury as an exception to the Issue: Which agency of the Government - the LLDA or the
provisions of Presidential Decree No. 1234. towns and municipalities comprising the region - should
Then came Republic Act No. 7160. The municipalities in the exercise jurisdiction over the Laguna Lake and its environs
Laguna Lake Region interpreted the provisions of this law to insofar as the issuance of permits for fishery privileges is
mean that the newly passed law gave municipal concerned?
governments the exclusive jurisdiction to issue fishing
privileges within their municipal waters because R.A. 7160 Held: LLDA
"Sec. 149. Fishery Rentals; Fees and Charges (a) Ratio: Section 4 (k) of RA 4850, the provisions of PD 813,
Municipalities shall have the exclusive authority to grant and Section 2 of EO 927, specifically provide that the LLDA
fishery privileges in the municipal waters and impose rental shall have exclusive jurisdiction to issue permits for the use
fees or charges therefor in accordance with the provisions of or all surface water for any projects or activities in or
this Section. affecting the said region, including navigation, construction,
Municipal governments thereupon assumed the authority to and operation of fishpens, fish enclosures, fish corrals and
issue fishing privileges and fishpen permits. Big fishpen the like. On the other hand, RA 7160 has granted to the
operators took advantage of the occasion to establish municipalities the exclusive authority to grant fishery
fishpens and fishcages to the consternation of the Authority. privileges in municipal waters. The Sangguniang Bayan may
Unregulated fishpens and fishcages occupied almost one- grant fishery privileges to erect fish corrals, oyster, mussels
third the entire lake water surface area, increasing the or other aquatic beds or bangus fry area within a definite
occupation drastically from 7,000 ha in 1990 to almost zone of the municipal waters.
21,000 ha in 1995. The Mayor's permit to construct fishpens The provisions of RA7160 do not necessarily repeal the laws
and fishcages were all undertaken in violation of the policies creating the LLDA and granting the latter water rights
adopted by the Authority on fishpen zoning and the Laguna authority over Laguna de Bay and the lake region.
Lake carrying capacity. In view of the foregoing The Local Government Code of 1991 does not contain any
circumstances, the Authority served notice to the general express provision which categorically expressly repeal the
public that: charter of the Authority. It has to be conceded that there was
“ 1. All fishpens, fishcages and other aqua-culture structures no intent on the part of the legislature to repeal Republic Act
in the Laguna de Bay Region, which were not registered or to No. 4850 and its amendments. The repeal of laws should be
which no application for registration and/or permit has been made clear and expressed.
filed with Laguna Lake Development Authority as of March It has to be conceded that the charter of the LLDA
31, 1993 are hereby declared outrightly as illegal. constitutes a special law. RA 7160 is a general law. It is basic
2. All fishpens; fishcages and other aqua-culture structures is basic in statutory construction that the enactment of a
so declared as illegal shall be subject to demolition which later legislation which is a general law cannot be construed
shall be undertaken by the Presidential Task Force for illegal to have repealed a special law. It is a well-settled rule in this
Fishpen and Illegal Fishing. jurisdiction that "a special statute, provided for a particular
3. Owners of fishpens, fishcages and other aqua-culture case or class of cases, is not repealed by a subsequent
structures declared as illegal shall, without prejudice to statute, general in its terms, provisions and application,
demolition of their structures be criminally charged in unless the intent to repeal or alter is manifest, although the
accordance with Section 39-A of Republic Act 4850 as terms of the general law are broad enough to include the
amended by P.D. 813 for violation of the same laws. cases embraced in the special law." Where there is a
Violations of these laws carries a penalty of imprisonment of conflict between a general law and a special statute, the
not exceeding 3 years or a fine not exceeding Five Thousand special statute should prevail since it evinces the legislative
Pesos or both at the discretion of the court. intent more clearly that the general statute. The special law
All operators of fishpens, fishcages and other aqua-culture is to be taken as an exception to the general law in the
structures declared as illegal in accordance with the absence of special circumstances forcing a contrary
foregoing Notice shall have one (1) month on or before 27 conclusion. This is because implied repeals are not favored
October 1993 to show cause before the LLDA why their said and as much as possible, given to all enactments of the
fishpens, fishcages and other aqua-culture structures should legislature. A special law cannot be repealed, amended or
not be demolished/dismantled." altered by a subsequent general law by mere implication.
One month, thereafter, the Authority sent notices to the Considering the reasons behind the establishment of the
concerned owners of the illegally constructed fishpens, Authority, which are enviromental protection, navigational
fishcages and other aqua-culture structures advising them to safety, and sustainable development, there is every
dismantle their respective structures within 10 days from indication that the legislative intent is for the Authority to
receipt thereof, otherwise, demolition shall be effected. proceed with its mission.
The fishpen owners filed injunction cases against the LLDA. We are on all fours with the manifestation of LLDA that
The LLDA filed motions to dismiss the cases against it on "Laguna de Bay, like any other single body of water has its
jurisdictional grounds. The motions to dismiss were denied. own unique natural ecosystem. The 900 km lake surface
Meanwhile, TRO/writs of preliminary mandatory injunction water, the 8 major river tributaries and several other smaller
were issued enjoining the LLDA from demolishing the rivers that drain into the lake, the 2,920 km2 basin or
fishpens and similar structures in question. Hence, the watershed transcending the boundaries of Laguna and Rizal
present petition for certiorari, prohibition and injunction. The provinces, constitute one integrated delicate natural
CA dismissed the LLDA’s consolidated petitions. It ruled that ecosystem that needs to be protected with uniform set of
(A) LLDA is not among those quasi-judicial agencies of policies; if we are to be serious in our aims of attaining
government appealable only to the Court of Appeals; (B) the sustainable development. This is an exhaustible natural
LLDA charter does vest LLDA with quasi-judicial functions resource-a very limited one-which requires judicious
insofar as fishpens are concerned; (C) the provisions of the management and optimal utilization to ensure renewability
LLDA charter insofar as fishing privileges in Laguna de Bay and preserve its ecological integrity and balance. Managing
are concerned had been repealed by the Local Government the lake resources would mean the implementation of a
Code of 1991; (D) in view of the aforesaid repeal, the power national policy geared towards the protection, conservation,
to grant permits devolved to respective local government balanced growth and sustainable development of the region
units concerned. with due regard to the inter-generational use of its resources
by the inhabitants in this part of the earth. The authors of
48 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

Republic Act 4850 have foreseen this need when they unnecessary considering that there are still available lots in
passed this LLDA law-the special law designed to govern the Bunawan for the establishment of the government center."
management of our Laguna de Bay lake resources. Laguna The municipality filed a petition for eminent domain against
de Bay therefore cannot be subjected to fragmented Percival Moday before the RTC. The municipality then filed a
concepts of management policies where lakeshore local motion to take or enter upon the possession of the land upon
government units exercise exclusive dominion over specific deposit with the municipal treasurer of the required amount.
portions of the lake water. The implementation of a cohesive The RTC granted the motion. It ruled that the Sangguniang
and integrated lake water resource management policy, Panlalawigan's failure to declare the resolution invalid leaves
therefore, is necessary to conserve, protect and sustainably it effective. It added that the duty of the Sangguniang
develop Laguna de Bay." Panlalawigan is merely to review the ordinances and
The power of the LGUs to issue fishing privileges was clearly resolutions passed by the Sangguniang Bayan under Section
granted for revenue purposes. This is evident from the fact 208 (1) of B.P. Blg. 337, old Local Government Code and that
that Section 149 of the New Local Government Code the exercise of eminent domain is not one of the acts
empowering local governments to issue fishing permits is enumerated in Section 19 requiring the approval of the
embodied in Chapter 2, Book II, of Republic Act No. 7160 Sangguniang Panlalawigan.
under the heading, "Specific Provisions On The Taxing And Petitioners elevated the case in a petition for certiorari
Other Revenue Raising Power of LGUs.” before the CA. The CA held that the public purpose for the
On the other hand, the power of the Authority to grant expropriation is clear from Resolution No. 43-89 and that
permits for fishpens, fishcages and other aqua-culture since the Sangguniang Panlalawigan of Agusan del Sur did
structures is for the purpose of effectively regulating and not declare Resolution No. 43-89 invalid, expropriation of
monitoring activities in the Laguna de Bay region and for petitioners' property could proceed. Meanwhile, the
lake quality control and management. 6 It does partake of Municipality had erected three buildings on the subject
the nature of police power which is the most pervasive, the property: the Association of Barangay Councils (ABC) Hall,
least limitable and the most demanding of all State powers the Municipal Motorpool, both wooden structures, and the
including the power of taxation. Accordingly the charter of Bunawan Municipal Gymnasium, which is made of concrete.
the Authority which embodies a valid exercise of police In the instant petition for review, petitioner seeks the
power should prevail over the Local Government Code of reversal of the decision and resolution of the CA and a
1991 on matters affecting Laguna de Bay. declaration that Resolution No. 43-89 of the Municipality of
There should be no quarrel over permit fees for fishpens, Bunawan is null and void.
fishcages and other aqua-culture structures in the Laguna de
Bay area. Section 3 of Executive Order No. 927 provides for Issue: WON a municipality may expropriate private
the proper sharing of fees collected. property by virtue of a municipal resolution which was
In respect to the question as to whether the Authority is a disapproved by the Sangguniang Panlalawigan.
quasi-judicial agency or not, it is our holding that,
considering the provisions of Section 4 of Republic Act No. Held: Yes
4850 and Section 4 of Executive Order No. 927, series of
1983, and the ruling of this Court in Laguna Lake Ratio: Eminent domain, the power which the Municipality of
Development Authority vs. Court of Appeals, there is no Bunawan exercised in the instant case, is a fundamental
question that the Authority has express powers as a State power that is inseparable from sovereignty. It is
regulatory a quasi-judicial body in respect to pollution cases government's right to appropriate, in the nature of a
with authority to issue a "cease a desist order" and on compulsory sale to the State, private property for public use
matters affecting the construction of illegal fishpens, or purpose. Inherently possessed by the national legislature,
fishcages and other aqua-culture structures in Laguna de the power of eminent domain may be validly delegated to
Bay. The Authority's pretense, however, that it is co-equal to local governments, other public entities and public utilities.
the Regional Trial Courts such that all actions against it may For the taking of private property by the government to be
only be instituted before the Court of Appeals cannot be valid, the taking must be for public use and there must be
sustained. On actions necessitating the resolution of legal just compensation.
questions affecting the powers of the Authority as provided The Municipality's power to exercise the right of eminent
for in its charter, the Regional Trial Courts have jurisdiction. domain is not disputed as it is expressly provided for BP 337,
In view of the foregoing, this Court holds that Section 149 of the local Government Code in force at the time expropriation
RA 7160, otherwise known as the Local Government Code of proceedings were initiated. What petitioners question is the
1991, has not repealed the provisions of the charter of the lack of authority of the municipality to exercise this right
LLDA, Republic Act No. 4850, as amended. Thus, the since the Sangguniang Panlalawigan disapproved Resolution
Authority has the exclusive jurisdiction to issue permits for No. 43-89. The Sangguniang Panlalawigan's disapproval of
the enjoyment of fishery privileges in Laguna de Bay to the Resolution No. 43-89 is an infirm action which does not
exclusion of municipalities situated therein and the authority render said resolution null and void. The law, Section 153 of
to exercise such powers as are by its charter vested on it. B.P. Blg. 337, grants the Sangguniang Panlalawigan the
power to declare a municipal resolution invalid on the sole
8.5 Power of Eminent Domain: ground that it is beyond the power of the Sangguniang
Bayan or the Mayor to issue.
Moday et al v. Court of Appeals (1997) Velazco v. Blas: The only ground upon which a provincial
Facts: The Sangguniang Bayan of the Municipality of board may declare any municipal resolution, ordinance, or
Bunawan in Agusan del Sur passed Resolution No. 43-89, order invalid is when such resolution, ordinance, or order is
"Authorizing the Municipal Mayor to Initiate the Petition for "beyond the powers conferred upon the council or president
Expropriation of a One (1) Hectare Portion of Lot No. 6138- making the same." Absolutely no other ground is recognized
Pls-4 Along the National Highway Owned by Percival Moday by the law. A strictly legal question is before the provincial
for the Site of Bunawan Farmers Center and Other board in its consideration of a municipal resolution,
Government Sports Facilities." The Resolution was approved ordinance, or order. The provincial disapproval of any
by Mayor Anuncio Bustillo and was transmitted to the resolution, ordinance, or order must be premised specifically
Sangguniang Panlalawigan for its approval. upon the fact that such resolution, ordinance, or order is
The Sangguniang Panlalawigan disapproved said Resolution outside the scope of the legal powers conferred by law. If a
and returned it with the comment that "expropriation is provincial board passes these limits, it usurps the legislative
49 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

function of the municipal council or president. Such has been The CA set aside the order of the court and ordered the trial
the consistent course of executive authority. Thus, the court to suspend the expropriation proceedings until the
Sangguniang Panlalawigan was without the authority to province shall have submitted the requisite approval of the
disapprove Municipal Resolution No. 43-89 for the DAR.
Municipality of Bunawan clearly has the power to exercise
the right of eminent domain and its Sangguniang Bayan the Issue: WON the expropriation was proper
capacity to promulgate said resolution, pursuant to the
earlier-quoted Section 9 of B.P. Blg. 337. Perforce, it follows Ratio: The CA did not rule on the validity of the questioned
that Resolution No. 43-89 is valid and binding and could be resolution; neither did it dismiss the complaints. However,
used as lawful authority to petition for the condemnation of when the CA ordered the suspension of the proceedings until
petitioners' property. the Province shall have obtained the authority of the DAR to
As regards the accusation of political oppression, it is alleged change the classification of the lands sought to be
that Moday incurred the ire of then Mayor Bustillo when he expropriated from agricultural to non-agricultural use, it
refused to support the latter's candidacy for mayor in assumed that the resolution is valid and that the
previous elections. Petitioners claim that then incumbent expropriation is for a public purpose or public use.
Mayor Bustillo used the expropriation to retaliate by Public Purpose. Modernly, there has been a shift from the
expropriating their land even if there were other properties literal to a broader interpretation of "public purpose" or
belonging to the municipality and available for the purpose. "public use" for which the power of eminent domain may be
Specifically, they allege that the municipality owns a vacant exercised. The old concept was that the condemned property
seven-hectare property adjacent to petitioners' land, must actually be used by the general public (e.g. roads,
evidenced by a sketch plan. bridges, public plazas, etc.) before the taking thereof could
The limitations on the power of eminent domain are that the satisfy the constitutional requirement of "public use". Under
use must be public, compensation must be made and due the new concept, "public use" means public advantage,
process of law must be observed. The Supreme Court, taking convenience or benefit, which tends to contribute to the
cognizance of such issues as the adequacy of compensation, general welfare and the prosperity of the whole community,
necessity of the taking and the public use character or the like a resort complex for tourists or housing project.
purpose of the taking, has ruled that the necessity of The expropriation of the property authorized by the
exercising eminent domain must be genuine and of a public questioned resolution is for a public purpose. The
character. Government may not capriciously choose what establishment of a pilot development center would inure to
private property should be taken. the direct benefit and advantage of the people of the
Province of Camarines Sur. Once operational, the center
Prov. Of Camarines Sur v. Court of Appeals (1993) would make available to the community invaluable
Facts: The Sangguniang Panlalawigan of Camarines Sur information and technology on agriculture, fishery and the
passed Resolution No. 129, Series of 1988, authorizing the cottage industry. Ultimately, the livelihood of the farmers,
Provincial Governor to purchase or expropriate property fishermen and craftsmen would be enhanced. The housing
contiguous to the provincial capitol site, in order to establish project also satisfies the public purpose requirement of the
a pilot farm for non-food and non-traditional agricultural Constitution. As held in Sumulong v. Guerrero, "Housing is a
crops and a housing project for provincial government basic human need. Shortage in housing is a matter of state
employees. Pursuant to the Resolution, the Province through concern since it directly and significantly affects public
Governor Luis R.Villafuerte, filed two cases for expropriation health, safety, the environment and in sum the general
against Ernesto N. San Joaquin and Efren N. San Joaquin. welfare."
The San Joaquins moved to dismiss the complaints on the Eminent Domain vs CARL. It is the submission of the
ground of inadequacy of the price offered for their property. Province of Camarines Sur that its exercise of the power of
In an order, the trial court denied the motion to dismiss and eminent domain cannot be restricted by the provisions of the
authorized the Province to take possession of the property CARL, particularly Section 65, which requires the approval of
upon the deposit of P5,714.00. The trial court issued a writ of the DAR before a parcel of land can be reclassified from an
possession. The San Joaquins filed a motion for relief from agricultural to a non-agricultural land. The CA, following the
the order and a motion to admit an amended motion to recommendation of the Solicitor General, held that the
dismiss. Both motions were denied. Province of Camarines Sur must comply with the provision of
In their petition before the Court of Appeals, the San Section 65 of the CARK and must first secure the approval of
Joaquins asked: (a) that Resolution No. 129, Series of 1988 the Department of Agrarian Reform of the plan to
be declared null and void; (b) that the complaints for expropriate the lands of the San Joaquins.
expropriation be dismissed; and (c) that the order dated In Heirs of Juancho Ardana v. Reyes, while the Court said
December 6, 1989 (i) denying the motion to dismiss and (ii) that there was "no need under the facts of this petition to
allowing the Province to take possession of the property rule on whether the public purpose is superior or inferior to
subject of the expropriation and the order dated February another purpose or engage in a balancing of competing
26, 1990, denying the motion to admit the amended motion public interest," it upheld the expropriation after noting that
to dismiss, be set aside. They also asked that an order be petitioners had failed to overcome the showing that the
issued to restrain the trial court from enforcing the writ of taking of 8,970 sq m formed part of the resort complex. A
possession, and thereafter to issue a writ of injunction. fair and reasonable reading of the decision is that this Court
The Province claimed that it has the authority to initiate the viewed the power of expropriation as superior to the power
expropriation proceedings under Sections 4 and 7 of Local to distribute lands under the land reform program.
Government Code and that the expropriations are for a The Solicitor General denigrated the power to expropriate by
public purpose. The Solicitor General stated that under the Province of Camarines Sur by stressing the fact that
Section 9 of the Local Government Code, there was no need LGUs exercise such power only by delegation. It is true that
for the approval by the Office of the President of the exercise local government units have no inherent power of eminent
by the Sangguniang Panlalawigan of the right of eminent domain and can exercise it only when expressly authorized
domain. However, the Solicitor General expressed the view by the legislature. It is also true that in delegating the power
that the Province of Camarines Sur must first secure the to expropriate, the legislature may retain certain control or
approval of the Department of Agrarian Reform of the plan to impose certain restraints on the exercise thereof by the local
expropriate the lands of petitioners for use as a housing governments. While such delegated power may be a limited
project. authority, it is complete within its limits. Moreover, the
50 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

limitations on the exercise of the delegated power must be after payment of just compensation. In an action for eminent
clearly expressed, either in the law conferring the power or domain, therefore, the principal cause of action is the
in other legislations. exercise of such power or right. The fact that the action also
Section 9 of B.P. Blg. 337 does not intimate in the least that involves real property is merely incidental. An action for
local government, units must first secure the approval of the eminent domain is therefore within the exclusive original
Department of Land Reform for the conversion of lands from jurisdiction of the Regional Trial Court and not with this
agricultural to non-agricultural use, before they can institute Court."
the necessary expropriation proceedings. Likewise, there is On appeal, the RTC dismissed the complaint, holding that an
no provision in the Comprehensive Agrarian Reform Law action for eminent domain affected title to real property;
which expressly subjects the expropriation of agricultural hence, the value of the property to be expropriated would
lands by local government units to the control of the determine whether the case should be filed before the MTC
Department of Agrarian Reform. The closest provision of law or the RTC. The RTC concluded that the action should have
that the CA could cite to justify the intervention of the DAR in been filed before the MTC since the value of the subject
expropriation matters is Section 65 of the CARL. property was less than P20,000.
The opening, adverbial phrase of the provision sends signals Aggrieved, petitioner appealed directly to this Court, raising
that it applies to lands previously placed under the agrarian a pure question of law. Respondents contend that the
reform program as it speaks of "the lapse of five (5) years Complaint for Eminent Domain affects the title to or
from its award." possession of real property. Thus, they argue that the case
The rules on conversion of agricultural lands found in Section should have been brought before the MTC, pursuant to BP
4 (k) and 5 (1) of Executive Order No. 129-A, Series of 1987, 129 as amended by Section 3 (3) of RA 7691. This law
cannot be the source of the authority of the DAR to provides that MTCs shall have exclusive original jurisdiction
determine the suitability of a parcel of agricultural land for over all civil actions that involve title to or possession of real
the purpose to which it would be devoted by the property, the assessed value of which does not exceed
expropriating authority. While those rules vest on the twenty thousand pesos or, in civil actions in Metro Manila,
Department of Agrarian Reform the exclusive authority to fifty thousand pesos exclusive of interest, damages of
approve or disapprove conversions of agricultural lands for whatever kind, attorney’s fees, litigation expenses and costs.
residential, commercial or industrial uses, such authority is
limited to the applications for reclassification submitted by Issue: WON an expropriation suit is one incapable of
the land owners or tenant beneficiaries. pecuniary estimation and is therefore within the jurisdiction
Statutes conferring the power of eminent domain to political of the RTC
subdivisions cannot be broadened or constricted by
implication. To sustain the Court of Appeals would mean that Held: Yes
the LGUs can no longer expropriate agricultural lands
needed for the construction of roads, bridges, schools, Ratio: "A review of the jurisprudence of this Court
hospitals, etc, without first applying for conversion of the use indicates that in determining whether an action is one the
of the lands with the DAR, because all of these projects subject matter of which is not capable of pecuniary
would naturally involve a change in the land use. In effect, it estimation, this Court has adopted the criterion of first
would then be the DAR to scrutinize whether the ascertaining the nature of the principal action or remedy
expropriation is for a public purpose or public use. sought. If it is primarily for the recovery of a sum of money,
Ordinarily, it is the legislative branch of the local government the claim is considered capable of pecuniary estimation, and
unit that shall determine whether the use of the property whether jurisdiction is in the municipal courts or in the
sought to be expropriated shall be public, the same being an courts of first instance would depend on the amount of the
expression of legislative policy. The courts defer to such claim. However, where the basic issue is something other
legislative determination and will intervene only when a than the right to recover a sum of money, or where the
particular undertaking has no real or substantial relation to money claim is purely incidental to, or a consequence of, the
the public use. principal relief sought, like in suits to have the defendant
There is also an ancient rule that restrictive statutes, no perform his part of the contract (specific performance) and
matter how broad their terms are, do not embrace the in actions for support, or for annulment of a judgment or to
sovereign unless the sovereign is specially mentioned as foreclose a mortgage, this Court has considered such actions
subject thereto. The Republic of the Philippines, as as cases where the subject of the litigation may not be
sovereign, or its political subdivisions, as holders of estimated in terms of money, and are cognizable exclusively
delegated sovereign powers, cannot be bound by provisions by courts of first instance. The rationale of the rule is plainly
of law couched in general term. that the second class cases, besides the determination of
The fears of private respondents that they will be paid on the damages, demand an inquiry into other factors which the
basis of the valuation declared in the tax declarations of law has deemed to be more within the competence of courts
their property, are unfounded. This Court has declared as of first instance, which were the lowest courts of record at
unconstitutional the Presidential Decrees fixing the just the time that the first organic laws of the Judiciary were
compensation in expropriation cases to be the value given to enacted allocating jurisdiction.”
the condemned property either by the owners or the In the present case, an expropriation suit does not involve
assessor, whichever was lower. As held in Municipality of the recovery of a sum of money. Rather, it deals with the
Talisay v. Ramirez, the rules for determining just exercise by the government of its authority and right to take
compensation are those laid down in Rule 67 of the Rules of private property for public use. In National Power
Court, which allow private respondents to submit evidence Corporation v. Jocson, the Court ruled that expropriation
on what they consider shall be the just compensation for proceedings have two phases:
their property. "‘The first is concerned with the determination of the
authority of the plaintiff to exercise the power of eminent
Barangay San Roque v. Heirs of Pastor (2000) domain and the propriety of its exercise in the context of the
Facts: Petitioner filed before the MTC of Talisay, Cebu a facts involved in the suit. It ends with an order, if not of
Complaint to expropriate a property of the respondents. In dismissal of the action, ‘of condemnation declaring that the
an Order, the MTC dismissed the Complaint on the ground of plaintiff has a lawful right to take the property sought to be
lack of jurisdiction. It reasoned that "[e) minent domain is an condemned, for the public use or purpose described in the
exercise of the power to take private property for public use complaint, upon the payment of just compensation to be
51 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

determined as of the date of the filing of the complaint.’ An "for the purpose of alleviating the living conditions of the
order of dismissal, if this be ordained, would be a final one, underprivileged by providing homes for the homeless
of course, since it finally disposes of the action and leaves through a socialized housing project." Petitioner, pursuant to
nothing more to be done by the Court on the merits. So, too, its Sangguniang Bayan Resolution No. 577, Series of 1991,
would an order of condemnation be a final one, for thereafter previously made an offer to enter into a negotiated sale of
as the Rules expressly state, in the proceedings before the the property with private respondent, which the latter did
Trial Court, ‘no objection to the exercise of the right of not accept.
condemnation (or the propriety thereof) shall be filed or The RTC authorized petition to take possession of the subject
heard.’ property upon its deposit with the clerk of court of an
"The second phase of the eminent domain action is amount equivalent to 15% of its fair market value.
concerned with the determination by the court of ‘the just Private Respondent filed an answer alleging that (a) the
compensation for the property sought to be taken.’ This is complaint failed to state a cause of action because it was
done by the Court with the assistance of not more than three filed pursuant to a resolution and not to an ordinance as
(3) commissioners. The order fixing the just compensation required by RA 7160; and (b) the cause of action, if any, was
on the basis of the evidence before, and findings of, the barred by a prior judgment or res judicata. On private
commissioners would be final, too. It would finally dispose of respondent's motion, its Answer was treated as a motion to
the second stage of the suit, and leave nothing more to be dismiss. The trial court dismissed the complaint.
done by the Court regarding the issue. ’"
It should be stressed that the primary consideration in an Issue: WON the resolution is different from the ordinance
expropriation suit is whether the government or any of its
instrumentalities has complied with the requisites for the Held: Yes
taking of private property. Hence, the courts determine the
authority of the government entity, the necessity of the Ratio: Petitioner contends that a resolution approved by
expropriation, and the observance of due process. In the the municipal council for the purpose of initiating an
main, the subject of an expropriation suit is the expropriation case "substantially complies with the
government’s exercise of eminent domain, a matter that is requirements of the law" because the terms "ordinance" and
incapable of pecuniary estimation. "resolution" are synonymous for "the purpose of bestowing
True, the value of the property to be expropriated is authority [on] the local government unit through its chief
estimated in monetary terms, for the court is duty-bound to executive to initiate the expropriation proceedings in court in
determine the just compensation for it. This, however, is the exercise of the power of eminent domain." Petitioner
merely incidental to the expropriation suit. Indeed, that seeks to bolster this contention by citing Article 36, Rule VI
amount is determined only after the court is satisfied with of the IRR of the Local Government Code, which provides: "If
the propriety of the expropriation. the LGU fails to acquire a private property for public use,
Verily, the Court held in Republic of the Philippines v. purpose, or welfare through purchase, the LGU may
Zurbano that "condemnation proceedings are within the expropriate said property through a resolution of the
jurisdiction of Courts of First Instance," the forerunners of the Sanggunian authorizing its chief executive to initiate
regional trial courts. The said case was decided during the expropriation proceedings."
effectivity of the Judiciary Act of 1948 which, like BP 129 in The Court disagrees. The power of eminent domain is lodged
respect to RTCs, provided that courts of first instance had in the legislative branch of government, which may delegate
original jurisdiction over "all civil actions in which the subject the exercise thereof to LGUs, other public entities and public
of the litigation is not capable of pecuniary estimation." The utilities. An LGU may therefore exercise the power to
1997 amendments to the Rules of Court were not intended expropriate private property only when authorized by
to change these jurisprudential precedents. Congress and subject to the latter's control and restraints
We are not persuaded by respondents’ argument that the imposed "through the law conferring the power or in other
present action involves the title to or possession of a parcel legislations." In this case, Section 19 of RA 7160, which
of land. They cite the observation of retired Justice Jose Y. delegates to LGUs the power of eminent domain, also lays
Feria, an eminent authority in remedial law, that down the parameters for its exercise. Thus, the following
condemnation or expropriation proceedings are examples of essential requisites must concur before an LGU can exercise
real actions that affect the title to or possession of a parcel the power of eminent domain:
of land. 1. An ordinance is enacted by the local legislative council
Their reliance is misplaced. Justice Feria sought merely to authorizing the local chief executive, in behalf of the LGU, to
distinguish between real and personal actions. His discussion exercise the power of eminent domain or pursue
on this point pertained to the nature of actions, not to the expropriation proceedings over a particular private property.
jurisdiction of courts. In fact, in his pre-bar lectures, he 2. The power of eminent domain is exercised for public use,
emphasizes that jurisdiction over eminent domain cases is purpose or welfare, or for the benefit of the poor and the
still within the RTCs under the 1997 Rules. landless.
To emphasize, the question in the present suit is whether the 3. There is payment of just compensation, as required under
government may expropriate private property under the Section 9, Article III of the Constitution, and other pertinent
given set of circumstances. The government does not laws.
dispute respondents’ title to or possession of the same. 4. A valid and definite offer has been previously made to the
Indeed, it is not a question of who has a better title or right, owner of the property sought to be expropriated, but said
for the government does not even claim that it has a title to offer was not accepted.
the property. It merely asserts its inherent sovereign power In the case at bar, the local chief executive sought to
to "appropriate and control individual property for the public exercise the power of eminent domain pursuant to a
benefit, as the public necessity, convenience or welfare may resolution of the municipal council. Thus, there was no
demand." compliance with the first requisite that the mayor be
authorized through an ordinance. Petitioner cites Camarines
Mun. of Paranaque v. V.M. Realty Corp (1998) Sur vs. CA to show that a resolution may suffice to support
Facts: Pursuant to Sangguniang Bayan Resolution No. 93- the exercise of eminent domain by an LGU. This case,
95, Series of 1993, the Municipality of Parañaque filed a however, is not in point because the applicable law at that
Complaint for expropriation against V.M. Realty Corporation, time was BP 337, 30 the previous Local Government Code,
over two parcels of land. Allegedly, the complaint was filed which had provided that a mere resolution would enable an
52 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

