RETHINKING THE UNITARY STATE: IS LOCAL AUTONOMY ENOUGH?

SIMULATION 1: PEACE NEGOTIATIONS 2010

THE PROVINCE OF NORTH COTABATO V GRP October 14, 2008; CARPIO MORALES
FACTS - The Government of the Republic of the Philippines (GRP) and the MILF, were scheduled to sign a Memorandum of Agreement on the Ancestral Domain (MOA-AD) Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001 in Kuala Lumpur, Malaysia. - The signing did not materialize. Upon motion of petitioners, Court issued a TRO enjoining the GRP from signing the same. Background - The MOA-AD was preceded by a long process of negotiation and the concluding of several prior agreements between the two parties beginning in 1996, when the GRP-MILF peace negotiations began - July 18, 1997: GRP and MILF Peace Panels signed the Agreement on General Cessation of Hostilities - August 27, 1998: signed the General Framework of Agreement of Intent - Towards the end of 1999 up to early 2000: MILF attacked a number of municipalities in Central Mindanao - March 2000, it took control of the town hall of Kauswagan, Lanao del Norte. Pres. Estrada declared and carried out an all-out-war against the MILF - When Pres. GMA assumed office, military offensive against MILF suspended and government sought resumption of peace talks - The MILF, responded with deep reservation, but when GMA asked the Government of Malaysia through Prime Minister Mahathir Mohammad to help convince the MILF to return to the negotiating table, the MILF convened its Central Committee to seriously discuss the matter and, eventually, decided to meet with the GRP - March 24, 2001: Parties met in Kuala Lumpur, signing the Agreement on the General Framework for the Resumption of Peace Talks Between the GRP and the MILF. The MILF thereafter suspended all its military actions. - June 20-22, 2001: Formal peace talks between the parties were held in Tripoli, Libya from, the outcome of which was the GRP-MILF Tripoli Agreement on Peace (Tripoli Agreement 2001) containing the basic principles and agenda on the following aspects of the negotiation: Security Aspect, Rehabilitation Aspect, and Ancestral Domain Aspect. - August 5-7, 2001: A second round of peace talks was held in Cyberjaya, Malaysia on which ended with the signing of the Implementing Guidelines on the Security Aspect of the Tripoli Agreement 2001 leading to a ceasefire status between the parties.

- May 7, 2002: Implementing Guidelines on the Humanitarian Rehabilitation and Development Aspects of the Tripoli Agreement 2001 signed at Putrajaya, Malaysia. - July 13, 2003: MILF Chairman Salamat Hashim passed away on and he was replaced by Al Haj Murad, who was then the chief peace negotiator of the MILF. Murads position as chief peace negotiator was taken over by Mohagher Iqbal. - 2005: several exploratory talks were held between the parties in Kuala Lumpur, eventually leading to the crafting of the draft MOA-AD in its final form, to be signed last August 5, 2008. Overview of the MOA-AD - MOA-AD identifies the Parties to it as the GRP and the MILF - Terms of Reference (TOR) 1. 4 earlier agreements between the GRP and MILF 2. 2 agreements between the GRP and the MNLF signed during the administration of Ramos. 3. 2 local statutes the organic act for the ARMM and the Indigenous Peoples Rights Act (IPRA) 4. several international law instruments the ILO Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent Countries in relation to the UN Declaration on the Rights of the Indigenous Peoples, and the UN Charter, among others. 5. Generic category of compact rights entrenchment emanating from the regime of dar-ul-muahada (or territory under compact) and dar-ul-sulh (or territory under peace agreement) that partakes the nature of a treaty device. These refer to countries which, though under a secular regime, maintained peaceful and cooperative relations with Muslim States, having been bound to each other by treaty or agreement - Main body of the MOA-AD divided into four strands: Concepts and Principles, Territory, Resources, and Governance 1. Concepts and Principles - begins with the statement that it is the birthright of all Moros and all Indigenous peoples of Mindanao to identify themselves and be accepted as Bangsamoros. - Bangsamoro people natives or original inhabitants of Mindanao and its adjacent islands including Palawan and the Sulu archipelago at the time of conquest or colonization, and their descendants whether mixed or of full blood, including their spouses. - Concept of Bangsamoro, includes not only Moros as traditionally understood even by Muslims, but all indigenous peoples of Mindanao and its adjacent islands - Bangsamoro homeland, the ownership of which is vested exclusively in the Bangsamoro people by virtue of their prior rights of occupation. Both parties to the MOA-AD acknowledge that ancestral domain does not form part of the public domain. - Acknowledges as having the right to self-governance grounded on the past suzerain authority of the sultanates. - Describes the Bangsamoro people as the First Nation with defined territory and with a system of government having entered into treaties of amity and commerce with foreign nations.

- Mentions for the first time the Bangsamoro Juridical Entity (BJE) to which it grants the authority and jurisdiction over the Ancestral Domain and Ancestral Lands of the Bangsamoro 2. Territory - Described as the land mass as well as the maritime, terrestrial, fluvial and alluvial domains, including the aerial domain and the atmospheric space above it, embracing the Mindanao-Sulu-Palawan geographic region. - Core of the BJE: present geographic area of the ARMM constituting the following areas: Lanao del Sur, Maguindanao, Sulu, Tawi-Tawi, Basilan, and Marawi City. Also includes certain municipalities of Lanao del Norte that voted for inclusion in the ARMM in the 2001 plebiscite. - Outside of this core, the BJE is to cover other provinces, cities, municipalities and barangays, which are grouped into two categories, Category A and Category B. - The Parties to the MOA-AD stipulate that the BJE shall have a. jurisdiction over all natural resources within its internal waters b. shall also have territorial waters and that within these territorial waters, the BJE and the Central Government shall exercise joint jurisdiction, authority and management over all natural resources. - Notably, the jurisdiction over the internal waters is not similarly described as joint. - MOA-AD provides for the sharing of minerals on the territorial waters between the Central Government and the BJE, in favor of the latter, through production sharing and economic cooperation agreement - There is no similar provision on the sharing of minerals and allowed activities with respect to the internal waters of the BJE. 3. Resources - MOA-AD states that the BJE is free to enter into: a. any economic cooperation and trade relations with foreign countries and shall have the option to establish trade missions in those countries. b. environmental cooperation agreements. - The external defense of the BJE is to remain the duty and obligation of the Central Government. - The Central Government is also bound to take necessary steps to ensure the BJEs participation in international meetings and events like those of the ASEAN and the specialized agencies of the UN. - The BJE is to be entitled to participate in Philippine official missions and delegations for the negotiation of border agreements or protocols for environmental protection and equitable sharing of incomes and revenues involving the bodies of water adjacent to or between the islands forming part of the ancestral domain. - With regard to the right of exploring for, producing, and obtaining all potential sources of energy, petroleum, fossil fuel, mineral oil and natural gas, the jurisdiction and control thereon is to be vested in the BJE as the party having control within its territorial jurisdiction. - The sharing between the Central Government and the BJE of total production pertaining to natural resources is to be 75:25 in favor of the BJE - The BJE may modify or cancel the forest concessions, timber licenses, contracts or agreements, mining concessions, Mineral Production and Sharing Agreements (MPSA), Industrial Forest Management Agreements (IFMA), and other land tenure instruments granted by the Philippine Government, including those issued by the present ARMM. 4. Governance

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- The MOA-AD binds the Parties to invite a multinational third-party to observe and monitor the implementation of the Comprehensive Compact. - MOA-AD describes the relationship of the Central Government and the BJE as associative, characterized by shared authority and responsibility. - States that the structure of governance is to be based on executive, legislative, judicial, and administrative institutions with defined powers and functions in the Comprehensive Compact. - The MOA-AD provides that its provisions requiring amendments to the existing legal framework shall take effect upon signing of the Comprehensive Compact and upon effecting the aforesaid amendments, with due regard to the non-derogation of prior agreements and within the stipulated timeframe to be contained in the Comprehensive Compact (much of the present controversy hangs on the legality of this provision) - BJE granted the power to build, develop and maintain its own institutions inclusive of civil service, electoral, financial and banking, education, legislation, legal, economic, police and internal security force, judicial system and correctional institutions - The penultimate paragraph of the MOA-AD identifies the signatories as the representatives of the Parties, meaning the GRP and MILF themselves, and not merely of the negotiating panels. ISSUES 1. WON the respondents violate constitutional and statutory provisions on public consultation and the right to information when they negotiated and later initialed the MOA-AD 2. WON the contents of the MOA-AD violate the Constitution and the laws 3. WON the signing of the MOA-AD alone would not have entailed any violation of law or grave abuse of discretion, precisely because it stipulates that the provisions thereof inconsistent with the laws shall not take effect until these laws are amended. 4. WON the President may exercise the power delegated to the GRP Peace Panel under E.O. No. 3, Sec. 4(a) HELD 1. YES. - The MOA-AD subject of the present cases is of public concern, involving as it does the sovereignty and territorial integrity of the State, which directly affects the lives of the public at large. - Matters of public concern covered by the right to information include steps and negotiations leading to the consummation of the contract. Court does not distinguish as to the executory nature or commercial character of agreements. - The policy of full public disclosure Section 28, Article II of the Constitution complements the right of access to information on matters of public concern found in the Bill of Rights. - An essential element of these freedoms is to keep open a continuing dialogue or process of communication between the government and the people. Envisioned to be corollary to the twin rights to information and disclosure is the design for feedback mechanisms. - The imperative of a public consultation, as a species of the right to information, is evident in the marching orders to respondents. - The mechanics for the duty to disclose information and to conduct public consultation regarding the peace agenda and process is manifestly provided by E.O. No. 3. - The preambulatory clause of E.O. No. 3 declares that there is a need to further enhance the contribution of civil society to the comprehensive peace process by institutionalizing the peoples participation.

- One of the three underlying principles of the comprehensive peace process is that it should be community-based, reflecting the sentiments, values and principles important to all Filipinos and shall be defined not by the government alone, nor by the different contending groups only, but by all Filipinos as one community. - Included as a component of the comprehensive peace process is consensus-building and empowerment for peace, which includes continuing consultations on both national and local levels to build consensus for a peace agenda and process, and the mobilization and facilitation of peoples participation in the peace process. - E.O. No. 3 enumerates the functions and responsibilities of the PAPP, one of which is to conduct regular dialogues with the National Peace Forum (NPF) and other peace partners to seek relevant information, comments, recommendations as well as to render appropriate and timely reports on the progress of the comprehensive peace process. E.O. No. 3 mandates the establishment of the NPF to be the principal forum for the PAPP to consult with and seek advice from the peace advocates, peace partners and concerned sectors of society on both national and local levels, on the implementation of the comprehensive peace process, as well as for government civil society dialogue and consensus-building on peace agenda and initiatives. - E.O. No. 3 establishes petitioners right to be consulted on the peace agenda, as a corollary to the constitutional right to information and disclosure. - PAPP Esperon committed grave abuse of discretion when he failed to carry out the pertinent consultation. The furtive process by which the MOAAD was designed and crafted runs contrary to and in excess of the legal authority, and amounts to a whimsical, capricious, oppressive, arbitrary and despotic exercise thereof. - The Court may not, of course, require the PAPP to conduct the consultation in a particular way or manner. It may, however, require him to comply with the law and discharge the functions within the authority granted by the President. - Petitioners assertion that the Local Government Code (LGC) of 1991 declares it a State policy to require all national agencies and offices to conduct periodic consultations with appropriate local government units, nongovernmental and people's organizations, and other concerned sectors of the community before any project or program is implemented in their respective jurisdictions is well-taken. - Lina, Jr. v. Hon. Pao: above-stated policy of the LGU apply only to national programs or projects which are to be implemented in a particular local community. Among the programs and projects covered are those that are critical to the environment and human ecology including those that may call for the eviction of a particular group of people residing in the locality where these will be implemented. - The MOA-AD is one peculiar program that unequivocally and unilaterally vests ownership of a vast territory to the Bangsamoro people, which could pervasively and drastically result to the diaspora or displacement of a great number of inhabitants from their total environment. - With respect to the indigenous cultural communities/indigenous peoples (ICCs/IPs), whose interests are are adversely affected by the MOA-AD, the ICCs/IPs have, under the IPRA, the right to participate fully at all levels of

decision-making in matters which may affect their rights, lives and destinies. - The MOA-AD, an instrument recognizing ancestral domain, failed to justify its non-compliance with the clear-cut mechanisms ordained in said Act, which entails, among other things, the observance of the free and prior informed consent of the ICCs/IPs. - IPRA does not grant the Executive Department or any government agency the power to delineate and recognize an ancestral domain claim by mere agreement or compromise. - In proceeding to make a sweeping declaration on ancestral domain, without complying with the IPRA, which is cited as one of the TOR of the MOA-AD, respondents clearly transcended the boundaries of their authority. 2. YES. - Court deemed it useful to turn first to a general idea that serves as a unifying link to the different provisions of the MOA-AD, namely, the international law concept of association. - Keitner and Reisman: an association is formed when two states of unequal power voluntarily establish durable links. In the basic model, one state, the associate, delegates certain responsibilities to the other, the principal, while maintaining its international status as a state. Free associations represent a middle ground between integration and independence. - In international practice, the associated state arrangement has usually been used as a transitional device of former colonies on their way to full independence. - MOA-AD contains many provisions which are consistent with the international legal concept of association, specifically the following: 1. the BJEs capacity to enter into economic and trade relations with foreign countries 2. the commitment of the Central Government to ensure the BJEs participation in meetings and events in the ASEAN and the specialized UN agencies, and the continuing responsibility of the Central Government over external defense 3. BJEs right to participate in Philippine official missions - These provisions of the MOA indicate, among other things, that the Parties aimed to vest in the BJE the status of an associated state or, at any rate, a status closely approximating it. !!!! The concept of association is not recognized Constitution under the present

- 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-ADs provisions, therefore, already requires for its validity the amendment of constitutional provisions, specifically the Sec 1 & 15 of Article 10.

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!!!! The BJE is a far more powerful entity than the autonomous region recognized in the Constitution - BJE is a state in all but name as it meets the criteria of a state laid down in the Montevideo Convention, 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. - Many of the specific provisions of the MOA-AD on the formation and powers of the BJE are in conflict with the Constitution and the laws. - Even assuming that BJE is covered by the term autonomous region in the Article X, Section 18 of the Constitution, the MOA-AD would still be in conflict with it. Under paragraph 2(c) on TERRITORY in relation to 2(d) and 2(e), the present geographic area of the ARMM and, in addition, the municipalities of Lanao del Norte which voted for inclusion in the ARMM during the 2001 plebiscite Baloi, Munai, Nunungan, Pantar, Tagoloan and Tangkal are automatically part of the BJE without need of another plebiscite, in contrast to the areas under Categories A and B mentioned earlier in the overview. That the present components of the ARMM and the above-mentioned municipalities voted for inclusion therein in 2001, however, does not render another plebiscite unnecessary under the Constitution, precisely because what these areas voted for then was their inclusion in the ARMM, not the BJE. - The MOA-AD, moreover, would not comply with Article X, Section 20 of the Constitution - Again on the premise that the BJE may be regarded as an autonomous region, the MOA-AD would require an amendment that would expand the above-quoted provision. The mere passage of new legislation pursuant to sub-paragraph No. 9 of said constitutional provision would not suffice, since any new law that might vest in the BJE the powers found in the MOA-AD must, itself, comply with other provisions of the Constitution. - Article II, Section 22 of the Constitution must also be amended if the scheme envisioned in the MOA-AD is to be effected. - An associative arrangement does not uphold national unity. While there may be a semblance of unity because of the associative ties between the BJE and the national government, the act of placing a portion of Philippine territory in a status which, in international practice, has generally been a preparation for independence, is certainly not conducive to national unity. - Besides being irreconcilable with the constitution, the MOA-AD is also inconsistent with prevailing statutory law, among which are R.A. No. 9054 or the Organic Act of the ARMM, and the IPRA. - Article X, Section 3 of the Organic Act of the ARMM is a bar to the adoption of the definition of Bangsamoro people used in the MOA-AD. - This use of the term Bangsamoro sharply contrasts with that found in the Article X, Section 3 of the Organic Act, which, rather than lumping together the identities of the Bangsamoro and other indigenous peoples living in Mindanao, clearly distinguishes between Bangsamoro people and Tribal peoples. - Respecting the IPRA, it lays down the prevailing procedure for the delineation and recognition of ancestral domains. The MOA-ADs manner

of delineating the ancestral domain of the Bangsamoro people is a clear departure from that procedure. - International law has long recognized the right to self-determination of peoples, understood not merely as the entire population of a State but also a portion thereof. - The peoples right to self-determination should not, however, be understood as extending to a unilateral right of secession. A distinction should be made between the right of internal and external selfdetermination. - REFERENCE RE SECESSION OF QUEBEC: (ii) Scope of the Right to Self-determination 126. The recognized sources of international law establish that the right to self-determination of a people is normally fulfilled through internal selfdetermination a peoples pursuit of its political, economic, social and cultural development within the framework of an existing state. A right to external self-determination (which in this case potentially takes the form of the assertion of a right to unilateral secession) arises in only the most extreme of cases and, even then, under carefully defined circumstances. External self-determination can be defined as in the following statement from the Declaration on Friendly Relations, supra, as The establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by a people constitute modes of implementing the right of selfdetermination by that people. - Indigenous peoples situated within states do not have a general right to independence or secession from those states under international law, but they do have rights amounting to what was discussed above as the right to internal self-determination. - UN General Assembly adopted the United Nations Declaration on the Rights of Indigenous Peoples (UN DRIP). The Declaration clearly recognized the right of indigenous peoples to self-determination, encompassing the right to autonomy or self-government. - Self-government, as used in international legal discourse pertaining to indigenous peoples, has been understood as equivalent to internal selfdetermination. - The UN DRIP do not strictly require the Republic to grant the Bangsamoro people, through the instrumentality of the BJE, the particular rights and powers provided for in the MOA-AD. Even the more specific provisions of the UN DRIP are general in scope, allowing for flexibility in its application by the different States. - There isno requirement in the UN DRIP that States now guarantee indigenous peoples their own police and internal security force. Nor is there in the UN DRIP an acknowledgement of the right of indigenous peoples to the aerial domain and atmospheric space. What it upholds, in Article 26 thereof, is the right of indigenous peoples to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired. - Moreover, the UN DRIP, while upholding the right of indigenous peoples to autonomy, does not obligate States to grant indigenous peoples the nearindependent status of an associated state.

- It is, therefore, clear that the MOA-AD contains numerous provisions that cannot be reconciled with the Constitution and the laws as presently worded. 3. NO. Indeed, the foregoing stipulation keeps many controversial provisions of the MOA-AD from coming into force until the necessary changes to the legal framework are effected. While the word Constitution is not mentioned in the provision now under consideration or anywhere else in the MOA-AD, the term legal framework is certainly broad enough to include the Constitution. - Notwithstanding the suspensive clause, however, respondents, by their mere act of incorporating in the MOA-AD the provisions thereof regarding the associative relationship between the BJE and the Central Government, have already violated the Memorandum of Instructions From The President dated March 1, 2001, which states that the negotiations shall be conducted in accordance with x x x the principles of the sovereignty and territorial integrity of the Republic of the Philippines. - Even apart from the above-mentioned Memorandum, however, the MOAAD is defective because the suspensive clause is invalid, as discussed below. - The authority of the GRP Peace Negotiating Panel to negotiate with the MILF is founded on E.O. No. 3, Section 5(c), which states that there shall be established Government Peace Negotiating Panels for negotiations with different rebel groups to be appointed by the President as her official emissaries to conduct negotiations, dialogues, and face-to-face discussions with rebel groups. - It bears noting that the GRP Peace Panel, in exploring lasting solutions to the Moro Problem through its negotiations with the MILF, was not restricted by E.O. No. 3 only to those options available under the laws as they presently stand. One of the components of a comprehensive peace process, which E.O. No. 3 collectively refers to as the Paths to Peace, is the pursuit of social, economic, and political reforms which may require new legislation or even constitutional amendments. - The MOA-AD, therefore, may reasonably be perceived as an attempt of respondents to address, pursuant to this provision of E.O. No. 3, the root causes of the armed conflict in Mindanao. The E.O. authorized them to think outside the box, so to speak. Hence, they negotiated and were set on signing the MOA-AD that included various social, economic, and political reforms which cannot, however, all be accommodated within the present legal framework, and which thus would require new legislation and constitutional amendments. 4. NO. The President cannot delegate a power that she herself does not possess. - Authority of the President to conduct peace negotiations with rebel groups is not explicitly mentioned in the Constitution does not mean that she has no such authority. - Presidents power to conduct peace negotiations is implicitly included in her powers as Chief Executive and Commander-in-Chief. As Chief Executive, the President has the general responsibility to promote public peace, and as Commander-in-Chief, she has the more specific duty to prevent and suppress rebellion and lawless violence.

