Public Corp

LOCAL GOVERNMENT LAW (PUBLIC CORPORATION)
B. Classification
(Note: This reviewer incorporates recent jurisprudence in local government a. Classification of corporations according to purpose:
law, codal provisions and transcripts based on Atty. DBL’s discussion and i. Public – is a corporation that is created by the state,
syllabus. It is suggested that you read first thru the transcript, and refer to the either by general or special act, for purposes of
codals and jurisprudence for in-depth understanding.  2013 No rights are administration of local government or rendering
reserved and students are encouraged to update this material with the latest service in the public interest. It is organized for the
jurisprudence in local government law.) government of a portion of the State
ii. Private – formed for some private purpose, benefit,
PART I – GENERAL PRINCIPLES aim or end
C. Public and Private Corporations, distinguished
A. Corporation D. Public Corporation, classified
A. Definition a. Quasi-public corporation – created by the state for a narrow
- A corporation is called a public corporation if it is created or limited purpose; a private corporation created pursuant to
by the state, either by general or special act, for purposes of the Corporation Code that renders public service or supplies
administration of local government or rendering service in public wants
the public interest. o Examples: Public utility companies, electric
companies, water districts, telecommunication
- In the power point presentation, you will see there that companies
special act has been emphasized because this is a definition b. Real public corporation/Municipal corporation – a body
given by an American author. If you apply it to the politic and corporate constituted by the incorporation of the
Philippines the issue on public corporation can only be inhabitants for the purpose of local government (Sec 15,
through a special act rather if you are to talk about LGC)
municipal corporation only through a special act. But quasi- E. Municipal Corporation, defined –
public corporations may be created through general law - The term local government may be perceived in 3 different
because if you look at the definition there, quasi-public ways. You may consider having local governments as: 1)
corporations, they are created as agencies of the state for limitation to the power of central government; 2) political
limited purposes but without the powers and liabilities of self- subdivisions of the national government; and 3) municipal
governing corporations. These are actually private corporations, primarily for the inhabitants or the community
corporations but they render government/public function, in a certain locality.
which is the delivery of public service or the supply of public - The first view of a local government as limitation to the
want. Very common, of course, public utility companies. central government is that basically, if there is no local
Public utility companies, they come within the purview of the government system, then all powers of government are
concept of quasi-public corporations. concentrated in the national government. But if you have
local governments, then certain powers are distributed or
- The second kind of public corporation is municipal allocated to local governments and therefore all the powers
corporation which is referred to as local government unit. of governance is not concentrated in the central
As defined, it is a body politic and corporate, constituted by government. In a way, it becomes a limitation to the central
the incorporation of the inhabitants for purposes of local government. It deals pretty much on allocation of powers
government thereof. These are called local governments. and allocation of powers is one fundamental method of
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus 1|P a g e
limiting powers of government. You can view local - As defined, governmental function is the administration of
government that way. That is not the common view. the powers of the state and the promotion of public welfare.
- The common view is to view local government as either If the LGU performs the governmental function, it performs
political subdivision of the state or even territorial like an agent of the central government. So this is the view
subdivision of a particular territory. Sometimes, if we talk of that it is a political subdivision.
the province, we don't look at the province as a body politic. o Example of governmental function: local police
It's either we look at the province as that belonging to Gwen power, enactment of ordinances, regulation of
or belonging to the Cebuano population belonging to the certain activities, levy and collection of taxes, local
province or you can look at the province as a mere territory. eminent domain
But in the study of local government law, we view the local o In all these, you will notice that LGU is exercising a
government not just as a political subdivision but more of a function that pertains to the government, that's why
municipal corporation. it is called an agent of the national government in
this regard and therefore is a political subdivision.
B. Municipal Corporations - If it is proprietary function, then the function exercised is to
1. Elements give special benefit or advantage to the members of the
- Taken from the word of Lord Cope of England borrowed by community. That is the view as a municipal corporation. As
the US and of course where we have patterned our such, it acts as a separate entity, for its own purposes, and
constitutional law system. We also have to use the elements not as a subdivision of the state. A kind of power that is
already identified by certain authorities on the study of exercised for the special benefit and advantage of the
municipal corporation. community
a. legal creation or incorporation - this actually refers to o Examples of proprietary function, meaning functions
the law creating a local government unit. (Note: a that are not pertaining to the government:
barangay may be created by law, or by an ordinance by establishment of slaughter houses; parks; cemeteries;
the sangguniang panlalawigan or sangguniang fiesta celebrations and other similar functions.
panlungsod concerned, where the barangay is located– - And this nature or dual function of LGU is not just based on
see Sec. 6, LGC) opinions of authorities, in fact under Art. 15 of LGC 1991, this
b. corporate name - like the City of Cebu, that's the is being recognized. This is not just based on jurisprudence
corporate name. Cebu City is not a corporate name, by but it is found in the very provision in our LGC; is found in
the way, of the city, it's the City of Cebu. Art. 15, it says political and corporate nature of local
c. inhabitants, of course, the population in a given government units.
territory and then, of course, SECTION 15. Political and Corporate Nature of Local Government Units. —
d. territory – the land mass where the inhabitants reside, Every local government unit created or recognized under this Code is a body
together with the internal and external waters, and the politic and corporate endowed with powers to be exercised by it in conformity
air space above the land and waters. with law. As such, it shall exercise powers as a political subdivision of the
(Almost like the elements of a state.) national government and as a corporate entity representing the inhabitants of
2. Dual Nature and Functions its territory.
- In the study of local government law, it is important that we - Every local government unit created or recognized under this
put in mind that a local government unit has dual nature or Code is a body politic and corporate endowed with powers
functions: governmental (or public or political) and to be exercised by it in conformity with law. As such, it shall
proprietary (or private or corporate powers). exercise powers as: 1) political subdivision of the national
government and 2) as corporate entity representing the into a contract in so far as liability under the contract is
inhabitants of its territory. concerned.
 Importance of determining the dual functions of local government. Here's an example of a question in the BAR exam that deals with practically
- Suability vis-à-vis liability of local governments. Suability of the importance of governmental and proprietary functions.
local governments – governed by Sec. 22 of the LGC. It is a
form of express consent to sue and be sued. Liability - What BAR QUESTION: Johnny was employed as a driver by the Municipality of
about liability? Public funds cannot be the subject to liability, Calumpit. While driving recklessly a municipal dump truck with its load of
garnishment, execution, attachment. What about disposition sand for the repair of municipal streets, Johnny hit a jeepney and 2
of assets? If we are to talk about south road properties, for passengers of the jeepney died. Is the municipality liable for the negligence
example, if you argue that there shouldn't be public bidding of Johnny?
for the disposition of these properties, why would you argue
that way? What is important here, aside from knowing the ANSWER: NOT LIABLE, since Johnny was performing a governmental
distinction, which one is governmental which one is function. He acts as an agent of the national government and the national
proprietary, you should also know the rule. Because you government enjoys the privilege of immunity from suit.
cannot just say that one rule applies to this and the other.
There is a distinction between governmental and proprietary functions of the
- Liability of LGUs for damages like by reason of torts. If the local government. Indeed, in one case, in Municipality of San Fernando, La
driver of the Kaohsiung bus of the City of Cebu, by reason of Union vs. Firme, a distinction was made between governmental and
negligence, kills a pedestrian. How should you resolve the proprietary and what's the rule? If the regular employee of LGU had been
issue of liability? What about a dump truck for example, of performing governmental function, what's the rule? NOT LIABLE. What's the
the City of Cebu, delivering sand and gravel for the repair of rationale behind that principle? If it performs a governmental function, then it
roads in the City of Cebu and the driver had been negligent, becomes an agent of the national government and the national government
either because he was under the influence of liquor while enjoys the privilege of being immune from liability if it is also performing
driving or simply over-speeding? If the City of Cebu is governmental function.
undergoing repairs in the SRP to pave the way for
development, economic development in that area and then Agent man xa so he shall also share the same privilege kai agent man xa of
by reason of negligence, a worker, for example, injures a the national government. But if the LGU is performing a proprietary function,
pedestrian, those are some areas of concern. Garnishment of then he is not related to the national government, it enjoys the same
funds. Even liability of LGU for contracts. privilege of not being liable for the negligence of the regular employees.
- There's a school of thought that suggests that you also have - If that's your answer, you'll be given full credit but the UP
to characterize the function of the governmental there Law Center gives 2 alternative answer because it observed
because the rule that when a government enters into a that under Sec. 24 of the LGC 1991, there's an express
contract, and that therefore, it descends itself to the level of declaration that the LGU and its officials are not exempt from
a private individual and for which reason it can be sued and liability of death of persons or damage to property. This is, of
even be held liable is not an absolute rule. That is one school course, with reference to liabilities as a result of negligent
of thought, so in local government law, we also would want acts. That is Sec. 24. if you answer that, it's very clear, there is
to look at the function performed by the LGU when it enters no qualification, governmental or proprietary.

Alternative Answer: YES, the municipality shall be liable because of Sec 24 They will only be carved out from the same municipality. So, kun invalid ang
of the local government code of 1991. In Sec 24, there is no qualification 12, the law should be saved in so far as the 9 barangays are concerned.
whether the function is governmental or proprietary.
- SECTION 24. Liability for Damages. — Local government Ingon SC: well, OK na if a LGU in the Philippines only serves one function, and
units and their officials are not exempt from liability for that is as agent of the national government because whatever it does, it may
death or injury to persons or damage to property. only seek or ask resources from the national government. But the thing is,
according to the SC, it also function as a corporate body and as the
UP Law Center has suggested an answer that is also correct. But the representative of its constituents and therefore the issue of self-sufficiency.
alternative answer is to distinguish between governmental and proprietary Would it be self-sufficient with just 9 barangays? Will it have enough funds to
which is also correct. This should be tested in the SC. It seems that these are perform its corporate function? SC said, in the Philippines, every municipal
not actually compatible answers. Because Sec.24 does not make any corporation performs twin functions. The same knowledge or this realization
qualification, so in all cases, not exempt but in the 2nd answer, a qualification of the distinction between governmental and proprietary and that LGU
will help; it will distinguish the liability. Aside from that, there is also possesses dual function.
usefulness in distinguishing the function or at least realizing that a LGU
performs dual functions. This was also applied in Surigao Electric Co., Inc. vs Municipality of Surigao.
Surigao Electric Co. was the only electric company operating in Surigao at
*Transcript* that time. I think this is now known as the City of Surigao. One time, the LGU
The idea that it must be self-sufficient therefore is relevant to the second operated an electric company without obtaining a certificate of public
function that it must be a corporate entity representing the inhabitants of the convenience from the Public Service Commission. Of course, Surigao Electric
community. Co. complained. Why didn't the Municipality of Surigao obtain a certificate of
public convenience when it operated a public utility company? And under the
Case of Bara Lidasan vs COMELEC. A law was passed creating a certain Public Service Law, you must have a certificate of public convenience. The
municipality and it was supposed to consist of 21 barangays according to the LGU concerned argued that if you look at the Public Service Law, there is an
law. When the law creates a municipality, it would list down the member exception there. It says: if you are an instrumentality of national government,
barangays. However, someone questioned the law as unconstitutional you are exempt from obtaining a certificate of public convenience. The issue
because they found out that the supposed newly created municipality at the time it reached the SC, whether or not a LGU can be classified as an
involved 12 barangays from a neighboring province instead of just getting all instrumentality of the national government. And to the extent that a LGU
barangays in the same municipality. One municipality covering barangays performs governmental function, then it can be considered an instrumentality
from one province and another barangays from another province. It was of the national government. So it was exempt from the certificate of public
questioned on the ground that it violates the one subject expressed in the convenience.
title rule. A law to be valid, it must only contain one subject and it must be
expressed as far as practicable in the title thereof. The petitioner there In one BAR examination, simple ra kaau ang question, I think this is in the
argued that this law covered 2 subjects: 1) the creation of the new area of Administrative Law. Nag-lista ang examiner ug name of agencies,
municipality; 2) the reduction of the territory of the neighboring province. then the examinees were asked to identify whether these are agencies of the
Indeed, it was declared unconstitutional, the law creating that municipality. At government or instrumentalities of the government, then, explain. LGU was
least in so far as the 12 barangays were concerned at that time, the 12 not included there but what if the same question will be asked and aside
coming from a separate province. Wala mo-surrender ang proponents. Ingon from putting their certain companies or corporation or agencies, they will
sila illegal ang 12, let's make it still valid in so far as the 9 barangays are add City of Cebu? At least you know the case of Surigao Electric Co. says
concerned. Total valid man sila kai they belong to the same municipality. maybe considered as an instrumentality of the national government.

3. Sources of Powers government in exile. The other government which has not the legal title but
- Article X, 1987 Constitution is actually governing the territory that is the de facto government. That's the
- Local Government Code (LGC) of 1991 – this is actually the distinction between de facto and de jure government.
consolidation of past local government laws (took effect on
January 1, 1992) But here, that's not the case, we only refer to the manner of creating it. It is
- Other statutes and acts not inconsistent with these laws, de jure, of course, if it has all the elements of a municipal corporation and we
such as the Civil Service Law already mentioned the elements of a municipal corporation. It is de facto,
- Charter of the LGU – for powers that are specifically granted though, if there is barely colorable compliance with the requisites of a de jure
municipal corporation. What's the importance of distinguishing de jure from
*But if we talk about powers, basically you have the 1987 Constitution and de facto? Why distinguish de jure from de facto? Actually, there isn't much
the LGC, in general. But if you are to talk about powers that are specific relevance or significance rather at all if you talk about de jure or de facto
powers, then you look at the charter, the law creating the LGU. According to because in local government law, whether you are de jure or de facto, you will
the Code, if this LGU will be created under the LGC of 1991, the content of be treated as de jure municipal corporation.
the charter will be valid only in so far as it is not inconsistent with the LGC of
1991. What is important or significant though is for you to be able to distinguish
between a de facto and a non-municipal corporation. That's why it is
4. Classification of Powers important whether a certain group of people will qualify as a municipal
5. Types of Municipal Corporations corporation or not. If it attains the status of a de facto municipal corporation,
i. De jure – created with all the elements of a municipal that is only for academic purpose, that in case it is not de jure, but you will
corporation present treat the acts of the the LGU and its officers as if the LGU is a de jure
ii. De facto – where there is colorable compliance (not full municipal corporation. That is the meaning of the doctrine of a de facto
or complete, but simply colorable, meaning almost or municipal corporation. Do not think that because it's de facto, the act will be,
seems like) with the requisites of a de jure municipal in so far as legitimacy is concerned, will be different from a de jure
corporation government, NO. The acts of that LGU and its officers will be treated as if
- Example of colorable compliance: There’s a law creating the they are the acts of legitimate de jure municipal corporation. What is
municipal corporation but it is defective important is for you to be able to distinguish between a de jure municipal
corporation and a non-municipal corporation, meaning it's not a municipal
6. De facto Municipal Corporation doctrine; Elements corporation, at all.
This is different from de facto and de jure governments in your political law  Doctrine of de facto municipal corporation
and international law because this is only with reference to the requirements That's the meaning of the so-called doctrine of de facto municipal
of creating an LGU whereas in de facto and de jure governments in public corporation. There is authority in law for a municipal corporation, the
international law, the issue there is more complicated and besides, the terms organization of the people of a given territory as such corporation under a
de jure and de facto governments are used only in a particular condition or color of delegated authority followed by user in good faith of the governmental
situation not in any situation like the case of Philippine government at powers will be recognized by law a municipal corporation de facto, wherever
present, how will you characterize it? Will you characterize it as de jure or de through the failure to comply with the constitutional and statutory
facto Philippine government? You already learned from your PIL that you only requirements, the corporation cannot be said to exist de jure.
use the terms de jure and de facto if there are 2, at least, contending
governments in a given territory. One is considered de jure if it has the legal Thus, the elements of a de facto municipal corporation are as follows:
title to govern the territory but it has not actually govern the territory like a 1. valid law authorizing incorporation
2. attempt in good faith to organize question the existence of LGU despite long use of corporate powers, it may,
3. colorable compliance with law on the other hand, recognize and render, in fact, a de facto municipal
4. assumption of corporate powers corporation de jure through a subsequent legislative recognition or
validation.
In one book on municipal corporations, this is the reason for the doctrine
of de facto corporation: Strong public policy supporting the security of - De facto corporations. In one BAR examination, it
units of local government and conduct of business against attack, grounded mentioned of the doctrine of operative fact as stated in the
upon a inquiry into the legality of their organization. It also underlies the case of Malabang vs Benito but still about de facto
theory that local units may exist by whatever-fusion, we go back to the corporation. These are the elements: 1) valid law authorizing
doctrine, it says under a color of delegated authority, and at least there is a corporation. The mere existence of law will not make a
that colorable compliance, then we have to secure the inhabitants from corporation de facto. The law must in itself be valid. 2) And
illegal challenge of its existence and worse it will prejudice the acts of the then, in good faith to organize it. 3) colorable compliaance
community or rather of the LGU and affect the general welfare. The other one with law and 4) assumption of corporate powers or the
is it shall be followed by a user in good faith. This is the requirement for exercise of corporate powers.
prescription that an LGU may exist by reason of prescription. Some books
made mention of long use of corporate power as an element of a de facto Cases:
municipal corporation. Municipality of Jimenez vs Baz (1996): this involves the Municipality of
Sinacaban which was created through an Executive Order 258. Note of the
 Effects of a de facto corporation status. fact that it was created through an executive order; that it was created in
- What are the effects of a de facto corporation status? We 1949; since 1949 it had been exercising the powers of an LGU. In 1965,
want to determine whether a group of people has achieved through the famous Pelaez vs Auditor General case, a petition was filed to
the de facto status, if the answer is YES, the, these are the invalidate certain executive orders which created certain municipalities at that
effects: 1) the acts of that entity will be respected and will be time. The word 'certain' means that not all municipalities that were created
recognized as valid and binding by the state as if it is a de through executive orders were the subject of the petition. The contention
jure public corporation. was: the president cannot create an LGU because it is a legislative function.
 Doctrine of Operative Fact (Backgrounder: Pelaez vs. Auditor General, decided in 1965,
In one case, there is also the application of the doctrine of operative fact in invalidated 33 Executive Orders issued by the President creating 33
the case of Malabang vs Benito that SC cannot just close its eyes to the fact different municipal corporations. The President claimed his powers
that before an LGU had been declared illegally created, it had operated as an are vested under the Sec. 68 of the Administrative Code. Pelaez, then
LGU; it had entered into transaction; it had exercised certain powers and the vice-president and with the looming elections, challenged the EOs
effects of these will have to be honored and recognized because of the and the constitutionality of the section in the Administrative Code.
doctrine of operative fact. The SC sustained Pelaez, declared sec. 68 as unconstitutional, and
held that the creation of municipal corporations is essentially a
However, even though long use of corporate power may make a corporation legislative function.)
a de facto municipal corporation, the State, however, reserves the right to
question the creation of a particular LGU or municipal corporation through SC agreed that the creation of an LGU is primarily a legislative function and
the method of what we call quo warranto proceeding (by what authority). therefore these executive orders that were the subject of the petition were
And, of course, a quo warranto proceeding is a direct attack to the existence declared unconstitutional, but not all of course, like the Municipality of
of a municipal corporation. However, while the state reserves the right to Sinacaban. The EO creating it was not among declared unconstitutional
because you cannot, of course, make the ruling of the court applicable to acts done that would have been invalid under existing laws as if existing laws
parties/entities/persons that have not been made parties to the case – that is have been complied with. So, mao lng gihapon, Municipality of Alicia was
very basic. It was only in 1990 that someone questioned the existence of the created via EO nya wala xa ma-declare as invalidly created sa Pelaez case,
Municipality of Sinacaban. The fact that it was questioned only in 1990 is nipadayon gihapon xa and then, cguro it must have been forgotten by those
relevant – long use of corporate powers. SC ruled that Sinacaban attained the who would love to ask or question the existence, na-abtan ug LGC of 1991
status of a de facto municipal corporation because its existence had not been usa pa na question.
questioned for more than 40 years. Municipal corporations may also be
created by way of prescription or recognized at least its existence because of Ingon ang SC: let's look at 442(d), it's a curative law, it says: “Municipalities
prescription. existing as of the date of the effectivity of this Code shall continue to exist and
operate as such. Existing municipal districts organized pursuant to presidential
Municipality of San Narciso vs Mendez (1994): Municipality of San Andres issuances or executive orders and which have their respective set of elective
was created in 1959 through an EO. It became a 5th class municipality in 1965, municipal officials, holding office at the time of the effectivity of this Code
indicating that it had been performing the function of a municipal which was on January 1, 1992, shall henceforth be considered as regular
corporation until the case of Pelaez vs Auditor General was decided. EO 353 municipalities.”
creating the Municipality of San Andres was not among those questioned in
Pelaez case. San Andres, its existence, was questioned in 1989. SC had a Kadtong not created via EO, presidential issuances, which continued, of
different perspective on this, it applied a certain provision of narrative, it course, to function as such until the effectivity of LGC of 1991, then the
made an observation of the fact that in the ordinance appended to the 1987 defect had been cured. And what's the status? De facto or de jure? This is now
Constitution apportioning legislative districts, take note it was questioned in the legislative validation, the Court had mentioned earlier, this curative
1989, meaning after the 1987 Constitution took effect. I think you have read provision, Sec. 442(d) of the LGC. Tanan defective municipalities, cured na
the Constitution, duna ba na ordinance or appendix, unsa man ang tua pursuant to Sec. 442 (d) of the LGC of 1991.
didto? Legislative districts ang appropriate act. Apportionment of legislative
districts, naka-lista sa appendix of the 1987 Constitution. What was the In the case of Sultan Osop Camid vs Office of the President (2005):
observation of the Court? One of the 12 municipalities composing the 3 rd Andong was created in 1964, created a year earlier when Pelaez vs Auditor
district of Quezon, naa gyud, Municipality of San Andres as one of those General was decided by the SC. It was among the municipalities declared
municipalities, 12 of them composing the province of Quezon. SC said, di lng invalidly created in the case of Pelaez vs Auditor General but continued to
na xa de facto, if you are apply the case of Jimenez. Even declared de jure by operate as an LGU. Declared invalidly created a year after its creation but
subsequent recognition. Let's go back to what the Court mentioned about it: continued to operate as an LGU, allegedly according to the officials of
“defective incorporation may be obviated and a de facto rendered de jure by Andong. Perhaps when their lawyers came across the case of Narciso, oi naa
subsequent legislative recognition or validation.” SC observed nga di pa gani diay ng Sec. 442 (d) of the LGC, ato na i-invoke as a curative law. Para i-
ni-legislative, it is even constitutional. So, recognized by the state so it confirm na xa ug de jure or at least de facto. Petitioner attached certificate
attained the status of de jure municipal corporation. showing the exercise of corporate powers after Pelaez case was decided in
1965.
In 1995, there was this case of Municipality of Candijay vs CA: the SC
applied the rulings in Jimenez and Narciso. Nagka-bright ang SC, there's There's a caveat according to the SC, Sec. 442 (d) does not sanction the
another reason mentioned by SC here. recognition of just any municipality. Wala na ni-ingon nga para ra to mga
defectively created, they will be cured. It can only be applied to those that can
In addition, according to the SC, the Municipality of Alicia, again it was the prove continued exercise of corporate powers. Kai mao man usa sa mga
Municipality of Candijay who questioned. You look at Sec. 442 (d) of the LGC elements sa de facto. There must be assumption of corporate powers. SC,
of 1991. it was described by the SC as curative law aimed at giving validity to though, was too technical in disposing of the case. Ingon SC, we're not a trier
of facts. The issue did not go through trial. The Court cannot just accept
certificate attached to the petition filed before it and say that it is valid and 7. Method of challenging the existence of a municipal corporation
that it is in fact based on certain facts, etc. Therefore, Andong failed to prove - Quo warranto proceeding (under what authority) – this is a
its continued exercise of corporate powers. Aside from the fact that it was direct challenge. If you question or challenge a LGU, you
already declared to be invalidly created in the Pelaez case. Their contention is need to institute a proceeding for that purpose and not a
despite invalidation they continued to exercise corporate powers. But SC said collateral attack. The LGU cannot make it as a defense. It
NO, that's different from the cases of Narciso and Candijay. 442 (d), therefore should be a direct attack and the method is quo warranto to
is not a blanket curative law. It cannot be applied to just any municipality. be initiated by the State.
Only those that can prove continued exercise of corporate powers. The
doctrine of operative fact is applicable to invalidly created LGU. - Municipality of Malabang vs. Benito, 27 SCRA 533 – No
collateral attack shall lie; an inquiry into the legal existence of
- This was asked in the 2004 BAR exam. That was letter B a municipal corporation is reserved to the State in a
question but the problem before that involved a situation proceeding for quo warranto which is a direct proceeding.
where 30 barangays out of 50 wanted to separate from an But this rule applies only when the municipal corporation is,
already existing municipality as a separate municipality. But at least, a de facto municipal corporation.
in relation to the doctrine of operative fact, the question was:
“Suppose 1 year after Masigla was constituted as a - However, and I think this is the important concern, according
municipality, the law creating it is voided because of defects, to Mun. of Malabang vs. Benito the rule that collateral attack
would that invalidate the acts of municipality and/or its is not allowed in questioning the existence of the municipal
municipal officers?” corporation is applicable only if the municipal corp is at least
a de facto municipal corp. The SC did not continue however
- ANSWER: Applying the doctrine of operative fact, they will but the implication of that is if the group of people
be recognized, they will not be invalidated, both acts of therefore, a particular community, could not even be
officers and that of the municipality. We cannot just close classified or categorized as a de facto municipal corporation
our eyes to the fact that the municipality had been created, it and therefore it is obvious that it is not a de facto municipal
had entered into transactions and it had also exercised corporation then, conversely, it is allowed to question the
corporate powers before it was invalidated. existence of an alleged municipal corporation if it is not even
a de facto municipal corp.
- This is actually based on the so-called modern view in the
declaration of unconstitutionality of a law. The orthodox - So if in the earlier case like this case of Andong, for example
view, you remember, that when a law is declared Andong would like to expropriate a parcel of land and
unconstitutional, it's void from the very beginning. (it creates therefore files a complaint for expropriation before the RTC
no office, confers no rights, etc.) It's as if it had not been and make the private owner the defendant of course, then
enacted at all and therefore the state will not recognize any the defendant can question the status of Andong because
effects but the doctrine of operative fact is the modern view Andong is not be even considered as a de facto municipal
that there were actually acts that should be honored and corp. So that is by way of collateral challenge because that is
recognized by the state because before it was declared mentioned only by a defendant in an answer questioning the
unconstitutional, it was presumed constitutional and the status of Andong. That is an interesting observation. I hope
local officials and the people followed and obeyed the law you will agree with me.
because it was presumed valid at the time.
C. Overview of the Philippine Local Government System to include in your study the idea of residual powers because
i. The Unitary vs. Federal Forms of Government when an organic act, either the Constitution or a statute
- DENR vs. Tano and several other cases – confirmed that distributes power of the government, it cannot anticipate all
though we are adapting a decentralized system of powers- specific or general and allocate/assign it to a known
government we are still in a unitary system; local agency. It is possible that there is a power of government,
governments derived both their (1) powers and (2) existence settled that it is a power of the government, but the organic
from the central government. act is unable to allocate/assign it to a particular agency.
- That is a legal decision. Local government units derive their - The question then is, “Who can exercise the power?” because
powers and existence from the national or central it is settled that it is a power that can be exercised. If you
government. That explains why the LGC and the Constitution look at the distribution of powers in the national government
provides that local government units can be created only among the legislative, executive and the judiciary, the rule on
through law. So it's the central government through residual power says “Who can exercise the power which is
Congress that creates local government units and in the not allocated to either legislative, executive of the judiciary?”
creation it gives and grants powers. So local governments What did you learn in your political law? The residual power
are creations of central government. is vested in the President of the Philippines. So if the power
- But if you are to talk about federal system, it's quite the is recognized and understood as a power that can be
opposite. The federal/central government is the creation exercised by the national government but it has not been
actually of the local governments. If you gather the history of allocated or assigned to a particular branch by the
U.S., it was first a confederation of 13 states who later on Constitution or any law for that matter then the President
decided that confederation was insufficient because in can exercise the power under its residual power. Because if
confederation there is no central government. It's just a you apply that to national government and local government
loose relationship between the members of the you will also do the same analysis. Suppose there is a power
confederation. There is only an understanding that they will that is obviously a power of the government but the issue is
perform functions with certain degree of coordination with as between the national government and the local
the members of the confederation. But if it is a federation, government, who shall exercise the power? Of course it
then there is a creation of the federal government. So when requires answering the question “Which government
the 13 states decided to federalized, they created the exercises the residual power?”
national government. see, local governments then now we - As what I've said, powers of central and local governments
called in the U.S. the states akin to local governments, they have been distributed also, this is a way of limiting the
created the central government. In the Philippines, it is still powers of the government – by distributing the powers from
the central government which is creating the local the central to the local. Who/ which agency do you think
government. should exercise the power that is not expressly or even
impliedly allocated on either national or local? We say
 Who can exercise the residual powers? national. Yes, That is correct. The residual powers are vested in
- Why is that important? It is important in the area of the national government. So it is a question whether it can be
interpretation. Especially if the issue is about which agency, exercised by the national or the local government.
the national or the local, a government can exercise a Notwithstanding that we are adopting/ upholding local
particular power. This is where your knowledge of residual autonomy as I will show you later on.
power doctrine will be applicable/useful. What is the idea of - That is not the case in a federal state. In the US, if you have
residual power? In every distribution of powers, you will have studied American government, the powers of the
government are limited and enumerated in the Constitution. founding of structures, and the parceling of large regions.13 Beyond these
The understanding there is the power that is not granted in parameters, its acts, such as the grant of the franchise to Spacelink, would
the federal government can only be exercised by the local be ultra vires.
states. See, different in a federal set-up. That is just to show
you the importance of this framework. You can use this in
interpreting certain issues. That's the matter of unitary and ii. Philippine Local Government System and the concepts of Local
federal system of government. Autonomy, Decentralization, Devolution and Deconcentration
- Certain terms before we study the LGC proper. There are
Case: Zoomzat, Inc. vs. People (2005) provisions about local autonomy in the provisions and the
Facts: code itself. If we look at Art. 2, Sec. 25- The State shall insure
Petitioner Zoomzat, Inc. alleged that on December 20, 1991, the Sangguniang the autonomy of local governments. The territorial and
Panlungsod of Gingoog City passed Resolution No. 2613 which resolved "to political subdivisions shall enjoy local autonomy- Art. 10. The
express the willingness of the City of Gingoog to allow Zoomzat to install and Code also mentions local autonomy. The question is “What is
operate a cable TV system." Thereupon, petitioner applied for a mayor’s local autonomy?” in relation to the concept of
permit but the same was not acted upon by the mayor’s office. Subsequently, decentralization, devolution and deconcentration.
or on April 6, 1993, respondents enacted Ordinance No. 19 4 which granted a - It came out in one bar examination “What is devolution with
franchise to Gingoog Spacelink Cable TV, Inc. to operate a cable television for reference to the LGC?”
a period of ten (10) years, subject to automatic renewal. Aggrieved, Zoomzat - 1999 Bar Exam. What is the meaning of local autonomy?
lodged a complaint in the Ombudsman against the municipal officials of o Local autonomy is the degree of self-determination
Gingoog alleging manifest partiality, evident bad faith and gross inexcusable exercised by LGUs vis-à-vis the central government.
negligence in violation of RA 3019. The system of achieving local autonomy is known as
Held: decentralization and this system is realized through
There is no law specifically authorizing the LGUs to grant franchises to the process called devolution.
operate CATV system. Whatever authority the LGUs had before, the same had - Limbona vs. Mangelin, local autonomy is either
been withdrawn when President Marcos issued P.D. No. 1512 "terminating all decentralization of administration or decentralization of
franchises, permits or certificates for the operation of CATV system previously power – taken from an American book, actually, where it was
granted by local governments." Today, pursuant to Section 3 of E.O. No. 436, cited here.
"only persons, associations, partnerships, corporations or cooperatives o There is decentralization of administration when the
granted a Provisional Authority or Certificate of Authority by the NTC may central government delegates administrative powers
install, operate and maintain a cable television system or render cable to political subdivisions in order to broaden the base
television service within a service area." of government; to make the local governments
responsive and accountable. On the other hand,
It is clear that in the absence of constitutional or legislative authorization, there is another kind of decentralization which is
municipalities have no power to grant franchises. Consequently, the called decentralization of power. This involves
protection of the constitutional provision as to impairment of the obligation abdication of power and the autonomous
of a contract does not extend to privileges, franchises and grants given by a government is free to chart its own destiny and
municipality in excess of its powers, or ultra vires. Indeed, under the general shape its future with minimum intervention. The
welfare clause of the Local Government Code, the local government unit can local government unit here is accountable not to the
regulate the operation of cable television but only when it encroaches on central government but to its constituency.
public properties, such as the use of public streets, rights of ways, the
Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus 10 | P a g e
- So if magbasa ka og reviewer, mo ingon ka “what is local them more effective partners in the pursuit of national development and
autonomy?” you will mention that 2 because that's how it social progress." 24 At the same time, it relieves the central government of
was presented in the case of Limbona case. But later on, in the burden of managing local affairs and enables it to concentrate on
the case of Pimentel vs. Aguirre in 2000, SC clarified: it is national concerns. The President exercises "general supervision" 25 over
only administrative power over local affairs that is them, but only to "ensure that local affairs are administered according to
delegated to political subdivisions. So we should still not law." 26 He has no control over their acts in the sense that he can substitute
forget the same concept that policy setting for the entire their judgments with his own. 27
country still lies in the President and Congress. That explains
why ordinances for them to be valid, must not only conform Decentralization of power, on the other hand, involves an abdication of
to Constitution but the ordinances must also conform to political power in the favor of local governments units declared to be
statutes. Basically because we are still in a unitary set-up. For autonomous. In that case, the autonomous government is free to chart its
an ordinance to be valid, it must not contrary law – policy own destiny and shape its future with minimum intervention from central
crafted by Congress or perhaps through the suggestion of authorities. According to a constitutional author, decentralization of power
the President. So only administrative power is delegated to amounts to "self-immolation," since in that event, the autonomous
political subdivisions. There is no abdication of political government becomes accountable not to the central authorities but to its
power in our system but still there is minimum intervention constituency. 28
in some areas by the national government.
But the question of whether or not the grant of autonomy to Muslim
Case: Limbona vs. Mangelin, 170 SCRA 786, 794-795 (1989) Mindanao under the 1987 Constitution involves, truly, an effort to
Facts: decentralize power rather than mere administration is a question foreign to
Sultan Alimbusar P. Limbona was elected as Speaker of the Regional this petition, since what is involved herein is a local government unit
Legislative Assembly (Batasan or Sangguniang Pampook), Region XII, Central constituted prior to the ratification of the present Constitution. Hence, the
Assembly. He was expelled from the assembly allegedly due to graft and Court will not resolve that controversy now, in this case, since no controversy
corruption. However, it was established that he was not afforded opportunity in fact exists. We will resolve it at the proper time and in the proper case.
to be heard and that resolution (expelling him from the legislative assembly)
“appears strongly to be a bare act of vendetta by the other Assemblymen Under the 1987 Constitution, local government units enjoy autonomy in
against the petitioner arising from what the former perceive to be obduracy these two senses, thus:
on the part of the latter.” Among the issues presented was whether the Section 1.The territorial and political subdivisions of the Republic of the
Supreme Court can review the proceedings of the Sangguniang Pampook Philippines are the provinces, cities, municipalities, and barangays. There shall
because it was supposed to be “autonomous”; and consequently, to what be autonomous regions in Muslim Mindanao and the Cordilleras as
extent is the self-government given to the two autonomous governments of hereinafter provided. 29
Region IX and XII? Sec. 2.The territorial and political subdivisions shall enjoy local autonomy. 30
xxx xxx xxx
Held: Sec. 15.There shall be created autonomous regions in Muslim Mindanao and
Now, autonomy is either decentralization of administration or in the Cordilleras consisting of provinces, cities, municipalities, and
decentralization of power. There is decentralization of administration when geographical areas sharing common and distinctive historical and cultural
the central government delegates administrative powers to political heritage, economic and social structures, and other relevant characteristics
subdivisions in order to broaden the base of government power and in the within the framework of this Constitution and the national sovereignty as well
process to make local governments "more responsive and accountable," 23 as territorial integrity of the Republic of the Philippines. 31
and "ensure their fullest development as self-reliant communities and make
An autonomous government that enjoys autonomy of the latter category autonomy does not make mini-states within a state.
[CONST. (1987), art. X sec. 15.] is subject alone to the decree of the organic (Limbona case) Focus your attention to the word system.
act creating it and accepted principles on the effects and limits of - Decentralization is a system whereby local government
"autonomy." On the other hand, an autonomous government of the former units shall be given more powers, authorities, responsibilities
class is, as we noted, under the supervision of the national government and resources. The process of decentralization shall proceed
acting through the President (and the Department of Local from the National Government to the local government
Government). 32 If the Sangguniang Pampook (of Region XII), then, is units. (Sec. 2, LGC) What's the significance? If the
autonomous in the latter sense, its acts are, debatably, beyond the domain of decentralization process proceeds from the national
this Court in perhaps the same way that the internal acts, say, of the Congress government to regional offices of the national government,
of the Philippines are beyond our jurisdiction. But if it is autonomous in the you call it DECONCENTRATION and not decentralization.
former category only, it comes unarguably under our jurisdiction. That's why the Code specifies to what kind of distributing or
sharing the powers of the national government the term
An examination of the very Presidential Decree creating the autonomous decentralization will apply. It is only when it is from the
governments of Mindanao persuades us that they were never meant to national government to local government units since there's
exercise autonomy in the second sense, that is, in which the central another term if it is from the national government head
government commits an act of self-immolation. Presidential Decree No. 1618, offices to local regional offices- the term there is
in the first place, mandates that "[t]he President shall have the power of DECONCENTRATION. That is a system. Look at the definition,
general supervision and control over Autonomous Regions." 33 In the second local government units shall be given more powers,
place, the Sangguniang Pampook, their legislative arm, is made to discharge authorities, responsibilities and resources.
chiefly administrative services, thus:
SEC. 7.Powers of the Sangguniang Pampook. — The Sangguniang Pampook - If it is a system then we have to ask further, “How is the
shall exercise local legislative powers over regional affairs within the system implemented?” How is this done - the giving of more
framework of national development plans, policies and goals, in the following powers, authority, responsibilities and resources?” The
areas: answer to that is the term Devolution, which as defined in
xxx Sec. 17, §4(e) of the Code, it is an act by which the National
The President shall exercise such powers as may be necessary to assure that Government confers power and authority, upon various local
enactment and acts of the Sangguniang Pampook and the Lupong government units to perform specific functions and
Tagapagpaganap ng Pook are in compliance with this Decree, national responsibilities. That is the meaning of DEVOLUTION. That is
legislation, policies, plans and programs. specific process in order to implement the system of
The Sangguniang Pampook shall maintain liaison with the Batasang decentralization. In the same section, there is a description of
Pambansa. 34 how it is to be done, at least it says it shall include the
transfer to local government units of the records,
Hence, we assume jurisdiction. And if we can make an inquiry in the validity equipments, other assets, personnel of national agencies,
of the expulsion in question, with more reason can we review the petitioner's offices and corresponding powers, functions and
removal as Speaker. responsibilities.
 Decentralization, Devolution, Deconcentration - Deconcentration is Sec. 528 of the Code. The process of
transferring authority and power to the appropriate regional
- This brings me to the concept of decentralization. Local offices or field offices of national agencies or offices whose
autonomy does not make empires within an empire. Local major functions are not devolved to local government units.
It's for Congress to decide asa iyang i devolve; it's not of Municipal governments are only agents of the national government. Local
course in the Code. So if you are to distinguish one from the councils exercise only delegated legislative powers conferred on them by
other, these terms: local autonomy is a degree of self- Congress as the national lawmaking body. The delegate cannot be superior
determination exercised by local government units vis-a-vis to the principal or exercise powers higher than those of the latter. It is a
the central government. To attain local autonomy, a system heresy to suggest that the local government units can undo the acts of
of decentralization is a pre-requisite or at least some sort of Congress, from which they have derived their power in the first place, and
the infrastructure in order to achieve local autonomy. For negate by mere ordinance the mandate of the statute.
that infrastructure to work, it is done through devolution – Municipal corporations owe their origin to, and derive their powers
the process. And then there's deconcentration. and rights wholly from the legislature. It breathes into them the
breath of life, without which they cannot exist. As it creates, so it may
Cases: destroy. As it may destroy, it may abridge and control. Unless there is
Ganzon vs. CA (1991) – The Court held in Ganzon v. Court of Appeals17 that some constitutional limitation on the right, the legislature might, by a
while it is through a system of decentralization that the State shall promote a single act, and if we can suppose it capable of so great a folly and so
more responsive and accountable local government structure, the concept of great a wrong, sweep from existence all of the municipal
local autonomy does not imply the conversion of local government units into corporations in the State, and the corporation could not prevent it.
"mini-states."18 We explained that, with local autonomy, the Constitution did We know of no limitation on the right so far as to the corporation
nothing more than "to break up the monopoly of the national government themselves are concerned. They are, so to phrase it, the mere tenants
over the affairs of the local government" and, thus, did not intend to sever at will of the legislature. (citing Clinton vs. Ceder Rapids, etc. Railroad
"the relation of partnership and interdependence between the central Co., 24 Iowa 455).
administration and local government units." This basic relationship between the national legislature and the local
government units has not been enfeebled by the new provisions in the
Pimentel vs. Aguirre (2000) – In Pimentel v. Aguirre,20 the Court defined the Constitution strengthening the policy of local autonomy. Without meaning to
extent of the local government's autonomy in terms of its partnership with detract from that policy, we here confirm that Congress retains control of the
the national government in the pursuit of common national goals, referring local government units although in significantly reduced degree now than
to such key concepts as integration and coordination. Thus: under our previous Constitutions. The power to create still includes the
power to destroy. The power to grant still includes the power to withhold or
Under the Philippine concept of local autonomy, the national government recall. True, there are certain notable innovations in the Constitution, like the
has not completely relinquished all its powers over local governments, direct conferment on the local government units of the power to tax, (Art X,
including autonomous regions. Only administrative powers over local affairs Sec. 5, CONST) which cannot now be withdrawn by mere statute. By and
are delegated to political subdivisions. The purpose of the delegation is to large, however, the national legislature is still the principal of the local
make governance more directly responsive and effective at the local levels. In government units, which cannot defy its will or modify or violate it.
turn, economic, political and social development at the smaller political units
are expected to propel social and economic growth and development. But to Lina, Jr. vs. Paño (2001) – In our system of government, the power of local
enable the country to develop as a whole, the programs and policies effected government units to legislate and enact ordinances and resolutions is merely
locally must be integrated and coordinated towards a common national goal. a delegated power coming from Congress. Ours is still a unitary form of
Thus, policy-setting for the entire country still lies in the President and government, not a federal state. Being so, any form of autonomy granted to
Congress. local governments will necessarily be limited and confined within the extent
allowed by the central authority. Besides, the principle of local autonomy
Magtajas vs. Pryce Properties, 234 SCRA 255 (1994) - The rationale of the under the 1987 Constitution simply means "decentralization." It does not
requirement that the ordinances should not contravene a statute is obvious. make local governments sovereign within the state or an "imperium in
imperio." construction of fishpens by enclosing its certain area, affect not only that
specific portion but the entire 900 km2 of lake water. The implementation of
San Juan vs. Civil Service Commission, 196 SCRA 69 (1991) – The issue before a cohesive and integrated lake water resource management policy, therefore,
the Court is not limited to the validity of the appointment of one Provincial is necessary to conserve, protect and sustainably develop Laguna de Bay." 5
Budget Officer. The tug of war between the Secretary of Budget and
Management and the Governor of the premier province of Rizal over a The power of the local government units to issue fishing privileges was
seemingly innocuous position involves the application of a most important clearly granted for revenue purposes. This is evident from the fact that
constitutional policy and principle, that of local autonomy. We have to obey Section 149 of the New Local Government Code empowering local
the clear mandate on local autonomy. Where a law is capable of two governments to issue fishing permits is embodied in Chapter 2, Book II, of
interpretations, one in favor of centralized power in Malacañang and the Republic Act No. 7160 under the heading, "Specific Provisions on the Taxing
other beneficial to local autonomy, the scales must be weighed in favor of and Other Revenue Raising Power of Local Government Units."
autonomy.
On the other hand, the power of the Authority to grant permits for fishpens,
The exercise by local governments of meaningful power has been a national fishcages and other aqua-culture structures is for the purpose of effectively
goal since the turn of the century. And yet, inspite of constitutional provisions regulating and monitoring activities in the Laguna de Bay region (Section 2,
and, as in this case, legislation mandating greater autonomy for local officials, Executive Order No. 927) and for lake quality control and management. 6 It
national officers cannot seem to let go of centralized powers. They deny or does partake of the nature of police power which is the most pervasive, the
water down what little grants of autonomy have so far been given to least limitable and the most demanding of all State powers including the
municipal corporations. When the Civil Service Commission interpreted the power of taxation. Accordingly, the charter of the Authority which embodies
recommending power of the Provincial Governor as purely directory, it went a valid exercise of police power should prevail over the Local Government
against the letter and spirit of the constitutional provisions on local Code of 1991 on matters affecting Laguna de Bay.
autonomy. If the DBM Secretary jealously hoards the entirety of budgetary
powers and ignores the right of local governments to develop self-reliance Province of North Cotabato vs. GRP (2008) – The concept
and resoluteness in the handling of their own funds, the goal of meaningful of association is not recognized under the present Constitution
local autonomy is frustrated and set back. No province, city, or municipality, not even the ARMM, is recognized under
our laws as having an "associative" relationship with the national
Laguna Lake Development Authority vs. CA (1995) – We hold that the government. Indeed, the concept implies powers that go beyond anything
provisions of Republic Act No. 7160 do not necessarily repeal the ever granted by the Constitution to any local or regional government. It also
aforementioned laws creating the Laguna Lake Development Authority and implies the recognition of the associated entity as a state. The Constitution,
granting the latter water rights authority over Laguna de Bay and however, does not contemplate any state in this jurisdiction other than the
the lake region. The Local Government Code of 1991 does not contain any Philippine State, much less does it provide for a transitory status that aims to
express provision which categorically expressly repeal the charter of prepare any part of Philippine territory for independence.
the Authority. It has to be conceded that there was no intent on the part of
the legislature to repeal Republic Act No. 4850 and its amendments. The Even the mere concept animating many of the MOA-AD's provisions,
repeal of laws should be made clear and expressed. therefore, already requires for its validity the amendment of constitutional
provisions, specifically the following provisions of Article X:
"Laguna de Bay therefore cannot be subjected to fragmented concepts of
management policies where lakeshore local government units exercise SECTION 1. The territorial and political subdivisions of the Republic of the
exclusive dominion over specific portions of the lake water. The garbage Philippines are the provinces, cities, municipalities, and barangays. There
thrown or sewage discharged into the lake, abstraction of water therefrom or shall be autonomous regions in Muslim Mindanao and the Cordilleras as
hereinafter provided. may be constitutionally mandated, it cannot be used to defeat or to impede
SECTION 15. There shall be created autonomous regions in Muslim the autonomy that the Constitution granted to the ARMM. Phrased in this
Mindanao and in the Cordilleras consisting of provinces, cities, municipalities, manner, one would presume that there exists a conflict between two
and geographical areas sharing common and distinctive historical and recognized Constitutional mandates – synchronization and regional
cultural heritage, economic and social structures, and other relevant autonomy – such that it is necessary to choose one over the other.
characteristics within the framework of this Constitution and the national
sovereignty as well as territorial integrity of the Republic of the We find this to be an erroneous approach that violates a basic principle in
Philippines. constitutional construction – ut magis valeat quam pereat: that the
Constitution is to be interpreted as a whole,81 and one mandate should not
The BJE is a far more powerful be given importance over the other except where the primacy of one over
entity than the autonomous region the other is clear.
recognized in the Constitution
Synchronization is an interest that is as constitutionally entrenched as
It is not merely an expanded version of the ARMM, the status of its regional autonomy. They are interests that this Court should reconcile and
relationship with the national government being fundamentally different give effect to, in the way that Congress did in RA No. 10153 which provides
from that of the ARMM. Indeed, BJE is a state in all but name as it meets the measure to transit to synchronized regional elections with the least
the criteria of a state laid down in the Montevideo disturbance on the interests that must be respected. Particularly, regional
Convention,154 namely, a permanent population, a defined territory, autonomy will be respected instead of being sidelined, as the law does not in
a government, and a capacity to enter into relations with other states. any way alter, change or modify its governing features, except in a very
temporary manner and only as necessitated by the attendant circumstances.
Even assuming arguendo that the MOA-AD would not necessarily sever any
portion of Philippine territory, the spirit animating it - which has betrayed As heretofore mentioned and discussed, while autonomous regions are
itself by its use of the concept of association - runs counter to the national granted political autonomy, the framers of the Constitution never equated
sovereignty and territorial integrity of the Republic. autonomy with independence. The ARMM as a regional entity thus continues
to operate within the larger framework of the State and is still subject to the
Pimentel, Jr. vs. Executive Secretary (2012) – The essence of this express national policies set by the national government, save only for those specific
reservation of power by the national government is that, unless an LGU is areas reserved by the Constitution for regional autonomous determination.
particularly designated as the implementing agency, it has no power over a As reflected during the constitutional deliberations of the provisions on
program for which funding has been provided by the national government autonomous regions:
under the annual general appropriations act, even if the program involves the Mr. Bennagen. xxx We do not see here a complete separation from
delivery of basic services within the jurisdiction of the LGU. the central government, but rather an efficient working relationship
between the autonomous region and the central government. We
Certainly, to yield unreserved power of governance to the local government see this as an effective partnership, not a separation.
unit as to preclude any and all involvement by the national government in Mr. Romulo. Therefore, complete autonomy is not really thought of
programs implemented in the local level would be to shift the tide of as complete independence.
monopolistic power to the other extreme, which would amount to a Mr. Ople. We define it as a measure of self-government within the
decentralization of power explicated in Limbona v. Mangelin21 as beyond our larger political framework of the nation.84[Emphasis supplied.]
constitutional concept of autonomy.
This exchange of course is fully and expressly reflected in the above-quoted
Abas Kida vs. Senate (2011) – It is further argued that while synchronization Section 17, Article X of the Constitution, and by the express reservation under
Section 1 of the same Article that autonomy shall be "within the framework Panlungsod of CDO passed an ordinance prohibiting the operation of
of this Constitution and the national sovereignty as well as the territorial PAGCOR. At first, it prohibited owners of commercial buildings to allow
integrity of the Republic of the Philippines." PAGCOR to enter into a contract of lease. Siguro upon advise of lawyers, that
would not be sufficient, you should prohibit the operation of PAGCOR. So
Interestingly, the framers of the Constitution initially proposed to remove there's another ordinance passed prohibiting the operation of PAGCOR.
Section 17 of Article X, believing it to be unnecessary in light of the
enumeration of powers granted to autonomous regions in Section 20, Article The SC said, the LGU cannot do that because PAGCOR is a creation of a law
X of the Constitution. Upon further reflection, the framers decided to and therefore it is allowed by Congress. A LGU cannot undo the intent of
reinstate the provision in order to "make it clear, once and for all, that these Congress. The SC continued and said that municipal governments are only
are the limits of the powers of the autonomous government. Those not agents of the national government. This is an affirmation of the declaration
enumerated are actually to be exercised by the national government[.]" 85 Of that the Philippines is still a unitary set-up; a unitary system of government.
note is the Court’s pronouncement in Pimentel, Jr. v. Hon. Aguirre 86 which we Wala pa ni invocation of local autonomy. Let's see if it will ever be applied.
quote: The SC also said “We here confirmed that Congress remains control over LGU
Under the Philippine concept of local autonomy, the national although insignificantly --- than under our previous constitutions.”
government has not completely relinquished all its powers over local
governments, including autonomous regions. Only administrative In the San Juan vs. Civil Service Commission case, this came out in the
powers over local affairs are delegated to political subdivisions. The 1999 bar, gikopya lang ang facts, the issue there is the Provincial Budget
purpose of the delegation is to make governance more directly Officer was at that time to be appointed by the Sec of Budget and
responsive and effective at the local levels. In turn, economic, Management but only from the names nominated by the governor. Note that
political and social development at the smaller political units are the position is Provincial Budget Officer. The provincial governor nominated
expected to propel social and economic growth and development. somebody who was not an accountant, unya one of the qualifications of a
But to enable the country to develop as a whole, the programs and Budget Officer is that you must be a CPA, therefore not qualified. So what the
policies effected locally must be integrated and coordinated towards Sec did was he appointed another who is qualified. The governor complains,
a common national goal. Thus, policy-setting for the entire country uy you bypass my authority... I should be giving you another nominee... of
still lies in the President and Congress. [Emphasis ours.] course if it is already qualified, you choose from the nominee I've submitted.
But the Sec did not agree with this suggestion of the governor so it reached
In other words, the autonomy granted to the ARMM cannot be invoked to the Civil Service Commission. The CSC affirmed the appointment made by the
defeat national policies and concerns. Since the synchronization of elections Sec of Budget and Management then it reached the SC.
is not just a regional concern but a national one, the ARMM is subject to it;
the regional autonomy granted to the ARMM cannot be used to exempt the It is in this case that the SC applied also the concept of local autonomy and it
region from having to act in accordance with a national policy mandated by said “We are to obey the clear mandate of local autonomy. Where a law is
no less than the Constitution. capable of two interpretations, one in favor of centralized power in
Malacañang and the other beneficial to local autonomy, the scales must be
weighed in favor of autonomy.” By the way, this is not an issue of who can
*Transcript* exercise the power because the law is clear here. The issue only was whether
The affirmation that the Philippines, in Magtajas, is still a unitary government or not the process of nomination to be done by the provincial governor was
and a guarantee that LGUs shall enjoy local autonomy as mentioned in the merely directory or mandatory. So if you interpret that it is directory, then it is
Constitution and the Code, create a tension between the national not following the mandate of local autonomy. But if you interpret it as
government and local governments. In 1999, there was a question involving mandatory then that is to give spirit to the concept of local autonomy.
this one – local autonomy. In the case of Magtajas, the Sanggunian According to the Court, if you can have two interpretations – one against
local autonomy and one in favor of local autonomy, then local autonomy in Then we have what we call Special Metropolitan Political Subdivisions under
the application should be applied or used. Art. 10, Sec. 11 of the Constitution. They are not actually LGUs strictly
speaking, that's why we have to call them special LGUs.
In the case of Laguna Lake Development Authority (LLDA), another local
autonomy case, Laguna is a province so there were several municipalities. In The mandate of Sec 1, of Art X which says the territorial and political
1990s, as a observed by LLDA, there were indiscriminate issuance of permits subdivisions shall be provinces, cities, municipalities and barangays and
for fish pens/fish cage therefore resulting to damage in marine or natural ARMM and Cordilleras, this provision does not create LGU according to Fr.
resources along the bay of Laguna. So LLDA issued a cease and desist order. Bernas. You still have Congress to create this LGU. What is the import of this
Reklamo ang mga municipalities nga naa man ni sa among powers nga we enumeration of the territorial and political subdivisions in Sec. 1? It simply
can issue permits for fish pens. Ingon ang SC nga power lagi na ninyo but it is ensures that in the Philippines, there shall only be provinces, cities,
for revenue raising power. In the case of LLDA, the power exercised by it is municipalities and barangays.
police power. Police power is the most pervasive, less limitable kind of What's my point? Suppose in the bar exams you will be asked a question “A
power. And besides, it is a delegated power on the part of LGU and so we will law has been passed abolishing barangays because of too much politicking in
uphold the power of LLDA. There is still a tension between the central the barangay level etc. Can it be done?”
government and the local government because LLDA is a creation of - Of course your answer is it cannot be done; it is
Congress. In this case, the charter of LLDA was upheld. The thinking of course unconstitutional because Sec. 1 Art. 10 already identified
if correct- between police power and taxation power, police power should barangays as one of the LGUs. The Constitution already
prevail. guarantees that these are the local governments in the
Philippines.
D. Local Governments in the Philippines
1. Territorial and Political Subdivisions: Provinces, Cities, In my presentation I did asked ' Whether or not an associated stated can be
Municipalities, Barangays created in the Philippines?'. I think it was included in your Consti in the case
- SECTION 1. The territorial and political subdivisions of the of Province of North Cotabato in 2008. The Bangsamoro Juridical Entity case.
Republic of the Philippines are the provinces, cities, According to the SC, the way it was described since the central/national
municipalities, and barangays. There shall be autonomous government could not exercise jurisdiction over the Bangsamoro Juridical
regions in Muslim Mindanao and the Cordilleras as hereinafter Entity, the MOA therefore established and associated state in the Philippines.
provided. (Sec. 1, Art. X, 1987 CONST) Of course, you apply your basic knowledge in Public International Law or
Political Law that sovereignty among other characteristics is indivisible. That's
*Transcript* an important characteristic, you cannot divide sovereignty. “You cannot have
For purposes of my discussion, I'll call the provinces, cities, municipalities and an empire within and empire; a state within a state.”
barangays as regular LGUs so we'll be able to distinguish them from
autonomous regions and special LGUs. Autonomous regions, ARMM and The counter-argument was “No, dili ni siya associated state. This can perhaps
CAR, but CAR failed to become an autonomous region because only one be considered merely as a LGU. Ayaw associated state because we
province got a favorable vote in a plebiscite conducted before and according understand the import of that. It cannot be done. We cannot have a state
to the Constitution an autonomous region should consist of more than 1 within a state because in international law, an associated state is still a state
LGU; so 1 LGU can not constitute an autonomous region. Now, we only have under the 1933 Multi--- Convention of the Rights and Duties of a State. An
the ARMM. associated state has a capacity to enter into relations with the other states-
that is the 4th element of a state under the Multi--- Convention. Ingon sila,
ayaw lang mi tawga associated state, LGU lang- para within out framework.
Ingon and SC, that cannot be done as well because you know that Sec. 1, Art.
10 the only LGUs recognized in our Constitution are provinces, cities, is so declared as a highly urbanized city and therefore it is outside the
municipalities and barangays. No other. Only a Constitutional amendment supervisory power of the province. Later on you will see/learn how to convert
can welcome any other entity that you call LGU or a political/ territorial an ordinary city into a highly urbanized city. If it is an component city, a
subdivision in our country. That case of the Province of North Cotabato is still highly urbanized city is not to be created. It's only component city that must
relevant in the study of LGC. be converted into a highly urbanized city (administrative process), however if
its municipality to city (congressional process). You will also know the process
 Different Kinds of Cities later on.
1. A component city,
2. an independent component city; and A highly urbanized city is independent of the province where it is
3. highly urbanized city. geographically located. Consequently, its residents cannot run for provincial
positions. Mandaue City is a highly urbanized city, but its residents can still
There are different rules applicable or governing these kinds of cities. But run for provincial post and can vote for provincial candidates, how is it
provinces, municipalities and barangays are treated similarly under the LGC. possible? ANS: Sec 452, LGC –
Sa cities lang mo matter. Ang 1st class, 2nd class, 3rd class only refers to
income. It has no bearing at all in its juridical personality- exercise of powers. - Qualified voters of cities who acquired the right to vote for
elective provincial officials prior to the classification of said
SECTION 12. Cities that are highly urbanized, as determined by law, cities as highly-urbanized after the ratification of the
and component cities whose charters prohibit their voters from voting Constitution and before the effectivity of this Code, shall
for provincial elective officials, shall be independent of the province. continue to exercise such right. (Sec. 452(c), LGC)
The voters of component cities within a province, whose charters
contain no such prohibition, shall not be deprived of their right to vote In the case of Abella vs. COMELEC, 201 SCRA 253 (1991), Ormoc City was
for elective provincial officials. (Sec. 12, Art. X, 1987 CONST) considered an independent component city because its charter prohibits its
inhabitants from voting and also have to include from running for provincial
Cities though, are governed differently in some areas. Component city, the elective post. If you look at definition of independent component city, it
inhabitants can vote for provincial candidates and can run for provincial simply says independent in the sense that the charter prohibits from voting
elective post and they are under the supervisory power of a province. Don't for provincial elective post. Kung skewed gamay imong thinking, maybe dili
ask how the province will exercise supervisory power; we will go to that later covered and mo run ka for provincial post. Pwede ka mo argue nga kung
on. mudagan ko, ah well voters are prohibited from voting, running man ni for
provincial post di man ni voting. So it was settled in this case, dili oi. The
Independent component city is a component city but what makes it prohibition connotes two (2) things: from running for provincial elective post
independent is because of its charter - its charter prohibits the voters from and obviously from voting for provincial candidates.
voting provincial elective post. Because of that, it will be outside the
supervisory power of the province regardless of the income. So if you are - “Section 12, Article X of the Constitution is explicit in that
under the province, then your ordinances, as you will see later on, will have to aside from highly-urbanized cities, component cities whose
be reviewed by the provincial board. If you are independent component city, charters prohibit their voters from voting for provincial
you are not required to submit your ordinances to the provincial board for elective officials are independent of the province. In the
review because you are not under its supervision. You will understand this same provision, it provides for other component cities within
later on when we study the provisions dealing with supervisory power of of province whose charters do not provide a similar
mother LGUs (kadtong naa sa taas). In highly urbanized city, it is here that prohibition. Necessarily, component cities like Ormoc City
income matters. It is independent from the province by reason of its status. It whose charters prohibit their voters from voting for
provincial elective officials are treated like highly urbanized maybe we are a special metropolitan political subdivision. Just the same, it
cities which are outside the supervisory power of the cannot say that it is a special metropolitan political subdivision (for academic
province to which they are geographically attached. This discussion purposes) because there was no plebiscite at the time when it was
independence from the province carries with it the created. And the law requires plebiscite when you create a special
prohibition or mandate directed to their registered voters metropolitan political subdivision. MMDA has purely administrative function.
not to vote and be voted for the provincial elective offices. Because MMDA is not a political subdivision, it cannot exercise political
(Abella vs. COMELEC, 201 SCRA 253) power like police power.
2. Autonomous Regions E. Loose Federation of LGUs and Regional Development Councils