LGU to exercise eminent domain. In contrast, RA 7160 error in affirming the trial court's Decision which dismissed
explicitly required an ordinance for this purpose. the expropriation suit.
We are not convinced by petitioner's insistence that the
terms "resolution" and "ordinance" are synonymous. A Issue: WON the action is bared by res juridicata
municipal ordinance is different from a resolution. An
ordinance is a law, but a resolution is merely a declaration of Held: No
the sentiment or opinion of a lawmaking body on a specific
matter. An ordinance possesses a general and permanent Ratio: All the requisites for the application of res judicata
character, but a resolution is temporary in nature. are present in this case. There is a previous final judgment
Additionally, the two are enacted differently - a third reading on the merits in a prior expropriation case involving identical
is necessary for an ordinance, but not for a resolution, unless interests, subject matter and cause of action, which has
decided otherwise by a majority of all the Sanggunian been rendered by a court having jurisdiction over it.
members. Be that as it may, the Court holds that the principle of res
If Congress intended to allow LGUs to exercise eminent judicata, which finds application in generally all cases and
domain through a mere resolution, it would have simply proceedings, cannot bar the right of the State or its agent to
adopted the language of the previous Local Government expropriate private property. The very nature of eminent
Code. But Congress did not. In a clear divergence from the domain, as an inherent power of the State, dictates that the
previous Local Government Code, Section 19 of RA 7160 right to exercise the power be absolute and unfettered even
categorically requires that the local chief executive act by a prior judgment or res judicata. The scope of eminent
pursuant to an ordinance. Indeed, "[l]egislative intent is domain is plenary and, like police power, can "reach every
determined principally from the language of a statute. Where form of property which the State might need for public use."
the language of a statute is clear and unambiguous, the law "All separate interests of individuals in property are held of
is applied according to its express terms, and interpretation the government under this tacit agreement or implied
would be resorted to only where a literal interpretation would reservation. Notwithstanding the grant to individuals, the
be either impossible or absurd or would lead to an injustice." eminent domain, the highest and most exact idea of
34 In the instant case, there is no reason to depart from this property, remains in the government, or in the aggregate
rule, since the law requiring an ordinance is not at all body of the people in their sovereign capacity; and they
impossible, absurd, or unjust. have the right to resume the possession of the property
whenever the public interest requires it." Thus, the State or
Moreover, the power of eminent domain necessarily involves its authorized agent cannot be forever barred from
a derogation of a fundamental or private right of the people. exercising said right by reason alone of previous non-
35 Accordingly, the manifest change in the legislative compliance with any legal requirement.
language - from "resolution" under the BP 337 to "ordinance" While the principle of res judicata does not denigrate the
under RA 7160 - demands a strict construction. "No species right of the State to exercise eminent domain, it does apply
of property is held by individuals with greater tenacity, and to specific issues decided in a previous case. For example, a
is guarded by the Constitution and laws more sedulously, final judgment dismissing an expropriation suit on the
than the right to the freehold of inhabitants. When the ground that there was no prior offer precludes another suit
legislature interferes with that right and, for greater public raising the same issue; it cannot, however, bar the State or
purposes, appropriates the land of an individual without his its agent from thereafter complying with this requirement, as
consent, the plain meaning of the law should not be prescribed by law, and subsequently exercising its power of
enlarged by doubtful interpretation." eminent domain over the same property. By the same token,
Petitioner relies on Article 36, Rule VI of the Implementing our ruling that petitioner cannot exercise its delegated
Rules, which requires only a resolution to authorize an LGU power of eminent domain through a mere resolution will not
to exercise eminent domain. This is clearly misplaced, bar it from reinstituting similar proceedings, once the said
because Section 19 of RA 7160, the law itself, surely prevails legal requirement and, for that matter, all others are
over said rule which merely seeks to implement it. It is properly complied with. Parenthetically and by parity of
axiomatic that the clear letter of the law is controlling and reasoning, the same is also true of the principle of "law of
cannot be amended by a mere administrative rule issued for the case." In Republic vs De Knecht, the Court ruled that the
its implementation. Besides, what the discrepancy seems to power of the State or its agent to exercise eminent domain is
indicate is a mere oversight in the wording of the not diminished by the mere fact that a prior final judgment
implementing rules, since Article 32, Rule VI thereof, also over the property to be expropriated has become the law of
requires that, in exercising the power of eminent domain, the the case as to the parties. The State or its authorized agent
chief executive of the LGU must act pursuant to an may still subsequently exercise its right to expropriate the
ordinance. same property, once all legal requirements are complied
with. To rule otherwise will not only improperly diminish the
Issue: WON the complaint states a cause of action power of eminent domain, but also clearly defeat social
Held: No
City of Cebu v. CA (1996)
Ratio: In the first place, petitioner merely alleged the Facts: Merlita Cardeno is the owner of a parcel of land in
existence of such an ordinance, but it did not present any Sitio Sto. Nino, Alaska-Mambaling. The City of Cebu, filed a
certified true copy thereof. In the second place, petitioner complaint for eminent domain against Cardeno with the RTC
did not raise this point before this Court. In fact, it was seeking to expropriate the said parcel of land. The complaint
mentioned by private respondent, and only in passing. In was initiated pursuant to Resolution No. 404 and Ordinance
any event, this allegation does not cure the inherent defect No. 1418, dated February 17, 1992, of the Sangguniang
of petitioner's Complaint for expropriation filed on Panlungsod of Cebu City authorizing the City Mayor to
September 23, 1993. expropriate the said parcel of land for the purpose of
The fact that there is no cause of action is evident from the providing a socialized housing project for the landless and
face of the Complaint for expropriation which was based on a low-income city residents. Cardeno filed a motion to dismiss
mere resolution. The absence of an ordinance authorizing on the ground of lack of cause of action as there has been
the same is equivalent to lack of cause of action. negotiations for the purchase of the property without
Consequently, the Court of Appeals committed no reversible resorting to expropriation, but said negotiations failed. Also,
53 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

there was no compliance with the conditions to the exercise Furthermore, even on the face of the complaint alone, there
of the power of eminent domain (valid and definite offer is extant a cause of action. All documents attached to a
made to the owner and non acceptance). The RTC dismissed complaint, the due execution and genuineness of which are
the complaint. The CA affirmed the of the RTC. According to not detained under oath by the defendant, must be
the CA, an allegation of repeated negotiations made with the considered as part of the complaint without need of
private respondent for the purchase of her property by the introducing evidence thereon. Additionally, the general rule
petitioner, "cannot by any stretch of imagination, be equated is that a motion to dismiss hypothetically admits the truth of
or likened to the clear and specific requirement that the the facts alleged in the complaint. Thus, Ordinance No. 1418
petitioner should have previously made a valid and definite is not only incorporated into the complaint for eminent
offer to purchase." It further added that the term domain filed by petitioner, but is also deemed admitted by
"negotiation" which necessarily implies uncertainty, it private respondent. A perusal of the copy of said ordinance
consisting of acts the purpose of which is to arrive at a which has been annexed to the complaint shows that the
conclusion, may not be perceived to mean the valid and fact of petitioner's having made a previous valid and definite
definite offer contemplated by law. offer to private respondent is categorically stated therein.
Thus, the second whereas clause of the said ordinance
Issue: WON expropriation may be granted provides as follows: WHEREAS, the city government has
made a valid and definite offer to purchase subject lot(s) for
Ratio: An offshoot of the foregoing is the instant petition for the public use aforementioned but the registered owner Mrs.
review on certiorari which has essentially become a battle of Merlita Cardeno has rejected such offer.
semantics being waged before this Court. While petitioner The foregoing should now put to rest the long drawn
reiterates that paragraph VII of the complaint sufficiently argument over the alleged failure of the complaint to state a
states compliance with the requirement of "a valid and cause of action. There is no longer any room for doubt that
definite offer", private respondent insists that the term as alleged in the complaint, and as admitted by private
"negotiations" is too broad to be equated with the said respondent, the petitioner had in fact complied with the
requirement. Elaborating, private respondent posited that by condition precedent of "a valid and definite offer" set forth in
definition, "negotiations run the whole range of acts Sec. 19 of R.A. 7160. The rules of procedure are not to be
preparatory to concluding an agreement, from the applied in a very rigid, technical sense; rules of procedure
preliminary correspondence; the fixing of the terms of the are used only to help secure substantial justice. If a technical
agreement; the price; the mode of payment; obligations of and rigid enforcement of the rules is made their aim would
(sic) the parties may conceive as necessary to their be defeated. Where the rules are merely secondary in
agreement." Thus, "negotiations" by itself may pertain to importance are made to override the ends of justice; the
any of the foregoing and does not automatically mean the technical rules had been misapplied to the prejudice of the
making of "a valid and definite offer." substantial right of a party, said rigid application cannot be
At the outset, it must be said that without necessarily countenanced.
delving into the parties' semantical arguments, this Court The doctrine finds compelling application in the case at
finds that the complaint does in fact state a cause of action. bench. For as correctly averred by petitioner, nothing else
What may perhaps be conceded is only the relative was accomplished by the dismissal of the complaint for
ambiguity of the allegations in paragraph VII of the eminent domain but a considerable delay in the proceedings.
complaint. However, as We have previously held, a The dismissal of the complaint did not bar petitioner from
complaint should not be dismissed upon a mere ambiguity, filing another eminent domain case and from correcting its
indefiniteness or uncertainty of the cause of action stated alleged error by the mere expedient of changing paragraph
thereinfor these are not grounds for a motion to dismiss but VII thereof. Indeed, precious time has been wasted while the
rather for a bill of particulars. In other words, a complaint salutary objectives of Ordinance No. 1418 of the City of Cebu
should not be dismissed for insufficiency unless it appears have been put on hold by a quarrel over technical matters.
clearly from the face of the complaint that the plaintiff is not
entitled to any relief under any state of facts which could be Francia v. Mun. of Meycauyan (2008)
proved within the facts alleged therein. Facts: On February 6, 2003, the respondent filed a
The error of both the RTC and respondent Court of Appeals in complaint for expropriation against petitioners. Respondent
holding that the complaint failed to state a cause of action needed petitioners' 16,256 sq. m. idle property at the
stems from their inflexible application of the rule that: when junction of the North Expressway, Malhacan-Iba-Camalig
the motion to dismiss is based on the ground that the main road artery and the MacArthur Highway. It planned to
complaint states no cause of action, no evidence may be use it to establish a common public terminal for all types of
allowed and the issue should only be determined in the light public utility vehicles with a weighing scale for heavy trucks.
of the allegations of the complaint. However, this rule is not In their answer, petitioners denied that the property sought
without exceptions. In the case of Tan v. Director of Forestry, to be expropriated was raw land. It was in fact developed
this Court departed from the aforementioned rule and held and there were plans for further development. For this
that, ". . . although the evidence of the parties were on the reason, respondent's offer price of P2,333,500 (or P111.99
question of granting or denying the petitioner-appellant's per square meter) was too low. After trial, the RTC ruled that
application for a writ of preliminary injunction, the trial court the expropriation was for a public purpose as the terminal
correctly applied said evidence in the resolution of the would improve the flow of traffic during rush hours.
motion to dismiss." Likewise, in Marcopper Mining Moreover, the property as the best site for the proposed
Corporation v. Garcia, we sanctioned the act of the trial court terminal because of its accessibility.
in considering, in addition to the complaint, other pleadings Aggrieved, petitioners filed a petition for certiorari in the CA.
submitted by the parties in deciding whether or not the They claimed that the trial court issued the orders without
complaint should be dismissed for lack of cause of action. conducting a hearing to determine the existence of a public
This Court deemed such course of action but logical where purpose. The partially granted the petition. Finding that
the trial court had the opportunity to examine the merits of petitioners were deprived of an opportunity to controvert
the complaint, the answer with counterclaim, the petitioner's respondent's allegations, the appellate court nullified the
answer to the counterclaim and its answer to the request for order of expropriation except with regard to the writ of
admission. The same liberality should be applied in the possession. According to the CA, a hearing was not
instant case. necessary because once the expropriator deposited the
54 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

required amount (with the Court), the issuance of a writ of eminent domain. Sec 2, Article IV states that private
possession became ministerial. property shall not be taken for public use without just
compensation. Section 6, Article XIV allows the State, in the
Issue: WON the CA erred in upholding the RTC's orders interest of national welfare or defense and upon payment of
that, in expropriation cases, prior determination of the just compensation to transfer to public ownership, utilities
existence of a public purpose was not necessary for the and other private enterprises to be operated by the
issuance of a writ of possession. government. Section 13, Article XIV states that the Batasang
Pambansa may authorize upon payment of just
Held: No compensation the expropriation of private lands to be
subdivided into small lots and conveyed at cost to deserving
Ratio: Section 19 of Republic Act 7160[9] provides: citizens. While not directly mentioning the expropriation of
Section 19. Eminent Domain. A local government unit may, private properties upon payment of just compensation, the
through its chief executive and acting pursuant to an provisions on social justice and agrarian reforms which allow
ordinance, exercise the power of eminent domain for public the exercise of police power together with the power of
use, or purpose, or welfare for the benefit of the poor and eminent domain in the implementation of constitutional
the landless, upon payment of just compensation, pursuant objectives are even more far reaching insofar as taxing of
to the provisions of the Constitution and pertinent laws; private property is concerned. We cite all the above
Provided, however, That the power of eminent domain may provisions on the power to expropriate because of the
not be exercised unless a valid and definite offer has been petitioners' insistence on a restrictive view of the eminent
previously made to the owner, and that such offer was not domain provision. The thrust of all constitutional provisions
accepted; Provided, further, That the local government unit on expropriation is in the opposite direction.
may immediately take possession of the property upon the As early as 1919, this Court in Visayan Refining Co. v. Samus
filing of the expropriation proceedings and upon making a categorized the restrictive view as wholly erroneous and
deposit with the proper court of at least fifteen percent based on a misconception of fundamentals. The petitioners
(15%) of the fair market value of the property based on the look for the word "tourism" in the Constitution.
current tax declaration of the property to be expropriated; Understandably the search would be in vain. To freeze
Provided, finally, That, the amount to be paid for the specific programs like tourism into express constitutional
expropriated property shall be determined by the proper provisions would make the Constitution more prolix than a
court, based on the fair market value at the time of the bulky code and require of the framers a prescience beyond
taking of the property. Delphic proportions. In said case, this Court emphasized
Before a local government unit may enter into the that the power of eminent domain is inseparable from
possession of the property sought to be expropriated, it must sovereignty being essential to the existence of the State and
(1) file a complaint for expropriation sufficient in form and inherent in government even in its most primitive forms. The
substance in the proper court and (2) deposit with the said only purpose of the provision in the Bill of Rights is to
court at least 15% of the property's fair market value based provide some form of restraint on the sovereign power. It is
on its current tax declaration. The law does not make the not a grant of authority .
determination of a public purpose a condition precedent to The petitioners ask us to adopt a strict construction and
the issuance of a writ of possession. declare that "public use" means literally use by the public
and that "public use" is not synonymous with "public
Heirs of Ardona v. Reyes (1983) interest", "public benefit", or "public welfare" and much less
Facts: The Philippine Tourism Authority filed 4 complaints "public convenience." The petitioners face two major
with the CFI of Cebu City for the expropriation of 282 ha of obstacles. First, their contention which is rather sweeping in
rolling land situated in barangays Malubog and Babag, Cebu its call for a retreat from the public welfare orientation is
City for the development into integrated resort complexes of unduly restrictive and outmoded. Second, no less than the
selected and well-defined geographic areas with potential lawmaker has made a policy determination that the power of
tourism value. The PTA will construct a sports complex, club eminent domain may be exercised in the promotion and
house, golf course, playground and picnic area on said land. development of Philippine tourism.
An electric power grid will also be established by NPC as well The restrictive view of public use may be appropriate for a
as deep well and drainage system. Complimentary support nation which circumscribes the scope of government
facilities (malls, coffee shops, etc) will also be created. activities and public concerns and which possesses big and
The defendants alleged that the taking is allegedly not correctly located public lands that obviate the need to take
impressed with public use under the Constitution. Also, private property for public purposes. Neither circumstance
assuming that PTA has such power, the intended use cannot applies to the Philippines. We have never been a laissez faire
be paramount to the determination of the land as a land State. And the necessities which impel the exertion of
reform area; that limiting the amount of compensation by sovereign power are all too often found in areas of scarce
legislative fiat is constitutionally repugnant; and that since public land or limited government resources.
the land is under the land reform program, it is the Court of There can be no doubt that expropriation for such traditional
Agrarian Relations and not the Court of First Instance, that purposes as the construction of roads, bridges, ports,
has jurisdiction over the expropriation cases. The Philippine waterworks, schools, electric and telecommunications
Tourism Authority having deposited with the PNB, an amount systems, hydroelectric power plants, markets and
equivalent to 10% of the value of the properties pursuant to slaughterhouses, parks, hospitals, government office
PD1533, the lower court issued separate orders authorizing buildings, and flood control systems is valid. However, the
PTA to take immediate possession of the premises and concept of public use is not limited to traditional purposes.
directing the issuance of writs of possession. Here as elsewhere the idea that "public use" is strictly
limited to clear cases of "use by the public" has been
Issue: WON the public use requirement has been complied discarded.
with In the Philippines, Chief Justice Enrique M. Fernando has
aptly summarized the statutory and judicial trend as follows:
Held: Yes "The taking to be valid must be for public use. There was a
time when it was felt that a literal meaning should be
Ratio: There are three provisions of the Constitution attached to such a requirement. Whatever project is
which directly provide for the exercise of the power of undertaken must be for the public to enjoy, as in the case of
55 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

streets or parks. Otherwise, expropriation is not allowable. It The applicable doctrine is expressed in Arce v. Genato which
is not any more. As long as the purpose of the taking is involved the expropriation of land for a public plaza. The
public, then the power of eminent domain comes into play. issue of prematurity is also raised by the petitioners. They
As just noted, the constitution in at least two cases, to claim that since the necessity for the taking has not been
remove any doubt, determines what is public use. One is the previously established, the issuance of the orders
expropriation of lands to be subdivided into small lots for authorizing the PTA to take immediate possession of the
resale at cost to individuals. The other is in the transfer, premises, as well as the corresponding writs of possession
through the exercise of this power, of utilities and other was premature.
private enterprise to the government. It is accurate to state Under Presidential Decree No. 42, as amended by
then that at present whatever may be beneficially employed Presidential Decree No. 1533, the government, its agency or
for the general welfare satisfies the requirement of public instrumentality, as plaintiff in an expropriation proceedings
use." is authorized to take immediate possession, control and
The petitioners' contention that the promotion of tourism is disposition of the property and the improvements, with
not "public use" because private concessioners would be power of demolition, notwithstanding the pendency of the
allowed to maintain various facilities such as restaurants, issues before the court, upon deposit with the Philippine
hotels, stores, etc. inside the tourist complex is impressed National Bank of an amount equivalent to 10% of the value
with even less merit. Private bus firms, taxicab fleets, of the property expropriated. The issue of immediate
roadside restaurants, and other private businesses using possession has been settled in Arce v. Genato. In answer to
public streets and highways do not diminish in the least bit the issue: ". . . condemnation or expropriation proceedings is
the public character of expropriations for roads and streets. in the nature of one that is quasi-in-rem, wherein the fact
The lease of store spaces in underpasses of streets built on that the owner of the property is made a party is not
expropriated land does not make the taking for a private essentially indispensable insofar at least as it concerns the
purpose. Airports and piers catering exclusively to private immediate taking of possession of the property and the
airlines and shipping companies are still for public use. The preliminary determination of its value, including the amount
expropriation of private land for slum clearance and urban to be deposited."
development is for a public purpose even if the developed Makasiar: It appearing that the petitioners are not tenants
area is later sold to private homeowners, commercial firms, of the parcels of land in question and therefore do not fall
entertainment and service companies, and other private within the purview of the Land Reform Code, the petition
concerns. should be dismissed on that score alone.
The petitioners have also failed to overcome the deference There is no need to decide whether the power of the PTA to
that is appropriately accorded to formulations of national expropriate the land in question predicated on the police
policy expressed in legislation. The rule in Berman v. Parker power of the State shall take precedence over the social
(supra) of deference to legislative policy even if such policy justice guarantee in favor of tenants and the landless. The
might mean taking from one private person and conferring welfare of the landless and small land owners should prevail
on another private person applies as well as in the over the right of the PTA to expropriate the lands just to
Philippines. An examination of the language in the 1919 develop tourism industry, which benefit the wealthy only.
cases of City of Manila v. Chinese Community of Manila and Such a position would increase the disenchanted citizens and
Visayan Refining Co. v. Camus, earlier cited, shows that from drive them to dissidence. The government is instituted
the very start of constitutional government in our country primarily for the welfare of the governed and there are more
judicial deference to legislative policy has been clear and poor people in this country than the rich. The tourism
manifest in eminent domain proceedings. The expressions of industry is not essential to the existence of the government,
national policy are found in the revised charter of the but the citizens are, and their right to live in dignity should
Philippine Tourism Authority, PD 564. take precedence over the development of the tourism
(Disregard of Land Reform Nature) According to them, industry.
assuming that PTA has the right to expropriate, the
properties subject of expropriation may not be taken for the Filstream International Inc. v. CA (1998)
purposes intended since they are within the coverage of Facts: Petitioner is the registered owner of the properties
"operation land transfer" under the land reform program; subject of this dispute consisting of adjacent parcels of land
that the agrarian reform program occupies a higher level in situated in Antonio Rivera Street, Tondo II, Manila. Petitioner
the order of priorities than other State policies like those filed an ejectment suit before the MTC against the occupants
relating to the health and physical well-being of the people; of the parcels of land (private respondents) on the grounds
and that property already taken for public use may not be of termination of the lease contract and non-payment of
taken for another public use. rentals. Judgment was rendered by the MTC ordering private
The petitioners, however, have failed to show that the area respondents to vacate the premises and pay back rentals to
being developed is indeed a land reform area and that the petitioner. The RTC and CA affirmed.
affected persons have emancipation patents and certificates However, it appeared that during the pendency of the
of land transfer. ejectment proceedings private respondents, a complaint for
The records show that the area being developed into a Annulment of Deed of Exchange against petitioner which
tourism complex consists of more than 808 hectares, almost was filed before the RTC. The City of Manila then approved
all of which is not affected by the land reform program. The Ordinance No. 7813, authorizing Mayor Lim to initiate the
portion being expropriated is 282 hectares of hilly and acquisition by negotiation, expropriation, purchase, or other
unproductive land where even subsistence farming of crops legal means certain parcels of land which formed part of the
other than rice and corn can hardly survive. And of the 282 properties of petitioner then occupied by private
disputed hectares, only 8,970 square meters - less than one respondents. The City approved Ordinance No. 7855
hectare - is affected by Operation Land Transfer. Of the 40 declaring the expropriation of certain parcels of land situated
defendants, only two have emancipation patents for the less along Antonio Rivera and Fernando Ma. Guerero streets in
than one hectare of land affected. Tondo, Manila which were owned by Mr. Enrique Quijano
(Non Impairment Clause) The non-impairment clause has Gutierez, petitioner’s predecessor-in-interest. The said
never been a barrier to the exercise of police power and properties were to be sold and distributed to qualified
likewise eminent domain. As stated in Manigault v. Springs tenants of the area pursuant to the Land Use Development
"parties by entering into contracts may not estop the Program of the City of Manila.
legislature from enacting laws intended for the public good."
56 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

The City of Manila filed a complaint for eminent domain. The exercising its power of eminent domain within its jurisdiction
trial court issued a Writ of Possession in favor of the city by expropriating petitioner’s properties for public use.
which ordered the transfer of possession over the disputed There is no dispute as to the existence of a final and
premises to the City of Manila. Petitioner filed a motion to executory judgment in favor of petitioner ordering the
dismiss but the court denied th emotion. ejectment of private respondents from the properties subject
Concerning the first case, the trial court issued an order of this dispute. The judgment in the ejectment suit became
commanding the demolition of the structure erected on the final after private respondents failed to interpose any appeal
disputed premises. To avert the demolition, private from the adverse decision of CA. Petitioner has every right
respondents filed before the RTC of Manila, Branch 14, a to assert the execution of this decision as it had already
Petition for Certiorari and Prohibition with prayer for the became final and executory.
issuance of a temporary restraining order and preliminary However, it must also be conceded that the City of Manila
injunction. The TRO was granted which was later lifted. The has an undeniable right to exercise its power of eminent
court the dismissed the case on the ground of forum domain within its jurisdiction. The right to expropriate
shopping. On appeal, the CA found merit in private private property for public use is expressly granted to it
respondents’ allegations in support of their application of the under Section 19 of the 1991 Local Government Code. More
issuance of the writ and granted the same. specifically, the City of Manila has the power to expropriate
The issue raised in G.R. No. 125218 is purely procedural and private property in the pursuit of its urban land reform and
technical matter. Petitioner takes exception to the housing program as explicitly laid out in the Revised Charter
resolutions of the CA which ordered the dismissal of its of the City of Manila (R.A. No. 409).
Petition for Certiorari for non-compliance with Sec. 2(a) of In fact, the City of Manila’s right to exercise these
Rule 6 of the Revised Internal Rules of the Court of Appeals prerogatives notwithstanding the existence of a final and
by failing to attach to its petition other pertinent documents executory judgment over the property to be expropriated
and papers and for attaching copies of pleadings which are has been upheld by this Court in the case of Philippine
blurred and unreadable. Petitioner argues that respondent Columbian Association vs. Panis.
appellate court seriously erred in giving more premium to Corollary to the expanded notion of public use, expropriation
form rather than the substance. is not anymore confined to vast tracts of land and landed
We agree with the petitioner. A strict adherence to the estate. It is therefore of no moment that the land sought to
technical and procedural rules in this case would defeat be expropriated in this case is less than the half a hectare
rather than meet the ends of justice as it would result in the only.
violation of the substantial rights of petitioner. At stake in Through the years, the public use requirement in eminent
the appeal filed by petitioner before the CA is the exercise of domain has evolved into a flexible concept, influenced by
their property rights over the disputed premises which have changing conditions. Public use now includes the broader
been expropriated and have in fact been ordered notion of indirect public benefit or advantage, including a
condemned in favor of the City of Manila. In effect, the particular, urban land reform and housing.”
dismissal of their appeal in the expropriation proceedings We take judicial notice of the fact that urban land reform has
based on the aforementioned grounds is tantamount to a become a paramount task in view of the acute shortage of
deprivation of property without due process of law as it decent housing in urban areas. Nevertheless, despite the
would automatically validate the expropriation proceedings existence of a serious dilemma, local government units are
based on the aforementioned grounds is tantamount to a not given an unbridled authority when exercising their power
deprivation of property without due process of law as it of eminent domain in pursuit of solutions to these problems.
would automatically validate the expropriation proceedings The basic rules still have to be followed, which are as
which the petitioner is still disputing. It must be emphasized follows: “no person shall be deprived of life, liberty, or
that where substantial rights are affected, as in this case, property without due process of law, nor shall any person be
the stringent application of procedural rules may be relaxed denied the equal protection of the laws; private property
if only to meet the ends of substantial justice. shall not be taken for public use without just compensation”.
With regard to the other petition, G.R. No. 128077, petitioner Thus the exercise by local government units of the power of
Filstream objects to the issuance by respondent CA of the eminent domain is not without limitations.
restraining order and the preliminary injunction enjoining the Where on-site development is found more practicable and
execution of the writ of demolition issued in the ejectment advantageous to the beneficiaries, the priorities mentioned
suit as an incident to private respondents’ pending petition in this section shall not apply. The local government units
assailing the dismissal by the RTC of Manila, Branch 33, of shall give budgetary priority to on-site development of
the consolidated petitions for certiorari filed by private government lands.
respondents and the City of Manila on the ground of forum Very clear from the provisions are the limitations with
shopping. respect to the order of priority in acquiring private lands and
The propriety of the issuance of the restraining order and the in resorting to expropriation proceedings as means to
writ of preliminary injunction is but a mere incient to the acquire the same. Private lands rank last in the order of
actual controversy which is rooted in the assertion of the priority for purposes of socialized housing. In the same vein,
conflicting rights of the parties in this case over the disputed expropriation proceedings are to be resorted to only when
premises. In order to determine whether private the other modes of acquisition have been exhausted.
respondents are entitled to the injunctive reliefs granted by Compliance with these conditions must be deemed
respondent CA, we deemed it proper to extract the source of mandatory because these are the only safeguards in
discord. securing the right of owners of private property to due
Petitioner anchors its claim by virtue of its ownership over process when their property is expropriated for public use.
the properties and the existence of a final and executory Proceeding from the parameters laid out in the above
judgment against private respondents ordering the latter’s disquisitions, we now pose the crucial question: Did the city
ejectment from the premises. Private respondents’ claim on of Manila comply with the abovementioned conditions when
the other hand hinges on an alleged supervening event it expropriated petitioner’s properties? We have carefully
which has rendered the enforcement of petitioner’s rights scrutinized the records of this case and found nothing that
moot, that is, the expropriation proceedings undertaken by would indicate the respondent City of Manila complied with
the City of Manila over the disputed premises for the benefit Sec. 9 and Sec. 10 of R.A. 7279. Petitioners’ properties were
of herein private respondents. For its part, the City is merely expropriated and ordered condemned in favor of the City of
Manila sans any showing that resort to the acquisition of
57 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

other lands listed under Sec. 9 of RA 7279 have proved October 1996. Petitioner filed its appeal only in December
futile. Evidently, there was a violation of petitioner 1997, more than a year after the effectivity of the ordinance
Filstream’s right to due process which must accordingly be in 1996. Clearly, the Secretary of Justice correctly dismissed
rectified. it for being time-barred. At this point, it is apropos to state
Indeed, it must be emphasized that the State has a that the timeframe fixed by law for parties to avail of their
paramount interest in exercising its power of eminent legal remedies before competent courts is not a “mere
domain for the general good considering that the right of the technicality” that can be easily brushed aside. The periods
State to expropriate private property as long as it is for stated in Section 187 of the Local Government Code are
public use always takes precedence over the interest of mandatory.[10] Ordinance No. 28 is a revenue measure
private property owners. However we must not lose sight of adopted by the municipality of Hagonoy to fix and collect
the fact that the individual rights affected by the exercise of public market stall rentals. Being its lifeblood, collection of
such right are also entitled to protection, bearing in mind revenues by the government is of paramount importance.
that the exercise of this superior right cannot override the The funds for the operation of its agencies and provision of
guarantee of due process extended by the law to owners of basic services to its inhabitants are largely derived from its
the property to be expropriated. In this regard, vigilance revenues and collections. Thus, it is essential that the
over compliance with the due process requirements is in validity of revenue measures is not left uncertain for a
order. considerable length of time. Hence, the law provided a time
limit for an aggrieved party to assail the legality of revenue
Hagonoy Market Vendors Assn. v. Mun. of Hagonoy measures and tax ordinances.
(2002) In a last ditch effort to justify its failure to file a timely appeal
Facts: On October 1, 1996, the Sangguniang Bayan of with the Secretary of Justice, the petitioner contends that its
Hagonoy, Bulacan, enacted an ordinance, Kautusan Blg. 28, period to appeal should be counted not from the time the
which increased the stall rentals of the market vendors in ordinance took effect in 1996 but from the time its members
Hagonoy. Article 3 provided that it shall take effect upon were personally given copies of the approved ordinance in
approval. The subject ordinance was posted from November November 1997. It insists that it was unaware of the
4-25, 1996. approval and effectivity of the subject ordinance in 1996 on
In the last week of November, 1997, the petitioner’s two (2) grounds: first, no public hearing was conducted prior
members were personally given copies of the approved to the passage of the ordinance and, second, the approved
Ordinance and were informed that it shall be enforced in ordinance was not posted.
January, 1998. On December 8, 1997, the petitioner’s We do not agree. Petitioner’s bold assertion that there was
President filed an appeal with the Secretary of Justice no public hearing conducted prior to the passage of
assailing the constitutionality of the tax ordinance. Petitioner Kautusan Blg. 28 is belied by its own evidence. In
claimed it was unaware of the posting of the ordinance. petitioner’s two (2) communications with the Secretary of
Respondent opposed the appeal. It contended that the Justice,[12] it enumerated the various objections raised by
ordinance took effect on October 6, 1996 and that the its members before the passage of the ordinance in several
ordinance, as approved, was posted as required by law. meetings called by the Sanggunian for the purpose. These
Hence, it was pointed out that petitioner’s appeal, made show beyond doubt that petitioner was aware of the
over a year later, was already time-barred. proposed increase and in fact participated in the public
The Secretary of Justice dismissed the appeal on the ground hearings therefor. The respondent municipality likewise
that it was filed out of time, i.e., beyond thirty (30) days from submitted the Minutes and Report of the public hearings
the effectivity of the Ordinance on October 1, 1996, as conducted by the Sangguniang Bayan’s Committee on
prescribed under Section 187 of the 1991 Local Government Appropriations and Market on February 6, July 15 and August
Code 19, all in 1996, for the proposed increase in the stall rentals.
Petitioner cannot gripe that there was practically no public
Issue: WON the CA erred in dismissing the appeal hearing conducted as its objections to the proposed measure
were not considered by the Sangguniang Bayan. To be sure,
Held: Yes public hearings are conducted by legislative bodies to allow
interested parties to ventilate their views on a proposed law
Ratio: We find that the Court of Appeals erred in dismissing or ordinance. These views, however, are not binding on the
petitioner’s appeal on the ground that it was formally legislative body and it is not compelled by law to adopt the
deficient. It is clear from the records that the petitioner same. Sanggunian members are elected by the people to
exerted due diligence to get the copies of its appealed make laws that will promote the general interest of their
Resolutions certified by the Department of Justice, but failed constituents. They are mandated to use their discretion and
to do so on account of typhoon “Loleng.” Under the best judgment in serving the people. Parties who participate
circumstances, respondent appellate court should have in public hearings to give their opinions on a proposed
tempered its strict application of procedural rules in view of ordinance should not expect that their views would be
the fortuitous event considering that litigation is not a game patronized by their lawmakers.
of technicalities. On the issue of publication or posting, (Section 188 of the
Local Government Code), the records is bereft of any
Issue: WON the petitioner should be dismissed evidence to prove petitioner’s negative allegation that the
subject ordinance was not posted as required by law. In
Held: Yes contrast, the respondent Sangguniang Bayan of the
Municipality of Hagonoy, Bulacan, presented evidence which
Ratio: The petition should be dismissed as the appeal of clearly shows that the procedure for the enactment of the
the petitioner with the Secretary of Justice is already time- assailed ordinance was complied with. Municipal Ordinance
barred. The applicable law is Section 187 of the 1991 Local No. 28 was enacted by the Sangguniang Bayan of Hagonoy
Government Code. The law requires that an appeal of a tax on October 1, 1996. Then Acting Municipal Mayor Maria
ordinance or revenue measure should be made to the Garcia Santos approved the Ordinance on October 7, 1996.
Secretary of Justice within thirty (30) days from effectivity of After its approval, copies of the Ordinance were given to the
the ordinance and even during its pendency, the effectivity Municipal Treasurer on the same day. On November 9,
of the assailed ordinance shall not be suspended. In the 1996, the Ordinance was approved by the Sangguniang
case at bar, Municipal Ordinance No. 28 took effect in Panlalawigan. The Ordinance was posted during the period
58 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

from November 4 - 25, 1996 in three (3) public places, viz: time, the Santos heirs, opposing the manifestation and
in front of the municipal building, at the bulletin board of the motion, submitted a counter-motion to adjust the
Sta. Ana Parish Church and on the front door of the Office of compensation from P6.00 per square meter previously fixed
the Market Master in the public market.[14] Posting was in the 1979 decision to its current zonal valuation pegged at
validly made in lieu of publication as there was no P5,000.00 per square meter or, in the alternative, to cause
newspaper of local circulation in the municipality of Hagonoy. the return to them of the expropriated property. On 01 March
This fact was known to and admitted by petitioner. Thus, 2000, the Bulacan RTC ruled in favor of respondents and
petitioner’s ambiguous and unsupported claim that it was issued the assailed order, vacating its decision of 26
only “sometime in November 1997” that the Provincial Board February 1979 and declaring it to be unenforceable on the
approved Municipal Ordinance No. 28 and so the posting ground of prescription. The CA denied the appeal (failure to
could not have been made in November 1996 was file during the reglementary period).
sufficiently disproved by the positive evidence of respondent The right of eminent domain is usually understood to be an
municipality. Given the foregoing circumstances, petitioner ultimate right of the sovereign power to appropriate any
cannot validly claim lack of knowledge of the approved property within its territorial sovereignty for a public
ordinance. The filing of its appeal a year after the effectivity purpose. Fundamental to the independent existence of a
of the subject ordinance is fatal to its cause. State, it requires no recognition by the Constitution, whose
Finally, even on the substantive points raised, the petition provisions are taken as being merely confirmatory of its
must fail. Section 6c.04 of the 1993 Municipal Revenue presence and as being regulatory, at most, in the due
Code and Section 191 of the Local Government Code limiting exercise of the power. In the hands of the legislature, the
the percentage of increase that can be imposed apply to tax power is inherent, its scope matching that of taxation, even
rates, not rentals. Neither can it be said that the rates were that of police power itself, in many respects. It reaches to
not uniformly imposed or that the public markets included in every form of property the State needs for public use and, as
the Ordinance were unreasonably determined or classified. an old case so puts it, all separate interests of individuals in
To be sure, the Ordinance covered the three (3) concrete property are held under a tacit agreement or implied
public markets: the two-storey Bagong Palengke, the burnt reservation vesting upon the sovereign the right to resume
but reconstructed Lumang Palengke and the more recent the possession of the property whenever the public interest
Lumang Palengke with wet market. However, the so requires it
Palengkeng Bagong Munisipyo or Gabaldon was excluded The ubiquitous character of eminent domain is manifest in
from the increase in rentals as it is only a makeshift, the nature of the expropriation proceedings. Expropriation
dilapidated place, with no doors or protection for security, proceedings are not adversarial in the conventional sense,
intended for transient peddlers who used to sell their goods for the condemning authority is not required to assert any
along the sidewalk. conflicting interest in the property. Thus, by filing the action,
the condemnor in effect merely serves notice that it is taking
title and possession of the property, and the defendant
asserts title or interest in the property, not to prove a right to
Republic of the Philippines v. Court of Appeals possession, but to prove a right to compensation for the
(2002) taking.
Facts: Petitioner instituted expropriation Obviously, however, the power is not without its limits: first,
proceedingscovering a total of 544,980 square meters of the taking must be for public use, and second, that just
contiguous land situated along MacArthur Highway, Malolos, compensation must be given to the private owner of the
Bulacan, to be utilized for the continued broadcast operation property. These twin proscriptions have their origin in the
and use of radio transmitter facilities for the “Voice of the recognition of the necessity for achieving balance between
Philippines” project. Petitioner took over the premises after the State interests, on the one hand, and private rights,
the previous lessee, the “Voice of America,” had ceased its upon the other hand, by effectively restraining the former
operations thereat. Petitioner made a deposit of and affording protection to the latter. In determining “public
P517,558.80, the sum provisionally fixed as being the use,” two approaches are utilized - the first is public
reasonable value of the property. On 26 February 1979, or employment or the actual use by the public, and the second
more than nine years after the institution of the is public advantage or benefit. It is also useful to view the
expropriation proceedings, the trial court issued this order matter as being subject to constant growth, which is to say
condemning the property and ordering the plaintiff to pay that as society advances, its demands upon the individual so
the defendants the just compensation for the property. increases, and each demand is a new use to which the
The bone of contention is the 76,589-square meter property resources of the individual may be devoted.
previously owned by Luis Santos, predecessor-in-interest of The expropriated property has been shown to be for the
respondents, which forms part of the expropriated area. It continued utilization by the PIA, a significant portion thereof
appears that the national government failed to pay to being ceded for the expansion of the facilities of the Bulacan
respondents the compensation pursuant to the foregoing State University and for the propagation of the Philippine
decision, such that a little over five years later, or on 09 May carabao, themselves in line with the requirements of public
1984, respondents filed a manifestation with a motion purpose. Respondents question the public nature of the
seeking payment for the expropriated property. utilization by petitioner of the condemned property, pointing
In the meantime, President Estrada issued Proclamation No. out that its present use differs from the purpose originally
22, transferring 20 hectares of the expropriated property to contemplated in the 1969 expropriation proceedings. The
the Bulacan State University for the expansion of its facilities argument is of no moment. The property has assumed a
and another 5 hectares to be used exclusively for the public character upon its expropriation. Surely, petitioner, as
propagation of the Philippine carabao. The remaining portion the condemnor and as the owner of the property, is well
was retained by the PIA. This fact notwithstanding, and within its rights to alter and decide the use of that property,
despite the 1984 court order, the Santos heirs remained the only limitation being that it be for public use, which,
unpaid, and no action was taken on their case until 16 decidedly, it is.
September 1999 when petitioner filed its manifestation and In insisting on the return of the expropriated property,
motion to permit the deposit in court of the amount of respondents would exhort on the pronouncement in
P4,664,000.00 by way of just compensation for the Provincial Government of Sorsogon vs. Vda. de Villaroya
expropriated property of the late Luis Santos subject to such where the unpaid landowners were allowed the alternative
final computation as might be approved by the court. This remedy of recovery of the property there in question. It
59 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

