LOCAL GOVERNMENT LAW

PART I GENERAL PRINCIPLES

A. Corporation

1. Definition

2. Classification

An artificial being created by operation of law, having the right of

succession and the powers, attributes and properties expressly
authorized by law or incident to its existence
Classification of corporations according to purpose:

a. Public is a corporation that is created by the state, either by

general or special act, for purposes of administration of local
government or rendering of service in the public interest.

b. Private formed for some private purpose, benefit, aim or

end

3. Public and Private Corporations, distinguished

Public organized for the government of a portion of the state

Private formed for some private purpose, benefit, aim or end

4. Public Corporation, classified

Classes of public corporations:

i. Quasi-public corporation created by the state for a narrow or

limited purpose; a private corporation created pursuant to the
Corporation Code that renders public service or supplies public
wants

Examples: Public utility companies, electric companies,

water districts, telecommunication companies

ii. Real public corporation/Municipal corporation a body politic

and corporate constituted by the incorporation of the
inhabitants for the purpose of local government

5. Municipal corporation, defined

Perception of local governments: A local government is not only a

municipal corporation, meaning we dont look at it as an entity or a
corporation that is clothed with a personality. Its also perceived as
either political subdivision or a territorial subdivision.

If we talk about political subdivision, then we look at local

governments as agents of the national governments and
therefore, tasked to perform certain government functions.

If we talk about territorial subdivision, we look at it as a place.

Basis: Sec. 1 Art. 10 Consti - The territorial and political

subdivisions of the Republic of the Philippines are the
provinces, cities, municipalities, and barangays. There shall be
autonomous regions in Muslim Mindanao and the Cordilleras as
hereinafter provided.

But not only that, we have to deal with local governments as

something that has life, something that performs acts with legal
effects.
B. Municipal Corporations

1. Elements

a. Legal creation or incorporation the law creating or authorizing the

creation or incorporation of a municipal corporation; the law that
established the lgu, either by statute or ordinance in the case of
barangays.

b. Corporate name the name by which the corporation shall be known

Example: City of Cebu (Basis the charter)

Sec. 13 The sangguniang panlalawigan may, in consultation

with the Philippine Historical Institute, change the name of
component cities and municipalities, upon the recommendation
of the sanggunian concerned; provided that the same shall be
effective only upon ratification in a plebiscite conducted for the
purpose in the political unit directly affected.

c. Inhabitants the people residing in the territory of the corporation

d. Territory the land mass where the inhabitants reside, together with
the internal and external waters, and the air space above the land and
waters.

2. Dual Nature and Functions

It has dual functions, namely:

a. Public or governmental or political It acts as an agent of the

state for the government of the territory and the inhabitants;
this involves the administration of powers of the state and the
promotion of public welfare; in this regard, we call a lgu as a
political subdivision, thats why being a political subdivision, it is
an agent of the national government and being an agent of the
national government, the principal is giving the agent the task
of administering its power, thats why we have local taxation,
local police power and local eminent domain

b. Private or proprietary It acts as an agent of the community

in the administration of local affairs. As such, it acts as a
separate entity, for its own purposes, and not as a subdivision
of the state. A kind of power that is exercised for the special
benefit and advantage of the community, thus, its not a
necessary benefit, its something that the lgu can do without.

Examples: Local police power, local taxation, local

eminent domain, public works

Examples:
Maintenance
of
parks,
cemeteries,
establishment of markets, fiestas and recreation

Basis: Section 15. Political and Corporate Nature of Local Government

Units. - Every local government unit created or recognized under this
Code is a body politic and corporate endowed with powers to be
exercised by it in conformity with law. As such, it shall exercise powers
as a political subdivision of the national government and as a

corporate entity representing the inhabitants of its territory.

So, the framework therefore is accountability:

Bar Question: Johnny was employed as a driver by the Municipality of

Calumpit. While driving recklessly a municipal dump truck with its load
of sand for the repair of municipal streets, Johnny hit a jeepney and 2
passengers of the jeepney died. Is the municipality liable for the
negligence of Johnny?

YES, under Sec. 24:

Section 24. Liability for Damages. - Local government

units and their officials are not exempt from liability for
death or injury to persons or damage to property.

Whether the act is governmental or proprietary

Alternative answer:

If the lgu is exercising a governmental function, then it

becomes accountable to the national government, but if
the lgu is exercising corporation functions, then it is not
accountable to the national government but it is
accountable to the people.

NO. If it is governmental act, then, as a rule, there is no

liability except only when it is performed by a special
agent, such that conversely, if it is proprietary, then the
agent of the state cannot enjoy that privilege because it
is proprietary and therefore, not related to the national
government, then it should be held liable.

BARA LIDASAN VS COMELEC

In a municipality in Mindanao, it was created by a statute. The

problem was when such law was passed, it enumerated
barangays or barrios belonging to a different province.

Could we indulge in the assumption that Congress still

intended, by the Act, to create the restricted area of nine
barrios in the towns of Butig and Balabagan in Lanao del Sur
into the town of Dianaton, if the twelve barrios in the towns of
Buldon and Parang, Cotabato were to be excluded therefrom?
The answer must be in the negative.

Municipal corporations perform twin functions. Firstly. They

serve as an instrumentality of the State in carrying out the
functions of government. Secondly. They act as an agency of
the community in the administration of local affairs. It is in the
latter character that they are a separate entity acting for their
own purposes and not a subdivision of the State.

Consequently, several factors come to the fore in the

consideration of whether a group of barrios is capable of
maintaining itself as an independent municipality. Amongst
these are population, territory, and income.

When the foregoing bill was presented in Congress,

unquestionably, the totality of the twenty-one barrios not
nine barrios was in the mind of the proponent thereof. That

this is so, is plainly evident by the fact that the bill itself,
thereafter enacted into law, states that the seat of the
government is in Togaig, which is a barrio in the municipality of
Buldon in Cotabato. And then the reduced area poses a number
of questions, thus: Could the observations as to progressive
community, large aggregate population, collective income
sufficient to maintain an independent municipality, still apply to
a motley group of only nine barrios out of the twenty-one? Is it
fair to assume that the inhabitants of the said remaining barrios
would have agreed that they be formed into a municipality,
what with the consequent duties and liabilities of an
independent municipal corporation? Could they stand on their
own feet with the income to be derived in their community?
How about the peace and order, sanitation, and other corporate
obligations? This Court may not supply the answer to any of
these disturbing questions. And yet, to remain deaf to these
problems, or to answer them in the negative and still cling to
the rule on separability, we are afraid, is to impute to Congress
an undeclared will. With the known premise that Dianaton was
created upon the basic considerations of progressive
community, large aggregate population and sufficient income,
we may not now say that Congress intended to create Dianaton
with only nine of the original twenty-one barrios, with a
seat of government still left to be conjectured. For, this unduly
stretches judicial interpretation of congressional intent beyond
credibility point. To do so, indeed, is to pass the line which
circumscribes the judiciary and tread on legislative premises.
Paying due respect to the traditional separation of powers, we
may not now melt and recast Republic Act 4790 to read a
Dianaton town of nine instead of the originally intended twentyone barrios. Really, if these nine barrios are to constitute a town
at all, it is the function of Congress, not of this Court, to spell
out that congressional will.

Republic Act 4790 is thus indivisible, and it is accordingly null

and void in its totality.

The idea that it must be self-sufficient therefore is relevant to

the second function that it must be a corporate entity
representing the inhabitants of the community.

SURIGAO ELECTRIC CO. INC. VS MUNICIPALITY OF SURIGAO

When Municipality of surigao wanted to operate an electric

company of its own, it did so without a CPC, pursuant to the
Public
Service
Act
which
says
that
government
instrumentalities or entities are exempt from getting CPC if they
decide to operate public utility companies. The private electric
company argued that a lgu is not a government instrumentality
or entity.

There has been a recognition by this Court of the dual character

of a municipal corporation, one as governmental, being a
branch of the general administration of the state, and the other
as quasi-private and corporate It would, therefore, be
to erode the term "government entities" of its meaning if we

are to reverse the Public Service Commission and to hold that a

municipality is to be considered outside its scope.

So, the SC said that as a lgu possessing the first function of

being an agent of the state and that is being a political
subdivision, it is a government instrumentality or entity,
therefore, it is exempt from obtaining the CPC as provided for in
the Public Service Act.

3. Sources of Powers

1987 consti Art. 10

RA 7160 LGC of 1991 which took effect on January 1, 1992

Statutes or acts that are not inconsistent with the Consti and the LGC

Charter the law that creates the LGU

Doctrine of the right of self-government, but applies only in states

which adhere to the doctrine

4. Classification of Powers

i. express, implied, inherent (powers necessary and proper for

governance, e.g. to promote health and safety, enhance prosperity,
improve morals of inhabitants)

ii. public or governmental, private or proprietary

iii. intramural, extramural

iv. mandatory, directory; ministerial, discretionary

5. Types of Municipal Corporations

i. De jure created with all the elements of a municipal corporation

being present

ii. De facto where there is colorable compliance (not full or complete,

but simply colorable, meaning almost or seems like) with the requisites
of a de jure municipal corporation

Example of colorable compliance: Theres a law creating the

municipal corporation but it is defective

Which municipal corporation acts with legal affects?

BOTH

Philosophy behind accepting de facto municipal corporation:

Where there is authority in law for a municipal

corporation, the organization of the people of a given
territory as such a corporation under the color of
delegated authority followed by a user in good faith of
the governmental powers will be recognized by law as
municipal corporation de facto

Where through the failure to comply with constitutional

or statutory requirements, the corporation cannot be
considered de jure

What are the bases or reasons for de facto municipal

corporation?

Security

Prescription

Meaning, lgus can exist via prescription.

The basis for this doctrine is the very strong public policy
supporting:

i. Security of lgus; and

ii. Conduct of their business against attack

grounded upon collateral inquiry into the legality
of their organization

What is the operative fact doctrine?

Certain legal effects of the statute prior to its declaration

of unconstitutionality may be recognized.

This is the modern view regarding the effects of

declaration of unconstitutionality of a law, meaning if a
law for example that creates a lgu will be declared as
unconstitutional, the court is mindful that during the
interim, that lgu must have already performed acts
pursuant to its being a lgu.

How do we treat these acts? Should we consider

them as void acts, with no effects?

The operative fact doctrine means that insofar as

local government law is concerned, before a law
creating a lgu is declared unconstitutional, the
acts of the lgu concerned shall be respected and
shall be given legal effects.

The acts of such entity will be respected and will

be recognized as valid and binding by the state
as if it is a de jure municipal corporation.

But long use of corporate powers does not

silenced the state, thats why even if there is long
use of corporate powers, the state is not in
estoppel as it can never be in estoppel except in
few special cases, but as a rule, it should not be
considered in estoppel, so it can still question the
existence of a lgu in a quo warranto proceeding.

A defective incorporation may however be

obviated and the de facto unit can actually
become de jure by subsequent legislative
recognition or subsequent validation.

6. De Facto Municipal Corporation Doctrine; Elements

i. valid law authorizing incorporation

ii. attempt in good faith to organize it

iii. colorable compliance with law

iv. assumption of corporate powers

MUNICIPALITY OF JIMENEZ VS BAS, JR.

In this case, the Municipality of Sinacaban was created

via EO 258 (this is an executive act, not a legislative
act), and since then, it had been exercising the powers
of a lgu.

PELAEZ VS AUDITOR GENERAL The SC declared as

unconstitutional Sec. 68 of the RAC which authorized the
President to create municipalities through EO because
the creation of municipalities is a legislative function and
not an executive function. With this declaration,
municipalities created by EO could not claim to be de
facto municipal corporations, because there was not
valid authorizing incorporation.

However, later on, the case of Pelaez rendered invalid

the creation of certain municipalities pursuant to an
executive order, but under the petition of Pelaez, EO 258
creating Sinacaban was not included, so it continued to
exist as such municipality until its existence was
questioned.

The SC said that Sinacaban attained a status of a de

facto municipal corporation because its existence had
not been questioned for more than 40 years. [long use
of corporate powers; this is an example of
prescription]

MUNICIPALITY OF SAN NARCISO VS MENDEZ, SR. Sec. 442(d)

of the LGC to the effect that municipal districts organized
pursuant to presidential issuances or executive orders and
which have their respective sets of elective municipal officials
holding office at the time of the effectivity of the Code shall
henceforth be considered as regular municipalities converted
municipal districts organized pursuant to presidential issuances
or executive orders into regular municipalities. Curative laws,
which in essence are retrospective, and aimed at giving
validity to acts done that would have been invalid under
existing laws, as if existing laws have been complied with, are
validly accepted in this jurisdiction.

This involves the municipality of San Andres also created

via executive act.

Then came the Pelaez ruling.

SC said that San Andres became de jure by

subsequent recognition because it was included in
the Ordinance to the 1987 consti apportioning the seats
of the HR (as one of the 12 municipalities composing the
3rd district of Quezon).

This is an example of subsequent recognition or

validation, whether it was intentional or not.

MUNICIPALITY OF CANDIJAY VS CA

Sec. 442 (d) of LGC: Municipalities existing as of the

date of the effectivity of this Code shall continue to exist

and operate as such. Existing municipal districts
organized pursuant to presidential issuances or EOs and
which have their respective set of elective municipal
officials holding office at the time of the effectivity of
this Code shall henceforth be considered as regular
municipalities. [curative legislation]

SULTAN OSOP CAMID VS OFFICE OF THE PRESIDENT

Sec. 442 (d) of the LGC does not sanction recognition of

just any municipality;

Only those that can prove continued exercise of

corporate powers can be covered;

Incidentally, the SC, being not a trier of facts, cannot

ascertain the truthfulness of petitioners allegation of
continued exercise of corporate powers. (there should
have been a trial court that ascertained it)

7. Method of challenging existence of municipal corporation

Quo warranto proceeding (under what authority) this is a direct

challenge. If you question or challenge a lgu, you need to institute a
proceeding for that purpose. You cannot make it as a defense. It should
be a direct attack and the method is quo warranto to be initiated by
the state.

MALABANG VS BENITO No collateral attack shall lie; an inquiry into

the legal existence of a municipal corporation is reserved to the state
in a proceeding for quo warranto which is a direct proceeding. But this
rule applies only when the municipal corporation is, at least, a de facto
municipal corporation.

Proper party and nature of challenge: If the LGU is at least a de

facto municipal corporation, only the STATE in a DIRECT
ACTION.

But if the LGU is not even de facto but a nullity, ANY

PERSON in either DIRECT OR COLLATERAL ATTACK.

Bar question: Suppose that 1 year after Masigla was constituted as a

municipality, the law creating it is voided because of defects. Would
that invalidate the acts of the municipality and/or its municipal
officers?

Answer: NO, Doctrine of Operative Fact

C. Overview of Philippines Local Government System

1. The Unitary vs. the Federal Forms of Government

Ours is a unitary form of government, not federal.

Generally, powers of government may be distributed either horizontally

or vertically:

It is horizontal if the distribution is among the 3 branches of the

government in the national government. It is in this kind of

distribution
that
we
distinguish
between
presidential
(separation of powers) and parliamentary (fusion of powers of
the legislative and executive).

It is vertical if the distribution is between the national

government and the local government. It is in here that we
distinguish unitary from federal.

Distinction of unitary and federal:

A unitary government is a single, centralized government,

exercising powers over both the internal and external affairs of
the state, the powers are shared by the national government
and the local government; while a federal government consists
of autonomous state (local) government units merged into a
single state, with the national government exercising a limited
degree of power over the domestic affairs but generally full
direction of the external affairs of the state, the powers are
divided by the national government and the local government.

In a unitary government, we have national government creating local

governments. Thus in our jurisdiction, our principle is that lgus derive
both existence and powers from the national government.

Which authority possesses residual powers or who is the repository of

residual powers?

In the horizontal distribution of powers, it is the President

single executive doctrine. In the RAC, it says that all other
powers not vested in the President, in the Congress or judiciary,
shall be deemed a power that can be exercised by the
President. To that extent, we call our form of government
presidential.

In the vertical distribution of powers, it is the national

government through congress. Congress exercises plenary
legislative power.

ZOOMZAT INC. VS PEOPLE

Petitioner assails the findings of Special Prosecutor Pascual that

under Executive Order No. 205, it is the National
Telecommunications Commission (NTC), and not the local
government unit, that has the power and authority to allow or
disallow the operation of cable television. It argues that while
the NTC has the authority to grant the franchise to operate a
cable television, this power is not exclusive because under the
Local Government Code, the city council also has the power to
grant permits, licenses and franchises in aid of the local
government units regulatory or revenue raising powers.

Executive Order No. 205 clearly provides that only the NTC
could grant certificates of authority to cable television
operators and issue the necessary implementing rules and
regulations. Likewise, Executive Order No. 436, vests with the
NTC the regulation and supervision of cable television industry
in the Philippines.

It is clear that in the absence of constitutional or legislative

authorization, municipalities have no power to grant franchises.

Consequently, the protection of the constitutional provision as
to impairment of the obligation of a contract does not extend to
privileges, franchises and grants given by a municipality in
excess of its powers, or ultra vires.

But, lest we be misunderstood, nothing herein should be

interpreted as to strip LGUs of their general power to prescribe
regulations under the general welfare clause of the Local
Government Code. It must be emphasized that when E.O. No.
436 decrees that the "regulatory power" shall be vested
"solely" in the NTC, it pertains to the "regulatory power" over
those matters, which are peculiarly within the NTCs
competence

There is no dispute that respondent Sangguniang Panlungsod,

like other local legislative bodies, has been empowered to
enact ordinances and approve resolutions under the general
welfare clause of B.P. Blg. 337, the Local Government Code of
1983. That it continues to possess such power is clear under
the new law, R.A. No. 7160 (the Local Government Code of
1991).

Indeed, under the general welfare clause of the Local

Government Code, the local government unit can regulate the
operation of cable television but only when it encroaches on
public properties, such as the use of public streets, rights of
ways, the founding of structures, and the parceling of large
regions. Beyond these parameters, its acts, such as the grant of
the franchise to Spacelink, would be ultra vires.

2. Philippines Local Government System and the concepts of Local Autonomy,

Decentralization, Devolution, and Deconcentration

Definition of terms:

Local autonomy in the Philippines, it means that public

administrative powers over local affairs are delegated to
political subdivisions. It refers to decentralization of
administrative powers or functions.

But in general, LIMBONA VS MANGELIN said that

autonomy is either decentralization of administration or
decentralization of power. The second is abdication by
the national government of political power in favor of
the local government (essence in a federal set-up); the
first consists merely in the delegation of administrative
powers to broaden the base of governmental power
(essence in a unitary set-up). Against the first, there can
be no valid constitutional challenge.

Local autonomy is the degree of self-determination

exercised by lgus vis--vis the central government. The
system of achieving local autonomy is known as
decentralization and this system is realized through the
process called devolution.

Decentralization is a system whereby lgus shall be given more

powers, authority and responsibilities and resources and a

direction by which this is done is from the national government
to the local government

Devolution refers to the act by which the national government

confers power and authority upon the various local government
units to perform specific functions and responsibilities.

This includes the transfer to local government units of

the records, equipment, and other assets and personnel
of national agencies and offices corresponding to the
devolved powers, functions, and responsibilities.

Distinguish devolution from deconcentration:

Deconcentration is different. If devolution involves the

transfer of resources, powers from national government
to lgus, deconcentration is from national office to a local
office.

Deconcentration is the transfer of authority and power to

the appropriate regional offices or field offices of national
agencies or offices whose major functions are not
devolved to local government units.

Kung i-devolve sa lgus, thats devolution. Kung i-devolve

sa local offices or field offices, dili lgu, thats
deconcentration.

LINA VS PANO - Since Congress has allowed the PCSO to operate

lotteries which PCSO seeks to conduct in Laguna, pursuant to its
legislative grant of authority, the provinces Sangguniang Panlalawigan
cannot nullify the exercise of said authority by preventing something
already allowed by Congress.

Ours is still a unitary form of government, not a federal state.

Being so, any form of autonomy granted to local governments
will necessarily be limited and confined within the extent
allowed by the central authority. Besides, the principle of local
autonomy under the 1987 Constitution simply means
"decentralization". It does not make local governments
sovereign within the state or an "imperium in imperio".

To conclude our resolution of the first issue, respondent mayor

of San Pedro, cannot avail of Kapasiyahan Bilang 508, Taon
1995, of the Provincial Board of Laguna as justification to
prohibit lotto in his municipality. For said resolution is nothing
but an expression of the local legislative unit concerned. The
Board's enactment, like spring water, could not rise above its
source of power, the national legislature.

In sum, we find no reversible error in the RTC decision enjoining

Mayor Cataquiz from enforcing or implementing the
Kapasiyahan Blg. 508, T. 1995, of the Sangguniang
Panlalawigan of Laguna. That resolution expresses merely a
policy statement of the Laguna provincial board. It possesses no
binding legal force nor requires any act of implementation. It
provides no sufficient legal basis for respondent mayor's refusal
to issue the permit sought by private respondent in connection

with a legitimate business activity authorized by a law passed

by Congress.

SAN JUAN VS CIVIL SERVICE COMMISSION

All the assigned errors relate to the issue of whether or not the
private respondent is lawfully entitled to discharge the functions
of PBO (Provincial Budget Officer) of Rizal pursuant to the
appointment made by public respondent DBM's Undersecretary
upon the recommendation of then Director Abella of DBM
Region IV.

The petitioner-governors arguments rest on his contention that

he has the sole right and privilege to recommend the nominees
to the position of PBO and that the appointee should come only
from his nominees. In support thereof, he invokes Section 1 of
Executive Order No. 112.

The issue before the Court is not limited to the validity of the
appointment of one Provincial Budget Officer. The tug of war
between the Secretary of Budget and Management and the
Governor of the premier province of Rizal over a seemingly
innocuous position involves the application of a most important
constitutional policy and principle, that of local autonomy. We
have to obey the clear mandate on local autonomy. Where a
law is capable of two interpretations, one in favor of centralized
power in Malacaang and the other beneficial to local
autonomy, the scales must be weighed in favor of autonomy.

The exercise by local governments of meaningful power has

been a national goal since the turn of the century. And yet,
inspite of constitutional provisions and, as in this case,
legislation mandating greater autonomy for local officials,
national officers cannot seem to let go of centralized powers.
They deny or water down what little grants of autonomy have
so far been given to municipal corporations.

When the Civil Service Commission interpreted the

recommending power of the Provincial Governor as purely
directory, it went against the letter and spirit of the
constitutional provisions on local autonomy. If the DBM
Secretary jealously hoards the entirety of budgetary powers
and ignores the right of local governments to develop selfreliance and resoluteness in the handling of their own funds,
the goal of meaningful local autonomy is frustrated and set
back.

The PBO is expected to synchronize his work with DBM. More

important, however, is the proper administration of fiscal affairs
at the local level. Provincial and municipal budgets are prepared
at the local level and after completion are forwarded to the
national officials for review. They are prepared by the local
officials who must work within the constraints of those budgets.
They are not formulated in the inner sanctums of an all-knowing
DBM and unilaterally imposed on local governments whether or
not they are relevant to local needs and resources. It is for this
reason that there should be a genuine interplay, a balancing of

viewpoints, and a harmonization of proposals from both the

local and national officials. It is for this reason that the
nomination and appointment process involves a sharing of
power between the two levels of government.

Our national officials should not only comply with the

constitutional provisions on local autonomy but should also
appreciate the spirit of liberty upon which these provisions are
based.

Sec. 25 Art. 2 1987 consti The State shall ensure the autonomy of
local governments.

Sec. 2 Art. 10 1987 consti The territorial and political subdivisions

shall enjoy local autonomy.

Secs. 2-3

Section 2. Declaration of Policy.

(a) It is hereby declared the policy of the State that the

territorial and political subdivisions of the State
shall enjoy genuine and meaningful local
autonomy to enable them to attain their fullest
development as self-reliant communities and make them
more effective partners in the attainment of national
goals. Toward this end, the State shall provide for a
more responsive and accountable local government
structure instituted through a system of decentralization
whereby local government units shall be given more
powers, authority, responsibilities, and resources. The
process of decentralization shall proceed from the
national government to the local government units.

(b) It is also the policy of the State to ensure the

accountability of local government units through the
institution of effective mechanisms of recall, initiative
and referendum.

(c) It is likewise the policy of the State to require all

national agencies and offices to conduct periodic
consultations with appropriate local government units,
nongovernmental and people's organizations, and other
concerned sectors of the community before any project
or program is implemented in their respective
jurisdictions.

Section 3. Operative Principles of Decentralization. - The

formulation and implementation of policies and measures on
local autonomy shall be guided by the following operative
principles:

(a) There shall be an effective allocation among the

different local government units of their respective
powers, functions, responsibilities, and resources;

(b) There shall be established in every local government

unit
an
accountable,
efficient,
and
dynamic
organizational structure and operating mechanism that

will meet the priority needs and service requirements of

its communities;

(c) Subject to civil service law, rules and regulations,

local officials and employees paid wholly or mainly from
local funds shall be appointed or removed, according to
merit and fitness, by the appropriate appointing
authority;

(d) The vesting of duty, responsibility, and accountability

in local government units shall be accompanied with
provision for reasonably adequate resources to
discharge their powers and effectively carry out their
functions: hence, they shall have the power to create
and broaden their own sources of revenue and the right
to a just share in national taxes and an equitable share
in the proceeds of the utilization and development of the
national wealth within their respective areas;

(e) Provinces with respect to component cities and

municipalities, and cities and municipalities with respect
to component barangays, shall ensure that the acts of
their component units are within the scope of their
prescribed powers and functions;

(f) Local government units may group themselves,

consolidate or coordinate their efforts, services, and
resources commonly beneficial to them;

(g) The capabilities of local government units, especially

the municipalities and barangays, shall be enhanced by
providing them with opportunities to participate actively
in the implementation of national programs and
projects;

(h) There shall be a continuing mechanism to enhance

local autonomy not only by legislative enabling acts but
also by administrative and organizational reforms;

(i) Local government units shall share with the national

government the responsibility in the management and
maintenance of ecological balance within their territorial
jurisdiction, subject to the provisions of this Code and
national policies;

(j) Effective mechanisms for ensuring the accountability

of local government units to their respective
constituents shall be strengthened in order to upgrade
continually the quality of local leadership;

(k) The realization of local autonomy shall be facilitated

through improved coordination of national government
policies and programs an extension of adequate
technical and material assistance to less developed and
deserving local government units;

(l) The participation of the private sector in local

governance, particularly in the delivery of basic services,
shall be encouraged to ensure the viability of local

autonomy as an alternative strategy for sustainable

development; and

(m) The national government shall ensure that

decentralization
contributes
to
the
continuing
improvement of the performance of local government
units and the quality of community life.

Section 17. Basic Services and Facilities. - (a) Local government units
shall endeavor to be self-reliant and shall continue exercising the
powers and discharging the duties and functions currently vested upon
them. They shall also discharge the functions and responsibilities of
national agencies and offices devolved to them pursuant to this Code.
Local government units shall likewise exercise such other powers and
discharge such other functions and responsibilities as are necessary,
appropriate, or incidental to efficient and effective provisions of the
basic services and facilities enumerated herein.

(e) National agencies or offices concerned shall devolve to local

government units the responsibility for the provision of basic services
and facilities enumerated in this Section within six (6) months after the
effectivity of this Code.

As used in this Code, the term "devolution" refers to the act by

which the national government confers power and authority
upon the various local government units to perform specific
functions and responsibilities.

(i) The devolution contemplated in this Code shall include the

transfer to local government units of the records, equipment,
and other assets and personnel of national agencies and
offices corresponding to the devolved powers, functions, and
responsibilities.

Section 528. Deconcentration of Requisite Authority and Power. - The

national government shall, six (6) months after the effectivity of this
Code, effect the deconcentration of requisite authority and
power to the appropriate regional offices or field offices of
national agencies or offices whose major functions are not
devolved to local government units.

D. Local Governments in the Philippines

BAR EXAM:
A law passed calling for the abolition of barangays. Is the law
unconstitutional? Why? Why not?
Answer:

Yes. Unconstiotutional.

1. Territorial and Political Subdivisions: Provinces, Cities, Municipalities,

Barangays

Kinds of lgus:

i. Regular lgus are provinces, cities, municipalities and

barangays.

Note: Sitio is not a recognized lgu.

ii. Autonomous regions ARMM and the Cordilleras

iii. Special lgus special metropolitan political subdivisions

Kinds of cities:

i. Component cities not qualified to be highly urbanized. Maybe

dependent or independent of the province. Depending on the
charter.

Inhabitants can vote for provincial candidates and can

run for provincial elective posts.

Under the supervisory power of the province

ii. Independent component city (ICC)

Independent in the sense that the charter prohibits the

voters from voting for provincial elective posts and this
is outside the supervisory power of the province

Inhabitants cannot vote for provincial elective posts

neither can they run for provincial elective posts not
because of income factor but simply because the charter
prohibits the voters from voting or running for provincial
posts.
(Abella vs. Comelec)

iii. Highly-urbanized city

Independent from the province by reason of status (50M)

Its outside the supervisory power of the province

Reason: Status

QUERY:
A highly urbanized city is independent of the province where it is
geographically located. Consequently, its residents cannot run for provincial
posts and cannot as well vote or provincial candidates. Mandaue City of Cebu
is a highly urbanized city, but its residents can still run for provincial post and
can vote for provincial candidates. How is this possible?

The voters cannot vote and run for provincial elective

officials and offices.

But what about Mandaue City why can they still

vote for provincial elective officials? So the
question is can there be a highly-urbanized city
whose voters can still vote for provincial officials?

YES.

Basis: Section 452. Highly Urbanized

Cities. Qualified voters of cities who
acquired the right to vote for elective
provincial officials prior to the
classification of said cities as highlyurbanized after the ratification of the
Constitution
and
before
the
effectivity of this Code, shall continue

to exercise such right.

Vested-right theory

Sec. 1 Art. X constiThe territorial and political subdivisions of the

Republic of the Philippines are the provinces, cities, municipalities, and
barangays. There shall be autonomous regions in Muslim Mindanao
and the Cordilleras as hereinafter provided.

Sec. 12 Art. X consti Cities that are highly urbanized, as determined

by law, and component cities whose charters prohibit their voters from
voting for provincial elective officials, shall be independent of the
province. The voters of component cities within a province, whose
charters contain no such prohibition, shall not be deprived of their
right to vote for elective provincial officials.

ABELLA VS COMELEC

The main issue in these consolidated petitions centers

on who is the rightful governor of the province of Leyte
1) petitioner Adelina Larrazabal (G.R. No. 100739) who
obtained the highest number of votes in the local
elections of February 1, 1988 and was proclaimed as the
duly elected governor but who was later declared by the
Commission on Elections (COMELEC) "... to lack both
residence and registration qualifications for the position
of Governor of Leyte as provided by Art. X, Section 12,
Philippine Constitution in relation to Title II, Chapter I,
Sec. 42, B.P. Blg. 137 and Sec. 89, R.A. No. 179 and is
hereby disqualified as such Governor"

Failing in her contention that she is a resident and

registered voter of Kananga, Leyte, the petitioner poses
an alternative position that her being a registered voter
in Ormoc City was no impediment to her candidacy for
the position of governor of the province of Leyte.

Section 12, Article X of the Constitution provides:

Cities that are highly urbanized, as determined by

law, and component cities whose charters
prohibit their voters from voting for provincial
elective officials, shall be independent of the
province. The voters of component cities within a
province, whose charters contain no such
prohibition, shall not be deprived of their right to
vote for elective provincial officials.

Section 89 of Republic Act No. 179 creating the City of

Ormoc provides:

Election of provincial governor and members of

the Provincial Board of the members of the
Provincial Board of the Province of Leyte The
qualified voters of Ormoc City shall not be
qualified and entitled to vote in the election of
the provincial governor and the members of the
provincial board of the Province of Leyte.

Relating therefore, section 89 of R.A. 179 to section 12,

Article X of the Constitution one comes up with the
following conclusion: that Ormoc City when organized
was not yet a highly-urbanized city but is, nevertheless,
considered independent of the province of Leyte to
which it is geographically attached because its charter
prohibits its voters from voting for the provincial elective
officials. The question now is whether or not the
prohibition against the 'city's registered voters' electing
the provincial officials necessarily mean, a prohibition of
the registered voters to be elected as provincial officials.

The petitioner citing

Constitution, to wit:

section

4,

Article

of

the

Sec. 4. The President of the Philippines shall

exercise
general
supervision
over
local
governments.
Provinces
with
respect
to
component cities and municipalities and cities
and municipalities with respect to component
barangays, shall ensure that the acts of their
component units are within the scope of their
prescribed powers and functions.

submits that "while a Component City whose charter

prohibits its voters from participating in the elections for
provincial office, is indeed independent of the province,
such independence cannot be equated with a highly
urbanized city; rather it is limited to the administrative
supervision aspect, and nowhere should it lead to the
conclusion that said voters are likewise prohibited from
running for the provincial offices." (Petition, p. 29)

The argument is untenable.

Section 12, Article X of the Constitution is explicit in that

aside from highly-urbanized cities, component cities
whose charters prohibit their voters from voting for
provincial elective officials are independent of the
province. In the same provision, it provides for other
component cities within a province whose charters do
not provide a similar prohibition. Necessarily, component
cities like Ormoc City whose charters prohibit their
voters from voting for provincial elective officials are
treated like highly urbanized cities which are outside the
supervisory power of the province to which they are
geographically attached. This independence from the
province carries with it the prohibition or mandate
directed to their registered voters not to vote and be
voted for the provincial elective offices. The resolution in
G.R. No. 80716 entitled Peralta v. The Commission on
Elections, et al. dated December 10, 1987 applies to this
case. While the cited case involves Olongapo City which
is classified as a highly urbanized city, the same
principle is applicable.

Moreover, Section 89 of Republic Act 179, independent

of the constitutional provision, prohibits registered

voters of Ormoc City from voting and being voted for
elective offices in the province of Leyte. We agree with
the COMELEC en banc that "the phrase 'shall not be
qualified and entitled to vote in the election of the
provincial governor and the members of the provincial
board of the Province of Leyte' connotes two prohibitions
one, from running for and the second, from voting for
any provincial elective official."

2. Autonomous Regions

Sec. 1 Art. X consti The territorial and political subdivisions of the

Republic of the Philippines are the provinces, cities, municipalities, and
barangays. There shall be autonomous regions in Muslim Mindanao
and the Cordilleras as hereinafter provided.

3. Special Metropolitan Political Subdivisions

Created by Congress and requires plebiscite
The component cities and municipalities shall retain their basic
autonomy and shall be entitled to their own local executives and
legislative assemblies
Jurisdiction is limited to basic services requiring coordination.

Sec. 11 Art. 10 consti The Congress may, by law, create special

metropolitan political subdivisions, subject to a plebiscite as set forth
in Section 10 hereof. The component cities and municipalities shall
retain their basic autonomy and shall be entitled to their own local
executive and legislative assemblies. The jurisdiction of the
metropolitan authority that will thereby be created shall be limited to
basic services requiring coordination.

MMDA VS BEL-AIR VILLAGE The MMDA which has no police and

legislative powers, has no power to enact ordinances for the general
welfare of the inhabitants of Metro Manila. It has no authority to order
the opening of Neptune Street, a private subdivision road in Makati City
and cause the demolition of its perimeter walls.

MMDA is not even a special metropolitan political subdivision

because there was no plebiscite when the law created it and
the President exercises not just supervision but control
over it. (Constitution mandates)

MMDA has purely administrative function.

Because MMDA is not a political subdivision, it cannot

exercise political power like police power.
Not even a special political subdivision because it lacks the
requirement of plebescite.

E. Loose Federation of LGUs and Regional Development Councils

Sec. 13 Art. 10 Consti Local government units may group themselves,

consolidate or coordinate their efforts, services, and resources for purposes

commonly beneficial to them in accordance with law.

Section 33. Cooperative Undertakings Among Local Government Units. - Local

government units may, through appropriate ordinances, group themselves,
consolidate, or coordinate their efforts, services, and resources for purposes
commonly beneficial to them. In support of such undertakings, the local
government units involved may, upon approval by the sanggunian concerned
after a public hearing conducted for the purpose, contribute funds, real
estate, equipment, and other kinds of property and appoint or assign
personnel under such terms and conditions as may be agreed upon by the
participating local units through Memoranda of Agreement.
REQUIRED:
1.Ordinance
2.Public Hearing
3. MOA members may contribute funds, assets etc.

Take note: The resultant consolidation would not be a new corporate

body. Why? Because the requirement that an lgu should be created by
law is of constitutional origin. That requirement remains, so that it
cannot be done either by MOA or ordinance. It has to be by law. It
cannot be given a separate personality.
May this federation or consolidation of local government units enter
into contracts? If yes, how may the federation or consolidation of LGUs
enter into contracts? Under what name?
LOOSE FEDERATION, CONTD
The resultant consolidation would not be a new corporate body, and
therefore, it does not have a personality..
REGIONAL DEVELOPMENT COUNCILS

Sec. 14 Art. 10 consti The President shall provide for regional development
councils or other similar bodies composed of local government officials,
regional heads of departments and other government offices, and
representatives from non-governmental organizations within the regions for
purposes of administrative decentralization to strengthen the autonomy of the
units therein and to accelerate the economic and social growth and
development of the units in the region.
PART II THE LOCAL GOVERNMENT CODE OF 1991

1. Constitutional Mandate

Sec. 3 Art. 10 consti The Congress shall enact a local government

code which shall provide for a more responsive and accountable local
government structure instituted through a system of decentralization
with effective mechanisms of recall, initiative, and referendum,
allocate among the different local government units their powers,
responsibilities, and resources, and provide for the qualifications,
election, appointment and removal, term, salaries, powers and

functions and duties of local officials, and all other matters relating to
the organization and operation of the local units.
Mandatory contents of the Code:
-responsive and accountable
-System of decentralization
.

2. Sources of the LGC of 1991 (Codified laws)

The local Govt Code
The local Tax Code
the real Property Tax Code
Barangay Justice Law

3. Scope of Application

Section 4. Scope of Application. - This Code shall apply to all provinces,

cities, municipalities, barangays, and other political subdivisions as
may be created by law, and, to the extent herein provided, to officials,
offices, or agencies of the national government.

Section 526. Application of this Code to Local Government Units in the

Autonomous Regions. - This Code shall apply to all provinces, cities,
municipalities and barangays in the autonomous regions until such
time as the regional government concerned shall have enacted its own
local government code.

Section 529. Tax Ordinances or Revenue Measures. - All existing tax

ordinances or revenue measures of local government units shall
continue to be in force and effect after the effectivity of this Code
unless amended by the sanggunian concerned, or inconsistent with, or
in violation of, the provisions of this Code.

Section 534. Repealing Clause.

(f) All general and special laws, acts, city charters, decrees,
executive orders, proclamations and administrative regulations,
or part or parts thereof which are inconsistent with any of the
provisions of this Code are hereby repealed or modified
accordingly.

LAGUNA LAKE DEVELOPMENT AUTHORITY VS CA The

provisions of the LGC do not necessarily repeal the laws
creating the LLDA and granting the latter water rights authority
over Laguna de Bay and the lake region.

In this petition for certiorari,

the Authority contends: The
serious error when it ruled
fishpen permits in Laguna de
concerned (lakeshore) lgus.

prohibition and injunction,

Honorable CA committed
that the power to issue
Bay has been devolved to

Which agency of the Government the Laguna Lake

Development Authority or the towns and municipalities

comprising the region should exercise jurisdiction over
the Laguna Lake and its environs insofar as the issuance
of permits for fishery privileges is concerned?

We
not
the
the
the

hold that the provisions of Republic Act No. 7160 do

necessarily repeal the aforementioned laws creating
Laguna Lake Development Authority and granting
latter water rights authority over Laguna de Bay and
lake region.

The Local Government Code of 1991 does not contain

any express provision which categorically expressly
repeal the charter of the Authority. It has to be conceded
that there was no intent on the part of the legislature to
repeal Republic Act No. 4850 and its amendments. The
repeal of laws should be made clear and expressed.

Considering the reasons behind the establishment of the

Authority,
which
are
environmental
protection,
navigational safety, and sustainable development, there
is every indication that the legislative intent is for the
Authority to proceed with its mission.

It has to be conceded that the charter of the Laguna

Lake Development Authority constitutes a special law.
Republic Act No. 7160, the Local Government Code of
1991, is a general law. It is basic in statutory
construction that the enactment of a later legislation
which is a general law cannot be construed to have
repealed a special law. It is a well-settled rule in this
jurisdiction that "a special statute, provided for a
particular case or class of cases, is not repealed by a
subsequent statute, general in its terms, provisions and
application, unless the intent to repeal or alter is
manifest, although the terms of the general law are
broad enough to include the cases embraced in the
special law."

Where there is a conflict between a general law and a

special statute, the special statute should prevail since it
evinces the legislative intent more clearly than the
general statute. The special law is to be taken as an
exception to the general law in the absence of special
circumstances forcing a contrary conclusion. This is
because implied repeals are not favored and as much as
possible, effect must be given to all enactments of the
legislature. A special law cannot be repealed, amended
or altered by a subsequent general law by mere
implication.

Thus, it has to be concluded that the charter of the

Authority should prevail over the Local Government
Code of 1991.

The power of the local government units to issue fishing

privileges was clearly granted for revenue purposes.

On the other hand, the power of the Authority to grant

permits for fishpens, fishcages and other aqua-culture
structures is for the purpose of effectively regulating
and monitoring activities in the Laguna de Bay region
(Section 2, Executive Order No. 927) and for lake quality
control and management. It does partake of the nature
of police power which is the most pervasive, the least
limitable and the most demanding of all State powers
including the power of taxation. Accordingly, the charter
of the Authority which embodies a valid exercise of
police power should prevail over the Local Government
Code of 1991 on matters affecting Laguna de Bay.

Removal from the Authority of the aforesaid licensing

authority will render nugatory its avowed purpose of
protecting and developing the Laguna Lake Region.
Otherwise stated, the abrogation of this power would
render useless its reason for being and will in effect
denigrate, if not abolish, the Laguna Lake Development
Authority. This, the Local Government Code of 1991 had
never intended to do.
What about provinces, cities, municipalities
barangays in the Autonomous Regions (ARs)

and

-LGC applies until the Autonomous Region has its own

Code.

4. Rules of Interpretation

Section 5. Rules of Interpretation. - In the interpretation of the

provisions of this Code, the following rules shall apply:

(a) Any provision on a power of a local government unit shall be

liberally interpreted in its favor, and in case of doubt, any
question thereon shall be resolved in favor of devolution of
powers and of the lower local government unit. Any fair and
reasonable doubt as to the existence of the power shall be
interpreted in favor of the local government unit concerned;

(b) In case of doubt, any tax ordinance or revenue measure

shall be construed strictly against the local government unit
enacting it, and liberally in favor of the taxpayer. Any tax
exemption, incentive or relief granted by any local government
unit pursuant to the provisions of this Code shall be construed
strictly against the person claiming it.

(c) The general welfare provisions in this Code shall be liberally

interpreted to give more powers to local government units in
accelerating economic development and upgrading the quality
of life for the people in the community;

(d) Rights and obligations existing on the date of effectivity of

this Code and arising out of contracts or any other source of
presentation involving a local government unit shall be
governed by the original terms and conditions of said contracts
or the law in force at the time such rights were vested; and

(e) In the resolution of controversies arising under this Code

where no legal provision or jurisprudence applies, resort may

be had to the customs and traditions in the place where the
controversies take place.

Objective: To grant genuine local autonomy

5. Effectivity

Section 536. Effectivity Clause. - This Code shall take effect on January
first, nineteen hundred ninety-two, unless otherwise provided herein,
after its complete publication in at least one (1) newspaper of general
circulation.
EFFECTS OF EFFECTIVITy
All general and special laws, acts, city charters, decrees, Eos,
proclamations, and admin regulations (or parts thereof) that are
inconsistent with any of th provisions of the code are ..

PART III CREATION, CONVERSION, DIVISION, MERGER, SUBSTANTIAL

CHANGE OF BOUNDARY OF LOCAL GOVERNMENT UNITS, AND ABOLITION

REGULAR POLITICAL SUBDIVISIONS

AUTONOMOUS REGIONS

SPECIAL METROPOLITAN POLITICAL

A. Regular Political Subdivisions (Provinces, Cities, Municipalities, and

Barangays)

1. Creation and Conversion

a. General Requirements:

Law

Plebiscite

Compliance with Criteria on income, land &/or population

Secs. 10-11 Art. 10 consti

Section 10. No province, city, municipality, or barangay

may be created, divided, merged, abolished, or its
boundary substantially altered, except in accordance
with the criteria established in the local government
code and subject to approval by a majority of the votes
cast in a plebiscite in the political units directly affected.

Section 11. The Congress may, by law, create special

metropolitan political subdivisions, subject to a
plebiscite as set forth in Section 10 hereof. The
component cities and municipalities shall retain their
basic autonomy and shall be entitled to their own local
executive and legislative assemblies. The jurisdiction of
the metropolitan authority that will thereby be created
shall be limited to basic services requiring coordination.

Section 6. Authority to Create Local Government Units. - A local

government unit may be created, divided, merged, abolished,

or its boundaries substantially altered either by law enacted by
Congress in the case of a province, city, municipality, or any
other political subdivision, or by ordinance passed by the
sangguniang panlalawigan or sangguniang panlungsod
concerned in the case of a barangay located within its territorial
jurisdiction, subject to such limitations and requirements
prescribed in this Code.

Section 7. Creation and Conversion. - As a general rule, the

creation of a local government unit or its conversion from one
level to another level shall be based on verifiable indicators of
viability and projected capacity to provide services, to wit:

(a) Income. - It must be sufficient, based on acceptable

standards, to provide for all essential government
facilities
and
services
and
special
functions
commensurate with the size of its population, as
expected of the local government unit concerned;

(b) Population. - It shall be determined as the total

number of inhabitants within the territorial jurisdiction of
the local government unit concerned; and

(c) Land Area. - It must be contiguous, unless it

comprises two or more islands or is separated by
a local government unit independent of the
others; properly identified by metes and bounds
with technical descriptions; and sufficient to provide
for such basic services and facilities to meet the
requirements of its populace.

Compliance with the foregoing indicators shall be

attested to by the Department of Finance (DOF), the
National Statistics Office (NSO), and the Lands
Management Bureau (LMB) of the Department of
Environment and Natural Resources (DENR).

Creation of barangays:
Sec. 385, Book iii, LGC

-did not mention about the creation of CONGRESS

Section 10. Plebiscite Requirement. - No creation, division,

merger, abolition, or substantial alteration of boundaries of local
government units shall take effect unless approved by a
majority of the votes cast in a plebiscite called for the purpose
in the political unit or units directly affected. Said plebiscite
shall be conducted by the Commission on Elections (COMELEC)
within one hundred twenty (120) days from the date of
effectivity of the law or ordinance effecting such action, unless
said law or ordinance fixes another date.

Is it mandated that all these general requirements should be

complied with? For example, the requirement on income, land
and population, should we comply with such requirements?

It depends on the lgu concerned. Its not required all the

time that there should be compliance with income,
population and land area, because it may happen that

only 2 of the 3 factors should be complied with.

TAN VS COMELEC

PADILLA VS COMELEC

Even under the 1987 consti, the plebiscite shall include

all the voters of the mother province or the mother
municipality.

When the law states that the plebiscite shall be

conducted "in the political units directly affected," it
means that residents of the political entity who would be
economically dislocated by the separation of a portion
thereof have a right to vote in said plebiscite. Evidently,
what is contemplated by the phase "political units
directly affected," is the plurality of political units which
would participate in the plebiscite.

LOPEZ VS COMELEC

A plebiscite for creating a new province should include

the participation of the residents of the mother province
in order to conform to the constitutional requirement.
XXXXXX BP 885, creating the Province of Negros del
Norte, is declared unconstitutional because it excluded
the voters of the mother province from participating in
the plebiscite (and it did not comply with the area of
criterion prescribed in the LGC). XXXX Where the law
authorizing
the
holding
of
a
plebiscite
is
unconstitutional, the Court cannot authorize the holding
of a new one. XXXX The fact that the plebiscite which
the petition sought to stop had already been held and
officials of the new province appointed does not make
the petition moot and academic, as the petition raises
an issue of constitutional dimension.

The creation of Metropolitan Manila is valid. The

referendum of Feb. 27, 1975 authorized the President to
restructure local governments in the 4 cities and 13
municipalities. XXXXX The President had authority to
issue decrees in 1975. XXXX The 1984 amendment to
the 1973 consti impliedly recognized the existence of
Metro Manila by providing representation of Metro
Manila in the Batasan Pambansa.

SULTAN OSOP CAMID VS OFFICE OF THE PRESIDENT

From this survey of relevant jurisprudence, we can

gather the applicable rules. Pelaez and its offspring
cases ruled that the President has no power to create
municipalities, yet limited its nullificatory effects to the
particular municipalities challenged in actual cases
before this Court. However, with the promulgation of the
Local Government Code in 1991, the legal cloud was
lifted over the municipalities similarly created by
executive order but not judicially annulled. The de facto
status of such municipalities as San Andres, Alicia and

Sinacaban was recognized by this Court, and Section

442(b) of the Local Government Code deemed curative
whatever legal defects to title these municipalities had
labored under.

Is Andong similarly entitled to recognition as a de facto

municipal corporation? It is not. There are eminent
differences between Andong and municipalities such as
San Andres, Alicia and Sinacaban. Most prominent is the
fact that the executive order creating Andong was
expressly annulled by order of this Court in 1965. If we
were to affirm Andongs de facto status by reason of its
alleged continued existence despite its nullification, we
would in effect be condoning defiance of a valid order of
this Court.Court decisions cannot obviously lose their
efficacy due to the sheer defiance by the parties
aggrieved.

It bears noting that based on Camids own admissions,

Andong does not meet the requisites set forth by
Section 442(d) of the Local Government Code. Section
442(d) requires that in order that the municipality
created by executive order may receive recognition,
they must "have their respective set of elective
municipal officials holding office at the time of the
effectivity of [the Local Government] Code." Camid
admits that Andong has never elected its municipal
officers at all. This incapacity ties in with the fact that
Andong was judicially annulled in 1965. Out of obeisance
to our ruling in Pelaez, the national government ceased
to recognize the existence of Andong, depriving it of its
share of the public funds, and refusing to conduct
municipal elections for the void municipality.

The failure to appropriate funds for Andong and the

absence of elections in the municipality in the last four
decades are eloquent indicia of the non-recognition by
the State of the existence of the town. The certifications
relied upon by Camid, issued by the DENR-CENRO and
the National Statistics Office, can hardly serve the
purpose of attesting to Andongs legal efficacy. In fact,
both these certifications qualify that they were issued
upon the request of Camid, "to support the restoration
or re-operation of the Municipality of Andong, Lanao del
Sur," thus obviously conceding that the municipality is at
present inoperative.

We may likewise pay attention to the Ordinance

appended to the 1987 Constitution, which had also been
relied upon in Jimenez and San Narciso. This Ordinance,
which apportioned the seats of the House of
Representatives to the different legislative districts in
the Philippines, enumerates the various municipalities
that are encompassed by the various legislative
districts. Andong is not listed therein as among the
municipalities of Lanao del Sur, or of any other province

for that matter. On the other hand, the municipalities of

San Andres, Alicia and Sinacaban are mentioned in the
Ordinance as part of Quezon, Bohol, and Misamis
Occidental respectively.

How about the eighteen (18) municipalities similarly

nullified in Pelaez but certified as existing in the DILG
Certification presented by Camid? The petition fails to
mention that subsequent to the ruling in Pelaez,
legislation
was
enacted
to
reconstitute
these
municipalities. It is thus not surprising that the DILG
certified the existence of these eighteen (18)
municipalities, or that these towns are among the
municipalities enumerated in the Ordinance appended
to the Constitution. Andong has not been similarly
reestablished through statute. Clearly then, the fact that
there are valid organic statutes passed by legislation
recreating these eighteen (18) municipalities is sufficient
legal basis to accord a different legal treatment to
Andong as against these eighteen (18) other
municipalities.

We thus assert the proper purview to Section 442(d) of

the Local Government Codethat it does not serve to
affirm
or
reconstitute
the
judicially
dissolved
municipalities such as Andong, which had been
previously created by presidential issuances or
executive orders. The provision affirms the legal
personalities only of those municipalities such as San
Narciso, Alicia, and Sinacaban, which may have been
created using the same infirm legal basis, yet were
fortunate enough not to have been judicially annulled.
On the other hand, the municipalities judicially dissolved
in cases such as Pelaez, San Joaquin, and Malabang,
remain inexistent, unless recreated through specific
legislative enactments, as done with the eighteen (18)
municipalities certified by the DILG. Those municipalities
derive their legal personality not from the presidential
issuances or executive orders which originally created
them or from Section 442(d), but from the respective
legislative statutes which were enacted to revive them.

And what now of Andong and its residents? Certainly,

neither Pelaez or this decision has obliterated Andong
into a hole on the ground. The legal effect of the
nullification of Andong in Pelaez was to revert the
constituent barrios of the voided town back into their
original municipalities, namely the municipalities of
Lumbatan,
Butig
and
Tubaran.
These
three
municipalities subsist to this day as part of Lanao del
Sur, and presumably continue to exercise corporate
powers over the barrios which once belonged to Andong.

If there is truly a strong impulse calling for the

reconstitution of Andong, the solution is through the
legislature and not judicial confirmation of void title. If

indeed the residents of Andong have, all these years,

been governed not by their proper municipal
governments but by a ragtag "Interim Government,"
then an expedient political and legislative solution is
perhaps necessary. Yet we can hardly sanction the
retention of Andongs legal personality solely on the
basis of collective amnesia that may have allowed
Andong to somehow pretend itself into existence despite
its judicial dissolution. Maybe those who insist Andong
still exists prefer to remain unperturbed in their blissful
ignorance, like the inhabitants of the cave in Platos
famed allegory. But the time has come for the light to
seep in, and for the petitioner and like-minded persons
to awaken to legal reality.

LEAGUE OF CITIES OF THE PHILS. VS COMELEC

The 16 Cityhood Bills do not violate Article X,

Section 10 of the Constitution.

Article X, Section 10 provides

Section 10. No province, city, municipality, or

barangay may be created, divided, merged,
abolished, or its boundary substantially altered,
except in accordance with the criteria established
in the local government code and subject to
approval by a majority of the votes cast in a
plebiscite in the political units directly affected.

The tenor of the ponencias of the November 18, 2008

Decision and the August 24, 2010 Resolution is that the
exemption clauses in the 16 Cityhood Laws are
unconstitutional because they are not written in the
Local Government Code of 1991 (LGC), particularly
Section 450 thereof, as amended by Republic Act (R.A.)
No. 9009, which took effect on June 30, 2001, viz.

Section 450. Requisites for Creation. a) A

municipality or a cluster of barangays may be
converted into a component city if it has a locally
generated annual income, as certified by the
Department of Finance, of at least One Hundred
Million Pesos (P100,000,000.00) for at least
two (2) consecutive years based on 2000
constant prices, and if it has either of the
following requisites:

xxxx

(c) The average annual income shall include the

income accruing to the general fund, exclusive of
special funds, transfers, and non-recurring
income. (Emphasis supplied)

Prior to the amendment, Section 450 of the LGC

required only an average annual income, as certified by
the Department of Finance, of at least P20,000,000.00

for the last two (2) consecutive years, based on 1991

constant prices.

Before Senate Bill No. 2157, now R.A. No. 9009, was
introduced by Senator Aquilino Pimentel, there were 57
bills filed for conversion of 57 municipalities into
component cities. During the 11th Congress (June 1998June 2001), 33 of these bills were enacted into law, while
24 remained as pending bills. Among these 24 were the
16 municipalities that were converted into component
cities through the Cityhood Laws.

While R.A. No. 9009 was being deliberated upon,

Congress was well aware of the pendency of conversion
bills of several municipalities, including those covered by
the Cityhood Laws, desiring to become component cities
which qualified under the P20 million income
requirement of the old Section 450 of the LGC. The
interpellation of Senate President Franklin Drilon of
Senator Pimentel is revealing,

Clearly, based on the above exchange, Congress

intended that those with pending cityhood bills during
the 11th Congress would not be covered by the new and
higher income requirement of P100 million imposed by
R.A. No. 9009. When the LGC was amended by R.A. No.
9009, the amendment carried with it both the letter and
the intent of the law, and such were incorporated in the
LGC by which the compliance of the Cityhood Laws was
gauged.

Notwithstanding that both the 11th and 12th Congress

failed to act upon the pending cityhood bills, both the
letter and intent of Section 450 of the LGC, as amended
by R.A. No. 9009, were carried on until the 13 th
Congress, when the Cityhood Laws were enacted. The
exemption clauses found in the individual Cityhood Laws
are the express articulation of that intent to exempt
respondent municipalities from the coverage of R.A. No.
9009. (only 16 bills were acted upon)

Even if we were to ignore the above quoted exchange

between then Senate President Drilon and Senator
Pimentel, it cannot be denied that Congress saw the
wisdom of exempting respondent municipalities from
complying with the higher income requirement imposed
by the amendatory R.A. No. 9009.
Indeed, these
municipalities have proven themselves viable and
capable to become component cities of their respective
provinces.
It is also acknowledged that they were
centers of trade and commerce, points of convergence
of transportation, rich havens of agricultural, mineral,
and other natural resources, and flourishing tourism
spots.
In this regard, it is worthy to mention the
distinctive traits of each respondent municipality,

The enactment of the Cityhood Laws is an exercise by

Congress of its legislative power. Legislative power is

the authority, under the Constitution, to make laws, and
to alter and repeal them. The Constitution, as the
expression of the will of the people in their original,
sovereign, and unlimited capacity, has vested this power
in the Congress of the Philippines.
The grant of
legislative power to Congress is broad, general, and
comprehensive. The legislative body possesses plenary
powers for all purposes of civil government. Any power,
deemed to be legislative by usage and tradition, is
necessarily possessed by Congress, unless the
Constitution has lodged it elsewhere. In fine, except as
limited by the Constitution, either expressly or impliedly,
legislative power embraces all subjects, and extends to
matters of general concern or common interest.

Without doubt, the LGC is a creation of Congress

through its law-making powers. Congress has the power
to alter or modify it as it did when it enacted R.A. No.
9009. Such power of amendment of laws was again
exercised when Congress enacted the Cityhood Laws.
When Congress enacted the LGC in 1991, it provided for
quantifiable indicators of economic viability for the
creation of local government unitsincome, population,
and land area. Congress deemed it fit to modify the
income requirement with respect to the conversion of
municipalities into component cities when it enacted
R.A. No. 9009, imposing an amount of P100 million,
computed
only
from
locally-generated
sources.
However, Congress deemed it wiser to exempt
respondent municipalities from such a belatedly
imposed modified income requirement in order to
uphold its higher calling of putting flesh and blood to the
very intent and thrust of the LGC, which is countryside
development and autonomy, especially accounting for
these municipalities as engines for economic growth in
their respective provinces.

