LOCAL GOVERNMENT LAW (PUBLIC CORPORATION)
B. Classification
(Note: This reviewer incorporates recent jurisprudence in local government
law, codal provisions and transcripts based on Atty. DBL’s discussion and
syllabus. It is suggested that you read first thru the transcript, and refer to the
codals and jurisprudence for in-depth understanding.  2013 No rights are
reserved and students are encouraged to update this material with the latest
jurisprudence in local government law.)
PART I – GENERAL PRINCIPLES
A. Corporation
A. Definition
- A corporation is called a public corporation if it is created
by the state, either by general or special act, for purposes of
administration of local government or rendering service in
the public interest.
- In the power point presentation, you will see there that
special act has been emphasized because this is a definition
given by an American author. If you apply it to the
Philippines the issue on public corporation can only be
through a special act rather if you are to talk about
municipal corporation only through a special act. But quasi-
public corporations may be created through general law
because if you look at the definition there, quasi-public
corporations, they are created as agencies of the state for
limited purposes but without the powers and liabilities of self-
governing corporations. These are actually private
corporations but they render government/public function,
which is the delivery of public service or the supply of public
want. Very common, of course, public utility companies.
Public utility companies, they come within the purview of the
concept of quasi-public corporations.
- The second kind of public corporation is municipal
corporation which is referred to as local government unit.
As defined, it is a body politic and corporate, constituted by
the incorporation of the inhabitants for purposes of local
government thereof. These are called local governments.
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
a. Classification of corporations according to purpose:
i. Public – is a corporation that is created by the state,
either by general or special act, for purposes of
administration of local government or rendering
service in the public interest. It is organized for the
government of a portion of the State
ii. Private – formed for some private purpose, benefit,
aim or end
C. Public and Private Corporations, distinguished
D. Public Corporation, classified
a. Quasi-public corporation – created by the state for a narrow
or limited purpose; a private corporation created pursuant to
the Corporation Code that renders public service or supplies
public wants
o Examples: Public utility companies, electric
companies, water districts, telecommunication
companies
b. Real public corporation/Municipal corporation – a body
politic and corporate constituted by the incorporation of the
inhabitants for the purpose of local government (Sec 15,
LGC)
E. Municipal Corporation, defined –
- The term local government may be perceived in 3 different
ways. You may consider having local governments as: 1)
limitation to the power of central government; 2) political
subdivisions of the national government; and 3) municipal
corporations, primarily for the inhabitants or the community
in a certain locality.
- The first view of a local government as limitation to the
central government is that basically, if there is no local
government system, then all powers of government are
concentrated in the national government. But if you have
local governments, then certain powers are distributed or
allocated to local governments and therefore all the powers
of governance is not concentrated in the central
government. In a way, it becomes a limitation to the central
government. It deals pretty much on allocation of powers
and allocation of powers is one fundamental method of
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 limiting powers of government. You can view local
government that way. That is not the common view.
- The common view is to view local government as either
political subdivision of the state or even territorial
subdivision of a particular territory. Sometimes, if we talk of
the province, we don't look at the province as a body politic.
It's either we look at the province as that belonging to Gwen
or belonging to the Cebuano population belonging to the
province or you can look at the province as a mere territory.
But in the study of local government law, we view the local
government not just as a political subdivision but more of a
municipal corporation.
B. Municipal Corporations
1. Elements
- Taken from the word of Lord Cope of England borrowed by
the US and of course where we have patterned our
constitutional law system. We also have to use the elements
already identified by certain authorities on the study of
municipal corporation.
a. legal creation or incorporation - this actually refers to
the law creating a local government unit. (Note: a
barangay may be created by law, or by an ordinance by
the sangguniang panlalawigan or sangguniang
panlungsod concerned, where the barangay is located–
see Sec. 6, LGC)
b. corporate name - like the City of Cebu, that's the
corporate name. Cebu City is not a corporate name, by
the way, of the city, it's the City of Cebu.
c. inhabitants, of course, the population in a given
territory and then, of course,
d. territory – the land mass where the inhabitants reside,
together with the internal and external waters, and the
air space above the land and waters.
(Almost like the elements of a state.)
2. Dual Nature and Functions
- In the study of local government law, it is important that we
put in mind that a local government unit has dual nature or
functions: governmental (or public or political) and
proprietary (or private or corporate powers).
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
- As defined, governmental function is the administration of
the powers of the state and the promotion of public welfare.
If the LGU performs the governmental function, it performs
like an agent of the central government. So this is the view
that it is a political subdivision.
o Example of governmental function: local police
power, enactment of ordinances, regulation of
certain activities, levy and collection of taxes, local
eminent domain
o In all these, you will notice that LGU is exercising a
function that pertains to the government, that's why
it is called an agent of the national government in
this regard and therefore is a political subdivision.
- If it is proprietary function, then the function exercised is to
give special benefit or advantage to the members of the
community. That is the view as a municipal corporation. As
such, it acts as a separate entity, for its own purposes, and
not as a subdivision of the state. A kind of power that is
exercised for the special benefit and advantage of the
community
o Examples of proprietary function, meaning functions
that are not pertaining to the government:
establishment of slaughter houses; parks; cemeteries;
fiesta celebrations and other similar functions.
- And this nature or dual function of LGU is not just based on
opinions of authorities, in fact under Art. 15 of LGC 1991, this
is being recognized. This is not just based on jurisprudence
but it is found in the very provision in our LGC; is found in
Art. 15, it says political and corporate nature of local
government units.
SECTION 15. Political and Corporate Nature of Local Government Units. —
Every local government unit created or recognized under this Code is a body
politic and corporate endowed with powers to be exercised by it in conformity
with law. As such, it shall exercise powers as a political subdivision of the
national government and as a corporate entity representing the inhabitants of
its territory.
- Every local government unit created or recognized under this
Code is a body politic and corporate endowed with powers
to be exercised by it in conformity with law. As such, it shall
exercise powers as: 1) political subdivision of the national
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 government and 2) as corporate entity representing the
inhabitants of its territory.
 Importance of determining the dual functions of local government.
- Suability vis-à-vis liability of local governments. Suability of
local governments – governed by Sec. 22 of the LGC. It is a
form of express consent to sue and be sued. Liability - What
about liability? Public funds cannot be the subject to liability,
garnishment, execution, attachment. What about disposition
of assets? If we are to talk about south road properties, for
example, if you argue that there shouldn't be public bidding
for the disposition of these properties, why would you argue
that way? What is important here, aside from knowing the
distinction, which one is governmental which one is
proprietary, you should also know the rule. Because you
cannot just say that one rule applies to this and the other.
- Liability of LGUs for damages like by reason of torts. If the
driver of the Kaohsiung bus of the City of Cebu, by reason of
negligence, kills a pedestrian. How should you resolve the
issue of liability? What about a dump truck for example, of
the City of Cebu, delivering sand and gravel for the repair of
roads in the City of Cebu and the driver had been negligent,
either because he was under the influence of liquor while
driving or simply over-speeding? If the City of Cebu is
undergoing repairs in the SRP to pave the way for
development, economic development in that area and then
by reason of negligence, a worker, for example, injures a
pedestrian, those are some areas of concern. Garnishment of
funds. Even liability of LGU for contracts.
- There's a school of thought that suggests that you also have
to characterize the function of the governmental there
because the rule that when a government enters into a
contract, and that therefore, it descends itself to the level of
a private individual and for which reason it can be sued and
even be held liable is not an absolute rule. That is one school
of thought, so in local government law, we also would want
to look at the function performed by the LGU when it enters
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
into a contract in so far as liability under the contract is
concerned.
Here's an example of a question in the BAR exam that deals with practically
the importance of governmental and proprietary functions.
BAR QUESTION: Johnny was employed as a driver by the Municipality of
Calumpit. While driving recklessly a municipal dump truck with its load of
sand for the repair of municipal streets, Johnny hit a jeepney and 2
passengers of the jeepney died. Is the municipality liable for the negligence
of Johnny?
ANSWER: NOT LIABLE, since Johnny was performing a governmental
function. He acts as an agent of the national government and the national
government enjoys the privilege of immunity from suit.
There is a distinction between governmental and proprietary functions of the
local government. Indeed, in one case, in Municipality of San Fernando, La
Union vs. Firme, a distinction was made between governmental and
proprietary and what's the rule? If the regular employee of LGU had been
performing governmental function, what's the rule? NOT LIABLE. What's the
rationale behind that principle? If it performs a governmental function, then it
becomes an agent of the national government and the national government
enjoys the privilege of being immune from liability if it is also performing
governmental function.
Agent man xa so he shall also share the same privilege kai agent man xa of
the national government. But if the LGU is performing a proprietary function,
then he is not related to the national government, it enjoys the same
privilege of not being liable for the negligence of the regular employees.
- If that's your answer, you'll be given full credit but the UP
Law Center gives 2 alternative answer because it observed
that under Sec. 24 of the LGC 1991, there's an express
declaration that the LGU and its officials are not exempt from
liability of death of persons or damage to property. This is, of
course, with reference to liabilities as a result of negligent
acts. That is Sec. 24. if you answer that, it's very clear, there is
no qualification, governmental or proprietary.
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Alternative Answer: YES, the municipality shall be liable because of Sec 24
of the local government code of 1991. In Sec 24, there is no qualification
whether the function is governmental or proprietary.
- SECTION 24. Liability for Damages. — Local government
units and their officials are not exempt from liability for
death or injury to persons or damage to property.
UP Law Center has suggested an answer that is also correct. But the
alternative answer is to distinguish between governmental and proprietary
which is also correct. This should be tested in the SC. It seems that these are
not actually compatible answers. Because Sec.24 does not make any
qualification, so in all cases, not exempt but in the 2nd answer, a qualification
will help; it will distinguish the liability. Aside from that, there is also
usefulness in distinguishing the function or at least realizing that a LGU
performs dual functions.
*Transcript*
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.
Case of Bara Lidasan vs COMELEC. A law was passed creating a certain
municipality and it was supposed to consist of 21 barangays according to the
law. When the law creates a municipality, it would list down the member
barangays. However, someone questioned the law as unconstitutional
because they found out that the supposed newly created municipality
involved 12 barangays from a neighboring province instead of just getting all
barangays in the same municipality. One municipality covering barangays
from one province and another barangays from another province. It was
questioned on the ground that it violates the one subject expressed in the
title rule. A law to be valid, it must only contain one subject and it must be
expressed as far as practicable in the title thereof. The petitioner there
argued that this law covered 2 subjects: 1) the creation of the new
municipality; 2) the reduction of the territory of the neighboring province.
Indeed, it was declared unconstitutional, the law creating that municipality. At
least in so far as the 12 barangays were concerned at that time, the 12
coming from a separate province. Wala mo-surrender ang proponents. Ingon
sila illegal ang 12, let's make it still valid in so far as the 9 barangays are
concerned. Total valid man sila kai they belong to the same municipality.
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
They will only be carved out from the same municipality. So, kun invalid ang
12, the law should be saved in so far as the 9 barangays are concerned.
Ingon SC: well, OK na if a LGU in the Philippines only serves one function, and
that is as agent of the national government because whatever it does, it may
only seek or ask resources from the national government. But the thing is,
according to the SC, it also function as a corporate body and as the
representative of its constituents and therefore the issue of self-sufficiency.
Would it be self-sufficient with just 9 barangays? Will it have enough funds to
perform its corporate function? SC said, in the Philippines, every municipal
corporation performs twin functions. The same knowledge or this realization
of the distinction between governmental and proprietary and that LGU
possesses dual function.
This was also applied in Surigao Electric Co., Inc. vs Municipality of Surigao.
Surigao Electric Co. was the only electric company operating in Surigao at
that time. I think this is now known as the City of Surigao. One time, the LGU
operated an electric company without obtaining a certificate of public
convenience from the Public Service Commission. Of course, Surigao Electric
Co. complained. Why didn't the Municipality of Surigao obtain a certificate of
public convenience when it operated a public utility company? And under the
Public Service Law, you must have a certificate of public convenience. The
LGU concerned argued that if you look at the Public Service Law, there is an
exception there. It says: if you are an instrumentality of national government,
you are exempt from obtaining a certificate of public convenience. The issue
at the time it reached the SC, whether or not a LGU can be classified as an
instrumentality of the national government. And to the extent that a LGU
performs governmental function, then it can be considered an instrumentality
of the national government. So it was exempt from the certificate of public
convenience.
In one BAR examination, simple ra kaau ang question, I think this is in the
area of Administrative Law. Nag-lista ang examiner ug name of agencies,
then the examinees were asked to identify whether these are agencies of the
government or instrumentalities of the government, then, explain. LGU was
not included there but what if the same question will be asked and aside
from putting their certain companies or corporation or agencies, they will
add City of Cebu? At least you know the case of Surigao Electric Co. says
maybe considered as an instrumentality of the national government.
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 3. Sources of Powers
- Article X, 1987 Constitution
- Local Government Code (LGC) of 1991 – this is actually the
consolidation of past local government laws (took effect on
January 1, 1992)
- Other statutes and acts not inconsistent with these laws,
such as the Civil Service Law
- Charter of the LGU – for powers that are specifically granted
*But if we talk about powers, basically you have the 1987 Constitution and
the LGC, in general. But if you are to talk about powers that are specific
powers, then you look at the charter, the law creating the LGU. According to
the Code, if this LGU will be created under the LGC of 1991, the content of
the charter will be valid only in so far as it is not inconsistent with the LGC of
1991.
4. Classification of Powers
5. Types of Municipal Corporations
i. De jure – created with all the elements of a municipal
corporation present
ii. De facto – where there is colorable compliance (not full
or complete, but simply colorable, meaning almost or
seems like) with the requisites of a de jure municipal
corporation
- Example of colorable compliance: There’s a law creating the
municipal corporation but it is defective
6. De facto Municipal Corporation doctrine; Elements
This is different from de facto and de jure governments in your political law
and international law because this is only with reference to the requirements
of creating an LGU whereas in de facto and de jure governments in public
international law, the issue there is more complicated and besides, the terms
de jure and de facto governments are used only in a particular condition or
situation not in any situation like the case of Philippine government at
present, how will you characterize it? Will you characterize it as de jure or de
facto Philippine government? You already learned from your PIL that you only
use the terms de jure and de facto if there are 2, at least, contending
governments in a given territory. One is considered de jure if it has the legal
title to govern the territory but it has not actually govern the territory like a
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
government in exile. The other government which has not the legal title but
is actually governing the territory that is the de facto government. That's the
distinction between de facto and de jure government.
But here, that's not the case, we only refer to the manner of creating it. It is
de jure, of course, if it has all the elements of a municipal corporation and we
already mentioned the elements of a municipal corporation. It is de facto,
though, if there is barely colorable compliance with the requisites of a de jure
municipal corporation. What's the importance of distinguishing de jure from
de facto? Why distinguish de jure from de facto? Actually, there isn't much
relevance or significance rather at all if you talk about de jure or de facto
because in local government law, whether you are de jure or de facto, you will
be treated as de jure municipal corporation.
What is important or significant though is for you to be able to distinguish
between a de facto and a non-municipal corporation. That's why it is
important whether a certain group of people will qualify as a municipal
corporation or not. If it attains the status of a de facto municipal corporation,
that is only for academic purpose, that in case it is not de jure, but you will
treat the acts of the the LGU and its officers as if the LGU is a de jure
municipal corporation. That is the meaning of the doctrine of a de facto
municipal corporation. Do not think that because it's de facto, the act will be,
in so far as legitimacy is concerned, will be different from a de jure
government, NO. The acts of that LGU and its officers will be treated as if
they are the acts of legitimate de jure municipal corporation. What is
important is for you to be able to distinguish between a de jure municipal
corporation and a non-municipal corporation, meaning it's not a municipal
corporation, at all.
 Doctrine of de facto municipal corporation
That's the meaning of the so-called doctrine of de facto municipal
corporation. There is authority in law for a municipal corporation, the
organization of the people of a given territory as such corporation under a
color of delegated authority followed by user in good faith of the governmental
powers will be recognized by law a municipal corporation de facto, wherever
through the failure to comply with the constitutional and statutory
requirements, the corporation cannot be said to exist de jure.
Thus, the elements of a de facto municipal corporation are as follows:
1. valid law authorizing incorporation
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 2. attempt in good faith to organize
3. colorable compliance with law
4. assumption of corporate powers
In one book on municipal corporations, this is the reason for the doctrine
of de facto corporation: Strong public policy supporting the security of
units of local government and conduct of business against attack, grounded
upon a inquiry into the legality of their organization. It also underlies the
theory that local units may exist by whatever-fusion, we go back to the
doctrine, it says under a color of delegated authority, and at least there is
that colorable compliance, then we have to secure the inhabitants from
illegal challenge of its existence and worse it will prejudice the acts of the
community or rather of the LGU and affect the general welfare. The other one
is it shall be followed by a user in good faith. This is the requirement for
prescription that an LGU may exist by reason of prescription. Some books
made mention of long use of corporate power as an element of a de facto
municipal corporation.
 Effects of a de facto corporation status.
- What are the effects of a de facto corporation status? We
want to determine whether a group of people has achieved
the de facto status, if the answer is YES, the, these are the
effects: 1) the acts of that entity will be respected and will be
recognized as valid and binding by the state as if it is a de
jure public corporation.
 Doctrine of Operative Fact
In one case, there is also the application of the doctrine of operative fact in
the case of Malabang vs Benito that SC cannot just close its eyes to the fact
that before an LGU had been declared illegally created, it had operated as an
LGU; it had entered into transaction; it had exercised certain powers and the
effects of these will have to be honored and recognized because of the
doctrine of operative fact.
However, even though long use of corporate power may make a corporation
a de facto municipal corporation, the State, however, reserves the right to
question the creation of a particular LGU or municipal corporation through
the method of what we call quo warranto proceeding (by what authority).
And, of course, a quo warranto proceeding is a direct attack to the existence
of a municipal corporation. However, while the state reserves the right to
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
question the existence of LGU despite long use of corporate powers, it may,
on the other hand, recognize and render, in fact, a de facto municipal
corporation de jure through a subsequent legislative recognition or
validation.
- De facto corporations. In one BAR examination, it
mentioned of the doctrine of operative fact as stated in the
case of Malabang vs Benito but still about de facto
corporation. These are the elements: 1) valid law authorizing
a corporation. The mere existence of law will not make a
corporation de facto. The law must in itself be valid. 2) And
then, in good faith to organize it. 3) colorable compliaance
with law and 4) assumption of corporate powers or the
exercise of corporate powers.
Cases:
Municipality of Jimenez vs Baz (1996): this involves the Municipality of
Sinacaban which was created through an Executive Order 258. Note of the
fact that it was created through an executive order; that it was created in
1949; since 1949 it had been exercising the powers of an LGU. In 1965,
through the famous Pelaez vs Auditor General case, a petition was filed to
invalidate certain executive orders which created certain municipalities at that
time. The word 'certain' means that not all municipalities that were created
through executive orders were the subject of the petition. The contention
was: the president cannot create an LGU because it is a legislative function.
(Backgrounder: Pelaez vs. Auditor General, decided in 1965,
invalidated 33 Executive Orders issued by the President creating 33
different municipal corporations. The President claimed his powers
are vested under the Sec. 68 of the Administrative Code. Pelaez, then
vice-president and with the looming elections, challenged the EOs
and the constitutionality of the section in the Administrative Code.
The SC sustained Pelaez, declared sec. 68 as unconstitutional, and
held that the creation of municipal corporations is essentially a
legislative function.)
SC agreed that the creation of an LGU is primarily a legislative function and
therefore these executive orders that were the subject of the petition were
declared unconstitutional, but not all of course, like the Municipality of
Sinacaban. The EO creating it was not among declared unconstitutional
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because you cannot, of course, make the ruling of the court applicable to
parties/entities/persons that have not been made parties to the case – that is
very basic. It was only in 1990 that someone questioned the existence of the
Municipality of Sinacaban. The fact that it was questioned only in 1990 is
relevant – long use of corporate powers. SC ruled that Sinacaban attained the
status of a de facto municipal corporation because its existence had not been
questioned for more than 40 years. Municipal corporations may also be
created by way of prescription or recognized at least its existence because of
prescription.
Municipality of San Narciso vs Mendez (1994): Municipality of San Andres
was created in 1959 through an EO. It became a 5th class municipality in 1965,
indicating that it had been performing the function of a municipal
corporation until the case of Pelaez vs Auditor General was decided. EO 353
creating the Municipality of San Andres was not among those questioned in
Pelaez case. San Andres, its existence, was questioned in 1989. SC had a
different perspective on this, it applied a certain provision of narrative, it
made an observation of the fact that in the ordinance appended to the 1987
Constitution apportioning legislative districts, take note it was questioned in
1989, meaning after the 1987 Constitution took effect. I think you have read
the Constitution, duna ba na ordinance or appendix, unsa man ang tua
didto? Legislative districts ang appropriate act. Apportionment of legislative
districts, naka-lista sa appendix of the 1987 Constitution. What was the
observation of the Court? One of the 12 municipalities composing the 3 rd
district of Quezon, naa gyud, Municipality of San Andres as one of those
municipalities, 12 of them composing the province of Quezon. SC said, di lng
na xa de facto, if you are apply the case of Jimenez. Even declared de jure by
subsequent recognition. Let's go back to what the Court mentioned about it:
“defective incorporation may be obviated and a de facto rendered de jure by
subsequent legislative recognition or validation.” SC observed nga di pa gani
ni-legislative, it is even constitutional. So, recognized by the state so it
attained the status of de jure municipal corporation.
In 1995, there was this case of Municipality of Candijay vs CA: the SC
applied the rulings in Jimenez and Narciso. Nagka-bright ang SC, there's
another reason mentioned by SC here.
In addition, according to the SC, the Municipality of Alicia, again it was the
Municipality of Candijay who questioned. You look at Sec. 442 (d) of the LGC
of 1991. it was described by the SC as curative law aimed at giving validity to
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
acts done that would have been invalid under existing laws as if existing laws
have been complied with. So, mao lng gihapon, Municipality of Alicia was
created via EO nya wala xa ma-declare as invalidly created sa Pelaez case,
nipadayon gihapon xa and then, cguro it must have been forgotten by those
who would love to ask or question the existence, na-abtan ug LGC of 1991
usa pa na question.
Ingon ang SC: let's look at 442(d), it's a curative law, it says: “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 executive orders and which have their respective set of elective
municipal officials, holding office at the time of the effectivity of this Code
which was on January 1, 1992, shall henceforth be considered as regular
municipalities.”
Kadtong not created via EO, presidential issuances, which continued, of
course, to function as such until the effectivity of LGC of 1991, then the
defect had been cured. And what's the status? De facto or de jure? This is now
the legislative validation, the Court had mentioned earlier, this curative
provision, Sec. 442(d) of the LGC. Tanan defective municipalities, cured na
pursuant to Sec. 442 (d) of the LGC of 1991.
In the case of Sultan Osop Camid vs Office of the President (2005):
Andong was created in 1964, created a year earlier when Pelaez vs Auditor
General was decided by the SC. It was among the municipalities declared
invalidly created in the case of Pelaez vs Auditor General but continued to
operate as an LGU. Declared invalidly created a year after its creation but
continued to operate as an LGU, allegedly according to the officials of
Andong. Perhaps when their lawyers came across the case of Narciso, oi naa
diay ng Sec. 442 (d) of the LGC, ato na i-invoke as a curative law. Para i-
confirm na xa ug de jure or at least de facto. Petitioner attached certificate
showing the exercise of corporate powers after Pelaez case was decided in
1965.
There's a caveat according to the SC, Sec. 442 (d) does not sanction the
recognition of just any municipality. Wala na ni-ingon nga para ra to mga
defectively created, they will be cured. It can only be applied to those that can
prove continued exercise of corporate powers. Kai mao man usa sa mga
elements sa de facto. There must be assumption of corporate powers. SC,
though, was too technical in disposing of the case. Ingon SC, we're not a trier
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of facts. The issue did not go through trial. The Court cannot just accept
certificate attached to the petition filed before it and say that it is valid and
that it is in fact based on certain facts, etc. Therefore, Andong failed to prove
its continued exercise of corporate powers. Aside from the fact that it was
already declared to be invalidly created in the Pelaez case. Their contention is
despite invalidation they continued to exercise corporate powers. But SC said
NO, that's different from the cases of Narciso and Candijay. 442 (d), therefore
is not a blanket curative law. It cannot be applied to just any municipality.
Only those that can prove continued exercise of corporate powers. The
doctrine of operative fact is applicable to invalidly created LGU.
- This was asked in the 2004 BAR exam. That was letter B
question but the problem before that involved a situation
where 30 barangays out of 50 wanted to separate from an
already existing municipality as a separate municipality. But
in relation to the doctrine of operative fact, the question was:
“Suppose 1 year after Masigla was constituted as a
municipality, the law creating it is voided because of defects,
would that invalidate the acts of municipality and/or its
municipal officers?”
- ANSWER: Applying the doctrine of operative fact, they will
be recognized, they will not be invalidated, both acts of
officers and that of the municipality. We cannot just close
our eyes to the fact that the municipality had been created, it
had entered into transactions and it had also exercised
corporate powers before it was invalidated.
- This is actually based on the so-called modern view in the
declaration of unconstitutionality of a law. The orthodox
view, you remember, that when a law is declared
unconstitutional, it's void from the very beginning. (it creates
no office, confers no rights, etc.) It's as if it had not been
enacted at all and therefore the state will not recognize any
effects but the doctrine of operative fact is the modern view
that there were actually acts that should be honored and
recognized by the state because before it was declared
unconstitutional, it was presumed constitutional and the
local officials and the people followed and obeyed the law
because it was presumed valid at the time.
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
7. Method of challenging the existence of a municipal corporation
- Quo warranto proceeding (under what authority) – this is a
direct challenge. If you question or challenge a LGU, you
need to institute a proceeding for that purpose and not a
collateral attack. The LGU cannot make it as a defense. It
should be a direct attack and the method is quo warranto to
be initiated by the State.
- Municipality of Malabang vs. Benito, 27 SCRA 533 – No
collateral attack shall lie; an inquiry into the legal existence of
a municipal corporation is reserved to the State in a
proceeding for quo warranto which is a direct proceeding.
But this rule applies only when the municipal corporation is,
at least, a de facto municipal corporation.
- However, and I think this is the important concern, according
to Mun. of Malabang vs. Benito the rule that collateral attack
is not allowed in questioning the existence of the municipal
corporation is applicable only if the municipal corp is at least
a de facto municipal corp. The SC did not continue however
but the implication of that is if the group of people
therefore, a particular community, could not even be
classified or categorized as a de facto municipal corporation
and therefore it is obvious that it is not a de facto municipal
corporation then, conversely, it is allowed to question the
existence of an alleged municipal corporation if it is not even
a de facto municipal corp.
- So if in the earlier case like this case of Andong, for example
Andong would like to expropriate a parcel of land and
therefore files a complaint for expropriation before the RTC
and make the private owner the defendant of course, then
the defendant can question the status of Andong because
Andong is not be even considered as a de facto municipal
corp. So that is by way of collateral challenge because that is
mentioned only by a defendant in an answer questioning the
status of Andong. That is an interesting observation. I hope
you will agree with me.
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C. Overview of the Philippine Local Government System
i. The Unitary vs. Federal Forms of Government
- DENR vs. Tano and several other cases – confirmed that
though we are adapting a decentralized system of
government we are still in a unitary system; local
governments derived both their (1) powers and (2) existence
from the central government.
- That is a legal decision. Local government units derive their
powers and existence from the national or central
government. That explains why the LGC and the Constitution
provides that local government units can be created only
through law. So it's the central government through
Congress that creates local government units and in the
creation it gives and grants powers. So local governments
are creations of central government.
- But if you are to talk about federal system, it's quite the
opposite. The federal/central government is the creation
actually of the local governments. If you gather the history of
U.S., it was first a confederation of 13 states who later on
decided that confederation was insufficient because in
confederation there is no central government. It's just a
loose relationship between the members of the
confederation. There is only an understanding that they will
perform functions with certain degree of coordination with
the members of the confederation. But if it is a federation,
then there is a creation of the federal government. So when
the 13 states decided to federalized, they created the
national government. see, local governments then now we
called in the U.S. the states akin to local governments, they
created the central government. In the Philippines, it is still
the central government which is creating the local
government.
 Who can exercise the residual powers?
- Why is that important? It is important in the area of
interpretation. Especially if the issue is about which agency,
the national or the local, a government can exercise a
particular power. This is where your knowledge of residual
power doctrine will be applicable/useful. What is the idea of
residual power? In every distribution of powers, you will have
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
to include in your study the idea of residual powers because
when an organic act, either the Constitution or a statute
distributes power of the government, it cannot anticipate all
powers- specific or general and allocate/assign it to a known
agency. It is possible that there is a power of government,
settled that it is a power of the government, but the organic
act is unable to allocate/assign it to a particular agency.
- The question then is, “Who can exercise the power?” because
it is settled that it is a power that can be exercised. If you
look at the distribution of powers in the national government
among the legislative, executive and the judiciary, the rule on
residual power says “Who can exercise the power which is
not allocated to either legislative, executive of the judiciary?”
What did you learn in your political law? The residual power
is vested in the President of the Philippines. So if the power
is recognized and understood as a power that can be
exercised by the national government but it has not been
allocated or assigned to a particular branch by the
Constitution or any law for that matter then the President
can exercise the power under its residual power. Because if
you apply that to national government and local government
you will also do the same analysis. Suppose there is a power
that is obviously a power of the government but the issue is
as between the national government and the local
government, who shall exercise the power? Of course it
requires answering the question “Which government
exercises the residual power?”
- As what I've said, powers of central and local governments
have been distributed also, this is a way of limiting the
powers of the government – by distributing the powers from
the central to the local. Who/ which agency do you think
should exercise the power that is not expressly or even
impliedly allocated on either national or local? We say
national. Yes, That is correct. The residual powers are vested in
the national government. So it is a question whether it can be
exercised by the national or the local government.
Notwithstanding that we are adopting/ upholding local
autonomy as I will show you later on.
- That is not the case in a federal state. In the US, if you have
studied American government, the powers of the
9|P a g e
 government are limited and enumerated in the Constitution.
The understanding there is the power that is not granted in
the federal government can only be exercised by the local
states. See, different in a federal set-up. That is just to show
you the importance of this framework. You can use this in
interpreting certain issues. That's the matter of unitary and
federal system of government.
Case: Zoomzat, Inc. vs. People (2005)
Facts:
Petitioner Zoomzat, Inc. alleged that on December 20, 1991, the Sangguniang
Panlungsod of Gingoog City passed Resolution No. 2613 which resolved "to
express the willingness of the City of Gingoog to allow Zoomzat to install and
operate a cable TV system." Thereupon, petitioner applied for a mayor’s
permit but the same was not acted upon by the mayor’s office. Subsequently,
or on April 6, 1993, respondents enacted Ordinance No. 19 4 which granted a
franchise to Gingoog Spacelink Cable TV, Inc. to operate a cable television for
a period of ten (10) years, subject to automatic renewal. Aggrieved, Zoomzat
lodged a complaint in the Ombudsman against the municipal officials of
Gingoog alleging manifest partiality, evident bad faith and gross inexcusable
negligence in violation of RA 3019.
Held:
There is no law specifically authorizing the LGUs to grant franchises to
operate CATV system. Whatever authority the LGUs had before, the same had
been withdrawn when President Marcos issued P.D. No. 1512 "terminating all
franchises, permits or certificates for the operation of CATV system previously
granted by local governments." Today, pursuant to Section 3 of E.O. No. 436,
"only persons, associations, partnerships, corporations or cooperatives
granted a Provisional Authority or Certificate of Authority by the NTC may
install, operate and maintain a cable television system or render cable
television service within a service area."
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. 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
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
founding of structures, and the parceling of large regions.13 Beyond these
parameters, its acts, such as the grant of the franchise to Spacelink, would
be ultra vires.
ii. Philippine Local Government System and the concepts of Local
Autonomy, Decentralization, Devolution and Deconcentration
- Certain terms before we study the LGC proper. There are
provisions about local autonomy in the provisions and the
code itself. If we look at Art. 2, Sec. 25- The State shall insure
the autonomy of local governments. The territorial and
political subdivisions shall enjoy local autonomy- Art. 10. The
Code also mentions local autonomy. The question is “What is
local autonomy?” in relation to the concept of
decentralization, devolution and deconcentration.
- It came out in one bar examination “What is devolution with
reference to the LGC?”
- 1999 Bar Exam. What is the meaning of local autonomy?
o Local autonomy is the degree of self-determination
exercised by LGUs vis-à-vis the central government.
The system of achieving local autonomy is known as
decentralization and this system is realized through
the process called devolution.
- Limbona vs. Mangelin, local autonomy is either
decentralization of administration or decentralization of
power – taken from an American book, actually, where it was
cited here.
o There is decentralization of administration when the
central government delegates administrative powers
to political subdivisions in order to broaden the base
of government; to make the local governments
responsive and accountable. On the other hand,
there is another kind of decentralization which is
called decentralization of power. This involves
abdication of power and the autonomous
government is free to chart its own destiny and
shape its future with minimum intervention. The
local government unit here is accountable not to the
central government but to its constituency.
10 | P a g e
 - So if magbasa ka og reviewer, mo ingon ka “what is local
autonomy?” you will mention that 2 because that's how it
was presented in the case of Limbona case. But later on, in
the case of Pimentel vs. Aguirre in 2000, SC clarified: it is
only administrative power over local affairs that is
delegated to political subdivisions. So we should still not
forget the same concept that policy setting for the entire
country still lies in the President and Congress. That explains
why ordinances for them to be valid, must not only conform
to Constitution but the ordinances must also conform to
statutes. Basically because we are still in a unitary set-up. For
an ordinance to be valid, it must not contrary law – policy
crafted by Congress or perhaps through the suggestion of
the President. So only administrative power is delegated to
political subdivisions. There is no abdication of political
power in our system but still there is minimum intervention
in some areas by the national government.
Case: Limbona vs. Mangelin, 170 SCRA 786, 794-795 (1989)
Facts:
Sultan Alimbusar P. Limbona was elected as Speaker of the Regional
Legislative Assembly (Batasan or Sangguniang Pampook), Region XII, Central
Assembly. He was expelled from the assembly allegedly due to graft and
corruption. However, it was established that he was not afforded opportunity
to be heard and that resolution (expelling him from the legislative assembly)
“appears strongly to be a bare act of vendetta by the other Assemblymen
against the petitioner arising from what the former perceive to be obduracy
on the part of the latter.” Among the issues presented was whether the
Supreme Court can review the proceedings of the Sangguniang Pampook
because it was supposed to be “autonomous”; and consequently, to what
extent is the self-government given to the two autonomous governments of
Region IX and XII?
Held:
Now, autonomy is either decentralization of administration or
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 government power and in the
process to make local governments "more responsive and accountable," 23
and "ensure their fullest development as self-reliant communities and make
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
them more effective partners in the pursuit of national development and
social progress." 24 At the same time, it relieves the central government of
the burden of managing local affairs and enables it to concentrate on
national concerns. The President exercises "general supervision" 25 over
them, but only to "ensure that local affairs are administered according to
law." 26 He has no control over their acts in the sense that he can substitute
their judgments with his own. 27
Decentralization of power, on the other hand, involves an abdication of
political power in the favor of local governments 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. 28
But the question of whether or not the grant of autonomy to Muslim
Mindanao under the 1987 Constitution involves, truly, an effort to
decentralize power rather than mere administration is a question foreign to
this petition, since what is involved herein is a local government unit
constituted prior to the ratification of the present Constitution. Hence, the
Court will not resolve that controversy now, in this case, since no controversy
in fact exists. We will resolve it at the proper time and in the proper case.
Under the 1987 Constitution, local government units enjoy autonomy in
these two senses, thus:
Section 1.The territorial and political subdivisions 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. 29
Sec. 2.The territorial and political subdivisions shall enjoy local autonomy. 30
xxx xxx xxx
Sec. 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. 31
11 | P a g e
An autonomous government that enjoys autonomy of the latter category
[CONST. (1987), art. X sec. 15.] is subject alone to the decree of the organic
act creating it and accepted principles on the effects and limits of
"autonomy." On the other hand, an autonomous government of the former
class is, as we noted, under the supervision of the national government
acting through the President (and the Department of Local
Government). 32 If the Sangguniang Pampook (of Region XII), then, is
autonomous in the latter sense, its acts are, debatably, beyond the domain of
this Court in perhaps the same way that the internal acts, say, of the Congress
of the Philippines are beyond our jurisdiction. But if it is autonomous in the
former category only, it comes unarguably under our jurisdiction.
An examination of the very Presidential Decree creating the autonomous
governments of Mindanao persuades us that they were never meant to
exercise autonomy in the second sense, that is, in which the central
government commits an act of self-immolation. Presidential Decree No. 1618,
in the first place, mandates that "[t]he President shall have the power of
general supervision and control over Autonomous Regions." 33 In the second
place, the Sangguniang Pampook, their legislative arm, is made to discharge
chiefly administrative services, thus:
SEC. 7.Powers of the Sangguniang Pampook. — The Sangguniang Pampook
shall exercise local legislative powers over regional affairs within the
framework of national development plans, policies and goals, in the following
areas:
xxx
The President shall exercise such powers as may be necessary to assure that
enactment and acts of the Sangguniang Pampook and the Lupong
Tagapagpaganap ng Pook are in compliance with this Decree, national
legislation, policies, plans and programs.
The Sangguniang Pampook shall maintain liaison with the Batasang
Pambansa. 34
Hence, we assume jurisdiction. And if we can make an inquiry in the validity
of the expulsion in question, with more reason can we review the petitioner's
removal as Speaker.
 Decentralization, Devolution, Deconcentration
- This brings me to the concept of decentralization. Local
autonomy does not make empires within an empire. Local
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
autonomy does not make mini-states within a state.
(Limbona case) Focus your attention to the word system.
- Decentralization is a system whereby local government
units shall be given more powers, authorities, responsibilities
and resources. The process of decentralization shall proceed
from the National Government to the local government
units. (Sec. 2, LGC) What's the significance? If the
decentralization process proceeds from the national
government to regional offices of the national government,
you call it DECONCENTRATION and not decentralization.
That's why the Code specifies to what kind of distributing or
sharing the powers of the national government the term
decentralization will apply. It is only when it is from the
national government to local government units since there's
another term if it is from the national government head
offices to local regional offices- the term there is
DECONCENTRATION. That is a system. Look at the definition,
local government units shall be given more powers,
authorities, responsibilities and resources.
- If it is a system then we have to ask further, “How is the
system implemented?” How is this done - the giving of more
powers, authority, responsibilities and resources?” The
answer to that is the term Devolution, which as defined in
Sec. 17, §4(e) of the Code, it is an act by which the National
Government confers power and authority, upon various local
government units to perform specific functions and
responsibilities. That is the meaning of DEVOLUTION. That is
specific process in order to implement the system of
decentralization. In the same section, there is a description of
how it is to be done, at least it says it shall include the
transfer to local government units of the records,
equipments, other assets, personnel of national agencies,
offices and corresponding powers, functions and
responsibilities.
- Deconcentration is Sec. 528 of the Code. 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.
12 | P a g e
 It's for Congress to decide asa iyang i devolve; it's not of
course in the Code. So if you are to distinguish one from the
other, these terms: local autonomy is a degree of self-
determination exercised by local government units vis-a-vis
the central government. To attain local autonomy, a system
of decentralization is a pre-requisite or at least some sort of
the infrastructure in order to achieve local autonomy. For
that infrastructure to work, it is done through devolution –
the process. And then there's deconcentration.
Cases:
Ganzon vs. CA (1991) – The Court held in Ganzon v. Court of Appeals17 that
while it is through a system of decentralization that the State shall promote a
more responsive and accountable local government structure, the concept of
local autonomy does not imply the conversion of local government units into
"mini-states."18 We explained that, with local autonomy, the Constitution did
nothing more than "to break up the monopoly of the national government
over the affairs of the local government" and, thus, did not intend to sever
"the relation of partnership and interdependence between the central
administration and local government units."
Pimentel vs. Aguirre (2000) – In Pimentel v. Aguirre,20 the Court defined the
extent of the local government's autonomy in terms of its partnership with
the national government in the pursuit of common national goals, referring
to such key concepts as integration and coordination. Thus:
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.
Magtajas vs. Pryce Properties, 234 SCRA 255 (1994) - The rationale of the
requirement that the ordinances should not contravene a statute is obvious.
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
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.
Municipal corporations owe their origin to, and derive their powers
and rights wholly from the legislature. It breathes into them the
breath of life, without which they cannot exist. As it creates, so it may
destroy. As it may destroy, it may abridge and control. Unless there is
some constitutional limitation on the right, the legislature might, by a
single act, and if we can suppose it capable of so great a folly and so
great a wrong, sweep from existence all of the municipal
corporations in the State, and the corporation could not prevent it.
We know of no limitation on the right so far as to the corporation
themselves are concerned. They are, so to phrase it, the mere tenants
at will of the legislature. (citing Clinton vs. Ceder Rapids, etc. Railroad
Co., 24 Iowa 455).
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, (Art X,
Sec. 5, CONST) 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.
Lina, Jr. vs. Paño (2001) – In our system of government, the power of local
government units to legislate and enact ordinances and resolutions is merely
a delegated power coming from 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
13 | P a g e
imperio."
San Juan vs. Civil Service Commission, 196 SCRA 69 (1991) – 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 Malacañang 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, inspite 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.
Laguna Lake Development Authority vs. CA (1995) – 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.
"Laguna de Bay therefore cannot be subjected to fragmented concepts of
management policies where lakeshore local government units exercise
exclusive dominion over specific portions of the lake water. The garbage
thrown or sewage discharged into the lake, abstraction of water therefrom or
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
construction of fishpens by enclosing its certain area, affect not only that
specific portion but the entire 900 km2 of lake water. The implementation of
a cohesive and integrated lake water resource management policy, therefore,
is necessary to conserve, protect and sustainably develop Laguna de Bay." 5
The power of the local government units to issue fishing privileges was
clearly granted for revenue purposes. This is evident from the fact that
Section 149 of the New Local Government Code empowering local
governments to issue fishing permits is embodied in Chapter 2, Book II, of
Republic Act No. 7160 under the heading, "Specific Provisions on the Taxing
and Other Revenue Raising Power of Local Government Units."
On the other hand, 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 (Section 2,
Executive Order No. 927) and for lake quality control and management. 6 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.
Province of North Cotabato vs. GRP (2008) – The concept
of association is not recognized under the present Constitution
No province, city, or municipality, not even the ARMM, is recognized under
our laws as having an "associative" relationship with the national
government. Indeed, the concept implies powers that go beyond anything
ever granted by the Constitution to any local or regional government. It also
implies the recognition of the associated entity as a state. The Constitution,
however, does not contemplate any state in this jurisdiction other than the
Philippine State, much less does it provide for a transitory status that aims to
prepare any part of Philippine territory for independence.
Even the mere concept animating many of the MOA-AD's provisions,
therefore, already requires for its validity the amendment of constitutional
provisions, specifically the following provisions of Article X:
SECTION 1. The territorial and political subdivisions 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
14 | P a g e
hereinafter provided.
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.
The BJE is a far more powerful
entity than the autonomous region
recognized in the Constitution
It is not merely an expanded version of the ARMM, the status of its
relationship with the 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
Convention,154 namely, a permanent population, a defined territory,
a government, and a capacity to enter into relations with other states.
Even assuming arguendo that the MOA-AD would not necessarily sever any
portion of 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 Republic.
Pimentel, Jr. vs. Executive Secretary (2012) – 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.
Certainly, to yield unreserved power of governance to the local government
unit as to preclude any and all involvement by the national government in
programs implemented in the local level would be to shift the tide of
monopolistic power to the other extreme, which would amount to a
decentralization of power explicated in Limbona v. Mangelin21 as beyond our
constitutional concept of autonomy.
Abas Kida vs. Senate (2011) – It is further argued that while synchronization
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
may be constitutionally mandated, it cannot be used to defeat or to impede
the autonomy that the Constitution granted to the ARMM. Phrased in this
manner, one would presume that there exists a conflict between two
recognized Constitutional mandates – synchronization and regional
autonomy – such that it is necessary to choose one over the other.
We find this to be an erroneous approach that violates a basic principle in
constitutional construction – ut magis valeat quam pereat: that the
Constitution is to be interpreted as a whole,81 and one mandate should not
be given importance over the other except where the primacy of one over
the other is clear.
Synchronization is an interest that is as constitutionally entrenched as
regional autonomy. They are interests that this Court should reconcile and
give effect to, in the way that Congress did in RA No. 10153 which provides
the measure to transit to synchronized regional elections with the least
disturbance on the interests that must be respected. Particularly, regional
autonomy will be respected instead of being sidelined, as the law does not in
any way alter, change or modify its governing features, except in a very
temporary manner and only as necessitated by the attendant circumstances.
As heretofore mentioned and discussed, while autonomous regions are
granted political autonomy, the framers of the Constitution never equated
autonomy with independence. The ARMM as a regional entity thus continues
to operate within the larger framework of the State and is still subject to the
national policies set by the national government, save only for those specific
areas reserved by the Constitution for regional autonomous determination.
As reflected during the constitutional deliberations of the provisions on
autonomous regions:
Mr. Bennagen. xxx We do not see here a complete separation from
the central government, but rather an efficient working relationship
between the autonomous region and the central government. We
see this as an effective partnership, not a separation.
Mr. Romulo. Therefore, complete autonomy is not really thought of
as complete independence.
Mr. Ople. We define it as a measure of self-government within the
larger political framework of the nation.84[Emphasis supplied.]
This exchange of course is fully and expressly reflected in the above-quoted
Section 17, Article X of the Constitution, and by the express reservation under
15 | P a g e
Section 1 of the same Article that autonomy shall be "within the framework
of this Constitution and the national sovereignty as well as the territorial
integrity of the Republic of the Philippines."
Interestingly, the framers of the Constitution initially proposed to remove
Section 17 of Article X, believing it to be unnecessary in light of the
enumeration of powers granted to autonomous regions in Section 20, Article
X of the Constitution. Upon further reflection, the framers decided to
reinstate the provision in order to "make it clear, once and for all, that these
are the limits of the powers of the autonomous government. Those not
enumerated are actually to be exercised by the national government[.]" 85 Of
note is the Court’s pronouncement in Pimentel, Jr. v. Hon. Aguirre 86 which we
quote:
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. [Emphasis ours.]
In other words, the autonomy granted to the ARMM cannot be invoked to
defeat national policies and concerns. Since the synchronization of elections
is not just a regional concern but a national one, the ARMM is subject to it;
the regional autonomy granted to the ARMM cannot be used to exempt the
region from having to act in accordance with a national policy mandated by
no less than the Constitution.
*Transcript*
The affirmation that the Philippines, in Magtajas, is still a unitary government
and a guarantee that LGUs shall enjoy local autonomy as mentioned in the
Constitution and the Code, create a tension between the national
government and local governments. In 1999, there was a question involving
this one – local autonomy. In the case of Magtajas, the Sanggunian
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
Panlungsod of CDO passed an ordinance prohibiting the operation of
PAGCOR. At first, it prohibited owners of commercial buildings to allow
PAGCOR to enter into a contract of lease. Siguro upon advise of lawyers, that
would not be sufficient, you should prohibit the operation of PAGCOR. So
there's another ordinance passed prohibiting the operation of PAGCOR.
The SC said, the LGU cannot do that because PAGCOR is a creation of a law
and therefore it is allowed by Congress. A LGU cannot undo the intent of
Congress. The SC continued and said that municipal governments are only
agents of the national government. This is an affirmation of the declaration
that the Philippines is still a unitary set-up; a unitary system of government.
Wala pa ni invocation of local autonomy. Let's see if it will ever be applied.
The SC also said “We here confirmed that Congress remains control over LGU
although insignificantly --- than under our previous constitutions.”
In the San Juan vs. Civil Service Commission case, this came out in the
1999 bar, gikopya lang ang facts, the issue there is the Provincial Budget
Officer was at that time to be appointed by the Sec of Budget and
Management but only from the names nominated by the governor. Note that
the position is Provincial Budget Officer. The provincial governor nominated
somebody who was not an accountant, unya one of the qualifications of a
Budget Officer is that you must be a CPA, therefore not qualified. So what the
Sec did was he appointed another who is qualified. The governor complains,
uy you bypass my authority... I should be giving you another nominee... of
course if it is already qualified, you choose from the nominee I've submitted.
But the Sec did not agree with this suggestion of the governor so it reached
the Civil Service Commission. The CSC affirmed the appointment made by the
Sec of Budget and Management then it reached the SC.
It is in this case that the SC applied also the concept of local autonomy and it
said “We are to obey the clear mandate of local autonomy. Where a law is
capable of two interpretations, one in favor of centralized power in
Malacañang and the other beneficial to local autonomy, the scales must be
weighed in favor of autonomy.” By the way, this is not an issue of who can
exercise the power because the law is clear here. The issue only was whether
or not the process of nomination to be done by the provincial governor was
merely directory or mandatory. So if you interpret that it is directory, then it is
not following the mandate of local autonomy. But if you interpret it as
mandatory then that is to give spirit to the concept of local autonomy.
According to the Court, if you can have two interpretations – one against
16 | P a g e
local autonomy and one in favor of local autonomy, then local autonomy in
the application should be applied or used.
In the case of Laguna Lake Development Authority (LLDA), another local
autonomy case, Laguna is a province so there were several municipalities. In
1990s, as a observed by LLDA, there were indiscriminate issuance of permits
for fish pens/fish cage therefore resulting to damage in marine or natural
resources along the bay of Laguna. So LLDA issued a cease and desist order.
Reklamo ang mga municipalities nga naa man ni sa among powers nga we
can issue permits for fish pens. Ingon ang SC nga power lagi na ninyo but it is
for revenue raising power. In the case of LLDA, the power exercised by it is
police power. Police power is the most pervasive, less limitable kind of
power. And besides, it is a delegated power on the part of LGU and so we will
uphold the power of LLDA. There is still a tension between the central
government and the local government because LLDA is a creation of
Congress. In this case, the charter of LLDA was upheld. The thinking of course
if correct- between police power and taxation power, police power should
prevail.
D. Local Governments in the Philippines
1. Territorial and Political Subdivisions: Provinces, Cities,
Municipalities, Barangays
- SECTION 1. The territorial and political subdivisions 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. (Sec. 1, Art. X, 1987 CONST)
*Transcript*
For purposes of my discussion, I'll call the provinces, cities, municipalities and
barangays as regular LGUs so we'll be able to distinguish them from
autonomous regions and special LGUs. Autonomous regions, ARMM and
CAR, but CAR failed to become an autonomous region because only one
province got a favorable vote in a plebiscite conducted before and according
to the Constitution an autonomous region should consist of more than 1
LGU; so 1 LGU can not constitute an autonomous region. Now, we only have
the ARMM.
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
Then we have what we call Special Metropolitan Political Subdivisions under
Art. 10, Sec. 11 of the Constitution. They are not actually LGUs strictly
speaking, that's why we have to call them special LGUs.
The mandate of Sec 1, of Art X which says the territorial and political
subdivisions shall be provinces, cities, municipalities and barangays and
ARMM and Cordilleras, this provision does not create LGU according to Fr.
Bernas. You still have Congress to create this LGU. What is the import of this
enumeration of the territorial and political subdivisions in Sec. 1? It simply
ensures that in the Philippines, there shall only be provinces, cities,
municipalities and barangays.
What's my point? Suppose in the bar exams you will be asked a question “A
law has been passed abolishing barangays because of too much politicking in
the barangay level etc. Can it be done?”
- Of course your answer is it cannot be done; it is
unconstitutional because Sec. 1 Art. 10 already identified
barangays as one of the LGUs. The Constitution already
guarantees that these are the local governments in the
Philippines.
In my presentation I did asked ' Whether or not an associated stated can be
created in the Philippines?'. I think it was included in your Consti in the case
of Province of North Cotabato in 2008. The Bangsamoro Juridical Entity case.
According to the SC, the way it was described since the central/national
government could not exercise jurisdiction over the Bangsamoro Juridical
Entity, the MOA therefore established and associated state in the Philippines.
Of course, you apply your basic knowledge in Public International Law or
Political Law that sovereignty among other characteristics is indivisible. That's
an important characteristic, you cannot divide sovereignty. “You cannot have
an empire within and empire; a state within a state.”
The counter-argument was “No, dili ni siya associated state. This can perhaps
be considered merely as a LGU. Ayaw associated state because we
understand the import of that. It cannot be done. We cannot have a state
within a state because in international law, an associated state is still a state
under the 1933 Multi--- Convention of the Rights and Duties of a State. An
associated state has a capacity to enter into relations with the other states-
that is the 4th element of a state under the Multi--- Convention. Ingon sila,
ayaw lang mi tawga associated state, LGU lang- para within out framework.
Ingon and SC, that cannot be done as well because you know that Sec. 1, Art.
17 | P a g e
10 the only LGUs recognized in our Constitution are provinces, cities,
municipalities and barangays. No other. Only a Constitutional amendment
can welcome any other entity that you call LGU or a political/ territorial
subdivision in our country. That case of the Province of North Cotabato is still
relevant in the study of LGC.
 Different Kinds of Cities
1. A component city,
2. an independent component city; and
3. highly urbanized city.
There are different rules applicable or governing these kinds of cities. But
provinces, municipalities and barangays are treated similarly under the LGC.
Sa cities lang mo matter. Ang 1st class, 2nd class, 3rd class only refers to
income. It has no bearing at all in its juridical personality- exercise of powers.
SECTION 12. 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. (Sec. 12, Art. X, 1987 CONST)
Cities though, are governed differently in some areas. Component city, the
inhabitants can vote for provincial candidates and can run for provincial
elective post and they are under the supervisory power of a province. Don't
ask how the province will exercise supervisory power; we will go to that later
on.
Independent component city is a component city but what makes it
independent is because of its charter - its charter prohibits the voters from
voting provincial elective post. Because of that, it will be outside the
supervisory power of the province regardless of the income. So if you are
under the province, then your ordinances, as you will see later on, will have to
be reviewed by the provincial board. If you are independent component city,
you are not required to submit your ordinances to the provincial board for
review because you are not under its supervision. You will understand this
later on when we study the provisions dealing with supervisory power of
mother LGUs (kadtong naa sa taas). In highly urbanized city, it is here that
income matters. It is independent from the province by reason of its status. It
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
is so declared as a highly urbanized city and therefore it is outside the
supervisory power of the province. Later on you will see/learn how to convert
an ordinary city into a highly urbanized city. If it is an component city, a
highly urbanized city is not to be created. It's only component city that must
be converted into a highly urbanized city (administrative process), however if
its municipality to city (congressional process). You will also know the process
later on.
A highly urbanized city is independent of the province where it is
geographically located. Consequently, its residents cannot run for provincial
positions. Mandaue City is a highly urbanized city, but its residents can still
run for provincial post and can vote for provincial candidates, how is it
possible? ANS: Sec 452, LGC –
- 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. (Sec. 452(c), LGC)
In the case of Abella vs. COMELEC, 201 SCRA 253 (1991), Ormoc City was
considered an independent component city because its charter prohibits its
inhabitants from voting and also have to include from running for provincial
elective post. If you look at definition of independent component city, it
simply says independent in the sense that the charter prohibits from voting
for provincial elective post. Kung skewed gamay imong thinking, maybe dili
covered and mo run ka for provincial post. Pwede ka mo argue nga kung
mudagan ko, ah well voters are prohibited from voting, running man ni for
provincial post di man ni voting. So it was settled in this case, dili oi. The
prohibition connotes two (2) things: from running for provincial elective post
and obviously from voting for provincial candidates.
- “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
of province whose charters do not provide a similar
prohibition. Necessarily, component cities like Ormoc City
whose charters prohibit their voters from voting for
18 | P a g e
 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.
(Abella vs. COMELEC, 201 SCRA 253)
2. Autonomous Regions
3. Special Metropolitan Subdivisions
- 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 executives and legislative
assemblies. The jurisdiction of the metropolitan authority that
will hereby be created shall be limited to basic services
requiring coordination. (Art. X, 1987 CONST)
- It is still to be created by Congress. This is found in the
Constitution and it also requires plebiscite. They are similar
to the manner we create regular political subdivisions- also
through Congress and there shall likewise plebiscite. But the
difference is the component cities and municipalities shall
retain their basic autonomy. So dili na cla ma dissolve as
LGUs and therefore shall be entitled to all local executives
and legislative assemblies.
Case:
MMDA vs. Bel-Air Village (2000) – The jurisdiction is limited only to basic
services requiring coordination. Is the MMDA a special metropolitan political
subdivision? or Is it a LGU? You know what happened in MMDA? It wanted to
open a road in a particular subdivision- Bel Air Village to ease the traffic.
What kind of power is exercised there? Police power.
Question is “Can MMDA exercise police power?” This can be answered if you
classify MMDA as a LGU. SC said, it's not an LGU. It is not even a special
metropolitan political subdivision because there was no plebiscite held after
the law that created it was enacted and president exercises not just
supervision but control over it. Ingon sad daun ang MMDA, well at least
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
maybe we are a special metropolitan political subdivision. Just the same, it
cannot say that it is a special metropolitan political subdivision (for academic
discussion purposes) because there was no plebiscite at the time when it was
created. And the law requires plebiscite when you create a special
metropolitan political subdivision. MMDA has purely administrative function.
Because MMDA is not a political subdivision, it cannot exercise political
power like police power.
E. Loose Federation of LGUs and Regional Development Councils
- SECTION 13. Local government units may group themselves,
consolidate or coordinate their efforts, services, and
resources for purposes commonly beneficial to them in
accordance with law. (Art. X, CONST)
- 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. (Ibid.)
- 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. (LGC)
*Transcript*
Then you have loose federation of LGUs. Dili ni regional development
councils. Different na cya. We can have loose federation and the Constitution
allows the LGUs to group among themselves, consolidate, coordinate their
19 | P a g e
efforts, services and resources for purposes commonly beneficial to them in
accordance with the law.
The question there is, “How?” It has not been asked in the bar. It is found in
the Constitution. The How is found in the LGC, Sec. 33. First, there shall be
ordinances passed by all members of the federation- all LGUs; the
Sanggunian must approve the same upon or after lawful hearing and that
there shall be a memorandum of agreement stipulating the manner and
extent of the contribution of funds and assets. That is in Sec. 33, LGC. So a
question may simply be asked how it is created. This is my term though -
loose federation. You don't see that in the Code nor in the Constitution but
the way it is being described, it’s a loose federation- they just group
themselves, consolidate, coordinate their effort. That's how states actually
establish loose federation. Each time gani mo ingon og through ordinances,
duna nay meaning. It cannot be done in any other way kay naa man gud lain
enactments. Let's say resolution. And it will not result into a new corporate
body.
REGIONAL DEVELOPMENT COUNCILS are to be established by the President
and does not need authorization from Congress. It is composed of local
government officials, regional heads of departments and other government
offices and representative NGOs of the region.
PART II. THE LOCAL GOVERNMENT CODE OF 1991
1. Constitutional Mandate
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. (Article X, 1987
CONST)
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
The Code is mandated to be passed or enacted by the Constitution.
It's found in Sec.3, Art. 10. Indeed, we passed the LGC of 1991. I think
it was in 1991 or 1992 bar exam where the question was to describe
the content of the LGC. So at least you can give the basic contents or
body or skeleton of the Code.
So these are the things you will see in the Code:
- Responsive and accountable local government structure
through a system of decentralization;
- mechanism of Recall, initiative, referendum;
- allocation of powers, responsibilities and resources of LGUs;
- provide for qualifications, elections, appointment, functions,
etc. of elective officials -- the favorite area of bar
examinations.
- All other matters relating to the organization and operation
of local units
2. Sources of Local Government Code of 1991 (codified laws)
- Local Government Code of 1983
- Local Tax Code (PD 201)
- The Real Property Tax Code
- Barangay Justice Law (PD 1508)/ Katarungang Pambarangay
Law
3. Scope of Application
- Obviously, it will apply to provinces, cities, municipalities,
barangays and other political subdivisions; and it can also
apply to officials and offices in the national government in so
far as they are mentioned in the Code. What about those
LGUs supposedly belonging to an autonomous region? Yes
this will apply until the autonomous region has its own
code.
- See Sec. 4, 526, 529, and 534 (f) of LGC of 1991
4. Rules of interpretation (see Sec. 5, LGC of 1991)
- Liberal interpretation in favor of LGUs, devolution of powers,
and general welfare ordinances; in case of doubts to
existence of power, resolved in favor of LGU (vs. “residual
power” doctrine); but tax ordinances are construed strictly
against the LGU and liberally in favor of taxpayer; where no
20 | P a g e
 law or jurisprudence applies, customs or traditions in the
locality may be applied to resolve controversies.
5. Effectivity
- The LGC mentions of January 1, 1992 as the date of
effectivity. (sec. 536, LGC) The significant question here is
what would be the effect/s of the effectivity of the Code
upon tax ordinances or revenue measures enacted before
the LGC of 1991. Sec. 529 provides for the answer- All tax
ordinances and revenue measures of LGUs enacted before
the Code shall continue to be in force and effect after the
effectivity unless amended by the Sanggunian or
inconsistent with or in violation of the provision of the Code
(SEC. 529 LGC). Very obvious. They continue unless they're
inconsistent or changed by the Sanggunian. Dili ingon nga
repealed automatically.
- If we are to talk about laws- general and special laws, city
charters, decrees, EOs, proclamations or (parts thereof) that
are inconsistent with the Code, shall be repealed or nullified
accordingly. That is Sec. 534 (f) of the LGC. But take note of
what the SC said in the LLDA case, NOTE: implied repeal is
not favored. Obvious rule in stat con (Laguna Lake
Development Authority case)
PART III. CREATION, CONVERSION, DIVISION, MERGER, SUBSTANTIAL
CHANGE OF BOUNDARY OF LOCAL GOVERNMENT UNITS, AND
ABOLITION
A. Regular Political Subdivisions (Provinces, Cities, Municipalities and
Barangays)
1. Creation and Conversion
a. General Requirements: Law, Plebiscite, Compliance with
Criteria on income, land and/or population
- 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
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
approval by a majority of the votes cast in a plebiscite in the
political units directly affected. (Art. X, 1987 CONST)
- 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. (LGC of 1991)
- 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:
o (a) 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;
o (b) Population. — It shall be determined as the total
number of inhabitants within the territorial
jurisdiction of the local government unit concerned;
and
o (c) Land Area. — It must be contiguous, unless it
comprises two (2) 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
21 | P a g e
 the Department of Environment and Natural Resources
(DENR). (Ibid.)
- 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.
(Ibid.)
*Transcript*
First in creation (general requirements): law, plebiscite, and compliance with
criteria on income, land and/or population. Pay attention to the words and/or
coz you might think that it means compliance with the criteria of income,
land and population. No. There will be an instance in a particular LGU where
the requirement is income + land or income + population. Like in a case of
province. It was discussed very clearly in the case of Aquino III vs. COMELEC
that the requirement is not to comply with all 3. In the case of a province, you
only comply with income- indispensable then you comply with either land or
population. Take note of that. So let’s take a look at the manner of creating
or converting province, city, municipality and other political subdivisions. We
look at Section 6 of the LGC, and of course Sec. 385 in so far as barangay is
concerned.
 The manner of creating the province, city and municipality has to be
enacted by the Congress.
Incidentally in Section 6, the creation of a province, city and municipality –
the law that will create them will have to be enacted by the Congress. I am
not sure if this was deliberately done or maybe this is just a result of a hastily
crafted law. What’s the objective or intention of using the word Congress
when as a rule a law is to be enacted by Congress? There should be a
purpose not unless it was just placed there without any objective at all; and if
it is then, it is true that the LGC is hastily crafted and poorly drafted so to
speak.
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
If you have to come up with an interpretation there must be an objective with
this - only a law enacted by Congress and not by anyone else. Because there
maybe instances where the President will be given legislative power. Like for
example, the President is given by law emergency powers. So the President
may exercise legislative powers, but of course it should be in accordance with
a declared national policy or goal. But at least there is an assurance that
there is no way in this situation that an LGU may be created. So it will only
be the Congress. What if the Congress is not functioning for whatever
political reason or event? So the President may temporarily exercise
legislative powers, just like former President Corazon Aquino. So the
President in this situation may issue an Executive Order, which would have a
force and effect of law, like your Family Code which was issued by an
Executive Order. Or when martial law is declared and to the extent that it is
necessary to quell invasion or rebellion, the President may exercise limited
legislative power and will then issue Presidential Decrees which of course will
have the force and effect of law.
In either case, based on the LGC, no LGU can be created. That is if you are to
interpret the phrase “to be enacted by Congress.”
 Creation of a barangay
But if it is creation of barangay, it may be created through an ordinance or by
law. In fact, if you try to search the different Republic Acts made by our
Congress, there are Barangays created by virtue of the legislative enactment
by the Congress. Lakas kayo ang mga opisyal aning Baranggaya kay laliman
ka Congress itself creating a Barangay. So it is either ordinance or law.
If you read Section 385, interestingly, it does not mention of law that should
be enacted by Congress. It simply mentioned of law. And so any law
therefore for that matter - whether the Congress during ordinary situations
or the President during extra-ordinary situations. (That is still a guess. That is
still to be deiced by the SC).
 Plebiscite
The questions that you should resolve are the following: (1) Who shall
participate in the plebiscite; (2) If the Constitution says that those persons or
members of the population of the unit affected, how would you determine
whether or not these are the units that will be affected by the creation or
even a merger or division of an LGU; (3) and perhaps if you are to give a
complete answer you might also include when are they amended; (4) how
22 | P a g e
about Autonomous Regions – how are they created and is the manner of
creating Autonomous Regions different from the manner of creating an LGU.
 Who shall participate in the plebiscite?
Tan vs. COMELEC (142 SCRA 727) is a landmark case on the issue of
plebiscite. Whether the creation a new province should include the
participation of the residents of the mother province for the plebiscite to
conform to the constitutionality requirement? Why? The Constitution
states that there be first obtained "the approval of a majority of votes in
the plebiscite in the unit or units affected" whenever a province is
created, divided or merged and there is substantial alteration of the
boundaries.
If you are to divide, for example, Province of Cebu into Cebu del Sur and
Cebu del Norte, the Cebu del Sur will compose of municipalities and
component cities from Talisay to Santander, and the Cebu del Norte will be
composed of component cities and municipalities going up to the north.
Question, which municipalities and component cities will participate in the
plebiscite? Sayon ra Sir - tanan because apparently these are new provinces.
Correct!
What if this is the situation – the supposed Cebu del Norte will now be called
Cebu and the supposed Cebu del Sur will be given a different name say
Sugbo. Province of Sugbo and of course the mother Province of Cebu. Will
that matter? No, of course. So, which residents will participate? The residents
of ALL municipalities and component cities. Why?
Because the political units where they are residents will be affected. In what
sense? Number one, there will be economic dislocation – lesser income now
because of lesser area and of lesser economic activities. Then there will be
reduction in territory. To that extent, these units will be affected, and so the
mother province will be included in the plebiscite. The ruling in Paredes vs.
Executive Secretary is not doctrinal so remove the doctrine in Paredes vs.
Executive Secretary from your memory. So these are the reasons: economic
dislocation, and reduction of territory, reduction in population
- In 2004 BAR EXAM, the problem there: Madaku is a
municipality composed of 80 barangays, 30 west of Madaku
River and 50 east thereof. The 30 western barangays being
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
left out of economic initiatives wish to constitute themselves
into a new and separate town to be called Masigla. Granting
that Masigla’s proponents succeed in securing a law in their
favor, would a plebiscite be necessary or not? If it is
necessary, who should vote or participate in the plebiscite?
- There will be a creation of a new municipality here. So
plebiscite is necessary. If it is necessary, who should vote or
participate in the plebiscite? Just the 30 Barangays or all 80
Barangays of the mother Madaku municipality? PAKSIT!!! 80,
of course. Mao ra na pangutana nimo Sir?...
Cases:
Tan vs. COMELEC, 142 SCRA 727 (1986) – Aside from the simpler factual issue
relative to the land area of the new province of Negros del Norte, the more
significant and pivotal issue in the present case revolves around in the
interpretation and application in the case at bar of Article XI, Section 3 of the
Constitution, which being brief and for convenience, We again quote:
"SEC. 3.No province, city, municipality or barrio 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 the approval by a majority of the
votes in a plebiscite in the unit or units affected."
It can be plainly seen that the aforecited constitutional provision makes it
imperative that there be first obtained "the approval of a majority of votes in
the plebiscite in the unit or units affected" whenever a province is created,
divided or merged and there is substantial alteration of the boundaries. It is
thus inescapable to conclude that the boundaries of the existing province of
Negros Occidental would necessarily be substantially altered by the division
of its existing boundaries in order that there can be created the proposed
new province of Negros del Norte. Plain and simple logic will demonstrate
than that two political units would be affected. The first would be the parent
province of Negros Occidental because its boundaries would be substantially
altered. The other affected entity would be composed of those in the area
subtracted from the mother province to constitute the proposed province of
Negros del Norte.
23 | P a g e