might be borne in mind that the case involved the municipal value to be computed from the time the property is taken to
government of Sorsogon, to which the power of eminent the time when compensation is actually paid or deposited
domain is not inherent, but merely delegated and of limited with the court. In fine, between the taking of the property
application. The grant of the power of eminent domain to and the actual payment, legal interests accrue in order to
local governments under RA 7160 cannot be understood as place the owner in a position as good as (but not better
being the pervasive and all-encompassing power vested in than) the position he was in before the taking occurred.
the legislative branch of government. For local governments The Bulacan trial court, in its 1979 decision, was correct in
to be able to wield the power, it must, by enabling law, be imposing interests on the zonal value of the property to be
delegated to it by the national legislature, but even then, computed from the time petitioner instituted condemnation
this delegated power of eminent domain is not, strictly proceedings and “took” the property in September 1969.
speaking, a power of eminent, but only of inferior, domain or This allowance of interest on the amount found to be the
only as broad or confined as the real authority would want it value of the property as of the time of the taking computed,
to be. being an effective forbearance, at 12% per annum[28]
Thus, in Valdehueza vs. Republic[17] where the private should help eliminate the issue of the constant fluctuation
landowners had remained unpaid ten years after the and inflation of the value of the currency over time.[29]
termination of the expropriation proceedings, this Court Article 1250 of the Civil Code, providing that, in case of
ruled - “The points in dispute are whether such payment can extraordinary inflation or deflation, the value of the currency
still be made and, if so, in what amount. Said lots have been at the time of the establishment of the obligation shall be
the subject of expropriation proceedings. By final and the basis for the payment when no agreement to the
executory judgment in said proceedings, they were contrary is stipulated, has strict application only to
condemned for public use, as part of an airport, and ordered contractual obligations.[30] In other words, a contractual
sold to the government. x x x It follows that both by virtue agreement is needed for the effects of extraordinary inflation
of the judgment, long final, in the expropriation suit, as well to be taken into account to alter the value of the
as the annotations upon their title certificates, plaintiffs are currency.[31]
not entitled to recover possession of their expropriated lots - All given, the trial court of Bulacan in issuing its order, dated
which are still devoted to the public use for which they were 01 March 2000, vacating its decision of 26 February 1979
expropriated - but only to demand the fair market value of has acted beyond its lawful cognizance, the only authority
the same.” left to it being to order its execution. Verily, private
The judgment rendered by the Bulacan RTC in 1979 on the respondents, although not entitled to the return of the
expropriation proceedings provides not only for the payment expropriated property, deserve to be paid promptly on the
of just compensation to herein respondents but likewise yet unpaid award of just compensation already fixed by final
adjudges the property condemned in favor of petitioner over judgment of the Bulacan RTC on 26 February 1979 at P6.00
which parties, as well as their privies, are bound. Petitioner per square meter, with legal interest thereon at 12% per
has occupied, utilized and, for all intents and purposes, annum computed from the date of "taking" of the property,
exercised dominion over the property pursuant to the i.e., 19 September 1969, until the due amount shall have
judgment. The exercise of such rights vested to it as the been fully paid.
condemnee indeed has amounted to at least a partial
compliance or satisfaction of the 1979 judgment, thereby 8.6 Reclassification of lands:
preempting any claim of bar by prescription on grounds of
non-execution. In arguing for the return of their property on Fortich v. Corona (1999)
the basis of non-payment, respondents ignore the fact that Facts: Concerns the MR of the court’s resolution dated
the right of the expropriatory authority is far from that of an November 17, 1998 and motion to refer the case to the
unpaid seller in ordinary sales, to which the remedy of Court en banc. In previous case, the Court voted two-two on
rescission might perhaps apply. An in rem proceeding, the separate motions for reconsideration, as a result of
condemnation acts upon the property. After condemnation, which the decision was affirmed.
the paramount title is in the public under a new and The Court noted in a resolution dated January 27, 1999 that
independent title; thus, by giving notice to all claimants to a the movants have no legal personality to seek redress before
disputed title, condemnation proceedings provide a judicial the Court as their motion to intervene was already denied
process for securing better title against all the world than and that the motion to refer the case to the Court en banc is
may be obtained by voluntary conveyance. akin to a second MR which is prohibited.
Respondents, in arguing laches against petitioner did not In this motion, both respondents and intervenors prayed that
take into account that the same argument could likewise the case be referred to the case in banc inasmuch as their
apply against them. Respondents first instituted proceedings earlier MR was resolved by a vote of two-two, the required
for payment against petitioner on 09 May 1984, or five years number to carry a decision under the Constitution (3 votes)
after the 1979 judgment had become final. The unusually was not met.
long delay in bringing the action to compel payment against
herein petitioner would militate against them. Consistently Issue: WON failure to meet the three votes justifies the
with the rule that one should take good care of his own referral of the case to the court en banc
concern, respondents should have commenced the proper
action upon the finality of the judgment which, indeed, Held: No
resulted in a permanent deprivation of their ownership and
possession of the property. Ratio: A careful reading of the constitutional provision
The constitutional limitation of “just compensation” is reveals the intention of the framers to draw a distinction
considered to be the sum equivalent to the market value of between cases, on the one hand, and matters, on the other
the property, broadly described to be the price fixed by the hand, such that cases are “decided” while matters, which
seller in open market in the usual and ordinary course of include motions, are “resolved”. Otherwise put, the word
legal action and competition or the fair value of the property “decided” must refer to “cases”; while the word “resolved”
as between one who receives, and one who desires to sell, it must refer to “matters”, applying the rule of reddendo
fixed at the time of the actual taking by the government. singula singulis.
Thus, if property is taken for public use before compensation With this interpretation, it is clear that only cases are
is deposited with the court having jurisdiction over the case, referred to the Court en banc for decision whenever the
the final compensation must include interests on its just required number of votes is not obtained. Conversely, the
60 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

rule does not apply where, as in this case, the required three Issue: WON the Win-Win Resolution was valid
votes is not obtained in the resolution of a MR. Hence, the
second sentence of the provision speaks only of “case” and Held: No
not “matter”. The reason is simple. Article VIII, Section 4(3)
pertains to the disposition of cases by a division. If there is a Ratio: This refers to the resolution “by authority of the
tie in the voting, there is no decision. The only way to President” modifying the Decision dated 29 March 1996 of
dispose of the case then is to refer it to the Court en banc. the OP through Executive Secretary Ruben Torres.
On the other hand, if a case has already been decided by the NQSRMDC’s (Norberto Quisumbing) Application for
division and the losing party files a MR, the failure of the Conversion is approved only with respect to 44 hectares as
division to resolve the motion because of a tie in the voting recommended by the DA. The remaining 100 hectares found
does not leave the case undecided. There is still the to be suitable for agriculture shall be distributed to qualified
decision which must stand in view of the failure of the farmer beneficiaries (FBs) in accordance with RA 6657
members of the division to muster the necessary vote for its The resolution is void and of no legal effect considering that
reconsideration. Quite plainly, if the voting results in a tie, the March 29, 1996 decision of the Office of the President
the motion for reconsideration is lost. The assailed decision had already become final and executory even prior to the
is not reconsidered and must therefore be deemed affirmed. filing of the MR which became the basis of the said “Win-
Such was the ruling of this Court in the Resolution of Win” Resolution. While it may be true that on its face the
November 17, 1998. nullification of the “Win-Win” Resolution was grounded on a
procedural rule pertaining to the reglementary period to
Issue: WON the referral to the court en banc is justified on appeal or move for reconsideration, the underlying
the ground that the issues are of first impression consideration therefor was the protection of the substantive
rights of petitioners. “Just as a losing party has the right to
Held: No file an appeal within the prescribed period, the winning party
also has the correlative right to enjoy the finality of the
Ratio: The issues presented before us by the movants are resolution of his/her case.”
matters of no extraordinary import to merit the attention of In other words, the finality of the March 29, 1996 OP
the Court en banc. The issue of whether or not the power of Decision accordingly vested appurtenant rights to the land in
the local government units to reclassify lands is subject to dispute on petitioners as well as on the people of Bukidnon
the approval of the DAR is no longer novel, this having been and other parts of the country who stand to be benefited by
decided by this Court in the case of Province of the development of the property.
Camarines Sur, et al. vs. Court of Appeals wherein we Before finally disposing of these pending matters, we feel it
held that local government units need not obtain the necessary to rule once and for all on the legal standing of
approval of the DAR to convert or reclassify lands from intervenors in this case. In their present motions,
agricultural to non-agricultural use. intervenors insist that they are real parties in interest
Moreover, the Decision sought to be reconsidered was inasmuch as they have already been issued certificates of
arrived at by a unanimous vote of all five (5) members of the land ownership award, or CLOAs, and that while they are
Second Division of this Court. Stated otherwise, this Second seasonal farmworkers at the plantation, they have been
Division is of the opinion that the matters raised by movants identified by the DAR as qualified beneficiaries of the
are nothing new and do not deserve the consideration of the property. These arguments are, however, nothing new as in
Court en banc. Thus, the participation of the full Court in the fact they have already been raised in intervenors’ earlier
resolution of movants’ motions for reconsideration would be motion for reconsideration of our April 24, 1998 Decision.
inappropriate. Again as expressed in the opinion of Mr. Justice Martinez,
intervenors, who are admittedly not regular but seasonal
Issue: WON the referral to the court en banc partakes of farmworkers, have no legal or actual and substantive
the nature of a second MR interest over the subject land inasmuch as they have no
right to own the land. Rather, their right is limited only to a
Held: Yes just share of the fruits of the land. Moreover, the “Win-Win”
Resolution itself states that the qualified beneficiaries have
Ratio: The contention, therefore, that our Resolution of yet to be carefully and meticulously determined by the
November 17, 1998 did not dispose of the earlier MR of the Department of Agrarian Reform. Absent any definitive
Decision dated April 24, 1998 is flawed. Consequently, the finding of the DAR, intervenors cannot as yet be deemed
present MR necessarily partakes of the nature of a second vested with sufficient interest in the controversy as to be
motion for reconsideration which, according to the clear and qualified to intervene in this case. Likewise, the issuance of
unambiguous language of Rule 56, Section 4, in relation to the CLOA's to them does not grant them the requisite
Rule 52, Section 2, of the 1997 Rules of Civil Procedure, is standing in view of the nullity of the “Win-Win” Resolution.
prohibited. No legal rights can emanate from a resolution that is null
True, there are exceptional cases when this Court may and void.
entertain a second motion for reconsideration, such as
where there are extraordinarily persuasive reasons. Even Melo: By mandate of the Constitution, cases heard by a
then, we have ruled that such second MRs must be filed with division when the required majority of at least 3 votes in the
express leave of court first obtained. In this case, not only division is not obtained are to be heard and decided by the
did movants fail to ask for prior leave of court, but more Court En Banc. The deliberations of the 1986 Constitutional
importantly, they have been unable to show that there are Commission disclose that if the case is not decided in a
exceptional reasons for us to give due course to their second division by a majority vote, it goes to the Court En Banc and
motions for reconsideration. Stripped of the arguments for not to a larger division. In a situation where a division of 5
referral of this incident to the Court en banc, the motions has only 4 members, the 5th member having inhibited
subject of this resolution are nothing more but rehashes of himself or is otherwise not in a position to participate, or has
the motions for reconsideration which have been denied in retired, a minimum of 3 votes would still be required before
the Resolution of November 17, 1998. To be sure, the there can be any valid decision or resolution by that division.
allegations contained therein have already been raised There may, then, be instances when a deadlock may occur,
before and passed upon by this Court in the said Resolution. i.e., the votes tied at 2-2. It is my humble view that under
the clear and unequivocal provisions of the 1986
61 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

Constitution, if the required majority is not reached in a Hacienda Banilad. DAR through the MARO of Nasugbu
division, the case should automatically go to Court En Banc. Batangas sent a notice of acquisition to petitioner. Later, the
I submit that the requirement of 3 votes equally applies to MARO sent an “Invitation to Parties” again to Pimentel
motions for reconsideration because the provision inviting the latter to attend a conference to discuss the
contemplates “cases” or “matters” (which for me has no results of the MARO’s investigation over Hacienda Banilad.
material distinction insofar as divisions are concerned) heard The Reports were discussed the conference. Present in the
by a division, and a motion for reconsideration cannot be conference were representatives of the prospective farmer
divorced from the decision in a case that it seeks to be beneficiaries, the BARC, the LBP, and Jaime Pimentel on
reconsidered. Consequently, if the required minimum behalf of the landowner. After the meeting, it was
majority of 3 votes is not met, the matter of the motion for recommended that 737.2590 ha under Tax Declaration Nos.
reconsideration has to be heard by the Court En Banc, as 0236 and 0237 be likewise placed under compulsory
mandated by the Constitution (par. 3, Sec. 4, Art. VIII). To acquisition for distribution.
say that the motion is lost in the division on a 2-2 vote, is to DAR, through the Department Secretary, sent to petitioner
construe something which cannot be sustained by a reading two (2) separate “Notices of Acquisition” over Hacienda
of the Constitution. To argue that a motion for Banilad. These Notices were sent on the same day as the
reconsideration is not a “case” but only a “matter” which Notice of Acquisition over Hacienda Palico. Unlike the Notice
does not concern a case, so that, even though the vote over Hacienda Palico, however, the Notices over Hacienda
thereon in the division is 2-2, the matter or issue is not Banilad were addressed to Roxas y Cia. Limited in Makati.
required to elevated to the Court En Banc, is to engage in a The DAR Regional Director sent to the LBP Land Valuation
lot of unfounded hairsplitting. Manager a “Request to Open Trust Account” in petitioner’s
name as compensation for 234.6493 hectares of Hacienda
Roxas & Co., Inc. v. Court of Appeals (1999) Banilad. A second “Request to Open Trust Account” was sent
Facts: This case involves 3 haciendas in Nasugbu, on November 18, 1991 over 723.4130 hectares of said
Batangas owned by petitioner and the validity of the Hacienda.
acquisition of these haciendas by the government under RA On May 4, 1993, petitioner applied for conversion of both
6657 (CARL). Petitioner is a domestic corporation and is the Haciendas Palico and Banilad.
registered owner of three haciendas, namely, Haciendas Hacienda Caylawa. Hacienda Caylaway was voluntarily
Palico, Banilad and Caylaway, all located in the Municipality offered for sale to the government on May 6, 1988 before
of Nasugbu, Batangas. President Aquino signed in on July the effectivity of the CARL. DAR, through the Regional
1987, Proclamation 131 instituting a CARP and EO 229 Director for Region IV, sent to petitioner two (2) separate
providing the mechanism to implement the program. Resolutions accepting petitioner’s voluntary offer to sell
Pursuant to this, Congress passed RA 6657, the CARL. Before Hacienda Caylaway, particularly TCT Nos. T-44664 and T-
the effectivity of the law, petitioner filed with DAR a 44663.
voluntary offer to sell Hacienda Caylaway pursuant to the Nevertheless, on August 6, 1992, petitioner, through its
provisions of EO 229. Haciendas Palico and Banilad were President, Eduardo J. Roxas, sent a letter to the Secretary of
later placed under compulsory acquisition by DAR in DAR withdrawing its VOS of Hacienda Caylaway. The
accordance with the CARL. Sangguniang Bayan of Nasugbu, Batangas allegedly
Hacienda Palico. DAR, through Municipal Agrarian Reform authorized the reclassification of Hacienda Caylaway from
Officer (MARO) of Nasugbu, Batangas, sent a notice entitled agricultural to non-agricultural. As a result, petitioner
“Invitation to Parties” to petitioner to discuss the results of informed DAR that it was applying for conversion of
the DAR investigation of Hacienda Palico, which was Hacienda Caylaway from agricultural to other uses.
“scheduled for compulsory acquisition this year under the DAR Secretary informed petitioner that a reclassification of
CARP.”Summary Investigation Reports were submitted by the the land would not exempt it from agrarian reform. The
MARO, representatives of the Barangay Agrarian Reform Secretary also denied petitioner’s withdrawal of the VOS on
Committee (BARC), Land Bank (LBP) and the Provincial the ground that withdrawal could only be based on specific
Agrarian Reform Officer (PARO) recommending that 270 ha grounds such as unsuitability of the soil for agriculture, or if
and 75.3 ha of the property be placed under compulsory the slope of the land is over 18 degrees and that the land is
acquisition at a compensation of P8,109,739.00 and undeveloped.
P2,188,195.47, respectively. Despite the denial of the VOS withdrawal of Hacienda
DAR through Secretary Miriam Santiago sent a “Notice of Caylaway, on May 11, 1993, petitioner filed its application
Acquisition” to petitioner. Petitioner was informed that for conversion of both Haciendas Palico and Banilad.
1,023.999 ha of its land in Hacienda Palico were subject to On August 24, 1993, petitioner instituted Case No. N-0017-
immediate acquisition and distribution by the government 96-46 (BA) with the DARAB praying for the cancellation of
under the CARL; and the government was offering the CLOA’s issued by DAR in the name of several persons.
compensation of P3.4 million for 333.0800 hectares. Petitioner alleged that the Municipality of Nasugbu, where
Almost two years later, the DAR Regional Director sent to the the haciendas are located, had been declared a tourist zone,
LBP Land Valuation Manager three (3) separate Memoranda that the land is not suitable for agricultural production, and
entitled “Request to Open Trust Account.” Each Memoranda that the Sangguniang Bayan of Nasugbu had reclassified the
requested that a trust account representing the valuation of land to non-agricultural.
three portions of Hacienda Palico be opened in favor of the DARAB submitted the case to the Office of the Secretary of
petitioner in view of the latter’s rejection of its offered value. Agrarian Reform for determination. The CA filed a petition for
Meanwhile, petitioner applied with the DAR for conversion of before the CA questioning the expropriation of its properties
Haciendas Palico and Banilad from agricultural to non- under the CARL. Meanwhile, the petition for conversion of
agricultural lands under the provisions of the CARL. Despite the three haciendas was denied by the MARO. The CA then
petitioner’s application for conversion, DAR proceeded with dismissed the petition.
the acquisition of the two Haciendas. The LBP trust accounts
as compensation for Hacienda Palico were replaced by Issue: WON the Court can take cognizance of this petition
respondent DAR with cash and LBP bonds. On October 22, despite petitioner’s failure to exhaust administrative
1993, from the mother title of TCT No. 985 of the Hacienda, remedies
DAR registered Certificate of Land Ownership Award (CLOA) Held: Yes
No. 6654. On October 30, 1993, CLOA’s were distributed to
farmer beneficiaries.
62 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

Ratio: Petitioner rightly sought immediate redress in the For a valid implementation of the CAR Program, two notices
courts. There was a violation of its rights and to require it to are required: (1) the Notice of Coverage and letter of
exhaust administrative remedies before the DAR itself was invitation to a preliminary conference sent to the
not a plain, speedy and adequate remedy. landowner, the representatives of the BARC, LBP, farmer
DAR issued CLOAs to farmer beneficiaries over portions of beneficiaries and other interested parties pursuant to DAR A.
petitioner’s land without just compensation to petitioner. A O. No. 12, Series of 1989; and (2) the Notice of Acquisition
CLOA is evidence of ownership of land by a beneficiary sent to the landowner under Section 16 of the CARL.
under R.A. 6657. Before this may be awarded to a farmer The importance of the first notice, i.e., the Notice of
beneficiary, the land must first be acquired by the State from Coverage and the letter of invitation to the conference, and
the landowner and ownership transferred to the former. The its actual conduct cannot be understated. They are steps
transfer of possession and ownership of the land to the designed to comply with the requirements of administrative
government are conditioned upon the receipt by the due process. The implementation of the CARL is an exercise
landowner of the payment or deposit by the DAR of the of the State’s police power and the power of eminent
compensation with an accessible bank. Until then, title domain. To the extent that the CARL prescribes retention
remains with the landowner. There was no receipt by limits to the landowners, there is an exercise of police power
petitioner of any compensation for any of the lands acquired for the regulation of private property in accordance with the
by the government. Constitution. But where, to carry out such regulation, the
The kind of compensation to be paid the landowner is also owners are deprived of lands they own in excess of the
specific. The law provides that the deposit must be made maximum area allowed, there is also a taking under the
only in “cash” or “LBP bonds.” DAR’s opening of trust power of eminent domain. The taking contemplated is not a
account deposits in petitioner’s name with the Land Bank mere limitation of the use of the land. What is required is
does not constitute payment under the law. Trust account the surrender of the title to and physical possession of the
deposits are not cash or LBP bonds. The replacement of the said excess and all beneficial rights accruing to the owner in
trust account with cash or LBP bonds did not ipso facto cure favor of the farmer beneficiary. The Bill of Rights provides
the lack of compensation; for essentially, the determination that “[n]o person shall be deprived of life, liberty or property
of this compensation was marred by lack of due process. In without due process of law.” The CARL was not intended to
fact, in the entire acquisition proceedings, respondent DAR take away property without due process of law. The exercise
disregarded the basic requirements of administrative due of the power of eminent domain requires that due process be
process. Under these circumstances, the issuance of the observed in the taking of private property.
CLOA’s to farmer beneficiaries necessitated immediate The notice requirements under the CARL are not confined to
judicial action on the part of the petitioner. the Notice of Acquisition set forth in Section 16 of the law.
They also include the Notice of Coverage first laid down in
Issue: WON the acquisition proceedings over the three DAR A. O. No. 12, Series of 1989 and subsequently amended
haciendas were valid and in accordance with law in DAR A. O. No. 9, Series of 1990 and DAR A. O. No. 1, Series
of 1993. This Notice of Coverage does not merely notify the
Held: No landowner that his property shall be placed under CARP and
that he is entitled to exercise his retention right; it also
Ratio: Mode of Acquisition of Land Under RA 6657. notifies him, pursuant to DAR A. O. No. 9, Series of 1990,
Two (2) modes of acquisition of private land: compulsory and that a public hearing shall be conducted where he and
voluntary. representatives of the concerned sectors of society may
In the compulsory acquisition of private lands, the attend to discuss the results of the field investigation, the
landholding, the landowners and the farmer beneficiaries land valuation and other pertinent matters. Under DAR A. O.
must first be identified. After identification, the DAR shall No. 1, Series of 1993, the Notice of Coverage also informs
send a Notice of Acquisition to the landowner, by personal the landowner that a field investigation of his landholding
delivery or registered mail, and post it in a conspicuous shall be conducted where he and the other representatives
place in the municipal building and barangay hall of the may be present
place where the property is located. Within thirty days from Compulsory Acquisition of Hacienda Palico and
receipt of the Notice of Acquisition, the landowner, his Banilad. In the case at bar, DAR claims that it, through
administrator or representative shall inform the DAR of his MARO Leopoldo C. Lejano, sent a letter of invitation entitled
acceptance or rejection of the offer. If the landowner “Invitation to Parties” dated September 29, 1989 to
accepts, he executes and delivers a deed of transfer in favor petitioner, through Jaime Pimentel, the administrator of
of the government and surrenders the certificate of title. Hacienda Palico. The invitation was received on the same
Within 30 days from the execution of the deed of transfer, day it was sent as indicated by a signature and the date
the LBP pays the owner the purchase price. If the landowner received at the bottom left corner of said invitation. With
rejects the DAR’s offer or fails to make a reply, the DAR regard to Hacienda Banilad, DAR claims that Pimentel,
conducts summary administrative proceedings to determine administrator also of Hacienda Banilad, was notified and sent
just compensation for the land. The landowner, the LBP an invitation to the conference. Pimentel actually attended
representative and other interested parties may submit the conference on September 21, 1989 and signed the
evidence on just compensation within fifteen days from Minutes of the meeting on behalf of petitioner. The Minutes
notice. Within 30 days from submission, the DAR shall was also signed by the representatives of the BARC, the LBP
decide the case and inform the owner of its decision and the and farmer beneficiaries. No letter of invitation was sent or
amount of just compensation. Upon receipt by the owner of conference meeting held with respect to Hacienda Caylaway
the corresponding payment, or, in case of rejection or lack of because it was subject to a Voluntary Offer to Sell to DAR.
response from the latter, the DAR shall deposit the When DAR, through the MARO, sent to the various parties
compensation in cash or in LBP bonds with an accessible the Notice of Coverage and invitation to the conference, DAR
bank. The DAR shall immediately take possession of the A. O. No. 12, Series of 1989 was already in effect more than
land and cause the issuance of a transfer certificate of title a month earlier. The Operating Procedure in DAR
in the name of the Republic of the Philippines. The land shall Administrative Order No. 12 does not specify how notices or
then be redistributed to the farmer beneficiaries. Any party letters of invitation shall be sent to the landowner, the
may question the decision of the DAR in the regular courts representatives of the BARC, the LBP, the farmer
for final determination of just compensation. beneficiaries and other interested parties. The procedure
in the sending of these notices is important to comply
63 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

with the requisites of due process especially when Upon receipt of this notice, therefore, petitioner
the owner, as in this case, is a juridical entity. corporation had no idea which portions of its estate
Petitioner is a domestic corporation, and therefore, has a were subject to compulsory acquisition, which
personality separate and distinct from its shareholders, portions it could rightfully retain, whether these
officers and employees. retained portions were compact or contiguous, and
Jaime Pimentel is not the president, manager, secretary, which portions were excluded from CARP coverage.
cashier or director of petitioner corporation. Is he, as Even respondent DAR’s evidence does not show that
administrator of the two Haciendas, considered an agent of petitioner, through its duly authorized representative, was
the corporation? notified of any ocular inspection and investigation that was
The purpose of all rules for service of process on a to be conducted by respondent DAR. Neither is there proof
corporation is to make it reasonably certain that the that petitioner was given the opportunity to at least choose
corporation will receive prompt and proper notice in an and identify its retention area in those portions to be
action against it. Service must be made on a representative acquired compulsorily. The right of retention and how this
so integrated with the corporation as to make it a priori right is exercised, is guaranteed in Section 6 of the CARL
supposable that he will realize his responsibilities and know Voluntary Acquisition of Hacienda Caylaway. First of all,
what he should do with any legal papers served on him, and the same E.O. 229, like Section 16 of the CARL, requires that
bring home to the corporation notice of the filing of the the land, landowner and beneficiaries of the land subject to
action. Petitioner’s evidence does not show the official duties agrarian reform be identified before the notice of
of Pimentel as administrator of petitioner’s haciendas. The acquisition should be issued. Hacienda Caylaway was
evidence does not indicate whether Pimentel’s duties is so voluntarily offered for sale in 1989. The Hacienda has a total
integrated with the corporation that he would immediately area of 867.4571 hectares and is covered by four (4) titles.
realize his responsibilities and know what he should do with In two separate Resolutions both dated January 12, 1989,
any legal papers served on him. At the time the notices DAR, through the Regional Director, formally accepted the
were sent and the preliminary conference conducted, VOS over two of these four titles. The land covered by the
petitioner’s principal place of business was listed in DAR’s two titles has an area of 855.5257 hectares, but only
records as “Soriano Bldg., Plaza Cervantes, Manila,” and “7 th 648.8544 hectares thereof fell within the coverage of R.A.
Flr. Cacho-Gonzales Bldg., 101 Aguirre St., Makati, Metro 6657. Petitioner claims it does not know where these
Manila.” Pimentel did not hold office at the principal place of portions are located.
business of petitioner. Neither did he exercise his functions DAR, on the other hand, avers that surveys on the land
in Plaza Cervantes, Manila nor in Cacho-Gonzales Bldg., covered by the four titles were conducted in 1989, and that
Makati, Metro Manila. He performed his official functions and petitioner, as landowner, was not denied participation
actually resided in the haciendas in Nasugbu, Batangas, a therein. The results of the survey and the land valuation
place over two hundred kilometers away from Metro Manila. summary report, however, do not indicate whether notices
Curiously, DAR had information of the address of petitioner’s to attend the same were actually sent to and received by
principal place of business. The Notices of Acquisition over petitioner or its duly authorized representative. To reiterate,
Haciendas Palico and Banilad were addressed to petitioner at EO 229 does not lay down the operating procedure, much
its offices in Manila and Makati. These Notices were sent less the notice requirements, before the VOS is accepted by
barely three to four months after Pimentel was notified of the DAR. Notice to the landowner, however, cannot be
preliminary conference. Why DAR chose to notify Pimentel dispensed with. It is part of administrative due process and
instead of the officers of the corporation was not explained is an essential requisite to enable the landowner himself to
by the said respondent. exercise, at the very least, his right of retention guaranteed
Nevertheless, assuming that Pimentel was an agent of under the CARL.
petitioner corporation, and the notices and letters of
invitation were validly served on petitioner through him, Issue: Assuming the haciendas may be reclassified from
there is no showing that Pimentel himself was duly agricultural to non-agricultural, WON this court has the
authorized to attend the conference meeting with the MARO, power to rule on this issue
BARC and LBP representatives and farmer beneficiaries for
purposes of compulsory acquisition of petitioner’s Held: No
landholdings. Even DAR’s evidence does not indicate this
authority. On the contrary, petitioner claims that it had no Ratio: It is petitioner’s claim that the three haciendas are
knowledge of the letter-invitation, hence, could not have not subject to agrarian reform because they have been
given Pimentel the authority to bind it to whatever matters declared for tourism, not agricultural purposes. In 1975, then
were discussed or agreed upon by the parties at the President Marcos issued Proclamation No. 1520 declaring the
preliminary conference or public hearing. Notably, one year municipality of Nasugbu, Batangas a tourist zone. Lands in
after Pimentel was informed of the preliminary conference, Nasugbu, including the subject haciendas, were allegedly
DAR A.O. No. 9, Series of 1990 was issued and this required reclassified as non-agricultural 13 years before the
that the Notice of Coverage must be sent “to the landowner effectivity of RA 6657. In 1993, the Regional Director for
concerned or his duly authorized representative.” Region IV of the DA certified that the haciendas are not
Assuming further that petitioner was duly notified of the feasible and sound for agricultural development. On March
CARP coverage of its haciendas, the areas found actually 20, 1992, pursuant to Proclamation No. 1520, the
subject to CARP were not properly identified before they Sangguniang Bayan of Nasugbu, Batangas adopted
were taken over by DAR. The acquisition of the landholdings Resolution No. 19 reclassifying certain areas of Nasugbu as
did not cover the entire expanse of the two haciendas, but non-agricultural. This Resolution approved Municipal
only portions thereof. Hacienda Palico has an area of 1,024 Ordinance No. 19, Series of 1992, the Revised Zoning
hectares and only 688.7576 hectares were targetted for Ordinance of Nasugbu which zoning ordinance was based on
acquisition. Hacienda Banilad has an area of 1,050 hectares a Land Use Plan for Planning Areas for New Development
but only 964.0688 hectares were subject to CARP. The allegedly prepared by the University of the Philippines.
haciendas are not entirely agricultural lands. In fact, the Resolution No. 19 of the Sangguniang Bayan was approved
various tax declarations over the haciendas describe the by the Sangguniang Panlalawigan of Batangas on March 8,
landholdings as “sugarland,” and “forest, sugarland, pasture 1993.
land, horticulture and woodland.” Petitioner claims that Proclamation No. 1520 was also upheld
by DAR in 1991 when it approved conversion of 1,827
64 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