Undeniably, R.A. No. 9009 amended the LGC. But it is

also true that, in effect, the Cityhood Laws amended
R.A. No. 9009 through the exemption clauses found
therein. Since the Cityhood Laws explicitly exempted
the concerned municipalities from the amendatory R.A.
No. 9009, such Cityhood Laws are, therefore, also
amendments to the LGC itself. For this reason, we
reverse the November 18, 2008 Decision and the August
24, 2010 Resolution on their strained and stringent view
that the Cityhood Laws, particularly their exemption
clauses, are not found in the LGC.

OPPOSITION OF LEAGUE OF CITIES CASE

Sec. 10, Art. 10 consti: No province, city, municipality or

barangay shall be created, divided, merged, abolished,
or its boundary substantially altered, except in
accordance with the criteria established in the lgc

and subject to approval by majority of the votes cast in a

plebiscite in the political units directly affected.

The consti is clear. The creation of lgus must follow the

criteria established in the lgc and not in any other
law. There is only one lgc. Congress cannot write
such criteria in any other law, like the Cityhood
laws.

No other law, not even the charter of the city, can

govern such creation. The clear intent of the consti is to
insure that the creation of cities and other political units
must follow the same uniform, non-discriminatory
criteria found solely in the lgc. Any derogation or
deviation from the criteria prescribed in the lgc violates
Sec. 10, Art. 10.

They were just pending bills at that time and thus have
no force and effect of a law.
League of Cities
(Feb. 15, 2011; April 12, 2011; June 28, 2011)

Granted the Motion for Reconsideration of the 16

Cities; reversed and set aside the 24 August
2010 Resolution of SC.

Decided in the basis if SCs reasoning in the 21

December 2009 Ruling that Congress intent to
exempt the 16 Cities from the operation of
RA 9009 should be respected.

PROVINCE OF NORTH COTABATO VS GRP

The RP entered into a MOA with the MILF. The MOA

provided for the creation of Bangsamoro Juridical Entity
(BJE) whereby there will be a some sort of government
structure. There will also be the territory of this
Bangsamoro juridical entity and it has also defined who
are the supposed constituents of such juridical entity.
Naay government, people, and territory. And insofar as it
is allowed to relate itself to foreign states, the MOA
provides that it can do so through the instrumentality of
the national government. In fact, under the MOA, it
mentioned of the so-called association kind of
relationship.

Such MOA is unconstitutional. If an associated state is

legally a state then it cannot exist in the Phils.
Remember, sovereignty is indivisible. You cannot divide
sovereignty, there should only be one authority.

Can an associated state be esta blished in the Phils.?

The concept of an associated state is not

sanctioned by the Constitution. Under Art. X,
the following are the only recognized political
subdivisions in the Phils.: Provinces, Cities,
Municipalities, Barangays and the ARMM and the

Cordilleras.

The MOA-AD is inconsistent with the Constitution

and laws as presently worded.

In general, the objections against the MOA-AD center on

the extent of the powers conceded therein to the BJE.
Petitioners assert that the powers granted to the BJE
exceed those granted to any local government under
present laws, and even go beyond those of the present
ARMM. Before assessing some of the specific powers
that would have been vested in the BJE, however, it
would be useful to turn first to a general idea that serves
as a unifying link to the different provisions of the MOAAD, namely, the international law concept of association.
Significantly, the MOA-AD explicitly alludes to this
concept, indicating that the Parties actually framed its
provisions with it in mind.

Association is referred to in paragraph 3 on TERRITORY,

paragraph 11 on RESOURCES, and paragraph 4 on
GOVERNANCE. It is in the last mentioned provision,
however, that the MOA-AD most clearly uses it to
describe the envisioned relationship between the BJE
and the Central Government.

4.
The
relationship
between
the
Central
Government and the Bangsamoro juridical entity
shall be associative characterized by shared
authority and responsibility with a structure of
governance based on executive, legislative, judicial and
administrative institutions with defined powers and
functions in the comprehensive compact. A period of
transition shall be established in a comprehensive peace
compact specifying the relationship between the Central
Government and the BJE. (Emphasis and underscoring
supplied)

The nature of the "associative" relationship may have

been intended to be defined more precisely in the still to
be forged Comprehensive Compact. Nonetheless, given
that there is a concept of "association" in international
law, and the MOA-AD - by its inclusion of international
law instruments in its TOR- placed itself in an
international legal context, that concept of association
may be brought to bear in understanding the use of the
term "associative" in the MOA-AD.

Keitner and Reisman state that [a]n association is

formed when two states of unequal power voluntarily
establish durable links. In the basic model, one state,
the associate, delegates certain responsibilities to
the other, the principal, while maintaining its
international status as a state. Free associations
represent a middle ground between integration
and independence. x x x150 (Emphasis and
underscoring supplied)

For purposes of illustration, the Republic of the Marshall

Islands and the Federated States of Micronesia (FSM),
formerly part of the U.S.-administered Trust Territory of
the Pacific Islands,151 are associated states of the U.S.
pursuant to a Compact of Free Association. The currency
in these countries is the U.S. dollar, indicating their very
close ties with the U.S., yet they issue their own travel
documents, which is a mark of their statehood. Their
international legal status as states was confirmed by the
UN Security Council and by their admission to UN
membership.

According to their compacts of free association, the

Marshall Islands and the FSM generally have the
capacity to conduct foreign affairs in their own name
and right, such capacity extending to matters such as
the law of the sea, marine resources, trade, banking,
postal, civil aviation, and cultural relations. The U.S.
government, when conducting its foreign affairs, is
obligated to consult with the governments of the
Marshall Islands or the FSM on matters which it (U.S.
government) regards as relating to or affecting either
government.

In the event of attacks or threats against the Marshall

Islands or the FSM, the U.S. government has the
authority and obligation to defend them as if they were
part of U.S. territory. The U.S. government, moreover,
has the option of establishing and using military areas
and facilities within these associated states and has the
right to bar the military personnel of any third country
from having access to these territories for military
purposes.

It bears noting that in U.S. constitutional and

international practice, free association is understood as
an international association between sovereigns. The
Compact of Free Association is a treaty which is
subordinate to the associated nation's national
constitution, and each party may terminate the
association consistent with the right of independence. It
has been said that, with the admission of the U.S.associated states to the UN in 1990, the UN recognized
that the American model of free association is actually
based on an underlying status of independence.152

In international practice, the "associated state"

arrangement has usually been used as a transitional
device of former colonies on their way to full
independence. Examples of states that have passed
through the status of associated states as a transitional
phase are Antigua, St. Kitts-Nevis-Anguilla, Dominica, St.
Lucia, St. Vincent and Grenada. All have since become
independent states.153

Back to the MOA-AD, it contains many provisions which

are consistent with the international legal concept of

association, specifically the following: the BJE's capacity
to enter into economic and trade relations with foreign
countries, the commitment of the Central Government
to ensure the BJE's participation in meetings and events
in the ASEAN and the specialized UN agencies, and the
continuing responsibility of the Central Government over
external defense. Moreover, the BJE's right to participate
in Philippine official missions bearing on negotiation of
border agreements, environmental protection, and
sharing of revenues pertaining to the bodies of water
adjacent to or between the islands forming part of the
ancestral domain, resembles the right of the
governments of FSM and the Marshall Islands to be
consulted by the U.S. government on any foreign affairs
matter affecting them.

These provisions of the MOA indicate, among other

things, that the Parties aimed to vest in the BJE the
status of an associated state or, at any rate, a
status closely approximating it.

The concept of association is not recognized

under the present Constitution

No province, city, or municipality, not even the ARMM, is

recognized under our laws as having an "associative"
relationship with the national government. Indeed, the
concept implies powers that go beyond anything ever
granted by the Constitution to any local or regional
government. It also implies the recognition of the
associated entity as a state. The Constitution, however,
does not contemplate any state in this jurisdiction other
than the Philippine State, much less does it provide for a
transitory status that aims to prepare any part of
Philippine territory for independence.

Even the mere concept animating many of the MOA-AD's

provisions, therefore, already requires for its validity the
amendment of constitutional provisions, specifically the
following provisions of Article X:

SECTION 1. The territorial and political subdivisions of

the Republic of the Philippines are the provinces,
cities, municipalities, and barangays. There shall be
autonomous regions in Muslim Mindanao and the
Cordilleras as hereinafter provided.

SECTION 15. There shall be created autonomous regions

in Muslim Mindanao and in the Cordilleras consisting of
provinces, cities, municipalities, and geographical areas
sharing common and distinctive historical and cultural
heritage, economic and social structures, and other
relevant characteristics within the framework of this
Constitution and the national sovereignty as well
as territorial integrity of the Republic of the
Philippines.

The BJE is a far more powerful

entity than the autonomous region
recognized in the Constitution

It is not merely an expanded version of the ARMM, the

status of its relationship with the national government
being fundamentally different from that of the ARMM.
Indeed, BJE is a state in all but name as it meets
the criteria of a state laid down in the Montevideo
Convention,154 namely, a permanent population, a
defined territory, a government, and a capacity to enter
into relations with other states.

Even assuming arguendo that the MOA-AD would not

necessarily sever any portion of Philippine territory, the
spirit animating it - which has betrayed itself by its
use of the concept of association - runs counter to the
national sovereignty and territorial integrity of
the Republic.

The defining concept underlying the relationship

between the national government and the BJE
being itself contrary to the present Constitution,
it is not surprising that many of the specific
provisions of the MOA-AD on the formation and
powers of the BJE are in conflict with the
Constitution and the laws.

Article X, Section 18 of the Constitution provides that

"[t]he creation of the autonomous region shall be
effective when approved by a majority of the votes cast
by the constituent units in a plebiscite called for the
purpose, provided that only provinces, cities, and
geographic areas voting favorably in such
plebiscite shall be included in the autonomous
region." (Emphasis supplied)

As reflected above, the BJE is more of a state than an

autonomous region. But even assuming that it is
covered by the term "autonomous region" in the
constitutional provision just quoted, the MOA-AD would
still be in conflict with it. Under paragraph 2(c) on
TERRITORY in relation to 2(d) and 2(e), the present
geographic area of the ARMM and, in addition, the
municipalities of Lanao del Norte which voted for
inclusion in the ARMM during the 2001 plebiscite - Baloi,
Munai, Nunungan, Pantar, Tagoloan and Tangkal - are
automatically part of the BJE without need of another
plebiscite, in contrast to the areas under Categories A
and B mentioned earlier in the overview. That the
present components of the ARMM and the abovementioned municipalities voted for inclusion therein in
2001, however, does not render another plebiscite
unnecessary under the Constitution, precisely because
what these areas voted for then was their inclusion in
the ARMM, not the BJE.

MARIANO VS COMELEC - Petitioners have not demonstrated

that the delineation of the land area of the proposed City of
Makati (without metes and bounds) will cause confusion as to
its boundaries. Congress has refrained from using the metes
and bounds description of land areas of other lgus with
unsettled boundary disputes.

Petitioners assail sec. 2 of RA 7854 as unconstitutional

on the ground that it did not properly identify the land
area or territorial jurisdiction of Makati by metes and
bounds, in violation of Sec. 10 of the 1987 consti in
relation to Secs. 7 and 450 of the LGC.

The requirement that the territory of newly-created lgus

be identified by metes and bounds is intended to
provide the means by which the area of the lgu may be
reasonably ascertained, i.e., as a tool in the
establishment of the lgu. As long as the territorial
jurisdiction of the newly created city may be reasonably
ascertained by referring to common boundaries with
neighboring municipalities then, the legislative intent
has been sufficiently served. [Note: RA 7854, which
converted Makati into a city, did not define the
boundaries of the new city by metes and bounds,
because of a territorial dispute between Makati and
Taguig, which was best left for the courts to decide.]

SEN. BENIGNO AQUINO III VS COMELEC

Section 5(3), Art VI of the 1987 Constitution requires
250,000 minimum population ony for a CITY to be
entitled to a representative, but not so for a province.

Requisites for Creation of a Province. (a) A province

may be created if it has an average annual income, as
certified by the Department of Finance, of not less than
Twenty million pesos (P20,000,000.00) based on 1991
constant prices and either of the following requisites:

(i) a contiguous territory of at least two thousand

(2,000) square kilometers, as certified by the
Lands Management Bureau; or

(ii) a population of not less than two hundred fifty

thousand (250,000) inhabitants as certified by
the National Statistics Office.

Notably, the requirement of population is not an

indispensable requirement, but is merely an
alternative addition to the indispensable income
requirement.

MUNICIPALITY OF JIMENEZ VS BAZ The technical description,

containing the metes and bounds of a municipalitys territory
stated in EO 258 creating the Municipality of Sinacaban,
Misamis Orinetal, is binding.

The issue is whether it is the boundary provided in EO

258 or in Resolution 77 which should be used as basis for

adjudicating Sinacabans claim.

Jimenez argues that the RTC erred in ordering a

relocation survey of the boundary of Sinacaban, because
the barangays which Sinacaban are claiming are not
enumerated in EO 258 and that in any event, the parties
entered into an agreement (Resolution 77) whereby the
barangays in question were considered part of the
territory of Jimenez. EO 258 does not say that Sinacaban
comprises only the barrios (now called barangays)
therein mentioned. What it says is that Sinacaban
contains those barrios without saying they are the only
ones comprising it. The reason for this is that technical
description, containing the metes and bounds of its
territory, is controlling.

The trial court correctly ordered a relocation survey as

the only means of determining the boundaries of the
municipality and consequently the question to which
municipality
the
barangays
questioned
belong.
Therefore, if Resolution 77 is contrary to the technical
description of the territory of Sinacaban, it cannot be
used by Jimenez as basis for opposing the claim.

b. Specific Requirements: Income, Land and Population Requirements

Barangay

Section 385. Manner of Creation. - A barangay may be

created, divided, merged, abolished, or its boundary
substantially altered, by law or by an ordinance of
the sangguniang panlalawigan or panlungsod, subject to
approval by a majority of the votes cast in a plebiscite to
be conducted by the COMELEC in the local government
unit or units directly affected within such period of time
as may be determined by the law or ordinance creating
said barangay. In the case of the creation of
barangays by the sangguniang panlalawigan, the
recommendation of the sangguniang bayan
concerned shall be necessary.

Section 386. Requisites for Creation.

(a) A barangay may be created out of a

contiguous territory which has a population of at
least two thousand (2,000) inhabitants as
certified by the National Statistics Office except
in cities and municipalities within Metro Manila
and other metropolitan political subdivisions or in
highly urbanized cities where such territory shall
have a certified population of at least five
thousand (5,000) inhabitants: Provided, That the
creation thereof shall not reduce the population
of the original barangay or barangays to less
than the minimum requirement prescribed
herein.

To enhance the delivery of basic services in the

indigenous cultural communities, barangays may

be created in such communities by an Act of
Congress,
notwithstanding
the
above
requirement.

(b) The territorial jurisdiction of the new barangay

shall be properly identified by metes and bounds
or by more or less permanent natural boundaries.
The territory need not be contiguous if it
comprises two (2) or more islands.

(c) The governor or city mayor may prepare a

consolidation plan for barangays, based on the
criteria prescribed in this Section, within his
territorial jurisdiction. The plan shall be submitted
to the sangguniang panlalawigan or sangguniang
panlungsod concerned for appropriate action.

In the case of municipalities within the

Metropolitan Manila Area and other metropolitan
political subdivisions, the barangay consolidation
plan shall be prepared and approved by the
sangguniang bayan concerned.

Municipality

Section 441. Manner of Creation. - A municipality may

be created, divided, merged, abolished, or its boundary
substantially altered only by an Act of Congress and
subject to the approval by a majority of the votes cast in
a plebiscite to be conducted by the COMELEC in the
local government unit or units directly affected. Except
as may otherwise be provided in the said Act, the
plebiscite shall be held within one hundred twenty (120)
days from the date of its effectivity.

Section 442. Requisites for Creation.

(a) A municipality may be created if it has an

average annual income, as certified by the
provincial treasurer, of at least Two million five
hundred thousand pesos (P2,500,000.00) for the
last two (2) consecutive years based on the 1991
constant prices; a population of at least twentyfive thousand (25,000) inhabitants as certified by
the National Statistics Office; and a contiguous
territory of at least fifty (50) square kilometers as
certified by the Lands Management Bureau:
Provided, That the creation thereof shall not
reduce the land area, population or income of the
original municipality or municipalities at the time
of said creation to less than the minimum
requirements prescribed herein.

(b) The territorial jurisdiction of a newlycreated municipality shall be properly

identified by metes and bounds. The
requirement on land area shall not apply

where the municipality proposed to be

created is composed of one (1) or more
islands.
The
territory
need
not
be
contiguous if it comprises two (2) or more
islands.

(c) The average annual income shall include the

income accruing to the general fund of the
municipality concerned, exclusive of special
funds, transfers and non-recurring income.

(d) Municipalities existing as of the date of the

effectivity of this Code shall continue to exist and
operate as such. Existing municipal districts
organized pursuant to presidential issuances or
executive orders and which have their respective
set of elective municipal officials holding office at
the time of the effectivity of this Code shall
henceforth
be
considered
as
regular
municipalities.

City

Section 449. Manner of Creation. - A city may be

created, divided, merged, abolished, or its boundary
substantially altered, only by an Act of Congress, and
subject to approval by a majority of the votes cast in a
plebiscite to be conducted by the COMELEC in the local
government unit or units directly affected. Except as
may otherwise be provided in such Act. the plebiscite
shall be held within one hundred twenty (120) days from
the date of its effectivity.

Section 450. Requisites for Creation.

(a) A municipality or a cluster of barangays may

be converted into a component city if it has an
average annual income, as certified by the
Department of Finance, of at least Twenty million
(P20,000,000.00) for the last two (2) consecutive
years based on 1991 constant prices, and if it has
either of the following requisites:

(i) a contiguous territory of at least one

hundred (100) square kilometers, as
certified by the Lands Management
Bureau; or

(ii) a population of not less than one

hundred
fifty
thousand
(150,000)
inhabitants, as certified by the National
Statistics Office:

Provided, That, the creation thereof shall

not reduce the land area, population, and
income of the original unit or units at the
time of said creation to less than the

minimum requirements prescribed herein.

(b) The territorial jurisdiction of a newly-created

city shall be properly identified by metes and
bounds. The requirement on land area shall not
apply where the city proposed to be created is
composed of one (1) or more islands. The
territory need not be contiguous if it comprises
two (2) or more islands.

(c) The average annual income shall include the

income accruing to the general fund, exclusive of
specific funds, transfers, and non-recurring
income.

Section 452. Highly Urbanized Cities.

(a) Cities with a minimum population of two

hundred thousand (200,000) inhabitants as
certified by the National Statistics Office, and
within the latest annual income of at least Fifty
Million Pesos (P50,000,000.00) based on 1991
constant prices, as certified by the city treasurer,
shall be classified as highly urbanized cities.

(b) Cities which do not meet above requirements

shall be considered component cities of the
province in which they are geographically
located. If a component city is located within the
boundaries of two (2) or more provinces, such
city shall be considered a component of the
province of which it used to be a municipality.

(c) Qualified voters of highly urbanized cities

shall remain excluded from voting for elective
provincial officials.

Unless otherwise provided in the Constitution or

this Code, qualified voters of independent
component cities shall be governed by their
respective charters, as amended, on the
participation of voters in provincial elections.

Qualified voters of cities who acquired the right

to vote for elective provincial officials prior to the
classification of said cities as highly-urbanized
after the ratification of the Constitution and
before the effectivity of this Code, shall continue
to exercise such right.

Section 453. Duty to Declare Highly Urbanized Status. It shall be the duty of the President to declare a city as
highly urbanized within thirty (30) days after it shall
have met the minimum requirements prescribed in the
immediately preceding section, upon proper application
therefor and ratification in a plebiscite by the qualified
voters therein.

RA 9009

Section 1.
Sec. 450 of Republic Act No. 7160,
otherwise known as the Local Government Code
of 1991, is hereby amended to read as follows:

Sec. 450.
Requisites for Creation. (a) A
municipality or a cluster of barangays may
be converted into a component city if it has a
locally generated average annual income,
as certified by the Department of Finance, of at
least
One
hundred
million
pesos
(P100,000,000.00)
for
the
last
two
(2)
consecutive years based on 2000 constant
prices, and if it has either of the following
requisites:

(i)
a contiguous territory of at least one
hundred (100) square kilometers, as
certified by the Land Management
Bureau; or

(ii)
a population of not less than one
hundred
fifty
thousand
(150,000)
inhabitants, as certified by the National
Statistics Office.

The creation thereof shall not reduce the land

area, population and income of the original unit
or units at the time of said creation to less than
the minimum requirements prescribed herein.

(b) The territorial jurisdiction of a newly-created

city shall be properly identified by metes and
bounds. The requirement on land area shall not
apply where the city proposed to be created is
composed of one (1) or more islands. The
territory need not be contiguous if it comprises
two (2) or more islands.

(c)
The average annual income shall include
the income accruing to the general fund,
exclusive of special funds, transfers, and nonrecurring income."

Province

Section 460. Manner of Creation. - A province may be

created, divided, merged, abolished, or its boundary
substantially altered, only by an Act of Congress and
subject to approval by a majority of the votes cast in a
plebiscite to be conducted by the COMELEC in the local
government unit or units directly affected. The plebiscite
shall be held within one hundred twenty (120) days from
the date of effectivity of said Act, unless otherwise
provided therein.

Section 461. Requisites for Creation.

(a) A province may be created if it has an

average annual income, as certified by the

Department of Finance, of not less than

Twenty million pesos (P20,000,000.00)
based on 1991 constant prices and either of
the following requisites:

(i) a contiguous territory of at least

two
thousand
(2,000)
square
kilometers, as certified by the Lands
Management Bureau; or

(ii) a population of not less than two

hundred fifty thousand (250,000)
inhabitants as certified by the
National Statistics Office:

Provided, That, the creation thereof shall

not reduce the land area, population, and
income of the original unit or units at the
time of said creation to less than the
minimum requirements prescribed herein.

(b) The territory need not be contiguous if it

comprise two (2) or more islands or is separated
by a chartered city or cities which do not
contribute to the income of the province.

(c) The average annual income shall include the

income accruing to the general fund, exclusive of
special funds, trust funds, transfers and nonrecurring income.

Based on the verifiable indicators of viability and projected

capacity to provide services, to wit:

i. Income must be sufficient, based on acceptable

standards, to provide for all essential government
facilities
and
services
and
special
functions
commensurate with the size of its population, as
expected of the lgu concerned. Average annual income
for the last 2 consecutive years based on 1991 constant
prices should be at least:

a. Municipality: 2.5m

b. City: 100m (Yr. 2000 constant prices, amended

by RA 9009)

ALVAREZ VS GUINGONA Internal

Revenue Allotments (IRAs) should be
included in the computation of the
average
annual
income
of
the
municipality. If you look at the criterion
income, it has to be based on income
that accrues to the general fund, that is
therefore regularly received by the lgu, so
this excludes special funds, trust funds,
transfers and non-recurring income. IRA is
regularly accruing to the general fund, in
fact, it is regularly released and

automatically released to the lgus.

But under RA 9009, it is specifically

provided that for conversion to cities, the
municipalitys income should not include
the IRA.

c. Highly urbanized city: 50m

d. Province: 20m

e. Barangay: No income requirement

ii. Population it shall be determined as the total number

of inhabitants (not registered voters) within the territorial
jurisdiction of the lgu concerned. Required minimum
population for:

a. Barangay: 2k inhabitants (except in Metro

Manila
and
other
metropolitan
political
subdivisions or in highly urbanized cities, where
the requirement is 5k inhabitants)

b. Municipality: 25k

c. City: 150k

d. Highly urbanized city: 200k

e. Province: 250k

iii. Land Area it must be contiguous, unless it

comprises 2 or more islands or is separated by a lgu
independent of the others; properly identified by metes
and bounds with technical descriptions and sufficient to
provide for such basic services and facilities to meet the
requirements of its populace. Area requirements are:

a. Municipality: 50 sq. km. except when its

composed of 1 or more islands, in which case, the
land area requirement does not apply

b. City: 100 sq. km.

c. Province: 2k sq. km.

Compliance with the foregoing indicators shall be

attested to by the DOF as to income, the NSO as to
population and the Lands Management Bureau of the
DENR as to land area.

Note: In RA 9009, if you create a lgu or a city, it mentions of 2

ways by which the city may be created and may be covered by
RA 9009:

i. When you create a city out of a cluster of barangays;

or

ii. You convert a municipality into a city

Plebiscite requirement: Questions

Who shall participate? TAN VS COMELEC

What are the units affected?PADILLA VS COMELEC

In what sense affected? There will be a reduction on the

part of the mother province in the following areas:

Territory

Land Area (c/o DENR)

Income

(c/o Dept. of Finance)

Population

(c/o NSO)

How is it different from the

autonomous regions?

manner of creating

Bar question: Madako is a municipality composed of 80

barangays, 30 west of Madako river and 50 in the east. The 30
western barangays, feeling left out of economic initiatives,
wished to constitute themselves into a new and separate town
to be called Masigla.
Granting that Masiglas proponent succeed to secure a law
in their favor, would a plebiscite be necessary or not? If it is
necessary, who should vote or participate in the plebiscite?

YES. All residents of Madako municipality.

Note: In terms of criteria, what is constant is only the

income requirement.

B. Specific Requirements
BARANGAY: population
MUNICIPALITY:
CITIES:

income, population and Land Area

Income and population OR Land Area

HIGHLY URBANIZED CITIES: Income and population

PROVINCE: Income and population OR Land Area
Common Standards for Compliance of Criteria:
Land Area:

Comply with area requirements, unless as island;

Must be contiguous, unless

Two or more islands, or

Separated by chartered citites ir cities which do not

contribute to the income of province (for province and cities)
(SEC. 7, LGC)

Income Requirement

In the case of conversion of a municipality into a city or a

cluster of barangays to be formed into a new city, RA
9009, enacted on June 30, 2001 and amending Sec. 450

of the Code, IRAs are no longer included in the

computation of the annual income for purposes of
complying with the income requirement. Income refers
to locally generated income.

Is it required that there should be technical description for land

area requirement?

So that if what is to be created is a province, ALVAREZ

VS GUINGONA is still relevant. Thus, ALVAREZ VS
GUINGONA is still relevant insofar as other lgus are
concerned.

MARIANO VS COMELEC, therefore, technical description

is not really required. [Sirs opinion: Pro hac vice
because of the unsettled boundary disputes]

NAVARRO VS ERMITA this is a case involving a province, which

has a different rule when compared to a municipality in terms of
land area requirement

Par. 2 of Art. 9 in the IRR of the LGC of 1991, which

states that the land area requirement shall not apply
where the proposed province is composed of 1 or more
islands violates the LGC of 1991 and therefore null
and void.

Nowhere in the LGC is the said provision stated or

implied. Under Sec. 461 of the LGC, the only instance
when the territorial or land area requirement need not
be complied with is when there is already compliance
with the population requirement.

MR OF NAVARRO VS ERMITA

It bears scrupulous notice that from the above cited

provisions, with respect to the creation of barangays,
land area is not a requisite indicator of viability.
However, with respect to the creation of municipalities,
component cities, and provinces, the three (3) indicators
of viability and projected capacity to provide services,
i.e., income, population, and land area, are provided for.

But it must be pointed out that when the local

government unit to be created consists of one (1) or
more islands, it is exempt from the land area
requirement as expressly provided in Section 442 and
Section 450 of the LGC if the local government unit to be
created is a municipality or a component city,
respectively.
This exemption is absent in the
enumeration of the requisites for the creation of a
province under Section 461 of the LGC, although it is
expressly stated under Article 9(2) of the LGC-IRR.

There appears neither rhyme nor reason why this

exemption should apply to cities and municipalities, but
not to provinces.
In fact, considering the physical
configuration of the Philippine archipelago, there is a
greater likelihood that islands or group of islands would

form part of the land area of a newly-created province

than in most cities or municipalities. It is, therefore,
logical to infer that the genuine legislative policy
decision
was
expressed
in
Section
442
(for
municipalities) and Section 450 (for component cities) of
the LGC, but was inadvertently omitted in Section 461
(for provinces).
Thus, when the exemption was
expressly provided in Article 9(2) of the LGC-IRR, the
inclusion was intended to correct the congressional
oversight in Section 461 of the LGC and to reflect the
true legislative intent. It would, then, be in order for the
Court to uphold the validity of Article 9(2) of the LGCIRR.

This interpretation finds merit when we consider the

basic policy considerations underpinning the principle of
local autonomy.

Consistent with the declared policy to provide local

government units genuine and meaningful local
autonomy, contiguity and minimum land area
requirements for prospective local government units
should be liberally construed in order to achieve the
desired results. The strict interpretation adopted by the
February 10, 2010 Decision could prove to be counterproductive, if not outright absurd, awkward, and
impractical. Picture an intended province that consists
of several municipalities and component cities which, in
themselves, also consist of islands. The component
cities and municipalities which consist of islands are
exempt from the minimum land area requirement,
pursuant to Sections 450 and 442, respectively, of the
LGC. Yet, the province would be made to comply with
the minimum land area criterion of 2,000 square
kilometers, even if it consists of several islands. This
would mean that Congress has opted to assign a
distinctive preference to create a province with
contiguous land area over one composed of islands
and negate the greater imperative of development of
self-reliant communities, rural progress, and the delivery
of basic services to the constituency. This preferential
option would prove more difficult and burdensome if the
2,000-square-kilometer territory of a province is
scattered because the islands are separated by bodies
of water, as compared to one with a contiguous land
mass.

Moreover, such a very restrictive construction could

trench on the equal protection clause, as it actually
defeats
the
purpose
of local
autonomy
and
decentralization as enshrined in the Constitution.
Hence, the land area requirement should be read
together with territorial contiguity.

Note of CARPIOs DISSENT that the majority opinion

will allow the creation of a province with only one (1) unit
(say a municipality) instead of various component LGUs.

MUNICIPALITY OF CANDIJAY VS CA The municipality of Alicia

should benefit from the effects of Sec. 442(d) of the LGC, and
should be considered a regular, de jure municipality.

We noted that petitioner should commenced its

collateral attack on the juridical personality of
respondent municipality on Jan. 19, 1984 (or some 35
years after respondent municipality first came into
existence in 1949) during the proceedings in the court a
quo. It appears that, after presentation of its evidence,
herein petitioner asked the trial court to bar respondent
municipality from presenting its evidence on the ground
that it had no juridical personality. Petitioner contended
that EO 265 issued by President Quirino on Sept. 16,
1949 creating respondent municipality is null and void
ab initio, inasmuch as Sec. 68 of the RAC, on which said
EO was based, constituted an undue delegation of
legislative powers to the President of the Phils., and was
therefore declared unconstitutional, per this Courts
ruling in Pelaez vs. Auditor General.

Respondent municipality of Alicia was created by virtue

of EO 265 in 1949 and various governmental acts
throughout the years all indicate the States recognition
and acknowledgement of the existence thereof. For
instance, under Administrative Order No. 33, the
Municipality of Alicia was covered by the 7 th Municipal
Circuit Court of Alicia-Mabini for the province of Bohol.
Likewise, under the Ordinance appended to the 1987
consti, the municipality of Alicia is one of 21
municipalities comprising the 3rd district of Bohol.

The municipality of Alicia should benefit from the effects

of Sec. 442(2) of the LGC, and should henceforth be
considered as a regular, de jure municipality.

c. Procedure

i. In Creation of Lgu

ii. In Conversion of City to Highly Urbanized City

Arts. 9-14 IRR

Art. 9. Provinces. (b) Procedure for creation

(1) Petition - Interested municipalities or

component cities shall submit the petition, in the
form of a resolution, of their respective
sanggunians requesting the creation of a new
province to the Congress, and furnish copies
thereof to the sangguniang panlalawigan of the
original province or provinces.

(2) Comments on petition - The sangguniang

panlalawigan of the original province or provinces

shall submit to the Congress its comments and
recommendations on the petition for creation of
the proposed province.

(3) Documents to Support Petition - The

following documents shall be attached to the
petition for creation:

(i) Certification by DOF that the average

annual income of the proposed province
meets the minimum income requirement
and that its creation will not reduce the
income, based on 1991 constant prices, of
the original LGU or LGUs to less than the
prescribed minimum;

(ii) Certification by the NSO as to

population of the proposed province and
that its creation will not reduce the
population of the original LGUs to less
than the prescribed minimum;

(iii) Certification by LMB that the land area

of the proposed province meets the
minimum land area requirement and that
its creation will not reduce the land area
of the original LGU or LGUs to less than
the prescribed minimum;

(iv) Map of the original LGU or LGUs,

indicating the areas to be created into a
province. The map shall be prepared by
the provincial, city, or district engineer
and shall clearly indicate the road network
within the proposed province; and

(v) Such other information that

petitioners may deem relevant
consideration in the petition.

All costs incurred in the production of the

required documents shall be borne by the
petitioning LGUs.

the
for

(4) Law enacted by Congress

(5) Plebiscite

(i) Upon the effectivity of the law

creating a province, the Comelec
shall conduct a plebiscite in the LGU or
LGUs directly affected within one hundred
twenty (120) days or within the period
specified in the law.

(ii) The Comelec shall conduct an

intensive information campaign in the
LGUs concerned at least twenty (20) days

prior to the plebiscite. For this purpose,

the Comelec may seek the assistance of
national and local government officials,
mass media, NGOs, and other interested
parties.

Art. 11. Cities. (b) Procedure for creation

(1) Petition - Interested municipalities or

barangays shall submit the petition, in the form
of a resolution, of their respective sanggunians
requesting the creation of a new city to the
Congress, and furnish copies thereof to the
sangguniang
panlalawigan
or
sangguniang
panlungsod of the LGUs concerned.

(2) Comments on petition - The sangguniang

panlalawigan or sangguniang panlungsod shall
submit to the Congress its comments and
recommendations on the petition for creation of
the city.

(3) Documents to support petition - The following

documents shall be attached to the petition for
creation:

(i) Certification by DOF that the average

annual income of the proposed city meets
the minimum income requirement and
that its creation will not reduce the
income based on 1991 constant prices, of
the original LGU or LGUs to less than the
prescribed minimum;

(ii) Certification by NSO as to population of

the proposed city and that its creation will
not reduce the population of the original
LGUs to less than the prescribed
minimum;

(iii) Certification by LMB that the land area

of the proposed city meets the minimum
land area requirement and that its
creation will not reduce the land area of
the original LGU or LGUs to less than the
prescribed minimum;

(iv) Map of the original LGU or LGUs,

indicating the areas to be created into a
city. The map shall be prepared by the
provincial, city, or district engineer as the
case may be and shall clearly indicate the
road network within the proposed city;

(v) Certification by LMB that disposable

and alienable public lands are available in
the area to be created into a city sufficient
to meet its growing population and the

following purposes:

o Government center site of not

less than ten thousand (10,000)
square meters which shall include
the city hall site and those of other
government buildings;

o Market site of not less than ten

thousand (10,000) square meters,
located out of view of the city hall,
schools, plaza, and cemetery and
near but not along a provincial
road, railroad station, navigable
river, or sea;

o Plaza or park of not less than ten

thousand (10,000) square meters
located preferably in front of the
city hall;

o School site of not less than ten

thousand (10,000) square meters,
in well- drained location that
conforms with the requirements
prescribed
by
public
school
authorities; and

o Cemetery site of not less than

five thousand (5,000) square
meters for every ten thousand
(10,000)
population
which
conforms with the requirements
prescribed
by
the
health
authorities;

(vi) Number and nature of existing and

commercial establishments in the territory
of the proposed city as certified by NSO;

(vii) Sources of potable water supply for

the inhabitants as certified by the Local
Water Utilities Administration (LWUA) or
the
Metropolitan
Waterworks
and
Sewerage System (MWSS), as the case
may be;

(viii) Facilities, plans, and site for

sewerage, garbage and waste disposal as
certified by the local engineer; and

(ix) Such other information that

petitioners may deem relevant
consideration in the petition.

All costs incurred in the production of the

required documents shall be borne by the
petitioning LGUs.

the
for

(4) Plebiscite

(i) Upon the effectivity of the law creating

a city, the Comelec shall conduct a
plebiscite in the LGUs directly affected
within one hundred twenty (120) days or
within the period specified in the law.

(ii) The Comelec shall conduct an

intensive information campaign in the
LGUs concerned at least twenty (20) days
prior to the plebiscite. For this purpose,
the Comelec may seek the assistance of
national and local government officials,
mass media, NGOs, and other interested
parties.

Art. 12. Conversion of a Component City Into a HighlyUrbanized City. (b) Procedure for conversion

(1) Resolution - The interested component

city shall submit to the Office of the
President a resolution of its sanggunian
adopted by a majority of all its members in a
meeting duly called for the purpose, and
approved and endorsed by the city mayor. Said
resolution shall be accompanied by certifications
as to income and population.

(2) Declaration of conversion - Within thirty

(30) days from receipt of such resolution,
the President shall, after verifying that the
income and population requirements have
been met, declare the component city as
highly-urbanized.

(3) Plebiscite - Within one hundred twenty (120)

days from the declaration of the President or as
specified in the declaration, the Comelec shall
conduct a plebiscite in the city proposed to be
converted. Such plebiscite shall be preceded by a
comprehensive information campaign to be
conducted by the Comelec with the assistance of
national and local government officials, media,
NGOs, and other interested parties.

(c) Effect of Conversion - The conversion of a

component city into a highly-urbanized city shall
make it independent of the province where it is
geographically located.

Art. 13. Municipalities. (b) Procedure for creation

(1) Petition - Interested barangays shall submit

the petition, in the form of a resolution, of their
respective sanggunians requesting the creation
of a new municipality to the Congress, and
furnish copies thereof to the sangguniang

panlalawigan,
sangguniang
panlungsod,
sangguniang bayan of the LGUs concerned.

or

(2) Comments on petition - The sangguniang

panlungsod or sangguniang bayan, together with
the sangguniang panlalawigan, shall submit to
the
Congress
its
comments
and
recommendations on the petition for creation of
the municipality.

(3) Documents to support petition - The following

documents shall be attached to the petition for
creation:

(i) Certification by the provincial treasurer,

in the case of municipalities and
component cities, and the city treasurer,
in the case of highly-urbanized cities, that
the average annual income of the
proposed
municipality
meets
the
minimum income requirement and that its
creation will not reduce the income, based
on 1991 constant prices, of the original
LGU or LGUs to less than the prescribed
minimum;

(ii) Certification by NSO as to population of

the proposed municipality and that its
creation will not reduce the population of
the original LGU or LGUs to less than the
prescribed minimum;

(iii) Certification by the LMB that the land

area of the proposed municipality meets
the minimum land area requirement and
that its creation will not reduce the land
area of the original LGU or LGUs to less
than the prescribed minimum;

(iv) Map of the original LGU or LGUs,

indicating the areas to be created into a
municipality. The map shall be prepared
by the provincial, city, or district engineer
as the case may be and shall clearly
indicate the road network within the
proposed city;

(v) Certification by LMB that disposable

and alienable public lands are available in
the area to be created into a municipality
sufficient to meet its growing population
and the following purposes:

o Government center site of not

less than five thousand (5,000)
square meters which shall include
the municipal hall site and those of
other government buildings;

o Market site of not less than five

thousand (5,000) square meters,
located out of view of the
municipal hall, schools, plaza, and
cemetery and near but not along a
provincial road, railroad station,
navigable river, or sea;

o Plaza or park of not less than five

thousand (5,000) square meters
located preferably in front of the
municipal hall;

o School site of not less than five

thousand (5,000) square meters, in
well-drained location that conforms
with the requirements prescribed
by public school authorities; and

o Cemetery site of not less than

five thousand (5,000) square
meters for every ten thousand
(10,000)
population
which
conforms with the requirements
prescribed by health authorities.

(vi) Number and nature of existing

industrial and commercial establishments
in
the
territory
of
the
proposed
municipality as certified by NSO;

(vii) Sources of potable water supply for

the inhabitants as certified by LWUA or
MWSS, as the case may be;

(viii) Facilities, plans, and site for

sewerage, garbage and waste disposal as
certified by the local engineer; and

(ix) Such other information that

petitioners may deem relevant
consideration in the petition.

All costs incurred in the production of the

required documents shall be borne by the
petitioning LGUs.

the
for

(4) Plebiscite

(i) Upon the effectivity of the law creating

a municipality, the Comelec shall conduct
a plebiscite in the LGUs directly affected
within one hundred twenty (120) days or
within the period specified in the law.

(ii) The Comelec shall conduct an

intensive information campaign in the
LGUs concerned at least twenty (20) days
prior to the plebiscite. For this purpose,

the Comelec may seek the assistance of

national and local government officials,
mass media, NGOS, and other interested
parties.

Art. 14. Barangays. - (a) Creation of barangays by the

sangguniang
panlalawigan
shall
require
prior
recommendation of the sangguniang bayan.

(b) New barangays in the municipalities within MMA shall

be created only by Act of Congress, subject to the
limitations and requirements prescribed in this Article.

(c) Notwithstanding the population requirement, a

barangay may be created in the indigenous cultural
communities by Act of Congress upon recommendation
of the LGU or LGUs where the cultural community is
located.

(e) Procedure for creation

(1) Petition - A written petition of a majority of

the registered voters residing in the area sought
to be created or resolutions of the sangguniang
barangays desiring to be merged, as the case
may be, shall be presented to the sangguniang
panlalawigan, upon recommendation of the
sangguniang bayan concerned, or to the
sangguniang panlungsod, for appropriate action.

In the case of municipalities within MMA, a similar

petition or resolution shall be presented to the
Congress,
upon
recommendation
of
the
sangguniang bayan concerned.

(2) Documents to support petition - In addition to

the petition or resolution, the following shall be
submitted:

(i) Certification by NSO as to the

population of the proposed barangay and
that its creation will not reduce the
population of the original barangay or
barangays to less than the prescribed
minimum.

(ii) Map of the original barangay or

barangays indicating the areas to be
created into a new barangay and technical
description certified by LMB or city or
municipal assessor, as the case may be.

All costs incurred in the production of the

required documents shall be borne by the
petitioning LGUs.

(3) Comments on petition - The presiding officer

of the sangguniang bayan shall require the
sangguniang barangay of the original barangay

or barangays to submit their comments on the

proposed creation within twenty (20) days after
receipt of said petition or resolution which shall
serve as basis for recommending appropriate
action thereon to the sangguniang panlalawigan.

(4) Action on petition - The sangguniang

panlalawigan or sangguniang
panlungsod
shall, within fifteen (15) days from submission of
the petition and other required supporting
documents, take action granting or denying the
petition.

(i) The ordinance granting the petition

creating a new barangay shall be
approved by two- thirds (2/3) of all the
members
of
the
sangguniang
panlalawigan or sangguniang panlungsod.

The ordinance shall properly identify by

metes and bounds or by natural
boundaries, the territorial jurisdiction of
the new barangay. The ordinance shall
likewise fix the date of the plebiscite to be
conducted by the Comelec in the area or
areas directly affected to ratify the
creation of the new barangay.

(ii) A denial shall be in the form of a

resolution stating clearly the facts and
reasons for such denial.

(5) Submission of ordinance to the Comelec Within thirty (30) days before the plebiscite, the
secretary to the sangguniang panlalawigan or
sangguniang panlungsod shall furnish the
Comelec with a signed official copy of the
ordinance creating the barangay.

(6) Conduct of information campaign - The

Comelec shall conduct an intensive information
campaign in the LGUs concerned at least ten (10)
days prior to the plebiscite. For this purpose, the
Comelec may seek the assistance of national and
local government officials, mass media, NGOs,
and other interested parties.

(7) Submission of plebiscite results - At least

seven (7) days after the conduct of the plebiscite,
the city or municipality concerned shall submit
the Certificates of Canvass of Votes Cast,
Statement of Affirmative and Negative Votes,
Abstentions Cast in every voting center as well as
the provincial or city ordinance creating the
barangay to the Comelec and DILG central office
for inclusion in the Official Masterlist of
Barangays.

2. Division and Merger

a. Requirements:

Same as creation and conversion

b. Conditions and Limitations

Section 8. Division and Merger. - Division and merger of existing

local government units shall comply with the same
requirements herein prescribed for their creation: Provided,
however, That such division shall not reduce the income,
population, or land area of the local government unit or
units concerned to less than the minimum requirements
prescribed in this Code: Provided, further, That the
income classification of the original local government
unit or units shall not fall below its current classification
prior to such division.

The income classification of local government units shall be

updated within six (6) months from the effectivity of this Code
to reflect the changes in their financial position resulting from
the increased revenues as provided herein.

Merger, no problem because it will result to a creation of a

larger lgu.

But on Division Conditions and Limitations on Division:

should not reduce the (1) land area, population, and

income to less than the minimum requirements under
the Code, and (2) income classification of the original
LGU affected. (Sec. 8, LGC)

Reason: This is to prevent the violation of the principle

on vested-right theory.

3. Substantial Alteration of Boundaries

a. Requirements
Same as creation and conversion, except that the criteria on
income and population are not factors to consider.
But, the alteration of the boundaries..

Section 6. Authority to Create Local Government Units. - A local

government unit may be created, divided, merged, abolished,
or its boundaries substantially altered either by law enacted by
Congress in the case of a province, city, municipality, or any
other political subdivision, or by ordinance passed by the
sangguniang panlalawigan or sangguniang panlungsod
concerned in the case of a barangay located within its territorial
jurisdiction, subject to such limitations and requirements
prescribed in this Code.

Section 10. Plebiscite Requirement. - No creation, division,

merger, abolition, or substantial alteration of boundaries of local
government units shall take effect unless approved by a
majority of the votes cast in a plebiscite called for the purpose
in the political unit or units directly affected. Said plebiscite
shall be conducted by the Commission on Elections (COMELEC)
within one hundred twenty (120) days from the date of

effectivity of the law or ordinance effecting such action, unless

said law or ordinance fixes another date.

In substantial alteration of boundaries, same conditions and

limitations on division, except when the criteria on income and
population are not factors to consider, and should not also
reduce the minimum requirements on land area.

4. Abolition

a. Grounds and Conditions

Section 9. Abolition of Local Government Units. - A local

government unit may be abolished when its income,
population, or land area has been irreversibly reduced to less
than the minimum standards prescribed for its creation under
Book III of this Code, as certified by the national agencies
mentioned in Section 7 hereof to Congress or to the
sangguniang concerned, as the case may be.

The law or ordinance abolishing a local government unit shall

specify the province, city, municipality, or barangay with which
the local government unit sought to be abolished will be
incorporated or merged.

Issue: WON the income requirement should be constant? Relate

this to the issue on WON the barangay would still be entitled to
the IRA when the population has reduced, such as what
happened in St. Bernard wherein the landslide covered the
whole barangay with mud soil, so the inhabitants for a certain
period of time did not reside there?

DILG OPINION If we refused to distribute IRA to such

barangay, that is to consider such barangay as having
been abolished, meaning inexistent, but according to
DILG, if there is reduction, provided it is irreversible, it
only provides for a ground for abolition, so there must
first be a governmental act just like the way we create
an lgu in order to abolish a lgu, so its not automatic.

So its not constant (automatic), but it may only provide

for a ground for abolition.

B. Autonomous Regions (Muslim Mindanao and the Cordilleras)

1. Creation

Sec. 15, 18-19, Art. 10 consti

Section 15. There shall be created autonomous regions in

Muslim Mindanao and in the Cordilleras consisting of provinces,
cities, municipalities, and geographical areas sharing common
and distinctive historical and cultural heritage, economic and
social structures, and other relevant characteristics within the
framework of this Constitution and the national sovereignty as
well as territorial integrity of the Republic of the Philippines.

Section 18.The Congress shall enact an organic act for

each autonomous regionwith the assistance and

participation of the regional consultative commission

composed of representatives appointed by the President
from a list of nominees from multi-sectoral bodies. The
organic act shall define the basic structure of
government for the region consisting of the executive
department and legislative assembly, both of which
shall be elective and representative of the constituent
political units. The organic acts shall likewise provide for
special courts with personal, family, and property law
jurisdiction consistent with the provisions of this
Constitution and national laws. [Note: To this extent,
decentralization of power is possible or true, meaning, insofar
as the autonomous regions are concerned, theyre made to be,
to some extent, an abdication of political power]

The creation of the autonomous region shall be effective

when approved by majority of the votes cast by the
constituent units in a plebiscite called for the purpose,
provided that only provinces, cities, and geographic areas
voting favorably in such plebiscite shall be included in the
autonomous region.

Section 19. The first Congress elected under this Constitution

shall, within eighteen months from the time of organization of
both Houses, pass the organic acts for the autonomous regions
in Muslim Mindanao and the Cordilleras.

As a general rule, the autonomous regions will be governed by their

organic acts. [This is different because lgus will have to be governed
primarily by the LGC and secondarily by their charter insofar as the
provisions are not inconsistent with the Code.]

Purposes of the plebiscite:

i. To determine the will of the people WON, in the first place, to

create autonomous region

ii. To determine which lgu shall form part of the autonomous

region

ABBAS VS COMELEC

As provided in the Constitution, the creation of the Autonomous

region in Muslim Mindanao is made effective upon the approval
"by majority of the votes cast by the constituent units in a
plebiscite called for the purpose" [Art. X, sec. 18]. The question
has been raised as to what this majority means. Does it refer to
a majority of the total votes cast in the plebiscite in all the
constituent units, or a majority in each of the constituent units,
or both?

We need not go beyond the Constitution to resolve this

question.

If the framers of the Constitution intended to require approval

by a majority of all the votes cast in the plebiscite they would
have so indicated. Thus, in Article XVIII, section 27, it is
provided that "[t]his Constitution shall take effect immediately
upon its ratification by a majority of the votes cast in a

plebiscite held for the purpose ... Comparing this with the
provision on the creation of the autonomous region, which
reads:

it will readily be seen that the creation of the autonomous

region is made to depend, not on the total majority vote in the
plebiscite, but on the will of the majority in each of the
constituent units and the proviso underscores this. for if the
intention of the framers of the Constitution was to get the
majority of the totality of the votes cast, they could have simply
adopted the same phraseology as that used for the ratification
of the Constitution, i.e. "the creation of the autonomous region
shall be effective when approved by a majority of the votes cast
in a plebiscite called for the purpose."

It is thus clear that what is required by the Constitution is a

simple majority of votes approving the organic Act in individual
constituent units and not a double majority of the votes in all
constituent units put together, as well as in the individual
constituent units.

Thus, under the Constitution and R.A. No 6734, the

creation of the autonomous region shall take effect only
when approved by a majority of the votes cast by the
constituent units in a plebiscite, and only those
provinces and cities where a majority vote in favor of
the Organic Act shall be included in the autonomous
region. The provinces and cities wherein such a majority
is not attained shall not be included in the autonomous
region. It may be that even if an autonomous region is
created, not all of the thirteen (13) provinces and nine
(9) cities mentioned in Article II, section 1 (2) of R.A. No.
6734 shall be included therein. The single plebiscite
contemplated by the Constitution and R.A. No. 6734 will
therefore be determinative of (1) whether there shall be
an autonomous region in Muslim Mindanao and (2)
which provinces and cities, among those enumerated in
R.A. No. 6734, shall compromise it.

ORDILLO VS COMELEC

The creation of the autonomous region shall be effective

when approved by majority of the votes cast by the
constituent units in a plebiscite called for the purpose,
provided that only provinces, cities and geographic
areas voting favorably in such plebiscite shall be
included in the autonomous region. [Art. X, sec, 18,
para, 2].

There must be at least 2 lgus because the consti says units,

so in the case of Cordillera, its not duly created because only 1
province got an affirmative plebiscite, which is only the Ifugao
province, and the rest are negative. So, no Cordillera
Autonomous Region, but simply Administrative Region of the
Cordilleras. No local government powers.

Note: Merger of Administrative regions, that is not to be done by law,

but only by an executive act, unlike merger to create a lgu or an

autonomous region, which should be done by law.
C. Beginning of Corporate Existence

Section 14. Beginning of Corporate Existence. - When a new local government

unit is created, its corporate existence shall commence upon the election and
qualification of its chief executive and a majority of the members of its
sanggunian, unless some other time is fixed therefor by the law or ordinance
creating it.

Beginning of Corporate Existence:

1. As fixed by the law or ordinance (usually effectivity of

law) creating the lgu, or

2. Election and Qualifications of LCE and majority of

Sanggunian members (when not fixed by law or ordinance or
when it is silent)

Election refers to having been proclaimed as winners

in the election

Qualifications refers to the oath-taking that qualifies

the public official

MEJIA VS BALOLONG The City of Dagupan came into existence as a

legal entity upon the approval of the law creating it. However, before
the City of Dagupan can act as a public corporation or juridical entity, it
is necessary that the officials thereof be appointed or elected in order
that it may transact business as such public corporation or city.

It is evident that the City of Dagupan created by said Act came

into existence as a legal entity or a public corporation upon the
approval of Act No. 170, on June 20, 1947; because a statute
which, like Act No. 170, is to take effect upon its approval, is
operative from the exact instance upon its approval or
becoming a law. The fact that by Executive Order No. 96
promulgated in October 1947, the President of the Philippines
added the municipality of Calasiao "to the City of Dagupan" as
expressly stated in said Executive Order, is a recognition that
the city was already created and in existence then, because the
President is only authorized to increase the territory of the City
and not of the Municipality of Dagupan. But as a city is a public
corporation or a judicial entity, and as such can not operate or
transact business by itself but through its agents or officers, it
was necessary that the government of the city be organized,
that is, that the officials thereof be appointed or elected in
order that it may act or transact business as such public
corporation or city.

The date of the organization of the city government of Dagupan

which the President is authorized to fix by the provisions of
section 88, is not and can not be the date of the creation of the
city, not only because, as we have stated, the City of Dagupan
came into existence on the same date June 20 in which Act No.
170 creating the said city became effective, but because what

was to be organized, according to said section 88, is the city

government, and not the city as an entity, and the word
"organize" means "to prepare [the city] for transaction of
business, as assembly, by choosing officers, committees, etc."
(Funk and Wagnall College Standard Dictionary.) It is obvious
that to create a public corporation or city is one thing and to
organize the government thereof is another. A public
corporation is created and comes into existence from the
moment the law or charter that creates it becomes effective,
and in case of a private corporation it comes into existence as a
juridical entity from the time the articles of incorporation
thereof is registered in the proper bureau or office in
accordance with law. But a public as well as a private
corporation cannot act or transact business before the
governing body thereof is organized or the officers who shall
act for or in their representation have been chosen either by
appointment or election. The organization of the government of
a city presupposes necessarily the previous existence of the
city at the time its government is organized, because no
officials of the city may be appointed or elected before the city
has come into existence.

The general elections referred to is that of Nov. 11, 1947 where

the petitioners were elected. Therefore, the appointments of
the respondents by the President are null and void.

This is not now the case under the LGC, which modified this
ruling.

PART IV POWER RELATIONS WITH NATIONAL GOVERNMENT, SUPREME

COURT, PRESIDENT AND CONGRESS; INTER-GOVERNMENTAL RELATIONS,
AND HIERARCHAL RELATIONS AMONG LOCAL GOVERNMENT UNITS
A. LGUs and National Government in General: LGUs are agents of the State
insofar as the exercise by the lgus of its governmental functions, so if the lgu in a
particular controversy is not involved in a governmental or public function, dont look
at the lgu as agent of the state, but as the representative of its inhabitants.

MAGTAJAS VS PRYCE PROPERTIES - It is not competent for the Sangguniang

Panlungsod of CDO City to enact Ordinance 3353 (prohibiting the use of
buildings for the operation of casinos), and Ordinance 3375-93, (prohibiting
the operation of casinos) since these are contrary to PD 1869 which
authorizes casino gambling.

The rationale of the requirement that the ordinances should not

contravene a statute is obvious. Municipal governments are only
agents of the national government. Local councils exercise only
delegated legislative powers conferred on them by Congress as the
national lawmaking body. The delegate cannot be superior to the
principal or exercise powers higher than those of the latter. It is a
heresy to suggest that the local government units can undo the acts of
Congress, from which they have derived their power in the first place,
and negate by mere ordinance the mandate of the statute.

This basic relationship between the national legislature and the local
government units has not been enfeebled by the new provisions in the

Constitution strengthening the policy of local autonomy. Without

meaning to detract from that policy, we here confirm that Congress
retains control of the local government units although in significantly
reduced degree now than under our previous Constitutions. The power
to create still includes the power to destroy. The power to grant still
includes the power to withhold or recall. True, there are certain notable
innovations in the Constitution, like the direct conferment on the local
government units of the power to tax, which cannot now be withdrawn
by mere statute. By and large, however, the national legislature is still
the principal of the local government units, which cannot defy its will
or modify or violate it.

We hold that the power of PAGCOR to centralize and regulate all games
of chance, including casinos on land and sea within the territorial
jurisdiction of the Philippines, remains unimpaired. P.D. 1869 has not
been modified by the Local Government Code, which empowers the
local government units to prevent or suppress only those forms of
gambling prohibited by law.

Casino gambling is authorized by P.D. 1869. This decree has the status
of a statute that cannot be amended or nullified by a mere ordinance.
Hence, it was not competent for the Sangguniang Panlungsod of
Cagayan de Oro City to enact Ordinance No. 3353 prohibiting the use
of buildings for the operation of a casino and Ordinance No. 3375-93
prohibiting the operation of casinos. For all their praiseworthy motives,
these ordinances are contrary to P.D. 1869 and the public policy
announced therein and are therefore ultra vires and void.

B. LGUs and the Supreme Court: LGUs acts are subject to judicial review

Sec. 1 Art. 8 consti

The judicial power shall be vested in one Supreme Court and in such
lower courts as may be established by law.

Judicial power includes the duty of the courts of justice to

settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not
there has been a grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of any branch or
instrumentality of the Government.

Sec. 4(2) Art. 8 consti SCs minimum appellate jurisdiction in:

All cases involving the constitutionality of a treaty, international

or executive agreement, or law, which shall be heard by the Supreme
Court en banc, and all other cases which under the Rules of Court are
required to be heard en banc, including those involving the
constitutionality, application, or operation of presidential decrees,
proclamations,
orders,
instructions,
ordinances,
and
other
regulations, shall be decided with the concurrence of a majority of the
Members who actually took part in the deliberations on the issues in
the case and voted thereon.

C. LGUs and the President: President exercises General Supervision

Secs. 4, 16 Art. 10 consti

Section 4.The President of the Philippines shall exercise general

supervision over local governments.Provinces with respect to
component cities and municipalities, and cities and
municipalities with respect to component barangays, shall
ensure that the acts of their component units are within the
scope of their prescribed powers and functions.

Section 16.The President shall exercise general supervision over

autonomous regions to ensure that laws are faithfully executed.

Section 25. National Supervision over Local Government Units.

(a) Consistent with the basic policy on local autonomy, the President
shall exercise general supervision over local government units
to ensure that their acts are within the scope of their prescribed
powers and functions.

The President shall exercise supervisory authority directly

over provinces, highly urbanized cities, and independent
component cities; through the province with respect to
component cities and municipalities; and through the city and
municipality with respect to barangays.

