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LOCAL GOVERNMENT LAW (Municipal Corporation Law)
Macariola vs Asuncion (basin mugawas sa MCQ. Haha)
Branches of Political Law:
" Constitutional Law a. powers and functions of the government; b. inherent
powers of the State in relation to the Bill of Rights
" Administrative Law modern field of political law.
> External Admin Law rules and principles governing the relationships
between governmental agencies or organs. E.g. President and
Department of Transportation relationship; or GOCC related to another
agency.
> Internal Admin Law deals with matters about public officials. E.g.
appointments, qualifications, promotion, demotion, discipline, etc. (recently,
Internal Admin Law is changed to Law on Public Officers merged with Election
Law)
" Local Government Law
" Public International Law
Under Article 10, 1987 Constitution mandated for the enactment of a Local Government Code of
1991.
General Principles
A. Corporation
B. Municipal Corporation
C. Overview of the Philippine Government
D. Local Government of the Philippines
E. Loose Federation of LGUs and Regional Development Councils
A. Corporation
Definition:
An artificial being created by operation of law, having the right of successions and the powers,
attributes and properties expressly authorized by law or incident to its existence. (Sec. 2,
Corporation Code of the Philippines BP Blg. 68)
An artificial being, invisible, intangible, and existing only in contemplation of law. (Dartmouth
College Case, US Case)
A legal institution devised to confer upon individuals of which it is composed of powers,
privileges, and immunities which they would not otherwise possess and the most important of
which are continuous legal identity or unity, and perpetual or indefinite succession under the
corporate name, notwithstanding successive changes, by death or otherwise, in the corporators
or members. (Dillon, Commentaries on Law of Municipal Corporations, Vol. 1 5th ed.)
! Local government unit is a corporation.
Kinds of Corporation
Private Corporation
Formed for some private purpose, benefit, aim or end, such as a business corporation formed
and organized under a general law on corporation.
It is created for private objectives.
! Manner of creating: Private corporation is created pursuant to a law. A creation of a
privation corporation, through SEC, must be in accordance with the provisions of a
general lawCorporation Code of the Philippines. The said Code is applicable to all
corporations.
! Purpose: for private purposeProfit is the goal unless you are a charitable organization.
! Governed by:
- General law (Corporation Code)
- Its articles of incorporation
Public Corporation
Organized for a government of a portion of a State, such as a local government unit.
It is created for public purposes.
! Manner of creating: Created by law. Charter, its not a name of a person, its actually
refers to the law creating the public corporation. Thats why we have charter day
celebrations. We celebrate the day when the local government unit had been
incorporated directly by law. Directly by Congress.
! Purpose: Public purposegovernance or administration of a political subdivision
and the delivery of basic services to the inhabitants but only to the extents to its
governmental purpose. We have the national government but since the national
government cannot afford to take care all the concerns of all geographical components of
the territory, then it has to create subsidiaries and these are LGU, an agent of the national
government. Thus, the obvious public purpose is GOVERNANCE. LGUs primary
purpose is the governance of the political subdivision.
! Governed by:
- LGC of 1991
- The charter, the law creating it. It looks like a little LGC.
Special Kinds of Corporations (defects are present in the creation. thus, not a perfect corporation but the
law treat them as corporation by reason of equity)
Corporation De Facto
Consent of the State is implied rather than expressed, by the general consent to that kind of
corporation, even though the conditions of incorporation are not substantially complied with.
! If the law creating a LGU is declared unconstitutional but the LGU continues to perform
as such. It is a corporation that only exists in fact but not in law.
Corporation by Prescription
Under the principles of common law, where a body of men have been for a long time in the
exercise of corporate powers, a presumption arises of an ancient charter, granted to their
predecessors, making the exercise of such powers lawful and rightful.
A lost grant or charter from the crown is being presumed.
! A corporation created many many years ago and nobody questioned its existence.
Corporation by Estoppel
While as against the State, a corporation cannot be created by the mere agreement or other act
or omission by other persons, yet as between private litigants, they place themselves where
they would not be permitted to deny the fact of the existence of the corporation, by their
agreements, admissions or conduct.
! A corporation that is defectively created making it not a truly a corporation but in your
dealings with other entities you represent that you are a corporation.
Kinds of Public Corporation
Quasi-Public Corporation
A private corporation that renders public service or supplies public wants, such as public
utility companies.
Though organized for private profit, they are compelled by law or contract to render public
service. It combines the elements of a public and private corporation.
! Quasi - it is not but it is almost
Municipal Corporation (Pure)
A body politic and corporate constituted by the incorporation of the inhabitants for purposes
of local governance thereof. Referred to as Local Governments.
! Incorporation of the inhabitants, their participation, means through a plebiscite. (Always
required)
Local Government
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Political Subdivision of a nation or state which is constituted by law and has substantial Basis:
control of local affairs. Local Government Code of 1991
E.g. Provinces a political subdivision and territorial subdivision under the - Sec. 15 Political and Corporate Nature of Local Government Units. - Every local
1987 Constitution government unit created or recognized under this Code is a body politic and
! LGU, as a political subdivision, are there to handle local governance and corporate endowed with powers to be exercised by it in conformity with law. As
administration of public affairs. As an agency. such, it shall exercise powers as a political subdivision of the national government
! LGU, as a territorial subdivision, is for geographic purposes. You perceive it as and as a corporate entity representing the inhabitants of its territory.
tangible and physical.
! LGU, as a limitation to power, is there as a way to limit the powers of the What is the legal relevance of characterizing a particular function of a local government unit as
government. Under the principle of proper and valid delegation of powers, when either public/governmental or private/proprietary?
some powers are supposed to be vested on the national government, we decided to share Liability
that power. And thus, LGU exercises governmental powers as well. Delegation of powers Garnishment of FUNDS
means that if those powers were already delegated to LGUs then that means that central Liability of LGUs for CONTRACTS
government cannot exercise those powers until and unless it will decide to re-exercise CONTROL OF CONGRESS OVER LGUs, especially in matters of disposition of properties
those powers.
held by LGUs and extent of LGUs exercise of specific powers of local autonomy
Treating an LGU as an instrumentality of the government or not for some legal purpose.
Philippines adopted a more limited system of local government and that is the DECENTRALIZE
Etc.
set-up.
o Liability of LGUs for DAMAGES
" Whats the relevance in distinguishing these two functions? Supposed that the city mayor
ordered the cutting off of tall trees because of impending storm or typhoon, and he
B. Municipal Corporations
ordered Juan to go to Plaza Independencia and check if there are tall trees there and Juan
did find an acacia tree so he had it cut off and incidentally it fell on a pedestrian, Pedro.
Elements:
Pedro died on the spot. So the heirs of Pedro want to sue. Who should be the defendants?
1) Legal Creation or Incorporation pertains to the law creating the LGU.
Should it be Juan who caused the cutting off of the acacia tree that he did not observe
2) Corporate Name it is required. It cannot be nameless. It is more than a name because it has to
diligence and therefore he was negligent? Are you going to sue the mayor because he
act, as a juridical entity, carrying only that name in entering contracts. e.g. City of Cebu. And
ordered the cutting off of the tree? Or you going to sue the City of Cebu? Probably, you
when the name has to be changed, it can only be changed upon consultation with the
would find the distinctions between these two functions relevant in this problem.
Philippine Historical Institute. And it must not carry a name of a living person except when
" Its relevant in a lot of areas. Like here, its for damages. Remember a municipal
that name connotes to a special, social or political significance in that place. And thus, you may
corporation is a juridical entity and since it is a corporation, it has its own personality,
notice that names of the municipals are names of dead people. E.g. andres, narciso, rizal.
you can sue it. Its either you sue the corporation or the employee or all of them. We will
3) Inhabitants people who compose the LGU. According to Dillon, there can never be a
not answer it right now because it requires a lot of qualifications. But what is important is
municipal corporation without inhabitants.
for you to realize how to distinguish one from the other. Governmental and proprietary.
4) Territory consist of landmass, water and other parts of a territory.
o Garnishment of FUNDS
Dual Nature and Function of LGUs
" In cases involving monetary claims, the judgment will require the defendant to pay
! An important principle in the study of LGU is that every local government possesses dual
money. It maybe that before the finality of the decision (during the pendency of the case),
functions: Governmental and Proprietary.
the plaintiff maybe able to get a writ preliminary attachment. Or you wait until you get a
favorable decision and it becomes final and executor, thats where you ask the court to
a) Governmental (also called public or political)
issue a writ of execution, to order the sheriff to satisfy the monetary judgment.
Administering the powers of the State and promoting the public welfare
" If the defendant happens to be a LGU, how will the sheriff satisfy the judgement? Because
When exercising such powers, it is considered as a political subdivision, thus, it becomes when it is a public fund is beyond garnishment, beyond attachment, beyond execution.
accountable to the national government. But how do you know that the fund held by the LGU is public or private? We will not
E.g. Exercise of: Local police power discuss this right now. There will be a specific chapter for this. (kapuya sir ui!)
Taxation
Eminent domain for public works o Liability of LGUs for CONTRACTS
" Basic principle in consti: if the State enters into a contract, it maybe held liable ex-
b) Proprietary contractu (arising out of the contract) on the basis that if it has descended to the level of
Exercised for the special benefit or advantage of the community an individual by entering into proprietary or commercial contracts. Therefore, the State
When exercising this corporate power, then it is a corporate entity representing the inhabitants has lost its privilege of being immune from suit. This is not absolute.
of its territory. " But if contracts entered into by the State are for public or governmental purpose then you
Accountable to the people, not to the national government. cannot sue the State.
E.g. Slaughter Houses " Suability is not an issue insofar as LGUs are concerned. LGU CAN BE SUED. The
Markets relevant issue is the liability of the LGUs. Sec. 22 of the LGC provides: (an express consent
Maintenance of parks by law)
Cemeteries SEC. 22. Corporate Powers. - (a) Every local government unit, as a corporation, shall
Fiesta Celebration have the following powers:
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(2) To sue and be sued;
o CONTROL OF CONGRESS OVER LGUs, especially in matters of disposition of
properties held by LGUs and extent of LGUs exercise of specific powers of local
autonomy
" What properties are held by LGUs and what properties are under the control of
Congress. (Public and Private properties of LGU)
" The property under whose name it is registered does not governed. It doesnt mean
that when it is under the name of the City of Cebu, it is proprietary. It may be held
for governmental capacity and when it is for governmental purpose the LGU
cannot claim deprivation of beneficial use because the LGU here is an agent only of the
government. If it is held on a proprietary capacity, it is entitled to compensable taking.
Bar Question: Johnny was employed as a driver by the Municipality of Calumpit, Bulacan. While
driving recklessly a municipal dump truck with its load of sand for the repair of municipal streets,
Johnny hit a jeepney. Two passengers of the jeepney were killed.
The Sangguniang Bayan passed an ordinance appropriating P300,000 as compensation for the heirs
of the victims.
1. is the municipality liable for the negligence of Johnny? (two answers)
2. is the municipality ordinance valid?
1st Answer: Yes. Under Section 24 of the LGC of 1991, an LGU and its officials is not exempted
from liability for death or injury to persons or damages to property. Whether the act is
governmental or proprietary it is still liable.
2nd Answer: No. LGUs are liable for negligent acts (torts) of regular employees only when they
are exercising proprietary functions. Since they deliver sand and gravel for road repairs, it is a
governmental function. Thus, the LGU must be exempt from liability. (San Fernando La Union
case)
Bara Lidasan vs. Comelec (A law was enacted for the creation of Municipality of Dianaton in the
Province of Lanao Del Sur but which includes 12 barrios situated in 2 municipalities in the Province
of Cotabato. Changes in the boundaries of the two provinces.)
Because of the 2nd function of the LGU as an agency of the community in the administration of
local affairs, an LGU must be self-sufficient to enable it to exercise its corporate powers and
serve its constituents.
Municipal corporations perform twin functions. Firstly. They serve as an instrumentality of the
State in carrying out the functions of government. Secondly. They act as an agency of the
community in the administration of local affairs. It is in the latter character that they are a
separate entity acting for their own purposes and not a subdivision of the State.
The idea that it must be self-sufficient therefore is relevant to the second function that it must
be a corporate entity representing the inhabitants of the community.
Surigao Electric Co., Inc. vs. Municipality of Surigao (Public Service Act was amended requiring
Surigao Electric Co. to comply with a certificate of public convenience and necessity)
Because of the 1st function of the LGU as an agency of the State, an LGU can therefore be
considered as an instrumentality of the National Government. Therefore, it is exempt from
obtaining the CPC as provided for in the Public Service Act.
Governmental affairs do not lose their governmental character by being delegated to the
municipal governments. Nor does the fact that such duties are performed by officers of the
municipality which, for convenience, the state allows the municipality to select, change their
character.
There has been a recognition by this Court of the dual character of a municipal corporation,
one as governmental, being a branch of the general administration of the state, and the other as
quasi-private and corporate............... It would, therefore, be to erode the term "government
entities" of its meaning if we are to reverse the Public Service Commission and to hold that
a municipality is to be considered outside its scope.
Classification of Power
express, implied, inherent (powers necessary and proper for governance, e.g. to promote
health and safety, enhance prosperity, improve morals of inhabitants)
public or governmental, private or proprietary
intramural, extramural
mandatory, directory; ministerial, discretionary
Sources of Powers
General:
- 1987 Constitution (Article 10 Sec. 5, 6 & 7)
Section 5. Each local government unit shall have the power to create its own sources
of revenues and to levy taxes, fees and charges subject to such guidelines and
limitations as the Congress may provide, consistent with the basic policy of local
autonomy. Such taxes, fees, and charges shall accrue exclusively to the local
governments.
Section 6. Local government units shall have a just share, as determined by law, in
the national taxes which shall be automatically released to them.
Section 7. Local governments shall be entitled to an equitable share in the proceeds
of the utilization and development of the national wealth within their respective
areas, in the manner provided by law, including sharing the same with the
inhabitants by way of direct benefits.
- LGC of 1991 (RA 7160) the consolidations of past local government laws.
- Others statutes or acts not inconsistent with the foregoing
Specific:
- Charter the statute creating the LGU, insofar as it is not inconsistent with the LGC of 1991.
Problem 1: A community of people in the northern part of Cebu had always wanted to have their
own local government unit. Apparently, these people were considered minority of Cebu as their
predecessors were mainly from the province of Bohol. Claiming that they have unique culture and
tradition different from most Cebuanos, they lobbied in Congress for the enactment of a law for the
creation of a new municipality to be called Buenavista 2. Although lacking in population
requirement, they were able to convince the Congress to pass a law creating the new municipality.
Local officials were then elected and acted as such for 40 years. Buenavista 2 had then entered into
contracts and transactions with various persons.
What are the legal considerations involved in this problem? The existence of the municipality
can be questioned because of the lack in population. If it can be determined whether it is a de
facto corporation or Buenavista 2 is really a nullity from the start, then the inquiry of its
existence can be collaterally or directly attacked.
The case of Malabang vs. Benito
- It is indeed true that, generally, an inquiry into the legal existence of a municipality is
reserved to the State in a proceeding for quo warranto or other direct proceeding, and
that only in a few exceptions may a private person exercise this function of government.
But the rule disallowing collateral attacks applies only where the municipal corporation is
at least a de facto corporation. For where it is neither a corporation de jure nor de facto,
but a nullity, the rule is that its existence may be questioned collaterally or directly in any
action or proceeding by any one whose rights or interests are affected thereby, including
the citizens of the territory incorporated unless they are estopped by their conduct from
doing so.
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Problem 2: The municipality of Pablo was created through EO 288 in 1948 and since then they
have been exercising powers of a local government unit. In 1965, the SC in Pelaez vs Auditor
General invalidated certain EOs issued by the President creating municipalities on the ground
that the power to create local government is a legislative function. EO 288 was not among
those EOs that were declared void. In 1986, a quo warranto case filed questioning the status
of Pablo. Were the transactions entered into by the Municipality of Pablo valid?
Yes, the transactions entered into by the Municipality of Pablo are valid.
The case of Municipality of Jimenez vs. Baz, Jr.
Sinacaban attained a status of at least a de facto municipal corporation because its
existence had not been questioned for 40 years. Thus, there is long use of corporate powers. In
fact, it attained a de jure status when the 1987 Constitution included in the appended
Ordinance for Legislative Districts.
Problem 3: The municipality of Auring was created through EO 405 in 1962 and immediately
exercised powers of a LGU. In 1965, the SC in Pelaez vs Auditor General invalidated certain EOs
issued by the President creating municipalities on the ground that the power to create local
government is a legislative function. EO 405 was among those EOs that were declared void by the
SC. Were the transactions entered into by the municipality of Auring between 1962-1965 valid?
No, they were not valid. The case of Sultan Osop Camid where the municipality was declared
viod ab initio.
Problem 4: Municipality of Badong was created in 1959 by EO 353. It became a 5th class municipality
1965. In the same year, Pelaez vs Auditor General invalidated some EOs (excluding EO 353) of the
President which created some municipalities. The 1987 Constitution included in its Ordinance
(appendix) which apportioned the seats of the House of Representatives (as one of the 10
municipalities composing the 4th district of Mangingit Province). Badongs existence was questioned
in 1989. Were the transactions entered by Badong valid?
Yes, the transactions are valid.
The case of Municipality of San Narciso vs. Mendez, Sr.
San Andres became de jure by subsequent recognition because it was included in the
appended Ordinance for Legislative District in the 1987 Constitution.
Kinds of Municipal Corporation
De Jure created with all the elements of a municipal corporation being present.
De Facto there is colorable compliance with the requisites of a de jure municipal corporation.
Doctrine of Operative Fact
Before a law is declared unconstitutional or void, it is presumed to be valid. The acts existed as
a fact and these acts have consequences that cannot be ignored.
Doctrine of De Facto Corporation
There is authority in law for a municipal corporation but there is failure to comply with the
constitutional or statutory requirement, it cannot be said to exist de jure. But when the
organization of the people of a given territory is of a corporation under a color of delegated
authority, followed by a user in good faith of the governmental powers incidental thereto, it
will be recognized by the law as a municipal corporation de facto.
Municipal corporation may exist by prescription where it is shown that the community has
claimed and exercised corporate functions, with the knowledge and acquiescence of the
legislature and without interruption or objection for a period long enough to afford title by
prescription.
These municipal corporations have exercised their powers for a long period without objection
on the part of the government and although no charter is in existence, it is presumed that they
were duly incorporated in the first place and that their charters had been lost.
Basis:
Public policy that supports the security of units of local government and the conduct of
their business against attack grounded upon collateral inquiry into the legality of their
organization (doctrine of operative fact)
Underlies the theory that local units may exist through prescription.
Effects:
Where there is at least a de facto municipal corporation
- Acts of the entity will be respected and will be recognized as valid and binding by the
State as if it is a de jure public corporation
No municipality corporation at all
- The acts of the entity are not recognized as valid by the State.
Note: The State controls the objects and methods of the creation of local units and to effectuate
a policy in that area, it should be free to challenge local departures from that policy. Long
exercise of corporate powers without question from any quarter is not enough to silence the
State; It might still be directly attack the legal existence of a local unit, in a quo warranto or
other proceedings, on the ground that there was no authority in law for its existence or that
there were irregularities in its organization, as the case may be.
The State may recognized a de facto corporation and render it de jure by:
- Subsequent legislative recognition; or
- Validation
De Facto Corporation
Elements:
a) Valid law authorizing incorporation
b) Attempt in good faith to organize it
c) Colorable compliance with law
d) Assumption of corporate powers
Whats the relevance if it is de jure and not just de facto?
When a corporation is de jure, its existence cannot be challenged because it is a valid
corporation. If it is de facto, being defective in nature may be challenged.
How do we challenge the existence? TAKE NOTE OF THIS!
Quo warranto proceeding by the State only. A direct action/attack.
Collateral attack is not allowed, as a general rule.
An exception is when a municipal corporation is a TOTAL nullity (not even a de facto
corporation), the charter is declared void from the beginning or when there had never been
any charter at all. And thus, it can be collateral attack may be availed of and may be done by a
private individual.
Municipality of Candijay vs. CA
Same ruling in Jimenez and Narciso case
In addition, the Municipality of Alicia should benefit from the effects of Section 442 (d) of the
LGC of 1991 which was declared in Narciso as a curative law aimed at giving validity to
acts done that would have been invalid under existing laws, as if existing laws have been
complied with.
Municipality of Alicia attained the status of de jure municipality.
Sec. 442 (d) of LGC: Municipalities existing as of the date of the effectivity of this Code shall
continue to exist and operate as such. Existing municipal districts organized pursuant to
presidential issuances or EOs and which have their respective set of elective municipal officials
holding office at the time of the effectivity of this Code shall henceforth be considered as regular
municipalities.
Take note of these factual conditions/elements that must be present:
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1) Which have their respective set of elective municipal officials
2) Holding office at the time of the effectivity of this Code
Sultan Osop Camid vs. Office of the President (Municipality of Andong was declared viod ab
initio by the SC 4 decades ago.)
Sec. 442 (d) of LGC is not a blanket curative law. It does not sanction the recognition of
just any municipality. It only applies to those LGU who can prove a continued exercise
of corporate powers.
SC, being not a trier of facts, cannot ascertain the truthfulness of petitioners allegation of
continued exercise of corporate powers. (there should have been a trial court that ascertained
it).
Doctrine of Operative Fact, applicable in invalidity created LGU (2004 BAR EXAM): Suppose that one
year after Masigla was constituted as a municipality, the law creating it is voided because of defects.
Would that invalidate the acts of the municipality and/or its municipal officers?
Answer: No. Case of Mun. of Malabang vs Benito (1969)
E.O. 386 creating the municipality in question is a nullity pursuant to the ruling in
Pelaez vs Auditor General and Mun. of San Joaquin vs Siva. The EO therefore
created no office. This is not to say, however, that the acts done by the
municipality of Balabagan in the exercise of its corporate powers are a nullity
because the E.O. is, in legal contemplation, as inoperative as though it had never
been passed. For the existence of EO 386 is an operative fact which cannot justly be
ignored. There is then no basis for the respondents apprehension that the
invalidation of the executive order creating Balabagan would have the effect of
unsettling many an act done in reliance upon the validity of the creation of that
municipality.
Can Masigla be considered a de facto corporation?
- No. Applying the case of Malabang, it cannot be considered valid because only 1 year of
existence, thus, it is not sufficient to be considered as long continued exercise of corporate
powers.
C. Overview of the Philippine Local Government System
Vertical Classification of Philippine Local System: UNITARY (as distinguished from Federal)
We are now living in a generation where people believe in the principle of constitutionalism
such that we believe in the principle of limited government. And so almost always, the
government powers are limited. These powers can be limited in a lot of ways. Examples are:
- Provisions in the Constitution providing certain prohibitions. E.g. Bill of Rights
- Social, economic and political principles. E.g. Democracy as embedded in our Consti
- Distributing the powers of the government:
(1) Horizontal powers are distributed in the 3 branches of government, namely:
Legislative, Executive and Judicial. It can be Presidential (separation of powers) or
Parliamentary (fusion of powers of the legislative and executive)
(2) Vertical distribution of powers between the national government and the local
government. It can be Unitary and Federal.
Federal Government
The governmental powers are centered in the governmental subdivision while they surrender
some of their powers to create the central/federal government.
A unitary government is a single, centralized government, exercising powers over both the
internal and external affairs of the state; the powers are shared by the national government
and the local government.
Unitary Government
The governmental powers reside in the central/national government and these are
distributed to the different political subdivision.
A federal government consists of autonomous state (local) government units merged into
a single state, with the national government exercising a limited degree of power over the
domestic affairs but generally full direction of the external affairs of the state, the powers
are divided by the national government and the local government.
Powers granted to local governments are enumerated in the law that created them. Any
power that is not conferred to the local government must, therefore, be a power pertain to
the national government. (same as residual power vested in the president in a horizontal form
of government.)
Philippines is not purely a unitary government. We have adopted a unique kind of system, a
decentralization system which enables political subdivisions to have more autonomy compared to a
unitary set-up.
SEC. 5. Rules of Interpretation. - In the interpretation of the provisions of this Code, the
following rules shall apply:
(a) Any provision on a power of a local government unit shall be liberally interpreted in
its favor, and in case of doubt, any question thereon shall be resolved in favor of
devolution of powers and of the lower local government unit. Any fair and reasonable
doubt as to the existence of the power shall be interpreted in favor of the local
government unit concerned;
- Atty. DBLs justification: To ensure local autonomy as mandated by the
Constiution.
Lina vs Pano
Ours is still a unitary form of government, not a federal state. Being so, any form of autonomy
granted to local governments will necessarily be limited and confined within the extent
allowed by the central authority. Besides, the principle of local autonomy under the 1987
Constitution simply means decentralization. It does not make local governments sovereign
within the state or an imperium in imperio.
Zoomzat, Inc. vs PP
Petitioner assails the findings of Special Prosecutor Pascual that under Executive Order No.
205, it is the National Telecommunications Commission (NTC), and not the local government
unit, that has the power and authority to allow or disallow the operation of cable television. It
argues that while the NTC has the authority to grant the franchise to operate a cable television,
this power is not exclusive because under the Local Government Code, the city council also
has the power to grant permits, licenses and franchises in aid of the local government units
regulatory or revenue raising powers.
Executive Order No. 205 clearly provides that only the NTC could grant certificates of
authority to cable television operators and issue the necessary implementing rules and
regulations. Likewise, Executive Order No. 436, vests with the NTC the regulation and
supervision of cable television industry in the Philippines.
It is clear that in the absence of constitutional or legislative authorization, municipalities have
no power to grant franchises. Consequently, the protection of the constitutional provision as to
impairment of the obligation of a contract does not extend to privileges, franchises and grants
given by a municipality in excess of its powers, or ultra vires.
But, lest we be misunderstood, nothing herein should be interpreted as to strip LGUs of their
general power to prescribe regulations under the general welfare clause of the Local
Government Code. It must be emphasized that when E.O. No. 436 decrees that the "regulatory
power" shall be vested "solely" in the NTC, it pertains to the "regulatory power" over those
matters, which are peculiarly within the NTCs competence
There is no dispute that respondent Sangguniang Panlungsod, like other local legislative
bodies, has been empowered to enact ordinances and approve resolutions under the general
welfare clause of B.P. Blg. 337, the Local Government Code of 1983. That it continues to
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possess such power is clear under the new law, R.A. No. 7160 (the Local Government
Code of 1991).
Indeed, under the general welfare clause of the Local Government Code, the local
government unit can regulate the operation of cable television but only when it
encroaches on public properties, such as the use of public streets, rights of ways, the
founding of structures, and the parceling of large regions. Beyond these parameters, its
acts, such as the grant of the franchise to Spacelink, would be ultra vires.
Local Autonomy, Decentralization, Devolution, and Deconcentration
Provisions about local autonomy:
- Art. II, Sec 25 (Constitution)The State shall ensure the autonomy of local governments.
- Art. X, Sec 2 (Constitution)The territorial and political subdivisions shall enjoy local
autonomy.
- Sec. 2, LGC of 1991 Declaration of Policy. - (a) It is hereby declared the policy of the State
that the territorial and political subdivisions of the State shall enjoy genuine and
meaningful local autonomy to enable them to attain their fullest development as self-reliant
communities and make them more effective partners in the attainment of national goals.
Toward this end, the State shall provide for a more responsive and accountable local
government structure instituted through a system of decentralization whereby local
government units shall be given more powers, authority, responsibilities, and resources. The
process of decentralization shall proceed from the national government to the local
government units.
Local Autonomy
The degree of self-determination exercised by LGUs vis--vis the central government. The
system of achieving local autonomy is known as decentralization and this system is realized
through the process called devolution.
In the Philippines, it is the public administrative powers over local affairs are delegated to
political subdivisions. It refers to decentralization of administrative powers or functions.
Limbona vs Mengelin
Generally, autonomy is either (1) Decentralization of administration or (2) Decentralization of
power.
There is decentralization of administration when the central government delegates
administrative powers to political subdivisions in order to broaden the base of govt. power
and in the process to make local govts. more responsive and accountable, and ensure their
fullest development as self-reliant communities and make them more effective partners in the
pursuit of national development and social progress.
Decentralization of power, on the other hand, involves an abdication of political power in
favour of local government units declared to be autonomous. In that case, the autonomous
government is free to chart its own destiny and shape its future with minimum intervention
from central authorities. According to a constitutional author, decentralization of power
amounts to self-immolation. Since in that event, the autonomous government becomes
accountable not to the central authorities but to its constituency.
Insofar as Autonomous Region of Muslim Mindanao is concerned, it is important to determine
whether we have granted decentralization of power in order that the courts can exercise judicial
review over issues in ARMM. Because if there is decentralization of power, then there is total
abdication of power in favor of LGU.
" Constitutional provisions regarding abdication of power in ARMM:
o Section 15. There shall be created autonomous regions in Muslim Mindanao and in
the Cordilleras consisting of provinces, cities, municipalities, and geographical areas
sharing common and distinctive historical and cultural heritage, economic and
social structures, and other relevant characteristics within the framework of this
Constitution and the national sovereignty as well as territorial integrity of the
Republic of the Philippines.
o Section 16. The President shall exercise general supervision over autonomous
regions to ensure that laws are faithfully executed.
o Section 17. All powers, functions, and responsibilities not granted by this
Constitution or by law to the autonomous regions shall be vested in the
National Government.
o Section 20. Within its territorial jurisdiction and subject to the provisions of this
Constitution and national laws, the organic act of autonomous regions shall
provide for legislative powers over:
(1) Administrative organization;
(2) Creation of sources of revenues;
(3) Ancestral domain and natural resources;
(4) Personal, family, and property relations;
(5) Regional urban and rural planning development;
(6) Economic, social, and tourism development;
(7) Educational policies;
(8) Preservation and development of the cultural heritage; and
(9) Such other matters as may be authorized by law for the promotion of
the general welfare of the people of the region.