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- The President may not, of course, unilaterally implement the solutions that she considers viable, but she may not be prevented from submitting them as recommendations to Congress, which could then, if it is minded, act upon them pursuant to the legal procedures for constitutional amendment and revision. - Since, under the present Constitution, the people also have the power to directly propose amendments through initiative and referendum, the President may also submit her recommendations to the people, not as a formal proposal to be voted on in a plebiscite. - It will be observed that the President has authority, as stated in her oath of office, only to preserve and defend the Constitution. Such presidential power does not, however, extend to allowing her to change the Constitution, but simply to recommend proposed amendments or revision. - Given the limited nature of the Presidents authority to propose constitutional amendments, she cannot guarantee to any third party that the required amendments will eventually be put in place, nor even be submitted to a plebiscite. The most she could do is submit these proposals as recommendations either to Congress or the people, in whom constituent powers are vested. - Paragraph 7 on Governance of the MOA-AD states, however, that all provisions thereof which cannot be reconciled with the present Constitution and laws shall come into force upon signing of a Comprehensive Compact and upon effecting the necessary changes to the legal framework. - This stipulation does not bear the marks of a suspensive condition defined in civil law as a future and uncertain event but of a term. It is not a question of whether the necessary changes to the legal framework will be effected, but when. That there is no uncertainty being contemplated is plain from what follows, for the paragraph goes on to state that the contemplated changes shall be with due regard to non derogation of prior agreements and within the stipulated timeframe to be contained in the Comprehensive Compact. - Plainly, stipulation-paragraph 7 on GOVERNANCE is inconsistent with the limits of the Presidents authority to propose constitutional amendments, it being a virtual guarantee that the Constitution and the laws of the Republic of the Philippines will certainly be adjusted to conform to all the consensus points found in the MOA-AD. Hence, it must be struck down as unconstitutional. - Concerns have been raised that the MOA-AD would have given rise to a binding international law obligation on the part of the Philippines to change its Constitution in conformity thereto, on the ground that it may be considered either as a binding agreement under international law, or a unilateral declaration of the Philippine government to the international community that it would grant to the Bangsamoro people all the concessions therein stated. Neither ground finds sufficient support in international law, however. - The MOA-AD, as earlier mentioned in the overview thereof, would have included foreign dignitaries as signatories. In addition, representatives of other nations were invited to witness its signing in Kuala Lumpur. These circumstances readily lead one to surmise that the MOA-AD would have had the status of a binding international agreement had it been signed. An examination of the prevailing principles in international law, however, leads to the contrary conclusion. - That the MOA-AD would have been signed by representatives of States and international organizations not parties to the Agreement would not have sufficed to vest in it a binding character under international law.

- In another vein, concern has been raised that the MOA-AD would amount to a unilateral declaration of the Philippine State, binding under international law, that it would comply with all the stipulations stated therein, with the result that it would have to amend its Constitution accordingly regardless of the true will of the people. Cited as authority for this view is Australia v. France, also known as the Nuclear Tests Case. - As gathered from the above-quoted ruling of the ICJ, public statements of a state representative may be construed as a unilateral declaration only when the following conditions are present: the statements were clearly addressed to the international community, the state intended to be bound to that community by its statements, and that not to give legal effect to those statements would be detrimental to the security of international intercourse. Plainly, unilateral declarations arise only in peculiar circumstances. - The limited applicability of the Nuclear Tests Case ruling was recognized in a later case decided by the ICJ entitled Burkina Faso v. Mali, also known as the Case Concerning the Frontier Dispute. Unlike in the Nuclear Tests Case, the ICJ held that the statement of Malis President was not a unilateral act with legal implications. It clarified that its ruling in the Nuclear Tests case rested on the peculiar circumstances surrounding the French declaration - Assessing the MOA-AD in light of the above criteria, it would not have amounted to a unilateral declaration on the part of the Philippine State to the international community. The Philippine panel did not draft the same with the clear intention of being bound thereby to the international community as a whole or to any State, but only to the MILF. While there were States and international organizations involved, one way or another, in the negotiation and projected signing of the MOA-AD, they participated merely as witnesses or, in the case of Malaysia, as facilitator. As held in the Lom Accord case, the mere fact that in addition to the parties to the conflict, the peace settlement is signed by representatives of states and international organizations does not mean that the agreement is internationalized so as to create obligations in international law. - Since the commitments in the MOA-AD were not addressed to States, not to give legal effect to such commitments would not be detrimental to the security of international intercourse to the trust and confidence essential in the relations among States. - The MOA-AD not being a document that can bind the Philippines under international law notwithstanding, respondents almost consummated act of guaranteeing amendments to the legal framework is, by itself, sufficient to constitute grave abuse of discretion. T - The grave abuse lies not in the fact that they considered, as a solution to the Moro Problem, the creation of a state within a state, but in their brazen willingness to guarantee that Congress and the sovereign Filipino people would give their imprimatur to their solution. Upholding such an act would amount to authorizing a usurpation of the constituent powers vested only in Congress, a Constitutional Convention, or the people themselves through the process of initiative, for the only way that the Executive can ensure the outcome of the amendment process is through an undue influence or interference with that process. - The sovereign people may, if it so desired, go to the extent of giving up a portion of its own territory to the Moros for the sake of peace, for it can change the Constitution in any it wants, so long as the change is not inconsistent with what, in international law, is known as Jus Cogens. Respondents, however, may not preempt it in that decision.

Disposition Respondents motion to dismiss is DENIED. The main and intervening petitions are GIVEN DUE COURSE and hereby GRANTED. The MOA-AD of the GRP-MILF Tripoli Agreement on Peace of 2001 is declared CONTRARY TO LAW AND THE CONSTITUTION

IV. THE LOCAL GOVERNMENT CODE: PRINCIPLES, POWERS AND RELATIONS Chapter I The Code Policy and Application Local Government Unit Defined
BASCO V PAGCOR Paras; 157 SCRA 52; G.R. No. 91649; May 14, 1991
NATURE Petition seeking to annul PAGCOR Charter [PD 1869] for being contrary to morals, public policy and order; monopolistic and tending toward "crony economy"; violative of the equal protection clause and local autonomy; as well as for running counter to the constitutionally enshrined state policies. FACTS -Section 13 par. (2) of P.D. 1869 exempts PAGCOR, as the franchise holder from paying any tax of any kind or form, income or otherwise, as well as fees, charges or levies of whatever nature, whether National or Local. -Petitioners contend, among others, that P.D. 1869 constitutes a waiver of the right of the City of Manila to impose taxes and legal fees; that the exemption clause in P.D. 1869 is violative of the principle of local autonomy1. HELD: Petitioners contention is without merit. (a) The City of Manila, being a mere Municipal corporation has no inherent right to impose taxes. Its power to tax therefore must always yield to a legislative act which is superior having been passed upon by the state itself which has the inherent power to tax. (b) The Charter of the City of Manila is subject to control by Congress. Municipal corporations are mere creatures of Congress. The latter has the power of control over Local governments. And if Congress can grant the

1 1987 Constitution, Article X (on Local Autonomy) provides: Sec. 5. Each local government unitPage 4 of 25 shall have the power to create its own source of revenue and to levy taxes, fees, and other charges subject to such guidelines and limitation as the congress may provide, consistent with the basic policy on local autonomy. Such taxes, fees and charges shall accrue exclusively to the local government.

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City of Manila the power to tax certain matters, it can also provide for exemptions or even take back the power. (c) The City of Manila's power to impose license fees on gambling, has long been revoked. As early as 1975, the power of local governments to regulate gambling thru the grant of franchise, licenses or permits was withdrawn by P.D. No. 771 and was vested exclusively on the National Government. (d) Local governments have no power to tax instrumentalities of the National Government. PAGCOR is a GOCC with an original charter, PD 1869. All of its shares of stocks are owned by the National Government. In addition to its corporate powers, it also exercises regulatory powers over gambling casinos. Being an instrumentality of the Government, PAGCOR should be and actually is exempt from local taxes. (e) The power of local government to impose taxes and fees is always subject to limitations which Congress may provide by law. Since PD 1869 remains an operative law until amended, repealed or revoked, its exemption clause remains as an exception to the exercise of the power of local governments to impose taxes and fees. It cannot therefore be violative but rather is consistent with the principle of local autonomy. -Besides, the principle of local autonomy under the 1987 Constitution simply means decentralization. It does not make local governments sovereign within the state or an "imperium in imperio." -Local Government has been described as a political subdivision of a nation or state which is constituted by law and has substantial control of local affairs. In a unitary system of government, such as the government under the Philippine Constitution, local governments can only be an intra sovereign subdivision of one sovereign nation, it cannot be an imperium in imperio. Local government in such a system can only mean a measure of decentralization of the function of government. -As to what state powers should be decentralized and what may be delegated to local government units remains a matter of policy, which concerns wisdom. It is therefore a political question. What is settled is that the matter of regulating, taxing or otherwise dealing with gambling is a State concern and hence, it is the sole prerogative of the State to retain it or delegate it to local governments. -As gambling is usually an offense against the State, legislative grant or express charter power is generally necessary to empower the local corporation to deal with the subject. . . . In the absence of express grant of power to enact, ordinance provisions on this subject which are inconsistent with the state laws are void. Disposition Petition is dismissed for lack of merit.

- 21 Oct 1987: Congressman Datu Guimid Matalam, Chairman of the Committee on Muslim Affairs of the House of Representatives, invited Mr. Xavier Razul, Pampook Speaker of Region XI, Zamboanga City and Limbona in his capacity as Speaker of the Assembly to discuss political developments and other issues affecting Regions IX and XII. - Consistent with the said invitation, Limbona sent a telegram to Acting Secretary Johnny Alimbuyao of the Assembly to wire all Assemblymen that there shall be no session in November because the committee hearing in Congress was a priority. Alimbuyao complied with the directive. - 2 Nov 1987: the Assembly held session in defiance of petitioner's advice. After declaring the presence of a quorum, the Speaker ProTempore was authorized to preside in the session. On Motion to declare the seat of the Speaker vacant, all Assemblymen in attendance voted in the affirmative, hence, the chair declared said seat of the Speaker vacant. - 19 Jan 1988: the Court received a resolution filed by the Sangguniang Pampook, "Expecting Limbona from membership of the Sangguniang Pampook Autonomous Region XII for: y paying the salaries of one Odin Abdula (who was already retired) without authority from the Assembly; y causing withdrawal of so much amount of cash from the Assembly resulting to the non-payment of the salaries and emoluments of some Assembly members (graft case); y filing a case before the Supreme Court against some members of the Assembly on question which should have been resolved within the confines of the Assembly, for which the respondents now submit that the petition had become "moot and academic." ISSUE(S) 1. WON the expulsion of the petitioner (pending litigation) has made the case moot and academic. 2. WON the so-called autonomous governments of Mindanao are subject to the jurisdiction of the national courts. HELD 1. NO Reasoning If the petitioner's expulsion was done purposely to make this petition moot and academic, and to preempt the Court, it will not make it academic. - On the ground of the immutable principle of due process alone, the expulsion in question is of no force and effect. There is no showing that the Sanggunian had conducted an investigation, and WON the petitioner had been heard in his defense, assuming that there was an investigation, or otherwise given the opportunity to do so. - According to the respondents, "[t]he Assemblymen, in a conciliatory gesture, wanted Limbona to come to Cotabato Cityso that their differences could be threshed out and settled." Certainly, that avowed wanting or desire to thresh out and settle, no matter how conciliatory it may be cannot be a substitute for the notice and hearing contemplated by law. - It cannot be said that Limbona was accorded any opportunity to rebut their accusations. As it stands, then, the charges now leveled amount to mere accusations that cannot warrant expulsion. - In addition, the resolution appears strongly to be a bare act of vendetta by the other Assemblymen against LIMBONA arising from what the former perceive to be obduracy on the part of the latter. - Access to judicial remedies is guaranteed by the Constitution, and unless the recourse amounts to malicious prosecution, no one may be punished for seeking redress in the courts.

Local Autonomy
LIMBONA V MANGELIN 170 SCRA 786 SARMIENTO; February 28, 1989
FACTS - Petitioner Sultan Alimbusar Limbona (Limbona) was appointed as a member of the Sangguniang Pampook, Regional Autonomous Government, Region XII, representing Lanao del Sur. - 12 Mar 1987: Limbona was elected Speaker of the Regional Legislative Assembly or Batasang Pampook (ASSEMBLY).

2. YES Ratio If the Sangguniang Pampook is autonomous, its acts are debatably beyond the domain of this Court in perhaps the same way the internal acts of the Congress are beyond its jurisdiction. But if it is autonomous under Art. X Sec. 15, it comes unarguably under the Courts jurisdiction. - The Court has jurisdiction. And it if can make an inquiry in the validity of the expulsion in question, with more reason can we review the petitioner's removal as Speaker. Reasoning - Under the 1987 Constitution [Article X], local government units enjoy autonomy in these two senses: Sec. 2. The territorial and political subdivisions shall enjoy local autonomy; OR See. 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. - 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. - The autonomous governments of Mindanao were organized in Regions IX and XII by Presidential Decree No. 1618 promulgated on July 25, 1979. Among other things, the Decree established "internal autonomy" in the two regions "[w]ithin the framework of the national sovereignty and territorial integrity of the Republic of the Philippines and its Constitution," with legislative and executive machinery to exercise the powers and responsibilities specified therein. - In relation to the central government, PD 1618 provides that "[t]he President shall have the power of general supervision and control over the Autonomous Regions - It requires the autonomous regional governments to "undertake all internal administrative matters for the respective regions," except to "act on matters which are within the jurisdiction and competence of the National Government." - Autonomy is either: y 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 y decentralization of power - involves an abdication of political power in the favor of local governments units declare to be autonomous . The autonomous government is free to chart its own destiny and shape its future with minimum intervention from central authorities. - The question of WON the grant of autonomy to Muslim Mindanao under the 1987 Constitution involves an effort to decentralize power rather than mere administration is a question foreign to this petition (Court did not resolve the said controversy). - 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

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"autonomy." On the other hand, an autonomous government of the former class [Art. X, Sec. 2] is, as we noted, under the supervision of the national government acting through the President (and the Department of Local Government). - The President shall have the power of general supervision and control over Autonomous Regions." In addition, the Sangguniang Pampook, their legislative arm, is made to discharge chiefly administrative services. DISPOSITION Petition is granted. The Sangguniang Pampook, Region XII, is enjoined to (1) REINSTATE Limbona as Member of Sangguniang Pampook, Region XII; and (2) REINSTATE him as Speaker thereof.

Local Autonomy - Not Self-executing provisions

GANZON V CA 200 SCRA 271 SARMIENTO, J.; April 5, 1991
NATURE Consolidation of 3 petitions, 2 by Ganzon which were dismissed by the CA, and 1 by Artieda which was certified by the CA to the Court FACTS - The petitioners are the Mayor of Iloilo City (Ganzon) and a member of the Sangguniang Panglunsod thereof (Artieda). Both were preventively suspended by the Secretary of Local Government upon a finding of probable grounds in administrative cases filed against them. Ganzons petition originated from ten administrative complaints filed against him by various city officials on various charges including abuse of authority, oppression, grave misconduct, disgraceful and immoral conduct, intimidation, culpable violation of the Constitution, and arbitrary detention (no mention of the charges against Artieda in the case). - The hearings were held in the office of the DILG in Iloilo City. Finding probable cause, respondent Secretary issued an order of preventive suspension for 60 days. Ganzon moved to postpone the proceedings several times for various reasons. He was denied, and failed to submit evidence on the date set by the court. The case was considered submitted for resolution. - A finding of probable cause was likewise made in the arbitrary detention case. Respondent Secretary issued a 2nd order of suspension for another 60 days. Ganzon filed a case for prohibition against the Secretary in the RTC and obtained a writ of preliminary injunction against the 2nd suspension. The Secretary issued a 3rd order of suspension for 60 days and appointed the Vice-Mayor as acting mayor. Ganzon filed another petition for prohibition in the CA. The CA dismissed both petitions and certified Artiedas petition to the Court. The SC issued a TRO against the decisions of the CA and consolidated the 3 cases. ISSUE/S 1. WON the President (acting through the Secretary of Local Government) can suspend and/or remove local officials

HELD 1. YES Ratio Under the Charter, "local autonomy" is not instantly self-executing, but subject to, among other things, the passage of a local government code, a local tax law, income distribution legislation, and a national representation law, and measures designed to realize autonomy at the local level. In spite of autonomy, the Constitution places the local government under the general supervision of the Executive. The Charter allows Congress to include in the local government code provisions for removal of local officials, which suggest that Congress may exercise removal powers, and as the existing Local Government Code has done, delegate its exercise to the President. Reasoning The Constitution did not intend to deprive the legislature of all authority over municipal corporations, in particular, concerning discipline. Autonomy does not contemplate making mini-states out of local government units. Autonomy, in the constitutional sense, is subject to the guiding star, though not control, of the legislature, albeit the legislative responsibility under the Constitution and as the "supervision clause" itself suggest-is to wean local government units from over-dependence on the central government. Disposition the petitions are DISMISSED. The Temporary Restraining Order issued is LIFTED. The suspensions of the petitioners are AFFIRMED.

Reasoning - The position of De la Cruz and Abena was that Larrazabal is neither a resident nor a registered voter of Kananga, Leyte as she claimed but a resident and registered voter of Ormoc City, a component city of the province of Leyte but independent of the province pursuant to Section 12, Article X of the Constitution thereby disqualifying her for the position of governor of Leyte. Larrazabal however, avers that the COMELEC decision is erroneous when it relied on the provisions of the Family Code to rule that the petitioner lacks the required residence to qualify her to run for the position of governor of Leyte. She opines that under "the Election Law, the matter of determination of the RESIDENCE is more on the principle of INTENTION, the animus revertendi rather than anything else. Mere absence from one's residence or origin-domicile-to pursue studies, engage in business, or practice his avocation, is not sufficient to constitute abandonment or loss of such residence.' ... The determination of a persons legal residence or domicile largely depends upon intention which may be inferred from his acts, activities and utterances. The party who claims that a person has abandoned or left his residence or origin must show and prove pre-ponderantly such abandonment or loss. In the instant case, there is no evidence to prove that the petitioner temporarily left her residence in Kananga, Leyte in 1975 to pursue any calling, profession or business. What is clear is that she established her residence in Ormoc City with her husband and considers herself a resident therein. The intention of animus revertendi not to abandon her residence in Kananga, Leyte therefor, is nor present. - Anent the issue of whether or not the petitioner is a registered voter of Kananga, the evidence shows that her supposed cancellation of registration in Ormoc City and transfer of registration in Kananga, Leyte, is not supported by the records. - Failing in her contention that she is a resident and registered voter of Kananga, Leyte, the petitioner poses an alternative position that her being a registered voter in Ormoc City was no impediment to her candidacy for the position of governor of the province of Leyte. Section 12, Article X of the Constitution provides: Cities that are highly urbanized, as determined by law, and component cities whose charters prohibit their voters from voting for provincial elective officials, shall be independent of the province. The voters of component cities within a province, whose charters contain no such prohibition, shall not be deprived of their right to vote for elective provincial officials. Section 89 of Republic Act No. 179 creating the City of Ormoc provides: Election of provincial governor and members of the Provincial Board of the members of the Provincial Board of the Province of Leyte The qualified voters of Ormoc City shall not be qualified and entitled to vote in the election of the provincial governor and the members of the provincial board of the Province of Leyte. Relating therefore, section 89 of R.A. 179 to section 12, Article X of the Constitution one comes up with the following conclusion: that Ormoc City when organized was not yet a highly-urbanned city but is, nevertheless, considered independent of the province of Leyte to which it is

Independent Component Cities

ABELLA V COMELEC
201 SCRA 253 GUTIERREZ; Sept 1, 1991 FACTS - Silvestre dela Cruz filed a petition with the COMELEC to disqualify petitioner Larrazabal from running as governor of Leyte on the ground that she misrepresented her residence in her certificate of candidacy as Kananga, Leyte. It was alleged that she was in fact a resident of Ormoc City like her husband who was earlier disqualified from running for the same office. - The COMELEC granted the petition. However, when the Commission granted the decision, Larrazabal was already proclaimed the Governor, hence, when she was disqualified, Abella, who gathered the second highest votes in the said area, sought to take his oath as governor of Kananga, Leyte. ISSUES 1.WON Larrazabal is disqualified from running for governor 2. WON the candidate who got the second highest vote may be proclaimed as governor when the candidate for such position was disqualified HELD 1. YES

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geographically attached because its charter prohibits its voters from voting for the provincial elective officials. The question now is whether or not the prohibition against the 'city's registered voters' electing the provincial officials necessarily mean, a prohibition of the registered voters to be elected as provincial officials. Section 12, Article X of the Constitution is explicit in that aside from highlyurbanized cities, component cities whose charters prohibit their voters from voting for provincial elective officials are independent of the province. In the same provision, it provides for other component cities within a province whose charters do not provide a similar prohibition. Necessarily, component cities like Ormoc City whose charters prohibit their voters from voting for provincial elective officials are treated like highly urbanized cities which are outside the supervisory power of the province to which they are geographically attached. This independence from the province carries with it the prohibition or mandate directed to their registered voters not to vote and be voted for the provincial elective offices 2. NO Reasoning The Supreme Court held that while it is true that SPC No. 88546 was originally a petition to deny due course to the certificate of candidacy of Larrazabal and was filed before Larrazabal could be proclaimed, the fact remains that the local elections of February 1, 1988 in the province of Leyte proceeded with Larrazabal considered as a bona fide candidate. The voters of the province voted for her in the sincere belief that she was a qualified candidate for the position of governor. Her votes were counted and she obtained the highest number of votes. The net effect is that the petitioner lost in the election. He was repudiated by the electorate.