(b) National agencies and offices with project implementation functions

shall coordinate with one another and with the local government units
concerned in the discharge of these functions. They shall ensure the
participation of local government units both in the planning and
implementation of said national projects.

(c) The President may, upon request of the local government unit
concerned, direct the appropriate national agency to provide financial,
technical, or other forms of assistance to the local government unit.
Such assistance shall be extended at no extra cost to the local
government unit concerned.

(d) National agencies and offices including government-owned or

controlled corporations with field units or branches in a province, city,
or municipality shall furnish the local chief executive concerned, for his
information and guidance, monthly reports including duly certified
budgetary allocations and expenditures.

Distinguish general supervision from control [because if we say that the

president exercises supervision only, he cannot exercise control]:

Control the president is not allowed to do that because we assure our

lgus autonomy.

DRILON VS LIM Where the SOJ reviews, pursuant to law, a tax

measure enacted by a lgu to determine if the officials performed their
functions in accordance with law, i.e. with the prescribed procedure for
the enactment of tax ordinances and the grant of powers under the
LGC, the same is an act of mere supervision, not control.

Section 187 authorizes the Secretary of Justice to review only

the constitutionality or legality of the tax ordinance and, if
warranted, to revoke it on either or both of these grounds.
When he alters or modifies or sets aside a tax ordinance, he is
not also permitted to substitute his own judgment for the

judgment of the local government that enacted the measure.

Secretary Drilon did set aside the Manila Revenue Code, but he
did not replace it with his own version of what the Code should
be. He did not pronounce the ordinance unwise or unreasonable
as a basis for its annulment. He did not say that in his judgment
it was a bad law. What he found only was that it was illegal. All
he did in reviewing the said measure was determine if the
petitioners were performing their functions in accordance with
law, that is, with the prescribed procedure for the enactment of
tax ordinances and the grant of powers to the city government
under the Local Government Code. As we see it, that was an act
not of control but of mere supervision.

An officer in control lays down the rules in the doing of

an act. If they are not followed, he may, in his
discretion, order the act undone or re-done by his
subordinate or he may even decide to do it himself.
Supervision does not cover such authority. The
supervisor or superintendent merely sees to it that the
rules are followed, but he himself does not lay down
such rules, nor does he have the discretion to modify or
replace them. If the rules are not observed, he may
order the work done or re-done but only to conform to
the prescribed rules. He may not prescribe his own
manner for the doing of the act. He has no judgment on
this matter except to see to it that the rules are
followed. In the opinion of the Court, Secretary Drilon did
precisely this, and no more nor less than this, and so performed
an act not of control but of mere supervision.

GANZON VS CA

We come to the core question: Whether or not the Secretary of

Local Government, as the President's alter ego, can suspend
and/or remove local officials.

SC said YES, but note that this was the ruling before where the
president still has the power to remove local officials under the
previous LGC. However, under Sec. 60 of the present LGC, the
president can no longer remove local officials. Such power is
already lodged to the regular courts.

The petitioners are under the impression that the Constitution

has left the President mere supervisory powers, which
supposedly excludes the power of investigation, and denied her
control, which allegedly embraces disciplinary authority. It is a
mistaken impression because legally, "supervision" is not
incompatible with disciplinary authority as this Court has
held, thus:

xxx xxx xxx It is true that in the case of Mondano vs.

Silvosa, 51 Off. Gaz., No. 6 p. 2884, this Court had
occasion to discuss the scope and extent of the power of
supervision by the President over local government
officials in contrast to the power of control given to him
over executive officials of our government wherein it
was emphasized that the two terms, control and

supervision, are two different things which differ one

from the other in meaning and extent. Thus in that case
the Court has made the following digression: "In
administration law supervision means overseeing or the
power or authority of an officer to see that subordinate
officers perform their duties. If the latter fail or neglect
to fulfill them the former may take such action or step
as prescribed by law to make them perform their duties.
Control, on the other hand, means the power of an
officer to alter or modify or nullify of set aside what a
subordinate officer had done in the performance of his
duties and to substitute the judgment of the former for
that of the latter." But from this pronouncement it
cannot be reasonably inferred that the power of
supervision of the President over local government
officials does not include the power of investigation
when in his opinion the good of the public service so
requires, as postulated in Section 64(c) of the Revised
Administrative Code. ...xxx xxx xxx

"Control" has been defined as "the power of an officer to

alter or modify or nullify or set aside what a subordinate
officer had done in the performance of his duties and
the ability to substitute the judgment of the subordinate
with his own. [Note: Ability lang, he does not have to
exercise it actually] "Supervision" on the other hand
means "overseeing or the power or authority of an
officer to see that subordinate officers perform their
duties. As we held, however, "investigating" is not inconsistent
with "overseeing", although it is a lesser power than "altering".

As we said, "supervision" and "removal" are not incompatible

terms and one may stand with the other notwithstanding the
stronger expression of local autonomy.

President exercises General Supervision over lgus.

The president shall exercise general supervision over lgus, under Sec. 4
(consti) and Sec. 25 (LGC) and autonomous regions under Sec. 16 (consti).

General Supervision essentially means that the president shall ensure that
laws are faithfully executed and that lgus acts are within the scope
of their prescribed powers and functions.

Sec. 4 Art. 10 of the consti and Sec. 25 of the lgc recognize two levels of
supervision that the president exercises: Direct and Indirect.

President has direct supervision over Provinces, Highly-Urbanized

Cities, and Independent Component Cities; and

President has indirect supervision over component cities and

municipalities (through the Province) and barangays (through the
Municipality or City)

These 2 levels can be illustrated in filing administrative complaints

against erring local elective officials:

Section 61. Form and Filing of Administrative Complaints. - A

verified complaint against any erring local elective official shall

be prepared as follows:

(a) A complaint against any elective official of a

province, a highly urbanized city, an independent
component city or component city shall be filed
before
the
Office
of the
President;[direct
supervision]

(b) A complaint against any elective official of a

municipality shall be filed before the sangguniang
panlalawigan whose decision maybe appealed to
the
Office
of
the
President;
and[indirect
supervision]

(c) A complaint against any elective barangay official

shall be filed before the sangguniang panlungsod or
sangguniang bayan concerned whose decision shall be
final and executory.

Summary attestations of direct supervision over provinces, highlyurbanizes cities (HUC), and ICC:

Section
63.
Preventive
Suspension.
suspension may be imposed:

Chief

Executive;

Powers,

Duties

and

Furnish copies of executive orders issued by him,

to the provincial governor in the case of component city
mayors, to the Office of the President in the case
of highly-urbanized city mayors and to their
respective metropolitan council chairmen in the case of
mayors of cities in the Metropolitan Manila Area and
other metropolitan political subdivisions, within
seventy-two (72) hours after their issuances.

Section 465. The Chief Executive: Powers, Duties, Functions,

and Compensation of Provincial Governor.

Preventive

(1) By the President, if the respondent is an

elective official of a province, a highly urbanized
or an independent component city;

Section
455.
Compensation.

-(a)

Furnish copies of executive orders issued by him

to the Office of the President within seventy-two
(72) hours after their issuance;

NATIONAL LIGA NG MGA BARANGAY VS PAREDES

There was a dispute involving the election of the liga ng mga

barangays. Sec. Barbers issued a memorandum na mao ni dapat ang
rules in the conduct of the elections. There was an exercise of control
here. That cannot be done, because the president is only limited to the
supervisory power.

With his Department already appointed as interim caretaker of the

Liga, Secretary Barbers nullified the results of the Liga elections and
promulgated DILG Memorandum Circular No. 97-193 dated 11 August
1997, where he laid down the supplemental guidelines for the 1997

synchronized elections of the provincial and metropolitan chapters and

for the election of the national chapter of the Liga ng mga Barangay;
scheduled dates for the new provincial, metropolitan and national
chapter elections; and appointed respondent Rayos as president of
Liga-Caloocan Chapter.

These acts of the DILG went beyond the sphere of general supervision
and constituted direct interference with the political affairs, not only of
the Liga, but more importantly, of the barangay as an institution. The
election of Liga officers is part of the Ligas internal organization, for
which the latter has already provided guidelines. In succession, the
DILG assumed stewardship and jurisdiction over the Liga affairs, issued
supplemental guidelines for the election, and nullified the effects of
the Liga-conducted elections. Clearly, what the DILG wielded was the
power of control which even the President does not have.

Furthermore, the DILG assumed control when it appointed respondent

Rayos as president of the Liga-Caloocan Chapter prior to the newly
scheduled general Liga elections, although petitioner Davids term had
not yet expired. The DILG substituted its choice, who was Rayos, over
the choice of majority of the punong barangay of Caloocan, who was
the incumbent President, petitioner David. The latter was elected and
had in fact been sitting as an ex-officio member of the sangguniang
panlungsod in accordance with the Liga Constitution and By-Laws. Yet,
the DILG extended the appointment to respondent Rayos although it
was aware that the position was the subject of a quo warranto
proceeding instituted by Rayos himself, thereby preempting the
outcome of that case. It was bad enough that the DILG assumed the
power of control, it was worse when it made use of the power with
evident bias and partiality.

As the entity exercising supervision over the Liga ng mga Barangay,

the DILGs authority over the Liga is limited to seeing to it that the
rules are followed, but it cannot lay down such rules itself, nor does it
have the discretion to modify or replace them. In this particular case,
the most that the DILG could do was review the acts of the incumbent
officers of the Liga in the conduct of the elections to determine if they
committed any violation of the Ligas Constitution and By-laws and its
implementing rules. If the National Liga Board and its officers had
violated Liga rules, the DILG should have ordered the Liga to conduct
another election in accordance with the Ligas own rules, but not in
obeisance to DILG-dictated guidelines. Neither had the DILG the
authority to remove the incumbent officers of the Liga and replace
them, even temporarily, with unelected Liga officers.

Like the local government units, the Liga ng mga Barangay is not
subject to control by the Chief Executive or his alter ego.

Presidents supervisory power extends to the Liga ng mga Barangay:

The DILG (as alter ego of the President) can exercise general
supervision over the Liga ng mga Barangays. The Liga is an
aggregation of barangays which are in turn represented therein by
their respective punong barangays. The representatives of the Liga sit
in an ex officio capacity at the municipal, city and provincial
sanggunians. As such, they enjoy all the powers and discharge all the
functions of regular municipal councilors, city councilors, or provincial

board members, as the case may be. Thus, the Liga is the vehicle
through which the barangay participates in the enactment of
ordinances and formulation of policies at all the legislative local levels
higher than the sangguniang barangay, at the same time serving as
the mechanism for the bottom-to-top approach of development.
D. LGUs and Congress: LGUs derive their existence and powers from
Congress this is a necessary consequence of adopting a unitary setup

Sec. 10, Art. 10 consti

Sec. 5, Art. 10 consti

No province, city, municipality, or barangay may be created, divided,

merged, abolished, or its boundary substantially altered, except in
accordance with the criteria established in the local government code
and subject to approval by a majority of the votes cast in a plebiscite
in the political units directly affected.
Each local government unit shall have the power to create its own
sources of revenues and to levy taxes, fees and charges subject to
such guidelines and limitations as the Congress may provide,
consistent with the basic policy of local autonomy. Such taxes, fees,
and charges shall accrue exclusively to the local governments.

A lgu exercises 3 delegated powers: eminent domain, police power and

taxation, buts its only the power of taxation which is specifically mention in
the consti.

The relevance of this is that if police power and eminent domain power
can be exercised by lgus by virtue of delegation by the Congress to the
lgus through the instrumentality of the LGC, the power to tax however
is not purely delegated since part of it is constitutionally guaranteed
but this part only refers to the general power to tax.

General power to tax means that it is a guaranty that lgus have

power to tax, but as to specific taxes, Congress still retains authority to
determine by delegation what kind of tax the lgus can impose.

Sirs Opinion: What is constitutionally guaranteed only is the general

power to tax but specific power to tax is still a delegated power.

E. Mother LGU and Component LGU: Mother LGU reviews acts of Component
LGU

1. In general

Sec. 4 Art 10 consti

The President of the Philippines shall exercise general

supervision over local governments. Provinces with respect to
component cities and municipalities, and cities and
municipalities with respect to component barangays, shall
ensure that the acts of their component units are within the
scope of their prescribed powers and functions.

Mother Sanggunians REVIEW POWER:

Grounds:

If by Sangguniang Panlalawigan:

1. Consistent with law

2. Consistent with city/municipality ordinances

(Sec. 57)

Bar question: A municipality tried to expropriate a particular private

land. Under the LGC of 1991, expropriation is to be done by passing,
among others, an ordinance, not mere resolution. The ordinance must
authorize the LCE to initiate expropriation proceeding. The private
owner resisted but he cannot convince the sangguniang bayan,
however, he was able to convince the provincial board because he had
knowledge that an ordinance of a municipality gets reviewed by the
provincial board. Pag-abot sa provincial board, g-set aside ang
ordinance, wala gi-approve. What was the authority exercised by the
municipality here, what kind of power? Power to expropriate. What is
the extent of the authority of a mother lgu when it reviews the
ordinance of a component lgu? Ultra vires acts, meaning, WON the
component lgu is exercising within the scope of its prescribed powers
and functions. Does a municipality have the power to expropriate? YES,
it has the power to expropriate. When it reaches the provincial board, it
was disapproved but it wasnt because it was ultra vires and the
provincial board cannot also say that it was beyond the authority of the
municipality concerned because the power involved is within the power
of a municipality to exercise.

Different from LCEs VETO POWER:

Mother Sanggunians review power is different from the LCEs

Veto power.

A LCE may veto an ordinance only on the following grounds:

1. Ultra vires

2. Prejudicial to the public welfare (Sec. 55)

2. Provincial Relations with Component Cities and Municipalities

Section 29. Provincial Relations with Component Cities and
Municipalities. - The province, through the governor, shall ensure
that every component city and municipality within its
territorial jurisdiction acts within the scope of its prescribed
powers and functions. Highly urbanized cities and independent
component cities shall be independent of the province.

3. City and municipal supervision over Component Cities and Municipalities

If by Sangguniang Panlungsod/Bayan:

1. Ultra vires (Sec. 56)

Section 32. City and Municipal Supervision over Their Respective

Barangays. - The city or municipality, through the city or
municipal mayor concerned, shall exercise general supervision
over component barangays to ensure that said barangays act
within the scope of their prescribed powers and functions.

4. Local Chief Executive (LCE) of Mother LGU reviews EOs of LCE of

Component LGU

Section 30. Review of Executive Orders.

(a) Except as otherwise provided under the Constitution and

special statutes, the governor shall review all executive
orders promulgated by the component city or municipal
mayor within his jurisdiction. The city or municipal
mayor shall review all executive orders promulgated by
the punong barangay within his jurisdiction. Copies of
such orders shall be forwarded to the governor or the city or
municipal mayor, as the case may be, within three (3) days
from their issuance. In all instances of review, the local chief
executive concerned shall ensure that such executive orders
are within the powers granted by law and in conformity with
provincial, city, or municipal ordinances.

(b) If the governor or the city or municipal mayor fails to

act on said executive orders within thirty (30) days after
their submission, the same shall be deemed consistent
with law and therefore valid.

5. Sanggunian of Mother LGU reviews Ordinances of Sanggunian and EOs of

LCE of Component LGU

Component City and Municipal Ordinances and Resolutions approving

the local development plans and public investment programs
formulated by the local development councils [Note: All ordinances but
not all resolutions] Section 56. Review of Component City and
Municipal Ordinances or Resolutions by the Sangguniang Panlalawigan.

(a) Within three (3) days after approval, the secretary to the
sanggunian panlungsod or sangguniang bayan shall forward to
the sangguniang panlalawigan for review, copies of approved
ordinances and the resolutions approving the local
development plans and public investment programs formulated
by the local development councils.

(b) Within thirty (30) days after the receipt of copies of such
ordinances and resolutions, the sangguniang panlalawigan shall
examine the documents or transmit them to the provincial
attorney, or if there be none, to the provincial prosecutor for
prompt examination. The provincial attorney or provincial
prosecutor shall, within a period of ten (10) days from receipt of
the documents, inform the sangguniang panlalawigan in writing
of his comments or recommendations, which may be
considered by the sangguniang panlalawigan in making its
decision.

(c) If the sangguniang panlalawigan finds that such an

ordinance or resolution is beyond the power conferred
upon the sangguniang panlungsod or sangguniang
bayan concerned, it shall declare such ordinance or
resolution invalid in whole or in part. The sangguniang
panlalawigan shall enter its action in the minutes and shall
advise the corresponding city or municipal authorities of the
action it has taken.

(d) If no action has been taken by the sangguniang

panlalawigan within thirty (30) days after submission of
such an ordinance or resolution, the same shall be
presumed consistent with law and therefore valid.

Barangay Ordinances Section 57. Review of Barangay Ordinances by

the Sangguniang Panlungsod or Sangguniang Bayan.

(a) Within ten (10) days after its enactment, the sangguniang
barangay shall furnish copies of all barangay ordinances to the
sangguniang panlungsod or sangguniang bayan concerned for
review as to whether the ordinance is consistent with law and
city or municipal ordinances.

(b) If the sangguniang panlungsod or sangguniang

bayan, as the case may be, fails to take action on
barangay ordinances within thirty (30) days from receipt
thereof, the same shall be deemed approved.

(c) If the sangguniang panlungsod or sangguniang

bayan, as the case may be, finds the barangay
ordinances inconsistent with law or city or municipal
ordinances, the sanggunian concerned shall, within
thirty (30) days from receipt thereof, return the same
with its comments and recommendations to the
sangguniang barangay concerned for adjustment,
amendment, or modification; in which case, the
effectivity of the barangay ordinance is suspended until
such time as the revision called for is effected.

Ordinances and EOs of barangays in Municipalities Section 447.

Powers, Duties, Functions and Compensation.

(a) The sangguniang bayan, as the legislative body of the

municipality, shall enact ordinances, approve resolutions and
appropriate funds for the general welfare of the municipality
and its inhabitants pursuant to Section 16 of this Code and in
the proper exercise of the corporate powers of the municipality
as provided for under Section 22 of this Code, and shall:

(1) Approve ordinances and pass resolutions necessary

for an efficient and effective municipal government, and
in this connection shall:

(i) Review all ordinances approved by the

sangguniang
barangay
and
executive
orders issued by the punong barangay to
determine whether these are within the
scope of the prescribed powers of the
sanggunian and of the punong barangay;

Ordinances and EOs of barangays in Cities Section 458. Powers,

Duties, Functions and Compensation.

(a) The sangguniang panlungsod, as the legislative body of

the city, shall enact ordinances, approve resolutions and
appropriate funds for the general welfare of the city and its
inhabitants pursuant to Section 16 of this Code and in the
proper exercise of the corporate powers of the city as provided

for under Section 22 of this Code, and shall:

(1) Approve ordinances and pass resolutions necessary

for an efficient and effective city government, and in this
connection, shall:

(i) Review all ordinances approved by the

sangguniang
barangay
and
executive
orders issued by the punong barangay to
determine whether these are within the
scope of the prescribed powers of the
sanggunian and of the punong barangay;

Ordinances and EOs of Component Municipalities and Cities Section

468. Powers, Duties, Functions and Compensation.

(a) The sangguniang panlalawigan, as the legislative body

of the province, shall enact ordinances, approve resolutions and
appropriate funds for the general welfare of the province and
its inhabitants pursuant to Section 16 of this Code in the proper
exercise of the corporate powers of the province as provided for
under Section 22 of this Code, and shall:

(1) Approve ordinances and pass resolutions necessary

for an efficient and effective provincial government and,
in this connection, shall:

(i) Review all ordinances approved by the

sangguniang of component cities and
municipalities and executive orders issued
by the mayors of said component units to
determine whether these are within the
scope of the prescribed powers of the
sanggunian and of the mayor;

F. LGUs and National Agencies and Offices (with project implementation

functions): Prior Consultation Before Implementation

Section 25. National Supervision over Local Government Units.

(b) National agencies and offices with project implementation functions

shall coordinate with one another and with the local government units
concerned in the discharge of these functions. They shall ensure the
participation of local government units both in the planning and
implementation of said national projects.

Section 27. Prior Consultations Required. - No project or program shall be

implemented by government authorities unless the consultations
mentioned in Sections 2 (c) and 26 hereof are complied with, and
prior approval of the sanggunian concerned is obtained: Provided,
That occupants in areas where such projects are to be implemented
shall not be evicted unless appropriate relocation sites have been
provided, in accordance with the provisions of the Constitution.

LINA VS PANO The introduction of lotto in the province of Laguna is not

covered by Secs. 26 and 27 (on Prior Consultations Required) of the LGC.

We hold that petitioners erred in declaring that Sections 2 (c)

[Declaration of Policy] and 27 [Prior Consultations Required] of

Republic Act 7160, otherwise known as the Local Government Code of
1991, apply mandatorily in the setting up of lotto outlets around the
country.

These apply only to national programs and/or projects which

are to be implemented in a particular local community, but if it
is a GOCC, like PCSO, Sec. 27 will not apply. Lotto is neither a
program nor a project of the national government, but of a charitable
institution, the PCSO. Though sanctioned by the national government,
it is far fetched to say that lotto falls within the contemplation of
Sections 2 (c) and 27 of the Local Government Code.

Section 27 of the Code should be read in conjunction with Section 26

thereof [Duty of National Government Agencies in the Maintenance of
Ecological Balance].

The projects and programs mentioned in Section 27 should be

interpreted to mean projects and programs whose effects are among
those enumerated in Section 26 and 27, to wit, those that: (1) may
cause pollution; (2) may bring about climatic change; (3) may cause
the depletion of non-renewable resources; (4) may result in loss of
crop land, range-land, or forest cover; (5) may eradicate certain animal
or plant species from the face of the planet; and (6) other projects or
programs that may call for the eviction of a particular group of people
residing in the locality where these will be implemented. Obviously,
none of these effects will be produced by the introduction of lotto in
the province of Laguna.

G. LGUs and National agencies, offices, and GOCCs (with field units in the
LGU): Consultation

Section 25. National Supervision over Local Government Units.

(d) National agencies and offices including government-owned or

controlled corporations with field units or branches in a province, city,
or municipality shall furnish the local chief executive concerned, for his
information and guidance, monthly reports including duly certified
budgetary allocations and expenditures.

H. LGUs and National agencies, offices, and GOCCs (with environmental

programs): Consultation

Section 26. Duty of National Government Agencies in the Maintenance of

Ecological Balance. - It shall be the duty of every national agency or
government-owned or controlled corporation authorizing or involved in the
planning and implementation of any project or program that may cause
pollution, climatic change, depletion of non-renewable resources, loss of crop
land, rangeland, or forest cover, and extinction of animal or plant species, to
consult with the local government units, nongovernmental organizations, and
other sectors concerned and explain the goals and objectives of the project or
program, its impact upon the people and the community in terms of
environmental or ecological balance, and the measures that will be
undertaken to prevent or minimize the adverse effects thereof.

I. LGUs and the PNP, Fire Protection Unit and Jail Management Personnel:
Operational Supervision and Control by LGUs

Section 28. Powers of Local Chief Executives over the Units of the Philippine
National Police. - The extent of operational supervision and control of local
chief executives over the police force, fire protection unit, and jail
management personnel assigned in their respective jurisdictions shall be
governed by the provisions of Republic Act Numbered Sixty-nine hundred
seventy-five (R.A. No. 6975), otherwise known as "The Department of the
Interior and Local Government Act of 1990", and the rules and regulations
issued pursuant thereto.

RA 6975 Department of the Interior and Local Government Act of 1990

D. PARTICIPATION OF LOCAL EXECUTIVES IN THE ADMINISTRATION OF

THE PNP

Section 51. Powers of Local Government Officials Over the PNP Units or
Forces. Governors and mayors shall be deputized as representatives
of the Commission in their respective territorial jurisdiction. As such,
the local executives shall discharge the following functions:

(a) Provincial Governor (1) Power to Choose the Provincial

Director. The provincial governor shall choose the provincial
director from a list of three (3) eligible recommended by the
PNP regional director.

(2)
Overseeing
the
Provincial
Public
Safety
Plan
Implementation. The governor, as chairman of the provincial
peace and order council, shall oversee the implementation of
the provincial public safety plan, which is prepared taking into
consideration the integrated community safety plans, as
provided under paragraph (b) (2) of this section.

(b) City and Municipal Mayors (1) Operational Supervision and

Control. The city and municipal mayors shall exercise
operational supervision and control over PNP units in their
respective jurisdiction except during the thirty (30) day period
immediately preceding and the thirty (30) days following any
national, local and barangay elections. During the said period,
the local police forces shall be under the supervision and
control of the Commission on Elections.

The term "operational supervision and control" shall mean the

power to direct, superintend, oversee and inspect the police
units and forces.

It shall include the power to employ and deploy units or

elements of the PNP, through the station commander, to ensure
public safety and effective maintenance of peace and order
within the locality. For this purpose, the term "employ" and
"deploy" shall mean as follows:

"Employ" refers to utilization of units or elements of the

PNP for purposes of protection of lives and properties,
enforcement of laws, maintenance of peace and order,
prevention of crimes, arrest of criminal offenders and

bringing the offenders to justice, and ensuring public

safety, particularly in the suppression of disorders, riots,
lawless violence, rebellious seditious conspiracy,
insurgency, subversion or other related activities.

"Deploy" shall mean the orderly organized physical

movement of elements or units of the PNP within the
province, city or municipality for purposes of
employment as herein defined.

(2) Integrated Community Safety Plans. The municipal/city

mayor shall, in coordination with the local peace and order
council of which he is the chairman pursuant to Executive Order
No. 309, as amended, develop and establish an integrated
area/community public safety plan embracing priorities of
action and program thrusts for implementation by the local PNP
stations.

It shall, likewise, be the duty of the city or municipal mayor to

sponsor periodic seminars for members of the PNP assigned or
detailed in his city or municipality in order to update them
regarding local ordinances and legislations.

(3) Administrative Disciplinary Powers. In the areas of

discipline, city and municipal mayors shall have the powers to
impose, after due notice and summary hearings, disciplinary
penalties for minor offenses committed by members of the PNP
assigned to their respective jurisdictions, as provided in Section
41 of this Act.

(4) Other Powers. In addition to the aforementioned powers,

city and municipal mayors shall have the following authority
over the PNP units in their respective jurisdictions:

(i) Authority to choose the chief of police from a list of

five (5) eligibles recommended by the provincial police
director, preferably from the same province, city or
municipality.

(ii) Authority to recommend the transfer, reassignment

or detail of PNP members outside of their respective city
or town residences; and

(iii) Authority to recommend, from a list of eligibles

previously screened by the peace and order council, the
appointment of new members of the PNP to be assigned
to their respective cities or municipalities without which
no such appointment shall be attested.

Section 52. Suspension of Operational Supervision and Control. The

President may, upon consultation with the provincial governor and
congressman concerned, suspend the power of operational supervision
and control of any local executive over police units assigned or
stationed in his jurisdiction for any of the following grounds:

(a) Frequent unauthorized absences;

(b) Abuse of authority;

(c) Providing material support to criminal elements; or

(d) Engaging in acts inimical to national security or which

negate the effectiveness of the peace and order campaign.

Upon good cause shown, the President may, motu propio or upon the
recommendation of the National Police Commission, restore such
power withdrawn from any local executive.

ANDAYA VS RTC The mayor has no power of appointment, and has only the
limited power of selecting one from among the list of 5 eligibles to be named
chief of police. The mayor cannot require the Regional Director to include the
name of any officer, no matter how qualified, in the list.

Under Republic Act No. 6975, Section 51, the mayor of Cebu City shall
be deputized as representative of the Commission (National Police
Commission) in his territorial jurisdiction and as such the mayor shall
have authority to choose the chief of police from a list of five (5)
eligibles recommended by the Police Regional Director. The City Police
Station of Cebu City is under the direct command and control of the
PNP Regional Director, Regional Police Command No. 7, and is
equivalent to a provincial office. Then, the Regional Director, Regional
Police Command No. 7 appoints the officer selected by the mayor as
the City Director, City Police Command (chief of police) Cebu City. It is
the prerogative of the Regional Police Director to name the five (5)
eligibles from a pool of eligible officers screened by the Senior Officers
Promotion and Selection Board, Headquarters, Philippine National
Police, Camp Crame, Quezon City, without interference from local
executives. In case of disagreement between the Regional Police
Director and the Mayor, the question shall be elevated to the Regional
Director, National Police Commission, who shall resolve the issue
within five (5) working days from receipt and whose decision on the
choice of the Chief of Police shall be final and executory. As deputy of
the Commission, the authority of the mayor is very limited. In reality,
he has no power of appointment; he has only the limited power of
selecting one from among the list of five eligibles to be named the
chief of police. Actually, the power to appoint the chief of police of
Cebu City is vested in the Regional Director, Regional Police Command
No. 7. Much less may the mayor require the Regional Director,
Regional Police Command, to include the name of any officer, no
matter how qualified, in the list of five to be submitted to the mayor.
The purpose is to enhance police professionalism and to isolate the
police service from political domination.

J. LGUs and NGOs: LGUs shall support, and may give assistance to NGOs

Section 34. Role of People's and Non-governmental Organizations. - Local

government units shall promote the establishment and operation of people's
and non-governmental organizations to become active partners in the pursuit
of local autonomy.

Section 35. Linkages with People's and Non-governmental Organizations. Local government units may enter into joint ventures and such other
cooperative arrangements with people's and non-governmental organizations
to engage in the delivery of certain basic services, capability-building and
livelihood projects, and to develop local enterprises designed to improve
productivity and income, diversity agriculture, spur rural industrialization,

promote ecological balance, and enhance the economic and social well-being
of the people.

Section 36. Assistance to People's and Non-governmental Organizations. - A

local government unit may, through its local chief executive and with the
concurrence of the sanggunian concerned, provide assistance, financial or
otherwise, to such people's and non-governmental organizations for
economic, socially-oriented, environmental, or cultural projects to be
implemented within its territorial jurisdiction.
PART V GOVERNMENTAL POWERS OF LOCAL GOVERNMENTS

A. Local Power of Taxation

1. Sources of revenues of LGUs

What are the sources of Revenues of LGUs?

i. taxes, fees and charges

ii. just share in the national taxes (IRA)

iii. equitable share in the proceeds of the utilization and

development of the national wealth within their respective
areas

What is local fiscal autonomy?

Local governments have the power to create their own

sources of revenue in addition to their equitable share in the
national taxes released by the national government as well as
the power to allocate their resources in accordance with
their own priorities.

The national government is not given any authority to interfere

with the way the resources of an lgu shall be spent. No statute
can ever be passed mandating the manner by which local funds
should be spent, but still subject to guidelines and limitations.

Do lgus possess inherent power to tax?

BASCO VS PAGCOR

Basco doctrine No inherent right to impose taxes and

therefore, an LGU needs to have a law or statute that
grants the power and this is already done through the
LGC of 1991, subject to control by congress and that
local
governments
have
no
power
to
tax
instrumentalities of the national government.

This case involves the City of Manila trying to impose

taxes on PAGCOR, but PAGCOR was considered an
instrumentality of the national government because
PAGCOR was given the power to regulate lawful games
of chance and therefore, this was an exercise of the
regulatory power of the national government and as
such, it is part of police power and since its part of
police power, to that extent, that is governmental, and
because its governmental, PAGCOR, while a GOCC,
becomes instrumentality of the national government.

NATURE OF LOCAL POWER TO TAX

It is still true that municipal corporations do not have

inherent right to impose taxes. Therefore, the power
to impose tax should be by delegation.

The

What are the reasons why congress retains the power to provide
guidelines and limitations?

The legislature must still see to it that the taxpayer will not be
overburdened or saddled with multiple and unreasonable
impositions.

What is the effect of the LGC on privileges and exemptions granted to

GOCCs prior to the LGC?

Section 234 provides for the exemptions from payment of RPT

and withdraws previous exemptions therefrom granted to
natural and juridical persons, including GOCCs, except as
provided therein.

Section 193. Withdrawal of Tax Exemption Privileges. - Unless

otherwise provided in this Code, tax exemptions or incentives
granted to, or presently enjoyed by all persons, whether natural
or juridical, including government-owned or controlled
corporations, except local water districts, cooperatives
duly registered under R.A. No. 6938, non-stock and nonprofit hospitals and educational institutions, business
enterprises certified by the Board of Investments (BOI)
as pioneer or non-pioneer for a period of 6 and 4 years,
respectively, are hereby withdrawn upon the effectivity of this
Code.

MCIAA (MACTAN CEBU INTERNATIONAL AIRPORT AUTHORITY) VS

MARCOS

Hence, the tax exemptions from RPT granted to MCIAA under its
charter had been withdrawn upon the effectivity of the LGC of
1991 under Sec. 234;(Thus, theres a need for a new law
granting tax exemption privilege in order to enjoy such
privilege)

MCIAA cannot invoke the Basco ruling that LGUs cannot tax
instrumentalities of the national government because the Basco
case was decided before the effectivity of the LGC of 1991.

MIAA (MANILA INTERNATIONAL AIRPORT AUTHORITY) VS CA

Disregards MCIAA VS MARCOS (which did not apply

Basco doctrine) and reinstated Basco doctrine that lgus
cannot tax government instrumentalities.

Under Sec. 2(10) and (13) of the Administrative Code, MIAA is

a government instrumentality and not a GOCC or
controlled corporation. It was created by EO 903, and its
capitalization is not divided into shares of stocks. MIAA
as a government instrumentality is not a taxable person. Sec.
234 does not apply because Sec. 234 applies only to natural

and juridical persons, including GOCCs, not instrumentalities.

MANILA ELECTRIC COMPANY VS PROVINCE OF LAGUNA The province

under the LGC can impose a franchise tax notwithstanding any
exemption granted by any law or other special law.

It might be well to recall that local governments do not have

the inherent power to tax[4] except to the extent that such
power might be delegated to them either by the basic law or by
statute. Presently, under Article X of the 1987 Constitution, a
general delegation of that power has been given in favor of
local government units.

The 1991 Code explicitly authorizes provincial governments,

notwithstanding any exemption granted by any law or other
special law, x x x (to) impose a tax on businesses enjoying a
franchise. (Sec. 137)

The Local Government Code has effectively withdrawn under

Section 193 thereof, tax exemptions or incentives theretofore
enjoyed by certain entities.

PHILIPPINE PETROLEUM CORP. VS MUN. OF PILILLA, RIZAL

While Section 2 of P.D. 436 prohibits the imposition of local

taxes on petroleum products, said decree did not amend
Sections 19 and 19 (a) of P.D. 231 as amended by P.D. 426,
wherein the municipality is granted the right to levy taxes on
business of manufacturers, importers, producers of any article
of commerce of whatever kind or nature. A tax on business is
distinct from a tax on the article itself. Thus, if the imposition of
tax on business of manufacturers, etc. in petroleum products
contravenes a declared national policy, it should have been
expressly stated in P.D. No. 436.

The exercise by local governments of the power to tax is

ordained by the present Constitution. To allow the continuous
effectivity of the prohibition set forth in PC No. 26-73 (1) would
be tantamount to restricting their power to tax by mere
administrative issuances. Under Section 5, Article X of the 1987
Constitution, only guidelines and limitations that may be
established by Congress can define and limit such power of
local governments. Thus:

Each local government unit shall have the power to

create its own sources of revenues and to levy taxes,
fees, and charges subject to such guidelines and
limitations as the Congress may provide, consistent with
the basic policy of local autonomy . . .

As to the authority of the mayor to waive payment of the

mayor's permit and sanitary inspection fees, the trial court did
not err in holding that "since the power to tax includes the
power to exempt thereof which is essentially a legislative
prerogative, it follows that a municipal mayor who is an
executive officer may not unilaterally withdraw such an
expression of a policy thru the enactment of a tax." The waiver
partakes of the nature of an exemption. It is an ancient rule

that exemptions from taxation are construed in strictissimi juris

against the taxpayer and liberally in favor of the taxing
authority (Esso Standard Eastern, Inc. v. Acting Commissioner
of Customs, 18 SCRA 488 [1966]). Tax exemptions are looked
upon with disfavor (Western Minolco Corp. v. Commissioner of
Internal Revenue, 124 SCRA 121 [1983]). Thus, in the absence
of a clear and express exemption from the payment of said
fees, the waiver cannot be recognized. As already stated, it is
the law-making body, and not an executive like the mayor, who
can make an exemption. Under Section 36 of the Code, a
permit fee like the mayor's permit, shall be required before any
individual or juridical entity shall engage in any business or
occupation under the provisions of the Code.

CITY GOVERNMENT OF QUEZON CITY VS BAYAN TELECOM, INC.

Bayantels franchise being national in character, the

exemption thus granted under Section 14 of Rep. Act No.
3259 applies to all its real or personal properties found
anywhere within the Philippine archipelago.

However, with the LGCs taking effect on January 1, 1992,

Bayantels exemption from real estate taxes for properties of
whatever kind located within the Metro Manila area was, by
force of Section 234 of the Code, supra, expressly withdrawn.
But, not long thereafter, however, or on July 20, 1992, Congress
passed Rep. Act No. 7633 amending Bayantels original
franchise. Worthy of note is that Section 11 of Rep. Act No. 7633
is a virtual reenacment of the tax provision, i.e., Section 14,
supra, of Bayantels original franchise under Rep. Act No. 3259.
Stated otherwise, Section 14 of Rep. Act No. 3259 which was
deemed impliedly repealed by Section 234 of the LGC was
expressly revived under Section 14 of Rep. Act No. 7633. In
concrete terms, the realty tax exemption heretofore enjoyed by
Bayantel
under its original franchise, but subsequently
withdrawn by force of Section 234 of the LGC, has been
restored by Section 14 of Rep. Act No. 7633.

The Court has taken stock of the fact that by virtue of Section 5,
Article X of the 1987 Constitution, local governments are
empowered to levy taxes. And pursuant to this constitutional
empowerment, juxtaposed with Section 232 of the LGC, the
Quezon City government enacted in 1993 its local Revenue
Code, imposing real property tax on all real properties found
within its territorial jurisdiction. And as earlier stated, the Citys
Revenue Code, just like the LGC, expressly withdrew, under
Section 230 thereof, supra, all tax exemption privileges in
general.

This thus raises the question of whether or not the Citys

Revenue Code pursuant to which the city treasurer of Quezon
City
levied real property taxes against Bayantels real
properties located within the City effectively withdrew the tax
exemption enjoyed by Bayantel under its franchise, as
amended.

Bayantel answers the poser in the negative arguing that once

again it is only liable to pay the same taxes, as any other

persons or corporations on all its real or personal properties,
exclusive of its franchise.

Bayantels posture is well-taken. While the system of local

government taxation has changed with the onset of the 1987
Constitution, the power of local government units to tax is still
limited. As we explained in Mactan Cebu International Airport
Authority:

The power to tax is primarily vested in the Congress;

however, in our jurisdiction, it may be exercised by local
legislative bodies, no longer merely be virtue of a valid
delegation as before, but pursuant to direct authority
conferred by Section 5, Article X of the Constitution.
Under the latter, the exercise of the power may be
subject to such guidelines and limitations as the
Congress may provide which, however, must be
consistent with the basic policy of local autonomy.

Clearly then, while a new slant on the subject of local taxation

now prevails in the sense that the former doctrine of local
government units delegated power to tax had been effectively
modified with Article X, Section 5 of the 1987 Constitution now
in place, .the basic doctrine on local taxation remains
essentially the same. For as the Court stressed in Mactan, the
power to tax is [still] primarily vested in the Congress.

This new perspective is best articulated by Fr. Joaquin G.

Bernas, S.J., himself a Commissioner of the 1986 Constitutional
Commission which crafted the 1987 Constitution, thus:

What is the effect of Section 5 on the fiscal position of

municipal corporations? Section 5 does not change the
doctrine that municipal corporations do not possess
inherent powers of taxation. What it does is to confer
municipal corporations a general power to levy taxes
and otherwise create sources of revenue. They no
longer have to wait for a statutory grant of these
powers. The power of the legislative authority relative
to the fiscal powers of local governments has been
reduced to the authority to impose limitations on
municipal powers. Moreover, these limitations must be
consistent with the basic policy of local autonomy.
The important legal effect of Section 5 is thus to reverse
the principle that doubts are resolved against municipal
corporations.
Henceforth, in interpreting statutory
provisions on municipal fiscal powers, doubts will be
resolved in favor of municipal corporations.
It is
understood, however, that taxes imposed by local
government must be for a public purpose, uniform
within a locality, must not be confiscatory, and must be
within the jurisdiction of the local unit to pass.

In net effect, the controversy presently before the Court

involves, at bottom, a clash between the inherent taxing power
of the legislature, which necessarily includes the power to

exempt, and the local governments delegated power to tax

under the aegis of the 1987 Constitution.

Now to go back to the Quezon City Revenue Code which

imposed real estate taxes on all real properties within the
citys territory and removed exemptions theretofore previously
granted to, or presently enjoyed by all persons, whether
natural or juridical ., there can really be no dispute that the
power of the Quezon City Government to tax is limited by
Section 232 of the LGC which expressly provides that a
province or city or municipality within the Metropolitan Manila
Area may levy an annual ad valorem tax on real property such
as land, building, machinery, and other improvement not
hereinafter specifically exempted.
Under this law, the
Legislature highlighted its power to thereafter exempt certain
realties from the taxing power of local government units. An
interpretation denying Congress such power to exempt would
reduce the phrase not hereinafter specifically exempted as a
pure jargon, without meaning whatsoever. Needless to state,
such absurd situation is unacceptable.

For sure, in Philippine Long Distance Telephone Company, Inc.

(PLDT) vs. City of Davao, this Court has upheld the power of
Congress to grant exemptions over the power of local
government units to impose taxes. There, the Court wrote:

Indeed, the grant of taxing powers to local

government units under the Constitution and the
LGC does not affect the power of Congress to grant
exemptions to certain persons, pursuant to a declared
national policy. The legal effect of the constitutional
grant to local governments simply means that in
interpreting statutory provisions on municipal taxing
powers, doubts must be resolved in favor of municipal
corporations.

As we see it, then, the issue in this case no longer dwells on

whether Congress has the power to exempt Bayantels
properties from realty taxes by its enactment of Rep. Act No.
7633 which amended Bayantels original franchise. The more
decisive question turns on whether Congress actually did
exempt Bayantels properties at all by virtue of Section 11 of
Rep. Act No. 7633.

Admittedly, Rep. Act No. 7633 was enacted subsequent to the

LGC. Perfectly aware that the LGC has already withdrawn
Bayantels former exemption from realty taxes, Congress opted
to pass Rep. Act No. 7633 using, under Section 11 thereof,
exactly the same defining phrase exclusive of this franchise
which was the basis for Bayantels exemption from realty taxes
prior to the LGC. In plain language, Section 11 of Rep. Act No.
7633 states that the grantee, its successors or assigns shall be
liable to pay the same taxes on their real estate, buildings and
personal property, exclusive of this franchise, as other persons
or corporations are now or hereafter may be required by law to
pay. The Court views this subsequent piece of legislation as

an express and real intention on the part of Congress to once

again remove from the LGCs delegated taxing power, all of the
franchisees (Bayantels) properties that are actually, directly
and exclusively used in the pursuit of its franchise.

DIGITEL TELECOM PHILS. VS PANGASINAN

Same as Bayan telecom case

CITY OF ILOILO VS SMART COMMUNICATIONS

The basic principle in the construction of laws granting tax

exemptions has been very stable.

The right of taxation is inherent in the State. It is a prerogative

essential to the perpetuity of the government; and he who
claims an exemption from the common burden, must justify his
claim by the clearest grant of organic or statute law xxx When
exemption is claimed, it must be shown indubitably to exist. At
the outset, every presumption is against it. A well-founded
doubt is fatal to the claim; it is only when the terms of the
concession are too explicit to admit fairly of any other
construction that the proposition can be supported.

A tax exemption cannot arise from vague inference...Tax

exemptions must be clear and unequivocal.
A taxpayer
claiming a tax exemption must point to a specific provision of
law conferring on the taxpayer, in clear and plain terms,
exemption from a common burden. Any doubt whether a tax
exemption exists is resolved against the taxpayer.

By virtue of Section 193 of the LGC, all tax exemption privileges

then enjoyed by all persons, save those expressly mentioned,
have been withdrawn effective January 1, 1992 the date of
effectivity of the LGC. The first clause of Section 137 of the LGC
states the same rule. However, the withdrawal of exemptions,
whether under Section 193 or 137 of the LGC, pertains only to
those already existing when the LGC was enacted.
The
intention of the legislature was to remove all tax exemptions or
incentives granted prior to the LGC.[ As SMARTs franchise was
made effective on March 27, 1992 after the effectivity of the
LGC Section 193 will therefore not apply in this case.

But while Section 193 of the LGC will not affect the claimed tax
exemption under SMARTs franchise, we fail to find a
categorical and encompassing grant of tax exemption to SMART
covering exemption from both national and local taxes:

R.A. No 7294 does not expressly provide what kind of

taxes SMART is exempted from. It is not clear whether
the in lieu of all taxes provision in the franchise of
SMART would include exemption from local or national
taxation. What is clear is that SMART shall pay franchise
tax equivalent to three percent (3%) of all gross receipts
of the business transacted under its franchise. But
whether the franchise tax exemption would include
exemption from exactions by both the local and the
national government is not unequivocal.

SMART additionally invokes the

equality clause
Section 23of the Public Telecoms Act:

The uncertainty in the in lieu of all taxes clause in R.A.

No. 7294 on whether SMART is exempted from both
local and national franchise tax must be construed
strictly against SMART which claims the exemption.
under

SECTION
23.
Equality
of
Treatment
in
the
Telecommunications Industry. Any advantage, favor,
privilege, exemption, or immunity granted under
existing franchises, or may hereafter be granted, shall
ipso facto become part of previously granted
telecommunications franchise and shall be accorded
immediately and unconditionally to the grantees of such
franchises: Provided, however, That the foregoing shall
neither
apply
to
nor
affect
provisions
of
telecommunications franchises concerning territory
covered by the franchise, the life span of the franchise,
or the type of service authorized by the franchise.

As in the case of SMART v. City of Davao, SMART posits that

since the franchise of telecommunications companies granted
after the enactment of its franchise contained provisions
exempting these companies from both national and local taxes,
these privileges should extend to and benefit SMART, applying
the equality clause above. The petitioner, on the other hand,
believes that the claimed exemption under Section 23 of the
Public Telecoms Act is similarly unfounded.

We agree with the petitioner.

Whether Section 23 of the cited law extends tax exemptions

granted by Congress to new franchise holders to existing ones
has been answered in the negative in the case of PLDT v. City of
Davao. The term exemption in Section 23 of the Public
Telecoms Act does not mean tax exemption; rather, it refers to
exemption from certain regulatory or reporting requirements
imposed by government agencies such as the National
Telecommunications Commission. The thrust of the Public
Telecoms Act is to promote the gradual deregulation of entry,
pricing, and operations of all public telecommunications
entities, and thus to level the playing field in the
telecommunications industry. The language of Section 23 and
the proceedings of both Houses of Congress are bereft of
anything that would signify the grant of tax exemptions to all
telecommunications entities. Intent to grant tax exemption
cannot therefore be discerned from the law; the term
exemption is too general to include tax exemption and runs
counter to the requirement that the grant of tax exemption
should be stated in clear and unequivocal language too plain to
be beyond doubt or mistake.

GSIS VS CITY TREASURER OF MANILA

Given the foregoing perspectives, the following may be

assumed: (1) Pursuant to Sec. 33 of PD 1146, GSIS enjoyed tax

exemption from real estate taxes, among other tax burdens,

until January 1, 1992 when the LGC took effect and withdrew
exemptions from payment of real estate taxes privileges
granted under PD 1146; (2) RA 8291 restored in 1997 the tax
exempt status of GSIS by reenacting under its Sec. 39 what was
once Sec. 33 of P.D. 1146; and (3) If any real estate tax is due
to the City of Manila, it is, following City of Davao, only for the
interim period, or from 1992 to 1996, to be precise.

The Courts fairly recent ruling in Manila International Airport

Authority v. Court of Appeals, a case likewise involving real
estate tax assessments by a Metro Manila city on the real
properties administered by MIAA, argues for the non-tax liability
of GSIS for real estate taxes. There, the Court held that MIAA
does not qualify as a GOCC, not having been organized either
as a stock corporation, its capital not being divided into shares,
or as a non-stock corporation because it has no members. MIAA
is rather an instrumentality of the National Government and,
hence, outside the purview of local taxation by force of Sec.
133 of the LGC providing in context that unless otherwise
provided, local governments cannot tax national government
instrumentalities.

While perhaps not of governing sway in all fours inasmuch as

what were involved in Manila International Airport Authority,
e.g., airfields and runways, are properties of the public
dominion and, hence, outside the commerce of man, the
rationale underpinning the disposition in that case is squarely
applicable to GSIS, both MIAA and GSIS being similarly situated.
First, while created under CA 186 as a non-stock corporation, a
status that has remained unchanged even when it operated
under PD 1146 and RA 8291, GSIS is not, in the context of the
aforequoted Sec. 193 of the LGC, a GOCC following the
teaching of Manila International Airport Authority, for, like MIAA,
GSIS capital is not divided into unit shares. Also, GSIS has no
members to speak of. And by members, the reference is to
those who, under Sec. 87 of the Corporation Code, make up the
non-stock corporation, and not to the compulsory members of
the system who are government employees. Its management
is entrusted to a Board of Trustees whose members are
appointed by the President.

a. Taxes, fees, and charges

Sec. 5 Art. 10 consti - Each local government unit shall

have the power(referring to the general power to tax) to
create its own sources of revenues and to levy taxes,
fees and chargessubject to such guidelines and
limitations as the Congress may provide, (through the
LGC) consistent with the basic policy of local autonomy. Such
taxes, fees, and charges shall accrue exclusively to the
local governments.

Section 18. Power to Generate and Apply Resources. - Local

government units shall have the power and authority to
establish an organization that shall be responsible for the

efficient and effective implementation of their development

plans, program objectives and priorities; to create their own
sources of revenues and to levy taxes, fees, and charges which
shall accrue exclusively for their use and disposition and which
shall be retained by them; to have a just share in national taxes
which shall be automatically and directly released to them
without need of any further action; to have an equitable share
in the proceeds from the utilization and development of the
national wealth and resources within their respective territorial
jurisdictions including sharing the same with the inhabitants by
way of direct benefits; to acquire, develop, lease, encumber,
alienate, or otherwise dispose of real or personal property held
by them in their proprietary capacity and to apply their
resources and assets for productive, developmental, or welfare
purposes, in the exercise or furtherance of their governmental
or proprietary powers and functions and thereby ensure their
development into self-reliant communities and active
participants in the attainment of national goals.

Section 5. Rules of Interpretation.

(b) In case of doubt, any tax ordinance or revenue

measure shall be construed strictly against the local
government unit enacting it, and liberally in favor of the
taxpayer. Any tax exemption, incentive or relief granted
by any local government unit pursuant to the provisions
of this Code shall be construed strictly against the
person claiming it.

Section 128. Scope. - The provisions herein shall govern the

exercise by provinces, cities, municipalities, and barangays of
their taxing and other revenue-raising powers.

Section 129. Power to Create Sources of Revenue. - Each local

government unit shall exercise its power to create its own
sources of revenue and to levy taxes, fees, and charges subject
to the provisions herein, consistent with the basic policy of local
autonomy. Such taxes, fees, and charges shall accrue
exclusively to the local government units.

Section 130. Fundamental Principles. - The following

fundamental principles shall govern the exercise of the taxing
and other revenue-raising powers of local government units:

(a) Taxation shall be uniform in each local government

unit;

(b) Taxes, fees, charges and other impositions shall:

(1) be equitable and based as far as practicable

on the taxpayer's ability to pay;

(2) be levied and collected only for public

purposes;

(3) not be unjust, excessive, oppressive, or

confiscatory;

(4) not be contrary to law, public policy, national

economic policy, or in the restraint of trade;

(c) The collection of local taxes, fees, charges

and other impositions shall in no case be let to
any private person;

(d) The revenue collected pursuant to the

provisions of this Code shall inure solely to the
benefit of, and be subject to the disposition by,
the local government unit levying the tax, fee,
charge or other imposition unless otherwise
specifically provided herein; and

(e) Each local government unit shall, as far as

practicable, evolve a progressive system of
taxation.

Section 132. Local Taxing Authority. - The power to impose a

tax, fee, or charge or to generate revenue under this Code shall
be exercised by the sanggunian of the local government unit
concerned through an appropriate ordinance.

Section 133. Common Limitations on the Taxing Powers of Local

Government Units. - Unless otherwise provided herein, the
exercise of the taxing powers of provinces, cities,
municipalities, and barangays shall not extend to the levy of
the following:

(a) Income tax, except when levied on banks and other

financial institutions;

(b) Documentary stamp tax;

(c) Taxes on estates, inheritance, gifts, legacies and

other acquisitions mortis causa, except as otherwise
provided herein;

(d) Customs duties, registration fees of vessel and

wharfage on wharves, tonnage dues, and all other kinds
of customs fees, charges and dues except wharfage on
wharves constructed and maintained by the local
government unit concerned;

(e) Taxes, fees, and charges and other impositions upon

goods carried into or out of, or passing through, the
territorial jurisdictions of local government units in the
guise of charges for wharfage, tolls for bridges or
otherwise, or other taxes, fees, or charges in any form
whatsoever upon such goods or merchandise;

(f) Taxes, fees or charges on agricultural and aquatic

products when sold by marginal farmers or fishermen;

(g) Taxes on business enterprises certified to by the

Board of Investments as pioneer or non-pioneer for a
period of six (6) and four (4) years, respectively from the
date of registration;

(h) Excise taxes on articles enumerated under the

national Internal Revenue Code, as amended, and taxes,

fees or charges on petroleum products;

(i) Percentage or value-added tax (VAT) on sales, barters

or exchanges or similar transactions on goods or
services except as otherwise provided herein;

(j) Taxes on the gross receipts of transportation

contractors and persons engaged in the transportation
of passengers or freight by hire and common carriers by
air, land or water, except as provided in this Code;

(k) Taxes on premiums paid by way or reinsurance or

retrocession;

(l) Taxes, fees or charges for the registration of motor

vehicles and for the issuance of all kinds of licenses or
permits for the driving thereof, except tricycles;

(m) Taxes, fees, or other charges on Philippine products

actually exported, except as otherwise provided herein;

(n) Taxes, fees, or charges, on Countryside and

Barangay Business Enterprises and cooperatives duly
registered under R.A. No. 6810 and Republic Act
Numbered Sixty-nine hundred thirty-eight (R.A. No.
6938) otherwise known as the "Cooperative Code of the
Philippines" respectively; and

(o) Taxes, fees or charges of any kind on the National

Government, its agencies and instrumentalities, and
local government units.

Section 186. Power To Levy Other Taxes, Fees or Charges. Local government units may exercise the power to levy taxes,
fees or charges on any base or subject not otherwise
specifically enumerated herein or taxed under the provisions of
the National Internal Revenue Code, as amended, or other
applicable laws: Provided, That the taxes, fees, or charges shall
not be unjust, excessive, oppressive, confiscatory or contrary to
declared national policy: Provided, further, That the ordinance
levying such taxes, fees or charges shall not be enacted
without any prior public hearing conducted for the purpose.

Section 187. Procedure for Approval and Effectivity of Tax,

Ordinances and Revenue Measures; Mandatory Public Hearings.
- The procedure for approval of local tax ordinances and
revenue measures shall be in accordance with the provisions of
this Code: Provided, That public hearings shall be conducted for
the purpose prior to the enactment thereof: Provided, further,
That any question on the constitutionality or legality of tax
ordinances or revenue measures may be raised on appeal
within thirty (30) days from the effectivity thereof to the
Secretary of Justice who shall render a decision within sixty (60)
days from the date of receipt of the appeal: Provided, however,
That such appeal shall not have the effect of suspending the
effectivity of the ordinance and the accrual and payment of the
tax, fee, or charge levied therein: Provided, finally, That within
thirty (30) days after receipt of the decision or the lapse of the

sixty-day period without the Secretary of Justice acting upon

the appeal, the aggrieved party may file appropriate
proceedings with a court of competent jurisdiction.

Section 188. Publication of Tax Ordinances and Revenue

Measures. - Within ten (10) days after their approval, certified
true copies of all provincial, city, and municipal tax ordinances
or revenue measures shall be published in full for three (3)
consecutive days in a newspaper of local circulation: Provided,
however, That in provinces, cities and municipalities where
there are no newspapers of local circulation, the same may be
posted in at least two (2) conspicuous and publicly accessible
places.

Section 189. Furnishing of Copies of Tax Ordinances and

Revenue Measures. - Copies of all provincial, city, and municipal
and barangay tax ordinances and revenue measures shall be
furnished the respective local treasurers for public
dissemination.

Section 190. Attempt to Enforce Void or Suspended Tax

Ordinances and revenue measures. - The enforcement of any
tax ordinance or revenue measure after due notice of the
disapproval or suspension thereof shall be sufficient ground for
administrative disciplinary action against the local officials and
employees responsible therefor.

Section 191. Authority of Local Government Units to Adjust

Rates of Tax Ordinances. - Local government units shall have
the authority to adjust the tax rates as prescribed herein not
oftener than once every five (5) years, but in no case shall such
adjustment exceed ten percent (10%) of the rates fixed under
this Code.

Section 192. Authority to Grant Tax Exemption Privileges. Local government units may, through ordinances duly
approved, grant tax exemptions, incentives or reliefs under
such terms and conditions as they may deem necessary.

Section 193. Withdrawal of Tax Exemption Privileges. - Unless

otherwise provided in this Code, tax exemptions or incentives
granted to, or presently enjoyed by all persons, whether natural
or juridical, including government-owned or controlled
corporations, except local water districts, cooperatives duly
registered under R.A. No. 6938, non-stock and non-profit
hospitals and educational institutions, are hereby withdrawn
upon the effectivity of this Code.

Section 305. Fundamental Principles. - The financial affairs,

transactions, and operations of local government units shall be
governed by the following fundamental principles:

(a) No money shall be paid out of the local treasury

except in pursuance of an appropriations ordinance or
law;

(b) Local government funds and monies shall be spent

solely for public purposes;

(c) Local revenue is generated only from sources

expressly authorized by law or ordinance, and collection
thereof shall at all times be acknowledged properly;

(d) All monies officially received by a local government

officer in any capacity or on any occasion shall be
accounted for as local funds, unless otherwise provided
by law;

(e) Trust funds in the local treasury shall not be paid out
except in fulfillment of the purpose for which the trust
was created or the funds received;

(f) Every officer of the local government unit whose

duties permit or require the possession or custody of
local funds shall be properly bonded, and such officer
shall be accountable and responsible for said funds and
for the safekeeping thereof in conformity with the
provisions of law;

(g) Local governments shall formulate sound financial

plans, and local budgets shall be based on functions,
activities, and projects, in terms of expected results;

(h) Local budget plans and goals shall, as far as

practicable, be harmonized with national development
plans, goals, and strategies in order to optimize the
utilization of resources and to avoid duplication in the
use of fiscal and physical resources;

(i) Local budgets shall operationalize approved local

development plans;

(j) Local government units shall ensure that their

respective budgets incorporate the requirements of their
component units and provide for equitable allocation of
resources among these component units;

(k) National planning shall be based on local planning to

ensure that the needs and aspirations of the people as
articulated by the local government units in their
respective local development plans are considered in
the formulation of budgets of national line agencies or
offices;

(l) Fiscal responsibility shall be shared by all those

exercising authority over the financial affairs,
transactions, and operations of the local government
units; and

(m) The local government unit shall endeavor to have a

balanced budget in each fiscal year of operation.

b. Just share in the national taxes

Sec. 6 Art. 10 consti - Local government units shall have a

just share, as determined by law, in the national taxes
which shall be automatically released to them.