" These are legal basis that although ARMM is different from the regular political subdivisions,
there is no total abdication of powers in favor of ARMM.
Administrative Powers of Political Powers
What is the kind of decentralization adopted or practiced in the Philippines?
Answer: Pimentel v. Aguirre
" Under the Philippine concept of local autonomy, the national government has not
completely relinquished all its powers over local governments, including autonomous
regions. Only administrative powers over local affairs are delegated to political
subdivisions. Thus, policy-setting for the entire country still lies in the President and
Congress.
Decentralization
A system whereby local government units shall be given more powers, authority,
responsibilities, and resources. (Sec. 2, LGC)
The Process of decentralization shall proceed from the National Government to the local
government units. (Ibid.)
Devolution
Section 17: (e) National agencies or offices concerned shall devolve to local government units
the responsibility for the provision of basic services and facilities enumerated in this Section
within six (6) months after the effectivity of this Code.
As used in this Code, the term "devolution" refers to the act by which the national government
confers power and authority upon the various local government units to perform specific
functions and responsibilities.
The act by which the National Government confers power and authority upon various local
government units to perform specific functions and responsibilities. [Sec. 17(4)(e)]
It shall include the transfer to local government units of the records, equipment, and other
assets and personnel of national agencies and offices corresponding to the devolved powers,
functions, and responsibilities. [Ibid.]
The powers conferred are to the local government unit
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Deconcentration
SEC. 528. Deconcentration of Requisite Authority and Power. - The national
government shall, six (6) months after the effectivity of this Code, effect the
deconcentration of requisite authority and power to the appropriate regional offices or
field offices of national agencies or offices whose major functions are not devolved to
local government units.
The process of transferring authority and power to the appropriate regional offices or
field offices of national agencies or offices whose major functions are not devolved to
local government units. (Sec. 528, LGC)
The powers conferred are to the local offices of the national government. E.g. central office to
regional office
Basic Distinctions:
1) Local Autonomy degree of self-determination exercised by LGUs vis--vis the central
government.
2) To attain local autonomy, a system of Decentralization is a pre-requisite.
3) To effect system of decentralization, a process of Devolution is applied.
4) Deconcentration refers to the transfer of functions from national office to regional and local offices
involving administrative functions.
SEC. 3. Operative Principles of Decentralization. - The formulation and implementation of
policies and measures on local autonomy shall be guided by the following operative
principles:
(a) There shall be an effective allocation among the different local government units
of their respective powers, functions, responsibilities, and resources;
(b) There shall be established in every local government unit an accountable,
efficient, and dynamic organizational structure and operating mechanism that will
meet the priority needs and service requirements of its communities;
(c) Subject to civil service law, rules and regulations, local officials and employees
paid wholly or mainly from local funds shall be appointed or removed, according to
merit and fitness, by the appropriate appointing authority;
(d) The vesting of duty, responsibility, and accountability in local government units
shall be accompanied with provision for reasonably adequate resources to discharge
their powers and effectively carry out their functions; hence, they shall have the
power to create and broaden their own sources of revenue and the right to a just
share in national taxes and an equitable share in the proceeds of the utilization and
development of the national wealth within their respective areas;
(e) Provinces with respect to component cities and municipalities, and cities and
municipalities with respect to component barangays, shall ensure that the acts of
their component units are within the scope of their prescribed powers and functions;
(f) Local government units may group themselves, consolidate or coordinate their
efforts, services, and resources for purposes commonly beneficial to them;
(g) The capabilities of local government units, especially the municipalities and
barangays, shall be enhanced by providing them with opportunities to participate
actively in the implementation of national programs and projects;
(h) There shall be a continuing mechanism to enhance local autonomy not only by
legislative enabling acts but also by administrative and organizational reforms;
(i) Local government units shall share with the national government the responsibility in the
management and maintenance of ecological balance within their territorial jurisdiction, subject to the
provisions of this Code and national policies;
(j) Effective mechanisms for ensuring the accountability of local government units to their respective
constituents shall be strengthened in order to upgrade continually the quality of local leadership;
(k) The realization of local autonomy shall be facilitated through improved coordination of national
government policies and programs and extension of adequate technical and material assistance to
less developed and deserving local government units;
(l) The participation of the private sector in local governance, particularly in the
delivery of basic services, shall be encouraged to ensure the viability of local
autonomy as an alternative strategy for sustainable development; and
(m) The national government shall ensure that decentralization contributes to the
continuing improvement of the performance of local government units and the
quality of community life.
PROBLEM: Even during the 1973 Constitution, local governments had already been given local
autonomy. In the appointment of a Provincial Accountant, the Sec. of Dept. of Budget and
Management appoints from among the list of nominees the Governor would submit to the DBM.
This was the case before the Local Government Code of 1991took effect. When a Governor
submitted a list of nominees, namely X, Y and Z, for the position of Provl. Accountant, none of the
nominees was a CPA, which was one of the qualifications for a Provl. Accountant. The Sec. of DBM
appointed instead W, a CPA. What are the legal aspects of this case?
Answer: San Juan case
- All the assigned errors relate to the issue of whether or not the private respondent is
lawfully entitled to discharge the functions of PBO (Provincial Budget Officer) of
Rizal pursuant to the appointment made by public respondent DBM's
Undersecretary upon the recommendation of then Director Abella of DBM Region
IV.
- The petitioner-governors arguments rest on his contention that he has the sole right
and privilege to recommend the nominees to the position of PBO and that the
appointee should come only from his nominees. In support thereof, he invokes
Section 1 of Executive Order No. 112.
- The issue before the Court is not limited to the validity of the appointment of one
Provincial Budget Officer. The tug of war between the Secretary of Budget and
Management and the Governor of the premier province of Rizal over a seemingly
innocuous position involves the application of a most important constitutional
policy and principle, that of local autonomy. We have to obey the clear mandate on
local autonomy. Where a law is capable of two interpretations, one in favor of
centralized power in Malacaang and the other beneficial to local autonomy, the
scales must be weighed in favor of autonomy.
- The exercise by local governments of meaningful power has been a national goal
since the turn of the century. And yet, in spite of constitutional provisions and, as in
this case, legislation mandating greater autonomy for local officials, national officers
cannot seem to let go of centralized powers. They deny or water down what little
grants of autonomy have so far been given to municipal corporations.
- When the Civil Service Commission interpreted the recommending power of the
Provincial Governor as purely directory, it went against the letter and spirit of the
constitutional provisions on local autonomy. If the DBM Secretary jealously hoards
the entirety of budgetary powers and ignores the right of local governments to
develop self-reliance and resoluteness in the handling of their own funds, the goal of
meaningful local autonomy is frustrated and set back.
- The PBO is expected to synchronize his work with DBM. More important, however,
is the proper administration of fiscal affairs at the local level. Provincial and
municipal budgets are prepared at the local level and after completion are
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forwarded to the national officials for review. They are prepared by the local
officials who must work within the constraints of those budgets. They are not
formulated in the inner sanctums of an all-knowing DBM and unilaterally
imposed on local governments whether or not they are relevant to local needs
and resources. It is for this reason that there should be a genuine interplay, a
balancing of viewpoints, and a harmonization of proposals from both the local
and national officials. It is for this reason that the nomination and
appointment process involves a sharing of power between the two levels of
government.
- Our national officials should not only comply with the constitutional
provisions on local autonomy but should also appreciate the spirit of liberty upon
which these provisions are based.
Also, The affirmation that the Philippines is still a Unitary government and the guarantee that
LGUs shall enjoy local autonomy create a tension between the national governments and the
local governments.
Magtajas Case (PAGCOR wants to build a Casino in CDO)
The rationale of the requirement that the ordinances should not contravene a statute is
obvious. Municipal governments are only agents of the national government. Local councils
exercise only delegated legislative powers conferred on them by Congress as the national law-
making body. The delegate cannot be superior to the principal or exercise powers higher than
those of the latter.
The basic relationship between the national legislature and the local government units has not
been enfeebled by the new provisions in the Constitution strengthening the policy of local
autonomy. Without meaning to detract from that policy, we here confirm that Congress retains
control of the local government units although in significantly reduced degree now than under
our previous Constitutions.
Lina Case
Since Congress has allowed the PCSO to operate lotteries which PCSO seeks to conduct in
Laguna, pursuant to its legislative grant of authority, the provinces Sangguniang
Panlalawigan cannot nullify the exercise of said authority by preventing something already
allowed by Congress.
Ours is still a unitary form of government, not a federal state. Being so, any form of
autonomy granted to local governments will necessarily be limited and confined within the
extent allowed by the central authority. Besides, the principle of local autonomy under the
1987 Constitution simply means "decentralization". It does not make local governments
sovereign within the state or an "imperium in imperio". (empire within an empire)
To conclude our resolution of the first issue, respondent mayor of San Pedro, cannot avail of
Kapasiyahan Bilang 508, Taon 1995, of the Provincial Board of Laguna as justification to
prohibit lotto in his municipality. For said resolution is nothing but an expression of the local
legislative unit concerned. The Board's enactment, like spring water, could not rise above its
source of power, the national legislature.
In sum, we find no reversible error in the RTC decision enjoining Mayor Cataquiz from
enforcing or implementing the Kapasiyahan Blg. 508, T. 1995, of the Sangguniang
Panlalawigan of Laguna. That resolution expresses merely a policy statement of the Laguna
provincial board. It possesses no binding legal force nor requires any act of implementation. It
provides no sufficient legal basis for respondent mayor's refusal to issue the permit sought by
private respondent in connection with a legitimate business activity authorized by a law
passed by Congress.
Laguna Lake Devt. Authority case (upheld the authority of the central government)
The power of the Authority to grant permits for fishpens, fishcages, and other aqua-culture
structures is for the purpose of effectively regulating and monitoring activities in the Laguna
de Bay region. It does partake of the nature of police power which is the most pervasive, the
least limitable and the most demanding of all State powers including the power of taxation.
Accordingly, the charter of the Authority which embodies a valid exercise of police power
should prevail over the Local Government Code of 1991 on matters affecting Laguna de
Bay.
To resolve the conflicts of cases involving whose authority should prevail:
If the legal issues are clear in favor of central government, the proper judicial reasoning
should be in favor of the central government because we are in a unitary set-up. But in a
situation where there is doubt such that the law is not clear that it favors central authority,
it should be resolve in favor of local autonomy. To the extent that no national authority is
prejudiced in that interpretation.
PROBLEM: A law was passed calling for the abolition of barangays. Is the law unconstitutional?
Why or why not?
It is unconstitutional. Section 1, Article 10 of our Constitution does not create local government
units. It only constitutionally ensures the existence of these territorial and political units in our
structure (Bernas). Hence, a law cannot, for example, abolish barangays.
While it is true that Congress has the power to create a LGUs but that power should refer to
create a SPECIFIC LGU. And so the power to destroy should also refer to the power to abolish
a SPECIFIC LGU, assuming the conditions for abolition are present. But to abolish ALL
barangays and consequently, abolish a barangay system is not allowed because of Sec. 1, Art.
10 of the Constitution.
Section 1, Article 10, Constitution The territorial and political subdivision of the Republic of
the Philippines are the provinces, cities, municipalities and barangays. There shall be
autonomous regions in Muslim Mindanao and the Cordilleras as hereinafter provided.
Section 12, Article 10, Constitution Cities that are highly urbanized, as determined by law,
and component cities whose charters prohibit their voters from voting for provincial elective
officials, shall be independent of the province. The voters of component cities within a
province, whose charters contain no such prohibition, shall not be deprived of their right to
vote for elective provincial officials.
Territorial and Political Subdivisions:
Regular LGUs Provinces, Cities, Municipalities, and Barangays
Autonomous Regions Muslim Mindanao and Cordilleras
-Art. X Sec 1 (Consti)
Special LGUs Special Metropolitan Political Subdivisions
-Art. X Sec 11 (Consti)
Problem: You are asked about the extent of the powers of a Province over a city which is
geographically situated in the same province. How will you respond? In particular, may the
Provincial Board or SP set aside an oridance of a city that is geographically situated in the province?
What about the EOs of the Mayor of that city, may they be set aside by the governor? May the
resident of that city run for Governor?
It depends. (Distinguish the kinds of cities)
Kinds of Cities:
1. Component City not qualified to be highly urbanized; inhabitants can vote for provincial
candidates and can run for provincial elective posts = under the supervisory power of the
province.
2. Independent Component City independent in the sense that the charter prohibits the voters
from voting for provincial elective posts = outside the supervisory power of the province.
(Abella vs Comelec)
3. Highly Urbanized City independent from province by reason of status = outside the
supervisory power of the province.
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Abella vs Comelec (1991)
The main issue in these consolidated petitions centers on who is the rightful governor of
the province of Leyte 1) petitioner Adelina Larrazabal (G.R. No. 100739) who obtained
the highest number of votes in the local elections of February 1, 1988 and was
proclaimed as the duly elected governor but who was later declared by the Commission
on Elections (COMELEC) "... to lack both residence and registration qualifications for the
position of Governor of Leyte as provided by Art. X, Section 12, Philippine Constitution
in relation to Title II, Chapter I, Sec. 42, B.P. Blg. 137 and Sec. 89, R.A. No. 179 and is
hereby disqualified as such Governor"
Failing in her contention that she is a resident and registered voter of Kananga, Leyte,
the petitioner poses an alternative position that her being a registered voter in Ormoc City was
no impediment to her candidacy for the position of governor of the province of Leyte.
Section 12, Article X of the Constitution provides:
Cities that are highly urbanized, as determined by law, and component cities whose
charters prohibit their voters from voting for provincial elective officials, shall be
independent of the province. The voters of component cities within a province,
whose charters contain no such prohibition, shall not be deprived of their right to
vote for elective provincial officials.
Section 89 of Republic Act No. 179 creating the City of Ormoc provides:
Election of provincial governor and members of the Provincial Board of the
members of the Provincial Board of the Province of Leyte The qualified voters of
Ormoc City shall not be qualified and entitled to vote in the election of the
provincial governor and the members of the provincial board of the Province of
Leyte.
Relating therefore, section 89 of R.A. 179 to section 12, Article X of the Constitution one comes
up with the following conclusion: that Ormoc City when organized was not yet a highly-
urbanized city but is, nevertheless, considered independent of the province of Leyte to which
it is geographically attached because its charter prohibits its voters from voting for the
provincial elective officials. The question now is whether or not the prohibition against the
'city's registered voters' electing the provincial officials necessarily mean, a prohibition of the
registered voters to be elected as provincial officials.
The petitioner citing section 4, Article X of the Constitution, to wit:
Sec. 4. The President of the Philippines shall exercise general supervision over local
governments. Provinces with respect to component cities and municipalities and cities
and municipalities with respect to component barangays, shall ensure that the acts of
their component units are within the scope of their prescribed powers and functions.
submits that "while a Component City whose charter prohibits its voters from participating in
the elections for provincial office, is indeed independent of the province, such independence
cannot be equated with a highly urbanized city; rather it is limited to the administrative
supervision aspect, and nowhere should it lead to the conclusion that said voters are likewise
prohibited from running for the provincial offices." (Petition, p. 29)
The argument is untenable. Section 12, Article X of the Constitution is explicit in that aside
from highly-urbanized cities, component cities whose charters prohibit their voters from
voting for provincial elective officials are independent of the province. In the same provision,
it provides for other component cities within a province whose charters do not provide a
similar prohibition. Necessarily, component cities like Ormoc City whose charters prohibit
their voters from voting for provincial elective officials are treated like highly urbanized cities
which are outside the supervisory power of the province to which they are geographically
attached. This independence from the province carries with it the prohibition or mandate
directed to their registered voters not to vote and be voted for the provincial elective offices.
The resolution in G.R. No. 80716 entitled Peralta v. The Commission on Elections, et al. dated
December 10, 1987 applies to this case. While the cited case involves Olongapo City which is
classified as a highly urbanized city, the same principle is applicable.
Moreover, Section 89 of Republic Act 179, independent of the constitutional provision,
prohibits registered voters of Ormoc City from voting and being voted for elective offices in
the province of Leyte. We agree with the COMELEC en banc that "the phrase 'shall not be
qualified and entitled to vote in the election of the provincial governor and the members of the
provincial board of the Province of Leyte' connotes two prohibitions one, from running
for and the second, from voting for any provincial elective official."
The phrase shall not be qualified and entitled to vote in the election of the provincial governor
and the members of the provincial board of the Province of Leyte as found in the Charter of
Ormoc City (ICC) connotes two prohibitions:
o From running for provincial elective posts
o From voting for provincial candidates
Query: A highly urbanized city is independent of the province where it is geographically
located. Consequently, its residents cannot run for provincial posts and cannot as well vote for
provincial candidates. Mandaue City of Cebu is a HUC, but its residents can still run for provincial
post and can vote for provincial candidates. How was that possible?
Although Sec. 12, Art. 10 of the Constitution mandates HUCs are independent from the
province and thus, outside the supervisory power of the province, Sec. 452 of the LGC
provides a vested right for the voters provided that the conditions required are met.
SEC 452- Highly Urbanized City xxx (c) Qualified voters of cities, who acquire the right to
vote for elective provincial officers prior to the classification of said cities as HUC after the
ratification of the Constitution and before the effectivity of this Code, shall continue to
exercise such right.
Special Metropolitan Political Subdivisions
Sec. 11 Art. 10 consti The Congress may, by law, create special metropolitan political
subdivisions, subject to a plebiscite as set forth in Section 10 hereof. The component cities and
municipalities shall retain their basic autonomy and shall be entitled to their own local
executive and legislative assemblies. The jurisdiction of the metropolitan authority that will
thereby be created shall be limited to basic services requiring coordination.
Created by Congress and requires plebiscite
The component cities and municipalities shall retain their basic autonomy and shall be entitled
to their own local executives and legislative assemblies
Jurisdiction is limited to basic services requiring coordination
MMDA vs Bel-Air Village
MMDA is not an LGU, nor a Special Metropolitan political subdivision because there was no
plebiscite held after the law that created it was enacted and the President exercises not just
supervision but control over it.
MMDA has purely administrative function
Because MMDA is not a political subdivision, it cannot exercise political power like police
power.
Loose Federation of LGUs
Sec. 13 Art. 10 Consti Local government units may group themselves, consolidate or
coordinate their efforts, services, and resources for purposes commonly beneficial to them in
accordance with law.
Section 33. Cooperative Undertakings Among Local Government Units. - Local government
units may, through appropriate ordinances, group themselves, consolidate, or coordinate their
efforts, services, and resources for purposes commonly beneficial to them. In support of such
undertakings, the local government units involved may, upon approval by the sanggunian
concerned after a public hearing conducted for the purpose, contribute funds, real estate,
equipment, and other kinds of property and appoint or assign personnel under such terms and
conditions as may be agreed upon by the participating local units through Memoranda of
Agreement.
Take note: The resultant consolidation will not be a new corporate body. Why? Because the
requirement that an LGU should be created by law is of constitutional origin. That
requirement remains, so that it cannot be done either by MOA or ordinance. It has to be by
law. It cannot be given a separate personality.
!
Sec. 14 Art. 10 consti The President shall provide for regional development councils or
other similar bodies composed of local government officials, regional heads of
departments and other government offices, and representatives from non-governmental
organizations within the regions for purposes of administrative decentralization to
strengthen the autonomy of the units therein and to accelerate the economic and social
growth and development of the units in the region.
LGUs may group themselves, consolidate or coordinate their efforts, services, and
resources for purposes commonly beneficial to them in accordance with law. (Sec 13 Art
X Consti)
How? (1) Thru Ordinaces; (2) Upon approval by the Sanggunian concerned, after lawful
hearing, then contribute funds and assets thru MOA (Sec 33, LGC)
May this federation or consolidation of LGU enter into contracts? If yes, how may the federation or
consolidation of LGUs enter into contracts? Under what name?
The resultant consolidation would not be a new corporate body, and therefore, it does not
have a personality. It cannot act as if it is a person who can act with juridical effects.
What are consolidated are not corporate personalities but only efforts, services, and
resources for purposes commonly beneficial to them.
Regional Development Councils
To be established by the President and does not need authorization from Congress.
Composedd of LG officials, regional heads of Depts., and other government offices and
representatives of NGOs within the region.
The Local Government Code of 1991
Sec. 3 Art. 10 consti The Congress shall enact a local government code which shall provide for a
more responsive and accountable local government structure instituted through a system of
decentralization with effective mechanisms of recall, initiative, and referendum, allocate among the
different local government units their powers, responsibilities, and resources, and provide for the
qualifications, election, appointment and removal, term, salaries, powers and functions and duties
of local officials, and all other matters relating to the organization and operation of the local units.
Constitutionally mandated (Art X Sec 3)
Mandatory contends of the Code:
- Responsive and accountable structure
- System of decentralization
- Mechanism of recall, initiative and referendum
- Allocation of powers, responsibilities and functions of LGUs
- Qualifications, elections, etc. of elective officials.
Sources of the Code: (Codified)
1. The LGC of 1983 (BP Blg. 337)
2. The Local Tax Code (PD 201)
3. The Real Property Tax Code (PD 464)
4. Barangay Justice Law (PD 1508)
Scope and Application of the Code
" Section 4. Scope of Application. - This Code shall apply to all provinces, cities, municipalities,
barangays, and other political subdivisions as may be created by law, and, to the extent herein
provided, to officials, offices, or agencies of the national government.
" Section 526. Application of this Code to Local Government Units in the Autonomous
Regions. - This Code shall apply to all provinces, cities, municipalities and barangays in the
autonomous regions until such time as the regional government concerned shall have enacted
its own local government code.
" Section 529. Tax Ordinances or Revenue Measures. - All existing tax ordinances or revenue
measures of local government units shall continue to be in force and effect after the effectivity
of this Code unless amended by the sanggunian concerned, or inconsistent with, or in
violation of, the provisions of this Code.
" Section 534. Repealing Clause.
" (f) All general and special laws, acts, city charters, decrees, executive orders, proclamations
and administrative regulations, or part or parts thereof which are inconsistent with any of
the provisions of this Code are hereby repealed or modified accordingly.
The code shall apply to: Provinces, Cities, Municipalities, and Barangays and other
political subdivisions created by law.
It shall also apply to officials and offices of the national govt. as provided by the
Code.
What about Provinces, Cities, Municipalities, and Barangays in the Autonomous Regions (ARs)?
LGC applies until AR has its own Code.
Rules of Interpretation
Section 5. Rules of Interpretation. - In the interpretation of the provisions of this Code, the
following rules shall apply:
(a) Any provision on a power of a local government unit shall be liberally
interpreted in its favor, and in case of doubt, any question thereon shall be resolved
in favor of devolution of powers and of the lower local government unit. Any fair
and reasonable doubt as to the existence of the power shall be interpreted in favor of
the local government unit concerned;
(b) In case of doubt, any tax ordinance or revenue measure shall be construed
strictly against the local government unit enacting it, and liberally in favor of the
taxpayer. Any tax exemption, incentive or relief granted by any local government
unit pursuant to the provisions of this Code shall be construed strictly against the
person claiming it.
(c) The general welfare provisions in this Code shall be liberally interpreted to give
more powers to local government units in accelerating economic development and
upgrading the quality of life for the people in the community;
(d) Rights and obligations existing on the date of effectivity of this Code and arising
out of contracts or any other source of presentation involving a local government
unit shall be governed by the original terms and conditions of said contracts or the
law in force at the time such rights were vested; and
(e) In the resolution of controversies arising under this Code where no legal
provision or jurisprudence applies, resort may be had to the customs and traditions
in the place where the controversies take place.
Liberal interpretation in favour of LGUs, Devolution of powers, and General Welfare
ordinances
In case of doubt as to existence of power, resolved in favour of LGU. (vs residual power
doctrine)
But in tax ordinances are construed strictly against the LGU and liberally in favour of
taxpayer.
Where no law of jurisprudence applies, customs or traditions in the locality may be applied to
resolve controversies.
Effectivity of LGC
Section 536. Effectivity Clause. - This Code shall take effect on January first, nineteen hundred
ninety-two, unless otherwise provided herein, after its complete publication in at least one (1)
newspaper of general circulation.
January 1, 1992
Effects:
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1. All tax ordinances or revenue measures of LGUs enacted before the LGC of
1991 shall continue to be in fore and effect after the effectivity of the LGC, unless
amended by the Sanggunian or inconsistent with or in violation of the provisions
of the code. Sec 529 LGC.
2. All general and special laws, acts, city charters, decrees, EOs, Proclamations,
and admin regulations or parts thereof that are inconsistent with any of the
provisions of the Code are repealed or modified accordingly. Sec 534 (f), LGC.
# Note: Implied Repeal is not favoured (see LLDA case)
Laguna Lake Development Authority vs CA - The provisions of the LGC do not necessarily
repeal the laws creating the LLDA and granting the latter water rights authority over Laguna de
Bay and the lake region.
In this petition for certiorari, prohibition and injunction, the Authority contends: The
Honorable CA committed serious error when it ruled that the power to issue fish pen permits
in Laguna de Bay has been devolved to concerned (lakeshore) LGUs. Which agency of the
Government the Laguna Lake Development Authority or the towns and municipalities
comprising the region should exercise jurisdiction over the Laguna Lake and its environs
insofar as the issuance of permits for fishery privileges is concerned?
We hold that the provisions of Republic Act No. 7160 do not necessarily repeal the
aforementioned laws creating the Laguna Lake Development Authority and granting the latter
water rights authority over Laguna de Bay and the lake region.
The Local Government Code of 1991 does not contain any express provision which
categorically expressly repeal the charter of the Authority. It has to be conceded that there was
no intent on the part of the legislature to repeal Republic Act No. 4850 and its amendments.
The repeal of laws should be made clear and expressed.
Considering the reasons behind the establishment of the Authority, which are environmental
protection, navigational safety, and sustainable development, there is every indication that the
legislative intent is for the Authority to proceed with its mission.
It has to be conceded that the charter of the Laguna Lake Development Authority constitutes a
special law. Republic Act No. 7160, the Local Government Code of 1991, is a general law. It is
basic in statutory construction that the enactment of a later legislation which is a general law
cannot be construed to have repealed a special law. It is a well-settled rule in this jurisdiction
that "a special statute, provided for a particular case or class of cases, is not repealed by a
subsequent statute, general in its terms, provisions and application, unless the intent to repeal
or alter is manifest, although the terms of the general law are broad enough to include the
cases embraced in the special law."
Where there is a conflict between a general law and a special statute, the special statute should
prevail since it evinces the legislative intent more clearly than the general statute. The special
law is to be taken as an exception to the general law in the absence of special circumstances
forcing a contrary conclusion. This is because implied repeals are not favored and as much as
possible, effect must be given to all enactments of the legislature. A special law cannot be
repealed, amended or altered by a subsequent general law by mere implication.
Thus, it has to be concluded that the charter of the Authority should prevail over the Local
Government Code of 1991. The power of the local government units to issue fishing privileges
was clearly granted for revenue purposes.
On the other hand, the power of the Authority to grant permits for fish pens, fish cages and
other aqua-culture structures is for the purpose of effectively regulating and monitoring
activities in the Laguna de Bay region (Section 2, Executive Order No. 927) and for lake quality
control and management. It does partake of the nature of police power which is the most
pervasive, the least limitable and the most demanding of all State powers including the power
of taxation. Accordingly, the charter of the Authority which embodies a valid exercise of police
power should prevail over the Local Government Code of 1991 on matters affecting Laguna de
Bay.
Removal from the Authority of the aforesaid licensing authority will render nugatory its
avowed purpose of protecting and developing the Laguna Lake Region. Otherwise stated, the
abrogation of this power would render useless its reason for being and will in effect denigrate,
if not abolish, the Laguna Lake Development Authority. This, the Local Government Code
of 1991 had never intended to do.
Creation, Conversion, Division, Merger, Abolition, Substantial Change of Boundary
A. Regular Political Subdivisions
B. Autonomous regions
C. Special Metropolitan Political Subdivisions
D. Beginning of Corporate Existence
General Requirements in the creation or conversion LGU:
1. Law
2. Plebiscite
3. Compliance with Criteria on Income, Land, &/or Population
- Constitutional Mandate:
Section 10. No province, city, municipality, or barangay may be created, divided, merged,
abolished, or its boundary substantially altered, except in accordance with the criteria
established in the local government code and subject to approval by a majority of the votes
cast in a plebiscite in the political units directly affected.
Section 11. The Congress may, by law, create special metropolitan political subdivisions,
subject to a plebiscite as set forth in Section 10 hereof. The component cities and municipalities
shall retain their basic autonomy and shall be entitled to their own local executive and
legislative assemblies. The jurisdiction of the metropolitan authority that will thereby be
created shall be limited to basic services requiring coordination.
- Local Government Code provisions:
Section 6. Authority to Create Local Government Units. - A local government unit may be
created, divided, merged, abolished, or its boundaries substantially altered either by law
enacted by Congress in the case of a province, city, municipality, or any other political
subdivision, or by ordinance passed by the sangguniang panlalawigan or sangguniang
panlungsod concerned in the case of a barangay located within its territorial jurisdiction,
subject to such limitations and requirements prescribed in this Code.