However, 3 months after, on 20 June 1975, spouses Sucaldito wrote Labad informing them that they desired to repurchase the lots. The spouses requested for a reply from within 5 days from their receipt of the letter for otherwise, they would be constrained to file a court action for reconveyance. Labad sent a reply on July 2 but it was not received by the spouses. Thus, on July 10 the spouses brought an action for reconveyance before the RTC of Davao del Sur The trial court ruled in favor of the spouses, declaring that it had the right to repurchase the lots within 30 days from the date the decision becomes final. CA reversed on the ground of lack of offer on the part of the spouses to repurchase. An MFR was filed. CA granted the MFR and affirmed the decision of the RTC. Labad filed a MFR which was denied. They filed a petition for certiorari, the court dismissed the petition. Their MFR were denied as well with finality. The spouses nn 13 July 1983 again wrote Labad of their desire to repurchase the lands. Labad replied by saying that the spouses right to repurchase had terminated on 19 September 1982, and, at the latest, on 7 January 1983. ISSUE: WON spouses Sucaldito had the right to repurchase the lot. HELD YES. The RTC ruled that the period to be followed for the petitioners to exercise their right of redemption is the period specified in the decision of the trial court and not the period provided in Sec. 119 of CA 141. However, Sec. 119, Commonwealth Act No. 141 (the Public Land Act) provides that very conveyance of land acquired under the free patent or homestead provisions, when proper, shall be subject to repurchase by the applicant, his widow or legal heirs, within a period of five years from the date of the conveyance. The spouses sold the land on 14 March 1972 which had been acquired by the spouses under Commonwealth Act No. 141, by way of free patent. The spouses expressed their desire to repurchase on 20 June 1975. As no reply was received by them regarding their offer to repurchase, they were prompted to file an action for reconveyance on 10 July 1975. It appears that petitioners have sufficiently complied with the requirements thus qualifying them to avail of the rule that land acquired by free or homestead patent under

Commonwealth Act No. 141 and later sold, may be repurchased within 5 years from the date of conveyance. The RTC in its 14 October 1976 decision, erred in ruling that the spouses had the right to repurchase but only within 30 days from the date the aforesaid decision became final. The right to repurchase being granted by law (Sec. 119, Commonwealth Act No. 141), no other legal restriction could be added thereto. To hold otherwise would sanction judicial legislation. Stated differently, the RTC amended what is expressly provided for in the law. And, while the law speaks of five (5) years from the date of conveyance within which to exercise the right to repurchase, the filing by spouses of the action for reconveyance on 10 July 1975 suspended the running of the redemption period and to have kept them within the protective mantle of Sec. 119 of Commonwealth Act No. 141. Disposition WHEREFORE, the present petition is GRANTED.

Customs and Tradition as Aid

YAO KEE V. SY-GONZALES G.R. No. L-55960 CORTES; November 24, 1988
FACTS Sy Kiat, a Chinese national died leaving behind real and personal properties in Phils. Sy-Gonzales et al (respondents), alleged children, filed a petition for the grant of letters of administration. This was opposed by (petitioners) YaoKee at al, alleging that Yao Kee is the legal wife of deceased, and the children of Yao Kee are their legitimate children. Probate court held in favor of Yao Kee et al. CA modified acknowledging respondents as natural children of Sy Kiat and held that marriage of Yao Kee and Sy Kiat has not been legally proven. Hence, this petition. ISSUE WON the marriage of Yao Kee with deceased was correctly proven HELD NO. - Petitioners argue that the marriage of Sy Kiat to Yao Kee in accordance with Chinese law and custom was conclusively proven. To buttress this argument they rely on testimonial and documentary evidence. Such evidence may very well prove the fact of marriage between Yao Kee and Sy Kiat. However, the same do not suffice to establish the validity of said marriage in accordance with Chinese law or custom - Custom is defined as "a rule of conduct formed by repetition of acts, uniformly observed (practiced) as a social rule, legally binding and obligatory" The law requires that "a custom must be proved as a fact,

General Interpretation
SUCALDITO VS MONTEJO (LABAD) G.R. No. 75080 PADILLA ; February 6, 1991 Nature Petition for review on certiorari seeking to annul and set aside the resolutions of the RTC, Davao del and to allow petitioners to repurchase the lots in question and vest upon them ownership thereof. Facts Sucaldito spouses were grantees, by way of free patent, of 2 parcels of public agricultural land. Both lots are situated in Davao del Sur. On 14 March 1972, the spouses then sold the lots to Labad. Labad took possession of the lots, fenced the area and planted trees thereon, harrowed the soil, and cultivated the lands.

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according to the rules of evidence" [A12CC.] On this score the Court had occasion to state that "a local custom as a source of right can not be considered by a court of justice unless such custom is properly established by competent evidence like any other fact" The same evidence, if not one of a higher degree, should be required of a foreign custom. - A71 CC provides that to establish a valid foreign marriage two things must be proven, namely: (1) the existence of the foreign law as a question of fact; and (2) the alleged foreign marriage by convincing evidence - In the case at bar petitioners did not present any competent evidence relative to the law and custom of China on marriage. The testimonies of Yao and Gan Ching cannot be considered as proof of China's law or custom on marriage not only because they are self-serving evidence, but more importantly, there is no showing that they are competent to testify on the subject matter. For failure to prove the foreign law or custom, and consequently, the validity of the marriage in accordance with said law or custom, the marriage between Yao Kee and Sy Kiat cannot be recognized in this jurisdiction. - Petitioners contend that contrary to the Court of Appeals' ruling they are not duty bound to prove the Chinese law on marriage as judicial notice thereof had been taken by this Court in the case of Sy Joc Lieng v. Sy Quia. This contention is erroneous. Well-established in this jurisdiction is the principle that Philippine courts cannot take judicial notice of foreign laws. They must be alleged and proved as any other fact And in this case, they were not able to prove it as under Rule 132.25of ROC DISPOSITION: CA decision affirmed.

BADUA v CORDILLERA BODONG ADMINISTRATION 194 SCRA 101 J; February 14, 1991
FACTS: -Spouses Leonor and Rosa Badua allegedly own farm land from which they were forcibly ejected through the decision of the Cordillera Bodong Administration, in the case entitled David Quema v. Leonor Badua. -The background of this case reveals that David Quema owns the parcels of land evidenced by Tax Declarations 4997 and 4998. The parcels of land were mortgaged to Dr. Erotida Valera. Twenty-two (22) years later, he was able to redeem the parcels of land through payment of 10,000 to the vendor's heir, Jessie Macaraeg. On the other hand, Rosa Badua, alleged that the land was sold to her by Dra. Erotida Valera when she was still alive. However, Rosa could not produce the deed of sale because it is allegedly in the possession of Vice-Governor Benesa. -Quema was prevented from tilling the land by Rosa Badua. Prompted by such turn of events, David Quema filed a case in the Baranggay Council but failed to have the dispute settled. A judge advised Quema to file his case in the provincial courts. However, Quema did not, and filed it in the tribal court of the Maeng Tribe. -The Maeng Tribe Council decided that the land was to belong to Quema and ordered Badua to vacate the land. However, Badua and wife failed to vacate such land. Thus they received threats from the Cordillera Peoples Liberation Army. Fearful of his life, Leonor Badua went into hiding but his wife was arrested by the CPLA. -Spouses Badua filed a petition for specialrelief, with the following to be settled:

a. That the respondents be enjoined from enforcing the decision of the tribal court in the pending case. b. The respondents be prohibited from usurping judicial power. c. That the legal personality of the Cordillera Bodong Administration be clarified. The Baduas also allege that they were denied due process (or hearing) and that the tribal court has NO jurisdiction over the case, since neither they nor the respondent are members of the Maeng tribe. -Respondents alleged that: the Maeng Tribe is a cultural minority group of Tingguians inhabiting the interior mountain town of Villaviciosa, Abra. The tribe is a part of the Cordillera Bodong Association or Administration whose military arm is the Cordillera People's Liberation Army. The tribal court is composed of prominent and respected residents in the locality. It decides and settles all kinds of disputes more speedily than the regular courts, without the intervention of lawyers. -The respondents contend that the SC has no jurisdiction over the case since the tribal court is NOT a part of the judicial system. ISSUE: Whether the tribal court has jurisdiction over the case. HELD: No. -In Cordillera Regional Assembly Member Alexander P. Ordillo, et al. vs. The Commission on Elections, the Court en banc, found that in the plebiscite that was held on January 23, 1990 pursuant to Republic Act 6766, the creation of the Cordillera Autonomous Region was rejected by all the provinces and cities of the Cordillera region, except Ifugao province, hence, the Cordillera Autonomous Region did not come to be. - As a logical consequence of that judicial declaration, the Cordillera Bodong Administration, the indigenous and special courts for the indigenous cultural communities of the Cordillera region, and the Cordillera People's Liberation Army as a regional police force or a regional command of the Armed Forces of the Philippines, do not legally exist. - Since the Cordillera Autonomous Region did not come into legal existence, the Maeng Tribal Court was not constituted into an indigenous or special court under R.A. No. 6766. Hence, the Maeng Tribal Court is an ordinary tribal court existing under the customs and traditions of an indigenous cultural community. -Tribal courts are not a part of the Philippine judicial system which consists of the Supreme Court and the lower courts which have been established by law (Sec.1, Art. VIII, 1987 Constitution). They do not possess judicial power. The decisions of a tribal court based on compromise or arbitration, as provided in P.D. 1508, may be enforced or set aside, in and through the regular courts today.

petitioners MFR. The assailed Resolution denied due course to the certificate of candidacy of Latasa, declaring him disqualified to run for mayor of Digos City, Davao del Sur in the May 14, 2001 elections, ordering that all votes cast in his favor shall not be counted, and if he has been proclaimed winner, declaring said proclamation null and void. FACTS - Petitioner was elected mayor of the Municipality of Digos, Davao del Sur in the 92, 95, and 98 elections. During his 3rd term, the Municipality of Digos was declared a component city, to be known as the City of Digos. A plebiscite on Sep 8, 2000 ratified RA 8798 entitled, An Act Converting the Municipality of Digos, Davao del Sur Province into a Component City to be known as the City of Digos or the Charter of the City of Digos. This event also marked the end of petitioners tenure as mayor of the Municipality of Digos. However, under Sec 53, Art IX of the Charter, petitioner was mandated to serve in a hold-over capacity as mayor of the new City of Digos. Hence, he took his oath as city mayor. - Feb 28, 2001: petitioner filed his certificate of candidacy for city mayor for the 2001 elections. He stated therein that he is eligible therefor, and likewise disclosed that he had already served for 3 consecutive terms as mayor of the Municipality of Digos and is now running for the 1st time for the position of city mayor. - Mar 1, 2001: private respondent Sunga, also a candidate for city mayor in the said elections, filed before COMELEC a Petition to Deny Due Course, Cancel Certificate of Candidacy and/or For Disqualification against Latasa. Sunga alleged that petitioner falsely represented in his certificate of candidacy that he is eligible to run as mayor of Digos City since petitioner had already been elected and served for 3 consecutive terms as mayor (922001.) - Mar 5, 2001: petitioner filed his Answer, arguing that he did not make any false representation in his certificate of candidacy since he fully disclosed therein that he had served as mayor of the Municipality of Digos for 3 consecutive terms. Moreover, he argued that this doesnt bar him from filing a certificate of candidacy for the 2001 elections since this will be his 1st time to run for city mayor. - Both parties submitted their position papers on Mar 19, 2001. - Apr 27, 2001: respondent COMELECs 1st Division issued a Resolution cancelling respondents certificate of candidacy violating the 3-term rule proscribed by the 1987 Consti and the Local Government Code of 1991. - Petitioner filed his MFR dated May 4, 2001, which remained unacted upon until the day of the elections, May 14, 2001. On May 16, 2001, Sunga filed an Ex Parte Motion for Issuance of TRO Enjoining the City Board of Canvassers From Canvassing or Tabulating Latasas Votes, and From Proclaiming Him as the Duly Elected Mayor if He Wins the Elections. Despite this, however, Latasa was still proclaimed winner on May 17, 2001, having garnered the most number of votes. Consequently, Sunga filed, on May 27, 2001, a Supplemental Motion which essentially sought the annulment of petitioners proclamation and the suspension of its effects. - July 1, 2001: petitioner was sworn into and assumed his office as the newly elected mayor of Digos City. It was only on August 27, 2002 that the COMELEC en banc issued a Resolution denying Latasas MFR. ISSUES 1. WON petitioner Latasa is eligible to run as candidate for mayor of the newly-created City of Digos immediately after he served for 3 consecutive terms as mayor of the Municipality of Digos.

Chapter 2 General Powers and Attributes of LGUs Creation of LGUs

LATASA V COMELEC
417 SCRA 601 AZCUNA; Dec 10, 2003 NATURE Certiorari (Rule 65) challenging resolution issued by 1st Division of COMELEC (April 27, 2001, SPA Case No. 01-059, Romeo Sunga v Arsenio Latasa) and the Resolution of COMELEC en banc denying herein

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HELD 1. NO. Ratio As a rule, in a representative democracy, the people should be allowed freely to choose those who will govern them. Article X, Section 8 of the Constitution is an exception to this rule, in that it limits the range of choice of the people. 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. Reasoning History of this provision reveals that the members of the Consti Commission were as much concerned with preserving the freedom of choice of the people as they were with preventing the monopolization of political power. In fact, they rejected a proposal set forth by Commissioner Edmundo Garcia that after serving 3 consecutive terms or 9 years, there should be no further re-election for local and legislative officials. The members, instead, adopted the alternative proposal of Commissioner Christian Monsod that such officials be simply barred from running for the same position in the succeeding election following the expiration of the 3rd consecutive term. An elective local official, therefore, is not barred from running again in for same local government post, unless 2 conditions concur: 1.) that the official concerned has been elected for 3 consecutive terms to the same local government post, and 2.) that he has fully served 3 consecutive terms. In the present case, petitioner doesnt deny that he has already served 3 consecutive terms as municipal mayor. However he asserts that when Digos was converted from a municipality to a city, it attained a different juridical personality. Therefore, when he filed his certificate of candidacy for city mayor, he cannot be construed as vying for the same local government post. For a municipality to be converted into a city, the Local Government Code provides: SECTION 450. Requisites for Creation. - (a) A municipality or a cluster of barangays may be converted into a component city it has an average annual income, as certified by the Department of Finance, of at least Twenty million pesos (20,000,000.00) for the last two (2) consecutive years based on 1991 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. Provided, That, the creation thereof shall not reduce the land area, population, and income of the original unit or units at the time of said creation to less than the minimum requirements prescribed herein. (b) The territorial jurisdiction of a newly-created city shall be properly identified by metes and bounds. The requirement on land are shall not apply where the city proposed to be created is composed of one (1) or more island. The territory need not be contiguous if it comprises two (2) or more islands. (c) The average annual income shall include the income accruing to the general fund, exclusive of special funds, transfers, and non-recurring income.

Substantial differences do exist between a municipality and a city. For one, there is a material change in the political and economic rights of the local govt unit when it is converted from a municipality to a city and undoubtedly, these changes affect the people as well. It is precisely for this reason why Section 10, Article X of the Constitution mandates that no province, city, municipality, or barangay may be created, divided, merged, abolished, or its boundary substantially altered, without the approval by a majority of the votes cast in a plebiscite in the political units directly affected. As may be gleaned from the Local Govt Code, the creation or conversion of a local govt unit is done mainly to help assure its economic viability. Such creation or conversion is based on verified indicators: Section 7. Creation and Conversion. --- As a general rule, the creation of a local government unit or its conversion from one level to another shall be based on verifiable indicators or viability and projected capacity to provide services, to wit: (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; (b) Population. --- It shall be determined as the total number of inhabitants within the territorial jurisdiction of the local government unit concerned; and (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 the Department of Environment and Natural Resources (DENR). On the other hand, the Charter of the City of Digos provides: Section 2. The City of Digos --- The Municipality of Digos shall be converted into a component city to be known as the City of Digos, hereinafter referred to as the City, which shall comprise the present territory of the Municipality of Digos, Davao del Sur Province. The territorial jurisdiction of the City shall be within the present metes and bounds of the Municipality of Digos. x x x Section 53. Officials of the City of Digos. --- The present elective officials of the Municipality of Digos shall continue to exercise their powers and functions until such a time that a new election is held and the duly-elected officials shall have already qualified and assumed their offices. x x x. As seen in these provisions, SC notes that the delineation of the metes and bounds of the City of Digos did not change even by an inch the land area previously covered by the Municipality of Digos. SC also notes that the elective officials of the Municipality of Digos continued to exercise their powers and functions until elections were held for the new city officials. True, the new city acquired a new corporate existence separate and distinct from that of the municipality. This does not mean, however, that for the purpose of applying the subject Consti provision, the office of the municipal mayor would now be construed as a different local government post as that of the office of the city mayor. As stated earlier, the territorial jurisdiction of the City of Digos is the same as the municipalitys. Consequently, the inhabitants of the municipality are the same as those in the city. These inhabitants are the same group of voters who elected Latasa to be their municipal mayor for 3 consecutive terms. These are also the same

inhabitants over whom he held power and authority as their chief executive for 9 years. SC reiterates that the framers of the Constitution specifically included an exception to the peoples freedom to choose those who will govern them in order to avoid the evil of a single person accumulating excessive power over a particular territorial jurisdiction as a result of a prolonged stay in the same office. To allow petitioner to vie for the position of city mayor after having served for 3 consecutive terms as municipal mayor would obviously defeat the very intent of the framers when they wrote this exception. Should he be allowed another 3 consecutive terms as mayor of the City of Digos, petitioner would then be possibly holding office as chief executive over the same territorial jurisdiction and inhabitants for a total of 18 consecutive years. This is the very scenario sought to be avoided by the Consti, if not abhorred by it. Finally, respondent Sunga claims that applying the principle in Labo v. COMELEC, he should be deemed the mayoralty candidate with the highest number of votes. On the contrary, this Court held in Labo that the disqualification of a winning candidate does not necessarily entitle the candidate with the highest number of votes to proclamation as the winner of the elections. In any event, a permanent vacancy in the contested office is thereby created which should be filled by succession. Disposition WHEREFORE, the petition is DISMISSED. No pronouncement as to costs.

Creation of Cordillera Administrative Region

CORDILLERA BROAD COALITION V COA 114 SCRA 261 CORTES; May 31, 1982
FACTS - Consolidated petitions assailing the constitutionality of EO 220, which created the Cordilllera Administrative region, on the ground that it pre-empts the enactment of an organic act by the Congress and the creation of the autonomous region in the Cordilleras conditional on the approval of the act through a plebiscite - Constitution, Article X, on the creation of autonomous regions2

2 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. SEC. 16. The President shall exercise general supervision over autonomous regions to ensure that laws are faithfully executed. Sec. 17. All powers, functions, and responsibilities not granted Constitution or by law to the autonomous regions shall be vested in the National Government.

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- Executive Order No. 220, issued by the President in the exercise of her legislative powers under Art. XVIII, sec. 6 of the 1987 Constitution, created the Cordillera Administrative Region (CAR) , which covers the provinces of Abra, Benguet, Ifugao, Kalinga-Apayao and Mountain Province and the City of Baguio. It was created to accelerate economic and social growth in the

Sec. 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 multi-sectoral bodies. The organic act shall define the basic structure of government for the region consisting of the executive department and legislative assembly, both of which shall be elective and representative of the constituent political units. The organic acts shall likewise provide for special courts with personal, family and property law jurisdiction consistent with the provisions of this Constitution and national laws. 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. Sec. 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. Sec. 20. Within its territorial jurisdiction and subject to the provisions of this Constitution and national laws, the organic act of autonomous regions shall provide for legislative powers over: (1) Administrative organization; (2) Creation of sources of revenues; (3) Ancestral domain and natural resources; (4) Personal, family and property relations; (5) Regional urban and rural planning development; (6) Economic, social and tourism development ; (7) Educational policies; (8) Preservation and development of the cultural heritage; and (9) Such other matters as may be authorized by law for the promotion of the general welfare of the people of the region. Sec. 21. The preservation of peace and order within the regions shall be the responsibility of the local police agencies which shall be organized, maintained, supervised, and utilized in accordance with applicable laws. The defense and security of the regions shall be the responsibility of the National Government.

region and to prepare for the establishment of the autonomous region in the Cordilleras. Its main function is to coordinate the planning and implementation of programs and services in the region, particularly, to coordinate with the local government units as well as with the executive departments of the National Government in the supervision of field offices and in identifying, planning, monitoring, and accepting projects and activities in the region. It shall also monitor the implementation of all ongoing national and local government projects in the region. The CAR shall have a Cordillera Regional Assembly as a policy-formulating body and a Cordillera Executive Board as an implementing arm. The CAR and the Assembly and Executive Board shall exist until such time as the autonomous regional government is established and organized. ISSUES WON the President has virtually pre-empted Congress from its mandated task of enacting an organic act and created an autonomous region in the Cordilleras HELD NO - EO 220 does not create the autonomous region contemplated in the Constitution. It merely provides for transitory measures in anticipation of the enactment of an organic act and the creation of an autonomous region. In short, it prepares the ground for autonomy. - The Constitution outlines a complex procedure for the creation of an autonomous region in the Cordilleras. A regional consultative commission shall first be created. The President shall then appoint the members of a regional consultative commission from a list of nominees from multi-sectoral bodies. The commission shall assist the Congress in preparing the organic act for the autonomous region. The organic act shall be passed by the first Congress under the 1987 Constitution within eighteen months from the time of its organization and enacted into law. Thereafter there shall be held a plebiscite for the approval of the organic act [Art. X, sec. 18]. Only then, after its approval in the plebiscite, shall the autonomous region be created. - The President, in 1987 still exercising legislative powers, as the first Congress had not yet convened, saw it fit to provide for some measures to address the urgent needs of the Cordilleras in the meantime that the organic act had not yet been passed and the autonomous region created, measures we find in E.O. No. 220. -the CAR may be considered more than anything else as a regional coordinating agency of the National Government, similar to the regional development councils which the President may create under the Constitution [Art. X, sec. 14]. These councils are "composed of local government officials, regional heads of departments and other government offices, and representatives from non-governmental organizations within the region 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." In this wise, the CAR may be considered as a more sophisticated version of the regional development council.