It cannot be subject to withholding or to any conditions.

PIMENTEL VS AGUIRRE The President cannot order the

withholding of 10% of the lgus internal revenue
allotments. This encroaches on the fiscal autonomy of
local government and violates the consti and the lgc.

ISSUE: Whether AO 372 of President Ramos which

withholds 10% of lgus IRA is valid

Section 4 of AO 372 cannot, however, be upheld.

A basic feature of local fiscal autonomy is the
automatic release of the shares of LGUs in the
national internal revenue. This is mandated by
no less than the Constitution. The Local
Government Code specifies further that the
release shall be made directly to the LGU
concerned within five (5) days after every quarter
of the year and "shall not be subject to any lien
or holdback that may be imposed by the national
government for whatever purpose." As a rule, the
term "shall" is a word of command that must be
given a compulsory meaning. The provision is,
therefore, imperative.

Section 4 of AO 372, however, orders the

withholding, effective January 1, 1998, of 10
percent of the LGUs' IRA "pending the
assessment and evaluation by the Development
Budget Coordinating Committee of the emerging
fiscal situation" in the country. Such withholding
clearly contravenes the Constitution and the law.
Although temporary, it is equivalent to a
holdback, which means "something held back or
withheld,
often
temporarily."
Hence,
the
"temporary" nature of the retention by the
national government does not matter.
Any
retention is prohibited.

In sum, while Section 1 of AO 372 may be upheld

as an advisory effected in times of national crisis,
Section 4 thereof has no color of validity at all.
The latter provision effectively encroaches on the
fiscal
autonomy
of
local
governments.
Concededly, the President was well-intentioned in
issuing his Order to withhold the LGUs IRA, but
the rule of law requires that even the best
intentions must be carried out within the
parameters of the Constitution and the law.
Verily, laudable purposes must be carried out by
legal methods.

Respondents and their successors are hereby

permanently PROHIBITED from implementing
Administrative Order Nos. 372 and 43 insofar as
local government units are concerned.

Section 18. Power to Generate and Apply Resources. - Local

government units shall have the power and authority to

establish an organization that shall be responsible for the

efficient and effective implementation of their development
plans, program objectives and priorities; to create their own
sources of revenues and to levy taxes, fees, and charges which
shall accrue exclusively for their use and disposition and which
shall be retained by them; to have a just share in national taxes
which shall be automatically and directly released to them
without need of any further action; to have an equitable share
in the proceeds from the utilization and development of the
national wealth and resources within their respective territorial
jurisdictions including sharing the same with the inhabitants by
way of direct benefits; to acquire, develop, lease, encumber,
alienate, or otherwise dispose of real or personal property held
by them in their proprietary capacity and to apply their
resources and assets for productive, developmental, or welfare
purposes, in the exercise or furtherance of their governmental
or proprietary powers and functions and thereby ensure their
development into self-reliant communities and active
participants in the attainment of national goals.

Section 284. Allotment of Internal Revenue Taxes. - Local

government units shall have a share in the national internal
revenue taxes based on the collection of the third fiscal year
preceding the current fiscal year as follows:

(a) On the first year of the effectivity of this Code, thirty

percent (30%);

(b) On the second year, thirty-five percent (35%); and

(c) On the third year and thereafter, forty percent (40%).

Provided, That in the event that the national government incurs

an unmanageable public sector deficit, the President of the
Philippines is hereby authorized, upon the recommendation of
Secretary of Finance, Secretary of Interior and Local
Government and Secretary of Budget and Management, and
subject to consultation with the presiding officers of both
Houses of Congress and the presidents of the "liga", to make
the necessary adjustments in the internal revenue allotment of
local government units but in no case shall the allotment be
less than thirty percent (30%) of the collection of national
internal revenue taxes of the third fiscal year preceding the
current fiscal year: Provided, further, That in the first year of the
effectivity of this Code, the local government units shall, in
addition to the thirty percent (30%) internal revenue allotment
which shall include the cost of devolved functions for essential
public services, be entitled to receive the amount equivalent to
the cost of devolved personal services.

Section 285. Allocation to Local Government Units. - The share

of local government units in the internal revenue allotment
shall be collected in the following manner:

(a) Provinces - Twenty-three percent (23%);

(b) Cities - Twenty-three percent (23%);

(c) Municipalities - Thirty-four percent (34%); and

(d) Barangays - Twenty percent (20%)

Provided, however, That the share of each province, city, and

municipality shall be determined on the basis of the following
formula:

(a) Population - Fifty percent (50%);

(b) Land Area - Twenty-five percent (25%); and

(c) Equal sharing - Twenty-five percent (25%)

Provided, further, That the share of each barangay with a

population of not less than one hundred (100) inhabitants shall
not be less than Eighty thousand (P80,000.00) per annum
chargeable against the twenty percent (20%) share of the
barangay from the internal revenue allotment, and the balance
to be allocated on the basis of the following formula:

(a) On the first year of the effectivity of this Code:

(1) Population - Forty percent (40%); and

(2) Equal sharing - Sixty percent (60%)

(b) On the second year:

(1) Population - Fifty percent (50%); and

(2) Equal sharing - Fifty percent (50%)

(c) On the third year and thereafter:

(1) Population - Sixty percent (60%); and

(2) Equal sharing - Forty percent (40%).

Provided, finally, That the financial requirements of barangays

created by local government units after the effectivity of this
Code shall be the responsibility of the local government unit
concerned.

Section 286. Automatic Release of Shares.

(a) The share of each local government unit shall

be released, without need of any further action,
directly to the provincial, city, municipal or
barangay treasurer, as the case may be, on a
quarterly basis within five (5) days after the end of each
quarter, and which shall not be subject to any lien or
holdback that may be imposed by the national
government for whatever purpose.

(b) Nothing in this Chapter shall be understood to

diminish the share of local government units under
existing laws.

Section 287. Local Development Projects. - Each local

government unit shall appropriate in its annual budget no less
than twenty percent (20%) of its annual internal revenue
allotment for development projects. Copies of the development
plans of local government units shall be furnished the

Department of Interior and Local Government.

Section 288. Rules and Regulations. - The Secretary of Finance,

in consultation with the Secretary of Budget and Management,
shall promulgate the necessary rules and regulations for a
simplified disbursement scheme designed for the speedy and
effective enforcement of the provisions of this Chapter.

c. Equitable share in the proceeds of the utilization and development of

the national wealth within their respective areas

Sec. 7 Art. 10 consti - Local governments shall be entitled

to an equitable share in the proceeds of the utilization
and development of the national wealth within their
respective areas, in the manner provided by law, including
sharing the same with the inhabitants by way of direct benefits.

Section 18. Power to Generate and Apply Resources. - Local

government units shall have the power and authority to
establish an organization that shall be responsible for the
efficient and effective implementation of their development
plans, program objectives and priorities; to create their own
sources of revenues and to levy taxes, fees, and charges which
shall accrue exclusively for their use and disposition and which
shall be retained by them; to have a just share in national taxes
which shall be automatically and directly released to them
without need of any further action; to have an equitable share
in the proceeds from the utilization and development of the
national wealth and resources within their respective territorial
jurisdictions including sharing the same with the inhabitants by
way of direct benefits; to acquire, develop, lease, encumber,
alienate, or otherwise dispose of real or personal property held
by them in their proprietary capacity and to apply their
resources and assets for productive, developmental, or welfare
purposes, in the exercise or furtherance of their governmental
or proprietary powers and functions and thereby ensure their
development into self-reliant communities and active
participants in the attainment of national goals.

Section 289. Share in the Proceeds from the Development and

Utilization of the National Wealth. - Local government units
shall have an equitable share in the proceeds derived from the
utilization and development of the national wealth within their
respective areas, including sharing the same with the
inhabitants by way of direct benefits.

Section 290. Amount of Share of Local Government Units. Local government units shall, in addition to the internal
revenue allotment, have a share of forty percent (40%)
of the gross collection derived by the national
government from the preceding fiscal year from mining
taxes, royalties, forestry and fishery charges, and such
other taxes, fees, or charges, including related
surcharges, interests, or fines, and from its share in any
co-production, joint venture or production sharing
agreement in the utilization and development of the
national wealth within their territorial jurisdiction.

Section 291. Share of the Local Governments from any

Government Agency or Owned or Controlled Corporation. Local government units shall have a share based on the
preceding fiscal year from the proceeds derived by any
government agency or government-owned or controlled
corporation engaged in the utilization and development of the
national wealth based on the following formula whichever will
produce a higher share for the local government unit:

(a) One percent (1%) of the gross sales or receipts of the

preceding calendar year; or

(b) Forty percent (40%) of the mining taxes, royalties,

forestry and fishery charges and such other taxes, fees
or charges, including related surcharges, interests, or
fines the government agency or government owned or
controlled corporation would have paid if it were not
otherwise exempt.

Section 292. Allocation of Shares. - The share in the preceding

Section shall be distributed in the following manner:

(a) Where the natural resources are located in the

province:

(1) Province - Twenty percent (20%);

(2) Component City/Municipality

percent (45%); and

(3) Barangay - Thirty-five percent (35%)

Forty-five

Provided, however, That where the natural resources are

located in two (2) or more provinces, or in two (2) or
more component cities or municipalities or in two (2) or
more barangays, their respective shares shall be
computed on the basis of:

(1) Population - Seventy percent (70%); and

(2) Land area - Thirty percent (30%)

(b) Where the natural resources are located in a highly

urbanized or independent component city:

(1) City - Sixty-five percent (65%); and

(2) Barangay - Thirty-five percent (35%)

Provided, however, That where the natural resources are

located in such two (2) or more cities, the allocation of
shares shall be based on the formula on population and
land area as specified in paragraph (a) of this Section.

Section 293. Remittance of the Share of Local Government

Units. - The share of local government units from the utilization
and development of national wealth shall be remitted in
accordance with Section 286 of this Code: Provided, however,
That in the case of any government agency or governmentowned or controlled corporation engaged in the utilization and
development of the national wealth, such share shall be directly

remitted to the provincial, city, municipal or barangay treasurer

concerned within five (5) days after the end of each quarter.

Section 294. Development and Livelihood Projects. - The

proceeds from the share of local government units pursuant to
this chapter shall be appropriated by their respective
sanggunian to finance local government and livelihood projects:
Provided, however, That at least eighty percent (80%) of the
proceeds derived from the development and utilization of
hydrothermal. geothermal, and other sources of energy shall be
applied solely to lower the cost of electricity in the local
government unit where such a source of energy is located.

B. Local Police Power

1. General Welfare Clause; Scope and Limitations

Section 16. General Welfare. - Every local government unit shall

exercise the powers expressly granted, those necessarily implied
therefrom, as well as powers necessary, appropriate, or incidental for
its efficient and effective governance, and those which are essential to
the promotion of the general welfare. Within their respective territorial
jurisdictions, local government units shall ensure and support, among
other things, the preservation and enrichment of culture, promote
health and safety, enhance the right of the people to a balanced
ecology, encourage and support the development of appropriate and
self-reliant scientific and technological capabilities, improve public
morals, enhance economic prosperity and social justice, promote full
employment among their residents, maintain peace and order, and
preserve the comfort and convenience of their inhabitants.

TATEL VS MUNICIPALITY OF VIRAC An ordinance was passed

prohibiting the construction of warehouses that store inflammable
materials within 200 meters from any block of houses. Petitioner
constructed a warehouse which stored copra and abaca within 200
meters of a residential neighborhood. The municipal council passed a
resolution declaring the warehouse of petitioner a nuisance and
directing him to transfer it. SC held that the ordinance is a valid
exercise of police power. Its purpose is to avoid the loss of life and
property in case of fire. Requisites for validity of local police power:

i. must not contravene the constitution AND statute(so

meaning, grounds for declaration of nullity of an ordinance is
not only that it is unconstitutional, but also if it is illegal)

ii. not unfair or oppressive

iii. not partial or discriminatory

iv. not prohibit, but only regulate lawful trade

meaning, if a certain trade is not prohibited by congress,

it cannot be prohibited by an ordinance. If it is prohibited
by congress, it can prohibit now the trade.

DE LA CRUZ VS PARAS where an ordinance prohibited

the operation of night clubs was declared invalid

ISSUE: Whether or not a municipal corporation,

Bocaue, Bulacan can, prohibit the exercise of a
lawful trade, the operation of night clubs, and the
pursuit of a lawful occupation, such clubs
employing hostesses pursuant to Ord 84 which is
further in pursuant to RA 938;

HELD: The SC ruled against Paras. If night clubs

were merely then regulated and not prohibited,
certainly the assailed ordinance would pass the
test of validity. SC had stressed reasonableness,
consonant with the general powers and purposes
of municipal corporations, as well as consistency
with the laws or policy of the State. It cannot be
said that such a sweeping exercise of a
lawmaking power by Bocaue could qualify under
the term reasonable. The objective of fostering
public morals, a worthy and desirable end can be
attained by a measure that does not encompass
too wide a field. Certainly the ordinance on its
face is characterized by overbreadth. The
purpose sought to be achieved could have been
attained by reasonable restrictions rather than by
an absolute prohibition. Pursuant to the title of
the Ordinance, Bocaue should and can only
regulate not prohibit the business of cabarets.

v. consistent with public policy

vi. not unreasonable

BALACUIT VS CFI OF AGUSAN DEL NORTE where an

ordinance penalized movie houses that charged full
payment for admission of children between 7-12; An
ordinance prohibiting theater owners to require children
below 12 to pay the full price of admission and instead
charge only half of the admission price is
unconstitutional. A police measure for the regulation of
the conduct, control and operation of business should
not encroach upon the legitimate and lawful exercise by
the citizens of their property rights.

The operation of theaters, cinematographs and

other places of public exhibition are subject to
regulation by the municipal council in the
exercise of delegated police power by the local
government.

Thus,
an
ordinance
prohibiting
first-run
cinematographs from selling tickets beyond their
seating capacity was upheld as constitutional for
being a valid exercise of police power. Also, an
ordinance prohibiting admission of 2 or more
persons in the moviehouses and other
amusement places with the use of only 1 ticket is
a valid regulatory police measure not only in the
interest of preventing fraud insofar as municipal

taxes are concerned but also in accordance with

public health, public safety and the general
welfare.

The ordinance here is not justified by any

necessity for the public interest. The evident
purposes of the ordinance is to help ease the
burden of cost on the part of the parent who
have shell out the same amount of money for the
admission of their children, as they would for
themselves.

A reduction in the price of admission would mean

corresponding savings for the parents; however,
the theater owners are the ones made to bear
the cost of these savings. The ordinance does not
make the theater owners suffer the loss of
earnings but it likewise penalizes them for failure
to comply with it. Furthermore, there will be
difficulty in its implementation because children
over 12 of age could pass off their age as below
12 in order to avail of the benefit of the
ordinance. The ordinance does not provide a
safeguard against this undesirable practice and
as such, the city suggest that birth certificates be
exhibited by the moviehouse patrons to prove
the age of children. This is not practicable. The
ordinance is unreasonable if not unduly
oppressive upon the business of the theater
owners. Moreover, there is no discernible relation
between the ordinance and the promotion of
public health, safety, morals and the general
welfare.

A police measure for the regulation of the

conduct, control and operation of business should
not encroach upon the legitimate and lawful
exercise by the citizens of their property rights.
The right of the owner to fix a price at which his
property shall be sold or used is an inherent
attribute of the property itself and, as such,
within the protection of the due process clause.
Hence, the proprietors of a theater have right to
manage their property in their own way, to fix
what prices of admission they think most for their
own advantage, and that any person who did not
approve could stay away.

Requisites of police power in general:

1. Lawful subject

2. Lawful means

Note: Ordinances enjoy presumption of constitutionality (to doubt is to

sustain), except laws restricting freedom of expression under the
doctrine of strict scrutiny any governmental act that infringes on

protective freedom or freedom of expression comes to court with the

heavy presumption against its constitutionality, thus, it becomes the
duty of the government now to prove that it does not infringe
protective freedom beyond what is allowed by the consti. It is the
government who shall now prove that its a lawful invasion of
protective freedom.

TANO VS SOCRATES Lgus may enact police power measures pursuant

to the general welfare clause.

The sangguniang panlungsod of Puerto Princesa City enacted an

ordinance banning shipment of all live fish and lobster outside
the said city and prohibiting the catching, gathering,
possessing, buying, selling and shipment of live marine coral
dwelling aquatic organisms.

Petitioners were charged criminally for violation of such

ordinance. They invoke the preferential right of marginal
fishermen under Sec. 149 of the LGC.

The so-called preferential right of subsistence or marginalfishermen to the use of marine resources is not at all absolute.

The LGC provisions invoked by public respondents seek to give

flesh and blood to the right of the people to a balanced and
healthful ecology. In fact, the general welfare clause, expressly
mentions this right. The LGC explicitly mandates that the
general welfare provisions of the LGC shall be liberally
interpreted to give more powers to the lgus in accelerating
economic development and upgrading the quality of life for the
people of the community.

One of the devolved powers enumerated in the LGC on

devolution is the enforcement of fishery laws in municipal
waters including the conservation of mangroves. This
necessarily includes the enactment of ordinances to effectively
carry out such fishery laws within the municipal waters.

In light then of the principles of decentralization and devolution

enshrined in the LGC, and the powers granted therein to lgus
under the general welfare clause, which unquestionably involve
the exercise of police power, the validity of the questioned
ordinance cannot be doubted.

ORTIGAS VS FEATI BANK The municipality of mandaluyong, in

exercising its police power by enacting an ordinance declaring a
particular area as a commercial and industrial zone, may not be barred
by a claim of non-impairment of contracts.

When Oritgas sold 2 lots, the original buyers agreed to the

stipulation that the lots shall be used exclusively for residential
purposes. Subsequently, however, the municipal council of
Mandaluyong passed a resolution declaring the area where the
lots were located as a commercial and industrial zone. 2 years
later, the bank acquired the lots and commenced the
construction of a commercial building. Ortigas filed action to
enjoin construction. Which shall prevail the restrictive
covenant in the purchase agreement or the municipal

ordinance?

The resolution was a legitimate exercise of police power the

most essential, insistent, and illimitable of powers and in a
sense, the greatest and most powerful attribute of
government. The Court reiterated the PLDT ruling that police
power is elastic and must be responsive to various social
conditions; it is not confined with narrow circumscriptions of
precedents resting on past conditions; it must follow the legal
process of a democratic way of life. It took notice of the
commercial and industrial development along E. delos Santos
Avenue and found the resolution a valid exercise of police
power.

On on the non-impairment contracts issue, the court found the

resolution a legitimate response to a felt public need. The
non-impairment clause may not bar the municipalitys exercise
of police power. Not only are existing laws read into contracts in
order to fix obligations as between the parties, but the
reservation of essential attributes of sovereign power is also
read into contracts as a postulate of the legal order.

Zoning ordinance is a police measure.

It prevails over contractual obligations.

Therefore, parties to a contract who may be affected by zoning

ordinances cannot invoke the constitutional right against
impairment of obligations and contracts because in
constitutional law, police power prevails over the nonimpairment clause.

LIM VS PACQUING

The issue is to determine whether PD No. 771 validly revoked

ADC's franchise to operate the jai-alai, assuming (without
conceding) that it indeed possessed such franchise under
Ordinance No. 7065.

ADC argues that PD No. 771 is unconstitutional for being

violative of the equal protection and non-impairment provisions
of the Constitution. On the other hand, the government
contends that PD No. 771 is a valid exercise of the inherent
police power of the State.

The police power has been described as the least limitable of

the inherent powers of the State. It is based on the ancient
doctrine salus populi est suprema lex (the welfare of the
people is the supreme law.)

The police power of the State . . . is a power coextensive with self-protection, and is not inaptly termed
the "law of overruling necessity." It may be said to be
that inherent and plenary power in the State which
enables it to prohibit all things hurtful to the comfort,
safety and welfare of society. Carried onward by the
current of legislation, the judiciary rarely attempts to
dam the onrushing power of legislative discretion,
provided the purposes of the law do not go beyond the

great principles that mean security for the public welfare

or do not arbitrarily interfere with the right of the
individual.

In the matter of PD No. 771, the purpose of the law is clearly

stated in the "whereas clause" as follows:

WHEREAS, it has been reported that in spite of the

current drive of our law enforcement agencies against
vices and illegal gambling, these social ills are still
prevalent in many areas of the country;

WHEREAS, there is need to consolidate all the efforts of

the government to eradicate and minimize vices and
other forms of social ills in pursuance of the social and
economic development program under the new society;

WHEREAS, in order to effectively control and regulate

wagers or betting by the public on horse and dog races,
jai-alai and other forms of gambling there is a necessity
to transfer the issuance of permit and/or franchise from
local government to the National Government.

It cannot be argued that the control and regulation of gambling

do not promote public morals and welfare. Gambling is
essentially antagonistic and self-reliance. It breeds indolence
and erodes the value of good, honest and hard work. It is, as
very aptly stated by PD No. 771, a vice and a social ill which
government must minimize (if not eradicate) in pursuit of social
and economic development.

In the exercise of its own discretion, the legislative

power may prohibit gambling altogether or allow it
without limitation or it may prohibit some forms of
gambling and allow others for whatever reasons it may
consider sufficient. Thus, it has prohibited jueteng and
monte but permits lotteries, cockfighting and horseracing. In making such choices, Congress has consulted
its own wisdom, which this Court has no authority to
review, much less reverse. Well has it been said that
courts do not sit to resolve the merits of conflicting
theories. That is the prerogative of the political
departments. It is settled that questions regarding
wisdom, morality and practicability of statutes are not
addressed to the judiciary but may be resolved only by
the executive and legislative departments, to which the
function belongs in our scheme of government.

Jai-alai is not a mere economic activity which the law seeks to

regulate. It is essentially gambling and whether it should be
permitted and, if so, under what conditions are questions
primarily for the lawmaking authority to determine, talking into
account national and local interests. Here, it is the police power
of the State that is paramount.

On the alleged violation of the non-impairment and equal

protection clauses of the Constitution, it should be remembered
that a franchise is not in the strict sense a simple contract but

rather it is more importantly, a mere privilege specially in

matters which are within the government's power to regulate
and even prohibit through the exercise of the police power.
Thus, a gambling franchise is always subject to the exercise of
police power for the public welfare.

LUCENA GRAND CENTRAL TERMINAL VS JAC LINER The only way to

justify non-payment of just compensation is for Lucena City to prove
that it is a valid police power measure. Note: Overbreadth doctrine
where a law seeks to accomplish a governmental purpose, it must do
so without unreasonably or unnecessarily invading some protected
freedom and that it must be least intrusive to the rights of individuals.

Respecting the issue of whether police power was properly

exercised when the subject ordinances were enacted: As with
the State, the local government may be considered as having
properly exercised its police power only if the following
requisites are met: (1) the interests of the public generally, as
distinguished from those of a particular class, require the
interference of the State, and (2) the means employed are
reasonably necessary for the attainment of the object sought to
be accomplished and not unduly oppressive upon individuals.
Otherwise stated, there must be a concurrence of a lawful
subject and lawful method.

That traffic congestion is a public, not merely a private,

concern, cannot be gainsaid.The questioned ordinances having
been enacted with the objective of relieving traffic congestion
in the City of Lucena, they involve public interest warranting
the interference of the State. The first requisite for the proper
exercise of police power is thus present.

This leaves for determination the issue of whether the means

employed by the Lucena Sangguniang Panlungsod to attain its
professed objective were reasonably necessary and not unduly
oppressive upon individuals.

With the aim of localizing the source of traffic congestion in the

city to a single location, the subject ordinances prohibit the
operation of all bus and jeepney terminals within Lucena,
including those already existing, and allow the operation of only
one common terminal located outside the city proper, the
franchise for which was granted to petitioner. The common
carriers plying routes to and from Lucena City are thus
compelled to close down their existing terminals and use the
facilities of petitioner.

In De la Cruz v. Paras, this Court declared unconstitutional an

ordinance characterized by overbreadth. In that case, the
Municipality of Bocaue, Bulacan prohibited the operation of all
night clubs, cabarets and dance halls within its jurisdiction for
the protection of public morals. Held the Court:

It cannot be said that such a sweeping exercise of a

lawmaking power by Bocaue could qualify under the
term reasonable.
The objective of fostering public
morals, a worthy and desirable end can be attained by a

measure that does not encompass too wide a field.

Certainly the ordinance on its face is characterized by
overbreadth. The purpose sought to be achieved could
have been attained by reasonable restrictions rather
than by an absolute prohibition. The admonition in
Salaveria should be heeded: The Judiciary should not
lightly set aside legislative action when there is not a
clear invasion of personal or property rights under the
guise of police regulation. It is clear that in the guise of
a police regulation, there was in this instance a clear
invasion of personal or property rights, personal in the
case of those individuals desirous of patronizing those
night clubs and property in terms of the investments
made and salaries to be earned by those therein
employed.

In Lupangco v. Court of Appeals, this Court, in declaring

unconstitutional the resolution subject thereof, advanced a
similar consideration. That case involved a resolution issued by
the Professional Regulation Commission which prohibited
examinees from attending review classes and receiving
handout materials, tips, and the like three days before the date
of examination in order to preserve the integrity and purity of
the licensure examinations in accountancy. Besides being
unreasonable on its face and violative of academic freedom,
the measure was found to be more sweeping than what was
necessary, viz:

Needless to say, the enforcement of Resolution No. 105

is not a guarantee that the alleged leakages in the
licensure examinations will be eradicated or at least
minimized. Making the examinees suffer by depriving
them of legitimate means of review or preparation on
those last three precious days when they should be
refreshing themselves with all that they have learned in
the review classes and preparing their mental and
psychological make-up for the examination day itself
would be like uprooting the tree to get rid of a rotten
branch. What is needed to be done by the respondent is
to find out the source of such leakages and stop it right
there. If corrupt officials or personnel should be
terminated from their loss, then so be it. Fixers or
swindlers should be flushed out. Strict guidelines to be
observed by examiners should be set up and if violations
are committed, then licenses should be suspended or
revoked. x x x (Emphasis and underscoring supplied)

As in De la Cruz and Lupangco, the ordinances assailed herein

are characterized by overbreadth. They go beyond what is
reasonably necessary to solve the traffic problem. Additionally,
since the compulsory use of the terminal operated by petitioner
would subject the users thereof to fees, rentals and charges,
such measure is unduly oppressive, as correctly found by the
appellate court. What should have been done was to determine
exactly where the problem lies and then to stop it right there.

The true role of Constitutional Law is to effect an equilibrium

between authority and liberty so that rights are exercised
within the framework of the law and the laws are enacted with
due deference to rights.

A due deference to the rights of the individual thus requires a

more careful formulation of solutions to societal problems.

From the memorandum filed before this Court by petitioner, it is

gathered that the Sangguniang Panlungsod had identified the
cause of traffic congestion to be the indiscriminate loading and
unloading of passengers by buses on the streets of the city
proper, hence, the conclusion that the terminals contributed to
the proliferation of buses obstructing traffic on the city streets.

Bus terminals per se do not, however, impede or help impede

the flow of traffic. How the outright proscription against the
existence of all terminals, apart from that franchised to
petitioner, can be considered as reasonably necessary to solve
the traffic problem, this Court has not been enlightened. If
terminals lack adequate space such that bus drivers are
compelled to load and unload passengers on the streets instead
of inside the terminals, then reasonable specifications for the
size of terminals could be instituted, with permits to operate
the same denied those which are unable to meet the
specifications.(Reasonable
police
measure

strict
implementation of traffic rules and regulations)

As for petitioners claim that the challenged ordinances have

actually been proven effective in easing traffic congestion:
Whether an ordinance is effective is an issue different from
whether it is reasonably necessary. It is its reasonableness, not
its effectiveness, which bears upon its constitutionality. If the
constitutionality of a law were measured by its effectiveness,
then even tyrannical laws may be justified whenever they
happen to be effective.

WHITE LIGHT CORPORATION VS CITY OF MANILA

A city ordinance was enacted prohibiting establishments of

motels and inns from offering short-time admission, as well as
pro-rated or wash up rates for such abbreviated stays.

It cannot be denied that the primary animus behind the

ordinance is the curtailment of sexual behavior. The City asserts
before this Court that the subject establishments have gained
notoriety as venue of prostitution, adultery and fornications in
Manila since they provide the necessary atmosphere for
clandestine entry, presence and exit and thus became the ideal
haven for prostitutes and thrill-seekers. Whether or not this
depiction of a mise-en-scene of vice is accurate, it cannot be
denied that legitimate sexual behavior among willing married
or consenting single adults which is constitutionally protected
will be curtailed as well.

We cannot discount other legitimate activities which the

Ordinance would proscribe or impair. There are very legitimate
uses for a wash rate or renting the room out for more than

twice a day. Entire families are known to choose pass the time
in a motel or hotel whilst the power is momentarily out in their
homes. In transit passengers who wish to wash up and rest
between trips have a legitimate purpose for abbreviated stays
in motels or hotels. Indeed any person or groups of persons in
need of comfortable private spaces for a span of a few hours
with purposes other than having sex or using illegal drugs can
legitimately look to staying in a motel or hotel as a convenient
alternative.

That the Ordinance prevents the lawful uses of a wash rate

depriving patrons of a product and the petitioners of lucrative
business ties in with another constitutional requisite for the
legitimacy of the Ordinance as a police power measure. It must
appear that the interests of the public generally, as
distinguished from those of a particular class, require an
interference with private rights and the means must be
reasonably necessary for the accomplishment of the purpose
and not unduly oppressive of private rights. It must also be
evident that no other alternative for the accomplishment of the
purpose less intrusive of private rights can work. More
importantly, a reasonable relation must exist between the
purposes of the measure and the means employed for its
accomplishment, for even under the guise of protecting the
public interest, personal rights and those pertaining to private
property will not be permitted to be arbitrarily invaded.

Lacking a concurrence of these requisites, the police measure

shall be struck down as an arbitrary intrusion into private rights.

The behavior which the Ordinance seeks to curtail is in fact

already prohibited and could in fact be diminished simply by
applying existing laws. Less intrusive measures such as curbing
the proliferation of prostitutes and drug dealers through active
police work would be more effective in easing the situation. So
would the strict enforcement of existing laws and regulations
penalizing prostitution and drug use. These measures would
have minimal intrusion on the businesses of the petitioners and
other legitimate merchants. Further, it is apparent that the
Ordinance can easily be circumvented by merely paying the
whole day rate without any hindrance to those engaged in illicit
activities. Moreover, drug dealers and prostitutes can in fact
collect wash rates from their clientele by charging their
customers a portion of the rent for motel rooms and even
apartments.

We reiterate that individual rights may be adversely affected

only to the extent that may fairly be required by the legitimate
demands of public interest or public welfare. The State is a
leviathan that must be restrained from needlessly intruding into
the lives of its citizens. However well-intentioned the Ordinance
may be, it is in effect an arbitrary and whimsical intrusion into
the rights of the establishments as well as their patrons. The
Ordinance needlessly restrains the operation of the businesses
of the petitioners as well as restricting the rights of their
patrons without sufficient justification. The Ordinance rashly

equates wash rates and renting out a room more than twice a
day with immorality without accommodating innocuous
intentions.

TAN VS PERENA

While the Local Government Code expressly repealed several

laws, the Cockfighting Law was not among them. Section
534(f) of the Local Government Code declares that all general
and special laws or decrees inconsistent with the Code are
hereby repealed or modified accordingly, but such clause is not
an express repealing clause because it fails to identify or
designate the acts that are intended to be repealed. It is a
cardinal rule in statutory construction that implied repeals are
disfavored and will not be so declared unless the intent of the
legislators is manifest. As laws are presumed to be passed with
deliberation and with knowledge of all existing ones on the
subject, it is logical to conclude that in passing a statute it is
not intended to interfere with or abrogate a former law relating
to the same subject matter, unless the repugnancy between the
two is not only irreconcilable but also clear and convincing as a
result of the language used, or unless the latter Act fully
embraces the subject matter of the earlier.

Is the one-cockpit-per-municipality rule under the Cockfighting

Law clearly and convincingly irreconcilable with Section 447(a)
(3)(v) of the Local Government Code? The clear import of
Section 447(a)(3)(v) is that it is the sangguniang bayan which is
empowered to authorize and license the establishment,
operation and maintenance of cockpits, and regulate
cockfighting and commercial breeding of gamecocks,
notwithstanding any law to the contrary.The necessity of the
qualifying phrase any law to the contrary notwithstanding can
be discerned by examining the history of laws pertaining to the
authorization of cockpit operation in this country.

Given the historical perspective, it becomes evident why the

legislature found the need to use the phrase any law to the
contrary notwithstanding in Section 447(a)(3)(v). However,
does the phrase similarly allow the Sangguniang Bayan to
authorize more cockpits than allowed under Section 5(d) of the
Cockfighting Law? Certainly, applying the test of implied repeal,
these two provisions can stand together. While the sanggunian
retains the power to authorize and license the establishment,
operation, and maintenance of cockpits, its discretion is limited
in that it cannot authorize more than one cockpit per city or
municipality, unless such cities or municipalities have a
population of over one hundred thousand, in which case two
cockpits may be established. Considering that Section 447(a)(3)
(v) speaks essentially of the identity of the wielder of the power
of control and supervision over cockpit operation, it is not
inconsistent with previous enactments that impose restrictions
on how such power may be exercised. In short, there is no
dichotomy between affirming the power and subjecting it to
limitations at the same time.

Perhaps more essential than the fact that the two controverted
provisions are not inconsistent when put together, the Court
recognizes that Section 5(d) of the Cockfighting Law arises from
a valid exercise of police power by the national government. Of
course, local governments are similarly empowered under
Section 16 of the Local Government Code. The national
government ought to be attuned to the sensitivities of
devolution and strive to be sparing in usurping the prerogatives
of local governments to regulate the general welfare of their
constituents.

We do not doubt, however, the ability of the national

government to implement police power measures that affect
the subjects of municipal government, especially if the subject
of regulation is a condition of universal character irrespective of
territorial jurisdictions. Cockfighting is one such condition. It is a
traditionally regulated activity, due to the attendant gambling
involved or maybe even the fact that it essentially consists of
two birds killing each other for public amusement. Laws have
been enacted restricting the days when cockfights could be
held, and legislation has even been emphatic that cockfights
could not be held on holidays celebrating national honor such
as Independence Day and Rizal Day.

The Whereas clauses of the Cockfighting Law emphasize that

cockfighting should neither be exploited as an object of
commercialism or business enterprise, nor made a tool of
uncontrolled gambling, but more as a vehicle for the
preservation and perpetuation of native Filipino heritage and
thereby enhance our national identity. The obvious thrust of
our laws designating when cockfights could be held is to limit
cockfighting and imposing the one-cockpit-per-municipality rule
is in line with that aim. Cockfighting is a valid matter of police
power regulation, as it is a form of gambling essentially
antagonistic to the aims of enhancing national productivity and
self-reliance. Limitation on the number of cockpits in a given
municipality is a reasonably necessary means for the
accomplishment of the purpose of controlling cockfighting, for
clearly more cockpits equals more cockfights.

If we construe Section 447(a)(3)(v) as vesting an unlimited

discretion to the sanggunian to control all aspects of cockpits
and cockfighting in their respective jurisdiction, this could lead
to the prospect of daily cockfights in municipalities, a certain
distraction in the daily routine of life in a municipality. This
certainly goes against the grain of the legislation earlier
discussed. If the arguments of the petitioners were adopted,
the national government would be effectively barred from
imposing any future regulatory enactments pertaining to
cockpits and cockfighting unless it were to repeal Section
447(a)(3)(v).

A municipal ordinance must not contravene the Constitution or

any statute, otherwise it is void. Ordinance No. 7 unmistakably
contravenes the Cockfighting Law in allowing three cockpits in
Daanbantayan.
Thus, no rights can be asserted by the

petitioners arising from the Ordinance. We find the grant of

injunction as ordered by the appellate court to be well-taken.
C. Local Eminent Domain

1. Scope and Limitation

Sec. 9 Art. 3 consti - Private property shall not be taken for public use
without just compensation.

Note: The way to evaluate the validity of the exercise of local eminent
domain is to first go over the general requirements for the exercise of
eminent domain and then go to Sec. 19 for the specific requirements
as well as Secs. 9 and 10 of RA 7279.

a. General Requirements they still apply to expropriation done by a

lgu

i. necessity it should be genuine necessity

Distinguish necessity in the exercise of eminent domain

by the national government and the local government:

GR: The issue of genuine necessity is a political

question, meaning, if congress determines that
there is genuine necessity, the courts have to
respect the judgment of congress that there is
necessity in exercising eminent domain. So it is
not therefore readily subject to judicial review.
The courts have to consider it as a political
question because it is an original power exercised
by congress. It is not a power exercised by a
delegated entity, which is the case in the case of
a lgu.

E: So if the lgu is the one exercising

eminent domain, the issue of necessity is
readily subject to judicial review. Theres
no way the lgus can say that in their
judgment, there is a need to expropriate
the property because they feel that it is
necessary and therefore, it should be
beyond judicial review.

Reason for the rule: Congress exercises original

power while lgus exercise it from a derivative
power. Lgus derived the power to expropriate
from congress because its delegated and in
every delegation, the delegate, the moment it
exercises the power, is always subject to the
authority granted to it, so the court, therefore,
has authority to determine WON the delegate is
performing the delegated power in accordance
with the policy or standard given to the delegate.

LOURDES DE LA PAZ MASIKIP VS CITY OF PASIG

ISSUE: WON THERE WAS A GENUINE NECESSITY

FOR EXPROPRIATION?

RULING:NO. Judicial review of the exercise of

eminent domain is limited to the following
areas of concern: (a) the adequacy of the
compensation, (b) the necessity of the
taking, and (c) the public use character of
the purpose of the taking.

The Court defines what constitutes genuine

necessity for public use.

In this case, petitioner contends that respondent

City of Pasig failed to establish a genuine
necessity which justifies the condemnation of her
property. While she does not dispute the
intended public purpose, nonetheless, she insists
that theremust be a genuine necessity for the
proposed use and purposes. According to
petitioner, there is already an established sports
development and recreational activity center at
Rainforest Park in Pasig City, fully operational and
being utilized by its residents, including those
from Barangay Caniogan. Respondent does not
dispute this. Evidently, there is no genuine
necessity to justify the expropriation.

The right to take private property for public

purposes necessarily originates from the
necessity and the taking must be limited to such
necessity. The very foundation of the right to
exercise eminent domain is a genuine necessity
and that necessity must be of a public character.
Moreover, the ascertainment of the necessity
must precede or accompany and not follow, the
taking of the land. The necessity within the rule
that the particular property to be expropriated
must be necessary, does not mean an absolute
but only a reasonable or practical necessity, such
as would combine the greatest benefit to the
public with the least inconvenience and expense
to the condemning party and the property owner
consistent with such benefit.

Applying this standard, we hold that respondent

City of Pasig has failed to establish that there is a
genuine necessity to expropriate petitioners
property. Our scrutiny of the records shows that
the Certification issued by the Caniogan
Barangay Council, the basis for the passage of
Ordinance No. 42 s. 1993 authorizing the
expropriation, indicates that the intended
beneficiary
is
the
Melendres
Compound
Homeowners Association, a private, non-profit
organization, not the residents of Caniogan. It
can be gleaned that the members of the said

Association are desirous of having their own

private playground and recreational facility.
Petitioners lot is the nearest vacant space
available. The purpose is, therefore, not clearly
and categorically public. The necessity has not
been shown, especially considering that there
exists
an
alternative
facility
for
sports
development and community recreation in the
area, which is the Rainforest Park, available to all
residents of Pasig City, including those of
Caniogan.

ii. private property

iii. taking

iv. public use/public purpose

v. just compensation

vi. due process

b. Specific Requirements

i. An ordinance is enacted by the local legislative council

authorizing the local chief executive, in behalf of the lgu, to
exercise the power of eminent domain or pursue expropriation
proceedings over a particular private property.

MUNICIPALITY OF PARANAQUE VS V.M. REALTY

CORPORATION The power of eminent domain by LGUs
may be effected only by ordinance not by a mere
resolution.

Issue: Whether or Not an LGU can exercise its

power of eminent domain pursuant to a
resolution by its law-making body.

Held: Under Section 19, of the present Local

Government Code (RA 7160), it is stated as the
first requisite that LGUs can exercise its power of
eminent domain if there is an ordinance enacted
by its legislative body enabling the municipal
chief executive. A resolution is not an ordinance,
the former is only an opinion of a law-making
body, the latter is a law. The case cited by
Petitioner involves BP 337, which was the
previous Local Government Code, which is
obviously no longer in effect. RA 7160 prevails
over the Implementing Rules, the former being
the law itself and the latter only an
administrative rule which cannot amend the
former.

Resolution is just an expression of the sentiment

of the local legislative body while an ordinance
has the force and effect of law, which is not the
case of a resolution.

We are not convinced by petitioners insistence

that the terms resolution and ordinance are

synonymous. A municipal ordinance is different
from a resolution. An ordinance is a law, but a
resolution is merely a declaration of the
sentiment or opinion of a lawmaking body on a
specific matter. An ordinance possesses a
general and permanent character, but a
resolution is temporary in nature. Additionally,
the two are enacted differently a third reading
is necessary for an ordinance, but not for a
resolution, unless decided otherwise by a
majority of all the Sanggunian members.

ii. The power of eminent domain is exercised for public use,

purpose or welfare, or for the benefit of the poor and
the landless.

iii. There is payment of just compensation, as required under

Sec. 9, Art. 3 of the consti, and other pertinent laws.

iv. A valid and definite offer has been previously made to

the owner of the property sought to be expropriated, but said
offer was not accepted or it was rejected. (Sec. 19)

Note: The 4th requirement is peculiar to an expropriation

done by a lgu. This is not required if it is done by all
other entities (i.e. national government and public utility
companies)

Add In re: Expropriation for urban development and

housing

v. Priorities in the acquisition of land shall be complied

with as mandated by RA 7279 (Urban Development and
Housing Act of 1992) (meaning: private lands should
be last in the selection of land!) (Sec. 9 of RA 7279)

Sec. 9. Priorities in the Acquisition of Land.

Lands for socialized housing shall be acquired in
the following order:

(a) Those owned by the Government or

any of its subdivisions, instrumentalities,
or agencies, including government-owned
or -controlled corporations and their
subsidiaries;

(b) Alienable lands of the public domain;

(c) Unregistered or abandoned and idle

lands;

(d) Those within the declared Areas for

Priority Development, Zonal Improvement
Program sites, and Slum Improvement
and Resettlement Program sites which
have not yet been acquired;

(e) Bagong Lipunan Improvement of Sites

and Services or BLISS sites which have not

yet been acquired; and

(f) Privately-owned lands.

Where open-site development is found more

practicable
and
advantageous
to
the
beneficiaries, the priorities mentioned in this
section shall not apply. The local government
units shall give budgetary priority to on-site
development of government lands.

vi. Expropriation shall be resorted to only when other

modes of acquisition have been exhausted (Sec. 10
of RA 7279)

Sec.
10. Modes of Land Acquisition. The
modes of acquiring lands for purposes of this Act
shall
include,
among
others,
community
mortgage, land swapping, land assembly or
consolidation, land banking, donation to the
Government,
joint-venture
agreement,
negotiated
purchase,
and
expropriation:
Provided, however, That expropriation shall be
resorted to only when other models of acquisition
have been exhausted: Provided, further, That
where expropriation is resorted to, parcels of
land owned by small property owners shall be
exempted for purposes of this Act: Provided,
finally, That abandoned property, as herein
defined, shall be reverted and escheated to the
State in a proceeding analogous to the procedure
laid down in Rule 91 of the Rules of Court.

For
the
purpose
of
socialized
housing,
government-owned and foreclosed properties
shall be acquired by the local government units,
or by the National Housing Authority primary
through negotiated purchase: Provided, That
qualified beneficiaries who are actual occupants
of the land shall be given the right of first refusal.

Note: These are jurisdictional allegations. They should be

alleged, otherwise, expropriation case will be dismissed.

Notes:

The lgu has the burden of proving that the foregoing

requirements have been complied with and that all
reasonable efforts have been exhausted.

Valid and definite offer as shown in the title of the land,

thus, lgu can rely on what appears in the title as to who
is the registered owner of the property.

Res judicata does not apply to the state insofar as the

right to expropriate is concerned but as to other matters
such as just compensation and area, res judicata applies,
but as to the right to expropriate, no res judicata.

Section 19. Eminent Domain. - A local government unit may,

through its chief executive and acting pursuant to an
ordinance, exercise the power of eminent domain for public
use, or purpose or welfare for the benefit of the poor and the
landless, upon payment of just compensation, pursuant to the
provisions of the Constitution and pertinent laws: Provided,
however, That the power of eminent domain may not be
exercised unless a valid and definite offer has been previously
made to the owner, and such offer was not accepted: Provided,
further, That the local government unit may immediately take
possession of the property upon the filing of the expropriation
proceedings and upon making a deposit with the proper court
of at least fifteen percent (15%) of the fair market value of the
property based on the current tax declaration of the property to
be expropriated: Provided, finally, That, the amount to be paid
for the expropriated property shall be determined by the proper
court, based on the fair market value at the time of the taking
of the property.

Arts. 32-37, IRR

Art. 32. When Exercised. - (a) An LGU may, through its

chief executive and acting pursuant to an ordinance,
exercise the power of eminent domain for public use,
purpose, or welfare of the poor and the landless, upon
payment of just compensation, pursuant to the
provisions of the Constitution and pertinent laws.

(b) The power of eminent domain may not be exercised

unless a valid and definite offer has been previously
made to the owner, and such offer was not accepted.

Art. 33. Public Use, Purpose, or Welfare. - The following

shall, among others, be considered as public use,
purpose, or welfare:

(a) Socialized housing;

(b) Construction or extension of roads, streets,

sidewalks, viaducts, bridges, ferries, levees,
wharves, or piers;

(c) Construction
buildings;

(d) Establishment of parks,

plazas;

(e) Establishment of market places;

(f) Construction of artesian wells or water supply

systems;

(g) Establishment of cemeteries or crematories;

(h)
Establishment
of
drainage
cesspools, or sewerage systems;

(i) Construction of irrigation canals or dams;

(j) Establishment of nurseries, health centers, or

or

improvement

of

public

playgrounds,

or

systems,

hospitals;

(k) Establishment of abattoirs; and

(l) Building of research, breeding, or dispersal

centers for animals.

Art. 34. Prerequisites. - In acquiring private property for

public use or purpose, LGU shall first establish the
suitability of the property to be acquired for the use
intended, then proceed to obtain from the proper
authorities the necessary locational clearance and other
requirements imposed under existing laws, rules and
regulations.

Art. 35. Offer to Buy and Contract of Sale. - (a) The

offer to buy private property for public use or
purpose shall be in writing. It shall specify the (1)
property sought to be acquired, (2) the reasons
for its acquisition, and (3) the price offered.

(b) If the owner or owners accept the offer in its

entirety, a contract of sale shall be executed and
payment forthwith made.

(c) If the owner or owners are willing to sell their

property but at a price higher than that offered to
them, the local chief executive shall call them to a
conference for the purpose of reaching an
agreement on the selling price (Note: Failure to
conduct such conference is a ground to dismiss
the case when not alleged). The chairman of the
appropriation or finance committee of the sanggunian,
or in his absence, any member of the sanggunian duly
chosen as its representative, shall participate in the
conference. When an agreement is reached by the
parties, a contract of sale shall be drawn and executed.

(d) The contract of sale shall be supported by the

following documents:

(1)
Resolution
of
the
sanggunian
authorizing the local chief executive to
enter into a contract of sale. The resolution
shall specify the terms and conditions to be
embodied in the contract;

(2) Ordinance appropriating the amount

specified in the contract; and

(3) Certification of the local treasurer as to

availability of funds together with a
statement that such fund shall not be
disbursed or spent for any purpose other
than to pay for the purchase of the property
involved.

Art. 36. Expropriation Proceedings. - (a) If the LGU fails

to acquire a private property for public use, purpose, or

welfare through purchase, LGU may expropriate said

property through a resolution of the sanggunian
authorizing its chief executive to initiate expropriation
proceedings.

(b) The local chief executive shall cause the provincial,

city, or municipal attorney concerned or, in his absence,
the provincial or city prosecutor, to file expropriation
proceedings in the proper court in accordance with the
Rules of Court and other pertinent laws.

(c) The LGU may immediately take possession of the

property upon the filing of expropriation proceedings
and upon making a deposit with the proper court of at
least fifteen percent (15%) of the fair market value of
the property based on the current tax declaration of the
property to be expropriated.

Art. 37. Payment. - The amount to be paid for the

expropriated property shall be determined by the proper
court, based on the fair market value at the time of the
taking of the property.

JESUS IS LORD CHRISTIAN SCHOOL FOUNDATION INC. VS MUN.

OF PASIG

Issue: Whether or not there was due process.

Ruling:Eminent Domain: Nature and Scope The right of

eminent domain is usually understood to be an ultimate
right of the sovereign power to appropriate any property
within its territorial sovereignty for a public purpose. The
nature and scope of such power has been
comprehensively described as follows: ... It is an
indispensable attribute of sovereignty; a power
grounded in the primary duty of government to serve
the common need and advance the general welfare.
Thus, the right of eminent domain appertains to every
independent government without the necessity for
constitutional recognition. The provisions found in
modern constitutions of civilized countries relating to the
taking of property for the public use donot by implication
grant the power to the government, but limit the power
which would, otherwise, be without limit. Thus, our own
Constitution provides that [p]rivate property shall not
be taken for public use without just compensation.
Furthermore, the due process and equal protection
clauses act as additional safeguards against the
arbitrary exercise of this governmental power.

Strict Construction and Burden of Proof The exercise of

the right of eminent domain, whether directly by the
State or by its authorized agents, is necessarily in
derogation of private rights. It is one of the harshest
proceedings known to the law. Consequently, when the
sovereign delegates the power to a political unit or
agency, a strict construction will be given against the

agency asserting the power. The authority to condemn is

to be strictly construed in favor of the owner and against
the condemnor. When the power is granted, the extent
to which it may be exercised is limited to the express
terms or clear implication of the statute in which the
grant is contained. Corollarily, the respondent, which is
the condemnor, has the burden of proving all the
essentials necessary to show the right of condemnation.
It has the burden of proof to establish that it has
complied with all the requirements provided by law for
the valid exercise of the power of eminent domain.

The Court declared that the following requisites for the

valid exercise of the power of eminent domain by a local
government unit must be complied with:

1. An ordinance is enacted by the local legislative

council authorizing the local chief executive, in
behalf of the local government unit, to exercise
the power of eminent domain or pursue
expropriation proceedings over a particular
private property.

2. The power of eminent domain is exercised for

public use, purpose or welfare, or for the benefit
of the poor and the landless.

3. There is payment of just compensation, as

required under Section 9, Article III of the
Constitution, and other pertinent laws.

4.A valid and definite offer has been previously

made to the owner of the property sought to be
expropriated, but said offer was not accepted.

Valid and Definite Offer Art. 35 of the IRR of the LGC

provides.

The respondent was burdened to prove the mandatory

requirement of a valid and definite offer to the owner of
the property before filing its complaint and the rejection
thereof by the latter. It is incumbent upon the
condemnor to exhaust all reasonable efforts to obtain
the land it desires by agreement. Failure to prove
compliance with the mandatory requirement will result
in the dismissal of the complaint. An offer is a unilateral
proposition which one party makes to the other for the
celebration of a contract. It creates a power of
acceptance permitting the offeree, by accepting the
offer, to transform the offerors promise into a
contractual obligation. Corollarily, the offer must be
complete, indicating with sufficient clearness the kind of
contract intended and definitely stating the essential
conditions of the proposed contract. An offer would
require, among other things, a clear certainty on both
the object and the cause or consideration of the
envisioned contract.

The purpose of the requirement of a valid and definite

offer to be first made to the owner is to encourage
settlements and voluntary acquisition of property
needed for public purposes in order to avoid the
expense and delay of a court action. The law is designed
to give to the owner the opportunity to sell his land
without the expense and inconvenience of a protracted
and expensive litigation. This is a substantial right which
should be protected in every instance. It encourages
acquisition without litigation and spares not only the
landowner but also the condemnor, the expenses and
delays of litigation. It permits the landowner to receive
full compensation, and the entity acquiring the property,
immediate use and enjoyment of the property. A
reasonable offer in good faith, not merely perfunctory or
pro forma offer, to acquire the property for a reasonable
price must be made to the owner or his privy. A single
bona fide offer that is rejected by the owner will suffice.

In the present case, the respondent failed to prove that

before it filed its complaint, it made a written definite
and valid offer to acquire the property for public use as
an access road. The only evidence adduced by the
respondent to prove its compliance with Section 19 of
the Local Government Code is the photocopy of the
letter purportedly bearing the signature of Engr. Jose
Reyes, to only one of the co-owners, Lorenzo Ching
Cuanco. It bears stressing, however, that the respondent
offered the letter only to prove its desire or intent to
acquire the property for a right-of-way. The document
was not offered to prove that the respondent made a
definite and valid offer to acquire the property.
Moreover, the RTC rejected the document because the
respondent failed to adduce in evidence the original
copy thereof. The respondent, likewise, failed to adduce
evidence that copies of the letter were sent to and
received by all the co-owners of the property, namely,
Lorenzo Ching Cuanco, Victor Ching Cuanco and Ernesto
Kho.

There is no legal and factual basis to the CAs ruling that

the annotation of a notice of lis pendens at the dorsal
portion of petitioners TCT No. PT-92579 is a substantial
compliance with the requisite offer. A notice of lis
pendens is a notice to the whole world of the pendency
of an action involving the title to or possession of real
property and a warning that those who acquire an
interest in the property do so at their own risk and that
they gamble on the result of the litigation over it.
Moreover, the lis pendens was annotated at the dorsal
portion of the title only on November 26, 1993, long
after the complaint had been filed in the RTC against the
Ching Cuancos.

Neither is the declaration in one of the whereas clauses

of the ordinance that the property owners were already

notified by the municipality of the intent to purchase the
same for public use as a municipal road, a substantial
compliance with the requirement of a valid and definite
offer under Section 19 of R.A. No. 7160. Presumably, the
Sangguniang Bayan relied on the erroneous premise
that the letter of Engr. Reyes reached the co-owners of
the property. In the absence of competent evidence
that, indeed, the respondent made a definite and valid
offer to all the co-owners of the property, aside from the
letter of Engr. Reyes, the declaration in the ordinance is
not a compliance with Section 19 of R.A. No. 7160.

Public Necessity We reject the contention of the

petitioner that its property can no longer be
expropriated by the respondent because it is intended
for the construction of a place for religious worship and
a school for its members. As aptly explained by this
Court in Manosca v. Court of Appeals, thus: It has been
explained as early as Sea v. Manila Railroad Co.,
that: ... A historical research discloses the meaning of
the term public use to be one of constant growth. As
society advances, its demands upon the individual
increases and each demand is a new use to which the
resources of the individual may be devoted. ... for
whatever is beneficially employed for the community is
a public use.

The subject property is expropriated for the purpose of

constructing a road. The respondent is not mandated to
comply with the essential requisites for an easement of
right-of-way under the New Civil Code. Case law has it
that in the absence of legislative restriction, the grantee
of the power of eminent domain may determine the
location and route of the land to be taken unless such
determination is capricious and wantonly injurious.
Expropriation is justified so long as it is for the public
good and there is genuine necessity of public character.
Government may not capriciously choose what private
property should be taken.

The respondent has demonstrated the necessity for

constructing a road from E. R. Santos Street to Sto.
Tomas Bukid. The witnesses, who were residents of Sto.
Tomas Bukid, testified that although there were other
ways through which one can enter the vicinity, no
vehicle, however, especially fire trucks, could enter the
area except through the newly constructed Damayan
Street. This is more than sufficient to establish that
there is a genuine necessity for the construction of a
road in the area. After all, absolute necessity is not
required, only reasonable and practical necessity will
suffice. Nonetheless, the respondent failed to show the
necessity for constructing the road particularly in the
petitioners property and not elsewhere. We note that

the whereas clause of the ordinance states that the 51square meter lot is the shortest and most suitable
access road to connect Sto. Tomas Bukid to E. R. Santos
Street. The respondents complaint also alleged that the
said portion of the petitioners lot has been surveyed as
the best possible ingress and egress. However, the
respondent failed to adduce a preponderance of
evidence to prove its claims.

As correctly pointed out by the petitioner, there is no

showing in the record that an ocular inspection was
conducted during the trial. If, at all, the trial court
conducted an ocular inspection of the subject property
during the trial, the petitioner was not notified thereof.
The petitioner was, therefore, deprived of its right to due
process. It bears stressing that an ocular inspection is
part of the trial as evidence is thereby received and the
parties are entitled to be present at any stage of the
trial. Consequently, where, as in this case, the petitioner
was not notified of any ocular inspection of the property,
any factual finding of the court based on the said
inspection has no probative weight. The findings of the
trial court based on the conduct of the ocular inspection
must, therefore, be rejected.

PROVINCE OF CAMARINES SUR VS CA Neither the LGC nor the

CARL requires a lgu to secure approval of the DAR as a
condition precedent to institute the necessary expropriation
proceedings.

Modernly, there has been a shift from the literal to a

broader interpretation of public purpose or public
use for which the power of eminent domain may be
exercised. The old concept was that the condemned
property must actually be used by the general public
(e.g. roads, bridges, public plazas, etc.) before the
taking
thereof
could
satisfy
the
constitutional
requirement of public use.

Under the new concept, public use means public

advantage, convenience for benefit, which tends to
contribute the general welfare and the prosperity of the
whole community, like a resort complex for tourists or
housing project.

The expropriation of the property authorized by the

questioned resolution is for a public purpose. The
establishment of a pilot development center would inure
to the direct benefit and advantage of the people of the
Province of Camarines Sur. Once operational, the center
would make available to the community invaluable
information and technology on agriculture, fishery and
the cottage industry. Ultimately, the livelihood of the
farmers, fishermen and craftsmen would be enhanced.
The housing project also satisfies the public purpose
requirement of the consti.