3. Special Metropolitan Subdivisions - SECTION 13. Local government units may group themselves,
- SECTION 11. The Congress may, by law, create special consolidate or coordinate their efforts, services, and
metropolitan political subdivisions, subject to a plebiscite as resources for purposes commonly beneficial to them in
set forth in Section 10 hereof. The component cities and accordance with law. (Art. X, CONST)
municipalities shall retain their basic autonomy and shall be - SECTION 14. The President shall provide for regional
entitled to their own local executives and legislative development councils or other similar bodies composed of
assemblies. The jurisdiction of the metropolitan authority that local government officials, regional heads of departments
will hereby be created shall be limited to basic services and other government offices, and representatives from non-
requiring coordination. (Art. X, 1987 CONST) governmental organizations within the regions for purposes
of administrative decentralization to strengthen the
- It is still to be created by Congress. This is found in the autonomy of the units therein and to accelerate the
Constitution and it also requires plebiscite. They are similar economic and social growth and development of the units in
to the manner we create regular political subdivisions- also the region. (Ibid.)
through Congress and there shall likewise plebiscite. But the - SECTION 33. Cooperative Undertakings Among Local
difference is the component cities and municipalities shall Government Units. — Local government units may, through
retain their basic autonomy. So dili na cla ma dissolve as appropriate ordinances, group themselves, consolidate, or
LGUs and therefore shall be entitled to all local executives coordinate their efforts, services, and resources for purposes
and legislative assemblies. commonly beneficial to them. In support of such
undertakings, the local government units involved may, upon
Case: approval by the sanggunian concerned after a public hearing
MMDA vs. Bel-Air Village (2000) – The jurisdiction is limited only to basic conducted for the purpose, contribute funds, real estate,
services requiring coordination. Is the MMDA a special metropolitan political equipment, and other kinds of property and appoint or
subdivision? or Is it a LGU? You know what happened in MMDA? It wanted to assign personnel under such terms and conditions as may be
open a road in a particular subdivision- Bel Air Village to ease the traffic. agreed upon by the participating local units through
What kind of power is exercised there? Police power. Memoranda of Agreement. (LGC)
Question is “Can MMDA exercise police power?” This can be answered if you *Transcript*
classify MMDA as a LGU. SC said, it's not an LGU. It is not even a special Then you have loose federation of LGUs. Dili ni regional development
metropolitan political subdivision because there was no plebiscite held after councils. Different na cya. We can have loose federation and the Constitution
the law that created it was enacted and president exercises not just allows the LGUs to group among themselves, consolidate, coordinate their
supervision but control over it. Ingon sad daun ang MMDA, well at least
efforts, services and resources for purposes commonly beneficial to them in The Code is mandated to be passed or enacted by the Constitution.
accordance with the law. It's found in Sec.3, Art. 10. Indeed, we passed the LGC of 1991. I think
it was in 1991 or 1992 bar exam where the question was to describe
The question there is, “How?” It has not been asked in the bar. It is found in the content of the LGC. So at least you can give the basic contents or
the Constitution. The How is found in the LGC, Sec. 33. First, there shall be body or skeleton of the Code.
ordinances passed by all members of the federation- all LGUs; the
Sanggunian must approve the same upon or after lawful hearing and that So these are the things you will see in the Code:
there shall be a memorandum of agreement stipulating the manner and - Responsive and accountable local government structure
extent of the contribution of funds and assets. That is in Sec. 33, LGC. So a through a system of decentralization;
question may simply be asked how it is created. This is my term though - - mechanism of Recall, initiative, referendum;
loose federation. You don't see that in the Code nor in the Constitution but - allocation of powers, responsibilities and resources of LGUs;
the way it is being described, it’s a loose federation- they just group - provide for qualifications, elections, appointment, functions,
themselves, consolidate, coordinate their effort. That's how states actually etc. of elective officials -- the favorite area of bar
establish loose federation. Each time gani mo ingon og through ordinances, examinations.
duna nay meaning. It cannot be done in any other way kay naa man gud lain - All other matters relating to the organization and operation
enactments. Let's say resolution. And it will not result into a new corporate of local units
body.
2. Sources of Local Government Code of 1991 (codified laws)
REGIONAL DEVELOPMENT COUNCILS are to be established by the President - Local Government Code of 1983
and does not need authorization from Congress. It is composed of local - Local Tax Code (PD 201)
government officials, regional heads of departments and other government - The Real Property Tax Code
offices and representative NGOs of the region. - Barangay Justice Law (PD 1508)/ Katarungang Pambarangay
Law
PART II. THE LOCAL GOVERNMENT CODE OF 1991 3. Scope of Application

- Obviously, it will apply to provinces, cities, municipalities,
1. Constitutional Mandate barangays and other political subdivisions; and it can also
apply to officials and offices in the national government in so
SECTION 3. The Congress shall enact a local government code which far as they are mentioned in the Code. What about those
shall provide for a more responsive and accountable local LGUs supposedly belonging to an autonomous region? Yes
government structure instituted through a system of decentralization this will apply until the autonomous region has its own
with effective mechanisms of recall, initiative, and referendum, code.
allocate among the different local government units their powers, - See Sec. 4, 526, 529, and 534 (f) of LGC of 1991
responsibilities, and resources, and provide for the qualifications,
election, appointment and removal, term, salaries, powers and 4. Rules of interpretation (see Sec. 5, LGC of 1991)
functions and duties of local officials, and all other matters relating to - Liberal interpretation in favor of LGUs, devolution of powers,
the organization and operation of the local units. (Article X, 1987 and general welfare ordinances; in case of doubts to
CONST) existence of power, resolved in favor of LGU (vs. “residual
power” doctrine); but tax ordinances are construed strictly
against the LGU and liberally in favor of taxpayer; where no
law or jurisprudence applies, customs or traditions in the approval by a majority of the votes cast in a plebiscite in the
locality may be applied to resolve controversies. political units directly affected. (Art. X, 1987 CONST)
5. Effectivity - SECTION 6. Authority to Create Local Government Units. — A

- The LGC mentions of January 1, 1992 as the date of local government unit may be created, divided, merged,
effectivity. (sec. 536, LGC) The significant question here is abolished, or its boundaries substantially altered either by
what would be the effect/s of the effectivity of the Code law enacted by Congress in the case of a province, city,
upon tax ordinances or revenue measures enacted before municipality, or any other political subdivision, or by
the LGC of 1991. Sec. 529 provides for the answer- All tax ordinance passed by the sangguniang panlalawigan or
ordinances and revenue measures of LGUs enacted before sangguniang panlungsod concerned in the case of a
the Code shall continue to be in force and effect after the barangay located within its territorial jurisdiction, subject to
effectivity unless amended by the Sanggunian or such limitations and requirements prescribed in this
inconsistent with or in violation of the provision of the Code Code. (LGC of 1991)
(SEC. 529 LGC). Very obvious. They continue unless they're
inconsistent or changed by the Sanggunian. Dili ingon nga - SECTION 7.Creation and Conversion. — As a general rule, the
repealed automatically. creation of a local government unit or its conversion from
one level to another level shall be based on verifiable
- If we are to talk about laws- general and special laws, city indicators of viability and projected capacity to provide
charters, decrees, EOs, proclamations or (parts thereof) that services, to wit:
are inconsistent with the Code, shall be repealed or nullified o (a) Income. — It must be sufficient, based on
accordingly. That is Sec. 534 (f) of the LGC. But take note of acceptable standards, to provide for all essential
what the SC said in the LLDA case, NOTE: implied repeal is government facilities and services and special
not favored. Obvious rule in stat con (Laguna Lake functions commensurate with the size of its
Development Authority case) population, as expected of the local government unit
concerned;
o (b) Population. — It shall be determined as the total
PART III. CREATION, CONVERSION, DIVISION, MERGER, SUBSTANTIAL number of inhabitants within the territorial
CHANGE OF BOUNDARY OF LOCAL GOVERNMENT UNITS, AND jurisdiction of the local government unit concerned;
ABOLITION and
o (c) Land Area. — It must be contiguous, unless it
A. Regular Political Subdivisions (Provinces, Cities, Municipalities and comprises two (2) or more islands or is separated by
Barangays) a local government unit independent of the others;
1. Creation and Conversion properly identified by metes and bounds with
a. General Requirements: Law, Plebiscite, Compliance with technical descriptions; and sufficient to provide for
Criteria on income, land and/or population such basic services and facilities to meet the
- SECTION 10. No province, city, municipality, or barangay may requirements of its populace.
be created, divided, merged, abolished, or its boundary Compliance with the foregoing indicators shall be attested to
substantially altered, except in accordance with the criteria by the Department of Finance (DOF), the National Statistics
established in the Local Government Code and subject to Office (NSO), and the Lands Management Bureau (LMB) of

the Department of Environment and Natural Resources If you have to come up with an interpretation there must be an objective with
(DENR). (Ibid.) this - only a law enacted by Congress and not by anyone else. Because there
maybe instances where the President will be given legislative power. Like for
- SECTION 10. Plebiscite Requirement. — No creation, division, example, the President is given by law emergency powers. So the President
merger, abolition, or substantial alteration of boundaries of may exercise legislative powers, but of course it should be in accordance with
local government units shall take effect unless approved by a a declared national policy or goal. But at least there is an assurance that
majority of the votes cast in a plebiscite called for the there is no way in this situation that an LGU may be created. So it will only
purpose in the political unit or units directly affected. Said be the Congress. What if the Congress is not functioning for whatever
plebiscite shall be conducted by the Commission on political reason or event? So the President may temporarily exercise
Elections (COMELEC) within one hundred twenty (120) days legislative powers, just like former President Corazon Aquino. So the
from the date of effectivity of the law or ordinance effecting President in this situation may issue an Executive Order, which would have a
such action, unless said law or ordinance fixes another date. force and effect of law, like your Family Code which was issued by an
(Ibid.) Executive Order. Or when martial law is declared and to the extent that it is
necessary to quell invasion or rebellion, the President may exercise limited
*Transcript* legislative power and will then issue Presidential Decrees which of course will
First in creation (general requirements): law, plebiscite, and compliance with have the force and effect of law.
criteria on income, land and/or population. Pay attention to the words and/or
coz you might think that it means compliance with the criteria of income, In either case, based on the LGC, no LGU can be created. That is if you are to
land and population. No. There will be an instance in a particular LGU where interpret the phrase “to be enacted by Congress.”
the requirement is income + land or income + population. Like in a case of
province. It was discussed very clearly in the case of Aquino III vs. COMELEC  Creation of a barangay
that the requirement is not to comply with all 3. In the case of a province, you But if it is creation of barangay, it may be created through an ordinance or by
only comply with income- indispensable then you comply with either land or law. In fact, if you try to search the different Republic Acts made by our
population. Take note of that. So let’s take a look at the manner of creating Congress, there are Barangays created by virtue of the legislative enactment
or converting province, city, municipality and other political subdivisions. We by the Congress. Lakas kayo ang mga opisyal aning Baranggaya kay laliman
look at Section 6 of the LGC, and of course Sec. 385 in so far as barangay is ka Congress itself creating a Barangay. So it is either ordinance or law.
concerned.
If you read Section 385, interestingly, it does not mention of law that should
 The manner of creating the province, city and municipality has to be be enacted by Congress. It simply mentioned of law. And so any law
enacted by the Congress. therefore for that matter - whether the Congress during ordinary situations
or the President during extra-ordinary situations. (That is still a guess. That is
Incidentally in Section 6, the creation of a province, city and municipality – still to be deiced by the SC).
the law that will create them will have to be enacted by the Congress. I am
not sure if this was deliberately done or maybe this is just a result of a hastily  Plebiscite
crafted law. What’s the objective or intention of using the word Congress The questions that you should resolve are the following: (1) Who shall
when as a rule a law is to be enacted by Congress? There should be a participate in the plebiscite; (2) If the Constitution says that those persons or
purpose not unless it was just placed there without any objective at all; and if members of the population of the unit affected, how would you determine
it is then, it is true that the LGC is hastily crafted and poorly drafted so to whether or not these are the units that will be affected by the creation or
speak. even a merger or division of an LGU; (3) and perhaps if you are to give a
complete answer you might also include when are they amended; (4) how
about Autonomous Regions – how are they created and is the manner of left out of economic initiatives wish to constitute themselves
creating Autonomous Regions different from the manner of creating an LGU. into a new and separate town to be called Masigla. Granting
that Masigla’s proponents succeed in securing a law in their
 Who shall participate in the plebiscite? favor, would a plebiscite be necessary or not? If it is
necessary, who should vote or participate in the plebiscite?
Tan vs. COMELEC (142 SCRA 727) is a landmark case on the issue of
plebiscite. Whether the creation a new province should include the - There will be a creation of a new municipality here. So
participation of the residents of the mother province for the plebiscite to plebiscite is necessary. If it is necessary, who should vote or
conform to the constitutionality requirement? Why? The Constitution participate in the plebiscite? Just the 30 Barangays or all 80
states that there be first obtained "the approval of a majority of votes in Barangays of the mother Madaku municipality? PAKSIT!!! 80,
the plebiscite in the unit or units affected" whenever a province is of course. Mao ra na pangutana nimo Sir?...
created, divided or merged and there is substantial alteration of the
boundaries.
If you are to divide, for example, Province of Cebu into Cebu del Sur and Cases:
Cebu del Norte, the Cebu del Sur will compose of municipalities and Tan vs. COMELEC, 142 SCRA 727 (1986) – Aside from the simpler factual issue
component cities from Talisay to Santander, and the Cebu del Norte will be relative to the land area of the new province of Negros del Norte, the more
composed of component cities and municipalities going up to the north. significant and pivotal issue in the present case revolves around in the
Question, which municipalities and component cities will participate in the interpretation and application in the case at bar of Article XI, Section 3 of the
plebiscite? Sayon ra Sir - tanan because apparently these are new provinces. Constitution, which being brief and for convenience, We again quote:
Correct!
"SEC. 3.No province, city, municipality or barrio may be created,
What if this is the situation – the supposed Cebu del Norte will now be called divided, merged, abolished, or its boundary substantially altered,
Cebu and the supposed Cebu del Sur will be given a different name say except in accordance with the criteria established in the local
Sugbo. Province of Sugbo and of course the mother Province of Cebu. Will government code, and subject to the approval by a majority of the
that matter? No, of course. So, which residents will participate? The residents votes in a plebiscite in the unit or units affected."
of ALL municipalities and component cities. Why?
It can be plainly seen that the aforecited constitutional provision makes it
Because the political units where they are residents will be affected. In what imperative that there be first obtained "the approval of a majority of votes in
sense? Number one, there will be economic dislocation – lesser income now the plebiscite in the unit or units affected" whenever a province is created,
because of lesser area and of lesser economic activities. Then there will be divided or merged and there is substantial alteration of the boundaries. It is
reduction in territory. To that extent, these units will be affected, and so the thus inescapable to conclude that the boundaries of the existing province of
mother province will be included in the plebiscite. The ruling in Paredes vs. Negros Occidental would necessarily be substantially altered by the division
Executive Secretary is not doctrinal so remove the doctrine in Paredes vs. of its existing boundaries in order that there can be created the proposed
Executive Secretary from your memory. So these are the reasons: economic new province of Negros del Norte. Plain and simple logic will demonstrate
dislocation, and reduction of territory, reduction in population than that two political units would be affected. The first would be the parent
province of Negros Occidental because its boundaries would be substantially
- In 2004 BAR EXAM, the problem there: Madaku is a altered. The other affected entity would be composed of those in the area
municipality composed of 80 barangays, 30 west of Madaku subtracted from the mother province to constitute the proposed province of
River and 50 east thereof. The 30 western barangays being Negros del Norte.
exercise of governmental powers which ultimately will prejudice the people's
Padilla vs. COMELEC, 214 SCRA 735 welfare. This is the evil sought to avoided by the Local Government Code in
- Even under the 1987 consti, the plebiscite shall include all requiring that the land area of a local government unit must be spelled out in
the voters of the mother province or the mother metes and bounds, with technical descriptions.
municipality.
- When the law states that the plebiscite shall be conducted Given the facts of the cases at bench, we cannot perceive how this evil can be
"in the political units directly affected," it means that brought about by the description made in section 2 of R.A. No. 7854,
residents of the political entity who would be economically Petitioners have not demonstrated that the delineation of the land area of
dislocated by the separation of a portion thereof have a right the proposed City of Makati will cause confusion as to its boundaries. We
to vote in said plebiscite. Evidently, what is contemplated by note that said delineation did not change even by an inch the land area
the phase "political units directly affected," is the plurality of previously covered by Makati as a municipality. Section 2 did not add,
political units which would participate in the plebiscite. subtract, divide, or multiply the established land area of Makati. In language
that cannot be any clearer, section 2 stated that, the city's land area "shall
Lopez vs. COMELEC, 136 SCRA 633 – The creation of Metropolitan Manila is comprise the present territory of the municipality."
valid. The referendum of Feb. 27, 1975 authorized the President to restructure
local governments in the 4 cities and 13 municipalities. xxx The President had Aquino III vs. COMELEC (2010)
authority to issue decrees in 1975. xxx The 1984 amendment to the 1973 The provision draws a plain and clear distinction between the entitlement of
Constitution impliedly recognized the existence of Metro Manila by providing a city to a district on one hand, and the entitlement of a province to a district
representation of Metro Manila in the Batasan Pambansa. on the other. For while a province is entitled to at least a representative, with
nothing mentioned about population, a city must first meet a population
Alvarez vs. Guingona, 252 SCRA 695 – Internal Revenue Allotments (IRAs) minimum of 250,000 in order to be similarly entitled.
should be included in the computation of the average annual income of the
municipality. If you look at the criterion “income”, it has to be based on The use by the subject provision of a comma to separate the phrase "each
income that accrues to the general fund, that is, therefore regularly received city with a population of at least two hundred fifty thousand" from the phrase
by the LGU, so this excludes special funds, trust funds, transfers and non- "or each province" point to no other conclusion than that the 250,000
recurring income. IRA is regularly accruing to the general fund, in fact, it is minimum population is only required for a city, but not for a province. 26
regularly released and automatically released to the lgus. Plainly read, Section 5(3) of the Constitution requires a 250,000 minimum
population only for a city to be entitled to a representative, but not so for a
RA 9009 province.
League of Cities cases (2008 – 2011) (see below)
Miranda vs. Aguirre (1999)
Province of North Cotabato vs. GRP (2008) This is a petition for a writ of prohibition with prayer for preliminary
injunction assailing the constitutionality of Republic Act No. 8528 converting
Mariano vs. COMELEC, 242 SCRA 211 the city of Santiago, Isabela from an independent component city to a
The importance of drawing with precise strokes the territorial boundaries of a component city.
local unit of government cannot be overemphasized. The boundaries must be
clear for they define the limits of the territorial jurisdiction of a local The power to create, divide, merge, abolish or substantially alter boundaries
government unit. It can legitimately exercise powers of government only of local government units belongs to Congress. 8 This power is part of the
within the limits, its acts are ultra vires. Needless to state, any uncertainty in larger power to enact laws which the Constitution vested in Congress. 9 The
the boundaries of local government units will sow costly conflicts in the exercise of the power must be in accord with the mandate of the
Constitution. In the case at bar, the issue is whether the downgrading of
Santiago City from an independent component city to a mere component Requisites for Income Population Land Area Plebiscite
city requires the approval of the people of Santiago City in a plebiscite. The creation
resolution of the issue depends on whether or not the downgrading falls Province P20M not less than 2,000 sq km w/in 120
within the meaning of creation, division, merger, abolition or substantial (average 250,000 days from
alteration of boundaries of municipalities per Section 10, Article X of the annual inhabitants effectivity,
Constitution. A close analysis of the said constitutional provision will reveal income) OR unless
that the creation, division, merger, abolition or substantial alteration of otherwise
boundaries of local government units involve a common denominator — provided
material change in the political and economic rights of the local government City P20M [now not less than 100 sq. km. w/in 120
units directly affected as well as the people therein. It is precisely for this P100M per 150,000 (land area days from
reason that the Constitution requires the approval of the people "in the RA 9009] inhabitants does not effectivity,
political units directly affected." It is not difficult to appreciate the rationale of (past 2 OR apply if except as
this constitutional requirement. The 1987 Constitution, more than any of our consecutive composed of otherwise
previous Constitutions, gave more reality to the sovereignty of our people for years) 1 or more provided
it was borne out of the people power in the 1986 EDSA revolution. Its Section islands)
10, Article X addressed the undesirable practice in the past whereby local Highly latest annual not less -same- -same-
government units were created, abolished, merged or divided on the basis of Urbanized income of 200,000
the vagaries of politics and not of the welfare of the people. Thus, the City P50 M inhabitants
consent of the people of the local government unit directly affected was Municipality P250,000 not less than 50 sq. km w/in 120
required to serve as a checking mechanism to any exercise of legislative (past 2 25,000 (land area days from
power creating, dividing, abolishing, merging or altering the boundaries of consecutive inhabitants does not effectivity,
local government units. It is one instance where the people in their sovereign years) AND apply if except as
capacity decide on a matter that affects them — direct democracy of the composed of otherwise
people as opposed to democracy thru people's representatives. This 1 or more provided
plebiscite requirement is also in accord with the philosophy of the islands)
Constitution granting more autonomy to local government units. Barangay --- 2,000 contiguous
inhabitants territory (exc.
The changes that will result from the downgrading of the city of Santiago [5,000 in MM if it comprise
from an independent component city to a component city are many and and HUC] 2 or more
cannot be characterized as insubstantial. For one, the independence of the islands)
city as a political unit will be diminished. The city mayor will be placed under
the administrative supervision of the provincial governor. The resolutions and Cases:
ordinances of the city council of Santiago will have to be reviewed by the Navarro vs. Executive Secretary (2010), Peralta, J. – It is undisputed that R.A.
Provincial Board of Isabela. Taxes that will be collected by the city will now No. 9355 complied with the income requirement specified by the Local
have to be shared with the province. Government Code. What is disputed is its compliance with the land area or
population requirement.
b. Specific Requirements: Income, Land and/or Population