- Petitioners failed to show how the creation of the CAR has actually diminished the local autonomy of the covered provinces and city. It cannot be overemphasized that pure speculation and a resort to probabilities are insufficient to cause the invalidation of E.O. No. 220. Dispositive Petition dismissed for lack of merit

Power to Create LGUs

MUNICIPALITY OF KAPALONG v. Judge MOYA 166 SCRA 70 PARAS; September 29, 1988
NATURE Petition for certiorari and prohibition with preliminary injunction seeking the reversal of the order of the then CFI of Davao denying petitioners motion to dismiss. FACTS - From portions of the Municipality of Kapalong, Pres. Carlos P. Garcia created the Municipality of Santo Tomas which now asserts jurisdiction over 8 barrios of the former. On several occasions, this conflict of boundaries between the two municipalities was brought, at the instance of respondent, Municipality of Sto. Tomas, to the Provincial Board of Davao. However, no action was taken. - Respondent then filed a complaint with the then CFI of Davao, presided over by Judge Felix L. Moya against the Municipality of Kapalong, for settlement of the municipal boundary dispute, recovery of collected taxes and damages. - The Municipality of Kapalong filed its Answer and later also filed a Motion to Dismiss on the ground of lack of jurisdiction of the lower court and lack of legal personality of the Municipality of Santo Tomas. Judge Moya denied the motion to dismiss and the 2 MFRs. Hence, this petition. ISSUE WON the Municipality of Santo Tomas legally exists. HELD NO. Reasoning Rule 3, Section 1 of the ROC provides that only "entities authorized by law may be parties in a civil action." As ruled in Pelaez vs Auditor General, the President has no power to create a municipality. Since the Municipality of Sto. Tomas has no legal personality, it can not be a party to any civil action, and as such, Judge Moya should have dismissed the case, since further proceedings would be pointless. Disposition Petition is GRANTED. Orders of respondent Judge are SET ASIDE and the Civil Case is DISMISSED. The restraining order previously issued by this Court is made permanent.

PELAEZ v AUDITOR GENERAL

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15 SCRA 569 CONCEPCION; December 24, 1965

NATURE Special civil action, for a writ of prohibition with preliminary injunction FACTS - Pres. Marcos, purporting to act pursuant to Sec 68 of the Revised Admin Code, issued EOs. 93-121, 124 and 126 to 129 creating 33 municipalities. - Pelaez, as VP and as taxpayer, instituted the present action to restrain the Auditor General, as well as his representatives and agents, from passing in audit any expenditure of public funds in implementation of said EOs and/or any disbursement by said municipalities. - Grounds invoked for nullity of EOs: (1) Sec 68 has been impliedly repealed by RA 2370 and (2) undue delegation of legislative power. - Sec 3 of RA 2370 reads: Barrios shall not be created or their boundaries altered nor their names changed except under the provisions of this Act or by Act of Congress. Thus, a new barrio may be created or the name of an existing one may be changed by the provincial board of the province, upon recommendation of the council of the municipality or municipalities in which the proposed barrio is stipulated. The recommendation of the municipal council shall be embodied in a resolution approved by at least 2/3 of the entire membership of the said council: Provided, however, That no new barrio may be created if its population is less than 500 persons. -Sec 68 of the Revised Administrative Code, upon which the disputed executive orders are based, provides: The President of the Philippines may by executive order define the boundary, or boundaries, of any province, subprovince, municipality, [township] municipal district, or other political subdivision, and increase or diminish the territory comprised therein, may divide any province into one or more subprovinces, separate any political division other than a province, into such portions as may be required, merge any of such subdivisions or portions with another, name any new subdivision so created, and may change the seat of government within any subdivision to such place therein as the public welfare may require: Provided, That the authorization of the Congress of the Philippines shall first be obtained whenever the boundary of any province or subprovince is to be defined or any province is to be divided into one or more subprovinces. When action by the President of the Philippines in accordance herewith makes necessary a change of the territory under the jurisdiction of any administrative officer or any judicial officer, the President of the Philippines, with the recommendation and advice of the head of the Department having executive control of such officer, shall redistrict the territory of the several officers affected and assign such officers to the new districts so formed ISSUES 1. WON the President has the power to create municipalities 2. WON there is undue delegation of powers HELD 1. NO. The statutory denial of the presidential authority to create a new barrio implies a negation of the bigger power to create municipalities, each of which consists of several barrios. It cannot be offset except by a clear manifestation of the intent of Congress to the contrary, and no such

manifestation, subsequent to the passage of RA. 2379, has been brought to our attention. 2. YES Ratio Although Congress may delegate to another branch of the Government the power to fill in the details in the execution, enforcement or administration of a law, it is essential, to forestall a violation of the principle of separation of powers, that said law: (a) be complete in itself it must set forth therein the policy to be executed, carried out or implemented by the delegate and (b) fix a standard the limits of which are sufficiently determinate or determinable to which the delegate must conform in the performance of his functions. Reasoning - Without a statutory declaration of policy, the delegate would in effect, make or formulate such policy, which is the essence of every law; and, without the aforementioned standard, there would be no means to determine, with reasonable certainty, whether the delegate has acted within or beyond the scope of his authority. - Sec 68 of the Revised Admin Code does not meet these well settled requirements for a valid delegation of the power to fix the details in the enforcement of a law. It does not enunciate any policy to be carried out or implemented by the President. Neither does it give a standard sufficiently precise to avoid the evil effects referred to. - The phrase "as the public welfare may require" in Sec 68 qualified, not the clauses preceding the one just quoted, but only the place to which the seat of the government may be transferred. This fact becomes more apparent when we consider that said Sec 68 was originally Sec 1 of Act No. 1748, which provided that, "whenever in the judgment of the Governor-General the public welfare requires, he may, by executive order," effect the changes enumerated therein (as in said section 68), including the change of the seat of the government "to such place ... as the public interest requires." The opening statement of said Sec 1 of Act No. 1748 which was not included in Sec 68 of the Revised Admin Code governed the time at which, or the conditions under which, the powers therein conferred could be exercised; whereas the last part of the first sentence of said section referred exclusively to the place to which the seat of the government was to be transferred. - The conclusion would be the same even if we assumed that the phrase "as the public welfare may require," qualifies all other clauses thereof. The creation of municipalities, is not an administrative function, but one which is essentially and eminently legislative in character. The question of whether or not "public interest" demands the exercise of such power is not one of fact. It is "purely a legislative question." - Furthermore, the EOs in question were issued after the legislative bills for the creation of the municipalities involved in this case had failed to pass Congress. - Even if it did not entail an undue delegation of legislative powers, said Sec 68, as part of the Revised Admin Code, approved in 1917, must be deemed repealed by the subsequent adoption of the 1935 Constitution. - The power of control under Sec 10 (1) of Art VII of the Constitution implies the right of the President to interfere in the exercise of such discretion as may be vested by law in the officers of the executive departments, bureaus, or offices of the national government, as well as to act in lieu of such officers. This power is denied by the Constitution to the Executive, insofar as local governments are concerned. With respect to the latter, the fundamental law permits him to wield no more authority than that of checking whether said local governments or the officers thereof perform their duties as provided by statutory enactments. Hence, the President

cannot interfere with local governments, so long as the same or its officers act within the scope of their authority. - Upon the other hand if the President could create a municipality, he could, in effect, remove any of its officials, by creating a new municipality and including therein the barrio in which the official concerned resides, for his office would thereby become vacant. Thus, by merely brandishing the power to create a new municipality (if he had it), without actually creating it, he could compel local officials to submit to his dictation, thereby, in effect, exercising over them the power of control denied to him by the Constitution. - Then, also, the power of control of the President over executive departments, bureaus or offices implies no more than the authority to assume directly the functions thereof or to interfere in the exercise of discretion by its officials. Manifestly, such control does not include the authority either to abolish an executive department or bureau, or to create a new one. As a consequence, the alleged power of the President to create municipal corporations would necessarily connote the exercise by him of an authority even greater than that of control which he has over the executive departments, bureaus or offices. Dispositive Executive Orders in question are hereby declared null and void ab initio and the respondent permanently restrained from passing in audit any expenditure of public funds in implementation of said Executive Orders or any disbursement by the municipalities above referred to. SEPARATE OPINION BENGZON [concur and dissent] - The power to create a municipality is legislative in character. American authorities have the view that it cannot be delegated; what is delegable is not the power to create municipalities but only the power to determine the existence of facts under which creation of a municipality will result. - The test lies in whether the statute allows any discretion on the delegate as to whether the municipal corporation should be created. If so, there is an attempted delegation of legislative power and the statute is invalid. - By the adoption of the 1935 Constitution, the power of control over local governments had now been taken away from the Chief Executive. Sec 10 (1), Art VII of the Constitution has repealed Sec 68 of the Revised Admin Code as far as the latter empowers the President to create local governments. - Since the Constitution repealed Section 68 as far back as 1935, it is academic to ask whether RA 2370 likewise has provisions in conflict with Sec 68 so as to repeal it. Suffice it to state, at any rate, that statutory prohibition on the President from creating a barrio does not, in my opinion, warrant the inference of statutory prohibition for creating a municipality. For although municipalities consist of barrios, there is nothing in the statute that would preclude creation of new municipalities out of pre-existing barrios.

Land Area
TAN V. COMELEC 142 SCRA 727 1986
FACTS

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- Prompted by enactment of BP Blg 885, An Act Creating a New Province in the Island of Negros to be known as the Province of Negros del Norte, Petitioners, residents of Negros Occidental, in various cities & municipalities therein, on Dec 23, 1985, filed case for Prohibition for stopping respondents COMELEC from conducting plebiscite scheduled. - The said law states: Sec 1. The Cities of Silay, Cadiz, San Carlos and municipalities of Calatrava, Taboso, Escalante, Sagay, Manapla, Victorias, E.R. Magalona; and Salvador Benedicto, all in northern portion of Island of Negros, are hereby separated from Province of Negros del Norte. XXX Sec 4. A plebiscite shall be conducted in the proposed new province which are the areas affected within a period of one hundred and twenty days from the approval of this Act. After the ratification of the creation of the Province of Negros del Norte by a majority of the votes cast in such plebiscite, the President of the Philippines shall appoint the first officials of the province. - Petitioners contend that said BP is unconstitutional and not in complete accord w/ LGC - Art XI, Sec 3 of Constitution expressly mandated that 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. - Sec 197 of LGC enumerates conditions to provide legal basis for creation of provincial unit: Sec 197. Requisites for Creation. A province may be created if it has a territory of at least three thousand five hundred square kilometers, a population of at least five hundred thousand persons, an average estimated annual income, as certified by the Ministry of Finance, of not less than ten million pesos for the last three consecutive years, and its creation shall not reduce the population and income of the mother province or provinces at the time of said creation to less than the minimum requirements under this section. The territory need not be contiguous if it comprises two or more islands. The average estimated annual income shall include the income alloted for both the general and infrastructural funds, exclusive of trust funds, transfers and nonrecurring income. (Rollo, p. 6) - Due to Christmas holidays, Court was in recess. Plebiscite was held on Jan 3, 1986. - Plebiscite was confined only to inhabitants of territory of Negros del N rte, namely: the Cities of Silay, Cadiz, and San Carlos, and the municipalities of Calatrava, Taboso, Escalante, Sagay, Manapla, Victorias, E.B. Magalona and Don Salvador Benedicto. Because of the exclusions of the voters from the rest of the province of Negros Occidental, petitioners found need to change the prayer of their petition. They asked that the effects of the plebiscite be suspended. - Respondents state that the powers of BP to enact the assailed law is beyond question. They claim that BP Blg 885 does not infringe Constitution because requisites of the LGC have been complied with. Furthermore, they submit that this case has now become moot and academic. - Respondents argue that the remaining cities & municipalities of the Province of Negros Occidental not included in the area of the new Province of Negros del Norte, de not fall within the meaning and scope of the term "unit or units affected", as referred to in Sec 3 of Art XI of our Constitution.

On this reasoning, respondents maintain that BP Blg 885 does not violate the Constitution, invoking & citing Zosimo Paredes versus the Honorable Executive Secretary to the President, et al. - Respondents maintain that the requisites under LGC for the creation of the new province of Negros del Norte have all been duly complied with. Respondents discredit petitioners' allegations that the requisite area of 3,500 sq km as so prescribed has not been satisfied. Petitioners insist that the area which would comprise the new province of Negros del Norte, would only be about 2,856.56 square kilometers and which evidently would be lesser than the minimum area prescribed by the governing statute. Respondents, in this regard, point out and stress that Section 2 of Batas Pambansa Blg. 885 creating said new province plainly declares that the territorial boundaries of Negros del Norte comprise an area of 4,019.95 square kilometers, more or less. - Respondents insist that instant petition has been rendered moot and academic considering that a plebiscite has been already conducted. 164,734 were in favor of the creation of Negros del Norte and 30,400 were against it. - Parliamentary Bill No. 3644, reads: Sec 4. A plebiscite shall be conducted in the areas affected within a period of one hundred and twenty days from the approval of this Act. After the ratification of the creation of the Province of Negros del Norte by a majority of the votes cast in such plebiscite, the President shall appoint the first officials of the new province. - However, when BP Blg 885 was enacted, there was a significant change in the above provision. The statute, as modified, provides that the requisite plebiscite "shall be conducted in the proposed new province which are the areas affected." - It is this legislative determination limiting the plebiscite exclusively to the cities and towns which would comprise the new province that is assailed by the petitioners as violative of Constitution. Petitioners submit that Sec 3, Art XI contemplates a plebiscite that would be held in the unit or units affected by the creation of the new province as a result of the consequent division of and substantial alteration of the boundaries of the existing province. In this instance, the voters in the remaining areas of the province of Negros Occidental should have been allowed to participate in the questioned plebiscite. ISSUE WON the assailed BP violates the requirements in Constitution and LGC re creation of provincial unit HELD YES. - Sec 3 Art XI of the Consti 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. 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. 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. - Paredes vs. The Honorable Executive Secretary, et al. (supra) should not be taken as a doctrinal or compelling precedent when it is acknowledged

therein that "it is plausible to assert, as petitioners do, that when certain Barangays are separated from a parent municipality to form a new one, all the voters therein are affected." It is relevant and most proper to mention that in the aforecited case of Paredes vs. Executive Secretary, invoked by respondents, We find very lucidly expressed the strong dissenting view of Justice Vicente Abad Santos, a distinguished member of this Court, as he therein voiced his opinion, which We hereunder quote: 2. ... when the Constitution speaks of "the unit or units affected" it means all of the people of the municipality if the municipality is to be divided such as in the case at bar or an of the people of two or more municipalities if there be a merger. I see no ambiguity in the Constitutional provision. - This dissenting opinion of Justice Vicente Abad Santos is the forerunner of the ruling which We now consider applicable to the case at bar. - To form the new province of Negros del Norte no less than three cities and eight municipalities will be subtracted from the parent province of Negros Occidental. This will result in the removal of approximately 2,768.4 square kilometers from the land area of an existing province whose boundaries will be consequently substantially altered. The consequent effects of the division of the parent province necessarily will affect all the people living in the separate areas of Negros Occidental and the proposed province of Negros del Norte. The economy of the parent province as well as that of the new province will be inevitably affected, either for the better or for the worse. Whatever be the case, either or both of these political groups will be affected and they are, therefore, the unit or units referred to in Section 3 of Article XI of the Constitution which must be included in the plebiscite contemplated therein. - It is a well accepted rule that "in ascertaining the meaning of a particular provision that may give rise to doubts, the intent of the framers and of the people, may be gleaned from the provisions in pari materia." Parliamentary Bill No. 3644 which proposed the creation of the new province of Negros del Norte recites in Sec. 4 thereof that "the plebiscite shall be conducted in the areas affected within a period of one hundred and twenty days from the approval of this Act." As this draft legislation speaks of "areas," what was contemplated evidently are plurality of areas to participate in the plebiscite. Logically, those to be included in such plebiscite would be the people living in the area of the proposed new province and those living in the parent province. This assumption will be consistent with the requirements set forth in the Constitution. - The Court is prepared to declare the said plebiscite held on January 3, 1986 as null and void and violative of the provisions of Sec. 3, Article XI of the Constitution. The Court is not, however, disposed to direct the conduct of a new plebiscite, because We find no legal basis to do so. With constitutional infirmity attaching to the subject BP Blg 885 and also because the creation of the new province of Negros del Norte is not in accordance with the criteria established in the LGC, the factual and legal basis for the creation of such new province which should justify the holding of another plebiscite does not exist. - Whatever claim it has to validity and whatever recognition has been gained by the new province of Negros del Norte because of the appointment of the officials thereof, must now be erased. That Negros del Norte is but a legal fiction should be announced. Its existence should be put to an end as quickly as possible, if only to settle the complications currently attending to its creation. - This created province does not even satisfy the area requirement prescribed in Section 197 of the LGC. It is of course claimed by the respondents in their Comment to the exhibits submitted by the petitioners

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(Exhs. C and D, Rollo, pp. 19 and 91), that the new province has a territory of 4,019.95 square kilometers, more or less. This assertion is made to negate the proofs submitted, disclosing that the land area of the new province cannot be more than 3,500 square kilometers because its land area would, at most, be only about 2,856 square kilometers, taking into account government statistics relative to the total area of the cities and municipalities constituting Negros del Norte. Respondents insist that when Section 197 of the Local Government Code speaks of the territory of the province to be created and requires that such territory be at least 3,500 square kilometers, what is contemplated is not only the land area but also the land and water over which the said province has jurisdiction and control. It is even the submission of the respondents that in this regard the marginal sea within the three mile limit should be considered in determining the extent of the territory of the new province. Such an interpretation is strained, incorrect, and fallacious. - The last sentence of the first paragraph of Section 197 is most revealing. As so stated therein the "territory need not be contiguous if it comprises two or more islands." The use of the word territory in this particular provision of the Local Government Code and in the very last sentence thereof, clearly reflects that "territory" as therein used, has reference only to the mass of land area and excludes the waters over which the political unit exercises control. - Said sentence states that the "territory need not be contiguous." Contiguous means (a) in physical contact; (b) touching along all or most of one side; (c) near, text, or adjacent. "Contiguous", when employed as an adjective, as in the above sentence, is only used when it describes physical contact, or a touching of sides of two solid masses of matter. The meaning of particular terms in a statute may be ascertained by reference to words associated with or related to them in the statute (Animal Rescue League vs. Assessors, 138 A.L.R. p. 110). Therefore, in the context of the sentence above, what need not be "contiguous" is the "territory" the physical mass of land area. There would arise no need for the legislators to use the word contiguous if they had intended that the term "territory" embrace not only land area but also territorial waters. It can be safely concluded that the word territory in the first paragraph of Section 197 is meant to be synonymous with "land area" only. The words and phrases used in a statute should be given the meaning intended by the legislature (82 C.J.S., p. 636). The sense in which the words are used furnished the rule of construction (In re Winton Lumber Co., 63 p. 2d., p. 664). - The distinction between "territory" and "land area" which respondents make is an artificial or strained construction of the disputed provision whereby the words of the statute are arrested from their plain and obvious meaning and made to bear an entirely different meaning to justify an absurd or unjust result. The plain meaning in the language in a statute is the safest guide to follow in construing the statute. A construction based on a forced or artificial meaning of its words and out of harmony of the statutory scheme is not to be favored (Helvering vs. Hutchings, 85 L. Ed., p. 909). - It would be rather preposterous to maintain that a province with a small land area but which has a long, narrow, extended coast line, (such as La Union province) can be said to have a larger territory than a land-locked province (such as Ifugao or Benguet) whose land area manifestly exceeds the province first mentioned. - Petitioners herein deserve and should receive the gratitude of the people of the Province of Negros Occidental and even by our Nation. Commendable is the patriotism displayed by them in daring to institute this case in order to preserve the continued existence of their historic province. They were inspired undoubtedly by their faithful commitment to our

Constitution which they wish to be respected and obeyed. Despite the setbacks and the hardships which petitioners aver confronted them, they valiantly and unfalteringly pursued a worthy cause. A happy destiny for our Nation is assured as long as among our people there would be exemplary citizens such as the petitioners herein. WHEREFORE, Batas Pambansa Blg. 885 is hereby declared unconstitutional. The proclamation of the new province of Negros del Norte, as well as the appointment of the officials thereof are also declared null and void.

called for that purpose. A new municipal corporation will come into existence and its birth will be a matter of their choice. They should be left alone to decide for themselves for to allow other voters to participate will not yield a true expression of their will. -On enjoining the COMELEC from implementing BP 86: There was a delay in asking for a restraining order (they asked for it the day before the scheduled plebiscite) and so the plebiscite was duly held. There was already a new municipality of Aguinaldo. (This suit was already moot and academic.) Dispositive: Petition dismissed. Separate Opinion: Abad Santos, dissenting: He questioned the constitutionality of BP. 86. He said that the said proclamations was enacted before there was a LGC and TF the creation of the new municipality was done w/o any reference to any established criteria. Also, he said that the unit/s affected means all of the people in the municipality of the municipality to be divided or merged. All of the barangays in Mayoyao, he said, have an interest in the matter for it will mean the dismemberment of their town. Furthermore, he said too, that if there was no effect on the barangays which will remain w/ Mayoyao, why then did the Governor of Ifugao and the Mayor of Mayoyao get excited? (Oo nga naman! =P)

Gov. Zosimo Paredes et al. v. Exec. Secretary [COMELEC]