hectares in Nasugbu into a tourist area known as the Batulao road in exchange for their own respective properties, on
Resort Complex, and 13.52 hectares in Barangay Caylaway which was subsequently laid a new concrete road leading to
as within the potential tourist belt. Petitioner presents the Capitol Building.
evidence before us that these areas are adjacent to the Learning about Resolution 158, the petitioner filed a
haciendas subject of this petition, hence, the haciendas complaint with the CFI of Catanduanes for "Restoration of
should likewise be converted. Petitioner urges this Court to Public Road and/or Abatement of Nuisance, Annulment of
take cognizance of the conversion proceedings and rule Resolutions and Documents with Damages." He alleged that
accordingly. the land fronting his house was a public road owned by the
We do not agree. DAR’s failure to observe due Province in its governmental capacity and therefore beyond
process in the acquisition of petitioner’s landholdings the commerce of man. He contended that Resolution No. 158
does not ipso facto give this Court the power to and the deeds of exchange were invalid, as so too was the
adjudicate over petitioner’s application for closure of the road.
conversion of its haciendas from agricultural to non- The judge sustained the authority of the provincial board to
agricultural. The agency charged with the mandate enact said Resolution. The CA affirmed and found that the
of approving or disapproving applications for road was not a public road but just a trail. Also, pursuant to
conversion is the DAR. RA 5185, municipal authorities, subject to the approval of
At the time petitioner filed its application for conversion, the the Provincial Board, can close thoroughfares pursusant to
Rules of Procedure governing the processing and approval of Sec 2246 of the Revised Administrative Code.
applications for land use conversion was the DAR A. O. No. 2, Petitioner insists that Sec. 2246 is not applicable because
Series of 1990. Under this A. O., the application for Resolution No. 158 is not an order for the closure of the road
conversion is filed with the MARO where the property is in question but an authority to barter or exchange it with
located. The MARO reviews the application and its private properties. He maintains that the public road was
supporting documents and conducts field investigation and owned by the province in its governmental capacity and,
ocular inspection of the property. The findings of the MARO without a prior order of closure, could not be the subject of a
are subject to review and evaluation by the Provincial barter. Control over public roads, he insists, is with Congress
Agrarian Reform Officer (PARO). The PARO may conduct and not with the provincial board.
further field investigation and submit a supplemental report
together with his recommendation to the Regional Agrarian Issue: WON the Provincial Board can validly enact said
Reform Officer (RARO) who shall review the same. For lands resolution
less than five hectares, the RARO shall approve or
disapprove applications for conversion. For lands exceeding Held: Yes
five hectares, the RARO shall evaluate the PARO Report and
forward the records and his report to the Undersecretary for Ratio: Resolution 158 clearly says that it is "hereby
Legal Affairs. Applications over areas exceeding fifty resolved to close the old road." The closure is as plain as day
hectares are approved or disapproved by the Secretary of except that the petitioner, with the blindness of those who
Agrarian Reform. will not see, refuses to acknowledge it. The Court has little
Indeed, the doctrine of primary jurisdiction does not patience with such puerile arguments. They border
warrant a court to arrogate unto itself authority to resolve a dangerously on a trifling with the administration of justice
controversy the jurisdiction over which is initially lodged with and can only prejudice the pleader's cause.
an administrative body of special competence. DAR is in a The authority of the provincial board to close that road and
better position to resolve petitioner’s application for use or convey it for other purposes is derived from the
conversion, being primarily the agency possessing the following provisions of Republic Act No. 5185 in relation to
necessary expertise on the matter. The power to determine Section 2246 of the Revised Administrative Code: It
whether Haciendas Palico, Banilad and Caylaway are non- sustained the subsequent sale of the land as being in
agricultural, hence, exempt from the coverage of the CARL accordance not only with the charter but also with Article
lies with the DAR, not with this Court. 422 of the Civil Code, which provides: "Property of public
Finally, we stress that the failure of DAR to comply with the dominion, when no longer intended for public use or for
requisites of due process in the acquisition proceedings does public service, shall form part of the patrimonial property of
not give this Court the power to nullify the CLOA’s already the State." In the case of Favis v. City of Baguio, the power of
issued to the farmer beneficiaries. To assume the power is the City Council of Baguio City to close city streets and
to short-circuit the administrative process, which has yet to withdraw them from public use was also assailed. This Court
run its regular course. DAR must be given the chance to said:
correct its procedural lapses in the acquisition proceedings. 5. So it is, that appellant may not challenge the city council's
In Hacienda Palico alone, CLOA's were issued to 177 farmer act of withdrawing a strip of Lapu-Lapu Street at its dead end
beneficiaries in 1993. Since then until the present, these from public use and converting the remainder thereof into an
farmers have been cultivating their lands. It goes against the alley. These are acts well within the ambit of the power to
basic precepts of justice, fairness and equity to deprive close a city street. The city council, it would seem to us, is
these people, through no fault of their own, of the land they the authority competent to determine whether or not a
till. Anyhow, the farmer beneficiaries hold the property in certain property is still necessary for public use.
trust for the rightful owner of the land. Such power to vacate a street or alley is discretionary. And
the discretion will not ordinarily be controlled or interfered
8.7 Closure and Opening of Roads: with by the courts, absent a plain case of abuse or fraud or
collusion. Faithfulness to the public trust will be presumed.
Cabrera v. CA (1991) So the fact that some private interests may be served
Facts: The Provincial Board of Catanduanes adopted incidentally will not invalidate the vacation ordinance.
Resolution No. 158 (Closing the old road leading to the new While it is true that the cases dealt with city councils and not
Capitol Building and giving owners of properties traversed by the provincial board, there is no reason for not applying the
the new road an area form the old raod). Pursuant thereto, doctrine announced therein to the provincial board in
Deeds of Exchange were executed under which the Province connection with the closure of provincial roads. The
conveyed to Remedios R. Bagadiong, Fredeswindo F. Alcala, provincial board has, after all, the duty of maintaining such
Elena S. Latorre, Baldomero Tolentino, Eulogia T. Alejandro, roads for the comfort and convenience of the inhabitants of
Angeles S. Vargas, and Juan S. Reyes portions of the closed the province. Moreover, this authority is inferable from the
65 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

grant by the national legislature of the funds to the Province Held: No

for the construction of provincial roads.
The lower court found the petitioner's allegation of injury Ratio: MMDA claims that it has the authority to open
and prejudice to be without basis because he had "easy Neptune Street to public traffic because it is an agent of the
access anyway to the national road, for in fact the vehicles state endowed with police power in the delivery of basic
used by the Court and the parties during the ocular services in Metro Manila. One of these basic services is
inspection easily passed and used it, reaching beyond traffic management which involves the regulation of the use
plaintiff's house." However, the CA ruled that the he "was of thoroughfares to insure the safety, convenience and
prejudiced by the closure of the road which formerly fronted welfare of the general public. It is alleged that the police
his house. He and his family were undoubtedly power of MMDA was affirmed by this Court in the
inconvenienced by the loss of access to their place of consolidated cases of Sangalang v. IAC. From the premise
residence for which we believe they should be that it has police power, it is now urged that there is no need
compensated." On this issue, the governing principle was for the City of Makati to enact an ordinance opening Neptune
laid down in Favis thus: street to the public.
. . . The general rule is that one whose property does not Police power is an inherent attribute of sovereignty. It has
abut on the closed section of a street has no right to been defined as the power vested by the Constitution in the
compensation for the closing or vacation of the street, if he legislature to make, ordain, and establish all manner of
still has reasonable access to the general system of streets. wholesome and reasonable laws, statutes and ordinances,
The circumstances in some cases may be such as to give a either with penalties or without, not repugnant to the
right to damages to a property owner, even though his Constitution, as they shall judge to be for the good and
property does not abut on the closed section. But to warrant welfare of the commonwealth, and for the subjects of the
recovery in any such case the property owner must show same. The power is plenary and its scope is vast and
that the situation is such that he has sustained special pervasive, reaching and justifying measures for public
damages differing in kind, and not merely in degree, from health, public safety, public morals, and the general welfare.
those sustained by the public generally. It bears stressing that police power is lodged primarily in the
Petitioner is not entitled to damages because the injury he National Legislature. It cannot be exercised by any group or
has incurred, such as it is, is the price he and others like him body of individuals not possessing legislative power. The
must pay for the welfare of the entire community. This is not National Legislature, however, may delegate this power to
a case where his property has been expropriated and he is the President and administrative boards as well as the
entitled to just compensation. The construction of the new lawmaking bodies of municipal corporations or local
road was undertaken under the general welfare clause. As government units. Once delegated, the agents can exercise
the trial judge acutely observed, whatever inconvenience only such legislative powers as are conferred on them by the
the petitioner has suffered "pales in significance compared national lawmaking body.
to the greater convenience the new road, which is wide and Metropolitan or Metro Manila is a body composed of
concrete, straight to the veterans fountain and down to the several local government units - i.e., twelve (12) cities
pier, has been giving to the public, plus the fact that the new and five (5) municipalities, namely, the cities of Caloocan,
road adds beauty and color not only to the town of Virac but Manila, Mandaluyong, Makati, Pasay, Pasig, Quezon,
also to the whole province of Catanduanes." For the Muntinlupa, Las Pinas, Marikina, Paranaque and Valenzuela,
enjoyment of those benefits, every individual in the and the municipalities of Malabon, , Navotas, , Pateros, San
province, including the petitioner, must be prepared to give Juan and Taguig. With the passage of RA 7924 in 1995,
his share. Metropolitan Manila was declared as a "special
development and administrative region" and the
MMDA v. Bel Air Village Assn. Inc. (2000) Administration of "metro-wide" basic services
Facts: MMDA is a government agency tasked with the affecting the region placed under "a development
delivery of basic services in Metro Manila. Bel-Air Village authority" referred to as the MMDA.
Association, Inc. is a non-stock, non-profit corporation whose The implementation of the MMDA’s plans, programs and
members are homeowners in Bel-Air Village, a private projects is undertaken by the local government units,
subdivision in Makati City. BAVA is the registered owner of national government agencies, accredited people’s
Neptune Street, a road inside Bel-Air Village. organizations, non-governmental organizations, and the
On December 30, 1995, respondent received from petitioner, private sector as well as by the MMDA itself. For this
through its Chairman, a notice dated December 22, 1995 purpose, the MMDA has the power to enter into contracts,
requesting respondent to open Neptune Street to public memoranda of agreement and other cooperative
vehicular traffic starting January 2, 1996. BAVA was apprised arrangements with these bodies for the delivery of the
that the perimeter wall separating the subdivision from the required services within Metro Manila.
adjacent Kalayaan Avenue would be demolished. Clearly, the scope of the MMDA’s function is limited to the
On January 2, 1996, BAVA instituted against petitioner before delivery of the seven (7) basic services. One of these is
the RTC a civil case for injunction. Respondent prayed for the transport and traffic management which includes the
issuance of a TRO and preliminary injunction enjoining the formulation and monitoring of policies, standards and
opening of Neptune Street and prohibiting the demolition of projects to rationalize the existing transport operations,
the perimeter wall. The trial court issued a temporary infrastructure requirements, the use of thoroughfares and
restraining order the following day. After due hearing, the promotion of the safe movement of persons and goods. It
trial court denied the issuance of preliminary injunction. also covers the mass transport system and the institution of
On appeal, the CA rendered a Decision on the merits of the a system of road regulation, the administration of all traffic
case finding that the MMDA has no authority to order the enforcement operations, traffic engineering services and
opening of Neptune Street, a private subdivision road and traffic education programs, including the institution of a
cause the demolition of its perimeter walls. It held that the single ticketing system in Metro Manila for traffic violations.
authority is lodged in the City Council of Makati by Under this service, the MMDA is expressly authorized "to set
ordinance. the policies concerning traffic" and "coordinate and regulate
the implementation of all traffic management programs." In
Issue: WON the MMDA has authority to open Neptune addition, the MMDA may "install and administer a single
Road to the public ticketing system," fix, impose and collect fines and penalties
for all traffic violations.
66 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

It will be noted that the powers of the MMDA are limited to was limited to addressing common problems involving
the following acts: formulation, coordination, regulation, basic services that transcended local boundaries. It did not
implementation, preparation, management, monitoring, have legislative power. Its power was merely to provide
setting of policies, installation of a system and the local government units technical assistance in the
administration. There is no syllable in R. A. No. 7924 preparation of local development plans. Any semblance of
that grants the MMDA police power, let alone legislative power it had was confined to a "review [of]
legislative power. Even the Metro Manila Council has not legislation proposed by the local legislative assemblies to
been delegated any legislative power. Unlike the legislative ensure consistency among local governments and with the
bodies of the local government units, there is no provision in comprehensive development plan of Metro Manila," and to
R. A. No. 7924 that empowers the MMDA or its Council to "advise the local governments accordingly."
"enact ordinances, approve resolutions and appropriate When R.A. No. 7924 took effect, Metropolitan Manila
funds for the general welfare" of the inhabitants of Metro became a "special development and administrative
Manila. The MMDA is, as termed in the charter itself, a region" and the MMDA a "special development
"development authority." It is an agency created for the authority" whose functions were "without prejudice to
purpose of laying down policies and coordinating with the the autonomy of the affected local government
various national government agencies, people’s units." The character of the MMDA was clearly defined
organizations, non-governmental organizations and the in the legislative debates enacting its charter.
private sector for the efficient and expeditious delivery of It is thus beyond doubt that the MMDA is not a local
basic services in the vast metropolitan area. All its government unit or a public corporation endowed
functions are administrative in nature and these are with legislative power. It is not even a "special
actually summed up in the charter itself metropolitan political subdivision" as contemplated in
Petitioner cannot seek refuge in the cases of Sangalang v. Section 11, Article X of the Constitution. The creation of a
Intermediate Appellate Court where we upheld a zoning "special metropolitan political subdivision" requires the
ordinance issued by the Metro Manila Commission (MMC), approval by a majority of the votes cast in a plebiscite in the
the predecessor of the MMDA, as an exercise of police power. political units directly affected. R. A. No. 7924 was not
The first Sangalang decision was on the merits of the submitted to the inhabitants of Metro Manila in a plebiscite.
petition, while the second decision denied reconsideration of The Chairman of the MMDA is not an official elected by the
the first case and in addition discussed the case of Yabut v. people, but appointed by the President with the rank and
Court of Appeals. privileges of a cabinet member. In fact, part of his function is
Contrary to petitioner’s claim, the two Sangalang to perform such other duties as may be assigned to him by
cases do not apply to the case at bar. Firstly, both the President, whereas in local government units, the
involved zoning ordinances passed by the municipal council President merely exercises supervisory authority. This
of Makati and the MMC. In the instant case, the basis for the emphasizes the administrative character of the MMDA.
proposed opening of Neptune Street is contained in the Clearly then, the MMC under P. D. No. 824 is not the
notice of December 22, 1995 sent by petitioner to same entity as the MMDA under R. A. No. 7924. Unlike
respondent BAVA, through its president. The notice does not the MMC, the MMDA has no power to enact
cite any ordinance or law, either by the Sangguniang ordinances for the welfare of the community. It is the
Panlungsod of Makati City or by the MMDA, as the legal basis local government units, acting through their respective
for the proposed opening of Neptune Street. Petitioner MMDA legislative councils, that possess legislative power and police
simply relied on its authority under its charter "to rationalize power. In the case at bar, the Sangguniang Panlungsod of
the use of roads and/or thoroughfares for the safe and Makati City did not pass any ordinance or resolution ordering
convenient movement of persons." Rationalizing the use of the opening of Neptune Street, hence, its proposed opening
roads and thoroughfares is one of the acts that fall within the by petitioner MMDA is illegal and the respondent Court of
scope of transport and traffic management. By no stretch of Appeals did not err in so ruling. We desist from ruling on the
the imagination, however, can this be interpreted as an other issues as they are unnecessary. Esmso
express or implied grant of ordinance-making power, much We stress that this decision does not make light of the
less police power. Misjuris MMDA’s noble efforts to solve the chaotic traffic condition in
Secondly, the MMDA is not the same entity as the Metro Manila. Everyday, traffic jams and traffic bottlenecks
MMC in Sangalang. Although the MMC is the plague the metropolis. Even our once sprawling boulevards
forerunner of the present MMDA, an examination of and avenues are now crammed with cars while city streets
Presidential Decree (P. D.) No. 824, the charter of the are clogged with motorists and pedestrians. Traffic has
MMC, shows that the latter possessed greater powers become a social malaise affecting our people’s productivity
which were not bestowed on the present MMDA. Jjlex and the efficient delivery of goods and services in the
In 1990, President Aquino issued Executive Order (E. country. The MMDA was created to put some order in the
O.) No. 392 and constituted the Metropolitan Manila metropolitan transportation system but unfortunately the
Authority (MMA). The powers and functions of the powers granted by its charter are limited. Its good intentions
MMC were devolved to the MMA. It ought to be cannot justify the opening for public use of a private street in
stressed, however, that not all powers and functions a private subdivision without any legal warrant. The
of the MMC were passed to the MMA. The MMA’s promotion of the general welfare is not antithetical to the
power was limited to the "delivery of basic urban preservation of the rule of law.
services requiring coordination in Metropolitan
Manila." The MMA’s governing body, the Metropolitan Sangalang v. IAC (1988)
Manila Council, although composed of the mayors of MMDA claims that it has the authority to open Neptune
the component cities and municipalities, was merely Street to public traffic because it is an agent of the state
given the power of: (1) formulation of policies on the endowed with police power in the delivery of basic services
delivery of basic services requiring coordination and in Metro Manila. One of these basic services is traffic
consolidation; and (2) promulgation of resolutions management which involves the regulation of the use of
and other issuances, approval of a code of basic thoroughfares to insure the safety, convenience and welfare
services and the exercise of its rule-making power. of the general public. It is alleged that the police power of
Under the 1987 Constitution, the local government units MMDA was affirmed by this Court in the consolidated cases
became primarily responsible for the governance of their of Sangalang v. IAC. From the premise that it has police
respective political subdivisions. The MMA’s jurisdiction power, it is now urged that there is no need for the City of
67 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

Makati to enact an ordinance opening Neptune street to the (Province of Zamboanga del Norte v. City of Zamboanga, 22
public. SCRA 1334 [1968]).
Local governments have no authority to regulate use
Macasiano v. Diokno (1992) of public properties unless authority is vested upon
Facts: On 13 June 1990, the Municipality of Paranaque by Congress; e.g. Closure of roads. Local governments
passed Ordinance 86, s. 1990 which authorized the closure have no authority whatsoever to control or regulate the use
of J. Gabrielle, G.G. Cruz, Bayanihan, Lt. Garcia Extension of public properties unless specific authority is vested upon
and Opena Streets located at Baclaran, Parañaque, Metro them by Congress. One such example of this authority given
Manila and the establishment of a flea market thereon. The by Congress to the local governments is the power to close
said ordinance was approved by the municipal council roads as provided in Section 10, Chapter II of the Local
pursuant to MCC Ordinance 2, s. 1979, authorizing and Government Code (BP 337), which states “A local
regulating the use of certain city and/or municipal streets, government unit may likewise, through its head acting
roads and open spaces within Metropolitan Manila as sites pursuant to a resolution of its sangguniang and in
for flea market and/or vending areas, under certain terms accordance with existing law and the provisions of this Code,
and conditions. On 20 July 1990, the Metropolitan Manila close any barangay, municipal, city or provincial road, street,
Authority approved Ordinance 86, s. 1990 of the municipal alley, park or square. No such way or place or any part
council subject to conditions. On 20 June 1990, the municipal thereof shall be closed without indemnifying any person
council issued a resolution authorizing the Parañaque Mayor prejudiced thereby. A property thus withdrawn from public
to enter into contract with any service cooperative for the use may be used or conveyed for any purpose for which
establishment, operation, maintenance and management of other real property belonging to the local unit concerned
flea markets and/or vending areas. On 8 August 1990, the might be lawfully used or conveyed."
municipality and Palanyag, a service cooperative, entered Legal provision should be read and interpreted in
into an agreement whereby the latter shall operate, maintain accordance with basic principles already established
and manage the flea market with the obligation to remit by law; LGU has no power to lease a road available to
dues to the treasury of the municipal government of public and ordinarily used for vehicular traffic. The
Parañaque. Consequently, market stalls were put up by legal provision (Chapter II, Section 10 of the LGC) which
Palanyag on the said streets. On 13 September 1990 Brig. gives authority to local government units to close roads and
Gen. Macasiano, PNP Superintendent of the Metropolitan other similar public places should be read and interpreted in
Traffic Command, ordered the destruction and confiscation of accordance with basic principles already established by law.
stalls along G.G. Cruz and J. Gabrielle St. in Baclaran. These These basic principles have the effect of limiting such
stalls were later returned to Palanyag. On 16 October 1990, authority of the province, city or municipality to close a
Macasiano wrote a letter to Palanyag giving the latter 10 public street or thoroughfare. Article 424 NCC lays down the
days to discontinue the flea market; otherwise, the market basic principle that properties of public dominion devoted to
stalls shall be dismantled. public use and made available to the public in general are
On 23 October 1990, the municipality and Palanyag filed outside the commerce of man and cannot be disposed of or
with the trial court a joint petition for prohibition and leased by the local government unit to private persons.
mandamus with damages and prayer for preliminary Aside from the requirement of due process which should be
injunction. On 17 December 1990, the trial court issued an complied with before closing a road, street or park, the
order upholding the validity of Ordinance 86 s. 1990 of the closure should be for the sole purpose of withdrawing the
Municipality of Parañaque and enjoining Macasiano from road or other public property from public use when
enforcing his letter-order against Palanyag. Hence, a petition circumstances show that such property is no longer intended
for certiorari under Rule 65 was filed by Macasiano thru the or necessary for public use or public service. When it is
OSG. already withdrawn from public use, the property then
The Supreme Court granted the petition, and reversed and becomes patrimonial property of the local government unit
set aside the 17 December 1990 decision of the RTC which (LGU) (Article 422 NCC; Cebu Oxygen v. Bercilles, 66 SCRA
granted the writ of preliminary injunction enjoining the PNP 481 [1975]). It is only then that the LGU can "use or convey
Superintendent, Metropolitan Traffic Command from them for any purpose for which other real property
enforcing the demolition of market stalls along J. Gabrielle, belonging to the local unit concerned might be lawfully used
G.G. Cruz, Bayanihan, Lt. Garcia Extension and Opena or conveyed." However, those roads and streets which are
streets. available to the public in general and ordinarily used for
vehicular traffic are still considered public property devoted
Ratio: to public use. In such case, the LGU has no power to use it
Property of provinces, cities and municipalities; for another purpose or to dispose of or lease it to private
Property for public use. The property of provinces, cities persons.
and municipalities is divided into property for public use and Related case, Cebu Oxygen v. Bercilles. In Cebu Oxygen
patrimonial property (Art. 423, Civil Code). As to property for v. Bercilles, the City Council of Cebu, through a resolution,
public use, Article 424 of Civil Code provides that "property declared the terminal road of M. Borces Street, Mabolo, Cebu
for public use, in the provinces, cities and municipalities, City as an abandoned road, the same not being included in
consists of the provincial roads, city streets, the squares, the City Development Plan. Thereafter, the City Council
fountains, public waters, promenades, and public works for passed another resolution authorizing the sale of the said
public service paid for by said provinces, cities or abandoned road through public bidding. The Court held that
municipalities. All other property possessed by any of them the City of Cebu is empowered to close a city street and to
is patrimonial and shall be governed by this Code, without vacate or withdraw the same from public use. Such
prejudice to the provisions of special laws." In the present withdrawn portion becomes patrimonial property which can
case, thus, J. Gabrielle G.G. Cruz, Bayanihan, Lt. Gacia be the object of an ordinary contract
Extension and Opena streets are local roads used for public Related case, Dacanay v. Asistio. In Dacanay v. Asistio,
service and are therefore considered public properties of the the disputed areas from which the market stalls are sought
municipality. to be evicted are public streets. A public street is property
Properties for public service deemed public and under for public use hence outside the commerce of man (Arts.
absolute control of Congress. Properties of the local 420, 424, Civil Code). Being outside the commerce of man, it
government which are devoted to public service are deemed may not be the subject of lease or other contract
public and are under the absolute control of Congress (Villanueva, et al. v. Castañeda and Macalino, 15 SCRA 142
68 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

citing the Municipality of Cavite v. Rojas, 30 SCRA 602; of municipality have the corresponding duty arising from
Espiritu v. Municipal Council of Pozorrubio, 102 Phil. 869; and public office to clear the city streets and restore them to
Muyot v. De la Fuente, 48 O.G. 4860). The right of the public their specific public purpose.
to use the city streets may not be bargained away through Applicability of the Dacanay case; Contracts by Local
contract. The interests of a few should not prevail over the Government governed by the original terms and
good of the greater number in the community whose health, conditions, and the law in force at time the rights
peace, safety, good order and general welfare, the were vested. As in the Dacanay case, both cases involve an
respondent city officials are under legal obligation to protect. ordinance which is void and illegal for lack of basis and
The leases or licenses granted by the City Government to authority in laws applicable during its time. However, BP 337
stallholders are null and void for being contrary to law. The (Local Government Code), has already been repealed by
Executive Order issued by the acting Mayor authorizing the RA7160 (Local Government Code of 1991) which took effect
use of Heroes del '96 Street as a vending area for on 1 January 1992. Section 5(d) of the new Code provides
stallholders contravenes the general law that reserves city that rights and obligations existing on the date of effectivity
streets and roads for public use. The Executive Order may of the new Code and arising out of contracts or any other
not infringe upon the vested right of the public to use city source of prestation involving a local government unit shall
streets for the purpose they were intended to serve: i.e., as be governed by the original terms and conditions of the said
arteries of travel for vehicles and pedestrians. contracts or the law in force at the time such rights were
In gratia argumenti, ordinance cannot be validly vested.
implemented as municipality has not complied with
conditions imposed by the MMA for the approval of
the ordinance. Even assuming, in gratia argumenti, that
the municipality has the authority to pass the disputed
ordinance, the same cannot be validly implemented because
it cannot be considered approved by the Metropolitan Manila
Authority due to non-compliance by the municipality of the
conditions imposed by the former for the approval of the
ordinance. The allegations of the municipality that the closed
streets were not used for vehicular traffic and that the
majority of the residents do not oppose the establishment of
a flea market on said streets are unsupported by any
evidence that will show that the first condition has been met.
Likewise, the designation by the Municipality of a time
schedule during which the flea market shall operate is
absent (fourth condition).
Baclaran area congested; establishment of flea
market on municipality streets does not help solve
problem of congestion
It is of public notice that the streets along Baclaran area are
congested with people, houses and traffic brought about by
the proliferation of vendors occupying the streets. To license
and allow the establishment of a flea market along J.
Gabrielle, G.G. Cruz, Bayanihan, Lt. Garcia Extension and
Opena streets in Baclaran would not help in solving the
problem of congestion but rather leads to inconvenience to
children as the normal transportation flow is disrupted, to
pollution and deterioration of health of residents due to the
garbage left by the vendors on the streets. Further,
ambulances and fire engines are not able to use the roads
for a more direct access to the fire area and thus lose
valuable time that should have been spent in saving
properties and lives. And further, the ambulances and people
rushing patients to St. Rita Hospital located along GG Cruz
Street are delayed as they are unable to pass through said
street due to the stalls and vendors.
Powers of local government unit not absolute. The
powers of a local government unit are not absolute. They are
subject to limitations laid down by the Constitution and the
laws such as our Civil Code. Moreover, the exercise of such
powers should be subservient to paramount considerations
of health and well-being of the members of the community.
Every local government unit has the sworn obligation to
enact measures that will enhance the public health, safety
and convenience, maintain peace and order, and promote
the general prosperity of the inhabitants of the local units.
Based on this objective, the local government should refrain
from acting towards that which might prejudice or adversely
affect the general welfare.
General public has legal right to demand the
restoration of city streets to their specific public
purpose. As in the Dacanay case, the general public have a
legal right to demand the demolition of the illegally
constructed stalls in public roads and streets and the officials
69 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

formerly resided specially so when we have left friends and

SYLLABUS PART 3: ELECTIVE OFFICIALS, VACANCIES, relatives although for intents and purposes we have already
SUCESSION, DISCIPLINARY ACTIONS transferred our residence to other places.

Qualifications Whether or not the petitioner is a registered voter of

Kananga, Leyte (the petitioner insists that she is such a
Abella v. COMELEC 201 SCRA 253 registered voter based on the following antecedents: 1 She
Facts: Initially, Silvestre dela Cruz (Benjamin Abella was cancelled her registration in Ormoc City on Nov 25, 1987,
allowed to intervene) filed a petition with the COMELEC to and 2 she then transferred her registration to Kananga,
disqualify petitioner Larrazabal from running as governor of Leyte on November 25, 1987 by registering thereat and 3)
Leyte on the ground that she misrepresented her residence she later voted on election day (Feb 1, 1988) in Kananga,
in her certificate of candidacy as Kananga, Leyte. It was Leyte. )
alleged that she was in fact a resident of Ormoc City like her We find the version pressed by respondent unworthy of
husband who was earlier disqualified from running for the belief. The story is marked by so many bizarre cirumtances
same office. not consistent with the ordinary course of events or the
The COMELEC granted the petition. However, when the natural behavior of persons. Among these are:
Commission granted the decision, Larrazabal was already The application for cancellation of registration by respondent
proclaimed the Governor, hence, when she was disqualified, Adelina Y. Larrazabal happened to be misplaced by a clerk in
Abella, who gathered the second highest votes in the said the Election Registrar's Office for Ormoc City so it was not
area, sought to take his oath as governor of Kananga, Leyte. sent to the Board of Election Inspectors in a sealed envelope;
The petitioner, however, avers that the COMELEC decision is The 'inadverterment' (sic) misplacement was discovered only
erroneous when it relied on the provisions of the Family Code on January 9,1988;
to rule that the petitioner lacks the required residence to The voter's affidavit was delivered by itself without any
qualify her to run for the position of governor of Leyte. She endorsement or covering letter from the Election Registrar or
opines that under "the Election Law, the matter of anybody else;
determination of the RESIDENCE is more on the principle of The election clerk delivered the application for cancellation
INTENTION, the animus revertendi rather than anything only towards the last hour of the revision day, allegedly at
else." 4:30 P.M., January 9, 1988;
In this regard she states that ... "her subsequent physical All the members of the BEI had already signed the Minutes
transfer of residence to Ormoc City thereafter, did not indicating that no revision of the voter's list was made as of
necessarily erased (sic) or removed her Kananga residence, 5:00 PM
for as long as she had the ANIMUS REVERTENDI evidenced The poll clerk and the third member prepared another
by her continuous and regular acts of returning there in the minutes stating that the election clerk had delivered the
course of the years, although she had physically resided at application for cancellation at 4:30 P.M. without any
Ormoc City." reference to the minutes they had previously signed;
Emeterio Larrazabal, who was supposed to have registered
Issue: Whether or not the candidate who got the second in Precinct 17, Mahawan, Kananga, was supposed to have
highest vote may be proclaimed as governor when the filled up an application for cancellation of his registration in
candidate for such position was disqualified. Precinct No. 15, Ormoc City at Precinct 17 concurrent with
his registration. His application for cancellation was never
Held: The Supreme Court held that while it is true that SPC submitted in evidence.
No. 88-546 was originally a petition to deny due course to The serial number of the voter's affidavits of the spouses
the certificate of candidacy of Larrazabal and was filed Larrazabal in Precinct No. 17 are far removed from the serial
before Larrazabal could be proclaimed, the fact remains that numbers of the other new registrants in November 28, 1987
the local elections of February 1, 1988 in the province of in the same precinct.
Leyte proceeded with Larrazabal considered as a bona fide The most telling evidence is the list of voters, that the
candidate. The voters of the province voted for her in the Chairman and the poll clerk had written in Part II of the
sincere belief that she was a qualified candidate for the same, closed by the signatures of both officials showing that
position of governor. Her votes were counted and she there were only 9 additional registered voters in Precinct 17,
obtained the highest number of votes. The net effect is that petitioner was not there. It was only on February 15, 1988, or
the petitioner lost in the election. He was repudiated by the two weeks after the election day that the same Registrar
electorate. certified for the first time that there were two voters lists,
As regards the principle of ANIMUS REVERTENDI the first without the names of the Larrazabals and the
(Faypon v. Quirino:[M) ere absence from one's residence or second, which appeared only after February 1, submitted by
origin-domicile-to pursue studies, engage in business, or the Chairman of the Board for Precinct 17 which contained
practice his avocation, is not sufficient to constitute the spouses Larrazabals' names.
abandonment or loss of such residence.' ... The Failing in her contention that she is a resident and registered
determination of a persons legal residence or domicile voter of Kananga, Leyte, the petitioner poses an alternative
largely depends upon intention which may be inferred from position that her being a registered voter in Ormoc City was
his acts, activities and utterances. The party who claims that no impediment to her candidacy for the position of governor
a person has abandoned or left his residence or origin must of the province of Leyte.
show and prove pre-ponderantly such abandonment or loss.) Section 12, Article X of the Constitution provides:
In the instant case, there is no evidence to prove that the Relating therefore, section 89 of R.A. 179 to section 12,
petitioner temporarily left her residence in Kananga, Leyte in Article X of the Constitution one comes up with the following
1975 to pursue any calling, profession or business. What is conclusion: that Ormoc City when organized was not yet a
clear is that she established her residence in Ormoc City with highly-urbanned city but is, nevertheless, considered
her husband and considers herself a resident therein. The independent of the province of Leyte to which it is
intention of animus revertendi not to abandon her residence geographically attached because its charter prohibits its
in Kananga, Leyte therefor, is nor present. The fact that she voters from voting for the provincial elective officials. The
occasionally visits Kananga, Leyte through the years does question now is whether or not the prohibition against the
not signify an intention to continue her residence therein. It 'city's registered voters' electing the provincial officials
is common among us Filipinos to often visit places where we
70 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

necessarily mean, a prohibition of the registered voters to be are fundamentally different from SPC No. 88-546 in that the
elected as provincial officials. The argument is untenable. Frivaldo and Labo cases were petitions for a quo warranto
Section 12, Article X of the Constitution is explicit in that filed under section 253 of the Omnibus Code, contesting the
aside from highly-urbanized cities, component cities whose eligibility of the respondents after they had been proclaimed
charters prohibit their voters from voting for provincial duly elected to the Office from which they were sought to be
elective officials are independent of the province. In the unseated while SPC No. 88-546 which was filed before
same provision, it provides for other component cities within proclamation under section 78 of the Omnibus Election Code
a province whose charters do not provide a similar sought to deny due course to Larrazabal's certificate of
prohibition. Necessarily, component cities like Ormoc City candidacy for material misrepresentations and was
whose charters prohibit their voters from voting for seasonably filed on election day. He, therefore, avers that
provincial elective officials are treated like highly urbanized since under section 6 of Republic Act 6646 it is provided
cities which are outside the supervisory power of the therein that: Any candidate who has been declared by final
province to which they are geographically attached. This judgment to be disqualified shall not be voted for, and the
independence from the province carries with it the votes case for him shall not be counted.
prohibition or mandate directed to their registered voters not The votes cast in favor of Larrazabal who obtained the
to vote and be voted for the provincial elective offices. The highest number of votes are not considered counted making
resolution in G.R. No. 80716 entitled Peralta v. The her a non-candidate, he, who obtained the second highest
Commission on Elections, et al. dated December 10, 1987 number of votes should be installed as regular Governor of
applies to this case. While the cited case involves Olongapo Leyte in accordance with the Court's ruling in G.R. No.
City which is classified as a highly urbanized city, the same 88004.
principle is applicable. While it is true that SPC No. 88-546 was originally a petition
Moreover, Section 89 of Republic Act 179, independent of to deny due course to the certificate of candidacy of
the constitutional provision, prohibits registered voters of Larrazabal and was filed before Larrazabal could be
Ormoc City from voting and being voted for elective offices proclaimed the fact remains that the local elections of
in the province of Leyte. We agree with the COMELEC en February 1, 1988 in the province of Leyte proceeded with
banc that "the phrase 'shall not be qualified and entitled to Larrazabal considered as a bona-fide candidate. The voters
vote in the election of the provincial governor and the of the province voted for her in the sincere belief that she
members of the provincial board of the Province of Leyte' was a qualified candidate for the position of governor. Her
connotes two prohibitions one, from running for and the votes were counted and she obtained the highest number of
second, from voting for any provincial elective official." votes. The net effect is that the petitioner lost in the
The petitioner takes exception to this interpretation. She election. He was repudiated by the electorate. In the Frivaldo
opines that such interpretation is "wrong English" since and Labo cases, this is precisely the reason why the
nowhere in the provision is there any reference to a candidates who obtained the second highest number of
prohibition against running for provincial elective office. She votes were not allowed to assume the positions vacated by
states that if the prohibition to run was indeed intended, the Frivaldo the governorship of Sorsogon, and Labo, the
provision should have been phrased "Shall not be qualified position of mayor in Baguio City. The nature of the
TO RUN in the election FOR provincial governor." A comma proceedings therefore, is not that compelling. What matters
should have been used after the word qualified and after the is that in the event a candidate for an elected position who is
word "vote" to clearly indicate that the phrase "in the voted for and who obtains the highest number of votes is
election of the provincial governor" is modified separately disqualified for not possessing the eligibility requirements at
and distinctly by the words "not qualified" and the words the time of the election as provided by law, the candidate
"not entitled to vote." who obtains the second highest number of votes for the
The Court finds the petitioner's interpretation fallacious. same position can not assume the vacated position. It should
In the case of Mapa v. Arroyo, the conjunction and between be stressed that in G.R. No. 88004, the Court set aside the
the phrase shall not be qualified and entitled to vote refer to dismissal of SPC No. 88-546, and directed the COMELEC to
two prohibitions as ruled by the COMELEC in relation to the conduct hearings to determine whether or not Larrazabal
demonstrative phrase "in the election of the provincial was qualified to be a candidate for the position of governor
governor and the members of the provincial board of the in the province of Leyte. This is the import of the decision in
Province of Leyte." G.R. No. 88004. Thus, the Court ruled in the case of Labo, Jr.
Finally, the petitioner contends that the February 14, 1991 v. Commission on Elections:
decision of the COMELEC's second division is null and void on Finally, there is the question of whether or not the private
the ground that on that date, the term of Commissioner respondent, who filed the quo warranto petition, can replace
Andres Flores, one of the signatories of the majority opinion the petitioner as mayor. He cannot. The simple reason is that
(vote was 2-1) had already expired on February 2, 1991. as he obtained only the second highest number of votes in
Commissioner Flores was appointed for a three-year term the election, he was obviously not the choice of the people
from February 15, 1988 to February 15, 1991. In these three of Baguio City.
years he exercised his duties and functions as Commissioner. The latest ruling of the Court on this issue is Santos v.
Granting in the absence of a statute expressly stating when Commission on Elections, decided in 1985. In that case, the
the terms of the COMELEC Chairman and members candidate who placed second was proclaimed elected after
commence and expire, that his term expired on February 2, the votes for his winning rival, who was disqualified as a
1991 to enable a faithful compliance with the constitutional turncoat and considered a non-candidate, were all disregard
provision that the terms of office in the COMELEC are on a as stray. In effect, the second placer won by default. That
staggered basis commencing and ending at fixed intervals, decision was supported by eight members of the Court then,
his continuance in office until February 15, 1991 has a color with three dissenting and another two reserving their vote.
of validity. Therefore, all his official acts from February 3, One was on official leave.
1991 to February 15, 1991, are considered valid. ... it would be extremely repugnant to the basic concept of
the constitutionally guaranteed right to suffrage if a
Issue: WON Abella can assume position of governor by candidate who has not acquired the majority or plurality of
virtue of Section 6 RA 6646 votes is proclaimed a winner and imposed as the
representative of a constituency, the majority of which have
Ratio: Abella claims that the Frivaldo and Labo cases were positively declared through their ballots that they do not
misapplied by the COMELEC. According to him these cases choose him.
71 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