Requirements
R.A. No. 9355 expressly states that the Province of Dinagat Islands "contains
an approximate land area of eighty thousand two hundred twelve hectares With the formulation of the LGC-IRR, which amounted to both executive and
(80,212 has.) or 802.12 sq. km., more or less, including Hibuson Island and legislative construction of the LGC, the many details to implement the LGC
approximately forty-seven (47) islets . . . ." R.A. No. 9355, therefore, failed to had already been put in place, which Congress understood to be impractical
comply with the land area requirement of 2,000 square kilometers. The and not too urgent to immediately translate into direct amendments to the
Province of Dinagat Islands also failed to comply with the population LGC. But Congress, recognizing the capacity and viability of Dinagat to
requirement of not less than 250,000 inhabitants as certified by the NSO. become a full-fledged province, enacted R.A. No. 9355, following the
Based on the 2000 Census of Population conducted by the NSO, the exemption from the land area requirement, which, with respect to the
population of the Province of Dinagat Islands as of May 1, 2000 was only creation of provinces, can only be found as an express provision in the LGC-
106,951. IRR. In effect, pursuant to its plenary legislative powers, Congress breathed
Although the Provincial Government of Surigao del Norte conducted a flesh and blood into that exemption in Article 9 (2) of the LGC-IRR and
special census of population in Dinagat Islands in 2003, which yielded a transformed it into law when it enacted R.A. No. 9355 creating the Island
population count of 371,000, the result was not certified by the NSO as Province of Dinagat.
required by the Local Government Code. Moreover, respondents failed to
prove that with the population count of 371,000, the population of the *Transcript*
original unit (mother Province of Surigao del Norte) would not be reduced to
less than the minimum requirement prescribed by law at the time of the Land Area Requirement – (insert new transcript) – this is 2010 transcript
creation of the new province. Obviously, it must comply with the requirement. The exception is when it is
an island. It is possible that it may not comply with the area requirement. We
Navarro vs. Executive Secretary (2011 - motion for reconsideration, Nachura, J.) should change this because of the new ruling in Navarro. I took this partly
– It must be pointed out that when the local government unit to be created from Section 2 of Article 9 of the Implementing Rules. So we should only
consists of one (1) or more islands, it is exempt from the land area comply with area requirement.
requirement as expressly provided in Section 442 and Section 450 of the LGC Then it must be contiguous unless two or more islands are separated by
if the local government unit to be created is a municipality or a component cities or chartered cities which do not contribute to the income of the
city, respectively. This exemption is absent in the enumeration of the province. Of course, obviously if these are islands, then they separated by
requisites for the creation of a province under Section 461 of the LGC, waters then they cannot comply with the requirement of contiguity. For
although it is expressly stated under Article 9 (2) of the LGC-IRR. obvious reasons, if they are separated by charted cities or cities which do not
contribute to the income of the province, then the requirement of contiguity
There appears neither rhyme nor reason why this exemption should apply to may be dispensed with.
cities and municipalities, but not to provinces. In fact, considering the
physical configuration of the Philippine archipelago, there is a greater This is the case – Secretary Ermita declaring as null and void paragraph 2 of
likelihood that islands or group of islands would form part of the land area of Article 9 of the IRR of the Code. If you look at paragraph 2 of Article 9 of the
a newly-created province than in most cities or municipalities. It is, therefore, IRR, it says the land area requirement shall not apply where the proposed
logical to infer that the genuine legislative policy decision was expressed in province is composed of one or more islands. That was declared illegal
Section 442 (for municipalities) and Section 450 (for component cities) of the because the LGC of 1991 does not mention of any exception as to the land
LGC, but was inadvertently omitted in Section 461 (for provinces). Thus, when area requirement. So if you look at this case, the SC said nowhere in the LGC
the exemption was expressly provided in Article 9 (2) of the LGC-IRR, the is the said provision stated or implied.
inclusion was intended to correct the congressional oversight in Section 461
of the LGC — and to reflect the true legislative intent. It would, then, be in So if you look at the case of Aquino III vs. COMELEC (2010), the requirement
order for the Court to uphold the validity of Article 9 (2) of the LGC-IRR. of territory is at least 2000 square kilometers. Is it possible to dispense with
the 2000 sq. km. requirement if you are an island? The IRR says there should The RA 9009 mentions of it as “locally generated income.” So if that is locally
be an exception, but then again according to Navarro vs. Ermita, that is generated income, then IRA is not locally generated because that is a
already declared null and void because it is already an expansion of a law or a national income only given or released automatically to the LGU.
statute. Where if it is not so provided, especially that is an exception, in a
statute we know for a fact that the implementing rule cannot provide for So if you are to give an answer to that question, will Alvarez vs. Guingona be
such. applicable still or no? So you are saying that RA 9009 changed the doctrine in
Alvarez vs. Guingona that IRA should not anymore be included in the
Income – What about income? First, how is average annual income, as a computation of income because it says locally generated?
criterion, determined? The average annual income shall refer to income
accruing to the general fund. Meaning, they are regularly accruing to the
general fund. So funds that are special or those that belong to trust funds, The caveat is that RA 9009 is limited in its application. It does not apply to all
transfers and other non-recurring income, they are not included in creation of LGUs. RA 9009 applies only to conversion from municipality to a
computing the income for the purposes of complying with the criterion. So it city. Therefore, if it is a case of creation of a local government unit which
is not just any income in other words. Jurisprudence says it should refer only happens to be for example a new province, then I submit that it is not
to the funds or income accruing the general fund. covered by RA 9009. So take note that the coverage of RA 9009 that
increases the income requirement from 20 million to 100 million applies only
The question in Alvarez vs. Guingona was, especially for municipalities that to (1) conversion from a municipality into a city, and (2) creation of a city
rely heavily on Internal Revenue Allotment (IRA) which is actually a national from a cluster of barangays. So municipality converted into a city or a cluster
government income but it is mandated to be share to the LGU in the form of of barangays to form a city.
IRA, will the IRA that the LGU had been receiving from the national
government be included in computing the average annual income. The case In those cases, they are covered by RA 9009, then the income requirement
said Yes, because it is automatically and regularly released. And so it forms should be up to 100 million, and the IRA shall not be included. If it is a
part of the gross accretion of funds. province, then we apply Alvarez vs. Guingona – IRA should still be included.
That is my opinion there. Because province is not covered by RA 9009, and
But now, have you read the R.A. 9009? What is the effect of RA 9009 to this also a new municipality is not covered by RA 9009. So the negation therefore
doctrine made in Alvarez vs. Guingona? if you are going to talk about Alvarez vs. Guingona, happens only if it is a
case of municipality converted into a city or a cluster of barangays to form
*insert new transcript* into a city. In those cases, locally generated income only and IRA is excluded.
If you are asked a question: for purposes of complying the income In all other situations, you add IRA as forming part of the annual income.
requirement, how should the income of LGU be computed or determined?
How do you respond to that question, considering that RA 9009 is an Boundary – What about boundary? Section 7 of the LGC requires that the
amendatory law to the LGC of 1991? boundary shall be properly identified by metes and bounds - the number of
kilometers from north to west, and where lies the north, the west or other
Have you read RA 9009? Kung wa mo kabasa og RA 9009, dili nalang ko mag side or part of the territory of a particular local government unit.
expect makatubag mo.
This requirement was tested in Mariano vs. COMELEC. If I am not mistaken,
The idea is to raise the income requirement from 20 million to 100 million. this involved the then Municipality of Mandaluyong. When it was converted
Mao ra nah? Did it mention about IRA? into a city, the then municipality of Mandaluyong was involved also in a
boundary dispute with a neighboring municipality. Of course the charter of
the municipality described the metes and bounds of that municipality. But
when a law was created establishing the city, the law failed to state the metes million naman. That should be automatically be highly-urbanized city
and bounds. We are referring to the technical description that is also because under the Code HUC only requires 50 million. Now if you are going
required in the territory of a particular local government unit. In the law to create a city that should already be a highly-urbanized city because there
creating the municipality, there was a technical description of the property, is a requirement now under RA 9009. But who knows it might be asked in the
but when a law was passed creating the city, there was no technical bar exam now because of this Aquino III vs. COMELEC case. Simple ra kayo,
description. It clearly said that the territory of the city of Mandaluyong shall maghimo ug problem ang examiner unya kupya-on ra ang facts sa Aquino III
be that territory so specified in the law creating the municipality of and it will be asked whether it has complied with the requirement. PAKSIT
Mandaluyong. dayon!!! Si Mayol pa ang paisturya-on, when you take the bar exam and you
have memorized the Civil Code, muingon na dayon ka ug “dalia na palihug
According to the SC, it does not matter even if there was no technical be kay gadali ko!” Lain akong version ana, inig dawat sa papel, “Ma’am wala
description because the true test is whether or not the description of naba kayong ibang questions diyan?”
boundary will cause territorial confusion. And if that is the only objective of
the law for requiring technical description and it will be accomplished by the Creation of city
statement that the territory of the City of Mandaluyong shall be that territory SECTION 450. Requisites for Creation. — (a) A municipality or a cluster of
described in the law creating the municipality, then there will be no territorial barangays may be converted into a component city if it has an average
confusion. Apart, of course, from also saying that it was excusable on the annual income, as certified by the Department of Finance, of at least Twenty
part of Congress for not specifying with precision the technical description million pesos (P20,000,000.00) for the last two (2) consecutive years based on
there because that LGU was then involved in a boundary dispute. The 1991 constant prices, and if it has either of the following requisites: xxx
Congress therefore was not trying to preempt the result of the boundary
dispute. RA 9009
Section 1. Sec. 450 of Republic Act No. 7160, otherwise known as the Local
Income is an indispensable requirement – Then I mentioned about the three Government Code of 1991, is hereby amended to read as follows:
criteria that almost always income is an indispensable requirement. In some
instances, like province for example, the province doesn’t have to comply "Sec. 450. Requisites for Creation. — (a) A municipality or a cluster of
with all three criteria – income, population and land. It was clarified in this barangays may be converted into a component city if it has a locally
case of Aquino III vs. COMELEC. According to the SC, population requirement generated average annual income, as certified by the Department of Finance,
is not an indispensable requirement but merely an alternative addition to the of at least One hundred million pesos (P100,000,000.00) for the last two (2)
indispensable income requirement. consecutive years based on 2000 constant prices, and if it has either of the
following requisites:
*insert new transcript* If you are to create a province, you only need 20 (i) a contiguous territory of at least one hundred (100) square kilometers, as
million plus EITHER of territory OR population. I think in the case of Dinagat, certified by the Land Management Bureau; or
it failed to comply with the territory and the population. But that was just (ii) a population of not less than one hundred fifty thousand (150,000)
based on a study by the provincial government accompanied by officials of inhabitants, as certified by the National Statistics Office.
the NSO. According to the SC, that is not what the law requires – that the The creation thereof shall not reduce the land area, population and income
officials of the NSO will be there present during the study. What is required is of the original unit or units at the time of said creation to less than the
a certification. So the SC did not agree that they have complied with the minimum requirements prescribed herein.
requirement because of that.
But under RA 9009, it is specifically provided that for conversion to cities, the
No question had been asked about specific requirements like 20 million, 50 municipality’s income should not include the IRA.
million for high-urbanized cities. Unya malibog ta kay kung ordinary city, 100
League of Cities vs. COMELEC cases (reversed December 21, 2009; reinstated August 24, 2010 and declared that
Facts: During the 11th Congress, 3 Congress enacted into law 33 bills the decision had become final and executory; reversed again in February 15,
converting 33 municipalities into cities. However, Congress did not act on 2011, April 12 and finally REVERSED, on June 28, 2011)
bills converting 24 other municipalities into cities.
We grant the petitions.
During the 12th Congress, 4 Congress enacted into law Republic Act No.
9009 (RA 9009), 5 which took effect on 30 June 2001. RA 9009 amended The Cityhood Laws violate Sections 6 and 10, Article X of the Constitution,
Section 450 of the Local Government Code by increasing the annual income and are thus unconstitutional.
requirement for conversion of a municipality into a city from P20 million to First, applying the P100 million income requirement in RA 9009 to the
P100 million. The rationale for the amendment was to restrain, in the words present case is a prospective, not a retroactive application, because RA 9009
of Senator Aquilino Pimentel, "the mad rush" of municipalities to convert took effect in 2001 while the cityhood bills became law more than five years
into cities solely to secure a larger share in the Internal Revenue Allotment later.
despite the fact that they are incapable of fiscal independence. 6 Second, the Constitution requires that Congress shall prescribe all the criteria
for the creation of a city in the Local Government Code and not in any other
After the effectivity of RA 9009, the House of Representatives of the 12th law, including the Cityhood Laws.
Congress 7 adopted Joint Resolution No. 29, 8 which sought to exempt from Third, the Cityhood Laws violate Section 6, Article X of the Constitution
the P100 million income requirement in RA 9009 the 24 municipalities whose because they prevent a fair and just distribution of the national taxes to local
cityhood bills were not approved in the 11th Congress. However, the 12th government units.
Congress ended without the Senate approving Joint Resolution No. 29. Fourth, the criteria prescribed in Section 450 of the Local Government Code,
During the 13th Congress, 9 the House of Representatives re-adopted Joint as amended by RA 9009, for converting a municipality into a city are clear,
Resolution No. 29 as Joint Resolution No. 1 and forwarded it to the Senate plain and unambiguous, needing no resort to any statutory construction.
for approval. However, the Senate again failed to approve the Joint Fifth, the intent of members of the 11th Congress to exempt certain
Resolution. Following the advice of Senator Aquilino Pimentel, 16 municipalities from the coverage of RA 9009 remained an intent and was
municipalities filed, through their respective sponsors, individual cityhood never written into Section 450 of the Local Government Code.
bills. The 16 cityhood bills contained a common provision exempting all the Sixth, the deliberations of the 11th or 12th Congress on unapproved bills or
16 municipalities from the P100 million income requirement in RA 9009. resolutions are not extrinsic aids in interpreting a law passed in the 13th
Congress.
On 22 December 2006, the House of Representatives approved the cityhood Seventh, even if the exemption in the Cityhood Laws were written in Section
bills. The Senate also approved the cityhood bills in February 2007, except 450 of the Local Government Code, the exemption would still be
that of Naga, Cebu which was passed on 7 June 2007. The cityhood bills unconstitutional for violation of the equal protection clause.
lapsed into law (Cityhood Laws) 10 on various dates from March to July 2007
without the President's signature. 11 Congress Must Prescribe in the Local Government Code All Criteria
Section 10, Article X of the 1987 Constitution provides:
Issues: No province, city, municipality, or barangay shall be created, divided, merged,
1.Whether the Cityhood Laws violate Section 10, Article X of the Constitution; abolished or its boundary substantially altered, except in accordance with
and the criteria established in the local government code and subject to
2.Whether the Cityhood Laws violate the equal protection clause. approval by a majority of the votes cast in a plebiscite in the political units
directly affected. (Emphasis supplied)
Nov. 18, 2008 (en banc), Carpio, J.
(6-5 vote) The Constitution is clear. The creation of local government units must follow
the criteria established in the Local Government Code and not in any the criteria for the conversion of a municipality into a city, including any
other law. There is only one Local Government Code. 18 The Constitution exemption from such criteria, must all be written in the Local Government
requires Congress to stipulate in the Local Government Code all the criteria Code. Congress cannot prescribe such criteria or exemption from such
necessary for the creation of a city, including the conversion of a municipality criteria in any other law. In short, Congress cannot create a city through a
into a city. Congress cannot write such criteria in any other law, like the law that does not comply with the criteria or exemption found in the
Cityhood Laws. Local Government Code.
The criteria prescribed in the Local Government Code govern exclusively the Equal Protection of Laws
creation of a city. No other law, not even the charter of the city, can govern Even if the exemption provision in the Cityhood Laws were written in Section
such creation. The clear intent of the Constitution is to insure that the 450 of the Local Government Code, as amended by RA 9009, such exemption
creation of cities and other political units must follow the same uniform, would still be unconstitutional for violation of the equal protection clause.
non-discriminatory criteria found solely in the Local Government Code. The exemption provision merely states, "Exemption from Republic Act No.
Any derogation or deviation from the criteria prescribed in the Local 9009 — The City of . . . shall be exempted from the income requirement
Government Code violates Section 10, Article X of the Constitution. prescribed under Republic Act No. 9009." This one sentence exemption
provision contains no classification standards or guidelines differentiating the
RA 9009 amended Section 450 of the Local Government Code to increase the exempted municipalities from those that are not exempted.
income requirement from P20 million to P100 million for the creation of a
city. This took effect on 30 June 2001. Hence, from that moment the Even if we take into account the deliberations in the 11th Congress that
Local Government Code required that any municipality desiring to municipalities with pending cityhood bills should be exempt from the P100
become a city must satisfy the P100 million income requirement. Section million income requirement, there is still no valid classification to satisfy the
450 of the Local Government Code, as amended by RA 9009, does not equal protection clause. The exemption will be based solely on the fact
contain any exemption from this income requirement. that the 16 municipalities had cityhood bills pending in the 11th
In enacting RA 9009, Congress did not grant any exemption to respondent Congress when RA 9009 was enacted. This is not a valid classification
municipalities, even though their cityhood bills were pending in Congress between those entitled and those not entitled to exemption from the P100
when Congress passed RA 9009. The Cityhood Laws, all enacted after the million income requirement.
effectivity of RA 9009, explicitly exempt respondent municipalities from the
increased income requirement in Section 450 of the Local Government Code, (December 21, 2009, on reconsideration, Velasco, J.)
as amended by RA 9009. Such exemption clearly violates Section 10, Ratio legis est anima. The spirit rather than the letter of the law. A statute
Article X of the Constitution and is thus patently unconstitutional. To be must be read according to its spirit or intent, 1 for what is within the spirit is
valid, such exemption must be written in the Local Government Code within the statute although it is not within its letter, and that which is within
and not in any other law, including the Cityhood Laws. the letter but not within the spirit is not within the statute.
Legislative Intent (Without belaboring in their smallest details the arguments for and against
True, members of Congress discussed exempting respondent municipalities the procedural dimension of this disposition, it bears to stress that the Court
from RA 9009, as shown by the various deliberations on the matter during has the power to suspend its own rules when the ends of justice would be
the 11th Congress. However, Congress did not write this intended exemption served thereby. 17 In the performance of their duties, courts should not be
into law. Congress could have easily included such exemption in RA 9009 but shackled by stringent rules which would result in manifest injustice. Rules of
Congress did not. This is fatal to the cause of respondent municipalities procedure are only tools crafted to facilitate the attainment of justice. Their
because such exemption must appear in RA 9009 as an amendment to strict and rigid application must be eschewed, if they result in technicalities
Section 450 of the Local Government Code. The Constitution requires that that tend to frustrate rather than promote substantial justice.)
LGC of 1991 can reasonably be deduced from Senator Pimentel's sponsorship
Held: speech on S. Bill No. 2157.
It bears notice, however, that the "code" similarly referred to in the 1973 and
1987 Constitutions is clearly but a law Congress enacted. This is consistent What the foregoing Pimental-Drilon exchange eloquently indicates are the
with the aforementioned plenary power of Congress to create political units. following complementary legislative intentions: (1) the then pending
Necessarily, since Congress wields the vast poser * of creating political cityhood bills would be outside the pale of the minimum income requirement
subdivisions, surely it can exercise the lesser authority of requiring a set of of PhP100 million that S. Bill No. 2159 proposes; and (2) RA 9009 would not
criteria, standards, or ascertainable indicators of viability for their creation. have any retroactive effect insofar as the cityhood bills are concerned.
Thus, the only conceivable reason why the Constitution employs the clause
"in accordance with the criteria established in the local government Given the foregoing perspective, it is not amiss to state that the basis for the
code" is to lay stress that it is Congress alone, and no other, which can inclusion of the exemption clause of the cityhood laws is the clear-cut intent
impose the criteria. of Congress of not according retroactive effect to RA 9009. Not only do the
congressional records bear the legislative intent of exempting the cityhood
Consistent with its plenary legislative power on the matter, Congress can, via laws from the income requirement of PhP100 million. Congress has now
either a consolidated set of laws or a much simpler, single-subject enactment, made its intention to exempt express in the challenged cityhood laws.
impose the said verifiable criteria of viability. These criteria need not be
embodied in the local government code, albeit this code is the ideal Equal Protection of Laws- Substantial Distinction
repository to ensure, as much as possible, the element of uniformity. As things stand, the favorable treatment accorded the sixteen (16)
Congress can even, after making a codification, enact an amendatory law, municipalities by the cityhood laws rests on substantial distinction. Indeed,
adding to the existing layers of indicators earlier codified, just as efficaciously respondent LGUs, which are subjected only to the erstwhile PhP20 million
as it may reduce the same. In this case, the amendatory RA 9009 upped the income criterion instead of the stringent income requirement prescribed in
already codified income requirement from PhP20 million to PhP100 million. RA 9009, are substantially different from other municipalities desirous to
At the end of the day, the passage of amendatory laws is no different from be cities. Looking back, we note that respondent LGUs had pending cityhood
the enactment of laws, i.e.,the cityhood laws specifically exempting a bills before the passage of RA 9009. There lies part of the tipping difference.
particular political subdivision from the criteria earlier mentioned. Congress, And years before the enactment of the amendatory RA 9009, respondents
in enacting the exempting law/s, effectively decreased the already codified LGUs had already met the income criterion exacted for cityhood under the
indicators. LGC of 1991.
Legislative Intent August 24, 2010 Resolution

The legislative intent is not at all times accurately reflected in the manner in (Note: Procedural issues in this case are interesting. A motion for
which the resulting law is couched. Thus, applying a verba legis 37 or strictly reconsideration was filed on the Nov 18, 2008 decision, which was denied by
literal interpretation of a statute may render it meaningless and lead to majority of the Court on March 31, 2009. A second motion for
inconvenience, an absurd situation or injustice. 38 To obviate this aberration, reconsideration was filed, and on April 28, 2009, voting 6-6, the Court denied
and bearing in mind the principle that the intent or the spirit of the law is the the second motion for reconsideration for being a prohibited pleading and
law itself, 39 resort should be to the rule that the spirit of the law controls its thereby, the entry of judgment followed in due course. Entry of judgment
letter. 40 was made on May 21, 2009.
It is in this respect that the history of the passage of RA 9009 and the logical
inferences derivable therefrom assume relevancy in discovering legislative According to the first half of the court, the tie-vote results in the denial of the
intent. 41 motion for reconsideration in accordance with Sec. 7, Rule 56 and paves the
The rationale behind the enactment of RA 9009 to amend Sec. 450 of the way for the finality of the original decision. However, as resolved by the other
half of the court, the tie-vote does not result in the denial but ruled that the June 28, 2011 Resolution
motion remains unresolved and should be acted upon.) Final resolution which declared the 16 cityhood laws as CONSTITUTIONAL.
The issue on finality of the 18 November 2008 was discussed in this

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

 Resolution by sanggunian (of the - In the case of Navarro vs. Executive Secretary Ermita (2010),
component city) submitted to Office of the which involved the Dinagat Island, they argue that they have
President complied with the population requirement because when the
 Declaration of conversion by the President Province of Surigao conducted a survey of the population,
within 30 days (after verifying income and they invited some officers of the NSO to join them in that
population requirements) study. However, the result of the study was not certified by
 Plebiscite within 120 days (COMELEC the office itself, the NSO. And so, when it reached the SC. It
mandated to conduct intensive information was not honored because the requirement according to the
campaign) Code is the population must have been certified by the NSO.
o Effect of Conversion —The conversion of a It is not sufficient that the NSO officials participated in the
component city into a highly-urbanized city shall determination of the population compliance.
make it independent of the province where it is
geographically located. - See, however, Navarro vs. Exec Sec (2011), where SC said,
(T)here appears neither rhyme nor reason why this
Criteria for Creation and Conversion exemption should apply to cities and municipalities, but not
- Let’s go to the criteria for the creation and conversion. These to provinces. In fact, considering the physical configuration
are now the specific criteria – income( c/o dept of finance), of the Philippine archipelago, there is a greater likelihood
population(c/o nso), and land area(c/o DENR). Which that islands or group of islands would form part of the land
government agency will determine compliance of these area of a newly-created province than in most cities or
criteria? The Code provides for the Department of Finance municipalities. It is, therefore, logical to infer that the
for income, the National Statistics Office for population, and genuine legislative policy decision was expressed in Section
the Land Management Bureau of the DENR for land area. 442 (for municipalities) and Section 450 (for component
This is found in Section 7 of the LGC. cities) of the LGC, but was inadvertently omitted in Section
461 (for provinces). Thus, when the exemption was expressly
- Applying administrative law principle also, since these are provided in Article 9 (2) of the LGC-IRR, the inclusion was
specialized agencies, then you have to apply your knowledge intended to correct the congressional oversight in Section
in administrative law that their factual findings are binding or 461 of the LGC — and to reflect the true legislative intent. It
conclusive as a general rule upon courts. That is basic in would, then, be in order for the Court to uphold the validity
administrative law, with only few exceptions – like blatant of Article 9 (2) of the LGC-IRR.
error of the facts or appreciation of the facts, tainted with
malice or bad faith. That’s where these findings of facts will 2. Division and Merger
not be binding or conclusive upon courts. Precisely, when a. Requirements: (same as creation and conversion)
the City of Talisay was the subject of a case that reached the b. Conditions and Limitations (see Sec. 8, LGC)
CA, the CA respected the findings of the DENR through the - SECTION 8. Division and Merger. — Division and merger of
LMB that it has complied with the land area requirement. So existing local government units shall comply with the same
there should be proof of the exceptions - clear error of facts, requirements herein prescribed for their creation: Provided,
malice or bad faith – before these findings cannot be however, That such division shall not reduce the income,
considered as binding upon courts. population, or land area of the local government unit or units
concerned to less than the minimum requirements
prescribed in this Code: Provided, further, That the income
classification of the original local government unit or units required. Reason purpose of administrative puposes, easy management, for
shall not fall below its current income classification prior to convenience
such division.
- The income classification of local government units shall be 3. Substantial Alteration of Boundaries
updated within six (6) months from the effectivity of this a. Requirements: sec. 6 (authority to create) and sec. 10
Code to reflect the changes in their financial position (plebiscite requirement)
resulting from the increased revenues as provided herein. b. Settlement of Boundary Disputes
o Jurisdictional Responsibility - Boundary disputes
*Transcript* between and among local government units shall, as
 Division and Merger of LGUs much as possible, be settled amicably. To this end:
The same requirement in creation and conversion but there are limitations  (a)Boundary disputes involving two (2) or
under Section 8 of the LGC. The division or merger shall not reduce the land more barangays in the same city or
area, population, and income to less than the minimum requirement AND the municipality shall be referred for settlement
income classification of the original LGU affected. to the sangguniang panlungsod or
sangguniang bayan concerned.
It not difficult to understand that there should be a limitation that it should  (b)Boundary disputes involving two (2) or
not reduce land area, population, and income requirement to less than the more municipalities within the same
minimum. But there is an additional requirement that the income province shall be referred for settlement to
classification also of the original LGU will not be affected. Di ba 1 st class, 2nd the sangguniang panlalawigan concerned.
class, 3rd class, 4th class, 5th class, 6th class by reason of income ang atong  (c)Boundary disputes involving
LGU. If that will be affected as well, division or merger will not be allowed. municipalities or component cities of
That is an added guaranty that the mother LGU will not be affected to the different provinces shall be jointly referred
extent that its status will also be affected. There shall only be a reduction in for settlement to the sanggunians of the
population, income or area but retaining its being, like for example, a provinces concerned.
province, and also its income classification like a 1 st class, 2nd class, 3rd class  (d)Boundary disputes involving a component
province. city or municipality on the one hand and a
highly urbanized city on the other, or two (2)
 Merger of Administrative Regions or more highly urbanized cities, shall be
If you merge LGUs, that is legislative function obviously. If you create a jointly referred for settlement to the
special metropolitan political subdivision consisting of several LGUs, both the respective sanggunians of the parties.
Constitution and the Code require legislative enactment. Law is required. In  (e)In the event the sanggunian fails to effect
fact, there is also a requirement for plebiscite. If you merger also LGU to an amicable settlement within sixty (60) days
constitute Autonomous Region, obviously there is also a legislative from the date the dispute was referred
enactment required. thereto, it shall issue a certification to that
effect. Thereafter, the dispute shall be
But the merger of administrative regions, no law is required. This is just part formally tried by the sanggunian concerned
of the supervisory power of the President. So mag-usab ta ug Regions 1, 2, 3, which shall decide the issue within sixty (60)
4, 5; or the formation of the CARAGA region for example or NCR; or days from the date of the certification
maghimo ta ug laing region sa region 7, we will call it Bisaya Region; or referred to above. (Sec. 118, LGC of 1991)
combination of regions 7 and 8 for example - only Executive Act, no law is
o Appeal – to the RTC having jurisdiction over the area Sarangani vs. COMELEC (2000) – Facts: This case is about a “ghost precinct”
and shall be decided within 1 year. Pending final in Padian Torogan, Madalum, Lanao del Sur. Upon ocular inspection, the
resolution of the disputed area prior to the dispute COMELEC discovered that there were no residents in such barangay. The
shall be maintained and continued for all legal COMELEC declared such precinct as non-existent. Mayor Sarangani
purposes. challenged the order, arguing that COMELEC committed grave abuse of
discretion.
Case:
Mun. of Sta. Fe vs. Aritao (2007) – The LGC of 1991 grants an expanded role Held: Act of administrative body such as COMELEC is afforded great weight.
on the Sanggunian Panlalawigan concerned in resolving cases of municipal No judicial interference is called for.
boundary disputes. Aside from having the function of bringing the
contending parties together and intervening or assisting in amicable (on the issue of the non-existence of the barangay; no automatic cessation of a
settlement of the case, the Sanggunian is now vested with original local govt unit)
jurisdiction to actually hear & decide the dispute in accordance with the A barangay may officially exist on record and the fact that nobody resides in
procedures laid down in the law and its implementing rules and regulation. the place does not result in its automatic cessation as a unit of local
government. Under the Local Government Code of 1991, the abolition of a
The RTC lost its power to try, at the first instance, cases of municipal local government unit (LGU) may be done by Congress in the case of a
boundary disputes under the LGC of 1991. Only in the exercise of its province, city, municipality, or any other political subdivision. 15 In the case of
appellate jurisdiction can the proper RTC decide the case, on appeal, should a barangay, except in Metropolitan Manila area and in cultural communities,
any party aggrieved by the decision of the Sanggunian Panlalawigan elevate it may be done by the Sangguniang Panlalawigan or Sangguniang
the same. Panglunsod concerned subject to the mandatory requirement of a
plebiscite 16conducted for the purpose in the political units affected.
4. Abolition
a. Grounds and Conditions – A local government unit may B. Autonomous Regions (Muslim Mindanao and Cordilleras)
be abolished when its income, population, or land area 1. Creation
has been irreversibly reduced to less than the minimum - SECTION 15. There shall be created autonomous regions in
standards prescribed for its creation under Book III of Muslim Mindanao and in the Cordilleras consisting of
this Code, as certified by the national agencies provinces, cities, municipalities, and geographical areas
mentioned in Section 7 hereof to Congress or to the sharing common and distinctive historical and cultural
sanggunian concerned, as the case may be. heritage, economic and social structures, and other relevant
The law or ordinance abolishing a local government unit characteristics within the framework of this Constitution and
shall specify the province, city, municipality, or barangay the national sovereignty as well as territorial integrity of the
with which the local government unit sought to be Republic of the Philippines.
abolished will be incorporated or merged. (Sec. 9, LGC)
b. DILG Opinion 17, series of 2006 – there need to be - SECTION 18. The Congress shall enact an organic act for
another governmental act before an LGU can be each autonomous region with the assistance and
abolished, the ground for abolition must be irreversible participation of the regional consultative commission
as certified by DILG (case in point, Guinsaogon, St. composed of representatives appointed by the President
Bernard, Leyte) from a list of nominees from multisectoral bodies. The
Case: 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 majority. Let’s say about 10 provinces, there are only about three provinces
representative of the constituent political units. The organic which obtained majority vote pero kung i-add nimo tong 7, dili jud kaabot
acts shall likewise provide for special courts with personal, man gani ug 1/3 ang votes.
family, and property law jurisdiction consistent with the
provisions of this Constitution and national laws. NOTE the difference:
- If you are talking about regular LGUs, majority of total votes
The creation of the autonomous region shall be effective of all units
when approved by majority of the votes cast by the - In Autonomous Region, majority of the votes in each unit.
constituent units in a plebiscite called for the purpose,
provided that only provinces, cities, and geographic areas Cases:
voting favorably in such plebiscite shall be included in the Abbas vs. COMELEC, 179 SCRA 287
autonomous region. - It is thus clear that what is required by the Constitution is a
simple majority of votes approving the organic Act in
- SECTION 19. The first Congress elected under this individual constituent units and not a double majority of the
Constitution shall, within eighteen months from the time of votes in all constituent units put together, as well as in the
organization of both Houses, pass the organic acts for the individual constituent units.
autonomous regions in Muslim Mindanao and the - Thus, under the Constitution and R.A. No 6734, the creation
Cordilleras. of the autonomous region shall take effect only when
approved by a majority of the votes cast by the constituent
*Transcript* units in a plebiscite, and only those provinces and cities
 Creation of Autonomous Region where a majority vote in favor of the Organic Act shall be
There should still be law and there should still be plebiscite. And there are included in the autonomous region. The provinces and cities
two objectives or purposes for the plebiscite. First, is to determine the will of wherein such a majority is not attained shall not be included
the people whether to create Autonomous Region; and second, to determine in the autonomous region. It may be that even if an
which LGUS shall form part of the Autonomous Region. And according to autonomous region is created, not all of the thirteen (13)
Abbas and Ordillo, only those with majority votes provided that there shall be provinces and nine (9) cities mentioned in Article II, section 1
more than one will constitute the autonomous region. (2) of R.A. No. 6734 shall be included therein. The single
plebiscite contemplated by the Constitution and R.A. No.
 Difference between LGU created and the Autonomous Region 6734 will therefore be determinative of (1) whether there
shall be an autonomous region in Muslim Mindanao and (2)
Illustration: if there are 10 provinces that intend to be part of the which provinces and cities, among those enumerated in R.A.
Autonomous Region, there shall be plebiscite involving 10 provinces. How do No. 6734, shall comprise it.
you go about applying the results of the plebiscite? You will not determine
whether all residents of 10 provinces reached the majority requirement vote. Ordillo vs. COMELEC, 192 SCRA 100 (Dec 4. 1990) – Facts: The question raised
Instead, you will determine in each province whether there is majority vote. in this petition is whether or not the province of Ifugao, being the only
Not the total like adding all the voters of all 10 provinces. And for example province which voted favorably for the creation of the Cordillera
there is a majority of all 10 it doesn’t mean that there is an autonomous Autonomous Region can, alone, legally and validly constitute such Region.
region created. You determine only the majority in each province and list The petitioners maintain that there can be no valid Cordillera Autonomous
down those provinces that obtained majority and they shall form part of the Region in only one province as the Constitution and Republic Act No. 6766
Autonomous Region. Even if kung imong I-total ang tanan dili makabot ug require that the said Region be composed of more than one constituent unit.
Held: The Constitution provides for a basic structure of government in the
Held: The sole province of Ifugao cannot validly constitute the Cordillera autonomous region composed of an elective executive and legislature and
Autonomous Region. special courts with personal, family and property law jurisdiction [Art. X, sec.
It is explicit in Article X, Section 15 of the 1987 Constitution that: 18]. Using this as a guide, we find that E.O. No. 220 did not establish an
"Section 15. There shall be created autonomous regions in Muslim autonomous regional government. It created a region, covering a specified
Mindanao and in the Cordillera consisting of provinces, cities, area, for administrative purposes with the main objective of coordinating the
municipalities and geographical areas sharing common and planning and implementation of programs and services [secs. 2 and 5].
distinctive historical and cultural heritage, economic and social
structures, and other relevant characteristics within the framework of It must be clarified that the constitutional guarantee of local autonomy in
this Constitution and the national sovereignty as well as territorial the Constitution [Art. X, sec. 2] refers to the administrative autonomy of local
integrity of the Republic of the Philippines." (Emphasis Supplied) government units or, cast in more technical language, the decentralization of
The keywords — provinces, cities, municipalities and geographical areas government authority [Villegas v. Subido, G.R. No. L-31004, January 8, 1971,
connote that "region" is to be made up of more than one constituent unit. 37 SCRA 1]. Local autonomy is not unique to the 1987 Constitution, it being
The term "region" used in its ordinary sense means two or more provinces. guaranteed also under the 1973 Constitution [Art. II, sec. 10]. And while there
This is supported by the fact that the thirteen (13) regions into which the was no express guarantee under the 1935 Constitution, the Congress enacted
Philippines is divided for administrative purposes are groupings of the Local Autonomy Act (R.A. No. 2264) and the Decentralization Act (R.A.
contiguous provinces. (Integrated Reorganization Plan (1972), which was No. 5185), which ushered the irreversible march towards further enlargement
made as part of the law of the land by P.D. No. 1; P.D. No. 742) Ifugao is a of local autonomy in the country [Villegas v. Subido, supra.]
province by itself. To become part of a region, it must join other provinces,
cities, municipalities, and geographical areas. It joins other units because of On the other hand, the creation of autonomous regions in Muslim Mindanao
their common and distinctive historical and cultural heritage, economic and and the Cordilleras, which is peculiar to the 1987 Constitution contemplates
social structures and other relevant characteristics. The Constitutional the grant of political autonomy and not just administrative autonomy these
requirements are not present in this case regions. Thus, the provision in the Constitution for an autonomous regional
government with a basic structure consisting of an executive department and
- There must be at least 2 LGUs because the Constitution says a legislative assembly and special courts with personal, family and property
“units”, so in the case of Cordillera, it’s not duly created law jurisdiction in each of the autonomous regions [Art. X, sec. 18]. The CAR
because only 1 province got an affirmative plebiscite, which is a mere transitory coordinating agency that would prepare the stage for
is only the Ifugao province, and the rest are negative. So, no political autonomy for the Cordilleras. It fills in the resulting gap in the
Cordillera Autonomous Region, but simply Administrative process of transforming a group of adjacent territorial and political
Region of the Cordilleras. No local government powers. subdivisions already enjoying local or administrative autonomy into an
- Note: Merger of Administrative regions, that is not to be autonomous region vested with political autonomy.
done by law, but only by an executive act, unlike merger to
create LGU or an autonomous region, which should be done 2. Elections – (Note: Date of ARMM elections can only be set by
by law. Congress, not by the COMELEC.)
Cordillera Broad Coalition vs. COA, Jan. 29, 1990 – Facts: E.O. 220 signed by Case:
President Aquino creating the Cordillera Administrative Region, was Abas Kida vs. Senate, October 18, 2011 (synchronization of ARMM elections
challenged as unconstitutional on the ground that it is only Congress which with local and national elections)
has the sole power tocreate administrative regions. The Constitution mandates the synchronization of national and local
elections. While the Constitution does not expressly instruct Congress to
synchronize the national and local elections, the intention can be inferred o As fixed by the law or ordinance (usually effectivity
from the provisions of the Transitory Provisions (Article XVIII) of the of law) creating the LGU, or
Constitution stating that the first regular elections for the President and Vice- o Election and qualification of chief executive and
President under this Constitution shall be held on the second Monday of majority of sanggunian members (when not fixed by
May, 1992. law or ordinance)
That the ARMM elections were not expressly mentioned in the Transitory PART IV: POWER RELATIONS WITH NATIONAL GOVERNMENT,
Provisions of the Constitution on synchronization cannot be interpreted to SUPREME COURT, PRESIDENT, AND CONGRESS; INTER-
mean that the ARMM elections are not covered by the constitutional GOVERNMENTAL RELATIONS, AND HIERARCHICAL RELATIONS AMONG
mandate of synchronization. We have to consider that the ARMM, as we now LOCAL GOVERNMENT UNITS
know it, had not yet been officially organized at the time the Constitution
was enacted and ratified by the people. Keeping in mind that a constitution is You know the study of political law, to the large extent, deals with power
not intended to provide merely for the exigencies of a few years but is to relations. You study the relationships of the different branches of the
endure through generations for as long as it remains unaltered by the people government; you study the relationships between different agencies when
as ultimate sovereign, a constitution should be construed in the light of what you study administrative law. In the same manner, you when you study local
actually is a continuing instrument to govern not only the present but also government law, you also have to deal with the relationship of agencies,
the unfolding events of the indefinite future. Although the principles officials involving local units.
embodied in a constitution remain fixed and unchanged from the time of its
adoption, a constitution must be construed as a dynamic process intended to A. LGUs and National Government in General: LGUs are agents of the
stand for a great length of time, to be progressive and not static. State
- Magtajas vs. Pryce Properties, 234 SCRA 255 (1994)
To reiterate, Article X of the Constitution, entitled “Local Government,” o The rationale of the requirement that the ordinances
clearly shows the intention of the Constitution to classify autonomous should not contravene a statute is obvious.
regions, such as the ARMM, as local governments. Municipal governments are only agents of the
national government. Local councils exercise only
In the course of synchronizing the ARMM elections with the national and delegated legislative powers conferred on them by
local elections, Congress had to grant the President the power to appoint Congress as the national lawmaking body. The
OICs in the ARMM, in light of the fact that: (a) holdover by the incumbent delegate cannot be superior to the principal or
ARMM elective officials is legally impermissible; and (b) Congress cannot call exercise powers higher than those of the latter.
for special elections and shorten the terms of elective local officials for less
than three years. - Pimentel, Jr., vs. Executive Secretary (2012)
In order to fully secure to the LGUs the genuine and meaningful autonomy
C. Beginning of Corporate Existence that would develop them into self-reliant communities and effective partners
- SECTION 14. Beginning of Corporate Existence. — When a in the attainment of national goals,16 Section 17 of the Local Government
new local government unit is created, its corporate existence Code vested upon the LGUs the duties and functions pertaining to the
shall commence upon the election and qualification of its delivery of basic services and facilities, as follows:
chief executive and a majority of the members of its
sanggunian, unless some other time is fixed therefor by the SECTION 17. Basic Services and Facilities.
law or ordinance creating it. (LGC of 1991) xxx