128 SCRA 6 Fernando/ March 2, 1984
Nature: Certiorari Facts: -President Marcos issued a proclamation (B.P. 86) directing a plebiscite be conducted in 7 barangays within the municipality of Mayoyao, Ifugao to determine whether the said barangays shall become a new municipality to be known as the Municipality of Aguinaldo, Ifugao. -COMELEC was charged w/ the duty of supervising said plebiscite and was empowered to promulgate the necessary rules and regulations to implement the proclamation. -BP 86 was alleged to be unconstitutional for violating sec.3, Art. XI of the 1973 Constitution because it excluded from the plebiscite the voters from the poblacion and other barangays of the municipality of Mayoyao. (Art. XI sec 3: No province, city, municipality, or barrio may be created, divided, merged, abolished or its boundaries substantially altered except in accordance w/ the criteria established in the local govt code, and subject to the approval by a majority of the votes cast in a plebiscite in the unit or units affected. -Gov. Paredes of Ifugao and Mayor Chilagan of Mayoyao contended that all inhabitants of Mayoyao should participate whereas the respondents claim that the unit/s affected are the barrios whose transfer is being sought. The barrios which will remain with the original municipality are not affected since their autonomy is not in any way diminished for they will be under the same local government w/o any diminution of rights. Issue: WON all the inhabitants of the Municipality of Mayoyao, Ifugao should participate in the plebiscite as they are included in the unit affected. Held: NO. The Court sustained the stand of the respondents that the ambiguity in the expression unit/s affected should be construed as those barangays who are to be separated and therefore only said barangays would get to vote in the plebiscite. -Sec. 10, Art II 1973 Constitution: The State shall guarantee and promote the autonomy of the local government units, especially the barangays, to ensure their fullest development as self-reliant communities. -It is clear that in granting autonomy, priority is to be accorded the smallest unit, the barangay. That enables its residents the fullest development as a self-reliant community, w/ a distinct personality of its own. -The affected barangays and they alone will constitute the new unit and so to ascertain their will to separate from a parent municipality, a plebiscite is

LOPEZ V COMELEC GR No. L-56022 FERNANDO J; May 31, 1985

FACTS: -PD 824 created the METROPOLITAN MANILA AND THE METROPOLITAN MANILA COMMISSION which was a response to a referendum held on February 27, 1975, in which the residents of the Greater Manila Area authorized the President to restructure the local governments of the four cities and 13 municipalities thereof into an integrated unit of the manager or commission form of government, under such terms and conditions as the President may decide -Presidential Decree No. 824 was a response to a felt need for a "central government to establish and administer program and provide services common to" the cities of Manila, Quezon, Pasay, and Caloocan as well as thirteen municipalities in the surrounding area -Petitioners assail the constitutionality of Presidential Decree No. 824. They rely on Art XI Section 3 of the Consitution: "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 cast in a plebiscite in the unit or units affected." ISSUE: WON PD 824 is unconstitutional due to lack of a plebiscite. HELD: NO -The Court mentioned three reasons:

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-First: In the case of Paredes v Executive Secretar the issue was that the plebiscite is that the statute excluded from the plebiscite the voters from the poblacion and other barangays of the Municipality of Mayoyao except those mentioned in the Act. (The provision relied upon in questioning such plebiscite was the same provision used in the present case). However in the Court voting, there were twelve (12) votes in favor of such dismissal, two of the Justices voting to dismiss the petition on the ground that it had become moot and academic, the plebiscite having been duly held and the certificate of canvass and proclamation disclosing that out of the 2,409 total votes being cast in the plebiscite. -the Court went on to say It cannot be argued therefore that the plebiscite held in the areas affected to constitute Metropolitan Manila, having manifested their will, the constitutional provision relied upon by petitioners has been satisfied -Seconnd: the whereas clauses mentioned in PD 824 constitutes the justification for and the objective of such Presidential Decree -Third: the last vestige of doubt has been removed by the present constitutional provision adopted in the plebiscite on January 27, 1984. Thus in the Article on Batasang Pambansa it is expressly provided: "The Batasang Pambansa which shall be composed of not more than 200 Members unless otherwise provided by law, shall include representatives elected from the different provinces with their component cities, highly urbanized cities as may be declared by or pursuant to law, and districts in Metropolitan Manila *guys, sorry Malabo. Malabo talaga yung case eh. (sorry Justice Fernando)

ISSUE 1) Does MAJORITY refer to a majority of the total votes cast in the plebiscite in all the constituent units, or a majority in each of the constituent units, or both? 2) WON Congress has expanded, by including areas which do not strictly share the same characteristic as the others, the scope of the autonomous region which the constitution itself has prescribed to be limited 3) WON Article XIX Sec 13 of RA 6734 grants the President the power to merge regions, a power which is not conferred by the Constitution upon the President, and in conflict with Article X, Section 10 of the Constitution RULING 1) 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. - If the framers of the Constitution intended to require approval by a majority of all the votes cast in the plebiscite they would have so indicated. Thus, in Article XVIII, section 27, it is provided that "[t]his Constitution shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite held for the purpose ... Comparing this with the provision on the creation of the autonomous region, which reads: The creation of the autonomous region shall be effective when approved by majority of the votes cast by the constituent units in a plebiscite called for the purpose, provided that only provinces, cities and geographic areas voting favorably in such plebiscite shall be included in the autonomous region. [Art. X, sec, 18, para, 2]. - It will readily be seen that the creation of the autonomous region is made to depend, not on the total majority vote in the plebiscite, but on the will of the majority in each of the constituent units and the proviso underscores this. for if the intention of the framers of the Constitution was to get the majority of the totality of the votes cast, they could have simply adopted the same phraseology as that used for the ratification of the Constitution, i.e. "the creation of the autonomous region shall be effective when approved by a majority of the votes cast in a plebiscite called for the purpose." 2) NO. The Constitution lays down the standards by which Congress shall determine which areas should constitute the autonomous region. Guided by these constitutional criteria, the ascertainment by Congress of the areas that share common attributes is within the exclusive realm of the legislature's discretion. Any review of this ascertainment would have to go into the wisdom of the law. This the Court cannot do without doing violence to the separation of governmental powers. 3) NO - Art. XIX, Sec 13, RA 6734: . . . Provided, That only the provinces and cities voting favorably in such plebiscite shall be included in the Autonomous Region in Muslim Mindanao. The provinces and cities which in the plebiscite do not vote for inclusion in the Autonomous Region shall remain in the existing administrative regions: Provided, however, that the President may, by administrative determination, merge the existing regions. - Art. X, Sec 10, Consti:

No province, city, municipality, or barangay may be created, divided, merged, abolished, or its boundary substantially altered, except in accordance with the criteria established in the local government code and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected. - What is referred to in R.A. No. 6734 is the merger of administrative regions, i.e. Regions I to XII and the National Capital Region, which are mere groupings of contiguous provinces for administrative purposes. Administrative regions are not territorial and political subdivisions like provinces, cities, municipalities and barangays [see Art. X, sec. 1 of the Constitution]. While the power to merge administrative regions is not expressly provided for in the Constitution, it is a power which has traditionally been lodged with the President to facilitate the exercise of the power of general supervision over local governments [see Art. X, sec. 4 of the Constitution]. There is no conflict between the power of the President to merge administrative regions with the constitutional provision requiring a plebiscite in the merger of local government units because the requirement of a plebiscite in a merger expressly applies only to provinces, cities, municipalities or barangays, not to administrative regions.

Dual Functions of an LGU

CITY OF MANILA V IAC (STO. DOMINGO) 179 SCRA 428 PARAS; November 15, 1989
NATURE Petition for certiorari to review the decision and resolution of the CA FACTS -Vivencio Sto. Domingo, Sr. deceased husband of Irene Sto. Domingo died on June 4,1971 and was buried in Lot No. 159, Block No. 194 of the North Cemetery which lot was leased by the city to Irene Sto. Domingo for the period from June 6, 1971 to June 6, 2021 -Full payment of the rental therefor of P50.00 is evidenced by a receipt -Believing in good faith that, in accordance with Administrative Order No. 5, Series of 1975, of the City Mayor of Manila, subject lot was leased for five (5) years only, subject lot was certified on January 25, 1978 as ready for exhumation -The authorities of the North Cemetery authorized the exhumation and removal from subject burial lot the remains of the late Vivencio Sto. Domingo, Sr., placed the bones and skull in a bag or sack and kept the same in the depository or bodega of the cemetery -Subsequently, the same lot in question was rented out to another lessee so that when Irene Sto. Domingo and her children went to said lot on All Souls Day, to their shock and dismay, the resting place of their dear departed did not anymore bear the stone marker which they placed on the tomb. -Irene Sto. Domingo was informed that she can look for the bones of her deceased husband in the warehouse of the cemetery where the exhumed remains from the different burial lots of the North Cemetery are being kept until they are retrieved by interested parties.

Merger of Administrative Regions

ABBAS v COMELEC 179 SCRA 287 (1989) Cortes, J.
FACTS RA 6734 An Act Providing for an Organic Act for the Autonomous Region in Muslim Mindanao is being challenged as unconstitutional.* - (RA 6734) SEC. 13. The creation of the Autonomous Region in Muslim Mindanao shall take effect when approved by a majority of the votes cast by the constituent units provided in paragraph (2) of Sec. 1 of Article II of this Act in a plebiscite which shall be held not earlier than ninety (90) days or later than one hundred twenty (120) days after the approval of this Act: Provided, That only the provinces and cities voting favorably in such plebiscite shall be included in the Autonomous Region in Muslim Mindanao. The provinces and cities which in the plebiscite do not vote for inclusion in the Autonomous Region shall remain the existing administrative determination, merge the existing regions. - As provided in the Constitution, the creation of the Autonomous region in Muslim Mindanao is made effective upon the approval "by majority of the votes cast by the constituent units in a plebiscite called for the purpose" [Art. X, sec. 18].

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-Irene Sto. Domingo filed an action for damages in the CFI of Manila against the City of Manila -TC ruled in favor of Irene Sto. Domingo -City of Manila appealed to CA, but to no avail -Hence, this petition ISSUE WON the City of Manila is liable for damages HELD Yes. -To resolve the issue, it is important to determine whether or not the operations and functions of a public cemetery are a governmental, or a corporate or proprietary function of the City of Manila -Petitioners alleged in their petition that the North Cemetery is exclusively devoted for public use or purpose, and conclude that since the City is a political subdivision in the performance of its governmental function, it is immune from tort liability which may be caused by its public officers and subordinate employees. -Private respondents on the other hand maintain that the City of Manila entered into a contract of lease which involve the exercise of proprietary functions with private respondent Irene Sto. Domingo. The city and its officers therefore can be sued for any-violation of the contract of lease. -Under Philippine laws, the City of Manila is a political body corporate and as such endowed with the faculties of municipal corporations to be exercised by and through its city government in conformity with law, and in its proper corporate name. It may sue and be sued, and contract and be contracted with. -Its powers are twofold in character-public, governmental or political on the one hand, and corporate, private and proprietary on the other. Governmental powers are those exercised in administering the powers of the state and promoting the public welfare and they include the legislative, judicial, public and political. Municipal powers on the one hand are exercised for the special benefit and advantage of the community and include those which are ministerial, private and corporate. -In McQuillin on Municipal Corporation, the rule is stated thus: "A municipal corporation proper has ... a public character as regards the state at large insofar as it is its agent in government, and private (so called) insofar as it is to promote local necessities and conveniences for its own community -Thus in Torio v. Fontanilla, the Court declared that with respect to proprietary functions the settled rule is that a municipal corporation can be held liable to third persons ex contractu -The rule of law is a general one, that the superior or employer must answer civilly for the negligence or want of skill of its agent or servant in the course or line of his employment, by which another who is free from contributory fault, is injured. Municipal corporations fall within the operation of this rule of law, and are liable accordingly, to civil actions for damages when the requisite elements of liability exist. -The administration and government of the cemetery are under the City Health Officer, the order and police of the cemetery, the opening of graves, niches, or tombs, the exhuming of remains, and the purification of the same are under the charge and responsibility of the superintendent of the cemetery. The City of Manila furthermore prescribes the procedure and guidelines for the use and dispositions of burial lots and plots within the cemetery. With the acts of dominion, there is, therefore no doubt that the North Cemetery is within the class of property which the City of Manila owns

in its proprietary or private character. -Furthermore, there is no dispute that the burial lot was leased in favor of the private respondents, hence, a breach of contractual provision entitles the other party to damages even if no penalty for such breach is prescribed in the contract. -Under the doctrine of respondent superior, petitioner City of Manila is liable for the tortious act committed by its agents who failed to verify and check the duration of the contract of lease. Disposition Appealed decision affirmed

- In the interim, plaintiff Apolonio G. Maleniza and the newly elected members assumed office as Provincial Governor and members of the Provincial Board in January, 1960 and on January 29 passed Resolution, No. 42, revoking Resolution No. 1103. - A writ of preliminary injunction was issued. After trial, the court virtually decided the case in favor of the Province of Camarines Sur by declaring Resolution No. 1103 and the deeds of sale as null and void; ordering City of Naga to vacate the premises; ordering Naga to pay CamSur P600/month as damages for use of the grandstand and athletes quarters. - City of Naga appealed to the CA which then promulgated a decision affirming CFI judgment. ISSUE WON CA erred in nullifying the two conveyances of land

Transferring Property Title

CITY OF NAGA V CA
172 SCRA 13 PARAS; April 12, 1989 NATURE Petition to review by certiorari CA decision FACTS - The Camarines Sur Provincial Administration passed Resolution No. 1103 authorizing Provincial Governor Trivino to execute a deed of sale without consideration in favor of the City of Naga two parcels of land with improvements, belonging to the province. - Pursuant to said resolution, on November 23, 1959 outgoing Provincial Governor Trivino executed two deeds of sale: one conveying the title and possession of a parcel containing 80T sq m on which the Camarines Sur High School complex (classroom buildings, library building, grandstand, etc.) are erected; and another conveying the title and possession of a 4 parcel of land containing 19,044 sq m which is devoted to horticulture, farming, gardening and to the study of poultry and pig-raising. The consideration for each sale is one peso which has never been paid. - On November 25, 1959 the City of Naga moved its offices to the athletes' quarters, a newly constructed building and the ground floor of the new grandstand, within the High School in Complex. The City spent P14,901.14 for improving the Athletes' Quarter and the ground floor of the grandstand to make them fit for offices. - On Dec 9, 1959, Hon. Apolonio G. Maleniza, as taxpayer and governorelect of Camarines Sur filed a complaint against the Province of Camarines Sur and the City of Naga. The complaint prays for the annulment of the two conveyances. The complaint also prays for damages in the form of specified monthly rentals and for the issuance of a writ of preliminary injunction to restrain defendants from effecting the transfer of the "administration" of the said properties. - The conveyances are alleged to be Null and Void ab initio for they are against the law and public policy, since as the properties of the Province of Camarines Sur devoted to public use, they cannot be the subject matter of contracts, and as donations of real properties they have not been accepted in public documents by City of Naga.

HELD NO Reasoning Section 2068 of the Revised Administrative Code: When the government of a province is a party to a deed or instrument conveying the title of real property, such deed or instrument shall be executed on behalf of the said Government by the Provincial Governor, upon resolution of the provincial board, and with the approval of the President. - Without the needed Presidential approval, it is evident that the conveyances were void. Note that up to now, said approval has not been obtained. CA cannot likewise be faulted for awarding damages to the City of Naga, for the improvements it had introduced on the premises. To eliminate this award would certainly be less than fair. The damages can be set off against the rentals to be paid by the City. - In the Supplemental Petition filed in this Court after the filing of the Original Petition, petitioner raises two points; the termination of office of the private respondent as governor, and the transfer of the lots to the National Government. Since both points are factual in nature, and since the pleadings filed in the courts below do not refer to them, these cannot be considered, since SC is not a trier of facts. Disposition Petition and supplemental petitions DENIED, for lack of merit.

Police Power
RURAL BANK OF MAKATI V. MUNICIPALITY OF MAKATI 433 SCRA 362 QUISUMBING, JULY 2, 2004
NATURE Petition for review FACTS -Valero, the municipal attorney of Makati, upon request of the municipal treasurer, went to the Rural Bank of Makati to inquire about the banks payments of taxes and fees to the municipality. Bank claimed exemption under RA 720. -Makati filed complaint for violation of Section 21 (a), Chapter II, Article 3 of the Metropolitan Tax Code. Also, information for violation of Municipal

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Ordinance No. 122 and 39 for nonpayment of mayors permit fee, and Metro Manila Commission Ordinance No. 82-03, for non-payment of annual business tax. Pending the cases, municipality ordered the closure of the bank. Bank paid the mayors permit fee and annual fixed tax (P82,408.66) under protest. -Afterwards, bank filed Complaint for sum of Money and Damages against Municipality of Makati, alleging: (1) collection oppressive, arbitrary, unjust and illegal, as cases were pending and for lack of notice or assessment of fees to be paid; (2) Municipal attorney had no power to enforce laws and ordinances; (3) Municipal ordinances of Makati were invalid for want of publication -Answer of Makati: amt paid by the bank was for a legal obligation because the payment of mayors permit fee + municipal license was required of all business concerns and in furtherance of the police power of the municipality to regulate businesses -RTC: dismissed banks complaint: (1) bank engaged in business as a rural bank, thus should secure permit and business license and pay corresponding charges and fees; (2) municipality had authority to impose licenses and permit fees under its police power embodied under the general welfare clause; (3) Bank not exempted under RA 720 as said exemption was withdrawn by EO 93 and the Rural Bank Act of 1992; (4) allegation of lack of publication were unsupported by clear and convincing evidence. -MFR denied -CA: affirmed RTC: (1) closure of bank valid and justified as bank operated without permit, without paying permit fee; (2) general welfare clause is NOT limited to legislative action, and that exercise of police power by Makati was mandated by general welfare clause which authorizes LGUs to enact ordinances, not only to carry into effect and discharge such duties as are conferred upon them by law, but also those for the good of the municipality and its inhabitants. ISSUES (for LOCGOV) 1. WON petitioner bank is liable to pay business taxes and mayors permit fees (WON bank should get a refund) 2. WON the closure of the bank is VALID HELD 1. Bank cannot claim refund as it cannot substantiated their claim. Still liable to pay business taxes and mayors fees. Reasoning. Previously, the bank was exempted by RA 720 from all taxes, charges and fees. However, on December 17, 1986, EO 93 withdrew all tax duty and incentives. Therefore, bank was not exempted anymore. However, while the bank is claiming a refund of P57,854.00, they lacked evidence to support their computation of the amount to be refunded. 2. NO. Can exercise police power BUT cannot close the bank! Reasoning. Indeed the Local Government Code of 1991 was not yet in effect when the municipality ordered petitioner banks closure on July 31, 1991. However, the general welfare clause invoked by the Court of Appeals is not found on the provisions of said law alone. Even under the old Local Government Code (Batas Pambansa Blg. 337) which was then in effect, a general welfare clause was provided for in Section 7 thereof. Municipal corporations are agencies of the State for the promotion and maintenance of local self-government and as such are endowed with police powers in order to effectively accomplish and carry out the declared objects of their creation. The authority of a local government unit to exercise police

power under a general welfare clause is not a recent development. This was already provided for as early as the Administrative Code of 1917. Since then it has been reenacted and implemented by new statutes on the matter. Thus, the closure of the bank was a valid exercise of police power pursuant to the general welfare clause contained in and restated by B.P. Blg. 337, which was then the law governing local government units. -The general welfare clause 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 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. -Ordinances imposing licenses and requiring permits for any business establishment fall within the purview of the first branch of the general welfare clause. Ordinance imposing annual business tax is part of the power of taxation vested upon LGs. Implementation of these ordinances is vested in the municipal mayor. Makati Mayor was clothed with authority to create a Special Task Force headed by the municipal attorney. -BUT: bank was not engaged in any illegal or immoral activities to warrant its outright closure. The appropriate remedies to enforce payment of delinquent taxes or fees as provided in Section 62 of Local Tax Code AND SECTION 62 did not provide for closure. Order of closure violated petitioners right to due process, bank exercised GF and presented what it thought was a valid and legal justification for not paying the required taxes and fees. The violation of a municipal ordinance does not empower a municipal mayor to avail of extrajudicial remedies. It should have observed due process before ordering the banks closure. Disposition. WHEREFORE, the assailed Decision dated July 17, 2001, of the Court of Appeals in CA-G.R. CV No. 58214 is AFFIRMED with MODIFICATIONS, so that (1) the order denying any claim for refunds and fees allegedly overpaid by the bank, as well as the denial of any award for damages and unrealized profits, is hereby SUSTAINED; (2) the order decreeing the closure of petitioner bank is SET ASIDE; and (3) the award of moral damages and attorneys fees to Atty. Victor A.L. Valero is DELETED. No pronouncement as to costs. SO ORDERED.