Section 7. Creation and Conversion. - As a general rule, the creation of a local government
unit or its conversion from one level to another level shall be based on verifiable indicators of
viability and projected capacity to provide services, to wit:
- Income. - It must be sufficient, based on acceptable standards, to provide for all
essential government facilities and services and special functions commensurate
with the size of its population, as expected of the local government unit concerned;
- Population. - It shall be determined as the total number of inhabitants within the
territorial jurisdiction of the local government unit concerned; and
- Land Area. - It must be contiguous, unless it comprises two or more islands or is
separated by a local government unit independent of the others; properly
identified by metes and bounds with technical descriptions; and sufficient to
provide for such basic services and facilities to meet the requirements of its
populace.
Compliance with the foregoing indicators shall be attested to by the Department of Finance
(DOF), the National Statistics Office (NSO), and the Lands Management Bureau (LMB) of the
Department of Environment and Natural Resources (DENR).
Section 10. Plebiscite Requirement. - No creation, division, merger, abolition, or substantial
alteration of boundaries of local government units shall take effect unless approved by a
majority of the votes cast in a plebiscite called for the purpose in the political unit or units
directly affected. Said plebiscite shall be conducted by the Commission on Elections
(COMELEC) within one hundred twenty (120) days from the date of effectivity of the law or
ordinance effecting such action, unless said law or ordinance fixes another date.
!
LEAGUE OF CITIES OF THE PHILS. VS COMELEC
The 16 Cityhood Bills do not violate Article X, Section 10 of the Constitution.
Article X, Section 10 provides
Section 10. No province, city, municipality, or barangay may be created, divided,
merged, abolished, or its boundary substantially altered, except in accordance with
the criteria established in the local government code and subject to approval by a
majority of the votes cast in a plebiscite in the political units directly affected.
The tenor of the ponencias of the November 18, 2008 Decision and the August 24, 2010
Resolution is that the exemption clauses in the 16 Cityhood Laws are unconstitutional because
they are not written in the Local Government Code of 1991 (LGC), particularly Section 450
thereof, as amended by Republic Act (R.A.) No. 9009, which took effect on June 30, 2001, viz.
Section 450. Requisites for Creation. a) A municipality or a cluster of barangays may be
converted into a component city if it has a locally generated annual income, as certified
by the Department of Finance, of at least One Hundred Million Pesos (P100,000,000.00)
for at least two (2) consecutive years based on 2000 constant prices, and if it has either of
the following requisites:
xxxx
(c) The average annual income shall include the income accruing to the general
fund, exclusive of special funds, transfers, and non-recurring income. (Emphasis
supplied)
Prior to the amendment, Section 450 of the LGC required only an average annual income, as
certified by the Department of Finance, of at least P20,000,000.00 for the last two (2)
consecutive years, based on 1991 constant prices.
Before Senate Bill No. 2157, now R.A. No. 9009, was introduced by Senator Aquilino Pimentel,
there were 57 bills filed for conversion of 57 municipalities into component cities. During the
11th Congress (June 1998-June 2001), 33 of these bills were enacted into law, while 24 remained
as pending bills. Among these 24 were the 16 municipalities that were converted into
component cities through the Cityhood Laws.
While R.A. No. 9009 was being deliberated upon, Congress was well aware of the pendency of
conversion bills of several municipalities, including those covered by the Cityhood Laws,
desiring to become component cities which qualified under the P20 million income
requirement of the old Section 450 of the LGC. The interpellation of Senate President Franklin
Drilon of Senator Pimentel is revealing,
Clearly, based on the above exchange, Congress intended that those with pending cityhood
bills during the 11th Congress would not be covered by the new and higher income
requirement of P100 million imposed by R.A. No. 9009. When the LGC was amended by R.A.
No. 9009, the amendment carried with it both the letter and the intent of the law, and such
were incorporated in the LGC by which the compliance of the Cityhood Laws was gauged.
Notwithstanding that both the 11th and 12th Congress failed to act upon the pending cityhood
bills, both the letter and intent of Section 450 of the LGC, as amended by R.A. No. 9009, were
carried on until the 13th Congress, when the Cityhood Laws were enacted. The exemption
clauses found in the individual Cityhood Laws are the express articulation of that intent to
exempt respondent municipalities from the coverage of R.A. No. 9009.
Even if we were to ignore the above quoted exchange between then Senate President Drilon
and Senator Pimentel, it cannot be denied that Congress saw the wisdom of exempting
respondent municipalities from complying with the higher income requirement imposed by
the amendatory R.A. No. 9009. Indeed, these municipalities have proven themselves viable
and capable to become component cities of their respective provinces. It is also acknowledged
that they were centers of trade and commerce, points of convergence of transportation, rich
havens of agricultural, mineral, and other natural resources, and flourishing tourism spots. In
this regard, it is worthy to mention the distinctive traits of each respondent municipality,
The enactment of the Cityhood Laws is an exercise by Congress of its legislative power.
Legislative power is the authority, under the Constitution, to make laws, and to alter and
repeal them. The Constitution, as the expression of the will of the people in their original,
sovereign, and unlimited capacity, has vested this power in the Congress of the Philippines.
The grant of legislative power to Congress is broad, general, and comprehensive. The
legislative body possesses plenary powers for all purposes of civil government. Any
power, deemed to be legislative by usage and tradition, is necessarily possessed by
Congress, unless the Constitution has lodged it elsewhere. In fine, except as limited by the
Constitution, either expressly or impliedly, legislative power embraces all subjects, and
extends to matters of general concern or common interest.
Without doubt, the LGC is a creation of Congress through its law-making powers.
Congress has the power to alter or modify it as it did when it enacted R.A. No. 9009. Such
power of amendment of laws was again exercised when Congress enacted the Cityhood
Laws. When Congress enacted the LGC in 1991, it provided for quantifiable indicators of
economic viability for the creation of local government unitsincome, population, and
land area. Congress deemed it fit to modify the income requirement with respect to the
conversion of municipalities into component cities when it enacted R.A. No. 9009, imposing
an amount of P100 million, computed only from locally-generated sources. However,
Congress deemed it wiser to exempt respondent municipalities from such a belatedly imposed
modified income requirement in order to uphold its higher calling of putting flesh and blood
to the very intent and thrust of the LGC, which is countryside development and autonomy,
especially accounting for these municipalities as engines for economic growth in their
respective provinces.
Undeniably, R.A. No. 9009 amended the LGC. But it is also true that, in effect, the Cityhood
Laws amended R.A. No. 9009 through the exemption clauses found therein. Since the
Cityhood Laws explicitly exempted the concerned municipalities from the amendatory R.A.
No. 9009, such Cityhood Laws are, therefore, also amendments to the LGC itself. For this
reason, we reverse the November 18, 2008 Decision and the August 24, 2010 Resolution on
their strained and stringent view that the Cityhood Laws, particularly their exemption clauses,
are not found in the LGC.
OPPOSITIONS:
Sec. 10, Art. 10 consti: No province, city, municipality or barangay shall be created, divided,
merged, abolished, or its boundary substantially altered, except in accordance with the
criteria established in the LGC and subject to approval by majority of the votes cast in a
plebiscite in the political units directly affected.
The consti is clear. The creation of LGUs must follow the criteria established in the LGC and
not in any other law. There is only one LGC. Congress cannot write such criteria in any other
law, like the Cityhood laws.
No other law, not even the charter of the city, can govern such creation. The clear intent of the
consti is to insure that the creation of cities and other political units must follow the same
uniform, non-discriminatory criteria found solely in the LGC. Any derogation or deviation
from the criteria prescribed in the LGC violates Sec. 10, Art. 10.
They were just pending bills at that time and thus have no force and effect of a law.
League of Cities Case
Issue: Are the 16 Cityhood laws unconstitutional in the light of the following provision in the
Constitution? Sec 10 Art. X.
The Constitution is clear. The creation of LGU must follow the criteria established in the LGC
and not in any other law. There is only one LGC. Congress cannot write such criteria in any
other law, like the Cityhood Laws. (RA 9009 June 30, 2001 amended SEC 450 of LGC,
increasing income req. for a city to P100M.)
No other law, not even the charter of the city can govern such creation. The clear intent of the
Consti is to insure that the creation of cities and other political units must follow the same
uniform, non-discriminatory criteria found solely in the LGC. Any derogation or deviation
from the criteria prescribed in the LGC violates SEC 10, Art. X.
2008 League of Cities case reversed on Dec. 21, 2009:
Velasco, Jr: These criteria need not be embodied in the LGC, albeit this code is the ideal
repository to ensure, as much as possible, the element of uniformity. Congress can even, after
making a codification, enact an amendatory law, adding to the existing layers of indicators
earlier codified, just as efficaciously as it may reduce the same.
!
The amendatory RA 9009 upped the already codified income requirement from P 20 M
to P 100M The passage of amendatory laws is no differenet from the enactment of
laws, i.e., the cityhood laws specifically exempting a particular political subdivision
from the criteria earlier mentioned. Congress, in enacting the exempting law/s,
effectively decreased the already codified indicators.
Petitioners theory that Congress must provide the criteria solely in the LGC and not in
any other law strikes the Court as illogical. For if we pursue their contention to its logical
conclusion, then RA 9009 embodying the new and increased income criterion would, in
a way, also suffer the vice of unconstitutionality.
It is startling, however, that petitioners do not question the constitutionality of RA 9009,
as they in fact use said law as an argument for the alleged unconstitutionality of the cityhood
laws.
League of Cities (Aug. 24, 2010)
Granted the Motion of League of Cities of the Phil. And reinstated its November 18, 2008
Decision declaring the 16 Cityhood laws unconstitutional.
The same reasons as that of Nov. 18:
1. Violation of Sec 10 Art X Consti, and
2. Violation of Equal Protection Clause.
League of Cities (Feb 15, 2011; April 12, 2011, June 28, 2011)
Granted the Motion for Recon of the 16 cities; reversed and set aside the 24 Aug. 2010
Resolution of SC
Decided on the basis of SCs reasoning in the 21 Dec. 2009 Ruling that Congress intent to
exempt the 16 Cities from the operation of RA 9009 should be respected.
Take Note: which League of Cities decision should be used as legal basis in the exam? Cite the legal
standing of the SC in upholding the Congress intent and SCs legal basis in upholding the Constitution
intent. (2008 ruling and 2011 Ruling)
What is association in Public International Law?
Association means that the associated state has internal self- government, while the
independent state with which it is associated is responsible for foreign affairs and defense.
This happens where two States sort of collaborate or enter into an agreement where one is
considered inferior and the other superior because it says of unequal power. E.g. colonies
The weaker State is called Associated and the superior State is called Principal.
Can an associated state be established in the Philippines?
Province of North Cotabato vs GRP
The RP entered into a MOA with the MILF. The MOA provided for the creation of
Bangsamoro Juridical Entity (BJE) whereby there will be a some sort of government structure.
There will also be the territory of this Bangsamoro juridical entity and it has also defined who
are the supposed constituents of such juridical entity. Naay government, people, and territory.
And insofar as it is allowed to relate itself to foreign states, the MOA provides that it can do so
through the instrumentality of the national government. In fact, under the MOA, it mentioned
of the so-called association kind of relationship.
Such MOA is unconstitutional. If an associated state is legally a state then it cannot exist in the
Phils. Remember, sovereignty is indivisible. You cannot divide sovereignty, there should only
be one authority.
The concept of an associated state is not sanctioned by the Constitution. Under Art. X, the
following are the only recognized political subdivisions in the Philippines: Provinces,
Cities, Municipalities, Barangays and the ARMM and the Cordilleras.
The MOA-AD is inconsistent with the Constitution and laws as presently worded.
In general, the objections against the MOA-AD center on the extent of the powers conceded
therein to the BJE. Petitioners assert that the powers granted to the BJE exceed those granted to
any local government under present laws, and even go beyond those of the present ARMM.
Before assessing some of the specific powers that would have been vested in the BJE,
however, it would be useful to turn first to a general idea that serves as a unifying link to
the different provisions of the MOA-AD, namely, the international law concept of
association. Significantly, the MOA-AD explicitly alludes to this concept, indicating that
the Parties actually framed its provisions with it in mind.
Association is referred to in paragraph 3 on TERRITORY, paragraph 11 on RESOURCES,
and paragraph 4 on GOVERNANCE. It is in the last mentioned provision, however, that
the MOA-AD most clearly uses it to describe the envisioned relationship between the BJE
and the Central Government.
The relationship between the Central Government and the Bangsamoro juridical entity
shall be associative characterized by shared authority and responsibility with a structure of
governance based on executive, legislative, judicial and administrative institutions with
defined powers and functions in the comprehensive compact. A period of transition shall be
established in a comprehensive peace compact specifying the relationship between the Central
Government and the BJE. (Emphasis and underscoring supplied)
The nature of the "associative" relationship may have been intended to be defined more
precisely in the still to be forged Comprehensive Compact. Nonetheless, given that there is a
concept of "association" in international law, and the MOA-AD - by its inclusion of
international law instruments in its TOR- placed itself in an international legal context, that
concept of association may be brought to bear in understanding the use of the term
"associative" in the MOA-AD.
Keitner and Reisman state that [a]n association is formed when two states of unequal power
voluntarily establish durable links. In the basic model, one state, the associate, delegates
certain responsibilities to the other, the principal, while maintaining its international status
as a state. Free associations represent a middle ground between integration and
independence. x x x(Emphasis and underscoring supplied)
For purposes of illustration, the Republic of the Marshall Islands and the Federated States of
Micronesia (FSM), formerly part of the U.S.-administered Trust Territory of the Pacific
Islands,151 are associated states of the U.S. pursuant to a Compact of Free Association. The
currency in these countries is the U.S. dollar, indicating their very close ties with the U.S., yet
they issue their own travel documents, which is a mark of their statehood. Their international
legal status as states was confirmed by the UN Security Council and by their admission to UN
membership.
According to their compacts of free association, the Marshall Islands and the FSM generally
have the capacity to conduct foreign affairs in their own name and right, such capacity
extending to matters such as the law of the sea, marine resources, trade, banking, postal, civil
aviation, and cultural relations. The U.S. government, when conducting its foreign affairs, is
obligated to consult with the governments of the Marshall Islands or the FSM on matters
which it (U.S. government) regards as relating to or affecting either government.
In the event of attacks or threats against the Marshall Islands or the FSM, the U.S. government
has the authority and obligation to defend them as if they were part of U.S. territory. The U.S.
government, moreover, has the option of establishing and using military areas and facilities
within these associated states and has the right to bar the military personnel of any third
country from having access to these territories for military purposes.
It bears noting that in U.S. constitutional and international practice, free association is
understood as an international association between sovereigns. The Compact of Free
Association is a treaty which is subordinate to the associated nation's national constitution,
and each party may terminate the association consistent with the right of independence. It has
been said that, with the admission of the U.S.-associated states to the UN in 1990, the UN
recognized that the American model of free association is actually based on an underlying
status of independence.152
In international practice, the "associated state" arrangement has usually been used as a
transitional device of former colonies on their way to full independence. Examples of states
that have passed through the status of associated states as a transitional phase are Antigua, St.
Kitts-Nevis-Anguilla, Dominica, St. Lucia, St. Vincent and Grenada. All have since become
independent states.153
!

Back to the MOA-AD, it contains many provisions which are consistent with the plebiscite - Baloi, Munai, Nunungan, Pantar, Tagoloan and Tangkal - are automatically
international legal concept of association, specifically the following: the BJE's capacity to part of the BJE without need of another plebiscite, in contrast to the areas under Categories
enter into economic and trade relations with foreign countries, the commitment of the A and B mentioned earlier in the overview. That the present components of the ARMM
Central Government to ensure the BJE's participation in meetings and events in the and the above-mentioned municipalities voted for inclusion therein in 2001, however, does
ASEAN and the specialized UN agencies, and the continuing responsibility of the not render another plebiscite unnecessary under the Constitution, precisely because what
Central Government over external defense. Moreover, the BJE's right to participate in these areas voted for then was their inclusion in the ARMM, not the BJE.
Philippine official missions bearing on negotiation of border agreements, environmental
protection, and sharing of revenues pertaining to the bodies of water adjacent to or Plebiscite Requirement
between the islands forming part of the ancestral domain, resembles the right of the 1. Who shall participate?
governments of FSM and the Marshall Islands to be consulted by the U.S. government 2. What is meant by units affected?
on any foreign affairs matter affecting them. 3. In what sense affected?
These provisions of the MOA indicate, among other things, that the Parties aimed to vest in 4. How is it different from the manner of creating autonomous regions?
the BJE the status of an associated state or, at any rate, a status closely approximating it.
The concept of association is not recognized under the present Constitution POBLEM: Madako is a municipality composed of 80 barangays, 30 west of Madako River and 50
No province, city, or municipality, not even the ARMM, is recognized under our laws as east thereof. The 30 western barangays feeling left out of economic initiatives, wish to constitute
having an "associative" relationship with the national government. Indeed, the concept implies themselves into a new and separate town to be called Masigla. Granting the Masiglas proponents
powers that go beyond anything ever granted by the Constitution to any local or regional succeed to secure a law in their favour, would a plebiscite be necessary or not? If it is, who should
government. It also implies the recognition of the associated entity as a state. The Constitution, vote or participate in the plebiscite?
however, does not contemplate any state in this jurisdiction other than the Philippine State, Plebiscite is necessary because this involves a creation of LGU. Under the Constitution and
much less does it provide for a transitory status that aims to prepare any part of Philippine LGC of 1991, a plebiscite is an INDISPENSIBLE REQUIREMENT.
territory for independence. The whole 80 barangays of Madako because there would be an adverse effect of the mother
Even the mere concept animating many of the MOA-AD's provisions, therefore, already unit with respect to income, population and territory.
requires for its validity the amendment of constitutional provisions, specifically the following
provisions of Article X: Tan vs COMELEC
SECTION 1. The territorial and political subdivisions of the Republic of the Philippines are the A plebiscite for creating a new province should include the participation of the residents of the
provinces, cities, municipalities, and barangays. There shall be autonomous regions in mother province in order to conform to the constitutional requirement. XXXXXX BP 885,
Muslim Mindanao and the Cordilleras as hereinafter provided. creating the Province of Negros del Norte, is declared unconstitutional because it excluded the
SECTION 15. There shall be created autonomous regions in Muslim Mindanao and in the voters of the mother province from participating in the plebiscite (and it did not comply with
Cordilleras consisting of provinces, cities, municipalities, and geographical areas sharing the area of criterion prescribed in the LGC). XXXX Where the law authorizing the holding of a
common and distinctive historical and cultural heritage, economic and social structures, and plebiscite is unconstitutional, the Court cannot authorize the holding of a new one. XXXX The
other relevant characteristics within the framework of this Constitution and the national fact that the plebiscite which the petition sought to stop had already been held and officials of
sovereignty as well as territorial integrity of the Republic of the Philippines. the new province appointed does not make the petition moot and academic, as the petition
The BJE is a far more powerful entity than the autonomous region recognized in the raises an issue of constitutional dimension.
Constitution Units affected means units/residents of the political entity who stand to be economically
It is not merely an expanded version of the ARMM, the status of its relationship with the dislocated by the separation of a portion thereof have the right to participate in a plebiscite.
national government being fundamentally different from that of the ARMM. Indeed, BJE is a
state in all but name as it meets the criteria of a state laid down in the Montevideo Criteria for Creation & Conversion:
Convention,154 namely, a permanent population, a defined territory, a government, and a 1. Incomec/o Dept. of Finance
capacity to enter into relations with other states. 2. Populationc/o NSO
Even assuming arguendo that the MOA-AD would not necessarily sever any portion of 3. Land Areac/o DENR
Philippine territory, the spirit animating it - which has betrayed itself by its use of the concept
of association - runs counter to the national sovereignty and territorial integrity of the Note: the criteria call for question of facts. Findings of facts by administrative agencies are binding and
Republic. conclusive upon courts unless there is grave abuse of discretion or clear mistake of facts. Hence, findings
The defining concept underlying the relationship between the national government and the of facts by the DOF, NSO, and DENR deserve great respect, if not finality, and also enjoy presumption of
BJE being itself contrary to the present Constitution, it is not surprising that many of the regularity being acts of government agencies. BASIS: experts in their fields.
specific provisions of the MOA-AD on the formation and powers of the BJE are in conflict
with the Constitution and the laws. Unit Specific Criteria:
Article X, Section 18 of the Constitution provides that "[t]he creation of the autonomous region Barangays Population
shall be effective when approved by a majority of the votes cast by the constituent units in a Municipalities Income, Population & Land Area
plebiscite called for the purpose, provided that only provinces, cities, and geographic areas
voting favorably in such plebiscite shall be included in the autonomous region." (Emphasis Component Cities Income, Population OR Land Area
supplied) Highly Urbanized Cities Income & Population
As reflected above, the BJE is more of a state than an autonomous region. But even assuming
Province Income, Population OR Land Area
that it is covered by the term "autonomous region" in the constitutional provision just quoted,
the MOA-AD would still be in conflict with it. Under paragraph 2(c) on TERRITORY in
relation to 2(d) and 2(e), the present geographic area of the ARMM and, in addition, the
municipalities of Lanao del Norte which voted for inclusion in the ARMM during the 2001
!

LGU INCOME POPULATION LAND AREA Section 442. Requisites for Creation.
PROVINCE At least 20M Minimum 250K At least 2,000 sq/km (a) A municipality may be created if it has an average annual income, as certified by the provincial
HIGHLY-URBANIZED CITY At least 50M Minimum 200K At least 100 sq/km treasurer, of at least Two million five hundred thousand pesos (P2,500,000.00) for the last two (2)
CITY At least 100M Minimum 150K At least 100 sq/km consecutive years based on the 1991 constant prices; a population of at least twenty-five thousand
MUNICIPALITY At least 2.5M Minimum 25K At least 50 sq/km (25,000) inhabitants as certified by the National Statistics Office; and a contiguous territory of at least
BARANGAY (outside Metro n/a Minimum 2K n/a fifty (50) square kilometers as certified by the Lands Management Bureau: Provided, That the
Manila) creation thereof shall not reduce the land area, population or income of the original municipality or
BARANGAY (Metro Manila, n/a Minimum 5K n/a municipalities at the time of said creation to less than the minimum requirements prescribed herein.
Highly Urbanized)
(b) The territorial jurisdiction of a newly-created municipality shall be properly identified by metes
*RA 9009 contemplates only of 2 ways of creating a city where it can be applicable: and bounds. The requirement on land area shall not apply where the municipality
- Creating a city out of a municipality (20M is changed to 100M requirement) proposed to be created is composed of one (1) or more islands. The territory need
- Creating a city out of clusters of barangays not be contiguous if it comprises two (2) or more islands.

(c) The average annual income shall include the income accruing to the general fund
Barangay
of the municipality concerned, exclusive of special funds, transfers and non-
Section 385. Manner of Creation. - A barangay may be created, divided, merged, abolished, or
recurring income.
its boundary substantially altered, by law or by an ordinance of the sangguniang panlalawigan
(d) Municipalities existing as of the date of the effectivity of this Code shall continue
or panlungsod, subject to approval by a majority of the votes cast in a plebiscite to be
to exist and operate as such. Existing municipal districts organized pursuant to
conducted by the COMELEC in the local government unit or units directly affected within
presidential issuances or executive orders and which have their respective set of
such period of time as may be determined by the law or ordinance creating said barangay. In
elective municipal officials holding office at the time of the effectivity of this Code
the case of the creation of barangays by the sangguniang panlalawigan, the recommendation
shall henceforth be considered as regular municipalities.
of the sangguniang bayan concerned shall be necessary.
City
Section 386. Requisites for Creation.
Section 449. Manner of Creation. - A city may be created, divided, merged, abolished, or its
(a) A barangay may be created out of a contiguous territory which has a population
boundary substantially altered, only by an Act of Congress, and subject to approval by a
of at least two thousand (2,000) inhabitants as certified by the National Statistics
majority of the votes cast in a plebiscite to be conducted by the COMELEC in the local
Office except in cities and municipalities within Metro Manila and other
government unit or units directly affected. Except as may otherwise be provided in such Act.
metropolitan political subdivisions or in highly urbanized cities where such territory
the plebiscite shall be held within one hundred twenty (120) days from the date of its
shall have a certified population of at least five thousand (5,000) inhabitants:
effectivity.
Provided, That the creation thereof shall not reduce the population of the original
barangay or barangays to less than the minimum requirement prescribed herein.
Section 450. Requisites for Creation.
To enhance the delivery of basic services in the indigenous cultural communities, (a) A municipality or a cluster of barangays may be converted into a component city
barangays may be created in such communities by an Act of Congress, if it has an average annual income, as certified by the Department of Finance, of at
notwithstanding the above requirement. least Twenty million (P20,000,000.00) for the last two (2) consecutive years based on
1991 constant prices, and if it has either of the following requisites:
(b) The territorial jurisdiction of the new barangay shall be properly identified by (i) a contiguous territory of at least one hundred (100) square kilometers,
metes and bounds or by more or less permanent natural boundaries. The territory as certified by the Lands Management Bureau; or
need not be contiguous if it comprises two (2) or more islands. (ii) a population of not less than one hundred fifty thousand (150,000)
inhabitants, as certified by the National Statistics Office:
(c) The governor or city mayor may prepare a consolidation plan for barangays, Provided, That, the creation thereof shall not reduce the land area,
based on the criteria prescribed in this Section, within his territorial jurisdiction. The population, and income of the original unit or units at the time of said
plan shall be submitted to the sangguniang panlalawigan or sangguniang creation to less than the minimum requirements prescribed herein.
panlungsod concerned for appropriate action.
(b) The territorial jurisdiction of a newly-created city shall be properly identified by
In the case of municipalities within the Metropolitan Manila Area and other metes and bounds. The requirement on land area shall not apply where the city
metropolitan political subdivisions, the barangay consolidation plan shall be proposed to be created is composed of one (1) or more islands. The territory need
prepared and approved by the sangguniang bayan concerned. not be contiguous if it comprises two (2) or more islands.

(c) The average annual income shall include the income accruing to the general
Municipality
fund, exclusive of specific funds, transfers, and non-recurring income.
Section 441. Manner of Creation. - A municipality may be created, divided, merged, abolished,
or its boundary substantially altered only by an Act of Congress and subject to the approval by
Section 452. Highly Urbanized Cities.
a majority of the votes cast in a plebiscite to be conducted by the COMELEC in the local
(a) Cities with a minimum population of two hundred thousand (200,000)
government unit or units directly affected. Except as may otherwise be provided in the said
inhabitants as certified by the National Statistics Office, and within the latest annual
Act, the plebiscite shall be held within one hundred twenty (120) days from the date of its
income of at least Fifty Million Pesos (P50,000,000.00) based on 1991 constant prices,
effectivity.
as certified by the city treasurer, shall be classified as highly urbanized cities.
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(b) Cities which do not meet above requirements shall be considered
component cities of the province in which they are geographically located. If a
component city is located within the boundaries of two (2) or more provinces,
such city shall be considered a component of the province of which it used to
be a municipality.
(c) Qualified voters of highly urbanized cities shall remain excluded from
voting for elective provincial officials.
Unless otherwise provided in the Constitution or this Code, qualified voters of
independent component cities shall be governed by their respective charters, as
amended, on the participation of voters in provincial elections.
Qualified voters of cities who acquired the right to vote for elective provincial
officials prior to the classification of said cities as highly-urbanized after the
ratification of the Constitution and before the effectivity of this Code, shall continue
to exercise such right.
Section 453. Duty to Declare Highly Urbanized Status. - It shall be the duty of the President to
declare a city as highly urbanized within thirty (30) days after it shall have met the minimum
requirements prescribed in the immediately preceding section, upon proper application
therefor and ratification in a plebiscite by the qualified voters therein.
RA 9009
Section 1. Sec. 450 of Republic Act No. 7160, otherwise known as the Local Government Code
of 1991, is hereby amended to read as follows:
Sec. 450. Requisites for Creation.
(a) A municipality or a cluster of barangays may be converted into a
component city if it has a locally generated average annual income, as
certified by the Department of Finance, of at least One hundred million
pesos (P100,000,000.00) for the last two (2) consecutive years based on
2000 constant prices, and if it has either of the following requisites:
(i) a contiguous territory of at least one hundred (100) square
kilometers, as certified by the Land Management Bureau; or
(ii) a population of not less than one hundred fifty thousand
(150,000) inhabitants, as certified by the National Statistics
Office.
The creation thereof shall not reduce the land area, population
and income of the original unit or units at the time of said
creation to less than the minimum requirements prescribed
herein.
(b) The territorial jurisdiction of a newly-created city shall be properly
identified by metes and bounds. The requirement on land area shall not
apply where the city proposed to be created is composed of one (1) or
more islands. The territory need not be contiguous if it comprises two (2)
or more islands.
(c) The average annual income shall include the income accruing to the
general fund, exclusive of special funds, transfers, and non-recurring
income.
Province
Section 460. Manner of Creation. - A province may be created, divided, merged, abolished, or
its boundary substantially altered, only by an Act of Congress and subject to approval by a
majority of the votes cast in a plebiscite to be conducted by the COMELEC in the local
government unit or units directly affected. The plebiscite shall be held within one hundred
twenty (120) days from the date of effectivity of said Act, unless otherwise provided therein.
Section 461. Requisites for Creation.