(c) Notwithstanding the provisions of subsection (b) hereof, public works and - And in fact, even as to expanded judicial review, the SC may
infrastructure projects and other facilities, programs and services funded by also exercise that power involving local government units.
the National Government under the annual General Appropriations Act, other - In Kulayan vs. Tan (2012), the declaration of Governor Tan
special laws, pertinent executive orders, and those wholly or partially funded placing the province of Maguindanao under Martial Law was
from foreign sources, are not covered under this Section, except in those reviewed by the Supreme Court under the expanded judicial
cases where the local government unit concerned is duly designated as the review power of the SC.
implementing agency for such projects, facilities, programs and services.
(Underscoring supplied) C. LGUs and the President: President exercises General Supervision
- Sec. 4, 16, Article X, 1987 CONST
The essence of this express reservation of power by the national government - Sec 25 LGC of 1991
is that, unless an LGU is particularly designated as the implementing agency,
it has no power over a program for which funding has been provided by the  LGU and the President
national government under the annual general appropriations act, even if the - Under the Constitution, the relationship of the President and
program involves the delivery of basic services within the jurisdiction of the the LGU is only that of general supervision by the President
LGU. over the LGU. The President shall exercise ”general
supervision” over local government units under sec. 4
 LGU and National Government (constitution) and sec 25 of LGC and autonomous regions
- How is the local government unit related to the national under sec. 16 (Constitution). And in so far as the
government? You of course know the answer – Magtajas vs. Autonomous Region is concerned, under Section 16, Article
Pryce Properties. LGUs are but agents of the state. And you 10 of the Constitution, it says autonomous region is under
know of course the legal import of LGUs being agents - they the general supervisory power of the President.
are mere delegates and therefore cannot be superior to the
principal. In Magtajas, an ordinance cannot undo the will of - In administrative law, there are also various relationships.
Congress that allowed the operation of PAGCOR. You can mention of supervision and control; then you have
supervision; and you have attachment. But in this case, it
B. LGUs and the Supreme Court: LGUs acts are subject to Judicial Review mentions of general supervision. It is found in Section 4 of
- See sec. 1, Article VIII, 1987 CONST (judicial review power of Article 10.
the SC)
- Sec 4(2), Ibid. (constitutionality of any law, treaty ordinance or - What does general supervision mean? It simply means,
other regulations) under Section 17 of Article 7, the President shall ensure
that laws are faithfully executed and that LGU acts are
 LGU and the Supreme Court within the scope of their prescribed powers and functions.
- The acts of the LGU are subject to the judicial review of the Why highlight general supervision? Because in a given
SC. Both ordinary judicial review and expanded certiorari problem, the power exercised by the President is tantamount
jurisdiction (expanded judicial review). Our legal basis is to an exercise of control, then it should be invalidated by the
Section 4 paragraph 2 of Article 8, which says that our SC has SC. The President is not allowed to exercise the power of
appellate jurisdiction on matters involving constitutionality control over LGUs.
of ordinances, aside from presidential decrees, executive
orders, treaties, etc. - NOTE: President has direct supervision over PROVINCES,
HIGHLY-URBANIZED CITIES, and INDEPENDENT
COMPONENT CITIES and President has indirect supervision subject to “guidelines and limitations” as Congress may
over COMPONENT CITIES and MUNICIPALITIES (through the provide.
province) and BARANGAY (through the municipality or city)
- What is therefore the extent of the power of Congress
Cases: over local taxation? Only specific power to tax can be the
Drilon vs. Lim, 235 SCRA 135 (1994) subject to statutory guidelines or limitations that Congress
Ganzon vs. CA, 200 SCRA 271 (1991) may provide.
National Liga ng mga Barangay vs. Paredes (2004)
Zaldy Ampatuan vs. Hon. Puno (2011) - What do you mean by general power to tax and there is
specific power to tax? The SC said in Basco vs. PAGCOR, that
D. LGU and Congress: LGUs derive their existence and powers from LGUs do not possess the inherent power to tax. Practically
Congress that had been the doctrine before the 1987 Constitution.
- Magtajas vs. Pryce Properties (supra.) That pronouncement was actually made citing also previous
o This basic relationship between the national cases before the 1987 Constitution – the doctrine being that
legislature and the local government units has not the LGUs do not possess the inherent power to tax and they
been enfeebled by the new provisions in the only exercise power to tax only by mere delegation.
Constitution strengthening the policy of local
autonomy. Without meaning to detract from that - Then came the 1987 Constitution, Article 10, Section 5, which
policy, we here confirm that Congress retains control says that LGUs shall have the power to impose or levy taxes,
of the local government units although in revenues, etc.
significantly reduced degree now than under our
previous Constitutions. The power to create still - Now the question is what is the significance of Section 5,
includes the power to destroy. The power to grant Article 10 in relation to the doctrinal pronouncement of the
still includes the power to withhold or recall. True, SC that LGU do not possess the inherent power to tax? Has it
there are certain notable innovations in the altered the doctrine that LGUs do not possess inherent
Constitution, like the direct conferment on the local power to tax? It has not, of course. But what does it do to
government units of the power to tax, (Art X, Sec. 5, the doctrine? It modified a bit in the sense that while it is
CONST) which cannot now be withdrawn by mere true that LGUs still do not possess inherent power to tax, and
statute. By and large, however, the national therefore power to tax is the subject of delegation - that rule
legislature is still the principal of the local applies now to specific power to tax and not to the general
government units, which cannot defy its will or power to tax. What does it mean?
modify or violate it.
- It means therefore that Congress cannot deny LGUs the
 LGU and Congress power to tax through statutory requirement because the
- What about LGU and Congress? We go back to Magtajas. - Constitution already guarantees that. It cannot therefore
LGUs derived their existence and powers from Congress. But altogether deprive LGUs the power to tax. But as to
there’s a little modification in the area of taxation, because specific power to tax, it may do so. It may perhaps for
Section 5 of Article 10, however, the ”general power to tax” example through a law say that LGU has no more power to
of LGU is not conferred by law but guaranteed by thru impose community tax. Is that a total denial of the power to
constitution. Only the “specific power to tax” is statutory and tax? NO, because the LGU may still raise revenue through
other revenue-raising but not just through community tax, granted by law and in conformity with provincial, city, or
because community tax is not constitutionally-guaranteed, it municipal ordinances.
is only statutorily provided. To the extent that Congress has - (b) If the governor or the city or municipal mayor fails to act
participation to specific power to tax, then it may provide on said executive orders within thirty (30) days after their
guidelines and limitations. submission, the same shall be deemed consistent with law
and therefore valid.
E. Mother LGU and Component LGU: Mother LGU review acts of
component LGU 5. Sanggunian of mother LGU reviews ordinances of Sanggunian and
1. In general – The President of the Philippines shall exercise EOs of LCE of component LGU
general supervision over local governments. Provinces with - See sec 56, LGC (regarding review by S. Panlalawigan of local
respect to component cities and municipalities, and cities and development plans and public investment programs
municipalities with respect to component barangays shall ensure formulated by local development councils)
that the acts of their component units are within the scope of
their prescribed powers and functions. (Sec 4, Article X, 1987 - SECTION 56. Review of Component City and Municipal
CONST) Ordinances or Resolutions by the Sangguniang Panlalawigan.
2. Provincial Relations with component cities and municipalities — — (a) Within three (3) days after approval, the secretary to
The province, through the governor, shall ensure that every the sangguniang panlungsod or sangguniang bayan shall
component city and municipality within its territorial jurisdiction forward to the sangguniang panlalawigan for review, copies
acts within the scope of its prescribed powers and functions. of approved ordinances and the resolutions approving the
Highly urbanized cities and independent component cities shall local development plans and public investment programs
be independent of the province. (Sec 29, LGC) formulated by the local development councils.
3. City and municipal supervision over their respective barangays — - (b) Within thirty (30) days after the receipt of copies of such
The city or municipality, through the city or municipal mayor ordinances and resolutions, the sangguniang panlalawigan
concerned, shall exercise general supervision over component shall examine the documents or transmit them to the
barangays to ensure that said barangays act within the scope of provincial attorney, or if there be none, to the provincial
their prescribed powers and functions. (Sec 32, LGC) prosecutor for prompt examination. The provincial attorney
or provincial prosecutor shall, within a period of ten (10) days
4. Local Chief Executive of Mother LGU reviews ordinances of from receipt of the documents, inform the sangguniang
Sanggunian and Eos of LCE of component LGU panlalawigan in writing of his comments or
- SECTION 30. Review of Executive Orders. — (a) Except as recommendations, which may be considered by the
otherwise provided under the Constitution and special sangguniang panlalawigan in making its decision.
statutes, the governor shall review all executive orders - (c) If the sangguniang panlalawigan finds that such an
promulgated by the component city or municipal mayor ordinance or resolution is beyond the power conferred upon
within his jurisdiction. The city or municipal mayor shall the sangguniang panlungsod or sangguniang bayan
review all executive orders promulgated by the punong concerned, it shall declare such ordinance or resolution
barangay within his jurisdiction. Copies of such orders shall invalid in whole or in part. The sangguniang panlalawigan
be forwarded to the governor or the city or municipal mayor, shall enter its action in the minutes and shall advise the
as the case may be, within three (3) days from their issuance. corresponding city or municipal authorities of the action it
In all instances of review, the local chief executive concerned has taken.
shall ensure that such executive orders are within the powers
- (d) If no action has been taken by the sangguniang o Review all ordinances approved by the sanggunians
panlalawigan within thirty (30) days after submission of such of component cities and municipalities and executive
an ordinance or resolution, the same shall be presumed orders issued by the mayors of said component units
consistent with law and therefore valid. to determine whether these are within the scope of
the prescribed powers of the sanggunian and of the
- SECTION 57. Review of Barangay Ordinances by the mayor;
Sangguniang Panlungsod or Sangguniang Bayan. — (a)
Within ten (10) days after its enactment, the sangguniang  Mother LGU and a Component LGU
barangay shall furnish copies of all barangay ordinances to
the sangguniang panlungsod or sangguniang bayan What about a mother LGU and a Component LGU? Mother LGU reviews acts
concerned for review as to whether the ordinance is of component LGU. Province for example, that is the mother LGU in relation
consistent with law and city or municipal ordinances. to municipalities and component cities. The city also is also the mother LGU
- (b) If the sangguniang panlungsod or sangguniang bayan, as in relation to barangays. The same is true to municipalities. A municipality is a
the case may be, fails to take action on barangay ordinances mother LGU in relation to the component barangays.
within thirty (30) days from receipt thereof, the same shall be
deemed approved. What is the relationship? The mother LGU reviews acts of component LGUS.
- (c) If the sangguniang panlungsod or sangguniang bayan, as That is essentially how a mother is related to the component LGU –the power
the case may be, finds the barangay ordinances inconsistent to review the act.
with law or city or municipal ordinances, the sanggunian
concerned shall, within thirty (30) days from receipt thereof, What is the extent of that power? Does it have the power to set aside an
return the same with its comments and recommendations to ordinance on the ground that it is not a wise ordinance?
the sangguniang barangay concerned for adjustment, - Bar Question (2009, 2004/5) (Moday vs ca): The common
amendment, or modification; in which case, the effectivity of situation was a component municipality passed an ordinance
the barangay ordinance is suspended until such time as the authorizing the mayor to expropriate a parcel of land. And
revision called for is effected. because it is an ordinance under the Code and because it
involved a municipality, then as a rule the ordinance will have
- Sec. 447 (ordinances and EOs of barangays in municipalities) to be submitted to the Provincial Board for review. Then the
o Review all ordinances approved by the sangguniang Provincial Board nullified or declared the ordinance that
barangay and executive orders issued by the punong authorized the Mayor to expropriate as not valid. Apparently
barangay to determine whether these are within the the basis would be that the subject of the expropriation
scope of the prescribed powers of the sanggunian and should have not been the property that should be the
of the punong barangay; subject of the expropriation. It should have been another
- Sec. 458 (ordinances and EOs of barangays in cities) property. Was the act of the Provincial Board in accordance
o Review all ordinances approved by the sangguniang with law?
barangay and executive orders issued by the punong
barangay to determine whether these are within the Clue: the Mother LGU shall ensure that the acts of their component units are
scope of the prescribed powers of the sanggunian and within the scope of their prescribed powers and functions. To determine
of the punong barangay; whether or not they are ultra vires.
- Sec. 468 (ordinances and EOs of component municipalities
and cities)
Does the Provincial Board have the power to set aside the ordinance passed mentions of a single kind of resolution that should
by a component municipality allowing the Mayor to expropriate? be submitted for review. All ordinances should be
submitted for review; while resolutions, not all of
 Answer: A Provincial Board does not have the power to do that them. As a rule, resolution stays in the issuing
because it is settled that a local government unit has the power to sanggunian, except if the resolution involves
expropriate. The ground for setting aside an ordinance of a approving of plans and programs of Local
component LGU is merely or only ultra vires. Therefore, the question Development Councils, in which case, the Code
that should be resolved there in the Provincial Board is whether or requires that these kinds of resolutions should be
not the municipality has the power to expropriate because the submitted to the reviewing LGU. For consistency of
ordinance is about expropriation. And if it can be set aside by the the implementation of these projects.
Provincial Board, it is just saying that the municipality does not have
the power to expropriate, but the power is recognized there in o The Sangguniang Panlungsod for cities, and
Section 19 in the LGC that all LGUs can expropriate. The only reason Sangguniang Bayan for municipality review also the
that a PB can nullify or set aside an ordinance is that it is beyond the ordinances of barangays. And you have also mother
power or function of the component LGU. Sanguniang review ordinanace and executive orders
of component units. (Balik-balik ang LGC, pwedi ra
Unsa may example ana sir? If there is a tax ordinance imposing income on man unta na ma simplify. Hastily –crafted jud siguro).
compensation earners. Di ba na covered sa NIRC – national tax. The
ordinance cannot contravene the law. So it is not within the powers. - (NOTE) Just an important distinction. The ground for the
exercise of review power of the Sangunian Panlalawigan is
- Let us go to the pertinent provisions in the Code on how this only ultra vires. But if it is by Sangguniang Panlungsod for
relationship between mother LGU and component LGU is city or Sangguniang Bayan for municipality, Section 57
being implemented. mentions of different grounds. But to my mind, it is still of
o We have Section 30 (for provincial governors) of the the same effect – consistent with laws and consistent with
LGC. Then you jump to Sections 56 and 57 (for city or municipal ordinances. Hinuon kung consistent with
Sangguniang Panlalawigan). Then you go to Sections law, pwedi it is ultra vires; but naay additional – consistent
447 (for province), 458 (for city), and 468 (for with city or municipal ordinances.
municipality) for ordinances and executive orders.
- And it is interesting also to distinguish the grounds for the
o Section 30: Provincial governors have the power to review power of mother Sanggunian from the Veto power of
review the executive orders of the component city the local chief executive because it also mentions of ultra
and municipal mayors; and city and municipal vires.
mayors will also review the executive orders of
punong barangay. These are local chief executives Mother sanggunian’s Veto Power
reviewing the executive orders of the local chief review power: of local chief executive
executives of component LGUs. Executive orders kay Grounds: Two grounds –
local chief executives man. - If by sanguniang panlalawigan: 1. ultra vires and
1. Ultra vires(sec. 56 (c) LGC) 2. prejudicial to public welfare. (sec.
o Under Sections 56 and 57, these now involved 55, LGC)
ordinances and NOT ALL resolutions. The code only
- If by sanguniang panlungsod/ This is relevant at present. Remember the issue on LRT-BRT thing in Cebu
bayan: *That second ground (prejudicial to City? Rep. Gullas wanted to establish an LRT connecting Talisay City, Cebu
1. Consistent with law public welfare) you don’t see in the City, and Mandaue City. The initial plan is gikan sa Talisay, then to M. Bacalso
2. Consistent with city/mun. power of the mother LGU to review – Land Bank to Capitol – right turn towards Escario - Old SSS Building – right
ordinances (sec. 57, LGC) the acts of the component LGU. That turn towards Immaculada – left turn towards Reclamation Project. The project
is only peculiar to the veto power of implementor is DPWH because it is national government project.
the local chief executive.
Ang problema kay dili man musugot si Tomas kay BRT ang I-implement dinhi
F. LGUs and National Agencies and Offices (with project implementation sa Cebu City. Do you know the idea of Bus Rapid Transit? The idea is mura
functions): Prior consultation before implementation siyag train pero bus lang ang gamiton. In other words, naa siyay lane and dili
- (b) National agencies and offices with project na siya muliko or mohunong bisan asa.
implementation functions shall coordinate with one another
and with the local government units concerned in the The situation here is a little bit unique becasue the program apparently will
discharge of these functions. They shall ensure the involve of just one LGU but at least three LGUS. If Gullas will get the approval
participation of local government units both in the planning of Talisay City, and if Cortes and officials of Mandaue City will also give their
and implementation of said national projects. (Sec. 25,b, approval but Cebu City will not, will that stop the implementation of the
LGC) project. Well, if you will use your common sense, since one of the LGUs will
- SECTION 27. Prior Consultations Required. — No project or object then dili pwedi.
program shall be implemented by government authorities
unless the consultations mentioned in Sections 2 (c) and 26 This is mandatory. No project or program shall be implemented by
hereof are complied with, and prior approval of the government authorities (of course with project implementation functions)
sanggunian concerned is obtained: Provided, That occupants without the consultation, (which is easily done); and the approval (that is
in areas where such projects are to be implemented shall not difficult to obtain) from the local Sanggunian.
be evicted unless appropriate relocation sites have been
provided, in accordance with the provisions of the In the case of Lina vs. Paño (2001), it interpreted Section 27 in relation to
Constitution. (LGC of 1991) Section 26 to mean that it shall only refer to programs by national
government. So if it is by, in this case for example, government-owned-or-
 LGU and National Agencies and Offices with Project controlled corporation like PAGCOR, the rule on prior consultation before
Implementation Function implementation will not apply. Because in this case, PAGCOR operates in
Laguna or Pangasinan. One of the contentions there was that PAGCOR failed
- Section 27 provides that no project or programs shall be to get an approval and did not even consult the Sanggunian of the
implemented by the government authorities unless the municipality concerned.
consultations in Sections 2 (c) and 26 of the LGC and prior
approval of the Sanggunian concerned obtained. Provided That is not a requirement because to invoke Section 27 in relation to Section
that if in the implementation of the project there shall be 26, that only applies to projects by the national government, and not by the
some occupants that will be affected, then they shall be government-owned-or-controlled corporation. You know of course in Admin
given relocation sites. This is applicable only if there are Law that national government as entity is different from regulatory agencies,
occupants who will be affected. GOCCs, chartered institutions, etc.

Cases: powers necessary, appropriate, or incidental for its efficient and effective
Bangus Fry Fisherfolk vs. Lanzanas, (2003) - Congress introduced Sections 26 governance, and those which are essential to the promotion of the general
and 27 in the Local Government Code to emphasize the legislative concern welfare," which involve, among other things, "promot(ing) health and
"for the maintenance of a sound ecology and clean environment." 26 These safety, enhance(ing) the right of the people to a balanced ecology, and
provisions require every national government agency or government-owned preserv(ing) the comfort and convenience of their inhabitants."
and controlled corporation to hold prior consultations with the local
government unit concerned and to secure the prior approval of Section 27 of the Code should be read in conjunction with Section 26 thereof.
its sanggunian before implementing "any project or program that may cause Section 26 reads:
pollution, climatic change, depletion of non-renewable resources, loss of xxx
cropland, rangeland, or forest cover and extinction of animal or plant species. Thus, the projects and programs mentioned in Section 27 should
be interpreted to mean projects and programs whose effects are
In Lina, Jr. v. Paño,27 the Court interpreted these provisions in this manner: among those enumerated in Section 26 and 27, to wit, those
Section 27 of the Code should be read in conjunction with Section 26 thereof that: (1) may cause pollution; (2) may bring about climatic
x x x. change; (3) may cause the depletion of non-renewable
Thus, the projects and programs mentioned in Section 27 should be resources; (4) may result in loss of crop land, range-land, or
interpreted to mean projects and programs whose effects are among forest cover; (5) may eradicate certain animal or plant species
those enumerated in Sections 26 and 27, to wit, those that: (1) may from the face of the planet; and (6) other projects or programs
cause pollution; (2) may bring about climatic change; (3) may cause that may call for the eviction of a particular group of people
the depletion of non-renewable resources; (4) may result in loss of residing in the locality where these will be implemented.
crop land, rangeland, or forest cover; (5) may eradicate certain animal Obviously, none of these effects will be produced by the introduction
or plant species; and (6) other projects or programs that may call for of lotto in the province of Laguna. (emphasis supplied)
the eviction of a particular group of people residing in the locality
where these will be implemented. We reiterated this doctrine in the recent case of Bangus Fry Fisherfolk v.
Lanzanas,50 where we held that there was no statutory requirement for
Again, Sections 26 and 27 do not apply to this case because as petitioners the sangguniang bayan of Puerto Galera to approve the construction of a
admit,28 the mooring facility itself is not environmentally critical and hence mooring facility, as Sections 26 and 27 are inapplicable to projects which are
does not belong to any of the six types of projects mentioned in the law. not environmentally critical.
There is no statutory requirement for the concerned sanggunian to approve
the construction of the mooring facility. It is another matter if the operation Under the Local Government Code, therefore, two requisites must be met
of the power barge is at issue. As an environmentally critical project that before a national project that affects the environmental and ecological
causes pollution, the operation of the power barge needs the prior approval balance of local communities can be implemented: prior consultation with
of the concerned sanggunian. However, what is before this Court is only the the affected local communities, and prior approval of the project by the
construction of the mooring facility, not the operation of the power barge. appropriate sanggunian. Absent either of these mandatory requirements, the
Thus, the issuance of the ECC does not violate Sections 26 and 27 of RA No. project’s implementation is illegal.
7160.
G. LGUs and national agencies, offices and GOCCs (with field units in the
Province of Rizal vs. Executive Secretary (2005) - The earth belongs in usufruct LGU): consultation
to the living. (read case; about dumping of MM garbage in the province of - National agencies and offices including government-owned
Rizal) Held: Section 16 allows every local government unit to "exercise the or -controlled corporations with field units or branches in a
powers expressly granted, those necessarily implied therefrom, as well as province, city, or municipality shall furnish the local chief
executive concerned, for his information and guidance, choosing the city director (the chief of police or city police commander), the
monthly reports including duly certified budgetary Regional Police Director shall give a list of 5 eligibles to the Mayor. Unya
allocations and expenditures. (Sec. 25(d), LGC) kutob ra pod didto sa lima ang i-appoint sa Mayor. Si Mayor Alvin miingon
nga kani si I forgot the name maoy i-apil. Unya wala ma jud giapil Sa
* If there is no program implementation, it is only mere consultation that is Regional Police Director didto sa lima nga recommended. Iya gipaapil.
required. Prior approval by the Sanggunian is not required.
May the City Mayor insist on a name that is not included in the nominees by
H. LGUs and national agencies, offices and GOCCs (with environmental the Regional Police Director? It is here that the SC discussed the relationship
programs): consultation between the Mayor and the National Police Commission, applying of course
- SECTION 26. Duty of National Government Agencies in the the rule that the Mayor is only limited to operational supervision and control.
Maintenance of Ecological Balance. — It shall be the duty of
every national agency or government-owned or -controlled Cases:
corporation authorizing or involved in the planning and Andaya vs. RTC, 319 SCRA 696 (1999)
implementation of any project or program that may cause
pollution, climatic change, depletion of non-renewable Kulayan vs. Tan (2012) – The framers never intended for local chief executives
resources, loss of cropland, rangeland, or forest cover, and to exercise unbridled control over the police in emergency situations (which
extinction of animal or plant species, to consult with the local is lacking in this case). This is without prejudice to their authority over police
government units, nongovernmental organizations, and units in their jurisdiction as provided by law, and their prerogative to seek
other sectors concerned and explain the goals and objectives assistance from the police in day to day situations, as contemplated by
of the project or program, its impact upon the people and the Constitutional Commission. But as a civilian agency of the government,
the community in terms of environmental or ecological the police, through the NAPOLCOM, properly comes within, and is subject to,
balance, and the measures that will be undertaken to prevent the exercise by the President of the power of executive control. A local chief
or minimize the adverse effects thereof. executive, such as the provincial governor, exercises operational
supervision over the police, and may exercise control only in day-to-day
* If it environmental program, prior approval is also not required. It is mere operations.
consultation if you look at the Code.
J. LGUs and NGOs: LGUs shall support and give assistance to NGOs
I. LGUs and Philippine National Police (PNP), fire protection unit, and (see Sec. 34-36 of LGC)
jail management personnel: Operational supervision and control by
LGUs
- Extent of operational supervision and control shall be PART V: GOVERNMENTAL POWERS OF LOCAL GOVERNMENTS
governed by RA 6975, the DILG Act of 1990 (sec. 28, LGC)
- What is the extent of the exercise of power by the LGU These are the powers that we will study – local power of taxation, police
through the Mayor? Only operational supervision and power and eminent domain. We will be talking about the power and not
control. It is not even supervision and control. it is just about the specific local taxes because that is not part of the coverage in the
“operational” supervision and control. Meaning, how to bar exam in so far as political law is concerned. That will be in taxation. We
mobilize the police force if we are to talk about PNP. will just talk about the power in general.
This was tested in the case of Andaya vs, RTC (1999), involving then former A. Local Power of Taxation
mayor Alvin Garcia. Under the law creating National Police Commission, in 1. Sources of revenues of LGUs
No statute can ever be passed mandating the manner by
BAR QUESTION (1999): What are the sources of revenues of which local funds should be spent, but still subject to
LGUs? guidelines and limitations.
- Taxes, Fees and Charges through ordinances (sec 5);
- Just share in the national taxes (sec 6); and  Nature of Local Power to Tax
- Equitable share in the proceeds of the utilization and - Do LGUs possess the inherent power to tax?
development of national wealth within their respective o Basco vs. PAGCOR, 197 SCRA 52 (1991) – No
areas (sec 7, Article X, 1987 CONST) inherent right to impose taxes and therefore, an LGU
needs to have a law or statute that grants the power
o SECTION 5. Each local government unit shall have the power and this is already done through the LGC of 1991,
to create its own sources of revenues and to levy taxes, fees, subject to control by Congress and that local
and charges subject to such guidelines and limitations as the governments have no power to tax instrumentalities
Congress may provide, consistent with the basic policy of of the national government.
local autonomy. Such taxes, fees, and charges shall accrue
exclusively to the local governments. (Art. X, 1987 CONST) * (This case involves the City of Manila trying to impose taxes on PAGCOR,
but PAGCOR was considered an instrumentality of the national government
*All these sources are already found in the LGC of 1991. because PAGCOR was given the power to regulate lawful games of chance
and therefore, this was an exercise of the regulatory power of the national
 Question: Under the law that is created, certain local taxes shall be government and as such, it is part of police power and since it’s part of police
spent to other purposes but not accruing to the LGUs. Is the law power, to that extent, that is governmental, and because it’s governmental,
valid? PAGCOR, while a GOCC, becomes instrumentality of the national
- Take note that this is a provision in the Constitution. This is government.)
not under the LGC. So Congress cannot change this. Any law
that alters this rule that they shall accrue exclusively to the - What are the reasons for giving Congress the power to
local governments shall be declared unconstitutional. provide guidelines and limitations?
 What is “local fiscal autonomy?” o The SC listed the following reasons in Manila Electric
- Local governments have the power to create their own Company vs. Province of Laguna (1999). Apparently
sources of revenue in addition to their equitable share in indicating that Congress does not trust LGUs in so
the national taxes released automatically by the national far as exercise of the power to tax is concerned.
government as well as the power to allocate their - (1) Because the legislature must still see to it that the
resources in accordance with their own priorities. taxpayer will not be overburdened and saddled with multiple
(Pimentel vs. Aguirre, 2000) and unreasonable impositions. That is to say therefore that
- What is important here is you should add “as well as the LGUs do not know the distinction between the reasonable and
power to allocate their resources in accordance to their own the unreasonable imposition.
priorities.” So it is the power to allocate their resources in - (2) Each LGU will have its fair share of the available resources.
accordance with their priorities that gives true meaning to - (3) The resources of the LGU will not be unduly disturbed.
local autonomy. - (4) Local taxation will be fair, uniform and just.
- The national government is not given any authority to
interfere with the way the resources of an LGU shall be spent.
What are the possible limitations to the power to tax? Only two – basta entity, effectively withdrawn. Mao na ang MCIAA vs. Marcos. But
Constitution and Law. Not an executive order or memorandum circular by the suddenly, the SC did not apply MCIAA in this case of MIAA.
department. Wala na class. Only Constitution and law if we are to truly
implement local autonomy. That is Philippine Petroleum Corporation vs. In GSIS vs. City of Manila, it applied MIAA and not Marcos. Nagsugod na sad
Municipality of Pililla, Rizal (1991). ug affirm ang MIAA doctrine. The same reason – that it was created as a non-
stock corporation, the GSIS capital is not divided into shares, and there are
 Effect on Effect of Local Government Code on privileges and no members (members according to the SC should be interpreted as the
exemptions granted to GOCCs. beneficiaries of GSIS) of the entity. SO it applied MIAA. Kung nay exam sir
Section 234 provides for the exemptions from payment of real property unsa man among gamiton. Sir: ambot nimo dako naman ka. Mao basaha na
taxes, and withdraws previous exemptions granted to natural and juridical kung asa nimo feel ang correct. Because I am not convinced that MIAA is
persons including GOCCs. You add Section 193, Tax Exemptions or really a doctrinal pronouncement of the Court especially that it abandons
incentives granted to or presently enjoyed by all person whether natural or several rulings as said in the dissent of Justice Tinga.
juridical including GOCCs, except local water districts, cooperatives duly
registered, non-stock, non-profit hospitals and educational institutions, are In Quezon City vs. Bayantel. Di ba effectively withdrawn. But it does not
hereby withdrawn upon the effectivity of this Code. prohibit the Congress from reinstating the exemption. Just like what
happened here in Quezon City vs. Bayantel. A law RA 7633 restored the
Indeed that was the ruling of the Court in Mactan Cebu International Airport exemption. So pwedi ug while effectively withdrawn by LGC of 1991 but
Authority vs. Marcos (1996). Judge Marcos not President Marcos. These through a special law, pwedi i-reinstate ang exemption. So Congress is not
involved the properties now occupied IT Park. barred to do that – plenary power of the Congress.
- Gi assessan sa City of Cebu real property tax. Invoking Basco,
MCIAA said exempt. And then invoking also a provision in Cases:
their charter that it is exempt. Apparently was there before Mactan Cebu International Airport vs. Judge Marcos (1996)
the LGC of 1991. The SC said revoked - effectively withdrawn City Government of Quezon vs. Bayantel (2006)
is the phrase used in the LGC of 1991. Manila International Airport Authority vs. CA (2006)
Digitel vs. Pangasinan (2007)
In 2006, it was changed. MIAA vs. CA (2006) disregards MCIAA vs. Marcos. City of Iloilo vs. Smart Communications (2009)
Have you read this case; the dissent of Justice Tinga? You read that so that GSIS vs. City Treasurer of Manila (2009)
you will be convinced whether or not this is not a good rule. Unsa may
kalainan sa MIAA ug MCIAA? Mao to nga miingon si Justice Tinga that b. Just share in the national taxes
MCIAA vs. Marcos case applies squarely. Interestingly, in this case, there was - SECTION 6. Local government units shall have a just share, as
no mention, not a single words was used discussing the propriety or determined by law, in the national taxes which shall be
impropriety of the MCIAA vs. Marcos doctrine. And discussion ra diya MIAA automatically released to them.
kuno is a government instrumentality and not a GOCC kay kuno its
ownership is not divided into shares and there are no members also, applying I think the important rule here is the rule on automatic release. Internal
the introductory provisions of the Administrative Code. Since this is just a Revenue Allotment (IRA) should be released automatically. What do you
review we will not discuss or analyze Justice Tinga’s dissent. I will leave it to mean by automatic release of the IRA. You have Pimentel vs. Aguirre. It says
you to read Justice Tinga’s dissent. Especially Justice Tinga said that MCIAA – shall not subject to any lien or hold back that may be imposed by the
vs. Marcos has been applied by the SC in several cases. That doctrine has national government for whatever purpose.
been applied many times giving strength to that doctrine that all persons
whether juridical or natural and it is irrelevant whether it is GOCC or not
At that time, around 1996 or 1997, due to the Asian financial crisis, Ramos speaks of its local police power, the LGU would refer to the General Welfare
thought of preserving funds to address the financial crisis. Hunuhuna niya Clause. You might be asked a very simple question, what is meant by the
nganong diretso ma nato release ang IRA to LGUs. Maybe it can be used to General Welfare Clause then that refers to the local Police Power of Local
address this financial crisis. Miingon ang Administrative Order 372 – pending Governments. Sec. 16 is the pertinent provision in the LGC, its says:
the assessment and evaluation by the development project coordinating
committee, the amount equivalent to 10 percent of the IRA shall be withheld. “SEC. 16. General Welfare. - Every local government unit shall
exercise the powers expressly granted, those necessarily implied
- In 2007 bar exam: the provincial governor of Bataan therefrom, as well as powers necessary, appropriate, or incidental for
requested the DBM to release its IRA of P100 million for the its efficient and effective governance, and those which are essential to
current budget year. However the General Appropriations the promotion of the general welfare...”
Act provided that IRA may be released only if the province
meets certain conditions as determined by an oversight Expectedly you would read the phrase General Welfare because that is the
council created by the President. Is this requirement valid? objective of police power. Basically, it’s the promotion of general welfare. And
so several questions have been asked in the BAR as to whether or not a
o Definition of automatic release - shall not subject to particular ordinance having been passed by a LGU where it is valid or not. So
any lien or hold back that may be imposed by the it is important to know what are the requisites for the validity of local police
national government for whatever purpose. You power.
know, of course, how to answer that question. That is
a clear violation of Section 6, Article 10 of the  Police Power is inherently legislative
Constitution.
However it is important that you first read sec 5 of the LGC because you will
Just so as you will have an idea on how on the sharing of IRAs (how it is notice that sec. 16 is the provision that effectively delegates police power to
allocated: provinces (23%), cities (23%), municipalities (34%), barangays the LGU because Police Power is inherently in Congress. You learned that
(20%). already. Police power is legislative and inherently possessed by Congress. If
there is any other agency or instrumentality of government that maybe
c. Equitable share in the proceeds of the utilization and authorized to exercise Police Power, it can only be done through a valid
development of national wealth within their respective areas delegation. One of these valid delegation is this delegation to LGU’s.
SECTION 7. Local governments shall be entitled to an equitable share in the The general welfare provisions in this Code shall be liberally
proceeds of the utilization and development of the national wealth within interpreted to give more powers to local government units in
their respective areas, in the manner provided by law, including sharing the accelerating economic development and upgrading the quality of life
same with the inhabitants by way of direct benefits. for the people in the community. (Sec. 5 (c), LGC)
B. Local Police Power What does it tell you if it is a mere delegated power? This is a matter of
1. General Welfare Clause: Scope and Limitations interpretation. Normally, if the power is delegated we only speak of limited
power of the delegate. Such that in case of doubt whether the delegate can
We can talk about the next topic on the Outline which is the Local Police exercise a particular power, usually our thinking is it cannot if the power is
Power. This is not alien to you because you have studied this in part in your neither express nor implied in the law which granted it such power. But in Sec
constitutional law 2. At any rate, I know you are familiar with Local Police 5 of the LGC, there is however an assurance that the General Welfare
Power or what we call the General Welfare Clause. Each time the LGU Provision shall be liberally construed to give more power to the LGU. When
you read section 16 you go to sec. 5 because it provides that the General
Welfare shall be liberally construed to give more powers to the LGU. - And of course it must not be unfair or oppressive and
other obvious requirement in fact it is a component of the
What I’m trying to say is that Local Police power is a delegated power and requirement of due process, substantive due process.
therefore should be strictly construed because it is fundamental in the
delegation of Legislative powers. It is strictly construed against the delegate. * You remember your constitutional law 2. There are 2 aspects of
But in this case it should be liberally construed to give way to more powers due process, one is substantive and the other is procedural. And
to the LGU’s. This will somehow help you if you are confronted with a by Substantive Due process you remember that it requires
problem that is not based on an actual case it is merely hypothetical. But among others that the law itself must be reasonable, fair and
most bar examiners when they draft questions for the bar they make sure just. And that is included in these requirements on substantive
that they have a case to support their answer which is a Supreme Court due process it must not be unfair, not oppressive.
decision or if not the codal provision. Okay so Liberal Construction in favor
of Local Police Power. - It must not be partial or discriminatory.
 Requisites for validity of the exercise of local police power - Must not prohibit but may regulate lawful trade. The 4th
one had been, i don’t know why, the favorite of bar exam
Let’s go to the Requisites for Validity of Local Police Power. Your relevant questions. Maybe because it’s a little bit tricky and this you
case is Tatel vs. Mun. of Virac, 207 SCRA 157 (1992), it has been cited in so should understand, the exercise of local police power cannot
many cases dealing with local police power. prohibit lawful trade. Obviously, if the trade is lawful then it is
not prohibited by Statute, especially if it is expressly allowed
Tatel vs. Mun. of Virac, 207 SCRA 157 by the Statute or by congressional enactment. The most that
For an ordinance to be valid, it must not only be within the corporate powers the LGU can do is regulate but it can’t make a demand that it
of the municipality to enact but must also be passed according to the is prohibited.
procedure prescribed by law, and must be in consonance with certain well
established and basic principles of a substantive nature. These principles * This in the case of dela Cruz vs. Paras, an ordinance which
require that a municipal ordinance (1) must not contravene the Constitution prohibited the operation of Night Clubs. This was declared by the
or any statute (2) must not be unfair or oppressive (3) must not be partial or SC as unconstitutional or illegal because there is no Law that
discriminatory (4) must not prohibit but may regulate trade (5) must be prohibits the Operation of Night Clubs. Of course there are laws
general and consistent with public policy, and (6) must not be which regulate the activities inside the night club. But the
unreasonable. 5 Ordinance No. 13, Series of 1952, meets these criteria. operation of Night Clubs, even up to the present, declared illegal.
So an ordinance can’t prohibit the Operation of Night Club, no
matter how noble the intention maybe. Again we are governed
- It is not difficult to understand that the ordinance (by the by the Rule of Law.
way this is only through an ordinance) must not contravene
the Constitution and statutes. - Another requirement is that it must be consistent with
public policy.
* You remember what I talked about with regards to the nature
of LGU’s still under generally the control of Congress and we are * As in this case of Lim vs. Pacquing, where the LGU insisted that
still in a unitary set-up and so Local Legislative enactments must it has the authority to grant franchises for the Operation of Jai-
still conform not only to the Constitution and also the Statutes. Alai. However there was a law that actually provided that it is not
within the power of the LGU to grant franchises for the operation whenever a law, regulates, affects or interferes with the individual freedom
of Jai-Alai but is for the National Government. Therefore it is the (or the most preferred rights as the SC would sometimes call it, like the
National Government policy that it is the National Government freedom of expression, now applying the doctrine of strict scrutiny), it
which shall regulate the operation of jai-alai, so if the LGU becomes incumbent upon the government to prove that the interference of
regulates the Operation of the Jai-Alai through the issuance of the freedom of expression has a valid and legitimate governmental purpose.
franchises then it contravenes the policy of the National And the means employed to accomplish the purpose of course is not
Government. Ordinances like that can’t also be considered as overbreadth. That is the meaning of the Doctrine of Strict Scrutiny.
valid.
It may perhaps be applicable if we are to talk about ordinances that will affect
- And of course it must not be unreasonable. the freedom of expression. My point is when generally laws and ordinances
are presumed constitutional; the rule will not apply if these laws or
In the past it is seldom that you will see the requirement of Lawful subject ordinances interfere with freedom of expression under the law or doctrine of
and Lawful means in the discussion of the court striking down or dealing with strict scrutiny.
ordinances of LGU’s. Usually they apply the six requisites found in Tatel vs
Municipality of Virac but recently in the last few years perhaps 20 years, the  Zoning ordinances are police power measures, and will prevail
SC have been used to adopting what are considered the basic test in over the non-impairment of obligations and contracts
determining validity of Police Power in general.
Now of course the application of the Police Power, Ortigas vs. FEATI Bank, I
Before you don’t see this in SC decisions because this is just a term given by think this is a familiar case. You remember what happened to this case?
an author (Isagani Cruz), Lawful Subject and Lawful means. But recently as Zoning ordinances are police measures therefore, as you have learned
mentioned earlier, SC has now used Lawful Subject and Lawful means as test. already in Consti 2, they will prevail over the rule on non impairment of
Naa na sa SC decision dili na lng sa Book, and terms na lawful subject and obligations. In this case, a property having sold to the buyer with annotation
lawful means. on the title, that the property could only be used for residential purposes, at
the time of sale the land had been classified in the zoning ordinance as
 Presumption of constitutionality; exception residential. Even if it was perfectly alright to annotate that it should remain
for residential use only. But later on the Zoning ordinance was changed and
Ordinances also enjoy presumption of Constitutionality, and just like laws amended and the area where that property was situated had already been
they are also presumed constitutional. It is incumbent upon those who considered commercial. And so the buyer started to build a commercial
alleged that it is constitutionally infirmed to prove that it is so. It is not building. The owner which was just beside the building which was the seller
incumbent upon the State. Recent developments however show that there is who was just beside the building complained because in the certificate of
an exception to the rule on Presumption of Constitutionality. title it was annotated that it should only be used for residential purpose. And
now or at that time it was used for commercial purpose. And then when the
You Remember your Doctrine of Strict Scrutiny? Of course you remember the buyer invoked the zoning ordinance, the seller also invoked non-impairment
so called, Overbreadth doctrine, and the O’ brien test. You remember that in clause of the constitution and you know of course the ruling of the Court
your Consti 2, there is another doctrine which has something to do with the there, the Zoning Ordinance is a Police Measure and thus it should prevail
Presumption of constitutionality. And this is your Doctrine of Strict over contractual obligations.
Scrutiny. The SC of the Philippines has adopted a judicial philosophy about
laws dealing with liberty. If the Law deals with valuable aspects of our The case of Zoomzat vs. People, It’s a simple case. The rule is that if it is an
liberties, especially with the freedom of expression, this rule on the issue whether the LGU possesses a police power. Sometimes it’s difficult
presumption of constitutionality has been somehow changed. In the sense, really whether we apply liberality principle or not. But if it is clear according
to the court that it has no authority then the rule on Liberality of the General owners of these terminals filed a case in court questioning that ordinance,
Welfare of ordinances will not apply. The SC said that “in the absence of saying that it took their properties, private properties without payment of
constitutional or legislative authorization, municipalities have no power to Just compensation. Then of course the LGU argued, we did not take your
grant franchises”. This is a declaration made by the court when a particular property, because in the exercise of Police Power there is no taking of
LGU wanted to grant franchise to a local cable TV system. property here and the payment of just compensation. It was an exercise of
Local Police Power. The objective of which was to promote general welfare
Then in Leonardo Tan vs Perena, this is a local case on the northern part of which was to ease the traffic in the city. This case also applied the concept of
Cebu. Under the LGC the Sanguniang has the power to authorize and license overbreadth in police power measures. It is overbreadth if it does not comply
establishment, operation and maintenance of cockpits. This might sound with lawful means or lawful methods, as when it is not reasonably necessary.
interesting to some people. Yes the Sanggunian has the power to authorize According to the court while the objective was for the promotion of the
and license the operations and maintenance of cockpit. However, the law general welfare and therefore the subject was lawful, the means employed by
provides that there should be only one cockpit per city or municipality. The the LGC was not reasonably necessary. Why? Because according to the Court
only exception is when such cities or municipalities have a population over the LGU was not without recourse in solving congestion. It could have (i)
100k. Then the sanggunian can’t act contrary to the particular mandate of implemented strictly traffic rules and (ii) it could have widened roads for
the statute. There is a law regulating the cockpits/LGU’s. example or if not create some more roads to ease the traffic, rather than
order the non-operation of existing terminals and deprive them of their right
This is the case where I said which mentions lawful subject and lawful to property without payment of just compensation. Another application of
method. First, the meaning of Lawful subject – that the interest of the public Lawful means requirement.
as distinguished from those of a particular class require the interference of the
State. That is the meaning of Lawful Subject. Second, the means employed are If that was not interesting I think this one is, White Light Corporation vs.
reasonably necessary for the attainment sought to be accomplished and not City of Manila (January 2009). You know it’s very common short time
unduly oppressive upon individuals. Inana ra na class. accommodation. Why are there short time accommodations? One is for
transient. Other than that? R&R? Well of course you know what im trying to
- Lawful subject – interest of the public as distinguished from say but i don’t want to say it. Apparently it was the reason why this short time
the interest of a particular class require the interference of accommodation by hotels, motels and other similar establishments have
the State encouraged the strength of prostitution. Not only that in this case another
- Lawful means – means employed are reasonably necessary concern was drug pushing. In the privacy of hotel rooms there will be of
for the attainment of the object and not unduly oppressive course prostitution or the commission of crimes specifically drug pushing,
upon individuals. selling or using. So an ordinance was passed in Manila, prohibiting this kind
of accommodation, the short time admission and tolerated or wash-up rates
And in this case, Lucena Grand Central Terminal vs. JAC Liner, the for abbreviated stays. If we are to resolve this issue, taking into consideration
ponente used the terms Lawful subject and Law Methods. As it is now, these the objective, 1. Lawful subject. What is the object? The operation of the
terms mentioned by the former justice Isagani Cruz, forms part of SC hotel. Does it affect the general welfare? Yes, in away because the hotel is
decisions. You know what happened in Lucena Grand Central Terminal? In operating its services to the public. So it is a matter that can be lawfully
Lucena City there were certain terminals (about 2 or 3 terminals) that have regulated. So lawful subject. What about the means employed? In City of
been in operation within the interior part of the City. As observed it caused Manila vs Laguio Jr. (2005) it was obvious, remember the rule? The LGU
traffic and congestion to the city. The solution was to have a terminal and can’t prohibit but they can only regulate the operation of lawful trade. And
make it a central terminal outside the city. Indeed it was implemented by the the Operation of Hotel has not been declared invalid by statute, so no LGU
LGU but at the same time it ordered through the ordinance that existing can prohibit the operation of these establishments. Do you think the
terminals inside the city cannot operate as terminals. And so the affected ordinance here in Whitelight Corporation is valid? No, it’s not valid. There are
less intrusive ways of solving such problem rather than radically prohibiting Rimando vs. Naguillian Emission Testing Center, GR 198860, July 23, 2012 –
such activities or establishments. Facts: The issue in this case involves the application of a writ of mandamus to
compel the city mayor to issue business permits in favor of respondent.
What are the least intrusive means? That is actually the idea of an over Held: More importantly, a mayor cannot be compelled by mandamus to
breadth doctrine. If the government wants to interfere with certain freedom, it issue a business permit since the exercise of the same is a delegated police
must do so with the method that is least intrusive. And what are the least power hence, discretionary in nature.
intrusive methods? According to the SC if you are talking about regulation of
drugs, then enforced strictly the laws governing or regulating drug use. Section 16, known as the general welfare clause, encapsulates the delegated
Mobilize police force, implement laws against prostitution. The solution to police power to local governments. Local government units exercise police
these problems according to the court is simply strict implementation of the power through their respective legislative bodies. Evidently, the Local
status quo and you don’t have to intrude further to the business of the hotels Government Code of 1991 is unequivocal that the municipal mayor has the
because this is of course peculiar, as what you have mentioned earlier, there power to issue licenses and permits and suspend or revoke the same for any
are those who avail short time accommodation for wholesome purposes. violation of the conditions upon which said licenses or permits had been
There are those who would avail of the short time operations for wholesome issued, pursuant to law or ordinance. x x x
purposes, and they themselves will suffer from this ordinance. It is not xxxx
reasonable anymore to compel them to pay the full price of the daily use if Section 444(b)(3)(iv) of the Local Government Code of 1991, whereby the
they would only stay there for 2 hours or 3 hours because there are changes power of the respondent mayor to issue license and permits is circumscribed,
in their flight schedule. is a manifestation of the delegated police power of a municipal corporation.
Necessarily, the exercise thereof cannot be deemed ministerial. As to the
Actually the problems in the bar exams dealing with police power are very easy question of whether the power is validly exercised, the matter is within the
to solve. Makita man nimo, importante lng you have a good explanation why province of a writ of certiorari, but certainly, not of mandamus. (Citations
you would say yes or of you would say no to a given problem. omitted)
Cases: Fernando vs. St. Scholastica’s College (March 12, 2013) – The subject of this
Balacuit vs. CFI of Agusan, 163 SCRA 682 – Facts: This case involves the case is an ordinance by the City of Marikina which regulates the construction
constitutionality of an ordinance in the City of Butuan which penalizes movie of fences and walls in the [then] municipality. Pursuant to the ordinance, the
houses which do not charge at one half of the price admission tickets for city of Marikina ordered the respondents (St. Scholastica’s College, et al) to
children ages between 7 and 12. Held: Nonetheless, as to the question of the demolish and replace the fence of their Marikina property to make it 80%
subject ordinance being a valid exercise of police power, the same must be see-thru, and, at the same time, to move it back about six (6) meters to
resolved in the negative. While it is true that a business may be regulated, it provide parking space for vehicles to park.
is equally true that such regulation must be within the bounds of reason, that Held: "Police power is the plenary power vested in the legislature to make
is, the regulatory ordinance must be reasonable, and its provisions cannot be statutes and ordinances to promote the health, morals, peace, education,
oppressive amounting to an arbitrary interference with the business or calling good order or safety and general welfare of the people." 21 The State, through
subject of regulation. A lawful business or calling may not, under the guise of the legislature, has delegated the exercise of police power to local
regulation, be unreasonably interfered with even by the exercise of police government units, as agencies of the State. This delegation of police power is
power. 33 A police measure for the regulation of the conduct, control and embodied in Section 1622 of the Local Government Code of 1991 (R.A. No.
operation of a business should not encroach upon the legitimate and lawful 7160), known as the General Welfare Clause,23 which has two branches. "The
exercise by the citizens of their property rights. 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 Compelling the respondents to construct their fence in accordance with the
proper, authorizes the municipality to enact ordinances as may be necessary assailed ordinance is, thus, a clear encroachment on their right to property,
and proper for the health and safety, prosperity, morals, peace, good order, which necessarily includes their right to decide how best to protect their
comfort, and convenience of the municipality and its inhabitants, and for the property.
protection of their property."24
It also appears that requiring the exposure of their property via a see-thru
To successfully invoke the exercise of police power as the rationale for the fence is violative of their right to privacy, considering that the residence of
enactment of an ordinance and to free it from the imputation of the Benedictine nuns is also located within the property. The right to privacy
constitutional infirmity, two tests have been used by the Court – the rational has long been considered a fundamental right guaranteed by the
relationship test and the strict scrutiny test: Constitution that must be protected from intrusion or constraint. The right to
privacy is essentially the right to be let alone,37 as governmental powers
We ourselves have often applied the rational basis test mainly in analysis of should stop short of certain intrusions into the personal life of its citizens. 38 It
equal protection challenges. Using the rational basis examination, laws or is inherent in the concept of liberty, enshrined in the Bill of Rights (Article III)
ordinances are upheld if they rationally further a legitimate governmental in Sections 1, 2, 3(1), 6, 8, and 17, Article III of the 1987 Constitution. 39
interest. Under intermediate review, governmental interest is extensively
examined and the availability of less restrictive measures is considered. AC Enterprises vs. Frabelle Properties (November 2, 2006) - Neither does the
Applying strict scrutiny, the focus is on the presence of compelling, rather MMDA have the power to declare a thing a nuisance. Only courts of law have
than substantial, governmental interest and on the absence of less restrictive the power to determine whether a thing is a nuisance. In AC Enterprises v.
means for achieving that interest.27 Frabelle Properties Corp.,[30] we held:
We agree with petitioner's contention that, under Section 447(a)(3)(i) of
Even without going to a discussion of the strict scrutiny test, Ordinance No. R.A. No. 7160, otherwise known as the Local Government Code,
192, series of 1994 must be struck down for not being reasonably necessary the Sangguniang Panglungsod is empowered to enact ordinances
to accomplish the City’s purpose. More importantly, it is oppressive of private declaring, preventing or abating noise and other forms of nuisance. It
rights. bears stressing, however, that the Sangguniang Bayan cannot declare a
particular thing as a nuisance per se and order its condemnation. It does
Under the rational relationship test, an ordinance must pass the following not have the power to find, as a fact, that a particular thing is a
requisites as discussed in Social Justice Society (SJS) v. Atienza, Jr.: 28 nuisance when such thing is not a nuisance per se; nor can it
As with the State, local governments may be considered as having properly authorize the extrajudicial condemnation and destruction of that as
exercised their police power only if the following requisites are met: (1) the a nuisance which in its nature, situation or use is not such. Those
interests of the public generally, as distinguished from those of a particular things must be determined and resolved in the ordinary courts of
class, require its exercise and (2) the means employed are reasonably law. If a thing be in fact, a nuisance due to the manner of its operation,
necessary for the accomplishment of the purpose and not unduly oppressive that question cannot be determined by a mere resolution of
upon individuals. In short, there must be a concurrence of a lawful subject the Sangguniang Bayan. (Emphasis supplied.)
and lawful method.29 (cited in Justice Gancayco vs. City Govt of QC, 2011)
For Section 3.1 to pass the rational relationship test, the petitioners must
show the reasonable relation between the purpose of the police power C. Local Eminent Domain
measure and the means employed for its accomplishment, for even under the 1. Scope and Limitations
guise of protecting the public interest, personal rights and those pertaining - SECTION 9. Private property shall not be taken for public use
to private property will not be permitted to be arbitrarily invaded.36 without just compensation. (Art III, CONST)
- SECTION 19. Eminent Domain. — A local government unit 4. A valid and definite offer has been previously made to the owner of
may, through its chief executive and acting pursuant to an the property sought to be expropriated, but said offer was not
ordinance, exercise the power of eminent domain for public accepted
use, or purpose or welfare for the benefit of the poor and the
landless, upon payment of just compensation, pursuant to In the present case, the City of Mandaluyong seeks to exercise the power of
the provisions of the Constitution and pertinent eminent domain over petitioners' property by means of a resolution, in
laws: Provided, however, That the power of eminent domain contravention of the first requisite. The law in this case is clear and free from
may not be exercised unless a valid and definite offer has ambiguity. Section 19 of the Code requires an ordinance, not a resolution, for
been previously made to the owner, and such offer was not the exercise of the power of eminent domain.
accepted: Provided, further, That the local government unit
may immediately take possession of the property upon the  Local Eminent Domain; general requisites
filing of the expropriation proceedings and upon making a
deposit with the proper court of at least fifteen percent Let’s go to Local Eminent Domain. You have studied Eminent Domain in
(15%) of the fair market value of the property based on the Consti 1 I’m sure you remembered that there are what we call General
current tax declaration of the property to be Requirements. And these are the general requirements, as a reminder. In any
expropriated: Provided, finally, That, the amount to be paid case there should be
for the expropriated property shall be determined by the a. NECESSITY FOR THE EXPROPRIATION.
proper court, based on the fair market value at the time of b. INVOLVE PRIVATE PROPERTY, of course there is also no
the taking of the property. (LGC of 1991) prohibition to subject a public property to an expropriation
Case: and it does not make sense. There is also no prohibition for a
Heirs of Alberto Suguitan vs. City of Mandaluyong (2000) private property which has already been devoted for public
Despite the existence of this legislative grant in favor of local governments, it use to be a subject of expropriation proceedings.
is still the duty of the courts to determine whether the power of eminent c. TAKING of course as what you have already learned in the
domain is being exercised in accordance with the delegating law. 23 In fact, 1st year and Judge Singco’s discussion. Does not prohibit
the courts have adopted a more censorious attitude in resolving questions literal taking for it requires or it simply means deprivation of
involving the proper exercise of this delegated power by local bodies, as the enjoyment of the property. So in any case of deprivation
compared to instances when it is directly exercised by the national of the enjoyment of the property and not just possession or
legislature.24 not just referring to the literal meaning of deprivation of
possession but the deprivation of the enjoyment of the
The courts have the obligation to determine whether the following requisites property. That is covered by eminent Domain.
have been complied with by the local government unit concerned: d. Of course PUBLIC USE is an indispensable and constitutional
1. An ordinance is enacted by the local legislative council authorizing requirement the same is true with
the local chief executive, in behalf of the local government unit, to e. JUST COMPENSATION, and
exercise the power of eminent domain or pursue expropriation f. DUE PROCESS.
proceedings over a particular private property.
2. The power of eminent domain is exercised for public use, purpose or
welfare, or for the benefit of the poor and the landless.  Difference between expropriation by the National Government
3. There is payment of just compensation, as required under Section 9, and expropriation by the LGU
Article III of the Constitution, and other pertinent laws.