The LGC does not require that local government

units must first secure the approval of the DAR
for the conversion of lands from agricultural to
non-agricultural use, before they can institute the
necessary expropriation proceedings. Likewise,
there is no provision in the Comprehensive
Agrarian Reform Law which expressly subjects the
expropriation of agricultural lands by local
government
units
to
the
control of
the
Department of Agrarian Reform.

To sustain the Court of Appeals would mean that the

local government units can no longer expropriate
agricultural lands needed for the construction of roads,
bridges, schools, hospitals, etc, without first applying for
conversion of the use of the lands with the Department
of Agrarian Reform, because all of these projects would
naturally involve a change in the land use. In effect, it
would then be the Department of Agrarian Reform to
scrutinize whether the expropriation is for a public
purpose or public use.

The CA decision is set aside insofar as it requires the

Province of Camarines Sur to obtain the approval of the
DAR to convert or reclassify private respondents
property from agricultural to non-agricultural use.

THE CITY OF CEBU VS DEDAMO Sec. 19 of RA 7160 expressly

provides that just compensation shall be determined as of the
time of actual taking and not as of the date of the filing of the
complaint. (Note: GR is that just compensation shall be
determined as of the time of actual taking or the date of the
filing of the complaint, whichever came first. However, the
exception is when done by lgu.)

The applicable law as to the point of reckoning for the

determination of just compensation is Section 19 of R.A.
No. 7160, which expressly provides that just
compensation shall be determined as of the time of
actual taking.

The petitioner has misread our ruling in The National

Power Corp. vs. Court of Appeals. We did not
categorically rule in that case that just compensation
should be determined as of the filing of the complaint.
We explicitly stated therein that although the general
rule in determining just compensation in eminent
domain is the value of the property as of the date of the
filing of the complaint, the rule "admits of an exception:
where this Court fixed the value of the property as of the
date it was taken and not at the date of the
commencement of the expropriation proceedings."

More than anything else, the parties, by a solemn

document freely and voluntarily agreed upon by them,
agreed to be bound by the report of the commission and
approved by the trial court. The agreement is a contract

between the parties. It has the force of law between

them and should be complied with in good faith under
Article 1159 and 1315 of the Civil Code.

Finally, while Section 4, Rule 67 of the Rules of

Court provides that just compensation shall be
determined at the time of the filing of the
complaint for expropriation, such law cannot
prevail over R.A. 7160, which is a substantive law.

FRANCIA VS MUN. OF MEYCAUAYAN

Issue: Whether or not prior determination of existence of

public purpose is necessary before the issuance of writ
of possession

Ruling: Under Sec. 19, before a local government

unit may enter into the possession of the property
sought to be expropriated, it must (1) file a
complaint for expropriation sufficient in form and
substance in the proper court and (2) deposit with
the said court at least 15% of the property's fair
market value based on its current tax declaration.
The law does not make the determination of a
public purpose a condition precedent to the
issuance of a writ of possession.

REPUBLIC VS LIM

One of the basic principles enshrined in our Constitution

is that no person shall be deprived of his private
property without due process of law; and in
expropriation cases, an essential element of due process
is that there must be just compensation whenever
private property is taken for public use. Accordingly,
Section 9, Article III, of our Constitution mandates:
"Private property shall not be taken for public use
without just compensation." The Republic disregarded
the foregoing provision when it failed and refused to pay
respondents
predecessors-in-interest
the
just
compensation for Lots 932 and 939.

The Court of Appeals is correct in saying that Republics

delay is contrary to the rules of fair play. In jurisdictions
similar to ours, where an entry to the expropriated
property precedes the payment of compensation, it has
been held that if the compensation is not paid in a
reasonable time, the party may be treated as a
trespasser ab initio.

As early as May 19, 1966, in Valdehueza, this Court

mandated
the
Republic
to
pay
respondents
predecessors-ininterest the sum of P16,248.40 as
"reasonable market value of the two lots in question."
Unfortunately, it did not comply and allowed several
decades to pass without obeying this Courts mandate. It
is tantamount to confiscation of private property. While
it is true that all private properties are subject to the

need of government, and the government may take

them whenever the necessity or the exigency of the
occasion demands, however from the taking of private
property by the government under the power of eminent
domain, there arises an implied promise to compensate
the owner for his loss.

There is a recognized rule that title to the property

expropriated shall pass from the owner to the
expropriator only upon full payment of the just
compensation. So, how could the Republic acquire
ownership over Lot 932 when it has not paid its owner
the just compensation, required by law, for more than 50
years?
Clearly,
without
full
payment
of
just
compensation, there can be no transfer of title from the
landowner to the expropriator.

SC ruled in earlier cases that expropriation of lands

consists of two stages. First is concerned with the
determination of the authority of the plaintiff to exercise
the power of eminent domain and the propriety of its
exercise. The second is concerned with the
determination by the court of "the just compensation for
the property sought to be taken." It is only upon the
completion of these two stages that expropriation is said
to have been completed In Republic v. Salem Investment
Corporation, we ruled that, "the process is not
completed until payment of just compensation." Thus,
here, the failure of the Republic to pay respondent and
his predecessors-in-interest for a period of 57 years
rendered the expropriation process incomplete.

Thus, SC ruled that the special circumstances prevailing

in this case entitle respondent to recover possession of
the expropriated lot from the Republic.

While the prevailing doctrine is that "the nonpayment of just compensation does not entitle the
private landowner to recover possession of the
expropriated lots, however, in cases where the
government failed to pay just compensation
within five (5) years from the finality of the
judgment in the expropriation proceedings, the
owners concerned shall have the right to recover
possession of their property. After all, it is the duty
of the government, whenever it takes property from
private persons against their will, to facilitate the
payment of just compensation. In Cosculluela v. Court of
Appeals, we defined just compensation as not only the
correct determination of the amount to be paid to the
property owner but also the payment of the property
within a reasonable time. Without prompt payment,
compensation cannot be considered "just."

ANUNCIACION VDA. DE OUANO VS REPUBLIC If expropriated

property is not developed for the purpose in which it was taken,

either it is abandoned or devoted to another purpose, former

owner may seek reversion.

Public use, as an eminent domain concept, has now

acquired an expansive meaning to include any use that
is of "usefulness, utility, or advantage, or what is
productive of general benefit [of the public]." If the
genuine public necessitythe very reason or
condition as it wereallowing, at the first
instance, the expropriation of a private land
ceases or disappears, then there is no more
cogent point for the governments retention of
the expropriated land. The same legal situation
should hold if the government devotes the
property to another public use very much
different from the original or deviates from the
declared purpose to benefit another private
person. It has been said that the direct use by the state
of its power to oblige landowners to renounce their
productive possession to another citizen, who will use it
predominantly for that citizens own private gain, is
offensive to our laws.

Once the purpose is terminated or peremptorily

abandoned, then the former owner, if he so
desires, may seek its reversion, subject of course
to the return, at the very least, of the just
compensation received.

More particularly, with respect to the element of public

use, the expropriator should commit to use the property
pursuant to the purpose stated in the petition for
expropriation filed, failing which, it should file another
petition for the new purpose. If not, it is then incumbent
upon the expropriator to return the said property to its
private owner, if the latter desires to reacquire the
same. Otherwise, the judgment of expropriation suffers
an intrinsic flaw, as it would lack one indispensable
element for the proper exercise of the power of eminent
domain, namely, the particular public purpose for which
the property will be devoted. Accordingly, the private
property owner would be denied due process of law, and
the judgment would violate the property owners right to
justice, fairness, and equity.

In light of these premises, we now expressly hold that

the taking of private property, consequent to the
Governments exercise of its power of eminent domain,
is always subject to the condition that the property be
devoted to the specific public purpose for which it was
taken. Corollarily, if this particular purpose or intent is
not initiated or not at all pursued, and is peremptorily
abandoned, then the former owners, if they so desire,
may seek the reversion of the property, subject to the
return of the amount of just compensation received. In
such a case, the exercise of the power of eminent

domain has become improper for lack of the required

factual justification.

To be compelled to renounce dominion over a piece of

land is, in itself, an already bitter pill to swallow for the
owner. But to be asked to sacrifice for the common good
and yield ownership to the government which reneges
on its assurance that the private property shall be for a
public purpose may be too much. But it would be worse
if the power of eminent domain were deliberately used
as a subterfuge to benefit another with influence and
power in the political process, including development
firms. The mischief thus depicted is not at all far-fetched
with the continued application of Fery. Even as the Court
deliberates on these consolidated cases, there is an
uncontroverted allegation that the MCIAA is poised to
sell, if it has not yet sold, the areas in question to Cebu
Property Ventures, Inc. This provides an added
dimension to abandon Fery. Given the foregoing
disquisitions,
equity
and
justice
demand
the
reconveyance by MCIAA of the litigated lands in question
to the Ouanos and Inocians. In the same token, justice
and fair play also dictate that the Ouanos and Inocian
return to MCIAA what they received as just
compensation for the expropriation of their respective
properties plus legal interest to be computed from
default, which in this case should run from the time
MCIAA complies with the reconveyance obligation. They
must likewise pay MCIAA the necessary expenses it
might have incurred in sustaining their respective lots
and the monetary value of its services in managing the
lots in question to the extent that they, as private
owners, were benefited thereby.

In accordance with Art. 1187 of the Civil Code on mutual

compensation, MCIAA may keep whatever income or
fruits it may have obtained from the parcels of land
expropriated. In turn, the Ouanos and Inocians need not
require the accounting of interests earned by the
amounts they received as just compensation.

Following Art. 1189 of the Civil Code providing that "[i]f

the thing is improved by its nature, or by time, the
improvement shall inure to the benefit of the creditor x x
x," the Ouanos and Inocians do not have to settle the
appreciation of the values of their respective lots as part
of the reconveyance process, since the value increase is
merely the natural effect of nature and time.

D. Basis Services and Facilities

1. Devolution, defined

Devolution connotes political decentralization, or the transfer of

powers, responsibilities, and resources for the performance of certain

functions from the central government to local government units. This

is a more liberal form of decentralization since there is an actual
transfer of powers and responsibilities. It aims to grant greater
autonomy to local government units in cognizance of their right to selfgovernment, to make them self-reliant, and to improve their
administrative and technical capabilities.

2. Conditions for devolution

Section 17. Basic Services and Facilities.

(a) Local government units shall endeavor to be self-reliant and shall

continue exercising the powers and discharging the duties and
functions currently vested upon them. They shall also discharge the
functions and responsibilities of national agencies and offices devolved
to them pursuant to this Code. Local government units shall likewise
exercise such other powers and discharge such other functions and
responsibilities as are necessary, appropriate, or incidental to efficient
and effective provisions of the basic services and facilities enumerated
herein.

(b) Such basic services and facilities include, but are not limited to, the
following:

(1) For Barangay:

(i) Agricultural support services which include planting

materials distribution system and operation of farm
produce collection and buying stations;

(ii) Health and social welfare services which include

maintenance of barangay health center and day-care
center;

(iii) Services and facilities related to general hygiene and

sanitation, beautification, and solid waste collection;

(iv) Maintenance of katarungang pambarangay;

(v) Maintenance of barangay roads and bridges and

water supply systems;

(vi) Infrastructure facilities such as multi-purpose hall,

multipurpose pavement, plaza, sports center, and other
similar facilities;

(vii) Information and reading center; and

(viii) Satellite or public market, where viable;

(2) For a Municipality:

(i) Extension and on-site research services and facilities

related to agriculture and fishery activities which include
dispersal of livestock and poultry, fingerlings, and other
seedling materials for aquaculture; palay, corn, and
vegetable seed farms; medicinal plant gardens; fruit
tree, coconut, and other kinds of seedling nurseries;
demonstration farms; quality control of copra and
improvement and development of local distribution
channels,
preferably
through
cooperatives;

interbarangay irrigation system; water and soil resource

utilization and conservation projects; and enforcement
of fishery laws in municipal waters including the
conservation of mangroves;

(ii) Pursuant to national policies and subject to

supervision, control and review of the DENR,
implementation of community-based forestry projects
which include integrated social forestry programs and
similar projects; management and control of communal
forests with an area not exceeding fifty (50) square
kilometers; establishment of tree parks, greenbelts, and
similar forest development projects;

(iii) Subject to the provisions of Title Five, Book I of this

Code, health services which include the implementation
of programs and projects on primary health care,
maternal and child care, and communicable and noncommunicable disease control services, access to
secondary and tertiary health services; purchase of
medicines, medical supplies, and equipment needed to
carry out the services herein enumerated;

(iv) Social welfare services which include programs and

projects on child and youth welfare, family and
community welfare, women's welfare, welfare of the
elderly and disabled persons; community-based
rehabilitation programs for vagrants, beggars, street
children, scavengers, juvenile delinquents, and victims
of drug abuse; livelihood and other pro-poor projects;
nutrition services; and family planning services;

(v) Information services which include investments and

job placement information systems, tax and marketing
information systems, and maintenance of a public
library;

(vi) Solid waste disposal system or environmental

management system and services or facilities related to
general hygiene and sanitation;

(vii) Municipal buildings, cultural centers, public parks

including freedom parks, playgrounds, and other sports
facilities and equipment, and other similar facilities;

(viii) Infrastructure facilities intended primarily to service

the needs of the residents of the municipality and which
are funded out of municipal funds including but not
limited to, municipal roads and bridges; school buildings
and other facilities for public elementary and secondary
schools; clinics, health centers and other health facilities
necessary to carry out health services; communal
irrigation, small water impounding projects and other
similar projects; fish ports; artesian wells, spring
development, rainwater collectors and water supply
systems; seawalls, dikes, drainage and sewerage, and
flood control; traffic signals and road signs; and similar

facilities;

(ix) Public markets, slaughterhouses and other municipal

enterprises;

(x) Public cemetery;

(xi) Tourism facilities and other tourist attractions,

including the acquisition of equipment, regulation and
supervision of business concessions, and security
services for such facilities; and

(xii) Sites for police and fire stations and substations and
municipal jail;

(3) For a Province:

(i) Agricultural extension and on-site research services

and facilities which include the prevention and control of
plant and animal pests and diseases; dairy farms,
livestock markets, animal breeding stations, and
artificial insemination centers; and assistance in the
organization of farmers and fishermen's cooperatives,
and other collective organizations, as well as the
transfer of appropriate technology;

(ii) Industrial research and development services, as well

as the transfer of appropriate technology;

(iii) Pursuant to national policies and subject to

supervision, control and review of the DENR,
enforcement of forestry laws limited to communitybased forestry projects, pollution control law, small-scale
mining law, and other laws on the protection of the
environment; and mini-hydroelectric projects for local
purposes;

(iv) Subject to the provisions of Title Five, Book I of this

Code, health services which include hospitals and other
tertiary health services;

(v) Social welfare services which include programs and

projects on rebel returnees and evacuees; relief
operations; and population development services;

(vi) Provincial buildings, provincial jails, freedom parks

and other public assembly areas and similar facilities;

(vii) Infrastructure facilities intended to service the

needs of the residence of the province and which are
funded out of provincial funds including, but not limited
to, provincial roads and bridges; inter-municipal
waterworks, drainage and sewerage, flood control, and
irrigation systems; reclamation projects; and similar
facilities;

(viii) Programs and projects for low-cost housing and

other mass dwellings, except those funded by the Social
Security System (SSS), Government Service Insurance
System p. 172 (GSIS), and the Home Development

Mutual Fund (HDMF): Provided, That national funds for

these programs and projects shall be equitably allocated
among the regions in proportion to the ratio of the
homeless to the population;

(ix) Investment support services, including access to

credit financing;

(x) Upgrading and modernization of tax information and

collection services through the use of computer
hardware and software and other means;

(xi) Inter-municipal telecommunications services, subject

to national policy guidelines; and

(xii) Tourism development and promotion programs;

(4) For a City:

All the services and facilities of the municipality and province,

and in addition thereto, the following:

(1) Adequate
facilities;

communication

and

transportation

(c) Notwithstanding the provisions of subsection (b)

hereof, public works and infrastructure projects and
other facilities, programs and services funded by the
national government under the annual General
Appropriations Act, other special laws, pertinent
executive orders, and those wholly or partially funded
from foreign sources, are not covered under this Section,
except in those cases where the local government unit
concerned is duly designated as the implementing
agency for such projects, facilities, programs, and
services.

(d) The designs, plans, specifications, testing of materials, and the

procurement of equipment and materials at P170 from both foreign
and local sources necessary for the provision of the foregoing services
and facilities shall be undertaken by the local government unit
concerned, based on national policies, standards and guidelines.

(e) National agencies or offices concerned shall devolve to local

government units the responsibility for the provision of basic services
and facilities enumerated in this Section within six (6) months after the
effectivity of this Code.

As used in this Code, the term "devolution" refers to the act by which
the national government confers power and authority upon the various
local government units to perform specific functions and
responsibilities.

(f) The national government or the next higher level of local

government unit may provide or augment the basic services and
facilities assigned to a lower level of local government unit when such
services or facilities are not made available or, if made available, are
inadequate to meet the requirements of its inhabitants.

(g) The basic services and facilities hereinabove enumerated shall be

funded from the share of local government units in the proceeds of

national taxes and other local revenues and funding support from the
national government, its instrumentalities and government-owned or
controlled corporations which are tasked by law to establish and
maintain such services or facilities. Any fund or resource available for
the use of local government units shall be first allocated for the
provision of basic services or facilities enumerated in subsection (b)
hereof before applying the same for other purposes, unless otherwise
provided in this Code.

(h) Regional offices of national agencies or offices whose functions are

devolved to local government units as provided herein shall be phased
out within one (1) year from the approval of this Code. Said national
agencies and offices may establish such field units as may be
necessary for monitoring purposes and providing technical assistance
to local government units. The properties, equipment, and other assets
of these regional offices shall be distributed to the local government
units in the region in accordance with the rules and regulations issued
by the oversight committee created under this Code.

(i) The devolution contemplated in this Code shall include the transfer
to local government units of the records, equipment, and other assets
and personnel of national agencies and offices corresponding to the
devolved powers, functions, and responsibilities.

Personnel of said national agencies or offices shall be absorbed by the

local government units to which they belong or in whose areas they
are assigned to the extent that it is administratively viable as
determined by the said oversight committee: Provided, That the rights
accorded to such personnel pursuant to civil service law, rules and
regulations shall not be impaired: Provided, further, That regional
directors who are career executive service officers and other officers of
similar rank in the said regional offices who cannot be absorbed by the
local government unit shall be retained by the national government,
without any diminution of rank, salary or tenure.

(j) To ensure the active participation of the private sector in local

governance, local government units may, by ordinance, sell, lease,
encumber, or otherwise dispose of public economic enterprises owned
by them in their proprietary capacity.

Costs may also be charged for the delivery of basic services or

facilities enumerated in this Section.

E. Reclassification of Lands

Section 20. Reclassification of Lands.

(a) A city or municipality may, through an ordinance passed by the

sanggunian after conducting public hearings for the purpose, authorize
the reclassification of agricultural lands and provide for the manner of
their utilization or disposition in the following cases: (1) when the land
ceases to be economically feasible and sound for agricultural purposes
as determined by the Department of Agriculture or (2) where the land
shall have substantially greater economic value for residential,
commercial, or industrial purposes, as determined by the sanggunian

concerned: Provided, That such reclassification shall be limited to the

following percentage of the total agricultural land area at the time of
the passage of the ordinance:

(1) For highly urbanized and independent component cities,

fifteen percent (15%);

(2) For component cities and first

municipalities, ten percent (10%); and

(3) For fourth to sixth class municipalities, five percent (5%):

Provided, further, That agricultural lands distributed to agrarian
reform beneficiaries pursuant to Republic Act Numbered Sixtysix hundred fifty-seven (R.A. No. 6657). otherwise known as
"The Comprehensive Agrarian Reform Law", shall not be
affected by the said reclassification and the conversion of such
lands into other purposes shall be governed by Section 65 of
said Act.

to

the

third

class

(b) The President may, when public interest so requires and upon
recommendation of the National Economic and Development Authority,
authorize a city or municipality to reclassify lands in excess of the
limits set in the next preceding paragraph.

(c) The local government units shall, in conformity with existing laws,
continue to prepare their respective comprehensive land use plans
enacted through zoning ordinances which shall be the primary and
dominant bases for the future use of land resources: Provided. That
the requirements for food production, human settlements, and
industrial expansion shall be taken into consideration in the
preparation of such plans.

(d) Where approval by a national agency is required for

reclassification, such approval shall not be unreasonably withheld.
Failure to act on a proper and complete application for reclassification
within three (3) months from receipt of the same shall be deemed as
approval thereof.

(e) Nothing in this Section shall be construed as repealing, amending,

or modifying in any manner the provisions of R.A. No. 6657.

PATALINGHUG VS CA The declaration by the Sangguniang Panlungsod

of Davao City that the C-2 district shall be classified as a commercial
zone is a valid exercise of police power to promote the good order and
general welfare of the people in the locality.

The reversal by the Court of Appeals of the trial court's decision

was based on Tepoot's building being declared for taxation
purposes as residential. It is our considered view, however, that
a tax declaration is not conclusive of the nature of the property
for zoning purposes. A property may have been declared by its
owner as residential for real estate taxation purposes but it
may well be within a commercial zone. A discrepancy may thus
exist in the determination of the nature of property for real
estate taxation purposes vis-a-vis the determination of a
property for zoning purposes.

The trial court's determination that Mr. Tepoot's building is

commercial and, therefore, Sec. 8 is inapplicable, is

strengthened by the fact that the Sangguniang Panlungsod has

declared the questioned area as commercial orC-2.
Consequently, even if Tepoot's building was declared for
taxation purposes as residential, once a local government has
reclassified an area as commercial, that determination for
zoning purposes must prevail. While the commercial character
of the questioned vicinity has been declared thru the ordinance,
private respondents have failed to present convincing
arguments to substantiate their claim that Cabaguio Avenue,
where the funeral parlor was constructed, was still a residential
zone. Unquestionably, the operation of a funeral parlor
constitutes a "commercial purpose," as gleaned from Ordinance
No. 363.

The declaration of the said area as a commercial zone thru a

municipal ordinance is an exercise of police power to promote
the good order and general welfare of the people in the locality.
Corollary thereto, the state, in order to promote the general
welfare, may interfere with personal liberty, with property, and
with business and occupations. Thus, persons may be subjected
to certain kinds of restraints and burdens in order to secure the
general welfare of the state and to this fundamental aim of
government, the rights of the individual may be subordinated.
The ordinance which regulates the location of funeral homes
has been adopted as part of comprehensive zoning plans for
the orderly development of the area covered thereunder.

WHEREFORE, the decision of the Court of Appeals is hereby

REVERSED.

FORTICH VS CORONA Lgus need not obtain the approval of the DAR
to convert or reclassify lands from agricultural to non-agricultural.

The issues presented before us by the movants are matters of

no extraordinary import to merit the attention of the Court en
banc. Specifically, the issue of whether or not the power of the
local government units to reclassify lands is subject to the
approval of the DAR is no longer novel, this having been
decided by this Court in the case of Province of Camarines Sur,
et al. vs. Court of Appeals wherein we held that local
government units need not obtain the approval of the DAR to
convert or reclassify lands from agricultural to non-agricultural
use.

NICOLAS LAYNESA VS UY

Despite the reclassification of an agricultural land to nonagricultural land by a local government unit under Sec. 20 of RA
7160, the DARAB still retains jurisdiction over a complaint filed
by a tenant of the land in question for threatened ejectment
and redemption for the following reasons:

Jurisdiction is determined by the statute in force at the time of

the commencement of the action. Likewise settled is the rule
that jurisdiction over the subject matter is determined by the
allegations of the complaint. DARAB Case No. V-RC-028 was
filed by the tenants of an agricultural land for threatened

ejectment and its redemption from respondents. It cannot be

questioned that the averments of the DARAB case clearly
pertain to an agrarian reform matter and involve the
implementation of the agrarian reform laws. Such being the
case, the complaint falls within the jurisdiction of the DARAB
under Sec. 50 of RA 6657 on the quasi-judicial powers of the
DAR. It bears stressing that the DAR has primary jurisdiction to
determine and adjudicate agrarian reform matters and shall
have exclusive original jurisdiction over all matters involving
the implementation of the agrarian reform except those falling
under the exclusive jurisdiction of the Department of
Agriculture (DA) and the Department of Environment and
Natural Resources (DENR). Primary jurisdiction means in case of
seeming conflict between the jurisdictions of the DAR and
regular courts, preference is vested with the DAR because of its
expertise and experience in agrarian reform matters. Sec. 50 is
also explicit that except for the DA and DENR, all agrarian
reform matters are within the exclusive original jurisdiction of
the DAR.

We rule that the DARAB retains jurisdiction over disputes

arising from agrarian reform matters even though the
landowner or respondent interposes the defense of
reclassification of the subject lot from agricultural to nonagricultural use.

F. Closure and Opening of Roads

Section 21. Closure and Opening of Roads.

(a) A local government unit may, pursuant to an ordinance,

permanently or temporarily close or open any local road, alley, park, or
square falling within its jurisdiction: Provided, however, That in case of
permanent closure, such ordinance must be approved by at least twothirds (2/3) of all the members of the sanggunian, and when
necessary, an adequate substitute for the public facility that is subject
to closure is provided.

(b) No such way or place or any part thereof shall be permanently

closed without making provisions for the maintenance of public safety
therein. A property thus permanently withdrawn from public use may
be used or conveyed for any purpose for which other real property
belonging to the local government unit concerned may be lawfully
used or conveyed: Provided, however, That no freedom park shall be
closed permanently without provision for its transfer or relocation to a
new site.

(c) Any national or local road, alley, park, or square may be temporarily
closed during an actual emergency, or fiesta celebrations, public
rallies, agricultural or industrial fairs, or an undertaking of public works
and highways, telecommunications, and waterworks projects, the
duration of which shall be specified by the local chief executive
concerned in a written order: Provided, however, That no national or
local road, alley, park, or square shall be temporarily closed for
athletic, cultural, or civic activities not officially sponsored, recognized,

or approved by the local government unit concerned.

(d) Any city, municipality, or barangay may, by a duly enacted

ordinance, temporarily close and regulate the use of any local street,
road, thoroughfare, or any other public place where shopping malls,
Sunday, flea or night markets, or shopping areas may be established
and where goods, merchandise, foodstuffs, commodities, or articles of
commerce may be sold and dispensed to the general public.

Arts. 43-45 IRR

Art. 43. Authority to Close or Open. - An LGU may, through an

ordinance, permanently or temporarily close or open any road, alley,
park, or square within its jurisdiction.

Art. 44. Permanent Closure. - (a) No permanent closure of any local

road, street, alley, park, or square shall be affected unless there exists
a compelling reason or sufficient justification therefor such as, but not
limited to, change in land use, establishment of infrastructure facilities,
projects, or such other justifiable reasons as public welfare may
require.

(b) When necessary, an adequate substitute for the public facility that
is subject to closure shall be provided. No freedom park shall be closed
permanently without provision for its transfer or relocation to a new
site.

(c) No such way or place or any part thereof shall be permanently

closed without making provisions for the maintenance of public safety
therein.

(d) A property permanently withdrawn from public use may be used or

conveyed for any purpose for which other real property belonging to
LGU may be lawfully used or conveyed.

(e) The ordinance authorizing permanent closure must be approved by

at least two-thirds (2/3) of all members of the sanggunian. Public
hearings shall first be conducted before any ordinance authorizing
permanent closure of any local roads, alley, park, or square is enacted.
Notices of such hearings and copies of the proposed ordinance shall be
posted for a minimum period of three (3) consecutive weeks in
conspicuous places in the provincial capitol, or in the city, municipal, or
barangay hall of LGU and within the vicinity of the street or park
proposed to be closed.

Art. 45. Temporary closure. - (a) Any national or local road, alley, park,
or square may be temporarily closed during actual emergency or fiesta
celebrations, public rallies, agricultural or industrial fairs, or
undertaking of public works and highways, telecommunications, and
waterworks projects, the duration of which shall be specified by the
local chief executive concerned in a written order, as follows:

(1) During fiesta celebrations - for a period not exceeding nine

(9) days;

(2) During agricultural or industrial fairs or expositions - for a

period as may be determined to be necessary and reasonable;

(3) When public works projects or activities are being

undertaken for a period as may be determined necessary for

the safety, security, health, or welfare of the public or when

such closure is necessary to facilitate completion of the projects
or activities.

(b) An LGU may temporarily close and regulate the use of any local
street, road, thoroughfare, or public place where shopping malls,
Sunday markets, flea or night markets, or shopping areas may be
established and where goods, merchandise, foodstuff, commodities, or
articles of commerce may be sold and dispensed to the general public.

(c) No national or local road, alley, park, or square shall be temporarily

closed for athletic, cultural, or civic activities not officially sponsored,
recognized, or approved by the LGU.

1. Temporary; grounds & conditions

If it is temporary closure of roads, it can be done either by ordinance,

in which case majority vote is required, or it can be by written order of
the Chief executive depending on the reason for the closure:

For non-urgent closure (which is applicable only to local roads,

thus, this cannot be done if it is a national road) it should be
by ordinance

For urgent closure (such as during an actual emergency, or

fiesta celebrations, public rallies, agricultural or industrial fairs,
or an undertaking of public works and highways,
telecommunications, and waterworks projects; this can be done
either to local or national roads) it should be by written order
of the LCE

2. Permanent; grounds & conditions

If it is permanent closure of roads, it must be done by ordinance which

must be approved by at least two-thirds (2/3) of all the members of the
sanggunian (Note: Majority votes is only required in temporary closure
of roads); AND

An adequate substitute for the public facility that is subject to closure

is provided; AND

Make provisions for the maintenance of public safety therein; AND

For freedom parks, there should be provisions for its transfer or

relocation to a new site.

Note: Opening or closure of roads is discretionary, thus, mandamus will not lie
to close or open, unless there is a clear violation of law.

MACASIANO VS DIOKNO Properties of public dominion devoted to public use

and made available to the public in general are outside the commerce of man
and cannot be disposed of or leased by the lgu to private persons.

ISSUE: WON an ordinance or resolution issued by a municipal council

authorizing the lease and use of public streets as sites for flea markets
is valid.

NO. The ordinance by Paranaque authorizing the lease and use of

public streets or thoroughfares as sites for flea market is invalid.

Streets are local roads used for public service and are therefore
considered public properties. Properties of the local government which

are devoted to public service are deemed public and are under the
absolute control of Congress. Hence, local governments have no
authority whatsoever to control or regulate the use of public properties
unless specific authority is vested upon them by Congress.

Aside from the requirement of due process which should be

complied with before closing a road, street or park, the closure
should be for the sole purpose of withdrawing the road or
other public property from public use when circumstances
show that such property is no longer intended or necessary for
public use or public service. When it is already withdrawn from
public use, the property then becomes patrimonial property of
the local government unit concerned. It is only then that the
respondent municipality can "use or convey them for any
purpose for which other real property belonging to the local
unit concerned might be lawfully used or conveyed" in
accordance with the last sentence of Section 10, Chapter II of Blg. 337,
known as Local Government Code.However, those roads and streets
which are available to the public in general and ordinarily used for
vehicular traffic are still considered public property devoted to public
use. In such case, the local government has no power to use it for
another purpose or to dispose of or lease it to private persons.

Sec 10 Chapter II of the LGC, although authorizing LGUs to close roads

and similar public places, should be deemed limited by Art 424 CC
which provides that properties of public dominion devoted to public
use and made available to the public in general are outside the
commerce of man and cannot be disposed of or leased by the LGC to
private persons.

The right of the public to use the city streets may not be bargained
away through contract.

CABRERA VS COURT OF APPEALS One whose property does not abut on the
closed section of the street has no right to compensation for the closing or
vacation of the street, if he still has access to the general system of streets.

To warrant recovery, the property owner must show that the situation
is such that he has sustained special damage differing in kind, and not
merely in degree, from those sustained by the public generally.

The Constitution does not undertake to guarantee to a property owner

the public maintenance of the most convenient route to his door. The
law will not permit him to be cut off from the public thoroughfares, but
he must content himself with such route for outlet as the regularly
constituted public authority may deem most compatible with the
public welfare. His acquisition of city property is a tacit recognition of
these principles.

CEBU OXYGEN & ACETYLENE CO. VS BERCILES The City Charter of Cebu
empowers the city to withdraw a city road from public use and therefore, after
such valid withdrawal, it becomes patrimonial property and may be a valid
object of a contract of sale.

The city council, it would seem to us, is the authority competent to

determine whether or not a certain property is still necessary for public
use. Such power to vacate a street or alley is discretionary. And the
discretion will not ordinarily be controlled or interfered with by the

courts, absent a plain case of abuse or fraud or collusion. Faithfulness

to the public trust will be presumed. So the fact that some private
interests may be served incidentally will not invalidate the vacation
ordinance.

Article 422 of the Civil Code expressly provides that "Property of public
dominion, when no longer intended for public use or for public service,
shall form part of the patrimonial property of the State." Besides, the
Revised Charter of the City of Cebu heretofore quoted, in very clear
and unequivocal terms, states that: "Property thus withdrawn from
public servitude may be used or conveyed for any purpose for which
other real property belonging to the City may be lawfully used or
conveyed."

Since that portion of the city street subject of petitioner's application

for registration of title was withdrawn from public use, it follows that
such withdrawn portion becomes patrimonial property which can be
the object of an ordinary contract.

FAVIS VS CITY OF BAGUI

The main thrust of appellant's arguments is that the city council does
not have the power to close citystreets like Lapu-Lapu Street. He
asserts that since municipal bodies have no inherent power to vacate
or withdraw a street from public use, there must be a specific grant by
the legislative body to the city or municipality concerned. Considering
that "municipal corporations in the Philippines are mere creatures of
Congress; that, as such, said corporations possessed, and may
exercise, only such power as Congress may deem fit to grant thereto",
a reference to the organic act of the City of Baguio appears to be in
order. In subsection (L) of Section 2558 of the Review Administrative
Code (Baguio Charter), the language of the grant of authority runs thus
(L) To provide for laying out, opening, extending, widening,
straightening, closing up, constructing, or regulating, in whole or in
part, any public plaza, square, street, sidewalk, trail, park, waterworks,
or water remains, or any cemetery, sewer, sewer connection or
connections, either on, in, or upon public or private property; ....
Undoubtedly, the City is explicitly empowered to close a city street.

So it is, that appellant may not challenge the city council's act of
withdrawing a strip of Lapu-Lapu Street at its dead end from public use
and converting the remainder thereof into an alley. These are acts well
within the ambit of the power to close a city street. The city council, it
would seem to us, is the authority competent to determine whether or
not a certain property is still necessary for public use. Such power to
vacate a street or alley is discretionary. And the discretion will not
ordinarily be controlled or interfered with by the courts, absent a plain
case of abuse or fraud or collusion. Faithfulness to the public trust will
be presumed. So the fact that some private interests may be served
incidentally will not invalidate the vacation ordinance.

From the fact that the leased strip of 100 square meters was
withdrawn from public use, it necessarily follows that such leased
portion becomes patrimonial property. Article 422 of the Civil Code
indeed provides that property of public domain, "when no longer
intended for public use or public service, shall form part of the
patrimonial property of the State." Authority is not wanting for the

proposition that property for public use of provinces and towns are
governed by the same principles as property of public dominion of the
same character."15 There is no doubt that the strip withdrawn from
public use and held in private ownership may be given in lease. For
amongst the charter powers given the City of Baguio (Section 2541,
Revised Administrative Code [Charter of the City of Baguio] ) is to
"lease ... real ... property, for the benefit of the city...."

"The general rule is that one whose property does not abut on the
closed section of a street has no right to compensation for the closing
or vacation of the street, if he still has reasonable access to the
general system of streets. The circumstances in some cases may be
such as to give a right to damages to a property owner, even though
his property does not abut on the closed section. But to warrant
recovery in any such case the property owner must show that the
situation is such that he has sustained special damages differing in
from those sustained by kind, and not merely in degree, the public
generally."

SANGALANG VS INTERMEDIATE APELLATE COURT The opening of Orbit Street

to traffic by the Mayor was warranted by the demands of the common good
and is a valid exercise of police power. Police power, unlike the power of
eminent domain, is exercised without provisions of just compensation. The
fact that the opening up of Orbit St. to vehicular traffic had led to the loss of
privacy of Bel-Air residents, does not render the exercise of police power
unjustified. (Note: This applies the principle of damnum absque injuria,
meaning, there is material damage but there is no injury because there is no
violation of a right. The said principle is also applied to the Cabrera case.)

Mayor Yabut justified the opening of the streets on the following

grounds:

1) Some time ago, Ayala Corporation donated Jupiter and Orbit

Streets to Bel-Air on the condition that, under certain
reasonable conditions and restrictions, the general public shall
always be open to the general public. These conditions were
evidenced by a deed of donation executed between Ayala and
Bel-Air.

2) The opening of the streets was justified by public necessity

and the exercise of the police power.

3) Bel-Air Village Associations (BAVA) articles of incorporation

recognized Jupiter Street as a mere boundary to the southwest
thus it cannot be said to be for the exclusive benefit of Bel-Air
residents.

4) BAVA cannot hide behind the non-impairment clause on the

ground that is constitutionally guaranteed. The reason is that it
is not absolute, since it has to be reconciled with the legitimate
exercise of police power.

Also, the demolition of the gates is justified under Art. 436 of the Civil
Code:

When any property is condemned or seized by competent

authority in the interest of health, safety or security, the owner
thereof shall not be entitled to compensation, unless he can

show that such condemnation or seizure is unjustified.

In this case, BAVA has the burden of showing that the seizure of the
gates is unjustified because police power can be exercised without
provision for just compensation. The Court is of the opinion that the
Mayor did not act unreasonably nor was the opening of the gates
unjustified. In fact, the gates could even be considered public
nuisances, of which summary abatement, as decreed under Art. 701 of
the Civil Code, may be carried out by the Mayor.

PILAPIL VS COURT OF APPEALS A municipality has the unassailable authority

to (a) prepare and adopt a land use map; (b) promulgate a zoning ordinance
which may consider, among other things, the municipal roads to be
constructed, maintained, improved or repaired and (c) close any municipal
road.

FACTS:Spouses Pilapil own a parcel of land in Bahak, Poblacion, Liloan,

Cebu. Spouses Colomida, on the other hand, bought a parcel of land
located also in Bahak. The Colomidas claim that they had acquired
from Sesenando Longkit a road right of way which leads towards the
National Road; this road right of way, however, ends at that portion of
the property of the Pilapils where a camino vecinal (barrio road) exists
all the way to the said National Road.

The Colomidas "tried to improve the road of "camino vecinal", for the
convenience of the public," but the Pilapils harassed and threatened
them with "bodily harm from making said improvement." The Pilapils
also threatened to fence off the camino vecinal. Thus, the Colomidas
filed a complaint against the Pilapils.

The Pilapils denied the existence of the camino vecinal. They

presented several witnesses. Among them was Engineer Epifanio
Jordan, Municipal Planning and Development Coordinator of Liloan.
Engineer Jordan testified on Liloan's Urban Land Use Plan or zoning
map which he prepared upon the instruction of then Municipal Mayor
Cesar Butai and which was approved by the Sangguniang Bayan of
Liloan. Per the said plan, the camino vecinal in sitio Bahak does not
traverse, but runs along the side of the Pilapil property.

The Colomidas, on the other hand, relied on old-timers as witnesses

witnesses such as Florentino Pepito, who attested to the existence of
the Camino vecinal and its availability to the general public since
practically time immemorial.

ISSUE:WON the Municipality of Liloans camino vecinal should traverse

the property of the Pilapils.

HELD:NO. A camino vecinal is a municipal road. It is also property for

public use. Pursuant to the powers of a local government unit, the
Municipality of Liloan had the unassailable authority to (a) prepare and
adopt a land use map, (b) promulgate a zoning ordinance which may
consider, among other things, the municipal roads to be constructed,
maintained, improved or repaired and (c) close any municipal road.

The SC said that it didnt matter what opinion the Colomidas or the
engineer gave regarding the existence of the camino vecinal. To the
SC, the issue of their credibility has been rendered moot by the
unrebutted evidence which shows that the Municipality of Liloan,

through its Sangguniang Bayan, had approved a zoning plan,

otherwise called an Urban Land Use Plan. This plan indicates the
relative location of the camino vecinal in sitio Bahak.

It is beyond dispute that the establishment, closure or abandonment of

the camino vecinal is the sole prerogative of the Municipality of Liloan.
No private party can interfere with such a right. Hence, the decision of
the Municipality of Liloan with respect to the said camino vecinal in
sitio Bahak must prevail. It is thus pointless to concentrate on the
testimonies of both witnesses since the same have, for all intents and
purposes, become irrelevant.

And as per the zoning map, as further declared by Engineer Jordan,

this camino vecinal in sitio Bahak "passes the side of the land of
Socrates Pilapil. This is the proposed road leading to the national
highway." Hence, said road should not traverse the Pilapils property.

It is beyond dispute that the establishment, closure or abandonment of

the camino vecinal is the sole prerogative of the Municipality of Liloan.
No private party can interfere with such a right. Thus, even if We are to
agree with both the trial court and public respondent that Longakit and
Pepito were telling the truth, the decision of the Municipality of Liloan
with respect to the said camino vecinal in sitio Bahak must prevail. It is
thus pointless to concentrate on the testimonies of both witnesses
since the same have, for all intents and purposes, become irrelevant.

The property of provinces, cities and municipalities is divided into

property for public use and patrimonial property. The first consists of
the provincial roads, city streets, municipal streets, squares, fountains,
public waters, promenades, and public works for public service paid for
by the said provinces, cities or municipalities. They are governed by
the same principles as property of public dominion of the same
character. Under the applicable law in this case, Batas Pambansa Blg.
337 (The Local Government Code), the Sangguniang Bayan, the
legislative body of the municipality, had the power to adopt zoning and
subdivision ordinances or regulations subject to the provisions of
existing laws, and to provide for the construction, improvement, repair
and maintenance of municipal streets, avenues, alleys, sidewalks,
bridges, parks and other public places, regulate the use thereof and
prohibit the construction or placing of obstacles or encroachments on
them.

A camino vecinal is a municipal road. It is also property for public use.

Pursuant, therefore, to the above powers of a local government unit,
the Municipality of Liloan had the unassailable authority to (a) prepare
and adopt a land use map, (b) promulgate a zoning ordinance which
may consider, among other things, the municipal roads to be
constructed, maintained, improved or repaired and (c) close any
municipal road.

In the instant case, the Municipality of Liloan, through the

Sangguniang Bayan, approved the Urban Land Use Plan; this plan was
duly signed by the Municipal Mayor. By doing so, the said legislative
body determined, among others, the location of the camino vecinal in
sitio Bahak.

PART VI CORPORATE POWERS OF LOCAL GOVERNMENTS

Section 22. Corporate Powers. (This signifies separate and distinct personality
of the lgu. Lgu is also a corporate entity.)

(a) Every local government unit, as a corporation, shall have the

following powers:

(1) To have continuous succession in its corporate name;

(2) To sue and be sued;

(3) To have and use a corporate seal;

(4) To acquire and convey real or personal property;

(5) To enter into contracts; and

(6) To exercise such other powers as are granted to

corporations, subject to the limitations provided in this Code
and other laws.

(b) Local government units may continue using, modify, or change

their existing corporate seals: Provided, That newly established local
government units or those without corporate seals may create their
own corporate seals which shall be registered with the Department of
the Interior and Local Government: Provided, further, That any change
of corporate seal shall also be registered as provided hereon.

(c) Unless otherwise provided in this Code, no contract may be

entered into by the local chief executive in behalf of the local
government unit without prior authorization by the
sanggunian concerned(Note: Through the passage of a board
resolution). A legible copy of such contract shall be posted at a
conspicuous place in the provincial capitol or the city, municipal or
barangay hall.

(d) Local government units shall enjoy full autonomy in the exercise of
their proprietary functions and in the limitations provided in this Code
and other applicable laws,

1. To have continuous succession in its corporate name

2. To sue and be sued (Thus, the state immunity from suit claim is not open
anymore to any lgu because of the express provision of the LGC and the lgus
charter.)

Sec. 481(3)(i) In addition to the foregoing duties and functions, the

legal officer shall:

(i) Represent the local government unit in all civil actions and
special proceedings wherein the local government unit or any
official thereof, in his official capacity, is a party: Provided, That,
in actions or proceedings where a component city or
municipality is a party adverse to the provincial government or
to another component city or municipality, a special legal
officer may be employed to represent the adverse party;

How may the lgus sue?

As a general rule, it may sue through the LCE as authorized by

the sanggunian concerned.

Exception: CITY COUNCIL OF CEBU VS CUIZON

The City of Cebu sued but not through the mayor, but
through the city councilors because the mayor was the
respondent in this case. Thus, representative suit is
allowed.

Plaintiffs clearly and by the express terms of the

complaint filed the suit as a representative suit on
behalf and for the benefit of the city of Cebu.

Sirs opinion: Pro hac vice case; peculiar only to this case

Note: Taxpayers suit is not available on the local level.

Its available only on the national level. Taxpayers suit
involves only funds of Congress and not any other funds,
such as the Presidents funds and the lgus funds.

Who may represent as counsel for the lgu?

GR: Lgus attorney.

E (stated in the case of Ramos):

i. Conflict of interest

ii. When the concerned lgus counsel is disqualified

RAMOS VS CA Only the provincial fiscal, provincial attorney,

and municipal attorney should represent a municipality in
lawsuits. Private lawyers may not represent municipalities on
their own, and neither may they do so even in collaboration
with authorized government lawyers.

The foregoing provisions of law and jurisprudence show

that only the provincial fiscal, provincial attorney, and
municipal attorney should represent a municipality in its
lawsuits. Only in exceptional instances may a private
attorney be hired by a municipality to represent it in
law-suits. These exceptions are enumerated in the case
of ALINSUG VS. SAN CARLOS CITY, NEGROS OCCIDENTAL
to wit: indeed it appears that the law allows a
private counsel to be hired by a municipality only
when the municipality is an ADVERSE PARTY IN A
CASE INVOLVING THE PROVINCIAL GOVERNMENT
OR ANOTHER MUNICIPALITY OR CITY WITHIN THE
PROVINCE. This provision has its apparent origin in the
ruling of De Guia vs. The Auditor General where the
court held that the municipalitys authority to
employ a private attorney is expressly limited
only to situations where the provincial fiscal
would be disqualified to serve and represent it.
With sec. 1683 of the old administrative code as legal
basis, the court therein cited Enriquez vs. Gimenez
which enumerated instances when the provincial
fiscal is disqualified to represent in court a
particular municipality; if and when original
jurisdiction of case involving the municipality in
the same province, and when, in a case involving

the municipality, he or his wife or child is

pecuniarily involved, as heir, legatee, creditor or
otherwise.

Private lawyers may not represent municipalities

on their own. Neither may they do so even in
collaboration
with
authorized
government
lawyers. THIS IS ANCHORED ON THE PRINCIPLE
THAT ONLY ACCOUNTABLE OFFICERS MAY ACT FOR
AND IN BEHALF OF PUBLIC ENTITIES AND THAT
PUBLIC FUNDS SHOULD NOT BE EXPENDED TO
HIRE PRIVATE LAWYERS.

Although a municipality may not hire a private lawyer to

represent it in litigation, in the interest of substantial
justice however, a municipality may adopt the work
already performed in good faith by such private lawyer,
which work is beneficial to it provided: (1) no injustice is
thereby heaped on the adverse party. (2) no
compensation in any guise is paid therefor by the said
municipality to the private lawyer.

In sum, although a municipality may not hire a private

lawyer to represent it in litigation, in the interest of
justice however, we hold that a municipality may adopt
the work already performed in good faith by such
lawyer, which work is beneficial to it unless so expressly
adopted, the private lawyers work cannot bind the
municipality.

3. To have and use a coporate seal

4. To acquire and convey real or personal property

Arts. 423-424 NCC

Art. 423. The property of provinces, cities, and municipalities is

divided into property for public use and patrimonial property.

Art. 424.Property for public use, in the provinces, cities,

and municipalities, consist of the provincial roads, city
streets, municipal streets, the squares, fountains, public
waters, promenades, and public works for public service
paid for by said provinces, cities, or municipalities.

All other property possessed by any of them is

patrimonial and shall be governed by this Code, without
prejudice to the provisions of special laws.

Note: Imperium governmental capacity; dominium proprietary

capacity

Properties of lgus are held either in its governmental capacity or

proprietary capacity.

How do you know whether the property is public or patrimonial?

Art. 424 of the NCC

Consideration the manner by which the property is acquired:

Relevance of distinguishing public from patrimonial property:

i. Property for public use is under the control of

Congress (because here LGU is merely a political agent of
the state/national government). Consequently, the principal
may convert it to other uses with or without the consent of the
lgu and the latter cannot claim due process nor demand just
compensation (because there is no deprivation as the lgu
holds the property in trust for the state).

Patrimonial property can be used by the lgu

without consent of congress and that if congress
uses it for some other purpose, due process and just
compensation must be complied with because there is
already deprivation as the lgu owns the property. The
term person under the due process clause includes
public corp.

ii. Property for public use cannot be subject of contract,

beyond the commerce of man. Hence, properties found therein
may be considered nuisance; patrimonial property can be
subject of contract and may be alienated.

iii. Public property cannot be acquired by prescription

against the state (by individual or municipality)

iv. Public property cannot be subject of attachment and

execution

v. Public property cannot be burdened by any voluntary

easement

If private fund is used by the lgu, then the property

acquired by reason of the private fund is considered
private property.

What about
AUTHORITY

but if it is compulsory easement because the public road

encloses a dominant estate, it can be subject to such
compulsory easement, but not to a voluntary easement
because it is as if it is subjected to a contract
reclaimed

lands?

CHAVEZ

VS

PUBLIC

ESTATES

Submerged lands are properties of public dominion, absolutely

inalienable and outside the commerce of man. This is also true
with respect to foreshore lands. (Secs. 2 and 3 Art. 12 of the
consti)

Hence, it is only when the submerged or foreshore lands are

actually reclaimed that they become alienable lands of
public domain which can now be disposed of in accordance
with law (to be declared alienable and disposable; issued
certificates of titles)

RA 1899 authorized municipalities and chartered cities to

reclaim foreshore lands, but not submerged lands.

Thus, only municipalities and cities can reclaim. Province

cannot reclaim.

Only national government can reclaim submerged lands.

RABUCO VS VILLEGAS RA 3120 is constitutional and is a

manifestation of the legislatures right to deal with the state property
which includes those held by municipal corporations in its public or
governmental capacity.

Facts: RA 3120 converted the Malate area, which are reserved

as communal property, into disposable or alienable lands of the
state to be placed under the administration and disposal of the
LTA for subdivisions into small lots to the tenants or bona fide
occupants thereof.

Respondent city officials contended that the Act must be

stricken down as unconstitutional for depriving the City of
Manila of the lots in question, and providing for their sale
without payment of just compensation thus constituting
deprivation of property without due process of law.

Held: The lots in question are manifestly owned by the city in its
public and governmental capacity and are therefore public
property over which Congress had absolute control as
distinguished from patrimonial property owned by it in its
private or proprietary capacity of which it could not be deprived
without due process and without just compensation. The Act
was intended to implement the social justice policy of the consti
and the governments program of land for the landless. It is a
manifestation of the legislatures right and power to deal with
the state property which includes those held by municipal
corporation in its public and governmental capacity. Therefore,
RA 3120 is constitutional.

VILLANUEVA VS CASTANEDA The place occupied by the stalls forming

a talipapa of the vendors/petitioners is a public plaza and as such
beyond the commerce of man and cannot be the subject of lease or
any other contractual undertaking.

DACANAY VS ASISTIO

There is no doubt that the disputed areas from which the

private respondents' market stalls are sought to be evicted are
public streets, as found by the trial court in Civil Case No. C12921. A public street is property for public use hence outside
the commerce of man (Arts. 420, 424, Civil Code). Being
outside the commerce of man, it may not be the subject of
lease or other contract.

As the stallholders pay fees to the City Government for the right
to occupy portions of the public street, the City Government,
contrary to law, has been leasing portions of the streets to
them. Such leases or licenses are null and void for being
contrary to law. The right of the public to use the city streets
may not be bargained away through contract. The interests of a
few should not prevail over the good of the greater number in
the community whose health, peace, safety, good order and
general welfare, the respondent city officials are under legal
obligation to protect.

The Executive Order issued by Acting Mayor Robles authorizing

the use of Heroes del '96 Street as a vending area for
stallholders who were granted licenses by the city government
contravenes the general law that reserves city streets and
roads for public use. Mayor Robles' Executive Order may not
infringe upon the vested right of the public to use city streets
for the purpose they were intended to serve: i.e., as arteries of
travel for vehicles and pedestrians. As early as 1989, the public
respondents bad started to look for feasible alternative sites for
flea markets. They have had more than ample time to relocate
the street vendors.

CITY OF ANGELES VS COURT OF APPEALS

PRESIDENTIAL DECREE NO. 1216 provides that WHEREAS,

such open spaces, roads, alleys and sidewalks in residential
subdivisions are for public use and are, therefore, beyond the
commerce of men;

There is therefore no legal basis whatsoever to revoke the

donation of the subject open space and to return the donated
land to private respondent (TIMOG SILANGAN DEVELOPMENT
CORPORATION). The donated land should remain with the
donee (THE CITY OF ANGELES) as the law clearly intended such
open spaces to be perpetually part of the public domain, nonalienable and permanently devoted to public use as such parks,
playgrounds or recreation areas.

PHILIPPINES FISHERIES DEVELOPMENT AUTHORITY VS CA

The port built by the State in the Iloilo fishing complex is a

property of public dominion and cannot therefore be sold at
public auction. Article 420 of the Civil Code provides:

ARTICLE 420. The following things are property of public

dominion:

(1) Those intended for public use, such as

roads, canals, rivers, torrents, ports and bridges
constructed by the State, banks, shores,
roadsteads, and others of similar character;

(2) Those which belong to the State, without

being for public use, and are intended for some
public service or for the development of
national wealth.

The Iloilo [F]ishing [P]ort [Complex/IFPC] which was constructed

by the State for public use and/or public service falls within the
term "port" in the aforecited provision. Being a property of
public dominion the same cannot be subject to execution or
foreclosure sale.

Similarly, for the same reason, the NFPC (Navotas Fishing Port
Complex) cannot be sold at public auction in satisfaction of the
tax delinquency assessments made by the Municipality of
Navotas on the entire complex.

Additionally, the land on which the NFPC property sits is a

reclaimed land, which belongs to the State. In Chavez v. Public

Estates Authority, the Court declared that reclaimed lands are
lands of the public domain and cannot, without Congressional
fiat, be subject of a sale, public or private.

MUNICIPALITY OF HAGONOY, BULACAN VS HON. DUMDUM

The general rule spelled out in Section 3, Article XVI of the

Constitution is that the state and its political subdivisions may
not be sued without their consent. Otherwise put, they are open
to suit but only when they consent to it. Consent is implied
when the government enters into a business contract, as it then
descends to the level of the other contracting party; or it may
be embodied in a general or special law34 such as that found in
Book I, Title I, Chapter 2, Section 22 of the Local Government
Code of 1991, which vests local government units with certain
corporate powers one of them is the power to sue and be
sued.

Be that as it may, a difference lies between suability and

liability. As held in City of Caloocan v. Allarde, where the
suability of the state is conceded and by which liability is
ascertained judicially, the state is at liberty to determine for
itself whether to satisfy the judgment or not. Execution may not
issue upon such judgment, because statutes waiving nonsuability do not authorize the seizure of property to satisfy
judgments recovered from the action. These statutes only
convey an implication that the legislature will recognize such
judgment as final and make provisions for its full satisfaction.
Thus, where consent to be sued is given by general or special
law, the implication thereof is limited only to the resultant
verdict on the action before execution of the judgment.

Traders Royal Bank v. Intermediate Appellate Court, citing

Commissioner of Public Highways v. San Diego, is instructive on
this point. In that case which involved a suit on a contract
entered into by an entity supervised by the Office of the
President, the Court held that while the said entity opened itself
to suit by entering into the subject contract with a private
entity; still, the trial court was in error in ordering the
garnishment of its funds, which were public in nature and,
hence, beyond the reach of garnishment and attachment
proceedings. Accordingly, the Court ordered that the writ of
preliminary attachment issued in that case be lifted, and that
the parties be allowed to prove their respective claims at the
trial on the merits. There, the Court highlighted the reason for
the rule, to wit:

The universal rule that where the State gives its consent
to be sued by private parties either by general or special
law, it may limit claimants action "only up to the
completion of proceedings anterior to the stage of
execution" and that the power of the Courts ends when
the judgment is rendered, since government funds and
properties may not be seized under writs of execution or
garnishment to satisfy such judgments, is based on

obvious considerations of public policy. Disbursements

of public funds must be covered by the corresponding
appropriations as required by law. The functions and
public services rendered by the State cannot be allowed
to be paralyzed or disrupted by the diversion of public
funds from their legitimate and specific objects. x x x

With this in mind, the Court holds that the writ of preliminary
attachment must be dissolved and, indeed, it must not have
been issued in the very first place. While there is merit in
private respondents position that she, by affidavit, was able to
substantiate the allegation of fraud in the same way that the
fraud attributable to petitioners was sufficiently alleged in the
complaint and, hence, the issuance of the writ would have been
justified. Still, the writ of attachment in this case would only
prove to be useless and unnecessary under the premises, since
the property of the municipality may not, in the event that
respondents claim is validated, be subjected to writs of
execution and garnishment unless, of course, there has been
a corresponding appropriation provided by law.

5. To enter into contracts

i. Requisites of a valid local government contract

a. The local government unit must have the power to enter into
the particular contract

b. Pursuant to Sec. 22(c) of the LGC, there must be a prior

authorization by the Sanggunian (generally, through a
resolution) concerned, and a legible copy of the contract shall
be posted at a conspicuous place in the provincial capitol or
the city, municipal or barangay hall

QUISUMBING VS GOV. GARCIA Resolution or General

Appropriation Ordinance?

That the Province of Cebu operated under a

reenacted budget in 2004 lent a complexion to
this case which the trial court did not apprehend.
Sec. 323 of RA 7160 provides that in case of a
reenacted
budget,
only
the
annual
appropriations for salaries and wages of
existing
positions,
statutory
and
contractual
obligations,
and
essential
operating expenses authorized in the
annual and supplemental budgets for the
preceding year shall be deemed reenacted.

The
question of whether a sanggunian
authorization separate from the appropriation
ordinance is required should be resolved
depending on the particular circumstances of the
case. Resort to the appropriation ordinance is
necessary in order to determine if there is a
provision therein which specifically covers the
expense to be incurred or the contract to be
entered into.

Should the appropriation ordinance, for

instance, already contain in sufficient detail
the project and cost of a capital outlay such
that all that the LCE needs to do after undergoing
the requisite public bidding is to execute the
contract,
no
further
authorization
is
required,
the
appropriation
ordinance
already being sufficient.

On the other hand, should the appropriation

ordinance described the projects in generic
terms such as infrastructure projects, intermunicipal waterworks, drainage and sewerage,
flood control, and irrigation system projects,
reclamation projects, or roads and bridges,
there is an obvious need for a covering
contract for every specific project that in
turn requires approval by the sanggunian.