(a) A province may be created if it has an average annual income, as certified by the Department
of Finance, of not less than Twenty million pesos (P20,000,000.00) based on 1991 constant prices
and either of the following requisites:
(i) a contiguous territory of at least two thousand (2,000) square kilometers, as certified by the
Lands Management Bureau; or
(ii) a population of not less than two hundred fifty thousand (250,000) inhabitants as certified by
the National Statistics Office:
Provided, That, the creation thereof shall not reduce the land area, population, and income of the
original unit or units at the time of said creation to less than the minimum
requirements prescribed herein.
(b) The territory need not be contiguous if it comprise two (2) or more islands or is
separated by a chartered city or cities which do not contribute to the income of the
province.
(c) The average annual income shall include the income accruing to the general
fund, exclusive of special funds, trust funds, transfers and non-recurring income.
Based on the verifiable indicators of viability and projected capacity to provide services, to wit:
Income must be sufficient, based on acceptable standards, to provide for all essential
government facilities and services and special functions commensurate with the size of its
population, as expected of the LGU concerned. Average annual income for the last 2
consecutive years based on 1991 constant prices.
*City: based on 2000 constant prices
Population it shall be determined as the total number of inhabitants (not registered voters)
within the territorial jurisdiction of the LGU concerned.
Land Area it must be contiguous, unless it comprises 2 or more islands or is separated by a
LGU independent of the others; properly identified by metes and bounds with technical
descriptions and sufficient to provide for such basic services and facilities to meet the
requirements of its populace.
Common Standards for Compliance of Criteria
1. Land Area
Comply with area requirement unless an island;
Must be contiguous unless:
a. Two or more islands, or
b. Separated by chartered cities or cities which do not contribute to the income of
province [for province and cities] [Sec. 7, LGC]
Navarro vs. Ermita
Par. 2 of Art. 9 of the Rules and Regulations Implementing the LGC 1991, which states that the
land area requirement shall not apply where the proposed province is composed of one (1) or more
islands. Violates the LGC 1991 and therefore null and void.
Nowhere in the LGC is the said provision stated or implied. Under Sec. 461 of LGC, the only
instance when the territorial or land area requirement need not be complied with is when there
is already compliance with the population requirement.
2010 Navarro, reversed in 2011 (April 2012)
SC, thru Nachura, ruled that Congress intended to apply the exemption on land area
requirements enjoyed by municipalities and cities which have islands as territories to the
Province [of Dinagat].
It bears scrupulous notice that from the above cited provisions, with respect to the creation of
barangays, land area is not a requisite indicator of viability. However, with respect to the
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creation of municipalities, component cities, and provinces, the three (3) indicators of
viability and projected capacity to provide services, i.e., income, population, and land
area, are provided for.
But it must be pointed out that when the local government unit to be created consists of
one (1) or more islands, it is exempt from the land area requirement as expressly
provided in Section 442 and Section 450 of the LGC if the local government unit to be
created is a municipality or a component city, respectively. This exemption is absent in
the enumeration of the requisites for the creation of a province under Section 461 of the
LGC, although it is expressly stated under Article 9(2) of the LGC-IRR.
There appears neither rhyme nor reason why this exemption should apply to cities and
municipalities, but not to provinces. In fact, considering the physical configuration of the
Philippine archipelago, there is a greater likelihood that islands or group of islands would
form part of the land area of a newly-created province than in most cities or municipalities. It
is, therefore, logical to infer that the genuine legislative policy decision was expressed in
Section 442 (for municipalities) and Section 450 (for component cities) of the LGC, but was
inadvertently omitted in Section 461 (for provinces). Thus, when the exemption was expressly
provided in Article 9(2) of the LGC-IRR, the inclusion was intended to correct the
congressional oversight in Section 461 of the LGC and to reflect the true legislative intent. It
would, then, be in order for the Court to uphold the validity of Article 9(2) of the LGC-IRR.
This interpretation finds merit when we consider the basic policy considerations underpinning
the principle of local autonomy.
Consistent with the declared policy to provide local government units genuine and
meaningful local autonomy, contiguity and minimum land area requirements for prospective
local government units should be liberally construed in order to achieve the desired results.
The strict interpretation adopted by the February 10, 2010 Decision could prove to be counter-
productive, if not outright absurd, awkward, and impractical. Picture an intended province
that consists of several municipalities and component cities which, in themselves, also consist
of islands. The component cities and municipalities which consist of islands are exempt from
the minimum land area requirement, pursuant to Sections 450 and 442, respectively, of the
LGC. Yet, the province would be made to comply with the minimum land area criterion of
2,000 square kilometers, even if it consists of several islands. This would mean that Congress
has opted to assign a distinctive preference to create a province with contiguous land area over
one composed of islands and negate the greater imperative of development of self-reliant
communities, rural progress, and the delivery of basic services to the constituency. This
preferential option would prove more difficult and burdensome if the 2,000-square-kilometer
territory of a province is scattered because the islands are separated by bodies of water, as
compared to one with a contiguous land mass.
Moreover, such a very restrictive construction could trench on the equal protection clause, as it
actually defeats the purpose of local autonomy and decentralization as enshrined in the
Constitution. Hence, the land area requirement should be read together with territorial
contiguity
Note of J. Carpios Dissent that the majority opinion will allow the creation of a province with
only one (1) unit (say a municipality) instead of various component LGUs.
2. Average annual income
income accruing to the general fund (regular), exclusive of special funds, trust funds, transfers,
and non-recurring income.
Alvarez vs. Guingona
It is automatically and regularly released, and so regular and recurring and they form part
of the gross accretion of funds.
However, in the case of conversion of a municipality into a city or a cluster of barangays to be
formed into a new city, RA 9009 enacted on June 30, 2001 and amending Sec. 450 of the Code,
IRAs are no longer included in the computation of the annual income for purposes of
complying with the income requirement. income refers to locally generated income.
3. Boundary
should be properly identified by metes and bounds (Sec. 7) WHY? for Jurisdiction.
With technical descriptions? See Mariano vs COMELECthe true test is whether or not
the description of boundary will cause territorial confusion. Otherwise, requirement is
substantially complied with.
Mariano vs Comelec
Petitioners have not demonstrated that the delineation of the land area of the proposed
City of Makati (without metes and bounds) will cause confusion as to its boundaries.
Congress has refrained from using the metes and bounds description of land areas of other
LGUs with unsettled boundary disputes.
Petitioners assail sec. 2 of RA 7854 as unconstitutional on the ground that it did not properly
identify the land area or territorial jurisdiction of Makati by metes and bounds, in violation of
Sec. 10 of the 1987 Constitution in relation to Sec. 7 and 450 of the LGC.
The requirement that the territory of newly-created LGUs be identified by metes and bounds is
intended to provide the means by which the area of the LGU may be reasonably ascertained,
i.e., as a tool in the establishment of the LGU. As long as the territorial jurisdiction of the newly
created city may be reasonably ascertained by referring to common boundaries with
neighboring municipalities then, the legislative intent has been sufficiently served. [Note: RA
7854, which converted Makati into a city, did not define the boundaries of the new city by
metes and bounds, because of a territorial dispute between Makati and Taguig, which was best
left for the courts to decide.]
Aquino III vs COMELEC
Requisites for Creation (of Province):
a) Twenty Million Pesos [P 20, 000, 000. 00]
b) and either of the following:
- A contiguous territory of at least two thousand (2,000) square kilometres; OR
- A population of not less than two hundred fifty thousand (250, 000)
inhabitants.
NOTE: Population requirement is not an indispensable requirement, but merely an alternative
addition to the indispensable income requirement.
Procedure in Creation and Conversion
A. Creation:
1. Petition by the prospective units in a form of resolution
2. Comments on the Petition by the Sangunian of the mother unit to be submitted to Congress.
3. Attachment of supporting documents to the Petition consisting of Certificates of DOF, NSO,
and LMB (DENR)
4. Enactment of Law by Congress
5. Plebiscite (after law takes effect) [Art. 9-11, IRR]
B. Conversion from Component City to HUC:
1. Resolution by the interested unit [by SP, duly approved and endorsed by the Mayor] to be
submitted to the Office of President with proofs of compliance with income and population
requirements.
2. Declaration of Conversion by the President
3. Plebiscite
Arts. 9-14 IRR
Art. 9. Provinces.
(b) Procedure for creation
(1) Petition - Interested municipalities or component cities shall submit the
petition, in the form of a resolution, of their respective sanggunians
requesting the creation of a new province to the Congress, and furnish
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copies thereof to the sangguniang panlalawigan of the original
province or provinces.
(2) Comments on petition - The sangguniang panlalawigan of the
original province or provinces shall submit to the Congress its
comments and recommendations on the petition for creation of the
proposed province.
(3) Documents to Support Petition - The following documents shall
be attached to the petition for creation:
(i) Certification by DOF that the average annual income of the
proposed province meets the minimum income requirement
and that its creation will not reduce the income, based on 1991
constant prices, of the original LGU or LGUs to less than the
prescribed minimum;
(ii) Certification by the NSO as to population of the proposed
province and that its creation will not reduce the population of
the original LGUs to less than the prescribed minimum;
(iii) Certification by LMB that the land area of the proposed
province meets the minimum land area requirement and that its
creation will not reduce the land area of the original LGU or
LGUs to less than the prescribed minimum;
(iv) Map of the original LGU or LGUs, indicating the areas to be
created into a province. The map shall be prepared by the
provincial, city, or district engineer and shall clearly indicate the
road network within the proposed province; and
(v) Such other information that the petitioners may deem
relevant for consideration in the petition.
All costs incurred in the production of the required documents
shall be borne by the petitioning LGUs.
(4) Plebiscite
(i) Upon the effectivity of the law creating a province, the Comelec shall
conduct a plebiscite in the LGU or LGUs directly affected within one
hundred twenty (120) days or within the period specified in the law.
(ii) The Comelec shall conduct an intensive information campaign in the
LGUs concerned at least twenty (20) days prior to the plebiscite. For this
purpose, the Comelec may seek the assistance of national and local
government officials, mass media, NGOs, and other interested parties.
Art. 11. Cities.
(b) Procedure for creation
(1) Petition - Interested municipalities or barangays shall submit the
petition, in the form of a resolution, of their respective sanggunians
requesting the creation of a new city to the Congress, and furnish copies
thereof to the sangguniang panlalawigan or sangguniang panlungsod of
the LGUs concerned.
(2) Comments on petition - The sangguniang panlalawigan or
sangguniang panlungsod shall submit to the Congress its comments and
recommendations on the petition for creation of the city.
(3) Documents to support petition - The following documents shall be
attached to the petition for creation:
(i) Certification by DOF that the average annual income of the
proposed city meets the minimum income requirement and that
its creation will not reduce the income based on 1991 constant
prices, of the original LGU or LGUs to less than the prescribed minimum;
(ii) Certification by NSO as to population of the proposed city and that its creation will not reduce
the population of the original LGUs to less than the prescribed minimum;
(iii) Certification by LMB that the land area of the proposed city meets the minimum land area
requirement and that its creation will not reduce the land area of the original LGU or LGUs to less
than the prescribed minimum;
(iv) Map of the original LGU or LGUs, indicating the areas to be created into a city. The map shall be
prepared by the provincial, city, or district engineer as the case may be and shall clearly indicate the
road network within the proposed city;
(v) Certification by LMB that disposable and alienable public lands are available in the area to be
created into a city sufficient to meet its growing population and
the following purposes:
- Government center site of not less than ten thousand
(10,000) square meters which shall include the city
hall site and those of other government buildings;
- Market site of not less than ten thousand (10,000)
square meters, located out of view of the city hall,
schools, plaza, and cemetery and near but not along a
provincial road, railroad station, navigable river, or
sea;
- Plaza or park of not less than ten thousand (10,000)
square meters located preferably in front of the city
hall;
- School site of not less than ten thousand (10,000)
square meters, in well- drained location that conforms
with the requirements prescribed by public school
authorities; and
- Cemetery site of not less than five thousand (5,000)
square meters for every ten thousand (10,000)
population which conforms with the requirements
prescribed by the health authorities;
(vi) Number and nature of existing and commercial
establishments in the territory of the proposed city as certified
by NSO;
(vii) Sources of potable water supply for the inhabitants as
certified by the Local Water Utilities Administration (LWUA) or
the Metropolitan Waterworks and Sewerage System (MWSS), as
the case may be;
(viii) Facilities, plans, and site for sewerage, garbage and waste
disposal as certified by the local engineer; and
(ix) Such other information that the petitioners may deem
relevant for consideration in the petition.
All costs incurred in the production of the required documents
shall be borne by the petitioning LGUs.
(4) Plebiscite
(i) Upon the effectivity of the law creating a city, the Comelec
shall conduct a plebiscite in the LGUs directly affected within
one hundred twenty (120) days or within the period specified in
the law.
(ii) The Comelec shall conduct an intensive information
campaign in the LGUs concerned at least twenty (20) days prior
to the plebiscite. For this purpose, the Comelec may seek the
assistance of national and local government officials, mass
media, NGOs, and other interested parties.
Art. 12. Conversion of a Component City Into a Highly-Urbanized City.
(b) Procedure for conversion
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(1) Resolution - The interested component city shall submit to the
Office of the President a resolution of its sanggunian adopted by a
majority of all its members in a meeting duly called for the purpose,
and approved and endorsed by the city mayor. Said resolution shall
be accompanied by certifications as to income and population.
(2) Declaration of conversion - Within thirty (30) days from receipt
of such resolution, the President shall, after verifying that the
income and population requirements have been met, declare the
component city as highly-urbanized.
(3) Plebiscite - Within one hundred twenty (120) days from the declaration
of the President or as specified in the declaration, the Comelec shall
conduct a plebiscite in the city proposed to be converted. Such plebiscite
shall be preceded by a comprehensive information campaign to be
conducted by the Comelec with the assistance of national and local
government officials, media, NGOs, and other interested parties.
(c) Effect of Conversion - The conversion of a component city into a highly-
urbanized city shall make it independent of the province where it is geographically
located.
Art. 13. Municipalities.
(b) Procedure for creation
(1) Petition - Interested barangays shall submit the petition, in the form of
a resolution, of their respective sanggunians requesting the creation of a
new municipality to the Congress, and furnish copies thereof to the
sangguniang panlalawigan, sangguniang panlungsod, or sangguniang
bayan of the LGUs concerned.
(2) Comments on petition - The sangguniang panlungsod or sangguniang
bayan, together with the sangguniang panlalawigan, shall submit to the
Congress its comments and recommendations on the petition for creation
of the municipality.
(3) Documents to support petition - The following documents shall be
attached to the petition for creation:
(i) Certification by the provincial treasurer, in the case of
municipalities and component cities, and the city treasurer, in
the case of highly-urbanized cities, that the average annual
income of the proposed municipality meets the minimum
income requirement and that its creation will not reduce the
income, based on 1991 constant prices, of the original LGU or
LGUs to less than the prescribed minimum;
(ii) Certification by NSO as to population of the proposed
municipality and that its creation will not reduce the population
of the original LGU or LGUs to less than the prescribed
minimum;
(iii) Certification by the LMB that the land area of the proposed
municipality meets the minimum land area requirement and
that its creation will not reduce the land area of the original
LGU or LGUs to less than the prescribed minimum;
(iv) Map of the original LGU or LGUs, indicating the areas to be
created into a municipality. The map shall be prepared by the
provincial, city, or district engineer as the case may be and shall
clearly indicate the road network within the proposed city;
(v) Certification by LMB that disposable and alienable public
lands are available in the area to be created into a municipality
sufficient to meet its growing population and the following purposes:
- Government center site of not less than five
thousand (5,000) square meters which shall
include the municipal hall site and those of other
government buildings;
- Market site of not less than five thousand (5,000)
square meters, located out of view of the
municipal hall, schools, plaza, and cemetery and
near but not along a provincial road, railroad
station, navigable river, or sea;
- Plaza or park of not less than five thousand (5,000)
square meters located preferably in front of the
municipal hall;
- School site of not less than five thousand (5,000)
square meters, in well-drained location that conforms
with the requirements prescribed by public school
authorities; and
- Cemetery site of not less than five thousand (5,000)
square meters for every ten thousand (10,000)
population which conforms with the requirements
prescribed by health authorities.
(vi) Number and nature of existing industrial and commercial
establishments in the territory of the proposed municipality as
certified by NSO;
(vii) Sources of potable water supply for the inhabitants as
certified by LWUA or MWSS, as the case may be;
(viii) Facilities, plans, and site for sewerage, garbage and waste
disposal as certified by the local engineer; and
(ix) Such other information that the petitioners may deem
relevant for consideration in the petition.
All costs incurred in the production of the required documents
shall be borne by the petitioning LGUs.
(4) Plebiscite
(i) Upon the effectivity of the law creating a municipality, the
Comelec shall conduct a plebiscite in the LGUs directly affected
within one hundred twenty (120) days or within the period
specified in the law.
(ii) The Comelec shall conduct an intensive information
campaign in the LGUs concerned at least twenty (20) days prior
to the plebiscite. For this purpose, the Comelec may seek the
assistance of national and local government officials, mass
media, NGOS, and other interested parties.
Art. 14. Barangays.
(a) Creation of barangays by the sangguniang panlalawigan shall require prior
recommendation of the sangguniang bayan.
(b) New barangays in the municipalities within MMA shall be created only by Act of
Congress, subject to the limitations and requirements prescribed in this Article.
(c) Notwithstanding the population requirement, a barangay may be created in the
indigenous cultural communities by Act of Congress upon recommendation of the
LGU or LGUs where the cultural community is located.
(e) Procedure for creation
(1) Petition - A written petition of a majority of the registered voters
residing in the area sought to be created or resolutions of the sangguniang
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barangays desiring to be merged, as the case may be, shall be
presented to the sangguniang panlalawigan, upon recommendation
of the sangguniang bayan concerned, or to the sangguniang
panlungsod, for appropriate action.
In the case of municipalities within MMA, a similar petition or
resolution shall be presented to the Congress, upon
recommendation of the sangguniang bayan concerned.
(2) Documents to support petition - In addition to the petition or
resolution, the following shall be submitted:
(i) Certification by NSO as to the population of the proposed
barangay and that its creation will not reduce the population of
the original barangay or barangays to less than the prescribed
minimum.
(ii) Map of the original barangay or barangays indicating the
areas to be created into a new barangay and technical
description certified by LMB or city or municipal assessor, as
the case may be.
All costs incurred in the production of the required documents
shall be borne by the petitioning LGUs.
(3) Comments on petition - The presiding officer of the sangguniang
bayan shall require the sangguniang barangay of the original barangay or
barangays to submit their comments on the proposed creation within
twenty (20) days after receipt of said petition or resolution which shall
serve as basis for recommending appropriate action thereon to the
sangguniang panlalawigan.
(4) Action on petition - The sangguniang panlalawigan or sangguniang
panlungsod shall, within fifteen (15) days from submission of
the petition and other required supporting documents, take action
granting or denying the petition.
(i) The ordinance granting the petition creating a new barangay
shall be approved by two- thirds (2/3) of all the members of the
sangguniang panlalawigan or sangguniang panlungsod.
The ordinance shall properly identify by metes and bounds or
by natural boundaries, the territorial jurisdiction of the new
barangay. The ordinance shall likewise fix the date of the
plebiscite to be conducted by the Comelec in the area or areas
directly affected to ratify the creation of the new barangay.
(ii) A denial shall be in the form of a resolution stating clearly
the facts and reasons for such denial.
(5) Submission of ordinance to the Comelec - Within thirty (30) days
before the plebiscite, the secretary to the sangguniang panlalawigan or
sangguniang panlungsod shall furnish the Comelec with a signed official
copy of the ordinance creating the barangay.
(6) Conduct of information campaign - The Comelec shall conduct an
intensive information campaign in the LGUs concerned at least ten (10)
days prior to the plebiscite. For this purpose, the Comelec may seek the
assistance of national and local government officials, mass media, NGOs,
and other interested parties.
(7) Submission of plebiscite results - At least seven (7) days after the
conduct of the plebiscite, the city or municipality concerned shall submit
the Certificates of Canvass of Votes Cast, Statement of Affirmative and
Negative Votes, Abstentions Cast in every voting center as well as the
provincial or city ordinance creating the barangay to the Comelec and DILG central office for
inclusion in the Official Masterlist of Barangays.
C. Division and Merger:
1. Same requirements as Creation and Conversion
2. Conditions and Limitations: should not reduce the
(1) land area, population, and income to less than the minimum requirements under the Code; and
(2) income classification of the original LGU affected. [Sec. 8, LGC]
Section 8. Division and Merger. - Division and merger of existing local government units shall
comply with the same requirements herein prescribed for their creation: Provided, however,
That such division shall not reduce the income, population, or land area of the local government
unit or units concerned to less than the minimum requirements prescribed in this Code:
Provided, further, That the income classification of the original local government unit or units
shall not fall below its current classification prior to such division.
The income classification of local government units shall be updated within six (6) months from the
effectivity of this Code to reflect the changes in their financial position resulting from the increased
revenues as provided herein.
Merger of LGUs, political subdivisions and the like is a legislative function. There is a need of
a law enacted by Congress.
Should a law be pass for a merger of ADMINISTRATIVE REGIONS? For the purpose of
allowing a efficiency and economy in the delivery of services?
- You dont need a law. Executive function. Only the President has the power to do that
because merger of administrative regions is for administrative purposes.
Substantial Alteration of Boundaries [Requirements]
Same as creation and conversion, except that the criteria on income and population are not
factors to consider.
But the alteration of the boundaries should not also reduce the minimum requirements on land
area.
Section 6. Authority to Create Local Government Units. - A local government unit may be created,
divided, merged, abolished, or its boundaries substantially altered either by law enacted by
Congress in the case of a province, city, municipality, or any other political subdivision, or by
ordinance passed by the sangguniang panlalawigan or sangguniang panlungsod concerned in the
case of a barangay located within its territorial jurisdiction, subject to such limitations and
requirements prescribed in this Code.
Section 10. Plebiscite Requirement. - No creation, division, merger, abolition, or substantial
alteration of boundaries of local government units shall take effect unless approved by a majority of
the votes cast in a plebiscite called for the purpose in the political unit or units directly affected.
Said plebiscite shall be conducted by the Commission on Elections (COMELEC) within one
hundred twenty (120) days from the date of effectivity of the law or ordinance effecting such action,
unless said law or ordinance fixes another date.
Abolition
Section 9. Abolition of Local Government Units. - A local government unit may be abolished when
its income, population, or land area has been irreversibly reduced to less than the minimum
standards prescribed for its creation under Book III of this Code, as certified by the national
agencies mentioned in Section 7 hereof to Congress or to the sangguniang concerned, as the case
may be.
The law or ordinance abolishing a local government unit shall specify the province, city,
municipality, or barangay with which the local government unit sought to be abolished will be
incorporated or merged.
!
Ground: When its income, population, or land area has been irreversibly reduced to less
than the minimum standards as certified by the national agencies concerned. [Sec. 9,
LGC]
Note: Irreversible reduction to less than the minimum standards only offers a ground for
abolition. Hence, a further act (law or ordinance) is still required to effect abolition. [DILG
Opinion NO. 17 S. 2006]
Sarangani v. COMELEC
Under the LGC of 1991, the abolition of a local govt. unit may be done by Congress in
the case of a province, city, municipality, or any other political subdivision. In the case of a
barangay, except in Metropolitan Manila area and in cultural communities, it may be done by
the Sangguniang Panlalawigan or Sangguniang Panglungsod concerned subject to the
mandatory requirement of a plebiscite conducted for the purpose in the political units affected.
[Sec. 9, RA 7160] x x x The law or ordinance abolishing an LGU shall specify the province, city,
municipality, or barangay with which the LGU sought to be abolished will be incorporated or
merged.
[Sec. 10, Ibid] Plebiscite Requirement: No creation, division, merger, abolition, or substantial
alteration of boundaries of local government units shall take effect unless approved by a
majority of the votes cast in a plebiscite called for the purpose in the political unit or units
directly affected. Said plebiscite shall be conducted by the COMELEC within 120 days from
the date of effectivity of the law or ordinance affecting such action unless such law or
ordinance fixes another date.
Autonomous Regions
Manner of Creationlaw and plebiscite
Dual Purpose of Plebiscite:
Determine will of people whether to create AR;
Determine which LGU shall form part of AR. (only those with majority votes, provided more
than one) [Abbas and Ordillo Cases]
ABBAS VS COMELEC
As provided in the Constitution, the creation of the Autonomous region in Muslim Mindanao
is made effective upon the approval "by majority of the votes cast by the constituent units in a
plebiscite called for the purpose" [Art. X, sec. 18]. The question has been raised as to what this
majority means. Does it refer to a majority of the total votes cast in the plebiscite in all the
constituent units, or a majority in each of the constituent units, or both?
We need not go beyond the Constitution to resolve this question.
If the framers of the Constitution intended to require approval by a majority of all the votes
cast in the plebiscite they would have so indicated. Thus, in Article XVIII, section 27, it is
provided that "[t]his Constitution shall take effect immediately upon its ratification by a
majority of the votes cast in a plebiscite held for the purpose ... Comparing this with the
provision on the creation of the autonomous region, which reads:
The creation of the autonomous region shall be effective when approved by majority of the
votes cast by the constituent units in a plebiscite called for the purpose, provided that only
provinces, cities and geographic areas voting favorably in such plebiscite shall be included in
the autonomous region. [Art. X, sec, 18, para, 2].
it will readily be seen that the creation of the autonomous region is made to depend, not on the
total majority vote in the plebiscite, but on the will of the majority in each of the constituent
units and the proviso underscores this. for if the intention of the framers of the Constitution
was to get the majority of the totality of the votes cast, they could have simply adopted the
same phraseology as that used for the ratification of the Constitution, i.e. "the creation of the
autonomous region shall be effective when approved by a majority of the votes cast in a
plebiscite called for the purpose."
It is thus clear that what is required by the Constitution is a simple majority of votes approving
the organic Act in individual constituent units and not a double majority of the votes in all
constituent units put together, as well as in the individual constituent units.
Thus, under the Constitution and R.A. No 6734, the creation of the autonomous region
shall take effect only when approved by a majority of the votes cast by the constituent
units in a plebiscite, and only those provinces and cities where a majority vote in favor
of the Organic Act shall be included in the autonomous region. The provinces and cities
wherein such a majority is not attained shall not be included in the autonomous region.
It may be that even if an autonomous region is created, not all of the thirteen (13)
provinces and nine (9) cities mentioned in Article II, section 1 (2) of R.A. No. 6734 shall
be included therein. The single plebiscite contemplated by the Constitution and R.A.
No. 6734 will therefore be determinative of (1) whether there shall be an autonomous
region in Muslim Mindanao and (2) which provinces and cities, among those
enumerated in R.A. No. 6734, shall compromise it.
ORDILLO VS COMELEC
There must be at least 2 LGUs because the consti says units, so in the case of Cordillera, its
not duly created because only 1 province got an affirmative plebiscite, which is only the Ifugao
province, and the rest are negative. So, no Cordillera Autonomous Region, but simply
Administrative Region of the Cordilleras. No local government powers.
The sole province of Ifugao cannot validly constitute the Cordillera Autonomous Region.
The keyword in Article X, Section 15 of the 1987 Constitution provinces, cities, municipalities
and geographical areas connote that region is to be made up of more than one constituent
unit. The term region used in its ordinary sense means two or more provinces. Rule in
statutory construction must be applied here: the language of the Constitution, as much as
possible should be understood in the sense it has in common use and thatthe words used
in constitutional provisions are to be given their ordinary meaning except where technical
terms are employed.
The entirety of Republic Act No. 6766 creating the Cordillera Autonomous Region is infused
with provisions which rule against the sole province of Ifugao constituting the Region.- It can
be gleaned that Congress never intended that a single province may constitute the
autonomous region.- If this were so, we would be faced with the absurd situation of having
two sets of officials: a set of provincial officials and another set of regional officials exercising
their executive and legislative powers over exactly the same small area. (Ifugao is one of the
smallest provinces in the Philippines, population-wise) (Art III sec 1 and 2; Art V, sec 1 and 4;
Art XII sec 10 of RA 6766)- Allotment of Ten Million Pesos to Regional Government for its
initial organizational requirements can not be construed as funding only a lone and small
province [Art XXI sec 13(B)(c)]- Certain provisions of the Act call for officials coming from
different provinces and cities in the Region, as well as tribal courts and the
development of a common regional language. (Art V sec 16; Art VI sec 3; Art VII; Art XV
RA 6766)- Thus, to contemplate the situation envisioned by the COMELEC would not only
violate the letter and intent of the Constitution and Republic Act No. 6766 but would be
impractical and illogical.
Counting of the plebiscite votes:
REGULAR LGUs AUTONOMOUS REGIONS
Majority of TOTAL votes of Majority of the votes in EACH UNIT
ALL UNITS
As a general rule, the autonomous regions will be governed by their organic acts. [This is different
because LGUs will have to be governed primarily by the LGC and secondarily by their charter
insofar as the provisions are not inconsistent with the Code.]
Constitutional Provisions:
Section 15. There shall be created autonomous regions in Muslim Mindanao and in the
Cordilleras consisting of provinces, cities, municipalities, and geographical areas sharing
common and distinctive historical and cultural heritage, economic and social structures, and
other relevant characteristics within the framework of this Constitution and the national
sovereignty as well as territorial integrity of the Republic of the Philippines.
!