There should however be a special mention of the first requirement on
NECESSITY. A distinction is to be made between expropriation done by the  Specific Requirements: Expropriation by LGUs
National Government and expropriation done by a local government unit.
While it only says that there should be necessity for the expropriation, who If those are the general requirements then there are the specific
determines or who can determine the existence of this necessity? As a requirements, if we are to talk about LGU’s. Interpreting and expounding
general rule, if expropriation is done pursuant to a law and the law further section 19 of the LGC. We go to Sec 19 for Eminent Domain. Did you
determines the policy of the State, that law would constitute as the basis to read the case of Jesus is Lord Christian Foundation School vs City of Pasig
say that there is a need to expropriate, then under present jurisprudence the (2005):
court will hesitate to disturb the findings of Congress. Perhaps it would a. Ordinance authorizing the local chief executive to
consider it as a political question. It is the Congress who determines if there is expropriate over a particular property. There should be an
necessity for the Expropriation. But there is always a reservation because this ordinance enacted by the Local legislative council
is discretionary, you have of course the expanded certiorari jurisdiction of the authorizing either the mayor or the governor in behalf of the
Court. LGU to exercise the power of Eminent Domain over a
particular private property. Focus your attention to the
On the other hand, if it is an expropriation by the LGU it is settled that the following component of the requirement.
Court has the power to determine genuine necessity of the expropriation. There
is no more a basis by which you can prevent the courts from determining So if it is in a mere resolution, as already declared by the SC in the
genuine necessity for expropriation. It is already settled. But the courts (Municipality of Paranaque vs VM Realty) a mere resolution will not
cannot do that in case of the national government. The National government suffice. The expropriation is defective. In fact, upon filing of the complaint it
can still invoke political question doctrine. will be dismissed for lack of cause of action. It should be through an
ordinance. Why do we need to emphasize this, because just like what
That is why in Dela Paz Masikip vs. City of Pasig Jan. 23, 2006, the City of happened in the case of VM realty, because the councilors were old, what
Pasig wanted to expropriate the property of De la Paz Masikip family for the they were used to is the old Local Government law. Under the Old Local
purpose of promoting sports or sports development and recreation. That was government Law, expropriation could be done by mere resolution. Before
the objective of the expropriation. But the expropriation was questioned on 1991, what they were used to are all through resolution. But in 1991, it was
the ground that there was no need to expropriate the private property changed to Ordinance. It was declared by the SC invalid. What would justify
because few meters from the private property, subject matter of the the setting aside or nullification of the proceeding if it is just through a
expropriation, there already exist recreational facilities which have been resolution? In that case of VM realty the SC had the occasion to rule or to
opened to the public and availed of by the public. The SC said that where the distinguish an ordinance from a mere resolution.
taking is done for the benefit in the hopes of the community who seeks to
have its own sports and recreational facility, notwithstanding that there is a Difference between ordinance and resolution
recreational facility a short distance away, such taking cannot be considered If you are to distinguish an ordinance from a resolution, how do you
for public use. And then here’s the declaration by the Court, the Court distinguish and how many? Can you give differences? If the answer is yes,
defines what constitutes genuine necessity for public use. Moreover how many?
according to the court, “the ascertainment of the necessity must precede or at - CHARACTER OF PERMANENCE. The Ordinance of Course has
least contemporaneous or must accompany and not follow, the taking of the the force and effect of a law, it is permanent in nature unless
land.” Because during trial it was found out they will only develop the it is repealed or modified, amended or set aside. While a
property after expropriation. For future use, according to the Court that can’t resolution is of temporary character. Usually it addresses a
be done; genuine necessity must be present before or at least during the specific and temporary concern. Like when you authorize a
expropriation. You cannot say that it will be treated in the future. mayor via resolution to enter into a contract. That is for
specific and temporary concern for a specific contract. If you the justification why LGU’s can expropriate for low cost
pass a resolution congratulating Manny Pacquiao ta but wla housing projects. Only few families will be benefited and
man fight si Manny. Councilor Labella is contemplating of will qualify. Practically it is not something that is available
passing a resolution condemning the tirades of Mayweather to anyone but only to the beneficiaries. Will you consider
Jr. Against Manny Paquiao.) that is merely temporary. that not for public use? Yes if you are going to use the
traditional concept of not for public use. But i think you
- An ordinance will always require 3 readings. Very much like have learned already that there is now a modern concept
the bills in Congress, they will not become laws unless and of public use.
until they passed 3 readings whether on separate days or
not. A resolution would only need 2 readings. 1st reading is c. Payment of just compensation. The third requirement, as
the announcement of the resolution and referred to a provided in sec. 9 article 3 of the constitution
committee. On the 2nd reading it would be alright to
approve it in the plenary right away. But if it is an Ordinance d. Valid and definite offer that has been previously made to
there should be a 3rd reading. the owner which was not accepted. This one, you don’t
easily see because it is not found in the general requirement
These are procedural and legal requirements. And so according to the court for exercise of Eminent Domain. This is peculiar to LGU’s,
since they are not the same in nature, there are legal and procedural before expropriation can be legally initiated the code
requirements therefore it is important. That one should be strictly distinguish requires that there should be a valid and definite offer that
from the other. The Code requires an ordinance and a resolution can’t be a has been previously made to the owner and the offer was
substitute. not accepted. Twin requirements of valid and definite offer: (i)
previously made to the owner and (ii) such was not accepted.
Over a particular private property.
Of course, the ordinance will authorize the local chief executive to Let’s take this one by one, VALID AND DEFINITE OFFER. What will make the
expropriate a private property. The ordinance must therefore specify the offer valid and definite? You have studied obligations and contracts so you
private property which will be the subject of the expropriation. They can’t just know of course the requirements of making a definite offer. You can’t just say
pass an ordinance in general terms where the Local chief executive is hereby
authorize to expropriate whatever private land it would deemed proper for Dear heirs of Juan Dela Cruz,
expropriation. It should be over a particular private property. That is again a For and in behalf of the City of Cebu we are offering to buy your
legal requirement. property, described as Lot no. 510 consisting of 1000 sq. M. Should
you accept this offer to buy, please don’t hesitate to contact the
b. Public use, purpose, welfare or for the benefit of the undersigned.
poor and the landless. That is an obvious requirement. In
fact that is also a general requirement, Public Use. And you What’s wrong with that offer? No price. Of course it must be specified,
know of course the idea of public use it had already been therefore as to the object, and the consideration. There are many LGU’s who
expanded. It’s not anymore the traditional concept of Public make a mistake on this part of the same tenor without putting the price.
use where anyone can avail of the expropriation, like a park PREVIOUSLY MADE TO THE OWNER, question what if, the property had been
or a road, which are the traditional concept of public use. the subject of a legal battle. And precisely ownership has not been finally
determined, in one SC ruling the SC has said that it is enough that the LGU
Now public use has a modern concept. It is now similar makes an offer to the registered owner. Even if subsequently the court
to the concept of Police Power, general Welfare. This is
declares that another owns legitimately the property. It is enough that the
offer was made to the registered owner as found in its certificate of title. The governing law that deals with the subject of expropriation for purposes
of urban land reform and housing is Republic Act No. 7279 (Urban
And of course without need of further discussion it must NOT HAVE BEEN Development and Housing Act of 1992) and Sections 9 and 10 of which
ACCEPTED. What if the owner did not respond, how will we know that it was specifically provide as follows:
not accepted? You have to be creative with your offer. You will say therefore Sec. 9. Priorities in the acquisition of Land. — Lands for socialized
as an example that “we appreciate that you will respond to this letter within a housing shall be acquired in the following order:
period of 30 days. Your failure to do so will constrained the City of Cebu to
consider that our offer had been rejected. After the lapse of such period it is xxxxx
sufficient. That is how it is being done. You really don’t need to wait for a
letter which expressly rejects the offer. (f) Privately-owned lands.
Case: Sec. 10. Modes of Land Acquisition. — The modes of acquiring lands
Filstream Int’l vs. CA, G.R. No. 125218 January 23, 1998 for purposes of this Act shall include, among others, community
Facts: mortgage, land swapping, land assembly or consolidation, land
Petitioner Filstream anchors its claim by virtue of its ownership over the banking, donation to the Government, joint-venture agreement,
properties and the existence of a final and executory judgment against negotiated purchase, and expropriation. Provided, however, That
private respondents ordering the latter's ejectment from the premises (Civil expropriation shall be resorted to only when other modes of
Case No. 140817-CV). Private respondents' claim on the other hand hinges acquisition have been exhausted. x x x x x
on an alleged supervening event which has rendered the enforcement of
petitioner's rights moot, that is, the expropriation proceedings (Civil Case No. Very clear from the abovequoted provisions are the limitations with respect
94-70560) undertaken by the City of Manila over the disputed premises for to the order of priority in acquiring private lands and in resorting to
the benefit of herein private respondents. For its part, the City of Manila is expropriation proceedings as a means to acquire the same. Private lands rank
merely exercising its power of eminent domain within its jurisdiction by last in the order of priority for purposes of socialized housing. In the same
expropriating petitioner's properties for public use. vein, expropriation proceedings are to be resorted to only when the other
modes of acquisition have been exhausted. Compliance with these conditions
Held: must be deemed mandatory because these are the only safeguards in
We take judicial notice of the fact that urban land reform has become a securing the right of owners of private property to due process when their
paramount task in view of the acute shortage of decent housing in urban property is expropriated for public use.
areas particularly in Metro Manila. Nevertheless, despite the existence of a
serious dilemma, local government units are not given an unbridled authority *Transcript*
when exercising their power of eminent domain in pursuit of solutions to This case of Filstream Int’l vs. CA (1998) is very important. Came out in the
these problems. bar exams last year 2009. There was simply a problem involving low cost
housing project. Basta low cost housing project, you go directly to the
Thus, the exercise by local government units of the power of eminent domain Filstream case. Because aside from the 4 requirements found in sec 19 of the
is not without limitations. Even Section 19 of the 1991 Local Government LGC as interpreted in the Philippine Christian School Case.
Code is very explicit that it must comply with the provisions of the
Constitution and pertinent laws, to wit: Phil Stream added 2 more Requirements. Again this is peculiar only to
Sec. 19. Eminent Domain. x x x x “pursuant to the provisions of the Low Cost Housing Projects. Because a LGU can expropriate properties for
Constitution and pertinent laws: . . . (Emphasis supplied). other uses and not just for low cost housing projects. But in case, RA 7279
Urban Development and Housing Act of 1992, specifically sec 9 and sec 10
thereof requires that first, private lands should be last in the selection in Important Rules, Filstream case still, the LGU has the burden of proving that
the acquisition of properties for the purposes of low cost housing the foregoing requirements have been complied with and that all reasonable
projects. You go to sec 9 you would see there: idle lands of the government efforts have been exhausted. The burden of proof is with the LGU. Even if the
that had not been used, Abandoned lands, BLISS projects, the government complaint alleges those requirements, the allegation is not sufficient; the LGU
must first use or acquire other properties enumerated in section 9 before the must still be able to prove the allegations in court.
resort to acquisition of private properties. Private properties or private lands
should be last in the selection. Valid and definite offer to the owner as shown in the title of the latter. I’ve
already mentioned that. The implementing rules of a valid and definite offer
*There is a pending case in the SC, if im not mistaken, involving the must be complied with. Let’s take a look at very quickly the meaning of valid
property in V. Rama, owned by the Aznars that was expropriated by and definite offer as provided in art 35 of the IRR, offer to buy and contract
the City of Cebu many years ago. It reached the CA and the of sale. The offer to buy private property for public use shall be in writing
expropriation was declared illegal and irregular. Why? Because when and it shall specify the property, the reason and the price offered. It must
it was established that it was really for, as found in the complaint, identify the property (eg. The property known as Lot number and certificate of
that it was low cost housing projects, the City of Cebu failed to tile number. We intend to buy this property for low cost housing project in the
establish that it had complied with sec. 9 of RA 7279. amount of 200 per sq. m.)
Secondly, expropriation should only be resorted when other modes of If the owner accepts the offer then no problem, the sale will be executed. If
acquisition has been exhausted, such as Land Swapping (maoy g awayan the owner is willing to sell the property but at a price higher than the offer to
tawn allegedly between Mayor Mike and Gov Gwen). If the LGU can acquire them, then there is an additional requirement class; that says that the Local
the private land not by purchase but by land swapping, then it should resort Chief Executive shall call them to conference. This is a mandatory
to that method first before expropriating the property. requirement during the hearing there will be questions asked about this. (What
was the response of the private owner? It may be counter-offered priced
* What are the other modes of acquiring the property? Donation, higher. And can you recall if the mayor conducted a conference? No sir. Did
which is common on the provinces (have you heard about the modus you not receive any notice or letter inviting you to the conference? None sir.
operandi of Local government officials in the provinces? (Our lolo What about verbal invitation? None all sir.) For the purpose of reaching an
and lola na nahabilin in tawn walay kalinutan, duolon ug papirmahon agreement on the selling price, the conference shall be called. What’s the
dayon ug Deed of Donation. Human ig balik nimo didto, mahibong reason for this? The idea is, again expropriation should be resorted as last
nlng ka ngano dagahan mani laing tao mo agi na ngadtokilid sa resort all other means of acquiring the property without expropriating
among babae? Gi-donate naman gud na namo dodong. Mangutana should be acquired first by amicable or peaceful settlement of this issue.
ka if dunay bay gbayad? Of course wala kay donation.) but usually in Because expropriation sale, it is in derogation of private property. As much as
the low cost housing projects no one would donate in that big area possible it should not be expropriated by the State, only if it is so necessary.
so that is where land swapping is very common. The LGU’s have
many properties. It might find that it has a property it already owns Documents required in Contract of Sale on Expropriation
but it is not suitable for low cost housing project. It will be the land And then if there is already a contract of sale the implementing rules also
that will be land-swapped to the owner but if it is refused then we require the following documents:
can do nothing. My point is that all these must be stated in the 1. Resolution of the Sangguniang authorizing the chief executive to
complaint, that will be filed in court because all this constitutes an enter into a contract of sale if they have agreed in this
action for the complaint of expropriation. Failure to do that would 2. The ordinance appropriating the amount
make the complaint and the cause of action defective.
3. And certification of the local treasurer as to the availability of funds. ginikanan na mao ang gikiha ug defendants, expropriation proceedings. Ang
This is what i have mentioned about the ordinance, the local mga anak walay kalibutan. Nya daghan man lagi connection sa courts, RD
government code specifically requires ordinance. and will soon discover properties that has been expropriated before and
remained unpaid by the government. Mao duolon nila ang mga heirs,
Res judicata does not apply in expropriation. If the LGU filed a complaint especially kato mga ingnorante kaayo. Ila ignun, kahibaw bah mo nga kani na
for expropriation and it have been resolved and it went up all the way to the property, especially kato wla na tagad na property. Unya wla g occupy sa
SC that the expropriation was illegal. It does not mean that the LGU is government. If the occupy man gani partly, what do they do is usually like
perpetually barred from expropriating the same private property. Res judicata this. They will represent the heirs and recover the property from someone or
there which not necessarily apply. the government. Mao mo ingon dayon ang heirs, ah dugay naman na gi-
embargo atty, makuha pa kaha nato na. Of course they will not say about
Reckoning point in Just Compensation Rep. Vs Lim. They will say that they will get it and they will insure that they
City of Cebu vs. Dedamo (2002), in general, if you are to look at sec 4 of rule will get their property back nya mangayo dayon ug percento. Wla bya mi
67 in relation to jurisprudence involving expropriation on the issue of the kwarta ikabayad atty. Ok lng contingent, 60-40) the owner will be restored to
reckoning point in determining the just compensation. his possession. Five years from the finality of judgment in an expropriation
proceeding.
Diba you learned that the just compensation of the property shall be
determined at the time of either the taking or the filing of the complaint, Immediate Possession by the Government
whichever came first. Mao man toh ang barato kay appreciating man ang Francia vs. Meycauayan (2008), when the municipality of Mekawayan, wanted
value sa property. It is expected of a law to make it more affordable on the to immediately possess the property, the owner of the private property
part of the LGU. That is the general rule. But that rule is not applicable if it is objected to the immediate possession because, according to the owner, the
the LGU expropriating because the code in Section 19 is specific that the issue of public use and purpose should be settled first. The private owner can
just compensation should be determined at the TIME OF TAKING. Again claim that there was no genuine necessity of the expropriation and that it
that rule that you have learned that the just compensation should be based was not for public purpose.
on the value of the property at the time of either the taking or the filing of
the complaint whichever came first does not apply if it is expropriation done The court said, we will do that after because there is no requirement in the
by the LGU. The reason is because the code is specific; it says that at the time code that says that the issue of the public use must be settled first before the
of taking. Will not the Rules of Court prevail over the code? SC said the rule LGU can obtain immediate possession of the property. There are now 2
of the SC cannot prevail over RA 7160 because it is substantive law. requirements according to the court, (1) the filing of the complaint
sufficient in form and substance and (2) the deposit in the court of at least 15%
5-year Reovery Rule of the FMV base on the current tax declaration. If those requirements are
The rule of course forget Republic vs. Lim (2005), this is indeed a complied with, then the LGU can have immediate possession of the property.
revolutionary pronouncement of a court. It never happened before 2005 that
the SC castigated in its pronouncement the practice of the government both In case of the national government expropriating you learned that it is 100%
national and local, of delaying the payment of just compensation. The land of the (fair market) value if the government wants to immediately take
owner is entitled to recover possession of the property expropriated if possession of the property. If national govt – 100% deposit. If it’s LGU it’s
the government fails to fully pay the just compensation to the owner for only 15% and it’s not the actual fair market value, just the fair market value
the period of 5 years from the finality of the judgment in an appearing at the current tax declaration. Those are the 2 requirements if the
expropriation proceeding. * (Mo na daghan au ron g himong hocus pocus LGU wants to immediately possess the property subject to expropriation.
ron na gi himong negosyo sa mga lawyers and unscrupulous businessmen.
Ngano man? Gamay ra ang nakahibaw sa Rep. Vs Lim. Pagkamatay sa Cases:
Anunciacion vda. de Ouano vs. Republic, GR No. 1687702, February 9, 2011 - MCIAA vs. Tudtud, and Lozada Sr., vs. MCIAA, which involve the same factual
The issue in these two petitions is about the right of the former owners of milieu.)
lots acquired for the expansion of the Lahug Airport in Cebu City to
repurchase or secure reconveyance of their respective properties. MCIAA Sps. Yusay vs. CA, GR 156684, April 6, 2011 – Facts: Petitioners owns a 1,044
contends that when the subject properties were expropriated, there was no sq m parcel of land in Mandaluyong City. In 1997, the SP of Mandaluyong
condition for reconveyance to the owners, as held in the decision of the adopted a resolution authorizing the mayor to take the necessary legal steps
Court of First Instance, should the operation of the Lahug airport be to expropriate the property of petitioners “the purpose of developing it for
abandoned. According to MCIAA, there was a difference in the contracts low cost housing for the less privileged but deserving city inhabitants.” The
between those who entered a negotiated sale/purchase and those properties petitioners assailed the resolution.
who were subjected to expropriation. The petitioners countered thru oral
testimony (parol evidence, introduction of parol evidence is also an issue in Held: The challenge is premature. Republic Act No. 7160 (The Local
this case) that during the phase of the negotiation, the negotiating team Government Code) required the City to pass an ordinance, not adopt a
promised as “sweetener” the reconveyance of the properties should the resolution, for the purpose of initiating an expropriation proceeding. A
airport cease operation. resolution like Resolution No. 552 that merely expresses the sentiment of the
Sangguniang Panglungsod is not sufficient for the purpose of initiating an
Held: Obviously, Fery was not decided pursuant to our now sacredly held expropriation proceeding. Indeed, in Municipality of Parañaque v. V.M. Realty
constitutional right that private property shall not be taken for public use Corporation,12 a case in which the Municipality of Parañaque based its
without just compensation. It is well settled that the taking of private complaint for expropriation on a resolution, not an ordinance, the Court
property by the Governments power of eminent domain is subject to two ruled so:
mandatory requirements: (1) that it is for a particular public purpose; and (2) The power of eminent domain is lodged in the legislative branch of
that just compensation be paid to the property owner. These requirements government, which may delegate the exercise thereof to LGUs, other
partake of the nature of implied conditions that should be complied with to public entities and public utilities. An LGU may therefore exercise the
enable the condemnor to keep the property expropriated. power to expropriate private property only when authorized by Congress
and subject to the latter’s control and restraints, imposed "through the
The notion, therefore, that the government, via expropriation proceedings, law conferring the power or in other legislations." In this case, Section 19
acquires unrestricted ownership over or a fee simple title to the covered land, of RA 7160, which delegates to LGUs the power of eminent domain, also
is no longer tenable. We suggested as much in Heirs of Moreno and lays down the parameters for its exercise. It provides as follows: xxx.
inTudtud and more recently in Lozada, Sr. Expropriated lands should be Thus, the following essential requisites must concur before an LGU can
differentiated from a piece of land, ownership of which was absolutely exercise the power of eminent domain:
transferred by way of an unconditional purchase and sale contract freely 1. An ordinance is enacted by the local legislative council authorizing
entered by two parties, one without obligation to buy and the other without the local chief executive, in behalf of the LGU, to exercise the power
the duty to sell. In that case, the fee simple concept really comes into play. of eminent domain or pursue expropriation proceedings over a
There is really no occasion to apply the "fee simple concept" if the transfer is particular private property.
conditional. The taking of a private land in expropriation proceedings is 2. The power of eminent domain is exercised for public use, purpose or
always conditioned on its continued devotion to its public purpose. As a welfare, or for the benefit of the poor and the landless.
necessary corollary, once the purpose is terminated or peremptorily 3. There is payment of just compensation, as required under Section 9
abandoned, then the former owner, if he so desires, may seek its Article III of the Constitution and other pertinent laws.
reversion, subject of course to the return, at the very least, of the just 4. A valid and definite offer has been previously made to the owner of
compensation received. (Note the case cited, MCIAA vs. Heirs of Moreno, the property sought to be expropriated, but said offer was not
accepted.
Held: Sec. 20(e) of RA 7160 is unequivocal that nothing in said section shall
D. Basic Services and Facilities be construed "as repealing, amending or modifying in any manner the
1. Devolution, defined provisions of [RA] 6657." As such, Sec. 50 of RA 6657 on quasi-judicial powers
of the DAR has not been repealed by RA 7160. The DARAB retains jurisdiction
Devolution, which is defined in Sec. 17, §4(e) of the Code, it is an act by over disputes arising from agrarian reform matters even though the
which the National Government confers power and authority, upon various landowner or respondent interposes the defense of reclassification of the
local government units to perform specific functions and responsibilities. That subject lot from agricultural to non-agricultural use. On the issue of whether
is the meaning of DEVOLUTION. That is specific process in order to there has been a valid reclassification of the subject lot to industrial land, we
implement the system of decentralization. In the same section, there is a rule that respondents failed to adduce substantial evidence to buttress their
description of how it is to be done, at least it says it shall include the transfer assertion that all the conditions and requirements set by RA 7160 and MC 54
to local government units of the records, equipments, other assets, personnel have been satisfied. Landowners must understand that while RA 7160, the
of national agencies, offices and corresponding powers, functions and Local Government Code, granted local government units the power to
responsibilities. reclassify agricultural land, the stringent requirements set forth in Sec. 20 of
said Code must be strictly complied with. Such adherence to the legal
2. Conditions for devolution prescriptions is found wanting in the case at bar.
Case:
Pimentel vs. Executive Secretary (2012) – While it is through a system of Ayala Land, Inc. vs. Castillo, GR 178110, June 15, 2011 -
decentralization that the State shall promote a more responsive and
accountable local government structure, the concept of local autonomy does F. Closure and Opening of Roads
not imply the conversion of local government units into "mini-states."18 We
explained that, with local autonomy, the Constitution did nothing more than Closure and Opening of Roads
"to break up the monopoly of the national government over the affairs of the We might as well skip the reclassification of agricultural lands, never been
local government" and, thus, did not intend to sever "the relation of asked in the Bar. It is more relevant in agrarian law. Let’s go to closure and
partnership and interdependence between the central administration and opening of roads. The closure of the road may be temporary or permanent.
local government units."19 Indeed, a complete relinquishment of central
government powers on the matter of providing basic facilities and services If it is temporary it can be done in 2 ways: either by ordinance or mere
cannot be implied as the Local Government Code itself weighs against it. written order of the local chief executive. But one is applicable only to certain
conditions and the other applicable only to certain different conditions. And
one way of temporarily closing a road may apply to a local road or national
road and one may apply only to a local road. If the closure is temporary and
E. Reclassification of Lands it is to address a non-urgent concern it can be done only through an
- Section 20, LGC ordinance by a majority vote. But that is only applicable to a local road.
Case: But for urgent closure such as, fiesta celebration, public works and similar
Nicolas Laynesa vs. Uy, (February 29, 2008) - The pivotal issue in this case is events it can be done by written order of the local Chief executive. But it is
whether the reclassification of a lot by a municipal ordinance, without the required that the written order specify the period of the closure. This is
Department of Agrarian Reform's (DAR's) approval, suffices to oust the applicable to both local and national road. But of course the rule is many
jurisdiction of the DARAB over a petition for legal redemption filed by the times not followed.
tenants.
But if closure, however, is permanent which is seldom done because we can’t be said that it has violated a right so Damnum Absque Injuria. There
always need roads we even have to widen our roads, it can now only be done may be damaged but there is no injury involved.
by ordinance and the voting requirement is 2/3 of all the members and not
just the majority.  Closure and opening of roads is discretionary, mandamus does not lie
In Cebu Oxyen Acetylene vs. Berciles, 66 SCRA 481, you can’t file a case in
And then you add the following additional conditions: there should be a court for Mandamus to open a road or close a road. Injunction if you want
provision for adequate substitute for the facility. Provision for the but not mandamus, it presupposes that the authority is ministerial and that it
maintenance of public safety is an obvious requirement. If you are closing a can totally do that. So it is discretionary upon the LGU.
freedom park and not a road, then there must be a provision for relocation for
a new site. There will however be a freedom park, if that is the case because
the moment you close a freedom park there must be a relocation or new site PART VI: CORPORATE POWERS OF LOCAL GOVERNMENTS
for the freedom park. You don’t see however in the code the requirements
mentioned in Macasiano, because it was decided by the SC before the LGC of SECTION 22.Corporate Powers. — (a) Every local government unit, as a
1991. It was expected though that it should have been included in the corporation, shall have the following powers:
provision because these are necessary conditions: 1. Compliance with due (1)To have continuous succession in its corporate name;
process 2. The property is no longer intended or necessary for public use. To (2)To sue and be sued;
my mind these are requirements that should be complied with by LGU. That (3)To have and use a corporate seal;
is found in the Macasiano vs. Diokno, 212 SCRA 464 (old local government (4)To acquire and convey real or personal property;
code). Now what happens if the road is permanently withdrawn or a park (5)To enter into contracts; and cdt
permanently withdrawn or a plaza permanently withdrawn from public use? (6) To exercise such other powers as are granted to corporations,
They become patrimonial and what is of course the legal consequence? They subject to the limitations provided in this Code and other laws.
can now be subjects of contracts. (b) Local government units may continue using, modify, or change
their existing corporate seals: Provided, That newly established local
TEMPORARY: ORDINANCE (majority) - for non urgent closure (local road) government units or those without corporate seals may create their own
WRITTEN ORDER OF CHIEF EXEC- for urgent closure corporate seals which shall be registered with the Department of the Interior
(localand national road) and Local Government: Provided, further, That any change of corporate seal
shall also be registered as provided hereon.
(c) Unless otherwise provided in this Code, no contract may be
PERMANENT: ORDINANCE (2/3 OF ALL MEMBERS) + provide for adequate entered into by the local chief executive in behalf of the local government
substitute for the faciclity + provisions for the maintenance unit without prior authorization by the sanggunian concerned. A legible copy
of public safety + if freedom park provision for relocation/ of such contract shall be posted at a conspicuous place in the provincial
new site. capitol or the city, municipal or barangay hall.
(d) Local government units shall enjoy full autonomy in the exercise
 Closure of road is damnum absque injuria, no need for compensation of their proprietary functions and in the management of their economic
The Cabrera vs. Court of Appeals, 195 SCRA 314, you have learned in your enterprises, subject to the limitations provided in this Code and other
basic Political Law that the closure is by reason of local police power you applicable laws.
apply Damnum Absque Injuria, no compensation. Damage without injury -
there maybe damage but there is no injury because injury presupposes a *Transcript*
violation of right. And when the State through the LGU exercises a power it Corporate- signifies “distinct and separate personality” of the LGU.