Padilla vs. COMELEC, 214 SCRA 735
- Even under the 1987 consti, the plebiscite shall include all
the voters of the mother province or the mother
municipality.
- When the law states that the plebiscite shall be conducted
"in the political units directly affected," it means that
residents of the political entity who would be economically
dislocated by the separation of a portion thereof have a right
to vote in said plebiscite. Evidently, what is contemplated by
the phase "political units directly affected," is the plurality of
political units which would participate in the plebiscite.
Lopez vs. COMELEC, 136 SCRA 633 – The creation of Metropolitan Manila is
valid. The referendum of Feb. 27, 1975 authorized the President to restructure
local governments in the 4 cities and 13 municipalities. xxx The President had
authority to issue decrees in 1975. xxx The 1984 amendment to the 1973
Constitution impliedly recognized the existence of Metro Manila by providing
representation of Metro Manila in the Batasan Pambansa.
Alvarez vs. Guingona, 252 SCRA 695 – Internal Revenue Allotments (IRAs)
should be included in the computation of the average annual income of the
municipality. If you look at the criterion “income”, it has to be based on
income that accrues to the general fund, that is, therefore regularly received
by the LGU, so this excludes special funds, trust funds, transfers and non-
recurring income. IRA is regularly accruing to the general fund, in fact, it is
regularly released and automatically released to the lgus.
RA 9009
League of Cities cases (2008 – 2011) (see below)
Province of North Cotabato vs. GRP (2008)
Mariano vs. COMELEC, 242 SCRA 211
The importance of drawing with precise strokes the territorial boundaries of a
local unit of government cannot be overemphasized. The boundaries must be
clear for they define the limits of the territorial jurisdiction of a local
government unit. It can legitimately exercise powers of government only
within the limits, its acts are ultra vires. Needless to state, any uncertainty in
the boundaries of local government units will sow costly conflicts in the
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
exercise of governmental powers which ultimately will prejudice the people's
welfare. This is the evil sought to avoided by the Local Government Code in
requiring that the land area of a local government unit must be spelled out in
metes and bounds, with technical descriptions.
Given the facts of the cases at bench, we cannot perceive how this evil can be
brought about by the description made in section 2 of R.A. No. 7854,
Petitioners have not demonstrated that the delineation of the land area of
the proposed City of Makati will cause confusion as to its boundaries. We
note that said delineation did not change even by an inch the land area
previously covered by Makati as a municipality. Section 2 did not add,
subtract, divide, or multiply the established land area of Makati. In language
that cannot be any clearer, section 2 stated that, the city's land area "shall
comprise the present territory of the municipality."
Aquino III vs. COMELEC (2010)
The provision draws a plain and clear distinction between the entitlement of
a city to a district on one hand, and the entitlement of a province to a district
on the other. For while a province is entitled to at least a representative, with
nothing mentioned about population, a city must first meet a population
minimum of 250,000 in order to be similarly entitled.
The use by the subject provision of a comma to separate the phrase "each
city with a population of at least two hundred fifty thousand" from the phrase
"or each province" point to no other conclusion than that the 250,000
minimum population is only required for a city, but not for a province. 26
Plainly read, Section 5(3) of the Constitution requires a 250,000 minimum
population only for a city to be entitled to a representative, but not so for a
province.
Miranda vs. Aguirre (1999)
This is a petition for a writ of prohibition with prayer for preliminary
injunction assailing the constitutionality of Republic Act No. 8528 converting
the city of Santiago, Isabela from an independent component city to a
component city.
The power to create, divide, merge, abolish or substantially alter boundaries
of local government units belongs to Congress. 8 This power is part of the
larger power to enact laws which the Constitution vested in Congress. 9 The
exercise of the power must be in accord with the mandate of the
24 | P a g e
Constitution. In the case at bar, the issue is whether the downgrading of
Santiago City from an independent component city to a mere component Requisites for Income Population Land Area Plebiscite
city requires the approval of the people of Santiago City in a plebiscite. The creation
resolution of the issue depends on whether or not the downgrading falls Province P20M not less than 2,000 sq km w/in 120
within the meaning of creation, division, merger, abolition or substantial (average 250,000 days from
alteration of boundaries of municipalities per Section 10, Article X of the annual inhabitants effectivity,
Constitution. A close analysis of the said constitutional provision will reveal income) OR unless
that the creation, division, merger, abolition or substantial alteration of otherwise
boundaries of local government units involve a common denominator — provided
material change in the political and economic rights of the local government City P20M [now not less than 100 sq. km. w/in 120
units directly affected as well as the people therein. It is precisely for this P100M per 150,000 (land area days from
reason that the Constitution requires the approval of the people "in the RA 9009] inhabitants does not effectivity,
political units directly affected." It is not difficult to appreciate the rationale of (past 2 OR apply if except as
this constitutional requirement. The 1987 Constitution, more than any of our consecutive composed of otherwise
previous Constitutions, gave more reality to the sovereignty of our people for years) 1 or more provided
it was borne out of the people power in the 1986 EDSA revolution. Its Section islands)
10, Article X addressed the undesirable practice in the past whereby local Highly latest annual not less -same- -same-
government units were created, abolished, merged or divided on the basis of Urbanized income of 200,000
the vagaries of politics and not of the welfare of the people. Thus, the City P50 M inhabitants
consent of the people of the local government unit directly affected was Municipality P250,000 not less than 50 sq. km w/in 120
required to serve as a checking mechanism to any exercise of legislative (past 2 25,000 (land area days from
power creating, dividing, abolishing, merging or altering the boundaries of consecutive inhabitants does not effectivity,
local government units. It is one instance where the people in their sovereign years) AND apply if except as
capacity decide on a matter that affects them — direct democracy of the composed of otherwise
people as opposed to democracy thru people's representatives. This 1 or more provided
plebiscite requirement is also in accord with the philosophy of the islands)
Constitution granting more autonomy to local government units. Barangay --- 2,000 contiguous
inhabitants territory (exc.
The changes that will result from the downgrading of the city of Santiago [5,000 in MM if it comprise
from an independent component city to a component city are many and and HUC] 2 or more
cannot be characterized as insubstantial. For one, the independence of the islands)
city as a political unit will be diminished. The city mayor will be placed under
the administrative supervision of the provincial governor. The resolutions and Cases:
ordinances of the city council of Santiago will have to be reviewed by the Navarro vs. Executive Secretary (2010), Peralta, J. – It is undisputed that R.A.
Provincial Board of Isabela. Taxes that will be collected by the city will now No. 9355 complied with the income requirement specified by the Local
have to be shared with the province. Government Code. What is disputed is its compliance with the land area or
population requirement.