Section 18.The Congress shall enact an organic act for each autonomous regionwith
the assistance and participation of the regional consultative commission composed of
representatives appointed by the President from a list of nominees from multi-
sectoral bodies. The organic act shall define the basic structure of government for the
region consisting of the executive department and legislative assembly, both of which
shall be elective and representative of the constituent political units. The organic acts
shall likewise provide for special courts with personal, family, and property law
jurisdiction consistent with the provisions of this Constitution and national laws.
[Note: To this extent, decentralization of power is possible or true, meaning, insofar as
the autonomous regions are concerned, theyre made to be, to some extent, an abdication of
political power]
The creation of the autonomous region shall be effective when approved by majority of the
votes cast by the constituent units in a plebiscite called for the purpose, provided that only
provinces, cities, and geographic areas voting favorably in such plebiscite shall be included in
the autonomous region.
Section 19. The first Congress elected under this Constitution shall, within eighteen months
from the time of organization of both Houses, pass the organic acts for the autonomous
regions in Muslim Mindanao and the Cordilleras.
Elections
Article 9, Sec. 2 par. 2 of the Constitution
- Sec. 2. The Commission on Elections shall exercise the following powers and functions:
(2) Exercise exclusive original jurisdiction over all contests relating to the elections, returns,
and qualifications of all elective regional, provincial, and city officials, and appellate
jurisdiction over all contests involving elective municipal officials decided by trial courts of
general jurisdiction, or involving elective barangay officials decided by trial courts of limited
jurisdiction.
Decisions, final orders, or rulings of the Commission on election contests involving elective
municipal and barangay offices shall be final, executory, and not appealable.
What do you mean by Regional Elections? It should mean the Autonomous Regions and
COMELEC has exclusive and original jurisdiction.
Kida vs Senate - The Constitution mandates the synchronization of national and local elections.
While the Constitution does not expressly instruct Congress to synchronize the national and local
elections, the intention can be inferred from the provisions of the Transitory Provisions (Article
XVIII) of the Constitution stating that the first regular elections for the President and Vice-President
under this Constitution shall be held on the second Monday of May, 1992.
The framers of the Constitution could not have expressed their objective more clearly there
was to be a single election in 1992 for all elective officials from the President down to the
municipal officials. Significantly, the framers were even willing to temporarily lengthen or
shorten the terms of elective officials in order to meet this objective, highlighting the
importance of this constitutional mandate.
We came to the same conclusion in Osmea v. Commission on Elections, where we unequivocally
stated that the Constitution has mandated synchronized national and local elections." Despite
the length and verbosity of their motions, the petitioners have failed to convince us to deviate
from this established ruling.
The ARMM elections were not expressly mentioned in the Transitory Provisions of the
Constitution on synchronization cannot be interpreted to mean that the ARMM elections are
not covered by the constitutional mandate of synchronization. We have to consider that the
ARMM, as we now know it, had not yet been officially organized at the time the Constitution
was enacted and ratified by the people. Keeping in mind that a constitution is not intended to
provide merely for the exigencies of a few years but is to endure through generations for as
long as it remains unaltered by the people as ultimate sovereign, a constitution should be
construed in the light of what actually is a continuing instrument to govern not only the
present but also the unfolding events of the indefinite future. Although the principles
embodied in a constitution remain fixed and unchanged from the time of its adoption, a
constitution must be construed as a dynamic process intended to stand for a great length
of time, to be progressive and not static.
To reiterate, Article X of the Constitution, entitled Local Government, clearly shows the
intention of the Constitution to classify autonomous regions, such as the ARMM, as local
governments. The Constitution mentions only the national government and the local
governments, and does not make a distinction between the local government and the
regional government, is particularly revealing, betraying as it does the intention of the
framers of the Constitution to consider the autonomous regions not as separate forms of
government, but as political units which, while having more powers and attributes than other
local government units, still remain under the category of local governments. Since
autonomous regions are classified as local governments, it follows that elections held in
autonomous regions are also considered as local elections.
RA No. 10153 is in reality an interim measure, enacted to respond to the adjustment that
synchronization requires. Given the context, we have to judge RA No. 10153 by the standard of
reasonableness in responding to the challenges brought about by synchronizing the ARMM
elections with the national and local elections. In other words, given the plain
unconstitutionality of providing for a holdover and the unavailability of constitutional
possibilities for lengthening or shortening the term of the elected ARMM officials, is the
choice of the Presidents power to appoint for a fixed and specific period as an interim
measure, and as allowed under Section 16, Article VII of the Constitution an
unconstitutional or unreasonable choice for Congress to make?
We admit that synchronization will temporarily disrupt the election process in a local
community, the ARMM, as well as the communitys choice of leaders. However, we have to
keep in mind that the adoption of this measure is a matter of necessity in order to comply with
a mandate that the Constitution itself has set out for us. Moreover, the implementation of the
provisions of RA No. 10153 as an interim measure is comparable to the interim measures
traditionally practiced when, for instance, the President appoints officials holding elective
offices upon the creation of new local government units.
In the course of synchronizing the ARMM elections with the national and local elections,
Congress had to grant the President the power to appoint OICs in the ARMM, in light of the
fact that: (a) holdover by the incumbent ARMM elective officials is legally impermissible; and
(b) Congress cannot call for special elections and shorten the terms of elective local officials for
less than three years.
Unlike local officials, as the Constitution does not prescribe a term limit for barangay
and Sangguniang Kabataan officials, there is no legal proscription which prevents these specific
government officials from continuing in a holdover capacity should some exigency require the
postponement of barangay or Sangguniang Kabataan elections. Clearly, these fears have neither
legal nor factual basis to stand on
Beginning of Corporate Existence
Section 14. Beginning of Corporate Existence. - When a new local government unit is created, its
corporate existence shall commence upon the election and qualification of its chief executive and a
majority of the members of its sanggunian, unless some other time is fixed therefor by the law or
ordinance creating it.
1) As fixed by the law or ordinance (usually effectivity of law) creating the lgu, or
2) Election and Qualifications of LCE and majority of Sanggunian members (when not fixed by law
or ordinance or when it is silent)
- Election refers to having been proclaimed as winners in the election
- Qualifications refers to the oath-taking that qualifies the public official
When do we call it a LGU? When should it start functioning its corporate powers?
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Upon election and qualification. It means the oath-taking.
And a MAJORITY of the member of its sanggunian QUORUM = its the only way the
sanggunian can transact into business.
MEJIA VS BALOLONG NO LONGER CONTROLLING
Pelaez vs Auditor General
When RA 2370 became effective, barrios may "not be created or their boundaries altered
nor their names changed" except by Act of Congress or of the corresponding provincial
board "upon petition of a majority of the voters in the areas affected" and the
"recommendation of the council of the municipality or municipalities in which the proposed
barrio is situated." This statutory denial of the presidential authority to create a new barrio
implies a negation of the bigger power to create municipalities, each of which consists of
several barrios.
The power to fix such common boundary, in order to avoid or settle conflicts of jurisdiction
between adjoining municipalities, may partake of an administrative nature involving, as it
does, the adoption of means and ways to carry into effect the law creating said municipalities
the authority to create municipal corporations is essentially legislative in nature. In the
language of other courts, it is "strictly a legislative function" or "solely and exclusively the
exercise of legislative power".
Under RA 2370, barrios may not be created or their boundaries altered nor their names be
changed except by act of congress or of the corresponding provincial board upon petition of a
majority of the voters in the areas affected and the recommendation of the council of the
municipality or municipalities in which the proposed barrio is situated. The SC further said
that the authority to create municipal corporation is legislative in nature.
VI. Power Relations With National Government, Supreme Court, President And Congress; Inter-
Governmental Relations, And Hierarchal Relations Among Local Government Units
A. LGUs and National Government in General:
LGUs are agents of the State insofar as the exercise by the LGUs of its governmental
functions and therefore, as agents of the State, LGUs cannot be superior to the principal.
If the LGU in a particular controversy is not involved in a governmental or public function,
dont look at the LGU as agent of the state, but as the representative of its inhabitants.
Pimentel Jr. vs Exec. Sec. GR NO. 196770, July 17, 2012
The Constitution declares it a policy of the State to ensure the autonomy of local governments
14 and even devotes a full article on the subject of local governance 15 which includes the
following pertinent provisions:
Section 3.The Congress shall enact a local government code which shall provide for
a more responsive and accountable local government structure instituted through a
system of decentralization with effective mechanisms of recall, initiative, and
referendum, allocate among the different local government units their powers,
responsibilities, and resources, and provide for the qualifications, election,
appointment and removal, term, salaries, powers and functions and duties of local
officials, and all other matters relating to the organization and operation of the local
units.
xxx xxx xxx
Section 14.The President shall provide for regional development councils or other
similar bodies composed of local government officials, regional heads of
departments and other government offices, and representatives from non-
governmental organizations within the regions for purposes of administrative
decentralization to strengthen the autonomy of the units therein and to accelerate
the economic and social growth and development of the units in the region.
(Underscoring supplied)
In order to fully secure to the LGUs the genuine and meaningful autonomy that would
develop them into self-reliant communities and effective partners in the attainment of
national goals, 16 Section 17 of the Local Government Code vested upon the LGUs the
duties and functions pertaining to the delivery of basic services and facilities, as follows:
SECTION 17.Basic Services and Facilities.
(a)Local government units shall endeavor to be self-reliant and shall continue exercising the powers
and discharging the duties and functions currently vested upon them. They shall also discharge the
functions and responsibilities of national agencies and offices devolved to them pursuant to this
Code. Local government units shall likewise exercise such other powers and discharge such other
functions and responsibilities as are necessary, appropriate, or incidental to efficient and effective
provision of the basic services and facilities enumerated herein.
(b)Such basic services and facilities include, but are not limited to, . . . .
While the aforementioned provision charges the LGUs to take on the functions and
responsibilities that have already been devolved upon them from the national
agencies on the aspect of providing for basic services and facilities in their respective
jurisdictions, paragraph (c) of the same provision provides a categorical exception of
cases involving nationally-funded projects, facilities, programs and services, thus:
DTAHSI
(c)Notwithstanding the provisions of subsection (b) hereof, public works and
infrastructure projects and other facilities, programs and services funded by the
National Government under the annual General Appropriations Act, other special
laws, pertinent executive orders, and those wholly or partially funded from foreign
sources, are not covered under this Section, except in those cases where the local
government unit concerned is duly designated as the implementing agency for such
projects, facilities, programs and services. (Underscoring supplied)
The essence of this express reservation of power by the national government is that, unless an
LGU is particularly designated as the implementing agency, it has no power over a program
for which funding has been provided by the national government under the annual general
appropriations act, even if the program involves the delivery of basic services within the
jurisdiction of the LGU.
Under the Philippine concept of local autonomy, the national government has not completely
relinquished all its powers over local governments, including autonomous regions. Only
administrative powers over local affairs are delegated to political subdivisions. The purpose of
the delegation is to make governance more directly responsive and effective at the local levels.
In turn, economic, political and social development at the smaller political units are expected
to propel social and economic growth and development. But to enable the country to develop
as a whole, the programs and policies effected locally must be integrated and coordinated
towards a common national goal. Thus, policy-setting for the entire country still lies in the
President and Congress.
Indeed, a complete relinquishment of central government powers on the matter of providing
basic facilities and services cannot be implied as the Local Government Code itself weighs
against it. The national government is, thus, not precluded from taking a direct hand in the
formulation and implementation of national development programs especially where it is
implemented locally in coordination with the LGUs concerned.
MAGTAJAS VS PRYCE PROPERTIES - It is not competent for the Sangguniang Panlungsod of
CDO City to enact Ordinance 3353 (prohibiting the use of buildings for the operation of casinos),
and Ordinance 3375-93, (prohibiting the operation of casinos) since these are contrary to PD 1869
which authorizes casino gambling.
The rationale of the requirement that the ordinances should not contravene a statute is
obvious. Municipal governments are only agents of the national government. Local councils
exercise only delegated legislative powers conferred on them by Congress as the national
lawmaking body. The delegate cannot be superior to the principal or exercise powers higher
than those of the latter. It is a heresy to suggest that the local government units can undo the
!
acts of Congress, from which they have derived their power in the first place, and negate
by mere ordinance the mandate of the statute.
This basic relationship between the national legislature and the local government units
has not been enfeebled by the new provisions in the Constitution strengthening the
policy of local autonomy. Without meaning to detract from that policy, we here confirm
that Congress retains control of the local government units although in significantly
reduced degree now than under our previous Constitutions. The power to create still
includes the power to destroy. The power to grant still includes the power to withhold
or recall. True, there are certain notable innovations in the Constitution, like the direct
conferment on the local government units of the power to tax, which cannot now be
withdrawn by mere statute. By and large, however, the national legislature is still the principal
of the local government units, which cannot defy its will or modify or violate it.
We hold that the power of PAGCOR to centralize and regulate all games of chance, including
casinos on land and sea within the territorial jurisdiction of the Philippines, remains
unimpaired. P.D. 1869 has not been modified by the Local Government Code, which
empowers the local government units to prevent or suppress only those forms of gambling
prohibited by law.
Casino gambling is authorized by P.D. 1869. This decree has the status of a statute that cannot
be amended or nullified by a mere ordinance. Hence, it was not competent for the
Sangguniang Panlungsod of Cagayan de Oro City to enact Ordinance No. 3353 prohibiting the
use of buildings for the operation of a casino and Ordinance No. 3375-93 prohibiting the
operation of casinos. For all their praiseworthy motives, these ordinances are contrary to P.D.
1869 and the public policy announced therein and are therefore ultra vires and void.
B. LGUs and the Supreme Court:
LGUs acts are subject to judicial review
Ordinance maybe declared void by the court
Minimum appellate jurisdiction of SC means that Congress cannot deprive the SC the right to
review in the ff. cases enumerated in Sec. 4(2). E.g. constitutionality of ordinances.
Sec. 1 Art. 8 consti
The judicial power shall be vested in one Supreme Court and in such lower courts as may be
established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine whether
or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction
on the part of any branch or instrumentality of the Government.
Sec. 4(2) Art. 8 consti SCs minimum appellate jurisdiction in:
All cases involving the constitutionality of a treaty, international or executive agreement, or
law, which shall be heard by the Supreme Court en banc, and all other cases which under the
Rules of Court are required to be heard en banc, including those involving the
constitutionality, application, or operation of presidential decrees, proclamations, orders,
instructions, ordinances, and other regulations, shall be decided with the concurrence of a
majority of the Members who actually took part in the deliberations on the issues in the case
and voted thereon.
C. LGUs and the President:
President exercises general supervision, thus the President cannot exercise control over LGU
General Supervision essentially means that the president shall ensure that laws are
faithfully executed and that LGUs acts are within the scope of their prescribed powers
and functions.
"Control" has been defined as the power of an officer to alter or modify or nullify or set aside
what a subordinate officer had done in the performance of his duties and the ability to
substitute the judgment of the subordinate with his own. (Ability lang, not necessarily that the
president will substitute the judgment. As long as he has that capacity, he may not exercise it.)
Secs. 4, 16 Art. 10 consti
Section 4.The President of the Philippines shall exercise general supervision over
local governments.Provinces with respect to component cities and municipalities,
and cities and municipalities with respect to component barangays, shall ensure
that the acts of their component units are within the scope of their prescribed
powers and functions.
Section 16.The President shall exercise general supervision over autonomous regions to
ensure that laws are faithfully executed.
Section 25. National Supervision over Local Government Units.
(a) Consistent with the basic policy on local autonomy, the President shall exercise general
supervision over local government units to ensure that their acts are within the scope of their
prescribed powers and functions.
The President shall exercise supervisory authority directly over provinces, highly urbanized
cities, and independent component cities; through the province with respect to component
cities and municipalities; and through the city and municipality with respect to barangays.
(b) National agencies and offices with project implementation functions shall coordinate with
one another and with the local government units concerned in the discharge of these functions.
They shall ensure the participation of local government units both in the planning and
implementation of said national projects.
(c) The President may, upon request of the local government unit concerned, direct the
appropriate national agency to provide financial, technical, or other forms of assistance to the
local government unit. Such assistance shall be extended at no extra cost to the local
government unit concerned.
(d) National agencies and offices including government-owned or controlled corporations
with field units or branches in a province, city, or municipality shall furnish the local chief
executive concerned, for his information and guidance, monthly reports including duly
certified budgetary allocations and expenditures.
Sec. 4 Art. 10 of the Constitution and Sec. 25 of the LGC recognize two levels of
supervision that the president exercises: Direct and Indirect.
- President has direct supervision over Provinces, Highly-Urbanized Cities, and
Independent Component Cities; and
- President has indirect supervision over component cities and municipalities
(through the Province) and barangays (through the Municipality or City)
These 2 levels can be illustrated in filing administrative complaints against erring local
elective officials:
- Section 61. Form and Filing of Administrative Complaints. - A verified complaint
against any erring local elective official shall be prepared as follows:
> A complaint against any elective official of a province, a highly urbanized
city, an independent component city or component city shall be filed
before the Office of the President;[direct supervision]
> A complaint against any elective official of a municipality shall be filed
before the sangguniang panlalawigan whose decision maybe appealed to
the Office of the President; and[indirect supervision]
> A complaint against any elective barangay official shall be filed before the
sangguniang panlungsod or sangguniang bayan concerned whose
decision shall be final and executory.
Summary attestations of direct supervision over provinces, highly-urbanizes cities
(HUC), and ICC:
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- Section 63. Preventive Suspension.
(a) Preventive suspension may be imposed:
By the President, if the respondent is an elective official of
a province, a highly urbanized or an independent
component city;
- Section 455. Chief Executive; Powers, Duties and Compensation.
Furnish copies of executive orders issued by him, to the provincial
governor in the case of component city mayors, to the Office of the
President in the case of highly-urbanized city mayors and to their
respective metropolitan council chairmen in the case of mayors of cities in
the Metropolitan Manila Area and other metropolitan political
subdivisions, within seventy-two (72) hours after their issuances.
- Section 465. The Chief Executive: Powers, Duties, Functions, and Compensation of
Provincial Governor.
Furnish copies of executive orders issued by him to the Office of the President
within seventy-two (72) hours after their issuance;
Ganzon vs CA
We come to the core question: Whether or not the Secretary of Local Government, as the
President's alter ego, can suspend and/or remove local officials.
SC said YES, but note that this was the ruling before where the president still has the power to
remove local officials under the previous LGC. However, under Sec. 60 of the present LGC, the
president can no longer remove local officials. Such power is already lodged to the regular
courts.
The petitioners are under the impression that the Constitution has left the President mere
supervisory powers, which supposedly excludes the power of investigation, and denied her
control, which allegedly embraces disciplinary authority. It is a mistaken impression because
legally, "supervision" is not incompatible with disciplinary authority as this Court has held,
thus:
xxx xxx xxx It is true that in the case of Mondano vs. Silvosa, 51 Off. Gaz., No. 6 p.
2884, this Court had occasion to discuss the scope and extent of the power of
supervision by the President over local government officials in contrast to the power
of control given to him over executive officials of our government wherein it was
emphasized that the two terms, control and supervision, are two different things
which differ one from the other in meaning and extent. Thus in that case the Court
has made the following digression: "In administration law supervision means
overseeing or the power or authority of an officer to see that subordinate officers
perform their duties. If the latter fail or neglect to fulfill them the former may take
such action or step as prescribed by law to make them perform their duties. Control,
on the other hand, means the power of an officer to alter or modify or nullify of set
aside what a subordinate officer had done in the performance of his duties and to
substitute the judgment of the former for that of the latter." But from this
pronouncement it cannot be reasonably inferred that the power of supervision of the
President over local government officials does not include the power of
investigation when in his opinion the good of the public service so requires, as
postulated in Section 64(c) of the Revised Administrative Code. ...xxx xxx xxx
As we said, "supervision" and "removal" are not incompatible terms and one may stand with
the other notwithstanding the stronger expression of local autonomy.
Drilon vs Lim
Where the SOJ reviews, pursuant to law, a tax measure enacted by a lgu to determine if the
officials performed their functions in accordance with law, i.e. with the prescribed procedure
for the enactment of tax ordinances and the grant of powers under the LGC, the same is an act
of mere supervision, not control.
Section 187 authorizes the Secretary of Justice to review only the constitutionality or
legality of the tax ordinance and, if warranted, to revoke it on either or both of these
grounds. When he alters or modifies or sets aside a tax ordinance, he is not also permitted
to substitute his own judgment for the judgment of the local government that enacted the
measure. Secretary Drilon did set aside the Manila Revenue Code, but he did not replace it
with his own version of what the Code should be. He did not pronounce the ordinance
unwise or unreasonable as a basis for its annulment. He did not say that in his judgment it
was a bad law. What he found only was that it was illegal. All he did in reviewing the said
measure was determine if the petitioners were performing their functions in accordance
with law, that is, with the prescribed procedure for the enactment of tax ordinances and
the grant of powers to the city government under the Local Government Code. As we see it,
that was an act not of control but of mere supervision.
An officer in control lays down the rules in the doing of an act. If they are not followed, he
may, in his discretion, order the act undone or re-done by his subordinate or he may even
decide to do it himself. Supervision does not cover such authority. The supervisor or
superintendent merely sees to it that the rules are followed, but he himself does not lay down
such rules, nor does he have the discretion to modify or replace them. If the rules are not
observed, he may order the work done or re-done but only to conform to the prescribed rules.
He may not prescribe his own manner for the doing of the act. He has no judgment on this
matter except to see to it that the rules are followed. In the opinion of the Court, Secretary
Drilon did precisely this, and no more nor less than this, and so performed an act not of
control but of mere supervision.
National Liga Ng Mga Barangay vs Paredes
There was a dispute involving the election of the liga ng mga barangays. Sec. Barbers issued a
memorandum na mao ni dapat ang rules in the conduct of the elections. There was an exercise
of control here. That cannot be done, because the president is only limited to the supervisory
power.
With his Department already appointed as interim caretaker of the Liga, Secretary Barbers
nullified the results of the Liga elections and promulgated DILG Memorandum Circular No.
97-193 dated 11 August 1997, where he laid down the supplemental guidelines for the 1997
synchronized elections of the provincial and metropolitan chapters and for the election of the
national chapter of the Liga ng mga Barangay; scheduled dates for the new provincial,
metropolitan and national chapter elections; and appointed respondent Rayos as president of
Liga-Caloocan Chapter.
These acts of the DILG went beyond the sphere of general supervision and constituted direct
interference with the political affairs, not only of the Liga, but more importantly, of the
barangay as an institution. The election of Liga officers is part of the Ligas internal
organization, for which the latter has already provided guidelines. In succession, the DILG
assumed stewardship and jurisdiction over the Liga affairs, issued supplemental guidelines for
the election, and nullified the effects of the Liga-conducted elections. Clearly, what the DILG
wielded was the power of control which even the President does not have.
Furthermore, the DILG assumed control when it appointed respondent Rayos as president of
the Liga-Caloocan Chapter prior to the newly scheduled general Liga elections, although
petitioner Davids term had not yet expired. The DILG substituted its choice, who was Rayos,
over the choice of majority of the punong barangay of Caloocan, who was the incumbent
President, petitioner David. The latter was elected and had in fact been sitting as an ex-officio
member of the sangguniang panlungsod in accordance with the Liga Constitution and By-
Laws. Yet, the DILG extended the appointment to respondent Rayos although it was aware
that the position was the subject of a quo warranto proceeding instituted by Rayos himself,
thereby preempting the outcome of that case. It was bad enough that the DILG assumed the
power of control, it was worse when it made use of the power with evident bias and partiality.
As the entity exercising supervision over the Liga ng mga Barangay, the DILGs authority over
the Liga is limited to seeing to it that the rules are followed, but it cannot lay down such rules
itself, nor does it have the discretion to modify or replace them. In this particular case, the
most that the DILG could do was review the acts of the incumbent officers of the Liga in the
conduct of the elections to determine if they committed any violation of the Ligas Constitution
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and By-laws and its implementing rules. If the National Liga Board and its officers had
violated Liga rules, the DILG should have ordered the Liga to conduct another election
in accordance with the Ligas own rules, but not in obeisance to DILG-dictated
guidelines. Neither had the DILG the authority to remove the incumbent officers of the
Liga and replace them, even temporarily, with unelected Liga officers.
Like the local government units, the Liga ng mga Barangay is not subject to control by
the Chief Executive or his alter ego.
Presidents supervisory power extends to the Liga ng mga Barangay:
The DILG (as alter ego of the President) can exercise general supervision over
the Liga ng mga Barangays. The Liga is an aggregation of barangays which
are in turn represented therein by their respective punong barangays. The
representatives of the Liga sit in an ex officio capacity at the municipal, city and
provincial sanggunians. As such, they enjoy all the powers and discharge all the
functions of regular municipal councilors, city councilors, or provincial board
members, as the case may be. Thus, the Liga is the vehicle through which the
barangay participates in the enactment of ordinances and formulation of policies at
all the legislative local levels higher than the sangguniang barangay, at the same
time serving as the mechanism for the bottom-to-top approach of development.
Zaldy Ampatuan vs Hon. Puno
Proclamation 1946 and AOs 273 and 273-A does NOT violate the principle of local autonomy
under Section 16, Article X of the Constitution, and Section 1, Article V of the Expanded
ARMM Organic Act
The DILG Secretary did not take over control of the powers of the ARMM. After law
enforcement agents took respondent Governor of ARMM into custody for alleged complicity
in the Maguindanao massacre, the ARMM Vice-Governor, petitioner Ansaruddin Adiong,
assumed the vacated post on December 10, 2009 pursuant to the rule on succession found in
Article VII, Section 12, of RA 9054. In turn, Acting Governor Adiong named the then Speaker
of the ARMM Regional Assembly, petitioner Sahali-Generale, Acting ARMM Vice-
Governor. In short, the DILG Secretary did not take over the administration or operations of
the ARMM.
D. LGUs and Congress:
LGUs derive their existence and powers from Congress
This is a necessary consequence of adopting a unitary setup
Magtajas vs Pryce Properties case
Sec. 10, Art. 10 consti
No province, city, municipality, or barangay may be created, divided, merged,
abolished, or its boundary substantially altered, except in accordance with the
criteria established in the local government code and subject to approval by a
majority of the votes cast in a plebiscite in the political units directly affected.
Sec. 5, Art. 10 consti
Each local government unit shall have the power to create its own sources of revenues and to
levy taxes, fees and charges subject to such guidelines and limitations as the Congress may
provide, consistent with the basic policy of local autonomy. Such taxes, fees, and charges shall
accrue exclusively to the local governments.
E. Mother LGU and Component LGU:
Mother LGU reviews acts of Component LGU
In general - Sec. 4 Art 10 consti
The President of the Philippines shall exercise general supervision over local
governments. Provinces with respect to component cities and municipalities, and
cities and municipalities with respect to component barangays, shall ensure that the
acts of their component units are within the scope of their prescribed powers and
functions.
Mother Sanggunians REVIEW POWER:
Grounds:
If by Sangguniang Panlalawigan:
1. Ultra vires (Sec. 56)
If by Sangguniang Panlungsod/Bayan:
1. Consistent with law
2. Consistent with city/municipality ordinances (Sec. 57)
Provincial Relations with Component Cities and Municipalities
Section 29. Provincial Relations with Component Cities and Municipalities. - The province, through
the governor, shall ensure that every component city and municipality within its territorial
jurisdiction acts within the scope of its prescribed powers and functions. Highly urbanized
cities and independent component cities shall be independent of the province.
City and municipal supervision over Component Cities and Municipalities
Section 32. City and Municipal Supervision over Their Respective Barangays. - The city or
municipality, through the city or municipal mayor concerned, shall exercise general
supervision over component barangays to ensure that said barangays act within the scope of
their prescribed powers and functions.
Local Chief Executive (LCE) of Mother LGU reviews EOs of LCE of Component LGU
Section 30. Review of Executive Orders.
(a) Except as otherwise provided under the Constitution and special statutes, the
governor shall review all executive orders promulgated by the component city or
municipal mayor within his jurisdiction. The city or municipal mayor shall review
all executive orders promulgated by the punong barangay within his jurisdiction.
Copies of such orders shall be forwarded to the governor or the city or municipal
mayor, as the case may be, within three (3) days from their issuance. In all instances
of review, the local chief executive concerned shall ensure that such executive orders
are within the powers granted by law and in conformity with provincial, city, or
municipal ordinances.
(b) If the governor or the city or municipal mayor fails to act on said executive
orders within thirty (30) days after their submission, the same shall be deemed
consistent with law and therefore valid.
Sanggunian of Mother LGU reviews Ordinances of Sanggunian and EOs of LCE of Component
LGU
Component City and Municipal Ordinances and Resolutions approving the local
development plans and public investment programs formulated by the local
development councils [Note: All ordinances but not all resolutions] review mechanism
of the Mother LGU
- Section 56. Review of Component City and Municipal Ordinances or Resolutions by
the Sangguniang Panlalawigan.
(a) Within three (3) days after approval, the secretary to the sanggunian
panlungsod or sangguniang bayan shall forward to the sangguniang
panlalawigan for review, copies of approved ordinances and the
resolutions approving the local development plans and public investment
programs formulated by the local development councils.
(b) Within thirty (30) days after the receipt of copies of such ordinances
and resolutions, the sangguniang panlalawigan shall examine the
documents or transmit them to the provincial attorney, or if there be none,
to the provincial prosecutor for prompt examination. The provincial
attorney or provincial prosecutor shall, within a period of ten (10) days
from receipt of the documents, inform the sangguniang panlalawigan in
writing of his comments or recommendations, which may be considered
by the sangguniang panlalawigan in making its decision.