Specific sanggunian approval may also be

required for the purchase of goods and
services which are neither specified in the
appropriation ordinance nor encompassed
within the regular personal services and
maintenance operating expenses.

c. In accordance with Secs. 46 and 47, Chapter 8, Subtitle B,

Book V of the 1987 Administrative Code, if the contract involves
the expenditure of public funds, there should be an actual
appropriation and a certificate of availability of funds by
the treasurer of the lgu except in the case of a contract for
supplies to be carried in stock;

d. The contract must conform with the formal requisites of

written contracts prescribed by law

ii. Ultra vires contracts

QUEZON CITY VS LEXBER INC. While RA 7160 now requires

that the mayors representation of the city in its business
transactions must be upon authority of the sangguniang
panlungsod or pursuant to law or ordinance, no such prior
authority was required under the LGC of 1983 (BP 337).

There is no denying that Sections 85 and 86 of P.D. 1445

(Auditing Code of the Philippines) provide that contracts
involving expenditure of public funds:

1) can be entered into only when there is an

appropriation therefor; and

2) must be certified by the proper accounting

official/agency that funds have been duly
appropriated for the purpose, which certification
shall be attached to and become an integral part
of the proposed contact.

However, the very same Presidential Decree No. 1445,

which is the cornerstone of petitioner's arguments, does

not provide that the absence of an appropriation law

ipso facto makes a contract entered into by a local
government unit null and void. Section 84 of the statute
specifically provides:

Revenue funds shall not be paid out of any public

treasury or depository except in pursuance of an
appropriation law or other specific statutory
authority.

Consequently, public funds may be disbursed not only

pursuant to an appropriation law, but also in pursuance
of other specific statutory authority, i.e., Section 84 of
PD 1445. Thus, when a contract is entered into by a city
mayor pursuant to specific statutory authority, the law,
i.e., PD 1445 allows the disbursement of funds from any
public treasury or depository therefor. It can thus be
plainly seen that the law invoked by petitioner Quezon
City itself provides that an appropriation law is not the
only authority upon which public funds shall be
disbursed.

Furthermore, then Mayor Brigido Simon, Jr. did not enter

into the subject contract without legal authority. The
Local Government Code of 1983, or B.P. Blg. 337, which
was then in force, specifically and exclusively
empowered the city mayor to "represent the city in its
business transactions, and sign all warrants drawn on
the city treasury and all bonds, contracts and obligations
of the city." Such power granted to the city mayor by
B.P. Blg. 337 was not qualified nor restricted by any prior
action or authority of the city council. We note that while
the subsequent Local Government Code of 1991, which
took effect after the execution of the subject contracts,
provides that the mayor's representation must be "upon
authority of the sangguniang panlungsod or pursuant to
law or ordinance," there was no such qualification under
the old code.

We must differentiate the provisions of the old Local

Government Code of 1983, B.P. Blg. 337, which was then
in force, from that of the Local Government Code of
1991, R.A. No.7160, which now requires that the
mayor's representation of the city in its business
transactions must be "upon authority of the
sangguniang panlungsod or pursuant to law or
ordinance" (Section 455 [vi]). No such prior authority
was required under B.P. Blg. 337. This restriction,
therefore, cannot be imposed on the city mayor then
since the two contracts were entered into before R.A.
No.7160 was even enacted.

Under B.P. Blg. 337, while the city mayor has no power
to appropriate funds to support the contracts, neither
does said law prohibit him from entering into contracts
unless and until funds are appropriated therefor. In fact,

it is his bounden duty to so represent the city in all its

business transactions. On the other hand, the city
council must provide for the "depositing, leaving or
throwing of garbage" and to appropriate funds for such
expenses. {Section 177 [b]). It cannot refuse to so
provide and appropriate public funds for such services
which are very vital to the maintenance of cleanliness of
the city and the good health of its inhabitants.

It is clear that the second negotiated contract was

entered into by Mayor Brigido Simon, Jr. pursuant to law
or specific statutory authority as required by P. D. No.
1445.

Granting but without conceding that Mayor Brigido

Simon, Jr. needs to secure prior authorization from the
City Council for the enforceability of the contracts
entered into in the name of the City government, which
he failed to do according to the appellant, We believe
that such will not affect the enforceability of the contract
because of the subsequent ratification made by the City
government. Thus, when appellant City government,
after the construction by the appellee of the dumpsite
structure in accordance with the contract plans and
specifications, started to dump garbage collected in the
City and consequently paid the appellee for the services
rendered, such acts produce and constitute a ratification
and approval of the negotiated contract and necessarily
should imply its waiver of the right to assail the
contract's enforceability.

We are not dissuaded by petitioner's arguments that

there can be no ratification due to the absence of an
explicit or tacit approval of the second negotiated
contract. At the outset, the issue raised by petitioner
that the subject contract is null and void ab initio, and
therefore not capable of ratification, has been laid to
rest by the inevitable conclusion that the said contract is
valid and binding. Consequently, ratification of the
subject contract is not necessary.

Be that as it may, it cannot be denied that there was

constructive ratification on the part of petitioner.

It is evident that petitioner dealt unfairly with

respondent Lexber. By the mere pretext that the subject
contract was not approved nor ratified by the city
council, petitioner refused to perform its obligations
under the subject contract. Verily, the same was entered
into pursuant to law or specific statutory authority, funds
therefor were initially available and allocated, and
petitioner used the sanitary landfill for several months.
The present leadership cannot unilaterally decide to
disregard the subject contract to the detriment of
respondent Lexber.

The mere fact that petitioner later refused to continue

dumping garbage on the sanitary landfill does not

necessarily prove that it did not benefit at the expense
of respondent Lexber. Whether or not garbage was
actually dumped is of no moment, for respondent
Lexber's undertaking was to make available to petitioner
the landfill site and to provide the manpower and
machinery to maintain the facility. Petitioner, by refusing
to abide by its obligations as stipulated in the subject
negotiated contract, should be held liable to respondent
Lexber in accordance with the terms of the subject
contract.

MANANTAN VS MUNICIPALITY OF LUNA

From this decision, petitioners have appealed to this

Court, contending that the lower court erred in holding
Resolution No. 37 to be null and void, and in not
declaring Resolution No. 23 null and void as violative of
the constitutional provision prohibiting the passage of
any law impairing the obligation of contracts. It is
obvious that the case hinges on the validity of
Resolution No. 37 granting the fishing privileges to the
petitioners. The learned trial judge rightly held that
Resolution No. 32 (the one authorizing the first auction)
was not invalidated by the fact that it was disapproved
by the provincial board, since "the only ground upon
which a provincial board may declare any municipal
resolution . . . invalid is when such resolution . . . is
beyond the powers conferred upon the council . . .
making the same", and there is no question that
Resolution No. 32 is within the powers granted to
municipal councils by the Fishery Law.His Honor,
however, was in error in taking the view that Resolution
No. 37 and the lease contract granted under it were null
and void on the ground that when the municipal council
by said resolution "accepted the four-year if proposal of
petitioners and declared them to be the best and
highest bidders for the 1946-1947-1948-1949 fishing
privilege, the municipal council in effect awarded to the
petitioners the four fishing privilege without the
intended benefits of public auction, in violation of
section 69 of Act No. 4003, the Fishery Law, as amended
by Commonwealth Act No. 471." The trial judge thus
proceeds on the assumptions that Resolution No. 32,
which authorized the first auction, did not authorize a
lease for more than one year, so that the notice of public
auction calling for bids for a longer period was
unauthorized and therefore void.

We don't think this assumption is justified by the terms

of the resolution. It is true that the resolution fixes the
minimum price for the lease at P1,000 for one year
"beginning January 1, 1946, up to and including
December 31, 1949." But nowhere does it say that the
lease was to be for one year only. On the contrary, it

expressly provides that the lease "can be extended for a

period of from one to four years," thus indicating an
intention not to limit the duration of the lease to one
year. In accord with that intention, the municipal
treasurer, in announcing the public auction, inserted in
the notice a provision that "bids for more than one year
but not more than four years can be offered," and the
same municipal council which passed the resolution (No.
32) confirmed that intention by entertaining and
accepting in its Resolution No. 37 the petitioners' bid for
four years. It is a rule repeatedly followed by this Court
that "the construction place upon a law at the time by
the official in charge of enforcing it should be
respected."

As that part of the notice issued by the municipal

treasurer which calls for bids for a longer period than
one year but not more than four years is in accord with
the real intent of Resolution No. 32, as that intention
was subsequently confirmed in Resolution No. 37 of the
same municipal council, the said notice can not be
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 notice of
the public auction.

It results that the contract of lease entered into under

the authority of Resolution No. 37 between the
petitioners and the municipal government of Luna is a
valid and binding contract and as such it is protected by
the Constitution and can not, therefore, be impaired by
a subsequent resolution which sets in it aside and grants
the fishing privilege to another party.

CITY OF MANILA VS IAC Breach of a contractual obligation

between the City of Manila and plaintiff, involving property
which is patrimonial in character entitles the latter to damages.

Under Philippine laws, the City of Manila is a political

body corporate and as such endowed with the faculties
of municipal corporations to be exercised by and
through its city government in conformity with law, and
in its proper corporate name. It may sue and be sued,
and contract and be contracted with. Its powers are
twofold in character-public, governmental or political on
the one hand, and corporate, private and proprietary on
the other.

In McQuillin on Municipal Corporation, the rule is stated

thus: "A municipal corporation proper has ... a public
character as regards the state at large insofar as it is its
agent in government, and private (so called) insofar as it
is to promote local necessities and conveniences for its
own community.

In Torio v. Fontanilla, supra, the Court declared that with

respect to proprietary functions the settled rule is that a

municipal corporation can be held liable to third persons

ex contractu.

Under the foregoing considerations and in the absence

of a special law, the North Cemetery is a patrimonial
property of the City of Manila which was created by
resolution of the Municipal Board of August 27, 1903 and
January 7, 1904. The administration and government of
the cemetery are under the City Health Officer, the order
and police of the cemetery, the opening of graves,
niches, or tombs, the exhuming of remains, and the
purification of the same are under the charge and
responsibility of the superintendent of the cemetery.

The City of Manila furthermore prescribes the procedure

and guidelines for the use and dispositions of burial lots
and plots within the North Cemetery through
Administrative Order No. 5, s. 1975. With the acts of
dominion, there is, therefore no doubt that the North
Cemetery is within the class of property which the City
of Manila owns in its proprietary or private character.

Furthermore, there is no dispute that the burial lot was

leased in favor of the private respondents. Hence,
obligations arising from contracts have the force of law
between the contracting parties. Thus a lease contract
executed by the lessor and lessee remains as the law
between them. Therefore, a breach of contractual
provision entitles the other party to damages even if no
penalty for such breach is prescribed in the contract.

Under the doctrine of respondeat superior, petitioner

City of Manila is liable for the tortious act committed by
its agents who failed to verify and check the duration of
the contract of lease.

SEVERINO VERGARA VS OMBUDSMAN

On the ratification by the City Council of alldocuments

pertaining to the purchase of the lots:

Petitioner contends that all the documents, like the

Memorandum of Agreement, Deed of Sale, Deed of
Mortgage, and Deed of Assignment, do not bear the
ratification by the City Council.

In the assailed Order, the Ombudsman held that the

various actions performed by Mayor Lajara in connection
with the purchase of the lots were all authorized by the
Sangguniang Panlungsod as manifested in numerous
resolutions. The lack of ratification alone does not
characterize the purchase of the properties as one that
gave unwarranted benefits.

In its Memorandum submitted before this Court, the

Ombudsman, through the Office of the Solicitor General,
pointed out that the ratification by the City Council is not
a condition sine qua non for the local chief executive to

enter into contracts on behalf of the city. The law

requires prior authorization from the City Council and in
this case, Resolution No. 280 is the City Councils stamp
of approval and authority for Mayor Lajara to purchase
the subject lots.

Section 22(c), Title I of RA 7160, otherwise known as the

Local Government Code of 1991, provides:

Section 22. Corporate Powers. - x x x

(c) Unless otherwise provided in this

Code, no contract may be entered
into by the local chief executive in
behalf of the local government unit
without prior authorization by the
sanggunian concerned. A legible copy
of such contract shall be posted at a
conspicuous place in the provincial capitol
or the city, municipal or barangay hall.

Section 455, Title III of RA 7160 enumerates the powers,

duties, and compensation of the Chief Executive.
Specifically, it states that :

Section 455. Chief Executive: Powers, Duties and

Compensation. - x x x

(b) For efficient, effective and economical

governance the purpose of which is the
general welfare of the city and its
inhabitants pursuant to Section 16 of this
Code, the city mayor shall:

x x x(vi) Represent the city in all

its business transactions and
sign in its behalf all bonds,
contracts, and obligations, and
such other documents upon
authority of the sangguniang
panlungsod or pursuant to law
or ordinance;

Clearly, when the local chief executive enters into

contracts, the law speaks of prior authorization or
authority from the Sangguniang Panlungsod and not
ratification. It cannot be denied that the City Council
issued Resolution No. 280 authorizing Mayor Lajara to
purchase the subject lots.

As aptly pointed out by the Ombudsman, ratification by

the City Council is not a condition sine qua non for
Mayor Lajara to enter into contracts. With the resolution
issued by the Sangguniang Panlungsod, it cannot be
said that there was evident bad faith in purchasing the
subject lots. The lack of ratification alone does not
characterize the purchase of the properties as one that
gave unwarranted benefits to Pamana or Prudential

Bank or one that caused undue injury to Calamba City.

iii. Procurement of supplies

SISON VS PEOPLE

Non-Compliance with the Requirements of Personal

Canvass:

RA 71607 explicitly provides that, as a rule,

"acquisitions of supplies by local government
units shall be through competitive public bidding."
By way of exception, no bidding is required in the
following instances:

(1)
personal
merchants;

(2) emergency purchase;

(3) negotiated purchase;

(4) direct purchase from manufacturers or

exclusive distributors and

(5) purchase
entities.

from

of

other

responsible

government

Since personal canvass (the method availed of by

petitioner) is an exception to the rule requiring public
bidding, Section 367 of RA 7160 provides for limitations
on the resort to this mode of procurement:

canvass

Sec.
367.
Procurement
through
Personal
Canvass.Upon approval by the Committee on
Awards, procurement of supplies may be affected
after personal canvass of at least three (3)
responsible suppliers in the locality by a
committee of three (3) composed of the local
general services officer or the municipal or
barangay treasurer, as the case may be, the local
accountant, and the head of office or department
for whose use the supplies are being procured.
The award shall be decided by the Committee on
Awards.

In relation thereto, Section 364 of RA 7160 mandates:

Section 364. The Committee on Awards.There

shall be in every province, city or municipality a
Committee on Awards to decide the winning bids
and questions of awards on procurement and
disposal of property.

The Committee on Awards shall be composed of

the local chief executive as chairman, the local
treasurer, the local accountant, the local budget
officer, the local general services officer, and the
head of office or department for whose use the
supplies are being procured, as members. In
case a head of office or department would

sit in a dual capacity a member of the

sanggunian
elected
from
among
its
members shall sit as a member. The
Committee on Awards at the barangay level shall
be the sangguniang barangay. No national official
shall sit as member of the Committee on Awards.

Note that the law repeatedly uses the word "shall" to

emphasize the mandatory nature of its provisions.

RA 7160 requires that where the head of the office or

department requesting the requisition sits in a dual
capacity, the participation of a Sanggunian member
(elected from among the members of the Sanggunian) is
necessary.
Petitioner
clearly
disregarded
this
requirement because, in all the purchases made, he
signed in a dual capacityas chairman and member
(representing the head of office for whose use the
supplies were being procured). That is strictly
prohibited. None of the regular members of the
Committee on Awards may sit in a dual capacity. Where
any of the regular members is the requisitioning party, a
special member from the Sanggunian is required. The
prohibition is meant to check or prevent conflict of
interest as well as to protect the use of the procurement
process and the public funds for irregular or unlawful
purchases.

ONG VS PEOPLE

A local chief executive could only resort to a

negotiated purchase under Section 366 of RA No.
7160 and COA Resolution Nos. 95-244 and 95-244-A, if
the following two requisites are present: (1)
public biddings have failed for at least two
consecutive times and; (2) no suppliers have
qualified to participate or win in the biddings. The
Sandiganbayan correctly ruled that by procuring the
subject truck through a negotiated purchase without
public bidding, petitioner failed to comply with the above
stated procedure. Indeed, as a local chief executive,
petitioner is not only expected to know the proper
procedure in the procurement of supplies, she is also
duty bound to follow the same and her failure to
discharge this duty constitutes gross and inexcusable
negligence.

Notes:

Doctrine of estoppel with respect to void contracts, this is civil

law concept. Doctrine of estoppel will not apply to void
contracts, otherwise, it will make the contract that is void valid.

The doctrine of estoppel cannot be applied as against a

municipal corporation to validate a contract which it has
no power to make, or which it is authorized to make only
under prescribed mode or manner, although the

corporation has accepted the benefits thereof and the

other party has fully performed his part of the
agreement, or has expended large sums in preparation
for performance.

Doctrine of implied municipal liability as applied to

transactions without contracts that could have been valid had
one been entered into to the extent of the benefit received.

A municipality may become obligated upon an implied

contract to pay the reasonable value of the benefits
accepted or appropriated by it as to which it has the
general power to contract. The doctrine of implied
municipal liability applies to all cases where money or
other property of a party is received under such
circumstance that the general law, independent of
express contract, implies an obligation upon the
municipality to do justice with respect to the same.

This is applied to the Quezon City vs Lexber case.

6. To exercise such other powers as are granted to corporations, subject to

the limitations provided in the Code and other laws

7. To negotiate and secure grants

Section 23. Authority to Negotiate and Secure Grants. - Local chief

executives may, upon authority of the sanggunian, negotiate and
secure financial grants or donations in kind, in support of the basic
services or facilities enumerated under Section 17 hereof, from local
and foreign assistance agencies without necessity of securing
clearance or approval therefor from any department, agency, or office
of the national government of from any higher local government unit:
Provided, That projects financed by such grants or assistance with
national security implications shall be approved by the national agency
concerned: Provided, further, That when such national agency fails to
act on the request for approval within thirty (30) days from receipt
thereof, the same shall be deemed approved.

The local chief executive shall, within thirty (30) days upon signing of
such grant agreement or deed of donation, report the nature, amount,
and terms of such assistance to both Houses of Congress and the
President.
PART VII LIABILITY FOR DAMAGES

A. Liability for Defective Public Works

Art. 2189 NCC - Provinces, cities and municipalities shall be liable for
damages for the death of, or injuries suffered by, any person by reason of the
defective condition of roads, streets, bridges, public buildings, and other
public works under their control or supervision.

Art. 471 IRR Liability for Damages. - As provided in Article 2189 of RA 386,
otherwise known as the Civil Code of the Philippines, as amended, provinces,
cities, and municipalities shall be liable for damages for the death of, or
injuries suffered by, any person by reason of the defective condition of roads,
streets, bridges, public buildings, and other public works under their control or

supervision. The extent of liability for damages shall be governed by the

provisions of the Civil Code on quasi-delicts.

CITY OF MANILA VS TEOTICO It is not necessary for liability to attach to the

City of Manila that the defective road or street belong to it. It is sufficient that
it has either control or supervision over the street or road.

Under Article 2189 of the Civil Code, it is not necessary for the liability
therein established to attach that the defective roads or streets belong
to the province, city or municipality from which responsibility is
exacted. What said article requires is that the province, city or
municipality have either "control or supervision" over said street or
road. Even if P. Burgos Avenue were, therefore, a national highway,
this circumstance would not necessarily detract from its "control or
supervision" by the City of Manila, under Republic Act 409. The City of
Manila is therefore liable for damages to Teotico.

JIMENEZ VS CITY OF MANILA

Facts:Bernardino Jimenez was the unlucky lad who fell in an uncovered

opening on the ground located within the premises of the Sta. Ana
public market. At that time, the market was flooded with ankle-deep
rainwater which prevented the opening form being seen. Jimenez, for
his part, went to that market to buy bagoong despite the rains. He
sustained an injury due to a rusty 4-inch nail which pierced his left leg.

Jimenez sued the Asiatic Integrated Corporation (AIC) and the City of
Manila for his misfortune. The Sta. Ana Market argued that at that
time, such market was under the administration of the AIC by virtue of
a management and Operating Contract it had with the City of Manila.
The trial court held the AIC responsible but absolved the City of Manila.
Is the City of Manila indeed not liable?

Held: It is liable for the following reasons:

1) Again, Art. 2189 comes into play, since the injury took place
in a public building.

2) Also, Art. 2189 requires that the LGU must retain supervision
and control over the public work in question for it to be held
liable. The evidence showed that the Management and
Operating Contract explicitly stated that the City of Manila
retained supervision and control over the Sta. Ana Market.

Also, in a letter to Finance Secretary Cesar Virata, Mayor

Raymond Bagatsing admitted this fact of supervision and
control. Moreover, Sec. 30(g) of the Local Tax Code says that
public markets shall be under the immediate supervision,
administration and control of the City Treasurer.

3) Jimenez could not be held liable for negligence. A customer

in a store has every right to presume that the owner will comply
with his duty to keep his premises safe for customers. The
owner of the market, on the other hand, was proven to have
been negligent in not providing a cover for the said opening.
The negligence of the City of Manila is the proximate cause of
the injury suffered.

NOTE: It is not necessary for the LGU to have ownership over

the public work in question; mere control and supervision is

sufficient.

GUILATCO VS CITY OF DAGUPAN

Facts: Florentina Guilatco, a court interpreter, was about to board a

tricycle at a sidewalk located at Perez Boulevard when she accidentally
fell into a manhole located in said side walk, causing her right leg to be
fractured. She was hospitalized and also as aresult, suffered loss of
income and moral damages.

Guilatco sued the City of Dagupan. The City replied that Perez
Boulevard, where the deadly manhole was located, is a national road
not under the control and supervision of Dagupan. It is submitted that
it is actually the Ministry of Public Highways that has control and
supervision thru the Highway Engineer, who by mere coincidence, is
also the City Engineer of Dagupan.

Is the City of Dagupan liable?

Held: Yes, reasons:

1) We again apply Art. 2189. But the bigger question is: Does
the City of Dagupan have control and supervision over Perez
Boulevardin order for it to be held liable? The answer is yes.
Why? Read on.

2) The City of Dagupan argued that the supervision and control

over Perez Boulevard belongs more to his function as ex-officio
Highway Engineer, thus the Ministry of Public Highways should
be held liable. However, the court gave this arguments: Alfredo
G. Tangco, in his official capacity as City Engineer of Dagupan,
as Ex-Officio Highway Engineer, as Ex-Officio City Engineer of
the Bureau of Public Works, and, last but not the least, as
Building Official for Dagupan City, receives the following
monthly compensation: P1,810.66 from Dagupan City, P200.00
from the Ministry of Public Highways, P100.00 from the Bureau
of Public Works and P500.00 by virtue of P.D. 1096,
respectively.

This function of supervision over streets, public buildings, and

other public works pertaining to the City Engineer is coursed
through Maintenance Foreman and a Maintenance Engineer.
Although these last two officials are employees of the National
Government, they are detailed with the City of Dagupan and
hence receive instruction and supervision from the city through
the City Engineer. There is, therefore, no doubt that the City
Engineer exercises control or supervision over the public works
in question. Hence, the liability of the city to the petitioner
under article 2198 of the City Code is clear.

MUNICIPALITY OF SAN JUAN, METRO MANILA VS CA

Section 149. Powers and Duties. (1) The sangguniang bayan shall:

(bb) Regulate the drilling and excavation of the ground for the
laying of gas, water, sewer, and other pipes; the building and
repair of tunnels, sewers, drains and other similar structures;
erecting of poles and the use of crosswalks, curbs and gutters

therein, and adopt measures to ensure public safety against

open canals, manholes, live wires and other similar hazards to
life and property, and provide just compensation or relief for
persons suffering from them;

Clear it is from the above that the Municipality of San Juan can
"regulate" the drilling and excavation of the ground for the laying of
gas, water, sewer, and other pipes within its territorial jurisdiction.

Doubtless, the term "regulate" found in the aforequoted provision of

Section 149 can only mean that petitioner municipality exercises the
power of control, or, at the very least, supervision over all excavations
for the laying of gas, water, sewer and other pipes within its territory.

We must emphasize that under paragraph [1][bb] of Section 149,

supra, of the Local Government Code, the phrases "regulate the
drilling and excavation of the ground for the laying of gas, water,
sewer, and other pipes", and "adopt measures to ensure public safety
against open canals, manholes, live wires and other similar hazards to
life and property", are not modified by the term "municipal road". And
neither can it be fairly inferred from the same provision of Section 149
that petitioners power of regulation vis--vis the activities therein
mentioned applies only in cases where such activities are to be
performed in municipal roads. To our mind, the municipalitys liability
for injuries caused by its failure to regulate the drilling and excavation
of the ground for the laying of gas, water, sewer, and other pipes,
attaches regardless of whether the drilling or excavation is made on a
national or municipal road, for as long as the same is within its
territorial jurisdiction.

Jurisprudence teaches that for liability to arise under Article 2189 of

the Civil Code, ownership of the roads, streets, bridges, public
buildings and other public works, is not a controlling factor, it being
sufficient that a province, city or municipality has control or
supervision thereof.

MUNICIPALITY OF PASAY VS MANAOIS

Facts:Manaois obtained a judgment against the municipality of Pasay,

Ilocos Norte and a writ of execution against the defendant municipality
was issued.

The Sheriff attached and levied upon the following: (1) P1,712.01 in
the Municipal Treasury representing the rental paid by Mr. Demetrio
Tabije of a fishery lot belonging to the defendant municipality;"(2)
About forty fishery lots leased to thirty-five different persons by the
Municipality."

26 July 1949: Municipality filed a petition asking for the dissolution of

that attachment or levy of the properties above- mentioned arguing
that they are for public use.

1938: The municipal council of Pasay approved a resolution

confiscating said six fishery lots on the ground that a certain Duque
failed to comply with the terms of the lease contract. Municipality
awarded the lease of the same lots to Manaois, him being the highest
bidder.

Manaois paid P2,025 as rental for the said lots for the year 1939.

However, when Manaois and his men tried to enter the property in
order to exercise his right as lessee and to catch fish, particularly
bagos fry, he found therein Duque and his men who claimed that he
(Duque) was still the lessee, and despite the appeal of Manaois to the
Municipality of Pasay to put him in possession and the efforts of the
municipality to oust Duque, the latter succeeded in continuing in his
possession and keeping Manaois and his men out. Manaois brought an
action against the Municipality of Pasay to recover not only the sum
paid by him for the lease of the fishery lots but also damages.

ISSUE: WON the properties in this case can be subject to attachment

and levy.

HELD: Not all of them.

Properties for public use held by municipal corporations are not subject
to levy and execution. The reason behind this exemption extended to
properties for public use, and public municipal revenues is that they
are held in trust for the people.

If it is patrimonial and which is held by a municipality in its proprietary

capacity, it is treated as the private asset of the town and may be
levied upon and sold under an ordinary execution. The same rule
applies to municipal funds derived from patrimonial properties, for
instance, it has been held that shares of stock held by a municipal
corporation are subject to execution.

The fishery or municipal waters of the town are not subject to

execution. They do not belong to the municipality. They are property of
the State. What Pasay holds is merely a usufruct or the right to use
said municipal waters, granted to it by section 2321 of the Revised
Administrative Code.

It is based merely on a grant, more or less temporary, made by the

Legislature. The Legislature, for reasons it may deem valid or as a
matter of public policy, may, at any time, repeal or modify said section
2321 and revoke this grant to coastal towns and open these marine
waters to the public. Or the Legislature may grant the usufruct or right
of fishery to the provinces concerned so that said provinces may
operate or administer them by leasing them to private parties.

All this only goes to prove that the municipality of Pasay is not holding
this usufruct or right of fishery in a permanent or absolute manner so
as to enable it to dispose of it or to allow it to be taken away from it as
its property through execution.

Another reason for this prohibition is that the buyer would only buy the
rights of the municipality. All that he can do is rent out to private
individuals the fishery rights over the lots after public bidding. This, he
must do since that is the only right granted by the legislature. It is
anomalous since a private individual would be forced to conduct a
public bidding. It will also deprive Pasay of income.

The right or usufruct of the town of Pasay over its municipal waters,
particularly, the forty odd fishery lots included in the attachment by
the Sheriff, is not subject to execution.

But we hold that the revenue or income coming from the renting of
these fishery lots is certainly subject to execution. It may be profitable,

if not necessary, to distinguish this kind of revenue from that derived

from taxes, municipal licenses and market fees are provided for and
imposed by the law, they are intended primarily and exclusively for the
purpose of financing the governmental activities and functions of
municipal corporations. In fact, the real estate taxes collected by a
municipality do not all go to it.

In conclusion, we hold that the fishery lots numbering about forty in

the municipality of Pasay, mentioned at the beginning of this decision
are not subject to execution. However, the amount of P1,712.01 in the
municipal treasury of Pasay representing the rental paid by Demetrio
Tabije on fishery lots let out by the municipality of Pasay is a proper
subject of levy, and the attachment made thereon by the Sheriff is
valid.

MUNICIPALITY OF MAKATI VS COURT OF APPEALS

FACTS:20 May 1986: Action for eminent domain was filed by the City of
Makati against the properties of Admiral Finance, Home Bldg System,
and Arceli Jo. The appraised value of the property was P5.3M.

Private respondent moved for the issuance of a writ of execution. This

was issued and a notice of garnishment was served upon the manager
of PNB Buendia branch. However, the sheriff was told that a hold code
was placed on the account.

Makati: Garnishment must be lifted! The manner of payment in

expropriation proceedings should be done in installments.

The Municipality later discovered that PS Bank consolidated its

ownership over the property as mortgagee/ purchaser. PSB and private
respondent entered into a compromise agreement where they agreed
to divide the compensation due from the expropriation proceedings.

Trial Court: Approved the compromise and ordered the release of the
balance of the appraised value of the property.

Makati: On appeal, alleged that it has two accounts with the PNB: One
for the expropriation of the property, another for statutory obligations
and other purposes.

ISSUE: WON the funds in the second account can be the subject of
execution.

HELD: NO.Reasons:

The funds deposited in the second PNB account are public funds and
the settled rule is that public funds are not subject tolevy and
execution, unless otherwise provided for by statute.

Absent a showing that the MC of Makati passed an ordinance

appropriating from its public funds an amount corresponding to the
balance due, less the sum of P99T deposited in the first account, no
levy under execution may be validly effected on the second account.

Where a municipality fails or refuses, without justifiable reason, to

effect payment of a final money judgment rendered against it, the
claimant may avail of the remedy of mandamus to compel the
enactment and approval of the necessary appropriation ordinance and
its corresponding disbursement.

In this case, the RTC decision is not disputed by Makati. For 3 years
now, the city enjoyed possession and use of the property
notwithstanding its failure to comply with its legal obligation to pay
just compensation.

B. Liability for Torts (Quasi-Delict)

Section 24. Liability for Damages. - Local government units and their officials
are not exempt from liability for death or injury to persons or damage to
property.

Art. 2180 NCC. The obligation imposed by Article 2176 is demandable not only
for one's own acts or omissions, but also for those of persons for whom one is
responsible.

The father and, in case of his death or incapacity, the mother, are responsible
for the damages caused by the minor children who live in their company.

Guardians are liable for damages caused by the minors or incapacitated

persons who are under their authority and live in their company.

The owners and managers of an establishment or enterprise are likewise

responsible for damages caused by their employees in the service of the
branches in which the latter are employed or on the occasion of their
functions.

Employers shall be liable for the damages caused by their employees and
household helpers acting within the scope of their assigned tasks, even
though the former are not engaged in any business or industry.

The State is responsible in like manner when it acts through a special agent;
but not when the damage has been caused by the official to whom the task
done properly pertains, in which case what is provided in Article 2176 shall be
applicable.

Lastly, teachers or heads of establishments of arts and trades shall be liable

for damages caused by their pupils and students or apprentices, so long as
they remain in their custody.

The responsibility treated of in this article shall cease when the persons
herein mentioned prove that they observed all the diligence of a good father
of a family to prevent damage.

MERRITT VS GOVERNMENT OF THE PHILIPPINE ISLANDS

Facts:When the plaintiff, riding on a motorcycle, was going toward the

western part of Calle Padre Faura, the General Hospital ambulance,
upon reaching said avenue, instead of turning toward the south, after
passing the center thereof, so that it would be on the left side of said
avenue, as is prescribed by the ordinance and the Motor Vehicle Act,
turned suddenly and unexpectedly and long before reaching the center
of the street, into the right side of Taft Avenue, without having
sounded any whistle or horn, by which movement it struck the plaintiff,
who was already six feet from the southwestern point or from the post
place there.

By reason of the resulting collision, the plaintiff was so severely injured

that, he was suffering from a depression in the left parietal region, a
wound in the same place and in the back part of his head, while blood

issued from his nose and he was entirely unconscious. According to the
various merchants who testified as witnesses, the plaintiff's mental
and physical condition prior to the accident was excellent, and that
after having received the injuries that have been discussed, his
physical condition had undergone a noticeable depreciation, for he had
lost the agility, energy, and ability that he had constantly displayed
before the accident as one of the best constructors of wooden
buildings and he could not now earn even a half of the income that he
had secured for his work because he had lost 50 per cent of his
efficiency.

We may say at the outset that we are in full accord with the trial court
to the effect that the collision between the plaintiff's motorcycle and
the ambulance of the General Hospital was due solely to the
negligence of the chauffeur.

As the negligence which caused the collision is a tort committed by an

agent or employee of the Government, the inquiry at once arises
whether the Government is legally-liable for the damages resulting
therefrom.

Act No. 2457, effective February 3, 1915, reads: An Act authorizing E.

Merritt to bring suit against the Government of the Philippine Islands
and authorizing the Attorney-General of said Islands to appear in said
suit. By authority of the United States, be it enacted by the Philippine
Legislature, that: SECTION 1. E. Merritt is hereby authorized to bring
suit in the Court of First Instance of the city of Manila against the
Government of the Philippine Islands in order to fix the responsibility
for the collision between his motorcycle and the ambulance of the
General Hospital, and to determine the amount of the damages, if any,
to which Mr. E. Merritt is entitled on account of said collision, and the
Attorney-General of the Philippine Islands is hereby authorized and
directed to appear at the trial on the behalf of the Government of said
Islands, to defendant said Government at the same.

Issue:Did the defendant, in enacting the above quoted Act, simply

waive its immunity from suit or did it also concede its liability to the
plaintiff?

Held:The plaintiff was authorized to bring this action against the

Government "in order to fix the responsibility for the collision between
his motorcycle and the ambulance of the General Hospital and to
determine the amount of the damages, if any, to which Mr. E. Merritt is
entitled on account of said collision, . . . ." In the United States, the rule
that the state is not liable for the torts committed by its officers or
agents whom it employs, except when expressly made so by
legislative enactment, is well settled.

As to the scope of legislative enactments permitting individuals to sue

the state where the cause of action arises out of either tort or contract
- By consenting to be sued, a state simply waives its immunity from
suit. It does not thereby concede its liability to plaintiff, or create any
cause of action in his favor, or extend its liability to any cause not
previously recognized.

In determining the scope of this act - It simply gives authority to

commence suit for the purpose of settling plaintiff's controversies with

the state. Nowhere in the act is there a whisper or suggestion that the
court or courts in the disposition of the suit shall depart from well
established principles of law, or that the amount of damages is the
only question to be settled.

It is, therefore, evidence that the State (the Government of the

Philippine Islands) is only liable, according to the above quoted
decisions of the Supreme Court of Spain, for the acts of its agents,
officers and employees when they act as special agents within the
meaning of paragraph 5 of article 1903, supra, and that the chauffeur
of the ambulance of the General Hospital was not such an agent.

MUNICIPALITY OF SAN FERNANDO VS FIRME

Facts:Laurence Banino, Sr., along with several other passengers in a

jeepney they were riding in, died after collision involving said jeepney,
a privately owned graved and sand trucks and a dump truck owned by
the Municipality of San Fernando, La Union, driven by Alfredo Bislig, a
regular employee of said municipality. The heirs included in its
complaint the municipality and the dump trucks driver. The
municipality invokes non-suability of the State. Is it correct?

Held : YES, 1) The general rule is that the State may not be sued
except when it gives consent to be sued. Consent takes the form of
express of implied consent.

Express consent may be embodied in a general law or a special law.

The standing consent of the State to be sued in case of money claims
involving liability arising from contracts is found in Act No. 3083. A
special law may be passed to enable a person to sue the government
for an alleged quasi delict.

Consent is implied when the government enters into business

contracts, thereby descending to the level of the other contracting
party, and also when the State files a complaint thus opening itself to a
counterclaim.

Municipal corporations for example, like provinces and cities, are

agencies of the State when they are engaged in governmental
functions and therefore should enjoy the sovereign immunity from suit.
Nevertheless, they are subject to suit even in the performance of such
functions because their charter provided that they can sue and be
sued.

2. A distinction should first be made between suability and liability.

Suability depends on the consent of the state to be sued, liability on
the applicable law and the established facts. The circumstance that a
State is suable does not necessarily mean that it is liable; on the other
hand, it can never be held allowing itself to be sued. When the state
does waive its sovereign immunity, it is only giving the plaintiff the
chance to prove, if it can, that the defendant is liable.

3. About the issue of whether or not the municipality is liable for the
torts committed by its employee, the test of liability of the municipality
depends on whether or not the driver, acting in behalf of the
municipality is performing governmental of propriety functions. As
emphasized in the case of Torio vs. Fontanilla, the distinction of powers
becomes important for purposes of determining the liability of the

municipality for the acts of its agents which result in an injury to third
persons.

It has already been remarked that municipal corporations are suable

because their charters grant them the competence to sue and be
sued. Nevertheless, they are generally not liable for torts committed
by them in the discharge of governmental functions and can be held
answerable only if it can be shown that they were acting in a propriety
capacity. In permitting such entities to be sued, the State merely gives
the claimant the right to show that the defendant is not acting in its
governmental capacity when the injury was committed or that the
case comes under exceptions recognized by law. Failing this, the
claimant cannot recover.

4. In the case at bar, the driver of the dump truck of the municipality
insists that he was on his way to Naguilian River to get a load of sand
and gravel for the repair of San Fernandos municipal streets.

MENDOZA VS DE LEON

FACTS:The Municipal Council of Villasis Pangasinan revoked the lease

of an exclusive ferry privilege awarded to the plaintiff under the
provisions of Act No. 1634 of the Philippine Commission.

The plaintiff was forcibly ejected under and in pursuance of a

resolution adopted by the defendants in this case, awarding a
franchise for the same ferry to another person.

Mendoza filed an action for damages against the individual members

of the council.

ISSUE: WON the council members can be held personally liable for the
damages suffered by the lessee.

HELD: Yes. Under the evidence of record, that there is no manner of

doubt that this pretext was absolutely without foundation and as there
was therefore no occasion whatever for rescinding the contract, the
defendant councilors are liable personally for the damages suffered by
Mendoza.

RATIO:The Municipal Code confers both governmental and corporate

powers upon municipal corporations. For the exercise of the former, it
is not liable to private persons. Its liability to them for the wrongful
exercise of the latter is the same as that of a private corporation or
individual.

Officers and agents of MCs charged with the performance of

governmental duties which are in their nature legislative, judicial, or
quasi-judicial, are not liable for consequences of their official acts
unless it can be shown that they acted willfully and maliciously, with
the express purpose of inflicting injury upon the plaintiff.

The officers of municipalities charged with the administration of

patrimonial property are liable for mismanagement of its affairs as are
directors or managing officers of private corporations, not for mere
mistakes of judgment, but only when their acts are so far opposed to
the true interest of the municipality as to lead to the clear inference
that no one thus acting could have been influenced by any honest
desire to secure such interests.

The defendant councilors regularly leased an exclusive ferry privilege

to the plaintiff for two years. After continuous user of a little more than
one year, they forcible evicted him on the pretext that he was not
operating the ferry leased to him.

TORIO VS FONTANILLA Since the holding of a town fiesta is an exercise of a

proprietary function, the Municipality of Malasiqui is liable for any injury
sustained on the occasion thereof.

Facts:The Municipal Council of Malasiqui, Pangasinan passed a

resolution celebrating a town fiesta for 3 days on January, 1959. The
resolution created on Executive Committee which would oversee the
operations of the town fiesta. The Executive Committee in turn had a
sub-committee in charge of building 2 stages, one of which was for a
zarzuela program.

Vicente Fontanilla was one of the actors of the zarzuela. While the
zarzuela was going on the stage where the play was set collapsed.
Fontanilla, who has at the rear of the stage, was pinned underneath
and died the following day.

The family and heirs of Fontanilla filed a complaint against the

Municipality of Malasiqui, the Municipal Council and the individual
members of the Municipal Council. Can they be held liable?

Held: The Municipality of Malasiqui is liable and the individual

members of the Municipal Council are not liable. Reasons:

1) The basic rule to be first followed is that a municipal corporation

cannot be held liable for an injury caused in the course of performance
of a governmental function. With respect to proprietary functions, the
settled rule is that a municipal corporation can be held liable upon
contracts and in torts.

2) The next question to be answered is that whether the fiesta abovequota was performed by the municipality in the exercise of its
governmental or proprietary function. According to 2282 of the revised
Administrative Code, municipalities are authorized to hold fiesta, but it
is not their duty to conduct such.

Thus, the fiesta is proprietary in nature. The same analogy can be

applied to the maintenance of parks, which is a private undertaking, as
opposed to the maintenance of public schools and jails, which are for
the public service. (The key word then is duty.)

3) Under the doctrine of respondent superior (see first paragraph of

Art. 2180), the municipality can be held liable for the death of
Fontanilla if a) the municipality was performing a proprietary function
at that time and b) negligence can be attributed to the municipalitys
officers, employees or agents performing the proprietary function. The
evidence proved that the committee overseeing the construction of
the stage failed to build a strong enough to insure the safety of
zarzuela participants. Fontanilla was entitled to ensure that he would
be exposed to danger on that occasion.

4) Finally, the municipal council is not responsible. The Municipality

stands on the same footing as an ordinary private corporation with the
municipal council acting as its board of directors. It is an elementary
principle that a corporation has a personality, separate and distinct

from its officers, directors, or persons composing it and the latter are
not as a rule co-responsible in an action for damages for tort or
negligence culpa aquillana committed by the corporations employees
of agents unless there is a showing of bad faith or gross or wanton
negligence on their part. To make an officer of a corporation liable for
the negligence of the corporation there must have been upon his part
such a breach of duty as contributed to or helped to bring about, the
injury; that is to say, he must be a participant in the wrongful act.

CITY OF MANILA VS INTERMEDIATE APPELLATE COURT

Facts: Vivencio Sto. Domingo, Sr. died and was buried in North
Cemetery which lot was leased by the city to Irene Sto. Domingo for
the period from June 6, 1971 to June 6, 2021. The wife paid the full
amount of the lease. Apart, however from the receipt, no other
document embodied such lease over the lot. Believing that the lease
was only for five years, the city certified the lot as ready for
exhumation.

On the basis of the certification, Joseph Helmuth authorized the

exhumation and removal of the remains of Vicencio. His bones were
placed in a bag and kept in the bodega of the cemetery. The lot was
also leased to another lessee. During the next all souls day, the private
respondents were shocked to find out that Vicencios remains were
removed. The cemetery told Irene to look for the bones of the husband
in the bodega.

Aggrieved, the widow and the children brought an action for damages
against the City of Manila; Evangeline Suva of the City Health Office;
Sergio Mallari, officer-in-charge of the North Cemetery; and Joseph
Helmuth, the latter's predecessor as officer- in-charge of the said burial
grounds owned and operated by the City Government of Manila. The
court ordered defendants to give plaintiffs the right to make use of
another lot. The CA affirmed and included the award of damages in
favor of the private respondents.

Issue: WON the operations and functions of a public cemetery are a

governmental, or a corporate or proprietary function of the City of
Manila.

Held: Proprietary

Ratio: Petitioners alleged in their petition that the North Cemetery is

exclusively devoted for public use or purpose as stated in Sec. 316 of
the Compilation of the Ordinances of the City of Manila. They conclude
that since the City is a political subdivision in the performance of its
governmental function, it is immune from tort liability which may be
caused by its public officers and subordinate employees. Private
respondents maintain that the City of Manila entered into a contract of
lease which involve the exercise of proprietary functions with Irene
Sto. Domingo. The city and its officers therefore can be sued for anyviolation of the contract of lease.

The City of Manila is a political body corporate and as such endowed

with the faculties of municipal corporations to be exercised by and
through its city government in conformity with law, and in its proper
corporate name. It may sue and be sued, and contract and be
contracted with. Its powers are twofold in character-public,

governmental or political on the one hand, and corporate, private and

proprietary on the other. Governmental powers are those exercised in
administering the powers of the state and promoting the public welfare
and they include the legislative, judicial, public and political.

Municipal powers on the one hand are exercised for the special benefit
and advantage of the community and include those which are
ministerial, private and corporate. In connection with the powers of a
municipal corporation, it may acquire property in its public or
governmental capacity, and private or proprietary capacity.

The New Civil Code divides such properties into property for public use
and patrimonial properties (Article 423), and further enumerates the
properties for public use as provincial roads, city streets, municipal
streets, the squares, fountains, public waters, promenades, and public
works for public service paid for by said provisions, cities or
municipalities, all other property is patrimonial without prejudice to the
provisions of special laws.

Thus in Torio v. Fontanilla, the Court declared that with respect to

proprietary functions the settled rule is that a municipal corporation
can be held liable to third persons ex contractu. Under the foregoing
considerations and in the absence of a special law, the North Cemetery
is a patrimonial property of the City of Manila. The administration and
government of the cemetery are under the City Health Officer, the
order and police of the cemetery, the opening of graves, niches, or
tombs, the exhuming of remains, and the purification of the same are
under the charge and responsibility of the superintendent of the
cemetery. With the acts of dominion, there is no doubt that the North
Cemetery is within the class of property which the City of Manila owns
in its proprietary or private character.

Furthermore, there is no dispute that the burial lot was leased in favor
of the private respondents. Hence, obligations arising from contracts
have the force of law between the contracting parties. Thus a lease
contract executed by the lessor and lessee remains as the law
between them. Therefore, a breach of contractual provision entitles
the other party to damages even if no penalty for such breach is
prescribed in the contract.

Issue: WON the city is liable for damages

Held: Yes

Ratio: All things considered, even as the Court commiserates with

plaintiffs for the unfortunate happening complained of and untimely
desecration of the resting place and remains of their deceased dearly
beloved, it finds the reliefs prayed for by them lacking in legal and
factual basis.

Under the aforementioned facts and circumstances, the most that

plaintiffs ran ask for is the replacement of subject lot with another lot
of equal size and similar location in the North Cemetery which
substitute lot plaintiffs can make use of without paying any rental to
the city government for a period of forty-three (43) years, four (4)
months and eleven (11) days corresponding to the unexpired portion
of the term of the lease sued upon as of January 25, 1978 when the
remains of the late Vivencio Sto. Domingo, Sr. were prematurely

removed from the disputed lot; and to require the defendants to look
in earnest for the bones and skull of the late Vivencio Sto. Domingo Sr.
and to bury the same in the substitute lot adjudged in favor of
plaintiffs hereunder.

As regards the issue of the validity of the contract of lease of grave lot
No. 159, Block No. 195 of the North Cemetery for 50 years beginning
from June 6, 1971 to June 6, 2021 as clearly stated in the receipt duly
signed by the deputy treasurer of the City of Manila and sealed by the
city government, there is nothing in the record that justifies the
reversal of the conclusion of both the trial court and the Intermediate
Appellate Court to the effect that the receipt is in itself a contract of
lease.

Under the doctrine of respondent superior, (Torio v. Fontanilla),

petitioner City of Manila is liable for the tortious act committed by its
agents who failed to verify and check the duration of the contract of
lease.

The contention of the petitioner-city that the lease is covered by

Administrative Order No. 5, series of 1975 dated March 6, 1975 of the
City of Manila for five (5) years only beginning from June 6, 1971 is not
meritorious for the said administrative order covers new leases. When
subject lot was certified on January 25, 1978 as ready for exhumation,
the lease contract for fifty (50) years was still in full force and effect.

C. Liability for Failure of Police Force to render aid and protection

Art. 2180 (6) NCC. The State is responsible in like manner when it acts
through a special agent; but not when the damage has been caused by the
official to whom the task done properly pertains, in which case what is
provided in Article 2176 shall be applicable.

Art. 2176. Whoever by act or omission causes damage to another,

there being fault or negligence, is obliged to pay for the damage done.
Such fault or negligence, if there is no pre-existing contractual relation
between the parties, is called a quasi-delict and is governed by the
provisions of this Chapter.

Liability for Damages

Art. 34 NCC Subsidiary liability (not primary liability) of lgu for liability
of local police force regarding refusal or failure to render aid or
protection to any person in case of danger to life or property.

Art. 2189 NCC Liability of lgus for defective condition of roads

and other public works under lgus control and supervision (thus,
ownership is not a requirement) which results to (a) death and (b)
injuries to persons (thus, damage to property is not included)

Art. 24, LGC Lgus not exempt from liability for death or injury
to persons or damage to property.

Notes:

LGU can be held liable only for acts:

i. intra vires

ii. if it is in accordance with law

So, if outside the authority of the lgu, such as acts done in bad faith or
with malice, lgu is not liable.

If there is malice or bad faith, then the officer shall be held personally
liable.

D. Liability for Contracts because its considered as a private individual when it

enters into contracts. But this rule applies only to contracts done within the authority
of the lgu (intra vires). If ultra vires, meaning outside the authority of the lgu, it cant
be held liable ex-contractu since the contract is void and cannot be cured, in which
case, the doctrine of estoppel does not apply if the contract is void.

1. Scope

Lexber case and City of Manila vs IAC case

2. Doctrine of Implied Municipal Liability(Contra personal liability)

To hold a municipal corporation for benefits received under an implied

contract:

a. It is necessary to show that the implied contract be within

the contractual powers of the corporation and that the officers
who entered into contract were fully authorized.

b. It must be further shown that the benefits were voluntarily

accepted under such circumstances as will indicate that
payment was intended by the parties or that justice and equity
would require the payment of compensation.

PROVINCE OF CEBU VS IAC

Facts: Again, this case concerns the implied liability of a

municipal corporation in paying the fees of an attorney hired
but theattorney ended up with only a pittance.

There was a time when Cebu City almost became the owner of
practically the whole of the Province of Cebu. This happened in
Feb. 4. 1964 when the Vice Governor and the Provincial Board
of Cebu, taking advantage of Governor Rene Espinas absence
(he was away on an official business trip [ows?]} donated 210
lots or 380 hectares of provincial patrimonial land to Cebu City.
When Governor Espina finally heard of the donation, he filed a
case to declare the donation void for being illegal and immoral.
The defendants in the case were Cebu City, City mayor Sergio
Osmena and the dumb provincial officials responsible for the
donation.

Governor Espina hired Atty. Pablo Garcia, a private lawyer, as

his counsel. Atty. Garcia toiled for 8 years on the case, but for
some reason, he was no longer counsel when the parties
settled for a compromise agreement. Nevertheless, Atty. Garcia
claims he is entitled to fees worth 30% of the worth of the
properties or 36 million pesos (a staggering amount,
considering that the amount was based on the peso - dollar
rates of 1979).

The province of Cebu City however refused to give him even

one centavo. They said Sec. 1683 of the RAC and Sec. 3 of the
Local Autonomy Law is clear that only the provincial fiscal and
municipal attorney can represent a province or municipality in
its lawsuits. More importantly, if the province of Cebu were to
hire a private lawyers (such as when the provincial fiscal is
disqualified) the Provincial Board must pass a resolution to
allow such a move.

The Trial court awarded attorneys fees based on quantum

merit. On appeal, the IAC awarded 5% worth of properties. The
questions now are 1. Should the province pay Atty. Garcia and
2? If so how much is Atty. Garcia entitled to?

Held: The province must pay Atty. Garcia but he is entitled only
to quantum merit. Reasons:

1. Ibi quid generaliter conceditur; inest haee exception, si non

aliquid sit contra jus fasque. (Where anything is granted
generally, this exception is implied; that nothing shall be
contrary to law and right). This simply means that every rule,
no matter how strict or harsh, must have an exception. Here,
equity comes into play. To deny Atty. Garcia compensation for
his professional services would amount to a deprivation of
property without due process of law.

2. The argument that the hiring of private lawyers by a province

must first gain the approval of the Provincial Board is absurd.
First of all, the service of the Provincial Fiscal has already been
engaged by the Provincial Board. More importantly, its so
stupid for the Provincial Board to pass a resolution grant the
hiring of a private lawyer who would litigate against them. The
Provincial Board may just not pass such a resolution. The legal
maxim which we can use as a basis for this situation is Nemo
tenetur ad impossibile (The law obliges no one to perform an
impossibility)

3. Until the contrary is clearly shown, an attorney is presumed

to be acting under authority of the litigant whom he purports to
represent. His authority to appear for and represent petitioner
in litigation, not having been questioned in the lower court, it
will be presumed on appeal that counsel was properly
authorized to file the complaint and appear for his client. Even
where an attorney is employed by an unauthorized person to
represent a client, the latter will be bound where it has
knowledge of the fact that it is being represented by an
attorney in a particular litigation and takes no prompt measure
to repudiate the assumed authority. Such acquiescence in the
employment of an attorney as occurred in this case is
tantamount to ratification. The act of the successor provincial
board and provincial officials in allowing Atty. Pablo P. Garcia to
continue as counsel and in joining him in the suit led the
counsel to believe his services were still necessary.

4. Atty. Garcia is entitled only to quantum merit. He simply was

not counsel when the compromise agreement was made. He
gets only 30,000 pesos.

3. Doctrine of Estoppel

SAN DIEGO VS MUNICIPALITY OF NAUJAN

Facts: Following a public bidding conducted by the municipality

of Naujan, Oriental Mindoro for the lease of its municipal
waters, Resolution 46 was passed awarding the concession of
the Butas River and the Naujan Lake to Bartolome San Diego. A
contract was entered into between the said San Diego and the
municipality, for a period of lease for 5 years.

The lessee then requested for a five year extension of the

original lease period, this was granted by the municipal council.
After the resolution had been approved by the Provincial Board
of Oriental Mindoro, the lessor and the lessee, contracted for
the extension of the period of the lease. The contract was
approved and confirmed on December 29, 1951 by Resolution
229 of the municipal council of Naujan whose term was then
about to expire. Pursuant to the said contract, the lessee filed a
surety bond of P52,000 and then reconstructed his fish corrals
and stocked the Naujan Lake with bangus fingerlings.

On January 2, 1952, the municipal council of Naujan, this time

composed of a new set of members, adopted Resolution 3,
series of 1952, revoking Resolution 222, series of 1951. On the
same date, the new council also passed Resolution 11, revoking
Resolution 229 of the old council which confirmed the extension
of the lease period. The lessee requested for reconsideration
and recall of Resolution 3, on the ground, among others, that it
violated the contract executed between him and the
municipality on December 23, 1951, and, therefore, contrary to
Article III, section 1, clause 10 of the Constitution. The request,
however, was not granted.

The lessee instituted proceedings to annul the Resolution. The

defendant asserted that the original lease contract, reducing
the lease rentals and renewing the lease are null and void for
not having been passed in accordance with law. The trial court
upheld the validity of the lease contract.

Issue:WON Resolution No. 3, series of 1952, revoking Resolution

222, series of 1951, of the municipal council of Naujan is valid

Held: Yes

The law (Sec. 2323 of the Revised Administrative Code)

requires that when the exclusive privilege of fishery or the right
to conduct a fish-breeding ground is granted to a private party,
the same shall be let to the highest bidder in the same manner
as is being done in exploiting a ferry, a market or a
slaughterhouse belonging to the municipality. The requirement
of competitive bidding is for the purpose of inviting competition
and to guard against favoritism, fraud and corruption in the
letting of fishery privileges. There is no doubt that the original
lease contract in this case was awarded to the highest bidder,
but the reduction of the rental and the extension of the term of
the lease appear to have been granted without previous public
bidding.

Furthermore, it has been ruled that statutes requiring public

bidding apply to amendments of any contract already executed
in compliance with the law where such amendments alter the
original contract in some vital and essential particular.
Inasmuch as the period in a lease is a vital and essential
particular to the contract, we believe that the extension of the
lease period in this case, which was granted without the
essential requisite of public bidding, is not in accordance with
law. And it follows the Resolution 222, series of 1951, and the
contract authorized thereby, extending the original five-year
lease to another five years are null and void as contrary to law
and public policy.

We agree with the defendant in that the question Resolution 3

is not an impairment of the obligation of contract, because the
constitutional provision on impairment refers only to contract
legally executed. While, apparently, Resolution 3 tended to
abrogate the contract extending the lease, legally speaking,
there was no contract abrogated because, as we have said, the
extension contract is void and inexistent.

The lower court, in holding that the defendant-appellant

municipality has been estopped from assailing the validity of
the contract into which it entered on December 23, 1951,
seems to have overlooked the general rule that the doctrine of
estoppel cannot be applied as against a municipal corporation
to validate a contract which it has no power to make or which it
is authorized to make only under prescribed conditions, within
prescribed limitations, or in a prescribed mode or manner,
although the corporation has accepted the benefits thereof and
the other party has fully performed his part of the agreement,
or has expended large sums in preparation for performance. A
reason frequently assigned for this rule is that to apply the
doctrine of estoppel against a municipality in such case would
be to enable it to do indirectly what it cannot do directly. Also,
where a contract is violative of public policy, the municipality
executing it cannot be estopped to assert the invalidity of a
contract which has ceded away, controlled, or embarrassed its
legislative or government powers.

As pointed out above, "public biddings are held for the best
protection of the public and to give the public the best possible
advantages by means of open competition between the
bidders." Thus, contracts requiring public bidding affect public
interest, and to change them without complying with that
requirement would indeed be against public policy. There is,
therefore, nothing to plaintiff-appellee's contention that the
parties in this case being in pari delicto should be left in the
situation where they are found, for "although the parties are in
pari delicto, yet the court may interfere and grant relief at the
suit of one of them, where public policy requires its
intervention, even though the result may be that a benefit will
be derived by a plaintiff who is in equal guilt with defendant.
But here the guilt of the parties is not considered as equal to
the higher right of the public, and the guilty party to whom the

relief is granted is simply the instrument by which the public is

served."

In consonance with the principles enunciated above, Resolution

59, series of 1947, reducing the rentals by 20% of the original
price, which was also passed without public bidding, should
likewise be held void, since a reduction of the rental to be paid
by the lessee is a substantial alternation in the contract,
making it a distinct and different lease contract which requires
the prescribed formality of public bidding.