b. Specific Requirements: Income, Land and/or Population

Requirements
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus 25 | P a g e
R.A. No. 9355 expressly states that the Province of Dinagat Islands "contains
an approximate land area of eighty thousand two hundred twelve hectares
(80,212 has.) or 802.12 sq. km., more or less, including Hibuson Island and
approximately forty-seven (47) islets . . . ." R.A. No. 9355, therefore, failed to
comply with the land area requirement of 2,000 square kilometers. The
Province of Dinagat Islands also failed to comply with the population
requirement of not less than 250,000 inhabitants as certified by the NSO.
Based on the 2000 Census of Population conducted by the NSO, the
population of the Province of Dinagat Islands as of May 1, 2000 was only
106,951.
Although the Provincial Government of Surigao del Norte conducted a
special census of population in Dinagat Islands in 2003, which yielded a
population count of 371,000, the result was not certified by the NSO as
required by the Local Government Code. Moreover, respondents failed to
prove that with the population count of 371,000, the population of the
original unit (mother Province of Surigao del Norte) would not be reduced to
less than the minimum requirement prescribed by law at the time of the
creation of the new province.
Navarro vs. Executive Secretary (2011 - motion for reconsideration, Nachura, J.)
– 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.
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
With the formulation of the LGC-IRR, which amounted to both executive and
legislative construction of the LGC, the many details to implement the LGC
had already been put in place, which Congress understood to be impractical
and not too urgent to immediately translate into direct amendments to the
LGC. But Congress, recognizing the capacity and viability of Dinagat to
become a full-fledged province, enacted R.A. No. 9355, following the
exemption from the land area requirement, which, with respect to the
creation of provinces, can only be found as an express provision in the LGC-
IRR. In effect, pursuant to its plenary legislative powers, Congress breathed
flesh and blood into that exemption in Article 9 (2) of the LGC-IRR and
transformed it into law when it enacted R.A. No. 9355 creating the Island
Province of Dinagat.
*Transcript*
Land Area Requirement – (insert new transcript) – this is 2010 transcript
Obviously, it must comply with the requirement. The exception is when it is
an island. It is possible that it may not comply with the area requirement. We
should change this because of the new ruling in Navarro. I took this partly
from Section 2 of Article 9 of the Implementing Rules. So we should only
comply with area requirement.
Then it must be contiguous unless two or more islands are separated by
cities or chartered cities which do not contribute to the income of the
province. Of course, obviously if these are islands, then they separated by
waters then they cannot comply with the requirement of contiguity. For
obvious reasons, if they are separated by charted cities or cities which do not
contribute to the income of the province, then the requirement of contiguity
may be dispensed with.
This is the case – Secretary Ermita declaring as null and void paragraph 2 of
Article 9 of the IRR of the Code. If you look at paragraph 2 of Article 9 of the
IRR, it says the land area requirement shall not apply where the proposed
province is composed of one or more islands. That was declared illegal
because the LGC of 1991 does not mention of any exception as to the land
area requirement. So if you look at this case, the SC said nowhere in the LGC
is the said provision stated or implied.
So if you look at the case of Aquino III vs. COMELEC (2010), the requirement
of territory is at least 2000 square kilometers. Is it possible to dispense with
26 | P a g e
the 2000 sq. km. requirement if you are an island? The IRR says there should
be an exception, but then again according to Navarro vs. Ermita, that is
already declared null and void because it is already an expansion of a law or a
statute. Where if it is not so provided, especially that is an exception, in a
statute we know for a fact that the implementing rule cannot provide for
such.
Income – What about income? First, how is average annual income, as a
criterion, determined? The average annual income shall refer to income
accruing to the general fund. Meaning, they are regularly accruing to the
general fund. So funds that are special or those that belong to trust funds,
transfers and other non-recurring income, they are not included in
computing the income for the purposes of complying with the criterion. So it
is not just any income in other words. Jurisprudence says it should refer only
to the funds or income accruing the general fund.
The question in Alvarez vs. Guingona was, especially for municipalities that
rely heavily on Internal Revenue Allotment (IRA) which is actually a national
government income but it is mandated to be share to the LGU in the form of
IRA, will the IRA that the LGU had been receiving from the national
government be included in computing the average annual income. The case
said Yes, because it is automatically and regularly released. And so it forms
part of the gross accretion of funds.
But now, have you read the R.A. 9009? What is the effect of RA 9009 to this
doctrine made in Alvarez vs. Guingona?
*insert new transcript*
If you are asked a question: for purposes of complying the income
requirement, how should the income of LGU be computed or determined?
How do you respond to that question, considering that RA 9009 is an
amendatory law to the LGC of 1991?
Have you read RA 9009? Kung wa mo kabasa og RA 9009, dili nalang ko mag
expect makatubag mo.
The idea is to raise the income requirement from 20 million to 100 million.
Mao ra nah? Did it mention about IRA?
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
The RA 9009 mentions of it as “locally generated income.” So if that is locally
generated income, then IRA is not locally generated because that is a
national income only given or released automatically to the LGU.
So if you are to give an answer to that question, will Alvarez vs. Guingona be
applicable still or no? So you are saying that RA 9009 changed the doctrine in
Alvarez vs. Guingona that IRA should not anymore be included in the
computation of income because it says locally generated?
The caveat is that RA 9009 is limited in its application. It does not apply to all
creation of LGUs. RA 9009 applies only to conversion from municipality to a
city. Therefore, if it is a case of creation of a local government unit which
happens to be for example a new province, then I submit that it is not
covered by RA 9009. So take note that the coverage of RA 9009 that
increases the income requirement from 20 million to 100 million applies only
to (1) conversion from a municipality into a city, and (2) creation of a city
from a cluster of barangays. So municipality converted into a city or a cluster
of barangays to form a city.
In those cases, they are covered by RA 9009, then the income requirement
should be up to 100 million, and the IRA shall not be included. If it is a
province, then we apply Alvarez vs. Guingona – IRA should still be included.
That is my opinion there. Because province is not covered by RA 9009, and
also a new municipality is not covered by RA 9009. So the negation therefore
if you are going to talk about Alvarez vs. Guingona, happens only if it is a
case of municipality converted into a city or a cluster of barangays to form
into a city. In those cases, locally generated income only and IRA is excluded.
In all other situations, you add IRA as forming part of the annual income.
Boundary – What about boundary? Section 7 of the LGC requires that the
boundary shall be properly identified by metes and bounds - the number of
kilometers from north to west, and where lies the north, the west or other
side or part of the territory of a particular local government unit.
This requirement was tested in Mariano vs. COMELEC. If I am not mistaken,
this involved the then Municipality of Mandaluyong. When it was converted
into a city, the then municipality of Mandaluyong was involved also in a
boundary dispute with a neighboring municipality. Of course the charter of
the municipality described the metes and bounds of that municipality. But
27 | P a g e
when a law was created establishing the city, the law failed to state the metes
and bounds. We are referring to the technical description that is also
required in the territory of a particular local government unit. In the law
creating the municipality, there was a technical description of the property,
but when a law was passed creating the city, there was no technical
description. It clearly said that the territory of the city of Mandaluyong shall
be that territory so specified in the law creating the municipality of
Mandaluyong.
According to the SC, it does not matter even if there was no technical
description because the true test is whether or not the description of
boundary will cause territorial confusion. And if that is the only objective of
the law for requiring technical description and it will be accomplished by the
statement that the territory of the City of Mandaluyong shall be that territory
described in the law creating the municipality, then there will be no territorial
confusion. Apart, of course, from also saying that it was excusable on the
part of Congress for not specifying with precision the technical description
there because that LGU was then involved in a boundary dispute. The
Congress therefore was not trying to preempt the result of the boundary
dispute.
Income is an indispensable requirement – Then I mentioned about the three
criteria that almost always income is an indispensable requirement. In some
instances, like province for example, the province doesn’t have to comply
with all three criteria – income, population and land. It was clarified in this
case of Aquino III vs. COMELEC. According to the SC, population requirement
is not an indispensable requirement but merely an alternative addition to the
indispensable income requirement.
*insert new transcript* If you are to create a province, you only need 20
million plus EITHER of territory OR population. I think in the case of Dinagat,
it failed to comply with the territory and the population. But that was just
based on a study by the provincial government accompanied by officials of
the NSO. According to the SC, that is not what the law requires – that the
officials of the NSO will be there present during the study. What is required is
a certification. So the SC did not agree that they have complied with the
requirement because of that.
No question had been asked about specific requirements like 20 million, 50
million for high-urbanized cities. Unya malibog ta kay kung ordinary city, 100
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
million naman. That should be automatically be highly-urbanized city
because under the Code HUC only requires 50 million. Now if you are going
to create a city that should already be a highly-urbanized city because there
is a requirement now under RA 9009. But who knows it might be asked in the
bar exam now because of this Aquino III vs. COMELEC case. Simple ra kayo,
maghimo ug problem ang examiner unya kupya-on ra ang facts sa Aquino III
and it will be asked whether it has complied with the requirement. PAKSIT
dayon!!! Si Mayol pa ang paisturya-on, when you take the bar exam and you
have memorized the Civil Code, muingon na dayon ka ug “dalia na palihug
be kay gadali ko!” Lain akong version ana, inig dawat sa papel, “Ma’am wala
naba kayong ibang questions diyan?”
Creation of city
SECTION 450. Requisites for Creation. — (a) A municipality or a cluster of
barangays may be converted into a component city if it has an average
annual income, as certified by the Department of Finance, of at least Twenty
million pesos (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: xxx
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.
But under RA 9009, it is specifically provided that for conversion to cities, the
municipality’s income should not include the IRA.
28 | P a g e
League of Cities vs. COMELEC cases
Facts: During the 11th Congress, 3 Congress enacted into law 33 bills
converting 33 municipalities into cities. However, Congress did not act on
bills converting 24 other municipalities into cities.
During the 12th Congress, 4 Congress enacted into law Republic Act No.
9009 (RA 9009), 5 which took effect on 30 June 2001. RA 9009 amended
Section 450 of the Local Government Code by increasing the annual income
requirement for conversion of a municipality into a city from P20 million to
P100 million. The rationale for the amendment was to restrain, in the words
of Senator Aquilino Pimentel, "the mad rush" of municipalities to convert
into cities solely to secure a larger share in the Internal Revenue Allotment
despite the fact that they are incapable of fiscal independence. 6
After the effectivity of RA 9009, the House of Representatives of the 12th
Congress 7 adopted Joint Resolution No. 29, 8 which sought to exempt from
the P100 million income requirement in RA 9009 the 24 municipalities whose
cityhood bills were not approved in the 11th Congress. However, the 12th
Congress ended without the Senate approving Joint Resolution No. 29.
During the 13th Congress, 9 the House of Representatives re-adopted Joint
Resolution No. 29 as Joint Resolution No. 1 and forwarded it to the Senate
for approval. However, the Senate again failed to approve the Joint
Resolution. Following the advice of Senator Aquilino Pimentel, 16
municipalities filed, through their respective sponsors, individual cityhood
bills. The 16 cityhood bills contained a common provision exempting all the
16 municipalities from the P100 million income requirement in RA 9009.
On 22 December 2006, the House of Representatives approved the cityhood
bills. The Senate also approved the cityhood bills in February 2007, except
that of Naga, Cebu which was passed on 7 June 2007. The cityhood bills
lapsed into law (Cityhood Laws) 10 on various dates from March to July 2007
without the President's signature. 11
Issues:
1.Whether the Cityhood Laws violate Section 10, Article X of the Constitution;
and
2.Whether the Cityhood Laws violate the equal protection clause.
Nov. 18, 2008 (en banc), Carpio, J.
(6-5 vote)
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
(reversed December 21, 2009; reinstated August 24, 2010 and declared that
the decision had become final and executory; reversed again in February 15,
2011, April 12 and finally REVERSED, on June 28, 2011)
We grant the petitions.
The Cityhood Laws violate Sections 6 and 10, Article X of the Constitution,
and are thus unconstitutional.
First, applying the P100 million income requirement in RA 9009 to the
present case is a prospective, not a retroactive application, because RA 9009
took effect in 2001 while the cityhood bills became law more than five years
later.
Second, the Constitution requires that Congress shall prescribe all the criteria
for the creation of a city in the Local Government Code and not in any other
law, including the Cityhood Laws.
Third, the Cityhood Laws violate Section 6, Article X of the Constitution
because they prevent a fair and just distribution of the national taxes to local
government units.
Fourth, the criteria prescribed in Section 450 of the Local Government Code,
as amended by RA 9009, for converting a municipality into a city are clear,
plain and unambiguous, needing no resort to any statutory construction.
Fifth, the intent of members of the 11th Congress to exempt certain
municipalities from the coverage of RA 9009 remained an intent and was
never written into Section 450 of the Local Government Code.
Sixth, the deliberations of the 11th or 12th Congress on unapproved bills or
resolutions are not extrinsic aids in interpreting a law passed in the 13th
Congress.
Seventh, even if the exemption in the Cityhood Laws were written in Section
450 of the Local Government Code, the exemption would still be
unconstitutional for violation of the equal protection clause.
Congress Must Prescribe in the Local Government Code All Criteria
Section 10, Article X of the 1987 Constitution provides:
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 local government code and subject to
approval by a majority of the votes cast in a plebiscite in the political units
directly affected. (Emphasis supplied)
The Constitution is clear. The creation of local government units must follow
29 | P a g e
the criteria established in the Local Government Code and not in any
other law. There is only one Local Government Code. 18 The Constitution
requires Congress to stipulate in the Local Government Code all the criteria
necessary for the creation of a city, including the conversion of a municipality
into a city. Congress cannot write such criteria in any other law, like the
Cityhood Laws.
The criteria prescribed in the Local Government Code govern exclusively the
creation of a city. No other law, not even the charter of the city, can govern
such creation. The clear intent of the Constitution is to insure that the
creation of cities and other political units must follow the same uniform,
non-discriminatory criteria found solely in the Local Government Code.
Any derogation or deviation from the criteria prescribed in the Local
Government Code violates Section 10, Article X of the Constitution.
RA 9009 amended Section 450 of the Local Government Code to increase the
income requirement from P20 million to P100 million for the creation of a
city. This took effect on 30 June 2001. Hence, from that moment the
Local Government Code required that any municipality desiring to
become a city must satisfy the P100 million income requirement. Section
450 of the Local Government Code, as amended by RA 9009, does not
contain any exemption from this income requirement.
In enacting RA 9009, Congress did not grant any exemption to respondent
municipalities, even though their cityhood bills were pending in Congress
when Congress passed RA 9009. The Cityhood Laws, all enacted after the
effectivity of RA 9009, explicitly exempt respondent municipalities from the
increased income requirement in Section 450 of the Local Government Code,
as amended by RA 9009. Such exemption clearly violates Section 10,
Article X of the Constitution and is thus patently unconstitutional. To be
valid, such exemption must be written in the Local Government Code
and not in any other law, including the Cityhood Laws.
Legislative Intent
True, members of Congress discussed exempting respondent municipalities
from RA 9009, as shown by the various deliberations on the matter during
the 11th Congress. However, Congress did not write this intended exemption
into law. Congress could have easily included such exemption in RA 9009 but
Congress did not. This is fatal to the cause of respondent municipalities
because such exemption must appear in RA 9009 as an amendment to
Section 450 of the Local Government Code. The Constitution requires that
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
the criteria for the conversion of a municipality into a city, including any
exemption from such criteria, must all be written in the Local Government
Code. Congress cannot prescribe such criteria or exemption from such
criteria in any other law. In short, Congress cannot create a city through a
law that does not comply with the criteria or exemption found in the
Local Government Code.
Equal Protection of Laws
Even if the exemption provision in the Cityhood Laws were written in Section
450 of the Local Government Code, as amended by RA 9009, such exemption
would still be unconstitutional for violation of the equal protection clause.
The exemption provision merely states, "Exemption from Republic Act No.
9009 — The City of . . . shall be exempted from the income requirement
prescribed under Republic Act No. 9009." This one sentence exemption
provision contains no classification standards or guidelines differentiating the
exempted municipalities from those that are not exempted.
Even if we take into account the deliberations in the 11th Congress that
municipalities with pending cityhood bills should be exempt from the P100
million income requirement, there is still no valid classification to satisfy the
equal protection clause. The exemption will be based solely on the fact
that the 16 municipalities had cityhood bills pending in the 11th
Congress when RA 9009 was enacted. This is not a valid classification
between those entitled and those not entitled to exemption from the P100
million income requirement.
(December 21, 2009, on reconsideration, Velasco, J.)
Ratio legis est anima. The spirit rather than the letter of the law. A statute
must be read according to its spirit or intent, 1 for what is within the spirit is
within the statute although it is not within its letter, and that which is within
the letter but not within the spirit is not within the statute.
(Without belaboring in their smallest details the arguments for and against
the procedural dimension of this disposition, it bears to stress that the Court
has the power to suspend its own rules when the ends of justice would be
served thereby. 17 In the performance of their duties, courts should not be
shackled by stringent rules which would result in manifest injustice. Rules of
procedure are only tools crafted to facilitate the attainment of justice. Their
strict and rigid application must be eschewed, if they result in technicalities
that tend to frustrate rather than promote substantial justice.)
30 | P a g e

Held:
It bears notice, however, that the "code" similarly referred to in the 1973 and
1987 Constitutions is clearly but a law Congress enacted. This is consistent
with the aforementioned plenary power of Congress to create political units.
Necessarily, since Congress wields the vast poser * of creating political
subdivisions, surely it can exercise the lesser authority of requiring a set of
criteria, standards, or ascertainable indicators of viability for their creation.
Thus, the only conceivable reason why the Constitution employs the clause
"in accordance with the criteria established in the local government
code" is to lay stress that it is Congress alone, and no other, which can
impose the criteria.
Consistent with its plenary legislative power on the matter, Congress can, via
either a consolidated set of laws or a much simpler, single-subject enactment,
impose the said verifiable criteria of viability. These criteria need not be
embodied in the local government code, 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. In this case, the amendatory RA 9009 upped the
already codified income requirement from PhP20 million to PhP100 million.
At the end of the day, the passage of amendatory laws is no different 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.
Legislative Intent
The legislative intent is not at all times accurately reflected in the manner in
which the resulting law is couched. Thus, applying a verba legis 37 or strictly
literal interpretation of a statute may render it meaningless and lead to
inconvenience, an absurd situation or injustice. 38 To obviate this aberration,
and bearing in mind the principle that the intent or the spirit of the law is the
law itself, 39 resort should be to the rule that the spirit of the law controls its
letter. 40
It is in this respect that the history of the passage of RA 9009 and the logical
inferences derivable therefrom assume relevancy in discovering legislative
intent. 41
The rationale behind the enactment of RA 9009 to amend Sec. 450 of the
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
LGC of 1991 can reasonably be deduced from Senator Pimentel's sponsorship
speech on S. Bill No. 2157.
What the foregoing Pimental-Drilon exchange eloquently indicates are the
following complementary legislative intentions: (1) the then pending
cityhood bills would be outside the pale of the minimum income requirement
of PhP100 million that S. Bill No. 2159 proposes; and (2) RA 9009 would not
have any retroactive effect insofar as the cityhood bills are concerned.
Given the foregoing perspective, it is not amiss to state that the basis for the
inclusion of the exemption clause of the cityhood laws is the clear-cut intent
of Congress of not according retroactive effect to RA 9009. Not only do the
congressional records bear the legislative intent of exempting the cityhood
laws from the income requirement of PhP100 million. Congress has now
made its intention to exempt express in the challenged cityhood laws.
Equal Protection of Laws- Substantial Distinction
As things stand, the favorable treatment accorded the sixteen (16)
municipalities by the cityhood laws rests on substantial distinction. Indeed,
respondent LGUs, which are subjected only to the erstwhile PhP20 million
income criterion instead of the stringent income requirement prescribed in
RA 9009, are substantially different from other municipalities desirous to
be cities. Looking back, we note that respondent LGUs had pending cityhood
bills before the passage of RA 9009. There lies part of the tipping difference.
And years before the enactment of the amendatory RA 9009, respondents
LGUs had already met the income criterion exacted for cityhood under the
LGC of 1991.
August 24, 2010 Resolution
(Note: Procedural issues in this case are interesting. A motion for
reconsideration was filed on the Nov 18, 2008 decision, which was denied by
majority of the Court on March 31, 2009. A second motion for
reconsideration was filed, and on April 28, 2009, voting 6-6, the Court denied
the second motion for reconsideration for being a prohibited pleading and
thereby, the entry of judgment followed in due course. Entry of judgment
was made on May 21, 2009.
According to the first half of the court, the tie-vote results in the denial of the
motion for reconsideration in accordance with Sec. 7, Rule 56 and paves the
way for the finality of the original decision. However, as resolved by the other
31 | P a g e
half of the court, the tie-vote does not result in the denial but ruled that the June 28, 2011 Resolution
motion remains unresolved and should be acted upon.) Final resolution which declared the 16 cityhood laws as CONSTITUTIONAL.

The issue on finality of the 18 November 2008 was discussed in this

resolution. This decision reinstated the 2008 decision and declared it final c. Procedure
and executory. i. In creation of LGU
o The creation follows the following procedure:
February 15, 2011 Resolution, Bersamin, J. petititon, comments to petition, documents to
Undeniably, R.A. No. 9009 amended the LGC. But it is also true that, in effect, support petition (includes certification by DOF as to
the Cityhood Laws amended R.A. No. 9009 through the exemption clauses income, certification by NSO as to population, and
found therein. Since the Cityhood Laws explicitly exempted the concerned certification by LMB as to land area), map of the
municipalities from the amendatory R.A. No. 9009, such Cityhood Laws are, original LGU or LGUs, and such other information as
therefore, also amendments to the LGC itself. For this reason, we reverse the it may deem necessary, and approval by majority
November 18, 2008 Decision and the August 24, 2010 Resolution on their vote in a plebiscite.
strained and stringent view that the Cityhood Laws, particularly their  Note: additional requirements for city and
exemption clauses, are not found in the LGC. municipality regarding land area
 Barangays in MMA shall be created only by
The petitioners' contention that the Cityhood Laws violated their right to a act of Congress; barangays may be created
just share in the national taxes is not acceptable. in indigenous cultural communities despite
population requirement.
In this regard, it suffices to state that the share of local government units is a ii. In conversion of City to Highly Urbanized City
matter of percentage under Section 285 of the LGC, not a specific amount. (see Art. 9-14, IRR LGC)
Specifically, the share of the cities is 23%, determined on the basis of o ARTICLE 12.Conversion of a Component City Into a
population (50%), land area (25%), and equal sharing (25%). This share is also Highly-Urbanized City. — (a) Requisites for
dependent on the number of existing cities, such that when the number conversion — A component city shall not be
of cities increases, then more will divide and share the allocation for cities. converted into a highly-urbanized city unless the
However, we have to note that the allocation by the National Government is following requisites are present:
not a constant, and can either increase or decrease. With every newly  (1)Income — latest annual income of not
converted city becoming entitled to share the allocation for cities, the less than Fifty Million Pesos (P50,000,000.00)
percentage of internal revenue allotment (IRA) entitlement of each city will based on 1991 constant prices, as certified
decrease, although the actual amount received may be more than that by the city treasurer. The annual income
received in the preceding year. That is a necessary consequence of Section shall include the income accruing to the
285 and Section 286 of the LGC. general fund, exclusive of special funds,
transfers, and non-recurring income; and
April 12, 2011 Resolution  (2)Population — which shall not be less than
Reiterates Feb 15 resolution and clarified the procedural issues. When the two hundred thousand (200,000) inhabitants,
court granted the motion for leave to admit second motion for as certified by NSO.
reconsideration, it ceases to become a prohibited pleading and the court o Procedure for conversion
should conduct further proceedings.

Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus 32 | P a g e

  Resolution by sanggunian (of the
component city) submitted to Office of the
President
 Declaration of conversion by the President
within 30 days (after verifying income and
population requirements)
 Plebiscite within 120 days (COMELEC
mandated to conduct intensive information
campaign)
o 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.
Criteria for Creation and Conversion
- Let’s go to the criteria for the creation and conversion. These
are now the specific criteria – income( c/o dept of finance),
population(c/o nso), and land area(c/o DENR). Which
government agency will determine compliance of these
criteria? The Code provides for the Department of Finance
for income, the National Statistics Office for population, and
the Land Management Bureau of the DENR for land area.
This is found in Section 7 of the LGC.
- Applying administrative law principle also, since these are
specialized agencies, then you have to apply your knowledge
in administrative law that their factual findings are binding or
conclusive as a general rule upon courts. That is basic in
administrative law, with only few exceptions – like blatant
error of the facts or appreciation of the facts, tainted with
malice or bad faith. That’s where these findings of facts will
not be binding or conclusive upon courts. Precisely, when
the City of Talisay was the subject of a case that reached the
CA, the CA respected the findings of the DENR through the
LMB that it has complied with the land area requirement. So
there should be proof of the exceptions - clear error of facts,
malice or bad faith – before these findings cannot be
considered as binding upon courts.
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
- In the case of Navarro vs. Executive Secretary Ermita (2010),
which involved the Dinagat Island, they argue that they have
complied with the population requirement because when the
Province of Surigao conducted a survey of the population,
they invited some officers of the NSO to join them in that
study. However, the result of the study was not certified by
the office itself, the NSO. And so, when it reached the SC. It
was not honored because the requirement according to the
Code is the population must have been certified by the NSO.
It is not sufficient that the NSO officials participated in the
determination of the population compliance.
- See, however, Navarro vs. Exec Sec (2011), where SC said,
(T)here 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.
2. Division and Merger
a. Requirements: (same as creation and conversion)
b. Conditions and Limitations (see 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
33 | P a g e
 classification of the original local government unit or units required. Reason purpose of administrative puposes, easy management, for
shall not fall below its current income classification prior to convenience
such division.
- The income classification of local government units shall be 3. Substantial Alteration of Boundaries
updated within six (6) months from the effectivity of this a. Requirements: sec. 6 (authority to create) and sec. 10
Code to reflect the changes in their financial position (plebiscite requirement)
resulting from the increased revenues as provided herein. b. Settlement of Boundary Disputes
o Jurisdictional Responsibility - Boundary disputes
*Transcript* between and among local government units shall, as
 Division and Merger of LGUs much as possible, be settled amicably. To this end:
The same requirement in creation and conversion but there are limitations  (a)Boundary disputes involving two (2) or
under Section 8 of the LGC. The division or merger shall not reduce the land more barangays in the same city or
area, population, and income to less than the minimum requirement AND the municipality shall be referred for settlement
income classification of the original LGU affected. to the sangguniang panlungsod or
sangguniang bayan concerned.
It not difficult to understand that there should be a limitation that it should  (b)Boundary disputes involving two (2) or
not reduce land area, population, and income requirement to less than the more municipalities within the same
minimum. But there is an additional requirement that the income province shall be referred for settlement to
classification also of the original LGU will not be affected. Di ba 1 st class, 2nd the sangguniang panlalawigan concerned.
class, 3rd class, 4th class, 5th class, 6th class by reason of income ang atong  (c)Boundary disputes involving
LGU. If that will be affected as well, division or merger will not be allowed. municipalities or component cities of
That is an added guaranty that the mother LGU will not be affected to the different provinces shall be jointly referred
extent that its status will also be affected. There shall only be a reduction in for settlement to the sanggunians of the
population, income or area but retaining its being, like for example, a provinces concerned.
province, and also its income classification like a 1 st class, 2nd class, 3rd class  (d)Boundary disputes involving a component
province. city or municipality on the one hand and a
highly urbanized city on the other, or two (2)
 Merger of Administrative Regions or more highly urbanized cities, shall be
If you merge LGUs, that is legislative function obviously. If you create a jointly referred for settlement to the
special metropolitan political subdivision consisting of several LGUs, both the respective sanggunians of the parties.
Constitution and the Code require legislative enactment. Law is required. In  (e)In the event the sanggunian fails to effect
fact, there is also a requirement for plebiscite. If you merger also LGU to an amicable settlement within sixty (60) days
constitute Autonomous Region, obviously there is also a legislative from the date the dispute was referred
enactment required. thereto, it shall issue a certification to that
effect. Thereafter, the dispute shall be
But the merger of administrative regions, no law is required. This is just part formally tried by the sanggunian concerned
of the supervisory power of the President. So mag-usab ta ug Regions 1, 2, 3, which shall decide the issue within sixty (60)
4, 5; or the formation of the CARAGA region for example or NCR; or days from the date of the certification
maghimo ta ug laing region sa region 7, we will call it Bisaya Region; or referred to above. (Sec. 118, LGC of 1991)
combination of regions 7 and 8 for example - only Executive Act, no law is
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus 34 | P a g e
 o Appeal – to the RTC having jurisdiction over the area
and shall be decided within 1 year. Pending final
resolution of the disputed area prior to the dispute
shall be maintained and continued for all legal
purposes.
Case:
Mun. of Sta. Fe vs. Aritao (2007) – The LGC of 1991 grants an expanded role
on the Sanggunian Panlalawigan concerned in resolving cases of municipal
boundary disputes. Aside from having the function of bringing the
contending parties together and intervening or assisting in amicable
settlement of the case, the Sanggunian is now vested with original
jurisdiction to actually hear & decide the dispute in accordance with the
procedures laid down in the law and its implementing rules and regulation.
The RTC lost its power to try, at the first instance, cases of municipal
boundary disputes under the LGC of 1991. Only in the exercise of its
appellate jurisdiction can the proper RTC decide the case, on appeal, should
any party aggrieved by the decision of the Sanggunian Panlalawigan elevate
the same.
4. Abolition
a. Grounds and Conditions – 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
sanggunian 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. (Sec. 9, LGC)
b. DILG Opinion 17, series of 2006 – there need to be
another governmental act before an LGU can be
abolished, the ground for abolition must be irreversible
as certified by DILG (case in point, Guinsaogon, St.
Bernard, Leyte)
Case:
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
Sarangani vs. COMELEC (2000) – Facts: This case is about a “ghost precinct”
in Padian Torogan, Madalum, Lanao del Sur. Upon ocular inspection, the
COMELEC discovered that there were no residents in such barangay. The
COMELEC declared such precinct as non-existent. Mayor Sarangani
challenged the order, arguing that COMELEC committed grave abuse of
discretion.
Held: Act of administrative body such as COMELEC is afforded great weight.
No judicial interference is called for.
(on the issue of the non-existence of the barangay; no automatic cessation of a
local govt unit)
A barangay may officially exist on record and the fact that nobody resides in
the place does not result in its automatic cessation as a unit of local
government. Under the Local Government Code of 1991, the abolition of a
local government unit (LGU) may be done by Congress in the case of a
province, city, municipality, or any other political subdivision. 15 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
Panglunsod concerned subject to the mandatory requirement of a
plebiscite 16conducted for the purpose in the political units affected.
B. Autonomous Regions (Muslim Mindanao and Cordilleras)
1. Creation
- 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 region with the assistance and
participation of the regional consultative commission
composed of representatives appointed by the President
from a list of nominees from multisectoral bodies. The
organic act shall define the basic structure of government for
the region consisting of the executive department and
35 | P a g e
 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.
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.
*Transcript*
 Creation of Autonomous Region
There should still be law and there should still be plebiscite. And there are
two objectives or purposes for the plebiscite. First, is to determine the will of
the people whether to create Autonomous Region; and second, to determine
which LGUS shall form part of the Autonomous Region. And according to
Abbas and Ordillo, only those with majority votes provided that there shall be
more than one will constitute the autonomous region.
 Difference between LGU created and the Autonomous Region
Illustration: if there are 10 provinces that intend to be part of the
Autonomous Region, there shall be plebiscite involving 10 provinces. How do
you go about applying the results of the plebiscite? You will not determine
whether all residents of 10 provinces reached the majority requirement vote.
Instead, you will determine in each province whether there is majority vote.
Not the total like adding all the voters of all 10 provinces. And for example
there is a majority of all 10 it doesn’t mean that there is an autonomous
region created. You determine only the majority in each province and list
down those provinces that obtained majority and they shall form part of the
Autonomous Region. Even if kung imong I-total ang tanan dili makabot ug
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
majority. Let’s say about 10 provinces, there are only about three provinces
which obtained majority vote pero kung i-add nimo tong 7, dili jud kaabot
man gani ug 1/3 ang votes.
NOTE the difference:
- If you are talking about regular LGUs, majority of total votes
of all units
- In Autonomous Region, majority of the votes in each unit.
Cases:
Abbas vs. COMELEC, 179 SCRA 287
- 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 comprise it.
Ordillo vs. COMELEC, 192 SCRA 100 (Dec 4. 1990) – Facts: The question raised
in this petition is whether or not the province of Ifugao, being the only
province which voted favorably for the creation of the Cordillera
Autonomous Region can, alone, legally and validly constitute such Region.
The petitioners maintain that there can be no valid Cordillera Autonomous
Region in only one province as the Constitution and Republic Act No. 6766
require that the said Region be composed of more than one constituent unit.
36 | P a g e