ACEBEDO OPTICAL COMPANY, INC. v CA

March 31, 2000; Purisima 329 SCRA 314 NATURE Petition for review seeking to nullify the dismissal by the CA of the original petition for certiorari, prohibition and mandamus filed by petitioner against the City Mayor Cabili (CM) and City Legal Officer Cahanap (CLO) of Iligan and the Samahang Optometrist sa Pilipinas (SOPI)- Iligan Chapter. FACTS - Petitioner applied with the Office of the CM of Iligan for a business permit. The business permit was issued subject to the following conditions Acebedo : 1. Being a corporation, cannot put up an optical clinic but only a commercial store; 2. Cannot examine and/or prescribe reading and similar optical glasses for patients, because these are functions of optical clinics;

3. Cannot sell reading and similar eyeglasses without a prescription having first been made by an independent optometrist or independent optical clinic. Acebedo can only sell directly to the public, without need of a prescription, Ray-Ban and similar eyeglasses; 4. Cannot advertise optical lenses and eyeglasses, but can advertise RayBan and similar glasses and frames; 5. Is allowed to grind lenses but only upon the prescription of an independent optometrist. - Thereafter, SOPI lodged a complaint against the petitioner before the Office of the City Mayor, alleging that Acebedo had violated the conditions set forth in its business permit and requesting the cancellation and/or revocation of such permit. - Upon investigation, the City Legal Officer found petitioner guilty of violating all the conditions of its business permit and recommended the disqualification of petitioner from operating its business in Iligan City. - The CM sent petitioner a Notice of Resolution and Cancellation of Business Permit and giving petitioner 3 months to wind up its affairs. - Petitioner filed a petition for certiorari, prohibition and mandamus with prayer for restraining order/preliminary injunction against the respondents the Iligan City RTC alleging that : (1) it was denied due process because it was not given an opportunity to present its evidence during the investigation conducted by the CLO; (2) it was denied equal protection of the laws as the limitations imposed on its business permit were not imposed on similar businesses in Iligan City; (3) the CM had no authority to impose the special conditions on its business permit; and (4) the CLO had no authority to conduct the investigation as the matter falls within the exclusive jurisdiction of the PRC and the Board of Optometry. - RTC dismissed the petition for failure to exhaust administrative remedies. MR was denied. - Instead of taking an appeal, petitioner filed a petition for certiorari, prohibition and mandamus with the CA. Petition was dismissed for lack of merit. MR was denied. Hence this appeal. - Petitioner maintains that the said special conditions are null and void for being ultra vires and cannot be given effect; while the CM, CLO, SOPI and the OSG contend that as a valid exercise of police power, CM has the authority to impose, as he did, special conditions in the grant of business permits. ISSUE WON the imposition of special conditions in the business permit was a valid exercise police power by the City Mayor (Hence petitioner is estopped from questioning it) HELD NO Police power as an inherent attribute of sovereignty is the power to prescribe regulations to promote the health, morals, peace, education, good order or safety and general welfare of the people. The State, through the legislature, has delegated the exercise of police power to local government units, as agencies of the State, in order to effectively accomplish and carry out the declared objects of their creation. This delegation of police power is embodied in the general welfare clause of the Local Government Code which provides: Sec. 16. General Welfare. - Every local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective governance, and those which are essential to the promotion of the general welfare. Within their respective territorial jurisdictions, local government units shall ensure and support, among other things, the preservation and

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enrichment of culture, promote health and safety, enhance the right of the people to a balanced ecology, encourage and support the development of appropriate and self-reliant scientific and technological capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment among their residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants. - The scope of police power has been held to be so comprehensive as to encompass almost all matters affecting the health, safety, peace, order, morals, comfort and convenience of the community. Police power is essentially regulatory in nature and the power to issue licenses or grant business permits, if exercised for a regulatory and not revenue-raising purpose, is within the ambit of this power. - The authority of city mayors to issue or grant licenses and business permits is beyond cavil. It is provided for by law (Sec. 171, par2 of the 1983 LGC). - However, the power to grant or issue licenses or business permits must always be exercised in accordance with law, with utmost observance of the rights of all concerned to due process and equal protection of the law. - While a business may be regulated, such regulation must, however, be within the bounds of reason, i. e., the regulatory ordinance must be reasonable, and its provision 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. xxx The exercise of police power by the local government is valid unless it contravenes the fundamental law of the land or an act of the legislature, or unless it is against public policy or is unreasonable, oppressive, partial, discriminating or in derogation of a common right. - In this case, the business permit granted by the CM to petitioner was burdened with several conditions. Petitioner agrees with the holding by the CA that the CM acted beyond his authority in imposing such special conditions in its permit as the same have no basis in the law or ordinance. Petitioner assails the conditions imposed in its particular case which, it complains, amount to a confiscation of the business in which petitioner is engaged. - Distinction must be made between the grant of a license or permit to do business and the issuance of a license to engage in the practice of a particular profession. The first is usually granted by the local authorities and the second is issued by the Board or Commission tasked to regulate the particular profession. A business permit authorizes the person, natural or otherwise, to engage in business or some form of commercial activity. A professional license, on the other hand, is the grant of authority to a natural person to engage in the practice or exercise of his or her profession. - In the case at bar, what is sought by petitioner from the CM is a permit to engage in the business of running an optical shop. It does not purport to seek a license to engage in the practice of optometry as a corporate body or entity, although it does have in its employ, persons who are duly licensed to practice optometry by the Board of Examiners in Optometry. - In a similar case (Samahan ng Optometrists sa Pilipinas vs. Acebedo International Corporation), the SC held that there is no law that prohibits the hiring by corporations of optometrists or considers the hiring by corporations of optometrists as a practice by the corporation itself of the profession of optometry. - In the present case, the objective of the imposition of subject conditions on petitioners business permit could be attained by requiring the optometrists in petitioners employ to produce a valid certificate of registration as

optometrist, from the Board of Examiners in Optometry. A business permit is issued primarily to regulate the conduct of business and the CM cannot, through the issuance of such permit, regulate the practice of a profession, like that of optometry. Such a function is within the exclusive domain of the administrative agency specifically empowered by law to supervise the profession, in this case the PRC and the Board of Examiners in Optometry. - A look at the deliberations of the bicameral conference committee on R.A. 8050 will reveal that the committee failed to reach a consensus as to the prohibition on indirect practice of optometry by corporations. - Courts have distinguished between optometry as a learned profession in the category of law and medicine, and optometry as a mechanical art. And, insofar as the courts regard optometry as merely a mechanical art, they have tended to find nothing objectionable in the making and selling of eyeglasses, spectacles and lenses by corporations so long as the patient is actually examined and prescribed for by a qualified practitioner. - The primary purpose of the statute regulating the practice of optometry is to insure that optometrical services are to be rendered by competent and licensed persons in order to protect the health and physical welfare of the people from the dangers engendered by unlicensed practice. Such purpose may be fully accomplished although the person rendering the service is employed by a corporation. - Furthermore, it has been ruled that the employment of a qualified optometrist by a corporation is not against public policy. Unless prohibited by statutes, a corporation has all the contractual rights that an individual has and it does not become the practice of medicine or optometry because of the presence of a physician or optometrist. The manufacturing, selling, trading and bartering of eyeglasses and spectacles as articles of merchandise do not constitute the practice of optometry. - To accomplish the objective of the regulation, a state may provide by statute that corporations cannot sell eyeglasses, spectacles, and lenses unless a duly licensed physician or a duly qualified optometrist is in charge of, and in personal attendance at the place where such articles are sold. In such a case, the patients primary and essential safeguard lies in the optometrists control of the "treatment" by means of prescription and preliminary and final examination.

between a statute or ordinance and the ends of public safety, health, morals, or general welfare; the mere assertion by legislature of such relation does not by itself bring the statute within police power. It furthered that the P400k expenditure is still subject to the limitation that it be for a public purpose; here, the program affects not the majority but only benefits a few individuals. -Makati passed Resolution No. 243, reaffirming Resolution No. 60; however, with the program stayed by the COA decision, Binay filed this special civil action for certiorari praying that Decision No. 1159 be declared null and void. ISSUE(S) 3. WON the Resolutions fall under the municipalitys police power 4. WON Resolution 60 was enacted for a public purpose HELD 1. YES. Whilst police power is inherent in the state but not in municipal corporations, the latter may exercise such power upon a valid delegation by legislature, whether express or inferred from the mere creation of the municipality. Such inference stems from the fact that the municipal corporation can only fully accomplish the object of its creation and perform its governmental functions through such powers. -Municipal governments exercise this power under the general welfare clause in BP 337 (LocGov Code) which provides that they are authorized to enact such ordinances and regulations as may be necessary to provide for the health, safety, comfort and convenience, maintain peace and order, improve public morals, promote the prosperity and general welfare of the municipality and its inhabitants and insure the protection of property therein. -In this case, COA attempts to limit the scope of police power to public safety, general welfare, etc. of the inhabitants of Makati. The Court had previously held in Sangalang vs IAC that police power is purposely veiled in general terms so it may respond flexibly to meet the exigencies of the times. It is the most essential, insistent and illimitable of powers; it is elastic and must be responsive to various social conditions. -The police power of a municipal corporation extends to all great public needs and includes all legislation and almost every function of the municipal government. It is not limited to maintaining peace, health, security, etc. but exists so as to bring the greatest welfare to all by promoting public convenience or general prosperity and the preservation of the comfort of its inhabitants. 2. YES. Public policy is not unconstitutional merely because it benefits a limited number of persons. The care for the poor is recognized as a public duty and there is no violation of equal protection in classifying paupers as subjects of legislation. The drift is towards social welfare legislation geared towards state policies to provide adequate social services (Art. 2, Sec. 9, Consti). -This decision, however, must not be taken as a precedent, or as an official go-signal for municipal governments to embark on a philanthropic orgy of inordinate dole-outs for motives political or otherwise. DISPOSITION PREMISES CONSIDERED, COA Decision No. 1159 is SET ASIDE

BINAY and MAKATI V DOMINGO and COA

201 SCRA 508 PARAS; September 11, 1991

FACTS -Makati approved Resolution No. 60 which ratified the ongoing burial assistance program initiated by the mayor, extending financial assistance of P500 to a bereaved family, taken out of unappropriated available funds from the municipal treasury. Qualified beneficiaries are those whose gross family income does not exceed P2,000/mo. -The Metro Manila Commission (MMC) approved the Resulotion, whereafter the municipal secretary disbursed P400,000 to implement the program. Upon referral, the Commission on Audit (COA) disapproved the Resolution and disbursement. -Mayor Binay filed 2 letters of reconsideration, asserting that (1) the municipality and its disbursements fall under police power and parens patriae; (2) that the MMC already appropriated P400k. COA, in its Decision No. 1159, denied both stating that there must be a real substantial relation

PEOPLE VS FAJARDO

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REYES; August 29, 1958 NATURE: Appeal from the decision of the Court of First Instance of Camarines Sur FACTS - On August 15, 1950, during the incumbency of Juan F. Fajardo as mayor of the municipality of Baao, Camarines Sur, the municipal council passed Ordinance No. 7, Series of 1950. It provides that Any person or persons who will construct or repair a building should, before constructing or repairing, obtain a written permit from the Municipal Mayor. Any violation of the provisions of the above, this ordinance, shall make the violation liable to pay a fine or imprisonment or both, at the discretion of the court. If said building destroys the view of the Public Plaza or occupies any public property, it shall be removed at the expense of the owner of the building or house. - Four years later, after the term of appellant Fajardo as mayor had expired, he and his son in-law, appellant Babilonia, filed a written request with the incumbent municipal mayor for a permit to construct a building adjacent to their gasoline station on a parcel of land registered in Fajardo's name, located along the national highway and separated from the public plaza by a creek (Exh. D). - The request was denied twice but the appellants proceeded with the construction of the building without a permit, because they needed a place of residence very badly, their former house having been destroyed by a typhoon and hitherto they had been living on leased property. - Fajardo and Babilonia was convicted of a violation of Ordinance No. 7, Series of 1950, of the Municipality of Baao, Camarines Sur, for having constructed without a permit from the municipal mayor a building that destroys the view of the public plaza. ISSUE WON the Ordinance is unconstitutional HELD YES. Reasoning: a. Under the ordinance in question the mayor has absolute discretion to issue or deny a permit. The ordinance fails to state any policy, or to set up any standard to guide or limit the mayor's action. No purpose to be attained by requiring the permit is expressed; no conditions for its grant or refusal are enumerated. It is not merely a case of deficient standards; standards are entirely lacking. The ordinance thus confers upon the mayor arbitrary and unrestricted power to grant or deny the issuance of building permits, and it is a settled rule that such an undefined and unlimited delegation of power to allow or prevent an activity, per se lawful, is invalid b. City of Richmond vs. Dudley: municipal ordinances placing restrictions upon lawful conduct or the lawful use of property must, in order to be valid, specify the rules and conditions to be observed in such conduct or business; and must admit of the exercise of the privilege of all citizens alike who will comply with such rules and conditions; and must not admit of the exercise, or of an opportunity for the exercise, of any arbitrary discrimination by the municipal authorities between citizens who will so comply. c. The ordinance is unreasonable and oppressive, in that it operates to permanently deprive appellants of the right to use their own property; hence, it oversteps the bounds of police power, and amounts to a taking of

appellants property without just compensation. While property may be regulated in the interest of the general welfare, and in its pursuit, the State may prohibit structures offensive to the sight (Churchill and Tait vs. Rafferty, 32 Phil. 580), the State may not, under the guise of police power, permanently divest owners of the beneficial use of their property and practically confiscate them solely to preserve or assure the aesthetic appearance of the community. d. Under SEC. 2243 of the Administrative Code, the power of the municipal council to require the issuance of building permits rests upon its first establishing fire limits in populous parts of the town and prescribing the kinds of buildings that may be constructed or repaired within them. As there is absolutely no showing in this case that the municipal council had either established fire limits within the municipality or set standards for the kind or kinds of buildings to be constructed or repaired within them before it passed the ordinance in question, it is clear that said ordinance was not conceived and promulgated under the express authority of sec. 2243. DISPOSITION Municipal Ordinance No. 7, Series of 1950, of the Municipality of Baao, Camarines Sur, was beyond the authority of said municipality to enact, and is therefore null and void. Hence, the conviction of herein appellants is reversed, and said accused are acquitted, with costs de oficio.

LUCENA GRAND CENTRAL TERMINAL V JAC LINER 452 SCRA 174 CARPIO-MORALES; Feb 23, 2005
FACTS - JAC liner is a common carrier operating buses which ply various routes to and from Lucena City, assailed, via a petition for prohibition and injunction against the City of Lucena, its Mayor, and the Sangguniang Panlungsod of Lucena before the RTC, City Ordinance Nos. 1631 and 1778 as unconstitutional on the ground that, inter alia, the same constituted an invalid exercise of police power, an undue taking of private property, and a violation of the constitutional prohibition against monopolies. - Ord No. 1631 entitled AN ORDINANCE GRANTING THE LUCENA GRAND CENTRAL TERMINAL, INC., A FRANCHISE TO CONSTRUCT, FINANCE, ESTABLISH, OPERATE AND MAINTAIN A COMMON BUSJEEPNEY TERMINAL FACILITY IN THE CITY OF LUCENA contained that (1) LGCT, its successors or assigns, is granted a franchise to contruct, finance, establish, operate, and maintain a common bus-jeepney terminal facility Lucena; (2) such franchis shall continue for a period of 25yrs, and renewable for another 25yrs upon such expiration and (3) during the existence of the franchise, Lucena City shall not grant any third party any privilege and/or concession to operate a bus, mini-bus and/or jeepney terminal. - Ordinance No. 1778, entitled AN ORDINANCE REGULATING THE ENTRANCE TO THE CITY OF LUCENA OF ALL BUSES, MINI-BUSES AND OUT-OF-TOWN PASSENGER JEEPNEYS AND FOR THIS PURPOSE, AMENDING ORDINACE NO. 1420, SERIES OF 1993, AND ORDINANCE NO. 1557, SERIES OF 1995, contained that (1) all buses, mini-buses and out-of-town passenger jeepneys shall be prohibited from entering the city and are directed to proceed to the common terminal, for picking-up and/or dropping of their passengers, (2) all temporary terminals in Lucena are declared inoperable, and (3) all buses, mini-buses, and jeepney type mini-buses from other municipalities and/or LGUs going to

Lucena City are directed to proceed to the LGCT, no other terminals shall be situated inside or within Lucena and that the LGCT is the permanent common terminal. - Respondent, who had maintained a terminal within the city, was one of those affected by the ordinances. LGCT, claiming legal interest as the grantee of the exclusive franchise for the operation of the common terminal was allowed to intervene in the petition before the trial court. - The resolution was solely based on the pleadings filed. - By Order of March 31, 1999, RTC declared that: City Ordinance No. 1631 as valid, having been issued in the exercise of the police power insofar as the grant of franchise to the LGCT, to construct, finance, establish, operate and maintain common bus-jeepney terminal facility in Lucena; 2. But however, declaring the provision to the effect that the City Government shall not grant any third party any privilege and/or concession to operate a bus, mini-bus and/or jeepney terminal, as illegal and ultra vires because it contravenes RA 7160 (LGC). 3. Declaring City Ordinance No. 1778 as null and void, the same being also an ultra vires act of the City Government of Lucena arising from an invalid, oppressive and unreasonable exercise of the police power; 4. Ordering the issuance of a Writ of Prohibition and/or Injunction directing the respondents public officials, the City Mayor and the Sangguniang Panglungsod of Lucena, to cease and desist from implementing Ordinance No. 1778 insofar as said ordinance prohibits or curtails petitioner from maintaining and operating its own bus terminal subject to the conditions provided for in Ordinance No. 1557, Sec. 3, which authorizes the construction of terminal outside the poblacion of Lucena City; and likewise, insofar as said ordinance directs and compels the petitioner to use the LGCT, and furthermore, insofar as it declares that no other terminals shall be situated, constructed, maintained or established inside or within the City of Lucena; and furthermore, 5. The MTD by LGCT is hereby DENIED for lack of merit. - Petitioners MFR was denied and it elevated it via petition for review under Rule 45 before the SC. -CA dismissed the petition and affirmed the challenged orders of the trial court. MFR was again denied resulting to another petition for review to SC. ISSUES (1) WON TC has jurisdiction over the case, it not having furnished the Office of the Solicitor General copy of the orders it issued therein (2) WON the City of Lucena properly exercised its police power when it enacted the subject ordinances. HELD (1) No, there was no procedural defect. The SC finds that no procedural defect, fatal or otherwise, attended the disposition of the case. For respondent actually served a copy of its petition upon the Office of the Solicitor General, two days after it was filed. The Solicitor General has issued a Certification to that effect. There was thus compliance with above-quoted rules. (2) Yes, there was improper exercise of police power., Ratio: There is proper exercise of police power only if: (1) the interests of the public generally, as distinguished from those of a particular class, require the interference of the State, and (2) the means employed are reasonably necessary for the attainment of the object sought to be accomplished and not unduly oppressive upon individuals. Otherwise

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stated, there must be a concurrence of a lawful subject and lawful method. Public interest/Lawful Subject -The traffic congestion is a public, not merely a private, concern. In Calalang v Williams, the SC said: In enacting said law, therefore, the National Assembly was prompted by considerations of public convenience and welfare. It was inspired by a desire to relieve congestion of traffic, which is, to say the least, a menace to public safety. Public welfare, then, lies at the bottom of the enactment of said law, and the state in order to promote the general welfare may interfere with personal liberty, with property, and with business and occupations. -The questioned ordinances having been enacted with the objective of relieving traffic congestion in the City of Lucena, they involve public interest warranting the interference of the State. Reasonable Necessity - SC found that the Sangguniang Panlungsod had identified the cause of traffic congestion to be the indiscriminate loading and unloading of passengers by buses on the streets of the city proper, hence, the conclusion that the terminals contributed to the proliferation of buses obstructing traffic on the city streets. - Bus terminals per se do not, however, impede or help impede the flow of traffic. How the outright proscription against the existence of all terminals, apart from that franchised to petitioner, can be considered as reasonably necessary to solve the traffic problem. If terminals lack adequate space such that bus drivers are compelled to load and unload passengers on the streets instead of inside the terminals, then reasonable specifications for the size of terminals could be instituted, with permits to operate the same denied those which are unable to meet the specifications. The scope of the proscription against the maintenance of terminals is so broad that even entities which might be able to provide facilities better than the franchised terminal are barred from operating at all. - In Estate of Gregoria Francisco v. Court of Appeals, SC held that: Respondents can not seek cover under the general welfare clause authorizing the abatement of nuisances without judicial proceedings. That tenet applies to a nuisance per se, or one which affects the immediate safety of persons and property and may be summarily abated under the undefined law of necessity (Monteverde v. Generoso, 52 Phil. 123 [1982]). The storage of copra in the quonset building is a legitimate business. By its nature, it can not be said to be injurious to rights of property, of health or of comfort of the community. If it be a nuisance per accidens it may be so proven in a hearing conducted for that purpose. It is not per se a nuisance warranting its summary abatement without judicial intervention. - In Pampanga Bus Co., Inc. v. Municipality of Tarlac where the appellantmunicipality similarly argued that the terminal involved therein is a nuisance that may be abated by the Municipal Council via an ordinance, SC held: Suffice it to say that in the abatement of nuisances the provisions of the Civil Code (Articles 694-707) must be observed and followed. This appellant failed to do. - Whether an ordinance is effective is an issue different from whether it is reasonably necessary. It is its reasonableness, not its effectiveness, which bears upon its constitutionality. If the constitutionality of a law were measured by its effectiveness, then even tyrannical laws may be justified whenever they happen to be effective. Disposition WHEREFORE, the petition is hereby DENIED.