Sound policy dictates that public elective offices are filled by filing fee because the COMELEC had at first considered the
those who have received the highest number of votes cast in petition as a pre-proclamation proceeding, which does not
the election for that office, and it is a fundamental idea in all require the payment of such a fee. When the COMELEC
republican forms of government that no one can be declared reclassified the petition, Lardizabal immediately paid the
elected and no measure can be declared carried unless he or filing fee -- thus, he still complied with the prescribed 10-day
it receives a majority or plurality of the legal votes cast in period. Furthermore, the Court held that such technicalities
the election. should not hinder judicial decisions on significant issues,
The fact that the candidate who obtained the highest such as the one being decided in this case.
number of votes is later declared to be disqualified or not
eligible for the office to which he was elected does not Labo is not a Filipino citizen. He had lost his Philippine
necessarily entitle the candidate who obtained the second citizenship by all 3 modes specified in the Constitution: (1)
highest number of votes to be declared the winner of the naturalization in a foreign country, (2) express renunciation
elective office. The votes cast for a dead, disqualified, or of citizenship, and (3) subscribing to an oath of allegiance to
non-eligible person may not be valid the vote the winner into support the Constitution or laws of a foreign country. He has
office or maintain him there. However the absence of a not reacquired Philippine citizenship by any of the 3 methods
statute which clearly asserts a contrary politics and prescribed in the Constitution: (1) direct act of Congress, (2)
legislative policy on the matter, if the votes were cast in the naturalization, and (3) repatriation.
sincere belief that the candidate was alive, qualified, or Contrary to Labo's claim, his naturalization in Australia did
eligible, they should not be treated as stray, void or not confer him with dual citizenship. The Constitution
meaningless. explicitly states that dual citizenship is inimical to national
In sum, the Court does not find any reason to reverse and interest.
set aside the questioned decision and resolution of the The contention that his marriage to an Australian national
COMELEC. The COMELEC has not acted without or in excess did not automatically divest him of Filipino citizenship is
of jurisdiction or in grave abuse of discretion. irrelevant. There was no claim that Labo had automatically
ceased to be a Filipino because of that marriage. Also, his
Labo v. COMELEC (1989) Filipino citizenship has not been automatically restored upon
FACTS: Ramon Labo, Jr. married an Australian citizen in the the annulment of his Australian citizenship, when his
Philippines. He was granted Australian citizenship in 1976. In marriage was declared void on the grounds of bigamy.
1980, the marriage was declared void for being bigamous. The Commission on Immigration and Deportation held in in
Labo returned to the Philippines in 1980, using an Australian 1988 that Labo was not a Filipino citizen. The earlier contrary
passport, and obtained an Alien Certificate of Registration decision by the COMELEC in 1982 is totally baseless, and is
(ACR). He later applied for a change in status from even alleged to have been politically motivated. The latter
immigrant to returning Filipino citizen. However, the can be reversed because the doctrine of res judicata does
Commission on Immigration and Deportation denied his not apply to questions of citizenship.
application for the cancellation of his ACR since he has not
applied for reacquisition of his Filipino citizenship. Labo is not eligible to hold public office in the Philippines. He
According to the records of the Australian Embassy (as was not even a qualified voter when he was elected.
certified by the Australian Consul), Labo was still an
Australian citizen as of April 12, 1984. Although no direct Despite getting the second highest number of votes,
evidence was presented to prove that he took an oath of Lardizabal cannot assume the position of Mayor because he
allegiance as a naturalized Australian citizen, the laws of has not been duly elected by the people of Baguio City.
Australia at the time required any person over the age of 16 Labo's disqualification alone does not entitle him to take
years who is granted Australian citizenship to take an oath of office. Instead, the elected Vice Mayor shall replace Labo.
allegiance. The wording/text of this oath includes a
renunciation of all other allegiance. *Separate concurring opinion (Gutierrez Jr., J.):
Labo ran and won as Mayor of Baguio City in the local Although no decision has been rendered by the COMELEC
elections held on January 18, 1988. The second-placer, Luis and elevated to the SC for review, it is undeniable that a
Lardizabal, filed a petition for quo warranto, alleging that foreigner cannot be allowed to hold public office in the
Labo is disqualified from holding public office on the grounds Philippines. It is regrettable, however, that Labo should be
of alienage, and asking that the latter's proclamation as disqualified on the basis of his citizenship because he has
Mayor be annulled. already achieved a lot while serving as Mayor during the
pendency of the case.
ISSUES: *The original issue raised before the Supreme Court
concerned only the COMELEC's jurisdiction over Lardizabal's Frivaldo v. COMELEC (1996)
petition. Labo contended that the petition for quo warranto Facts: Petitioner Juan G. Frivaldo was proclaimed governor-
was not filed on time, hence the COMELEC lacks the elect and assume office in due time. The League of
jurisdiction to conduct an inquiry regarding his citizenship. Municipalities filed with the COMELEC a petition for
However, the SC decided to rule on the merits of the case, annulment of Frivaldo’s election and proclamation on the
given that the issue is also of considerable importance (a ground that he was not a Filipino citizen, having been
foreign citizen holding public office in the Philippines), and in naturalized in the United States. Frivaldo admitted the
the interest of the speedy administration of justice. allegation but pleaded the special and affirmative defenses
that his naturalization was merely forced upon himself as a
Does the COMELEC have the jurisdiction to inquire into means of survival against the unrelenting prosecution by the
Labo's citizenship? Martial Law Dictator’s agent abroad.
Is Ramon Labo, Jr. a Filipino citizen?
Is he qualified to hold public office in the Philippines? Issue: Whether or not Frivaldo was a citizen of the
If Labo is not eligible to serve as Mayor, can Lardizabal, as Philippines at the time of his election.
the runner-up in the elections, replace him?
Held: No. Section 117 of the Omnibus Election Code
HELD/RATIO: provides that a qualified voter must be, among other
Yes. Contrary to Labo's claim, the petition for quo warranto qualifications, a citizen of the Philippines, this being an
was filed on time. Lardizabal did not immediately pay the
72 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

indispensable requirement for suffrage under Article V, candidacy he had, without more, already effectively
Section 1, of the Constitution. recovered Philippine citizenship. But that is hardly the formal
Even if he did lose his naturalized American citizenship, such declaration the law envisions surely, Philippine citizenship
forfeiture did not and could not have the effect of previously disowned is not that cheaply recovered. If the
automatically restoring his citizenship in the Philippines that Special Committee had not yet been convened, what that
he had earlier renounced. Qualifications for public office are meant simply was that the petitioner had to wait until this
continuing requirements and must be possessed not only at was done, or seek naturalization by legislative or judicial
the time of appointment or election or assumption of office proceedings.
but during the officer’s entire tenure. Gutierrez Jr, Concurring: I concur in the pragmatic
Frivaldo declared not a citizen of the Philippines and approach taken by the Court. I agree that when the higher
therefore disqualified from serving as a Governor of the interests of the State are involved, the public good should
Province of Sorsogon. supersede any procedural infinities which may affect a
In the certificate of candidacy he filed, Frivaldo described petition filed with the Commission on Elections. I fail to see
himself as a "natural-born" citizen of the Philippines, how the Court could allow a person who by his own
omitting mention of any subsequent loss of such status. The admissions is indubitably an alien to continue holding the
evidence shows, however, that he was naturalized as a office of Governor of any province.
citizen of the United States in 1983 per the following It is an established rule of long standing that the period fixed
certification from the United States District Court, Northern by law for the filing of a protest whether quo warranto or
District of California, as duly authenticated by Vice Consul election contest is mandatory and jurisdictional.
Amado P. Cortez of the Philippine Consulate General in San As a rule, the quo warranto petition seeking to annul the
Francisco, California, U.S.A. petitioner's election and proclamation should have been filed
This evidence is not denied by the petitioner. In fact, he with ten days after the proclamation of election results. The
expressly admitted it in his answer. Nevertheless, as earlier purpose of the law in not allowing the filing of protests
noted, he claims it was "forced" on him as a measure of beyond the period fixed by law is to have a certain and
protection from the persecution of the Marcos government definite time within which petitions against the results of an
through his agents in the United States. election should be filed and to provide summary proceedings
The Court sees no reason not to believe that the petitioner for the settlement of such disputes. The Rules of Court allow
was one of the enemies of the Marcos dictatorship. Even so, the Republic of the Philippines to file quo warranto
it cannot agree that as a consequence thereof he was proceedings against any public officer who performs an act
coerced into embracing American citizenship. His feeble which works a forfeiture of his office. However, where the
suggestion that his naturalization was not the result of his Solicitor General or the President feel that there are no good
own free and voluntary choice is totally unacceptable and reasons to commence quo warranto proceedings, the Court
must be rejected outright. should allow a person like Estuye or his league to bring the
There were many other Filipinos in the United States action.
similarly situated as Frivaldo, and some of them subject to I must emphasize, however, that my concurrence is limited
greater risk than he, who did not find it necessary nor do to a clear case of an alien holding an elective public office.
they claim to have been coerced to abandon their cherished And perhaps in a clear case of disloyalty to the Republic of
status as Filipinos. They did not take the oath of allegiance to the Philippines. Where the disqualification is based on age,
the United States, unlike the petitioner who solemnly residence, or any of the many grounds for ineligibility, I
declared "on oath, that I absolutely and entirely renounce believe that the ten-day period should be applied strictly.
and abjure all allegiance and fidelity to any foreign prince, The pragmatic approach is also shown by the fact that the
potentate, state or sovereignty of whom or which I have Court found it inexpedient to wait for the final decision of
heretofore been a subject or citizen," meaning in his case COMELEC. This step is most unusual but considering the
the Republic of the Philippines. The martyred Ninoy Aquino total lack of any serious grounds for the petitioner's claim of
heads the impressive list of those Filipinos in exile who, having regained his Philippine citizenship, I am constrained
unlike the petitioner, held fast to their Philippine citizenship to concur in the procedure pro hac vice.
despite the perils of their resistance to the Marcos regime.
The Nottebohm case cited by the petitioner invoked the Mercado v. Manzano (1999)
international law principle of effective nationality which is FACTS: This is a petition for certiorari seeking to set aside
clearly not applicable to the case at bar. That case is not the resolution of the COMELEC en banc and to declare
relevant to the petition before us because it dealt with a Manzano disqualified to hold the office of vice-mayor of
conflict between the nationality laws of two states as Makati City. Important details on Edu Manzano: born
decided by a third state. No third state is involved in the September 4, 1955 in San Francisco, California, USA to
case at bar; in fact, even the United States is not actively Filipino parents.
claiming Frivaldo as its national. The sole question presented
to us is whether or not Frivaldo is a citizen of the Philippines On the May 11, 1998 elections for vice-mayoralty of Makati
under our own laws, regardless of other nationality laws. We City, 3 candidates competed for the post: Eduardo B.
can decide this question alone as sovereign of our own Manzano, Ernesto S. Mercado, and Gabriel V. Daza III.
territory, conformably to Section 1 of the said Convention Manzano won the elections but his proclamation was
providing that "it is for each State to determine under its law suspended due to a pending petition for disqualification filed
who are its nationals." It is also worth noting that by a certain Ernesto Mamaril alleging that Manzano was an
Nottebohm was invoking his naturalization in Liechtenstein American citizen. On May 7, 1998, the Second Division of the
whereas in the present case Frivaldo is rejecting his COMELEC cancelled the certificate of candidacy of Manzano
naturalization in the United States. on the grounds of his dual-citizenship, which disqualifies him
If he really wanted to disavow his American citizenship and according to Sec.40(d) of the Local Government Code.
reacquire Philippine citizenship, the petitioner should have Manzano filed a motion for reconsideration. Mercado sought
done so in accordance with the laws of our country. Under CA to intervene in the case for disqualification. Manzano
No. 63 as amended by CA No. 473 and PD No. 725, Philippine opposed the motion to intervene. The motion was
citizenship may be reacquired by direct act of Congress, by unresolved. But on August 31, 1998, the COMELEC en banc
naturalization, or by repatriation. (with 1 commissioner abstaining) reversed the Second
It does not appear that Frivaldo has taken these categorical Division’s ruling on the cancellation of the certificate of
acts. He contends that by simply filing his certificate of
73 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

candidacy and directing the proclamation of Manzano as apply to him/her, therefore posting a threat to a country’s
winner, saying: sovereignty. In Sec.5 Article IV of the Constitution on
Citizenship, the concern was not with dual citizenship per se,
Manzano, being born in the USA, obtained US citizenship by but with naturalized citizens who maintain allegiance to their
operation of the US constitution and laws under principle of countries of origin even after naturalization. Hence, “dual
jus soli (basis is place of birth). citizenship” in the aforementioned disqualification clause
Yet, by being born to Filipino parents, Manzano natural born must mean “dual allegiance”. Therefore, persons with mere
Filipino citizen, by operation of the 1935 Philippine dual citizenship do not fall under this disqualification.
Constitution and laws under principle jus sanguinis (the right It should suffice that upon filing of certificates for candidacy,
of blood). such persons with dual citizenships have elected their
Although he is registered as an alien with the Philippine Philippine citizenship to terminate their dual citizenship. In
Bureau of Immigration and holds and American passport, he private respondent’s certificate of candidacy, he made these
has not lost his Filipino citizenship since he has not statements under oath on March 27, 1998: “I am a Filipino
renounced it and has not taken an oath of allegiance to the citizen…Natural-born”. “I am not a permanent
USA. resident of , or immigrant to , a foreign country.” “I
Manzano, after the age of majority, registered himself as a am eligible for the office I seek to be elected. I will
voter and voted in the 1992, 1995, and 1998 Philippine support and defend the Constitution of the
elections which effectively renounced his US citizenship Philippines and will maintain true faith and allegiance
under American law. Under Philippine law, he no longer had thereto…” The filing of such certificate of candidacy
US citizenship. sufficed to renounce his American citizenship,
effectively removing any disqualification he might
Private respondent Manzano was then proclaimed as vice- have as a dual-citizen. In Frivaldo v. COMELEC, it was held
mayor of Makati City. that “By laws of the United States… Frivaldo lost his
American citizenship when he took his oath of allegiance to
ISSUES: the Philippine Government when he ran for Governor in
WON petitioner Mercado has personality to bring this suit 1988, in 1992, and in 1995. Every certificate of
considering that he was not an original party in the case for candidacy contains an oath of allegiance to the
disqualification filed by Ernesto Mamaril nor was his motion Philippine Government.” Therefore, petitioner Mercado’s
for leave to intervene granted.  Yes. contention that the oath of allegiance contained in private
WON respondent Manzano is a dual citizen and if so, WON he respondent’s certificate of candidacy is insufficient to
is disqualified from being a candidate for vice-mayor in constitute his renunciation of his American citizenship. Also,
Makati City.  No. equally without merit is his contention that, to be effective,
such renunciation should have been made upon reaching the
REASONS: Manzano argues that Mercado has neither legal age of majority since no law requires the election of
interest in the matter of litigation nor an interest to protect Philippine citizenship to be made upon majority age.
because he is “a defeated candidate for the vice-mayoralty Plus, the fact that Manzano admitted that he was registered
post of Makati City [who] cannot be proclaimed as the Vice- as an American citizen with the Philippine Bureau of
Mayor of Makati City even if the private respondent be Immigration and Deportation and that he holds an American
ultimately disqualified by final and executory judgment.” passport which he used for his last travel to the US dated
This assumes that at the time intervention was sought, there April 22, 1997should not be such a big deal. At the time of
had already been a proclamation of the election results for said travel, the use of an American passport was simply an
the vice-mayoralty elections when in fact, there has not assertion of his American nationality before the termination
been such a proclamation. Certainly, the petitioner had, and of his American citizenship. Admitting that he was a
still has an interest in ousting private respondent from the registered alien does not mean that he is not still a Filipino
race when he sought to intervene. The rule in Labo v. (Aznar v. COMELEC).
COMELEC only applies when the election of the respondent is Manzano’s oath of allegiance, together with the fact he has
contested, and the question is WON the second placer may spent his life here, received his education here, and
be declared winner. If Mamaril was competent to bring practiced his profession here, and has taken part in past
action, so was Mercado, being a rival candidate. Philippine elections, leaves no doubt of his election of
Petitioner has right to intervene even if he filed the motion Philippine citizenship.
on May 20, 1998, when it was shown that the private
respondent had the most votes. Electoral Reforms Law of WHEREFORE, petition for certiorari, DISMISSED. *Ineligibility
1987 provides that intervention may be allowed in refers to lack of qualifications prescribed.
proceedings for disqualification even after election if
there has been no final judgment rendered. Failure of Coquilla v. COMELEC (2002)
COMELEC en banc to resolve petitioner’s motion for Nature: Petition for certiorari to set aside the resolution,
intervention was tantamount to denial of the motion, dated July 19, 2001, of the Second Division of the COMELEC,
justifying this petition for certiorari. ordering the cancellation of the certificate of candidacy of
Invoking the maxim dura lex sed lex, petitioner contends petitioner Teodulo M. Coquilla for the position of mayor of
that through Sec.40(d) of the Local Government Code (which Oras, Eastern Samar in the May 14, 2001 elections and the
declares as “disqualified from running for elective local order, dated January 30, 2002, of the COMELEC en banc
position… Those with dual-citizenship”), Congress has denying petitioner’s motion for reconsideration.Special Civil
“command[ed] in explicit terms the ineligibility of persons Action in the SC. Certiorari
possessing dual allegiance to hold elective office.”
Dual citizenship is different from dual allegiance. Dual Facts: February 17, 1938 – Coquilla was born of Filipino
citizenship is involuntary; it arises out of circumstances of parents in Oras, Eastern Samar. He grew up and resided
birth or marriage, where a person is recognized to be a there until 1965, when he joined the US Navy. He was
national by two or more states. Dual allegiance is a result of subsequently naturalized as a U.S. citizen.
a person’s volition; it is a situation wherein a person 1970-1973, petitioner thrice visited the Philippines while on
simultaneously owes, by some positive act, loyalty to two or leave from the U.S. Navy. Otherwise, even after his
more states. Dual citizenship is an issue because a person retirement from the U.S. Navy in 1985, he remained in the
who has this raises a question of which state’s law must U.S.
74 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

October 15, 1998, petitioner came to the Philippines and Contention that petitioner’s MFR did not suspend the running
took out a residence certificate, although he continued of the period for filing this petition because the motion was
making several trips to the U.S. the last of which took place pro forma and, thus, petition should’ve been filed on or
on July 6, 2000 and lasted until August 5, 2000. before Aug 27, 01 is not correct. It was actually filed,
Subsequently, petitioner applied for repatriation under R.A. however, only on February 11, 2002. The MFR was not pro
No. 81715 to the Special Committee on Naturalization which forma and its filing did suspend the period for filing the
was approved Nov. 7, 2000 petition for certiorari in this case. The mere reiteration in a
Nov. 10, 2000 – oath-taking as Filipino citizen; issued motion for reconsideration of the issues raised by the parties
Certificate of Repatriation No. 000737 and Bureau of and passed upon by the court does not make a motion pro
Immigration Identification Certificate No. 115123 three days forma; otherwise, the movant’s remedy would not be a
after reconsideration of the decision but a new trial or some other
November 21, 2000 - applied for registration as a voter of remedy.
Butnga, Oras, Eastern Samar. Approved by Election In the cases where MFR was held to be pro forma, the motion
Registration Board on January 12, 2001. was so held because
February 27, 2001 – filed certificate of candidacy stating it was a second motion for reconsideration, or
therein that he had been a resident of Oras, Eastern Samar it did not comply with the rule that the motion must specify
for "two (2) years." the findings and conclusions alleged to be contrary to law or
March 5, 2001, Neil M. Alvarez—respondent, incumbent not supported by the evidence,or
mayor of Oras and reelectionist—sought cancellation of it failed to substantiate the alleged errors, or
petitioner’s certificate of candidacy on the ground that the it merely alleged that the decision in question was contrary
latter had made a material misrepresentation in his to law, or
certificate of candidacy by stating that he had been a the adverse party was not given notice thereof.
resident of Oras for two years when in truth he had resided Petitioner’s MFR suffers from none of these defects, and
therein for only about six months since November 10, 2000, COMELEC erred in ruling that petitioner’s MFR was pro forma
when he took his oath as a citizen of the Philippines. because the allegations raised therein are a mere "rehash"
COMELEC unable to render judgment on the case before the of his earlier pleadings or did not raise "new matters."
elections on May 14, 2001 where petitioner won over private Hence, the filing of the motion suspended the running of the
respondent’s by 379 votes. 30-day period to file the petition in this case, which, as
May 17, 2001 - petitioner proclaimed mayor of Oras by the earlier shown, was done within the reglementary period
Municipal Board of Canvassers and subsequently took his provided by law.
oath of office.
July 19, 2001, the Second Division of the COMELEC granted WON COMELEC retained jurisdiction to decide this
private respondent’s petition and ordered the cancellation of case notwithstanding the proclamation of petitioner.
petitioner’s certificate of candidacy on the basis the R.A. No. 6646, Sec 6 & 7: Candidates who are disqualified by
respondent’s frequent or regular trips to the Philippines and final judgment before the election shall not be voted for and
stay in Oras, Eastern Samar after his retirement from the the votes cast for them shall not be counted. But those
U.S. Navy in 1985 cannot be added to his actual residence against whom no final judgment of disqualification had been
thereat after November 10, 2000 until May 14, 2001 to cure rendered may be voted for and proclaimed, unless, on
his deficiency in days, months, and year to allow or render motion of the complainant, the COMELEC suspends their
him eligible to run for an elective office in the Philippines. proclamation because the grounds for their disqualification
The 1-yr residency requirement of Sec 39(a) of the Local or cancellation of their certificates of candidacy are strong.
Government Code of 1991 in relation to Secs 65 and 68 of Meanwhile, the proceedings for disqualification of candidates
the Omnibus Election Code contemplates of the actual or for the cancellation or denial of certificates of candidacy,
residence of a Filipino citizen in the constituency where he which have been begun before the elections, should
seeks to be elected. continue even after such elections and proclamation of the
Petitioner filed a motion for reconsideration, but his motion winners.
was denied by the COMELEC en banc on January 30, 2002. In Abella v. COMELEC and Salcedo II v. COMELEC – the SC, in
Hence this petition. the first case, affirmed and, in the second, reversed the
decisions of the COMELEC rendered after the proclamation of
Issues: candidates, not on the ground that the latter had been
WON the 30-day period for appealing the resolution of divested of jurisdiction upon the candidates’ proclamation
the COMELEC was suspended by the filing of a motion but on the merits.
for reconsideration by petitioner.
Private respondent contention: petition should be dismissed WON petitioner had been a resident of Oras, Eastern
cause his motion for reconsideration was denied for being Samar at least one (1) year before the elections held
pro forma and did not suspend the running of the 30-day on May 14, 2001 as he represented in his certificate
period for filing this petition, pursuant to Rule 19, §4 of the of candidacy.
COMELEC Rules of Procedure, so and since the resolution No.
was received on July 28, 2001 and the petition in this case First, §39(a) of the Local Government Code (R.A No. 7160)
was filed on February 11, 2002, the same should be provides: An elective local official must be a citizen of the
considered as having been filed late and should be Philippines; a registered voter in the barangay, municipality,
dismissed. city, or province or, in the case of a member of the
Petitioner’s MFR and petition for certiorari were filed within sangguniang panlalawigan, sangguniang panlungsod, or
the prescribed periods. 5-day period for filing MFR under sangguniang bayan, the district where he intends to be
Rule 19, §2 should be counted from receipt of decision, elected; a resident therein for at least 1 year immediately
resolution, order, or ruling of COMELEC. In this case, preceding the day of the election; and able to read and write
petitioner received a copy of COMELEC’s Second Division July Filipino or any other local language or dialect.
19, ‘01 resolution on July 28, 2001. 5 days later, on Aug. 2, “Residence" is to be understood as referring to "domicile" or
‘01, he filed his MFR. On Feb. 6, ‘02, he received a copy of legal residence—the place where a party actually or
the order, dated Jan. 30, ‘02, of the COMELEC en banc constructively has his permanent home, where he, no matter
denying his MFR. 5 days later, on Feb 11, 02, he filed this where he may be found at any given time, eventually
petition for certiorari. intends to return and remain (animus manendi).
75 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

A domicile of origin is acquired by every person at birth. It is Election Code requires that a voter must have resided in the
usually the place where the child’s parents reside and Philippines for at least one year and in the city or
continues until the same is abandoned by acquisition of new municipality wherein he proposes to vote for at least six
domicile (domicile of choice). months immediately preceding the election. But, registration
In the case at bar, petitioner lost his domicile of origin in as a voter does not bar the filing of a subsequent case
Oras by becoming a U.S. citizen after enlisting in the U.S. questioning a candidate’s lack of residency (Nuval v. Guray).
Navy in 1965. From then on and until Nov. 10, ‘00, when he Fourth, petitioner was not denied due process because the
reacquired Philippine citizenship, petitioner was an alien COMELEC failed to act on his motion to be allowed to present
without any right to reside in the Philippines save as our evidence. Under §5(d), in relation to §7, of R.A. No. 6646
immigration laws may have allowed him to stay as a visitor (Electoral Reforms Law of 1987), proceedings for denial or
or as a resident alien. cancellation of a certificate of candidacy are summary in
If immigration to the United States by virtue of a nature. The holding of a formal hearing is thus not de rigeur.
"greencard," which entitles one to reside permanently in that In any event, petitioner cannot claim denial of the right to be
country, constitutes abandonment of domicile in the heard since he filed a Verified Answer, a Memorandum and a
Philippines (Caasi v. CA), much more does naturalization in a Manifestation, all dated March 19, 2001, before the
foreign country result in an abandonment of domicile in the COMELEC in which he submitted documents relied by him in
Philippines, as was the case with the petitioner. this petition, which, contrary to petitioner’s claim, are
Petitioner was repatriated not under R.A. No. 2630, which complete and intact in the records.
applies to the repatriation of those who lost their Philippine
citizenship by accepting commission in the Armed Forces of WON COMELEC was justified in ordering the
the US, but under R.A. No. 8171, which provides for the cancellation of his certificate of candidacy since the
repatriation of, among others, natural-born Filipinos who lost statement in petitioner’s certificate of candidacy that
their citizenship on account of political or economic he had been a resident of Oras, Eastern Samar for
necessity. In any event, the fact is that, by having been "two years" at the time he filed such certificate is not
naturalized abroad, he lost his Philippine citizenship and with true.
it his residence in the Philippines and had not reacquired it Yes. Petitioner made a false representation of a material fact
until November 10, 00 in his certificate of candidacy, thus rendering such certificate
Second, petitioner did not reestablished residence in this liable to cancellation.
country in 1998 when he came back to prepare for the Sec 78 of the Omnibus Election Code provides that a verified
mayoralty elections of Oras by securing a Community Tax petition seeking to deny due course or to cancel a certificate
Certificate in that year and by "constantly declaring" to his of candidacy may be filed by any person exclusively on the
townmates of his intention to seek repatriation and run for ground that any material representation contained therein as
mayor in the May 14, 2001 elections. required under Section 74 hereof is false.
The status of being an alien and a non-resident can be In the case at bar, what is involved is a false statement
waived either separately, when one acquires the status of a concerning a candidate’s qualification for an office for which
resident alien before acquiring Philippine citizenship, or at he filed the certificate of candidacy. This is a
the same time when one acquires Philippine citizenship. As misrepresentation of a material fact justifying the
an alien, an individual may obtain an immigrant visa under cancellation of petitioner’s certificate of candidacy. The
§13 of the Philippine Immigration Act of 1948 and an cancellation of petitioner’s certificate of candidacy in this
Immigrant Certificate of Residence (ICR) and thus waive his case is thus fully justified.
status as a non-resident.
On the other hand, he may acquire Philippine citizenship by Judgment: WHEREFORE, the petition is DISMISSED and the
naturalization under C.A. No. 473, as amended, or, if he is a resolution of the Second Division of the Commission on
former Philippine national, he may reacquire Philippine Elections, dated July 19, 2001, and the order, dated January
citizenship by repatriation or by an act of Congress, in which 30, 2002 of the Commission on Elections en banc are
case he waives not only his status as an alien but also his AFFIRMED.
status as a non-resident alien.
In the case at bar, the only evidence of petitioner’s status Disqualifications
when he entered the country on Oct and Dec ’98, Oct ‘99,
and June ‘00 is the statement "Philippine Immigration (–) Caasi v. CA (1990)
Balikbayan" in his 1998-2008 U.S. passport. As for his entry Facts: Private respondent Merito Miguel was elected as
on Aug 5, ‘00, the stamp bore the added inscription "good municipal mayor of Bolinao, Pangasinan during the local
for one year stay." Under §2 of R.A. No. 6768 (An Act elections of January 18, 1988. His disqualification, however,
Instituting a Balikbayan Program), the term balikbayan was sought by herein petitioner, Mateo Caasi, on the ground
includes a former Filipino citizen who had been naturalized in that under Section 68 of the Omnibus Election Code private
a foreign country and comes or returns to the Philippines respondent was not qualified because he is a green card
and, if so, he is entitled, among others, to a "visa-free entry holder, hence, a permanent resident of the United States of
to the Philippines for a period of one (1) year" (§3(c)). It America, not of Bolinao.
would appear then that when petitioner entered the country
on the dates in question, he did so as a visa-free balikbayan Issues:
visitor whose stay as such was valid for 1-yr only. Hence, 1. Whether or not a green card is proof that the holder is a
petitioner can only be held to have waived his status as an permanent resident of the United States.
alien and as a non-resident only on Nov 10, ‘00 upon taking 2. Whether respondent Miguel had waived his status as a
his oath as a citizen of the Philippines under R.A. No. 8171. permanent resident of or immigrant to the U.S.A. prior to the
He lacked the requisite residency to qualify him for the local elections on January 18, 1988.
mayorship of Oras
Petitioner cannot invoke the ruling in the cases Frivaldo v. Held: The Supreme Court held that Miguel’s application for
Commission on Elections and Bengson as residency was not immigrant status and permanent residence in the U.S. and
an issue in these. his possession of a green card attesting to such status are
Third, petitioner’s contends that his registration as a voter of conclusive proof that he is a permanent resident of the U.S.
Butnga, Oras, Eastern Samar in January 2001 is conclusive of despite his occasional visits to the Philippines. The waiver of
his residency as a candidate because §117 of the Omnibus such immigrant status should be as indubitable as his
76 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