Held: The sole province of Ifugao cannot validly constitute the Cordillera
Autonomous Region.
It is explicit in Article X, Section 15 of the 1987 Constitution that:
"Section 15. There shall be created autonomous regions in Muslim
Mindanao and in the Cordillera 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." (Emphasis Supplied)
The keywords — 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.
This is supported by the fact that the thirteen (13) regions into which the
Philippines is divided for administrative purposes are groupings of
contiguous provinces. (Integrated Reorganization Plan (1972), which was
made as part of the law of the land by P.D. No. 1; P.D. No. 742) Ifugao is a
province by itself. To become part of a region, it must join other provinces,
cities, municipalities, and geographical areas. It joins other units because of
their common and distinctive historical and cultural heritage, economic and
social structures and other relevant characteristics. The Constitutional
requirements are not present in this case
- There must be at least 2 LGUs because the Constitution says
“units”, so in the case of Cordillera, it’s 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.
- Note: Merger of Administrative regions, that is not to be
done by law, but only by an executive act, unlike merger to
create LGU or an autonomous region, which should be done
by law.
Cordillera Broad Coalition vs. COA, Jan. 29, 1990 – Facts: E.O. 220 signed by
President Aquino creating the Cordillera Administrative Region, was
challenged as unconstitutional on the ground that it is only Congress which
has the sole power tocreate administrative regions.
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
Held: The Constitution provides for a basic structure of government in the
autonomous region composed of an elective executive and legislature and
special courts with personal, family and property law jurisdiction [Art. X, sec.
18]. Using this as a guide, we find that E.O. No. 220 did not establish an
autonomous regional government. It created a region, covering a specified
area, for administrative purposes with the main objective of coordinating the
planning and implementation of programs and services [secs. 2 and 5].
It must be clarified that the constitutional guarantee of local autonomy in
the Constitution [Art. X, sec. 2] refers to the administrative autonomy of local
government units or, cast in more technical language, the decentralization of
government authority [Villegas v. Subido, G.R. No. L-31004, January 8, 1971,
37 SCRA 1]. Local autonomy is not unique to the 1987 Constitution, it being
guaranteed also under the 1973 Constitution [Art. II, sec. 10]. And while there
was no express guarantee under the 1935 Constitution, the Congress enacted
the Local Autonomy Act (R.A. No. 2264) and the Decentralization Act (R.A.
No. 5185), which ushered the irreversible march towards further enlargement
of local autonomy in the country [Villegas v. Subido, supra.]
On the other hand, the creation of autonomous regions in Muslim Mindanao
and the Cordilleras, which is peculiar to the 1987 Constitution contemplates
the grant of political autonomy and not just administrative autonomy these
regions. Thus, the provision in the Constitution for an autonomous regional
government with a basic structure consisting of an executive department and
a legislative assembly and special courts with personal, family and property
law jurisdiction in each of the autonomous regions [Art. X, sec. 18]. The CAR
is a mere transitory coordinating agency that would prepare the stage for
political autonomy for the Cordilleras. It fills in the resulting gap in the
process of transforming a group of adjacent territorial and political
subdivisions already enjoying local or administrative autonomy into an
autonomous region vested with political autonomy.
2. Elections – (Note: Date of ARMM elections can only be set by
Congress, not by the COMELEC.)
Case:
Abas Kida vs. Senate, October 18, 2011 (synchronization of ARMM elections
with local and national elections)
The Constitution mandates the synchronization of national and local
elections. While the Constitution does not expressly instruct Congress to
37 | P a g e
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.
That 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.
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.
C. 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. (LGC of 1991)
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
o As fixed by the law or ordinance (usually effectivity
of law) creating the LGU, or
o Election and qualification of chief executive and
majority of sanggunian members (when not fixed by
law or ordinance)
PART IV: POWER RELATIONS WITH NATIONAL GOVERNMENT,
SUPREME COURT, PRESIDENT, AND CONGRESS; INTER-
GOVERNMENTAL RELATIONS, AND HIERARCHICAL RELATIONS AMONG
LOCAL GOVERNMENT UNITS
You know the study of political law, to the large extent, deals with power
relations. You study the relationships of the different branches of the
government; you study the relationships between different agencies when
you study administrative law. In the same manner, you when you study local
government law, you also have to deal with the relationship of agencies,
officials involving local units.
A. LGUs and National Government in General: LGUs are agents of the
State
- Magtajas vs. Pryce Properties, 234 SCRA 255 (1994)
o 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.
- Pimentel, Jr., vs. Executive Secretary (2012)
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.
xxx
38 | P a g e
(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.
 LGU and National Government
- How is the local government unit related to the national
government? You of course know the answer – Magtajas vs.
Pryce Properties. LGUs are but agents of the state. And you
know of course the legal import of LGUs being agents - they
are mere delegates and therefore cannot be superior to the
principal. In Magtajas, an ordinance cannot undo the will of
Congress that allowed the operation of PAGCOR.
B. LGUs and the Supreme Court: LGUs acts are subject to Judicial Review
- See sec. 1, Article VIII, 1987 CONST (judicial review power of
the SC)
- Sec 4(2), Ibid. (constitutionality of any law, treaty ordinance or
other regulations)
 LGU and the Supreme Court
- The acts of the LGU are subject to the judicial review of the
SC. Both ordinary judicial review and expanded certiorari
jurisdiction (expanded judicial review). Our legal basis is
Section 4 paragraph 2 of Article 8, which says that our SC has
appellate jurisdiction on matters involving constitutionality
of ordinances, aside from presidential decrees, executive
orders, treaties, etc.
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
- And in fact, even as to expanded judicial review, the SC may
also exercise that power involving local government units.
- In Kulayan vs. Tan (2012), the declaration of Governor Tan
placing the province of Maguindanao under Martial Law was
reviewed by the Supreme Court under the expanded judicial
review power of the SC.
C. LGUs and the President: President exercises General Supervision
- Sec. 4, 16, Article X, 1987 CONST
- Sec 25 LGC of 1991
 LGU and the President
- Under the Constitution, the relationship of the President and
the LGU is only that of general supervision by the President
over the LGU. The President shall exercise ”general
supervision” over local government units under sec. 4
(constitution) and sec 25 of LGC and autonomous regions
under sec. 16 (Constitution). And in so far as the
Autonomous Region is concerned, under Section 16, Article
10 of the Constitution, it says autonomous region is under
the general supervisory power of the President.
- In administrative law, there are also various relationships.
You can mention of supervision and control; then you have
supervision; and you have attachment. But in this case, it
mentions of general supervision. It is found in Section 4 of
Article 10.
- What does general supervision mean? It simply means,
under Section 17 of Article 7, the President shall ensure
that laws are faithfully executed and that LGU acts are
within the scope of their prescribed powers and functions.
Why highlight general supervision? Because in a given
problem, the power exercised by the President is tantamount
to an exercise of control, then it should be invalidated by the
SC. The President is not allowed to exercise the power of
control over LGUs.
- NOTE: President has direct supervision over PROVINCES,
HIGHLY-URBANIZED CITIES, and INDEPENDENT
39 | P a g e
 COMPONENT CITIES and President has indirect supervision
over COMPONENT CITIES and MUNICIPALITIES (through the
province) and BARANGAY (through the municipality or city)
Cases:
Drilon vs. Lim, 235 SCRA 135 (1994)
Ganzon vs. CA, 200 SCRA 271 (1991)
National Liga ng mga Barangay vs. Paredes (2004)
Zaldy Ampatuan vs. Hon. Puno (2011)
D. LGU and Congress: LGUs derive their existence and powers from
Congress
- Magtajas vs. Pryce Properties (supra.)
o 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, (Art X, Sec. 5,
CONST) 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.
 LGU and Congress
- What about LGU and Congress? We go back to Magtajas. -
LGUs derived their existence and powers from Congress. But
there’s a little modification in the area of taxation, because
Section 5 of Article 10, however, the ”general power to tax”
of LGU is not conferred by law but guaranteed by thru
constitution. Only the “specific power to tax” is statutory and
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
subject to “guidelines and limitations” as Congress may
provide.
- What is therefore the extent of the power of Congress
over local taxation? Only specific power to tax can be the
subject to statutory guidelines or limitations that Congress
may provide.
- What do you mean by general power to tax and there is
specific power to tax? The SC said in Basco vs. PAGCOR, that
LGUs do not possess the inherent power to tax. Practically
that had been the doctrine before the 1987 Constitution.
That pronouncement was actually made citing also previous
cases before the 1987 Constitution – the doctrine being that
the LGUs do not possess the inherent power to tax and they
only exercise power to tax only by mere delegation.
- Then came the 1987 Constitution, Article 10, Section 5, which
says that LGUs shall have the power to impose or levy taxes,
revenues, etc.
- Now the question is what is the significance of Section 5,
Article 10 in relation to the doctrinal pronouncement of the
SC that LGU do not possess the inherent power to tax? Has it
altered the doctrine that LGUs do not possess inherent
power to tax? It has not, of course. But what does it do to
the doctrine? It modified a bit in the sense that while it is
true that LGUs still do not possess inherent power to tax, and
therefore power to tax is the subject of delegation - that rule
applies now to specific power to tax and not to the general
power to tax. What does it mean?
- It means therefore that Congress cannot deny LGUs the
power to tax through statutory requirement because the
Constitution already guarantees that. It cannot therefore
altogether deprive LGUs the power to tax. But as to
specific power to tax, it may do so. It may perhaps for
example through a law say that LGU has no more power to
impose community tax. Is that a total denial of the power to
tax? NO, because the LGU may still raise revenue through
40 | P a g e
 other revenue-raising but not just through community tax,
because community tax is not constitutionally-guaranteed, it
is only statutorily provided. To the extent that Congress has
participation to specific power to tax, then it may provide
guidelines and limitations.
E. Mother LGU and Component LGU: Mother LGU review acts of
component LGU
1. In general – 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. (Sec 4, Article X, 1987
CONST)
2. 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. (Sec 29, LGC)
3. 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. (Sec 32, LGC)
4. Local Chief Executive of Mother LGU reviews ordinances of
Sanggunian and 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
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
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.
5. Sanggunian of mother LGU reviews ordinances of Sanggunian and
EOs of LCE of component LGU
- See sec 56, LGC (regarding review by S. Panlalawigan of local
development plans and public investment programs
formulated by local development councils)
- 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 sangguniang 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.
- (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.
41 | P a g e
 - (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.
- 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.
- Sec. 447 (ordinances and EOs of barangays in municipalities)
o 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;
- Sec. 458 (ordinances and EOs of barangays in cities)
o 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;
- Sec. 468 (ordinances and EOs of component municipalities
and cities)
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
o Review all ordinances approved by the sanggunians
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;
 Mother LGU and a Component LGU
What about a mother LGU and a Component LGU? Mother LGU reviews acts
of component LGU. Province for example, that is the mother LGU in relation
to municipalities and component cities. The city also is also the mother LGU
in relation to barangays. The same is true to municipalities. A municipality is a
mother LGU in relation to the component barangays.
What is the relationship? The mother LGU reviews acts of component LGUS.
That is essentially how a mother is related to the component LGU –the power
to review the act.
What is the extent of that power? Does it have the power to set aside an
ordinance on the ground that it is not a wise ordinance?
- Bar Question (2009, 2004/5) (Moday vs ca): The common
situation was a component municipality passed an ordinance
authorizing the mayor to expropriate a parcel of land. And
because it is an ordinance under the Code and because it
involved a municipality, then as a rule the ordinance will have
to be submitted to the Provincial Board for review. Then the
Provincial Board nullified or declared the ordinance that
authorized the Mayor to expropriate as not valid. Apparently
the basis would be that the subject of the expropriation
should have not been the property that should be the
subject of the expropriation. It should have been another
property. Was the act of the Provincial Board in accordance
with law?
Clue: the Mother LGU shall ensure that the acts of their component units are
within the scope of their prescribed powers and functions. To determine
whether or not they are ultra vires.
42 | P a g e
Does the Provincial Board have the power to set aside the ordinance passed
by a component municipality allowing the Mayor to expropriate?
 Answer: A Provincial Board does not have the power to do that
because it is settled that a local government unit has the power to
expropriate. The ground for setting aside an ordinance of a
component LGU is merely or only ultra vires. Therefore, the question
that should be resolved there in the Provincial Board is whether or
not the municipality has the power to expropriate because the
ordinance is about expropriation. And if it can be set aside by the
Provincial Board, it is just saying that the municipality does not have
the power to expropriate, but the power is recognized there in
Section 19 in the LGC that all LGUs can expropriate. The only reason
that a PB can nullify or set aside an ordinance is that it is beyond the
power or function of the component LGU.
Unsa may example ana sir? If there is a tax ordinance imposing income on
compensation earners. Di ba na covered sa NIRC – national tax. The
ordinance cannot contravene the law. So it is not within the powers.
- Let us go to the pertinent provisions in the Code on how this
relationship between mother LGU and component LGU is
being implemented.
o We have Section 30 (for provincial governors) of the
LGC. Then you jump to Sections 56 and 57 (for
Sangguniang Panlalawigan). Then you go to Sections
447 (for province), 458 (for city), and 468 (for
municipality) for ordinances and executive orders.
o Section 30: Provincial governors have the power to
review the executive orders of the component city
and municipal mayors; and city and municipal
mayors will also review the executive orders of
punong barangay. These are local chief executives
reviewing the executive orders of the local chief
executives of component LGUs. Executive orders kay
local chief executives man.
o Under Sections 56 and 57, these now involved
ordinances and NOT ALL resolutions. The code only
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
mentions of a single kind of resolution that should
be submitted for review. All ordinances should be
submitted for review; while resolutions, not all of
them. As a rule, resolution stays in the issuing
sanggunian, except if the resolution involves
approving of plans and programs of Local
Development Councils, in which case, the Code
requires that these kinds of resolutions should be
submitted to the reviewing LGU. For consistency of
the implementation of these projects.
o The Sangguniang Panlungsod for cities, and
Sangguniang Bayan for municipality review also the
ordinances of barangays. And you have also mother
Sanguniang review ordinanace and executive orders
of component units. (Balik-balik ang LGC, pwedi ra
man unta na ma simplify. Hastily –crafted jud siguro).
- (NOTE) Just an important distinction. The ground for the
exercise of review power of the Sangunian Panlalawigan is
only ultra vires. But if it is by Sangguniang Panlungsod for
city or Sangguniang Bayan for municipality, Section 57
mentions of different grounds. But to my mind, it is still of
the same effect – consistent with laws and consistent with
city or municipal ordinances. Hinuon kung consistent with
law, pwedi it is ultra vires; but naay additional – consistent
with city or municipal ordinances.
- And it is interesting also to distinguish the grounds for the
review power of mother Sanggunian from the Veto power of
the local chief executive because it also mentions of ultra
vires.
Mother sanggunian’s Veto Power
review power: of local chief executive
Grounds: Two grounds –
- If by sanguniang panlalawigan: 1. ultra vires and
1. Ultra vires(sec. 56 (c) LGC) 2. prejudicial to public welfare. (sec.
55, LGC)
43 | P a g e
- If by sanguniang panlungsod/
bayan: *That second ground (prejudicial to
1. Consistent with law public welfare) you don’t see in the
2. Consistent with city/mun. power of the mother LGU to review
ordinances (sec. 57, LGC) the acts of the component LGU. That
is only peculiar to the veto power of
the local chief executive.
F. LGUs and National Agencies and Offices (with project implementation
functions): Prior consultation before implementation
- (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. (Sec. 25,b,
LGC)
- 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. (LGC of 1991)
 LGU and National Agencies and Offices with Project
Implementation Function
- Section 27 provides that no project or programs shall be
implemented by the government authorities unless the
consultations in Sections 2 (c) and 26 of the LGC and prior
approval of the Sanggunian concerned obtained. Provided
that if in the implementation of the project there shall be
some occupants that will be affected, then they shall be
given relocation sites. This is applicable only if there are
occupants who will be affected.
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
This is relevant at present. Remember the issue on LRT-BRT thing in Cebu
City? Rep. Gullas wanted to establish an LRT connecting Talisay City, Cebu
City, and Mandaue City. The initial plan is gikan sa Talisay, then to M. Bacalso
– Land Bank to Capitol – right turn towards Escario - Old SSS Building – right
turn towards Immaculada – left turn towards Reclamation Project. The project
implementor is DPWH because it is national government project.
Ang problema kay dili man musugot si Tomas kay BRT ang I-implement dinhi
sa Cebu City. Do you know the idea of Bus Rapid Transit? The idea is mura
siyag train pero bus lang ang gamiton. In other words, naa siyay lane and dili
na siya muliko or mohunong bisan asa.
The situation here is a little bit unique becasue the program apparently will
involve of just one LGU but at least three LGUS. If Gullas will get the approval
of Talisay City, and if Cortes and officials of Mandaue City will also give their
approval but Cebu City will not, will that stop the implementation of the
project. Well, if you will use your common sense, since one of the LGUs will
object then dili pwedi.
This is mandatory. No project or program shall be implemented by
government authorities (of course with project implementation functions)
without the consultation, (which is easily done); and the approval (that is
difficult to obtain) from the local Sanggunian.
In the case of Lina vs. Paño (2001), it interpreted Section 27 in relation to
Section 26 to mean that it shall only refer to programs by national
government. So if it is by, in this case for example, government-owned-or-
controlled corporation like PAGCOR, the rule on prior consultation before
implementation will not apply. Because in this case, PAGCOR operates in
Laguna or Pangasinan. One of the contentions there was that PAGCOR failed
to get an approval and did not even consult the Sanggunian of the
municipality concerned.
That is not a requirement because to invoke Section 27 in relation to Section
26, that only applies to projects by the national government, and not by the
government-owned-or-controlled corporation. You know of course in Admin
Law that national government as entity is different from regulatory agencies,
GOCCs, chartered institutions, etc.
44 | P a g e
Cases:
Bangus Fry Fisherfolk vs. Lanzanas, (2003) - Congress introduced Sections 26
and 27 in the Local Government Code to emphasize the legislative concern
"for the maintenance of a sound ecology and clean environment." 26 These
provisions require every national government agency or government-owned
and controlled corporation to hold prior consultations with the local
government unit concerned and to secure the prior approval of
its sanggunian before implementing "any project or program that may cause
pollution, climatic change, depletion of non-renewable resources, loss of
cropland, rangeland, or forest cover and extinction of animal or plant species.
In Lina, Jr. v. Paño,27 the Court interpreted these provisions in this manner:
Section 27 of the Code should be read in conjunction with Section 26 thereof
x x x.
Thus, the projects and programs mentioned in Section 27 should be
interpreted to mean projects and programs whose effects are among
those enumerated in Sections 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, rangeland, or forest cover; (5) may eradicate certain animal
or plant species; 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.
Again, Sections 26 and 27 do not apply to this case because as petitioners
admit,28 the mooring facility itself is not environmentally critical and hence
does not belong to any of the six types of projects mentioned in the law.
There is no statutory requirement for the concerned sanggunian to approve
the construction of the mooring facility. It is another matter if the operation
of the power barge is at issue. As an environmentally critical project that
causes pollution, the operation of the power barge needs the prior approval
of the concerned sanggunian. However, what is before this Court is only the
construction of the mooring facility, not the operation of the power barge.
Thus, the issuance of the ECC does not violate Sections 26 and 27 of RA No.
7160.
Province of Rizal vs. Executive Secretary (2005) - The earth belongs in usufruct
to the living. (read case; about dumping of MM garbage in the province of
Rizal) Held: Section 16 allows every local government unit to "exercise the
powers expressly granted, those necessarily implied therefrom, as well as
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
powers necessary, appropriate, or incidental for its efficient and effective
governance, and those which are essential to the promotion of the general
welfare," which involve, among other things, "promot(ing) health and
safety, enhance(ing) the right of the people to a balanced ecology, and
preserv(ing) the comfort and convenience of their inhabitants."
Section 27 of the Code should be read in conjunction with Section 26 thereof.
Section 26 reads:
xxx
Thus, 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. (emphasis supplied)
We reiterated this doctrine in the recent case of Bangus Fry Fisherfolk v.
Lanzanas,50 where we held that there was no statutory requirement for
the sangguniang bayan of Puerto Galera to approve the construction of a
mooring facility, as Sections 26 and 27 are inapplicable to projects which are
not environmentally critical.
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
- 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
45 | P a g e
 executive concerned, for his information and guidance,
monthly reports including duly certified budgetary
allocations and expenditures. (Sec. 25(d), LGC)
* If there is no program implementation, it is only mere consultation that is
required. Prior approval by the Sanggunian is not required.
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 cropland, 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.
* If it environmental program, prior approval is also not required. It is mere
consultation if you look at the Code.
I. LGUs and Philippine National Police (PNP), fire protection unit, and
jail management personnel: Operational supervision and control by
LGUs
- Extent of operational supervision and control shall be
governed by RA 6975, the DILG Act of 1990 (sec. 28, LGC)
- What is the extent of the exercise of power by the LGU
through the Mayor? Only operational supervision and
control. It is not even supervision and control. it is just
“operational” supervision and control. Meaning, how to
mobilize the police force if we are to talk about PNP.
This was tested in the case of Andaya vs, RTC (1999), involving then former
mayor Alvin Garcia. Under the law creating National Police Commission, in
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
choosing the city director (the chief of police or city police commander), the
Regional Police Director shall give a list of 5 eligibles to the Mayor. Unya
kutob ra pod didto sa lima ang i-appoint sa Mayor. Si Mayor Alvin miingon
nga kani si I forgot the name maoy i-apil. Unya wala ma jud giapil Sa
Regional Police Director didto sa lima nga recommended. Iya gipaapil.
May the City Mayor insist on a name that is not included in the nominees by
the Regional Police Director? It is here that the SC discussed the relationship
between the Mayor and the National Police Commission, applying of course
the rule that the Mayor is only limited to operational supervision and control.
Cases:
Andaya vs. RTC, 319 SCRA 696 (1999)
Kulayan vs. Tan (2012) – The framers never intended for local chief executives
to exercise unbridled control over the police in emergency situations (which
is lacking in this case). This is without prejudice to their authority over police
units in their jurisdiction as provided by law, and their prerogative to seek
assistance from the police in day to day situations, as contemplated by
the Constitutional Commission. But as a civilian agency of the government,
the police, through the NAPOLCOM, properly comes within, and is subject to,
the exercise by the President of the power of executive control. A local chief
executive, such as the provincial governor, exercises operational
supervision over the police, and may exercise control only in day-to-day
operations.
J. LGUs and NGOs: LGUs shall support and give assistance to NGOs
(see Sec. 34-36 of LGC)
PART V: GOVERNMENTAL POWERS OF LOCAL GOVERNMENTS
These are the powers that we will study – local power of taxation, police
power and eminent domain. We will be talking about the power and not
about the specific local taxes because that is not part of the coverage in the
bar exam in so far as political law is concerned. That will be in taxation. We
will just talk about the power in general.
A. Local Power of Taxation
1. Sources of revenues of LGUs
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BAR QUESTION (1999): What are the sources of revenues of
LGUs?
- Taxes, Fees and Charges through ordinances (sec 5);
- Just share in the national taxes (sec 6); and
- Equitable share in the proceeds of the utilization and
development of national wealth within their respective
areas (sec 7, Article X, 1987 CONST)
o 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. (Art. X, 1987 CONST)
*All these sources are already found in the LGC of 1991.
 Question: Under the law that is created, certain local taxes shall be
spent to other purposes but not accruing to the LGUs. Is the law
valid?
- Take note that this is a provision in the Constitution. This is
not under the LGC. So Congress cannot change this. Any law
that alters this rule that they shall accrue exclusively to the
local governments shall be declared unconstitutional.
 What is “local fiscal autonomy?”
- Local governments have the power to create their own
sources of revenue in addition to their equitable share in
the national taxes released automatically by the national
government as well as the power to allocate their
resources in accordance with their own priorities.
(Pimentel vs. Aguirre, 2000)
- What is important here is you should add “as well as the
power to allocate their resources in accordance to their own
priorities.” So it is the power to allocate their resources in
accordance with their priorities that gives true meaning to
local autonomy.
- The national government is not given any authority to
interfere with the way the resources of an LGU shall be spent.
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
No statute can ever be passed mandating the manner by
which local funds should be spent, but still subject to
guidelines and limitations.
 Nature of Local Power to Tax
- Do LGUs possess the inherent power to tax?
o Basco vs. PAGCOR, 197 SCRA 52 (1991) – No
inherent right to impose taxes and therefore, an LGU
needs to have a law or statute that grants the 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.
* (This case involves the City of Manila trying to impose taxes on PAGCOR,
but PAGCOR was 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 it’s part of police
power, to that extent, that is governmental, and because it’s governmental,
PAGCOR, while a GOCC, becomes instrumentality of the national
government.)
- What are the reasons for giving Congress the power to
provide guidelines and limitations?
o The SC listed the following reasons in Manila Electric
Company vs. Province of Laguna (1999). Apparently
indicating that Congress does not trust LGUs in so
far as exercise of the power to tax is concerned.
- (1) Because the legislature must still see to it that the
taxpayer will not be overburdened and saddled with multiple
and unreasonable impositions. That is to say therefore that
LGUs do not know the distinction between the reasonable and
the unreasonable imposition.
- (2) Each LGU will have its fair share of the available resources.
- (3) The resources of the LGU will not be unduly disturbed.
- (4) Local taxation will be fair, uniform and just.
47 | P a g e
What are the possible limitations to the power to tax? Only two –
Constitution and Law. Not an executive order or memorandum circular by the
department. Wala na class. Only Constitution and law if we are to truly
implement local autonomy. That is Philippine Petroleum Corporation vs.
Municipality of Pililla, Rizal (1991).
 Effect on Effect of Local Government Code on privileges and
exemptions granted to GOCCs.
Section 234 provides for the exemptions from payment of real property
taxes, and withdraws previous exemptions granted to natural and juridical
persons including GOCCs. You add Section 193, Tax Exemptions or
incentives granted to or presently enjoyed by all person whether natural or
juridical including GOCCs, except local water districts, cooperatives duly
registered, non-stock, non-profit hospitals and educational institutions, are
hereby withdrawn upon the effectivity of this Code.
Indeed that was the ruling of the Court in Mactan Cebu International Airport
Authority vs. Marcos (1996). Judge Marcos not President Marcos. These
involved the properties now occupied IT Park.
- Gi assessan sa City of Cebu real property tax. Invoking Basco,
MCIAA said exempt. And then invoking also a provision in
their charter that it is exempt. Apparently was there before
the LGC of 1991. The SC said revoked - effectively withdrawn
is the phrase used in the LGC of 1991.
In 2006, it was changed. MIAA vs. CA (2006) disregards MCIAA vs. Marcos.
Have you read this case; the dissent of Justice Tinga? You read that so that
you will be convinced whether or not this is not a good rule. Unsa may
kalainan sa MIAA ug MCIAA? Mao to nga miingon si Justice Tinga that
MCIAA vs. Marcos case applies squarely. Interestingly, in this case, there was
no mention, not a single words was used discussing the propriety or
impropriety of the MCIAA vs. Marcos doctrine. And discussion ra diya MIAA
kuno is a government instrumentality and not a GOCC kay kuno its
ownership is not divided into shares and there are no members also, applying
the introductory provisions of the Administrative Code. Since this is just a
review we will not discuss or analyze Justice Tinga’s dissent. I will leave it to
you to read Justice Tinga’s dissent. Especially Justice Tinga said that MCIAA
vs. Marcos has been applied by the SC in several cases. That doctrine has
been applied many times giving strength to that doctrine that all persons
whether juridical or natural and it is irrelevant whether it is GOCC or not
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
basta entity, effectively withdrawn. Mao na ang MCIAA vs. Marcos. But
suddenly, the SC did not apply MCIAA in this case of MIAA.
In GSIS vs. City of Manila, it applied MIAA and not Marcos. Nagsugod na sad
ug affirm ang MIAA doctrine. The same reason – that it was created as a non-
stock corporation, the GSIS capital is not divided into shares, and there are
no members (members according to the SC should be interpreted as the
beneficiaries of GSIS) of the entity. SO it applied MIAA. Kung nay exam sir
unsa man among gamiton. Sir: ambot nimo dako naman ka. Mao basaha na
kung asa nimo feel ang correct. Because I am not convinced that MIAA is
really a doctrinal pronouncement of the Court especially that it abandons
several rulings as said in the dissent of Justice Tinga.
In Quezon City vs. Bayantel. Di ba effectively withdrawn. But it does not
prohibit the Congress from reinstating the exemption. Just like what
happened here in Quezon City vs. Bayantel. A law RA 7633 restored the
exemption. So pwedi ug while effectively withdrawn by LGC of 1991 but
through a special law, pwedi i-reinstate ang exemption. So Congress is not
barred to do that – plenary power of the Congress.
Cases:
Mactan Cebu International Airport vs. Judge Marcos (1996)
City Government of Quezon vs. Bayantel (2006)
Manila International Airport Authority vs. CA (2006)
Digitel vs. Pangasinan (2007)
City of Iloilo vs. Smart Communications (2009)
GSIS vs. City Treasurer of Manila (2009)
b. Just share in the national taxes
- 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.
I think the important rule here is the rule on automatic release. Internal
Revenue Allotment (IRA) should be released automatically. What do you
mean by automatic release of the IRA. You have Pimentel vs. Aguirre. It says
– shall not subject to any lien or hold back that may be imposed by the
national government for whatever purpose.
48 | P a g e
At that time, around 1996 or 1997, due to the Asian financial crisis, Ramos
thought of preserving funds to address the financial crisis. Hunuhuna niya
nganong diretso ma nato release ang IRA to LGUs. Maybe it can be used to
address this financial crisis. Miingon ang Administrative Order 372 – pending
the assessment and evaluation by the development project coordinating
committee, the amount equivalent to 10 percent of the IRA shall be withheld.
- In 2007 bar exam: the provincial governor of Bataan
requested the DBM to release its IRA of P100 million for the
current budget year. However the General Appropriations
Act provided that 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?
o Definition of automatic release - shall not subject to
any lien or hold back that may be imposed by the
national government for whatever purpose. You
know, of course, how to answer that question. That is
a clear violation of Section 6, Article 10 of the
Constitution.
Just so as you will have an idea on how on the sharing of IRAs (how it is
allocated: provinces (23%), cities (23%), municipalities (34%), barangays
(20%).
c. Equitable share in the proceeds of the utilization and
development of national wealth within their respective areas
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.
B. Local Police Power
1. General Welfare Clause: Scope and Limitations
We can talk about the next topic on the Outline which is the Local Police
Power. This is not alien to you because you have studied this in part in your
constitutional law 2. At any rate, I know you are familiar with Local Police
Power or what we call the General Welfare Clause. Each time the LGU
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
speaks of its local police power, the LGU would refer to the General Welfare
Clause. You might be asked a very simple question, what is meant by the
General Welfare Clause then that refers to the local Police Power of Local
Governments. Sec. 16 is the pertinent provision in the LGC, its says:
“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...”
Expectedly you would read the phrase General Welfare because that is the
objective of police power. Basically, it’s the promotion of general welfare. And
so several questions have been asked in the BAR as to whether or not a
particular ordinance having been passed by a LGU where it is valid or not. So
it is important to know what are the requisites for the validity of local police
power.
 Police Power is inherently legislative
However it is important that you first read sec 5 of the LGC because you will
notice that sec. 16 is the provision that effectively delegates police power to
the LGU because Police Power is inherently in Congress. You learned that
already. Police power is legislative and inherently possessed by Congress. If
there is any other agency or instrumentality of government that maybe
authorized to exercise Police Power, it can only be done through a valid
delegation. One of these valid delegation is this delegation to LGU’s.
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. (Sec. 5 (c), LGC)
What does it tell you if it is a mere delegated power? This is a matter of
interpretation. Normally, if the power is delegated we only speak of limited
power of the delegate. Such that in case of doubt whether the delegate can
exercise a particular power, usually our thinking is it cannot if the power is
neither express nor implied in the law which granted it such power. But in Sec
5 of the LGC, there is however an assurance that the General Welfare
Provision shall be liberally construed to give more power to the LGU. When
49 | P a g e
you read section 16 you go to sec. 5 because it provides that the General
Welfare shall be liberally construed to give more powers to the LGU.
What I’m trying to say is that Local Police power is a delegated power and
therefore should be strictly construed because it is fundamental in the
delegation of Legislative powers. It is strictly construed against the delegate.
But in this case it should be liberally construed to give way to more powers
to the LGU’s. This will somehow help you if you are confronted with a
problem that is not based on an actual case it is merely hypothetical. But
most bar examiners when they draft questions for the bar they make sure
that they have a case to support their answer which is a Supreme Court
decision or if not the codal provision. Okay so Liberal Construction in favor
of Local Police Power.
 Requisites for validity of the exercise of local police power
Let’s go to the Requisites for Validity of Local Police Power. Your relevant
case is Tatel vs. Mun. of Virac, 207 SCRA 157 (1992), it has been cited in so
many cases dealing with local police power.
Tatel vs. Mun. of Virac, 207 SCRA 157
For an ordinance to be valid, it must not only be within the corporate powers
of the municipality to enact but must also be passed according to the
procedure prescribed by law, and must be in consonance with certain well
established and basic principles of a substantive nature. These principles
require that a municipal ordinance (1) must not contravene the Constitution
or any statute (2) must not be unfair or oppressive (3) must not be partial or
discriminatory (4) must not prohibit but may regulate trade (5) must be
general and consistent with public policy, and (6) must not be
unreasonable. 5 Ordinance No. 13, Series of 1952, meets these criteria.
- It is not difficult to understand that the ordinance (by the
way this is only through an ordinance) must not contravene
the Constitution and statutes.
* You remember what I talked about with regards to the nature
of LGU’s still under generally the control of Congress and we are
still in a unitary set-up and so Local Legislative enactments must
still conform not only to the Constitution and also the Statutes.
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
- And of course it must not be unfair or oppressive and
other obvious requirement in fact it is a component of the
requirement of due process, substantive due process.
* You remember your constitutional law 2. There are 2 aspects of
due process, one is substantive and the other is procedural. And
by Substantive Due process you remember that it requires
among others that the law itself must be reasonable, fair and
just. And that is included in these requirements on substantive
due process it must not be unfair, not oppressive.
- It must not be partial or discriminatory.
- Must not prohibit but may regulate lawful trade. The 4th
one had been, i don’t know why, the favorite of bar exam
questions. Maybe because it’s a little bit tricky and this you
should understand, the exercise of local police power cannot
prohibit lawful trade. Obviously, if the trade is lawful then it is
not prohibited by Statute, especially if it is expressly allowed
by the Statute or by congressional enactment. The most that
the LGU can do is regulate but it can’t make a demand that it
is prohibited.
* This in the case of dela Cruz vs. Paras, an ordinance which
prohibited the operation of Night Clubs. This was declared by the
SC as unconstitutional or illegal because there is no Law that
prohibits the Operation of Night Clubs. Of course there are laws
which regulate the activities inside the night club. But the
operation of Night Clubs, even up to the present, declared illegal.
So an ordinance can’t prohibit the Operation of Night Club, no
matter how noble the intention maybe. Again we are governed
by the Rule of Law.
- Another requirement is that it must be consistent with
public policy.
* As in this case of Lim vs. Pacquing, where the LGU insisted that
it has the authority to grant franchises for the Operation of Jai-
Alai. However there was a law that actually provided that it is not
50 | P a g e
 within the power of the LGU to grant franchises for the operation
of Jai-Alai but is for the National Government. Therefore it is the
National Government policy that it is the National Government
which shall regulate the operation of jai-alai, so if the LGU
regulates the Operation of the Jai-Alai through the issuance of
franchises then it contravenes the policy of the National
Government. Ordinances like that can’t also be considered as
valid.
- And of course it must not be unreasonable.
In the past it is seldom that you will see the requirement of Lawful subject
and Lawful means in the discussion of the court striking down or dealing with
ordinances of LGU’s. Usually they apply the six requisites found in Tatel vs
Municipality of Virac but recently in the last few years perhaps 20 years, the
SC have been used to adopting what are considered the basic test in
determining validity of Police Power in general.
Before you don’t see this in SC decisions because this is just a term given by
an author (Isagani Cruz), Lawful Subject and Lawful means. But recently as
mentioned earlier, SC has now used Lawful Subject and Lawful means as test.
Naa na sa SC decision dili na lng sa Book, and terms na lawful subject and
lawful means.
 Presumption of constitutionality; exception
Ordinances also enjoy presumption of Constitutionality, and just like laws
they are also presumed constitutional. It is incumbent upon those who
alleged that it is constitutionally infirmed to prove that it is so. It is not
incumbent upon the State. Recent developments however show that there is
an exception to the rule on Presumption of Constitutionality.
You Remember your Doctrine of Strict Scrutiny? Of course you remember the
so called, Overbreadth doctrine, and the O’ brien test. You remember that in
your Consti 2, there is another doctrine which has something to do with the
Presumption of constitutionality. And this is your Doctrine of Strict
Scrutiny. The SC of the Philippines has adopted a judicial philosophy about
laws dealing with liberty. If the Law deals with valuable aspects of our
liberties, especially with the freedom of expression, this rule on the
presumption of constitutionality has been somehow changed. In the sense,
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
whenever a law, regulates, affects or interferes with the individual freedom
(or the most preferred rights as the SC would sometimes call it, like the
freedom of expression, now applying the doctrine of strict scrutiny), it
becomes incumbent upon the government to prove that the interference of
the freedom of expression has a valid and legitimate governmental purpose.
And the means employed to accomplish the purpose of course is not
overbreadth. That is the meaning of the Doctrine of Strict Scrutiny.
It may perhaps be applicable if we are to talk about ordinances that will affect
the freedom of expression. My point is when generally laws and ordinances
are presumed constitutional; the rule will not apply if these laws or
ordinances interfere with freedom of expression under the law or doctrine of
strict scrutiny.
 Zoning ordinances are police power measures, and will prevail
over the non-impairment of obligations and contracts
Now of course the application of the Police Power, Ortigas vs. FEATI Bank, I
think this is a familiar case. You remember what happened to this case?
Zoning ordinances are police measures therefore, as you have learned
already in Consti 2, they will prevail over the rule on non impairment of
obligations. In this case, a property having sold to the buyer with annotation
on the title, that the property could only be used for residential purposes, at
the time of sale the land had been classified in the zoning ordinance as
residential. Even if it was perfectly alright to annotate that it should remain
for residential use only. But later on the Zoning ordinance was changed and
amended and the area where that property was situated had already been
considered commercial. And so the buyer started to build a commercial
building. The owner which was just beside the building which was the seller
who was just beside the building complained because in the certificate of
title it was annotated that it should only be used for residential purpose. And
now or at that time it was used for commercial purpose. And then when the
buyer invoked the zoning ordinance, the seller also invoked non-impairment
clause of the constitution and you know of course the ruling of the Court
there, the Zoning Ordinance is a Police Measure and thus it should prevail
over contractual obligations.
The case of Zoomzat vs. People, It’s a simple case. The rule is that if it is an
issue whether the LGU possesses a police power. Sometimes it’s difficult
really whether we apply liberality principle or not. But if it is clear according
51 | P a g e
to the court that it has no authority then the rule on Liberality of the General
Welfare of ordinances will not apply. The SC said that “in the absence of
constitutional or legislative authorization, municipalities have no power to
grant franchises”. This is a declaration made by the court when a particular
LGU wanted to grant franchise to a local cable TV system.
Then in Leonardo Tan vs Perena, this is a local case on the northern part of
Cebu. Under the LGC the Sanguniang has the power to authorize and license
establishment, operation and maintenance of cockpits. This might sound
interesting to some people. Yes the Sanggunian has the power to authorize
and license the operations and maintenance of cockpit. However, the law
provides that there should be only one cockpit per city or municipality. The
only exception is when such cities or municipalities have a population over
100k. Then the sanggunian can’t act contrary to the particular mandate of
the statute. There is a law regulating the cockpits/LGU’s.
This is the case where I said which mentions lawful subject and lawful
method. First, the meaning of Lawful subject – that the interest of the public
as distinguished from those of a particular class require the interference of the
State. That is the meaning of Lawful Subject. Second, the means employed are
reasonably necessary for the attainment sought to be accomplished and not
unduly oppressive upon individuals. Inana ra na class.
- Lawful subject – interest of the public as distinguished from
the interest of a particular class require the interference of
the State
- Lawful means – means employed are reasonably necessary
for the attainment of the object and not unduly oppressive
upon individuals.
And in this case, Lucena Grand Central Terminal vs. JAC Liner, the
ponente used the terms Lawful subject and Law Methods. As it is now, these
terms mentioned by the former justice Isagani Cruz, forms part of SC
decisions. You know what happened in Lucena Grand Central Terminal? In
Lucena City there were certain terminals (about 2 or 3 terminals) that have
been in operation within the interior part of the City. As observed it caused
traffic and congestion to the city. The solution was to have a terminal and
make it a central terminal outside the city. Indeed it was implemented by the
LGU but at the same time it ordered through the ordinance that existing
terminals inside the city cannot operate as terminals. And so the affected
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
owners of these terminals filed a case in court questioning that ordinance,
saying that it took their properties, private properties without payment of
Just compensation. Then of course the LGU argued, we did not take your
property, because in the exercise of Police Power there is no taking of
property here and the payment of just compensation. It was an exercise of
Local Police Power. The objective of which was to promote general welfare
which was to ease the traffic in the city. This case also applied the concept of
overbreadth in police power measures. It is overbreadth if it does not comply
with lawful means or lawful methods, as when it is not reasonably necessary.
According to the court while the objective was for the promotion of the
general welfare and therefore the subject was lawful, the means employed by
the LGC was not reasonably necessary. Why? Because according to the Court
the LGU was not without recourse in solving congestion. It could have (i)
implemented strictly traffic rules and (ii) it could have widened roads for
example or if not create some more roads to ease the traffic, rather than
order the non-operation of existing terminals and deprive them of their right
to property without payment of just compensation. Another application of
Lawful means requirement.
If that was not interesting I think this one is, White Light Corporation vs.
City of Manila (January 2009). You know it’s very common short time
accommodation. Why are there short time accommodations? One is for
transient. Other than that? R&R? Well of course you know what im trying to
say but i don’t want to say it. Apparently it was the reason why this short time
accommodation by hotels, motels and other similar establishments have
encouraged the strength of prostitution. Not only that in this case another
concern was drug pushing. In the privacy of hotel rooms there will be of
course prostitution or the commission of crimes specifically drug pushing,
selling or using. So an ordinance was passed in Manila, prohibiting this kind
of accommodation, the short time admission and tolerated or wash-up rates
for abbreviated stays. If we are to resolve this issue, taking into consideration
the objective, 1. Lawful subject. What is the object? The operation of the
hotel. Does it affect the general welfare? Yes, in away because the hotel is
operating its services to the public. So it is a matter that can be lawfully
regulated. So lawful subject. What about the means employed? In City of
Manila vs Laguio Jr. (2005) it was obvious, remember the rule? The LGU
can’t prohibit but they can only regulate the operation of lawful trade. And
the Operation of Hotel has not been declared invalid by statute, so no LGU
can prohibit the operation of these establishments. Do you think the
ordinance here in Whitelight Corporation is valid? No, it’s not valid. There are
52 | P a g e
less intrusive ways of solving such problem rather than radically prohibiting
such activities or establishments.
What are the least intrusive means? That is actually the idea of an over
breadth doctrine. If the government wants to interfere with certain freedom, it
must do so with the method that is least intrusive. And what are the least
intrusive methods? According to the SC if you are talking about regulation of
drugs, then enforced strictly the laws governing or regulating drug use.
Mobilize police force, implement laws against prostitution. The solution to
these problems according to the court is simply strict implementation of the
status quo and you don’t have to intrude further to the business of the hotels
because this is of course peculiar, as what you have mentioned earlier, there
are those who avail short time accommodation for wholesome purposes.
There are those who would avail of the short time operations for wholesome
purposes, and they themselves will suffer from this ordinance. It is not
reasonable anymore to compel them to pay the full price of the daily use if
they would only stay there for 2 hours or 3 hours because there are changes
in their flight schedule.
Actually the problems in the bar exams dealing with police power are very easy
to solve. Makita man nimo, importante lng you have a good explanation why
you would say yes or of you would say no to a given problem.
Cases:
Balacuit vs. CFI of Agusan, 163 SCRA 682 – Facts: This case involves the
constitutionality of an ordinance in the City of Butuan which penalizes movie
houses which do not charge at one half of the price admission tickets for
children ages between 7 and 12. Held: Nonetheless, as to the question of the
subject ordinance being a valid exercise of police power, the same must be
resolved in the negative. While it is true that a business may be regulated, it
is equally true that such regulation must be within the bounds of reason, that
is, the regulatory ordinance must be reasonable, and its provisions cannot be
oppressive amounting to an arbitrary interference with the business or calling
subject of regulation. A lawful business or calling may not, under the guise of
regulation, be unreasonably interfered with even by the exercise of police
power. 33 A police measure for the regulation of the conduct, control and
operation of a business should not encroach upon the legitimate and lawful
exercise by the citizens of their property rights.
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
Rimando vs. Naguillian Emission Testing Center, GR 198860, July 23, 2012 –
Facts: The issue in this case involves the application of a writ of mandamus to
compel the city mayor to issue business permits in favor of respondent.
Held: More importantly, a mayor cannot be compelled by mandamus to
issue a business permit since the exercise of the same is a delegated police
power hence, discretionary in nature.
Section 16, known as the general welfare clause, encapsulates the delegated
police power to local governments. Local government units exercise police
power through their respective legislative bodies. Evidently, the Local
Government Code of 1991 is unequivocal that the municipal mayor has the
power to issue licenses and permits and suspend or revoke the same for any
violation of the conditions upon which said licenses or permits had been
issued, pursuant to law or ordinance. x x x
xxxx
Section 444(b)(3)(iv) of the Local Government Code of 1991, whereby the
power of the respondent mayor to issue license and permits is circumscribed,
is a manifestation of the delegated police power of a municipal corporation.
Necessarily, the exercise thereof cannot be deemed ministerial. As to the
question of whether the power is validly exercised, the matter is within the
province of a writ of certiorari, but certainly, not of mandamus. (Citations
omitted)
Fernando vs. St. Scholastica’s College (March 12, 2013) – The subject of this
case is an ordinance by the City of Marikina which regulates the construction
of fences and walls in the [then] municipality. Pursuant to the ordinance, the
city of Marikina ordered the respondents (St. Scholastica’s College, et al) to
demolish and replace the fence of their Marikina property to make it 80%
see-thru, and, at the same time, to move it back about six (6) meters to
provide parking space for vehicles to park.
Held: "Police power is the plenary power vested in the legislature to make
statutes and ordinances to promote the health, morals, peace, education,
good order or safety and general welfare of the people." 21 The State, through
the legislature, has delegated the exercise of police power to local
government units, as agencies of the State. This delegation of police power is
embodied in Section 1622 of the Local Government Code of 1991 (R.A. No.
7160), known as the General Welfare Clause,23 which has two branches. "The
first, known as the general legislative power, authorizes the municipal council
to enact ordinances and make regulations not repugnant to law, as may be
necessary to carry into effect and discharge the powers and duties conferred
53 | P a g e
upon the municipal council by law. The second, known as the police power
proper, authorizes the municipality to enact ordinances as may be necessary
and proper for the health and safety, prosperity, morals, peace, good order,
comfort, and convenience of the municipality and its inhabitants, and for the
protection of their property."24
To successfully invoke the exercise of police power as the rationale for the
enactment of an ordinance and to free it from the imputation of
constitutional infirmity, two tests have been used by the Court – the rational
relationship test and the strict scrutiny test:
We ourselves have often applied the rational basis test mainly in analysis of
equal protection challenges. Using the rational basis examination, laws or
ordinances are upheld if they rationally further a legitimate governmental
interest. Under intermediate review, governmental interest is extensively
examined and the availability of less restrictive measures is considered.
Applying 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.27
Even without going to a discussion of the strict scrutiny test, Ordinance No.
192, series of 1994 must be struck down for not being reasonably necessary
to accomplish the City’s purpose. More importantly, it is oppressive of private
rights.
Under the rational relationship test, an ordinance must pass the following
requisites as discussed in Social Justice Society (SJS) v. Atienza, Jr.: 28
As with the State, local governments may be considered as having properly
exercised their 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 its exercise and (2) the means employed are reasonably
necessary for the accomplishment of the purpose and not unduly oppressive
upon individuals. In short, there must be a concurrence of a lawful subject
and lawful method.29
For Section 3.1 to pass the rational relationship test, the petitioners must
show the reasonable relation between the purpose of the police power
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.36
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
Compelling the respondents to construct their fence in accordance with the
assailed ordinance is, thus, a clear encroachment on their right to property,
which necessarily includes their right to decide how best to protect their
property.
It also appears that requiring the exposure of their property via a see-thru
fence is violative of their right to privacy, considering that the residence of
the Benedictine nuns is also located within the property. The right to privacy
has long been considered a fundamental right guaranteed by the
Constitution that must be protected from intrusion or constraint. The right to
privacy is essentially the right to be let alone,37 as governmental powers
should stop short of certain intrusions into the personal life of its citizens. 38 It
is inherent in the concept of liberty, enshrined in the Bill of Rights (Article III)
in Sections 1, 2, 3(1), 6, 8, and 17, Article III of the 1987 Constitution. 39
AC Enterprises vs. Frabelle Properties (November 2, 2006) - Neither does the
MMDA have the power to declare a thing a nuisance. Only courts of law have
the power to determine whether a thing is a nuisance. In AC Enterprises v.
Frabelle Properties Corp.,[30] we held:
We agree with petitioner's contention that, under Section 447(a)(3)(i) of
R.A. No. 7160, otherwise known as the Local Government Code,
the Sangguniang Panglungsod is empowered to enact ordinances
declaring, preventing or abating noise and other forms of nuisance. It
bears stressing, however, that the Sangguniang Bayan cannot declare a
particular thing as a nuisance per se and order its condemnation. It does
not have the power to find, as a fact, that a particular thing is a
nuisance when such thing is not a nuisance per se; nor can it
authorize the extrajudicial condemnation and destruction of that as
a nuisance which in its nature, situation or use is not such. Those
things must be determined and resolved in the ordinary courts of
law. If a thing be in fact, a nuisance due to the manner of its operation,
that question cannot be determined by a mere resolution of
the Sangguniang Bayan. (Emphasis supplied.)
(cited in Justice Gancayco vs. City Govt of QC, 2011)
C. Local Eminent Domain
1. Scope and Limitations
- SECTION 9. Private property shall not be taken for public use
without just compensation. (Art III, CONST)
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 - SECTION 19. Eminent Domain. — A local government unit
may, through its chief executive and acting pursuant to an
ordinance, exercise the power of eminent domain for public
use, or purpose or welfare for the benefit of the poor and the
landless, upon payment of just compensation, pursuant to
the provisions of the Constitution and pertinent
laws: Provided, however, That 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: Provided, further, That the local government unit
may immediately take possession of the property upon the
filing of the 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: Provided, finally, That, 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. (LGC of 1991)
Case:
Heirs of Alberto Suguitan vs. City of Mandaluyong (2000)
Despite the existence of this legislative grant in favor of local governments, 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. 23 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.24
The courts have the obligation to determine whether the following requisites
have been complied with by the local government unit concerned:
1. An ordinance is enacted by the local legislative council authorizing
the local chief executive, in behalf of the local government unit, to
exercise the power of eminent domain or pursue expropriation
proceedings over a particular private property.
2. The power of eminent domain is exercised 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 Section 9,
Article III of the Constitution, and other pertinent laws.
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
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
In the present case, the City of Mandaluyong seeks to exercise the power of
eminent domain over petitioners' property by means of a resolution, in
contravention of the first requisite. The law in this case is clear and free from
ambiguity. Section 19 of the Code requires an ordinance, not a resolution, for
the exercise of the power of eminent domain.
 Local Eminent Domain; general requisites
Let’s go to Local Eminent Domain. You have studied Eminent Domain in
Consti 1 I’m sure you remembered that there are what we call General
Requirements. And these are the general requirements, as a reminder. In any
case there should be
a. NECESSITY FOR THE EXPROPRIATION.
b. INVOLVE PRIVATE PROPERTY, of course there is also no
prohibition to subject a public property to an expropriation
and it does not make sense. There is also no prohibition for a
private property which has already been devoted for public
use to be a subject of expropriation proceedings.
c. TAKING of course as what you have already learned in the
1st year and Judge Singco’s discussion. Does not prohibit
literal taking for it requires or it simply means deprivation of
the enjoyment of the property. So in any case of deprivation
of the enjoyment of the property and not just possession or
not just referring to the literal meaning of deprivation of
possession but the deprivation of the enjoyment of the
property. That is covered by eminent Domain.
d. Of course PUBLIC USE is an indispensable and constitutional
requirement the same is true with
e. JUST COMPENSATION, and
f. DUE PROCESS.
 Difference between expropriation by the National Government