E. Liability for Illegal Dismissal of employees

1. Municipal Liability

MUNICIPALITY OF JASAAN VS GENTALLAN

After a careful review of the circumstances in these

consolidated petitions, we are in agreement with the Court of
Appeals that respondent was qualified and eligible for the
position of local civil registrar, and there was no factual nor
legal basis for her removal from said position. The CA order to
reinstate her had become final and executory. The CA decision
ought to be upheld.

As a permanent appointee to the position, she enjoys security

of tenure. She is likewise entitled to all benefits, rights and
privileges attached to the position. She cannot be removed or
dismissed from the service without just cause and without
observing the requirements of due process.

An illegally dismissed government employee who is later

ordered reinstated is entitled to backwages and other monetary
benefits from the time of her illegal dismissal up to her
reinstatement. This is only fair and just because an employee
who is reinstated after having been illegally dismissed is
considered as not having left her office and should be given the
corresponding compensation at the time of her reinstatement.

In the instant case, we note that there is no finding that malice

or bad faith attended the illegal dismissal and refusal to
reinstate Gentallan by her superior officers. Thus, they cannot
be held personally accountable for her back salaries. The
municipal government, therefore, should disburse funds to
answer for her claims resulting from dismissal.

If there was no malice or bad faith that attended the illegal

dismissal, the superior officers cannot be held personally
accountable for her back salaries. The municipal
government, therefore, should disburse funds to answer
for her claims resulting from dismissal.

2. Personal Liability of Officials

LAGANAPAN VS ASEDILLO

Facts:Solano Laganapan was appointed Chief of Police.

However, he was summarily dismissed from his position by

respondent Mayor Elpidio Asedillo of Kalayaan, Laguna on the

ground that his appointment was provisional and that he has no
civil service eligibility. Respondent Epifanio Ragotero was
appointed acting chief of police of Kalayaan, Laguna on the
same day in place of the petitioner.

Subsequently, the Municipal Council of Kalayaan, Laguna

abolished the appropriation for the salary of the chief of police
of Kalayaan, Laguna. Laganapan thus filed a complaint against
Mayor Asedillo and the Municipality of Kalayaan for
reinstatement and payment of back wages. May Laganapan be
reinstated? Is the Municipality also liable?

Held: The municipality is liable but Laganapan cannot be

reinstated. Reasons:

1. Laganapan was summarily dismissed without any semblance

of compliance with due process. No charges were filed, no
notice or hearing was made, no nothing. The Court finds no
merit in the mayors contention that, since the appointments
extended to Laganapan as chief of police of Kalayaan, Laguna,
were all provisional in nature, and not permanent, his services
could be terminated with or without cause at the pleasure of
the appointing officer. While it may be true that Laganapan was
holding a provisional appointment at the time of his dismissal,
he was not a temporary official who could be dismissed at any
time. His provisional appointment could only be terminated
thirty (30) days after receipt by the appointing officer of a list of
eligible form the Civil Services Commission. Here no such
certification was received by Mayor Asedillo thirty (30) days
prior to his dismissal of Laganapan.

Furthermore, it is of record that, after the summary dismissal of

Laganapan by Asedillo, the Municipal Council of Kalayaan
instead of opposing or at least protesting Laganapans
summary dismissal of his position, even abolished the
appropriation for the salary of the Chief of Police of Kalayaan
Laguna. The Court considers this act of the Municipal Council as
an approval or confirmation of the act of respondent Mayor in
summarily dismissing Laganapan, as to make said municipality
equally liable as the mayor for the reinstatement of Laganapan
and for the payment of his back salaries.

Finally it should be noted that Asedillo was sued not personally,

but in his capacity as mayor.

1. Laganapan cannot be reinstated. PD 482, recently enacted at

that time, calls for the appointment of a permanent Chief of
Police (known as Station Commander), in certain provinces
including Laguna. His reinstatement is not feasible. The Mayor
and the municipality are instead liable for payment of back
salaries.

CHAVEZ VS SANDIGANBAYAN

Presiding Justice Francis Garchitorena correctly observed that

there is no general immunity arising solely from occupying a
public office. The general rule is that public officials can be held

personally accountable for acts claimed to have been

performed in connection with official duties where they have
acted ultra vires or where there is a showing of bad faith.
Moreover, the petitioner's argument that the immunity proviso
under Section 4(a) of Executive Order No. 1 also extends to him
is not well-taken. A mere invocation of the immunity clause
does not ipso facto result in the charges being automatically
dropped.
Immunity
from
suit
cannot
institutionalize
irresponsibility and non-accountability nor grant a privileged
status not claimed by any other official of the Republic.

RAMA VS COURT OF APPEALS

Where the petitioner exceeds his authority as Solicitor General

acts in bad faith, or, as contended by the private respondent,
"maliciously conspires with the PCGG commissioners in
persecuting respondent Enrile by filing against him an evidently
baseless suit in derogation of the latter's constitutional rights
and liberties", there can be no question that a complaint for
damages may be filed against him. High position in government
does not confer a license to persecute or recklessly injure
another. The actions governed by Articles 19, 20, 21, and 32 of
the Civil Code on Human Relations may be taken against public
officers or private citizens alike. The issue is not the right of
respondent Enrile to file an action for damages. He has the
right.
The governor, vice governor, member of the Sangguniang
Panlalawigan, provincial auditor, provincial treasurer and
provincial engineer were ordered to pay jointly and severally in
their individual and personal capacity damages to some 200
employees of the province of Cebu who were eased out from
their positions because of their party affiliations.

CORREA VS CFI OF BULACAN

Facts: The petitioner was a former mayor of Norzagaray,

Bulacan who was ordered by the respondent court to personally
pay the salaries of private respondents which they failed to
receive because of their illegal removal from office. Ex-Mayor
Correa claimed that since he was sued in his official capacity
and he was no longer mayor, the judgment should be binding
on the municipality of Norzagaray.

Held: The court reiterated the rule that the municipal

corporation is responsible for the acts of its officers only when
they have acted by authority of the law and in conformity with
its requirements.

A public officer who commits a tort or other wrongful act, done

in excess or beyond the scope of his duty, is not protected by
his office and is personally liable therefore like any private
individual. This principle of personal liability has been applied to
cases where a public officer removes another officer or
discharges an employee wrongfully, the reported cases saying
that by reason of non-compliance with the requirements of law
in respect to removal from office, the officials were acting

outside of their official authority.

PART VIII ELECTIVE OFFICIALS
A. Qualifications and Elections

1. Qualifications

Section 39. Qualifications. c-r-r(1)

(a) An elective local official must be a citizen of the Philippines;

a registered voter in the barangay, municipality, city, or
province or, in the case of a member of the sangguniang
panlalawigan, sangguniang panlungsod, or sangguniang bayan,
the district where he intends to be elected; a resident therein
for at least one (1) year immediately preceding the day of the
election; and able to read and write Filipino or any other local
language or dialect.

(b) Candidates for the position of governor, vice-governor, or

member of the sangguniang panlalawigan, or mayor, vicemayor or member of the sangguniang panlungsod of highly
urbanized cities must be at least twenty-one (21) years of age
on election day.

(c) Candidates for the position of mayor or vice-mayor of

independent
component
cities,
component
cities,
or
municipalities must be at least twenty-one (21) years of age on
election day.

(d) Candidates for the position of member of the sangguniang

panlungsod or sangguniang bayan must be at least eighteen
(18) years of age on election day.

(e) Candidates for the position of punong barangay or member

of the sangguniang barangay must be at least eighteen (18)
years of age on election day.

(f) Candidates for the sangguniang kabataan must be at least

fifteen (15) years of age but not more than twenty-one (21)
years of age on election day.

Qualifications: c-r-r-a-a

i. Citizen of the Philippines

There is no requirement that the local elective

official must be natural-born Filipino unlike national
elective officials.

So, natural born or otherwise, including naturalized

citizen of the Philippines.

FRIVALDO VS COMELEC The citizenship requirement in

the LGC is to be possessed by an elective official at the
latest as of the time he is proclaimed and at the start of
the term of office to which he has been elected.
Registration under PD 725 (Repatriation) is valid and
effective and retroacts to the date of the
application. Thus, Frivaldos repatriation is to be given

effect as of the date of his application therefor.

The qualifications in the LGC refer to that of

Elective officials (and not of Candidates),
hence, these qualifications need to be possessed
by the official not at the time he filed his
certificate of candidacy but at the time he
takes his oath of office and assumes his
post.

From the above, it will be noted that the law does

not specify any particular date or time when the
candidate must possess citizenship, unlike that
for residence (which must consist of at least one
year's residency immediately preceding the day
of election) and age (at least twenty three years
of age on election day).

So too, even from a literal (as distinguished from

liberal) construction, it should be noted that
Section 39 of the Local Government Code speaks
of "Qualifications" of "ELECTIVE OFFICIALS", not
of candidates. Why then should such qualification
be required at the time of election or at the time
of the filing of the certificates of candidacies, as
Lee insists? Literally, such qualifications -- unless
otherwise expressly conditioned, as in the case of
age and residence -- should thus be possessed
when the "elective [or elected] official" begins to
govern, i.e., at the time he is proclaimed and at
the start of his term -- in this case, on June 30,
1995. Paraphrasing this Court's ruling in Vasquez
vs. Giap and Li Seng Giap & Sons, if the purpose
of the citizenship requirement is to ensure that
our people and country do not end up being
governed by aliens, i.e., persons owing
allegiance to another nation, that aim or purpose
would not be thwarted but instead achieved by
construing the citizenship qualification as
applying to the time of proclamation of the
elected official and at the start of his term.

ii. Registered voter in the locality/district where he intends to be

elected

iii. Resident in the locality/district where he intends to be

elected at least 1 year immediately preceding the election

Residence (refers to domicile; residence is a broader

concept than domicile because residence, as a concept,
can be permanent or temporary while domicile is
permanent, so that if it is permanent residence, then
that is domicile, and if its not permanent, then, its only
a residence temporary in character):

Generally, there are 2 kinds of domicile:

1. Domicile of origin domicile at the time

of birth which is determined by the

domicile of the parents

When is residence temporary or permanent?

Residence is temporary depending on the

purpose. Its not the length but the
purpose.

If the purpose for being there

physically is temporary, then that
place is your temporary residence.

How to determine if the purpose is

temporary?
A
purpose
is
temporary if there is a definite
beginning and a definite end,
such as studying (from enrollment
to graduation), business, exercise
of profession, working abroad
looking for greener pasture.

Note: You can have 1 permanent residence but

you can have various temporary residences, but
you can only have 1 domicile at a time, meaning,
the moment you have another, it must be
established that you have abandoned the first.
There can only be 1 domicile.

How to establish (which requires factual

considerations because intent is involved)?

2. Domicile of choice

Proof of non-abandonment of domicile:

1. Animus manendi (the intent to

live permanently) and

2.
Animus
revertendi
(the
intention to return to the domicile,
meaning, this presupposes that you
have been absent for a while)

Proof of abandonment of old domicile: am-n

1. Actual physical presence in the

new domicile

2. Animus manendi in the new

domicile, and

3.
Animus
non-revertendi
(intention not to return) to domicile
of origin

Notes:

Faypon Case out of domicile of origin to pursue

studies, engage in business, or practice vocation,
not sufficient to constitute abandonment of

domicile of origin.

Coquilla Case naturalization in foreign

country
results
in
abandonment
of
residency, not citizenship because of RA 9225

Caasi Case becoming a permanent immigrant

greencard holder to the US constitutes
abandonment of residency

Rest house is not proof of the intent to live

permanently, on the contrary, it is proof of intent
not to live permanently.

iv. Able to read and write Filipino or any local language or

dialect

v. Age: 23, 21, 18, 15-18 differs depending on the position

GALLEGO VS VERA The term residence is synonymous with domicile,

which imports not only intention to reside in a fixed place but also
personal presence in that place, coupled with conduct indicative of
such intention.

The term residence as used in the election law is synonymous

with domicile, which imports not only intention to reside in a
fixed place but also personal presence in that place, coupled
with conduct indicative of such intention.

In order to acquire a domicile by choice, there must concur

(1) residence or bodily presence in the new locality, (2) an
intention to remain there, and (3) an intention to abandon the
old domicile. In other words, there must be an animus non
revertendi and an animus manendi. The purpose to remain in or
at the domicile of choice must be for an indefinite period of
time. The acts of the person must conform with his purpose.
The change of residence must be voluntary; the residence at
the place chosen for the domicile must be actual; and to the
fact of residence there must be added the animus manendi.

The manifest intent of the law in fixing a residence qualification

is to exclude a stranger or newcomer, unacquainted with
the conditions and needs of a community and not
identified with the latter, from an elective office to serve that
community; and when the evidence on the alleged lack of
residence qualification is weak or inconclusive and it clearly
appears, as in the instant case, that the purpose of the law
would not be thwarted by upholding the right to the office, the
will of the electorate should be respected.

In the light of these principles, we are persuaded that the facts

of this case weigh heavily against the theory that the petitioner
had lost his residence or domicile in Abuyog. We believe he did
not reside in Malaybalay with the intention of remaining there
indefinitely and of not returning to Abuyog. He is a native of
Abuyog. Notwithstanding his periodic absences from there
previous to 1937, when he was employed as teacher in Samar,
Agusan, and other municipalities of Leyte, he always returned
there. In the year 1937, he resigned as a school teacher and

presented his candidacy for the office of mayor of said

municipality. His departure therefrom after his defeat in that
election was temporary, and only for the purpose of looking for
employment to make up for the financial drawback he had
suffered as a result of his defeat at the polls. After he had found
employment to Malaybalay, he did not take his wife and
children thereto notwithstanding the offer of a free house by
the government.

Petitioner is a native of Abuyog, had run for the same office of

municipal mayor of said town in the election preceding the one
in question, had only been absent therefrom for about 2 years
without losing contact with his townspeople and without the
intention of remaining and residing indefinitely in the place of
his employment; and he was elected with an overwhelming
majority of nearly 800 votes in a third-class municipality. These
considerations we cannot disregard without doing violence to
the will of the people of said town.

PAMIL VS TELERON Sec. 2175 of the RAC barring ecclesiastics from

being elected to public office is constitutional. The minority votes of 5
members of the SC prevailed over the insufficient 7 votes, as a
requirement to declare the law unconstitutional is 8 votes.

In 1971, Fr. Margarito Gonzaga, a priest, won the election for

mayoralty in Albuquerque, Bohol. He was also proclaimed as a
mayor therein. Pamil, a rival candidate file a quo warranto case
against Gonzaga questioning the eligibility of Gonzaga. He
argued that as provided for in the Revised Administrative Code;
in no case shall there be elected or appointed to a municipal
office ecclesiastics, soldiers in active service, persons receiving
salaries or compensation from provincial or national funds, or
contractors for public works of the municipality. In this case,
the elected mayor is a priest. However, Judge Teleron ruled that
the Administrative Code is repealed by the Election Code of
1971 which allowed the prohibitions of the revised
administrative code.

ISSUE: Whether or not the Revised Administrative Code is no

longer operative?

HELD: Decision is indecisive, the said law, in the

deliberations of the court, failed to obtain the majority vote
of eight (8) which is needed in order for this law to be binding
upon the parties in this case. For this, the petition must be
granted and the decision of the lower court reversed
and set aside. Fr. Gonzaga is hereby ordered to vacate
the mayoralty position. It is also pointed out that how can
one who swore to serve the Churchs interest above all be in
duty to enforce state policies which at times may conflict with
church tenets. This is in violation of the separation of the
church and state. The Revised Administrative Code still
stands because there is no implied repeal.

An ecclesiastic elected to a public office could find it difficult to

reconcile his duty to his church with his public duty an that it
was for this purpose that the ineligibility of ecclesiastics to hold

municipal offices is provided for in the RAC. Furthermore, the

payment of salary to an ecclesiastic elected as mayor
contravenes the constitutional prohibition against the use of
public funds for the benefit of priest and other religious
dignitaries.

FAYPON VS QUIRINO The mere absence from ones residence or origin

domicile to pursue studies, engage in business, or practice his
vocation, is not sufficient to constitute abandonment or loss of such
residence. A previous registration as voter in a municipality other than
that in which he is elected is not sufficient to constitute abandonment
or loss of his residence or origin.

Facts: The respondent was proclaimed by the provincial board

of canvassers elected to the office of Provincial Governor of
Ilocos Sur. He was born in Caoayan, Ilocos Sur in 1895; came to
Manila to pursue his studies; went to the US for the same
purpose; returned to the Philippines in 1923; lectured in the UP;
and engaged in newspaper work in Manila, Iloilo and later on
again in Manila. The crucial and pivotal point upon which the
eligibility of respondent to office is assailed, is his registration
as voter in Pasay City in 1946 and 1947.

Held: Mere absence from one's residence of origin domicile

to pursue studies, engage in business, or practice his avocation,
is not sufficient to constitute abandonment or loss of such
residence. The determination of a person's legal residence or
domicile largely depends upon intention which may be inferred
from his acts, activities and utterances. The party who claims
that a person has abandoned or lost his residence of origin
must show and prove preponderantly such abandonment or
loss. A previous registration as voter in a municipality other
than that in which he is elected is not sufficient to constitute
abandonment or loss of his residence of origin.

A citizen may leave the place of his birth to look for greener
pastures, as the saying goes, to improve his lot, and that, of
course includes study in other places, practice of his avocation,
or engaging in business. When an election is to be held, the
citizen who left his birthplace to improve his lot may desire to
return to his native town to cast his ballot, but for professional
or business reasons, or for any other reason, he may not absent
himself from the place of his professional or business activities;
so there he registers as voter as he has the qualifications to be
one and it not willing to give up or lose the opportunity to
choose the officials who are to run the government especially in
national elections. Despite such registration, the animus
revertendi to his home, to his domicile or residence of origin,
has not forsaken him. This may be the explanation why the
registration of a voter in a place other than his residence of
origin has not been deemed sufficient to constitute
abandonment or loss of such residence. It finds justification in
the natural desire and longing of every person to return to the
place of his birth. This strong feeling of attachment to the place
of ones birth must be overcome by positive proof of
abandonment for another.

TORAYNO VS COMELEC Private respondent was actually and

physically residing in CDO City while discharging his duties as governor
of Misamis Oriental. He owned a house in the city and resided there
together with his family. He even paid his 1998 community tax and
registered as a voter therein. To all intents and purposes of the consti
and the law, he is a resident of CDO City and eligible to run for mayor
thereof.

In requiring candidates to have a minimum period of residence

in the area in which they seek to be elected, the Constitution or
the law intends to prevent the possibility of a stranger or
newcomer unacquainted with the conditions and needs of a
community and not identified with the latter from an elective
office to serve that community. Such provision is aimed at
excluding outsiders from taking advantage of favorable
circumstances existing in that community for electoral gain.
Establishing residence in a community merely to meet an
election law requirement defeats the purpose of representation:
to elect through the assent of voters those most cognizant and
sensitive to the needs of the community. The purpose is best
met by individuals who have either had actual residence in the
area for a given period or who have been domiciled in the same
area either by origin or by choice.

We stress that the residence requirement is rooted in

the desire that officials of districts or localities be
acquainted not only with the metes and bounds of their
constituencies,
but
more
important,
with
the
constituencies themselves their needs, difficulties,
aspirations, potentials for growth and development and all
matters vital to their common welfare. The requisite period
would give candidates the opportunity to be familiar with their
desired constituencies and likewise for the electorate to
evaluate the former's qualifications and fitness for the offices
they seek. In other words, the actual, physical and personal
presence of herein private respondent in CDO City is substantial
enough to show his intention to fulfill the duties of mayor and
for the voters to evaluate his qualifications for the mayorship.
Petitioner's very legalistic, academic, and technical approach to
the residence requirement does not satisfy the simple, practical
and common-sense rationale for the residence requirement.

The pertinent provision sought to be enforced is Section 39 of

the Local Government Code (LGC) of 1991, which provides for
the qualifications of local elective officials.

TAhe Comelec found that private respondent and his family had
actually been residing in Capistrano Subdivision, Gusa, Cagayan
de Oro City, in a house he had bought in 1973. Furthermore,
during the three terms (1988-1998) that he was governor of
Misamis Oriental, he physically lived in that city, where the seat
of the provincial government was located. In June 1997, he also
registered as voter of the same city. Based on our ruling in
Mamba-Perez, these facts indubitably prove that Vicente Y.
Emano was a resident of Cagayan de Oro City for a period of
time sufficient to qualify him to run for public office therein.

Moreover, the Comelec did not find any bad faith on the part of
Emano in his choice of residence.

Undeniably, Cagayan de Oro City was once an integral part of

Misamis Oriental and remains a geographical part of the
province. Not only is it at the center of the province; more
important, it is itself the seat of the provincial government. As
a consequence, the provincial officials who carry out their
functions in the city cannot avoid residing therein; much less,
getting acquainted with its concerns and interests. Vicente Y.
Emano, having been the governor of Misamis Oriental for three
terms and consequently residing in Cagayan de Oro City within
that period, could not be said to be a stranger or newcomer to
the city in the last year of his third term, when he decided to
adopt it as his permanent place of residence.

To all intents and purposes of the Constitution and the law, he is

a resident of Cagayan de Oro City and eligible to run for mayor
thereof.

There is no question that private respondent was the

overwhelming choice of the people of Cagayan de Oro City. He
won by a margin of about 30,000 votes. Thus, we find it apt to
reiterate the principle that the manifest will of the people as
expressed through the ballot must be given fullest effect.

COQUILLA VS COMELEC Petitioner lost his domicile of origin in Oras

by becoming a U.S. citizen after enlisting in the U.S. Navy in 1965.
From then on and until Nov. 10, 2000, when he reacquired Philippine
citizenship, petitioner was an alien without any right to reside in the
Phils., save as our immigration laws may have allowed him to stay as a
visitor or as a resident alien.

The term "residence" is to be understood not in its common

acceptation as referring to "dwelling" or "habitation,"21 but
rather to "domicile" or legal residence, that is, "the place
where a party actually or constructively has his
permanent home, where he, no matter where he may be
found at any given time, eventually intends to return
and remain (animus manendi)." A domicile of origin is
acquired by every person at birth. It is usually the place where
the childs parents reside and continues until the same is
abandoned by acquisition of new domicile (domicile of choice).

Petitioner lost his domicile of origin in Oras by becoming a U.S.

citizen after enlisting in the U.S. Navy in 1965. From then on
and until November 10, 2000, when he reacquired Philippine
citizenship, petitioner was an alien without any right to reside in
the Philippines save as our immigration laws may have allowed
him to stay as a visitor or as a resident alien.

Indeed, residence in the United States is a requirement for

naturalization as a U.S. citizen.

In Caasi v. Court of Appeals, this Court ruled that immigration to

the United States by virtue of a "greencard," which entitles one
to reside permanently in that country, constitutes abandonment
of domicile in the Philippines. With more reason then does

naturalization in a foreign country result in an abandonment of

domicile in the Philippines.

By having been naturalized abroad, he lost his

Philippine citizenship and with it his residence in the
Philippines. Until his reacquisition of Philippine citizenship on
November 10, 2000, petitioner did not reacquire his legal
residence in this country.

Second, it is not true, as petitioner contends, that he

reestablished residence in this country in 1998 when he came
back to prepare for the mayoralty elections of Oras by securing
a Community Tax Certificate in that year and by "constantly
declaring" to his townmates of his intention to seek repatriation
and run for mayor in the May 14, 2001 elections. The status of
being an alien and a non-resident can be waived either
separately, when one acquires the status of a resident alien
before acquiring Philippine citizenship, or at the same time
when one acquires Philippine citizenship. As an alien, an
individual may obtain an immigrant visa under 13 of the
Philippine Immigration Act of 1948 and an Immigrant Certificate
of Residence (ICR) and thus waive his status as a non-resident.
On the other hand, he may acquire Philippine citizenship by
naturalization under C.A. No. 473, as amended, or, if he is a
former Philippine national, he may reacquire Philippine
citizenship by repatriation or by an act of Congress, in which
case he waives not only his status as an alien but also his
status as a non-resident alien.

In the case at bar, the only evidence of petitioners status when

he entered the country on October 15, 1998, December 20,
1998, October 16, 1999, and June 23, 2000 is the statement
"Philippine Immigration [] Balikbayan" in his 1998-2008 U.S.
passport. As for his entry on August 5, 2000, the stamp bore
the added inscription "good for one year stay." Under 2 of R.A.
No. 6768 (An Act Instituting a Balikbayan Program), the term
balikbayan includes a former Filipino citizen who had been
naturalized in a foreign country and comes or returns to the
Philippines and, if so, he is entitled, among others, to a "visafree entry to the Philippines for a period of one (1) year" (3(c)).
It would appear then that when petitioner entered the country
on the dates in question, he did so as a visa-free balikbayan
visitor whose stay as such was valid for one year only. Hence,
petitioner can only be held to have waived his status as an alien
and as a non-resident only on November 10, 2000 upon taking
his oath as a citizen of the Philippines under R.A. No. 8171. He
lacked the requisite residency to qualify him for the
mayorship of Oras, Eastern, Samar.

Nor can petitioner invoke this Courts ruling in Bengzon III v.

House of Representatives Electoral Tribunal. What the Court
held in that case was that, upon repatriation, a former naturalborn Filipino is deemed to have recovered his original status as
a natural-born citizen.

In the case at bar, what is involved is a false statement

concerning a candidates qualification for an office for which he

filed the certificate of candidacy. This is a misrepresentation of
a material fact justifying the cancellation of petitioners
certificate of candidacy. The cancellation of petitioners
certificate of candidacy in this case is thus fully justified.

MITRA VS COMELEC

The minimum requirement under our Constitution and election

laws for the candidates residency in the political unit they seek
to represent has never been intended to be an empty
formalistic condition; it carries with it a very specific purpose: to
prevent "strangers or newcomers unacquainted with the
conditions and needs of a community" from seeking elective
offices in that community.

The requirement is rooted in the recognition that officials of

districts or localities should not only be acquainted with the
metes and bounds of their constituencies; more importantly,
they should know their constituencies and the unique
circumstances of their constituents their needs, difficulties,
aspirations, potentials for growth and development, and all
matters vital to their common welfare. Familiarity, or the
opportunity to be familiar, with these circumstances can only
come with residency in the constituency to be represented.

The purpose of the residency requirement is "best met by

individuals who have either had actual residence in the area for
a given period or who have been domiciled in the same area
either by origin or by choice." At the same time, the
constituents themselves can best know and evaluate the
candidates qualifications and fitness for office if these
candidates have lived among them.

Read and understood in this manner, residency can readily be

appreciated as a requirement that goes into the heart of our
democratic system; it directly supports the purpose of
representation electing those who can best serve the
community because of their knowledgeand sensitivity to
its needs. It likewise adds meaning and substance to the
voters freedom of choice in the electoral exercise that
characterizes every democracy.

xxx By law, this residency can be anywhere within the Province

of Palawan, except for Puerto Princesa City because of its
reclassification as a highly urbanized city. Thus, residency in
Aborlan is completely consistent with the purpose of the
law, as Mitra thereby declared and proved his required
physical presence in the Province of Palawan.

We also consider that even before his transfer of residence, he

already had intimate knowledge of the Province of Palawan,
particularly of the whole 2nd legislative district that he
represented for three terms. For that matter, even the
respondents themselves impliedly acknowledged that the
Mitras, as a family, have been identified with elective public
service and politics in the Province of Palawan. This means to

us that Mitra grew up in the politics of Palawan.

We can reasonably conclude from all these that Mitra is not

oblivious to the needs, difficulties, aspirations, potential for
growth and development, and all matters vital to the common
welfare of the constituency he intends to serve. Mitra who is no
stranger to Palawan has merely been compelled after serving
three terms as representative of the congressional district that
includes Puerto Princesa City and Aborlan by legal
developments to transfer his residence to Aborlan to qualify as
a Province of Palawan voter. To put it differently, were it not for
the reclassification of Puerto Princesa City from a component
city to a highly urbanized city, Mitra would not have
encountered any legal obstacle to his intended gubernatorial
bid based on his knowledge of and sensitivity to the needs of
the Palawan electorate.

2. Disqualifications

Section 40. Disqualifications. - The following persons are disqualified

from running for any elective local position:

(a) Those sentenced by final judgment for an offense

involving moral turpitude or for an offense punishable by
one (1) year or more of imprisonment, within two (2) years
after serving sentence;

(b) Those removed

administrative case;

(c) Those convicted by final judgment for violating the

oath of allegiance to the Republic;

(d) Those with dual citizenship;

(e) Fugitives from justice in criminal or non-political

cases here or abroad;

(f) Permanent residents in a foreign country or those who

have acquired the right to reside abroad and continue to avail
of the same right after the effectivity of this Code; and

(g) The insane or feeble-minded.

from

office

as

result

of

an

Disqualifications:

i. Sentenced by final judgment for (1) offense involving moral

turpitude or (2) offense punishable by 1 year or more of
imprisonment, within 2 years after service of sentence.

offense involving moral turpitude dont look at the

term of imprisonment. Its the nature of the offense
that matters.

offense punishable by 1 year or more of imprisonment

nature of the offense doesnt matter because its the
term of imprisonment that counts

within 2 years after service of sentence not

perpetual disqualification; applies to both offense

involving moral turpitude and offense punishable by 1

year or more of imprisonment

Meaning of moral turpitude

Whether it is malum prohibitum or malum in se

(not the test)

Moral turpitude has been defined as everything

which is done contrary to justice, modesty,
or good morals; an act of baseness, vileness
or depravity in the private and social duties
which a man owes his fellowmen, or to
society in general.

Examples of moral turpitude crimes:

Violation of BP 22

Violation of Anti-Fencing law

Within 2 years from service

The phrase "within two (2) years after serving

sentence" should have been interpreted and
understood to apply both to those who have
been sentenced by final judgment for an
offense involving moral turpitude and to
those who have been sentenced by final
judgment for an offense punishable by one
(1) year or more of imprisonment. The
placing of the comma (,) in the provision means
that the phrase modifies both parts of Sec. 40(a)
of the Local Government Code.

ii. Removed from office as a result of administrative case

Prospective application, thus, only applicable to those

persons removed from office as a result of an
administrative case during the effectivity of the LGC of
1991, meaning if removed from office as a result of
an administrative case before the LGC of 1991, its
not a ground for disqualification.

Any office whether removed from an office held

as an elective or appointive official because whats
important is youve been removed as a result of an
administrative case

Iii. Convicted by final judgment for violating the oath of

allegiance to the Republic;

Examples: Crimes of treason, espionage

Iv. Those with dual citizenship

v. Fugitives from justice in criminal or non-political crimes here

or abroad

Thus, fugitive from justice in political crimes is not

a disqualification because if you are a fugitive from
justice in political crimes, the right to asylum is even a

customary international norm, thus, you cant be

penalized like making it as a ground for disqualification if
you flee by reason of political persecution.

a. Flee to avoid prosecution

b. Flee to evade punishment

This includes fugitives from prosecution those who

flee after the charge to avoid prosecution, which
involves a question of intent

because qualifications are continuing. The moment you

lose one, you become disqualified.

vii. The insane and the feeble-minded.

Additional disqualifications:

Viii. Any elective official who has resigned from his office by
accepting an appointive office or for whatever reason which
he previously occupied but has caused to become vacant due to
his resignation; and

Ix. Any person who, directly or indirectly, coerces, bribes,

threatens, harasses, intimidates or actually causes, inflicts or
produces any violence, injury, punishment, torture, damage,
loss or disadvantage to any person or persons aspiring to
become a candidate or that of the immediate member of his
family, his honor or property that is meant to eliminate all other
potential candidate.

Additional disqualifications:

Sec. 12, Omnibus Election Code insane, incompetents, guilty

of acts of disloyalty to the government, etc

Sec. 68, Omnibus Election Code vote buying, acts of terrorism,

and other election offenses

Sec. 69, Omnibus Election Code Nuisance candidate

HANRIEDER VS DE RIVERA

vi. Permanent Residents in foreign country or those who have

acquired the right to reside abroad and continue to avail of the
same right after the effectivity of this Code

Fugitive from justice can be interpreted in 2 ways:

The Administrative Code of 1987 provides that conviction of a

crime involving moral turpitude is a ground for disciplinary
action. The Omnibus Civil Service Rules and Regulations
provides that conviction of a crime involving moral turpitude is
a grave offense and upon the first offense, the penalty of
dismissal must be meted out. This Court has characterized the
violation of B.P. 22 as a crime involving moral turpitude.

DE LA TORRE VS COMELEC

Anent the second issue where petitioner contends that his

probation had the effect of suspending the applicability of
Section 40 (a) of the Local Government Code, suffice it to say

that the legal effect of probation is only to suspend the

execution of the sentence. Petitioner's conviction of
fencing which we have heretofore declared as a crime of
moral turpitude and thus falling squarely under the
disqualification found in Section 40 (a), subsists and
remains totally unaffected notwithstanding the grant of
probation. In fact, a judgment of conviction in a criminal
case ipso facto attains finality when the accused applies
for probation, although it is not executory pending
resolution of the application for probation.

EDGAR TEVES VS COMELEC

Hence, it behooves the Court to resolve the issue of whether or

not petitioner's violation of Section 3(h) of RA 3019 involves
moral turpitude.

Moral Turpitude has been defined as everything which is

done contrary to justice, modesty, or good morals; an
act of baseness, vileness or depravity in the private and
social duties which a man owes his fellowmen or to
society, in general.

Conviction under he second mode (Section 3(h) RA 3019) does

not automatically mean that the same involved moral turpitude.
A determination of all surrounding circumstances of the
violation of the statute must be considered. Besides, moral
turpitude does not include such acts as are not of themselves
immoral but whose illegality lies in their being positively
prohibited, as in the instant case.

Not every criminal act, however, involves moral turpitude. It is

for this reason that "as to what crime involves moral
turpitude, is for the Supreme Court to determine." In
resolving the foregoing question, the Court is guided by
some rules/guidelines.

It cannot always be ascertained whether moral turpitude does

or does not exist by merely classifying a crime as malum in se
or as malum prohibitum. There are crimes which are mala in se
and yet but rarely involve moral turpitude and there are crimes
which involve moral turpitude and are mala prohibita only. In
the final analysis, whether or not a crime involves moral
turpitude is ultimately a question of fact and frequently
depends on all the circumstances surrounding the
violation of the statute.

Applying the foregoing guidelines, we examined all the

circumstances surrounding petitioners conviction and found
that the same does not involve moral turpitude.

First, there is neither merit nor factual basis in COMELECs

finding that petitioner used his official capacity in connection
with his interest in the cockpit and that he hid the same by
transferring the management to his wife, in violation of the
trust reposed on him by the people.

The Sandiganbayan found that the charge against Mayor Teves

for causing the issuance of the business permit or license to

operate the Valencia Cockpit and Recreation Center is "not wellfounded." This it based, and rightly so, on the additional finding
that only the Sangguniang Bayan could have issued a permit to
operate the Valencia Cockpit in the year 1992. Indeed, under
Section 447(3) of the LGC of 1991, which took effect on 1
January 1992, it is the Sangguniang Bayan that has the
authority to issue a license for the establishment, operation,
and maintenance of cockpits. Unlike in the old LGC, Batas
Pambansa Blg. 337, wherein the municipal mayor was the
presiding officer of the Sangguniang Bayan, under the LGC of
1991, the mayor is not so anymore and is not even a member
of the Sangguniang Bayan. Hence, Mayor Teves could not have
intervened or taken part in his official capacity in the issuance
of a cockpit license during the material time, as alleged in the
information, because he was not a member of the Sangguniang
Bayan.

GREGO VS COMELEC Sec. 40(b) of the LGC has no retroactive

effect and therefore, disqualifies only those administratively
removed from office after Jan. 1, 1991 when the LGC took
effect.

Thus, petitioner, as then Mayor of Valencia, did not use his

influence, authority or power to gain such pecuniary or financial
interest in the cockpit. Neither did he intentionally hide his
interest in the subject cockpit by transferring the management
thereof to his wife considering that the said transfer occurred
before the effectivity of the present LGC prohibiting possession
of such interest.

In this regard, petitioner submits that although the Code took

effect only on January 1, 1992. Section 40(b) must nonetheless
be given retroactive effect and applied to Basco's dismissal
from office which took place in 1981. It is stressed that the
provision of the law as worded does not mention or even qualify
the date of removal from office of the candidate in order for
disqualification thereunder to attach. Hence, petitioner
impresses upon the Court that as long as a candidate was
removed from office due to an administrative case, regardless
of whether it took place during or prior to the effectivity of the
code, the disqualification applies. To him, this interpretation is
made more evident by the manner in which the provisions of
Section 40 are couched. Since the past tense is used in
enumerating the grounds for disqualification, petitioner strongly
contends that the provision must have also referred to removal
from office occurring prior to the effectivity of the Code. We do
not, however, subscribe to petitioner's view. Our refusal to give
retroactive application to the provision of Section 40(b) is
already a settled issue and there exists no compelling reason
for us to depart therefrom.

MARQUEZ VS COMELEC The term fugitive from justice which,

under the IRR of the LGC, refers only to a person who has been
convicted of final judgment is an inordinate and undue
circumscription of the law.

The core issue of which, such as to be expected, focuses on

whether private respondent who, at the time of the filing of his
certificate of candidacy (and to date), is said to be facing a
criminal charge before a foreign court and evading a warrant
for his arrest comes within the term "fugitive from justice"
contemplated by Section 40(e) of the Local Government Code
and, therefore, disqualified from being a candidate for, and
thereby ineligible from holding on to, an elective local office.

Petitioner's position is perspicuous and to the point. The law, he

asseverates, needs no further interpretation and construction.
Section 40(e) of Republic Act No. 7160, is rather clear, he
submits, and it disqualifies "fugitive from justice" includes not
only those who flee after conviction to avoid punishment but
likewise those who, after being charged flee to avoid
prosecution. This definition truly finds support from
jurisprudenceand it may be so conceded as expressing the
general and ordinary connotation of the term.

The Court believes and thus holds that Article 73 of the Rules
and Regulations Implementing the Local Government Code of
1991, to the extent that it confines the term "fugitive from
justice" to refer only to a person (the fugitive) "who has been
convicted by final judgment." is an inordinate and undue
circumscription of the law.

Unfortunately, the COMELEC did not make any definite finding

on whether or not, in fact, private respondent is a "fugitive from
justice" as such term must be interpreted and applied in the
light of the Court's opinion. The omission is understandable
since the COMELEC dismissed outrightly the petition for quo
warranto on the basis instead of Rule 73 of the Rules and
Regulations promulgated by the Oversight Committee. The
Court itself, not being a trier of facts, is thus constrained to
remand the case to the COMELEC for a determination of this
unresolved factual matter.

RODRIGUEZ VS COMELEC Definition of fugitive from justice indicates

that the intent to evade is the compelling factor that animates ones
flight from a particular jurisdiction. Not the case at bar.

The term "fugitive from justice" as a ground for the

disqualification or ineligibility of a person seeking to run for any
elective local petition under Section 40(e) of the Local
Government Code, should be understood according to the
definition given in the MARQUEZ Decision, to wit:

A "fugitive from justice" includes not only those

who flee after conviction to avoid punishment but
likewise those who, after being charged, flee to
avoid prosecution.

The definition thus indicates that the intent to evade is the

compelling factor that animates one's flight from a particular
jurisdiction. And obviously, there can only be an intent to evade
prosecution or punishment when there is knowledge by the
fleeing subject of an already instituted indictment, or of a

promulgated judgment of conviction.

Rodriguez' case just cannot fit in this concept. There is no

dispute that his arrival in the Philippines from the US on June
25, 1985, as per certifications issued by the Bureau of
Immigrations dated April 27 and June 26 of 1995, preceded the
filing of the felony complaint in the Los Angeles Court on
November 12, 1985 and of the issuance on even date of the
arrest warrant by the same foreign court, by almost five (5)
months. It was clearly impossible for Rodriguez to have
known about such felony complaint and arrest warrant
at the time he left the US, as there was in fact no
complaint and arrest warrant much less conviction
to speak of yet at such time. What prosecution or
punishment then was Rodriguez deliberately running away from
with his departure from the US? The very essence of being a
"fugitive from justice" under the MARQUEZ Decision definition,
is just nowhere to be found in the circumstances of Rodriguez.

Intent to evade on the part of a candidate must

therefore be established by proof that there has already
been a conviction or at least, a charge has already been
filed, at the time of flight. Not being a "fugitive from justice"
under this definition, Rodriguez cannot be denied the Quezon
Province gubernatorial post.

MERCADO VS MANZANO - For candidates for local elective office with

dual citizenship, it should suffice if, upon the filing of their
certificates of candidacy, they elect Philippine citizenship to
terminate their status as persons with dual citizenship.

The disqualification of private respondent Manzano is being

sought under 40 of the Local Government Code of 1991 (R.A.
No. 7160), which declares as "disqualified from running for any
elective local position: . . . (d) Those with dual citizenship." This
provision is incorporated in the Charter of the City of Makati.

To begin with, dual citizenship is different from dual allegiance.

The former arises when, as a result of the concurrent
application of the different laws of two or more states, a person
is simultaneously considered a national by the said states. 9 For
instance, such a situation may arise when a person whose
parents are citizens of a state which adheres to the principle of
jus sanguinis is born in a state which follows the doctrine of jus
soli. Such a person, ipso facto and without any voluntary act on
his part, is concurrently considered a citizen of both states.
Considering the citizenship clause (Art. IV) of our Constitution, it
is possible for the following classes of citizens of the Philippines
to possess dual citizenship:

(1) Those born of Filipino fathers and/or mothers in

foreign countries which follow the principle of jus soli;

(2) Those born in the Philippines of Filipino mothers and

alien fathers if by the laws of their father's' country such
children are citizens of that country;

(3) Those who marry aliens if by the laws of the latter's

country the former are considered citizens, unless by

their act or omission they are deemed to have
renounced Philippine citizenship.

There may be other situations in which a citizen of the

Philippines may, without performing any act, be also a citizen of
another state; but the above cases are clearly possible given
the constitutional provisions on citizenship.

Dual allegiance, on the other hand, refers to the situation in

which a person simultaneously owes, by some positive
act, loyalty to two or more states. While dual citizenship is
involuntary, dual allegiance is the result of an individual's
volition.

The phrase "dual citizenship" in R.A. No. 7160, 40(d) and in

R.A. No. 7854, 20 must be understood as referring to "dual
allegiance." Consequently, persons with mere dual citizenship
do not fall under this disqualification. Unlike those with dual
allegiance, who must, therefore, be subject to strict process
with respect to the termination of their status, for candidates
with dual citizenship, it should suffice if, upon the filing of their
certificates of candidacy, they elect Philippine citizenship to
terminate their status as persons with dual citizenship
considering that their condition is the unavoidable consequence
of conflicting laws of different states.

By electing Philippine citizenship, such candidates at the same

time forswear allegiance to the other country of which they are
also citizens and thereby terminate their status as dual citizens.
It may be that, from the point of view of the foreign state and of
its laws, such an individual has not effectively renounced his
foreign citizenship.

The record shows that private respondent was born in San

Francisco, California on September 4, 1955, of Filipino parents.
Since the Philippines adheres to the principle of jus sanguinis,
while the United States follows the doctrine of jus soli, the
parties agree that, at birth at least, he was a national both of
the Philippines and of the United States.

By declaring in his certificate of candidacy that he is a Filipino

citizen; that he is not a permanent resident or immigrant of
another country; that he will defend and support the
Constitution of the Philippines and bear true faith and
allegiance thereto and that he does so without mental
reservation, private respondent has, as far as the laws of
this country are concerned, effectively repudiated his
American citizenship and anything which he may have
said before as a dual citizen.

On the other hand, private respondent's oath of allegiance to

the Philippines, when considered with the fact that he has spent
his youth and adulthood, received his education, practiced his
profession as an artist, and taken part in past elections in this
country, leaves no doubt of his election of Philippine citizenship.

CORDORA VS COMELEC

Tambuntings Dual Citizenship Tambunting does not deny that

he is born of a Filipino mother and an American father. Neither
does he deny that he underwent the process involved in INS
Form I-130 (Petition for Relative) because of his fathers
citizenship. Tambunting claims that because of his parents
differing citizenships, he is both Filipino and American by birth.
Cordora, on the other hand, insists that Tambunting is a
naturalized American citizen.

We agree with Commissioner Sarmientos observation that

Tambunting possesses dual citizenship. Because of the
circumstances of his birth, it was no longer necessary
for Tambunting to undergo the naturalization process to
acquire American citizenship. The process involved in
INS Form I-130 only served to confirm the American
citizenship which Tambunting acquired at birth. The
certification from the Bureau of Immigration which Cordora
presented contained two trips where Tambunting claimed that
he is an American. However, the same certification showed nine
other trips where Tambunting claimed that he is Filipino.
Clearly, Tambunting possessed dual citizenship prior to the
filing of his certificate of candidacy before the 2001 elections.
The fact that Tambunting had dual citizenship did not disqualify
him from running for public office.

Tambuntings
residency

Cordora
concluded
that
Tambunting failed to meet the residency requirement
because of Tambuntings naturalization as an American.
Cordoras reasoning fails because Tambunting is not a
naturalized American. Moreover, residency, for the
purpose of election laws, includes the twin elements of
the fact of residing in a fixed place and the intention to
return there permanently, and is not dependent upon
citizenship.

In view of the above, we hold that Cordora failed to establish

that Tambunting indeed willfully made false entries in his
certificates of candidacy. On the contrary, Tambunting
sufficiently proved his innocence of the charge filed against
him. Tambunting is eligible for the office which he sought to be
elected and fulfilled the citizenship and residency requirements
prescribed by law.

OSARIO VS COMELEC

The present special civil action for certiorari, prohibition and

mandamus impugns the March 30, 2004 resolution of the
Commission on Elections (COMELEC) En Banc, in SPA-02-162
(BRGY), which in turn denied petitioner's motion for
reconsideration of an earlier resolution rendered by the
COMELEC's First Division on August 23, 2002. The latter
granted private respondent's petition for disqualification of
petitioner in the July 15, 2002 barangay elections.

The undisputed facts follow.Petitioner and private respondents

were both candidates for the position of Barangay Chairman in
the 2002 barangay elections.

Private respondent filed a disqualification case against

petitioner on the ground that the latter was found guilty of
dishonesty by the Civil Service Commission (CSC) while holding
public office. Said CSC decision was final and executory.

Petitioner won the barangay election by 21 votes. However, on

August 23, 2002, the COMELEC First Division released its
resolution declaring petitioner disqualified to run for any public
elective position:

After considering all the documentary evidences (sic) on

hand, WE find the petition to be meritorious. The
Respondent was found guilty of dishonesty in a decision
of the Civil Service Commission under its CSC Resolution
No. 981985 dated 22 July 1998. Said decision was later
affirmed under CSC Resolution 990564 dated 15 March
1999. The failure of the Respondent to elevate this case
to the Supreme Court or to the Court of Appeals makes
the decision of the Civil Service Commission final and
executory. Since the penalty imposed upon herein
Respondent include[d] dismissal from service as a result
of that administrative Case, WE find the Respondent to
have violated COMELEC Resolution No. 4801 Section
3(b) in relation to Section 40(b) of the Local Government
Code and thus, disqualified to be a candidate in the 15
July [2002] Barangay Elections.

On September 9, 2002, the COMELEC En Banc denied the

motion for reconsideration.

Thus, the present petition.

Petitioner insists that the word "office" in Section 40(b)

of the 1991 Local Government Code refers exclusively to
an elective office.

We disagree.

Petitioner's cause for disqualification is provided in Section 3(b)

of COMELEC resolution 4801 promulgated on May 23, 2002:

Section 3. Disqualifications. - The following are

disqualified from running for any elective barangay and
sangguniang kabataan positions:

(b) Those removed from office as a result of an

administrative case.

in relation to Section 40(b) of the Local Government Code:

(b) Those removed from office as a result of an

administrative case.

The above-stated provisions state "removed from office"

without any qualification. It is a cardinal rule in
statutory construction that when the law does not
distinguish, we must not distinguish, in accordance with
the maxim ubi lex non distinguit nec nos distinguere debemus.

WHEREFORE, the petition is hereby DISMISSED.

MORENO VS COMELEC

We should mention at this juncture that there is no need to rule

on whether Arbitrary Detention, the crime of which Moreno was
convicted by final judgment, involves moral turpitude falling
under the first part of the above-quoted provision. The question
of whether Arbitrary Detention is a crime involving moral
turpitude was never raised in the petition for disqualification
because the ground relied upon by Mejes, and which the
Comelec used in its assailed resolutions, is his alleged
disqualification from running for a local elective office within
two (2) years from his discharge from probation after having
been convicted by final judgment for an offense punishable by
Four (4) Months and One (1) Day to Two (2) Years and Four (4)
Months. Besides, a determination that the crime of
Arbitrary Detention involves moral turpitude is not
decisive of this case, the crucial issue being whether
Morenos sentence was in fact served. In this sense, Dela
Torre v. Comelec is not squarely applicable. Our pronouncement
therein that the grant of probation does not affect the
disqualification under Sec. 40(a) of the Local Government Code
was based primarily on the finding that the crime of fencing of
which petitioner was convicted involves moral turpitude, a
circumstance which does not obtain in this case. At any rate,
the phrase "within two (2) years after serving sentence"
should have been interpreted and understood to apply
both to those who have been sentenced by final
judgment for an offense involving moral turpitude and
to those who have been sentenced by final judgment for
an offense punishable by one (1) year or more of
imprisonment. The placing of the comma (,) in the
provision means that the phrase modifies both parts of
Sec. 40(a) of the Local Government Code.

Sec. 40(a) of the Local Government Code appears innocuous

enough at first glance. The phrase "service of sentence,"
understood in itsgeneral and common sense, means the
confinement of a convicted person in a penal facility for the
period adjudged by the court. 10 This seemingly clear and
unambiguous provision, however, has spawned a controversy
worthy of this Courts attention because the Comelec, in the
assailed resolutions, is alleged to have broadened the coverage
of the law to include even those who did not serve a day of
their sentence because they were granted probation. Moreno
argues, quite persuasively, that he should not have been
disqualified because hedid not serve the adjudged sentence
having been granted probation and finally discharged by the
trial court.

In Baclayon v. Mutia, the Court declared that an order placing

defendant on probation is not a sentence but is rather, in effect,
a suspension of the imposition of sentence. We held that
the grant of probation to petitioner suspended the imposition of
the principal penalty of imprisonment, as well as the accessory
penalties of suspension from public office and from the right to

follow a profession or calling, and that of perpetual special

disqualification from the right of suffrage. We thus deleted from
the order granting probation the paragraph which required that
petitioner refrain from continuing with her teaching profession.
Applying this doctrine to the instant case, the accessory
penalties of suspension from public office, from the right to
follow a profession or calling, and that of perpetual special
disqualification from the right of suffrage, attendant to the
penalty of arresto mayor in its maximum period to prision
correccional in its minimum period imposed upon Moreno were
similarly suspended upon the grant of probation. It appears
then that during the period of probation, the probationer is not
even disqualified from running for a public office because the
accessory penalty of suspension from public office is put on
hold for the duration of the probation.

Clearly, the period within which a person is under

probation cannot be equated with service of the
sentence adjudged. Sec. 4 of the Probation Law
specifically provides that the grant of probation
suspends the execution of the sentence. During the period
of probation, the probationer does not serve the penalty
imposed upon him by the court but is merely required to
comply with all the conditions prescribed in the probation order.

The Comelec could have correctly resolved this case by simply

applying the law to the letter. Sec. 40(a) of the Local
Government Code unequivocally disqualifies only those who
have been sentenced by final judgment for an offense
punishable by imprisonment of one (1) year or more, within two
(2) years after serving sentence. This is as good a time as
any to clarify that those who have not served their
sentence by reason of the grant of probation which, we
reiterate, should not be equated with service of
sentence, should not likewise be disqualified from
running for a local elective office because the two (2)year period of ineligibility under Sec. 40(a) of the Local
Government Code does not even begin to run.

Even assuming that there is an ambiguity in Sec. 40(a) of the

Local Government Code which gives room for judicial
interpretation, our conclusion will remain the same. It is
unfortunate that the deliberations on the Local Government
Code afford us no clue as to the intended meaning of the
phrase "service of sentence," i.e., whether the legislature also
meant to disqualify those who have been granted probation.
The Courts function, in the face of this seeming dissonance, is
to interpret and harmonize the Probation Law and the Local
Government Code. Interpretare et concordare legis legibus est
optimus interpretandi.

It is important to note that the disqualification under Sec. 40(a)

of the Local Government Code covers offenses punishable by
one (1) year or more of imprisonment, a penalty which also
covers probationable offenses. In spite of this, the provision
does not specifically disqualify probationers from running for a

local elective office. This omission is significant because it

offers a glimpse into the legislative intent to treat probationers
as a distinct class of offenders not covered by the
disqualification. Further, it should be mentioned that the
present Local Government Code was enacted in 1991, some
seven (7) years after Baclayon v. Mutia was decided. When the
legislature approved the enumerated disqualifications under
Sec. 40(a) of the Local Government Code, it is presumed to
have knowledge of our ruling in Baclayon v. Mutia on the effect
of probation on the disqualification from holding public office.
That it chose not to include probationers within the purview of
the provision is a clear expression of the legislative will not to
disqualify probationers.

Sec. 4 RA 8295 (Lone Candidate Law)

On this score, we agree with Moreno that the Probation

Law should be construed as an exception to the Local
Government Code. While the Local Government Code is a
later law which sets forth the qualifications and disqualifications
of local elective officials, the Probation Law is a special
legislation which applies only to probationers. It is a canon of
statutory construction that a later statute, general in its terms
and not expressly repealing a prior special statute, will
ordinarily not affect the special provisions of such earlier
statute.

Section 4. Disqualification. In addition to the disqualifications

mentioned in Sec.s 12 and 68 of the Omnibus Election Code and Sec.
40 of Republic Act No. 7160, otherwise known as the Local
Government Code, whenever the evidence of guilt is strong, the
following persons are disqualified to run in a special election called to
fill the vacancy in an elective office, to wit:

a) Any elective official who has resigned from his office by

accepting an appointive office or for whatever reason which he
previously occupied but has caused to become vacant due to
his resignation; and

b) Any person who, directly or indirectly, coerces, bribes,

threatens, harasses, intimidates or actually causes, inflicts or
produces any violence, injury, punishment, torture, damage,
loss or disadvantage to any person or persons aspiring to
become a candidate or that of the immediate member of his
family, his honor or property that is meant to eliminate all other
potential candidate.

3. Manner of Elections

Section 41. Manner of Election.

(a) The governor, vice-governor, city mayor, city vice-mayor, municipal

mayor, municipal vice-mayor, and punong barangay shall be elected at
large in their respective units by the qualified voters therein. However,
the sangguniang kabataan chairman for each barangay shall be
elected by the registered voters of the katipunan ng kabataan, as
provided in this Code.

(b) The regular members of the sangguniang panlalawigan,

sangguniang panlungsod, and sangguniang bayan shall be elected by
district, as may be provided for by law. Sangguniang barangay
members shall be elected at large. The presidents of the leagues
of sanggunian members of component cities and municipalities
shall serve as ex officio members of the sangguniang
panlalawigan concerned. The presidents of the "liga ng mga
barangay and the pederasyon ng mga sangguniang kabataan" elected
by their respective chapters, as provided in this Code, shall serve as ex
officio members of the sangguniang panlalawigan, sangguniang
panlungsod, and sangguniang bayan.

(c) In addition thereto, there shall be one (1) sectoral representative

from the women, one (1) from the workers, and one (1) from any of the
following sectors: the urban poor, indigenous cultural communities,
disabled persons, or any other sector as may be determined by the
sanggunian concerned within ninety (90) days prior to the
holding of the next local elections as may be provided for by law.
The COMELEC shall promulgate the rules and regulations to effectively
provide for the election of such sectoral representatives.

RA 8553

Section 1. Sec. 41(b) of Republic Act No. 7160, otherwise known

as the Local Government Code of 1991, is hereby amended to
read as follows:

"(b) The regular members of the sangguniang panlalawigan,

sangguniang panlungsod, and sangguniang bayan shall be
elected by district as follows:

"First and second-class provinces shall have ten (10)

regular members; third and fourth-class provinces, eight
(8); and fifth and sixth-class provinces, six (6): Provided,
That in provinces having more than five (5) legislative
districts, each district shall have two (2) sangguniang
panlalawigan members, without prejudice to the
provisions of Sec. 2 of Republic Act No. 6637.
Sangguniang barangay members shall be elected at
large. The presidents of the leagues of sanggunian
members of component cities and municipalities shall
serve as ex officio members of the sangguniang
panlalawigan concerned. The presidents of the liga ng
mga barangay and the pederasyon ng mga sangguniang
kabataan elected by their respective chapters, as
provided in this Code, shall serve as ex officio members
of
the
sangguniang
panlalawigan,
sangguniang
panlungsod, and sangguniang bayan."

ABELLA VS COMELEC

Abella claims that the Frivaldo and Labo cases were misapplied
by the COMELEC. According to him these cases are
fundamentally different from SPC No. 88-546 in that the
Frivaldo and Labo cases were petitions for a quo warranto filed
under section 253 of the Omnibus Code, contesting the
eligibility of the respondents after they had been proclaimed

duly elected to the Office from which they were sought to be

unseated while SPC No. 88-546 which was filed before
proclamation under section 78 of the Omnibus Election Code
sought to deny due course to Larrazabal's certificate of
candidacy for material misrepresentations and was seasonably
filed on election day. He, therefore, avers that since under
section 6 of Republic Act 6646 it is provided therein that: Any
candidate who has been declared by final judgment to be
disqualified shall not be voted for, and the votes cast for him
shall not be counted. The votes cast in favor of Larrazabal who
obtained the highest number of votes are not considered
counted making her a non-candidate, he, who obtained the
second highest number of votes should be installed as regular
Governor of Leyte in accordance with the Court's ruling in G.R.
No. 88004.

The petitioner's arguments are not persuasive. While it is true

that SPC No. 88-546 was originally a petition to deny due
course to the certificate of candidacy of Larrazabal and was
filed before Larrazabal could be proclaimed the fact remains
that the local elections of February 1, 1988 in the province of
Leyte proceeded with Larrazabal considered as a bona-fide
candidate. The voters of the province voted for her in the
sincere belief that she was a qualified candidate for the position
of governor. Her votes were counted and she obtained the
highest number of votes. The net effect is that the petitioner
lost in the election. He was repudiated by the electorate.In the
Frivaldo and Labo cases, this is precisely the reason why the
candidates who obtained the second highest number of votes
were not allowed to assume the positions vacated by Frivaldo
the governorship of Sorsogon, and Labo, the position of mayor
in Baguio City. The nature of the proceedings therefore, is
not that compelling. What matters is that in the event a
candidate for an elected position who is voted for and
who obtains the highest number of votes is disqualified
for not possessing the eligibility requirements at the
time of the election as provided by law, the candidate
who obtains the second highest number of votes for the
same position can NOT assume the vacated position.

CENIZA VS COMELEC Voters in highly urbanized cities do not

have the right to select elective provincial officials since these
provincial officials have ceased to exercise any governmental
jurisdiction and authority over said city.