application for it. Absent clear evidence that he made an The waiver of his green card should be manifested by some
irrevocable waiver of that status or that he surrendered his act or acts independent of and done prior to filing his
green card to the appropriate U.S. authorities before he ran candidacy for elective office in this country. Without such
for mayor of Bolinao in the local election on January 18, prior waiver, he was "disqualified to run for any elective
1988, the Court’s conclusion is that he was disqualified to office"
run for said public office, hence, his election thereto was null Miguel admits that he holds a green card, which proves that
and void. he is a permanent resident or immigrant it of the United
Section 18, Article XI of the 1987 Constitution provides: States, but the records of this case are starkly bare of proof
Sec. 18. Public officers and employees owe the State and that he had waived his status as such before he ran for
this Constitution allegiance at all times, and any public election as municipal mayor of Bolinao on January 18, 1988.
officer or employee who seeks to change his citizenship or We, therefore, hold that he was disqualified to become a
acquire the status of an immigrant of another country during candidate for that office.
his tenure shall be dealt with by law. The reason for Section 68 of the Omnibus Election Code is
In the same vein, but not quite, Section 68 of the Omnibus not hard to find. Residence in the municipality where he
Election Code of the Philippines provides: intends to run for elective office for at least 1 year at the
SEC. 68. Disqualifications ... Any person who is a permanent time of filing his certificate of candidacy, is one of the
resident of or an immigrant to a foreign country shall not be qualifications that a candidate for elective public office must
qualified to run for any elective office under this Code, possess (Sec. 42, LGC). Miguel did not possess that
unless said person has waived his status as permanent qualification because he was a permanent resident of the
resident or immigrant of a foreign country in accordance United States and he resided in Bolinao for a period of only 3
with the residence requirement provided for in the election months (not one year) after his return to the Philippines in
laws. Nov 1987 and before he ran for mayor of that municipality
In the case of Merito Miguel, the Court deems it significant on Jan 18, 1988.
that in the "Application for Immigrant Visa and Alien In banning from elective public office Philippine citizens who
Registration" which Miguel filled up in his own handwriting are permanent residents or immigrants of a foreign country,
and submitted to the US Embassy in Manila before his the Omnibus Election Code has laid down a clear policy of
departure for the United States in 1984, Miguel's answer to excluding from the right to hold elective public office those
Question No. 21 therein regarding his "Length of intended Philippine citizens who possess dual loyalties and allegiance.
stay ," Miguel's answer was, "Permanently." The law has reserved that privilege for its citizens who have
On its face, the green card that was subsequently issued by cast their lot with our country "without mental reservations
the United States Department of Justice and Immigration and or purpose of evasion." The assumption is that those who are
Registration Service to Miguel identifies him in clear bold resident aliens of a foreign country are incapable of such
letters as a RESIDENT ALIEN. On the back of the card, the entire devotion to the interest and welfare of their homeland
upper portion, the following information is printed: Person for with one eye on their public duties here, they must keep
identified by this card is entitled to reside permanently and another eye on their duties under the laws of the foreign
work in the United States." country of their choice in order to preserve their status as
Despite his vigorous disclaimer, Miguel's immigration to the permanent residents thereof.
United States in 1984 constituted an abandonment of his Miguel insists that even though he applied for immigration
domicile and residence in the Philippines. For he did not go and permanent residence in the United States, he never
to the United States merely to visit his children or his doctor really intended to live there permanently, for all that he
there; he entered the limited States with the intention to wanted was a green card to enable him to come and go to
have there permanently as evidenced by his application for the U.S. with ease. In other words, he would have this Court
an immigrant's (not a visitor's or tourist's) visa. Based on believe that he applied for immigration to the U.S. under
that application of his, he was issued by the U.S. false pretenses; that all this time he only had one foot in the
Government the requisite green card or authority to reside United States but kept his other foot in the Philippines. Even
there permanently. if that were true, this Court will not allow itself to be a party
Immigration is the removing into one place from another; the to his duplicity by permitting him to benefit from it, and
act of immigrating the entering into a country with the giving him the best of both worlds so to speak.
intention of residing in it. As a resident alien in the U.S., Miguel's application for immigrant status and permanent
Miguel owes temporary and local allegiance to the U.S., the residence in the U.S. and his possession of a green card
country in which he resides. This is in return for the attesting to such status are conclusive proof that he is a
protection given to him during the period of his residence permanent resident of the U.S. despite his occasional visits
therein. to the Philippines. The waiver of such immigrant status
Section 18, Article XI of the 1987 Constitution which provides should be as indubitable as his application for it. Absent
that "any public officer or employee who seeks to change his clear evidence that he made an irrevocable waiver of that
citizenship or acquire the status of an immigrant of another status or that he surrendered his green card to the
country during his tenure shall be dealt with by law" is not appropriate U.S. authorities before he ran for mayor of
applicable to Merito Miguel for he acquired the status of an Bolinao in the local elections on January 18, 1988, our
immigrant of the United States before he was elected to conclusion is that he was disqualified to run for said public
public office, not "during his tenure" as mayor of Bolinao, office, hence, his election thereto was null and void.
Did Miguel, by returning to the Philippines in November 1987 Marquez v. COMELEC (1995)
and presenting himself as a candidate for mayor of Bolinao Facts: It is averred that at the time respondent Rodriguez
in the January 18,1988 local elections, waive his status as a filed his certificate of candidacy, a criminal charge against
permanent resident or immigrant of the United States? him for ten counts of insurance fraud or grand theft of
To be "qualified to run for elective office" in the Philippines, personal property was still pending before the Municipal
the law requires that the candidate who is a green card Court of Los Angeles, USA. A warrant issued by said court for
holder must have "waived his status as a permanent his arrest, it is claimed, has yet to be served on private
resident or immigrant of a foreign country." Therefore, his respondent on account of his alleged “flight” from that
act of filing a certificate of candidacy for elective office in the country.
Philippines, did not of itself constitute a waiver of his status Before the May 1992 elections, a petition for cancellation of
as a permanent resident or immigrant of the United States. respondent’s certificate of candidacy on the ground of the
77 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

candidate’s disqualification was filed by petitioner, but Davide, Concurring. The term "fugitive from justice" refers
COMELEC dismissed the petition. not only to those who flee after conviction to avoid
Private respondent was proclaimed Governor-elect of punishment but also to those who, after being charged, flee
Quezon. Petitioner instituted quo warranto proceedings to avoid prosecution. In his ponencia, Mr. Justice Jose C. Vitug
against private respondent before the COMELEC but the finds the definition given to it by the Oversight Committee,
latter dismissed the petition. i.e., "a person who has been convicted by final judgment," as
appearing in Article 73 of the Rules and Regulations
Issue: Whether private respondent, who at the time of the Implementing the Local Government Code of 1991, as
filing of his certificate of candidacy is said to be facing a inordinate and as undue circumscription of the law. I agree.
criminal charge before a foreign court and evading a warrant But this is only one side of the coin. I further submit that it
of arrest comes within the term “fugitive from justice.” also unreasonably expands the scope of the disqualification
in the 1991 Local Government Code because it disqualifies
Held: The Supreme Court ruled that Article 73 of the all those who have been convicted by final judgment,
Rules and Regulations implementing the Local Government regardless of the extent of the penalty imposed and of
Code of 1991 provides: whether they have served or are serving their sentences or
“Article 73. Disqualifications – The following persons shall be have evaded service of sentence by jumping bail or leaving
disqualified from running for any elective local position: for another country. The definition thus disregards the true
“(a) xxxx and accepted meaning of the word fugitive. This new
“(e) Fugitives from justice in criminal or non-political cases definition is unwarranted for nothing in the legislative
here or abroad. Fugitive from justice refers to a person who debates has been shown to sustain it and the clear language
has been convicted by final judgment.” of the law leaves no room for a re-examination of the
It is clear from this provision that fugitives from justice refer meaning of the term.
only to persons who has been convicted by final judgment. I do not share the doubt of Mr. Justice Vitug on the
However, COMELEC did not make any definite finding on constitutionality of the disqualification based on the
whether or not private respondent is a fugitive from justice presumption of innocence clause of the Bill of Rights. There
when it outrightly denied the petition for quo warranto. The are certain fundamental considerations which do not support
Court opted to remand the case to COMELEC to resolve and the applications of the presumption
proceed with the case. Firstly, Section 1, Article V of the Constitution recognizes the
The Oversight Committee evidently entertained serious authority of Congress to determine who are disqualified from
apprehensions on the possible constitutional infirmity of exercising the right of suffrage. Since the minimum
Section 40(e) of RA 7160 if the disqualification therein meant requirement of a candidate for a public office is that he must
were to be so taken as to embrace those who merely were be a qualified voter, it logically follows that Congress has the
facing criminal charges. A similar concern was expressed by plenary power to determine who are disqualified to seek
Senator R. A. V. Saguisag who, during the bicameral election for a public office. Secondly, a public office is a
conference committee of the Senate and the House of public trust. Thirdly, the disqualification in question does not,
Representatives, made this reservation: . . . de ipa-refine in reality, involve the issue of presumption of innocence.
lang natin 'yung language especially 'yung, the scope of Elsewise stated, one is not disqualified because he is
fugitive. Medyo bothered ako doon, a. presumed guilty by the filing of an information or criminal
The Oversight Committee finally came out with Article 73 of complaint against him. He is disqualified because he is a
the Rules and Regulations Implementing the Local "fugitive from justice," i.e., he was not brought within the
Government Code of 1991. It provided: jurisdiction of the court because he had successfully evaded
Art. 73. Disqualifications. The following persons shall be arrest; or if he was brought within the jurisdiction of the
disqualified from running for any elective local position: court and was tried and convicted, he has successfully
(e) Fugitives from justice in criminal or non-political cases evaded service of sentence because he had jumped bail or
here or abroad. Fugitive from justice refers to a person who escaped. The disqualification then is based on his flight from
has been convicted by final judgment. justice. In the face of the settled doctrine that flight is an
Private respondent reminds us that the construction placed indication of guilt, it may even be truly said that it is not the
upon law by the officials in charge of its enforcement challenged disqualifying provision which overcomes the
deserves great and considerable weight . The Court certainly presumption of innocence but rather the disqualified person
agrees; however, when there clearly is no obscurity and himself who has proven his guilt.
ambiguity in an enabling law, it must merely be made to
apply as it is so written. An administrative rule or regulation Rodriguez v. COMELEC (1996)
can neither expand nor constrict the law but must remain Facts: The petitioner Eduardo T. Rodriguez was a
congruent to it. The Court believes and thus holds, albeit candidate for Governor in the Province of Quezon in the May
with some personal reservations of the ponente, that Article 8, 1995 elections. His rival candidate for the said position
73 of the Rules and Regulations Implementing the Local was Bienvenido O. Marquez, Jr., herein private respondent.
Government Code of 1991, to the extent that it confines the Private respondent filed a petition for disqualification before
term "fugitive from justice" to refer only to a person (the the COMELEC based principally on the allegation that
fugitive) "who has been convicted by final judgment." is an Rodriguez is a “fugitive from justice.” Private respondent
inordinate and undue circumscription of the law. revealed that a charge for fraudulent insurance claims,
Unfortunately, the COMELEC did not make any definite grand theft and attempted grand theft of personal property
finding on whether or not, in fact, private respondent is a is pending against the petitioner before the Los Angeles
"fugitive from justice" as such term must be interpreted and Municipal Court. Rodriguez is therefore a “fugitive from
applied in the light of the Court's opinion. The omission is justice” which is a ground for his disqualification/ ineligibility
understandable since the COMELEC dismissed outrightly the under Section 40 (e) of the Local Government Code
petition for quo warranto on the basis instead of Rule 73 of according to Marquez.
the Rules and Regulations promulgated by the Oversight Rodriguez, however, submitted a certification from the
Committee. The Court itself, not being a trier of facts, is thus Commission of Immigration showing that Rodriguez left the
constrained to remand the case to the COMELEC for a US on June 25, 1985- roughly five (5) months prior to the
determination of this unresolved factual matter. institution of the criminal complaint filed against him before
the Los Angeles Court.
78 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

The COMELEC complied therewith by filing before the Court, to be involved in politics in the same capacity as re-elected
on December 26, 1995, a report entitled "'EVIDENCE OF THE Governor in 1992 and the disputed re-election in 1995.
PARTIES and COMMISSION'S EVALUATION" wherein the Altogether, these landmark dates hem in for petitioner a
COMELEC, after calibrating the parties' evidence, declared period of relentless, intensive and extensive activity of
that Rodriguez is NOT a "fugitive from justice" as defined in varied political campaigns first against the Marcos
the main opinion in the MARQUEZ Decision, thus making a government, then for the governorship. And serving the
180-degree turnaround from its finding in the Consolidated people of Quezon province as such, the position entails
Resolution. In arriving at this new conclusion, the COMELEC absolute dedication of one's time to the demands of the
opined that intent to evade is a material element of the office.
MARQUEZ Decision definition. Such intent to evade is absent Having established petitioner's lack of knowledge of the
in Rodriguez' case because evidence has established that charges to be filed against him at the time he left the United
Rodriguez arrived in the Philippines long before the criminal States, it becomes immaterial under such construction to
charge was instituted in the Los Angeles Court. determine the exact time when he was made aware thereof.
But the COMELEC report did not end there. The poll body While the law, as interpreted by the Supreme Court, does
expressed what it describes as its "persistent discomfort" on not countenance flight from justice in the instance that a
whether it read and applied correctly the MARQUEZ Decision person flees the jurisdiction of another state after charges
definition of "fugitive from justice". against him or a warrant for his arrest was issued or even in
view of the imminent filing and issuance of the same,
Issue: Whether or not Rodriguez is a “fugitive from petitioner's plight is altogether a different situation. When, in
justice.” good faith, a person leaves the territory of a state not his
own, homeward bound, and learns subsequently of charges
Held: No. The Supreme Court reiterated that a “fugitive filed against him while in the relative peace and service of
from justice” includes not only those who flee after his own country, the fact that he does not subject himself to
conviction to avoid punishment but likewise who, being the jurisdiction of the former state does not qualify him
charged, flee to avoid prosecution. The definition thus outright as a fugitive from justice.
indicates that the intent to evade is the compelling factor However, Marquez and the COMELEC seem to urge
that animates one’s flight from a particular jurisdiction. And the Court to re-define "fugitive from justice". They espouse
obviously, there can only be an intent to evade prosecution the broader concept of the term and culled from foreign
or punishment when there is knowledge by the fleeing authoritie scited in the MARQUEZ Decision itself, i.e., that
subject of an already instituted indictment or of a one becomes a "fugitive from justice" by the mere fact that
promulgated judgement of conviction. he leaves the jurisdiction where a charge is pending against
him, regardless of whether or not the charge has already
The definition thus indicates that the intent to evade is the been filed at the time of his flight.
compelling factor that animates one's flight from a particular Suffice it to say that the "law of the case" doctrine forbids
jurisdiction. And obviously, there can only be an intent to the Court to craft an expanded re-definition of "fugitive from
evade prosecution or punishment when there is knowledge justice" (which is at variance with the MARQUEZ Decision)
by the fleeing subject of an already instituted indictment, or and proceed therefrom in resolving the instant petition. The
of a promulgated judgment of conviction. various definitions of that doctrine have been laid down in
Rodriguez' case just cannot fit in this concept. There is no People v. Pinuila. To elaborate, the same parties (Rodriguez
dispute that his arrival in the Philippines from the US on June and Marquez) and issue (whether or not Rodriguez is a
25, 1985, as per certifications issued by the Bureau of "fugitive from justice") are involved in the MARQUEZ
Immigrations dated April 27 3 and June 26 of 1995, preceded Decision and the instant petition. The MARQUEZ Decision
the filing of the felony complaint in the Los Angeles Court on was an appeal from EPC No. 92-28 (the Marquez' quo
November 12, 1985 and of the issuance on even date of the warranto petition before the COMELEC). The instant petition
arrest warrant by the same foreign court, by almost five (5) is also an appeal from EPC No. 92-28 although the COMELEC
months. It was clearly impossible for Rodriguez to have resolved the latter jointly with SPA No. 95-089 (Marquez'
known about such felony complaint and arrest warrant at the petition for the disqualification of Rodriguez). Therefore,
time he left the US, as there was in fact no complaint and what was irrevocably established as the controlling legal rule
arrest warrant much less conviction to speak of yet at such in the MARQUEZ Decision must govern the instant petition.
time. What prosecution or punishment then was Rodriguez And we specifically refer to the concept of "fugitive from
deliberately running away from with his departure from the justice" as defined in the main opinion in the MARQUEZ
US? The very essence of being a "fugitive from justice" Decision which highlights the significance of an intent to
under the MARQUEZ Decision definition, is just nowhere to evade but which Marquez and the COMELEC, with their
be found in the circumstances of Rodriguez. proposed expanded definition, seem to trivialize. Besides, to
The circumstantial fact that it was 17 days after Rodriguez' re-define "fugitive from justice" would only foment instability
departure that charges against him were filed cannot in our jurisprudence when hardly has the ink dried in the
overturn the presumption of good faith in his favor. The MARQUEZ Decision.
same suggests nothing more than the sequence of events
which transpired. A subjective fact as that of petitioner's Torres, Jr: Petitioner returned to the Philippines from the
purpose cannot be inferred from the objective data at hand United States on June 25, 1985 while the criminal complaint
in the absence of further proof to substantiate such claim. In against him for fraudulent insurance claims, grand theft and
fact, the evidence of Rodriguez sufficiently proves that his attempted grand theft of personal property was filed almost
compulsion to return to the Philippines was due to his desire 5 months later, or on November 12, 1985. Verily, it cannot
to join and participate vigorously in the political campaigns be said that he fled to avoid prosecution for at the time he
against former President Marcos. For indeed, not long after left the United States, there was yet no case or prosecution
petitioner's arrival in the country, the upheaval wrought by to avoid. That petitioner did not know of the imminent filing
the political forces and the avalanche of events which of charges against him and that he did not flee to avoid
occurred resulted in one of the more colorful events in the prosecution are bolstered by the facts that: 1.) he returned
Philippine history. And being a figure in these developments, to the United States twice: on August 14 and October 7 of
Rodriguez began serving his home province as OIC-Board the same year but arrived in the Philippines on October 26
Member of the Sangguniang Panlalawigan ng Quezon in likewise in the same year; 2.) he left his wife in the United
1986. Then, he was elected Governor in 1988 and continues States; and 3.) his wife was later on arrested for the same
79 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

charges. Had petitioner been aware of the imminent filing of accused who is not a principal or accomplice in the crime of
charges against him, he would never have returned to the robbery or theft, buys, receives, possesses, keeps, acquires,
United States and he would not have left his wife in there. conceals, sells or disposes, or buys and sells, or in any
Petitioner is a citizen of this country. Why should he not manner deals in any article, item, object or anything of
come home? Coming home to the Philippines was the most value, which have been deprived from the proceeds of the
natural act of the petitioner, who happens to maintain his said crime; (3) The accused knows or should have known
residence in the country. The fact that he remains here even that the said article, item, object or anything of value has
after he was formally accused cannot be construed as an been derived from the proceeds of the crime of robbery or
indication of an intent to flee, there being no compelling theft; and (4) There is, on the part of the accused, intent to
reason for him to go to the United States and face his gain for himself or for another.” Moral turpitude is deducible
accusers. On the contrary, it is his official duty, as an from the third element. Actual knowledge by the “fence” of
incumbent Governor of Quezon, to remain in the country and the fact that property received is stolen displays the same
perform his duties as the duly elected public official. degree of malicious deprivation of one’s rightful property as
"Fugitive from justice" must be given a meaning in the that which animated the robbery or theft which, by their very
instant case having regard to "the circumstances and the nature, are crimes of moral turpitude. Thus, the COMELEC
time it is used." Philosophers and jurists have tried did not err in disqualifying the petitioner on the ground that
unsuccessfully at an exact definition of such an abstruse the offense of fencing of which he had been previously
term as justice. Unfortunately, whether in the metaphysical convicted by final judgment was one involving moral
sense or otherwise, the question of justice is still turpitude.
unanswered as it ever was albeit characterized by secular
skepticism. If the question is asked: What standard of justice Moral turpitude is deducible from the third element. Actual
should we enforce? The American sense of justice or the knowledge by the “fence” of the fact that good morals.” The
Philippine sense of justice? Undoubtedly, the forum in which duty not to appropriate, or to return, anything acquired
it is raised should be controlling. By way only of hypothesis, either by mistake or with malice is so basic it finds
if an American flees to escape from Philippine Laws to the expression in some key provisions of the Civil Code on
United States, may we enforce in the United States our “Human Relations” and “Solutio Indebiti.
standard of justice based on Philippine Laws? I am tempted Verily, circumstances normally exist to forewarn, for
to ask these questions considering our zealousness to solve instance, a reasonably vigilant buyer that the object of the
legal problems in the light of laws obtaining in the United property received is stolen displays the same degree of
States. malicious deprivation of one’s rightful property as that which
At any rate, an accused charged with a crime in the animated the robbery or theft which, by their very nature,
Philippines cannot be a candidate and at the same time flee are crimes of moral turpitude. And although the
from prosecution. Once he goes campaigning his opponent participation of each felon in the unlawful taking differs in
would have him arrested. For this and the reasons above point in time and in degree, both the “fence” and the actual
discussed, the provision on disqualification of fugitive from perpetrator/s of the robbery or theft invaded one’s peaceful
justice, being unnecessary and serving only to undermine dominion for gain - thus deliberately reneging in the process
one's constitutional right to equal access to opportunities for “private duties” they owe their “fellowmen” or “society” in a
public service, should even be scantily considered. manner “contrary to x x x accepted and customary rule of
Finally, petitioner appears to have garnered 285,202 votes. right and duty x x x, justice, honesty x x x or
According to the election results, petitioner won over private sale may have been derived from the proceeds of robbery or
respondent by a majority of 140,000 votes more or less. As it theft. Such circumstances include the time and place of the
is, to disqualify petitioner on the shaky ground of being a sale, both of which may not be in accord with the usual
"fugitive from justice" would amount to disenfranchising the practices of commerce. The nature and condition of the
electorate in whom sovereignty resides. goods sold, and the fact that the seller is not regularly
engaged in the business of selling goods may likewise
De la Torre v. COMELEC (1996) suggest the illegality of their source, and therefore should
Facts: Rolando P. Dela Torre filed an instant petition for caution the buyer. This justifies the presumption found in
certiorari seeks the nullification of resolutions issued by the Section 5 of P.D. No. 1612 that “mere possession of any
Commission on Elections (COMELEC) allegedly with grave goods, x x x, object or anything of value which has been the
abuse of discretion amounting to lack of jurisdiction in a case subject of robbery or thievery shall be prima facie evidence
for disqualification filed against him before the COMELEC. of fencing”- a presumption that is, according to the Court,
The first assailed resolution dated 6 May 1995 declared dela “reasonable for no other natural or logical inference can
Torre disqualified from running for the position of Mayor of arise from the established fact of x x x possession of the
Cavinti, Laguna in the 8 May 1995 elections, citing as the proceeds of the crime of robbery or theft.” All told, the
ground therefor, Section 40(a) of RA 7160 (i.e. “Those COMELEC did not err in disqualifying the petitioner on the
sentenced by final judgment for an offense involving moral ground that the offense of fencing of which he had been
turpitude or for an offense punishable by 1 year or more of previously convicted by final judgment was one involving
imprisonment within 2 years after serving sentence”); the moral turpitude.
other is the denial of the motion for reconsideration. Anent the second issue where petitioner contends that his
probation had the effect of suspending the applicability of
Issue: Whether the crime of fencing involves moral Section 40 (a) of the Local Government Code, suffice it to
turpitude say that the legal effect of probation is only to suspend the
execution of the sentence. Petitioner’s conviction of fencing
Held: A crime involving moral turpitude is one which is which we have heretofore declared as a crime of moral
“an act of baseness, vileness, or depravity in the private turpitude and thus falling squarely under the disqualification
duties which a man owes his fellow men, or to society in found in Section 40 (a), subsists and remains totally
general, contrary to the accepted and customary rule of unaffected notwithstanding the grant of probation. In fact, a
right and duty between man and woman or conduct contrary judgment of conviction in a criminal case ipso facto attains
to justice, honesty, modesty, or good morals.” The elements finality when the accused applies for probation, although it is
of the crime of fencing (as gleaned from the definition of not executory pending resolution of the application for
fencing in Section 2 of PD 1612, Anti-fencing Law) are: (1) A probation. Clearly then, petitioner’s theory has no merit.
crime of robbery or theft has been committed; (2) The
80 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

Magno v. COMELEC (2002) society in general. Also, the fact that the offender takes
Facts: This is a petition for the disqualification of Nestor advantage of his office and position is a betrayal of the trust
Magno as mayoralty candidate of San Isidro, Nueva Ecija reposed on him by the public. It is a conduct clearly contrary
during the May 14, 2001 elections on the ground that to the accepted rules of right and duty, justice, honesty and
petitioner was previously convicted by the Sandiganbayan of good morals. In all respects, direct bribery is a crime
four counts of direct bribery. Thereafter, petitioner applied involving moral turpitude.
for probation and was discharged on March 5, 1998 upon
order of the Regional Trial Court of Gapan, Nueva Ecija. The Issue: What law should apply in this case
Comelec ruled that petitioner was disqualified from running
for the position of mayor by virtue of Section 12 of BP 881 Held: Local Government Code
(Omnibus Election Code) (crime involving moral turpitude,
shall be disqualified to be a candidate and to hold any office, Ratio: It is the second sub-issue which is problematical.
unless he has been given plenary pardon, or granted There appears to be a glaring incompatibility between the
amnesty.) According to the COMELEC, inasmuch as petitioner five-year disqualification period provided in Section 12 of the
was considered to have completed the service of his Omnibus Election Code and the two-year disqualification
sentence on March 5, 1998, his five-year disqualification will period in Section 40 of the Local Government Code.
end only on March 5, 2003. The MR was denied the by It should be noted that the Omnibus Election Code (BP 881)
Comelec. was approved on December 3, 1985 while the Local
Government Code (RA 7160) took effect on January 1, 1992.
Issue: WON direct bribery is a crime involving moral It is basic in statutory construction that in case of
turpitude irreconcilable conflict between two laws, the later enactment
must prevail, being the more recent expression of legislative
Held: Yes will. Legis posteriores priores contrarias abrogant. In
enacting the later law, the legislature is presumed to have
Ratio: Petitioner argues that direct bribery is not a crime knowledge of the older law and intended to change it.
involving moral turpitude. Likewise, he cites Section 40 of Furthermore, the repealing clause of Section 534 of RA 7160
RA 7160, which he claims is the law applicable to the case at or the Local Government Code states that: (f) All general and
bar, not BP 881 or the Omnibus Election Code as claimed by special laws, acts, city charters, decrees, executive orders,
the COMELEC. Said provision reads: Section 40. proclamations and administrative regulations, or part or
Disqualifications. - The following persons are disqualified parts thereof which are inconsistent with any provisions of
from running for any elective local position: (a) Those this Code are hereby repealed or modified accordingly.
sentenced by final judgment for an offense involving moral In accordance therewith, Section 40 of RA 7160 is deemed to
turpitude or for an offense punishable by one (1) year or have repealed Section 12 of BP 881. Furthermore, Article 7
more of imprisonment, within two (2) years after serving of the Civil Code provides that laws are repealed only by
sentence. subsequent ones, and not the other way around. When a
Petitioner insists that he had already served his sentence as subsequent law entirely encompasses the subject matter of
of March 5, 1998 when he was discharged from probation. the former enactment, the latter is deemed repealed.
Such being the case, the two-year disqualification period The intent of the legislature to reduce the disqualification
imposed by Section 40 of the Local Government Code period of candidates for local positions from five to two years
expired on March 5, 2000. Thus, petitioner was qualified to is evident. The cardinal rule in the interpretation of all laws
run in the 2001 elections. is to ascertain and give effect to the intent of the law. The
‘Moral turpitude’ is “an act of baseness, vileness, or reduction of the disqualification period from five to two years
depravity in the private duties which a man owes his fellow is the manifest intent. Therefore, although his crime of direct
men, or to society in general, contrary to the accepted and bribery involved moral turpitude, petitioner nonetheless
customary rule of right and duty between man and woman could not be disqualified from running in the 2001 elections.
or conduct contrary to justice, honesty, modesty, or good Article 12 of the Omnibus Election Code (BP 881) must yield
morals.” to Article 40 of the Local Government Code (RA 7160).
Not every criminal act, however, involves moral turpitude. It Petitioner’s disqualification ceased as of March 5, 2000 and
frequently depends on the circumstances surrounding the he was therefore under no such disqualification anymore
violation of the law. In this case, we need not review the when he ran for mayor of San Isidro, Nueva Ecija in the May
facts and circumstances relating to the commission of the 14, 2001 elections.
crime considering that petitioner did not assail his Unfortunately, however, neither this Court nor this case is
conviction. By applying for probation, petitioner in effect the proper forum to rule on (1) the validity of Sonia Lorenzo’s
admitted all the elements of the crime of direct bribery: proclamation and (2) the declaration of petitioner as the
the offender is a public officer; rightful winner. Inasmuch as Sonia Lorenzo had already
the offender accepts an offer or promise or receives a gift or been proclaimed as the winning candidate, the legal remedy
present by himself or through another; of petitioner would have been a timely election protest.
such offer or promise be accepted or gift or present be
received by the public officer with a view to committing Lingating v. COMELEC (2002)
some crime, or in consideration of the execution of an act Facts: Petitioner filed a petition for the disqualification of
which does not constitute a crime but the act must be Sulong, pursuant to §40(b) of RA 7160 which disqualifies
unjust, or to refrain from doing something which it is his from running for any elective local position “those removed
official duty to do; and from office as a result of an administrative case.” It appears
the act which the offender agrees to perform or which he that Sulong had previously won as mayor of Lapuyan on
executes is connected with the performance of his official January 18, 1988. In the May 11, 1992, and again in the May
duties. 8, 1995 elections, he was reelected. In a petition for
Moral turpitude can be inferred from the third element. The disqualification, petitioner alleged that in 1991, during his
fact that the offender agrees to accept a promise or gift and first term as mayor of Lapuyan, Sulong, along with a
deliberately commits an unjust act or refrains from municipal councilor of Lapuyan and several other individuals,
performing an official duty in exchange for some favors, was administratively charged with various offenses, and
denotes a malicious intent on the part of the offender to that, on February 4, 1992, the Sangguniang Panlalawigan of
renege on the duties which he owes his fellowmen and Zamboanga del Sur found him guilty of the charges and
81 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

ordered his removal from office. Petitioner claimed that this Jim Lingating, the complainant in AC No. 12-91, to comment;
decision had become final and executory, and consequently and that the complainant in AC No. 12-91 has not filed a
the then vice-mayor of Lapuyan, Vicente Imbing, took his comment nor has the Sangguniang Panlalawigan resolved
oath as mayor. respondent’s motion. The filing of his motion for
The comelec was unable to render judgment before the reconsideration prevented the decision of Sangguniang
elections, Rulong was voted for in the elections and he won Panlalawigan from becoming final.
as mayor. The comelec then rendered a decision declaring While R.A. No. 7160 on disciplinary actions is silent on the
Sulong disqualified as he was guilty of violating the Anti filing of a motion for reconsideration, the same cannot be
Graft and Corrupt Practices Act. Sulong filed an MR interpreted as a prohibition against the filing of a motion for
contending that the decision has not become final and reconsideration. Thus, it was held that a party in a
executor as the final disposition thereof was overtaken by disbarment proceeding under Rule 139-B, §12(c) can move
the local elections of May 1992. for a reconsideration of a resolution of the Integrated Bar of
The comelec en banc, however, reversed. It ruled that while the Philippines although Rule 139-B does not so provide:
it is true that one of the disqualifications from running in an Although Rule 139-B, §12(c) makes no mention of a motion
elective position is removal from office as a result of an for reconsideration, nothing in its text or history suggests
administrative case, said provision no longer applies if the that such motion is prohibited. It may therefore be filed . . . .
candidate whose qualification is questioned got re-elected to Indeed, the filing of such motion should be encouraged
another term. The re-election of Sulong in the 1992 and before [an appeal is] resort[ed] to . . . as a matter of
1995 elections would be tantamount to a condonation of the exhaustion of administrative remedies, to afford the agency
Sangguniang Panlalawigan decision which found him guilty rendering the judgment [an] opportunity to correct any error
of dishonesty, malversation of public funds etc[.], granting it may have committed through a misapprehension of facts
said decision has become final and executory. or misappreciation of evidence.
Moreover, the people of LAPUYAN have already expressed There is thus no decision finding respondent guilty to speak
their will when they cast their votes in the recent elections of. As Provincial Secretary of Zamboanga del Sur Wilfredo
as evidenced by the results which found respondent Sulong Cimafranca attested, the Sangguniang Panlalawigan simply
to have won convincingly. considered the matter as having become moot and
academic because it was “overtaken by the local elections of
Issue: WON Sulong was entitled to occupy the office thus May [11,]1992.”
vacated Neither can the succession of the then vice-mayor of
Lapuyan, Vicente Imbing, and the highest ranking municipal
Held: Yes councilor of Lapuyan, Romeo Tan, to the offices of mayor and
vice-mayor, respectively, be considered proof that the
Ratio: We stated in Reyes: Petitioner invokes the ruling in decision in AC No. 12-91 had become final because it
Aguinaldo v. COMELEC, in which it was held that a public appears to have been made pursuant to §68 of the Local
official could not be removed for misconduct committed Government Code, which makes decisions in administrative
during a prior term and that his reelection operated as a cases immediately executory.
condonation of the officer’s previous misconduct to the Indeed, considering the failure of the Sangguniang
extent of cutting off the right to remove him therefor. But Panlalawigan to resolve respondent’s motion, it is unfair to
that was because in that case, before the petition the electorate to be told after they have voted for
questioning the validity of the administrative decision respondent Sulong that after all he is disqualified, especially
removing petitioner could be decided, the term of office since, at the time of the elections on May 14, 2001, the
during which the alleged misconduct was committed decision of the Sangguniang Panlalawigan had been
expired. Removal cannot extend beyond the term during rendered nearly ten years ago.
which the alleged misconduct was committed. If a public
official is not removed before his term of office expires, he Flores v. Drilon (1998)
can no longer be removed if he is thereafter reelected [for] Facts: The constitutionality of Sec. 13, par. (d), of R.A.
another term. This is the rationale for the ruling in the two 7227, otherwise known as the "Bases Conversion and
Aguinaldo cases. Development Act of 1992," under which Mayor Richard J.
The case at bar is the very opposite of those cases. Here, Gordon of Olongapo City was appointed Chairman and Chief
the decision in the administrative case, was served on Executive Officer of the Subic Bay Metropolitan Authority
petitioner and it thereafter became final on April 3, 1995, (SBMA), is challenged in this original petition with prayer for
because petitioner failed to appeal to the Office of the prohibition, preliminary injunction and temporary restraining
President. He was thus validly removed from office and, order. Under said provision, “for the first year of its
pursuant to §40(b) of the Local Government Code, he was operations from the effectivity of this Act, the mayor of the
disqualified from running for reelection. City of Olongapo shall be appointed as the chairman and
It is noteworthy that at the time the Aguinaldo cases were chief executive officer of the Subic Authority.”
decided there was no provision similar to §40(b) which Petitioners, as taxpayers, contend that said provision is
disqualifies any person from running for any elective position unconstitutional as under the following constitutional and
on the ground that he has been removed as a result of an statutory provisions: (a) Sec. 7, first par., Art. IX-B, of the
administrative case. The Local Government Code of 1991 Constitution, which states that "[n]o elective official shall be
(R.A. No. 7160) could not be given retroactive effect. eligible for appointment or designation in any capacity to
However, Reyes cannot be applied to this case because it any public officer or position during his tenure," because the
appears that the 1992 decision of the Sangguniang City Mayor of Olongapo City is an elective official and the
Panlalawigan, finding respondent Sulong guilty of subject posts are public offices; (b) Sec. 16, Art. VII, of the
dishonesty, falsification and malversation of public funds, Constitution, which provides that "[t]he President shall
has not until now become final. The records of this case appoint all other officers of the Government whose
show that the Sangguniang Panlalawigan of Zamboanga del appointments are not otherwise provided for by law, and
Sur rendered judgment in AC No. 12-91 on February 4, 1992, those whom he may be authorized by law to appoint", since
a copy of which was received by respondent Sulong on it was Congress through the questioned proviso and not the
February 17, 1992; that on February 18, 1992, he filed a President who appointed the Mayor to the subject posts;
“motion for reconsideration and/or notice of appeal;” that on and, (c) Sec. 261, par. (g), of the Omnibus Election Code.
February 27, 1992, the Sangguniang Panlalawigan, required
82 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