and expropriation by the LGU
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There should however be a special mention of the first requirement on
NECESSITY. A distinction is to be made between expropriation done by the
National Government and expropriation done by a local government unit.
While it only says that there should be necessity for the expropriation, who
determines or who can determine the existence of this necessity? As a
general rule, if expropriation is done pursuant to a law and the law
determines the policy of the State, that law would constitute as the basis to
say that there is a need to expropriate, then under present jurisprudence the
court will hesitate to disturb the findings of Congress. Perhaps it would
consider it as a political question. It is the Congress who determines if there is
necessity for the Expropriation. But there is always a reservation because this
is discretionary, you have of course the expanded certiorari jurisdiction of the
Court.
On the other hand, if it is an expropriation by the LGU it is settled that the
Court has the power to determine genuine necessity of the expropriation. There
is no more a basis by which you can prevent the courts from determining
genuine necessity for expropriation. It is already settled. But the courts
cannot do that in case of the national government. The National government
can still invoke political question doctrine.
That is why in Dela Paz Masikip vs. City of Pasig Jan. 23, 2006, the City of
Pasig wanted to expropriate the property of De la Paz Masikip family for the
purpose of promoting sports or sports development and recreation. That was
the objective of the expropriation. But the expropriation was questioned on
the ground that there was no need to expropriate the private property
because few meters from the private property, subject matter of the
expropriation, there already exist recreational facilities which have been
opened to the public and availed of by the public. The SC said that where the
taking is done for the benefit in the hopes of the community who seeks to
have its own sports and recreational facility, notwithstanding that there is a
recreational facility a short distance away, such taking cannot be considered
for public use. And then here’s the declaration by the Court, the Court
defines what constitutes genuine necessity for public use. Moreover
according to the court, “the ascertainment of the necessity must precede or at
least contemporaneous or must accompany and not follow, the taking of the
land.” Because during trial it was found out they will only develop the
property after expropriation. For future use, according to the Court that can’t
be done; genuine necessity must be present before or at least during the
expropriation. You cannot say that it will be treated in the future.
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
 Specific Requirements: Expropriation by LGUs
If those are the general requirements then there are the specific
requirements, if we are to talk about LGU’s. Interpreting and expounding
further section 19 of the LGC. We go to Sec 19 for Eminent Domain. Did you
read the case of Jesus is Lord Christian Foundation School vs City of Pasig
(2005):
a. Ordinance authorizing the local chief executive to
expropriate over a particular property. There should be an
ordinance enacted by the Local legislative council
authorizing either the mayor or the governor in behalf of the
LGU to exercise the power of Eminent Domain over a
particular private property. Focus your attention to the
following component of the requirement.
So if it is in a mere resolution, as already declared by the SC in the
(Municipality of Paranaque vs VM Realty) a mere resolution will not
suffice. The expropriation is defective. In fact, upon filing of the complaint it
will be dismissed for lack of cause of action. It should be through an
ordinance. Why do we need to emphasize this, because just like what
happened in the case of VM realty, because the councilors were old, what
they were used to is the old Local Government law. Under the Old Local
government Law, expropriation could be done by mere resolution. Before
1991, what they were used to are all through resolution. But in 1991, it was
changed to Ordinance. It was declared by the SC invalid. What would justify
the setting aside or nullification of the proceeding if it is just through a
resolution? In that case of VM realty the SC had the occasion to rule or to
distinguish an ordinance from a mere resolution.
Difference between ordinance and resolution
If you are to distinguish an ordinance from a resolution, how do you
distinguish and how many? Can you give differences? If the answer is yes,
how many?
- CHARACTER OF PERMANENCE. The Ordinance of Course has
the force and effect of a law, it is permanent in nature unless
it is repealed or modified, amended or set aside. While a
resolution is of temporary character. Usually it addresses a
specific and temporary concern. Like when you authorize a
mayor via resolution to enter into a contract. That is for
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 specific and temporary concern for a specific contract. If you
pass a resolution congratulating Manny Pacquiao ta but wla
man fight si Manny. Councilor Labella is contemplating of
passing a resolution condemning the tirades of Mayweather
Jr. Against Manny Paquiao.) that is merely temporary.
- An ordinance will always require 3 readings. Very much like
the bills in Congress, they will not become laws unless and
until they passed 3 readings whether on separate days or
not. A resolution would only need 2 readings. 1st reading is
the announcement of the resolution and referred to a
committee. On the 2nd reading it would be alright to
approve it in the plenary right away. But if it is an Ordinance
there should be a 3rd reading.
These are procedural and legal requirements. And so according to the court
since they are not the same in nature, there are legal and procedural
requirements therefore it is important. That one should be strictly distinguish
from the other. The Code requires an ordinance and a resolution can’t be a
substitute.
Over a particular private property.
Of course, the ordinance will authorize the local chief executive to
expropriate a private property. The ordinance must therefore specify the
private property which will be the subject of the expropriation. They can’t just
pass an ordinance in general terms where the Local chief executive is hereby
authorize to expropriate whatever private land it would deemed proper for
expropriation. It should be over a particular private property. That is again a
legal requirement.
b. Public use, purpose, welfare or for the benefit of the
poor and the landless. That is an obvious requirement. In
fact that is also a general requirement, Public Use. And you
know of course the idea of public use it had already been
expanded. It’s not anymore the traditional concept of Public
use where anyone can avail of the expropriation, like a park
or a road, which are the traditional concept of public use.
Now public use has a modern concept. It is now similar
to the concept of Police Power, general Welfare. This is
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
the justification why LGU’s can expropriate for low cost
housing projects. Only few families will be benefited and
will qualify. Practically it is not something that is available
to anyone but only to the beneficiaries. Will you consider
that not for public use? Yes if you are going to use the
traditional concept of not for public use. But i think you
have learned already that there is now a modern concept
of public use.
c. Payment of just compensation. The third requirement, as
provided in sec. 9 article 3 of the constitution
d. Valid and definite offer that has been previously made to
the owner which was not accepted. This one, you don’t
easily see because it is not found in the general requirement
for exercise of Eminent Domain. This is peculiar to LGU’s,
before expropriation can be legally initiated the code
requires that there should be a valid and definite offer that
has been previously made to the owner and the offer was
not accepted. Twin requirements of valid and definite offer: (i)
previously made to the owner and (ii) such was not accepted.
Let’s take this one by one, VALID AND DEFINITE OFFER. What will make the
offer valid and definite? You have studied obligations and contracts so you
know of course the requirements of making a definite offer. You can’t just say
Dear heirs of Juan Dela Cruz,
For and in behalf of the City of Cebu we are offering to buy your
property, described as Lot no. 510 consisting of 1000 sq. M. Should
you accept this offer to buy, please don’t hesitate to contact the
undersigned.
What’s wrong with that offer? No price. Of course it must be specified,
therefore as to the object, and the consideration. There are many LGU’s who
make a mistake on this part of the same tenor without putting the price.
PREVIOUSLY MADE TO THE OWNER, question what if, the property had been
the subject of a legal battle. And precisely ownership has not been finally
determined, in one SC ruling the SC has said that it is enough that the LGU
makes an offer to the registered owner. Even if subsequently the court
57 | P a g e
declares that another owns legitimately the property. It is enough that the
offer was made to the registered owner as found in its certificate of title.
And of course without need of further discussion it must NOT HAVE BEEN
ACCEPTED. What if the owner did not respond, how will we know that it was
not accepted? You have to be creative with your offer. You will say therefore
as an example that “we appreciate that you will respond to this letter within a
period of 30 days. Your failure to do so will constrained the City of Cebu to
consider that our offer had been rejected. After the lapse of such period it is
sufficient. That is how it is being done. You really don’t need to wait for a
letter which expressly rejects the offer.
Case:
Filstream Int’l vs. CA, G.R. No. 125218 January 23, 1998
Facts:
Petitioner Filstream anchors its claim by virtue of its ownership over the
properties and the existence of a final and executory judgment against
private respondents ordering the latter's ejectment from the premises (Civil
Case No. 140817-CV). Private respondents' claim on the other hand hinges
on an alleged supervening event which has rendered the enforcement of
petitioner's rights moot, that is, the expropriation proceedings (Civil Case No.
94-70560) undertaken by the City of Manila over the disputed premises for
the benefit of herein private respondents. For its part, the City of Manila is
merely exercising its power of eminent domain within its jurisdiction by
expropriating petitioner's properties for public use.
Held:
We take judicial notice of the fact that urban land reform has become a
paramount task in view of the acute shortage of decent housing in urban
areas particularly in Metro Manila. Nevertheless, despite the existence of a
serious dilemma, local government units are not given an unbridled authority
when exercising their power of eminent domain in pursuit of solutions to
these problems.
Thus, the exercise by local government units of the power of eminent domain
is not without limitations. Even Section 19 of the 1991 Local Government
Code is very explicit that it must comply with the provisions of the
Constitution and pertinent laws, to wit:
Sec. 19. Eminent Domain. x x x x “pursuant to the provisions of the
Constitution and pertinent laws: . . . (Emphasis supplied).
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
The governing law that deals with the subject of expropriation for purposes
of urban land reform and housing is Republic Act No. 7279 (Urban
Development and Housing Act of 1992) and Sections 9 and 10 of which
specifically provide as follows:
Sec. 9. Priorities in the acquisition of Land. — Lands for socialized
housing shall be acquired in the following order:
xxxxx
(f) Privately-owned lands.
Sec. 10. Modes of Land Acquisition. — The modes of acquiring lands
for purposes of this Act shall include, among others, community
mortgage, land swapping, land assembly or consolidation, land
banking, donation to the Government, joint-venture agreement,
negotiated purchase, and expropriation. Provided, however, That
expropriation shall be resorted to only when other modes of
acquisition have been exhausted. x x x x x
Very clear from the abovequoted provisions are the limitations with respect
to the order of priority in acquiring private lands and in resorting to
expropriation proceedings as a means to acquire the same. Private lands rank
last in the order of priority for purposes of socialized housing. In the same
vein, expropriation proceedings are to be resorted to only when the other
modes of acquisition have been exhausted. Compliance with these conditions
must be deemed mandatory because these are the only safeguards in
securing the right of owners of private property to due process when their
property is expropriated for public use.
*Transcript*
This case of Filstream Int’l vs. CA (1998) is very important. Came out in the
bar exams last year 2009. There was simply a problem involving low cost
housing project. Basta low cost housing project, you go directly to the
Filstream case. Because aside from the 4 requirements found in sec 19 of the
LGC as interpreted in the Philippine Christian School Case.
Phil Stream added 2 more Requirements. Again this is peculiar only to
Low Cost Housing Projects. Because a LGU can expropriate properties for
other uses and not just for low cost housing projects. But in case, RA 7279
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Urban Development and Housing Act of 1992, specifically sec 9 and sec 10
thereof requires that first, private lands should be last in the selection in
the acquisition of properties for the purposes of low cost housing
projects. You go to sec 9 you would see there: idle lands of the government
that had not been used, Abandoned lands, BLISS projects, the government
must first use or acquire other properties enumerated in section 9 before the
resort to acquisition of private properties. Private properties or private lands
should be last in the selection.
*There is a pending case in the SC, if im not mistaken, involving the
property in V. Rama, owned by the Aznars that was expropriated by
the City of Cebu many years ago. It reached the CA and the
expropriation was declared illegal and irregular. Why? Because when
it was established that it was really for, as found in the complaint,
that it was low cost housing projects, the City of Cebu failed to
establish that it had complied with sec. 9 of RA 7279.
Secondly, expropriation should only be resorted when other modes of
acquisition has been exhausted, such as Land Swapping (maoy g awayan
tawn allegedly between Mayor Mike and Gov Gwen). If the LGU can acquire
the private land not by purchase but by land swapping, then it should resort
to that method first before expropriating the property.
* What are the other modes of acquiring the property? Donation,
which is common on the provinces (have you heard about the modus
operandi of Local government officials in the provinces? (Our lolo
and lola na nahabilin in tawn walay kalinutan, duolon ug papirmahon
dayon ug Deed of Donation. Human ig balik nimo didto, mahibong
nlng ka ngano dagahan mani laing tao mo agi na ngadtokilid sa
among babae? Gi-donate naman gud na namo dodong. Mangutana
ka if dunay bay gbayad? Of course wala kay donation.) but usually in
the low cost housing projects no one would donate in that big area
so that is where land swapping is very common. The LGU’s have
many properties. It might find that it has a property it already owns
but it is not suitable for low cost housing project. It will be the land
that will be land-swapped to the owner but if it is refused then we
can do nothing. My point is that all these must be stated in the
complaint, that will be filed in court because all this constitutes an
action for the complaint of expropriation. Failure to do that would
make the complaint and the cause of action defective.
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
Important Rules, Filstream case still, the LGU has the burden of proving that
the foregoing requirements have been complied with and that all reasonable
efforts have been exhausted. The burden of proof is with the LGU. Even if the
complaint alleges those requirements, the allegation is not sufficient; the LGU
must still be able to prove the allegations in court.
Valid and definite offer to the owner as shown in the title of the latter. I’ve
already mentioned that. The implementing rules of a valid and definite offer
must be complied with. Let’s take a look at very quickly the meaning of valid
and definite offer as provided in art 35 of the IRR, offer to buy and contract
of sale. The offer to buy private property for public use shall be in writing
and it shall specify the property, the reason and the price offered. It must
identify the property (eg. The property known as Lot number and certificate of
tile number. We intend to buy this property for low cost housing project in the
amount of 200 per sq. m.)
If the owner accepts the offer then no problem, the sale will be executed. If
the owner is willing to sell the property but at a price higher than the offer to
them, then there is an additional requirement class; that says that the Local
Chief Executive shall call them to conference. This is a mandatory
requirement during the hearing there will be questions asked about this. (What
was the response of the private owner? It may be counter-offered priced
higher. And can you recall if the mayor conducted a conference? No sir. Did
you not receive any notice or letter inviting you to the conference? None sir.
What about verbal invitation? None all sir.) For the purpose of reaching an
agreement on the selling price, the conference shall be called. What’s the
reason for this? The idea is, again expropriation should be resorted as last
resort all other means of acquiring the property without expropriating
should be acquired first by amicable or peaceful settlement of this issue.
Because expropriation sale, it is in derogation of private property. As much as
possible it should not be expropriated by the State, only if it is so necessary.
Documents required in Contract of Sale on Expropriation
And then if there is already a contract of sale the implementing rules also
require the following documents:
1. Resolution of the Sangguniang authorizing the chief executive to
enter into a contract of sale if they have agreed in this
2. The ordinance appropriating the amount
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 3. And certification of the local treasurer as to the availability of funds.
This is what i have mentioned about the ordinance, the local
government code specifically requires ordinance.
Res judicata does not apply in expropriation. If the LGU filed a complaint
for expropriation and it have been resolved and it went up all the way to the
SC that the expropriation was illegal. It does not mean that the LGU is
perpetually barred from expropriating the same private property. Res judicata
there which not necessarily apply.
Reckoning point in Just Compensation
City of Cebu vs. Dedamo (2002), in general, if you are to look at sec 4 of rule
67 in relation to jurisprudence involving expropriation on the issue of the
reckoning point in determining the just compensation.
Diba you learned that the just compensation of the property shall be
determined at the time of either the taking or the filing of the complaint,
whichever came first. Mao man toh ang barato kay appreciating man ang
value sa property. It is expected of a law to make it more affordable on the
part of the LGU. That is the general rule. But that rule is not applicable if it is
the LGU expropriating because the code in Section 19 is specific that the
just compensation should be determined at the TIME OF TAKING. Again
that rule that you have learned that the just compensation should be based
on the value of the property at the time of either the taking or the filing of
the complaint whichever came first does not apply if it is expropriation done
by the LGU. The reason is because the code is specific; it says that at the time
of taking. Will not the Rules of Court prevail over the code? SC said the rule
of the SC cannot prevail over RA 7160 because it is substantive law.
5-year Reovery Rule
The rule of course forget Republic vs. Lim (2005), this is indeed a
revolutionary pronouncement of a court. It never happened before 2005 that
the SC castigated in its pronouncement the practice of the government both
national and local, of delaying the payment of just compensation. The land
owner is entitled to recover possession of the property expropriated if
the government fails to fully pay the just compensation to the owner for
the period of 5 years from the finality of the judgment in an
expropriation proceeding. * (Mo na daghan au ron g himong hocus pocus
ron na gi himong negosyo sa mga lawyers and unscrupulous businessmen.
Ngano man? Gamay ra ang nakahibaw sa Rep. Vs Lim. Pagkamatay sa
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
ginikanan na mao ang gikiha ug defendants, expropriation proceedings. Ang
mga anak walay kalibutan. Nya daghan man lagi connection sa courts, RD
and will soon discover properties that has been expropriated before and
remained unpaid by the government. Mao duolon nila ang mga heirs,
especially kato mga ingnorante kaayo. Ila ignun, kahibaw bah mo nga kani na
property, especially kato wla na tagad na property. Unya wla g occupy sa
government. If the occupy man gani partly, what do they do is usually like
this. They will represent the heirs and recover the property from someone or
the government. Mao mo ingon dayon ang heirs, ah dugay naman na gi-
embargo atty, makuha pa kaha nato na. Of course they will not say about
Rep. Vs Lim. They will say that they will get it and they will insure that they
will get their property back nya mangayo dayon ug percento. Wla bya mi
kwarta ikabayad atty. Ok lng contingent, 60-40) the owner will be restored to
his possession. Five years from the finality of judgment in an expropriation
proceeding.
Immediate Possession by the Government
Francia vs. Meycauayan (2008), when the municipality of Mekawayan, wanted
to immediately possess the property, the owner of the private property
objected to the immediate possession because, according to the owner, the
issue of public use and purpose should be settled first. The private owner can
claim that there was no genuine necessity of the expropriation and that it
was not for public purpose.
The court said, we will do that after because there is no requirement in the
code that says that the issue of the public use must be settled first before the
LGU can obtain immediate possession of the property. There are now 2
requirements according to the court, (1) the filing of the complaint
sufficient in form and substance and (2) the deposit in the court of at least 15%
of the FMV base on the current tax declaration. If those requirements are
complied with, then the LGU can have immediate possession of the property.
In case of the national government expropriating you learned that it is 100%
of the (fair market) value if the government wants to immediately take
possession of the property. If national govt – 100% deposit. If it’s LGU it’s
only 15% and it’s not the actual fair market value, just the fair market value
appearing at the current tax declaration. Those are the 2 requirements if the
LGU wants to immediately possess the property subject to expropriation.
Cases:
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Anunciacion vda. de Ouano vs. Republic, GR No. 1687702, February 9, 2011 -
The issue in these two petitions is about the right of the former owners of
lots acquired for the expansion of the Lahug Airport in Cebu City to
repurchase or secure reconveyance of their respective properties. MCIAA
contends that when the subject properties were expropriated, there was no
condition for reconveyance to the owners, as held in the decision of the
Court of First Instance, should the operation of the Lahug airport be
abandoned. According to MCIAA, there was a difference in the contracts
between those who entered a negotiated sale/purchase and those properties
who were subjected to expropriation. The petitioners countered thru oral
testimony (parol evidence, introduction of parol evidence is also an issue in
this case) that during the phase of the negotiation, the negotiating team
promised as “sweetener” the reconveyance of the properties should the
airport cease operation.
Held: Obviously, Fery was not decided pursuant to our now sacredly held
constitutional right that private property shall not be taken for public use
without just compensation. It is well settled that the taking of private
property by the Governments power of eminent domain is subject to two
mandatory requirements: (1) that it is for a particular public purpose; and (2)
that just compensation be paid to the property owner. These requirements
partake of the nature of implied conditions that should be complied with to
enable the condemnor to keep the property expropriated.
The notion, therefore, that the government, via expropriation proceedings,
acquires unrestricted ownership over or a fee simple title to the covered land,
is no longer tenable. We suggested as much in Heirs of Moreno and
inTudtud and more recently in Lozada, Sr. Expropriated lands should be
differentiated from a piece of land, ownership of which was absolutely
transferred by way of an unconditional purchase and sale contract freely
entered by two parties, one without obligation to buy and the other without
the duty to sell. In that case, the fee simple concept really comes into play.
There is really no occasion to apply the "fee simple concept" if the transfer is
conditional. The taking of a private land in expropriation proceedings is
always conditioned on its continued devotion to its public purpose. As a
necessary corollary, 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. (Note the case cited, MCIAA vs. Heirs of Moreno,
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
MCIAA vs. Tudtud, and Lozada Sr., vs. MCIAA, which involve the same factual
milieu.)
Sps. Yusay vs. CA, GR 156684, April 6, 2011 – Facts: Petitioners owns a 1,044
sq m parcel of land in Mandaluyong City. In 1997, the SP of Mandaluyong
adopted a resolution authorizing the mayor to take the necessary legal steps
to expropriate the property of petitioners “the purpose of developing it for
low cost housing for the less privileged but deserving city inhabitants.” The
petitioners assailed the resolution.
Held: The challenge is premature. Republic Act No. 7160 (The Local
Government Code) required the City to pass an ordinance, not adopt a
resolution, for the purpose of initiating an expropriation proceeding. A
resolution like Resolution No. 552 that merely expresses the sentiment of the
Sangguniang Panglungsod is not sufficient for the purpose of initiating an
expropriation proceeding. Indeed, in Municipality of Parañaque v. V.M. Realty
Corporation,12 a case in which the Municipality of Parañaque based its
complaint for expropriation on a resolution, not an ordinance, the Court
ruled so:
The power of eminent domain is lodged in the legislative branch of
government, which may delegate the exercise thereof to LGUs, other
public entities and public utilities. An LGU may therefore exercise the
power to expropriate private property only when authorized by Congress
and subject to the latter’s control and restraints, imposed "through the
law conferring the power or in other legislations." In this case, Section 19
of RA 7160, which delegates to LGUs the power of eminent domain, also
lays down the parameters for its exercise. It provides as follows: xxx.
Thus, the following essential requisites must concur before an LGU can
exercise the power of eminent domain:
1. An ordinance is enacted by the local legislative 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. The power of eminent domain is exercised 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 Section 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.
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D. Basic Services and Facilities
1. Devolution, defined
Devolution, which is defined in Sec. 17, §4(e) of the Code, it is an act by
which the National Government confers power and authority, upon various
local government units to perform specific functions and responsibilities. That
is the meaning of DEVOLUTION. That is specific process in order to
implement the system of decentralization. In the same section, there is a
description of how it is to be done, at least it says it shall include the transfer
to local government units of the records, equipments, other assets, personnel
of national agencies, offices and corresponding powers, functions and
responsibilities.
2. Conditions for devolution
Case:
Pimentel vs. Executive Secretary (2012) – While it is through a system of
decentralization that the State shall promote a more responsive and
accountable local government structure, the concept of local autonomy does
not imply the conversion of local government units into "mini-states."18 We
explained that, with local autonomy, the Constitution did nothing more than
"to break up the monopoly of the national government over the affairs of the
local government" and, thus, did not intend to sever "the relation of
partnership and interdependence between the central administration and
local government units."19 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.
E. Reclassification of Lands
- Section 20, LGC
Case:
Nicolas Laynesa vs. Uy, (February 29, 2008) - The pivotal issue in this case is
whether the reclassification of a lot by a municipal ordinance, without the
Department of Agrarian Reform's (DAR's) approval, suffices to oust the
jurisdiction of the DARAB over a petition for legal redemption filed by the
tenants.
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
Held: Sec. 20(e) of RA 7160 is unequivocal that nothing in said section shall
be construed "as repealing, amending or modifying in any manner the
provisions of [RA] 6657." As such, Sec. 50 of RA 6657 on quasi-judicial powers
of the DAR has not been repealed by RA 7160. The DARAB retains jurisdiction
over disputes arising from agrarian reform matters even though the
landowner or respondent interposes the defense of reclassification of the
subject lot from agricultural to non-agricultural use. On the issue of whether
there has been a valid reclassification of the subject lot to industrial land, we
rule that respondents failed to adduce substantial evidence to buttress their
assertion that all the conditions and requirements set by RA 7160 and MC 54
have been satisfied. Landowners must understand that while RA 7160, the
Local Government Code, granted local government units the power to
reclassify agricultural land, the stringent requirements set forth in Sec. 20 of
said Code must be strictly complied with. Such adherence to the legal
prescriptions is found wanting in the case at bar.
Ayala Land, Inc. vs. Castillo, GR 178110, June 15, 2011 -
F. Closure and Opening of Roads
Closure and Opening of Roads
We might as well skip the reclassification of agricultural lands, never been
asked in the Bar. It is more relevant in agrarian law. Let’s go to closure and
opening of roads. The closure of the road may be temporary or permanent.
If it is temporary it can be done in 2 ways: either by ordinance or mere
written order of the local chief executive. But one is applicable only to certain
conditions and the other applicable only to certain different conditions. And
one way of temporarily closing a road may apply to a local road or national
road and one may apply only to a local road. If the closure is temporary and
it is to address a non-urgent concern it can be done only through an
ordinance by a majority vote. But that is only applicable to a local road.
But for urgent closure such as, fiesta celebration, public works and similar
events it can be done by written order of the local Chief executive. But it is
required that the written order specify the period of the closure. This is
applicable to both local and national road. But of course the rule is many
times not followed.
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But if closure, however, is permanent which is seldom done because we
always need roads we even have to widen our roads, it can now only be done
by ordinance and the voting requirement is 2/3 of all the members and not
just the majority.
And then you add the following additional conditions: there should be a
provision for adequate substitute for the facility. Provision for the
maintenance of public safety is an obvious requirement. If you are closing a
freedom park and not a road, then there must be a provision for relocation for
a new site. There will however be a freedom park, if that is the case because
the moment you close a freedom park there must be a relocation or new site
for the freedom park. You don’t see however in the code the requirements
mentioned in Macasiano, because it was decided by the SC before the LGC of
1991. It was expected though that it should have been included in the
provision because these are necessary conditions: 1. Compliance with due
process 2. The property is no longer intended or necessary for public use. To
my mind these are requirements that should be complied with by LGU. That
is found in the Macasiano vs. Diokno, 212 SCRA 464 (old local government
code). Now what happens if the road is permanently withdrawn or a park
permanently withdrawn or a plaza permanently withdrawn from public use?
They become patrimonial and what is of course the legal consequence? They
can now be subjects of contracts.
TEMPORARY: ORDINANCE (majority) - for non urgent closure (local road)
WRITTEN ORDER OF CHIEF EXEC- for urgent closure
(localand national road)
PERMANENT: ORDINANCE (2/3 OF ALL MEMBERS) + provide for adequate
substitute for the faciclity + provisions for the maintenance
of public safety + if freedom park provision for relocation/
new site.
 Closure of road is damnum absque injuria, no need for compensation
The Cabrera vs. Court of Appeals, 195 SCRA 314, you have learned in your
basic Political Law that the closure is by reason of local police power you
apply Damnum Absque Injuria, no compensation. Damage without injury -
there maybe damage but there is no injury because injury presupposes a
violation of right. And when the State through the LGU exercises a power it
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
can’t be said that it has violated a right so Damnum Absque Injuria. There
may be damaged but there is no injury involved.
 Closure and opening of roads is discretionary, mandamus does not lie
In Cebu Oxyen Acetylene vs. Berciles, 66 SCRA 481, you can’t file a case in
court for Mandamus to open a road or close a road. Injunction if you want
but not mandamus, it presupposes that the authority is ministerial and that it
can totally do that. So it is discretionary upon the LGU.
PART VI: CORPORATE POWERS OF LOCAL GOVERNMENTS
SECTION 22.Corporate Powers. — (a) Every local government unit, as a
corporation, shall have the following powers:
(1)To have continuous succession in its corporate name;
(2)To sue and be sued;
(3)To have and use a corporate seal;
(4)To acquire and convey real or personal property;
(5)To enter into contracts; and cdt
(6) To exercise such other powers as are granted to corporations,
subject to the limitations provided in this Code and other laws.
(b) Local government units may continue using, modify, or change
their existing corporate seals: Provided, That newly established local
government units or those without corporate seals may create their own
corporate seals which shall be registered with the Department of the Interior
and Local Government: Provided, further, That any change of corporate seal
shall also be registered as provided hereon.
(c) Unless otherwise provided in this Code, no contract may be
entered into by the local chief executive in behalf of the local government
unit without prior authorization by the sanggunian concerned. A legible copy
of such contract shall be posted at a conspicuous place in the provincial
capitol or the city, municipal or barangay hall.
(d) Local government units shall enjoy full autonomy in the exercise
of their proprietary functions and in the management of their economic
enterprises, subject to the limitations provided in this Code and other
applicable laws.
*Transcript*
Corporate- signifies “distinct and separate personality” of the LGU.
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Let’s go to corporate powers. These are also matters you should take note
and we can learn them by just looking at your notes without the power point
presentation. Let’s go to sec. 22 that is the enumeration of the so called
corporate powers of the LGU. By the term corporate what can you imply?
One is proprietary. Your basic knowledge in corporation law will also apply
here. Since it is a corporate entity it has a distinct and separate personality.
This is relevant when for example the question is on liability. So the liability of
the Local government official is not necessarily the liability of the LGU or vice
versa. So that in one case the complaint was file only against the city mayor
in his official capacity but the LGU was not impleaded. The Plaintiff assumed
that the judgment would bind the LGU; the court said that the LGU can’t be
held liable. And the judgment can’t bind the LGU because is not impleaded in
the case regardless of the fact that the mayor was sued in his official capacity.
Rightly so because as the term corporate would tell you, the LGU has a
distinct and separate personality very much the same with the rule in
corporation law where you sue the responsible officers of the corporation,
you also have to sue the Corporation as a separate and distinct body. The
same matter that the properties of the LGU may not be used to answer the
liabilities of the Local Government official and vice versa. Of course, the
property of the local government official may not be made to answer for the
liability of the LGU.
So maybe you would ask the question: “Sir if the LGU has a separate
personality, may it be held liable for the acts of local government officials?”
certainly yes, but according to jurisprudence, there are only 2 instances
where the local official make LGU’s liable for their actions, namely:
- 1. if the act of the local government official is by authority of
law
- 2. If it is done in conformity with the requirements of the law.
So again, by “authority” means by the authority of the LGU concerned and;
second, it is done in conformity with the requirements of the law. Any act
which is outside of each standard, its consequences should not be imputed
to the LGU. Precisely you have studied the Law on Public Officers, I think you
have remembered the rule that if the local government official acted with bad
faith or malice and the act which was tainted with bad faith and malice results
to damages of 3rd persons then only the local government official concern
shall be liable for such damages and not the LGU. Why? It is obvious that the
law does not authorize the local government official to act in bad faith or
with malice. So an act in bad faith or with malice is certainly outside the
authority of the LGU. So it should not therefore make the LGU liable. We will
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
study that anyway when we reached liability of LGU’s when we reached illegal
dismissal cases.
Another implication of the word corporate is a rule in your Local government
law the LGU acts pursuant to a governing body very much so like the
corporation where you have the Board, in many cases for major decisions,
the officer should be authorized by the board. In corporation law it is done
through resolution, the same is done in the LGU but instead of the board
you have the sangguniang acting as the governing body. When we study
later on the requirements for validity of contracts you will see there the
indispensable requirement of prior authority of the sanggunian if the local
chief executive enters into a contract.
The other power of the LGU, is the power to sue and be sued. Typical
questions here are, “may the LGU claim State immunity from suit because
under the constitution the state and its political subdivisions can’t be sued
without its consent. Well you know of course that since sec. 22 allows the
LGU to sue and be sued, then it can be taken as the express form of consent,
for consent to be sued maybe expressly allowed through the law or the
charter. In fact it is both the LGC and the charter of the LGU, it has also
provided there the power to sue and be sued and not anymore a question,
where they can invoke the state immunity from suit. Note however that as you
have already learned in Consti 1 that suability is different from liability. The
LGU has consented to be sued; it is still incumbent upon the complainant or
the plaintiff to prove that the LGU should in a particular case be held liable.
Your basic knowledge of State Immunity from suit and distinction of suability
and liability should be reviewed in this regard.
Now as to the power to sue, question here maybe, “How may the local
government sue?” the Code provides that it is through the local chief
executive as authorized by the Sanggunian. This is very much similar to
your private corporation but the difference is that in private corporation you
may authorize other responsible officer but here the code specifies that it is
the local chief executive as authorize by the Sanggunian. You still have to
take note of the authority by the Sanggunian.
Interestingly in the case of City Council of Cebu vs. Cuizon, 47 SCRA 325, it
was not the local chief executive who filed the case for and in behalf of the
city. It was considered an exceptional case. It was a case filed by the councilors
of the Sangunnian not by the local chief executive. You know why it was
64 | P a g e
allowed when our understanding is it is supposed to be by the Local Chief
executive? It is because the respondent there is the city Mayor, it has
happened in the city of Cebu. Obviously, you can’t say that the city councilors
do not have standing to sue and besides it was taken by the SC as a
representative suit on the part of the City councilors as representatives of the
City of Cebu.
A contract was questioned there as entered by the City Mayor. More like a
stray opinion of the court, it was also more like a taxpayer’s suit. Now if I’m
not mistaken, the taxpayer’s suit is not allowed in local suits. It is only allowed
in national suit. There is no such thing as taxpayer’s suit involving local
government cases because a taxpayer’s suit as you can fairly recall applies
specifically to a fund and not just public fund appropriated by Congress.
Interesting issue now is EO created now by Pres. Noy, his 1st executive order,
creating the Truth Commission. I’m expecting a question in this regard in the
upcoming bar exam. There are many areas like one, admin law, as to whether
it was validly created because one can argue that agencies can be created
only by legislative action and those who are under me in admin Law, you
know that there are exceptions. Anyway that is admin law we will talk about it
on Saturday.
Counsel for LGU; exceptions
Next concern came out in the Bar exam, who may represent as counsel for
the LGU? May an LGU hire a private Lawyer? As a rule for LGU which have
created the position of , in the case of city the City Attorney and in case of
Municipality, the Municipal Attorney. Then that is not a problem the LGU
should be represented by either the City Attorney or the Municipal Attorney.
What is the reason?
In Ramos vs. CA, 269 SCRA 34, only accountable public officers can
represent public entities as a rule. You can’t make private lawyers
accountable because they have not been appointed by Public officials. Your
only recourse if they don’t do their job well is to disbar them or cancel the
contract for legal services. But can you file an administrative case against the
private lawyer? No, because he is not a government official. You can’t make
him accountable. So as a rule according to Ramos vs CA, only public officers
can represent public entities. So we are referring to the City Attorney or
Municipal Attorney if there is any because there are municipalities which
can’t afford to make that position especially 6th class and poorer
municipalities. The provincial attorney of course may represent in the case of
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
the province. The other basis why only these lawyers are allowed is that
public funds should not be expended to hire private lawyers again for the
reason that public funds should be for public use.
But the Question here as mentioned earlier is that is there any instance where
a private lawyer maybe hired by the LGU? In your outline you have section
4813 (i) of the LGC. It is an exact illustration of this possibility. In case of a
Municipality that has no Municipal attorney under the LGC, that municipality
would have to be represented by the Provincial attorney. But suppose the
controversy involves a municipality that has no municipal attorney and a
component city for example, may the provincial attorney represent that
municipality against a component city which is under the province? No,
because there is conflict of interest as provided in (i). the basis is Conflict of
Interest, the provincial attorney can’t represent a Municipality against a
Component City of the same province that is Sec 4813 (i) provides for such
situation. In which case, the municipality may hire a private lawyer because
the provincial attorney can’t represent such municipality. What happened if
there was an illegal hiring of a private lawyer? Once it is questioned, what
would happen to the proceedings when the LGU was represented by a
private lawyer assuming that the hiring was not proper? In the same case of
Ramos vs CA the moment the private attorney and the municipal attorney
assumes the tasked of representing an LGU it may adopt the proceedings
conducted by the private lawyer. It will not be affected in other words. You
might in fact invoke your Doctrine of Operative Fact.
 Acquisition and conveyance of properties by LGUs
The power of LGU to convey and acquire real estate property, just like the
private corporation it can acquire and dispose of properties. So I think you
have already learned that properties of LGU’s are held in either its
governmental capacity or its proprietary capacity. And as I have mentioned
already this becomes relevant in different situations. At this time you just
have to take note that a property can be held in either its governmental or
proprietary capacity.
Our concern however is how do we determine if the property is held in either
governmental or proprietary capacity? As a rule, just because a property is
titled in the name of the LGU is not conclusive that it is held in its
proprietary capacity. In fact in one case it has been proved that even if the
property was titled under the name of the LGU it was found out that it was
donated by the National Government to the LGU for public purpose. SC ruled
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that the fact that it was registered in the name of the LGU, will not be
conclusive the purpose in that case was considered by the court. And so since
it was granted by the national government unit to the LGU for public purpose
then it was held by the LGU in trust for the National Government. There are
many ways in determining whether a property has been held as proprietary
or governmental capacity.
Test in determining whether the property is held in a governmental or
proprietary capacity
- (1) Art. 424 of the NCC. I’m sure you are familiar with this
there is an enumeration there which is clearly held in its
governmental capacity because obviously these are for
governmental objectives.
- (2) Manner by which it was acquired;
- (3) Purpose – one guideline there could be the source of
the funds in acquiring the property. Such that as a rule it
was acquired through the use of proprietary fund or private
fund then it can be considered by the LGU as held in its
proprietary capacity. So the sale proceeds of the SRP when
deposited in the bank may have the character of a fund held
in its proprietary capacity. Of course when this is used to
acquire property then you can say that the real property
acquired through the use of this private fund can be
considered as held in its proprietary capacity. So source of
fund is also a test in determining whether a property is held
in its governmental or proprietary capacity.
Importance in distinguishing public from patrimonial property
Of course is there relevance in distinguishing public from patrimonial
property? It came out many times in the bar exam not only in your local
government law but in civil as well as in property law.
1st rule: Property for public use is under the control of Congress – So if
Congress converts the property to other uses and as a consequence deprives
the LGU holding the beneficial use of the property, May the LGU demand
payment for just compensation? The obvious answer is no because that
property is held in its governmental capacity. The idea is it is merely held by
the LGU in trust for the State. And the State through the instrumentality of
Congress converts it to other uses with or without the consent of the LGU.
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
Conversely, if the property has been held by the LGU in its proprietary
capacity and the national government through Congress converts the
property to other uses that will deprive the LGU of the beneficial use of the
property then you apply the rule on payment of Just Compensation. It is
because the word “person” in sec. 9 Art. 3 of the 1987 constitution also apply
to an LGU when acting in its proprietary capacity. The LGU can demand
payment of Just compensation as any private corporation in that regard.
2nd rule: Property for public use can’t be subject of a contract. (Villanueva and
Dacanay cases) This is fundamental. Public property or property for public
use cannot be a subject of a contract because it is beyond the commerce of
man. Public interest prevails over private interest. What is the corollary
principle? Anything that is found on a public property even if it is subject to a
contract may be considered as nuisance. This will give the authority to the
LGU to remove stalls of sidewalk vendors even without court order because
anything that is found on a public property may be considered as nuisance
per se. So very obvious you cannot enter into a contract and make the public
property the subject of a contract. So I’m really wondering and curious how
the municipality of Minglanilla was able to allow Jollibee to operate inside its
plaza. It could be because t=it is not part of the public plaza or that there was
not contract entered thereto as it is simply by tolerance or by nuisance. In the
case of Macasiano vs. Diokno, mandamus is a remedy to compel the LGU to
remove objects which are considered nuisance per se. If you look at the
powers of the Sanggunian and the powers of the local chief executive, they
are not just powers but they are also duties. So they are mandated by law to
implement existing laws. Just like the Social Justice case we will study later
on. Patrimonial property can be the subject of contract and maybe alienated.
Typical example is your SRP in the southern part of Cebu City.
3rd rule: Public property can’t be acquired by prescription against the State.
Estoppel does not lie against the State. The government cannot do wrong
(pareahas rna cla tanan). I believe this is more relevant in property.
4th rule:, Public property can’t be subject to an attachment or to an execution.
(This is illustrated in the recent case of Municipality of Hagonoy vs. Hon.
Dumdum, March 22, 2010) This is also true in public funds. Each time you
say property this could include public funds. Public funds cannot also be the
subject of garnishment. Public property can’t be the subject of attachment or
execution. You know of course the reason for this, (someone answers but
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could not be heard in the recordings). And of course public property can’t be
burdened with voluntary easements.
Interesting case is of Chavez vs. Public Estates Authority (2003), reclaimed
properties. What is the nature of a reclaimed property? Can LGU reclaimed
properties? Can submerged properties be reclaimed? Yes, RA 1899
authorized municipalities and chartered cities to reclaim foreshore lands only.
Meaning a Municipality not a province and chartered cities can reclaim
foreshore lands under RA 1899. Submerged lands that are not foreshore
lands can’t be reclaimed by an LGU because the law is clear the authority
granted to chartered cities and municipalities, mentions only or applies only
to foreshore lands. And of course the city of Cebu is doing that, one time in
the North and this time in the South.
You know also of Art. 12 of the 1987 Constitution submerged lands are
properties of public dominion therefore it is unalienable. That it is obvious
because it is outside the commerce of man and therefore can’t be disposed
off as a rule. However, when the law authorizes the reclamation of the
submerged lands and in the case of LGU’s for foreshore lands, these foreshore
lands (since we are talking about local government law) after they have been
reclaimed they ceased to be considered as inalienable properties and are no
longer part of public domain. So they are no longer part of properties of
public dominion because Congress has allowed the LGU’s to reclaim
foreshore lands. So after the reclamation there shall be a presidential
proclamation declaring the reclaimed properties as alienable and disposable,
after which the Register of Deeds will issue the certificate of title because these
properties are no longer part of public dominion having been declared by
presidential proclamation being alienable and disposable and can now be
disposed of by the LGU.
Should there be public bidding? No, such contention is wrong because the
rule on public bidding applies if the property disposed of belongs to the LGU
and held in its governmental capacity. Reclaimed lands after all the legal
requirements have been complied with the ultimate or final act being the
issuance of the title; the property belongs to the patrimonial property of the
LGU’s reclaiming the foreshore lands.
Cases:
Philippine Fisheries Development Authority (PFDA) vs. CA (2007) – As a rule,
petitioner PFDA, being an instrumentality of the national government, is
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
exempt from real property tax but the exemption does not extend to the
portions of the NFPC that were leased to taxable or private persons and
entities for their beneficial use. Additionally, the Navotas Fish Port Complex
(NPFC) cannot be subject to public auction because it is a property of public
dominion.
Municipality of Hagonoy, Bulacan vs. Hon. Dumdum (2010) – The issue in this
case is whether or not the properties of the municipality may be subject to a
writ of attachment and execution?
Be that as it may, a difference lies between suability and liability. Where the
suability of the state is conceded and by which liability is ascertained
judicially, the State is at liberty to determine for itself whether to satisfy the
judgment or not. Execution may not issue upon such judgment, because
statutes waiving non-suability do not authorize the seizure of property to
satisfy judgments recovered from the action. The property of the municipality
may not, in the event that respondent’s claim is validated, be subjected to
writs of execution and garnishment — unless, of course, there has been a
corresponding appropriation provided by law.
Municipality of Paoay vs. Manaois, 86 Phil. 629 (1950) – There can be no
question that properties for public use held by municipal corporation are not
subject to levy and execution. The authorities are unanimous on this point.
Property however, which is patrimonial and which is held by municipality in
its proprietary capacity is treated by great weight of authority as the private
asset of the town and may be levied upon and sold under an ordinary
execution. The same rule applies to municipal funds derived from patrimonial
properties, for instance, it has been held that shares of stocks held by
municipal corporations are subject to execution.
Municipality of Makati vs. Court of Appeals, 190 SCRA 206, (1990) – More
particularly, the properties of a municipality, whether real or personal, which
are necessary for public use cannot be attached and sold at execution sale to
satisfy a money judgment against the municipality. Municipal revenues
derived from taxes, licenses and market fees, and which are intended
primarily and exclusively for the purpose of financing the governmental
activities and functions of the municipality, are exempt from execution.
 Requisites of a valid local government contract
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Requisites for validity of contracts entered into by LGU’s were also asked in
the bar exams. There are four important requisites in the validity of
contracts that are entered into by LGU’s that you should remember.
- 1. The LGUS must have the power to enter into that
particular contract. This is a civil law requirement; if you
don’t have the power then the contract you have entered
into is ultra vires, since you don’t have the power. The
contract is unauthorized. Second, 22 c of the LGC when it
enters into a contract there must be a prior authorization of
the Sanggunian. There is an interesting case involving our
very own province of Cebu, in your outline that is the case of
Garcia vs Quisumbing (2008).
- 2ND, AS REQUIRED BY SEC 22 C OF THE CODE there must be
a prior authorization by the Sanggunian and a legible
copy of the contract must be posted in conspicuous
place in the provincial capital or the city or municipal or brgy
hall as the case may be so prior authorization by the
Sangunian and plus posting requirement.
- 3RD if the contract involves expenditure of public funds,
ADMIN CODE SEC 46 AND 47 require 2 indispensable
requirements:
o a. there should be actual appropriation and
o b. certificate of availability of funds issued by the
treasurer except of course in contract of supplies to
be carried in stock, each time a purchase is made
this may not be necessarily covered by actual
appropriation or certificate of availability of funds. It
can be covered by the general appropriation.
- 4TH The contract must conform to the formal requirements
of a written contract prescribed by law. Again this is a civil
law requirement. Non- compliance of no. 1 and no. 3 may
result to a void contract with qualification that you don’t
apply the DEXTER DOCTRINE under this rule.
The Lexber Doctrine was applied under the old local government code and
not under the 1991 LGC. That is important because under the 1983 LG law,
the rule on purchases or entry into contracts by the Mayor was not very strict
compared to sec. 22 c of the LGC of 1991. In the past, in many cases there
has been no requirement of a prior authorization by the Sanggunian. But
now under the 1991 LGC, the law is very clear there must be a prior
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
authorization by the Sanggunian apart from the certificate of
availability o funds. Non compliance with this would render the contract
void.
Why is this important? Because there are 2 important doctrines in contracts
entered into the LGU’s that you should study. You have the 1st one, the
DOCTRINE OF ESTOPPEL and 2nd the DOCTRINE OF IMPLIED MUNICIPAL
LIABILITY.
Doctrine of Estoppel not applicable if the contract is void; exception
If for example if a contract is entered into by the LGU under the LGC 1991,
without the prior authorization of the Sangunian, as mentioned earlier, it may
render the contract void. It is very interesting and it should be made clear by
the SC because the traditional rule is the Doctrine of Estoppel will not apply
to void contracts which are basic in civil law. If you enter into a contract that
is void, you can’t say that the contract should be binding on both parties as
the doctrine of estoppel as both parties entered into the contract knowing
that it is void. You remember your civil law concept of Doctrine of Estoppel?
If the reason for making the contract void is by reason of public policy,
doctrine of estoppels will not apply. The rule is doctrine of estoppels will not
apply to void contracts. This should be read therefore with your basic
doctrine of estoppel in civil law because if the local government has already
received benefit from the contract then it may not later on say that it does
not have the authority to enter into the contract. We shall not pay if on the
part of the LGU it involves the payment in the form of money. But it has
already received benefits.
Have you read the case of Quezon City vs. Lexber, (2001)? That is the basic
idea if the LGU has already received benefits, it can’t later on say that it is not
liable under the contract. Doctrine of Estoppel will be applied, however, the
doctrine of Estoppel will not apply if the contract is void.
Doctrine of Implied Municipal Liability
What is the DOCTRINE OF IMPLIED MUNICIPAL LIABILITY? Again this rule
apply to contracts or rather transactions without contracts, but could have
been valid have one been entered into to the extent of the benefit received.
So this is more or less similar to the Doctrine of Estoppel. So in this doctrine
of implied municipal liability (i) there is a transaction that is not covered
into by a contract, and (ii) had a contract been entered into then that
should have been perfectly valid.
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If the LGU received benefits it may not later on reneged from its obligation to
pay just because there is not contract covering the transaction. If it has
already received benefits then it is liable to pay under this doctrine of implied
municipal liability. That was also applied in Quezon City vs. Lexber case.
Very briefly in Lexber, the former Mayor entered into a contract with Lexber
to provide for infrastructure for a landfill. Of course Lexber spent
considerable amount of money in millions. The contract was to continue after
the expiration of the Term of the former Mayor. When a new mayor was
elected he questioned the transaction entered into by the former Mayor with
Lexber because according to the new mayor it was entered into without
authority of the Sangunnian. Had it been entered into under the LGC 1991 a
decision may be different. In that case it does not require when it was
entered into because it was entered before the LGC of 1991. At any rate the
LGU, the City of Quezon has already been benefitted by the presence of
Lexber, and so applying the Doctrine of Municipal Liability it should also
honor the contract.
Before we take a break this is the case of Quisumbing vs. Garcia (2008), it
was not asked last year in the bar maybe it will be asked in your mock bar.
The requirement in sec 22 c before the Local chief executive can enter into a
contract, the word is “prior authorization.” Does the term authorization
covers also the term an “appropriation ordinance?” Obviously, of course by
the term authorization in many instances, this is in the form of a resolution.
What about an appropriation ordinance, which is of course an act of the
Sangunnian, would that constitute as the prior authorization? It depends. Gov
Gwen’s argument was why require a resolution when the transaction,
infrastructure, had already been covered by an appropriation ordinance?
Wouldn’t that be more than sufficient compliance of the requirement of prior
authorization? It depends because the Appropriation ordinance may mention
of the project in general terms (eg. It would just say road widening budget
_____ million. Supposedly to be spent this year and you have to consider that
there was no appropriation ordinance enacted so the proceeding, so the
immediately preceding ordinance was reenacted. It was considered an item in
the reenacted appropriation ordinance).
If the appropriation ordinance mentions it only in general terms then it will
not be considered as compliance to the prior authorization requirement.
Because if it is in general terms of road widening or bridge then that could
still be covered by specific contracts. And because this will still be covered by
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
specific contracts, these specific contracts should have the prior authorization
of the Sanggunian distinct and separate from the appropriation ordinance. It
can, of course, and should be in a form of resolution. However, if the
appropriation ordinance is specific, it identifies the project road widening
from the municipality of ______ to ________ with cost, so you have actually the
contract in the appropriation ordinance so to speak and so the
appropriation ordinance can be considered as prior authorization. In this
case the General Appropriations Ordinance of Cebu did not comply with the
prior authorization requirement.
Cases:
Quezon City vs. Lexber (2001) – We must differentiate the provisions of the
old Local Government Code of 1983, B.P. Blg. 337, which was then in force,
from that of the Local Government Code of 1991, R.A. No.7160, which now
requires that the mayor's representation of the city in its business
transactions must be "upon authority of the sangguniang panlungsod or
pursuant to law or ordinance" (Section 455 [vi]). No such prior authority was
required under B.P. Blg. 337. This restriction, therefore, cannot be imposed on
the city mayor then since the two contracts were entered into before R.A.
No.7160 was even enacted.
Granting but without conceding that Mayor Brigido Simon, Jr. needs to
secure prior authorization from the City Council for the enforceability of the
contracts entered into in the name of the City government, which he failed to
do according to the appellant, We believe that such will not affect the
enforceability of the contract because of the subsequent ratification made by
the City government. Thus, when appellant City government, after the
construction by the appellee of the dumpsite structure in accordance with
the contract plans and specifications, started to dump garbage collected in
the City and consequently paid the appellee for the services rendered, such