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(c) If the sangguniang panlalawigan finds that such an ordinance or
resolution is beyond the power conferred upon the sangguniang
panlungsod or sangguniang bayan concerned, it shall declare such
ordinance or resolution invalid in whole or in part. The
sangguniang panlalawigan shall enter its action in the minutes and
shall advise the corresponding city or municipal authorities of the
action it has taken.
(d) If no action has been taken by the sangguniang panlalawigan
within thirty (30) days after submission of such an ordinance or
resolution, the same shall be presumed consistent with law and therefore
valid.
Barangay Ordinances
- Section 57. Review of Barangay Ordinances by the Sangguniang Panlungsod or
Sangguniang Bayan.
(a) Within ten (10) days after its enactment, the sangguniang barangay
shall furnish copies of all barangay ordinances to the sangguniang
panlungsod or sangguniang bayan concerned for review as to whether the
ordinance is consistent with law and city or municipal ordinances.
(b) If the sangguniang panlungsod or sangguniang bayan, as the case may
be, fails to take action on barangay ordinances within thirty (30) days from
receipt thereof, the same shall be deemed approved.
(c) If the sangguniang panlungsod or sangguniang bayan, as the case may
be, finds the barangay ordinances inconsistent with law or city or
municipal ordinances, the sanggunian concerned shall, within thirty (30)
days from receipt thereof, return the same with its comments and
recommendations to the sangguniang barangay concerned for adjustment,
amendment, or modification; in which case, the effectivity of the barangay
ordinance is suspended until such time as the revision called for is
effected.
Ordinances and EOs of barangays in Municipalities
- Section 447. Powers, Duties, Functions and Compensation.
(a) The sangguniang bayan, as the legislative body of the municipality,
shall enact ordinances, approve resolutions and appropriate funds for the
general welfare of the municipality and its inhabitants pursuant to Section
16 of this Code and in the proper exercise of the corporate powers of the
municipality as provided for under Section 22 of this Code, and shall:
(1) Approve ordinances and pass resolutions necessary for an
efficient and effective municipal government, and in this
connection shall:
(i) Review all ordinances approved by the
sangguniang barangay and executive orders issued
by the punong barangay to determine whether these
are within the scope of the prescribed powers of the
sanggunian and of the punong barangay;
Ordinances and EOs of barangays in Cities
- Section 458. Powers, Duties, Functions and Compensation.
(a) The sangguniang panlungsod, as the legislative body of the city, shall
enact ordinances, approve resolutions and appropriate funds for the
general welfare of the city and its inhabitants pursuant to Section 16 of this
Code and in the proper exercise of the corporate powers of the city as
provided for under Section 22 of this Code, and shall:
(1) Approve ordinances and pass resolutions necessary for an efficient and effective city government,
and in this connection, shall:
(i) Review all ordinances approved by the sangguniang barangay and executive orders issued by the
punong barangay to determine whether these are within the scope of the prescribed powers of the
sanggunian and of the punong barangay;
Ordinances and EOs of Component Municipalities and Cities
- Section 468. Powers, Duties, Functions and Compensation.
(a) The sangguniang panlalawigan, as the legislative body of the province, shall enact ordinances,
approve resolutions and appropriate funds for the general welfare of the province and its inhabitants
pursuant to Section 16 of this Code in the proper exercise of the corporate
powers of the province as provided for under Section 22 of this Code, and
shall:
(1) Approve ordinances and pass resolutions necessary for an
efficient and effective provincial government and, in this
connection, shall:
(i) Review all ordinances approved by the
sangguniang of component cities and municipalities
and executive orders issued by the mayors of said
component units to determine whether these are
within the scope of the prescribed powers of the
sanggunian and of the mayor;
F. LGUs and National Agencies and Offices (with project implementation functions)
Prior Consultation Before Implementation
" Section 25. National Supervision over Local Government Units. -
(b) National agencies and offices with project implementation functions shall
coordinate with one another and with the local government units concerned in the
discharge of these functions. They shall ensure the participation of local government
units both in the planning and implementation of said national projects.
" Section 27. Prior Consultations Required. - No project or program shall be implemented
by government authorities unless the consultations mentioned in Sections 2 (c) and 26
hereof are complied with, and prior approval of the sanggunian concerned is obtained:
Provided, That occupants in areas where such projects are to be implemented shall not be
evicted unless appropriate relocation sites have been provided, in accordance with the
provisions of the Constitution.
The DPWH without getting the approval of City of Cebu cemented a national highway that
traverses the City of Cebu. Do you think that is proper?
No. You need prior consultation and prior approval.
Lina vs Pao
The introduction of lotto in the province of Laguna is not covered by Secs. 26 and 27 (on Prior
Consultations Required) of the LGC.
We hold that petitioners erred in declaring that Sections 2 (c) [Declaration of Policy] and 27
[Prior Consultations Required] of Republic Act 7160, otherwise known as the Local
Government Code of 1991, apply mandatorily in the setting up of lotto outlets around the
country.
These apply only to national programs and/or projects which are to be implemented in a
particular local community, but if it is a GOCC, like PCSO, Sec. 27 will not apply. Lotto is
neither a program nor a project of the national government, but of a charitable institution, the
PCSO. Though sanctioned by the national government, it is far fetched to say that lotto falls
within the contemplation of Sections 2 (c) and 27 of the Local Government Code.
Section 27 of the Code should be read in conjunction with Section 26 thereof [Duty of National
Government Agencies in the Maintenance of Ecological Balance].
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The projects and programs mentioned in Section 27 should be interpreted to mean
projects and programs whose effects are among those enumerated in Section 26 and 27,
to wit, those that: (1) may cause pollution; (2) may bring about climatic change; (3) may
cause the depletion of non-renewable resources; (4) may result in loss of crop land,
range-land, or forest cover; (5) may eradicate certain animal or plant species from the
face of the planet; and (6) other projects or programs that may call for the eviction of a
particular group of people residing in the locality where these will be implemented.
Obviously, none of these effects will be produced by the introduction of lotto in the
province of Laguna.
Province of Rizal vs Exec. Sec.
Under the Local Government Code, therefore, two requisites must be met before a national
project that affects the environmental and ecological balance of local communities can be
implemented: prior consultation with the affected local communities, and prior approval of
the project by the appropriate sanggunian. Absent either of these mandatory requirements, the
project's implementation is illegal.
G. LGUs and National agencies, offices, and GOCCs (with field units in the LGU)
Consultation
" Section 25. National Supervision over Local Government Units.
(d) National agencies and offices including government-owned or controlled
corporations with field units or branches in a province, city, or municipality shall
furnish the local chief executive concerned, for his information and guidance,
monthly reports including duly certified budgetary allocations and expenditures.
H. LGUs and National agencies, offices, and GOCCs (with environmental programs)
Consultation
" Section 26. Duty of National Government Agencies in the Maintenance of Ecological
Balance. - It shall be the duty of every national agency or government-owned or
controlled corporation authorizing or involved in the planning and implementation of
any project or program that may cause pollution, climatic change, depletion of non-
renewable resources, loss of crop land, rangeland, or forest cover, and extinction of
animal or plant species, to consult with the local government units, nongovernmental
organizations, and other sectors concerned and explain the goals and objectives of the
project or program, its impact upon the people and the community in terms of
environmental or ecological balance, and the measures that will be undertaken to prevent
or minimize the adverse effects thereof.
I. LGUs and the PNP, Fire Protection Unit and Jail Management Personnel
Operational Supervision and Control by LGUs
LGU has no power in the selection of personnel. Only in the mobilization of the unit
(operational supervision and control)
" Section 28. Powers of Local Chief Executives over the Units of the Philippine National
Police. - The extent of operational supervision and control of local chief executives over
the police force, fire protection unit, and jail management personnel assigned in their
respective jurisdictions shall be governed by the provisions of Republic Act Numbered
Sixty-nine hundred seventy-five (R.A. No. 6975), otherwise known as "The Department of
the Interior and Local Government Act of 1990", and the rules and regulations issued
pursuant thereto.
" RA 6975 Department of the Interior and Local Government Act of 1990
D. PARTICIPATION OF LOCAL EXECUTIVES IN THE ADMINISTRATION OF THE
PNP
Section 51. Powers of Local Government Officials Over the PNP Units or Forces.
Governors and mayors shall be deputized as representatives of the Commission in
their respective territorial jurisdiction. As such, the local executives shall discharge
the following functions:
(a) Provincial Governor
(1) Power to Choose the Provincial Director. The provincial governor shall choose the provincial
director from a list of three (3) eligible recommended by the PNP regional director.
(2) Overseeing the Provincial Public Safety Plan Implementation. The governor, as chairman of the
provincial peace and order council, shall oversee the implementation of the provincial public safety
plan, which is prepared taking into consideration the integrated community safety plans, as
provided under paragraph (b) (2) of this section.
(b) City and Municipal Mayors
(1) Operational Supervision and Control. The city and
municipal mayors shall exercise operational supervision and
control over PNP units in their respective jurisdiction except
during the thirty (30) day period immediately preceding and the
thirty (30) days following any national, local and barangay
elections. During the said period, the local police forces shall be
under the supervision and control of the Commission on
Elections.
The term "operational supervision and control" shall mean the power to
direct, superintend, oversee and inspect the police units and forces.
It shall include the power to employ and deploy units or elements of the
PNP, through the station commander, to ensure public safety and effective
maintenance of peace and order within the locality. For this purpose, the
term "employ" and "deploy" shall mean as follows:
"Employ" refers to utilization of units or elements of the PNP for
purposes of protection of lives and properties, enforcement of
laws, maintenance of peace and order, prevention of crimes,
arrest of criminal offenders and bringing the offenders to justice,
and ensuring public safety, particularly in the suppression of
disorders, riots, lawless violence, rebellious seditious
conspiracy, insurgency, subversion or other related activities.
"Deploy" shall mean the orderly organized physical movement
of elements or units of the PNP within the province, city or
municipality for purposes of employment as herein defined.
(2) Integrated Community Safety Plans. The municipal/city
mayor shall, in coordination with the local peace and order
council of which he is the chairman pursuant to Executive
Order No. 309, as amended, develop and establish an integrated
area/community public safety plan embracing priorities of
action and program thrusts for implementation by the local
PNP stations.
It shall, likewise, be the duty of the city or municipal mayor to
sponsor periodic seminars for members of the PNP assigned or
detailed in his city or municipality in order to update them
regarding local ordinances and legislations.
(3) Administrative Disciplinary Powers. In the areas of
discipline, city and municipal mayors shall have the powers to
impose, after due notice and summary hearings, disciplinary
penalties for minor offenses committed by members of the PNP
assigned to their respective jurisdictions, as provided in Section
41 of this Act.
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(4) Other Powers. In addition to the aforementioned
powers, city and municipal mayors shall have the
following authority over the PNP units in their respective
jurisdictions:
(i) Authority to choose the chief of police from a
list of five (5) eligibles recommended by the
provincial police director, preferably from the
same province, city or municipality.
(ii) Authority to recommend the transfer,
reassignment or detail of PNP members outside of
their respective city or town residences; and
(iii) Authority to recommend, from a list of eligibles
previously screened by the peace and order council,
the appointment of new members of the PNP to be
assigned to their respective cities or municipalities
without which no such appointment shall be attested.
- Section 52. Suspension of Operational Supervision and Control. The President
may, upon consultation with the provincial governor and congressman concerned,
suspend the power of operational supervision and control of any local executive
over police units assigned or stationed in his jurisdiction for any of the following
grounds:
(a) Frequent unauthorized absences;
(b) Abuse of authority;
(c) Providing material support to criminal elements; or
(d) Engaging in acts inimical to national security or which negate the
effectiveness of the peace and order campaign.
Upon good cause shown, the President may, motu propio or upon the
recommendation of the National Police Commission, restore such power
withdrawn from any local executive.
Andaya vs RTC
Under Republic Act No. 6975, Section 51, the mayor of Cebu City shall be deputized as
representative of the Commission (National Police Commission) in his territorial jurisdiction
and as such the mayor shall have authority to choose the chief of police from a list of five (5)
eligibles recommended by the Police Regional Director. As deputy of the Commission, the
authority of the mayor is very limited.
In reality, he has no power of appointment; he has only the limited power of selecting one
from among the list of five eligibles to be named the chief of police.
Actually, the power to appoint the chief of police of Cebu City is vested in the Regional
Director, Regional Police Command No. 7. Much less may the mayor require the Regional
Director, Regional Police Command, to include the name of any officer, no matter how
qualified, in the list of five to be submitted to the mayor. The purpose is to enhance police
professionalism and to isolate the police service from political domination. The decision of
the Regional Trial Court was set aside.
J. LGUs and NGOs
LGUs shall support, and may give assistance to NGOs
" Section 34. Role of People's and Non-governmental Organizations. - Local government
units shall promote the establishment and operation of people's and non-governmental
organizations to become active partners in the pursuit of local autonomy.
" Section 35. Linkages with People's and Non-governmental Organizations. - Local
government units may enter into joint ventures and such other cooperative arrangements
with people's and non-governmental organizations to engage in the delivery of
certain basic services, capability-building and livelihood projects, and to develop
local enterprises designed to improve productivity and income, diversity agriculture,
spur rural industrialization, promote ecological balance, and enhance the economic
and social well-being of the people.
" Section 36. Assistance to People's and Non-governmental Organizations. - A local
government unit may, through its local chief executive and with the concurrence of
the sanggunian concerned, provide assistance, financial or otherwise, to such people's
and non-governmental organizations for economic, socially-oriented, environmental,
or cultural projects to be implemented within its territorial jurisdiction.
V. Powers
1. Local Power of Taxation
2. Local Police Power
3. Local Eminent Domain
4. Delivery of Services and Facilities
5. Reclassification of Lands
6. Closure and Opening of Roads
Local Power of Taxation
Sources of revenues of LGUs
a) taxes, fees and charges
b) just share in the national taxes
c) equitable share in the proceeds of the utilization and development of the national wealth
within their respective areas
What is local fiscal autonomy?
In Pimentel vs Aguirre
" Fiscal autonomy means that local governments have the power to create their own
sources of revenue in addition to their equitable share in the national taxes released by
the national government, as well as the power to allocate their resources in accordance
with their own priorities. It extends to the preparation of their budgets, and local officials
in turn-have to work within the constraints thereof.
" They are not formulated at the national level and imposed on local governments, whether
they are relevant to local needs and resources or not. Hence, the necessity of a balancing
of viewpoints and the harmonization of proposals from both local and national officials,
who in any case are partners in the attainment of national goals.
" Local fiscal autonomy does not however rule out any manner of national government
intervention by way of supervision, in order to ensure that local programs, fiscal and
otherwise, are consistent with national goals.
Thus, Congress cannot pass a law that mandates for the allocation of these local taxes or local
funds. It will violate local fiscal autonomy.
A. Taxes, Fees, and Charges
Local Taxes: Community tax, tranfer tax, income tax of banks and financial institutions,
professional tax, amusement tax
Fees and Charges: Library Fees, regulatory fees, business permits
Sec. 5 Art. 10 consti - Each local government unit shall have the power(referring to the general
power to tax) to create its own sources of revenues and to levy taxes, fees and charges subject to
such guidelines and limitations as the Congress may provide, (through the LGC) consistent with
the basic policy of local autonomy. Such taxes, fees, and charges shall accrue exclusively to the local
governments.
!
Section 18. Power to Generate and Apply Resources. - Local government units shall have the
power and authority to establish an organization that shall be responsible for the efficient and
effective implementation of their development plans, program objectives and priorities; to
create their own sources of revenues and to levy taxes, fees, and charges which shall accrue
exclusively for their use and disposition and which shall be retained by them; to have a just
share in national taxes which shall be automatically and directly released to them without
need of any further action; to have an equitable share in the proceeds from the utilization and
development of the national wealth and resources within their respective territorial
jurisdictions including sharing the same with the inhabitants by way of direct benefits; to
acquire, develop, lease, encumber, alienate, or otherwise dispose of real or personal property
held by them in their proprietary capacity and to apply their resources and assets for productive,
developmental, or welfare purposes, in the exercise or furtherance of their governmental or
proprietary powers and functions and thereby ensure their development into self-reliant
communities and active participants in the attainment of national goals.
Section 5. Rules of Interpretation.
(b) In case of doubt, any tax ordinance or revenue measure shall be construed strictly against
the local government unit enacting it, and liberally in favor of the taxpayer. Any tax
exemption, incentive or relief granted by any local government unit pursuant to the provisions
of this Code shall be construed strictly against the person claiming it.
Section 128. Scope. - The provisions herein shall govern the exercise by provinces, cities,
municipalities, and barangays of their taxing and other revenue-raising powers.
Section 129. Power to Create Sources of Revenue. - Each local government unit shall exercise its
power to create its own sources of revenue and to levy taxes, fees, and charges subject to the
provisions herein, consistent with the basic policy of local autonomy. Such taxes, fees, and charges
shall accrue exclusively to the local government units.
Section 130. Fundamental Principles. - The following fundamental principles shall govern the
exercise of the taxing and other revenue-raising powers of local government units:
(a) Taxation shall be uniform in each local government unit;
(b) Taxes, fees, charges and other impositions shall:
(1) be equitable and based as far as practicable on the taxpayer's ability to pay;
(2) be levied and collected only for public purposes;
(3) not be unjust, excessive, oppressive, or confiscatory;
(4) not be contrary to law, public policy, national economic policy, or in the restraint
of trade;
(c) The collection of local taxes, fees, charges and other impositions shall in no case be let to
any private person;
(d) The revenue collected pursuant to the provisions of this Code shall inure solely to the
benefit of, and be subject to the disposition by, the local government unit levying the tax, fee,
charge or other imposition unless otherwise specifically provided herein; and
(e) Each local government unit shall, as far as practicable, evolve a progressive system of
taxation.
Section 132. Local Taxing Authority. - The power to impose a tax, fee, or charge or to generate
revenue under this Code shall be exercised by the sanggunian of the local government unit
concerned through an appropriate ordinance.
Section 133. Common Limitations on the Taxing Powers of Local Government Units. - Unless
otherwise provided herein, the exercise of the taxing powers of provinces, cities, municipalities, and
barangays shall not extend to the levy of the following:
(a) Income tax, except when levied on banks and other financial institutions;
(b) Documentary stamp tax;
(c) Taxes on estates, inheritance, gifts, legacies and other acquisitions mortis causa, except as
otherwise provided herein;
(d) Customs duties, registration fees of vessel and wharfage on wharves, tonnage dues, and all other
kinds of customs fees, charges and dues except wharfage on wharves constructed and maintained by
the local government unit concerned;
(e) Taxes, fees, and charges and other impositions upon goods carried into or out of, or passing
through, the territorial jurisdictions of local government units in the guise of charges for wharfage,
tolls for bridges or otherwise, or other taxes, fees, or charges in any form whatsoever upon such
goods or merchandise;
(f) Taxes, fees or charges on agricultural and aquatic products when sold by marginal farmers
or fishermen;
(g) Taxes on business enterprises certified to by the Board of Investments as pioneer or non-
pioneer for a period of six (6) and four (4) years, respectively from the date of registration;
(h) Excise taxes on articles enumerated under the national Internal Revenue Code, as
amended, and taxes, fees or charges on petroleum products;
(i) Percentage or value-added tax (VAT) on sales, barters or exchanges or similar transactions
on goods or services except as otherwise provided herein;
(j) Taxes on the gross receipts of transportation contractors and persons engaged in the
transportation of passengers or freight by hire and common carriers by air, land or water,
except as provided in this Code;
(k) Taxes on premiums paid by way or reinsurance or retrocession;
(l) Taxes, fees or charges for the registration of motor vehicles and for the issuance of all kinds
of licenses or permits for the driving thereof, except tricycles;
(m) Taxes, fees, or other charges on Philippine products actually exported, except as otherwise
provided herein;
(n) Taxes, fees, or charges, on Countryside and Barangay Business Enterprises and
cooperatives duly registered under R.A. No. 6810 and Republic Act Numbered Sixty-nine
hundred thirty-eight (R.A. No. 6938) otherwise known as the "Cooperative Code of the
Philippines" respectively; and
(o) Taxes, fees or charges of any kind on the National Government, its agencies and
instrumentalities, and local government units.
Section 186. Power To Levy Other Taxes, Fees or Charges. - Local government units may exercise
the power to levy taxes, fees or charges on any base or subject not otherwise specifically
enumerated herein or taxed under the provisions of the National Internal Revenue Code, as
amended, or other applicable laws: Provided, That the taxes, fees, or charges shall not be unjust,
excessive, oppressive, confiscatory or contrary to declared national policy: Provided, further, That
the ordinance levying such taxes, fees or charges shall not be enacted without any prior public
hearing conducted for the purpose.
Section 187. Procedure for Approval and Effectivity of Tax, Ordinances and Revenue Measures;
Mandatory Public Hearings. - The procedure for approval of local tax ordinances and revenue
measures shall be in accordance with the provisions of this Code: Provided, That public hearings
shall be conducted for the purpose prior to the enactment thereof: Provided, further, That any
question on the constitutionality or legality of tax ordinances or revenue measures may be raised on
appeal within thirty (30) days from the effectivity thereof to the Secretary of Justice who shall
render a decision within sixty (60) days from the date of receipt of the appeal: Provided, however,
That such appeal shall not have the effect of suspending the effectivity of the ordinance and the
accrual and payment of the tax, fee, or charge levied therein: Provided, finally, That within thirty
(30) days after receipt of the decision or the lapse of the sixty-day period without the Secretary of
Justice acting upon the appeal, the aggrieved party may file appropriate proceedings with a court of
competent jurisdiction.
Section 188. Publication of Tax Ordinances and Revenue Measures. - Within ten (10) days after their
approval, certified true copies of all provincial, city, and municipal tax ordinances or revenue
measures shall be published in full for three (3) consecutive days in a newspaper of local
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circulation: Provided, however, That in provinces, cities and municipalities where there are
no newspapers of local circulation, the same may be posted in at least two (2) conspicuous
and publicly accessible places.
Section 189. Furnishing of Copies of Tax Ordinances and Revenue Measures. - Copies of all
provincial, city, and municipal and barangay tax ordinances and revenue measures shall be
furnished the respective local treasurers for public dissemination.
Section 190. Attempt to Enforce Void or Suspended Tax Ordinances and revenue measures. -
The enforcement of any tax ordinance or revenue measure after due notice of the disapproval
or suspension thereof shall be sufficient ground for administrative disciplinary action against the
local officials and employees responsible therefor.
Section 191. Authority of Local Government Units to Adjust Rates of Tax Ordinances. - Local
government units shall have the authority to adjust the tax rates as prescribed herein not oftener
than once every five (5) years, but in no case shall such adjustment exceed ten percent (10%) of the
rates fixed under this Code.
Section 192. Authority to Grant Tax Exemption Privileges. - Local government units may, through
ordinances duly approved, grant tax exemptions, incentives or reliefs under such terms and
conditions as they may deem necessary.
Section 193. Withdrawal of Tax Exemption Privileges. - Unless otherwise provided in this Code, tax
exemptions or incentives granted to, or presently enjoyed by all persons, whether natural or
juridical, including government-owned or controlled corporations, except local water districts,
cooperatives duly registered under R.A. No. 6938, non-stock and non-profit hospitals and
educational institutions, are hereby withdrawn upon the effectivity of this Code.
Section 305. Fundamental Principles. - The financial affairs, transactions, and operations of local
government units shall be governed by the following fundamental principles:
(a) No money shall be paid out of the local treasury except in pursuance of an appropriations
ordinance or law;
(b) Local government funds and monies shall be spent solely for public purposes;
(c) Local revenue is generated only from sources expressly authorized by law or ordinance,
and collection thereof shall at all times be acknowledged properly;
(d) All monies officially received by a local government officer in any capacity or on any
occasion shall be accounted for as local funds, unless otherwise provided by law;
(e) Trust funds in the local treasury shall not be paid out except in fulfillment of the purpose
for which the trust was created or the funds received;
(f) Every officer of the local government unit whose duties permit or require the possession or
custody of local funds shall be properly bonded, and such officer shall be accountable and
responsible for said funds and for the safekeeping thereof in conformity with the provisions of
law;
(g) Local governments shall formulate sound financial plans, and local budgets shall be based
on functions, activities, and projects, in terms of expected results;
(h) Local budget plans and goals shall, as far as practicable, be harmonized with national
development plans, goals, and strategies in order to optimize the utilization of resources and
to avoid duplication in the use of fiscal and physical resources;
(i) Local budgets shall operationalize approved local development plans;
(j) Local government units shall ensure that their respective budgets incorporate the
requirements of their component units and provide for equitable allocation of resources
among these component units;
(k) National planning shall be based on local planning to ensure that the needs and aspirations
of the people as articulated by the local government units in their respective local development
plans are considered in the formulation of budgets of national line agencies or offices;
(l) Fiscal responsibility shall be shared by all those exercising authority over the financial
affairs, transactions, and operations of the local government units; and
(m) The local government unit shall endeavor to have a balanced budget in each fiscal year of
operation.
Basco vs PAGCOR
A close reading of the Section 5, Article 10 of the Constitution does not violate local
autonomy (particularly on taxing powers) as it was clearly stated that the taxing power of
LGUs are subject to such guidelines and limitation as Congress may provide.
Further, the City of Manila, being a mere Municipal corporation has no inherent right to
impose taxes. The Charter of the City of Manila is subject to control by Congress. It should
be stressed that municipal corporations are mere creatures of Congress which has the
power to create and abolish municipal corporations due to its general legislative powers.
Congress, therefore, has the power of control over Local governments. And if Congress
can grant the City of Manila the power to tax certain matters, it can also provide for
exemptions or even take back the power.
Further still, local governments have no power to tax instrumentalities of
the National Government. PAGCOR is a government owned or controlled corporation with an
original charter, PD 1869. All of its shares of stocks are owned by the National Government.
Otherwise, its operation might be burdened, impeded or subjected to control by a mere
Local government.
PAGCOR is considered an instrumentality of the national government because PAGCOR was
given the power to regulate lawful games of chance and therefore, this was an exercise of the
regulatory power of the national government and as such, it is part of police power and since
its part of police power, to that extent, that is governmental, and because its governmental,
PAGCOR, while a GOCC, becomes instrumentality of the national government.
This doctrine emanates from the supremacy of the National Government over local
governments.
- Are GOCCs government instrumentalities? Not all. Only those with governmental
functions are considered governmental instrumentalities.
Can LGUs impose taxes on the instrumentalities of the National Government?
BASCO DOCTRINE - No inherent right to impose taxes and therefore, an LGU needs to have a
law or statute that grants that power and this is already done through the LGC of 1991, subject
to control by congress and that local governments have no power to tax instrumentalities of
the national government.
Sec. 234 of the LGC: Exemptions from Real Property Tax. - The following are exempted from
payment of the real property tax:
(a) Real property owned by the Republic of the Philippines or any of its political
subdivisions except when the beneficial use thereof has been granted, for
consideration or otherwise, to a taxable person;
(b) Charitable institutions, churches, parsonages or convents appurtenant thereto,
mosques, nonprofit or religious cemeteries and all lands, buildings, and
improvements actually, directly, and exclusively used for religious, charitable or
educational purposes;
(c) All machineries and equipment that are actually, directly and exclusively used by
local water districts and government-owned or -controlled corporations engaged in
the supply and distribution of water and/or generation and transmission of electric
power;
(d) All real property owned by duly registered cooperatives as provided for under
R. A. No. 6938; and
(e) Machinery and equipment used for pollution control and environmental
protection. Except as provided herein, any exemption from payment of real property
tax previously granted to, or presently enjoyed by, all persons, whether natural or
juridical, including all government-owned or -controlled corporations are hereby
withdrawn upon the effectivity of this Code.
The only way you can say that governmental instrumentalities still enjoy tax exemptions is
that although sec. 193 of the LGC says incentives and tax exemptions have been withdrawn
upon the effectivity of the code, but insofar as real property taxes are concern, National
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government and its political subdivisions are still exempt from taxes as provided in sec.
234 of the Code.
What are the reasons why Congress is allowed to provide guidelines and limitations?
Manila Electric Company vs Province of Laguna
The constitutional objective obviously is to ensure that, while the local government units
are being strengthened and made more autonomous, the legislature must still see to it
that:
(a) the taxpayer will not be over-burdened or saddled with multiple and
unreasonable impositions;
(b) each local government unit will have its fair share of available resources,
(c) the resources of the national government will not be unduly disturbed; and
(d) local taxation will be fair, uniform, and just.
MCIAA vs Marcos
WON MCIAA is exempted from paying tax? NO.
The tax exemptions from RPT granted to MCIAA under its charter had been withdrawn upon
the effectivity of the LGC of 1991 under Sec. 234; (Thus, theres a need for a new law granting
tax exemption privilege in order to enjoy such privilege)
MCIAA cannot invoke the Basco ruling that LGUs cannot tax instrumentalities of the national
government because the Basco case was decided before the effectivity of the LGC of 1991.