Let’s go to corporate powers. These are also matters you should take note study that anyway when we reached liability of LGU’s when we reached illegal
and we can learn them by just looking at your notes without the power point dismissal cases.
presentation. Let’s go to sec. 22 that is the enumeration of the so called
corporate powers of the LGU. By the term corporate what can you imply? Another implication of the word corporate is a rule in your Local government
One is proprietary. Your basic knowledge in corporation law will also apply law the LGU acts pursuant to a governing body very much so like the
here. Since it is a corporate entity it has a distinct and separate personality. corporation where you have the Board, in many cases for major decisions,
This is relevant when for example the question is on liability. So the liability of the officer should be authorized by the board. In corporation law it is done
the Local government official is not necessarily the liability of the LGU or vice through resolution, the same is done in the LGU but instead of the board
versa. So that in one case the complaint was file only against the city mayor you have the sangguniang acting as the governing body. When we study
in his official capacity but the LGU was not impleaded. The Plaintiff assumed later on the requirements for validity of contracts you will see there the
that the judgment would bind the LGU; the court said that the LGU can’t be indispensable requirement of prior authority of the sanggunian if the local
held liable. And the judgment can’t bind the LGU because is not impleaded in chief executive enters into a contract.
the case regardless of the fact that the mayor was sued in his official capacity.
Rightly so because as the term corporate would tell you, the LGU has a The other power of the LGU, is the power to sue and be sued. Typical
distinct and separate personality very much the same with the rule in questions here are, “may the LGU claim State immunity from suit because
corporation law where you sue the responsible officers of the corporation, under the constitution the state and its political subdivisions can’t be sued
you also have to sue the Corporation as a separate and distinct body. The without its consent. Well you know of course that since sec. 22 allows the
same matter that the properties of the LGU may not be used to answer the LGU to sue and be sued, then it can be taken as the express form of consent,
liabilities of the Local Government official and vice versa. Of course, the for consent to be sued maybe expressly allowed through the law or the
property of the local government official may not be made to answer for the charter. In fact it is both the LGC and the charter of the LGU, it has also
liability of the LGU. provided there the power to sue and be sued and not anymore a question,
where they can invoke the state immunity from suit. Note however that as you
So maybe you would ask the question: “Sir if the LGU has a separate have already learned in Consti 1 that suability is different from liability. The
personality, may it be held liable for the acts of local government officials?” LGU has consented to be sued; it is still incumbent upon the complainant or
certainly yes, but according to jurisprudence, there are only 2 instances the plaintiff to prove that the LGU should in a particular case be held liable.
where the local official make LGU’s liable for their actions, namely: Your basic knowledge of State Immunity from suit and distinction of suability
- 1. if the act of the local government official is by authority of and liability should be reviewed in this regard.
law
- 2. If it is done in conformity with the requirements of the law. Now as to the power to sue, question here maybe, “How may the local
So again, by “authority” means by the authority of the LGU concerned and; government sue?” the Code provides that it is through the local chief
second, it is done in conformity with the requirements of the law. Any act executive as authorized by the Sanggunian. This is very much similar to
which is outside of each standard, its consequences should not be imputed your private corporation but the difference is that in private corporation you
to the LGU. Precisely you have studied the Law on Public Officers, I think you may authorize other responsible officer but here the code specifies that it is
have remembered the rule that if the local government official acted with bad the local chief executive as authorize by the Sanggunian. You still have to
faith or malice and the act which was tainted with bad faith and malice results take note of the authority by the Sanggunian.
to damages of 3rd persons then only the local government official concern
shall be liable for such damages and not the LGU. Why? It is obvious that the Interestingly in the case of City Council of Cebu vs. Cuizon, 47 SCRA 325, it
law does not authorize the local government official to act in bad faith or was not the local chief executive who filed the case for and in behalf of the
with malice. So an act in bad faith or with malice is certainly outside the city. It was considered an exceptional case. It was a case filed by the councilors
authority of the LGU. So it should not therefore make the LGU liable. We will of the Sangunnian not by the local chief executive. You know why it was
allowed when our understanding is it is supposed to be by the Local Chief the province. The other basis why only these lawyers are allowed is that
executive? It is because the respondent there is the city Mayor, it has public funds should not be expended to hire private lawyers again for the
happened in the city of Cebu. Obviously, you can’t say that the city councilors reason that public funds should be for public use.
do not have standing to sue and besides it was taken by the SC as a
representative suit on the part of the City councilors as representatives of the But the Question here as mentioned earlier is that is there any instance where
City of Cebu. a private lawyer maybe hired by the LGU? In your outline you have section
4813 (i) of the LGC. It is an exact illustration of this possibility. In case of a
A contract was questioned there as entered by the City Mayor. More like a Municipality that has no Municipal attorney under the LGC, that municipality
stray opinion of the court, it was also more like a taxpayer’s suit. Now if I’m would have to be represented by the Provincial attorney. But suppose the
not mistaken, the taxpayer’s suit is not allowed in local suits. It is only allowed controversy involves a municipality that has no municipal attorney and a
in national suit. There is no such thing as taxpayer’s suit involving local component city for example, may the provincial attorney represent that
government cases because a taxpayer’s suit as you can fairly recall applies municipality against a component city which is under the province? No,
specifically to a fund and not just public fund appropriated by Congress. because there is conflict of interest as provided in (i). the basis is Conflict of
Interesting issue now is EO created now by Pres. Noy, his 1st executive order, Interest, the provincial attorney can’t represent a Municipality against a
creating the Truth Commission. I’m expecting a question in this regard in the Component City of the same province that is Sec 4813 (i) provides for such
upcoming bar exam. There are many areas like one, admin law, as to whether situation. In which case, the municipality may hire a private lawyer because
it was validly created because one can argue that agencies can be created the provincial attorney can’t represent such municipality. What happened if
only by legislative action and those who are under me in admin Law, you there was an illegal hiring of a private lawyer? Once it is questioned, what
know that there are exceptions. Anyway that is admin law we will talk about it would happen to the proceedings when the LGU was represented by a
on Saturday. private lawyer assuming that the hiring was not proper? In the same case of
Ramos vs CA the moment the private attorney and the municipal attorney
Counsel for LGU; exceptions assumes the tasked of representing an LGU it may adopt the proceedings
Next concern came out in the Bar exam, who may represent as counsel for conducted by the private lawyer. It will not be affected in other words. You
the LGU? May an LGU hire a private Lawyer? As a rule for LGU which have might in fact invoke your Doctrine of Operative Fact.
created the position of , in the case of city the City Attorney and in case of
Municipality, the Municipal Attorney. Then that is not a problem the LGU  Acquisition and conveyance of properties by LGUs
should be represented by either the City Attorney or the Municipal Attorney. The power of LGU to convey and acquire real estate property, just like the
What is the reason? private corporation it can acquire and dispose of properties. So I think you
have already learned that properties of LGU’s are held in either its
In Ramos vs. CA, 269 SCRA 34, only accountable public officers can governmental capacity or its proprietary capacity. And as I have mentioned
represent public entities as a rule. You can’t make private lawyers already this becomes relevant in different situations. At this time you just
accountable because they have not been appointed by Public officials. Your have to take note that a property can be held in either its governmental or
only recourse if they don’t do their job well is to disbar them or cancel the proprietary capacity.
contract for legal services. But can you file an administrative case against the
private lawyer? No, because he is not a government official. You can’t make Our concern however is how do we determine if the property is held in either
him accountable. So as a rule according to Ramos vs CA, only public officers governmental or proprietary capacity? As a rule, just because a property is
can represent public entities. So we are referring to the City Attorney or titled in the name of the LGU is not conclusive that it is held in its
Municipal Attorney if there is any because there are municipalities which proprietary capacity. In fact in one case it has been proved that even if the
can’t afford to make that position especially 6th class and poorer property was titled under the name of the LGU it was found out that it was
municipalities. The provincial attorney of course may represent in the case of donated by the National Government to the LGU for public purpose. SC ruled
that the fact that it was registered in the name of the LGU, will not be Conversely, if the property has been held by the LGU in its proprietary
conclusive the purpose in that case was considered by the court. And so since capacity and the national government through Congress converts the
it was granted by the national government unit to the LGU for public purpose property to other uses that will deprive the LGU of the beneficial use of the
then it was held by the LGU in trust for the National Government. There are property then you apply the rule on payment of Just Compensation. It is
many ways in determining whether a property has been held as proprietary because the word “person” in sec. 9 Art. 3 of the 1987 constitution also apply
or governmental capacity. to an LGU when acting in its proprietary capacity. The LGU can demand
payment of Just compensation as any private corporation in that regard.
Test in determining whether the property is held in a governmental or 2nd rule: Property for public use can’t be subject of a contract. (Villanueva and
proprietary capacity Dacanay cases) This is fundamental. Public property or property for public
- (1) Art. 424 of the NCC. I’m sure you are familiar with this use cannot be a subject of a contract because it is beyond the commerce of
there is an enumeration there which is clearly held in its man. Public interest prevails over private interest. What is the corollary
governmental capacity because obviously these are for principle? Anything that is found on a public property even if it is subject to a
governmental objectives. contract may be considered as nuisance. This will give the authority to the
- (2) Manner by which it was acquired; LGU to remove stalls of sidewalk vendors even without court order because
- (3) Purpose – one guideline there could be the source of anything that is found on a public property may be considered as nuisance
the funds in acquiring the property. Such that as a rule it per se. So very obvious you cannot enter into a contract and make the public
was acquired through the use of proprietary fund or private property the subject of a contract. So I’m really wondering and curious how
fund then it can be considered by the LGU as held in its the municipality of Minglanilla was able to allow Jollibee to operate inside its
proprietary capacity. So the sale proceeds of the SRP when plaza. It could be because t=it is not part of the public plaza or that there was
deposited in the bank may have the character of a fund held not contract entered thereto as it is simply by tolerance or by nuisance. In the
in its proprietary capacity. Of course when this is used to case of Macasiano vs. Diokno, mandamus is a remedy to compel the LGU to
acquire property then you can say that the real property remove objects which are considered nuisance per se. If you look at the
acquired through the use of this private fund can be powers of the Sanggunian and the powers of the local chief executive, they
considered as held in its proprietary capacity. So source of are not just powers but they are also duties. So they are mandated by law to
fund is also a test in determining whether a property is held implement existing laws. Just like the Social Justice case we will study later
in its governmental or proprietary capacity. on. Patrimonial property can be the subject of contract and maybe alienated.
Typical example is your SRP in the southern part of Cebu City.
Importance in distinguishing public from patrimonial property
Of course is there relevance in distinguishing public from patrimonial 3rd rule: Public property can’t be acquired by prescription against the State.
property? It came out many times in the bar exam not only in your local Estoppel does not lie against the State. The government cannot do wrong
government law but in civil as well as in property law. (pareahas rna cla tanan). I believe this is more relevant in property.
1st rule: Property for public use is under the control of Congress – So if 4th rule:, Public property can’t be subject to an attachment or to an execution.
Congress converts the property to other uses and as a consequence deprives (This is illustrated in the recent case of Municipality of Hagonoy vs. Hon.
the LGU holding the beneficial use of the property, May the LGU demand Dumdum, March 22, 2010) This is also true in public funds. Each time you
payment for just compensation? The obvious answer is no because that say property this could include public funds. Public funds cannot also be the
property is held in its governmental capacity. The idea is it is merely held by subject of garnishment. Public property can’t be the subject of attachment or
the LGU in trust for the State. And the State through the instrumentality of execution. You know of course the reason for this, (someone answers but
Congress converts it to other uses with or without the consent of the LGU.
could not be heard in the recordings). And of course public property can’t be exempt from real property tax but the exemption does not extend to the
burdened with voluntary easements. portions of the NFPC that were leased to taxable or private persons and
entities for their beneficial use. Additionally, the Navotas Fish Port Complex
Interesting case is of Chavez vs. Public Estates Authority (2003), reclaimed (NPFC) cannot be subject to public auction because it is a property of public
properties. What is the nature of a reclaimed property? Can LGU reclaimed dominion.
properties? Can submerged properties be reclaimed? Yes, RA 1899
authorized municipalities and chartered cities to reclaim foreshore lands only. Municipality of Hagonoy, Bulacan vs. Hon. Dumdum (2010) – The issue in this
Meaning a Municipality not a province and chartered cities can reclaim case is whether or not the properties of the municipality may be subject to a
foreshore lands under RA 1899. Submerged lands that are not foreshore writ of attachment and execution?
lands can’t be reclaimed by an LGU because the law is clear the authority
granted to chartered cities and municipalities, mentions only or applies only Be that as it may, a difference lies between suability and liability. Where the
to foreshore lands. And of course the city of Cebu is doing that, one time in suability of the state is conceded and by which liability is ascertained
the North and this time in the South. judicially, the State is at liberty to determine for itself whether to satisfy the
judgment or not. Execution may not issue upon such judgment, because
You know also of Art. 12 of the 1987 Constitution submerged lands are statutes waiving non-suability do not authorize the seizure of property to
properties of public dominion therefore it is unalienable. That it is obvious satisfy judgments recovered from the action. The property of the municipality
because it is outside the commerce of man and therefore can’t be disposed may not, in the event that respondent’s claim is validated, be subjected to
off as a rule. However, when the law authorizes the reclamation of the writs of execution and garnishment — unless, of course, there has been a
submerged lands and in the case of LGU’s for foreshore lands, these foreshore corresponding appropriation provided by law.
lands (since we are talking about local government law) after they have been
reclaimed they ceased to be considered as inalienable properties and are no Municipality of Paoay vs. Manaois, 86 Phil. 629 (1950) – There can be no
longer part of public domain. So they are no longer part of properties of question that properties for public use held by municipal corporation are not
public dominion because Congress has allowed the LGU’s to reclaim subject to levy and execution. The authorities are unanimous on this point.
foreshore lands. So after the reclamation there shall be a presidential Property however, which is patrimonial and which is held by municipality in
proclamation declaring the reclaimed properties as alienable and disposable, its proprietary capacity is treated by great weight of authority as the private
after which the Register of Deeds will issue the certificate of title because these asset of the town and may be levied upon and sold under an ordinary
properties are no longer part of public dominion having been declared by execution. The same rule applies to municipal funds derived from patrimonial
presidential proclamation being alienable and disposable and can now be properties, for instance, it has been held that shares of stocks held by
disposed of by the LGU. municipal corporations are subject to execution.
Should there be public bidding? No, such contention is wrong because the Municipality of Makati vs. Court of Appeals, 190 SCRA 206, (1990) – More
rule on public bidding applies if the property disposed of belongs to the LGU particularly, the properties of a municipality, whether real or personal, which
and held in its governmental capacity. Reclaimed lands after all the legal are necessary for public use cannot be attached and sold at execution sale to
requirements have been complied with the ultimate or final act being the satisfy a money judgment against the municipality. Municipal revenues
issuance of the title; the property belongs to the patrimonial property of the derived from taxes, licenses and market fees, and which are intended
LGU’s reclaiming the foreshore lands. primarily and exclusively for the purpose of financing the governmental
activities and functions of the municipality, are exempt from execution.
Cases:
Philippine Fisheries Development Authority (PFDA) vs. CA (2007) – As a rule,  Requisites of a valid local government contract
petitioner PFDA, being an instrumentality of the national government, is
Requisites for validity of contracts entered into by LGU’s were also asked in authorization by the Sanggunian apart from the certificate of
the bar exams. There are four important requisites in the validity of availability o funds. Non compliance with this would render the contract
contracts that are entered into by LGU’s that you should remember. void.
- 1. The LGUS must have the power to enter into that
particular contract. This is a civil law requirement; if you Why is this important? Because there are 2 important doctrines in contracts
don’t have the power then the contract you have entered entered into the LGU’s that you should study. You have the 1st one, the
into is ultra vires, since you don’t have the power. The DOCTRINE OF ESTOPPEL and 2nd the DOCTRINE OF IMPLIED MUNICIPAL
contract is unauthorized. Second, 22 c of the LGC when it LIABILITY.
enters into a contract there must be a prior authorization of
the Sanggunian. There is an interesting case involving our Doctrine of Estoppel not applicable if the contract is void; exception
very own province of Cebu, in your outline that is the case of If for example if a contract is entered into by the LGU under the LGC 1991,
Garcia vs Quisumbing (2008). without the prior authorization of the Sangunian, as mentioned earlier, it may
- 2ND, AS REQUIRED BY SEC 22 C OF THE CODE there must be render the contract void. It is very interesting and it should be made clear by
a prior authorization by the Sanggunian and a legible the SC because the traditional rule is the Doctrine of Estoppel will not apply
copy of the contract must be posted in conspicuous to void contracts which are basic in civil law. If you enter into a contract that
place in the provincial capital or the city or municipal or brgy is void, you can’t say that the contract should be binding on both parties as
hall as the case may be so prior authorization by the the doctrine of estoppel as both parties entered into the contract knowing
Sangunian and plus posting requirement. that it is void. You remember your civil law concept of Doctrine of Estoppel?
- 3RD if the contract involves expenditure of public funds, If the reason for making the contract void is by reason of public policy,
ADMIN CODE SEC 46 AND 47 require 2 indispensable doctrine of estoppels will not apply. The rule is doctrine of estoppels will not
requirements: apply to void contracts. This should be read therefore with your basic
o a. there should be actual appropriation and doctrine of estoppel in civil law because if the local government has already
o b. certificate of availability of funds issued by the received benefit from the contract then it may not later on say that it does
treasurer except of course in contract of supplies to not have the authority to enter into the contract. We shall not pay if on the
be carried in stock, each time a purchase is made part of the LGU it involves the payment in the form of money. But it has
this may not be necessarily covered by actual already received benefits.
appropriation or certificate of availability of funds. It
can be covered by the general appropriation. Have you read the case of Quezon City vs. Lexber, (2001)? That is the basic
- 4TH The contract must conform to the formal requirements idea if the LGU has already received benefits, it can’t later on say that it is not
of a written contract prescribed by law. Again this is a civil liable under the contract. Doctrine of Estoppel will be applied, however, the
law requirement. Non- compliance of no. 1 and no. 3 may doctrine of Estoppel will not apply if the contract is void.
result to a void contract with qualification that you don’t
apply the DEXTER DOCTRINE under this rule. Doctrine of Implied Municipal Liability
What is the DOCTRINE OF IMPLIED MUNICIPAL LIABILITY? Again this rule
The Lexber Doctrine was applied under the old local government code and apply to contracts or rather transactions without contracts, but could have
not under the 1991 LGC. That is important because under the 1983 LG law, been valid have one been entered into to the extent of the benefit received.
the rule on purchases or entry into contracts by the Mayor was not very strict So this is more or less similar to the Doctrine of Estoppel. So in this doctrine
compared to sec. 22 c of the LGC of 1991. In the past, in many cases there of implied municipal liability (i) there is a transaction that is not covered
has been no requirement of a prior authorization by the Sanggunian. But into by a contract, and (ii) had a contract been entered into then that
now under the 1991 LGC, the law is very clear there must be a prior should have been perfectly valid.
specific contracts, these specific contracts should have the prior authorization
If the LGU received benefits it may not later on reneged from its obligation to of the Sanggunian distinct and separate from the appropriation ordinance. It
pay just because there is not contract covering the transaction. If it has can, of course, and should be in a form of resolution. However, if the
already received benefits then it is liable to pay under this doctrine of implied appropriation ordinance is specific, it identifies the project road widening
municipal liability. That was also applied in Quezon City vs. Lexber case. from the municipality of ______ to ________ with cost, so you have actually the
Very briefly in Lexber, the former Mayor entered into a contract with Lexber contract in the appropriation ordinance so to speak and so the
to provide for infrastructure for a landfill. Of course Lexber spent appropriation ordinance can be considered as prior authorization. In this
considerable amount of money in millions. The contract was to continue after case the General Appropriations Ordinance of Cebu did not comply with the
the expiration of the Term of the former Mayor. When a new mayor was prior authorization requirement.
elected he questioned the transaction entered into by the former Mayor with
Lexber because according to the new mayor it was entered into without Cases:
authority of the Sangunnian. Had it been entered into under the LGC 1991 a Quezon City vs. Lexber (2001) – We must differentiate the provisions of the
decision may be different. In that case it does not require when it was old Local Government Code of 1983, B.P. Blg. 337, which was then in force,
entered into because it was entered before the LGC of 1991. At any rate the from that of the Local Government Code of 1991, R.A. No.7160, which now
LGU, the City of Quezon has already been benefitted by the presence of requires that the mayor's representation of the city in its business
Lexber, and so applying the Doctrine of Municipal Liability it should also transactions must be "upon authority of the sangguniang panlungsod or
honor the contract. pursuant to law or ordinance" (Section 455 [vi]). No such prior authority was
required under B.P. Blg. 337. This restriction, therefore, cannot be imposed on
Before we take a break this is the case of Quisumbing vs. Garcia (2008), it the city mayor then since the two contracts were entered into before R.A.
was not asked last year in the bar maybe it will be asked in your mock bar. No.7160 was even enacted.
The requirement in sec 22 c before the Local chief executive can enter into a
contract, the word is “prior authorization.” Does the term authorization Granting but without conceding that Mayor Brigido Simon, Jr. needs to
covers also the term an “appropriation ordinance?” Obviously, of course by secure prior authorization from the City Council for the enforceability of the
the term authorization in many instances, this is in the form of a resolution. contracts entered into in the name of the City government, which he failed to
What about an appropriation ordinance, which is of course an act of the do according to the appellant, We believe that such will not affect the
Sangunnian, would that constitute as the prior authorization? It depends. Gov enforceability of the contract because of the subsequent ratification made by
Gwen’s argument was why require a resolution when the transaction, the City government. Thus, when appellant City government, after the
infrastructure, had already been covered by an appropriation ordinance? construction by the appellee of the dumpsite structure in accordance with
Wouldn’t that be more than sufficient compliance of the requirement of prior the contract plans and specifications, started to dump garbage collected in
authorization? It depends because the Appropriation ordinance may mention the City and consequently paid the appellee for the services rendered, such
of the project in general terms (eg. It would just say road widening budget acts produce and constitute a ratification and approval of the negotiated
_____ million. Supposedly to be spent this year and you have to consider that contract and necessarily should imply its waiver of the right to assail the
there was no appropriation ordinance enacted so the proceeding, so the contract's enforceability.
immediately preceding ordinance was reenacted. It was considered an item in
the reenacted appropriation ordinance). Manantan vs. Municipality of Luna, La Union (82 Phil. 844) – As that part of
the notice issued by the municipal treasurer which calls for bids for a longer
If the appropriation ordinance mentions it only in general terms then it will period than one year but not more than four years is in accord with the real
not be considered as compliance to the prior authorization requirement. intent of Resolution No. 32, as that intention was subsequently confirmed in
Because if it is in general terms of road widening or bridge then that could Resolution No. 37 of the same municipal council, the said notice cannot be
still be covered by specific contracts. And because this will still be covered by deemed to be unauthorized and void, so that it is error to hold that he grant
of the fishing privilege to the petitioners was null and void for lack of a valid consequence of the said resolutions, Land Bank extended loans in favor of
notice of the public auction. the Municipality.
Quisumbing vs. Garcia, (GR No. 175527, December 8, 2008) – “In cases, for However, a certain phase of the Redevelopment Plan that covers the
instance, where the local government unit operates under an annual as construction of the commercial center at the Agoo Plaza was vehemently
opposed to a re-enacted budget, it should be acknowledged that the objected to by some residents of the Municipality. Led by respondent
appropriation passed by the sanggunian may validly serve as the Eduardo Cacayuran (Cacayuran), these residents claimed that the conversion
authorization required under Sec. 22(c) of R.A. No. 7160. of the Agoo Plaza into a commercial center, as funded by the proceeds from
the loans obtained from Land Bank were "highly irregular, violative of the law,
Resort to the appropriation ordinance is necessary in order to determine if and detrimental to public interests, and will result to wanton desecration of
there is a provision therein which specifically covers the expense to be the said historical and public park."
incurred or the contract to be entered into. Should the appropriation
ordinance, for instance, already contain in sufficient detail the project and Held: Generally, an ultra vires act is one committed outside the object for
cost of a capital outlay such that all that the local chief executive needs to do which a corporation is created as defined by the law of its organization and
after undergoing the requisite public bidding is to execute the contract, no therefore beyond the powers conferred upon it by law.There are two (2)
further authorization is required, the appropriation ordinance already types of ultra vires acts. As held in Middletown Policemen's Benevolent
being sufficient. Association v. Township of Middletown:
On the other hand, should the appropriation ordinance describe the projects There is a distinction between an act utterly beyond the jurisdiction
in generic terms such as “infrastructure projects,” “inter-municipal of a municipal corporation and the irregular exercise of a basic power
waterworks, drainage and sewerage, flood control, and irrigation systems under the legislative grant in matters not in themselves jurisdictional.
projects,” “reclamation projects” or “roads and bridges,” there is an obvious The former are ultra vires in the primary sense and void; the latter,
need for a covering contract for every specific project that in turn requires ultra vires only in a secondary sense which does not preclude
approval by thesanggunian. Specific sanggunian approval may also be ratification or the application of the doctrine of estoppel in the
required for the purchase of goods and services which are neither specified in interest of equity and essential justice.
the appropriation ordinance nor encompassed within the regular personal
services and maintenance operating expenses.” In other words, an act which is outside of the municipality’s jurisdiction is
considered as a void ultra vires act, while an act attended only by an
Land Bank vs. Cacayuran (April 17, 2013) – Facts: From 2005 to 2006, the irregularity but remains within the municipality’s power is considered as an
Municipality’s Sangguniang Bayan (SB) passed certain resolutions to ultra vires act subject to ratification and/or validation. To the former belongs
implement a multi-phased plan (Redevelopment Plan) to redevelop the Agoo municipal contracts which (a) are entered into beyond the express, implied or
Public Plaza (Agoo Plaza) where the Imelda Garden and Jose Rizal Monument inherent powers of the local government unit; and (b) do not comply with the
were situated. substantive requirements of law e.g., when expenditure of public funds is to
be made, there must be an actual appropriation and certificate of availability
Resolutions authorizing then Mayor Eriguel of said municipality (1) to obtain of funds; while to the latter belongs those which (a) are entered into by the
loans from Land Bank, (2) to mortgage a lot situated at the southeastern improper department, board, officer of agent; and (b)do not comply with the
portion of the Agoo Plaza (Plaza Lot) as collateral, and (3) to assign a portion formal requirements of a written contract e.g., the Statute of Frauds.
of its internal revenue allotment (IRA) and the monthly income from the
proposed project in favor of Land Bank, were passed by the SB. As a Nevertheless, while the Loans cannot bind the Municipality for being ultra
vires, the officers who authorized the passage of the Subject Resolutions are
personally liable. Case law states that public officials can be held personally consecutive times and; (2) no suppliers have qualified to participate or win in
accountable for acts claimed to have been performed in connection with the biddings.
official duties where they have acted ultra vires, as in this case.
 Procurement of Supplies thru “competitive bidding”; exceptions PART VII: LIABILITY FOR DAMAGES
Sison vs People (2010), I’m not sure if this is proper in the Local Government
Law course but acquisition by supplies of LGU shall be done through A. Liability for Defective Public Works
competitive bidding.
- Art. 2189. Provinces, cities and municipalities shall be liable for
The general rule is competitive bidding in the procurement of supplies but damages for the death of, or injuries suffered by, any person by
there are exceptions. reason of the defective condition of roads, streets, bridges, public
- 1. Personal canvass of responsible merchants buildings, and other public works under their control or supervision.
*You go to the case as to how this personal canvass by responsible (n) (NCC)
merchant maybe done still through the intervention of the - ARTICLE 471. Liability for Damages. — As provided in Article 2189 of
Committee on Awards. RA 386, otherwise known as the Civil Code of the Philippines, as
- 2. Emergency purchase amended, provinces, cities, and municipalities shall be liable for
- 3. Negotiated purchase damages for the death of, or injuries suffered by, any person by
*Have you heard of the Swiss Method? This is what is done by the reason of the defective condition of roads, streets, bridges, public
City of Cebu in this joint venture contract or the Swiss Method on buildings, and other public works under their control or supervision.
acquiring properties or entering into contracts. The extent of liability for damages shall be governed by the
- 4. Direct purchase from manufacturers or exclusive provisions of the Civil Code on quasi-delicts. (IRR, LGC)
distributors, and - Art. 34. When a member of a city or municipal police force refuses or
- 5. Purchase from other government entities. fails to render aid or protection to any person in case of danger to
life or property, such peace officer shall be primarily liable for
Cases: damages, and the city or municipality shall be subsidiarily
Sison vs. People, March 9, 2010 – Since personal canvass (the method availed responsible therefor. The civil action herein recognized shall be
of by petitioner) is an exception to the rule requiring public bidding, Section independent of any criminal proceedings, and a preponderance of
367 of RA 7160 provides for limitations. The requirement that the canvass evidence shall suffice to support such action. (NCC)
and awarding of supplies be made by a collegial body assures the
Liability for Damages
general public that despotic, irregular or unlawful transactions do not
Supreme Court administrative circular no. 10-2000, dated October 25, 2000:
occur. It also guarantees that no personal preference is given to any supplier Enjoins all judges to observe utmost caution, prudence, and judiciousness in
and that the government is given the best possible price for its the issuance of writs of execution to satisfy money judgments governments
procurements.”
Let us take a look at the pertinent provisions first. We have Article 34 of the
Ong vs. People, GR No. 176546, September 25, 2009 – Thus, a local chief Civil Code, Article 2189 of the same Code and Article of the LGC.
executive could only resort to a negotiated purchase under Section 366 of RA
No. 7160 and COA Resolution Nos. 95-244 and 95-244-A, if the following two Article 34 of the Civil Code: Subsidiary liability of LGU for liability of
requisites are present: (1) public biddings have failed for at least two local police force in case of refusal or failure to render aid or
protection to any person in case of danger to life or property. Maybe
you can make use of Article 34 when police officers simply ignore
your complaints when the issue is domestic (family issue). There is no Remember the case of Jimenez vs. City of Manila, 150 SCRA 510.
such thing as that. Whether it is internal or not, if there are injuries or Nangumpra siya didto sa public market unya after a heavy downpour of
danger to life or property, police should perform their function. They rains, muddy and floodwater, and so this person natunok ug lansang (nail)
may be held liable, subsidiarily of course - the LGU. You know of because there was an uncovered portion of the ongoing construction of the
course the meaning of subsidiary liability. public market. Incidentally the public market was managed by a private
corporation. So mi-argue ang City of Manila, “not under our control and
Then under 2189, control and supervision which results to (1) death supervision.” In the contract of market supervision, it was provided that
and (2) injuries to person. Article 2189 (NCC). Provinces, cities and while the public market is to be managed by the private corporation, there
municipalities shall be liable for damages for the death of, or added a phrase it was to be under the control and supervision still of the city
injuries suffered by, any person by reason of the defective condition engineer. Miingon dayon ang SC nga mao ni ang basis for the control and
of roads, streets, bridges, public buildings, and other public works supervision.
under their control or supervision.
The same rule was applied in Guilatco vs. City of Dagupan, 171 SCRA 382.
Injuries to persons lang, no damage to property. Ato ning klaruhon kay Another open manhole in the sidewalk So that’s how you determine whether
basin nagdagandagan ka didto unya natangtang ang usa ka ligid sa imo it is under the control and supervision of the LGU. First, you look at the
sakyanan. Basin kasuhan dayon nimo and LGU on the ground of defective charter. Does the charter mention of the function of the city engineer in so
condition of road resulted to damage of your vehicle. far as roads are concerned. And then look at the duties of the local
government engineer. Does it cover the duty to control and supervise a
The most important consideration is not ownership of the road. It may be particular public work?
owned by the national government or national road, by the LGU or local road
– it does not matter. What is important is that it is “within the control and That test was applied in Municipality of San Juan vs. CA (2005). In this
supervision of the LGU.” Article 24 is an admission of liability in case of death case, it involved excavation of the ground for the laying of the gas and
or injury to person or damage to property as a result of negligent act. underground water pipes. Under paragraph 1 (bb) of Section 149, it is
covered by the functions of the City Engineer. It does not matter local
Cases: national or even drilling and excavation of the ground for the laying gas and
Let’s go to liability of defective public works. City of Manila vs. Teotico 22 water pipes, etc. Still it is under the supervision of the city engineer. That is in
SCRA 267. Remember that person who was trying to hail a jeepney. And the Code already. So dili na ta motan-aw sa charter kay klaro na man sa
when the jeepney stopped and wanted to board the jeepney but instead fell Code. So if you are given a problem about excavation of the ground for the
on an uncovered manhole. The law requires control and supervision only and laying of the pipes, you know that under the Code that activity is to be under
not ownership. (Note: General Rule in statutory construction: specific laws the control and supervision of the city engineer. For as long as of course that
prevail over general laws. But in this case, Civil Code, a general law, was held it is within its territorial jurisdiction.
to be specific with regard to the liability for damages, whereas the charter
provision on exemption from liability was held as a general exempting Cases:
provision.) Municipality of Paoay vs. Manaois, 86 Phil. 629 – We call this activity of
municipalities in renting municipal waters for fishing purposes as
Regardless of a provision in the charter that the LGU is exempt from liability a business for the reasons that the law itself (Sec. 2321, Administrative Code
for negligence, the Charter of Manila is general in its exempting provision already mentioned and quoted) allowed said municipalities to engage in it
and Article 2189 is more specific, and therefore the latter governs not the for profit. And it is but just that a town so engaged should pay and liquidate
charter.
obligations contracted in connection with said fishing business, with the transactions must be “upon authority of the sangguniang panlungsod or
income derived therefrom. pursuant to law or ordinance”, no such prior authority was required under the
LGC of 1983 (BP 337).
Municipality of Makati vs. Court of Appeals, 190 SCRA 206 – Nevertheless, this
is not to say that private respondent and PSB are left with no legal recourse. We must differentiate the provisions of the old Local Government Code of
Where a municipality fails or refuses, without justifiable reason, to effect 1983, B.P. Blg. 337, which was then in force, from that of the Local
payment of a final money judgment rendered against it, the claimant may Government Code of 1991, R.A. No.7160, which now requires that the
avail of the remedy of mandamus in order to compel the enactment and mayor's representation of the city in its business transactions must be "upon
approval of the necessary appropriation ordinance, and the corresponding authority of the sangguniang panlungsod or pursuant to law or ordinance"
disbursement of municipal funds therefor [See Viuda De Tan Toco v. The (Section 455 [vi]). No such prior authority was required under B.P. Blg. 337.
Municipal Council of Iloilo, supra; Baldivia v. Lota, 107 Phil. 1099 (1960); This restriction, therefore, cannot be imposed on the city mayor then since
Yuviengco v. Gonzales, 108 Phil. 247 (1960)]. the two contracts were entered into before R.A. No.7160 was even enacted.
Granting but without conceding that Mayor Brigido Simon, Jr. needs to
B. Liability for Torts (Quasi-Delict) secure prior authorization from the City Council for the enforceability of the
contracts entered into in the name of the City government, which he failed to
SECTION 24. Liability for Damages. — Local government units and their do according to the appellant, We believe that such will not affect the
officials are not exempt from liability for death or injury to persons or enforceability of the contract because of the subsequent ratification made by
damage to property. the City government. Thus, when appellant City government, after the
construction by the appellee of the dumpsite structure in accordance with
The State is responsible in like manner when it acts through a special agent; the contract plans and specifications, started to dump garbage collected in
but not when the damage has been caused by the official to whom the task the City and consequently paid the appellee for the services rendered, such
done properly pertains, in which case what is provided in Article 2176 shall be acts produce and constitute a ratification and approval of the negotiated
applicable. (Article 2180, NCC) contract and necessarily should imply its waiver of the right to assail the
contract's enforceability.
Liability for Torts or Quasi-delicts
You remember we had an illustration that the UP Law Center suggested City of Manila vs. IAC, 179 SCRA 428
answer, you can actually distinguish governmental and proprietary function. The Supreme Court held that “the following are corporate or proprietary in
That is in San Fernando (La Union) vs. Firme case. Or you can apply directly character, viz: municipal waterworks, slaughter houses, markets, stables,
Section 24 which does not make any qualification. No need to expound on bathing establishments, wharves, ferries and fisheries. Maintenance of
this hah kay you know this. parks, golf courses, cemeteries and airports among others, are also
recognized as municipal or city activities of a proprietary character.
C. Liability for Failure of Police Force to render aid and
protection The Court citing Torio v. Fontanilla declared that with respect to proprietary
functions the settled rule is that a municipal corporation can be held liable to
D. Liability for Contracts third persons ex contractu. The Court further stressed that Municipal
corporations are subject to be sued upon contracts and in tort.
Scope
Quezon City vs. Lexber, GR No. 141616, March 15, 2001 – While RA 7160 now
requires that the mayor’s representation of the city in its business Doctrine of Implied Municipal Liability
Province of Cebu vs. IAC, 147 SCRA 447 services rules (matter of procedural requirements for dismissing an
employee); or it may be illegal because there is no ground and the dismissal
Doctrine of Estoppel is precisely tainted with malice and bad faith especially if it is politically
San Diego vs. Municipality of Naujan, 107 Phil 118 motivated which is a very common cause of illegal dismissal like immediately
after a new administration takes over the LGU, kung kinsa tong wa milaban
*Transcript* sa election kay tang-tang. Already settled in a lot of SC decisions. If that is
Liability for Contracts politically-motivated, covered na sa malice and bad faith.
The LGU can be considered as a private person when it enters into a contract
and therefore it can be held liable ex contractu. Even the national As I said illegal dismissal maybe because the procedure had not been
government, in fact you file you claim before the COA. In the case of LGU, complied with, or perhaps there is a wrong judgment as to the ground.
that’s the same principle. Sayop lang jud siguro nga maybe dismissal is not the proper penalty pero
minus-minus lang si mayor, gi-dismiss dayon on that ground. So it can be
However there’s a caveat that the contract must at least be ultra vires. considered illegal. Or it can be because of malice and bad faith like
Because if not, the LGU cannot be held liable under a void contract. Not even politically-motivated dismissal of employees.
the doctrine of estoppel can cure the fact that it is null and void. Otherwise, a
void contract may be cured when under city law, a void contract cannot be It is only when the dismissal which is illegal is tainted with malice or bad
ratified, it cannot be cured. If the LGU sells a public property, it is ultra vires. faith that the LGU may not be held liable but it becomes a personal
May the LGU be held liable for entering into that contract. No of course liability of the officer.
because it is void. Not even the doctrine of estoppels will apply.
In one case, if the officer held liable is already dead, according to the SC, the
liability will be shouldered by the LGU. Take note: It is not the fact of
Liability for Illegal Dismissal of Employees illegality that will make the LGU official personally liable. As I have said it can
Municipal Liability be illegal but without malice and bad faith. Wa lang mi follow sa procedure,
Municipality of Jasaan vs. Gentallan (2005) or sayop si mayor kay nag dinaghag dili diay to a ground for dismissal under
the civil service law or any law for that matter. The LGU will be held liable for
Enforcement of Monetary Judgment backwages.
Municipality of Paoay vs. Manaois (supra.)
Municipality of Makati vs. CA (1990) But if it is illegal and also tainted with malice and bad faith, then LGU is not
anymore liable to pay the backwages. Only the local government official
Personal Liability of Officials concerned. As I mentioned earlier, LGU can only be held liable by the acts of
Laganapan vs. Asedillo, GR. 28353, September 30, 1987 officers if it is by the authority or in conformity with law. And if it is with
Chavez vs. Sandiganbayan, (1991) malice or bad faith, it is never in conformity with law because the law does
Rama vs. Court of Appeals, 148 SCRA 496 not sanction malice or bad faith.
Correa vs. CFI of Bulacan, 92 SCRA 312
PART VIII: ELECTIVE OFFICIALS
*Transcript*
Liability for Illegal Dismissal of Employees A. Qualifications and Elections
Then finally for municipal liability, don’t forget the Municipality of Jasaan case
(2005). Dismissal of an employee may be illegal either because of the non- Qualifications
observance of procedure in dismissing an employee covered by the civil SECTION 39. Qualifications. — (a) An elective local official must be a citizen of
the Philippines; a registered voter in the barangay, municipality, city, or certificate of candidacy. And in the certificate, it will ask the citizenship, and
province or, in the case of a member of the sangguniang panlalawigan, he said he is a Filipino citizen. But the petition (for repatriation) was not yet
sangguniang panlungsod, or sangguniang bayan, the district where he granted. He was sued for having misrepresented in his certificate of
intends to be elected; a resident therein for at least one (1) year immediately candidacy kay ngano kuno nga mi declare siya nga Filipino nga wala pa man
preceding the day of the election; and able to read and write Filipino or any na grant iyang petition for repatriation.
other local language or dialect. On noon of June 30, 1995, when he was about to take his oath and assume
(b)Candidates for the position of governor, vice-governor, or member of the his office as governor for the Province of Sorsogon, he had already all the
sangguniang panlalawigan, or mayor, vice-mayor or member of the requirements for repatriation completed. Few hours before the oath-taking.
sangguniang panlungsod of highly urbanized cities must be at least twenty- SC said: If you look at Section 39 (for governor) of the LGC of 1991,
three (23) years of age on election day. essentially these requirements are not requirements for candidates. These are
(c)Candidates for the position of mayor or vice-mayor of independent requirements for elective officials. And because these are requirements for
component cities, component cities, or municipalities must be at least public officials, these are to be complied with at least by the time the official
twenty-one (21) years of age on election day. becomes elective. And when is an official considered elective? When he had
(d)Candidates for the position of member of the sangguniang panlungsod or already been validly elected as manifested by the proclamation and by the
sangguniang bayan must be at least eighteen (18) years of age on election time he takes his oath, that is the qualification, and assumes his office. The
day. last act would be the taking of oath and the assumption of his office. So
(e)Candidates for the position of punong barangay or member of the he does not have to possess the citizenship requirement at the time of
sangguniang barangay must be at least eighteen (18) years of age on the filing of the COC.
election day. Pero miingon dayon ang SC, para walay lalis and to settle this issue once and
(f) Candidates for the sangguniang kabataan must be at least fifteen (15) for all, we now rule that in case of repatriation, the effect of the repatriation
years of age but not more than twenty-one (21) years of age on election day. shall retroact as to the time of filing the petition for repatriation. Para walay
lalis, although okay tong argument about elective local official.
 Qualifications of Elective Officials
Let’s go over first the qualifications of local elective officials (section 39, LGC): Residency
- Citizen of the Philippines - need not be natural-born. So In Election Law, residence is synonymous with domicile. If you are going to
pwedi naturalized. distinguish residence from domicile, will be able to do that? Paksit, of course!
- Registered voter in the locality or district where he intends to
be elected 1 year immediately preceding the day of the Residence is general in concept, while domicile is specific. Because residence
election. may be temporary or permanent. And if residence is in the concept of a
- Able to write and write Filipino or any local language or permanent residence, then you call that domicile.
dialect
- Ages - will vary depending on the LGU and depending on How do you know that residence is temporary? Residence is temporary if
the position - (23. 21, 18 ) your physical stay in the locality is for temporary purpose. Such as studies,
business, exercise of profession, and other similar temporary activities.
Citizenship
Who would, of course, forget the Frivaldo case. As to the citizenship Why do you know that these activities are temporary? Simple. Because these
requirement, when should the local official possess citizenship requirement? activities have definite beginnings and definite ends. Like when you study,
Paksit! you begin with the enrollment in the first year, and then you complete it
In Frivaldo, sometime in August of 1994, he applied for repatriation (in when you graduate. So there is specific beginning and there is specific end. If
August 17, 1994). Pag March of 1995, or the following year, he filed his
your physical stay in that locality is for that temporary purpose, then your
residence there is temporary. Important cases:
In Faypon vs. Quirino 257 SCRA 727, the rule is if you are out of your domicile
In political law you have to deals basically with your domicile of origin and of origin to pursue studies, engaged in business, practice vocation or
your domicile of choice. Your domicile of origin is where? Not in the place of profession, then it is not sufficient to constitute abandonment of domicile of
birth but in the domicile of your parents at the time of your birth. Your origin. Again, because the purposes are temporary.
domicile of choice is when you changed your domicile of origin.
In Coquilla vs. COMELEC (2002), if you have been naturalized in a foreign
In election law cases, diba you will be asked to established whether or not country, it should also result in the abandonment of your domicile.
you have abandoned your domicile. You may want to establish that you have
not abandon your domicile because perhaps you have been away for a while In Caasid, becoming a permanent immigrant like being a green card holder
and you would want to run for public office in that original domicile. (Just like to the United States constitutes abandonment of residency. It should be the
what Atty Torregosa did) And your opponents might question that you have case because under the fundamental rule in election law, you can have
already abandoned your domicile. So you have to established that you have several temporary residences but you can only have one domicile. You
not abandoned it. cannot have more than one domicile. It’s either you abandoned an old
There are only two proofs: (1) animus manendi – your intention to live domicile and established a new one or you haven’t. Precisely because you
permanently in that locality; and (2) animus revertendi – because you have become a permanent immigrant, so that is your domicile in another country,
been physically absent for a while, you should be able to establish that you that should result to abandonment of domicile in the Philippines.
have the intention to return to your domicile.
Abraham Kahlil Mitra vs. COMELEC, GR 191938, July 2, 2010 – Facts: Abraham
There should be factual pieces of evidence for this. That is in the area for the Kahlil Mitra is a 3 term congressman of the 2nd district of Palawan, which
practice of election law. Like sell of properties, etc. consist, among others, the city of Puerto Princesa and the municipality of
Aborlan. During his 2nd term (in 2007), the city of Puerto Princesa was
Proof of abandonment of all domiciles. Like have Atty. Torregosa decided converted into a highly urbanized city, the consequence of which is that its
to run for office in Cebu City, he should established that he abandoned his residents could no longer vote for provincial officials. Seeking a provincial
old domicile in Bohol. In which case, he should establish the following: elective post in 2010, Mitra transferred his voter’s registration from Puerto
Princesa to Aborlan. His candidacy in 2010 for governor was challenged on
Actual physical presence in the new domicile. Very easy. Cedula lang and you the ground of material misrepresentation in the COC about his residence.
add affidavits of some witnesses.
Animus manendi in the new domicile – intention to live permanently in that Held: The false representation that these provisions mention must
new domicile. necessarily pertain to a material fact. The false representation under Section
Animus non Revertendi (the opposite of animus Revertendi) - intention not to 78 must likewise be a "deliberate attempt to mislead, misinform, or hide a
return to your old domicile. Many ways to establish that like you have fact that would otherwise render a candidate ineligible." Given the purpose of
disposed all your assets there; you have asked your family to transfer here; the requirement, it must be made with the intention to deceive the electorate
enroll your children to schools of Cebu City, and many other pieces of as to the would-be candidate’s qualifications for public office.
evidence.
Based on these standards, we find that Mitra did not commit any deliberate
These are just proofs hah. You know of course that proofs are different from material misrepresentation in his COC. Under the evidentiary situation of the
evidence. So during hearing in the COMELEC, you must have these as your case, there is clearly no basis for the conclusion that Mitra deliberately
outline for the proofs when you ask questions. attempted to mislead the Palawan electorate.
Such assessment, in our view, based on the interior design and furnishings of
From the start, Mitra never hid his intention to transfer his residence from a dwelling as shown by and examined only through photographs, is far from
Puerto Princesa City to Aborlan to comply with the residence requirement of reasonable; the COMELEC thereby determined the fitness of a dwelling as a
a candidate for an elective provincial office. Republic Act No. 7160, otherwise person’s residence based solely on very personal and subjective assessment
known as the Local Government Code, does not abhor this intended transfer standards when the law is replete with standards that can be used. Where a
of residence, as its Section 39 merely requires an elective local official to be a dwelling qualifies as a residence – i.e., the dwelling where a person
resident of the local government unit where he intends to run for at least one permanently intends to return to and to remain76 – his or her capacity or
(1) year immediately preceding the day of the election. In other words, the inclination to decorate the place, or the lack of it, is immaterial.
law itself recognizes implicitly that there can be a change of domicile or
residence, but imposes only the condition that residence at the new place Examined further, the COMELEC’s reasoning is not only intensely subjective
should at least be for a year. Of course, as a continuing requirement or but also flimsy, to the point of grave abuse of discretion when compared with
qualification, the elected official must remain a resident there for the rest of the surrounding indicators showing the Mitra has indeed been physically
his term. present in Aborlan for the required period with every intent to settle there.
Specifically, it was lost on the COMELEC majority (but not on the Dissent) that
Mitra’s domicile of origin is undisputedly Puerto Princesa City. For him to Mitra made definite, although incremental transfer moves, as shown by the
qualify as Governor – in light of the relatively recent change of status of undisputed business interests he has established in Aborlan in 2008; by the
Puerto Princesa City from a component city to a highly urbanized city whose lease of a dwelling where he established his base; by the purchase of a lot for
residents can no longer vote for provincial officials – he had to abandon his his permanent home; by his transfer of registration as a voter in March 2009;
domicile of origin and acquire a new one within the local government unit and by the construction of a house all viewed against the backdrop of a
where he intended to run; this would be his domicile of choice. To acquire a bachelor Representative who spent most of his working hours in Manila, who
domicile of choice, jurisprudence, which the COMELEC correctly invoked, had a whole congressional district to take care of, and who was establishing
requires the following: at the same time his significant presence in the whole Province of Palawan.
(1) residence or bodily presence in a new locality;
(2) an intention to remain there; and From these perspectives, we cannot but conclude that the COMELEC’s
(3) an intention to abandon the old domicile.63 approach – i.e., the application of subjective non-legal standards and the
The contentious issues in Mitra’s case relate to his bodily presence, or the gross misappreciation of the evidence – is tainted with grave abuse of
lack of it, in Aborlan, and the declaration he made on this point. The discretion, as the COMELEC used wrong considerations and grossly misread
respondents anchor their cause of action on the alleged falsity of Mitra’s the evidence in arriving at its conclusion. In using subjective standards, the
statement that he is a resident of Aborlan. COMELEC committed an act not otherwise within the contemplation of law
on an evidentiary point that served as a major basis for its conclusion in the
In considering the residency issue, the COMELEC practically focused solely on case.
its consideration of Mitra’s residence at Maligaya Feedmill, on the basis of
mere photographs of the premises. In the COMELEC’s view (expressly voiced Disqualifications
out by the Division and fully concurred in by the En Banc), the Maligaya SECTION 40. Disqualifications. — The following persons are disqualified
Feedmill building could not have been Mitra’s residence because it is cold from running for any elective local position:
and utterly devoid of any indication of Mitra’s personality and that it lacks - (a)Those sentenced by final judgment for an offense involving
loving attention and details inherent in every home to make it one’s moral turpitude or for an offense punishable by one (1) year or
residence.75 This was the main reason that the COMELEC relied upon for its more of imprisonment, within two (2) years after serving sentence;
conclusion. - (b)Those removed from office as a result of an administrative
case;
- (c)Those convicted by final judgment for violating the oath of The SC said: Yes there was conviction. But having financial interest in a
allegiance to the Republic; cockpit, although prohibited, is not an offense involving moral turpitude
- (d)Those with dual citizenship; especially that before it was not prohibited.
- (e)Fugitives from justice in criminal or non-political cases here or
abroad; “Within 2 years after serving sentence”
- (f)Permanent residents in a foreign country or those who have This phrase is applicable to both grounds. After two years of service, lifted na
acquired the right to reside abroad and continue to avail of the ang disqualification. So it’s either you have been convicted by final judgment
same right after the effectivity of this Code; and of an offense involving moral turpitude, or you have been sentenced by final
- (g)The insane or feeble-minded. judgment of a crime which carries a penalty of 1 year of imprisonment. In
either of these, after two years of service, you will now be qualified again. So
 Disqualifications (Sec. 40) dili diay ni perpetual nga disqualification.
Sentenced by final judgment for (a) offense involving moral turpitude.
Penalty is irrelevant. Just the nature of the offense, or by (b) an Offense Conviction by final judgment is not a perpetual disqualification for local
punishable by 1 year or more of imprisonment. Penalty is relevant. The government officials. It’s only good within the period of two years from
nature becomes irrelevant. service. After that you will regain your qualification, assuming that you have
no other disqualification. (Moreno vs. COMELEC)
If you have been sentenced by final judgment of an offense involving moral
turpitude, it is regardless of the penalty (even if the penalty is just fine, no - Removal from office as a result of administrative case.
imprisonment) if its nature involves moral depravity. Rules: This should be interpreted as having prospective application only. The
LGC of 1991 which took effect in 1992, this particular provision is a new
Soriano vs. Dizon and Teves vs. COMELEC – Moral turpitude has been provision. The SC said it cannot apply to a local government official who was
defined as everything which is that contrary to justice, modesty, and good removed from office before the effectivity of the LGC of 1991. Very crucial,
morals (to be determined by the court). An act of baseness, vileness or you have to check when this official was removed from office - before or
depravity in the private and social duties which a man owes his fellow or to during the effectivity of the LGC of 1991. If before the effectivity of the LGC
society in general of 1991, this provision will not apply. Only those who had been removed
from office after the effectivity of the LGC of 1991. So prospective
Conviction of violation of B.P. 22 – moral turpitude; Anti-Fencing Law – moral application.
turpitude; Rape – mangutana pa ka…? In the case of Osorio vs. COMELEC (2004), one public official was removed
from office when he was occupying an appointive office, not an elective
Before, there was no prohibition on operating a cockpit or being financial office as a result of an administrative case. Then he ran for public office. A
interested in the operation of a cockpit by a local government official. In one petition for disqualification has been filed on the ground that he had been
case, there was this mayor who was once a part-owner of a cockpit. Later on, removed from public office as a result of an administrative case. The
a law had been passed prohibiting local government officials from having respondent argued that provision will apply only to elective officials who had
financial interest over cockpits. Unya wa siya kabalo anang balaura. Imbis i- been removed from office as a result of administrative case.
divest niya ang iyang self over this financial interest, he continued to be part-
owner of this cockpit. He was sued, and when he ran for office, the opponent The SC said – wrong interpretation. The word says “office.” So that should be
sought his disqualification. There was a conviction. whether you have been holding appointive or elective office. If you have
been removed in either of these positions as a result of administrative case,
then, that is a ground for disqualification.