acts produce and constitute a ratification and approval of the negotiated
contract and necessarily should imply its waiver of the right to assail the
contract's enforceability.
Manantan vs. Municipality of Luna, La Union (82 Phil. 844) – As that part of
the notice issued by the municipal treasurer which calls for bids for a longer
period than one year but not more than four years is in accord with the real
intent of Resolution No. 32, as that intention was subsequently confirmed in
Resolution No. 37 of the same municipal council, the said notice cannot be
deemed to be unauthorized and void, so that it is error to hold that he grant
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of the fishing privilege to the petitioners was null and void for lack of a valid
notice of the public auction.
Quisumbing vs. Garcia, (GR No. 175527, December 8, 2008) – “In cases, for
instance, where the local government unit operates under an annual as
opposed to a re-enacted budget, it should be acknowledged that the
appropriation passed by the sanggunian may validly serve as the
authorization required under Sec. 22(c) of R.A. No. 7160.
Resort to the appropriation ordinance is necessary in order to determine if
there is a provision therein which specifically covers the expense to be
incurred or the contract to be entered into. Should the appropriation
ordinance, for instance, already contain in sufficient detail the project and
cost of a capital outlay such that all that the local chief executive needs to do
after undergoing the requisite public bidding is to execute the contract, no
further authorization is required, the appropriation ordinance already
being sufficient.
On the other hand, should the appropriation ordinance describe the projects
in generic terms such as “infrastructure projects,” “inter-municipal
waterworks, drainage and sewerage, flood control, and irrigation systems
projects,” “reclamation projects” or “roads and bridges,” there is an obvious
need for a covering contract for every specific project that in turn requires
approval by thesanggunian. Specific sanggunian approval may also be
required for the purchase of goods and services which are neither specified in
the appropriation ordinance nor encompassed within the regular personal
services and maintenance operating expenses.”
Land Bank vs. Cacayuran (April 17, 2013) – Facts: From 2005 to 2006, the
Municipality’s Sangguniang Bayan (SB) passed certain resolutions to
implement a multi-phased plan (Redevelopment Plan) to redevelop the Agoo
Public Plaza (Agoo Plaza) where the Imelda Garden and Jose Rizal Monument
were situated.
Resolutions authorizing then Mayor Eriguel of said municipality (1) to obtain
loans from Land Bank, (2) to mortgage a lot situated at the southeastern
portion of the Agoo Plaza (Plaza Lot) as collateral, and (3) to assign a portion
of its internal revenue allotment (IRA) and the monthly income from the
proposed project in favor of Land Bank, were passed by the SB. As a
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
consequence of the said resolutions, Land Bank extended loans in favor of
the Municipality.
However, a certain phase of the Redevelopment Plan that covers the
construction of the commercial center at the Agoo Plaza was vehemently
objected to by some residents of the Municipality. Led by respondent
Eduardo Cacayuran (Cacayuran), these residents claimed that the conversion
of the Agoo Plaza into a commercial center, as funded by the proceeds from
the loans obtained from Land Bank were "highly irregular, violative of the law,
and detrimental to public interests, and will result to wanton desecration of
the said historical and public park."
Held: Generally, an ultra vires act is one committed outside the object for
which a corporation is created as defined by the law of its organization and
therefore beyond the powers conferred upon it by law.There are two (2)
types of ultra vires acts. As held in Middletown Policemen's Benevolent
Association v. Township of Middletown:
There is a distinction between an act utterly beyond the jurisdiction
of a municipal corporation and the irregular exercise of a basic power
under the legislative grant in matters not in themselves jurisdictional.
The former are ultra vires in the primary sense and void; the latter,
ultra vires only in a secondary sense which does not preclude
ratification or the application of the doctrine of estoppel in the
interest of equity and essential justice.
In other words, an act which is outside of the municipality’s jurisdiction is
considered as a void ultra vires act, while an act attended only by an
irregularity but remains within the municipality’s power is considered as an
ultra vires act subject to ratification and/or validation. To the former belongs
municipal contracts which (a) are entered into beyond the express, implied or
inherent powers of the local government unit; and (b) do not comply with the
substantive requirements of law e.g., when expenditure of public funds is to
be made, there must be an actual appropriation and certificate of availability
of funds; while to the latter belongs those which (a) are entered into by the
improper department, board, officer of agent; and (b)do not comply with the
formal requirements of a written contract e.g., the Statute of Frauds.
Nevertheless, while the Loans cannot bind the Municipality for being ultra
vires, the officers who authorized the passage of the Subject Resolutions are
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personally liable. Case law states that public officials can be held personally
accountable for acts claimed to have been performed in connection with
official duties where they have acted ultra vires, as in this case.
 Procurement of Supplies thru “competitive bidding”; exceptions
Sison vs People (2010), I’m not sure if this is proper in the Local Government
Law course but acquisition by supplies of LGU shall be done through
competitive bidding.
The general rule is competitive bidding in the procurement of supplies but
there are exceptions.
- 1. Personal canvass of responsible merchants
*You go to the case as to how this personal canvass by responsible
merchant maybe done still through the intervention of the
Committee on Awards.
- 2. Emergency purchase
- 3. Negotiated purchase
*Have you heard of the Swiss Method? This is what is done by the
City of Cebu in this joint venture contract or the Swiss Method on
acquiring properties or entering into contracts.
- 4. Direct purchase from manufacturers or exclusive
distributors, and
- 5. Purchase from other government entities.
Cases:
Sison vs. People, March 9, 2010 – Since personal canvass (the method availed
of by petitioner) is an exception to the rule requiring public bidding, Section
367 of RA 7160 provides for limitations. The requirement that the canvass
and awarding of supplies be made by a collegial body assures the
general public that despotic, irregular or unlawful transactions do not
occur. It also guarantees that no personal preference is given to any supplier
and that the government is given the best possible price for its
procurements.”
Ong vs. People, GR No. 176546, September 25, 2009 – Thus, a local chief
executive could only resort to a negotiated purchase under Section 366 of RA
No. 7160 and COA Resolution Nos. 95-244 and 95-244-A, if the following two
requisites are present: (1) public biddings have failed for at least two
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
consecutive times and; (2) no suppliers have qualified to participate or win in
the biddings.
PART VII: LIABILITY FOR DAMAGES
A. Liability for Defective Public Works
- Art. 2189. Provinces, cities and municipalities shall be liable for
damages for the death of, or injuries suffered by, any person by
reason of the defective condition of roads, streets, bridges, public
buildings, and other public works under their control or supervision.
(n) (NCC)
- ARTICLE 471. Liability for Damages. — As provided in Article 2189 of
RA 386, otherwise known as the Civil Code of the Philippines, as
amended, provinces, cities, and municipalities shall be liable for
damages for the death of, or injuries suffered by, any person by
reason of the defective condition of roads, streets, bridges, public
buildings, and other public works under their control or supervision.
The extent of liability for damages shall be governed by the
provisions of the Civil Code on quasi-delicts. (IRR, LGC)
- Art. 34. When a member of a city or municipal police force refuses or
fails to render aid or protection to any person in case of danger to
life or property, such peace officer shall be primarily liable for
damages, and the city or municipality shall be subsidiarily
responsible therefor. The civil action herein recognized shall be
independent of any criminal proceedings, and a preponderance of
evidence shall suffice to support such action. (NCC)
Liability for Damages
Supreme Court administrative circular no. 10-2000, dated October 25, 2000:
Enjoins all judges to observe utmost caution, prudence, and judiciousness in
the issuance of writs of execution to satisfy money judgments governments
Let us take a look at the pertinent provisions first. We have Article 34 of the
Civil Code, Article 2189 of the same Code and Article of the LGC.
Article 34 of the Civil Code: Subsidiary liability of LGU for liability of
local police force in case of refusal or failure to render aid or
protection to any person in case of danger to life or property. Maybe
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 you can make use of Article 34 when police officers simply ignore
your complaints when the issue is domestic (family issue). There is no
such thing as that. Whether it is internal or not, if there are injuries or
danger to life or property, police should perform their function. They
may be held liable, subsidiarily of course - the LGU. You know of
course the meaning of subsidiary liability.
Then under 2189, control and supervision which results to (1) death
and (2) injuries to person. Article 2189 (NCC). Provinces, cities and
municipalities shall be liable for damages for the death of, or
injuries suffered by, any person by reason of the defective condition
of roads, streets, bridges, public buildings, and other public works
under their control or supervision.
Injuries to persons lang, no damage to property. Ato ning klaruhon kay
basin nagdagandagan ka didto unya natangtang ang usa ka ligid sa imo
sakyanan. Basin kasuhan dayon nimo and LGU on the ground of defective
condition of road resulted to damage of your vehicle.
The most important consideration is not ownership of the road. It may be
owned by the national government or national road, by the LGU or local road
– it does not matter. What is important is that it is “within the control and
supervision of the LGU.” Article 24 is an admission of liability in case of death
or injury to person or damage to property as a result of negligent act.
Cases:
Let’s go to liability of defective public works. City of Manila vs. Teotico 22
SCRA 267. Remember that person who was trying to hail a jeepney. And
when the jeepney stopped and wanted to board the jeepney but instead fell
on an uncovered manhole. The law requires control and supervision only and
not ownership. (Note: General Rule in statutory construction: specific laws
prevail over general laws. But in this case, Civil Code, a general law, was held
to be specific with regard to the liability for damages, whereas the charter
provision on exemption from liability was held as a general exempting
provision.)
Regardless of a provision in the charter that the LGU is exempt from liability
for negligence, the Charter of Manila is general in its exempting provision
and Article 2189 is more specific, and therefore the latter governs not the
charter.
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
Remember the case of Jimenez vs. City of Manila, 150 SCRA 510.
Nangumpra siya didto sa public market unya after a heavy downpour of
rains, muddy and floodwater, and so this person natunok ug lansang (nail)
because there was an uncovered portion of the ongoing construction of the
public market. Incidentally the public market was managed by a private
corporation. So mi-argue ang City of Manila, “not under our control and
supervision.” In the contract of market supervision, it was provided that
while the public market is to be managed by the private corporation, there
added a phrase it was to be under the control and supervision still of the city
engineer. Miingon dayon ang SC nga mao ni ang basis for the control and
supervision.
The same rule was applied in Guilatco vs. City of Dagupan, 171 SCRA 382.
Another open manhole in the sidewalk So that’s how you determine whether
it is under the control and supervision of the LGU. First, you look at the
charter. Does the charter mention of the function of the city engineer in so
far as roads are concerned. And then look at the duties of the local
government engineer. Does it cover the duty to control and supervise a
particular public work?
That test was applied in Municipality of San Juan vs. CA (2005). In this
case, it involved excavation of the ground for the laying of the gas and
underground water pipes. Under paragraph 1 (bb) of Section 149, it is
covered by the functions of the City Engineer. It does not matter local
national or even drilling and excavation of the ground for the laying gas and
water pipes, etc. Still it is under the supervision of the city engineer. That is in
the Code already. So dili na ta motan-aw sa charter kay klaro na man sa
Code. So if you are given a problem about excavation of the ground for the
laying of the pipes, you know that under the Code that activity is to be under
the control and supervision of the city engineer. For as long as of course that
it is within its territorial jurisdiction.
Cases:
Municipality of Paoay vs. Manaois, 86 Phil. 629 – We call this activity of
municipalities in renting municipal waters for fishing purposes as
a business for the reasons that the law itself (Sec. 2321, Administrative Code
already mentioned and quoted) allowed said municipalities to engage in it
for profit. And it is but just that a town so engaged should pay and liquidate
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obligations contracted in connection with said fishing business, with the
income derived therefrom.
Municipality of Makati vs. Court of Appeals, 190 SCRA 206 – Nevertheless, this
is not to say that private respondent and PSB are left with no legal recourse.
Where a municipality fails or refuses, without justifiable reason, to effect
payment of a final money judgment rendered against it, the claimant may
avail of the remedy of mandamus in order to compel the enactment and
approval of the necessary appropriation ordinance, and the corresponding
disbursement of municipal funds therefor [See Viuda De Tan Toco v. The
Municipal Council of Iloilo, supra; Baldivia v. Lota, 107 Phil. 1099 (1960);
Yuviengco v. Gonzales, 108 Phil. 247 (1960)].
B. Liability for Torts (Quasi-Delict)
SECTION 24. Liability for Damages. — Local government units and their
officials are not exempt from liability for death or injury to persons or
damage to property.
The State is responsible in like manner when it acts through a special agent;
but not when the damage has been caused by the official to whom the task
done properly pertains, in which case what is provided in Article 2176 shall be
applicable. (Article 2180, NCC)
Liability for Torts or Quasi-delicts
You remember we had an illustration that the UP Law Center suggested
answer, you can actually distinguish governmental and proprietary function.
That is in San Fernando (La Union) vs. Firme case. Or you can apply directly
Section 24 which does not make any qualification. No need to expound on
this hah kay you know this.
C. Liability for Failure of Police Force to render aid and
protection
D. Liability for Contracts
Scope
Quezon City vs. Lexber, GR No. 141616, March 15, 2001 – While RA 7160 now
requires that the mayor’s representation of the city in its business
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
transactions must be “upon authority of the sangguniang panlungsod or
pursuant to law or ordinance”, no such prior authority was required under the
LGC of 1983 (BP 337).
We must differentiate the provisions of the old Local Government Code of
1983, B.P. Blg. 337, which was then in force, from that of the Local
Government Code of 1991, R.A. No.7160, which now requires that the
mayor's representation of the city in its business transactions must be "upon
authority of the sangguniang panlungsod or pursuant to law or ordinance"
(Section 455 [vi]). No such prior authority was required under B.P. Blg. 337.
This restriction, therefore, cannot be imposed on the city mayor then since
the two contracts were entered into before R.A. No.7160 was even enacted.
Granting but without conceding that Mayor Brigido Simon, Jr. needs to
secure prior authorization from the City Council for the enforceability of the
contracts entered into in the name of the City government, which he failed to
do according to the appellant, We believe that such will not affect the
enforceability of the contract because of the subsequent ratification made by
the City government. Thus, when appellant City government, after the
construction by the appellee of the dumpsite structure in accordance with
the contract plans and specifications, started to dump garbage collected in
the City and consequently paid the appellee for the services rendered, such
acts produce and constitute a ratification and approval of the negotiated
contract and necessarily should imply its waiver of the right to assail the
contract's enforceability.
City of Manila vs. IAC, 179 SCRA 428
The Supreme Court held that “the following are corporate or proprietary in
character, viz: municipal waterworks, slaughter houses, markets, stables,
bathing establishments, wharves, ferries and fisheries. Maintenance of
parks, golf courses, cemeteries and airports among others, are also
recognized as municipal or city activities of a proprietary character.
The Court citing Torio v. Fontanilla declared that with respect to proprietary
functions the settled rule is that a municipal corporation can be held liable to
third persons ex contractu. The Court further stressed that Municipal
corporations are subject to be sued upon contracts and in tort.
Doctrine of Implied Municipal Liability
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Province of Cebu vs. IAC, 147 SCRA 447
Doctrine of Estoppel
San Diego vs. Municipality of Naujan, 107 Phil 118
*Transcript*
Liability for Contracts
The LGU can be considered as a private person when it enters into a contract
and therefore it can be held liable ex contractu. Even the national
government, in fact you file you claim before the COA. In the case of LGU,
that’s the same principle.
However there’s a caveat that the contract must at least be ultra vires.
Because if not, the LGU cannot be held liable under a void contract. Not even
the doctrine of estoppel can cure the fact that it is null and void. Otherwise, a
void contract may be cured when under city law, a void contract cannot be
ratified, it cannot be cured. If the LGU sells a public property, it is ultra vires.
May the LGU be held liable for entering into that contract. No of course
because it is void. Not even the doctrine of estoppels will apply.
Liability for Illegal Dismissal of Employees
Municipal Liability
Municipality of Jasaan vs. Gentallan (2005)
Enforcement of Monetary Judgment
Municipality of Paoay vs. Manaois (supra.)
Municipality of Makati vs. CA (1990)
Personal Liability of Officials
Laganapan vs. Asedillo, GR. 28353, September 30, 1987
Chavez vs. Sandiganbayan, (1991)
Rama vs. Court of Appeals, 148 SCRA 496
Correa vs. CFI of Bulacan, 92 SCRA 312
*Transcript*
Liability for Illegal Dismissal of Employees
Then finally for municipal liability, don’t forget the Municipality of Jasaan case
(2005). Dismissal of an employee may be illegal either because of the non-
observance of procedure in dismissing an employee covered by the civil
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
services rules (matter of procedural requirements for dismissing an
employee); or it may be illegal because there is no ground and the dismissal
is precisely tainted with malice and bad faith especially if it is politically
motivated which is a very common cause of illegal dismissal like immediately
after a new administration takes over the LGU, kung kinsa tong wa milaban
sa election kay tang-tang. Already settled in a lot of SC decisions. If that is
politically-motivated, covered na sa malice and bad faith.
As I said illegal dismissal maybe because the procedure had not been
complied with, or perhaps there is a wrong judgment as to the ground.
Sayop lang jud siguro nga maybe dismissal is not the proper penalty pero
minus-minus lang si mayor, gi-dismiss dayon on that ground. So it can be
considered illegal. Or it can be because of malice and bad faith like
politically-motivated dismissal of employees.
It is only when the dismissal which is illegal is tainted with malice or bad
faith that the LGU may not be held liable but it becomes a personal
liability of the officer.
In one case, if the officer held liable is already dead, according to the SC, the
liability will be shouldered by the LGU. Take note: It is not the fact of
illegality that will make the LGU official personally liable. As I have said it can
be illegal but without malice and bad faith. Wa lang mi follow sa procedure,
or sayop si mayor kay nag dinaghag dili diay to a ground for dismissal under
the civil service law or any law for that matter. The LGU will be held liable for
backwages.
But if it is illegal and also tainted with malice and bad faith, then LGU is not
anymore liable to pay the backwages. Only the local government official
concerned. As I mentioned earlier, LGU can only be held liable by the acts of
officers if it is by the authority or in conformity with law. And if it is with
malice or bad faith, it is never in conformity with law because the law does
not sanction malice or bad faith.
PART VIII: ELECTIVE OFFICIALS
A. Qualifications and Elections
Qualifications
SECTION 39. Qualifications. — (a) An elective local official must be a citizen of
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the Philippines; a registered voter in the barangay, municipality, city, or
province or, in the case of a member of the sangguniang panlalawigan,
sangguniang panlungsod, or sangguniang bayan, the district where he
intends to be elected; a resident therein for at least one (1) year immediately
preceding the day of the election; and able to read and write Filipino or any
other local language or dialect.
(b)Candidates for the position of governor, vice-governor, or member of the
sangguniang panlalawigan, or mayor, vice-mayor or member of the
sangguniang panlungsod of highly urbanized cities must be at least twenty-
three (23) years of age on election day.
(c)Candidates for the position of mayor or vice-mayor of independent
component cities, component cities, or municipalities must be at least
twenty-one (21) years of age on election day.
(d)Candidates for the position of member of the sangguniang panlungsod or
sangguniang bayan must be at least eighteen (18) years of age on election
day.
(e)Candidates for the position of punong barangay or member of the
sangguniang barangay must be at least eighteen (18) years of age on
election day.
(f) Candidates for the sangguniang kabataan must be at least fifteen (15)
years of age but not more than twenty-one (21) years of age on election day.
 Qualifications of Elective Officials
Let’s go over first the qualifications of local elective officials (section 39, LGC):
- Citizen of the Philippines - need not be natural-born. So
pwedi naturalized.
- Registered voter in the locality or district where he intends to
be elected 1 year immediately preceding the day of the
election.
- Able to write and write Filipino or any local language or
dialect
- Ages - will vary depending on the LGU and depending on
the position - (23. 21, 18 )
Citizenship
Who would, of course, forget the Frivaldo case. As to the citizenship
requirement, when should the local official possess citizenship requirement?
Paksit!
In Frivaldo, sometime in August of 1994, he applied for repatriation (in
August 17, 1994). Pag March of 1995, or the following year, he filed his
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
certificate of candidacy. And in the certificate, it will ask the citizenship, and
he said he is a Filipino citizen. But the petition (for repatriation) was not yet
granted. He was sued for having misrepresented in his certificate of
candidacy kay ngano kuno nga mi declare siya nga Filipino nga wala pa man
na grant iyang petition for repatriation.
On noon of June 30, 1995, when he was about to take his oath and assume
his office as governor for the Province of Sorsogon, he had already all the
requirements for repatriation completed. Few hours before the oath-taking.
SC said: If you look at Section 39 (for governor) of the LGC of 1991,
essentially these requirements are not requirements for candidates. These are
requirements for elective officials. And because these are requirements for
public officials, these are to be complied with at least by the time the official
becomes elective. And when is an official considered elective? When he had
already been validly elected as manifested by the proclamation and by the
time he takes his oath, that is the qualification, and assumes his office. The
last act would be the taking of oath and the assumption of his office. So
he does not have to possess the citizenship requirement at the time of
the filing of the COC.
Pero miingon dayon ang SC, para walay lalis and to settle this issue once and
for all, we now rule that in case of repatriation, the effect of the repatriation
shall retroact as to the time of filing the petition for repatriation. Para walay
lalis, although okay tong argument about elective local official.
Residency
In Election Law, residence is synonymous with domicile. If you are going to
distinguish residence from domicile, will be able to do that? Paksit, of course!
Residence is general in concept, while domicile is specific. Because residence
may be temporary or permanent. And if residence is in the concept of a
permanent residence, then you call that domicile.
How do you know that residence is temporary? Residence is temporary if
your physical stay in the locality is for temporary purpose. Such as studies,
business, exercise of profession, and other similar temporary activities.
Why do you know that these activities are temporary? Simple. Because these
activities have definite beginnings and definite ends. Like when you study,
you begin with the enrollment in the first year, and then you complete it
when you graduate. So there is specific beginning and there is specific end. If
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your physical stay in that locality is for that temporary purpose, then your
residence there is temporary.
In political law you have to deals basically with your domicile of origin and
your domicile of choice. Your domicile of origin is where? Not in the place of
birth but in the domicile of your parents at the time of your birth. Your
domicile of choice is when you changed your domicile of origin.
In election law cases, diba you will be asked to established whether or not
you have abandoned your domicile. You may want to establish that you have
not abandon your domicile because perhaps you have been away for a while
and you would want to run for public office in that original domicile. (Just like
what Atty Torregosa did) And your opponents might question that you have
already abandoned your domicile. So you have to established that you have
not abandoned it.
There are only two proofs: (1) animus manendi – your intention to live
permanently in that locality; and (2) animus revertendi – because you have
been physically absent for a while, you should be able to establish that you
have the intention to return to your domicile.
There should be factual pieces of evidence for this. That is in the area for the
practice of election law. Like sell of properties, etc.
Proof of abandonment of all domiciles. Like have Atty. Torregosa decided
to run for office in Cebu City, he should established that he abandoned his
old domicile in Bohol. In which case, he should establish the following:
Actual physical presence in the new domicile. Very easy. Cedula lang and you
add affidavits of some witnesses.
Animus manendi in the new domicile – intention to live permanently in that
new domicile.
Animus non Revertendi (the opposite of animus Revertendi) - intention not to
return to your old domicile. Many ways to establish that like you have
disposed all your assets there; you have asked your family to transfer here;
enroll your children to schools of Cebu City, and many other pieces of
evidence.
These are just proofs hah. You know of course that proofs are different from
evidence. So during hearing in the COMELEC, you must have these as your
outline for the proofs when you ask questions.
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
Important cases:
In Faypon vs. Quirino 257 SCRA 727, the rule is if you are out of your domicile
of origin to pursue studies, engaged in business, practice vocation or
profession, then it is not sufficient to constitute abandonment of domicile of
origin. Again, because the purposes are temporary.
In Coquilla vs. COMELEC (2002), if you have been naturalized in a foreign
country, it should also result in the abandonment of your domicile.
In Caasid, becoming a permanent immigrant like being a green card holder
to the United States constitutes abandonment of residency. It should be the
case because under the fundamental rule in election law, you can have
several temporary residences but you can only have one domicile. You
cannot have more than one domicile. It’s either you abandoned an old
domicile and established a new one or you haven’t. Precisely because you
become a permanent immigrant, so that is your domicile in another country,
that should result to abandonment of domicile in the Philippines.
Abraham Kahlil Mitra vs. COMELEC, GR 191938, July 2, 2010 – Facts: Abraham
Kahlil Mitra is a 3 term congressman of the 2nd district of Palawan, which
consist, among others, the city of Puerto Princesa and the municipality of
Aborlan. During his 2nd term (in 2007), the city of Puerto Princesa was
converted into a highly urbanized city, the consequence of which is that its
residents could no longer vote for provincial officials. Seeking a provincial
elective post in 2010, Mitra transferred his voter’s registration from Puerto
Princesa to Aborlan. His candidacy in 2010 for governor was challenged on
the ground of material misrepresentation in the COC about his residence.
Held: The false representation that these provisions mention must
necessarily pertain to a material fact. The false representation under Section
78 must likewise be a "deliberate attempt to mislead, misinform, or hide a
fact that would otherwise render a candidate ineligible." Given the purpose of
the requirement, it must be made with the intention to deceive the electorate
as to the would-be candidate’s qualifications for public office.
Based on these standards, we find that Mitra did not commit any deliberate
material misrepresentation in his COC. Under the evidentiary situation of the
case, there is clearly no basis for the conclusion that Mitra deliberately
attempted to mislead the Palawan electorate.
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From the start, Mitra never hid his intention to transfer his residence from
Puerto Princesa City to Aborlan to comply with the residence requirement of
a candidate for an elective provincial office. Republic Act No. 7160, otherwise
known as the Local Government Code, does not abhor this intended transfer
of residence, as its Section 39 merely requires an elective local official to be a
resident of the local government unit where he intends to run for at least one
(1) year immediately preceding the day of the election. In other words, the
law itself recognizes implicitly that there can be a change of domicile or
residence, but imposes only the condition that residence at the new place
should at least be for a year. Of course, as a continuing requirement or
qualification, the elected official must remain a resident there for the rest of
his term.
Mitra’s domicile of origin is undisputedly Puerto Princesa City. For him to
qualify as Governor – in light of the relatively recent change of status of
Puerto Princesa City from a component city to a highly urbanized city whose
residents can no longer vote for provincial officials – he had to abandon his
domicile of origin and acquire a new one within the local government unit
where he intended to run; this would be his domicile of choice. To acquire a
domicile of choice, jurisprudence, which the COMELEC correctly invoked,
requires the following:
(1) residence or bodily presence in a new locality;
(2) an intention to remain there; and
(3) an intention to abandon the old domicile.63
The contentious issues in Mitra’s case relate to his bodily presence, or the
lack of it, in Aborlan, and the declaration he made on this point. The
respondents anchor their cause of action on the alleged falsity of Mitra’s
statement that he is a resident of Aborlan.
In considering the residency issue, the COMELEC practically focused solely on
its consideration of Mitra’s residence at Maligaya Feedmill, on the basis of
mere photographs of the premises. In the COMELEC’s view (expressly voiced
out by the Division and fully concurred in by the En Banc), the Maligaya
Feedmill building could not have been Mitra’s residence because it is cold
and utterly devoid of any indication of Mitra’s personality and that it lacks
loving attention and details inherent in every home to make it one’s
residence.75 This was the main reason that the COMELEC relied upon for its
conclusion.
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
Such assessment, in our view, based on the interior design and furnishings of
a dwelling as shown by and examined only through photographs, is far from
reasonable; the COMELEC thereby determined the fitness of a dwelling as a
person’s residence based solely on very personal and subjective assessment
standards when the law is replete with standards that can be used. Where a
dwelling qualifies as a residence – i.e., the dwelling where a person
permanently intends to return to and to remain76 – his or her capacity or
inclination to decorate the place, or the lack of it, is immaterial.
Examined further, the COMELEC’s reasoning is not only intensely subjective
but also flimsy, to the point of grave abuse of discretion when compared with
the surrounding indicators showing the Mitra has indeed been physically
present in Aborlan for the required period with every intent to settle there.
Specifically, it was lost on the COMELEC majority (but not on the Dissent) that
Mitra made definite, although incremental transfer moves, as shown by the
undisputed business interests he has established in Aborlan in 2008; by the
lease of a dwelling where he established his base; by the purchase of a lot for
his permanent home; by his transfer of registration as a voter in March 2009;
and by the construction of a house all viewed against the backdrop of a
bachelor Representative who spent most of his working hours in Manila, who
had a whole congressional district to take care of, and who was establishing
at the same time his significant presence in the whole Province of Palawan.
From these perspectives, we cannot but conclude that the COMELEC’s
approach – i.e., the application of subjective non-legal standards and the
gross misappreciation of the evidence – is tainted with grave abuse of
discretion, as the COMELEC used wrong considerations and grossly misread
the evidence in arriving at its conclusion. In using subjective standards, the
COMELEC committed an act not otherwise within the contemplation of law
on an evidentiary point that served as a major basis for its conclusion in the
case.
Disqualifications
SECTION 40. Disqualifications. — The following persons are disqualified
from running for any elective local position:
- (a)Those sentenced by final judgment for an offense involving
moral turpitude or for an offense punishable by one (1) year or
more of imprisonment, within two (2) years after serving sentence;
- (b)Those removed from office as a result of an administrative
case;
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 - (c)Those convicted by final judgment for violating the oath of
allegiance to the Republic;
- (d)Those with dual citizenship;
- (e)Fugitives from justice in criminal or non-political cases here or
abroad;
- (f)Permanent residents in a foreign country or those who have
acquired the right to reside abroad and continue to avail of the
same right after the effectivity of this Code; and
- (g)The insane or feeble-minded.
 Disqualifications (Sec. 40)
Sentenced by final judgment for (a) offense involving moral turpitude.
Penalty is irrelevant. Just the nature of the offense, or by (b) an Offense
punishable by 1 year or more of imprisonment. Penalty is relevant. The
nature becomes irrelevant.
If you have been sentenced by final judgment of an offense involving moral
turpitude, it is regardless of the penalty (even if the penalty is just fine, no
imprisonment) if its nature involves moral depravity.
Soriano vs. Dizon and Teves vs. COMELEC – Moral turpitude has been
defined as everything which is that contrary to justice, modesty, and good
morals (to be determined by the court). An act of baseness, vileness or
depravity in the private and social duties which a man owes his fellow or to
society in general
Conviction of violation of B.P. 22 – moral turpitude; Anti-Fencing Law – moral
turpitude; Rape – mangutana pa ka…?
Before, there was no prohibition on operating a cockpit or being financial
interested in the operation of a cockpit by a local government official. In one
case, there was this mayor who was once a part-owner of a cockpit. Later on,
a law had been passed prohibiting local government officials from having
financial interest over cockpits. Unya wa siya kabalo anang balaura. Imbis i-
divest niya ang iyang self over this financial interest, he continued to be part-
owner of this cockpit. He was sued, and when he ran for office, the opponent
sought his disqualification. There was a conviction.
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
The SC said: Yes there was conviction. But having financial interest in a
cockpit, although prohibited, is not an offense involving moral turpitude
especially that before it was not prohibited.
“Within 2 years after serving sentence”
This phrase is applicable to both grounds. After two years of service, lifted na
ang disqualification. So it’s either you have been convicted by final judgment
of an offense involving moral turpitude, or you have been sentenced by final
judgment of a crime which carries a penalty of 1 year of imprisonment. In
either of these, after two years of service, you will now be qualified again. So
dili diay ni perpetual nga disqualification.
Conviction by final judgment is not a perpetual disqualification for local
government officials. It’s only good within the period of two years from
service. After that you will regain your qualification, assuming that you have
no other disqualification. (Moreno vs. COMELEC)
- Removal from office as a result of administrative case.
Rules: This should be interpreted as having prospective application only. The
LGC of 1991 which took effect in 1992, this particular provision is a new
provision. The SC said it cannot apply to a local government official who was
removed from office before the effectivity of the LGC of 1991. Very crucial,
you have to check when this official was removed from office - before or
during the effectivity of the LGC of 1991. If before the effectivity of the LGC
of 1991, this provision will not apply. Only those who had been removed
from office after the effectivity of the LGC of 1991. So prospective
application.
In the case of Osorio vs. COMELEC (2004), one public official was removed
from office when he was occupying an appointive office, not an elective
office as a result of an administrative case. Then he ran for public office. A
petition for disqualification has been filed on the ground that he had been
removed from public office as a result of an administrative case. The
respondent argued that provision will apply only to elective officials who had
been removed from office as a result of administrative case.
The SC said – wrong interpretation. The word says “office.” So that should be
whether you have been holding appointive or elective office. If you have
been removed in either of these positions as a result of administrative case,
then, that is a ground for disqualification.
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Convicted by final judgment for violating the oath of allegiance to the
Republic of the Philippines
There are offenses under the Revised Penal Code that are considered such.
So RPC will have to be considered here.
Those with dual citizenship
Who would forget the case of Mercado vs. Manzano (1999). Di ba dual
citizenship in Section 40 should be interpreted as dual allegiance. In this case,
the SC had the opportunity to distinguish dial citizenship from dual
allegiance. In dual citizenship, it is involuntary on the part of the child. In dual
allegiance, it is voluntary. In the Constitution, it is dual allegiance that is
declared that is inimical to the national interest and should be dealt by law,
and not dual citizenship.
Nganong dual citizenship is involuntary on the part of the child?
Because the child has no control over the application of conflicting laws on
citizenship. Dili kay because it is not the decision of the child that he will be
born (matud pa daw sa mga 1st year nga wala lang kabalo si sir nga ang 4 th
year maoy gatudlo).
The child has no control over the application of conflicting laws on
citizenship that would confer the child dual citizenship. This is common when
the parents whose national law follows jus sanguinis and the child is born in a
country that follows jus soli. That is exactly what happened in Manzano.
Dual allegiance is voluntary because showing loyalty to at least two countries
would require overt acts – like payment of taxes, running for government
office, and other overt acts.
Fugitive from justice in criminal or nonpolitical cases here or abroad
Fugitive from justice here – meaning a case is pending here in the Philippines
or you must have already been convicted, and you flee to another country.
Fugitive from justice abroad – the case has been either pending abroad or
you have been already sentenced abroad, then you flee from that foreign
country to the Philippines and run for public office here (which is the most
common scenario).
That is in criminal and nonpolitical cases. Not political cases because in
political cases, they have the right to asylum which has now ripen to what is
known as jus cogens. So only in criminal and nonpolitical cases, here or
abroad.
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
In Marquez vs. COMELEC and Rodriguez vs. COMELEC, it includes fugitive
from prosecution. So dili kinahanglan nga convicted ka, you are now asked to
serve your sentence and then you escape. Even if the case is still pending and
you flee to avoid prosecution. So to avoid service of sentence or to avoid
prosecution.
In this case of Marquez, didto siya sa US. A case had been filed few days
before he left. While he did not know that a case had been filed, the fact that
it was filed, it may be assumed that he learned of the filing of the case, that’s
the reason why he escaped or fled to the Philippines. A question of intent –
no hard and fast rule.
Permanent residents in foreign country or those who have acquired the
right to reside abroad and continue to avail for the same right after the
effectivity of the Code
The insane or feeble-minded
Additional disqualifications:
- Lone Candidate Law in Special Elections (RA 8295). Lone
Candidate Law is applicable only in special elections. So you
may add the following disqualifications there.
- Any elective official who has resigned from his office by
accepting an appointive office or for whatever reason which
he previously occupied that has caused to become vacant
due to his resignation.
- Any person who directly or indirectly coerces, etc in violation
of the election law.
Omnibus Election Code –
Section 12. Any person who has been declared by competent authority
insane, incompetent, sentenced by final judgment for subversion,
insurrection, rebellion (acts of disloyalty), or for any offenses for which he has
been sentenced to a penalty of more that 18 months or for a crime involving
moral turpitude shall be disqualified to be a candidate and to hold any office,
unless he has been given plenary pardon or granted amnesty.
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Section 28. (comment: I think Sir is referring to Sec. 261. Prohibited Acts. He
was mentioning about threats, intimidation, and other election offenses)
Section 69. Nuisance candidates. - The Commission may motu proprio or
upon a verified petition of an interested party, refuse to give due course to or
cancel a certificate of candidacy if it is shown that said certificate has been
filed to put the election process in mockery or disrepute or to cause
confusion among the voters by the similarity of the names of the registered
candidates or by other circumstances or acts which clearly demonstrate that
the candidate has no bona fide intention to run for the office for which the
certificate of candidacy has been filed and thus prevent a faithful
determination of the true will of the electorate.
Kanang disqualifications of candidates sa local government, you apply
Section 40 LGC and then you go to Lone Candidate Law, and then you add
the OEC.
Manner of Elections
SECTION 41. Manner of Election. — (a) The governor, vice-governor, city
mayor, city vice-mayor, municipal mayor, municipal vice-mayor, and punong
barangay shall be elected at large in their respective units by the qualified
voters therein. However, the sangguniang kabataan chairman for each
barangay shall be elected by the registered voters of the katipunan ng
kabataan, as provided in this Code.
(b)The regular members of the sangguniang panlalawigan, sangguniang
panlungsod, and sangguniang bayan shall be elected by district, as may be
provided for by law. Sangguniang barangay members shall be elected at
large. The presidents of the leagues of sanggunian members of component
cities and municipalities shall serve as ex officio members of the sangguniang
panlalawigan concerned. The presidents of the liga ng mga barangay and the
pederasyon ng mga sangguniang kabataan elected by their respective
chapters, as provided in this Code, shall serve as ex officio members of the
sangguniang panlalawigan, sangguniang panlungsod, and sangguniang
bayan.
(c)In addition thereto, there shall be one (1) sectoral representative from the
women, one (1) from the workers, and one (1) from any of the following
sectors: the urban poor, indigenous cultural communities, disabled persons,
or any other sector as may be determined by the sanggunian concerned
within ninety (90) days prior to the holding of the next local elections as may
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
be provided for by law. The COMELEC shall promulgate the rules and
regulations to effectively provide for the election of such sectoral
representatives.
Cases:
RA 8553 (1998)
Abella vs. COMELEC, 201 SCRA 253 (1991)
Ceniza vs. COMELEC, 95 SCRA 763
Date of Elections
SECTION 42. Date of Election. — Unless otherwise provided by law, the
elections for local officials shall be held every three (3) years on the second
Monday of May.
Datu Michael Abbas Kida vs. Senate (2011)
Term of Office
SECTION 43. Term of Office. — (a) The term of office of all local elective
officials elected after the effectivity of this Code shall be three (3) years,
starting from noon of June 30, 1992 or such date as may be provided for by
law, except that of elective barangay officials: Provided, That all local officials
first elected during the local elections immediately following the ratification
of the 1987 Constitution shall serve until noon of June 30, 1992.
(b)No local elective official shall serve for more than three (3) consecutive
terms in the same position. Voluntary renunciation of the office for any
length of time shall not be considered as an interruption in the continuity of
service for the full term for which the elective official concerned was elected.
(c)The term of office of barangay officials and members of the sangguniang
kabataan shall be for three (3) years, which shall begin after the regular
election of barangay officials on the second Monday of May 1994.
SECTION 8. The term of office of elective local officials, except barangay
officials, which shall be determined by law, shall be three years and no such
official shall serve for more than three consecutive terms. Voluntary
renunciation of the office for any length of time shall not be considered as an
interruption in the continuity of his service for the full term for which he was
elected. (1987 CONST)
TERM of OFFICE
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THREE YEARS for elective local officials is constitutionally mandated. Basin
makaingon ka nga basin local government code ning term of office. No,
constitutionally provided na siya class. That was the 2006 bar question. If a
law is passed changing the term of office of the elective local offices,
obviously it is not constitutional because of Section 8, Article 10 (three years).
And pwedi lang ma fixed by law under the Constitution is under barangay
official. Kay miingon man barangay official as may provided for by law. Kana
pwedi na by statute which actually happened nga sige ug usab-usab. Gawas
nga usbon, usbon pa jud ang election. Nganong okay ra man nah? Because
of the hold-over principle that is applicable for barangay officials.
Again. Local officials , the term of Office is three years, fixed by the
Constitution except for barangay which may be provided for by law. So a
statute cannot change that.
For barangay officials, the first law applicable is RA 8524 – five years in 1998,
gi-extend. In 2002, there was this RA 9164 that reduced the five years back to
three years, plus the requirement that the three consecutive term limitation
shall begin in year 1994. G- question ning retroactivity provision of RA 9164
to 1994. SC already ruled: it is constitutional to make it effective in 1994 kay
kabalo naman ka nga public office is just a privilege. You do not have a
vested right over public office, etc.
In 2005, RA 9340 extended the term which ended on November 30, 2005 to
November 30, 2007, noon gyapon. Unya kay three years man, that’s we are
going to have Barangay Election this year. Pero pwedi na i-postpone by law.
Ayaw mo ka confuse anah nganng pwedi nah. It’s because of the hold-over
principle as declared in Sambarani vs. COMELEC (2004) and as provided for in
RA 9164.
Three-Term Limit Rule
If you look at your notes, cases there would mention of two elements here.
But for purposes of my discussion, just removed one that is common to two
for purposes of emphasis.
Elements:
- Official is elected three times. Ari ta mofocus sa elected.
- Official Fully served three terms
- Official is elected three times consecutively
- In the same office.
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
So imo lang hinumduman: elected, fully served, consecutiveness, and same
office. So upat kabuok.
Three-term Limit Rule
To constitute a disqualification to run for an elective local office pursuant to
the aforequoted constitutional and statutory provisions, the following
requisites must concur:
(1) that the official concerned has been elected for three
consecutive terms in the same local government post; and
(2) that he has fully served three consecutive terms. (Lonzanida vs.
COMELEC, 1999)
Problem No. 1 (2001 Bar Exam):
1993 – X, the Vice-mayor, succeeded as mayor Y who died. X served as Mayor
until 1995.
1995 to 1998 – X was elected and served as Mayor.
1998 to 2001 – Reelected and continued to served.
2001 – he ran for mayor and was questioned that it was already his fourth
term.
Was X barred to run as Mayor? NO. Because he was not elected the first time
he served as Mayor. He merely succeeded as mayor by operation of law. So
dili pa to maapil sa pag-count. The element involved here is ELECTED.
Case in point is Borja, Jr. vs. COMELEC (1998). SC said the term served must
be one for which the official concerned was elected is another consideration.
Sameness of office is another. He was elected but not for that office. He was
elected as Vice-mayor. (Refer to the case)
Problem No. 2
1988 to 1995 – X was elected and served as Mayor for two consecutive terms.
(so two terms na daan)
1995 – X ran and got reelected
1997 –Ordered by the COMELEC to step down because he was found to be
illegally-proclaimed. There was an order by the COMELEC. So minaog ra pod
siya kay basin ma contempt sa COMELEC.
1998 Elections – He filed a COC for Mayor.
How will you dispose with the case? Check the elements. Got elected three
times (check). Fully served three times?
This time, you have to take note. In case the local official fails to finish the
term, you have to distinguish between voluntary renunciation and involuntary
renunciation. Voluntariness is important in not completing a term.
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If it is an involuntary renunciation, you the rule that it shall not be considered
as an interruption for the full term he was elected.
But in this case, It was not voluntary, was it? He was ordered by the COMELEC
to step down. He voluntarily step down of course after the order. But that
was upon the order of the COMELEC. So asa applicable? – Fully served. He
was not able to fully served that term 1995 to 1998.
Case in point Lonzanida vs. COMELEC (1999). The SC said: petitioner did not
fully served the 1995 to 1998 mayoral term by reason of involuntary
relinquishment of office. You take note of this case (Lonzanida vs. COMELEC)
in relation to the last case ako gibutang dinha (Aldovino vs, COMELEC).
Problem No. 3
X was elected and served as Mayor for two consecutive terms. So duwa na
daan. In 1998, X ran as Mayor unya napildi. Y became the Mayor.
Mao bitaw ni ang reason mao gitangtang and Preparatory Recall Assembly
(PRA) as a mode of removing an official via recall effective 2004 because of
this case. Highly-politicized man gud. Kung ang modaog gani kontra partido
sa mga daghang local officials, palingkura lang kay i-remove ta nah through
recall. Unsay himuon? PRA composed of local officials nga maoy mo pa
remove. Unya unsa may ground? Wala , voting lang daugon.
Gitangtang na karon, take note effective 2004, there is no more PRA as a
mode for initiating a recall. Usa na lang – by the registered voters.
In 2000, there was a Recall Election and X was elected and served as Mayor.
Tangtang, kadyot ra kaayo si Y. In 2001, X ran again for Mayor.
Was X barred to run as mayor? NO. We apply consecutiveness. His loss in
the May 1998 election was considered by the court as an interruption in the
continuity of his service as Mayor. For nearly two years, respondent X, in the
illustration lived as a private citizen. Si Y may na-Mayor at that time.
Sir, what if less than a year, one day lang or two days? Bisan single day lang if
we are really to stretch our imagination just to check the reasonableness of
the law. If one day then still it is interrupted. Although it is physically not
possible.
Problem No. 4
1992 to 2001 – X was elected and served as Mayor for three consecutive
years.
2001 –X did not run; Y was elected Mayor.
2002 – Through Recall Election, X joined the Recall Election.
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
Kabalo man ta nga kung Recall Election, the incumbent officials subject of
recall will become automatically candidates whether he likes it or not. And
then the COMELEC will invite other candidate. So miapil dayon si X.
Can X participate in the Recall Election? Yes, for the same reason – no
consecutiveness. The principle behind the three-term limit rule is to prevent
consecutiveness of the service of terms. And there was in this case a break in
such consecutiveness after the end of his third term and before the recall
election.
Duol ra gyud kaayo. Private citizen siya for nearly one year. That was the case
of Socrates vs. COMELEC (2002).
Problem No. 5 (2005 Bar Exam)
1992 to 2001 – X was Mayor of the then Municipality of Digos for three
consecutive years.
Before the May 2001 Elections, the municipality became a new city. So
midagan pod siya because this is a new entity so this should be a fresh start
for the mayor in Digos.
Was X qualified to run for Mayor of the new city? No. this is the case of
Latasa vs. COMELEC (2003). Latasa argued that this is a new local government
unit. Correct, it is a new LGU but it is the same territory and the same
inhabitants. Plus, according to the Court, if we rule otherwise, this would be
considered a circumvention on the rule on consecutiveness. There, the mayor
would then be serving not just 9 years but 18 years.
Problem No. 6
1995- 1998 X was elected and served as Mayor (one term). X was elected
and served as Mayor (1998 to 2001; 2nd term) but in the middle of the term, a
1998 election protest was filed but was not resolved. X was reelected for the
third term (2001 to 2004; and served as Mayor. The 1998 election protest was
favorably decided at the time when X was already reelected in 2001 (third
term). According to the election protest case he did not win in the 1998
Elections. He was not legally the Mayor in 1998-2001.
Was X qualified to run for Mayor in the 2004 Elections? NO. The SC said
purbida noh kung dili ikaw ang Mayor atong 1998 to 2001, kinsa man nga
wala man naglingkod ang protestant.
The SC said it would be absurd to say that he was not the mayor at that time
when in fact, muingon ka de facto, he served as Mayor.
TN OF THIS CASE: This is your Francis Ong vs. Joseph Alegre case (2006). It
was considered as full service even if it was later on declared by the
COMELEC that he was not the rightful official.
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Problem No. 7
1995 to 1998 - X was elected and served as Mayor.
1998 to 2001 – X was reelected and served. A protest was made for the 1998
Elections.
2001 to 2004 – reelected and served again as Mayor but in July of 2001, the
1998 election protest was decided against X.
2004 to 2007 – X ran and was elected.
Gi delay pag ayo ang pag implement sa 2001 case miabot nalang ang 2004
Elections nakadagan pa jud si X. But it was cancelled precisely of the July
2001 Election. But he won. Grabe kaayo ang mani-obra aneh. Mao ni ang
grab the proclamation, delay the protest.
May 17, 2007(?) – X step down as ordered.
2007 – He ran for Mayor.
Was X qualified to run as Mayor for 2007?
Because of his disqualification, he was not the duly-elected Mayor for the
2004-2007 term. In fact, his COC was cancelled. Morales cannot be deemed
to have served the full term of 2004 to 2007 because he was ordered to
vacate his post after (comment: diba dapat before) the expiration of the term.
Before mi-end ang iyang term, mi vacate siya sa iya post.
Kung ikaw ang mo-advise sa kandidato - before mo-end ang imong term,
naog. Pagpaugat sa because by the time you step down, it is not anymore
voluntary renunciation. Because Lonzanida case, if you have step down
involuntarily, then is interruption. So mo step down ka nalang. Pero dapat
nay order para involuntary.
Problem No. 8
1994 elections, 1997 elections and 2002 elections– X was elected and served
as Punong Barangay.
2004 –. Two years after na elect siya as Punong Barangay in the 2002
Elections, wa niya gihuman ang pagka Punong Baranggay. He ran as
municipal councilor.
2007 – mibalik siya pag ka punong barangay.
What is the effect of X running and winning as Municipal Councilor?
It is voluntary renunciation of the post kay wala may mi compel nimo to file a
candidacy for municipal councilor. Abandonment is considered voluntary
renunciation. You abandoned your post when you filed your COC as
municipal councilor.
Abandonment, according to the Court, just like resignation is voluntary.
Abandonment of office, just like resignation is voluntary.
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
Problem No. 9
Aldovino, Jr. vs. COMELEC (2009). Three consecutive terms. but on the third
term he was preventively suspended for six months. Argue dayon siya. Unsa
to requirement: Elected (check), Consecutively (check), Same office (check).
Anhi ko sa fully served nga issue. Ingon siya, di ba kung issue on full service,
we ask the question voluntary or involuntary.
If voluntary, should not be considered as an interruption. If involuntary,
should be considered as an interruption.
Is preventive suspension voluntary or involuntary? It is immaterial to talk
about voluntariness or involuntariness because the official here has not been
separated from the office. He was merely preventively suspended.
If you have been preventively suspended, you were not separated from
office. You are still the official but ordered not to perform the function of the
official. Mao kuno na ang effect sa preventive suspension.
He did not leave his post, he was merely suspended. Official lang gyapon
siya. He was merely prevented from serving his office but he was still with the
office.
Mendoza vs. Familara (2011) – Facts: Mendoza was elected as barangays
captain for 3 consecutive terms, i.e., 1994, 1997 and 2002. He sought
reelection in 2007. Familara petitions to disqualify Mendoza on the ground of
the 3 term limit rule. Mendoza argued that the law, RA 9164, has no
retroactive application.
Held: Our own reading shows that no retroactive application was made
because the three-term limit has been there all along as early as the second
barangay law (RA No. 6679) after the 1987 Constitution took effect; it was
continued under the [Local Government Code] and can still be found in the
current law. We find this obvious from a reading of the historical
development of the law. All these inevitably lead to the conclusion that the
challenged proviso has been there all along and does not simply retroact the
application of the three-term limit to the barangay elections of 1994.
Congress merely integrated the past statutory changes into a seamless whole
by coming up with the challenged proviso.
ABUNDO, SR. V. COMELEC
[G.R. No.160427, January 8, 2013] (Latest Ruling: SC clarifies 3-term limit rule
for mayors)
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Facts: Abundo ran for the position of municipal mayor of Viga, Catanduanes
in the years 2001, 2004, 2007 and 2010. He was proclaimed winner of the
2001 and 2007 elections.
In the 2004 election, however, Jose Torres was proclaimed the winner of the
electoral race and mayor of Viga, performing the functions of the office.
Abundo protested Torres’ election and was eventually declared the winner of
the 2004 mayoralty electoral contest. He assumed office from May 9, 2006
until the end of the 2004-2007 term on June 30, 2007.
As a result of the reversal, the court declared Abundo eligible for another
term as mayor to which he was duly elected in the May 2010 elections and
immediately reinstated him to such position. Emeterio Tarin and Cesar
Cervantes were also ordered to immediately vacate the positions of mayor
and vice mayor of Viga, Catanduanes, respectively, and to revert to their
original positions of vice mayor and first councilor, respectively, upon receipt
of this decision which is immediately executory. The court likewise lifted the
temporary restraining order (TRO) it issued on July 3, 2012 to restrain the
Comelec from enforcing the above-mentioned resolutions.
Issue: Whether or not Abundo is eligible for another term in 2010 as mayor
(to which he was duly elected in the May 2010 elections), notwithstanding
the fact he that was eventually declared the winner of the 2004 mayoralty
electoral contest and assumed office from May 9, 2006 until the end of the
2004-2007 term on June 30, 2007.
Held: Both the 1987 Constitution and the Local Government Code provide
that the three-term limit rule constitutes a disqualification to run for an
elective local office when an official has been elected for three consecutive
terms in the same local government post and has fully served those three
consecutive terms.
Abundo did not serve three consecutive terms as mayor of Viga,
Catanduanes due to an actual involuntary interruption during the 2004-2007
term. This was because he assumed the mayoralty post only on May 9, 2006
and served a little over one year and one month only. Thus, “the two-year
period which his opponent, Torres, was serving as mayor should be
considered as an interruption which effectively removed Abundo’s case from
the ambit of the three-term limit rule.
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
The court further ruled that the Comelec erred in applying Aldovino Jr. v.
Commission on Elections which held that “service of the unexpired portion of
a term by a protestant who is declared winner in an election protest is
considered as service for one full term within the contemplation of the three-
term limit rule” as the doctrine refers to a situation where the elected official
is under preventive suspension and is only temporarily unable to discharge
his functions yet is still entitled to the office as compared to the situation of
Abundo where he did not have title to the office. The court emphasized that
pending the favorable resolution of Abundo’s election protest, he was
relegated to being an ordinary constituent and private citizen since his
opponent, as presumptive victor in the 2004 elections, was occupying the
mayoralty seat. While awaiting the pendency of the election protest, Abundo
ceased from exercising power or authority over the constituents of Viga and
cannot be said to have retained title to the mayoralty office as he was at that
time not the duly proclaimed winner.
It stressed that Abundo’s case differs from other cases involving the “effects
of an election protest because while Abundo was the winning candidate, he
was the one deprived of his right and opportunity to serve his constitutents.”
Abundo, Sr., vs. COMELEC, [G.R. No.160427, January 8, 2013]
To summarize, hereunder are the prevailing jurisprudence on issues affecting