As a general rule, the power to tax is an incident of sovereignty and is unlimited in its range,
acknowledging in its very nature no limits, so that security against its abuse is to be found
only in the responsibility of the legislature which imposes the tax on the constituency who are
to pay it. Nevertheless, effective limitations thereon may be imposed by the people through
their Constitutions. Our Constitution, for instance, provides that the rule of taxation shall be
uniform and equitable and Congress shall evolve a progressive system of taxation. So potent
indeed is the power that it was once opined that "the power to tax involves the power to
destroy." Verily, taxation is a destructive power which interferes with the personal and
property for the support of the government. Accordingly, tax statutes must be construed
strictly against the government and liberally in favor of the taxpayer. But since taxes are what
we pay for civilized society, or are the lifeblood of the nation, the law frowns against
exemptions from taxation and statutes granting tax exemptions are thus 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 language in the law too plain to be
mistaken. Elsewise stated, taxation is the rule, exemption therefrom is the exception. However,
if the grantee of the exemption is a political subdivision or instrumentality, the rigid rule of
construction does not apply because the practical effect of the exemption is merely to reduce
the amount of money that has to be handled by the government in the course of its operations.
The power to tax is primarily vested in the Congress; however, in our jurisdiction, it may be
exercised by local legislative bodies, no longer merely by virtue of a valid delegation as before,
but pursuant to direct authority conferred by Section 5, Article X of the Constitution. Under
the latter, the exercise of the power may be subject to such guidelines and limitations as the
Congress may provide which, however, must be consistent with the basic policy of local
autonomy.
The LGC, enacted pursuant to Section 3, Article X of the constitution provides for the exercise
by local government units of their power to tax, the scope thereof or its limitations, and the
exemption from taxation.
Reading together Section 133, 232 and 234 of the LGC, we conclude that as a general rule, as
laid down in Section 133 the taxing powers of local government units cannot extend to the levy
of inter alia, "taxes, fees, and charges of any kind of the National Government, its agencies and
instrumentalities, and local government units"; however, pursuant to Section 232, provinces,
cities, municipalities in the Metropolitan Manila Area may impose the real property tax except
on, inter alia, "real property owned by the Republic of the Philippines or any of its political
subdivisions except when the beneficial used thereof has been granted, for consideration or
otherwise, to a taxable person", as provided in item (a) of the first paragraph of Section 234.
As to tax exemptions or incentives granted to or presently enjoyed by natural or juridical
persons, including government-owned and controlled corporations, Section 193 of the
LGC prescribes the general rule, viz., they are withdrawn upon the effectivity of the LGC,
except upon the effectivity of the LGC, except those granted to local water districts,
cooperatives duly registered under R.A. No. 6938, non stock and non-profit hospitals and
educational institutions, and unless otherwise provided in the LGC. The latter proviso
could refer to Section 234, which enumerates the properties exempt from real property tax.
But the last paragraph of Section 234 further qualifies the retention of the exemption in so
far as the real property taxes are concerned by limiting the retention only to those
enumerated there-in; all others not included in the enumeration lost the privilege upon the
effectivity of the LGC.
Moreover, even as the real property is owned by the Republic of the Philippines, or any of its
political subdivisions covered by item (a) of the first paragraph of Section 234, the exemption is
withdrawn if the beneficial use of such property has been granted to taxable person for
consideration or otherwise. Since the last paragraph of Section 234 unequivocally withdrew,
upon the effectivity of the LGC, exemptions from real property taxes granted to natural or
juridical persons, including government-owned or controlled corporations, except as provided
in the said section, and the petitioner is, undoubtedly, a government-owned corporation, it
necessarily follows that its exemption from such tax granted it in Section 14 of its charter, R.A.
No. 6958, has been withdrawn. Any claim to the contrary can only be justified if the petitioner
can seek refuge under any of the exceptions provided in Section 234, but not under Section
133, as it now asserts, since, as shown above, the said section is qualified by Section 232 and
234. In short, the petitioner can no longer invoke the general rule in Section 133 that the taxing
powers of the local government units cannot extend to the levy of: (o) taxes, fees, or charges of
any kind on the National Government, its agencies, or instrumentalities, and local government
units.
MIAA vs CA (2006)
Disregards MCIAA vs Marcos (which did not apply Basco doctrine) and reinstated Basco
Doctrine that LGUs cannot tax government instrumentalities.
Applying Sec. 2(10) and (13) of the Introductory provisions of the Administrative Code, which
governs the legal relation and status of government units, agencies and offices within the
entire government machinery, MIAA is a government instrumentality and not a government-
owned or controlled corporation. Under Sec. 133(0) of the LGC, MIAA as a government
instrumentality is not a taxable person because it is not subject to taxes, fees, or charges of any
kind by the LGU.
The only exception is when MIAA leases its real property to a taxable person as provided in
Sec. 234 (a) of the LGC, in which case the specific real property leased becomes subject to real
estate tax. Thus only portions of the Airport Lands and Buildings leased to taxable persons like
private parties are subject to real estate tax by the City of Paranaque.
GSIS vs City of Manila (2009)
While perhaps not of governing sway in all fours inasmuch as what were involved in MIAA,
e.g., airfields and runways, are properties of the public dominion and, hence, outside the
commerce of man, the rationale anderpinning the disposition in that case is squarely
applicable to GSIS, both MIAA and GSIS being similarly situated.
Given the foregoing perspectives, the following may be assumed: (1) Pursuant to Sec. 33 of PD
1146, GSIS enjoyed tax exemption from real estate taxes, among other tax burdens, until
January 1, 1992 when the LGC took effect and withdrew exemptions from payment of real
estate taxes privileges granted under PD 1146; (2) RA 8291 restored in 1997 the tax exempt
status of GSIS by reenacting under its Sec. 39 what was once Sec. 33 of P.D. 1146; and (3) If any
real estate tax is due to the City of Manila, it is, following City of Davao, only for the interim
period, or from 1992 to 1996, to be precise.
The Courts fairly recent ruling in Manila International Airport Authority v. Court of Appeals,
a case likewise involving real estate tax assessments by a Metro Manila city on the real
properties administered by MIAA, argues for the non-tax liability of GSIS for real estate taxes.
There, the Court held that MIAA does not qualify as a GOCC, not having been organized
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either as a stock corporation, its capital not being divided into shares, or as a non-stock
corporation because it has no members. MIAA is rather an instrumentality of the
National Government and, hence, outside the purview of local taxation by force of Sec.
133 of the LGC providing in context that unless otherwise provided, local
governments cannot tax national government instrumentalities.
While perhaps not of governing sway in all fours inasmuch as what were involved in
Manila International Airport Authority, e.g., airfields and runways, are properties of the
public dominion and, hence, outside the commerce of man, the rationale underpinning
the disposition in that case is squarely applicable to GSIS, both MIAA and GSIS being
similarly situated. First, while created under CA 186 as a non-stock corporation, a status
that has remained unchanged even when it operated under PD 1146 and RA 8291, GSIS is not,
in the context of the aforequoted Sec. 193 of the LGC, a GOCC following the teaching of
Manila International Airport Authority, for, like MIAA, GSIS capital is not divided into unit
shares. Also, GSIS has no members to speak of. And by members, the reference is to those
who, under Sec. 87 of the Corporation Code, make up the non-stock corporation, and not to
the compulsory members of the system who are government employees. Its management is
entrusted to a Board of Trustees whose members are appointed by the President.
Quezon City vs Bayantel 2006
Sec 14 of RA 3259 which was deemed impliedly repealed by Sec 234 of LGC was expressly
revived under Sec 14 of RA 7633. In concrete terms, the realty tax exemption heretofore
enjoyed by Bayantel under its original franchise, but subsequently withdrawn by force
ofsection 234 of the LGC, has been restored by Sec 14 of RA 7633.
The power to tax is primarily vested in the Congress; however, in our jurisdiction, it may be
exercised by local legislative bodies, no longer merely be virtue of a valid delegation as before,
but pursuant to direct authority conferred by Sec. 5 Art X of the Consti.
This new perspective is best articulated by Fr. Joaquin G. Bernas, S.J., himself a Commissioner of the
1986 Constitutional Commission which crafted the 1987 Constitution, thus:
What is the effect of Section 5 on the fiscal position of municipal corporations? Section 5 does
not change the doctrine that municipal corporations do not possess inherent powers of
taxation. What it does is to confer municipal corporations a general power to levy taxes and
otherwise create sources of revenue. They no longer have to wait for a statutory grant of these
powers. The power of the legislative authority relative to the fiscal powers of local
governments has been reduced to the authority to impose limitations on municipal powers.
Moreover, these limitations must be consistent with the basic policy of local autonomy. The
important legal effect of Section 5 is thus to reverse the principle that doubts are resolved
against municipal corporations. Henceforth, in interpreting statutory provisions on municipal
fiscal powers, doubts will be resolved in favor of municipal corporations. It is understood,
however, that taxes imposed by local government must be for a public purpose, uniform
within a locality, must not be confiscatory, and must be within the jurisdiction of the local unit
to pass.
City of Ilo-ilo vs Smart 2009
RA 7294 does not expressly provide what kind of taxes SMART is exempted from. It is not
clear whether the in lieu of all taxes provision in the franchise of SMART would include
exemption from local or national taxation.
What is clear is that SMART shall pay franchise tax equivalent to 3% of all gross receipts of the
business transacted under its franchise. But whether the franchise tax exemption would
include exemption from exactions by both the local and the national government is not
unequivocal.
The uncertainty in the in lieu of all taxes clause in RA 7294 on whether SMART is exempted
from local/ national franchise tax must be construed strictly against SMART which claims the
exemption.
B. Just share in the National Taxes
Art. X Sec 6: LGU shall have a just share as determined by law, in the national taxes which shall
be automatically released to them.
SEC. 18. Power to Generate and Apply Resources. - Local government units shall have the
power and authority to establish an organization that shall be responsible for the efficient and
effective implementation of their development plans, program objectives and priorities; to
create their own sources of revenue and to levy taxes, fees, and charges which shall accrue
exclusively for their use and disposition and which shall be retained by them; to have a just
share in national taxes which shall be automatically and directly released to them without need
of any further action; to have an equitable share in the proceeds from the utilization and
development of the national wealth and resources within their respective territorial jurisdictions
including sharing the same with the inhabitants by way of direct benefits; to acquire, develop, lease,
encumber, alienate, or otherwise dispose of real or personal property held by them in their
proprietary capacity and to apply their resources and assets for productive, developmental, or
welfare purposes, in the exercise or furtherance of their governmental or proprietary powers and
functions and thereby ensure their development into self-reliant communities and active
participants in the attainment of national goals.
SEC. 284. Allotment of Internal Revenue Taxes. - Local government units shall have a share in the
national internal revenue taxes based on the collection of the third fiscal year preceding the current
fiscal year as follows:
(a) On the first year of the effectivity of this Code, thirty percent (30%);
(b) On the second year, thirty-five percent (35%); and
(c) On the third year and thereafter, forty percent (40%). Provided, That in the event that the
national government incurs an unmanageable public sector deficit, the President of the
Philippines is hereby authorized, upon the recommendation of Secretary of Finance, Secretary
of Interior and Local Government and Secretary of Budget and Management, and subject to
consultation with the presiding officers of both Houses of Congress and the presidents of the
liga, to make the necessary adjustments in the internal revenue allotment of local government
units but in no case shall the allotment be less than thirty percent (30%) of the collection of
national internal revenue taxes of the third fiscal year preceding the current fiscal year:
Provided, further That in the first year of the effectivity of this Code, the local government
units shall, in addition to the thirty percent (30%) internal revenue allotment which shall
include the cost of devolved functions for essential public services, be entitled to receive the
amount equivalent to the cost of devolved personal services.
SEC. 285. Allocation to Local Government Units. - The share of local government units in the
internal revenue allotment shall be allocated in the following manner:
(a) Provinces - Twenty-three percent (23%);
(b) Cities - Twenty-three percent (23%);
(c) Municipalities - Thirty-four percent (34%); and
(d) barangays - Twenty percent (20%)
Provided, however, That the share of each province, city, and municipality shall be
determined on the basis of the following formula:
(a) Population - Fifty percent (50%);
(b) Land Area - Twenty-five percent (25%); and
(c) Equal sharing - Twenty-five percent (25%)
Provided, further, That the share of each barangay with a population of not less than one
hundred (100) inhabitants shall not be less than Eighty thousand pesos (P=80,000.00) per
annum chargeable against the twenty percent (20%) share of the barangay from the internal
revenue allotment, and the balance to be allocated on the basis of the following formula:
(a) On the first year of the effectivity of this Code:
(1) Population - Forty percent (40%); and
(2) Equal Sharing - Sixty percent (60%)
(b) On the second year:
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(1) Population - Fifty percent (50%); and (2) Equal Sharing - Fifty
percent (50%) (c) On the third year and thereafter: (1) Population -
Sixty percent (60%); and
(2) Equal Sharing - Forty percent (40%).
Provided, finally, That the financial requirements of barangays created by
local government units after the effectivity of this Code shall be the
responsibility of the local government unit concerned.
SEC. 286. Automatic Release of Shares.
(a) The share of each local government unit shall be released, without need of any
further action, directly to the provincial, city, municipal or barangay treasurer, as the case may
be, on a quarterly basis within five (5) days after the end of each quarter, and which shall not
be subject to any lien or holdback that may be imposed by the national government for
whatever purpose.
(b) Nothing in this Chapter shall be understood to diminish the share of local government
units under existing laws.
SEC. 287. Local Development Projects. - Each local government unit shall appropriate in its annual
budget no less than twenty percent (20%) of its annual internal revenue allotment for development
projects. Copies of the development plans of local government units shall be furnished the
Department of Interior and Local Government.
SEC. 288. Rules and Regulations. - The Secretary of Finance, in consultation with the Secretary of
Budget and Management, shall promulgate the necessary rules and regulations for a simplified
disbursement scheme designed for the speedy and effective enforcement of the provisions of this
Chapter.
National Government Taxes: Value-added tax, sales tax, documentary stamp tax, capital gains
tax, inheritance tax, estate tax, donors tax
It should not be subject to lien or holdback that may be impose by the National Government.
Pimentel vs Aguirre [2000]
Sec 4 Of AO 372 which mandates that pending the assessment and evaluation by the Devt. Budget
Coordinating Committee of the emerging fiscal situation, the amount equivalent to 10% of the internal
revenue allotment to LGUs shall be withheld contravenes the mandate of Sec. 6 Art. X of the
Consti and Art 286 of the LGC 1991 that the share of each LGU in the national taxes (IRA) shall
be automatically released to them and shall not be subject to any lien or holdback that may
be imposed by the National Govt. for whatever purpose.
2007 BAR Exam: The Provincial Gov. of Bataan requested the DBM to release its IRA of P100M for
the current budget year. However, the GAA provided that the IRA may be released only if the
province meets certain conditions as determined by an Oversight Council created by the President.
Is this requirement valid? No. It shall be automatically released to the local treasurer - 286, LGC.
Allocation of IRA:
Provinces - 23%
Cities - 23%
Mun. - 34%
Barangays - 20%
C. Equitable Share in the Proceeds of Utilization of Wealth in the locality
Section 7, Article 10 of the Constitution. Local governments shall be entitled to an equitable share in
the proceeds of the utilization and development of the national wealth within their respective areas,
in the manner provided by law, including sharing the same with the inhabitants by way of direct
benefits.
SEC. 289. Share in the Proceeds from the Development and Utilization of the National Wealth. -
Local government units shall have an equitable share in the proceeds derived from the
utilization and development of the national wealth within their respective areas, including
sharing the same with the inhabitants by way of direct benefits.
SEC. 290. Amount of Share of Local Government Units. - Local government units shall, in
addition to the internal revenue allotment, have a share of forty percent (40%) of the gross
collection derived by the national government from the preceding fiscal year from mining
taxes, royalties, forestry and fishery charges, and such other taxes, fees, or charges, including
related surcharges, interests, or fines, and from its share in any co- production, joint venture or
production sharing agreement in the utilization and development of the national wealth within
their territorial jurisdiction.
SEC. 291. Share of the Local Governments from any Government Agency or - Owned and -
Controlled Corporation. - Local government units shall have a share based on the preceding fiscal
year from the proceeds derived by any government agency or government-owned or -controlled
corporation engaged in the utilization and development of the national wealth based on the
following formula whichever will produce a higher share for the local government unit:
(a) One percent (1%) of the gross sales or receipts of the preceding calendar year; or
(b) Forty percent (40%) of the mining taxes, royalties, forestry and fishery charges and such
other taxes, fees or charges, including related surcharges, interests, or fines the government
agency or government -owned or - controlled corporation would have paid if it were not
otherwise exempt.
SEC. 292. Allocation of Shares. - The share in the preceding Section shall be distributed in the
following manner:
(a) Where the natural resources are located in the province (1) province - Twenty percent
(20%);
(2) Component city/municipality - Forty-five percent (45%); and
(3) barangay - Thirty-five percent (35%) Provided, however, That where the natural resources
are located in two (2) or more provinces, or in two (2) or more component cities or
municipalities or in two (2) or more barangays, their respective shares shall be computed on
the basis of:
(1) Population - Seventy percent (70%); and
(2) Land area - Thirty percent (30%).
(b) Where the natural resources are located in a highly urbanized or independent component
city:
(1) city - Sixty-five percent (65%); and
(2) barangay - Thirty-five percent (35%) Provided, however, That where the natural
resources are located in such two (2) or more cities, the allocation of shares shall be
based on the formula on population and land area as specified in paragraph (a) of
this Section.
SEC. 293 Remittance of the Share of Local Government Units. - The share of local government units
from the utilization and development of national wealth shall be remitted in accordance with
Section 286 of this Code: Provided, however, That in the case of any government agency or
government-owned or -controlled corporation engaged in the utilization and development of the
national wealth, such share shall be directly remitted to the provincial, city, municipal or barangay
treasurer concerned within five (5) days after the end of each quarter.
SEC. 294. Development and Livelihood Projects. - The proceeds from the share of local government
units pursuant to this chapter shall be appropriated by their respective sanggunian to finance local
development and livelihood projects: Provided, however, That at least eighty percent (80%) of the
proceeds derived from the development and utilization of hydrothermal, geothermal, and other
sources of energy shall be applied solely to lower the cost of electricity in the local government unit
where such a source of energy is located.
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Local Police Power
The General Welfare Clause: Sec. 16 of LGC
SEC. 16. General Welfare. - Every local government unit shall exercise the powers expressly
granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or
incidental for its efficient and effective governance, and those which are essential to the
promotion of the general welfare. Within their respective territorial jurisdictions, local
government units shall ensure and support, among other things, the preservation and
enrichment of culture, promote health and safety, enhance the right of the people to a
balanced ecology, encourage and support the development of appropriate and self-reliant
scientific and technological capabilities, improve public morals, enhance economic prosperity and
social justice, promote full employment among their residents, maintain peace and order, and
preserve the comfort and convenience of their inhabitants.
Basically a delegated power both in its general and specific sense, unlike in taxation power
where the general power to tax is constitutionally guaranteed. Hence, police power is still
under the control of Congress in all its respects, although under Sec. 5 of the Code, the general
welfare provision shall be liberally construed to give more powers to the LGUs.
Note: 3 areas where liberal interpretation will be employed:
(1) in favor of Local Government Unit
(2) in favor of local autonomy
(3) in favor of general welfare clause
How do you test the validity of the Local Police Power?
Lawful subject so long as the act affects the public, it can be regulated. The subject must be
regulated because the interest of the public as distinguished to the interest of the private
individual requires governmental interference.
Lawful means - the means employed must be reasonably necessary to accomplish the objective
and not unduly oppressive upon the individuals
Requisites for Validity of Local Police Power
Tatel vs Mun. of Virac
1. Must not contravene the Consti AND statute
2. Not unfair or oppressive [also a constitutional reqt.]
3. Not partial or discriminatory [also a constitutional reqt.]
4. Not prohibit, but only regulate lawful trade (see: De la Cruz vs Paras where an
ordinance prohibited the operation of night clubs)
5. Consistent with public policy [bec. Of the requirement of valid delegation of
legislative power] (see: Lim vs Pacquing) where it was found out that the national
policy was for national government, not for LGUs, to grant frachises for operation of
jai-alai. LGUs can only regulate but not grant franchise for operation of jai-alai.
6. Not reasonable [also a constitutional reqt.] (see: Balacuit case where an ordinance
penalized movie houses that charged full payment for admission of children
between 7-12)
Tano vs Socrates 1997
As laws enjoy presumption of constitutionality except laws restricting freedom of expression ,
so too are ordinance. Hence, there must be a clear and unequivocal breach of the constitution,
not merely doubtful or argumentative contradiction. The unconstitutionality must be shown
beyond reasonable doubt. Moreover, any doubt should be resolved in favour of LGUs
power and in favour of devolution.
" In what instances that this presumption of constitutionality will not apply?
> Those laws that infringe the preferred freedom rights, e.g. freedom of expression,
under the doctrine of strict strutiny.
Ortigas & Co. Limited Partnership
The municipality of mandaluyong, in exercising its police power by enacting an ordinance
declaring a particular area as a commercial and industrial zone, may not be barred by a
claim of non-impairment of contracts.
When Oritgas sold 2 lots, the original buyers agreed to the stipulation that the lots shall be
used exclusively for residential purposes. Subsequently, however, the municipal council of
Mandaluyong passed a resolution declaring the area where the lots were located as a
commercial and industrial zone. 2 years later, the bank acquired the lots and commenced
the construction of a commercial building. Ortigas filed action to enjoin construction.
Which shall prevail the restrictive covenant in the purchase agreement or the municipal
ordinance?
The resolution was a legitimate exercise of police power the most essential, insistent, and
illimitable of powers and in a sense, the greatest and most powerful attribute of
government. The Court reiterated the PLDT ruling that police power is elastic and must be
responsive to various social conditions; it is not confined with narrow circumscriptions of
precedents resting on past conditions; it must follow the legal process of a democratic way of
life. It took notice of the commercial and industrial development along E. delos Santos
Avenue and found the resolution a valid exercise of police power.
On the non-impairment contracts issue, the court found the resolution a legitimate response
to a felt public need. The non-impairment clause may not bar the municipalitys exercise of
police power. Not only are existing laws read into contracts in order to fix obligations as
between the parties, but the reservation of essential attributes of sovereign power is also read
into contracts as a postulate of the legal order.
Zoning Ordinances is a police measure because it is a restriction to the proper use, to the
exercise of ownership, over the property for the promotion of the general welfare.
It prevails over contractual obligations.
Therefore, parties to a contract who may be affected by zoning ordinances cannot invoke the
constitutional right against impairment of obligations and contracts because in
constitutional law, police power prevails over the non-impairment clause.
Problem: The City of Marikina passed an ordinance which regulates the construction of fence as
follows:
The standard height of fences or walls allowed under this ordinance are as follows:
1) Fences on the front yard shall be no more than one (1) meter in height. Fences in excess of
one (1) meter shall be of an open fence type, at least eighty percent 80% see thru.
The Objective of the ordinance is to discourage, suppress or prevent the concealment of prohibited
or unlawful acts. Is the ordinance valid?
There is lawful subject because it affects the public
The means employed is not lawful applying the overbreadth doctrine - where a law seeks to
accomplish a governmental purpose, it must do so without unreasonably or unnecessarily
invading some protected freedom and that it must be least intrusive to the rights of
individuals.
Two tests are usually applied:
1. Rational Relationship Test
2. Strict Scrutiny Test
Using the rational basis examination, laws or ordinances are upheld if they rationally further a
legitimate governmental interest. Governmental interest is extensively examined and the
availability of less restrictive measures is considered.
Applying the strict scrutiny, the focus is on the presence of compelling, rather than substantial,
governmental interest and on the absence of less restrictive means for achieving that interest.
(Fernando vs. St. Scholasticas College GR. 16110 March 12, 2013)
Lucena Grand Central vs JAC Liner 2005
As with the State, the LG may be considered as having properly exercised its police power
only if the following requisites are met:
1. The interests of the public generally, as distinguished from those of a particular
class, require the interference of the state, and
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2. The means employed are reasonably necessary for the attainment of the object
sought to be accomplished and not unduly oppressive upon individuals.
Otherwise stated, there must be a concurrence of a lawful subject and lawful method.
That traffic congestion is a public, not merely a private, concern, cannot be gainsaid. The
questioned ordinances having been enacted with the objective of relieving traffic
congestion in the City of Lucena, they involve public interest warranting the interference
of the State. The first requisite for the proper exercise of police power is thus present.
This leaves for determination the issue of whether the means employed by the Lucena
Sangguniang Panlungsod to attain its professed objective were reasonably necessary and
not unduly oppressive upon individuals.
With the aim of localizing the source of traffic congestion in the city to a single location, the
subject ordinances prohibit the operation of all bus and jeepney terminals within Lucena,
including those already existing, and allow the operation of only one common terminal located
outside the city proper, the franchise for which was granted to petitioner. The common
carriers plying routes to and from Lucena City are thus compelled to close down their existing
terminals and use the facilities of petitioner.
The true role of Constitutional Law is to effect an equilibrium between authority and liberty so
that rights are exercised within the framework of the law and the laws are enacted with due
deference to rights. A due deference to the rights of the individual thus requires a more careful
formulation of solutions to societal problems.
From the memorandum filed before this Court by petitioner, it is gathered that the
Sangguniang Panlungsod had identified the cause of traffic congestion to be the indiscriminate
loading and unloading of passengers by buses on the streets of the city proper, hence, the
conclusion that the terminals contributed to the proliferation of buses obstructing traffic on the
city streets.
Bus terminals per se do not, however, impede or help impede the flow of traffic. How the
outright proscription against the existence of all terminals, apart from that franchised to
petitioner, can be considered as reasonably necessary to solve the traffic problem, this Court
has not been enlightened. If terminals lack adequate space such that bus drivers are compelled
to load and unload passengers on the streets instead of inside the terminals, then reasonable
specifications for the size of terminals could be instituted, with permits to operate the same
denied those which are unable to meet the specifications. (Reasonable police measure strict
implementation of traffic rules and regulations)
As for petitioners claim that the challenged ordinances have actually been proven effective in
easing traffic congestion: Whether an ordinance is effective is an issue different from whether
it is reasonably necessary. It is its reasonableness, not its effectiveness, which bears upon its
constitutionality. If the constitutionality of a law were measured by its effectiveness, then even
tyrannical laws may be justified whenever they happen to be effective.
White Light Case
In City of manila vs Laguio 2005, the Court nullified a city ordinance barring the operation of
motels and inns, among other establishments within the Ermita-Malate area. The petition at
bar assails a similarly-motivated city ordinance that prohibits those same establishments from
offering short-time admission, as well as pro-rated or wash up rates for such abbreviated stays.
It cannot be denied that the primary animus behind the ordinance is the curtailment of sexual
behavior. The City asserts before this Court that the subject establishments have gained
notoriety as venue of prostitution, adultery and fornications in Manila since they provide the
necessary atmosphere for clandestine entry, presence and exit and thus became the ideal
haven for prostitutes and thrill-seekers. Whether or not this depiction of a mise-en-scene of
vice is accurate, it cannot be denied that legitimate sexual behavior among willing married or
consenting single adults which is constitutionally protected will be curtailed as well.
We cannot discount other legitimate activities which the Ordinance would proscribe or impair.
There are very legitimate uses for a wash rate or renting the room out for more than twice a
day. Entire families are known to choose pass the time in a motel or hotel whilst the power is
momentarily out in their homes. In transit passengers who wish to wash up and rest between
trips have a legitimate purpose for abbreviated stays in motels or hotels. Indeed any person or
groups of persons in need of comfortable private spaces for a span of a few hours with
purposes other than having sex or using illegal drugs can legitimately look to staying in a
motel or hotel as a convenient alternative.
That the Ordinance prevents the lawful uses of a wash rate depriving patrons of a product
and the petitioners of lucrative business ties in with another constitutional requisite for the
legitimacy of the Ordinance as a police power measure. It must appear that the interests of
the public generally, as distinguished from those of a particular class, require an
interference with private rights and the means must be reasonably necessary for the
accomplishment of the purpose and not unduly oppressive of private rights. It must also
be evident that no other alternative for the accomplishment of the purpose less intrusive of
private rights can work. More importantly, a reasonable relation must exist between the
purposes of the measure and the means employed for its accomplishment, for even under the
guise of protecting the public interest, personal rights and those pertaining to private property
will not be permitted to be arbitrarily invaded.
Lacking a concurrence of these requisites, the police measure shall be struck down as an
arbitrary intrusion into private rights.
The behavior which the Ordinance seeks to curtail is in fact already prohibited and could in
fact be diminished simply by applying existing laws. Less intrusive measures such as curbing
the proliferation of prostitutes and drug dealers through active police work would be more
effective in easing the situation. So would the strict enforcement of existing laws and
regulations penalizing prostitution and drug use. These measures would have minimal
intrusion on the businesses of the petitioners and other legitimate merchants. Further, it is
apparent that the Ordinance can easily be circumvented by merely paying the whole day rate
without any hindrance to those engaged in illicit activities. Moreover, drug dealers and
prostitutes can in fact collect wash rates from their clientele by charging their customers a
portion of the rent for motel rooms and even apartments.
We reiterate that individual rights may be adversely affected only to the extent that may fairly
be required by the legitimate demands of public interest or public welfare. The State is a
leviathan that must be restrained from needlessly intruding into the lives of its citizens.
However well--intentioned the Ordinance may be, it is in effect an arbitrary and whimsical
intrusion into the rights of the establishments as well as their patrons. The Ordinance
needlessly restrains the operation of the businesses of the petitioners as well as restricting the
rights of their patrons without sufficient justification. The Ordinance rashly equates wash rates
and renting out a room more than twice a day with immorality without accommodating
innocuous intentions.