Issue: WON the proviso in Sec. 13, par. (d), of R.A. 7227 officio or automatically attached to the Office of the Mayor of
violates the constitutional proscription against appointment Olongapo City without need of appointment. The phrase
or designation of elective officials to other government posts "shall be appointed" unquestionably shows the intent to
make the SBMA posts appointive and not merely adjunct to
Held: Yes the post of Mayor of Olongapo City. Had it been the
legislative intent to make the subject positions ex officio,
Ratio: The rule expresses the policy against the Congress would have, at least, avoided the word "appointed"
concentration of several public positions in one person, so and, instead, "ex officio" would have been used. Even in the
that a public officer or employee may serve full-time with Senate deliberations, the Senators were fully aware that
dedication and thus be efficient in the delivery of public subject proviso may contravene Sec. 7, first par., Art. IX-B,
services. It is an affirmation that a public office is a full-time but they nevertheless passed the bill and decided to have
job. Hence, a public officer or employee, like the head of an the controversy resolved by the courts. Indeed, the Senators
executive department described in Civil Liberties Union v. would not have been concerned with the effects of Sec. 7,
Executive Secretary, G.R. No. 83896, and Anti-Graft League first par., had they considered the SBMA posts as ex officio.
of the Philippines, Inc. v. Philip Ella C. Juico, as Secretary of Cognizant of the complication that may arise from the way
Agrarian Reform, G.R. No. 83815, should be allowed to the subject proviso was stated, Senator Rene Saguisag
attend to his duties and responsibilities without the remarked that "if the Conference Committee just said "the
distraction of other governmental duties or employment. He Mayor shall be the Chairman" then that should foreclose the
should be precluded from dissipating his efforts, attention issue. It is a legislative choice."The Senator took a view that
and energy among too many positions of responsibility, the constitutional proscription against appointment of
which may result in haphazardness and inefficiency. elective officials may have been sidestepped if Congress
In the case before us, the subject proviso directs the attached the SBMA posts to the Mayor of Olongapo City
President to appoint an elective official, i.e., the Mayor of instead of directing the President to appoint him to the post.
Olongapo City, to other government posts (as Chairman of Without passing upon this view of Senator Saguisag, it
the Board and Chief Executive Officer of SBMA). Since this is suffices to state that Congress intended the posts to be
precisely what the constitutional proscription seeks to appointive, thus nibbling in the bud the argument that they
prevent, it needs no stretching of the imagination to are ex officio.
conclude that the proviso contravenes Sec. 7, first par., Art. Petitioners also assail the legislative encroachment on the
IX-B, of the Constitution. Here, the fact that the expertise of appointing authority of the President. Section 13, par. (d),
an elective official may be most beneficial to the higher itself vests in the President the power to appoint the
interest of the body politic is of no moment. Chairman of the Board and the Chief Executive Officer of
It is argued that Sec. 94 of the LGC permits the appointment SBMA, although he really has no choice under the law but to
of a local elective official to another post if so allowed by law appoint the Mayor of Olongapo City.
or by the primary functions of his office. But, the contention As may be defined, an "appointment" is "[t]he designation of
is fallacious. Section 94 of the LGC is not determinative of a person, by the person or persons having authority therefor,
the constitutionality of Sec. 13, par. (d), of R.A. 7227, for no to discharge the duties of some office or trust," or "[t]he
legislative act can prevail over the fundamental law of the selection or designation of a person, by the person or
land. Moreover, since the constitutionality of Sec. 94 of LGC persons having authority therefor, to fill an office or public
is not the issue here nor is that section sought to be declared function and discharge the duties of the same. In his
unconstitutional, we need not rule on its validity. Neither can treatise, Philippine Political Law, Senior Associate Justice
we invoke a practice otherwise unconstitutional as authority Isagani A. Cruz defines appointment as "the selection, by the
for its validity. authority vested with the power, of an individual who is to
In any case, the view that an elective official may be exercise the functions of a given office." Considering that
appointed to another post if allowed by law or by the appointment calls for a selection, the appointing power
primary functions of his office, ignores the clear-cut necessarily exercises a discretion. Indeed, the power of
difference in the wording of the two (2) paragraphs of Sec. 7, choice is the heart of the power to appoint. Appointment
Art. IX-B, of the Constitution. While the second paragraph involves an exercise of discretion of whom to appoint; it is
authorizes holding of multiple offices by an appointive not a ministerial act of issuing appointment papers to the
official when allowed by law or by the primary functions of appointee. In other words, the choice of the appointee is a
his position, the first paragraph appears to be more stringent fundamental component of the appointing power.
by not providing any exception to the rule against Hence, when Congress clothes the President with the power
appointment or designation of an elective official to the to appoint an officer, it (Congress) cannot at the same time
government post, except as are particularly recognized in limit the choice of the President to only one candidate. Once
the Constitution itself, e.g., the President as head of the the power of appointment is conferred on the President, such
economic and planning agency; the Vice-President, who may conferment necessarily carries the discretion of whom to
be appointed Member of the Cabinet; and, a member of appoint. Even on the pretext of prescribing the qualifications
Congress who may be designated ex officio member of the of the officer, Congress may not abuse such power as to
Judicial and Bar Council. divest the appointing authority, directly or indirectly, of his
It is further argued that the SBMA posts are merely ex officio discretion to pick his own choice. Consequently, when the
to the position of Mayor of Olongapo City, hence, an qualifications prescribed by Congress can only be met by
excepted circumstance, citing Civil Liberties Union v. one individual, such enactment effectively eliminates the
Executive Secretary, where we stated that the prohibition discretion of the appointing power to choose and constitutes
against the holding of any other office or employment by the an irregular restriction on the power of appointment.
President, Vice-President, Members of the Cabinet, and their In the case at bar, while Congress willed that the subject
deputies or assistants during their tenure, as provided in posts be filled with a presidential appointee for the first year
Sec. 13, Art. VII, of the Constitution, does not comprehend of its operations from the effectivity of R.A. 7227, the proviso
additional duties and functions required by the primary nevertheless limits the appointing authority to only one
functions of the officials concerned, who are to perform eligible, i.e., the incumbent Mayor of Olongapo City. Since
them in an ex officio capacity as provided by law, without only one can qualify for the posts in question, the President
receiving any additional compensation therefor. This is precluded from exercising his discretion to choose whom
argument is apparently based on a wrong premise. Congress to appoint. Such supposed power of appointment, sans the
did not contemplate making the subject SBMA posts as ex
83 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

essential element of choice, is no power at all and goes does not preclude a recourse to this Court by way of a
against the very nature itself of appointment. special civil action of certiorari. Under Article IX (A), Section
While it may be viewed that the proviso merely sets the 7 of the Constitution, which petitioner cites, it is stated,
qualifications of the officer during the first year of operations “Unless otherwise provided by this Constitution or by law,
of SBMA, i.e., he must be the Mayor of Olongapo City, it is any decision, order, or ruling of each Commission may be
manifestly an abuse of congressional authority to prescribe brought to the Supreme Court on certiorari by the aggrieved
qualifications where only one, and no other, can qualify. party within thirty days from receipt thereof.” We resolve this
Where, as in the case of Gordon, an incumbent elective issue in favor of the petitioner.
official was, notwithstanding his ineligibility, appointed to The petition involves pure questions of fact as they relate to
other government posts, he does not automatically forfeit appreciation of evidence (ballots) which is beyond the power
his elective office nor remove his ineligibility imposed by the of review of this Court. The COMELEC found that the writing
Constitution. On the contrary, since an incumbent elective of the letter "C" after the word "Galido" in the fifteen (15)
official is not eligible to the appointive position, his ballots of Precinct 14 is a clear and convincing proof of a
appointment or designation thereto cannot be valid in view pattern or design to identify the ballots and/or voters. This
of his disqualification or lack of eligibility. finding should be conclusive on the Court.
As incumbent elective official, respondent Gordon is The Commission on Elections (COMELEC) has exclusive
ineligible for appointment to the position of Chairman of the original jurisdiction over all contests relating to the elections,
Board and Chief Executive of SBMA; hence, his appointment returns, and qualifications of all elective regional, provincial,
thereto pursuant to a legislative act that contravenes the and city officials and has appellate jurisdiction over all
Constitution cannot be sustained. He however remains contests involving elective municipal officials decided by trial
Mayor of Olongapo City, and his acts as SBMA official are not courts of general jurisdiction or involving elective barangay
necessarily null and void; he may be considered a de facto officials decided by trial courts of limited jurisdiction. (Article
officer, "one whose acts, though not those of a lawful officer, IX (C), Section 2 (2), paragraph 1 of the 1987 Constitution).
the law, upon principles of policy and justice, will hold valid In the present case, after a review of the trial court's
so far as they involve the interest of the public and third decision, the respondent COMELEC found that fifteen (15)
persons, where the duties of the office were exercised . . . . ballots in the same precinct containing the letter "C" after
under color of a known election or appointment, void the name Galido are clearly marked ballots. May this
because the officer was not eligible, or because there was a COMELEC decision be brought to this court by a petition for
want of power in the electing or appointing body, or by certiorari by the aggrieved party (the herein petitioner)?
reason of some defect or irregularity in its exercise, such Under Article IX (A) Section 7 of the Constitution, which
ineligibility, want of power or defect being unknown to the petitioner cites in support of this petition, it is stated:
public . . . . [or] under color of an election, or appointment, "(U)nless otherwise provided by this Constitution or by law,
by or pursuant to a public unconstitutional law, before the any decision, order, or ruling of each (Constitutional)
same is adjudged to be such. Commission may be brought to the Supreme Court on
certiorari by the aggrieved party within thirty days from
Election Cases Involving Local Elective Officials receipt of a copy thereof."
On the other hand, private respondent relies on Article IX,
Galido v. COMELEC (1991) (C), Section 2(2), paragraph 2 of the Constitution which
Facts: Galido and private respondent Galeon were provides that decisions, final orders, or rulings of the
candidates during the January 1988 local elections for mayor Commission on Elections in contests involving elective
of Garcia-Hernandez, Bohol. Petitioner was proclaimed the municipal and barangay offices shall be final, executory, and
duly-elected Mayor. Private respondent filed an election not appealable. (Emphasis supplied)
protest before the RTC. After hearing, the said court upheld We resolve this issue in favor of the petitioner. The fact that
the proclamation of petitioner. Private respondent appealed decisions, final orders or rulings of the Commission on
the RTC decision to the COMELEC. Its First Division reversed Elections in contests involving elective municipal and
the RTC decision and declared private respondent the duly- barangay offices are final, executory and not appealable,
elected mayor. After the COMELEC en banc denied the does not preclude a recourse to this Court by way of a
petitioner’s motion for reconsideration and affirmed the special civil action of certiorari. The proceedings in the
decision of its First Division. The COMELEC held that the Constitutional Commission on this matter are enlightening.
fifteen (15) ballots in the same precinct containing the initial We do not, however, believe that the COMELEC committed
“C” after the name “Galido” were marked ballots and, grave abuse of discretion amounting to lack or excess of
therefore, invalid. jurisdiction in rendering the questioned decision. It is settled
Undaunted by his previous failed actions the petitioner filed that the function of a writ of certiorari is to keep an inferior
the present petition for certiorari and injunction before the court or tribunal within the bounds of its jurisdiction or to
Supreme Court and succeeded in getting a temporary prevent it from committing a grave abuse of discretion
restraining order. In his comment to the petition, private amounting to lack or excess of jurisdiction.
respondent moved for dismissal, citing Article IX (C), Section As correctly argued by the COMELEC, it has the inherent
2(2), paragraph 2 of the 1987 Constitution, that “Final power to decide an election contest on physical evidence,
decisions, orders or rulings of the COMELEC in election equity, law and justice, and apply established jurisprudence
contests involving elective municipal offices are final and in support of its findings and conclusions; and that the
executory, and not appealable. extent to which such precedents apply rests on its discretion,
the exercise of which should not be controlled unless such
Issue: Whether or not a COMELEC decision may, if it sets discretion has been abused to the prejudice of either party.
aside the trial court’s decision involving marked ballots, be Finally, the records disclose that private respondent had
brought to the Supreme Court by a petition for certiorari by already assumed the position of Mayor of Garcia-Hernandez
the aggrieved party? as the duly-elected mayor of the municipality by virtue of the
COMELEC decision. The main purpose of prohibition is to
Held: Yes suspend all action and prevent the further performance of
the act complained of. In this light, the petition at bar has
Ratio: The fact that decisions, final orders or rulings of the become moot and academic.
COMELEC in contests involving elective municipal and
barangay offices are final, executory and not appealable, Rivera v. COMELEC (1991)
84 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

Facts: Juan Garcia Rivera and Juan Mitre Garcia II were special civil action of certiorari. The proceedings in the
candidates for the position of Mayor of Guinobatan, Albay, Constitutional Commission on this matter are enlightening.
during the local elections in January 1988. The Municipal Flores vs Comelec: Obviously, the provision of Article IX-C,
Board of Canvassers proclaimed Rivera as the duly elected Section 2(2) of the Constitution that "decisions, final orders,
Mayor by a majority of 10 votes. or rulings of the Commission on election contests involving
Garcia filed an election protest with the RTC, which rendered elective municipal and barangay offices shall be final,
its verdict finding Garcia to have obtained 6,376 votes as executory, and not appealable" applies only to questions of
against Rivera's 6,222. On appeal to the Comelec, the fact and not of law. That provision was not intended to divest
Comelec sustained with modification the judgment. It ruled the Supreme Court of its authority to resolve questions of
that Juan Garcia was the duly elected municipal mayor by a law as inherent in the judicial power conferred upon it by the
majority of 153 votes over Juan Rivera instead of plurality of Constitution. We eschew a literal reading of that provision
154 votes. Upon MR, the Comelec affirmed the decision. that would contradict such authority.
Garcia commenced to discharge the duties and functions of Actually, the main thrust of the present petition for certiorari
Mayor of Guinobatan on 10 October 1990, by virtue of a writ is that the COMELEC en banc committed grave abuse of
of execution implementing the COMELEC decision of 6 discretion when it affirmed the decision of its First Division,
September 1990. He continued as mayor until 10 November promulgated on 2 May 1990, annulling the proclamation of
1990 when he was served notice of this Court's temporary the petitioner as the duly elected Mayor of Guinobatan,
restraining order, issued upon Rivera's motion. Albay and when it did not exclude from the total votes of
In this petition, Rivera prayed for the issuance of a Garcia at least 10 votes which were allegedly misappreciated
restraining order arguing that the judgment had not yet in Garcia's favor.
become final and executory. He cites Article IX-C, Section 2, We have closely scrutinized the challenged COMELEC
Par. (2) of the 1987 Constitution, in relation to Part VII, Rule decision and find that the said decision was not arrived at
39, Section 1 of the COMELEC Rules of Procedure. He also capriciously or whimsically by respondent COMELEC. A
contends that since the COMELEC decision has not yet painstaking re-evaluation of the questioned 67 ballots was
become final and executory, the COMELEC has no authority made by the COMELEC en banc. In fact, fourteen (14) ballots
to issue the assailed order and writ of execution. Petitioner originally adjudicated in Garcia's favor were overruled by the
maintains further that he has a period of thirty (30) days Commission en banc, thus reducing the number of votes in
from 6 September 1990 or until 6 October 1990 within which his favor to 894 votes out of the 2,445 contested ballots. On
to elevate the COMELEC decision, on certiorari, to this Court, the other hand, 16 ballots were added in Rivera's favor, thus
pursuant to Section 1, Rule 39 of the COMELEC Rules of increasing the votes in his favor to 1,087 votes. Moreover,
Procedure. He submits that the questioned COMELEC the appreciation and re-evaluation of ballots are factual
decision is not one that became final and executory unless determinations. It is settled that in a petition for certiorari,
restrained by this Court as provided under Section 3, Rule 39 findings of fact of administrative bodies are final unless
of the COMELEC Rules, as said rule applies only to "decisions grave abuse of discretion has marred such factual
in pre-proclamation cases and petitions to deny due course determinations. We find none in this case.
or to disqualify a candidate, and postpone or suspend
elections." Lastly, according to petitioner, Section 13(a) of Regalado, concurring: What the foregoing observations
Rule 18 (finality of Comelec decisions or resolutions) and actually boil down to is that the decisions, orders, or rulings
Section 1 of Rule 39 (review by the Supreme Court of of said constitutional commissions are not subject to
Comelec decisions, orders and rulings) of the COMELEC appellate review, that is, with this Court acting in the
Rules of Procedure, should be read in the context of Section exercise of appellate jurisdiction and exercising its power of
7, Article IX-A of the Constitution (Supreme Court authority review over alleged errors of law and, sometimes, of fact or
to review on certiorari a Comelec decision, order or ruling). both. Such decisions, orders or rulings are not, however,
Garcia contends that the Constitution declares that the invulnerable to an original civil action of certiorari,
Comelec decision on election contests involving elective prohibition or mandamus invoking the original jurisdiction of
municipal and barangay officials are to be final, executor and this Court, under its power of control and supervision over
not appealable. the lower courts, to pass upon errors of jurisdiction imputed
to said commissions. This is inevitable and justified because
Issue: WON the decisions of the COMELEC in election no appeal or any other plain, speedy or adequate remedy in
contests involving elective municipal and barangay officials, the ordinary course of law lies from said adjudications.
being final and executory and not appealable, preclude the
filing of a special civil action of certiorari Narvasa, dissenting: It bears stressing that the final,
executory and unappealable character of the COMELEC's
Held: Yes rulings, orders or decisions in election contests involving
elective municipal and barangay offices, is pronounced not
Ratio: Under Article IX (A), Section 7 of the Constitution, by statute or presidential issuance, but by the Constitution
which petitioner cites in support of this petition, it is stated: itself. This is a relevant consideration because while
"(U)nless otherwise provided by the Constitution or by law, Congress is granted by Section 2, Article VIII of the
any decision, order, or ruling of each (Constitutional) Constitution the "power to define, prescribe, and apportion
Commission may be brought to the Supreme Court on the jurisdiction of the various courts, . . . (it) may not deprive
certiorari by the aggrieved party within thirty days from the Supreme Court of its jurisdiction over cases enumerated
receipt of a copy thereof.” On the other hand, private in Section 5" of the same Article VIII; and said Section 5
respondent relies on Article IX, (C), Section 2 (2), paragraph declares it to be one of the powers of the Supreme Court to
2 of the Constitution which provides that decisions, final "(r)eview, reverse, modify, or affirm on appeal or certiorari,
orders, or rulings of the Commission on Elections in contests as the law or the Rules of Court may provide, final judgments
involving elective municipal and barangay offices shall be and orders of lower courts in . . . (specifically listed cases)."
final, executory and not appealable. It is in truth this fundamental limitation on the legislative
We resolve this issue in favor of the petitioner. The fact that prerogative to "define, prescribe, and apportion the
decisions, final orders or rulings of the Commission on jurisdiction" of courts which is, that the Supreme Court may
Elections in contests involving elective municipal and not be deprived by law of jurisdiction over certain particular
barangay offices are final, executory and not appealable, cases that underlay this Court's doctrines allowing review by
does not preclude a recourse to this Court by way of a the special civil action of certiorari under Rule 65 of
85 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

judgments and final orders of the National Labor Relations the 1998 mayoralty derby as his proclamation was under
Commission under the Labor Code, and the Central Board of protest did not make him less than a duly elected mayor. His
Assessment Appeals, from which no appeal is prescribed by proclamation by the Municipal Board of Canvassers of San
law. Vicente as the duly elected mayor in the 1998 mayoralty
It cannot be gainsaid however that while Congress may not election coupled by his assumption of office and his
deprive the Supreme Court of its constitutionally stated continuous exercise of the functions thereof from start to
powers, that self-same Constitution may itself effect that finish of the term, should legally be taken as service for a full
deprivation; and this appears to be precisely the purpose term in contemplation of the three-term rule.
and intent of said Section 2, Article IX-C of the Constitution The absurdity and the deleterious effect of a contrary view is
as written: to remove from this Court's power to review, not hard to discern. Such contrary view would mean that
revise, reverse, modify, or affirm on appeal or certiorari final Alegre would-under the three-term rule-be considered as
judgments and orders of the COMELEC in "election contests having served a term by virtue of a veritably meaningless
involving elective municipal and barangay offices." electoral protest ruling, when another actually served such
term pursuant to a proclamation made in due course after an
Rivera v. COMELEC (2007) election.
Facts: In the May 2004 Synchronized National and Local It bears stressing that in Ong v. Alegre cited above,
Elections, Marino Morales ran as candidate for mayor of Francis Ong was elected and assumed the duties of the
Mabalacat. On January 5, 2004, he filed his Certificate of mayor of San Vicente, Camarines Norte for three consecutive
Candidacy. On January 10, petitioners filed before the terms. But his proclamation as mayor in the May 1998
Comelec a petition to cancel Morales’ certificate of election was declared void by the RTC of Daet, Camarines
candidacy on the ground that the was elected and had Norte in its Decision dated July 4, 2001. As ruled by this
served three previous consecutive terms as mayor of Court, his service for the term 1998 to 2001 is for the full
Mabalacat contrary to RA 43(b) of RA 7160. term. Clearly, the three-term limit rule applies to him.
Morales admitted that he was elected mayor of Mabalacat Indeed, there is no reason why this ruling should not also
for the term commencing July 1, 1995 to June 30, 1998 (first apply to respondent Morales who is similarly situated.
term) and July 1, 2001 to June 30, 2004 (third term), but he Here, Morales invoked not only Lonzanida v. COMELEC, but
served the second term from July 1, 1998 to June 30, 2001 also Borja, Jr. v. Commission on Elections which is likewise
only as a “caretaker of the office” or as a “de facto officer” inapplicable. In Borja, the Court held that Capco’s
because he was not validly elected as his proclamation as assumption of the office of mayor upon the death of the
mayor was declared void by the RTC and thereafter, he was incumbent may not be regarded as a “term” under Section
preventively suspended by the ombudsman. 8, Article X of the Constitution and Section 43 (b) of R.A. No.
The Comelec ruled that Morales was disqualified to run for 7160 (the Local Government Code). He held the position
public office. Morales’ MR was however granted. The from September 2, 1989 to June 30, 1992, a period of less
Comelec ruled that his proclamation before was void and than three years. Moreover, he was not elected to that
that the discharge of the duties is that of a de facto mayor. position.
In the other case filed by Anthony Dee: After Morales was Similarly, in Adormeo v. COMELEC, this Court ruled that
proclaimed as the duly elected mayor, Anthony Dee filed a assumption of the office of mayor in a recall election for the
petition for quo warranto before the RTC. Dee reiterated the remaining term is not the “term” contemplated under
previous arguments of petitioners. The RTC dismissed Dee’s Section 8, Article X of the Constitution and Section 43 (b) of
petition for quo warranto on the ground that Morales did not R.A. No. 7160 (the Local Government Code). As the Court
serve the three-term limit since he was not the duly elected observed, there was a “break” in the service of private
mayor of Mabalacat, but Dee in the May 1998 elections for respondent Ramon T. Talanga as mayor. He was a “private
the term 1998 to 2001. Comelec affirmed. citizen” for a time before running for mayor in the recall
Issue: WON Morales is disqualified from running for mayor Here, Morales was elected for the term July 1, 1998 to
June 30, 2001. He assumed the position. He served as
Held: Yes mayor until June 30, 2001. He was mayor for the entire
period notwithstanding the Decision of the RTC in the
Ratio: This Court, through Mr. Justice Cancio C. Garcia, electoral protest case filed by petitioner Dee ousting him
resolved the same issue in Ong v. Alegre with identical facts, (respondent) as mayor. To reiterate, as held in Ong v.
thus: Alegre, such circumstance does not constitute an
For the three-term limit for elective local government interruption in serving the full term. Section 8, Article X of
officials to apply, two conditions or requisites must concur, the Constitution can not be more clear and explicit-
to wit: (1) that the official concerned has been elected for Respondent Morales is now serving his fourth term. He has
three (3) consecutive terms in the same local government been mayor of Mabalacat continuously without any break
post, and (2) that he has fully served three (3) consecutive since July 1, 1995. In just over a month, by June 30, 2007,
terms. he will have been mayor of Mabalacat for twelve (12)
We hold that such assumption of office constitutes, for continuous years.
Francis, “service for the full term,” and should be counted as This Court reiterates that the framers of the Constitution
a full term served in contemplation of the three-term limit specifically included an exception to the people’s
prescribed by the constitutional and statutory provisions, freedom to choose those who will govern them in
supra, barring local elective officials from being elected and order to avoid the evil of a single person
serving for more than three consecutive terms for the same accumulating excessive power over a particular
position. territorial jurisdiction as a result of a prolonged stay
It is true that the RTC-Daet, Camarines Norte ruled in in the same office. To allow petitioner Latasa to vie for the
Election Protest Case No. 6850, that it was Francis’ opponent position of city mayor after having served for three
(Alegre) who “won” in the 1998 mayoralty race and, consecutive terms as municipal mayor would obviously
therefore, was the legally elected mayor of San Vicente. defeat the very intent of the framers when they wrote this
However, that disposition, it must be stressed, was without exception. Should he be allowed another three consecutive
practical and legal use and value, having been promulgated term as mayor of the City of Digos, petitioner would then be
after the term of the contested office has expired. Petitioner possibly holding office as chief executive over the same
Francis’ contention that he was only a presumptive winner in territorial jurisdiction and inhabitants for a total of eighteen
86 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

consecutive years. This is the very scenario sought to be consecutive terms. In Borja, Jr. v. Commission on Elections,
avoided by the Constitution, if not abhorred by it. the Court emphasized that the term limit for elective officials
This is the very situation in the instant case. Morales must be taken to refer to the right to be elected as well as
maintains that he served his second term (1998 to 2001) the right to serve in the same elective position. Thus, for
only as a “caretaker of the office” or as a “de facto officer.” the disqualification to apply, it is not enough that the official
Section 8, Article X of the Constitution is violated and its has been elected three consecutive times; he must also
purpose defeated when an official serves in the same have served three consecutive terms in the same position.
position for three consecutive terms. Whether as While it is undisputed that respondent was elected municipal
“caretaker” or “de facto” officer, he exercises the powers councilor for three consecutive terms, the issue lies on
and enjoys the prerequisites of the office which enables him whether he is deemed to have fully served his second term
“to stay on indefinitely”. Morales should be promptly ousted in view of his assumption of office as vice-mayor of Tuburan
from the position of mayor of Mabalacat. on January 12, 2004.
Having found respondent Morales ineligible, his Certificate Succession in local government offices is by operation of
of Candidacy dated December 30, 2003 should be law. Section 44 of Republic Act No. 7160, otherwise known
cancelled. In the light of the foregoing, Morales can not be as the Local Government Code, provides that if a permanent
considered a candidate in the May 2004 elections. Not being vacancy occurs in the office of the vice mayor, the highest
a candidate, the votes cast for him SHOULD NOT BE ranking sanggunian member shall become vice mayor.
COUNTED and must be considered stray votes. In this case, a permanent vacancy occurred in the office of
Since respondent Morales is DISQUALIFIED from continuing the vice mayor due to the retirement of Vice Mayor
to serve as mayor of Mabalacat, the instant petition for quo Mendoza. Respondent, being the highest ranking municipal
warranto has become moot. councilor, succeeded him in accordance with law. It is clear
therefore that his assumption of office as vice-mayor can in
Issue: WON it is the vice-mayor or petitioner Dee who no way be considered a voluntary renunciation of his office
shall serve for the remaining portion of the 2004 to 2007 as municipal councilor.
term. In Lonzanida v. Commission on Elections, the Court
explained the concept of voluntary renunciation as follows:
Held: Yes The second sentence of the constitutional provision under
scrutiny states, `Voluntary renunciation of office for any
Ratio: In Labo v. Comelec, this Court has ruled that a length of time shall not be considered as an interruption in
second place candidate cannot be proclaimed as a substitute the continuity of service for the full term for which he was
winner. As a consequence of petitioner’s ineligibility, a elected.' The clear intent of the framers of the constitution to
permanent vacancy in the contested office has bar any attempt to circumvent the three-term limit by a
occurred. This should now be filled by the vice-mayor in voluntary renunciation of office and at the same time respect
accordance with Section 44 of the Local Government Code. the people's choice and grant their elected official full
service of a term is evident in this provision. Voluntary
Montebon v. Comelec ( 2008) renunciation of a term does not cancel the renounced term
Facts: Montebon, Ondoy and Potencioso, Jr. were in the computation of the three term limit; conversely,
candidates for municipal councilor of the Municipality of involuntary severance from office for any length of
Tuburan, Cebu for the May 14, 2007 Elections. Petitioners time short of the full term provided by law amounts
and other candidates filed a petition for disqualification to an interruption of continuity of service.
against respondent with the COMELEC alleging that Thus, respondent's assumption of office as vice-mayor in
respondent had been elected and served three consecutive January 2004 was an involuntary severance from his office
terms as municipal councilor in 1998-2001, 2001-2004, and as municipal councilor, resulting in an interruption in the
2004-2007. Thus, he is proscribed from running for the service of his 2001-2004 term. It cannot be deemed to have
same position in the 2007 elections as it would be his fourth been by reason of voluntary renunciation because it was by
consecutive term. Respondent admitted having been operation of law. Succession by law to a vacated government
elected, but claimed that the service of his second term in office is characteristically not voluntary since it involves the
2001-2004 was interrupted on January 12, 2004 when he performance of a public duty by a government official, the
succeeded as vice mayor of Tuburan due to the retirement of non-performance of which exposes said official to possible
Vice Mayor Petronilo L. Mendoza. Consequently, he is not administrative and criminal charges of dereliction of duty
disqualified from vying for the position of municipal councilor and neglect in the performance of public functions. It is
in the 2007 elections. Petitioners, on the other hand therefore more compulsory and obligatory rather than
contended that voluntary renunciation of the office shall not voluntary.
be considered an interruption in the continuity of service for
the full term for which the official concerned was elected. Borja v. COMELEC (1991)
The comelec denied the petition for disqualification. On Facts: Jose Capco, Jr. was elected vice-mayor of Pateros on
appeal, the Comelec en banc affirmed and ruled that there January 18, 1988 for a term ending June 30, 1992. On
was no voluntary renunciation of office, but rather, an September 2, 1989, he became mayor, by operation of law,
effective disruption in the full service of his second term as upon the death of the incumbent, Cesar Borja. On May 11,
councilor. 1992, he ran and was elected mayor for a term of three
years which ended on June 30, 1995. On May 8, 1995, he
Issue: WON respondent's assumption of office as vice- was reelected mayor for another term of three years ending
mayor in January 2004 interrupted his 2001-2004 term as June 30, 1998.
municipal councilor. Jose Capco filed a certificate of candidacy for mayor of
Pateros relative to the May 11, 1998 elections. Benjamin
Held: Yes Borja, Jr., who was also a candidate for mayor, sought
Capco’s disqualification on the theory that the latter would
Ratio: In Lonzanida v. Commission on Elections the Court have already served as mayor for three consecutive terms
held that the two conditions for the application of the by June 30, 1998 and would therefore be ineligible to serve
disqualification must concur: 1) that the official concerned for another term after that.
has been elected for three consecutive terms in the same Comelec ruled in favor of petitioner and declared Capco
local government post; and 2) that he has fully served three disqualified from running for reelection as mayor of Pateros.
87 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