PARAYNO v. JOVELLANOS G.R. No. 148408 CORONA; July 14, 2006

NATURE Petition for review on certiorari under Rule 45 FACTS - Parayno was the owner of a gasoline filling station in Calasiao, Pangasinan. In 1989, some residents of Calasiao petitioned the Sangguniang Bayan (SB) of said municipality for the closure or transfer of the station to another location. The matter was referred to the Municipal Engineer, Chief of Police, Municipal Health Officer and the Bureau of Fire Protection for investigation. SB recommended to the Mayor the closure or transfer of location of petitioners gasoline station. - Parayno moved for the reconsideration of the SB resolution but it was denied. Hence, she filed a special civil action for prohibition and mandamus with the RTC of Dagupan City. - Parayno claimed that her gasoline station was not covered by Section 44 of the Official Zoning Code since it was not a gasoline service station but a gasoline filling station governed by Section 21 thereof. She added that the decision of the HLURB in a previous case filed by the same Jovellanos against her predecessor (Dennis Parayno), barred the grounds invoked by respondent municipality in Resolution No. 50. In the HLURB case, respondent Jovellanos opposed the establishment of the gas station on the grounds that: (1) it was within the 100-meter prohibited radius (2) it posed a pernicious effect on the health and safety of the people in Calasiao. - TC held that there is no basis for the court to issue a writ of preliminary prohibitory and mandatory injunction. Following the principle of ejusdem generis, a gasoline filling station falls within the ambit of Section 44. The gasoline filling station endangers the lives and safety of people because once there is fire, the establishment and houses nearby will be razed to the ground. MFR denied. CA dismissed the petition for certiorari. ISSUES 1. WON the legal maxim of ejusdem generis apply to the case. 2. WON the closure/transfer of her gasoline filling station by respondent municipality was an invalid exercise of the latters police powers. 3. WON it was the principle of res judicata that applied in this case. HELD 1. NO. The zoning ordinance of respondent municipality made a clear distinction between gasoline service station and gasoline filling station. The ordinance intended these two terms to be separate and distinct from each other. Even respondent municipalitys counsel admitted this dissimilarity during the hearing on the application for the issuance of a writ of preliminary prohibitory and mandatory injunction. - What applied in this case was the legal maxim expressio unius est exclusio alterius which means that the express mention of one thing implies the exclusion of others. Hence, because of the distinct and definite meanings alluded to the two terms by the zoning ordinance, respondents could not insist that gasoline service station under Section 44 necessarily included gasoline filling station under Section 21. Indeed, the activities undertaken in a gas service station did not automatically embrace those in a gas filling station.

2. YES. While it had, under RA 7160, the power to take actions and enact measures to promote the health and general welfare of its constituents, it should have given due deference to the law and the rights of petitioner. - A local government is considered to have properly exercised its police powers only when the following requisites are met: (1) the interests of the public generally, as distinguished from those of a particular class, require the interference of the State and (2) the means employed are reasonably necessary for the attainment of the object sought to be accomplished and not unduly oppressive. The first requirement refers to the equal protection clause and the second, to the due process clause of the Constitution. - The municipality failed to comply with the due process clause when it passed Resolution No. 50. While it maintained that the gasoline filling station of petitioner was less than 100 meters from the nearest public school and church, the records do not show that it even attempted to measure the distance, notwithstanding that such distance was crucial in determining whether there was an actual violation of Section 44. The different local offices that respondent municipality tapped to conduct an investigation never conducted such measurement either. - Paraynos business could not be considered a nuisance which respondent municipality could summarily abate in the guise of exercising its police powers. The abatement of a nuisance without judicial proceedings is possible only if it is a nuisance per se. A gas station is not a nuisance per se or one affecting the immediate safety of persons and property, hence, it cannot be closed down or transferred summarily to another location. - Another factor that should not be left unnoticed is the diligence exercised by Parayno in complying with the requirements of the several laws prior to the actual implementation of the project as can be attested by the fact that she has secured the necessary building permit and approval of her application for authority to relocate as per the letter of the Energy Regulatory Board. 3. YES. The absolute identity of parties is not required for the principle of res judicata to apply. Res judicata may lie as long as there is a community of interests between a party in the first case and a party in the second case although the latter may not have been impleaded in the first. - In the assailed resolution of respondent municipality, it raised the same grounds invoked by its co-respondent in the HLURB: (1) that the resolution aimed to close down or transfer the gasoline station to another location due to the alleged violation of Section 44 of the zoning ordinance and (2) that the hazards of said gasoline station threatened the health and safety of the public. The HLURB had already settled these concerns and its adjudication had long attained finality.

TATEL vs MUNICIPALITY OF VIRAC 207 SCRA 157 Nocon, J;

NATURE Petition for prohibition with preliminary injunction to review the resolution of the Municipal Council of Vigan FACTS - Celestino Tatel owned a warehouse in which he operated an abaca bailing machine which emitted smoke, obnoxious odor, and dust. Upon complaint of the residents of the area, the municipal council appointed a committee to investigate said complaint.

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- The committee noted the danger to the lives and properties of the people within the neighborhood considering the crowded nature of the place and the storing of inflammable materials stored inside the warehouse. - The council on April 22, 1966 passed a resolution declaring the warehouse a public nuisance within the purview of Article 694 of the New Civil Code directing Tatel to remove and transfer said warehouse within two months from receipt of the resolution. - It should also be noted that the Council alleged that the warehouse was constructed in violation of Ordinance No. 13. series of 1952, prohibiting the construction warehouses near a block of houses without maintaining the necessary distance of 200 meters from said block of houses to avoid loss of lives and properties by accidental fire. - Tatel questioned the constitutionality of the ordinance contending that the same was contrary to the due process and equal protection clause of the constitution and null and void for not having been passed in accordance with law. ISSUE/S WON Ordinance No 13 is unconstitutional and void HELD No. Ordinance No. 13, series of 1952, was passed by the Municipal Council of Virac in the exercise of its police power. It is a settled principle of law that municipal corporations are agencies of the State for the promotion and maintenance of local self-government and as such are endowed with police powers in order to effectively accomplish and carry out the declared objects of their creation. Its authority emanates from the general welfare clause under the Administrative Code. For it to be valid however 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 Disposition Petition is dismissed for lack of merit..

- Petitioners Balacuit, Tan, and Carcel are managers of Maya and Dalisay Theaters, Crown Theater, and Diamond Theater, respectively. Aggrieved by Ordinance No. 640, they filed a complaint before CFI Agusan del Norte and Butuan City praying that it be declared unconstitutional. A TRO was issued enjoining from enforcing Ordinance No. 640. - CFI > declared Ordinance No. 640 constitutional and valid provided that the fine shall not exceed P200 - Petitioners claim: > Ordinance No. 640 unconstitutional that it is ultra vires and an invalid exercise of police power. > Ordinance No. 640 is not within the power of the Municipal Board to enact as provided for in Section 15(n) of RA 523, the Charter of the City of Butuan, which states: Sec. 15. General powers and duties of the Board. Except as otherwise provided by law, and subject to the conditions and limitations thereof, the Municipal Board shall have the following legislative powers: n) To regulate and fix the amount of the license fees for the following; . . . theaters, theatrical performances, cinematographs, public exhibitions and all other performances and places of amusements . . . - Respondent claims: > enactment of the ordinance is through the general welfare clause embodied in Section 15 (nn) of RA 523, which provides: (nn) To enact all ordinances it may deem necessary and proper for the sanitation and safety, the furtherance of the prosperity, and the promotion of the morality, peace, good order, comfort, convenience, and general welfare of the city and its inhabitants, and such others as may be necessary to carry into effect and discharge the powers and duties conferred by this Act, and to fix the penalties for the violation of the ordinances, which shall not exceed a two hundred peso fine or six months imprisonment, or both such fine and imprisonment, for a single offense. ISSUE WON the power to regulate including the authority to interfere in the fixing of prices of admission to these places of exhibition and amusement falls under general grant of power or general welfare clause HELD NO Ratio 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. 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. The right of the owner to fix a price at which his property shall be sold or used is an inherent attribute of the property itself and, as such, within the protection of the due process clause. Hence, the proprietors of a theater have a right to manage their property in their own way, to fix what prices of admission they think most for their own advantage, and that any person who did not approve could stay away - The exercise of police power by the local government is valid unless it contravenes the fundamental law of the land, or an act of the legislature, or unless it is against public policy or is unreasonable, oppressive, partial,

discriminating or in derogation of a common right. Ordinance No. 640 clearly invades the personal and property rights of petitioners for even if We could assume that, on its face, the interference was reasonable, from the foregoing considerations, it has been fully shown that it is an unwarranted and unlawful curtailment of the property and personal rights of citizens. For being unreasonable and an undue restraint of trade, it cannot, under the guise of exercising police power, be upheld as valid. Reasoning - To invoke the exercise of police power, not only must it appear that the interest of the public generally requires an interference with private rights, but the means adopted must be reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals. The legislature may not, under the guise of protecting the public interest, arbitrarily interfere with private business, or impose unusual and unnecessary restrictions upon lawful occupations. In other words, the determination as to what is a proper exercise of its police power is not final or conclusive, but is subject to the supervision of the courts. - The evident purpose of the ordinance is to help ease the burden of cost on the part of parents who have to shell out the same amount of money for the admission of their children, as they would for themselves. A reduction in the price of admission would mean corresponding savings for the parents. But as petitioners point out, there will be difficulty in its implementation because as already experienced since the effectivity of the ordinance, children over 12 years of age tried to pass off their age as below 12 years in order to avail of the benefit of the ordinance. We can see that the ordinance is clearly unreasonable if not unduly oppressive upon the business of petitioners. Moreover, there is no discernible relation between the ordinance and the promotion of public health, safety, morals and the general welfare. - There is nothing pernicious in demanding equal price for both children and adults. The petitioners are merely conducting their legitimate businesses. The object of every business entrepreneur is to make a profit out of his venture. There is nothing immoral or injurious in charging the same price for both children and adults. In fact, no person is under compulsion to purchase a ticket. It is a totally voluntary act on the part of the purchaser if he buys a ticket to such performances. Disposition Decision is REVERSED and SET ASIDE and a new judgment is hereby rendered declaring Ordinance No. 640 unconstitutional

SEPARATE OPINION GUTIERREZ, JR [concur]

- the legislature may not, under the guise of protecting the public interest, arbitrarily interfere with private business, or impose unusual and unnecessary restrictions upon lawful occupations. The imposition enacted by the municipal board of Butuan City has not been justified by its proponents as a restriction necessary for public health or public welfare. No reasonable relationship has been shown between a valid purpose and the proper means to accomplish it. - while the Butuan City ordinance is invalid, it does not necessarily follow that all forms of regulation are proscribed as seem in People vs Chan, restricting sales of tickets beyond the seating capacity for first-time screening, and Samson vs Mayor of Bacolod City, prohibiting proprietor, lessee or operator of an amusement place to admit two or more persons with only one admission ticket. - Police power is inherent in the State but not in municipal corporations. For a municipal corporation to exercise police power, there must be a legislative grant which necessarily also sets the limits for the exercise of the power. In

BALACUIT V CFI AGUSAN DEL NORTE AND BUTUAN CITY 163 SCRA 182 GANCAYCO; June 30, 1988
NATURE Petition for review of validity and constitutionality of Ordinance No. 640 passed by the Municipal Board of City of Butuan entities selling admission tickets to any movie or other public exhibitions, games, contests or other performances to require children between 7 and 12 years of age to pay full for tickets intended for adults but should charge only , upon conviction fine in the amount of P200 to P600 or imprisonment of 2 to 6 months or both. FACTS

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the Philippines, the grant of authority to the municipality to exercise police power is embodied in Section 2238 of the Revised Administrative Code, otherwise known as the General Welfare Clause. Chartered cities are granted similar authority in their respective charters. - The general welfare clause has two branches (U.S. v. Salaveria) 1) authorizes the municipal council to enact such ordinances and make such regulations not repugnant to law, as may be necessary to carry into effect and discharge the powers and duties conferred upon the municipal council by law. 2) authorizes the municipality to enact such ordinances as may be necessary and proper for the health and safety, promote the prosperity, improve the morals, peace, good order, comfort, and convenience of the municipality and inhabitants thereof, and for the protection of property therein.

VILLANUEVA V CASTANEDA GR L-61311 CRUZ; September 21, 1987

NATURE Petition for certiorari decision of CFI Pampanga, (denying petition for prohibition filed by petitioners against OIC of the office of the mayor, who ordered the demolition of a talipapa occupying the Public Plaza) FACTS - in the public plaza of San Fernando Pampanga, there stood a conglomeration of vendor stalls (a talipapa) which the municipal government, through the municipal council by virtue of Municipal Resolution 29 and the office of the mayor, sought to be demolished (in order to convert the area into a parking place and public plaza) - the vendors occupying the area filed a petition for prohibition against the OIC of the office of the mayor, contending that the municipal governemtn cannot order the demolition of the talipapa on account of a standing lease agreement between the vendors and the municipality. Allegedly, the vendors would pay a daily rental to the municipality for their stay. ISSUE 1. WON the order for demolition was valid HELD 1. YES Ratio There is no question that the place occupied by the petitioners and from which they are sought to be evicted is a public plaza which is beyond the commerce of man and so cannot be the subject of lease or any other contractual undertaking. Reasoning Petitioners had no right in the first place to occupy the disputed premises and cannot insist in remaining there now on the strength of their alleged lease contracts Municipality of Cavite vs. Rojas(1915): In leasing a portion of said plaza or public place to the defendant for private use, the plaintiff municipality exceeded its authority in the exercise of its powers by executing a contract over a thing of which it could not dispose, nor is it empowered so to do. Art.1271, CC, prescribes that everything which is not outside the commerce of man may be the object of a contract, and plazas and streets are outside of this commerce "communal things that cannot be sold because they are

by their very nature outside of commerce are those for public use, such as plazas, streets, common lands, rivers, fountains, etc.) Espiritu vs. Municipal Council of Pozorrubio: Town plazas are properties of public dominion, to be devoted to public use and to be made available to the public in general They are outside the common of man and cannot be disposed of or even leased by the municipality to private parties. On Police Power - The problems caused by the usurpation of the place by the petitioners are covered by the police power as delegated to the municipality under the general welfare clause in the Revised Administrative Code, which authorizes the municipal council "to enact such ordinances and make such regulations, not repugnant to law, as may be necessary to carry into effect and discharge the powers and duties conferred upon it by law and such as shall seem necessary and proper to provide for the health and safety, promote the prosperity, improve the morals, peace, good order, comfort, and convenience of the municipality and the inhabitants thereof, and for the protection of property therein." Resolution No. 29 by the municipal council of San Fernando was in valid exercise of this authority. - Even assuming a valid lease of the property in dispute, the resolution could have effectively terminated the agreement for it is settled that the police power cannot be surrendered or bargained away through the medium of a contract. In fact, every contract affecting the public interest suffers a congenital infirmity in that it contains an implied reservation of the police power as a postulate of the existing legal order. This power can be activated at any time to change the provisions of the contract, or even abrogate it entirely, for the promotion or protection of the general welfare. Such an act will not militate against the impairment clause, which is subject to and limited by the paramount police power. - Final Statement of the court (pertaining to the petitioners): Regrettably, they have refused to recognize that in the truly democratic society, the interests of the few should yield to those of the greater number in deference to the principles that the welfare of the people is the supreme law and overriding purpose. We do not see any altruism here. The traditional ties of sharing are absent here. What we find, sad to say, is a cynical disdaining of the spirit of "bayanihan," a selfish rejection of the cordial virtues of "pakikisama" and "pagbibigayan" which are the hallmarks of our people. Yown naman. Disposition Petition is denied. Decision affirmed

Caloocan, the OIC City Mayor and the City Engineer and/or their deputies before the RTC Caloocan City (Branch 122, Civil Case C-12921), praying the court to issue a writ of preliminary injunction ordering these city officials to discontinue the demolition of their stalls during the pendency of the action. The court issued the writ prayed for. However, on 20 December 1987, it dismissed the petition and lifted the writ of preliminary injunction which it had earlier issued. However, shortly after the decision came out, the city administration in Caloocan City changed hands. City Mayor Macario Asistio, Jr. did not pursue the latter's policy of clearing and cleaning up the city streets. Invoking the trial courts decision, Francisco Dacanay wrote a letter to Mayor Asistio calling his attention to the illegally-constructed stalls on Heroes del 96 street and asked for demolition on 7 March 1988, wrote a follow-up letter to the mayor and the city engineer on 7 April 1988, and without receiving any response, sought the intervention of President Aquino through a letter. These letter was referred to the city mayor for appropriate action. On 3 April 1989, Dacanay filed a complaint against Mayor Asistio and Engineer Sarne (OMB-0-89-0146) in the Office of the Ombudsman. After conducting a preliminary investigation, the Ombudsman rendered a final evaluation and report on 28 August 1989, finding that the Mayors and the City Engineer's inaction is purely motivated by their perceived moral and social responsibility toward their constituents, but "the fact remains that there is an omission of an act which ought to be performed, in clear violation of Sections 3(e) and (f) of RA 3019." The Ombudsman recommended the filing of the corresponding information in court. As the stallholders continued to occupy Heroes del '96 Street, through the tolerance of the city officials, and in clear violation of the decision in Civil Case C-12921, Dacanay filed a petition for mandamus on 19 June 1990, praying that the city officials be ordered to enforce the final decision in Civil Case C-12921 which upheld the city mayor's authority to order the demolition of market stalls on V. Gozon, Gonzales and Heroes del '96 Streets and to enforce PD 772 and other pertinent laws. ISSUE: May public streets or thoroughfares be leased or licensed to market stallholders by virtue of a city ordinance or resolution of the Metro Manila Commission HELD: NO. . There is no doubt that the disputed areas from which the private respondents' market stalls are sought to be evicted are public streets. A public street is property for public use hence outside the commerce of man .Being outside the commerce of man, it may not be the subject of lease or other contract (Villanueva et al. vs. Castaeda and Macalino, 15 SCRA 142, citing the Municipality of Cavite vs. Rojas, 30 SCRA 602; Espiritu vs. Municipal Council of Pozorrubio, 102 Phil. 869; and Muyot vs. De la Fuente, 48 O.G. 4860). As the stallholders pay fees to the City Government for the right to occupy portions of the public street, the City Government, contrary to law, has been leasing portions of the streets to them. Such leases or licenses are null and void for being contrary to law. The right of the public to use the city streets may not be bargained away through contract. The interests of a few should not prevail over the good of the greater number in the community whose health, peace, safety, good order and general welfare, the respondent city officials are under legal obligation to protect.

DACANAY V ASISTIO 208 SCRA 404 GRIO-AQUINO: May 6, 1992

FACTS: Jan 5, 1979, MMC Ordinance No. 79-02 was enacted by the Metropolitan Manila Commission, designating certain city and municipal streets, roads and open spaces as sites for flea markets. Pursuant, thereto, the Caloocan City mayor opened up seven (7) flea markets. One of those streets was the "Heroes del '96" where the petitioner lives. Upon application of vendors the respondents city mayor and city engineer, issued them licenses to conduct vending activities on said street. In 1987, Antonio Martinez, as OIC city mayor of Caloocan City, caused the demolition of the market stalls on Heroes del '96, V. Gozon and Gonzales streets. To stop Mayor Martinez' efforts to clear the city streets, Teope, Pastrana and other stallowners filed an action for prohibition against the City of

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The Executive Order issued by Acting Mayor Robles authorizing the use of Heroes del '96 Street as a vending area for stallholders who were granted licenses by the city government contravenes the general law that reserves city streets and roads for public use. Mayor Robles' Executive Order may not infringe upon the vested right of the public to use city streets for the purpose they were intended to serve: i.e., as arteries of travel for vehicles and pedestrians.

Republic Act 2264 confers on chartered cities and municipalities authority to impose municipal license taxes or fees upon persons engaged in any occupation or business, or exercising privileges in chartered cities or municipalities x x x by requiring them to secure licenses at rates fixed by the municipal board or city council, Respondents have failed to show that the persons merely burying a cadaver in a private cemetery constitutes either an occupation or business or the exercise of privileges that would justify the imposition of taxes thereon within the terms and intent of the enabling act, the terms employed by the statute in themselves denoting habitually or a repetition of acts, and not a solitary act.

NATURE Five consolidated petitions, in the nature of appeals (by certiorari under Rule 45 of the Rules of Court) from five decisions of the Court of Appeals, denying specific performance and damages. FACTS * In brief, the five consolidated petitions are efforts to enforce the "deed restrictions" in question against specific residents (private respondents in the petitions) of Jupiter Street and with respect to G.R. No. 78182, Reposo Street. The private respondents are alleged to have converted their residences into commercial establishments (a restaurant in G.R. No. 74376, a bakery and coffee shop in G.R. No. 76394, an advertising firm in G.R. No. 78182; and a construction company, apparently, in G.R. No. 82281) in violation of the said restrictions. 24 Their mother case, G. R. No. 71169 is, on the other hand, a petition to hold the vendor itself, Ayala Corporation (formerly Makati Development Corporation), liable for tearing down the perimeter wall along Jupiter Street that had therefore closed its commercial section from the residences of Bel-Air Village and ushering in, as a consequence, the full "commercialization" of Jupiter Street, in violation of the very restrictions it had authored.
I. G.R. No. 71169 When Bel-Air Village was planned, this block between Reposo and Zodiac Streets adjoining Buendia Avenue in front of the village was designated as a commercial block. Bel-Air Village was owned and developed into a residential subdivision in the 1950s by Makati Development Corporation (hereinafter referred to as MDC), which in 1968 was merged with appellant Ayala Corporation. The lots which were acquired by appellees Sangalang and spouse Gaston and spouse and Briones and spouse in 1960, 1957 and 1958, respectively, were all sold by MDC subject to certain conditions and easements contained in Deed Restrictions which formed a part of each deed of sale. (restrictions pertain to use of lots, membership, term of restrictions, enforcement of restrictions among others When MDC sold the above-mentioned lots to appellees' predecessors-in-interest, the whole stretch of the commercial block between Buendia Avenue and Jupiter Street, from Reposo Street in the west to Zodiac Street in the east, was still undeveloped. Access, therefore, to Bel-Air Village was opened to all kinds of people and even animals. So in 1966, although it was not part of the original plan, MDC constructed a fence or wall on the commercial block along Jupiter Street. In 1970, the fence or wall was partly destroyed by typhoon "Yoling." The destroyed portions were subsequently rebuilt by the appellant. When Jupiter Street was widened in 1972 by 3.5 meters, the fence or wall had to be destroyed. Upon request of BAVA, the wall was rebuilt inside the boundary of the commercial block. When the appellant finally decided to subdivide and sell the lots in the commercial block between Buendia and Jupiter, BAVA wrote the appellant on May 9, 1972, requesting for confirmation on the use of the commercial lots. The appellant replied on May 16, 1972, informing BAVA of the restrictions intended to be imposed in the sale and use of the lots. Among these restrictions are: that the building shall have a set back of 19 meters; and that with respect to vehicular traffic along Buendia Avenue, entrance only will be allowed, and along Jupiter Street and side streets, both entrance and exit will be allowed.