Leonardo Tan vs Perena
While the Local Government Code expressly repealed several laws, the Cockfighting Law was
not among them. Section 534(f) of the Local Government Code declares that all general and
special laws or decrees inconsistent with the Code are hereby repealed or modified
accordingly, but such clause is not an express repealing clause because it fails to identify or
designate the acts that are intended to be repealed. It is a cardinal rule in statutory
construction that implied repeals are disfavored and will not be so declared unless the intent
of the legislators is manifest. As laws are presumed to be passed with deliberation and with
knowledge of all existing ones on the subject, it is logical to conclude that in passing a statute it
is not intended to interfere with or abrogate a former law relating to the same subject matter,
unless the repugnancy between the two is not only irreconcilable but also clear and convincing
as a result of the language used, or unless the latter Act fully embraces the subject matter of the
earlier.
Perhaps more essential than the fact that the two controverted provisions are not inconsistent
when put together, the Court recognizes that Section 5(d) of the Cockfighting Law arises from
a valid exercise of police power by the national government. Of course, local governments are
similarly empowered under Section 16 of the Local Government Code. The national
government ought to be attuned to the sensitivities of devolution and strive to be sparing in
usurping the prerogatives of local governments to regulate the general welfare of their
constituents.
We do not doubt, however, the ability of the national government to implement police power
measures that affect the subjects of municipal government, especially if the subject of
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regulation is a condition of universal character irrespective of territorial jurisdictions. Mandamus is not proper. The closing and opening of roads is a police power which is
Cockfighting is one such condition. It is a traditionally regulated activity, due to the discretionary on the part of the authority who exercises such power.
attendant gambling involved or maybe even the fact that it essentially consists of two
birds killing each other for public amusement. Laws have been enacted restricting the Local Eminent Domain
days when cockfights could be held, and legislation has even been emphatic that SEC. 19. Eminent Domain. - A local government unit may, through its chief executive and
cockfights could not be held on holidays celebrating national honor such as acting pursuant to an ordinance, exercise the power of eminent domain for public use, or
Independence Day and Rizal Day. purpose, or welfare for the benefit of the poor and the landless, upon payment of just
The Whereas clauses of the Cockfighting Law emphasize that cockfighting should compensation, pursuant to the provisions of the Constitution and pertinent laws: Provided,
neither be exploited as an object of commercialism or business enterprise, nor made a however, That the power of eminent domain may not be exercised unless a valid and definite
tool of uncontrolled gambling, but more as a vehicle for the preservation and offer has been previously made to the owner, and such offer was not accepted: Provided,
perpetuation of native Filipino heritage and thereby enhance our national identity. The further, That the local government unit may immediately take possession of the property upon the
obvious thrust of our laws designating when cockfights could be held is to limit cockfighting filing of the expropriation proceedings and upon making a deposit with the proper court of at least
and imposing the one-cockpit-per-municipality rule is in line with that aim. Cockfighting is a fifteen percent (15%) of the fair market value of the property based on the current tax declaration of
valid matter of police power regulation, as it is a form of gambling essentially antagonistic to the property to be expropriated: Provided, finally, That, the amount to be paid for the expropriated
the aims of enhancing national productivity and self-reliance. Limitation on the number of property shall be determined by the proper court, based on the fair market value at the time of the
cockpits in a given municipality is a reasonably necessary means for the accomplishment of taking of the property.
the purpose of controlling cockfighting, for clearly more cockpits equals more cockfights.
A municipal ordinance must not contravene the Constitution or any statute, otherwise it is Problem: The City of Cebu intends to expropriate a 10-hectare lot of X located in Talamban Cebu
void. Ordinance No. 7 unmistakably contravenes the Cockfighting Law in allowing three for a low-cost housing project intended for the urban poor. As the city attorney of Cebu City, the
cockpits in Daanbantayan. Thus, no rights can be asserted by the petitioners arising from the City Mayor is asking you to outline to him the legal requirements and procedure so that this project
Ordinance. We find the grant of injunction as ordered by the appellate court to be well-taken. for the urban poor can be completed before the end of his term in June of 2016 without legal
obstacle. The City Mayor wants to immediately take possession of the property of X so he can
2010 Bar: The Sanggunian Panglungsod of Pasay passed an ordinance requiring all disco pub immediately start the housing project even before the termination of the expropriation proceeding
owners to have all their hospitality girls tested for Aids virus. Both disco pub owners and thee in court. How will you advise the City Mayor? What will you allege in the complaint for
hospitality girls assailed the validity of the ordinance for being violative of their constitutional expropriation in case one is necessary?
rights to privacy and to freely choose a calling or business. Is the ordinace valid? Explain. The problem presupposes that there is failure to enter into a contract. Thus, the LGU is
Valid. It is not a prohibition but a mere regulation. A valid exercise of police power. (JMM compelled to exercise eminent domain power.
Production case) You must alleged the following:
" Specific requirements for the LGUs (as will be explained below)
ABC operates an industrial waste processing plant within Laoag City. Occasionally, whenever fluid " Being an expropriation for a housing project, you add sec. 9 and sec. 10 of RA 7279
substances are released thru a nearby creek, obnoxious odor is emitted causing dizziness among
residents in Barangay La Paz. On complaint of the punong barangay, the city mayor wrote ABC Who exercises the power of Eminent Domain?
demanding that it abate the nuisance. This was ignored. An invitation to attend a hearing called by Generally, Congress
Sanggunian panglungsod was also declined by the pres. of ABC. The city govt. thereupon issued a LGUs
cease and desist order to stop the operations of the plant, prompting ABC to file a petition for Public Utilies like electric companies, telecommunications companies (MERALCO, Globe,
unjunction before the RTC, arguing that the city govt. did not have any power to abate the illegal Smart, MCWD) they are allowed to expropriate also, as authorized by law.
nuisance. Decide with reasons.
AC Enterprises Inc. vs Frabelle Properties 2 types of requirements in exercising Local Eminent Doman:
Under Sec 447 (a) (3) (i) of RA 7160, the Sanggunian panglungsod is empowered to enact 1. General Requirements:
ordinances, declaring, preventing or abating noise and other forms of nuisance. It bears a) Necessity (National v. Local)
stressing however that the Sanggunian cannot declare a particular thing as nuisance per se and b) Private Property
oder its condemnation. It doesnt have the power to find, as a fact, that a particular thing is c) Taking
nuisance when such thing is not a nuisance per se. nor can it authorize extrajudicial d) Public Use
condemnation and destructin of that as a nuisance which in its nature, situation or use is not e) Just Compensation
such. f) Due Process
Those things must be determined and resolved in the ordinary courts of law. If a mthing be in
fact a nuisance die to the manner of its operation, that question cannot be determined by a 2. Specific Requirements:
mere resolution of the Sanggunian bayan. a) Ordinance
b) Public use
Note: Rule III Sec IV of PAB resolution 1-C S, 1997 as amended, which categorically states that c) Just compensation
except where such would constitute a pollution case, LGU shall have the power to abate a nuisance within d) Valid and definite offer
their respective areas. Add: if the expropriation is for a housing project
e) Private lands should be the last option
Problem: Talisay City Vendors Assoc. filed a case for mandamus compelling the City Govt. of Talisay to f) There were no other modes of acquiring properties
close a road near the Talisay City Public market from vehicular traffic contending that the road is too
small for vehicles, especially four-wheel vehicles, such that vehicular traffic prevents small vendors from Arts. 32-37, IRR
selling in the sidewalk. If your the judge, will you issue a writ of mandamus? " Art. 32. When Exercised.
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(a) An LGU may, through its chief executive and acting pursuant to
an ordinance, exercise the power of eminent domain for public use,
purpose, or welfare of the poor and the landless, upon payment of
just compensation, pursuant to the provisions of the Constitution
and pertinent laws.
(b) The power of eminent domain may not be exercised unless a
valid and definite offer has been previously made to the owner, and
such offer was not accepted.
" Art. 33. Public Use, Purpose, or Welfare. - The following shall, among others,
be considered as public use, purpose, or welfare:
Socialized housing;
Construction or extension of roads, streets, sidewalks, viaducts, bridges,
ferries, levees, wharves, or piers;
Construction or improvement of public buildings;
Establishment of parks, playgrounds, or plazas;
Establishment of market places;
Construction of artesian wells or water supply systems;
Establishment of cemeteries or crematories;
Establishment of drainage systems, cesspools, or sewerage systems;
Construction of irrigation canals or dams;
Establishment of nurseries, health centers, or hospitals;
Establishment of abattoirs; and
Building of research, breeding, or dispersal centers for animals.
" Art. 34. Prerequisites. - In acquiring private property for public use or purpose, LGU
shall first establish the suitability of the property to be acquired for the use intended,
then proceed to obtain from the proper authorities the necessary locational clearance
and other requirements imposed under existing laws, rules and regulations.
" Art. 35. Offer to Buy and Contract of Sale.
(a) The offer to buy private property for public use or purpose shall be in
writing. It shall specify the:
(1) property sought to be acquired,
(2) the reasons for its acquisition, and
(3) the price offered.
(b) If the owner or owners accept the offer in its entirety, a contract of sale
shall be executed and payment forthwith made.
(c) If the owner or owners are willing to sell their property but at a price
higher than that offered to them, the local chief executive shall call them to
a conference for the purpose of reaching an agreement on the selling price
(Note: Failure to conduct such conference is a ground to dismiss the case
when not alleged). The chairman of the appropriation or finance
committee of the sanggunian, or in his absence, any member of the
sanggunian duly chosen as its representative, shall participate in the
conference. When an agreement is reached by the parties, a contract of sale
shall be drawn and executed.
(d) The contract of sale shall be supported by the following documents:
> Resolution of the sanggunian authorizing the local chief
executive to enter into a contract of sale. The resolution
shall specify the terms and conditions to be embodied in
the contract;
> Ordinance appropriating the amount specified in the
contract; and
> Certification of the local treasurer as to availability of
funds together with a statement that such fund shall not be
disbursed or spent for any purpose other than to pay
for the purchase of the property involved.
" Art. 36. Expropriation Proceedings.
(a) If the LGU fails to acquire a private property for public use, purpose, or welfare through
purchase, LGU may expropriate said property through a resolution of the sanggunian authorizing
its chief executive to initiate expropriation proceedings.
(b) The local chief executive shall cause the provincial, city, or municipal attorney concerned or, in
his absence, the provincial or city prosecutor, to file expropriation proceedings in the proper court in
accordance with the Rules of Court and other pertinent laws.
(c) The LGU may immediately take possession of the property upon the
filing of expropriation proceedings and upon making a deposit with the
proper court of at least fifteen percent (15%) of the fair market value of the
property based on the current tax declaration of the property to be
expropriated.
" Art. 37. Payment. - The amount to be paid for the expropriated property shall be
determined by the proper court, based on the fair market value at the time of the
taking of the property.
A. NECESSITY
It means that there should be genuine necessity for the expropriation of the private property.
Who determines genuine necessity?
" The courts. But you must first determine whether the expropriation is done by the
National Government or the Local Government as explained in the case of Heirs of
Alberto Sugitan vs Mandaluyong.
" The rule is: if it is exercised by Congress, the court, being a co-equal branch, must respect
the determination made by Congress insofar as the issue on necessity is concerned. Thus,
a POLITICAL QUESTION so the courts will not interfere. But in the case of LGU, not co-
equal with the judicial branch, when there is an issue on necessity in an expropriation, the
courts can review.
Heirs of Alberto Suguitan vs Mandaluyong
Despite the existence of this legislative grant in favour of LGUs, it is still the duty of the courts
to determine whether the power of eminent domain is being exercised in accordance with the
delegating law.
In fact, the courts have adopted a more censorious attitude in resolving questions involving
the proper exercise of this delegated power by local bodies, as compared to instances when
it is directly exercised by the national legislature.
Upon the other hand, the Legislature may directly determine the necessity for appropriating
private property for a particular improvement for public use, and it may select the exact
location of the improvement. In such a case, it is well settled that the utility of the proposed
improvement, the existence of the public necessity for its construction, the expediency of
constructing it, the suitableness of the location selected, and the consequent necessity of taking
the lands selected, are all questions exclusively for the legislature to determine.
De la Paz Masikip vs Pasig
Where the taking is done for the benefit of a small community which seeks to have its
own sports and recreational facility only a short distance away, such taking cannot be
considered to be for public use.
The right to take private property for public purposes necessarily originates from the
necessity and the taking must be limited to such necessity. The very foundation of the
right to exercise eminent domain is a genuine necessity and that necessity must be of a
public character. Moreover, the ascertainment of the necessity must precede or
accompany and not follow, the taking of the land. The necessity within the rule that the
particular property to be expropriated must be necessary, does not mean an absolute but
only a reasonable or practical necessity, such as would combine the greatest benefit to the
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public with the least inconvenience and expense to the condemning party and the
property owner consistent with such benefit.
Applying this standard, we hold that respondent City of Pasig has failed to
establish that there is no genuine necessity to expropriate petitioners property. Our
scrutiny of the records shows that the Certification issued by the Caniogan
Barangay Council, the basis for the passage of Ordinance No. 42 s. 1993 authorizing
the expropriation, indicates that the intended beneficiary is the Melendres
Compound Homeowners Association, a private, non-profit organization, not the
residents of Caniogan. It can be gleaned that the members of the said Association
are desirous of having their own private playground and recreational facility.
Petitioners lot is the nearest vacant space available. The purpose is, therefore, not clearly
and categorically public. The necessity has not been shown, especially considering that
there exists an alternative facility for sports development and community recreation in
the area, which is the Rainforest Park, available to all residents of Pasig City, including
those of Caniogan.
What may be reviewed by the Courts:
Judicial review of the exercise of eminent domain is limited to the following areas of concern:
a) The adequacy of compensation;
b) The necessity of the taking, and
c) The public use character of the purpose of the taking.
B. PRIVATE PROPERTY
Whether expropriation can be made when the private property is already devoted for public
use?
" If the expropriator is the National Government, it is plenary. So Congress can expropriate
even if the private property is devoted for public use.
" If the expropriator is LGU, there should be a law granting the authority to expropriate a
private property that is already devoted for public use. (Read: City Manila vs Chinese
Community)
C. TAKING
Taking should not be interpreted literally that the private owner should be ousted from the
property. Taking simply means the deprivation of the beneficial use of the property.
D. Public Use
2 concepts of public use:
" Traditional public use means that it can be availed by anyone (e.g. public plaza, roads,
etc.)
" Modern the government should delivered social justice as being mandated by the
Constitution, public use means the services that were orignally undertaken by private
entities are now being undertaken by the government. Anything that will benefit or give
advantage to the public. Same as General Welfare. (e.g. Social Housing project)
E. Just Compensation
Fair Market Value of the property
Generally, FMV is the value of the property given by a seller who is not compelled to sell and
by the buyer who is not compelled to buy.
FMV is determined at the time of the taking or at the time of the filing of the complaint,
whichever came first. But if the expropriator is the LGU, the FMV is to be determined at the
time of the taking.
When only a portion of the property is expropriated = FMV + consequential damages
consequential benefits.
Must be paid promptly, if not, it is not JUST compensation anymore.
If delayed, 12% annual interest
F. DUE PROCESS
Always a requirement because the effect of exercising the power of eminent domain
would be a deprivation of property and Sec. 1 of the Bill of Rights mandates it.
SPECIFIC REQUIREMENTS
Jesus is Lord Christian School vs City of Pasig
The right of eminent domain is usually understood to be an ultimate right of the sovereign
power to appropriate any property within its territorial sovereignty for a public purpose.
The nature and scope of such power has been comprehensively described as follows: ... It
is an indispensable attribute of sovereignty; a power grounded in the primary duty of
government to serve the common need and advance the general welfare. Thus, the right of
eminent domain appertains to every independent government without the necessity for
constitutional recognition. The provisions found in modern constitutions of civilized countries
relating to the taking of property for the public use do not by implication grant the power to
the government, but limit the power which would, otherwise, be without limit. Thus, our own
Constitution provides that [p]rivate property shall not be taken for public use without just
compensation. Furthermore, the due process and equal protection clauses act as additional
safeguards against the arbitrary exercise of this governmental power.
The LGU has the burden of proving that the foregoing requirements have been complied with
and that all reasonable efforts have been exhausted.
A historical research discloses the meaning of the term public use to be one of constant
growth. As society advances, its demands upon the individual increases and each demand is a
new use to which the resources of the individual may be devoted. ... for whatever is
beneficially employed for the community is a public use.
IRR on valid and definite order must be complied with
The purpose of the requirement of a valid and definite offer to be first made to the owner is to
encourage settlements and voluntary acquisition of property needed for public purposes in
order to avoid the expense and delay of a court action. The law is designed to give to the
owner the opportunity to sell his land without the expense and inconvenience of a protracted
and expensive litigation. This is a substantial right which should be protected in every
instance. It encourages acquisition without litigation and spares not only the landowner but
also the condemnor, the expenses and delays of litigation. It permits the landowner to receive
full compensation, and the entity acquiring the property, immediate use and enjoyment of the
property. A reasonable offer in good faith, not merely perfunctory or pro forma offer, to
acquire the property for a reasonable price must be made to the owner or his privy. A single
bona fide offer that is rejected by the owner will suffice.
Specific Requirements: (Sec 19, LGC and Jesus is Lord Christian School vs City of Pasig)
1) An ordinance is enacted by the LG council authorizing the local chief executive, in
behalf of the LGU, to exercise the power of eminent domain or pursue expropriation
proceedings over a particular private property.
2) For public use, purpose, or welfare, or for the benefit of the poor and the landless.
3) There is payment of just compensation as required under Sec. 9, Article III of the
Constitution and other pertinent laws.
4) A valid and definite offer has been previously made to the owner of the property
sought to be expropriated, but said offer was not accepted.
Add: Filstream International, Inc. vs CA GR 125218 Jan 23, 1998. (in re: expropriation for
urban development and housing)
5) Priorities in the acquisition ofland shall be complied with as mandated by RA 7279
(Urban Devt. And Housing Act of 1992) (meaning: private lands should be last in
the selection of land! (Sec. 9 of RA 7279)
6) Expropriation shall be resorted to only when other modes of acquisition have been
exhausted. (Sec. 10, RA 7279)
Valid and Definite Offer
Art. 35 of the LGU - Offer to Buy and Contract of Sale.
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peculiar to an expropriation done by a LGU. This is not required if it is done by all other
entities (i.e. national government and public utility companies)
Mun. of Paranaque vs VM Realty
Petitioner relies on Article 36, Rule VI of the IRR, which requires only a resolution to
authorize an LGU to exercise eminent domain. This is clearly misplaced, because Section
19 of RA 7160, the law itself, surely prevails over said rule which merely seeks to
implement it.
It is axiomatic that the clear letter of the law is controlling and cannot be amended by a
mere administrative rule issued for its implementation. Besides, what the discrepancy seems to
indicate is a mere oversight in the wording of the implementing rules, since Article 32, Rule VI
thereof, also requires that in exercising the power of eminent domain, the chief executive of the
LGU must act pursuant to an ordinace.
The LGC specifically requires ordinance hence a mere resolution will not suffice. Is there a
difference? Substance: effect of a law vs sentiment of local council; three readings vs two
readings.
Res judicata does not apply to bar the State of its agent to expropriate private property. (no
res judicata to the right, as when only the legal requirements were not previously complied
with.)
Province of Cam Sur vs CA
The LGC does not require that LGUs must first secure the approval of DAR for conversion of
lands from agricultural to non-agri before they can institute expropriation proceeding. Neither
does the CARL provide that the power of the LGU to expropriate agri lands is subject to the
control of the DAR. Besides, determination of public use is legislative not executive. E.g. thru
the DAR
Modernly, there has been a shift from the literal to a broader interpretation of public
purpose or public use for which the power of eminent domain may be exercised. The old
concept was that the condemned property must actually be used by the general public (e.g.
roads, bridges, public plazas, etc.) before the taking thereof could satisfy the constitutional
requirement of public use.
Under the new concept, public use means public advantage, convenience for benefit, which
tends to contribute the general welfare and the prosperity of the whole community, like a
resort complex for tourists or housing project.
The expropriation of the property authorized by the questioned resolution is for a public
purpose. The establishment of a pilot development center would inure to the direct benefit and
advantage of the people of the Province of Camarines Sur. Once operational, the center would
make available to the community invaluable information and technology on agriculture,
fishery and the cottage industry. Ultimately, the livelihood of the farmers, fishermen and
craftsmen would be enhanced. The housing project also satisfies the public purpose
requirement of the consti.
The CA decision is set aside insofar as it requires the Province of Camarines Sur to obtain the
approval of the DAR to convert or reclassify private respondents property from agricultural
to non-agricultural use.
City of Cebu vs Dedamo
Sec. 19 of RA 7160 expressly provides that just compensation shall be determined as of the
time of actual taking and not as of the date of the filing of the complaint. (Note: GR is that just
compensation shall be determined as of the time of actual taking or the date of the filing of the
complaint, whichever came first. However, the exception is when done by LGU.)
The applicable law as to the point of reckoning for the determination of just compensation is
Section 19 of R.A. No. 7160, which expressly provides that just compensation shall be
determined as of the time of actual taking.
The petitioner has misread our ruling in The National Power Corp. vs. Court of Appeals. We
did not categorically rule in that case that just compensation should be determined as of the
filing of the complaint. We explicitly stated therein that although the general rule in
determining just compensation in eminent domain is the value of the property as of the date of
the filing of the complaint, the rule "admits of an exception: where this Court fixed the
value of the property as of the date it was taken and not at the date of the commencement
of the expropriation proceedings."
More than anything else, the parties, by a solemn document freely and voluntarily agreed
upon by them, agreed to be bound by the report of the commission and approved by the
trial court. The agreement is a contract between the parties. It has the force of law between
them and should be complied with in good faith under Article 1159 and 1315 of the Civil
Code.
While sec 4 of Rule 67 of ROC provides that just compensation shall be determined at the
time of the filing of the complaint for expropriation, or time of taking which ever comes
first, such rule cannot prevail over RA 7160 which is a substantive law.
Rep. vs Lim
There is a recognized rule that title to the property expropriated shall pass from the owner to
the expropriator only upon full payment of the just compensation. So, how could the Republic
acquire ownership over Lot 932 when it has not paid its owner the just compensation, required
by law, for more than 50 years? Clearly, without full payment of just compensation, there can
be no transfer of title from the landowner to the expropriator.
SC ruled in earlier cases that expropriation of lands consists of two stages. First is concerned
with the determination of the authority of the plaintiff to exercise the power of eminent
domain and the propriety of its exercise. The second is concerned with the determination by
the court of "the just compensation for the property sought to be taken." It is only upon the
completion of these two stages that expropriation is said to have been completed In Republic
v. Salem Investment Corporation, we ruled that, "the process is not completed until payment
of just compensation." Thus, here, the failure of the Republic to pay respondent and his
predecessors-in-interest for a period of 57 years rendered the expropriation process
incomplete.
Thus, SC ruled that the special circumstances prevailing in this case entitle respondent to
recover possession of the expropriated lot from the Republic.
The landowner is entitled to recover possession of the property expropriated if the govt. fails
to fully pay just compensation to the owner within a period of 5 years from the finality of the
judgment in an expropriation proceeding.
SC defined just compensation as not only the correct determination of the amount to be paid to
the property owner but also the payment of the property within a reasonable time. Without
prompt payment, compensation cannot be considered "just."
What if after decision, the government cannot pursue the original purpose of the expropriation?
Whats the option of the owner?
If the LGU wants to devote it for another purpose/use, file another expropriation proceeding.
Anunciacion Vda. De Ouano vs. Rep
" If the genuine public necessity of exprop. Of a private land ceases or disappears, then
there is no more cogent point for the govt.s retention of the expropriated land. The same
legal situation should hold if the govt. devotes the property to another public use very
much different from the original or deviates from the declared purpose to benefit another
private person.
" If expropriated property is not developed for the purpose in which it was taken, either it
is abandoned or devoted to another purpose, former owner may seek reversion.
" Public use, as an eminent domain concept, has now acquired an expansive meaning to
include any use that is of "usefulness, utility, or advantage, or what is productive of
general benefit [of the public]." If the genuine public necessitythe very reason or
condition as it wereallowing, at the first instance, the expropriation of a private land
ceases or disappears, then there is no more cogent point for the governments retention
of the expropriated land. The same legal situation should hold if the government
devotes the property to another public use very much different from the original or
deviates from the declared purpose to benefit another private person. It has been said
that the direct use by the state of its power to oblige landowners to renounce their
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productive possession to another citizen, who will use it predominantly for that
citizens own private gain, is offensive to our laws.
" Once the purpose is terminated or peremptorily abandoned, then the former
owner, if he so desires, may seek its reversion, subject of course to the return, at
the very least, of the just compensation received.
" More particularly, with respect to the element of public use, the expropriator
should commit to use the property pursuant to the purpose stated in the petition
for expropriation filed, failing which, it should file another petition for the new
purpose. If not, it is then incumbent upon the expropriator to return the said
property to its private owner, if the latter desires to reacquire the same. Otherwise,
the judgment of expropriation suffers an intrinsic flaw, as it would lack one indispensable
element for the proper exercise of the power of eminent domain, namely, the particular
public purpose for which the property will be devoted. Accordingly, the private property
owner would be denied due process of law, and the judgment would violate the property
owners right to justice, fairness, and equity.
" In light of these premises, we now expressly hold that the taking of private property,
consequent to the Governments exercise of its power of eminent domain, is always
subject to the condition that the property be devoted to the specific public purpose for
which it was taken. Corollarily, if this particular purpose or intent is not initiated or not at
all pursued, and is peremptorily abandoned, then the former owners, if they so desire,
may seek the reversion of the property, subject to the return of the amount of just
compensation received. In such a case, the exercise of the power of eminent domain has
become improper for lack of the required factual justification.
MCIAA vs Lozada, Sr.
The expropriator should commit to use the property pursuant to the purpose stated in the
petition for expropriation filed, failing which, it should file another petition for the new
purpose. If not, it is then incumbent upon the expropriator to return the said property to its
private owner, if the latter desires to reacquire the same.
In case of Immediate Possession
Before an LGU may enter into the possession of the property sought to be expropriated, it must:
File a complaint for expropriation sufficient in form and substance in the proper court
and
Deposit with the said court at least 15% of the propertys fair market value based on its
current tax declaration. The law does not make the determination of a public purpose a
condition precedent to the issuance of a write of possession. (Francia vs Meycauayan)
complaint, no expropriation proceeding could be said to exist. Until then, the petitioners
as the owners could not also be deprived of their property under the power of eminent
domain.
Only when the landowners are not given their just compensation for the taking, of their
property or when there has been no agreement on the amount of JC may the remedy of
prohibition become available. (SPS Yusay)
2010 Bar: A valid and Definite offer to buy a property is a pre-req to expropriation initiated by
an LGU. True of False.
2009 Bar: FCC a local manufacturer of computers owns a sprawling plain in a 5000sq.m. lot in Pasig.
To remedy the citys acute housing shortage, the SP authorized City Mayor to negotiate for
purchase of lot. The SP intends to subdivide the property into small residential lots to be distributed
at cost to qualified city residents. But FCC refused to sell the lot. Hard pressed to find a suitable
property to house its homeless residents, the city filed a complaint for ED against FCC.
If FCC hires u, what defense or defenses would you set up in order to resist the expropriation
of the property? Specific Requirements
If the court grants City, but city delays payment of the amount determined by the court as JC,
can FCC recover the powerty from Pasig City? Case of Republic vs Lim
Suppose the expropriation succeeds, by City decides to abandon plan for residential purposes,
can FCC legally demand that it be allowed to repurchase the property from pasig? Why/not?
Case of Anunciacion Vda De Ouano vs Republic
2005 Bar: The SB of Mun. of Santa, passed Resolution 1 authorizing mayor to file expropriation of a lot
owned by Christina for a municipal sports center. This was approved by Mayor. However, the SP of
Ilocos sur disapproved the Resolution as there might still be other available lots. Nonetheless, mun of
santa filed for ED. Christina opposed basing on: (Resolve the case)
The Mun. has no power to expropriate. It has the power to expropriate.
Resolution No. 1 has been voided since SP disapproved it. No, the power of SP is limited to
determination of ultra vires or not. (But it should be ordinance not resolution)
The Mun of Sta. has other and better lots for the purpose. explain genuine necessity
GOD BLESS! $

Prohibition, not proper in Eminent Domain!

This bar against prohibition comes from the nature of the power of eminent domain as
necessitating the taking of private land intended for public use, and the interest of the affected
landowner is this made subordinate to the power of the State. Once the state decides to
exercise its power of eminent domain, the power of judicial review becomes limited in scope,
and the courts will be left to determine th appropriate amount of just compensation to be paid
to the affected landowners.
The fact that there is no cause of action is evident from the face of the Complaint for
expropriation which was based on a mere resolution. The absence of an ordinance authorizing
the same is equivalent to lack of cause of action.
In view of the absence of the proper expropriation ordinance authorizing and providing for
the expropriation, the petition for certiorari filed in the RTC was dismissible for lack of cause
of action.
The remedy of prohibition was not called for, considering that only a resolution expressing the
desire of the Sangguniang Panglungsod to expropriate the petitioners' property was issued. As
of then, it was premature for the petitioners to mount any judicial challenge, for the power of
eminent domain could be exercised by the City only through the filing of a verified complaint
in the proper court. Before the City as the expropriating authority filed such verified