On motion, the Comelec en banc reversed the decision and official he succeeds, such official cannot be considered to
declared Capco eligible to run for mayor. It ruled that have fully served the term now withstanding his voluntary
Capco’s succession into office is not counted as one term for renunciation of office prior to its expiration.
purposes of the computation of the three term limitation Reference is made to Commissioner Bernas’ comment on
under the Constitution and Local Government Code. Art. VI, §7, which similarly bars members of the House of
Capco was voted for in the elections. He received 16,558 Representatives from serving for more than three terms.
votes against petitioner’s 7,773 votes and was proclaimed Commissioner Bernas states that “if one is elected
elected by the Municipal Board of Canvassers. Representative to serve the unexpired term of another, that
unexpired term, no matter how short, will be considered one
Issue: WON Capco is eligible to run for mayor term for the purpose of computing the number of successive
terms allowed.” This is actually based on the opinion
Held: Yes expressed by Commissioner Davide: “Yes, because we speak
of “term” and if there is a special election, he will serve only
Ratio: (Purpose of the three term rule) First, to prevent for the unexpired portion of that particular term plus one
the establishment of political dynasties is not the only policy more term for the Senator and two more terms for the
embodied in the constitutional provision in question. The Members of the Lower House.”
other policy is that of enhancing the freedom of choice of the There is a difference, however, between the case of a vice-
people. To consider, therefore, only stay in office regardless mayor and that of a member of the House of
of how the official concerned came to that office – whether Representatives who succeeds another who dies, resigns,
by election or by succession by operation of law – would be becomes incapacitated, or is removed from office. The vice-
to disregard one of the purposes of the constitutional mayor succeeds to the mayorship by operation of law. On
provision in question. the other hand, the Representative is elected to fill the
Thus, a consideration of the historical background of Art. X, vacancy. In a real sense, therefore, such Representative
§8 of the Constitution reveals that the members of the serves a term for which he was elected. As the purpose of
Constitutional Commission were as much concerned with the constitutional provision is to limit the right ot be elected
preserving the freedom of choice of the people as they were and to serve in Congress, his service of the unexpired term is
with preventing the monopolization of political power. rightly counted as his first term. Rather than refute what we
Indeed, they rejected a proposal put forth by Commissioner believe to be the intendment of Art. X, §8 with regard to
Edmundo F. Garcia that after serving three consecutive elective local officials, the case of a Representative who
terms or nine years there should be no further reelection for succeeds another confirms the theory.
local and legislative officials. Instead, they adopted the Petitioner also cites Art. VII, §4 of the Constitution which
alternative proposal of Commissioner Christian Monsod that provides for succession of the Vice-President to the
such officials be simply barred from running for the same Presidency in case of vacancy in that office. This provision
position in the succeeding election following the expiration says that “No person who has succeeded as President and
of the third consecutive term. Monsod warned against has served as such for more than four years shall be
“prescreening candidates (from) whom the people will qualified for election to the same office at any time.”
choose” as a result of the proposed absolute Petitioner contends that, by analogy, the vice-mayor should
disqualification, considering that the draft constitution likewise be considered to have served a full term as mayor if
provision “recognizing people’s power.” he succeeds to the latter’s office and serves for the
Two ideas thus emerge from a consideration of the remainder of the term.
proceedings of the Constitutional Commission. The first is The framers of the Constitution included such a provision
the notion of service of term, derived from the concern about because, without it, the Vice-President, who simply steps into
the accumulation of power as a result of a prolonged stay in the Presidency by succession would be qualified to run for
office. The second is the idea of election, derived from the President even if he has occupied that office for more than
concern that the right of the people to choose those whom four years. The absence of a similar provision in Art. X, §8
they wish to govern them be preserved. on elective local officials throws in bold relief the difference
It is likewise noteworthy that, in discussing term limits, the between the two cases. It underscores the constitutional
drafters of the Constitution did so on the assumption that intent to cover only the terms of office to which one may
the officials concerned were serving by reason of reelection. have been elected for purpose of the three-term limit on
Indeed, a fundamental tenet of representative democracy is local elective officials, disregarding for this purpose service
that the people should be allowed to choose whom they by automatic succession.
please to govern them. To bar the election of a local official There is another reason why the Vice-President who
because he has already served three terms, although the succeeds to the Presidency and serves in that office for more
first as a result of succession by operation of law rather than than four years is ineligible for election as President. The
election, would therefore be to violate this principle. Vice-President is elected primarily to succeed the President
Second, not only historical examination but textual analysis in the event of the latter’s death, permanent disability,
as well supports the ruling of the COMELEC that Art. X, §8 removal or resignation. While he may be appointed to the
contemplates service by local officials for three consecutive cabinet, his becoming so is entirely dependent on the good
terms as a result of election. The first sentence speaks of graces of the President. In running for Vice-President, he
“the term of office of elective local officials” and bars “such may thus be said to also seek the Presidency. For their part,
official[s) ” from serving for more than three consecutive the electors likewise choose as Vice-President the candidate
terms. The second sentence, in explaining when an elective who they think can fill the Presidency in the event it
local official may be deemed to have served his full term of becomes vacant. Hence, service in the presidency for more
office, states that “voluntary renunciation of the office for than four years may rightly be considered as service for a
any length of time shall not be considered as an interruption full term.
in the continuity of his service for the full term for which he This is not so in the case of the vice-mayor. Under the local
was elected.” The term served must therefore be one “for Government Code, he is the presiding officer of the
which (the official concerned) was elected.” The purpose of sanggunian and he appoints all officials and employees of
this provision is to prevent a circumvention of the limitation such local assembly. He has distinct powers and functions,
on the number of terms an elective official may serve. succession to mayorship in the event of vacancy therein
Conversely, if he is not serving a term for which he was being only one of them. It cannot be said of him, as much as
elected because he is simply continuing the service of the of the Vice-President in the event of a vacancy in the
88 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

Presidency, that in running for vice-mayor, he also seeks the the first term is counted as one of the purpose of applying
mayorship. His assumption of the mayorship in the event of the term limit.
vacancy is more a matter of chance than of design. Hence, To consider C as eligible for reelection would be in accord
his service in that office should not be counted in the with the understanding of the Constitutional Commission
application of any term limit. that while the people should be protected from the evils
To recapitulate, the term limit for elective local officials must that a monopoly of political power may bring about, care
be taken to refer to the right to be elected as well as the should be taken that their freedom of choice is not unduly
right to serve in the same elective position. Consequently, it curtailed.
is not enough that an individual has served three
consecutive terms in an elective local office, he must also
Adorneo v. COMELEC (2002)
have been elected to the same position for the same number
of times before the disqualification can apply. Facts: Petitioner and private respondent were the only
candidates for mayor of Lucena City in the May 14, 2001
elections. Talaga, Jr. was elected mayor in May 1992. He
Borja Supplement:
served the full term. Again, he was re-elected in 1995-1998.
Case No. 1. Suppose A is a vice-mayor who becomes
In the election of 1998, he lost to Bernard G. Tagarao. In the
mayor by reason of the death of the incumbent. Six
recall election of May 12, 2000, he again won and served the
months before the next election, he resigns and is twice
unexpired term of Tagarao until June 30, 2001.
elected thereafter. Can he run again for mayor in the next
Petitioner filed with the Office of the Provincial Election
Supervisor, Lucena City a Petition to Deny Due Course to or
Yes, because although he has already first served as
Cancel Certificate of Candidacy and/or Disqualification of
mayor by succession and subsequently resigned from
Ramon Y. Talaga, Jr., on the ground that the latter was
office before the full term expired, he has not actually
elected and had served as city mayor for three (3)
served three full terms in all for the purpose of applying
consecutive terms as follows: (1) in the election of May
the term limit. Under Art. X, §8, voluntary renunciation of
1992, where he served the full term; (2) in the election of
the office is not considered as an interruption in the
May 1995, where he again served the full term; and, (3) in
continuity of his service for the full term only if the term is
the recall election of May 12, 2000, where he served only the
one “for which he was elected.” Since A is only
unexpired term of Tagarao after having lost to Tagarao in the
completing the service of the term for which the deceased
1998 election. Petitioner contended that Talaga’s candidacy
and not he was elected. A cannot be considered to have
as Mayor constituted a violation of Section 8, Article X of the
completed one term. His resignation constitutes an
1987 Constitution.
interruption of the full term
On March 9, 2001, private respondent responded that he
was not elected City Mayor for three (3) consecutive terms
Case No. 2. Suppose B is elected Mayor and, during his
but only for two (2) consecutive terms. He pointed to his
first term, he is twice suspended for misconduct for a total
defeat in the 1998 election by Tagarao. Because of his defeat
of 1 year. If he is twice reelected after that, can he run for
the consecutiveness of his years as mayor was interrupted,
one more term in the next election?
and thus his mayorship was not for three consecutive terms
Yes, because he has served only two full terms
of three years each. Respondent added that his service from
May 12, 2001 until June 30, 2001 for 13 months and
In both cases, the mayor is entitled to run for reelection
eighteen (18) days was not a full term, in the contemplation
because the two conditions for the application of the
of the law and the Constitution.
disqualification provisions have not concurred, namely,
The Comelec found Talaga disqualified for the position of city
that the local official concerned has been elected three
mayor. The Comelec en banc reversed and ruled that 1)
consecutive times and that he has fully served three
respondent was not elected for three (3) consecutive terms
consecutive terms. In the first case, even if the local
because he did not win in the May 11, 1998 elections; 2) that
official is considered to have served three full terms
he was installed only as mayor by reason of his victory in the
notwithstanding his resignation before the end of the first
recall elections; 3) that his victory in the recall elections was
term, the fact remains that he has not been elected three
not considered a term of office and is not included in the 3-
times. In the second case, the local official has been
term disqualification rule, and 4) that he did not fully serve
elected three consecutive times, but he has not fully
the three (3) consecutive terms, and his loss in the May 11,
served three consecutive terms.
1998 elections is considered an interruption in the continuity
of his service as Mayor of Lucena City.
Case No. 3. The case of vice-mayor C who becomes
mayor by succession involves a total failure of the two
Issue: WON Talaga is disqualified to run for mayor
conditions to concur for the purpose of applying Art. X §8.
Suppose he is twice elected after that term, is he qualified
Held: No
to run again in the next election?
Yes, because he was not elected to the office of the mayor
Ratio: The issue before us was already addressed in
in the first term but simply found himself thrust into it by
operation of law. Neither had he served the full term Borja, Jr. vs. COMELEC, 295 SCRA 157, 169
because he only continued the service, interrupted by the (1998), where we held,
death , of the deceased mayor. To recapitulate, the term limit for elective local officials must
To consider C in the third case to have served the first be taken to refer to the right to be elected as well as the
term in full and therefore ineligible to run a third time for right to serve in the same elective position. Consequently, it
reelection would be not only to falsify reality but also to is not enough that an individual has served three
unduly restrict the right of the people to choose whom consecutive terms in an elective local office, he must also
they wish to govern them. If the vice-mayor turns out to have been elected to the same position for the same number
be a bad mayor, the people can remedy the situation by of times before the disqualification can apply. This point can
simply not reelecting him for another term. But if, on the be made clearer by considering the following case or
other hand, he proves to be a good mayor, there will be no situation:
way the people can return him to office (even if it is just Case No. 2. Suppose B is elected mayor and, during his first
the third time he is standing for reelection) if his service of term, he is twice suspended for misconduct for a total of 1
89 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

year. If he is twice reelected after that, can he run for one Edward M. Hagedorn filed his certificate of candidacy for
more term in the next election? mayor in the recall election.Ma. Flores F. Adovo and Merly E.
Yes, because he has served only two full terms successively. Gilo filed a petition before the COMELEC, to disqualify
To consider C as eligible for reelection would be in accord Hagedorn from running in the recall election and to cancel
with the understanding of the Constitutional Commission his certificate of candidacy. The petitions were all anchored
that while the people should be protected from the evils that on the ground that “Hagedorn is disqualified from running for
a monopoly of political power may bring about, care should a fourth consecutive term, having been elected and having
be taken that their freedom of choice is not unduly curtailed. served as mayor of the city for three (3) consecutive full
Likewise, in the case of Lonzanida vs. COMELEC, terms immediately prior to the instant recall election for the
same post.” The Comelec declared Hagedorn qualified to
311 SCRA 602, 611 (1999), we said,
run in the recall election.
This Court held that the two conditions for the application of
G.R. No. 154512. Socrates sought to nullify the COMELEC
the disqualification must concur: a) that the official
en banc resolution which gave due course to the Recall
concerned has been elected for three consecutive terms in
Resolution and scheduled the recall election on September
the same local government post and 2) that he has fully
7, 2002. Socrates cites the following circumstances as legal
served three consecutive terms. Accordingly, COMELEC’s
infirmities attending the convening of the PRA and its
ruling that private respondent was not elected for three (3)
issuance of the Recall Resolution: (1) not all members of the
consecutive terms should be upheld. For nearly two years
PRA were notified of the meeting to adopt the resolution; (2)
he was a private citizen. The continuity of his mayorship
the proof of service of notice was palpably and legally
was disrupted by his defeat in the 1998 elections.
deficient; (3) the members of the PRA were themselves
Patently untenable is petitioner’s contention that COMELEC
seeking a new electoral mandate from their respective
in allowing respondent Talaga, Jr. to run in the May 1998
constituents; (4) the adoption of the resolution was exercised
election violates Article X, Section 8 of 1987 Constitution. To
with grave abuse of authority; and (5) the PRA proceedings
bolster his case, respondent adverts to the comment of Fr.
were conducted in a manner that violated his and the
Joaquin Bernas, a Constitutional Commission member,
public’s constitutional right to information.
stating that in interpreting said provision that “if one is
G.R. No. 154683. Vicente S. Sandoval, Jr. sought to annul
elected representative to serve the unexpired term of
COMELEC Resolution No. 5673 insofar as it fixed the recall
another, that unexpired, no matter how short, will be
election on September 7, 2002, giving the candidates only a
considered one term for the purpose of computing the
ten-day campaign period. He prayed that the COMELEC be
number of successive terms allowed.”
enjoined from holding the recall election on September 7,
As pointed out by the COMELEC en banc, Fr. Bernas’
2002 and that a new date be fixed giving the candidates at
comment is pertinent only to members of the House of
least an additional 15 days to campaign. The court gave the
Representatives. Unlike local government officials, there is
candidates an additional 15 days within which to campaign.
no recall election provided for members of Congress.
Thus, the COMELEC reset the recall election to September
Neither can respondent’s victory in the recall election be
24, 2002.
deemed a violation of Section 8, Article X of the Constitution
G.R. Nos. 155083-84. Petitioners Adovo, Gilo and Ollave
as “voluntary renunciation” for clearly it is not. In
assail the COMELEC’s resolutions declaring Hagedorn
Lonzanida vs. COMELEC, we said: qualified to run for mayor in the recall election. The Court
…The second sentence of the constitutional provision under ordered the COMELEC to desist from proclaiming any
scrutiny states, “Voluntary renunciation of office for any winning candidate in the recall election until further orders
length of time shall not be considered as an interruption in from the Court. In the meantime, Hagedorn garnered the
the continuity of service for the full term for which he was highest number of votes in the recall election with 20,238
elected.” The clear intent of the framers of the constitution votes. Rival candidates Socrates and Sandoval obtained
to bar any attempt to circumvent the three-term limit by a 17,220 votes and 13,241 votes, respectively.
voluntary renunciation of office and at the same time respect
the people’s choice and grant their elected official full Issue: WON the recall resolution was valid
service of a term is evident in this provision. Voluntary
renunciation of a term does not cancel the renounced term Held: Yes
in the computation of the three term limit; conversely,
involuntary severance from office for any length of time Ratio: Petitioner Socrates argues that the COMELEC
short of the full term provided by law amounts to an committed grave abuse of discretion in upholding the Recall
interruption of continuity of service. The petitioner vacated Resolution despite the absence of notice to 130 PRA
his post a few months before the next mayoral elections, not members and the defective service of notice to other PRA
by voluntary renunciation but in compliance with the legal members. The COMELEC, however, found that the
process of writ of execution issued by the COMELEC to that proponents for the Recall of incumbent City Mayor Victorino
effect. Such involuntary severance from office is an Dennis M. Socrates sent notices of the convening of the PRA
interruption of continuity of service and thus, the petitioner to the members thereof pursuant to Section 70 of the Local
did not fully serve the 1995-1998 mayoral term. Government Code. Notices of the convening of the Puerto
Princesa PRA were also sent to the following: [a list of 25
Socrates v. COMELEC (2002) names of provincial elective officials, print and broadcast
Facts: On July 2, 2002, 312 out of 528 members of the media practitioners, PNP officials, COMELEC city, regional
incumbent barangay officials of the Puerto Princesa and national officials, and DILG officials].
convened into a Preparatory Recall Assembly to initiate the The Court is bound by the findings of fact of the COMELEC on
recall of Victorino Dennis M. Socrates (mayor). The matters within the competence and expertise of the
members of the PRA designated Mark David M. Hagedorn, COMELEC, unless the findings are patently erroneous. In the
president of the Association of Barangay Captains, as interim instant case, we do not find any valid reason to hold that the
chair of the PRA. The PRA passed a Resolution declaring its COMELEC’s findings of fact are patently erroneous.
loss of confidence in Socrates and called for his recall. Socrates also claims that the PRA members had no authority
Socrates filed a petition to deny due course to the Recall to adopt the Recall Resolution on July 2, 2002 because a
Resolution but the Comelec en banc dismissed the case for majority of PRA members were seeking a new electoral
lack of merit. mandate in the barangay elections scheduled on July 15,
2002. This argument deserves scant consideration
90 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

considering that when the PRA members adopted the Recall If the prohibition on elective local officials is applied to any
Resolution their terms of office had not yet expired. They election within the three-year full term following the three-
were all de jure sangguniang barangay members with no term limit, then Senators should also be prohibited from
legal disqualification to participate in the recall assembly running in any election within the six-year full term following
under Section 70 of the Local Government Code. their two-term limit. The constitutional provision on the term
Socrates bewails that the manner private respondents limit of Senators is worded exactly like the term limit of
conducted the PRA proceedings violated his constitutional elective local officials. The framers of the Constitution thus
right to information on matters of public concern. Socrates, clarified that a Senator can run after only three years
however, admits receiving notice of the PRA meeting and of following his completion of two terms. The framers
even sending his representative and counsel who were expressly acknowledged that the prohibited election refers
present during the entire PRA proceedings. Proponents of the only to the immediate reelection, and not to any
recall election submitted to the COMELEC the Recall subsequent election, during the six-year period following the
Resolution, minutes of the PRA proceedings, the journal of two term limit. The framers of the Constitution did not
the PRA assembly, attendance sheets, notices sent to PRA intend “the period of rest” of an elective official who has
members, and authenticated master list of barangay officials reached his term limit to be the full extent of the succeeding
in Puerto Princesa. Socrates had the right to examine and term.
copy all these public records in the official custody of the In the case of Hagedorn, his candidacy in the recall election
COMELEC. Socrates, however, does not claim that the on September 24, 2002 is not an immediate reelection after
COMELEC denied him this right. There is no legal basis in his third consecutive term which ended on June 30, 2001.
Socrates’ claim that respondents violated his constitutional The immediate reelection that the Constitution barred
right to information on matters of public concern. Hagedorn from seeking referred to the regular elections in
Thus, we rule that the COMELEC did not commit grave abuse 2001. Hagedorn did not seek reelection in the 2001
of discretion in upholding the validity of the Recall Resolution elections. Hagedorn was elected for three consecutive terms
and in scheduling the recall election on September 24, 2002. in the 1992, 1995 and 1998 elections and served in full his
three consecutive terms as mayor of Puerto Princesa. Under
Issue: WON Hagedorn is qualified to run for mayor in the the Constitution and the Local Government Code, Hagedorn
recall election could no longer run for mayor in the 2001 elections. The
Constitution and the Local Government Code disqualified
Held: No Hagedorn, who had reached the maximum three-term limit,
from running for a fourth consecutive term as mayor. Thus,
Ratio: The constitutional and statutory provisions have Hagedorn did not run for mayor in the 2001 elections.
two parts. The first part provides that an elective local Socrates ran and won as mayor of Puerto Princesa in the
official cannot serve for more than three consecutive terms. 2001 elections. After Hagedorn ceased to be mayor on June
The clear intent is that only consecutive terms count in 30, 2001, he became a private citizen until the recall
determining the three-term limit rule. The second part election of September 24, 2002 when he won by 3,018 votes
states that voluntary renunciation of office for any length of over his closest opponent, Socrates.
time does not interrupt the continuity of service. The clear From June 30, 2001 until the recall election on September
intent is that involuntary severance from office for any 24, 2002, the mayor of Puerto Princesa was Socrates.
length of time interrupts continuity of service and prevents During the same period, Hagedorn was simply a private
the service before and after the interruption from being citizen. This period is clearly an interruption in the
joined together to form a continuous service or consecutive continuity of Hagedorn’s service as mayor, not because of
terms. his voluntary renunciation, but because of a legal
After three consecutive terms, an elective local official prohibition. Hagedorn’s three consecutive terms ended on
cannot seek immediate reelection for a fourth term. The June 30, 2001. Hagedorn’s new recall term from September
prohibited election refers to the next regular election for the 24, 2002 to June 30, 2004 is not a seamless continuation of
same office following the end of the third consecutive term. his previous three consecutive terms as mayor. One cannot
Any subsequent election, like a recall election, is no longer stitch together Hagedorn’s previous three-terms with his new
covered by the prohibition for two reasons. First, a recall term to make the recall term a fourth consecutive term
subsequent election like a recall election is no longer an because factually it is not. An involuntary interruption
immediate reelection after three consecutive terms. Second, occurred from June 30, 2001 to September 24, 2002 which
the intervening period constitutes an involuntary interruption broke the continuity or consecutive character of Hagedorn’s
in the continuity of service. service as mayor.
When the framers of the Constitution debated on the term In Hagedorn’s case, the nearly 15-month period he was out
limit of elective local officials, the question asked was of office, although short of a full term of three years,
whether there would be no further election after three terms, constituted an interruption in the continuity of his service as
or whether there would be “no immediate reelection” mayor. The Constitution does not require the interruption or
after three terms. What the Constitution prohibits is an hiatus to be a full term of three years. The clear intent is
immediate reelection for a fourth term following three that interruption “for any length of time,” as long as the
consecutive terms. The Constitution, however, does not cause is involuntary, is sufficient to break an elective local
prohibit a subsequent reelection for a fourth term as long as official’s continuity of service.
the reelection is not immediately after the end of the third Adormeo established the rule that the winner in the
consecutive term. A recall election mid-way in the term recall election cannot be charged or credited with the
following the third consecutive term is a subsequent election full term of three years for purposes of counting the
but not an immediate reelection after the third term. consecutiveness of an elective official’s terms in
Neither does the Constitution prohibit one barred from office. In the same manner, Hagedorn’s recall term does not
seeking immediate reelection to run in any other subsequent retroact to include the tenure in office of Socrates.
election involving the same term of office. What the Hagedorn can only be disqualified to run in the September
Constitution prohibits is a consecutive fourth term. The 24, 2002 recall election if the recall term is made to retroact
debates in the Constitutional Commission evidently show to June 30, 2001, for only then can the recall term constitute
that the prohibited election referred to by the framers of the a fourth consecutive term. But to consider Hagedorn’s recall
Constitution is the immediate reelection after the third term as a full term of three years, retroacting to June 30,
term, not any other subsequent election. 2001, despite the fact that he won his recall term only last
91 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

September 24, 2002, is to ignore reality. This Court cannot applying the three-term principle the rule laid down in
declare as consecutive or successive terms of office which Lonzanida vs. COMELEC (311 SCRA 609), cited in the
historically and factually are not. ponencia, page 17, is not applicable in the case of Hagedorn.
Worse, to make Hagedorn’s recall term retroact to June 30, The involuntary severance referred to in that case was one
2001 creates a legal fiction that unduly curtails the freedom that took place during any of the three terms; hence, the
of the people to choose their leaders through popular term during which it occurred should be excluded in the
elections. The concept of term limits is in derogation of the computation. In the case of Hagedorn, no such involuntary
sovereign will of the people to elect the leaders of their own severance took place during any of his three terms brought
choosing. Term limits must be construed strictly to give the about by his election in 1992 and reelections in 1995 and
fullest possible effect to the sovereign will of the people 1998.
A necessary consequence of the interruption of continuity of More importantly, the voluntary renunciation referred to in
service is the start of a new term following the interruption. Section 8, Article X of the Constitution and Section 43(b) of
An official elected in recall election serves the unexpired R.A. No. 7160 is one that takes place at any time during
term of the recalled official. This unexpired term is in itself either the first, second, or third term of the three
one term for purposes of counting the three-term limit. This consecutive terms. This is very clear from the last clause of
is clear from the following discussion in the Constitutional Section 8, Article X of the Constitution, which reads: “shall
Commission. Although the discussion referred to special not be considered as an interruption in the continuity of his
elections for Senators and Representatives of the House, the service for the full term for which he was elected.” The
same principle applies to a recall election of local officials. purpose of the provision is to prevent an elective local
Otherwise, an elective local official who serves a recall term official from voluntarily resigning from office for the purpose
can serve for more than nine consecutive years comprising of circumventing the rule on the belief that the term during
of the recall term plus the regular three full terms. A local which he resigned would be excluded in the counting of the
official who serves a recall term should know that the recall three-term rule. In short, the provision excluded is intended
term is in itself one term although less than three years. to impose a penalty on one who flouts the rule or make a
This is the inherent limitation he takes by running and mockery of it by the simple act of resigning. Thus, applying
winning in the recall election. it in the case of Hagedorn, even if he voluntarily resigned on
his third term, he would still be barred from seeking
Davide, concurring and dissenting. The ponencia is then reelection in the May 2001 election.
correct when it holds that the three-term limit bars an Hagedorn cannot likewise avail of the ruling in Adormeo vs.
immediate reelection for a fourth term. But I disagree when COMELEC (G.R. No. 147927, 4 February 2002) because in
it rules that in the case of Hagedorn he did not seek an that case Talaga did not win in his second reelection bid, or
immediate reelection for a fourth term because he was not a for a third term, in the May 1998 elections. He won in the
candidate for reelection in the May 2001 election. It forgets recall election of 12 May 2000. Hagedorn, as earlier stated,
that what would have been his fourth term by virtue of the fully served three successive terms.
May 2001 election was for the period from 30 June 2001 to
30 June 2004. The flaw in the ruling results from an apparent Mendoza v. COMELEC (2002)
confusion between term and election, the root cause of For resolution is a petition for certiorari filed by petitioners
which is the attempt to distinguish “voluntary renunciation” Melanio L. Mendoza and Mario E. Ibarra, seeking to set aside
of office from “involuntary severance” from office and the the resolution of the Commission on Elections, dated August
term of office to which it relates. 15, 2001, in EPC No. 2001-5 and to declare respondent
I wish to add that the Constitutional Commission debates on Leonardo B. Roman’s election as governor of Bataan on May
the issue of “no immediate reelection” after three 14, 2001 as null and void for allegedly being contrary to Art.
consecutive terms for members of Congress clearly indicated X, §8 of the Constitution, which provides that:
that the “no immediate reelection” after the 3-term limit The term of office of elective local officials, except barangay
would equally apply to the elective local officials. This officials, which shall be determined by law, shall be three
accounted for the immediate acceptance by the Committee years and no such official shall serve for more than three
on Local Governments of the aforementioned Amendment of consecutive terms. Voluntary renunciation of the office for
Commissioner Davide, which is now Section 8 of Article X of any length of time shall not be considered as an interruption
the Constitution. These debates clearly showed the Intent of in the continuity of his service for the full term for which he
the Commission that the ban against an immediate was elected.
reelection after three consecutive terms applies to the fourth After due deliberation, the Court voted 8 to 7 to DISMISS the
term, i.e., the term immediately following the three petition:
consecutive terms, to be filled up by the regular election for
such fourth term. For one to be able to run again after three VITUG, J., joined by YNARES-SANTIAGO, J., voted to
consecutive terms, he has to rest for the entire immediately dismiss the petition. He contended that as revealed by the
succeeding fourth term. On the next fifth term he can run records of the Constitutional Commission, the Constitution
again to start a new series of three consecutive terms. envisions a continuous and an uninterrupted service for
The dichotomy made in the ponencia between “voluntary three full terms before the proscription applies. Therefore,
renunciation of the office” as used in Section 8 of Article X of not being a full term, a recall term should not be counted or
the Constitution and Section 43(b) of R.A. No. 7160 and used as a basis for the disqualification whether served prior
“involuntary severance from office” is unnecessary, if not (as in this case) or subsequent (as in the Socrates case) to
misplaced. From the discussion in the ponencia, the latter is the nine-year, full three-term limit.
made to apply to the banned term, i.e., the fourth term MENDOZA, J., in whose opinion QUISUMBING, J. joined,
immediately following three consecutive terms. Speaking voted to dismiss the petition on the ground that, in
now of Hagedorn, he cannot have suffered “involuntary accordance with the ruling in Borja, Jr. v. COMELEC, 295
severance from office” because there was nothing to be SCRA 157 (1998); Arcos v. COMELEC, G.R. No. 133639, Oct.
severed; he was not a holder of an office either in a de jure 6, 1998 (res.); Lonzanida v. COMELEC, 311 SCRA 602 (1999);
or de facto capacity. He knew he was disqualified from and Adormeo v. COMELEC, G.R. No. 147927, Feb. 4, 2002, a
seeking a third reelection to office. Disqualification is, term during which succession to a local elective office takes
definitely, not synonymous with involuntary severance. place or a recall election is held should not be counted in
Even if we concede that involuntary severance is an act determining whether an elective local official has served
which interrupts the continuity of a term for purposes of more than three consecutive terms. He argued that the
92 | L o c a l Government (Guanzon) S . Y. 08-09: 2nd Sem.

Constitution does not prohibit elective local officials from Roberto Pagdanganan on behalf of the League of Governors
serving for more than three consecutive terms because, in of the Philippines, Representatives Pablo P. Garcia (3rd
fact, it excludes from the three-term limit interruptions in the District-Cebu), Raul V. del Mar (North District-Cebu City),
continuity of service, so long as such interruptions are not Antonio T. Bacaltos (1st District-Cebu), Wilfredo G. Cainglet
due to the voluntary renunciation of the office by an (3rd District-Zamboanga del Norte) and Romeo Guanzon
incumbent. Hence, the period from June 28, 1994 to June (lone District-Bacolod City), by way of a petition for
30, 1995, during which respondent Leonardo B. Roman Prohibition, mandamus and Injunction with temporary
served as governor of Bataan by virtue of a recall election restraining order and/or preliminary injunction to prevent the
held in 1993, should not be counted. Since on May 14, 2001 implementation of said Republic Act 7056 and the
respondent had previously served as governor of Bataan for consequent expenditure of public funds and to compel the
only two consecutive terms (1995-1998 and 1998-2001), his Comelec to immediately and with all deliberate speed set up
election on that day was actually only his third term for the the machinery and make the necessary preparation for the
same position. holding of synchronized national and local elections on the
PANGANIBAN, J., joined by PUNO, J., also voted to second Monday of May, 1992.
The petitioners' claim they have actual and material legal
dismiss the petition. He argued that a recall term should not
interest in the subject matter of this case not only because,
be considered as one full term, because a contrary
as public officials, they have taken an oath to support and
interpretation would in effect cut short the elected official’s
defend the Constitution but also because, as taxpayers, they
service to less than nine years and shortchange his
have an interest in seeing to it that public funds are properly
constituents. The desire to prevent monopoly of political
and, more importantly, lawfully disbursed. They pray for this
power should be balanced against the need to uphold the
Court to declare Republic Act No. 7056 as unconstitutional
voters’ obvious preference who, in the present case, is
and, therefore, invalid and inoperative because: 1. Republic
Roman who received 97 percent of the votes cast. He
Act 7056 violates the mandate of the Constitution for the
explained that, in Socrates, he also voted to affirm the clear
holding of synchronized national and local elections on the
choice of the electorate, because in a democracy the people
second Monday of May 1992.
should, as much as legally possible, be governed by leaders
2. Republic Act 7056, particularly the 2nd paragraph of
freely chosen by them in credible elections. He concluded
Section 3 thereof, providing that all incumbent provincial,
that, in election cases, when two conflicting legal positions
city and municipal officials shall hold over beyond June 30,
are of almost equal weight, the scales of justice should be
1992 and shall serve until their successors shall have been
tilted in favor of the people’s overwhelming choice.
duly elected and qualified violates Section 2, Article XVIII
AZCUNA, J., joined by BELLOSILLO, J., also voted to (Transitory Provision) of the Constitution.
dismiss, arguing that it is clear from the constitutional 3. The same paragraph of Section 3 of Republic Act 7056,
provision that the disqualification applies only if the terms which in effect, shortens the term or tenure of office of local
are consecutive and the service is full and continuous. officials to be elected on the 2nd Monday of November, 1992
Hence, service for less than a term, except only in case of violates Section 8, Article X of the Constitution.
voluntary renunciation, should not count to disqualify an 4. Section 8 of Republic Act 7056, providing for the campaign
elective local official from running for the same position. periods for Presidential, Vice-Presidential and Senatorial
This case is different from Socrates, where the full three elections, violates the provision of Section 9, Article IX under
consecutive terms had been continuously served so that the title "Commission on Elections" of the Constitution.
disqualification had clearly attached. 5. The so-called many difficult if not insurmountable
On the other hand, SANDOVAL-GUTIERREZ, J., problems mentioned in Republic Act 7056 to synchronized
national and local elections set by the Constitution on the
with whom DAVIDE, JR., C.J., and AUSTRIA-MARTINEZ,
second Monday of May, 1992, are not sufficient, much less,
CORONA, and CALLEJO, SR., JJ. concurred, holds the view that
valid justification for postponing the local elections to the
the recall term served by respondent Roman, comprising the
second Monday of November 1992, and in the process
period June 28, 1994 to June 30, 1995, should be considered
violating the Constitution itself. If, at all, Congress can devise
as one term. Since he thereafter served for two consecutive
ways and means, within the parameters of the Constitution,
terms from 1995 to 1998 and from 1998 to 2001, his
to eliminate or at least minimize these problems and if this,
election on May 14, 2001 was actually his fourth term and
still, is not feasible, resort can be made to the self-correcting
contravenes Art. X, §8 of the Constitution. For this reason,
mechanism built in the Constitution for its amendment or
she voted to grant the petition and to declare respondent’s
election on May 14, 2001 as null and void.
The Solicitor General prays for the denial of the petition on
CARPIO, J., joined by CARPIO MORALES, J., also the ground that the question is political in nature and that
dissented and voted to grant the petition. He held that a the petitioners are merely asking for an advisory opinion
recall term constitutes one term and that to totally ignore a from the court, there being no justiciable controversy for
recall term in determining the three-term limit would allow resolution. On the merits of the case, the Solicitor General
local offici