consecutiveness of terms and/or involuntary interruption, viz:
1. When a permanent vacancy occurs in an elective position and the official
merely assumed the position pursuant to the rules on succession under
the LGC, then his service for the unexpired portion of the term of the
replaced official cannot be treated as one full term as contemplated
under the subject constitutional and statutory provision that service
cannot be counted in the application of any term limit (Borja, Jr.). If the
official runs again for the same position he held prior to his assumption
of the higher office, then his succession to said position is by operation
of law and is considered an involuntary severance or interruption
(Montebon).
2. An elective official, who has served for three consecutive terms and who
did not seek the elective position for what could be his fourth term, but
later won in a recall election, had an interruption in the continuity of the
official’s service. For, he had become in the interim, i.e., from the end of
the 3rd term up to the recall election, a private citizen (Adormeo and
Socrates).
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3. The abolition of an elective local office due to the conversion of a
municipality to a city does not, by itself, work to interrupt the incumbent
official’s continuity of service (Latasa).
4. Preventive suspension is not a term-interrupting event as the elective
officer’s continued stay and entitlement to the office remain unaffected
during the period of suspension, although he is barred from exercising
the functions of his office during this period (Aldovino, Jr.).
5. When a candidate is proclaimed as winner for an elective position and
assumes office, his term is interrupted when he loses in an election
protest and is ousted from office, thus disenabling him from serving what
would otherwise be the unexpired portion of his term of office had the
protest been dismissed (Lonzanida and Dizon). The break or interruption
need not be for a full term of three years or for the major part of the 3-
year term; an interruption for any length of time, provided the cause is
involuntary, is sufficient to break the continuity of service (Socrates, citing
Lonzanida).
6. When an official is defeated in an election protest and said decision
becomes final after said official had served the full term for said office,
then his loss in the election contest does not constitute an interruption
since he has managed to serve the term from start to finish. His full
service, despite the defeat, should be counted in the application of term
limits because the nullification of his proclamation came after the
expiration of the term (Ong and Rivera).
“Hold-over” Principle
Sec. 5, RA 9164
Sambarani vs. COMELEC (2004) – As the law now stands, the language of
Section 5 of RA 9164 is clear. It is the duty of this Court to apply the plain
meaning of the language of Section 5. Since there was a failure of elections in
the 15 July 2002 regular elections and in the 13 August 2002 special
elections, petitioners can legally remain in office as barangay chairmen of
their respective barangays in a hold- over capacity. They shall continue to
discharge their powers and duties as punong barangay, and enjoy the rights
and privileges pertaining to the office. True, Section 43(c) of the Local
Government Code limits the term of elective barangay officials to three years.
However, Section 5 of RA 9164 explicitly provides that incumbent barangay
officials may continue in office in a hold over capacity until their successors
are elected and qualified.
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
The application of the hold-over principle preserves continuity in the
transaction of official business and prevents a hiatus in government pending
the assumption of a successor into office. As held in Topacio Nueno v.
Angeles, cases of extreme necessity justify the application of the hold-over
principle.
Vacancies and Succession
- Permanent Vacancies; Grounds
- Temporary Vacancies in the Office of the Local Chief Executive
- Approval of Leave of Absences
Vacancies and Succession
SECTION 44. Permanent Vacancies in the Offices of the Governor, Vice-
Governor, Mayor, and Vice-Mayor. — (a) If a permanent vacancy occurs in
the office of the governor or mayor, the vice-governor or vice-mayor
concerned shall become the governor or mayor. If a permanent vacancy
occurs in the offices of the governor, vice-governor, mayor, or vice-
mayor, the highest ranking sanggunian member or, in case of his
permanent inability, the second highest ranking sanggunian member,
shall become the governor, vice-governor, mayor or vice-mayor, as the
case may be. Subsequent vacancies in the said office shall be filled
automatically by the other sanggunian members according to their
ranking as defined herein.
(b)If a permanent vacancy occurs in the office of the punong barangay,
the highest ranking sanggunian barangay member or, in case of his
permanent inability, the second highest ranking sanggunian member,
shall become the punong barangay.
(c)A tie between or among the highest ranking sanggunian members
shall be resolved by the drawing of lots.
(d)The successors as defined herein shall serve only the unexpired terms
of their predecessors.
For purposes of this Chapter, a permanent vacancy arises when an
elective local official fills a higher vacant office, refuses to assume office,
fails to qualify, dies, is removed from office, voluntarily resigns, or is
otherwise permanently incapacitated to discharge the functions of his
office.
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For purposes of succession as provided in this Chapter, ranking in the
sanggunian shall be determined on the basis of the proportion of votes
obtained by each winning candidate to the total number of registered
voters in each district in the immediately preceding local election.
SECTION 45. Permanent Vacancies in the Sanggunian. — (a) Permanent
vacancies in the sanggunian where automatic succession provided above
do not apply shall be filled by appointment in the following manner:
(1)The President, through the Executive Secretary, in the case of the
sangguniang panlalawigan and the sangguniang panlungsod of highly
urbanized cities and independent component cities;
(2)The governor, in the case of the sangguniang panlungsod of
component cities and the sangguniang bayan;
(3)The city or municipal mayor, in the case of sangguniang barangay,
upon recommendation of the sangguniang barangay concerned.
(b)Except for the sangguniang barangay, only the nominee of the
political party under which the sanggunian member concerned had
been elected and whose elevation to the position next higher in rank
created the last vacancy in the sanggunian shall be appointed in the
manner hereinabove provided. The appointee shall come from the same
political party as that of the sanggunian member who caused the
vacancy and shall serve the unexpired term of the vacant office. In the
appointment herein mentioned, a nomination and a certificate of
membership of the appointee from the highest official of the political
party concerned are conditions sine qua non, and any appointment
without such nomination and certification shall be null and void ab
initio and shall be a ground for administrative action against the official
responsible therefor.
(c)In case the permanent vacancy is caused by a sanggunian member
who does not belong to any political party, the local chief executive shall,
upon recommendation of the sanggunian concerned, appoint a qualified
person to fill the vacancy.
(d)In case of vacancy in the representation of the youth and the
barangay in the sanggunian, said vacancy shall be filled automatically by
the official next in rank of the organization concerned.
SECTION 46. Temporary Vacancy in the Office of the Local Chief Executive.
— (a) When the governor, city or municipal mayor, or punong barangay
is temporarily incapacitated to perform his duties for physical or legal
reasons such as, but not limited to, leave of absence, travel abroad, and
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
suspension from office, the vice-governor, city or municipal vice-mayor,
or the highest ranking sangguniang barangay member shall
automatically exercise the powers and perform the duties and functions
of the local chief executive concerned, except the power to appoint,
suspend, or dismiss employees which can only be exercised if the period
of temporary incapacity exceeds thirty (30) working days.
(b)Said temporary incapacity shall terminate upon submission to the
appropriate sanggunian of a written declaration by the local chief
executive concerned that he has reported back to office. In cases where
the temporary incapacity is due to legal causes, the local chief executive
concerned shall also submit necessary documents showing that said
legal causes no longer exist. aisa dc
(c)When the incumbent local chief executive is traveling within the
country but outside his territorial jurisdiction for a period not exceeding
three (3) consecutive days, he may designate in writing the officer-in-
charge of the said office. Such authorization shall specify the powers and
functions that the local official concerned shall exercise in the absence of
the local chief executive except the power to appoint, suspend, or
dismiss employees.
(d)In the event, however, that the local chief executive concerned fails or
refuses to issue such authorization, the vice-governor, the city or
municipal vice-mayor, or the highest ranking sangguniang barangay
member, as the case may be, shall have the right to assume the powers,
duties, and functions of the said office on the fourth (4th) day of absence
of the said local chief executive, subject to the limitations provided in
subsection (c) hereof. cd i
(e)Except as provided above, the local chief executive shall in no case
authorize any local official to assume the powers, duties, and functions of
the office, other than the vice-governor, the city or municipal vice-mayor,
or the highest ranking sangguniang barangay member, as the case may
be.
SECTION 47.Approval of Leaves of Absence. — (a) Leaves of absence of
local elective officials shall be approved as follows:
(1)Leaves of absence of the governor and the mayor of a highly
urbanized city or an independent component city shall be approved by
the President or his duly authorized representative;
(2)Leaves of absence of vice-governor or a city or municipal vice-mayor
shall be approved by the local chief executive concerned: Provided, That
the leaves of absence of the members of the sanggunian and its
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employees shall be approved by the vice-governor or city or municipal
vice-mayor concerned; cdtai
(3)Leaves of absence of the component city or municipal mayor shall be
approved by the governor; and
(4)Leaves of absence of a punong barangay shall be approved by the city
or municipal mayor: Provided, That leaves of absence of sangguniang
barangay members shall be approved by the punong barangay.
(b)Whenever the application for leave of absence hereinabove specified
is not acted upon within five (5) working days after receipt thereof, the
application for leave of absence shall be deemed approved.
The Rules on Vacancies and Successions
Foremost, you have to take note of the instances that would constitute
permanent vacancy. What are the instances that would constitute permanent
vacancy both in the office of the local chief executive, the vice local chief
executive and the members of the sanggunian?
Ranking is also important because in the absence of the vice local chief
executive, in a given situation, he is suppose to occupy a higher position and
by reason of some inability or disqualification in the part of the vice local
chief executive or that there is no vice local chief executive, then the highest
ranking sanggunian shall occupy the position of the vice local chief executive.
So it is important that in every sanggunian there should be a ranking. How
do we rank the members of the sanggunian?
If you are to go over the rules on succession, it is also important to take note
of the meaning of the last vacancy in the sanggunian. Look at Sec. 45 of
the LGC, it starts with where the rule on succession will no longer apply that
actually refers to the last position in the sanggunian to be filled up – the last
vacancy in the sanggunian, we ask the question, ”Who caused the last
vacancy in the sanggunian?” That's also important in solving problems on
succession.
Take note of this factors that you should consider. (Master Sec. 44 and 45)
Instances of Permanent Vacancy
- If the official fills in a higher vacant position, so the vice-mayor for
example fill-up the vacant position of the mayor, then there is a
permanent vacancy in the office of the vice-mayor. That is by
operation of law.
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
- Second, if the official refuses to assume the office. Yes, that is also
permanent vacancy but it doesn't happen.
- Third, if the local official fails to qualify. A local election is conducted
in the month of May, second Monday of May to synchronize with the
national election. Few days after the election, the official will be
proclaimed as the duly elected local official but he will assume the
office only on June 30, noon of June 30. What if noon of June 30 the
official had been disqualified – for this reason he can not take his
oath. Let us suppose the disqualification had been final and
executory. So that is a possible situation where the local official fails
to qualify.
- Obviously, if the local official dies or removed from office.
- If he resign or otherwise permanently incapacitated to discharge the
functions of his office. It has nothing to do with physical inability not
unless the same physical inability or incapacity also permanently
incapacitates the official. So this is incapacity to discharge the
function of the office. Possible situation: the mayor has been
kidnaped and nobody knows whether he is still alive. That is
permanent incapacity to discharge the function of his office. Kung
mu balik then it is proven that he was just temporarily away. It is not
established that he is already dead but it is established that his
whereabouts can not anymore be located so that may be a case of
permanent incapacity and not a case of physical incapacity.
Rules on Ranking
How do you rank? This is very important. The Code is very specific: Votes
obtained in proportion to the Total registered voters in each district in areas
where there is more than 1 legislative district. You have total registered
voters in the district so no problem with a LGU when there is only 1 district
because the total registered voters will be the same number. This becomes
relevant in highly urbanized cities for example where there are more than 1
district like the case of Cebu City – you have North and South district. Even in
the election, if you obtained the highest number of votes of the 16
councillors, it does not necessarily mean that you are the no.1 councilor
because your vote will still have to factor in the total registered voters in your
district. Votes obtained over Total registered voters in each district not votes
cast. That was the argument in Victoria vs. COMELEC kay iya gi multiply sa
votes obtained ang votes cast, you don't consider the votes cast.
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In case of a tie though, this is interesting, the tie is to be resolved by the
mere drawing of lots because there has to be a ranking.
Illustration. This is a simple municipality where you have a Mayor, Vice-
Mayor and 8 Councilors. The letters on the right side represents the political
party. So Mayor X belongs to XXX party and Vice-Mayor Y belongs to PPP
party. Suppose Mayor X dies, so permanent vacancy. Vice-Mayor Y obviously
will become the Mayor. Who will be the Vice-Mayor now to replace Y? A is
the highest ranking Sanggunian member so A shall become the Vice-Mayor.
B, of course will occupy the position of A and now considered as the highest
ranking Sanggunian member. There will now be a vacancy in the position left
by H, the last member of the Sanggunian. If you apply Sec. 45, there is no
more rule on succession because no one is below the position of H. We will
now fill-up the vacancy in the last position of the Sanggunian. How will you
do that?
We resolve this by first identifying who caused the last vacancy. The rule says,
if the official who caused the last vacancy is a member of a political party
then his political party shall nominate – there shall be a nomination plus
certification by the political party. Anyone can be nominated by the political
party for as long as that person will qualify as a Councilor. Who caused the
last vacancy? Applying the docrine of Navarro vs. CA, A caused the last
vacancy in this case. Not H. There is a good reason for coming up with such
interpretation. Why A? If you say that H caused the last vacancy then the
political party of H will then be allowed to nominate somebody coming from
his party and if appointed by the Governor, since this is a component city,
then there will how many PPP councilors now? Instead of 3 there will now be
4. According to the SC, that is not a good interpretation because it is
important that an interpretation should be made that will maintain the party
representation in the Sanggunian.
Since it was KKK party (A's) which lost a representative in the Sanggunian by
reason of A's occupying the position of the Vice-Mayor then it is prudent that
KKK party should be the one which should nominate and let a KKK member
occupy that position of the Sanggunian. To maintain party representation
take note of that because you don't see that by just looking at the codal
provision.
Let's have another situation. Mayor X dies, found dead in a beach resort
somewhere in the Northern part of Cebu. What's the rule if the Sanggunian
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
member who caused the last vacancy is an independent? The Sanggunian
concerned recommends to the appointing authority. Who are the appointing
authorities? In the case of province, highly urbanized city and independent
component city, you have the Office of the President.
Two requirements: Recommendation by the Sanggunian and then
appointment by the President through the Executive Secretary. If it’s a
municipality or a component city, then to the Governor. If there is a political
party, you have the requirement of nomination coupled with the certification
of the political party – that he is a bona fide member of the political party
signed by the highest official of the party. So the manner by which it will be
certified is through the certification signed by the highest official of the
political party. In the case of barangay, it is irrelevant to determine the
political party because barangay election is non-partisan. Barangay officials
are not allowed to run under pickets of political parties. The rule is very
simple, the Sanggunian will just recommend and the mayor will appoint.
Cases:
Navarro vs. Court of Appeals, 355 SCRA 672 – The reason behind the right
given to a political party to nominate a replacement where a permanent
vacancy occurs in the Sanggunian is to maintain the party representation as
willed by the people in the election.
Damasen vs. Tumamao, GR No. 173165, February 17, 2010
It is undisputed that the law applicable to herein petition is Sec. 45(b) of RA
7160, which provides for the rule on succession in cases of permanent
vacancies in the Sanggunian, to wit: xxx
As can be gleaned from the above provision, the law provides for conditions
for the rule of succession to apply: First, the appointee shall come from the
same political party as that of the Sanggunian member who caused the
vacancy. Second, the appointee must have a nomination and a Certificate of
Membership from the highest official of the political party concerned.
Quite clearly, from the tenor of the letter, it appears that the membership of
Damasen still had to be approved by the LDP National Council. Thus,
notwithstanding Damasen’s procurement of a Certificate of Membership
from LDP Provincial Chairman Balauag, to this Court’s mind, the same merely
started the process of his membership in the LDP, and it did not mean
automatic membership thereto.
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Svetlana Jalosjos vs. COMELEC, June 25, 2013
Instances of Temporary Vacancy
There are four instances of temporary vacancy. In this situation, we're looking
at officials who will simply hold the office in an acting capacity. It is in here
where we will also talk about the restrictions on the functions or powers that
an acting official may exercise. If the official takes a leave of absence, travel
abroad regardless of number of days, then there is still temporary vacancy.
Suspension from office is construed as temporary or causing temporary
vacancy. Other temporary incapacity for physical or legal reasons. Let's take a
look at the following rules. It's not difficult to remember this except the
extent of the powers: In case of temporary vacancy, the vice local chief
executive or the highest ranking Sanggunian member shall
automatically exercise the powers and functions of the local chief
executive. This is an important rule: An acting Mayor or acting Governor
will exercise all the powers and functions of the local chief executive
except the powers to appoint, suspend or dismiss employees. Exception
to the exception is when the temporary vacancy exceeds 30 days in
which case the acting Mayor or Acting Governor will now be allowed to
appoint- not sure with suspension or dismissal but since the coma is
after the enumeration of appoint, suspend or dismiss then that will also
apply. The 30-day incapacity is provided there because primarily the acting
Mayor or Governor must also be given the power to exercise in order not to
prejudice the public service. If mu dismiss ka in order not to prejudice public
service, that can be done. But I think this is applicable to appointing power. In
reality ba. Legally of course, all this 3 powers may now be exercised if the
incapacity exceeds 30 days. In the case of Pp vs. Bustamante, the acting
Mayor solemnized marriage. Was the marriage solemnized by the mere
acting Mayor valid? Of course, the power to solemnize marriage is conferred
upon the Mayor under the LGC of 1991. Even if there is temporary vacancy,
all powers and functions may be exercised by an acting Mayor or acting
Governor and solemnizing marriage is one of these functions.
The Officer-In-Charge is different from the acting Mayor or acting
Governor. Will you be able to distinguish an OIC from an acting
Mayor/Governor. If the local chief executive travels outside the jurisdiction
for not more than 3 days, OIC pwede. Kay if musobra ka 3 days, the Vice will
act. That is in the matter of how they come to be acting or OIC. The other
important distinction is about the nature of their functions- scope,
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
limitations. Acting is by law, OIC is by appointment or designation. What
about the power of the OIC distinguished from the acting? In the case of the
acting, he will exercise all the powers and functions of the local chief
executive except the power to appoint, suspend or dismiss unless the
temporary incapacity exceeds 30 days. But in the case of an OIC, this is
important, his powers and functions will first be determined by the letter
designating him as the OIC. When the local chief executive designates an
OIC, his powers and functions will be stated in the appointment. But if there
is no OIC appointment because the local chief executive is not required to
appoint an OIC every time he leaves, its alright. But according to the rule, on
the 4th day when the local chief executive has not designated an OIC, the
Vice-Mayor or the Vice-Gov will assume the powers and functions as a matter
of right.
Who may be appointed as OIC? Can anyone be appointed as OIC? Binuang ni
codal provision. Tanawa ang paragraph sa Sec... Officer-in-Charge to be
designated by the local chief executive traveling within the country but
outside his territorial jurisdiction not exceeding 3 days. The OIC who can only
be the Vice or the highest ranking Sanggunian member of the Sanggunian
barangay shall perform the powers and functions may be delegated to him
except the power to appoint, suspend and dismiss employees.
Approval of Leave of Absence: President in case of local chief executive of
province, highly urbanized city and independent component city. If Vice, then
the local chief executive. If Sanggunian, then the Vice. By the Governor in
case of component city and municipal mayors. By the Mayor in case of
Punong Barangay and Punong Barangay in case of Sangguniang Barangay
members. If there is no action applying for the leave of absence, then it is
considered approved.
Cases:
Gamboa vs. Aguirre (2009) – Being the Acting Governor, the Vice-Governor
cannot continue to simultaneously exercise the duties of the latter office,
since the nature of the duties of the provincial Governor call for a full-time
occupant to discharge them. The creation of a temporary vacancy in the
office of the Governor creates a corresponding temporary vacancy in the
office of the Vice-Governor whenever the latter acts as Governor by
virtue of such temporary vacancy. This event constitutes an "inability" on
the part of the regular presiding officer (Vice Governor) to preside during the
SP sessions, which thus calls for the operation of the remedy set in Article
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49(b) of the Local Government Code — concerning the election of a
temporary presiding officer. The continuity of the Acting Governor's (Vice-
Governor) powers as presiding officer of the SP is suspended so long as he is
in such capacity. Under Section 49(b) "(i)n the event of the inability of the
regular presiding officer to preside at the sanggunian session, the members
present and constituting a quorum shall elect from among themselves a
temporary presiding officer."
PART IX: DISCIPLINARY ACTIONS
Disciplinary Actions
The grounds are found in Sec. 60 of the LGC. Disloyalty to the Republic of the
Philippines, culpable violation of the Constitution, dishonesty, oppression,
misconduct, commission of offense involving moral turpitude or punishable
by at least prision mayor, abuse of authority, unauthorized absence for 15
days consecutive days except in the case of Sangguinian members because
they will be disciplined for their failure to attend sessions for 4 consecutive
sessions or a period provided for in their internal rules of procedure., mere
application of foreign citizenship or residence or immigrant status of another
country and other grounds as may be provided for by law.
The last paragraph of Sec. 60 is new in the sense that it was not there under
the old LGC- that is the proper regular court can order the removal of an
elected official if he is being disciplined under Sec. 60.
Before, the President through the DILG can remove local government
officials. Common kaayo na kaniadto- removal by DILG. Karon kutob nlng sa
suspension. Let's try to take a look at the offices where we can file the
complaint. Lahi ni sa Ombudsman. If we file a complaint for administrative
action against an elective official before the Office of the Ombudsman then
the Ombudsman Law will apply not Sec. 60. So kadtong mga rules of
preventive suspension under the LGC could be 60 (days).
In the case of Ombudsman up to 6 months. Actually, politics may basis ana
guys. Office of the President in the case of elective officials of a province,
highly urbanized city and either independent or component city. Libog jud ko
pagkahimo ani nga provision because later on if we got to Sec. 63, kung
preventive suspension ang Office of the President kutob ra sa independent
component city. Mu file ka complaint against an elective official of a
component city ang imong complaint adto i file sa Office of the President.
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
But dili ang Office of the President maoy maka impose og preventive
suspension- the Governor, Sec. 63. Doesn't make sense. Sangguniang
Panlalawigan for the municipality and the decision is appealable to the Office
of the President. For barangay officials, Sangguniang Panglunsod in case of
city and Sangguniang Bayan in case of Municipality and the decision is final
and executory- no more mode of administrative appeal.
Important rules and prohibitions
during investigation.
Investigation must commence 10 days after the respondent files the answer
and investigation shall be held only in the place where the respondent holds
office. So city official, the city investigator not outside. No investigation
within 90 days immediately prior to local election and no preventive
suspension shall be imposed within the same period. If a preventive
suspension has already been imposed, it should be ipso facto lifted on the
91st day immediately preceeding election.
Joson III vs. CA (2006) applied the certain conditions before preventive
suspension may be imposed. There are 3 conditions: (1) the issues must have
already been joined; (2) evidence of guilt is strong and; (3) given the gravity
of the offense respondent might influence witnesses or pose a threat to
records or evidence- these are not actually the exact wordings of the Code
but that is the idea.
When are issues considered joined? When the complaint is filed of course the
complaint consist of allegations. When these allegations are denied, then
these have been considered or made issues. And they got denied because of
the answer of the respondent.
So it's premature to impose preventive suspension if no answer has been files
yet. It is important to take note of that. It's not similar to our labor law
procedure if we preventively suspend an employee we just send a show
cause memo... preventive suspension of public officials under the LGC,
answer first before preventive suspension. Otherwise, they will be victims of
political harassment to the prejudice of public service. Issues must have
already been joined and you add 2 more conditions evidence of guilt must
be strong and the offense must be grave- if the case is just slapping of face
for example then it can not be considered as a valid ground for preventive
suspension.
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Gihimo diay na ang preventive suspension in order to determine the guilt of
the respondent and the gravity of the offense?
Well of course with the hearing, it is for the President, Governor, or the
Mayor to determine that. The point being that if the Mayor imposes
preventive suspension on any other ground because the offense for example
is--- then he can assail the preventive suspension. 60 days or 90 days. 60 if
there is only one administrative case and if there are several administrative
cases filed the preventive suspension shall not exceed 90 day if based on the
same grounds or grounds already existing and known to the complainant at
the time of the filing of the complaint. Obviously, prior hearing is not a
requirement because preventive suspension is not a penalty. You are not
being removed from an office. You are just being prevented to perform the
functions of the office but you have not been separated from the office. Since
it is not a penalty, it is for some lawful purpose, then the requirement of due
process need not be observed. It can not be a violation of due process. There
are certain rights of the respondent as enumerated under Sec. 66. But the
most important is the effect of penalty of suspension. Three important rules
here: (1) the penalty of suspension shall not exceed the unexpired term- so if
he gets re-elected and ang iyang suspension duna pa 10 days kuwang, ayaw
na ipa continue nia; (2) it shall not also exceed 6 mons. per administrative
case and; (3) penalty of suspension is not a bar to candidacy. What is that
kind of penalty that may be considered a bar to candidacy? Removal.
Aguinaldo Doctrine
Once an elective official had been re-elected and if he committed a
misconduct during the prior term, his re-election shall be considered as a
condonation to the party electorate and will effectively remove any
administrative culpability. Take note however, that this doctrine applies only
to administrative cases for misconduct and the official may still be held
criminally or civilly liable for the same act. You have studied the law on public
officers, I think you remember the so-called three-fold liability rule- a single
act may amount to a misconduct as a ground for administrative case; the
same act may also be considered as a criminal offense; or even a
ground/basis for civil liability. So single act, three-fold liability rule may apply.
And why is it important to know the three-fold liability rule? Because the
Aguinaldo doctrine applies only to the administrative aspect of the case. So
even if he gets re-elected and if a criminal case will be filed, even if the
misconduct has been committed during the prior term, that will still continue.
This same rule applies to civil case.
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
The case of Garcia vs Mojica is very interesting. Why? Because then former
mayor Garcia signed a very controversial contract 4-days before the election
day. It was only discovered by the opposition when Garcia was already re-
elected. In fact, it came in the news only several weeks after he assumed the
office. When sought for administrative sanction, ingon dayon si Alvin nga: oi
I'm already been condoned by the people because they re-elected me. That
act having been committed during my prior term. Ingon sad dayon ang
opposition: taka ka lng. The basis or the spirit, the reason behind Aguinaldo
doctrine is precisely condonation by the people. If the people did not know
about that misconduct, when they re-elected you, how can they not condone
the act when they did not know about it when they re-elected Mayor Garcia.
If the spirit of Aguinaldo doctrine is the re-election is condonation, then it
must presuppose that the people knew of the misconduct and despite that
knowledge of the misconduct, they re-elected the same official. Mao na ang
condonation. How can you condone an act that did not come to you
knowledge, d ba? If you are the SC, how will you decide the case? Ingon
dayon ang SC, bida sad na nga argument oi, logical man na pero come to
think of it, how will the court determine whether, in fact, the people knew or
did not know about the act of his father? [Ambot d klaro]. Lisod kaau na ba,
ang Court imong pa-determinahon ug nahibaw ba ang mga taw. How will
the court do that? Ask all the voter whether or not they know about the
misconduct? Ingon dayon ang SC, let's not talk about logic here, let's just talk
about the simple rule established in the case of Aguinaldo. That the act was
committed by your, to his term, when that official was re-elected. It does not
matter whether the people actually knew about the misconduct. It is still
considered condonation. The court cannot really determine whether or not
the people knew and having knowledge, still re-elected the official. It is
impossible, according to the Court, to determine actual or lack of knowledge
by the electorates. The fact that the misconduct was committed during the
prior term, Aguinaldo doctrine applies, whether or not the people knew
about the misconduct.
Aguinaldo doctrine does not apply to an appointed official who committed
misconduct while in his appointive office and who was later on elected into
office. Aguinaldo case mentioned of a re-election. Di man na re-election if
when you were still an appointed official, then you committed misconduct,
and then later on you get elected, so di na xa re-elected. Re-election is the
term used in Aguinaldo. Aguinaldo doctrine applies only to administrative
case and does not apply to criminal and civil cases, if any.
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Administrative appeals – Office of the President in case of decision of the,
you can look this up in the codal provision. There is execution pending
appeal in the LGC which is now similar in the Office of the Ombudsman.
Although niadto sa Office of the Ombudsman ilang i-distinguish ang penalty
[Buencamino vs CA]. Duna nay uniform rules on administrative cases in the
civil service. Decisions of the Ombudsman are immediately executory even
pending appeal. Of course, your Sangguniang Barangay of Don Mariano
Marcos vs Martinez , only the court, could be RTC if the decision became final
there or CA or the Sadiganbayan, as the case maybe, can remove an elected
official. By virtue of the last paragraph of Sec. 60.
Cases:
Salumbides vs. Office of the Ombudsman, GR No. 180917, April 23, 2010 – The
electorate's condonation of the previous administrative infractions of the
reelected official cannot be extended to that of the reappointed coterminous
employees, the underlying basis of the rule being to uphold the will of the
people expressed through the ballot. In other words, there is neither
subversion of the sovereign will nor disenfranchisement of the electorate to
speak of, in the case of reappointed coterminous employees.
It is the will of the populace, not the whim of one person who happens to be
the appointing authority, that could extinguish an administrative liability.
Since petitioners hold appointive positions, they cannot claim the mandate of
the electorate. The people cannot be charged with the presumption of full
knowledge of the life and character of each and every probable appointee of
the elective official ahead of the latter's actual reelection.
Alejandro vs. Office of the Ombudsman (2013), G.R. No. 173121, April 3, 2013 -
The Office of the Ombudsman was created by no less than the
Constitution.18 It is tasked to exercise disciplinary authority over all elective
and appointive officials, save only for impeachable officers. While Section 21
of The Ombudsman Act19 and the Local Government Code both provide for
the procedure to discipline elective officials, the seeming conflicts between
the two laws have been resolved in cases decided by this Court.20
In Hagad v. Gozo-Dadole,21 we pointed out that "there is nothing in the
Local Government Code to indicate that it has repealed, whether expressly or
impliedly, the pertinent provisions of the Ombudsman Act. The two statutes
on the specific matter in question are not so inconsistent x x x as to compel
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
us to only uphold one and strike down the other." The two laws may be
reconciled by understanding the primary jurisdiction and concurrent
jurisdiction of the Office of the Ombudsman.
The Ombudsman has primary jurisdiction to investigate any act or omission
of a public officer or employee who is under the jurisdiction of the
Sandiganbayan. The Sandiganbayan’s jurisdiction extends only to public
officials occupying positions corresponding to salary grade 27 and higher.22
Consequently, as we held in Office of the Ombudsman v. Rodriguez,23 any
act or omission of a public officer or employee occupying a salary grade
lower than 27 is within the concurrent jurisdiction of the Ombudsman and of
the regular courts or other investigative agencies.24
In administrative cases involving the concurrent jurisdiction of two or more
disciplining authorities, the body where the complaint is filed first, and which
opts to take cognizance of the case, acquires jurisdiction to the exclusion of
other tribunals exercising concurrent jurisdiction.25 In this case, the petitioner
is a Barangay Chairman, occupying a position corresponding to salary grade
14.26 Under RA 7160, the sangguniang panlungsod or sangguniang bayan
has disciplinary authority over any elective barangay official.
Since the complaint against the petitioner was initially filed with the Office of
the Ombudsman, the Ombudsman's exercise of jurisdiction is to the
exclusion of the sangguniang bayan whose exercise of jurisdiction
is concurrent.
PART X: RECALL
Let's go to recall. If you will be asked to simply define it, simple. A mode of
removing an elected official by the people before the end of his term. The
ground for recall is simply loss of trust and confidence. It is similar to
removing a Prime Minister by the members of parliament. Who will decide?
The people, of course, because there will be a recall election. There will be no
hearing, of course, whether or not the person to be removed has committed
an offense. Mao btaw na nga most of the time in the past, it had been used
by politician to remove candidates or officials who have been electef and
who do not belong to their party. If you are the only mayor who had been
elected belonging to the opposition and the governor, vice-governor and all
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other mayors of the component cities and municipalities belong to the other
party, patay kang mayora ka. Preparatory for assembly (PFA) dayon, that is to
initiate and then of course inig election pun-an etc.....[d na ko kadungog]
because of the the Congress in 2004 enacted or pass into law RA 9244,
removing PFA as form of initiating recall. Now, there is only 1 mode of
initiating recall and that is by registered voters themselves. You look at RA
9244 pilay percentage of signature required for initiation, just to iniate recall
proceeding and there will, of course, be recall election.
Effectivity of recall. Very simple, if the official subject of the recall wins in
the recall election, then recall fails because the people have affirmed that
they still have trust and confidence of the elected official. But if somebody
else would win in the recall election, then that is the effect of a recall. Because
in recall, first the official subject of the recall is an automatic candidate, he
doesn't have to file a certificate of candidacy, automatic na xa. And then, of
course, the COMELEC will invite other candidates to participate in the recall
election. There are important prohibitions in recall proceedings. The official
cannot resign during recall process. And recall election can only be once
during the term of the official. Recall election, not proceeding, unlike sa
impeachment, the so-called 1-bar rule in impeachment. It is about the
initiation of the proceeding that is being prohibited in the 1 year against the
same impeachable official. Bisan pa ug walay article of impeachment gi-file sa
senate when a complaint had already been filed before the house of
representatives duly filed and referred to the committee of justice or the
proper committee then since Congress has acted on it, then we say that
impeachment proceeding had already been initiated. That rule will not apply
here, pwede ka ka-initiate several times during the term of of the local
official. But maybe for 1 reason or another dili mo-prosper and then there
will be no scheduling of recall election, then wala. Second initiation of recall
proceeding will not be barred. Take note: ELECTION NOT PROCEEDING.
Another important rule, no recall election shall take place within 1 year from
the date of the official's assumption to office and 1 years also immediately
preceding a regular election. This regular election refers to that election
affecting the office of the official concerned. So, 3 years man ang term of
office sa elective official. First year sa iyang term, 12:01 of June 30 up to 12
noon of June 30 the following year, kana na period, no recall election, dili
iniation, should take place. Karon na period up to noon June 30, 2011 , no
recall election should take place. 2011-2012, pwede, that's the second term.
And then, 12:01 of June 30, 2012 up to 2013, 1 year before a local election,
no recall election shall take place. It may happen therefore that there will be a
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
barangay election and 1 year immediately preceding the barangay election,
will there be a recall election if the subject of a recall is a vice-mayor, then 1
year after that recall election is an upcoming barangay election? The answer
is NO. Mao gani ng gi-ingon that regular election na maoy i-reckon ang
immediately preceding 1 year should refer to the same office, the office of
the official concerned who is the subject of the recall election. In the case, it
was an SK election that was nearing a recall election involving a member of a
sitio or municipality basta dili baranagy official.
PART XI: HUMAN RESOURCES AND DEVELOPMENT
Human Resources and Development
SECTION 76.Organizational Structure and Staffing Pattern. — Every local
government unit shall design and implement its own organizational structure
and staffing pattern taking into consideration its service requirements and
financial capability, subject to the minimum standards and guidelines
prescribed by the Civil Service Commission. aisa dc
SECTION 77.Responsibility for Human Resources and Development. — The
chief executive of every local government unit shall be responsible for human
resources and development in his unit and shall take all personnel actions in
accordance with the constitutional provisions on civil service, pertinent laws,
and rules and regulations thereon, including such policies, guidelines and
standards as the Civil Service Commission may establish: Provided, That the
local chief executive may employ emergency or casual employees or laborers
paid on a daily wage or piecework basis and hired through job orders for
local projects authorized by the sanggunian concerned, without need of
approval or attestation by the Civil Service Commission: Provided, further,
That the period of employment of emergency or casual laborers as provided
in this section shall not exceed six (6) months.
The Joint Commission on Local Government Personnel Administration
organized pursuant to Presidential Decree Numbered Eleven Hundred thirty-
six (P.D. No. 1136) is hereby abolished and its personnel, records, equipment
and other assets transferred to the appropriate office in the Civil Service
Commission.
SECTION 78.Civil Service Law, Rules and Regulations, and Other Related
Issuances. — All matters pertinent to human resources and development in
local government units shall be governed by the civil service law and such
rules and regulations and other issuances promulgated pursuant thereto,
unless otherwise specified in this Code. cdasia
SECTION 79.Limitation on Appointments. — No person shall be appointed in
the career service of the local government if he is related within the fourth
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civil degree of consanguinity or affinity to the appointing or recommending
authority.
Practice of profession is another major concern in local government law.
May local officials practice their profession? All local chief executives, so we
are referring to the mayor, governor, the punong-barangay cannot practice
profession nor engage in any occupation other than the exercise of their
functions as local chief executives. Profession ba ng naa kai regular program
sa radio? Or di ba na occupation? It's a full-time job, that's essence of the
provision. If you are a local chief executive, you should focus all your
attention, devote all your time to being the chief executive. SK member can
practice profession, their presiding officer, the vice-mayor is considered a
member of sangguniang panlalawigan. YES, the members of sangguniang
can practice their profession, they can also engage in any occupation, ang
prohibition lng : 1) dili pwede during session hours, with limitations though,
as what you codal provision on grounds of conflict of interests. Doctors of
medicine can practice profession, but only in case of emergency, provided
that he does not receive compensation.
Cases:
De Rama vs. Court of Appeals (2001) - It has been held that upon the issuance
of an appointment and the appointee's assumption of the position in the civil
service, "he acquires a legal right which cannot be taken away either by
revocation of the appointment or by removal except for cause and with
previous notice and hearing."17 Moreover, it is well-settled that the person
assuming a position in the civil service under a completed appointment
acquires a legal, not just an equitable, right to the position. This right is
protected not only by statute, but by the Constitution as well, which right
cannot be taken away by either revocation of the appointment, or by
removal, unless there is valid cause to do so, provided that there is previous
notice and hearing.
Section 20 of Rule VI (of the Revised Administrative Code) also provides:
Sec. 20. Notwithstanding the initial approval of an appointment, the
same may be recalled on any of the following grounds:
(a) Non-compliance with the procedures/criteria provided in the
agency's Merit Promotion Plan;
(b) Failure to pass through the agency's Selection/Promotion Board;
(c) Violation of the existing collective agreement between
management and employees relative to promotion; or
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
(d) Violation of other existing civil service law, rules and regulations.
Accordingly, the appointments of the private respondents may only be
recalled on the above-cited grounds. And yet, the only reason advanced by
the petitioner to justify the recall was that these were "midnight
appointments." The CSC correctly ruled, however, that the constitutional
prohibition on so-called "midnight appointments," specifically those made
within two (2) months immediately prior to the next presidential elections,
applies only to the President or Acting President.
People vs. Toledano, 332 SCRA 210 (2000) - It is indeed a fundamental
principle of administrative law that administrative cases are independent
from criminal actions for the same act or omission. 7 Besides, the reliance
made by respondent judge on the re-election of private respondent as
Kagawad in the May 1992 election so as to warrant the dismissal of the
information filed against him, citing Aguinaldo vs. Santos 8 is misplaced. The
ruling in said case which forbids the removal from office of a public official
for administrative misconduct committed during a prior term, finds no
application to criminal cases, pending against said public officer.
PART XII: LOCAL LEGISLATIONS
Local legislative bodies. Forum, majority of all members. Very common
requirement. They can be compelled, in fact, an arrest order may be issued by
the sangguniang and empower another member of the sangguniang with the
help of police to arrest a member of a sangguniang in order to compel him
to attend the session. That's more or less similar to our congressional body,
attendance may be compelled. Take note that attendance may be compelled
in so far as members are concerned.
In the BAR exam, is has been asked whether sangguniang has the inherent
power to issue subpoena to compel the attendance of a person who is not a
member of the sanggunian. And in case that person refuses to obey the
subpoena, may the sanggunian cite that person in contempt. DILI. You know
of course the power to issue subpoena and cite a person in contempt, those
powers are essentially judicial. So, kun essentially judicial, unsa man ang
meaning? Kun essentially judicial, agencies that do not belong to the
judiciary or courts may only be allowed to issue subpoena and/or cite a
person in contempt if so given that power by Congress. Kinahanghlan i-
delegate sad na xa. The LGC, being the repository of the powers and
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functions of the sangguniang has not provided for that power. Suppose the
LGC has provided for that power? Pwede na. But it has not. Sir, ang CA ug
House of Rep mak-issue man ug subpoena. Ngano man? Kai national
government vested with original power and it is essential in lawmaking.
Coercive power of the sangguniang applies only to members of the
sangguninag. In fact arrest order maybe issued but seldom practiced. An
ordinance may grant power that has not been granted by the LGC.
Let's go to local legislation. You should be able to distinguish ordinance
from resolution. Ordinance has the force and effect of law. Resolution, a mere
sentiment of the sangguniang, temporary in character. Ordinance, 3 readings
required. Resolution, 2 readings only. Approval of ordinance, more or less
similar to that of Congress. Sangguniang, the administrative body will pass
the ordinance and it will have to be signed by the local chief executive within
the period of 15 days in the case of province and highly urbanized cities and
10 days for others within which to sign the ordinance for it to become a valid
ordinance.
The distinction between the grounds for veto with the local chief executive
and the grounds for review by the other sangguniang. Veto by the chief local
executive – ultra vires and prejudicial to public welfare. Review by the mother
sangguniang – ultra vires. Pero kun ordinance of barangay reviewed by a
municipality or city, although essentially mura lng ug ultra vires – whether or
not in conformity with ordiance or whether or not in conformity with law.
Rules on veto. Who can make item veto? You know of course item veto, no?
Sa president duna xa item veto sa local chief executive. Of course item veto
applies to appropriation ordinance or an ordinance that creates a public
debt. Pareha ra sa president. Pero the punong barangay does not have a veto
power.
Effectivity of ordinance – 10 days unless otherwise so provided by the
ordinance. What is the effect of the review mechanism by the mother
sangguniang to the effectivity? Like for example ordinance of a barangay, di
ba review mechanism it will be submitted to the mother sangguniang
panlungsod or sangguniang bayan for review on the ground whether it is in
conformity with the ordinance of that municipality of city, as the case may be,
or whether it is in conformity with law. Question is unsa man ang ordinance
mo-take effect for in meantime that it is being reviewed? Kai ni-ingon bya
ang codal provision if the mother sangguniang has not acted on it within a
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
period of 30 days, it shall be considered as having been approved. 30 days
man na nya mo-take effect man kha ng ordinance after 10 days? Really, it will
take effect. While under review, the ordinance should be implemented
already. Unya sir kun ang reviewing sangguniang declares that it is not in
conformity with law, what will happen? Of course, the ordinance will not be
implemented anymore. Remember there is a penalty and a ground for
disciplinary action if you insist on implementing an ordinance that is already
disapproved. Sir, pila man na usually number of days? To tell you frankly, it
can even be a year ang review. Sir, 30 days man ang gi-ingon. Take note, it
say if the reviewing body has not acted on it. We have argued this already in
Cebu City that the fact that a barangay ordinance had already been referred
to the committee, that's already action nya kun madugai na didto sa
committee, di na na kwentahon ang 30 days. Another concern, what
ordinance should be published? Ordinances may or may not be published
but the Code requires that if the ordinance, which is actually the usual
situation, carries a penal provision or it has a penalty clause, it is mandatory
that it should be published in a newspaper of general circulation. Publication
of ordinances with penalties is a requirement because it is obviously a
requirement of due process.
Cases:
La Carlota City vs. Atty. Rex Rojo – This case is about the resignation of an
elected SP member to assume the office of the SP Secretary. (perhaps,
because SP secretary is entitled to security of tenure) In the LGC, resignation
of an elective official may be done in open session of the sanggunian,
provided there is a quorum. The issue arise as to the validity of the
resignation, since it is argued that there was no quorum in the session when
the resignation was tendered.
Held: RA 7160 clearly states that the Sangguniang Panlungsod "shall be
composed of the city vice-mayor as presiding officer, the regular sanggunian
members, the president of the city chapter of the liga ng mga barangay, the
president of the panlungsod na pederasyon ng mga sangguniang kabataan,
and the sectoral representatives, as members." Black’s Law Dictionary defines
"composed of" as "formed of" or "consisting of." As the presiding officer, the
vice-mayor can vote only to break a tie. In effect, the presiding officer votes
when it matters the most, that is, to break a deadlock in the votes. Clearly,
the vice-mayor, as presiding officer, is a "member" of the Sangguniang
Panlungsod considering that he is mandated under Section 49 of RA 7160 to
vote to break a tie. To construe otherwise would create an anomalous and
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absurd situation where the presiding officer who votes to break a tie during
a Sanggunian session is not considered a "member" of the Sanggunian.
In the same manner, a quorum of the Sangguniang Panlungsod should be
computed based on the total composition of the Sangguniang Panlungsod.
In this case, the Sangguniang Panlungsod of La Carlota City, Negros
Occidental is composed of the presiding officer, ten (10) regular members,
and two (2) ex-officio members, or a total of thirteen (13) members. A
majority of the 13 "members" of the Sangguniang Panlungsod, or at least
seven (7) members, is needed to constitute a quorum to transact official
business. Since seven (7) members (including the presiding officer) were
present on the 17 March 2004 regular session of the Sangguniang
Panlungsod, clearly there was a quorum such that the irrevocable resignation
of respondent was validly accepted.
NORECO vs. City of Dumaguete (1987) – There is no express provision either
in the 1973 Constitution or in the Local Government Code (Batas Pambansa
Blg. 337) granting local legislative bodies, the power to subpoena witnesses
and the power to punish non-members for contempt. Absent a constitutional
or legal provision for the exercise of these powers, the only possible
justification for the issuance of a subpoena and for the punishment of
non-members for contumacious behavior would be for said power to be
deemed implied in the statutory grant of delegated legislative power.
But, the contempt power and the subpoena power partake of a judicial
nature. They cannot be implied in the grant of legislative power. Neither
can they exist as mere incidents of the performance of legislative functions.
To allow local legislative bodies or administrative agencies to exercise these
powers without express statutory basis would run afoul of the doctrine of
separation of powers.
PART XIII: LOCAL INITIATIVE AND REFERENDUM
(see Sec. 120 – 127 of the Local Government Code)
Initiative and referendum – distinction. Initiative, of course, comes from the
people acquired to the sangguniang the concept of referendum is the
sangguniang submits a question to the people, so opposite xa. Initiative of
the people submit to the sangguniang a proposed legislation; referendum,
sagguniang submits to the people a question. Subject matter – can be a
resolution, actually, not only an ordinance. A resolution can be a subject of
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
initiative and referendum. There are certain limitations, we go to Sec. 120 and
you have the limitation in Sec. 125. If an ordinance can be approved through
a system of initiative and referendum, the ordinance cannot be repealed,
modified or amended by sangguniang concerned within a period of 6
months from the date of the approval. It may amended, modified or repealed
by the sangguniang within 3 years thereafter by a vote of ¾ of all its
members. After that, after 3 years, it will be the usual rule, majority vote. Mao
na ang effect. Accelerating ang iyang limitation. First, the sangguniang
cannot amend which became so by reason of initiative within a period of 6
months, after 6 months and for a period of 3 years, pwede na ma-amend but
mag-require ug ¾ votes. Inig lapas ug 3 years, it can be amended now just
like any other ordinance, it would only require majority vote.
Local Initiative and Referendum
SECTION 120.Local Initiative Defined. — Local initiative is the legal process
whereby the registered voters of a local government unit may directly
propose, enact, or amend any ordinance. aisa dc
SECTION 121.Who May Exercise. — The power of local initiative and
referendum may be exercised by all registered voters of the provinces, cities,
municipalities, and barangays.
SECTION 122.Procedure in Local Initiative. — (a) Not less than one thousand
(1,000) registered voters in case of provinces and cities, one hundred (100) in
case of municipalities, and fifty (50) in case of barangays, may file a petition
with the sanggunian concerned proposing the adoption, enactment, repeal,
or amendment of an ordinance.
(b)If no favorable action thereon is taken by the sanggunian concerned
within thirty (30) days from its presentation, the proponents, through their
duly authorized and registered representatives, may invoke their power of
initiative, giving notice thereof to the sanggunian concerned. aisa dc
(c)The proposition shall be numbered serially starting from Roman numeral I.
The COMELEC or its designated representative shall extend assistance in the
formulation of the proposition.
(d)Two (2) or more propositions may be submitted in an initiative.
(e)Proponents shall have ninety (90) days in case of provinces and cities, sixty
(60) days in case of municipalities, and thirty (30) days in case of barangays,
from notice mentioned in subsection (b) hereof to collect the required
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number of signatures.
(f)The petition shall be signed before the election registrar, or his designated
representatives, in the presence of a representative of the proponent, and a
representative of the sanggunian concerned in a public place in the local
government unit, as the case may be. Stations for collecting signatures may
be established in as many places as may be warranted. cd
(g)Upon the lapse of the period herein provided, the COMELEC, through its
office in the local government unit concerned, shall certify as to whether or
not the required number of signatures has been obtained. Failure to obtain
the required number defeats the proposition.
(h)If the required number of signatures is obtained, the COMELEC shall then
set a date for the initiative during which the proposition shall be submitted to
the registered voters in the local government unit concerned for their
approval within sixty (60) days from the date of certification by the COMELEC,
as provided in subsection (g) hereof, in case of provinces and cities, forty-five
(45) days in case of municipalities, and thirty (30) days in case of barangays.
The initiative shall then be held on the date set, after which the results
thereof shall be certified and proclaimed by the COMELEC.
SECTION 123.Effectivity of Local Propositions. — If the proposition is approved
by a majority of the votes cast, it shall take effect fifteen (15) days after
certification by the COMELEC as if affirmative action thereon had been made
by the sanggunian and local chief executive concerned. If it fails to obtain
said number of votes, the proposition is considered defeated. acd
SECTION 124.Limitations on Local Initiative. — (a) The power of local initiative
shall not be exercised more than once a year.
(b)Initiative shall extend only to subjects or matters which are within the legal
powers of the sanggunian to enact.
(c)If at any time before the initiative is held, the sanggunian concerned
adopts in toto the proposition presented and the local chief executive
approves the same, the initiative shall be cancelled. However, those against
such action may, if they so desire, apply for initiative in the manner herein
provided.
SECTION 125.Limitations upon Sanggunians. — Any proposition or ordinance
approved through the system of initiative and referendum as herein provided
shall not be repealed, modified or amended by the sanggunian concerned
within six (6) months from the date of the approval thereof, and may be
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus
amended, modified or repealed by the sanggunian within three (3) years
thereafter by a vote of three-fourths (3/4) of all its members: Provided, That in
case of barangays, the period shall be eighteen (18) months after the
approval thereof. aisa dc
SECTION 126.Local Referendum Defined. — Local referendum is the legal
process whereby the registered voters of the local government units may
approve, amend or reject any ordinance enacted by the sanggunian.
The local referendum shall be held under the control and direction of the
COMELEC within sixty (60) days in case of provinces and cities, forty-five (45)
days in case of municipalities and thirty (30) days in case of barangays.
The COMELEC shall certify and proclaim the results of the said referendum.
SECTION 127.Authority of Courts. — Nothing in this Chapter shall prevent or
preclude the proper courts from declaring null and void any proposition
approved pursuant to this Chapter for violation of the Constitution or want of
capacity of the sanggunian concerned to enact the said measure.
Garcia vs. COMELEC, 237 SCRA 279 (1994) – The Constitution clearly includes
not only ordinances but resolutions as appropriate subjects of a local
initiative. Section 32 of Article VI provides in luminous language: "The
Congress shall, as early as possible, provide for a system of initiative and
referendum, and the exceptions therefrom, whereby the people can directly
propose and enact laws or approve or reject any act or law or part thereof
passed by the Congress, or local legislative body . . ." An act includes a
resolution.
Contrary to the submission of the respondents, the subsequent enactment of
the Local Government Code of 1991 which also dealt with local initiative did
not change the scope of its coverage. More specifically, the Code did not
limit the coverage of local initiatives to ordinances alone. Section 120,
Chapter 2, Title IX Book I of the Code cited by respondents merely defines
the concept of local initiative as the legal process whereby the registered
voters of a local government unit may directly propose, enact, or amend any
ordinance. It does not, however, deal with the subjects or matters that can be
taken up in a local initiative. It is section 124 of the same Code which does.
This provision (section 124) clearly does not limit the application of local
initiatives to ordinances, but to all "subjects or matters which are within the
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legal powers of the Sanggunians to enact," which undoubtedly includes
resolutions. PART XVI: SANGGUNIANG KABATAAN