POLICARPIO VIRAY, ET AL. vs. CITY OF CALOOCAN, ET AL 20 SCRA 791 REYES, J.B.L., J.: ( 1967)
NATURE Appeal, questioning the authority of the City of Caloocan to impose a fee of P10.00 or P5.00 as the case may be, for every cadaver coming from other places and buried in private cemeteries within that city. FACTS Policarpio Viray, Antonio Cajote and Leopoldo Prieto, all residents of the City of Manila who were charged by, and actually paid to, the City Treasurer of Caloocan "entrance fees" for the burial of their respective relatives in the La Loma cemetery, allegedly pursuant to Ordinance No. 94, series of 1962, filed the action in the Court of First Instance of Caloocan against the city government, its Mayor and Treasurer contesting the legality of the aforementioned city ordinance, on the ground that it was a revenueraising measure which is beyond the taxing authority of the defendant city government to enact, and praying that it be declared ultra vires and void ab initio, and that the fees they paid to defendants be returned to them. Respondent City endeavors to justify the fees prescribed by the ordinance in question as a proper exercise of the police power, claiming that it involves the assignment of police officers to insure that the funeral procession x x x is orderly so as not to cause great and serious inconvenience to the public. During the procession traffic has to be rerouted at times; policemen have to use the city's motorcycles or cars; the streets and other City property have to suffer certain degree of depreciation. ISSUE 1. Whether or not Ordinance No. 94, series of 1962, and the consequent collection from plaintiffs-appellants of the so-called entrance fees, allegedly made pursuant to said ordinance is valid. 2. Whether or not the Ordinance is justifiable as an exercise of police power. RULING 1. NO RATIO

REASONING The inescapable conclusion is that, although the ordinance which regulates the exhumation and/or transfer of corpses from other burial grounds to those located in the City of Caloocan is within the legislative power of the respondent city, government to enact, the imposition of the transfer fees under Ordinance No. 94, on the interment of the respective dead relatives of herein appellants in the La Loma cemetery, was not justified. Appellants' prayer therefore, for the return by defendant City Treasurer of the alleged entrance fees, must be granted. 2. NO RATIO A police power measure, which serves no legitimate objective and in fact, unduly discriminates, is void. REASONING While undeniably the above-described activity of city officers is called for by every funeral procession, yet we are left without explanation why the Ordinance should collect the prescribed fees solely in the case of cadavers coming from places outside the territory of Caloocan City for burial in private cemeteries within the City. Surely, whether the corpse comes from without or within the City limits, and whether interment is to be made in private or public cemeteries, the City police must regulate traffic, And must use their City cars or motorcycles to maintain order; and the City streets must suffer some degree of erosion. Clearly, then, the ordinance in question does unjustifiably discriminate against private cemeteries, in violation of the equal protection clause of the Constitution, a defect adequate to invalidate the questioned portion of the measure. Wherefore, the decision appealed from is reversed and the questioned portion of Ordinance No. 94, series of 1962 of the City of Caloocan, is declared ultra vires and void. Costs against the respondents. So ordered.

SANGALANG VS IAC
G.R. No. 71169; Sarmiento December 22, 1988

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Meantime, on April 4, 1975, the municipal council of Makati enacted its ordinance No. 81, providing for the zonification of Makati . Under this Ordinance, Bel-Air Village was classified as a Class A Residential Zone, with its boundary in the south extending to the center line of Jupiter Street Similarly, the Buendia Avenue Extension area was classified as Administrative Office Zone with its boundary in the North-North East Extending also up to the center line of Jupiter Street The Residential Zone and the Administrative Office Zone, therefore, have a common boundary along the center line of Jupiter Street. The above zoning under Ordinance No. 81 of Makati was later followed under the Comprehensive Zoning Ordinance for the National Capital Region adopted by the Metro Manila Commission as Ordinance 81 -01 on March 14, 1981. However, under this ordinance, Bel-Air Village is simply bounded in the South-Southeast by Jupiter Street-not anymore up to the center line of Jupiter Street (Exh. B). Likewise, the blockdeep strip along the northwest side of Buendia Avenue Extension from Reposo to EDSA was classified as a High Intensity Commercial Zone. Under the above zoning classifications, Jupiter Street, therefore, is a common boundary of Bel-Air Village and the commercial zone. Meanwhile, in 1972, BAVA had installed gates at strategic locations across Jupiter Street which were manned and operated by its own security guards who were employed to maintain, supervise and enforce traffic regulations in the roads and streets of the village. Then, on January 17, 1977, the Office of the Mayor of Makati wrote BAVA directing that, in the interest of public welfare and for the purpose of easing traffic congestion, several streets in Bel-Air Village should be opened for public use. BAVA wrote the Mayor of Makati, expressing the concern of the residents about the opening of the streets to the general public, and requesting specifically the indefinite postponement of the plan to open Jupiter Street to public vehicles. However, BAVA voluntarily opened to the public Amapola, Mercedes, Zodiac, Neptune and Paseo de Roxas streets. Later, on June 17,1977, the Barangay Captain of Bel-Air Village was advised by the Office of the Mayor that, in accordance with the agreement entered into during the meeting on January 28, 1 977, the Municipal Engineer and the Station Commander of the Makati Police were ordered to open for public use Jupiter Street from Makati Avenue to Reposo Street. Accordingly, he was requested to advise the village residents of the necessity of the opening of the street in the interest of public welfare. Finally, the municipal officials of Makati concerned allegedly opened, destroyed and removed the gates constructed/located at the corner of Reposo Street and Jupiter Street as well as the gates/fences located/constructed at Jupiter Street and Makati Avenue forcibly, and then opened the entire length of Jupiter Street to public traffic. In October, 1979, the fence at the corner of Orbit and Neptune Streets was opened and removed. The opening of the whole stretch of Orbit Street from J.P. Rizal Avenue up to Imelda Avenue and later to Jupiter Street was agreed to at the conference attended by the President of BAVA in the office of the Station Commander of Makati, subject to certain conditions. Plaintiffs-appellees Jose D. Sangalang and Lutgarda D. Sangalang brought the present action for damages against the defendant-appellant Ayala Corporation predicated on both breach of contract and on tort or quasi-delict. Claiming to be similarly situated as the plaintiffs-appellees, the spouses Felix C. Gaston and Dolores R. Gaston, Jose V. Briones and Alicia R. Briones, and the homeowners' association (BAVA) intervened in the case. II. G.R. No. 74376

This petition was similarly brought by BAVA to enforce the aforesaid restrictions stipulated in the deeds of sale executed by the Ayala Corporation. This alleged that the defendant [now, private respondent] Tenorio allowed defendant [Tenorio's co-private respondent] Gonzalves to occupy and convert the house at 50 Jupiter Street, Bel-Air Village, Makati, Metro Manila, into a restaurant, without its knowledge and consent, and in violation of the deed restrictions which provide that the lot and building thereon must be used only for residential purposes upon which the prayed for main relief was for 'the defendants to permanently refrain from using the premises as commercial and to comply with the terms of the Deed Restrictions." The trial court dismissed the complaint on a procedural ground, i.e., pendency of an Identical action III. G.R. No. 76394 Defendants-spouses Eduardo V. Romualdez, Jr. and Buena Tioseco are the owners of a house and lot located at 108 Jupiter St., Makati, Metro Manila. Plaintiff noted that certain renovations and constructions were being made by the defendants on the subject premises, for which reason the defendants were advised to inform the plaintiff of the kind of construction that was going on. Because the defendants failed to comply with the request of the plaintiff, the latter's chief security officer visited the subject premises and found out that the defendants were putting up a bake and coffee shop. Thereafter, the plaintiff reminded defendants that they were violating the deed restriction. Despite said reminder, the defendants proceeded with the construction of the bake shop. Consequently, plaintiff sent defendants a letter warning them that if they will not desist from using the premises in question for commercial purposes, they will be sued for violations of the deed restrictions. Despite the warning, the defendants proceeded with the construction of their bake shop. The trial court adjudged in favor of BAVA. On appeal, the Court of Appeals reversed. BAVA then elevated the matter to the Court by a petition for review on certiorari. The Court 12 initially denied the petition "for lack of merit. IV. G.R. No. 78182. The case stemmed from the leasing by defendant Dolores Filley of her building and lot situated at No. 205 Reposo Street, Bel-Air Village Makati, Metro Manila to her co-defendant, the advertising firm J. Romero and Associates, in alleged violation of deed restrictions which stipulated that Filley's lot could only be used for residential purposes. Plaintiff sought judgment from the lower court ordering the defendants to "permanently refrain" from using the premises in question "as commercial" and to comply with the terms of the deed restrictions. After the proper proceedings, the court granted the plaintiff the sought for relief with the additional imposition of exemplary damages. The Court of Appeals overturned the lower court, likewise based on AC-G.R. No. 66649. The respondent Court observed also that J. Romero & Associates

had been given authority to open a commercial office by the Human Settlements Regulatory Commission. V. G.R. No. 82281 Plaintiff (BAVA for short) is the legally constituted homeowners' association in Bel-Air Subdivision, Makati, Metro Manila. Defendant Violets Moncal is the registered owner of a parcel of land with a residential house constructed thereon situated at No. 104 Jupiter Street, Bel-Air Village, Makati, Metro Manila. A deed restrictions is annotated on the title of defendant Moncal, which provides, among others, that the lot in questionmust be used only for residential purposes;' that at time Moncal purchased her aforesaid lot in 1959 said deed restrictions was already annotated in the said title. When Moncal leased her subject property to Majal, she did not secure the consent of BAVA to lease the said house and lot to the present lessee. The parties admit that along Jupiter Street and on the same side where Moncal's property is located, there are restaurants, clinics placement or employment agencies and other commercial or business establishments. These establishments, however, were sued by BAVA in the proper court. at the time Moncal purchased the subject property from the Makati Development Corporation, there was a perimeter wall, running along Jupiter Street, which wall was constructed by the subdivision owner;At that time the gates of the entrances to Jupiter Street were closed to public traffic. In short, the entire length of Jupiter which was inside the perimeter wall was not then open to public traffic. Subsequent thereto, Ayala tore down the perimeter wall to give way to the commercial building fronting Buendia Avenue (now Gil J. Puyat Avenue). Subsequently, the Mayor of Makati forcibly opened and removed the street gates constructed on Jupiter Street and Reposo Street, thereby opening said streets to the public. The trial court dismissed the petitioner's complaint, a dismissal affirmed on appeal, According to the appellate court, the opening of Jupiter Street and the commercialization of the Municipality of Makati were circumstances that had made compliance by Moncal with the aforesaid "deed restrictions" "extremely difficult and unreasonable," (under Article 1267 of the Civil Code.) As We indicated, the Court of Appeals dismissed all five appeals on the basis primarily of its ruling in AC-G.R. No. 66649, "Bel-Air Village, Inc. v. Hy-Land Realty Development Corporation, et al.," in which the appellate court explicitly rejected claims under the same 'deed restrictions" as a result of Ordinance No. 81 enacted by the Government of the Municipality of Makati, as well as Comprehensive Zoning Ordinance No. 8101 promulgated by the Metropolitan Manila Commission, which two ordinances allegedly allowed the use of Jupiter Street both for residential and commercial purposes. It was likewise held that these twin measures were valid as a legitimate exercise of police power. The Court of Appeals' reliance on Ordinance Nos. 81. and 8101 is now assailed in these petitions, particularly the Sangalang, et al. petition ISSUE:

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WON appellate court's reliance on Ordinances Nos. 81 and 81-01is valid (It was the opinion of the Court of Appeals, as we said, that Ayala's liability therefor, if one existed, had been overtaken by the passage of Ordinances Nos. 81 and 82-01, opening Jupiter Street to commerce.) HELD: NO RATIO It is our ruling, we reiterate, that Jupiter Street lies as a mere boundary, a fact acknowledged by the authorities of Makati and the National Government and, as a scrutiny of the records themselves reveals, by the petitioners themselves, as the articles of incorporation of Bel-Air Village Association itself would confirm. As a consequence, Jupiter Street was intended for the use by both -the commercial and residential blocks. It was not originally constructed, therefore, for the exclusive use of either block, least of all the residents of Bel-Air Village, but, we repeat, in favor of both, as distinguished from the general public. In any case, we find the petitioners' theory, that maintaining the wall was a matter of a contractual obligation on the part of Ayala, to be pure conjecture. The records do not establish the existence of such a purported commitment. For one, the subdivision plans submitted did not mention anything about it. For another, there is nothing in the "deed restrictions" that would point to any covenant regarding the construction of a wall. There is no representation or promise whatsoever therein to that effect. In fine, we cannot hold the Ayala Corporation liable for damages for a commitment it did not make, much less for alleged resort to machinations in evading it. The records, on the contrary, will show that the Bel-Air Village Association had been informed, at the very outset, about the impending use of Jupiter Street by commercial lot buyers. It is not that we are saying that restrictive easements, especially the easements herein in question, are invalid or ineffective. As far as the Bel-Air subdivision itself is concerned, certainly, they are valid and enforceable. But they are, like all contracts, subject to the overriding demands, needs, and interests of the greater number as the State may determine in the legitimate exercise of police power. Our jurisdiction guarantees sanctity of contract and is said to be the "law between the contracting parties, 65 but while it is so, it cannot contravene 'law, morals, good customs, public order, or public policy. 66 Above all, it cannot be raised as a deterrent to police power, designed precisely to promote health, safety, peace, and enhance the common good, at the expense of contractual rights, whenever necessary. In Ortigas & Co., Limited Partnership v. Feati Bank and Trust Co., 67 we are told: 2. With regard to the contention that said resolution cannot nullify the contractual obligations assumed by the defendant-appellee referring to the restrictions incorporated in the deeds of sale and later in the corresponding Transfer Certificates of Title issued to defendant-appellee it should be stressed, that while non-impairment of contracts is constitutionally guaranteed, the rule is not absolute, since it has to be reconciled with the legitimate exercise of police power, i.e., "the power to prescribe regulations

to promote the health, morals, peace, education, good order or safety and general welfare of the people.' Invariably described as "the most essential, insistent, and illimitable of powers" and "in a sense, the greatest and most powerful attribute of government," the exercise of the power may be judicially inquired into and corrected only if it is capricious, whimsical, unjust or unreasonable, there having been a denial of due process or a violation of any other applicable constitutional guarantee. As this Court held through Justice Jose P. Bengson in Philippine Long Distance Company vs. City of Davao, et al. police power 'is elastic and must be responsive to various social conditions; it is not confined within narrow circumscriptions of precedents resting on past conditions; it must follow the legal progress of a democratic way of life.' We were even more emphatic in Vda. de Genuino vs. The Court of agrarian Relations, et al., when We declared: "We do not see why public welfare when clashing with the individual right to property should not be made to prevail through the state's exercise of its police power." Resolution No. 27, 1960 declaring the western part of High way 54, now E. de los Santos Avenue (EDSA, for short) from Shaw Boulevard to the Pasig River as an industrial and commercial zone, was obviously passed by the Municipal Council of Mandaluyong, Rizal in the exercise of police power to safeguard or promote the health, safety, peace, good order and general welfare of the people in the locality. Judicial notice may be taken of the conditions prevailing in the area, especially where Lots Nos. 5 and 6 are located. The lots themselves not only front the highway; industrial and commercial complexes have flourished about the place. EDSA, a main traffic artery which runs through several cities and municipalities in the Metro Manila area, supports an endless stream of traffic and the resulting activity, noise and pollution are hardly conducive to the health, safety or welfare of the residents in its route. Having been expressly granted the power to adopt zoning and subdivision ordinances or regulations, the municipality of Mandaluyong, through its Municipal Council, was reasonably, if not perfectly, justified under the circumstances, in passing the subject resolution. Undoubtedly, the MMC Ordinance represents a legitimate exercise of police power. The petitioners have not shown why we should hold otherwise other than for the supposed "nonimpairment" guaranty of the Constitution, which, as we have declared, is secondary to the more compelling interests of general welfare. DISPOSITION Petitions denied

- the Minister of Finance sent a letter to the Sanggunian, suspending the effectivity of the ordinance on the ground that it contravenes Section 19(a) of the Local Tax Code. - the City of Zamboanga appealed said decision to the RTC which rendered a decision finding that the tax levied under said Ordinance is not among those that the Sanggunian may impose under the Local Tax Code, but nonetheless, it upheld its validity on the ground that the Minister of Finance did not take appropriate action on the matter within the prescribed period of 120 days after receipt of a copy thereof - Hence, this petition, alleging that the trial court erred when it held that the failure of the Minister of Finance to take appropriate action within the prescribed period rendered said Ordinance valid. ISSUE WON Ordinance No.44 is valid. HELD NO. Ordinance No. 44 imposes P0.01 per liter of softdrinks produced, manufactured, and/or bottled within the territorial jurisdiction of Zamboanga. No doubt this Ordinance is ultra vires as it is not within the authority of the City to impose said tax. The authority of the City is limited to the imposition of a percentage tax on the gross sales or receipts of said product which, being non-essential, shall be at the rate of not exceeding 2% of the gross sales or receipts of the softdrinks for the preceding calendar year. The tax being imposed under said Ordinance is based on the output or production and not on the gross sales or receipts as authorized under the Local Tax Code. - Section 19 (a) of the Local Tax Code provides: The municipality may impose a tax on businesses as follows: (a) Tax on the business of manufacturing, importing, exporting, producing, wholesaling or retailing of, or dealing in, any article of commerce of whatever kind or nature, except those for which fixed taxes are provided herein:... - In relation thereto Section 23 also provides: Except as otherwise provided in this Code, the city may levy and collect, among others, any of the taxes, fees and other impositions that the province or the municipality may levy and collect. The exercise of the taxing powers of the city extends to the taxes, fees and other impositions mentioned in Sections 12, 13, 14, 15 and 16 of this Code which the city shall also impose and collect, to the exclusion of the national and municipal governments. The rates of the taxes, fees, or other impositions that the city shall fix may exceed the maximum rates allowed for the province or municipality by not more than fifty per cent, except the rates of the taxes and fees provided in Sections 12, 13 and 14 in Chapter II of this Code which shall be uniform for the province and the city. In lieu of the graduated fixed tax prescribed under Section 19 of this Code as read in relation with this Section, the city may impose a percentage tax on the sales of non-essential commodities at the rate of not exceeding two per cent and on the sales of essential commodities at the rate of not exceeding one per cent. In no case, however, shall the city impose both the graduated fixed tax and the percentage tax on the same subject... - It is clear that a city may impose, in lieu of the graduated fixed tax prescribed under Sec.19 of the Local Tax Code, a percentage tax on the gross sales for the preceding calendar year of non-essential commodities at the rate of not exceeding two per cent and on the gross sales of essential commodities at the rate of not exceeding one per cent.

ESTANISLAO VS. COSTALES

196 SCRA 853 GANCAYCO; May 8, 1991 NATURE Petition for review on certiorari filed by the incumbent Secretary of Finance FACTS - The validity of Ordinance No. 44 of Zamboanga City, dated January 13, 1982 imposing a P0.01 tax per liter of softdrinks produced, manufactured, and/or bottled within the territorial jurisdiction of Zamboanga is the issue addressed by this petition. - Ordinance No.44 was passed by the Sangguniang Panglungsod of Zamboanga City.

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- Zamboanga City, however, invokes the ruling in Pepsi-Cola Bottling Company vs. Municipality of Tanauan, Leyte whereby this Court upheld the validity of Municipal Ordinance No. 27 enacted by the Municipality of Tanauan, Leyte imposing a tax of P0.01 for every gallon of softdrinks produced in the municipality. Said case was decided by this Court on the basis of the provisions of the Local Autonomy Act. However, the Local Autonomy Act has been superseded by the Local Tax Code insofar as the taxing authority in the provinces, cities or municipalities is concerned. - Section 5, Article X of the 1987 Constitution provides "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." Ordinance No. 44 of public respondent Zamboanga City traverses the limitations set by the Local Tax Code. - As to the issue of prescription: It is contended that since the Minister of Finance failed to act or otherwise suspend the effectivity of the tax ordinance within 120 days from receipt of a copy thereof, said Ordinance is valid and remains in force. There is no authority under Sec.44 of the Local Tax Code for this conclusion. All that is provided therein is that if the Secretary of Finance "takes no action as authorized in this section, the tax ordinance shall remain in force." Even if the Secretary of Finance failed to review or act on the Ordinance within the prescribed period of 120 days it does not follow as a legal consequence thereof that an otherwise invalid ordinance is thereby validated. Consequently even after the prescribed period has lapsed, should the Secretary of Finance, upon review, find that the tax or fee levied or imposed is unjust, excessive, oppressive, confiscatory, or not among those that the particular local government may impose in the exercise of its power in accordance with this Code; or when the tax ordinance is, in whole or in part, contrary to the declared national economic policy; or when the ordinance is discriminatory in nature on the conduct of business or calling or in restraint of trade, the Secretary of Finance may certainly suspend the effectivity of such ordinance and revoke the same. DISPOSITIVE Petition. Ordinance No. 44 is null and void.

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