Convicted by final judgment for violating the oath of allegiance to the In Marquez vs. COMELEC and Rodriguez vs. COMELEC, it includes fugitive
Republic of the Philippines from prosecution. So dili kinahanglan nga convicted ka, you are now asked to
There are offenses under the Revised Penal Code that are considered such. serve your sentence and then you escape. Even if the case is still pending and
So RPC will have to be considered here. you flee to avoid prosecution. So to avoid service of sentence or to avoid
prosecution.
Those with dual citizenship
Who would forget the case of Mercado vs. Manzano (1999). Di ba dual In this case of Marquez, didto siya sa US. A case had been filed few days
citizenship in Section 40 should be interpreted as dual allegiance. In this case, before he left. While he did not know that a case had been filed, the fact that
the SC had the opportunity to distinguish dial citizenship from dual it was filed, it may be assumed that he learned of the filing of the case, that’s
allegiance. In dual citizenship, it is involuntary on the part of the child. In dual the reason why he escaped or fled to the Philippines. A question of intent –
allegiance, it is voluntary. In the Constitution, it is dual allegiance that is no hard and fast rule.
declared that is inimical to the national interest and should be dealt by law,
and not dual citizenship. Permanent residents in foreign country or those who have acquired the
right to reside abroad and continue to avail for the same right after the
Nganong dual citizenship is involuntary on the part of the child? effectivity of the Code
Because the child has no control over the application of conflicting laws on
citizenship. Dili kay because it is not the decision of the child that he will be The insane or feeble-minded
born (matud pa daw sa mga 1st year nga wala lang kabalo si sir nga ang 4 th
year maoy gatudlo). Additional disqualifications:
- Lone Candidate Law in Special Elections (RA 8295). Lone
The child has no control over the application of conflicting laws on Candidate Law is applicable only in special elections. So you
citizenship that would confer the child dual citizenship. This is common when may add the following disqualifications there.
the parents whose national law follows jus sanguinis and the child is born in a
country that follows jus soli. That is exactly what happened in Manzano. - Any elective official who has resigned from his office by
Dual allegiance is voluntary because showing loyalty to at least two countries accepting an appointive office or for whatever reason which
would require overt acts – like payment of taxes, running for government he previously occupied that has caused to become vacant
office, and other overt acts. due to his resignation.
Fugitive from justice in criminal or nonpolitical cases here or abroad
Fugitive from justice here – meaning a case is pending here in the Philippines - Any person who directly or indirectly coerces, etc in violation
or you must have already been convicted, and you flee to another country. of the election law.
Fugitive from justice abroad – the case has been either pending abroad or Omnibus Election Code –
you have been already sentenced abroad, then you flee from that foreign Section 12. Any person who has been declared by competent authority
country to the Philippines and run for public office here (which is the most insane, incompetent, sentenced by final judgment for subversion,
common scenario). insurrection, rebellion (acts of disloyalty), or for any offenses for which he has
been sentenced to a penalty of more that 18 months or for a crime involving
That is in criminal and nonpolitical cases. Not political cases because in moral turpitude shall be disqualified to be a candidate and to hold any office,
political cases, they have the right to asylum which has now ripen to what is unless he has been given plenary pardon or granted amnesty.
known as jus cogens. So only in criminal and nonpolitical cases, here or
abroad.

Section 28. (comment: I think Sir is referring to Sec. 261. Prohibited Acts. He be provided for by law. The COMELEC shall promulgate the rules and
was mentioning about threats, intimidation, and other election offenses) regulations to effectively provide for the election of such sectoral
representatives.
Section 69. Nuisance candidates. - The Commission may motu proprio or
upon a verified petition of an interested party, refuse to give due course to or Cases:
cancel a certificate of candidacy if it is shown that said certificate has been RA 8553 (1998)
filed to put the election process in mockery or disrepute or to cause Abella vs. COMELEC, 201 SCRA 253 (1991)
confusion among the voters by the similarity of the names of the registered Ceniza vs. COMELEC, 95 SCRA 763
candidates or by other circumstances or acts which clearly demonstrate that
the candidate has no bona fide intention to run for the office for which the
certificate of candidacy has been filed and thus prevent a faithful Date of Elections
determination of the true will of the electorate. SECTION 42. Date of Election. — Unless otherwise provided by law, the
elections for local officials shall be held every three (3) years on the second
Kanang disqualifications of candidates sa local government, you apply Monday of May.
Section 40 LGC and then you go to Lone Candidate Law, and then you add Datu Michael Abbas Kida vs. Senate (2011)
the OEC.
Term of Office
Manner of Elections SECTION 43. Term of Office. — (a) The term of office of all local elective
SECTION 41. Manner of Election. — (a) The governor, vice-governor, city officials elected after the effectivity of this Code shall be three (3) years,
mayor, city vice-mayor, municipal mayor, municipal vice-mayor, and punong starting from noon of June 30, 1992 or such date as may be provided for by
barangay shall be elected at large in their respective units by the qualified law, except that of elective barangay officials: Provided, That all local officials
voters therein. However, the sangguniang kabataan chairman for each first elected during the local elections immediately following the ratification
barangay shall be elected by the registered voters of the katipunan ng of the 1987 Constitution shall serve until noon of June 30, 1992.
kabataan, as provided in this Code.
(b)No local elective official shall serve for more than three (3) consecutive
(b)The regular members of the sangguniang panlalawigan, sangguniang terms in the same position. Voluntary renunciation of the office for any
panlungsod, and sangguniang bayan shall be elected by district, as may be length of time shall not be considered as an interruption in the continuity of
provided for by law. Sangguniang barangay members shall be elected at service for the full term for which the elective official concerned was elected.
large. The presidents of the leagues of sanggunian members of component (c)The term of office of barangay officials and members of the sangguniang
cities and municipalities shall serve as ex officio members of the sangguniang kabataan shall be for three (3) years, which shall begin after the regular
panlalawigan concerned. The presidents of the liga ng mga barangay and the election of barangay officials on the second Monday of May 1994.
pederasyon ng mga sangguniang kabataan elected by their respective
chapters, as provided in this Code, shall serve as ex officio members of the SECTION 8. The term of office of elective local officials, except barangay
sangguniang panlalawigan, sangguniang panlungsod, and sangguniang officials, which shall be determined by law, shall be three years and no such
bayan. official shall serve for more than three consecutive terms. Voluntary
(c)In addition thereto, there shall be one (1) sectoral representative from the renunciation of the office for any length of time shall not be considered as an
women, one (1) from the workers, and one (1) from any of the following interruption in the continuity of his service for the full term for which he was
sectors: the urban poor, indigenous cultural communities, disabled persons, elected. (1987 CONST)
or any other sector as may be determined by the sanggunian concerned
within ninety (90) days prior to the holding of the next local elections as may TERM of OFFICE
THREE YEARS for elective local officials is constitutionally mandated. Basin So imo lang hinumduman: elected, fully served, consecutiveness, and same
makaingon ka nga basin local government code ning term of office. No, office. So upat kabuok.
constitutionally provided na siya class. That was the 2006 bar question. If a
law is passed changing the term of office of the elective local offices, Three-term Limit Rule
obviously it is not constitutional because of Section 8, Article 10 (three years). To constitute a disqualification to run for an elective local office pursuant to
the aforequoted constitutional and statutory provisions, the following
And pwedi lang ma fixed by law under the Constitution is under barangay requisites must concur:
official. Kay miingon man barangay official as may provided for by law. Kana (1) that the official concerned has been elected for three
pwedi na by statute which actually happened nga sige ug usab-usab. Gawas consecutive terms in the same local government post; and
nga usbon, usbon pa jud ang election. Nganong okay ra man nah? Because (2) that he has fully served three consecutive terms. (Lonzanida vs.
of the hold-over principle that is applicable for barangay officials. COMELEC, 1999)
Again. Local officials , the term of Office is three years, fixed by the Problem No. 1 (2001 Bar Exam):
Constitution except for barangay which may be provided for by law. So a 1993 – X, the Vice-mayor, succeeded as mayor Y who died. X served as Mayor
statute cannot change that. until 1995.
1995 to 1998 – X was elected and served as Mayor.
For barangay officials, the first law applicable is RA 8524 – five years in 1998, 1998 to 2001 – Reelected and continued to served.
gi-extend. In 2002, there was this RA 9164 that reduced the five years back to 2001 – he ran for mayor and was questioned that it was already his fourth
three years, plus the requirement that the three consecutive term limitation term.
shall begin in year 1994. G- question ning retroactivity provision of RA 9164 Was X barred to run as Mayor? NO. Because he was not elected the first time
to 1994. SC already ruled: it is constitutional to make it effective in 1994 kay he served as Mayor. He merely succeeded as mayor by operation of law. So
kabalo naman ka nga public office is just a privilege. You do not have a dili pa to maapil sa pag-count. The element involved here is ELECTED.
vested right over public office, etc. Case in point is Borja, Jr. vs. COMELEC (1998). SC said the term served must
be one for which the official concerned was elected is another consideration.
In 2005, RA 9340 extended the term which ended on November 30, 2005 to Sameness of office is another. He was elected but not for that office. He was
November 30, 2007, noon gyapon. Unya kay three years man, that’s we are elected as Vice-mayor. (Refer to the case)
going to have Barangay Election this year. Pero pwedi na i-postpone by law.
Ayaw mo ka confuse anah nganng pwedi nah. It’s because of the hold-over Problem No. 2
principle as declared in Sambarani vs. COMELEC (2004) and as provided for in 1988 to 1995 – X was elected and served as Mayor for two consecutive terms.
RA 9164. (so two terms na daan)
1995 – X ran and got reelected
Three-Term Limit Rule 1997 –Ordered by the COMELEC to step down because he was found to be
If you look at your notes, cases there would mention of two elements here. illegally-proclaimed. There was an order by the COMELEC. So minaog ra pod
But for purposes of my discussion, just removed one that is common to two siya kay basin ma contempt sa COMELEC.
for purposes of emphasis. 1998 Elections – He filed a COC for Mayor.
Elements: How will you dispose with the case? Check the elements. Got elected three
- Official is elected three times. Ari ta mofocus sa elected. times (check). Fully served three times?
- Official Fully served three terms This time, you have to take note. In case the local official fails to finish the
- Official is elected three times consecutively term, you have to distinguish between voluntary renunciation and involuntary
- In the same office. renunciation. Voluntariness is important in not completing a term.
If it is an involuntary renunciation, you the rule that it shall not be considered Kabalo man ta nga kung Recall Election, the incumbent officials subject of
as an interruption for the full term he was elected. recall will become automatically candidates whether he likes it or not. And
But in this case, It was not voluntary, was it? He was ordered by the COMELEC then the COMELEC will invite other candidate. So miapil dayon si X.
to step down. He voluntarily step down of course after the order. But that Can X participate in the Recall Election? Yes, for the same reason – no
was upon the order of the COMELEC. So asa applicable? – Fully served. He consecutiveness. The principle behind the three-term limit rule is to prevent
was not able to fully served that term 1995 to 1998. consecutiveness of the service of terms. And there was in this case a break in
Case in point Lonzanida vs. COMELEC (1999). The SC said: petitioner did not such consecutiveness after the end of his third term and before the recall
fully served the 1995 to 1998 mayoral term by reason of involuntary election.
relinquishment of office. You take note of this case (Lonzanida vs. COMELEC) Duol ra gyud kaayo. Private citizen siya for nearly one year. That was the case
in relation to the last case ako gibutang dinha (Aldovino vs, COMELEC). of Socrates vs. COMELEC (2002).
Problem No. 3 Problem No. 5 (2005 Bar Exam)

X was elected and served as Mayor for two consecutive terms. So duwa na 1992 to 2001 – X was Mayor of the then Municipality of Digos for three
daan. In 1998, X ran as Mayor unya napildi. Y became the Mayor. consecutive years.
Mao bitaw ni ang reason mao gitangtang and Preparatory Recall Assembly Before the May 2001 Elections, the municipality became a new city. So
(PRA) as a mode of removing an official via recall effective 2004 because of midagan pod siya because this is a new entity so this should be a fresh start
this case. Highly-politicized man gud. Kung ang modaog gani kontra partido for the mayor in Digos.
sa mga daghang local officials, palingkura lang kay i-remove ta nah through Was X qualified to run for Mayor of the new city? No. this is the case of
recall. Unsay himuon? PRA composed of local officials nga maoy mo pa Latasa vs. COMELEC (2003). Latasa argued that this is a new local government
remove. Unya unsa may ground? Wala , voting lang daugon. unit. Correct, it is a new LGU but it is the same territory and the same
Gitangtang na karon, take note effective 2004, there is no more PRA as a inhabitants. Plus, according to the Court, if we rule otherwise, this would be
mode for initiating a recall. Usa na lang – by the registered voters. considered a circumvention on the rule on consecutiveness. There, the mayor
In 2000, there was a Recall Election and X was elected and served as Mayor. would then be serving not just 9 years but 18 years.
Tangtang, kadyot ra kaayo si Y. In 2001, X ran again for Mayor.
Was X barred to run as mayor? NO. We apply consecutiveness. His loss in Problem No. 6
the May 1998 election was considered by the court as an interruption in the 1995- 1998 X was elected and served as Mayor (one term). X was elected
continuity of his service as Mayor. For nearly two years, respondent X, in the and served as Mayor (1998 to 2001; 2nd term) but in the middle of the term, a
illustration lived as a private citizen. Si Y may na-Mayor at that time. 1998 election protest was filed but was not resolved. X was reelected for the
Sir, what if less than a year, one day lang or two days? Bisan single day lang if third term (2001 to 2004; and served as Mayor. The 1998 election protest was
we are really to stretch our imagination just to check the reasonableness of favorably decided at the time when X was already reelected in 2001 (third
the law. If one day then still it is interrupted. Although it is physically not term). According to the election protest case he did not win in the 1998
possible. Elections. He was not legally the Mayor in 1998-2001.
Was X qualified to run for Mayor in the 2004 Elections? NO. The SC said
Problem No. 4 purbida noh kung dili ikaw ang Mayor atong 1998 to 2001, kinsa man nga
1992 to 2001 – X was elected and served as Mayor for three consecutive wala man naglingkod ang protestant.
years. The SC said it would be absurd to say that he was not the mayor at that time
2001 –X did not run; Y was elected Mayor. when in fact, muingon ka de facto, he served as Mayor.
2002 – Through Recall Election, X joined the Recall Election. TN OF THIS CASE: This is your Francis Ong vs. Joseph Alegre case (2006). It
was considered as full service even if it was later on declared by the
COMELEC that he was not the rightful official.
Problem No. 7 Problem No. 9
1995 to 1998 - X was elected and served as Mayor. Aldovino, Jr. vs. COMELEC (2009). Three consecutive terms. but on the third
1998 to 2001 – X was reelected and served. A protest was made for the 1998 term he was preventively suspended for six months. Argue dayon siya. Unsa
Elections. to requirement: Elected (check), Consecutively (check), Same office (check).
2001 to 2004 – reelected and served again as Mayor but in July of 2001, the Anhi ko sa fully served nga issue. Ingon siya, di ba kung issue on full service,
1998 election protest was decided against X. we ask the question voluntary or involuntary.
2004 to 2007 – X ran and was elected. If voluntary, should not be considered as an interruption. If involuntary,
Gi delay pag ayo ang pag implement sa 2001 case miabot nalang ang 2004 should be considered as an interruption.
Elections nakadagan pa jud si X. But it was cancelled precisely of the July Is preventive suspension voluntary or involuntary? It is immaterial to talk
2001 Election. But he won. Grabe kaayo ang mani-obra aneh. Mao ni ang about voluntariness or involuntariness because the official here has not been
grab the proclamation, delay the protest. separated from the office. He was merely preventively suspended.
May 17, 2007(?) – X step down as ordered. If you have been preventively suspended, you were not separated from
2007 – He ran for Mayor. office. You are still the official but ordered not to perform the function of the
Was X qualified to run as Mayor for 2007? official. Mao kuno na ang effect sa preventive suspension.
Because of his disqualification, he was not the duly-elected Mayor for the He did not leave his post, he was merely suspended. Official lang gyapon
2004-2007 term. In fact, his COC was cancelled. Morales cannot be deemed siya. He was merely prevented from serving his office but he was still with the
to have served the full term of 2004 to 2007 because he was ordered to office.
vacate his post after (comment: diba dapat before) the expiration of the term.
Before mi-end ang iyang term, mi vacate siya sa iya post. Mendoza vs. Familara (2011) – Facts: Mendoza was elected as barangays
Kung ikaw ang mo-advise sa kandidato - before mo-end ang imong term, captain for 3 consecutive terms, i.e., 1994, 1997 and 2002. He sought
naog. Pagpaugat sa because by the time you step down, it is not anymore reelection in 2007. Familara petitions to disqualify Mendoza on the ground of
voluntary renunciation. Because Lonzanida case, if you have step down the 3 term limit rule. Mendoza argued that the law, RA 9164, has no
involuntarily, then is interruption. So mo step down ka nalang. Pero dapat retroactive application.
nay order para involuntary. Held: Our own reading shows that no retroactive application was made
because the three-term limit has been there all along as early as the second
Problem No. 8 barangay law (RA No. 6679) after the 1987 Constitution took effect; it was
1994 elections, 1997 elections and 2002 elections– X was elected and served continued under the [Local Government Code] and can still be found in the
as Punong Barangay. current law. We find this obvious from a reading of the historical
2004 –. Two years after na elect siya as Punong Barangay in the 2002 development of the law. All these inevitably lead to the conclusion that the
Elections, wa niya gihuman ang pagka Punong Baranggay. He ran as challenged proviso has been there all along and does not simply retroact the
municipal councilor. application of the three-term limit to the barangay elections of 1994.
2007 – mibalik siya pag ka punong barangay. Congress merely integrated the past statutory changes into a seamless whole
What is the effect of X running and winning as Municipal Councilor? by coming up with the challenged proviso.
It is voluntary renunciation of the post kay wala may mi compel nimo to file a
candidacy for municipal councilor. Abandonment is considered voluntary
renunciation. You abandoned your post when you filed your COC as ABUNDO, SR. V. COMELEC
municipal councilor. [G.R. No.160427, January 8, 2013] (Latest Ruling: SC clarifies 3-term limit rule
Abandonment, according to the Court, just like resignation is voluntary. for mayors)
Abandonment of office, just like resignation is voluntary.
Facts: Abundo ran for the position of municipal mayor of Viga, Catanduanes The court further ruled that the Comelec erred in applying Aldovino Jr. v.
in the years 2001, 2004, 2007 and 2010. He was proclaimed winner of the Commission on Elections which held that “service of the unexpired portion of
2001 and 2007 elections. a term by a protestant who is declared winner in an election protest is
considered as service for one full term within the contemplation of the three-
In the 2004 election, however, Jose Torres was proclaimed the winner of the term limit rule” as the doctrine refers to a situation where the elected official
electoral race and mayor of Viga, performing the functions of the office. is under preventive suspension and is only temporarily unable to discharge
Abundo protested Torres’ election and was eventually declared the winner of his functions yet is still entitled to the office as compared to the situation of
the 2004 mayoralty electoral contest. He assumed office from May 9, 2006 Abundo where he did not have title to the office. The court emphasized that
until the end of the 2004-2007 term on June 30, 2007. pending the favorable resolution of Abundo’s election protest, he was
relegated to being an ordinary constituent and private citizen since his
As a result of the reversal, the court declared Abundo eligible for another opponent, as presumptive victor in the 2004 elections, was occupying the
term as mayor to which he was duly elected in the May 2010 elections and mayoralty seat. While awaiting the pendency of the election protest, Abundo
immediately reinstated him to such position. Emeterio Tarin and Cesar ceased from exercising power or authority over the constituents of Viga and
Cervantes were also ordered to immediately vacate the positions of mayor cannot be said to have retained title to the mayoralty office as he was at that
and vice mayor of Viga, Catanduanes, respectively, and to revert to their time not the duly proclaimed winner.
original positions of vice mayor and first councilor, respectively, upon receipt
of this decision which is immediately executory. The court likewise lifted the It stressed that Abundo’s case differs from other cases involving the “effects
temporary restraining order (TRO) it issued on July 3, 2012 to restrain the of an election protest because while Abundo was the winning candidate, he
Comelec from enforcing the above-mentioned resolutions. was the one deprived of his right and opportunity to serve his constitutents.”
Issue: Whether or not Abundo is eligible for another term in 2010 as mayor Abundo, Sr., vs. COMELEC, [G.R. No.160427, January 8, 2013]
(to which he was duly elected in the May 2010 elections), notwithstanding
the fact he that was eventually declared the winner of the 2004 mayoralty To summarize, hereunder are the prevailing jurisprudence on issues affecting
electoral contest and assumed office from May 9, 2006 until the end of the consecutiveness of terms and/or involuntary interruption, viz:
2004-2007 term on June 30, 2007. 1. When a permanent vacancy occurs in an elective position and the official
merely assumed the position pursuant to the rules on succession under
Held: Both the 1987 Constitution and the Local Government Code provide the LGC, then his service for the unexpired portion of the term of the
that the three-term limit rule constitutes a disqualification to run for an replaced official cannot be treated as one full term as contemplated
elective local office when an official has been elected for three consecutive under the subject constitutional and statutory provision that service
terms in the same local government post and has fully served those three cannot be counted in the application of any term limit (Borja, Jr.). If the
consecutive terms. official runs again for the same position he held prior to his assumption
of the higher office, then his succession to said position is by operation
Abundo did not serve three consecutive terms as mayor of Viga, of law and is considered an involuntary severance or interruption
Catanduanes due to an actual involuntary interruption during the 2004-2007 (Montebon).
term. This was because he assumed the mayoralty post only on May 9, 2006 2. An elective official, who has served for three consecutive terms and who
and served a little over one year and one month only. Thus, “the two-year did not seek the elective position for what could be his fourth term, but
period which his opponent, Torres, was serving as mayor should be later won in a recall election, had an interruption in the continuity of the
considered as an interruption which effectively removed Abundo’s case from official’s service. For, he had become in the interim, i.e., from the end of
the ambit of the three-term limit rule. the 3rd term up to the recall election, a private citizen (Adormeo and
Socrates).
3. The abolition of an elective local office due to the conversion of a The application of the hold-over principle preserves continuity in the
municipality to a city does not, by itself, work to interrupt the incumbent transaction of official business and prevents a hiatus in government pending
official’s continuity of service (Latasa). the assumption of a successor into office. As held in Topacio Nueno v.
4. Preventive suspension is not a term-interrupting event as the elective Angeles, cases of extreme necessity justify the application of the hold-over
officer’s continued stay and entitlement to the office remain unaffected principle.
during the period of suspension, although he is barred from exercising
the functions of his office during this period (Aldovino, Jr.).
5. When a candidate is proclaimed as winner for an elective position and Vacancies and Succession
assumes office, his term is interrupted when he loses in an election - Permanent Vacancies; Grounds
protest and is ousted from office, thus disenabling him from serving what - Temporary Vacancies in the Office of the Local Chief Executive
would otherwise be the unexpired portion of his term of office had the - Approval of Leave of Absences
protest been dismissed (Lonzanida and Dizon). The break or interruption
need not be for a full term of three years or for the major part of the 3- Vacancies and Succession
year term; an interruption for any length of time, provided the cause is
involuntary, is sufficient to break the continuity of service (Socrates, citing SECTION 44. Permanent Vacancies in the Offices of the Governor, Vice-
Lonzanida). Governor, Mayor, and Vice-Mayor. — (a) If a permanent vacancy occurs in
6. When an official is defeated in an election protest and said decision the office of the governor or mayor, the vice-governor or vice-mayor
becomes final after said official had served the full term for said office, concerned shall become the governor or mayor. If a permanent vacancy
then his loss in the election contest does not constitute an interruption occurs in the offices of the governor, vice-governor, mayor, or vice-
since he has managed to serve the term from start to finish. His full mayor, the highest ranking sanggunian member or, in case of his
service, despite the defeat, should be counted in the application of term permanent inability, the second highest ranking sanggunian member,
limits because the nullification of his proclamation came after the shall become the governor, vice-governor, mayor or vice-mayor, as the
expiration of the term (Ong and Rivera). case may be. Subsequent vacancies in the said office shall be filled
automatically by the other sanggunian members according to their
ranking as defined herein.
“Hold-over” Principle (b)If a permanent vacancy occurs in the office of the punong barangay,
Sec. 5, RA 9164 the highest ranking sanggunian barangay member or, in case of his
Sambarani vs. COMELEC (2004) – As the law now stands, the language of permanent inability, the second highest ranking sanggunian member,
Section 5 of RA 9164 is clear. It is the duty of this Court to apply the plain shall become the punong barangay.
meaning of the language of Section 5. Since there was a failure of elections in (c)A tie between or among the highest ranking sanggunian members
the 15 July 2002 regular elections and in the 13 August 2002 special shall be resolved by the drawing of lots.
elections, petitioners can legally remain in office as barangay chairmen of (d)The successors as defined herein shall serve only the unexpired terms
their respective barangays in a hold- over capacity. They shall continue to of their predecessors.
discharge their powers and duties as punong barangay, and enjoy the rights
and privileges pertaining to the office. True, Section 43(c) of the Local For purposes of this Chapter, a permanent vacancy arises when an
Government Code limits the term of elective barangay officials to three years. elective local official fills a higher vacant office, refuses to assume office,
However, Section 5 of RA 9164 explicitly provides that incumbent barangay fails to qualify, dies, is removed from office, voluntarily resigns, or is
officials may continue in office in a hold over capacity until their successors otherwise permanently incapacitated to discharge the functions of his
are elected and qualified. office.