Subic Bay Metropolitan Authority vs. COMELEC, 262 SCRA 492 (1996) – THE
COURT CANNOT PASS UPON A PROPOSED INITIATIVE UNTIL THE PEOPLE
HAVE VOTED FOR IT AND IT HAS BECOME AN APPROVED ORDINANCE OR
RESOLUTION. Deliberating on this issue, the Court agrees with private
respondent Garcia that indeed, the municipal resolution is still in the
proposal stage. It is not yet an approved law. Should the people reject it, then
there would be nothing to contest and to adjudicate. It is only when the
people have voted for it and it has become an approved ordinance or
resolution that rights and obligations can be enforced or implemented
thereunder. At this point, it is merely a proposal and the writ of prohibition
cannot issue upon a mere conjecture or possibility. Constitutionally speaking,
courts may decide only actual controversies, not hypothetical questions or
cases.

PART XIV: MANDATED LOCAL AGENCIES

Osea vs. Malaya, January 30, 2002 – We agree with the Civil Service
Commission and the Court of Appeals that, under the circumstances, the
designation of respondent as Schools Division Superintendent of Camarines
Sur was not a case of appointment. Her designation partook of the nature of
a reassignment from Iriga City, where she previously exercised her functions
as Officer-in-Charge-Schools Division Superintendent, to Camarines Sur.
Clearly, therefore, the requirement in Section 99 of the Local Government
Code of 1991 of prior consultation with the local school board, does not
apply. It only refers to appointments made by the Department of Education,
Culture and Sports. Such is the plain meaning of the said law.

Commission on Audit vs. Garcia (2001) – The salaries and personnel-related

benefits of the teachers appointed by the provincial school board of Cebu in
connection with the establishment and maintenance of extension classes, are
declared chargeable against the Special Education Fund of the province.
However, the expenses incurred by the provincial government for the college
scholarship grants should not be charged against the SEF, but against the
General Funds of the province of Cebu.

PART XV: THE LOCAL GOVERNMENT UNITS

Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus 98 | P a g e