For purposes of succession as provided in this Chapter, ranking in the suspension from office, the vice-governor, city or municipal vice-mayor,
sanggunian shall be determined on the basis of the proportion of votes or the highest ranking sangguniang barangay member shall
obtained by each winning candidate to the total number of registered automatically exercise the powers and perform the duties and functions
voters in each district in the immediately preceding local election. of the local chief executive concerned, except the power to appoint,
suspend, or dismiss employees which can only be exercised if the period
SECTION 45. Permanent Vacancies in the Sanggunian. — (a) Permanent of temporary incapacity exceeds thirty (30) working days.
vacancies in the sanggunian where automatic succession provided above (b)Said temporary incapacity shall terminate upon submission to the
do not apply shall be filled by appointment in the following manner: appropriate sanggunian of a written declaration by the local chief
(1)The President, through the Executive Secretary, in the case of the executive concerned that he has reported back to office. In cases where
sangguniang panlalawigan and the sangguniang panlungsod of highly the temporary incapacity is due to legal causes, the local chief executive
urbanized cities and independent component cities; concerned shall also submit necessary documents showing that said
(2)The governor, in the case of the sangguniang panlungsod of legal causes no longer exist. aisa dc
component cities and the sangguniang bayan; (c)When the incumbent local chief executive is traveling within the
(3)The city or municipal mayor, in the case of sangguniang barangay, country but outside his territorial jurisdiction for a period not exceeding
upon recommendation of the sangguniang barangay concerned. three (3) consecutive days, he may designate in writing the officer-in-
(b)Except for the sangguniang barangay, only the nominee of the charge of the said office. Such authorization shall specify the powers and
political party under which the sanggunian member concerned had functions that the local official concerned shall exercise in the absence of
been elected and whose elevation to the position next higher in rank the local chief executive except the power to appoint, suspend, or
created the last vacancy in the sanggunian shall be appointed in the dismiss employees.
manner hereinabove provided. The appointee shall come from the same (d)In the event, however, that the local chief executive concerned fails or
political party as that of the sanggunian member who caused the refuses to issue such authorization, the vice-governor, the city or
vacancy and shall serve the unexpired term of the vacant office. In the municipal vice-mayor, or the highest ranking sangguniang barangay
appointment herein mentioned, a nomination and a certificate of member, as the case may be, shall have the right to assume the powers,
membership of the appointee from the highest official of the political duties, and functions of the said office on the fourth (4th) day of absence
party concerned are conditions sine qua non, and any appointment of the said local chief executive, subject to the limitations provided in
without such nomination and certification shall be null and void ab subsection (c) hereof. cd i
initio and shall be a ground for administrative action against the official (e)Except as provided above, the local chief executive shall in no case
responsible therefor. authorize any local official to assume the powers, duties, and functions of
(c)In case the permanent vacancy is caused by a sanggunian member the office, other than the vice-governor, the city or municipal vice-mayor,
who does not belong to any political party, the local chief executive shall, or the highest ranking sangguniang barangay member, as the case may
upon recommendation of the sanggunian concerned, appoint a qualified be.
person to fill the vacancy.
(d)In case of vacancy in the representation of the youth and the SECTION 47.Approval of Leaves of Absence. — (a) Leaves of absence of
barangay in the sanggunian, said vacancy shall be filled automatically by local elective officials shall be approved as follows:
the official next in rank of the organization concerned. (1)Leaves of absence of the governor and the mayor of a highly
urbanized city or an independent component city shall be approved by
SECTION 46. Temporary Vacancy in the Office of the Local Chief Executive. the President or his duly authorized representative;
— (a) When the governor, city or municipal mayor, or punong barangay (2)Leaves of absence of vice-governor or a city or municipal vice-mayor
is temporarily incapacitated to perform his duties for physical or legal shall be approved by the local chief executive concerned: Provided, That
reasons such as, but not limited to, leave of absence, travel abroad, and the leaves of absence of the members of the sanggunian and its
employees shall be approved by the vice-governor or city or municipal - Second, if the official refuses to assume the office. Yes, that is also
vice-mayor concerned; cdtai permanent vacancy but it doesn't happen.
(3)Leaves of absence of the component city or municipal mayor shall be - Third, if the local official fails to qualify. A local election is conducted
approved by the governor; and in the month of May, second Monday of May to synchronize with the
(4)Leaves of absence of a punong barangay shall be approved by the city national election. Few days after the election, the official will be
or municipal mayor: Provided, That leaves of absence of sangguniang proclaimed as the duly elected local official but he will assume the
barangay members shall be approved by the punong barangay. office only on June 30, noon of June 30. What if noon of June 30 the
(b)Whenever the application for leave of absence hereinabove specified official had been disqualified – for this reason he can not take his
is not acted upon within five (5) working days after receipt thereof, the oath. Let us suppose the disqualification had been final and
application for leave of absence shall be deemed approved. executory. So that is a possible situation where the local official fails
to qualify.
The Rules on Vacancies and Successions - Obviously, if the local official dies or removed from office.
Foremost, you have to take note of the instances that would constitute - If he resign or otherwise permanently incapacitated to discharge the
permanent vacancy. What are the instances that would constitute permanent functions of his office. It has nothing to do with physical inability not
vacancy both in the office of the local chief executive, the vice local chief unless the same physical inability or incapacity also permanently
executive and the members of the sanggunian? incapacitates the official. So this is incapacity to discharge the
function of the office. Possible situation: the mayor has been
Ranking is also important because in the absence of the vice local chief kidnaped and nobody knows whether he is still alive. That is
executive, in a given situation, he is suppose to occupy a higher position and permanent incapacity to discharge the function of his office. Kung
by reason of some inability or disqualification in the part of the vice local mu balik then it is proven that he was just temporarily away. It is not
chief executive or that there is no vice local chief executive, then the highest established that he is already dead but it is established that his
ranking sanggunian shall occupy the position of the vice local chief executive. whereabouts can not anymore be located so that may be a case of
So it is important that in every sanggunian there should be a ranking. How permanent incapacity and not a case of physical incapacity.
do we rank the members of the sanggunian?
Rules on Ranking
If you are to go over the rules on succession, it is also important to take note How do you rank? This is very important. The Code is very specific: Votes
of the meaning of the last vacancy in the sanggunian. Look at Sec. 45 of obtained in proportion to the Total registered voters in each district in areas
the LGC, it starts with where the rule on succession will no longer apply that where there is more than 1 legislative district. You have total registered
actually refers to the last position in the sanggunian to be filled up – the last voters in the district so no problem with a LGU when there is only 1 district
vacancy in the sanggunian, we ask the question, ”Who caused the last because the total registered voters will be the same number. This becomes
vacancy in the sanggunian?” That's also important in solving problems on relevant in highly urbanized cities for example where there are more than 1
succession. district like the case of Cebu City – you have North and South district. Even in
the election, if you obtained the highest number of votes of the 16
Take note of this factors that you should consider. (Master Sec. 44 and 45) councillors, it does not necessarily mean that you are the no.1 councilor
because your vote will still have to factor in the total registered voters in your
Instances of Permanent Vacancy district. Votes obtained over Total registered voters in each district not votes
- If the official fills in a higher vacant position, so the vice-mayor for cast. That was the argument in Victoria vs. COMELEC kay iya gi multiply sa
example fill-up the vacant position of the mayor, then there is a votes obtained ang votes cast, you don't consider the votes cast.
permanent vacancy in the office of the vice-mayor. That is by
operation of law.
In case of a tie though, this is interesting, the tie is to be resolved by the member who caused the last vacancy is an independent? The Sanggunian
mere drawing of lots because there has to be a ranking. concerned recommends to the appointing authority. Who are the appointing
authorities? In the case of province, highly urbanized city and independent
Illustration. This is a simple municipality where you have a Mayor, Vice- component city, you have the Office of the President.
Mayor and 8 Councilors. The letters on the right side represents the political
party. So Mayor X belongs to XXX party and Vice-Mayor Y belongs to PPP Two requirements: Recommendation by the Sanggunian and then
party. Suppose Mayor X dies, so permanent vacancy. Vice-Mayor Y obviously appointment by the President through the Executive Secretary. If it’s a
will become the Mayor. Who will be the Vice-Mayor now to replace Y? A is municipality or a component city, then to the Governor. If there is a political
the highest ranking Sanggunian member so A shall become the Vice-Mayor. party, you have the requirement of nomination coupled with the certification
B, of course will occupy the position of A and now considered as the highest of the political party – that he is a bona fide member of the political party
ranking Sanggunian member. There will now be a vacancy in the position left signed by the highest official of the party. So the manner by which it will be
by H, the last member of the Sanggunian. If you apply Sec. 45, there is no certified is through the certification signed by the highest official of the
more rule on succession because no one is below the position of H. We will political party. In the case of barangay, it is irrelevant to determine the
now fill-up the vacancy in the last position of the Sanggunian. How will you political party because barangay election is non-partisan. Barangay officials
do that? are not allowed to run under pickets of political parties. The rule is very
simple, the Sanggunian will just recommend and the mayor will appoint.
We resolve this by first identifying who caused the last vacancy. The rule says,
if the official who caused the last vacancy is a member of a political party Cases:
then his political party shall nominate – there shall be a nomination plus Navarro vs. Court of Appeals, 355 SCRA 672 – The reason behind the right
certification by the political party. Anyone can be nominated by the political given to a political party to nominate a replacement where a permanent
party for as long as that person will qualify as a Councilor. Who caused the vacancy occurs in the Sanggunian is to maintain the party representation as
last vacancy? Applying the docrine of Navarro vs. CA, A caused the last willed by the people in the election.
vacancy in this case. Not H. There is a good reason for coming up with such
interpretation. Why A? If you say that H caused the last vacancy then the Damasen vs. Tumamao, GR No. 173165, February 17, 2010
political party of H will then be allowed to nominate somebody coming from It is undisputed that the law applicable to herein petition is Sec. 45(b) of RA
his party and if appointed by the Governor, since this is a component city, 7160, which provides for the rule on succession in cases of permanent
then there will how many PPP councilors now? Instead of 3 there will now be vacancies in the Sanggunian, to wit: xxx
4. According to the SC, that is not a good interpretation because it is
important that an interpretation should be made that will maintain the party As can be gleaned from the above provision, the law provides for conditions
representation in the Sanggunian. for the rule of succession to apply: First, the appointee shall come from the
same political party as that of the Sanggunian member who caused the
Since it was KKK party (A's) which lost a representative in the Sanggunian by vacancy. Second, the appointee must have a nomination and a Certificate of
reason of A's occupying the position of the Vice-Mayor then it is prudent that Membership from the highest official of the political party concerned.
KKK party should be the one which should nominate and let a KKK member
occupy that position of the Sanggunian. To maintain party representation Quite clearly, from the tenor of the letter, it appears that the membership of
take note of that because you don't see that by just looking at the codal Damasen still had to be approved by the LDP National Council. Thus,
provision. notwithstanding Damasen’s procurement of a Certificate of Membership
from LDP Provincial Chairman Balauag, to this Court’s mind, the same merely
Let's have another situation. Mayor X dies, found dead in a beach resort started the process of his membership in the LDP, and it did not mean
somewhere in the Northern part of Cebu. What's the rule if the Sanggunian automatic membership thereto.
limitations. Acting is by law, OIC is by appointment or designation. What
Svetlana Jalosjos vs. COMELEC, June 25, 2013 about the power of the OIC distinguished from the acting? In the case of the
acting, he will exercise all the powers and functions of the local chief
Instances of Temporary Vacancy executive except the power to appoint, suspend or dismiss unless the
There are four instances of temporary vacancy. In this situation, we're looking temporary incapacity exceeds 30 days. But in the case of an OIC, this is
at officials who will simply hold the office in an acting capacity. It is in here important, his powers and functions will first be determined by the letter
where we will also talk about the restrictions on the functions or powers that designating him as the OIC. When the local chief executive designates an
an acting official may exercise. If the official takes a leave of absence, travel OIC, his powers and functions will be stated in the appointment. But if there
abroad regardless of number of days, then there is still temporary vacancy. is no OIC appointment because the local chief executive is not required to
Suspension from office is construed as temporary or causing temporary appoint an OIC every time he leaves, its alright. But according to the rule, on
vacancy. Other temporary incapacity for physical or legal reasons. Let's take a the 4th day when the local chief executive has not designated an OIC, the
look at the following rules. It's not difficult to remember this except the Vice-Mayor or the Vice-Gov will assume the powers and functions as a matter
extent of the powers: In case of temporary vacancy, the vice local chief of right.
executive or the highest ranking Sanggunian member shall
automatically exercise the powers and functions of the local chief Who may be appointed as OIC? Can anyone be appointed as OIC? Binuang ni
executive. This is an important rule: An acting Mayor or acting Governor codal provision. Tanawa ang paragraph sa Sec... Officer-in-Charge to be
will exercise all the powers and functions of the local chief executive designated by the local chief executive traveling within the country but
except the powers to appoint, suspend or dismiss employees. Exception outside his territorial jurisdiction not exceeding 3 days. The OIC who can only
to the exception is when the temporary vacancy exceeds 30 days in be the Vice or the highest ranking Sanggunian member of the Sanggunian
which case the acting Mayor or Acting Governor will now be allowed to barangay shall perform the powers and functions may be delegated to him
appoint- not sure with suspension or dismissal but since the coma is except the power to appoint, suspend and dismiss employees.
after the enumeration of appoint, suspend or dismiss then that will also
apply. The 30-day incapacity is provided there because primarily the acting Approval of Leave of Absence: President in case of local chief executive of
Mayor or Governor must also be given the power to exercise in order not to province, highly urbanized city and independent component city. If Vice, then
prejudice the public service. If mu dismiss ka in order not to prejudice public the local chief executive. If Sanggunian, then the Vice. By the Governor in
service, that can be done. But I think this is applicable to appointing power. In case of component city and municipal mayors. By the Mayor in case of
reality ba. Legally of course, all this 3 powers may now be exercised if the Punong Barangay and Punong Barangay in case of Sangguniang Barangay
incapacity exceeds 30 days. In the case of Pp vs. Bustamante, the acting members. If there is no action applying for the leave of absence, then it is
Mayor solemnized marriage. Was the marriage solemnized by the mere considered approved.
acting Mayor valid? Of course, the power to solemnize marriage is conferred
upon the Mayor under the LGC of 1991. Even if there is temporary vacancy, Cases:
all powers and functions may be exercised by an acting Mayor or acting Gamboa vs. Aguirre (2009) – Being the Acting Governor, the Vice-Governor
Governor and solemnizing marriage is one of these functions. cannot continue to simultaneously exercise the duties of the latter office,
since the nature of the duties of the provincial Governor call for a full-time
The Officer-In-Charge is different from the acting Mayor or acting occupant to discharge them. The creation of a temporary vacancy in the
Governor. Will you be able to distinguish an OIC from an acting office of the Governor creates a corresponding temporary vacancy in the
Mayor/Governor. If the local chief executive travels outside the jurisdiction office of the Vice-Governor whenever the latter acts as Governor by
for not more than 3 days, OIC pwede. Kay if musobra ka 3 days, the Vice will virtue of such temporary vacancy. This event constitutes an "inability" on
act. That is in the matter of how they come to be acting or OIC. The other the part of the regular presiding officer (Vice Governor) to preside during the
important distinction is about the nature of their functions- scope, SP sessions, which thus calls for the operation of the remedy set in Article
49(b) of the Local Government Code — concerning the election of a But dili ang Office of the President maoy maka impose og preventive
temporary presiding officer. The continuity of the Acting Governor's (Vice- suspension- the Governor, Sec. 63. Doesn't make sense. Sangguniang
Governor) powers as presiding officer of the SP is suspended so long as he is Panlalawigan for the municipality and the decision is appealable to the Office
in such capacity. Under Section 49(b) "(i)n the event of the inability of the of the President. For barangay officials, Sangguniang Panglunsod in case of
regular presiding officer to preside at the sanggunian session, the members city and Sangguniang Bayan in case of Municipality and the decision is final
present and constituting a quorum shall elect from among themselves a and executory- no more mode of administrative appeal.
temporary presiding officer."
Important rules and prohibitions
PART IX: DISCIPLINARY ACTIONS during investigation.
Disciplinary Actions Investigation must commence 10 days after the respondent files the answer
The grounds are found in Sec. 60 of the LGC. Disloyalty to the Republic of the and investigation shall be held only in the place where the respondent holds
Philippines, culpable violation of the Constitution, dishonesty, oppression, office. So city official, the city investigator not outside. No investigation
misconduct, commission of offense involving moral turpitude or punishable within 90 days immediately prior to local election and no preventive
by at least prision mayor, abuse of authority, unauthorized absence for 15 suspension shall be imposed within the same period. If a preventive
days consecutive days except in the case of Sangguinian members because suspension has already been imposed, it should be ipso facto lifted on the
they will be disciplined for their failure to attend sessions for 4 consecutive 91st day immediately preceeding election.
sessions or a period provided for in their internal rules of procedure., mere
application of foreign citizenship or residence or immigrant status of another Joson III vs. CA (2006) applied the certain conditions before preventive
country and other grounds as may be provided for by law. suspension may be imposed. There are 3 conditions: (1) the issues must have
already been joined; (2) evidence of guilt is strong and; (3) given the gravity
The last paragraph of Sec. 60 is new in the sense that it was not there under of the offense respondent might influence witnesses or pose a threat to
the old LGC- that is the proper regular court can order the removal of an records or evidence- these are not actually the exact wordings of the Code
elected official if he is being disciplined under Sec. 60. but that is the idea.
Before, the President through the DILG can remove local government When are issues considered joined? When the complaint is filed of course the
officials. Common kaayo na kaniadto- removal by DILG. Karon kutob nlng sa complaint consist of allegations. When these allegations are denied, then
suspension. Let's try to take a look at the offices where we can file the these have been considered or made issues. And they got denied because of
complaint. Lahi ni sa Ombudsman. If we file a complaint for administrative the answer of the respondent.
action against an elective official before the Office of the Ombudsman then
the Ombudsman Law will apply not Sec. 60. So kadtong mga rules of So it's premature to impose preventive suspension if no answer has been files
preventive suspension under the LGC could be 60 (days). yet. It is important to take note of that. It's not similar to our labor law
procedure if we preventively suspend an employee we just send a show
In the case of Ombudsman up to 6 months. Actually, politics may basis ana cause memo... preventive suspension of public officials under the LGC,
guys. Office of the President in the case of elective officials of a province, answer first before preventive suspension. Otherwise, they will be victims of
highly urbanized city and either independent or component city. Libog jud ko political harassment to the prejudice of public service. Issues must have
pagkahimo ani nga provision because later on if we got to Sec. 63, kung already been joined and you add 2 more conditions evidence of guilt must
preventive suspension ang Office of the President kutob ra sa independent be strong and the offense must be grave- if the case is just slapping of face
component city. Mu file ka complaint against an elective official of a for example then it can not be considered as a valid ground for preventive
component city ang imong complaint adto i file sa Office of the President. suspension.
Gihimo diay na ang preventive suspension in order to determine the guilt of
the respondent and the gravity of the offense? The case of Garcia vs Mojica is very interesting. Why? Because then former
mayor Garcia signed a very controversial contract 4-days before the election
Well of course with the hearing, it is for the President, Governor, or the day. It was only discovered by the opposition when Garcia was already re-
Mayor to determine that. The point being that if the Mayor imposes elected. In fact, it came in the news only several weeks after he assumed the
preventive suspension on any other ground because the offense for example office. When sought for administrative sanction, ingon dayon si Alvin nga: oi
is--- then he can assail the preventive suspension. 60 days or 90 days. 60 if I'm already been condoned by the people because they re-elected me. That
there is only one administrative case and if there are several administrative act having been committed during my prior term. Ingon sad dayon ang
cases filed the preventive suspension shall not exceed 90 day if based on the opposition: taka ka lng. The basis or the spirit, the reason behind Aguinaldo
same grounds or grounds already existing and known to the complainant at doctrine is precisely condonation by the people. If the people did not know
the time of the filing of the complaint. Obviously, prior hearing is not a about that misconduct, when they re-elected you, how can they not condone
requirement because preventive suspension is not a penalty. You are not the act when they did not know about it when they re-elected Mayor Garcia.
being removed from an office. You are just being prevented to perform the If the spirit of Aguinaldo doctrine is the re-election is condonation, then it
functions of the office but you have not been separated from the office. Since must presuppose that the people knew of the misconduct and despite that
it is not a penalty, it is for some lawful purpose, then the requirement of due knowledge of the misconduct, they re-elected the same official. Mao na ang
process need not be observed. It can not be a violation of due process. There condonation. How can you condone an act that did not come to you
are certain rights of the respondent as enumerated under Sec. 66. But the knowledge, d ba? If you are the SC, how will you decide the case? Ingon
most important is the effect of penalty of suspension. Three important rules dayon ang SC, bida sad na nga argument oi, logical man na pero come to
here: (1) the penalty of suspension shall not exceed the unexpired term- so if think of it, how will the court determine whether, in fact, the people knew or
he gets re-elected and ang iyang suspension duna pa 10 days kuwang, ayaw did not know about the act of his father? [Ambot d klaro]. Lisod kaau na ba,
na ipa continue nia; (2) it shall not also exceed 6 mons. per administrative ang Court imong pa-determinahon ug nahibaw ba ang mga taw. How will
case and; (3) penalty of suspension is not a bar to candidacy. What is that the court do that? Ask all the voter whether or not they know about the
kind of penalty that may be considered a bar to candidacy? Removal. misconduct? Ingon dayon ang SC, let's not talk about logic here, let's just talk
about the simple rule established in the case of Aguinaldo. That the act was
Aguinaldo Doctrine committed by your, to his term, when that official was re-elected. It does not
Once an elective official had been re-elected and if he committed a matter whether the people actually knew about the misconduct. It is still
misconduct during the prior term, his re-election shall be considered as a considered condonation. The court cannot really determine whether or not
condonation to the party electorate and will effectively remove any the people knew and having knowledge, still re-elected the official. It is
administrative culpability. Take note however, that this doctrine applies only impossible, according to the Court, to determine actual or lack of knowledge
to administrative cases for misconduct and the official may still be held by the electorates. The fact that the misconduct was committed during the
criminally or civilly liable for the same act. You have studied the law on public prior term, Aguinaldo doctrine applies, whether or not the people knew
officers, I think you remember the so-called three-fold liability rule- a single about the misconduct.
act may amount to a misconduct as a ground for administrative case; the
same act may also be considered as a criminal offense; or even a Aguinaldo doctrine does not apply to an appointed official who committed
ground/basis for civil liability. So single act, three-fold liability rule may apply. misconduct while in his appointive office and who was later on elected into
And why is it important to know the three-fold liability rule? Because the office. Aguinaldo case mentioned of a re-election. Di man na re-election if
Aguinaldo doctrine applies only to the administrative aspect of the case. So when you were still an appointed official, then you committed misconduct,
even if he gets re-elected and if a criminal case will be filed, even if the and then later on you get elected, so di na xa re-elected. Re-election is the
misconduct has been committed during the prior term, that will still continue. term used in Aguinaldo. Aguinaldo doctrine applies only to administrative
This same rule applies to civil case. case and does not apply to criminal and civil cases, if any.
us to only uphold one and strike down the other." The two laws may be
Administrative appeals – Office of the President in case of decision of the, reconciled by understanding the primary jurisdiction and concurrent
you can look this up in the codal provision. There is execution pending jurisdiction of the Office of the Ombudsman.
appeal in the LGC which is now similar in the Office of the Ombudsman.
Although niadto sa Office of the Ombudsman ilang i-distinguish ang penalty The Ombudsman has primary jurisdiction to investigate any act or omission
[Buencamino vs CA]. Duna nay uniform rules on administrative cases in the of a public officer or employee who is under the jurisdiction of the
civil service. Decisions of the Ombudsman are immediately executory even Sandiganbayan. The Sandiganbayan’s jurisdiction extends only to public
pending appeal. Of course, your Sangguniang Barangay of Don Mariano officials occupying positions corresponding to salary grade 27 and higher.22
Marcos vs Martinez , only the court, could be RTC if the decision became final
there or CA or the Sadiganbayan, as the case maybe, can remove an elected Consequently, as we held in Office of the Ombudsman v. Rodriguez,23 any
official. By virtue of the last paragraph of Sec. 60. act or omission of a public officer or employee occupying a salary grade
lower than 27 is within the concurrent jurisdiction of the Ombudsman and of
Cases: the regular courts or other investigative agencies.24
Salumbides vs. Office of the Ombudsman, GR No. 180917, April 23, 2010 – The
electorate's condonation of the previous administrative infractions of the In administrative cases involving the concurrent jurisdiction of two or more
reelected official cannot be extended to that of the reappointed coterminous disciplining authorities, the body where the complaint is filed first, and which
employees, the underlying basis of the rule being to uphold the will of the opts to take cognizance of the case, acquires jurisdiction to the exclusion of
people expressed through the ballot. In other words, there is neither other tribunals exercising concurrent jurisdiction.25 In this case, the petitioner
subversion of the sovereign will nor disenfranchisement of the electorate to is a Barangay Chairman, occupying a position corresponding to salary grade
speak of, in the case of reappointed coterminous employees. 14.26 Under RA 7160, the sangguniang panlungsod or sangguniang bayan
has disciplinary authority over any elective barangay official.
It is the will of the populace, not the whim of one person who happens to be
the appointing authority, that could extinguish an administrative liability. Since the complaint against the petitioner was initially filed with the Office of
Since petitioners hold appointive positions, they cannot claim the mandate of the Ombudsman, the Ombudsman's exercise of jurisdiction is to the
the electorate. The people cannot be charged with the presumption of full exclusion of the sangguniang bayan whose exercise of jurisdiction
knowledge of the life and character of each and every probable appointee of is concurrent.
the elective official ahead of the latter's actual reelection.
Alejandro vs. Office of the Ombudsman (2013), G.R. No. 173121, April 3, 2013 - PART X: RECALL
The Office of the Ombudsman was created by no less than the
Constitution.18 It is tasked to exercise disciplinary authority over all elective Let's go to recall. If you will be asked to simply define it, simple. A mode of
and appointive officials, save only for impeachable officers. While Section 21 removing an elected official by the people before the end of his term. The
of The Ombudsman Act19 and the Local Government Code both provide for ground for recall is simply loss of trust and confidence. It is similar to
the procedure to discipline elective officials, the seeming conflicts between removing a Prime Minister by the members of parliament. Who will decide?
the two laws have been resolved in cases decided by this Court.20 The people, of course, because there will be a recall election. There will be no
hearing, of course, whether or not the person to be removed has committed
In Hagad v. Gozo-Dadole,21 we pointed out that "there is nothing in the an offense. Mao btaw na nga most of the time in the past, it had been used
Local Government Code to indicate that it has repealed, whether expressly or by politician to remove candidates or officials who have been electef and
impliedly, the pertinent provisions of the Ombudsman Act. The two statutes who do not belong to their party. If you are the only mayor who had been
on the specific matter in question are not so inconsistent x x x as to compel elected belonging to the opposition and the governor, vice-governor and all
other mayors of the component cities and municipalities belong to the other barangay election and 1 year immediately preceding the barangay election,
party, patay kang mayora ka. Preparatory for assembly (PFA) dayon, that is to will there be a recall election if the subject of a recall is a vice-mayor, then 1
initiate and then of course inig election pun-an etc.....[d na ko kadungog] year after that recall election is an upcoming barangay election? The answer
because of the the Congress in 2004 enacted or pass into law RA 9244, is NO. Mao gani ng gi-ingon that regular election na maoy i-reckon ang
removing PFA as form of initiating recall. Now, there is only 1 mode of immediately preceding 1 year should refer to the same office, the office of
initiating recall and that is by registered voters themselves. You look at RA the official concerned who is the subject of the recall election. In the case, it
9244 pilay percentage of signature required for initiation, just to iniate recall was an SK election that was nearing a recall election involving a member of a
proceeding and there will, of course, be recall election. sitio or municipality basta dili baranagy official.
Effectivity of recall. Very simple, if the official subject of the recall wins in PART XI: HUMAN RESOURCES AND DEVELOPMENT
the recall election, then recall fails because the people have affirmed that Human Resources and Development
they still have trust and confidence of the elected official. But if somebody SECTION 76.Organizational Structure and Staffing Pattern. — Every local
else would win in the recall election, then that is the effect of a recall. Because government unit shall design and implement its own organizational structure
in recall, first the official subject of the recall is an automatic candidate, he and staffing pattern taking into consideration its service requirements and
doesn't have to file a certificate of candidacy, automatic na xa. And then, of financial capability, subject to the minimum standards and guidelines
course, the COMELEC will invite other candidates to participate in the recall prescribed by the Civil Service Commission. aisa dc
election. There are important prohibitions in recall proceedings. The official SECTION 77.Responsibility for Human Resources and Development. — The
cannot resign during recall process. And recall election can only be once chief executive of every local government unit shall be responsible for human
during the term of the official. Recall election, not proceeding, unlike sa resources and development in his unit and shall take all personnel actions in
impeachment, the so-called 1-bar rule in impeachment. It is about the accordance with the constitutional provisions on civil service, pertinent laws,
initiation of the proceeding that is being prohibited in the 1 year against the and rules and regulations thereon, including such policies, guidelines and
same impeachable official. Bisan pa ug walay article of impeachment gi-file sa standards as the Civil Service Commission may establish: Provided, That the
senate when a complaint had already been filed before the house of local chief executive may employ emergency or casual employees or laborers
representatives duly filed and referred to the committee of justice or the paid on a daily wage or piecework basis and hired through job orders for
proper committee then since Congress has acted on it, then we say that local projects authorized by the sanggunian concerned, without need of
impeachment proceeding had already been initiated. That rule will not apply approval or attestation by the Civil Service Commission: Provided, further,
here, pwede ka ka-initiate several times during the term of of the local That the period of employment of emergency or casual laborers as provided
official. But maybe for 1 reason or another dili mo-prosper and then there in this section shall not exceed six (6) months.
will be no scheduling of recall election, then wala. Second initiation of recall The Joint Commission on Local Government Personnel Administration
proceeding will not be barred. Take note: ELECTION NOT PROCEEDING. organized pursuant to Presidential Decree Numbered Eleven Hundred thirty-
Another important rule, no recall election shall take place within 1 year from six (P.D. No. 1136) is hereby abolished and its personnel, records, equipment
the date of the official's assumption to office and 1 years also immediately and other assets transferred to the appropriate office in the Civil Service
preceding a regular election. This regular election refers to that election Commission.
affecting the office of the official concerned. So, 3 years man ang term of SECTION 78.Civil Service Law, Rules and Regulations, and Other Related
office sa elective official. First year sa iyang term, 12:01 of June 30 up to 12 Issuances. — All matters pertinent to human resources and development in
noon of June 30 the following year, kana na period, no recall election, dili local government units shall be governed by the civil service law and such
iniation, should take place. Karon na period up to noon June 30, 2011 , no rules and regulations and other issuances promulgated pursuant thereto,
recall election should take place. 2011-2012, pwede, that's the second term. unless otherwise specified in this Code. cdasia
And then, 12:01 of June 30, 2012 up to 2013, 1 year before a local election, SECTION 79.Limitation on Appointments. — No person shall be appointed in
no recall election shall take place. It may happen therefore that there will be a the career service of the local government if he is related within the fourth
civil degree of consanguinity or affinity to the appointing or recommending (d) Violation of other existing civil service law, rules and regulations.
authority.
Accordingly, the appointments of the private respondents may only be
Practice of profession is another major concern in local government law. recalled on the above-cited grounds. And yet, the only reason advanced by
May local officials practice their profession? All local chief executives, so we the petitioner to justify the recall was that these were "midnight
are referring to the mayor, governor, the punong-barangay cannot practice appointments." The CSC correctly ruled, however, that the constitutional
profession nor engage in any occupation other than the exercise of their prohibition on so-called "midnight appointments," specifically those made
functions as local chief executives. Profession ba ng naa kai regular program within two (2) months immediately prior to the next presidential elections,
sa radio? Or di ba na occupation? It's a full-time job, that's essence of the applies only to the President or Acting President.
provision. If you are a local chief executive, you should focus all your
attention, devote all your time to being the chief executive. SK member can People vs. Toledano, 332 SCRA 210 (2000) - It is indeed a fundamental
practice profession, their presiding officer, the vice-mayor is considered a principle of administrative law that administrative cases are independent
member of sangguniang panlalawigan. YES, the members of sangguniang from criminal actions for the same act or omission. 7 Besides, the reliance
can practice their profession, they can also engage in any occupation, ang made by respondent judge on the re-election of private respondent as
prohibition lng : 1) dili pwede during session hours, with limitations though, Kagawad in the May 1992 election so as to warrant the dismissal of the
as what you codal provision on grounds of conflict of interests. Doctors of information filed against him, citing Aguinaldo vs. Santos 8 is misplaced. The
medicine can practice profession, but only in case of emergency, provided ruling in said case which forbids the removal from office of a public official
that he does not receive compensation. for administrative misconduct committed during a prior term, finds no
application to criminal cases, pending against said public officer.
Cases:
De Rama vs. Court of Appeals (2001) - It has been held that upon the issuance PART XII: LOCAL LEGISLATIONS
of an appointment and the appointee's assumption of the position in the civil
service, "he acquires a legal right which cannot be taken away either by Local legislative bodies. Forum, majority of all members. Very common
revocation of the appointment or by removal except for cause and with requirement. They can be compelled, in fact, an arrest order may be issued by
previous notice and hearing."17 Moreover, it is well-settled that the person the sangguniang and empower another member of the sangguniang with the
assuming a position in the civil service under a completed appointment help of police to arrest a member of a sangguniang in order to compel him
acquires a legal, not just an equitable, right to the position. This right is to attend the session. That's more or less similar to our congressional body,
protected not only by statute, but by the Constitution as well, which right attendance may be compelled. Take note that attendance may be compelled
cannot be taken away by either revocation of the appointment, or by in so far as members are concerned.
removal, unless there is valid cause to do so, provided that there is previous
notice and hearing. In the BAR exam, is has been asked whether sangguniang has the inherent
power to issue subpoena to compel the attendance of a person who is not a
Section 20 of Rule VI (of the Revised Administrative Code) also provides: member of the sanggunian. And in case that person refuses to obey the
Sec. 20. Notwithstanding the initial approval of an appointment, the subpoena, may the sanggunian cite that person in contempt. DILI. You know
same may be recalled on any of the following grounds: of course the power to issue subpoena and cite a person in contempt, those
(a) Non-compliance with the procedures/criteria provided in the powers are essentially judicial. So, kun essentially judicial, unsa man ang
agency's Merit Promotion Plan; meaning? Kun essentially judicial, agencies that do not belong to the
(b) Failure to pass through the agency's Selection/Promotion Board; judiciary or courts may only be allowed to issue subpoena and/or cite a
(c) Violation of the existing collective agreement between person in contempt if so given that power by Congress. Kinahanghlan i-
management and employees relative to promotion; or delegate sad na xa. The LGC, being the repository of the powers and
functions of the sangguniang has not provided for that power. Suppose the period of 30 days, it shall be considered as having been approved. 30 days
LGC has provided for that power? Pwede na. But it has not. Sir, ang CA ug man na nya mo-take effect man kha ng ordinance after 10 days? Really, it will
House of Rep mak-issue man ug subpoena. Ngano man? Kai national take effect. While under review, the ordinance should be implemented
government vested with original power and it is essential in lawmaking. already. Unya sir kun ang reviewing sangguniang declares that it is not in
Coercive power of the sangguniang applies only to members of the conformity with law, what will happen? Of course, the ordinance will not be
sangguninag. In fact arrest order maybe issued but seldom practiced. An implemented anymore. Remember there is a penalty and a ground for
ordinance may grant power that has not been granted by the LGC. disciplinary action if you insist on implementing an ordinance that is already
disapproved. Sir, pila man na usually number of days? To tell you frankly, it
Let's go to local legislation. You should be able to distinguish ordinance can even be a year ang review. Sir, 30 days man ang gi-ingon. Take note, it
from resolution. Ordinance has the force and effect of law. Resolution, a mere say if the reviewing body has not acted on it. We have argued this already in
sentiment of the sangguniang, temporary in character. Ordinance, 3 readings Cebu City that the fact that a barangay ordinance had already been referred
required. Resolution, 2 readings only. Approval of ordinance, more or less to the committee, that's already action nya kun madugai na didto sa
similar to that of Congress. Sangguniang, the administrative body will pass committee, di na na kwentahon ang 30 days. Another concern, what
the ordinance and it will have to be signed by the local chief executive within ordinance should be published? Ordinances may or may not be published
the period of 15 days in the case of province and highly urbanized cities and but the Code requires that if the ordinance, which is actually the usual
10 days for others within which to sign the ordinance for it to become a valid situation, carries a penal provision or it has a penalty clause, it is mandatory
ordinance. that it should be published in a newspaper of general circulation. Publication
of ordinances with penalties is a requirement because it is obviously a
The distinction between the grounds for veto with the local chief executive requirement of due process.
and the grounds for review by the other sangguniang. Veto by the chief local
executive – ultra vires and prejudicial to public welfare. Review by the mother Cases:
sangguniang – ultra vires. Pero kun ordinance of barangay reviewed by a La Carlota City vs. Atty. Rex Rojo – This case is about the resignation of an
municipality or city, although essentially mura lng ug ultra vires – whether or elected SP member to assume the office of the SP Secretary. (perhaps,
not in conformity with ordiance or whether or not in conformity with law. because SP secretary is entitled to security of tenure) In the LGC, resignation
of an elective official may be done in open session of the sanggunian,
Rules on veto. Who can make item veto? You know of course item veto, no? provided there is a quorum. The issue arise as to the validity of the
Sa president duna xa item veto sa local chief executive. Of course item veto resignation, since it is argued that there was no quorum in the session when
applies to appropriation ordinance or an ordinance that creates a public the resignation was tendered.
debt. Pareha ra sa president. Pero the punong barangay does not have a veto Held: RA 7160 clearly states that the Sangguniang Panlungsod "shall be
power. composed of the city vice-mayor as presiding officer, the regular sanggunian
members, the president of the city chapter of the liga ng mga barangay, the
Effectivity of ordinance – 10 days unless otherwise so provided by the president of the panlungsod na pederasyon ng mga sangguniang kabataan,
ordinance. What is the effect of the review mechanism by the mother and the sectoral representatives, as members." Black’s Law Dictionary defines
sangguniang to the effectivity? Like for example ordinance of a barangay, di "composed of" as "formed of" or "consisting of." As the presiding officer, the
ba review mechanism it will be submitted to the mother sangguniang vice-mayor can vote only to break a tie. In effect, the presiding officer votes
panlungsod or sangguniang bayan for review on the ground whether it is in when it matters the most, that is, to break a deadlock in the votes. Clearly,
conformity with the ordinance of that municipality of city, as the case may be, the vice-mayor, as presiding officer, is a "member" of the Sangguniang
or whether it is in conformity with law. Question is unsa man ang ordinance Panlungsod considering that he is mandated under Section 49 of RA 7160 to
mo-take effect for in meantime that it is being reviewed? Kai ni-ingon bya vote to break a tie. To construe otherwise would create an anomalous and
ang codal provision if the mother sangguniang has not acted on it within a
absurd situation where the presiding officer who votes to break a tie during initiative and referendum. There are certain limitations, we go to Sec. 120 and
a Sanggunian session is not considered a "member" of the Sanggunian. you have the limitation in Sec. 125. If an ordinance can be approved through
a system of initiative and referendum, the ordinance cannot be repealed,
In the same manner, a quorum of the Sangguniang Panlungsod should be modified or amended by sangguniang concerned within a period of 6
computed based on the total composition of the Sangguniang Panlungsod. months from the date of the approval. It may amended, modified or repealed
In this case, the Sangguniang Panlungsod of La Carlota City, Negros by the sangguniang within 3 years thereafter by a vote of ¾ of all its
Occidental is composed of the presiding officer, ten (10) regular members, members. After that, after 3 years, it will be the usual rule, majority vote. Mao
and two (2) ex-officio members, or a total of thirteen (13) members. A na ang effect. Accelerating ang iyang limitation. First, the sangguniang
majority of the 13 "members" of the Sangguniang Panlungsod, or at least cannot amend which became so by reason of initiative within a period of 6
seven (7) members, is needed to constitute a quorum to transact official months, after 6 months and for a period of 3 years, pwede na ma-amend but
business. Since seven (7) members (including the presiding officer) were mag-require ug ¾ votes. Inig lapas ug 3 years, it can be amended now just
present on the 17 March 2004 regular session of the Sangguniang like any other ordinance, it would only require majority vote.
Panlungsod, clearly there was a quorum such that the irrevocable resignation
of respondent was validly accepted. Local Initiative and Referendum
SECTION 120.Local Initiative Defined. — Local initiative is the legal process
whereby the registered voters of a local government unit may directly
NORECO vs. City of Dumaguete (1987) – There is no express provision either
propose, enact, or amend any ordinance. aisa dc
in the 1973 Constitution or in the Local Government Code (Batas Pambansa
Blg. 337) granting local legislative bodies, the power to subpoena witnesses SECTION 121.Who May Exercise. — The power of local initiative and
and the power to punish non-members for contempt. Absent a constitutional referendum may be exercised by all registered voters of the provinces, cities,
or legal provision for the exercise of these powers, the only possible municipalities, and barangays.
justification for the issuance of a subpoena and for the punishment of
SECTION 122.Procedure in Local Initiative. — (a) Not less than one thousand
non-members for contumacious behavior would be for said power to be
(1,000) registered voters in case of provinces and cities, one hundred (100) in
deemed implied in the statutory grant of delegated legislative power.
case of municipalities, and fifty (50) in case of barangays, may file a petition
But, the contempt power and the subpoena power partake of a judicial
with the sanggunian concerned proposing the adoption, enactment, repeal,
nature. They cannot be implied in the grant of legislative power. Neither
or amendment of an ordinance.
can they exist as mere incidents of the performance of legislative functions.
To allow local legislative bodies or administrative agencies to exercise these (b)If no favorable action thereon is taken by the sanggunian concerned
powers without express statutory basis would run afoul of the doctrine of within thirty (30) days from its presentation, the proponents, through their
separation of powers. duly authorized and registered representatives, may invoke their power of
initiative, giving notice thereof to the sanggunian concerned. aisa dc
PART XIII: LOCAL INITIATIVE AND REFERENDUM (c)The proposition shall be numbered serially starting from Roman numeral I.
(see Sec. 120 – 127 of the Local Government Code) The COMELEC or its designated representative shall extend assistance in the
formulation of the proposition.
Initiative and referendum – distinction. Initiative, of course, comes from the
people acquired to the sangguniang the concept of referendum is the (d)Two (2) or more propositions may be submitted in an initiative.
sangguniang submits a question to the people, so opposite xa. Initiative of (e)Proponents shall have ninety (90) days in case of provinces and cities, sixty
the people submit to the sangguniang a proposed legislation; referendum, (60) days in case of municipalities, and thirty (30) days in case of barangays,
sagguniang submits to the people a question. Subject matter – can be a from notice mentioned in subsection (b) hereof to collect the required
resolution, actually, not only an ordinance. A resolution can be a subject of
number of signatures. amended, modified or repealed by the sanggunian within three (3) years
thereafter by a vote of three-fourths (3/4) of all its members: Provided, That in
(f)The petition shall be signed before the election registrar, or his designated
case of barangays, the period shall be eighteen (18) months after the
representatives, in the presence of a representative of the proponent, and a
approval thereof. aisa dc
representative of the sanggunian concerned in a public place in the local
government unit, as the case may be. Stations for collecting signatures may SECTION 126.Local Referendum Defined. — Local referendum is the legal
be established in as many places as may be warranted. cd process whereby the registered voters of the local government units may
approve, amend or reject any ordinance enacted by the sanggunian.
(g)Upon the lapse of the period herein provided, the COMELEC, through its
office in the local government unit concerned, shall certify as to whether or The local referendum shall be held under the control and direction of the
not the required number of signatures has been obtained. Failure to obtain COMELEC within sixty (60) days in case of provinces and cities, forty-five (45)
the required number defeats the proposition. days in case of municipalities and thirty (30) days in case of barangays.
(h)If the required number of signatures is obtained, the COMELEC shall then The COMELEC shall certify and proclaim the results of the said referendum.
set a date for the initiative during which the proposition shall be submitted to
SECTION 127.Authority of Courts. — Nothing in this Chapter shall prevent or
the registered voters in the local government unit concerned for their
preclude the proper courts from declaring null and void any proposition
approval within sixty (60) days from the date of certification by the COMELEC,
approved pursuant to this Chapter for violation of the Constitution or want of
as provided in subsection (g) hereof, in case of provinces and cities, forty-five
capacity of the sanggunian concerned to enact the said measure.
(45) days in case of municipalities, and thirty (30) days in case of barangays.
The initiative shall then be held on the date set, after which the results
thereof shall be certified and proclaimed by the COMELEC.
Garcia vs. COMELEC, 237 SCRA 279 (1994) – The Constitution clearly includes
SECTION 123.Effectivity of Local Propositions. — If the proposition is approved not only ordinances but resolutions as appropriate subjects of a local
by a majority of the votes cast, it shall take effect fifteen (15) days after initiative. Section 32 of Article VI provides in luminous language: "The
certification by the COMELEC as if affirmative action thereon had been made Congress shall, as early as possible, provide for a system of initiative and
by the sanggunian and local chief executive concerned. If it fails to obtain referendum, and the exceptions therefrom, whereby the people can directly
said number of votes, the proposition is considered defeated. acd propose and enact laws or approve or reject any act or law or part thereof
passed by the Congress, or local legislative body . . ." An act includes a
SECTION 124.Limitations on Local Initiative. — (a) The power of local initiative
resolution.
shall not be exercised more than once a year.
(b)Initiative shall extend only to subjects or matters which are within the legal Contrary to the submission of the respondents, the subsequent enactment of
powers of the sanggunian to enact. the Local Government Code of 1991 which also dealt with local initiative did
not change the scope of its coverage. More specifically, the Code did not
(c)If at any time before the initiative is held, the sanggunian concerned
limit the coverage of local initiatives to ordinances alone. Section 120,
adopts in toto the proposition presented and the local chief executive
Chapter 2, Title IX Book I of the Code cited by respondents merely defines
approves the same, the initiative shall be cancelled. However, those against
the concept of local initiative as the legal process whereby the registered
such action may, if they so desire, apply for initiative in the manner herein
voters of a local government unit may directly propose, enact, or amend any
provided.
ordinance. It does not, however, deal with the subjects or matters that can be
SECTION 125.Limitations upon Sanggunians. — Any proposition or ordinance taken up in a local initiative. It is section 124 of the same Code which does.
approved through the system of initiative and referendum as herein provided This provision (section 124) clearly does not limit the application of local
shall not be repealed, modified or amended by the sanggunian concerned initiatives to ordinances, but to all "subjects or matters which are within the
within six (6) months from the date of the approval thereof, and may be
legal powers of the Sanggunians to enact," which undoubtedly includes
resolutions. PART XVI: SANGGUNIANG KABATAAN
Subic Bay Metropolitan Authority vs. COMELEC, 262 SCRA 492 (1996) – THE
COURT CANNOT PASS UPON A PROPOSED INITIATIVE UNTIL THE PEOPLE
HAVE VOTED FOR IT AND IT HAS BECOME AN APPROVED ORDINANCE OR
RESOLUTION. Deliberating on this issue, the Court agrees with private
respondent Garcia that indeed, the municipal resolution is still in the
proposal stage. It is not yet an approved law. Should the people reject it, then
there would be nothing to contest and to adjudicate. It is only when the
people have voted for it and it has become an approved ordinance or
resolution that rights and obligations can be enforced or implemented
thereunder. At this point, it is merely a proposal and the writ of prohibition
cannot issue upon a mere conjecture or possibility. Constitutionally speaking,
courts may decide only actual controversies, not hypothetical questions or
cases.
PART XIV: MANDATED LOCAL AGENCIES
Osea vs. Malaya, January 30, 2002 – We agree with the Civil Service
Commission and the Court of Appeals that, under the circumstances, the
designation of respondent as Schools Division Superintendent of Camarines
Sur was not a case of appointment. Her designation partook of the nature of
a reassignment from Iriga City, where she previously exercised her functions
as Officer-in-Charge-Schools Division Superintendent, to Camarines Sur.
Clearly, therefore, the requirement in Section 99 of the Local Government
Code of 1991 of prior consultation with the local school board, does not
apply. It only refers to appointments made by the Department of Education,
Culture and Sports. Such is the plain meaning of the said law.
Commission on Audit vs. Garcia (2001) – The salaries and personnel-related

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


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LOCAL GOVERNMENT LAW (PUBLIC CORPORATION)

Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus 3|P a g e

Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus 4|P a g e

2. Autonomous Regions E. Loose Federation of LGUs and Regional Development Councils

PART II. THE LOCAL GOVERNMENT CODE OF 1991 3. Scope of Application

5. Effectivity - SECTION 6. Authority to Create Local Government Units. — A

Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus 21 | P a g e

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

Legislative Intent August 24, 2010 Resolution

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

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

Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus 38 | P a g e

Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus 44 | P a g e

Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus 55 | P a g e

Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus 63 | P a g e

Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus 78 | P a g e

Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus 79 | P a g e

Problem No. 3 Problem No. 5 (2005 Bar Exam)

Law on Public Corporations: Notes based on Atty. DB Largo’s syllabus 85 | P a g e

PART XIV: MANDATED LOCAL AGENCIES

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

PART XV: THE LOCAL GOVERNMENT UNITS

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