Art. XI, Section 4(1) of the said Constitution places highly

urbanized cities outside the supervisory power of the province
where they are geographically located. This is as it should be
because of the complex and varied problems in a highly
urbanized city due to a bigger population and greater economic
activity which require greater autonomy. Corollary to
independence however, is the concomitant loss of the right to
participate in provincial affairs, more particularly the selection
of elective provincial officials since these provincial officials
have ceased to exercise any governmental jurisdiction and

authority over said city.

The classification of cities into highly urbanized cities and

component cities on the basis of their regular annual income is
based upon substantial distinction. The revenue of a city would
show whether or not it is capable of existence and development
as a relatively independent social, economic, and political unit.
It would also show whether the city has sufficient economic or
industrial activity as to warrant its independence from the
province where it is geographically situated. Cities with smaller
income need the continued support of the provincial
government thus justifying the continued participation of the
voters in the election of provincial officials in some instances.

The petitioners also contend that the voters in Mandaue City

are denied equal protection of the law since the voters in other
component cities are allowed to vote for provincial officials.
The contention is without merit. The practice of allowing
voters in one component city to vote for provincial
officials and denying the same privilege to voters in
another component city is a matter of legislative
discretion which violates neither the Constitution nor
the voter's right of suffrage.

The equal protection of the law contemplates equality in

the enjoyment of similar rights and privileges granted
by law. It would have been discriminatory and a denial
of the equal protection of the law if the statute
prohibited an individual or group of voters in the city
from voting for provincial officials while granting it to
another individual or groups of voters in the same city.
Neither can it be considered an infringement upon the
petitioners' rights of suffrage since the Constitution confers no
right to a voter in a city to vote for the provincial officials of the
province where the city is located. Their right is limited to the
right to vote for elective city officials in local elections which
the questioned statues neither withdraw nor restrict.

The petitioners further claim that to prohibit the voters in a city

from voting for elective provincial officials would impose a
substantial requirement on the exercise of suffrage and would
violate the sanctity of the ballot, contrary to the provisions of
Art. VI, Section 1 of the Constitution. The prohibition
contemplated in the Constitution, however, has reference to
such requirements, as the Virginia poll tax, invalidated in
Harper vs. Virginia Board of Elections, or the New York
requirement that to be eligible to vote in a school district, one
must be a parent of a child enrolled in a local public school,
nullified in Kramer vs. Union Free School District, 395 U.S. 621,
which impose burdens on the right of suffrage without
achieving permissible estate objectives. In this particular case,
no such burdens are imposed upon the voters of the cities of
Cebu and Mandaue. They are free to exercise their rights
without any other requirement, save that of being registered
voters in the cities where they reside and the sanctity of their
ballot is maintained.

4. Date of Elections

It is also contended that the prohibition would subvert the

principle of republicanism as it would deprive a citizen his right
to participate in the conduct of the affairs of the government
unit through the exercise of his right of suffrage. It has been
pointed out, however, that the provincial government has no
governmental supervision over highly urbanized cities. These
cities are independent of the province in the administration of
their affairs. Such being the case, it is but just and proper to
limit the selection and election of the provincial officials to the
voters of the province whose interests are vitally affected and
exclude therefrom the voters of highly urbanized cities.

Section 42. Date of Election. - Unless otherwise provided by law, the

elections for local officials shall be held every three (3) years on the
second Monday of May.

5. Term of Office

Sec. 8 Art. 10 consti - The term of office of elective local officials,

except barangay officials, which shall be determined by law,
shall be three years and no such official shall serve for more
than three consecutive terms. Voluntary renunciation of the
office for any length of time shall not be considered as an
interruption in the continuity of his service for the full term for
which he was elected.(Thus, involuntary relinquishment of office is
considered an interruption in the continuity of his service for the full
term for which he was elected)

RA 8524

Section 1. Sec. 43 of Republic Act No. 7160, otherwise known as

the Local Government Code of 1991, is hereby amended to
read as follows:

"Sec. 43. Term of office. (a) The term of office of all

elective officials elected after the effectivity of this Code
shall be three (3) years, starting from noon of June 30,
1992 or such date as may be provided for by law, except
that of elective barangay officials and members of the
sangguniang kabataan: Provided, That all local officials
first elected during the local elections immediately
following the ratification of the 1987 Constitution shall
serve until noon of June 30, 1992.

"(b) No local elective official shall serve for more than

three (3) consecutive terms in the same position.
Voluntary renunciation of the office for any length of
time shall not be considered as an interruption in the
continuity of service for the full term for which the
elective official concerned was elected.

"(c) The term of barangay officials and members of the

sangguniang kabataan shall be for five (5) years, which
shall begin after the regular election of barangay
officials on the second Monday of May 1997: Provided,
That the sangguniang kabataan members who were

elected in the May 1996 elections shall serve until the

next regular election of barangay officials."

RA 9164 - AN ACT PROVIDING FOR SYNCHRONIZED BARANGAY AND

SANGGUNIANG KABATAAN ELECTIONS, AMENDING REPUBLIC ACT NO.
7160, AS AMENDED, OTHERWISE KNOWN AS THE "LOCAL
GOVERNMENT CODE OF 1991", AND FOR OTHER PURPOSES

Section 1. Date of Election. There shall be synchronized

barangay and sangguniang kabataan elections which shall be
held on July 15, 2002. Subsequent synchronized barangay and
sangguniang kabataan elections shall be held on the last
Monday of October and every three (3) years thereafter.

Section 2. Term of Office. The term of office of all barangay

and sangguniang kabataan officials after the effectivity of this
Act shall be three (3) years.

No barangay elective official shall serve for more than three (3)
consecutive terms in the same position: Provided, however,
That the term of office shall be reckoned from the 1994
barangay elections. Voluntary renunciation of office for any
length of time shall not be considered as an interruption in the
continuity of service for the full term for which the elective
official was elected.

Section 3. Registration. For purposes of the July 15, 2002

synchronized barangay and sangguniang kabataan elections
provided under this Act, a special registration of voters for the
sangguniang kabataan shall be fixed by the Commission on
Elections (COMELEC). Subsequent registration of barangay and
sangguniang kabataan voters shall be governed by Republic
Act No. 8189.

Section 4. Assumption of Office. The term of office of the

barangay and sangguniang kabataan officials elected under
this Act shall commence on August 15, 2002. The term of office
of the barangay and sangguniang kabataan officials elected in
subsequent elections shall commence at noon of November 30
next following their election.

Section 5. Hold Over. All incumbent barangay officials and

sangguniang kabataan officials shall remain in office unless
sooner removed or suspended for cause until their successors
shall have been elected and qualified. The provisions of the
Omnibus Election Code relative to the failure of elections and
special elections are hereby reiterated in this Act.

Section 6. Section 424 of Republic Act No. 7160, otherwise

known as the Local Government Code of 1991, is hereby
amended to read as follows:

"Sec. 424. Katipunan ng Kabataan. The katipunan ng

kabataan shall be composed of Filipino citizens actually
residing in the barangay for at least six (6) months, who
are fifteen (15) but less than eighteen (18) years of age
on the day of the election, and who are duly registered
in the list of the sangguniang kabataan or in the official

barangay list in the custody of the barangay secretary."

Section 7. Section 428 of Republic Act No. 7160, otherwise

known as the Local Government Code of 1991, is hereby
amended to read as follows:

"Sec. 428. Qualifications. An elective official of the

sangguniang kabataan must be a Filipino citizen, a
qualified voter of the katipunan ng kabataan, a resident
of the barangay for at least one (1) year immediately
prior to election, at least fifteen (15) years but less than
eighteen (18) years of age on the day of the election,
able to read and write Filipino, English, or the local
dialect, and must not have been convicted of any crime
involving moral turpitude."

Section 8. Appropriation. The amount of one billion one

hundred million pesos (P1,100,000,000.00) needed for the
purpose shall be charged from the appropriation of the
COMELEC authorized under Republic Act No. 9162, otherwise
known as the FY 2002 General Appropriations Act.

In addition, the savings of the COMELEC not exceeding three

hundred million pesos (P300,000,000.00) shall be used to
augment said appropriations as authorized under COMELEC
Special Provision No. 2 of the Republic Act No. 9162.

The funds mentioned above may be augmented by an amount

not exceeding ten percent (10%) of the sangguniang kabataan
funds reserved pursuant to Section 532 (c) of Republic Act No.
7160.

Section 9. Applicability of Other Election Laws. The Omnibus

Election Code and other existing election laws, as far as
practicable, shall apply to barangay and sangguniang kabataan
elections.

RA 9340 - AN ACT AMENDING REPUBLIC ACT NO. 9164,

RESETTING THE BARANGAY AND SANGGUNIANG KABATAAN
ELECTIONS, AND FOR OTHER PURPOSES

SECTION 1. Section 1 of Republic Act No. 9164 is hereby

amended to read as follows:

"SECTION 1. Date of Election. - There shall be

synchronized barangay and sangguniang kabataan
elections which shall be held on July 15, 2002.
Subsequent synchronized barangay and sangguniang
kabataan elections shall be held on the last Monday of
October 2007 and every three (3) years thereafter."

SEC. 2. Section 4 of Republic Act No. 9164 is hereby amended

to read as follows:

"SEC. 4. Assumption of Office. - The term of office of the

barangay and sangguniang kabataan officials elected
under this Act shall commence on August 15, 2002, next
following their elections. The term of office of the
barangay and sangguniang kabataan officials elected in

the October 2007 election and subsequent elections

shall commence at noon of November 30 next following
their election."

SEC. 3. Section 5 of Republic Act No. 9164 is hereby amended

to read as follows:

"SEC. 5. Hold Over. - All incumbent barangay and

all sangguniang kabataan officials shall remain in
office unless sooner removed or suspended for
cause until their successors shall have been
elected and qualified Provided, however, That
barangay and all sangguniang kabataan officials who
are ex officio members of the sangguniang bayan,
sangguniang panlungsod or sangguniang panlalawigan
as the case may be shall continue to serve as such
members in the sanggunian concerned until the next
barangay election. The Liga ng mga Barangay at the
municipal, city, and provincial levels shall, within thirty
(30) days after the next barangay election, conduct
elections for ex officio positions in the sanggunians
under the supervision of the Department of the Interior
and Local Government."

SEC. 4. Section 8 of Republic Act No. 9164 is hereby amended

to read as follows:

"SEC. 8 . Appropriations. - The amount necessary for the

implementation of this Act shall be taken from the
appropriation
of the
Commission
on Elections
(COMELEC) under the General Appropriations Act and/or
supplementary appropriations thereafter.

"In addition, the savings of the COMELEC not exceeding

Three hundred million pesos (P300,000,000.00) shall be
used to augment said appropriations as authorized
under COMELEC Special Provision No. 2 of Republic Act
No. 9162.

"The funds mentioned above may be augmented by an

amount not exceeding ten percent (10%) of the
sangguniang kabataan funds reserved pursuant to
Section 532(c) of Republic Act No. 7160."

Term of office determined by the constitution and statute

The term of office of all local elective officials, except

barangay officials, is fixed by the constitution. While the
term of office of barangay officials is fixed by law.

For local elective officials, except barangay officials, consti fixed

their term of office for 3 years. While for barangay officials:

RA 8524 [1998] 5 years

RA 9164 [2002] 3 years; up to 3 terms only and to

being in year 1994

RA 9340 [2005] extended the term (which ended on

Nov. 30, 2005) to Nov. 30, 2007; but still 3 years

Note: Hold-over principle validly applies to barangay

officials only.

E: Barangay officials

Reason: Since barangay officials are heading

the most fundamental and basic political
unit of our society, pragmatism should
allow, otherwise, it would prejudice the
delivery of basic services or create hiatus in
government service. Thus, hold-over is allowed
for barangay officials, but not allowed to all
others unless the law allows it.

SAMBARANI VS COMELEC

As the law now stands, the language of Section 5 of RA

9164 is clear. It is the duty of this Court to apply the
plain meaning of the language of Section 5. Since there
was a failure of elections in the 15 July 2002
regular elections and in the 13 August 2002
special elections, petitioners can legally remain in
office as barangay chairmen of their respective
barangays in a hold- over capacity. They shall
continue to discharge their powers and duties as punong
barangay, and enjoy the rights and privileges pertaining
to the office. True, Section 43(c) of the Local
Government Code limits the term of elective barangay
officials to three years. However, Section 5 of RA 9164
explicitly provides that incumbent barangay officials
may continue in office in a hold over capacity until their
successors are elected and qualified.

The application of the hold-over principle

preserves continuity in the transaction of official
business and prevents a hiatus in government
pending the assumption of a successor into office.
As held in Topacio Nueno v. Angeles, cases of extreme
necessity justify the application of the hold-over
principle.

The Three Term Limit Rule

GR: Hold-over is not allowed, precisely because there is

a term of office. If there is a term provided, that is an
implied prohibition on the part of the public official to
hold-over. After the end of his term, the public official
must step down, WON there is a new official either
elected or appointed to hold the office.

Elements: E-F-C

i. Official is elected three times;

ii. Official fully served three terms;

iii. Official is elected three times consecutively in the

same office

Problem No. 1

1993: X, the VM succeeded Y, the M who died, by operation of

law. X served as Mayor until 1995.

1995-1998: X was elected and served as Mayor

1998-2001: X was re-elected and again served as Mayor

2001 Elections: Was X barred to run as Mayor?

Answer: NO, for 2 reasons:

i. In 1993, he was not elected because he succeeded

by operation of law

ii. In 1993, he was elected not in the same office

because during the 1st term, he was elected for the
position of VM, and not for M

BORJA, JR. VS COMELEC

Private respondent was first elected as vice- mayor, but

upon the death of the incumbent mayor, he occupied
the latter s post for the unexpired term. He was,
thereafter, elected for two more terms. The Court held
that when private respondent occupied the post of the
mayor upon the incumbents death and served for the
remainder of the term, he cannot be construed as
having served a full term as contemplated under
the subject constitutional provision. The term
served must be one for which [the official
concerned] was elected.

Problem No. 2

1988-1995: X was elected and served as Mayor for 2

consecutive terms

1995: X was re-elected and started serving as Mayor

1997: Comelec ruled that X was not validly proclaimed and X

stepped down as ordered by the Comelec.

1998 elections: Was X barred to run as Mayor?

Answer: NO

LONZANIDA VS COMELEC

Petitioner was elected and served two consecutive terms

as mayor from 1988 to 1995. He then ran again for the
same position in the May 1995 elections, won and
discharged his duties as mayor. However, his opponent
contested his proclamation before the RTC, which ruled
that there was a failure of elections and declared the
position of mayor vacant. The COMELEC affirmed this
ruling and petitioner acceded to the order to vacate the
post. During the May 1998 elections, petitioner therein
again filed his certificate of candidacy for mayor. A
petition to disqualify him was filed on the ground that he
had already served three consecutive terms. The Court
ruled, however, that petitioner cannot be considered as
having been duly elected to the post in the May 1995

elections, and that petitioner did not fully serve the

1995- 1998 mayoralty term by reason of
involuntary relinquishment of office.

Problem No. 3

1992-1998: X was elected and served as Mayor for 2

consecutive terms

1998: X ran as Mayor but lost to Y

2000: Y faced a recall election and X was elected in the recall

election and served as Mayor

2001: Was X barred to run as Mayor?

Answer: NO

ADORMEO VS COMELEC

The issue was whether or not an assumption to

office through a recall election should be
considered as one term in applying the three-term
limit rule. Private respondent was elected and served
for two consecutive terms as mayor. He then ran for his
third term in the May 1998 elections, but lost to his
opponent. In June 1998, his opponent faced recall
proceedings and in the recall elections of May 2000,
private respondent won and served for the unexpired
term. For the May 2001 elections, private respondent
filed his certificate of candidacy for the office of mayor.
This was questioned. The Court held that private
respondent cannot be construed as having been
elected and served for three consecutive terms.
His loss in the May 1998 elections was considered
by the Court as an interruption in the continuity
of his service as mayor. For nearly two years,
private respondent therein lived as a private
citizen.

Problem No. 4

1992-2001: X was elected and served as Mayor for 3

consecutive terms

2001 elections: X did not run; Y was elected Mayor

2002: Y faced recall election and X filed certificate of candidacy

for the recall elections

Can X participate in the recall elections?

Answer: YES

SOCRATES VS COMELEC

The principal issue was whether or not private

respondent Hagedorn was qualified to run during the
recall elections. Hagedorn had already served for three
consecutive terms as mayor from 1992 until 2001 and
did not run in the immediately following regular
elections. On July 2, 2002, the barangay officials of

Puerto Princesa convened themselves into a Preparatory

Recall Assembly to initiate the recall of the incumbent
mayor, Socrates. On August 23, 2002, Hagedorn filed his
certificate of candidacy for mayor in the recall election.
A petition for his disqualification was filed on the ground
that he cannot run for the said post during the recall
elections for he was disqualified from running for a
fourth consecutive term. The Court ruled in favor of
Hagedorn, holding that the principle behind the
three-term
limit
rule
is
to
prevent
consecutiveness of the service of terms, and that
there was in his case a break in such
consecutiveness after the end of his third term
and before the recall election.

Problem No. 5

1992-2001: X was Mayor of a municipality for 3 consecutive

terms

Before May 2001 elections: The municipality became a new city

2001 elections: X filed COC for mayor of the new city

Was X qualified to run for Mayor of the new city?

Answer: NO

LATASA VS COMELEC

It can be seen from Lonzanida and Adormeo that the

law contemplates a rest period during which the
local elective official steps down from office and
ceases to exercise power or authority over the
inhabitants of the territorial jurisdiction of a
particular local government unit.

Should petitioner be allowed another three

consecutive terms as mayor of the City of Digos,
petitioner would then be possibly holding office as
chief
executive
over
the
same
territorial
jurisdiction and inhabitants for a total of eighteen
consecutive years. This is the very scenario sought to
be avoided by the Constitution, if not abhorred by it.

Spirit of the law was applied.

Problem No. 6

1995-1998: X was elected and served as Mayor

1998-2001: X was re-elected and served as mayor, but an

election protest was filed against X in 1998

2001-2004: X was re-elected and served as mayor, and the

1998 election protest was decided against X

2004 elections: Was X qualified to run as mayor?

Answer: NO

FRANCIS ONG VS JOSEPH ALEGRE

Petitioner Ong was duly elected mayor (San Vicente) in

the May 1995 and again in the May 2001 elections and
serving the July 1, 1995- June 30, 1998 and the July 1,
2001-June 30, 2004 terms in full. The controversy
revolved around the 1998-2001 term. Ong ran for mayor
of the same municipality in the May 1998 elections and
actually served the 1998- 2001 term by virtue of a
proclamation initially declaring him mayor-elect of San
Vicente. But after the term 1998-2001, it was declared
that Ong was not the real winner in the elections. The
question was whether or not Ongs assumption of office
as Mayor of San Vicente from July 1, 1998 to June 30,
2001, may be considered as one full term service.

The Supreme Court held that

such assumption of
office constitutes, for Francis, service for the full
term, and should be counted as a full term
served in contemplation of the three-term limit
prescribed by the constitutional and statutory
provisions, supra, barring local elective officials from
being elected and serving for more than three
consecutive term for the same position.

His proclamation by the Municipal Board of

Canvassers of San Vicente as the duly elected
mayor in the 1998 mayoralty election coupled by
his assumption of office and his continuous
exercise of the functions thereof from start to
finish of the term, should legally be taken as
service for a full term in contemplation of the threeterm rule (even if he was later on, after the full term,
declared that he was not the winner in the election).

Same Ruling in ATTY. RIVERA III VS COMELEC

Problem No. 7

1995-1998: X was elected and served as Mayor

1998-2001: X was re-elected and served again as Mayor, but a

protest was filed in 1998

2001-2004: X was re-elected and served again as Mayor, but in

July of 2001, the 1998 protest was decided against X.

2004 elections: X filed COC for mayor but it was cancelled,

although he won and was proclaimed Mayor

May 17, 2007: X stepped down as mayor as ordered

2007: X was elected again as mayor

Was X qualified to run as mayor for 2007?

Answer: YES

DIZON VS COMELEC

We concede that Morales occupied the position of mayor

of Mabalacat for the following periods: 1 July 1995 to 30
June 1998, 1 July 1998 to 30 June 2001, 1 July 2001 to

30 June 2004, and 1 July 2004 to 16 May 2007.

However, because of his disqualification, Morales
was not the duly elected mayor for the 2004-2007
term. Neither did Morales hold the position of mayor of
Mabalacat for the full term.

Morales cannot be deemed to have served the full

term of 2004-2007 because he was ordered to
vacate his post before the expiration of the term.
Morales occupancy of the position of mayor from 1 July
2004 to 16 May 2007 cannot be counted as a term for
purposes of computing the three-term limit. Indeed, the
period from 17 May 2007 to 30 June 2007 served as a
gap for purposes of the three-term limit rule. Thus, the
present 1 July 2007 to 30 June 2010 term is effectively
Morales first term for purposes of the three-term limit
rule.

Problem No. 8

In 1994, 1997 and 2002: X was elected Punong Barangay

2004: X ran and won as municipal councilor, leaving his post as

punong barangay

2007: X filed COC for the position of punong barangay (the

same barangay)

Is he qualified?

Answer: NO

BOLOS, JR. VS COMELEC

The Court agrees with the COMELEC that there was

voluntary renunciation as Punong Barangay. The
COMELEC correctly held: It is our finding that Nicasio
Bolos, Jr.s relinquishment of the office of Punong
Barangay of Biking, Dauis, Bohol, as a consequence of
his assumption to office as Sangguniang Bayan member
of Dauis, Bohol, on July 1, 2004, is a voluntary
renunciation.

All the acts attending his pursuit of his election as

municipal councilor point out to an intent and readiness
to give up his post as Punong Barangay once elected to
the higher elective office. He knew that his election as
municipal
councilor
would entail abandonment of
the position he held, and he intended to forego of it.
Abandonment, like resignation, is voluntary.

Problem No. 9

X was elected mayor 3 times during the terms: 1998-2001,

2001-2004 and 2004-2007

In September 2005, X was ordered

suspended by the Sandiganbayan

In 2007, X filed a COC and ran for mayor.

preventively

Was X qualified to run for the 2007 elections?

Answer: NO

ALDOVINO VS COMELEC

Q: Is the preventive suspension of an elected public

official an interruption of his term of office for purposes
of the three-term limit rule?

A: Interruption of a term exempting an elective official

from the three-term limit rule is one that involves no
less than the involuntary loss of title to office. An
officer who is preventively suspended is simply
barred from exercising the functions of his office
but title to office is not lost.

6. Hold-over Principle

Sec. 5 RA 9164 - Hold Over. - All incumbent barangay and all

sangguniang kabataan officials shall remain in office unless sooner
removed or suspended for cause until their successors shall have been
elected and qualified Provided, however, That barangay and all
sangguniang kabataan officials who are ex officio members of the
sangguniang bayan, sangguniang panlungsod or sangguniang
panlalawigan as the case may be shall continue to serve as such
members in the sanggunian concerned until the next barangay
election. The Liga ng mga Barangay at the municipal, city, and
provincial levels shall, within thirty (30) days after the next barangay
election, conduct elections for ex officio positions in the sanggunians
under the supervision of the Department of the Interior and Local
Government."

B. Vacancies and Succession

1. Permanent Vacancies; Grounds

Section 44. Permanent Vacancies in the Offices of the Governor, ViceGovernor, Mayor, and Vice-Mayor. - If a permanent vacancy occurs
in the office of the governor or mayor, the vice-governor or vice-mayor
concerned shall become the governor or mayor. If a permanent
vacancy occurs in the offices of the governor, vice-governor, mayor, or
vice-mayor, the highest ranking sanggunian member or, in case of
his permanent inability, the second highest ranking sanggunian
member, shall become the governor, vice-governor, mayor or vicemayor, as the case may be. Subsequent vacancies in the said office
shall be filled automatically by the other sanggunian members
according to their ranking as defined herein.

(b) If a permanent vacancy occurs in the office of the punong

barangay, the highest ranking sanggunian barangay member or, in
case of his permanent inability, the second highest ranking sanggunian
member, shall become the punong barangay.

(c) A tie between or among the highest ranking sanggunian members

shall be resolved by the drawing of lots.

(d) The successors as defined herein shall serve only the

unexpired terms of their predecessors.

For purposes of this Chapter, a permanent vacancy arises when an

elective local official fills a higher vacant office, refuses to
assume office, fails to qualify, dies, is removed from office,
voluntarily resigns, or is otherwise permanently incapacitated to
discharge the functions of his office.

For purposes of succession as provided in the Chapter, ranking in the

sanggunian shall be determined on the basis of the proportion of votes
obtained by each winning candidate to the total number of registered
voters in each district in the immediately preceding local election.

Section 45. Permanent Vacancies in the Sanggunian.

(a) Permanent vacancies in the sanggunian where automatic

succession provided above do not apply shall be filled by
appointment in the following manner:

(1) The President, through the Executive Secretary, in the

case of the sangguniang panlalawigan and the sangguniang
panlungsod of highly urbanized cities and independent
component cities;

(2) The governor, in the case of the sangguniang

panlungsod of component cities and the sangguniang
bayan;

(3) The city or municipal mayor, in the case of sangguniang

barangay, upon recommendation of the sangguniang
barangay concerned.

(b) Except for the sangguniang barangay, only the nominee of

the political party under which the sanggunian member
concerned had been elected and whose elevation to the
position next higher in rank created the last vacancy in the
sanggunian shall be appointed in the manner hereinabove
provided. The appointee shall come from the same political party as
that of the sanggunian member who caused the vacancy and shall
serve the unexpired term of the vacant office. In the appointment
herein mentioned, a nomination and a certificate of membership of the
appointee from the highest official of the political party concerned are
conditions sine qua non, and any appointment without such
nomination and certification shall be null and void ab initio and shall be
a ground for administrative action against the official responsible
therefore.

(c) In case or permanent vacancy is caused by a sanggunian

member who does not belong to any political party, the local
chief executive shall, upon recommendation of the sanggunian
concerned, appoint a qualified person to fill the vacancy.

(d) In case of vacancy in the representation of the youth and the

barangay in the sanggunian, said vacancy shall be filled
automatically by the official next in rank of the organization
concerned.

Factors to consider: P-R-L

1. Meaning of permanent vacancy

2. Method of ranking

3. Meaning of last vacancy in the Sanggunian

because whoever caused the last vacancy in the

sanggunian, his political affiliation will matter, in
which case, his party will have the right to
nominate the official who will fill-up the vacancy

Permanent Vacancy

Official: F-R-F D-R-R-P

i. Fills a higher vacant position

ii. Refuses to assume office

iii. Fails to qualify

iv. Dies

v. Removed from office

vi. Resigns

vii. Permanently Incapacitated to discharge the functions

of his office (either physically or otherwise)

Ranking

Formula: Votes obtained/total registered voters in

each district (not votes cast)

Note: A tie between and among the highest ranking

sanggunian members shall be resolved by drawing of
lots.

Vacancy

How to fill up the vacancy?

Example: Mayor kidnapped and his whereabouts

unknown; convicted by final judgment

It depends on the kind of LGU and it depends on

whether the one who caused the last
vacancy is a member of a political party or
not. If not a member of political party, the
Sanggunian concerned recommends to
either the President (Prov, HUC, ICC) or the
Governor (CC & Mun), as the case may be. If a
member of political party, the party of the
official who caused the last vacancy shall
nominate to the President or the Governor, as
the case may be. If in the Barangay Sanggunian,
since there is no political party, the Sanggunian
concerned recommends to the Mayor.

Illustration:

Mayor: X (XXX)

Vice-Mayor: Y (PPP)

Councilors:

1stA (KKK)

2ndB (XXX)

3rdC (XYZ)

4thD (PPP)

5thE (KKK)

6thF (Independent)

7thG (YYY)

8thH (XYZ)

Suppose Mayor X dies. How do you fill-up the vacancy

caused by the death of X including the vacancy that may
affect the sanggunian?

Y becomes mayor. A becomes Vice mayor.

But how to fill the vacancy on the 8th spot?

But who caused the last vacancy?

Navarro case

Its A, so that KKK will nominate.

Illustration:

Mayor: X (XXX)

Vice mayor: Y (PPP)

Councilors:

1stA (Independent)

2ndB (XXX)

3rdC (PPP)

4thD (PPP)

5thE (KKK)

6thF (Independent)

7thG (YYY)

8thH (PPP)

Same facts. How to fill-up the vacancy?

Farinas case

Farinas case

VICTORIA VS COMELEC The Sanggunian member who received the

highest ranking on the basis of the proportion of votes obtained
by each candidate to the total number of registered voters in
each district should assume the office of the Vice-Governor.

The law is clear that the ranking in the Sanggunian shall be

determined on the basis of the proportion of the votes obtained
by each winning candidate of the total number of registered
voters who actually voted. In such a case, the Court has no

recourse but to merely apply the law. The courts may not
speculate as to the probable intent of the legislature apart from
the words.

Petitioner's contention is therefore untenable considering the

clear mandate of the law, which leaves no room for other
interpretation but it must very well be addressed to the
legislative branch and not to this Court which has no power to
change the law.

RECABO VS COMELEC The vacancy in the position of vice-mayor due

to the ineligibility of the winning candidate should be filled up in
accordance with Sec. 44 of the LGC which provides that the highest
ranking sanuggunian member shall become vice-mayor.

It is settled that the disqualification or non-qualification of the

winner in a vice mayoralty race does not justify the
proclamation of the defeated candidate who obtained the
second highest number of votes.

Hence, in the event that herein petitioner Kaiser Recabo, Jr.

obtained the plurality of votes in the May 11, 1998 elections for
Vice Mayor of the Municipality of Mainit, Surigao del Norte, the
vacancy due to the ineligibility of herein petitioner should be
filled up in accordance with Section 44 of the Local Government
Code of 1991 which provides that the highest ranking
sanggunian member shall become the vice-mayor.

In the sum, we find that the respondent Commission did not act
without jurisdiction or with grave abuse of discretion in
cancelling and denying due course to petitioner Recabo, Jr.'s
certificate of candidacy.

FARINAS VS BARBA Where vacancy is caused by a Sanggunian Bayan

member not belonging to a political party, the Governor, upon
recommendation by the Sagnugginan Bayan, appoints the
replacement.

Section 45 must be construed to mean that

I. Where the Permanent Vacancy is Caused by a

Sanggunian Member Belonging to a Political Party

A.
Sangguniang
Panlalawigan
and
Sangguniang
Panlungsod
of
highly
urbanized
cities
and
independent
component cities The President, through
the Executive Secretary, upon the nomination
and certification of the political party to which
the member who caused the vacancy belonged,
as provided in 45 (b).

B. Sangguniang Panlungsod of component

cities and Sangguniang Bayan The
Governor upon the nomination and certification
of the political party to which the member who
caused the vacancy belonged, as provided in 45
(b).

II. Where the Vacancy is Caused by a Sanggunian

Member Not Belonging to a Political Party

A. Sangguniang Panlalawigan and Sangguniang

Panlungsod of highly urbanized and independent
component cites The President, through the
Executive Secretary, upon recommendation of
the Sangguniang Panlalawigan or Sangguniang
Panlungsod as the case may be.

B. Sangguniang Panlungsod of component cities

and Sangguniang Bayan The Governor upon
recommendation of the Sangguniang Panlungsod
or Sangguniang Bayan as the case may be

III. Where the Vacancy is Caused by a Member of

the Sangguniang Barangay City or Municipal
Mayor upon recommendation of the Sangguniang
Barangay

There is only one rule governing appointments to the

Sangguniang Barangay. Any vacancy therein caused by the
cessation from office of a member must be made by the mayor
upon the recommendation of that Sanggunian. The reason is
that members of the Sangguniang Barangay are not allowed to
have party affiliations.

Indeed there is no reason for supposing that those who drafted

45 intended to make the manner of filling vacancies in the
Sanggunians, created by members who do not belong to any
political party, different from the manner of filling such
vacancies when created by members who belong to political
party or parties. The provision for the first must approximate
the provision for the second situation. Any difference in
procedure must be limited to the fact that in the case of
vacancies caused by those who have political affiliations there
is a party which can nominate a replacement while there is
none in the case of those who have no political affiliation.
Accordingly, where there is no political party to make a
nomination, the Sanggunian, where the vacancy occurs, must
be considered the appropriate authority for making the
recommendation, by analogy to vacancies created in the
Sangguniang Barangay whose members are by law prohibited
from having any party affiliation.

Having determined that appointments in case of vacancies

caused by Sanggunian members who do not belong to any
political party must be made in accordance with the
"recommendation" of the Sanggunians concerned where the
vacancies occur, the next question is: Is the appointing
authority limited to the appointment of those
"recommended" to him? We think an affirmative answer
must be given to the question.

The appointing authority is not bound to appoint anyone

recommended to him by the Sanggunian concerned. The
power of appointment is a discretionary power. On the

other hand, neither is the appointing power vested with so large

a discretion that he can disregard the recommendation of the
Sanggunian concerned, Since the recommendation takes the
place of nomination by political party, the recommendation
must likewise be considered a condition sine qua non for the
validity of the appointment, by analogy to the provision of
45(b).

The upshot of this is that in the case at bar, since

neither petitioner Al Nacino nor respondent Edward
Palafox was appointed in the manner indicated in the
preceding discussion, neither is entitled to the seat in
the Sangguniang Bayan of San Nicolas, Ilocos Norte
which was vacated by member Carlito B. Domingo. For
while petitioner Al Nacino was appointed by the
provincial governor, he was not recommended by the
Sangguniang Bayan of San Nicolas. On the other hand,
respondent Edward Palafox was recommended by the
Sangguniang Bayan but it was the mayor and not the
provincial governor who appointed him.

NAVARRO VS COMELEC

What is crucial is the interpretation of Section 45 (b) providing

that "xxx only the nominee of the political party under which
the Sanggunian member concerned has been elected and
whose elevation to the position next higher in rank created the
last vacancy in the Sanggunian shall be appointed in the
manner hereinabove provided. The appointee shall come from
the political party as that of the Sanggunian member who
caused the vacancy xxx."

The reason behind the right given to a political party to

nominate a replacement where a permanent vacancy occurs in
the Sanggunian is to maintain the party representation as
willed by the people in the election.

With the elevation of petitioner Tamayo, who belonged to

REFORMA-LM, to the position of Vice-Mayor, a vacancy occurred
in the Sanggunian that should be filled up with someone who
should belong to the political party of petitioner Tamayo.
Otherwise,
REFORMA-LM's
representation
in
the
Sanggunian would be diminished. To argue that the
vacancy created was that formerly held by Rolando Lalas, a
LAKAS-NUCD-Kampi member, would result in the increase of
that party's representation in the Sanggunian at the expense of
the REFORMA-LM. This interpretation is contrary to the
letter and spirit of the law and thus violative of a
fundamental rule in statutory construction which is to
ascertain and give effect to the intent and purpose of
the law. As earlier pointed out, the reason behind par. (b),
section 44 of the Local Government Code is the maintenance
party representation in the Sanggunian in accordance with the
will of the electorate.

The "last vacancy" in the Sanggunian refers to that created by

the elevation of the member formerly occupying the next

higher in rank which in turn also had become vacant by any of

the causes already enumerated. The term "last vacancy" is thus
used in Sec. 45 (b) to differentiate it from the other vacancy
previously created. The term by no means refers to the vacancy
in the No. 8 position which occurred with the election of
Rolando Lalas to the seventh position in the Sanggunian. Such
construction will result in absurdity.

Petitioners also allege that the Court of Appeals erred in giving

due course to the petition because the verification is defective.
It is argued that the affidavit merely stated that the allegations
therein are "true and correct to the best of my own knowledge
and information" whereas Section 4, Rule 7 of the Rules of
Court specifically requires that the allegations be "true and
correct of his knowledge and belief."

The contention is without merit. Verification based on the

affiant's own knowledge and information is sufficient under the
circumstances. Verification is merely a formal and not a
jurisdictional requisite which does not affect the validity or
efficacy of the pleading, or the jurisdiction of the court.
Therefore, a defective verification, as in the present case, does
not render the pleading or the petition invalid and the Court of
Appeals did not err in giving due course to the petition.

WHEREFORE, the petition is hereby GRANTED.

DAMASEN VS TUMAMAO

Facts: The Vice Mayor of San Isidro Isabela died so she was
replaced by the highest ranking member of the Sangguiniang
Bayan who was a member of LDP. Because of the permanent
vacancy in the Sangguinang Bayan, Mayor Lim recommended
to Governor Padaca the appointment of Tumamao as he was a
member of LDP. Tumamao was appointed, took his oath and
attended sessions around April 2005. On May 2005, Atty.
Damasen, became a member of LDP and got hold of a letter of
nomination to the Sanggunian Bayan from provincial chairman
of LDP Balauag addressed to Governor Padaca. He was
appointed to SB, took his oath. But when he attended sessions
he was not recognized because of the presence of Tumamao.
So he filed a petition for quo warranto with prayer for writ of
preliminary injunction with the RTC. It was granted, and
eventually the RTC resolved that Damasen was entitled to the
position. Tumamao appealed to the CA and it ruled that
Damasen was not entitled to the position but it was Tumamao.

Issue: Whether or not Damasen is entitled to the position in the

Sangguinang Bayan.

Ruling: The SC held that Damasen was not entitled and it

should be Tumamao.

As can be gleaned from Sec. 45, the law provides for conditions
for the rule of succession to apply: First, the appointee shall
come from the same political party as that of the Sanggunian
member who caused the vacancy. Second, the appointee must
have a nomination and a Certificate of Membership from the

highest official of the political party concerned

Letter from the LDP that Damasen is not a bona fide member What is damning to the cause of Damasen, is the letter of
Demaree J.B. Raval, the Deputy Secretary Counsel of the LDP,
addressed to Governor Padaca wherein it is categorically stated
that Damasen is not a bona fide member of the LDP, to wit:

As regards the claim of Mr. Lucky Magala Damasen,

please
be
informed
that
pursuant
to
the
LDPConstitution, Mr. Damasen does not appear in our
records as a bona fide member of the LDP. While it is
true that Mr. Damasen may have been issued a
Certificate of Membership dated May 5, 2005 by our
Provincial Chairman for Isabela, Mrs. Ana Benita G.
Balauag, his membership has not been endorsed (even
to date) to the LDP National Council for approval.
Besides, the Certificate of Candidacy of Mr. Damasen for
the May 10, 2004 elections shows that he was
nominated by the Lakas-CMD Party

Like the CA, this Court has no reason to doubt the veracity of
the letter coming from the LDP leadership. Quite clearly, from
the tenor of the letter, it appears that the membership of
Damasen still had to be approved by the LDP National Council.
Thus, notwithstanding Damasens procurement of a Certificate
of Membership from LDP Provincial Chairman Balauag, to this
Courts mind, the same merely started the process of his
membership in the LDP, and it did not mean automatic
membership thereto. While it may be argued that Damasen was
already a member upon receipt of a Certificate of Membership
from LDP Provincial Chairman Balauag, this Court cannot
impose such view on the LDP. If the LDP leadership says that
the membership of Damasen still had to be endorsed to the
National Council for approval, then this Court cannot question
such requirement in the absence of evidence to the contrary. It
is well settled that the discretion of accepting members to a
political party is a right and a privilege, a purely internal matter,
which this Court cannot meddle in.

In resolving the petition at bar, this Court is guided by Navarro

v. Court of Appeals (Navarro), where this Court explained the
reason behind the rule of succession under Sec. 45 (b) of RA
7160, to wit:

The reason behind the right given to a political party to

nominate a replacement where a permanent vacancy
occurs in the Sanggunian is to maintain the party
representation as willed by the people in the election.

With the elevation of petitioner Tamayo, who belonged to

REFORMA-LM, to the position of Vice-Mayor, a vacancy occurred
in the Sanggunian that should be filled up with someone
belonging to the political party of petitioner Tamayo. Otherwise,
REFORMA-LMs representation in the Sanggunian would be
diminished. Xxx. As earlier pointed out, the reason behind Par.
(b), Sec. 45 of the Local Government Code is the maintenance

of party representation in the Sanggunian in accordance with

the will of the electorate.

Since the permanent vacancy in the Sanggunian occurred

because of the elevation of LDP member Alonzo to vice-mayor,
it follows that the person to succeed her should also belong to
the LDP so as to preserve party representation. Thus, this Court
cannot countenance Damasens insistence in clinging to an
appointment when he is in fact not a bona fide member of the
LDP. While the revocation of the nomination given to Damasen
came after the fact of his appointment, this Court cannot rule in
his favor, because the very first requirement of Sec. 45 (b) is
that the appointee must come from the political party as that of
the Sanggunian member who caused the vacancy. To stress,
Damasen is not a bona fide member of the LDP.

In addition, appointing Damasen would not serve the will of the

electorate. He himself admitts that he was previously a
member of the Lakas-CMD, and that he ran for the position of
Mayor under the said party on the May 2004 Elections.
Likewise, he did not resign from the said party when he joined
the LDP, and even admitted that his joining the LDP was not
because of party ideals, but because he just wanted to. How
can the will of the electorate be best served, given the
foregoing admissions of Damasen? If this Court were to grant
herein petition, it would effectively diminish the party
representation of the LDP in the Sanggunian, as Damasen
would still be considered a member of the Lakas-CMD, not
having resigned therefrom, a scenario that defeats the
purpose of the law, and that ultimately runs contrary
the ratio of Navarro.

Lastly, the records of the case reveal that Tumamao has the
nomination of Senator Edgardo J. Angara, the Party Chairman
and, therefore, the highest official of the LDP. In addition, he is
a member in good standing of the LDP. Thus, given the
foregoing, it is this Courts view that Tumamao has complied
with the requirements of law.

2. Temporary Vacancy in the Office of the LCE

Section 46. Temporary Vacancy in the Office of the Local Chief

Executive.

(a) When the governor, city or municipal mayor, or punong barangay is

temporarily incapacitated to perform his duties for physical or legal
reasons such as, but not limited to, leave of absence, travel
abroad, and suspension from office, the vice-governor, city or
municipal vice-mayor, or the highest ranking sangguniang
barangay member shall automatically exercise the powers and
perform the duties and functions of the local chief executive
concerned, except the power to appoint, suspend, or dismiss
employees which can only be exercised if the period of
temporary incapacity exceeds thirty (30) working days.

(b) Said temporary incapacity shall terminate upon submission to the

appropriate sanggunian of a written declaration by the local chief

executive concerned that he has reported back to office. In cases

where the temporary incapacity is due to legal causes, the
local chief executive concerned shall also submit necessary
documents showing that said legal causes no longer exist.

(c) When the incumbent local chief executive is traveling within the
country but outside his territorial jurisdiction for a period not
exceeding three (3) consecutive days, he may designate in
writing the officer-in-charge of the said office. Such authorization
shall specify the powers and functions that the local official concerned
shall exercise in the absence of the local chief executive except the
power to appoint, suspend, or dismiss employees.( S-A-D)

(d) In the event, however, that the local chief executive concerned
fails or refuses to issue such authorization, the vice-governor,
the city or municipal vice-mayor, or the highest ranking
sangguniang barangay member, as the case may be, shall have
the right to assume the powers, duties, and functions of the
said office on the fourth (4th) day of absence of the said local
chief executive, subject to the limitations provided in subsection (c)
hereof.

(e) Except as provided above, the local chief executive shall in no case
authorize any local official to assume the powers, duties, and functions
of the office, other than the vice-governor, the city or municipal vicemayor, or the highest ranking sangguniang barangay member, as the
case may be.

i. Instances of Temporary Vacancy (L-T-S-O)

a. leave of absence

b. travel abroad

c. suspension from office

d. other temporary incapacity for physical or legal reasons

ii. Who may exercise the powers in an acting capacity

In case of temporary incapacity, the vice or the highest ranking

sanggunian member (HRS) shall automatically exercise the
powers and functions of the LCE.

iii. What powers may and may not be exercised by the acting official

All powers and functions of the LCE can be exercised by the vice
or the HRS, except the powers to appoint, suspend or dismiss
(SAD) employees, unless the temporary incapacity
exceeds 30 days, in which case, the acting official may
now exercise the SAD powers.

Hence, in PEOPLE VS BUSTAMANTE, the vice mayor (who was

the acting mayor) was held to have the power to solemnize
marriage, which is a power belonging to the mayor under the
LGC. Its not one of the SAD powers.

iv. Period of temporary incapacity

v. Officer-in-charge; when and how to designate an OIC; what powers

may and may not be exercised by the OIC

vi. Mandatory OIC; conditions

OIC vs Acting Official

The OIC is to be designated by the LCE when he is

traveling within the country but outside his
territorial jurisdiction for a period not exceeding
3 days; while the acting official shall automatically
exercise the powers of the LCE when he is traveling
outside the country or traveling abroad

The OIC (which the mayor may appoint, either the vice
or HRS) shall perform the powers and functions as
may be delegated to him by the LCE except the
powers to appoint, suspend or dismiss employees;
while the acting official exercises all powers and
functions of the LCE except the SAD powers

If the LCE has not designated an OIC, the Vice or the

HRS has the right to assume the office of the LCE on the
4th day as acting official.

3. Approval of Leave of Absences

Section 47. Approval of Leaves of Absence.

(a) Leaves of absence of local elective officials shall be approved as

follows:

(1) Leaves of absence of the governor and the mayor of a

highly urbanized city or an independent component city shall
be approved by the President or his duly authorized
representative;

(2) Leaves of absence of vice-governor or a city or municipal

vice-mayor shall be approved by the local chief executive
concerned: Provided, That the leaves of absence of the
members of the sanggunian and its employees shall be
approved by the vice-governor or city or municipal vicemayor concerned;

(3) Leaves of absence of the component city or municipal

mayor shall be approved by the governor; and

(4) Leaves of absence of a punong barangay shall be

approved by the city or municipal mayor: Provided, That
leaves of absence of sangguniang barangay members
shall be approved by the punong barangay.

(b) Whenever the application for leave of absence hereinabove

specified is not acted upon within five (5) working days after
receipt thereof, the application for leave of absence shall be
deemed approved.
PART IX DISCIPLINARY ACTIONS

1. Grounds

Section 60. Grounds for Disciplinary Actions. - An elective local

official may be disciplined, suspended, or removed from office on any

of the following grounds:

(a) Disloyalty to the Republic of the Philippines;

(b) Culpable violation of the Constitution;

(c) Dishonesty, oppression, misconduct in office, gross

negligence, or dereliction of duty;

(d) Commission of any offense involving moral turpitude

or an offense punishable by at least prision mayor;

(e) Abuse of authority;

(f) Unauthorized absence for fifteen (15) consecutive

working days, except in the case of members of the
sangguniang panlalawigan, sangguniang panlungsod,
sangguniang bayan, and sangguniang barangay;

(g) Application for, or acquisition of, foreign citizenship

or residence or the status of an immigrant of another
country; and

(h) Such other grounds as may be provided in this Code

and other laws.

An elective local official may be removed from office on the

grounds enumerated above by order of the proper court.

2. Filing of Complaint

Section 61. Form and Filing of Administrative Complaints. - A verified

complaint against any erring local elective official shall be prepared as
follows:

(a) A complaint against any elective official of a province, a

highly urbanized city, an independent component city or
component city shall be filed before the Office of the
President;

(b) A complaint against any elective official of a

municipality shall be filed before the sangguniang
panlalawigan whose decision may be appealed to the
Office of the President; and

(c) A complaint against any elective barangay official shall

be filed before the
sangguniang
panlungsod
or
sangguniang bayan concerned whose decision shall be
final and executory.

3. Notice of Hearing

Section 62. Notice of hearing.

(a) Within seven (7) days after the administrative complaint is

filed, the Office of the President or the sanggunian concerned, as the
case may be, shall require the respondent to submit his verified
answer within fifteen (15) days from receipt thereof, and
commence the investigation of the case within ten (10) days
after receipt of such answer of the respondent.

(b) When the respondent is an elective official of a province or

highly urbanized city, such hearing and investigation shall be

conducted in the place where he renders or holds office. For all

other local elective officials, the venue shall be the place where the
sanggunian concerned is located.

(c) However, no investigation shall be held within ninety (90)

days immediately prior to any local election, and no preventive
suspension shall be imposed within the said period. If
preventive suspension has been imposed prior to the 90-day
period immediately preceding local election, it shall be
deemed automatically lifted upon the start of aforesaid period.

4. Preventive Suspension

Section 63. Preventive Suspension.

(a) Preventive suspension may be imposed:

(1) By the President, if the respondent is an elective official

of a province, a highly urbanized or an independent component
city;

(2) By the governor, if the respondent is an elective official of

a component city or municipality; or

(3) By the mayor, if the respondent is an elective official of the

barangay.

(b) Preventive suspension may be imposed at any time after

the issues are joined, when the evidence of guilt is strong, and
given the gravity of the offense, there is great probability that the
continuance in office of the respondent could influence the witnesses
or pose a threat to the safety and integrity of the records and other
evidence: Provided, That, any single preventive suspension of
local elective officials shall not extend beyond sixty (60) days:
Provided, further, That in the event that several administrative
cases are filed against an elective official, he cannot be
preventively suspended for more than ninety (90) days within
a single year on the same ground or grounds existing and
known at the time of the first suspension.

(c) Upon expiration of the preventive suspension, the

suspended elective official shall be deemed reinstated in office
without prejudice to the continuation of the proceedings
against him, which shall be terminated within one hundred
twenty (120) days from the time he was formally notified of the case
against him. However, if the delay in the proceedings of the case is
due to his fault, neglect, or request, other than the appeal duly filed,
the duration of such delay shall not be counted in computing the time
of termination of the case.

(d) Any abuse of the exercise of the power of preventive suspension

shall be penalized as abuse of authority.

i. Authority

ii. Grounds

iii. Duration

iv. Prohibition

5. Salary of Respondent pending preventive suspension

6. Rights of Respondent

Section 65. Rights of Respondent. - The respondent shall be

accorded full opportunity to appear and defend himself in
person or by counsel, to confront and cross-examine the witnesses
against him, and to require the attendance of witnesses and the
production of documentary process of subpoena or subpoena duces
tecum.

7. Penalty; effects

Section 66. Form and Notice of Decision.

(a) The investigation of the case shall be terminated within

ninety (90) days from the start thereof. Within thirty (30) days
after the end of the investigation, the Office of the President
or the sanggunian concerned shall render a decision in writing
stating clearly and distinctly the facts and the reasons for such
decision. Copies of said decision shall immediately be furnished the
respondent and all interested parties.

(b) The penalty of suspension shall not exceed the unexpired

term of the respondent or a period of six (6) months for every
administrative offense, nor shall said penalty be a bar to the
candidacy of the respondent so suspended as long as he meets the
qualifications required for the office.

(c) The penalty of removal from office as a result of an

administrative investigation shall be considered a bar to the
candidacy of the respondent for any elective position.

8. Administrative Appeals

Section 64. Salary of Respondent Pending Suspension. - The

respondent official preventively suspended from office shall
receive no salary or compensation during such suspension; but
upon subsequent exoneration and reinstatement, he shall be
paid full salary or compensation including such emoluments
accruing during such suspension.

Section 67. Administrative Appeals. - Decisions in administrative

cases may, within thirty (30) days from receipt thereof, be
appealed to the following:

(a) The sangguniang panlalawigan, in the case of decisions of

the sangguniang panlungsod of component cities and the
sangguniang bayan; and

(b) The Office of the President, in the case of decisions of the

sangguniang panlalawigan and the sangguniang panlungsod of
highly urbanized cities and independent component cities.

Decisions of the Office of the President shall be final and

executory.

9. Execution pending appeal

Section 68. Execution Pending Appeal. - An appeal shall not

prevent a decision from becoming final or executory. The

respondent shall be considered as having been placed under

preventive suspension during the pendency of an appeal in the
event he wins such appeal. In the event the appeal results in an
exoneration, he shall be paid his salary and such other
emoluments during the pendency of the appeal.

Note: Only the proper COURT can order the REMOVAL of the official.

Filing of complaint: (governed by the Ombudsman law or the LGC

depending on the ground and where the complaint is lodged; one doesnt
bar the other)

Office of the president Province, HUC, and City

Sangguniang panlalawigan Municipality

Sangguniang panlungsod or sangunniang bayan barangay

[decision is final and executory, thus, no mode of appeal to the

office of the president]

Rules and prohibitions during investigation:

i. Investigation shall commence 10 days after respondent

answers;

ii. Investigation shall be held only in the place where the

respondent holds office;

iii. No investigation within 90 days immediately prior to local

election and no Preventive Suspension shall be imposed within
said period (if already imposed ipso facto lifted)

[appealable to the office of the president]

Reason: To prevent this mechanism as a tool for political

harassments

Preventive suspension:

Authority:

1. President, in the case of HUC and ICC;

2. Governor, in the case of CC and mun.;

3. Mayor, in the case of barangay

Requisites before preventive suspension can be imposed: (J-E-I)

(a) issues have already been joined;

after filing of the answer, which may be in various forms

so long as it will render the allegations be considered as
issues

(b) evidence of guilt is strong;

(c) given the gravity of the offense, respondent might influence

witnesses or pose a threat to records/evidence.

Length of preventive suspension:

Single 60; multiple 90

Note: Prior hearing is not required in preventive suspension

because it is not a penalty and will not violate due process

Rights of Respondent:

Hearing

Counsel

Cross-Examine witnesses

Compulsory Process

Periodof Investigation - 90days

PeriodtoDecide-30days

Penalty of Suspension shall not exceed the unexpired term or a

period of six (6) months per administrative case, nor a bar to
candidacy.

Because removal from office as a result of an administrative

case during the effectivity of the LGC of 1991 is the only form
of administrative penalty considered as a ground for
disqualification

Aguinaldo doctrine

A public official cannot be removed from office for

administrative misconduct committed during a prior term,
since his reelection to the office operates as a condonation of
the officer s previous misconduct by the people to the extent
of cutting off his right to remove him therefor.

It applies only to administrative case for misconduct, so the

official may still be held criminally or civilly liable for the same act.

GARCIA VS MOJICA

The alleged misconduct (signing of irregular contract) was committed

4 days before election day and it was not known to the public/voter
until Mayor Garcia was already re-elected and served his new term.

It was argued that since the electorates did not have knowledge of
such misconduct at the time they voted for Garcia, it could not be said
that they had condoned the misconduct of Garcia.

Supreme Court disagreed because it is really impossible to determine

actual or lack of knowledge by the electorates about the misconduct at
the time they cast their votes. What can be determined is that the
misconduct was committed during a prior term. The fact that the
misconduct was committed during the prior term, Aguinaldo
Doctrine applies.

AGUINALDO DOCTRINE DOES NOT APPLY TO AN APPOINTED OFFICIAL

WHO COMMITTED MISCONDUCT WHILE IN HIS APPOINTIVE OFFICE
AND WHO WAS LATER ON ELECTED INTO OFFICE (because it should be
REELECTION)

Aguinaldo doctrine applies only to administrative case for misconduct, so the

official may still be held criminally or civilly liable for the same act.

Administrative appeals

Office of the president, in case of decision of SP of province, HUC, and

ICC;

SP of province, in the case of decision of SP of CC and municipality

Note: Decision of the office of the president shall be final and

executory

Execution pending appeal

The respondent shall be considered as having been placed under

preventive suspension during the pendency of the appeal in the event
he wins such appeal. He shall be paid his salary and benefits if
the appeal exonerates him.

Section 7, Rule III of the Rules of Procedure of the Office of the

Ombudsman was already amended by Administrative Order No. 17
wherein the pertinent provision on the execution of the Ombudsmans
decision pending appeal is now similar to Section 47 of the Uniform
Rules on Administrative Cases in the Civil Service that is, decisions
of the Ombudsman are immediately executory even pending
appeal, regardless of penalty.

An appeal shall not stop the decision from being executory. In

case the penalty is suspension or removal and the respondent wins
such appeal, he shall be considered as having been under preventive
suspension and shall be paid the salary and such other emoluments
that he did not receive by reason of the suspension or removal.

A decision of the Office of the Ombudsman in administrative

cases shall be executed as a matter of course. The Office of the
Ombudsman shall ensure that the decision shall be strictly enforced
and properly implemented. The refusal or failure by any officer without
just cause to comply with an order of the Office of the Ombudsman to
remove, suspend, demote, fine, or censure shall be a ground for
disciplinary action against said officer.

ONLY THE COURT (RTC, CA, or SANDIGANBAYAN) CAN REMOVE AN ELECTED

OFFICIAL!

Reason:The rule which confers to the proper courts the power to

remove an elective local official from office is intended as a check
against any capriciousness or partisan activity by the disciplining
authority.

AGUINALDO VS SANTOS An administrative, not criminal, case for

disloyalty to the Republic only requires substantial evidence.

The rule is that a public official cannot be removed for administrative

misconduct committed during a prior term, since his reelection to
office operates as a condonation of the officers previous
misconduct to the extent of cutting off the right to remove him
therefore. The foregoing rule, however, finds no application to
criminal cases pending petitioner for acts he may have
committed during the failed coup.

Petitioner is not being prosecuted here criminally under Art. 137 of the
RPC on disloyalty but administratively with the end in view of removing
him from office for acts of disloyalty to the Republic where the
quantum of proof required is only substantial evidence and not proof
beyond reasonable doubt.

PABLICO VS VILLAPANDO The power to remove erring elective local

officials from service is lodged exclusively with the courts. Hence, Art.
124(b) of the IRR of the LGC, insofar as it vests power on the
disciplining authority to remove from office erring elective local
officials, is void for being repugnant to the last paragraph of Sec. 60
of the LGC.

The pertinent portion of Section 60 of the Local Government Code of

1991 provides:

Section 60. Grounds for Disciplinary Actions. An elective local

official may be disciplined, suspended, or removed from office
on any of the following grounds:

x x x x x x
x x x An elective local official may be removed
from office on the grounds enumerated above by order of the
proper court.

It is clear from the last paragraph of the aforecited provision that the
penalty of dismissal from service upon an erring elective local official
may be decreed only by a court of law. Thus, in Salalima, et al. v.
Guingona, et al., we held that [t]he Office of the President is
without any power to remove elected officials, since such
power is exclusively vested in the proper courts as expressly
provided for in the last paragraph of the aforequoted Section
60.

Verily, the clear legislative intent to make the subject power of removal
a judicial prerogative is patent from the deliberations in the Senate.

It is beyond cavil, therefore, that the power to remove erring elective

local officials from service is lodged exclusively with the courts.
Hence, Article 124 (b), Rule XIX, of the Rules and Regulations
Implementing the Local Government Code, insofar as it vests power on
the disciplining authority to remove from office erring elective local
officials, is void for being repugnant to the last paragraph of Section 60
of the Local Government Code of 1991. The law on suspension or
removal of elective public officials must be strictly construed and
applied, and the authority in whom such power of suspension or
removal is vested must exercise it with utmost good faith, for what is
involved is not just an ordinary public official but one chosen by the
people through the exercise of their constitutional right of suffrage.
Their will must not be put to naught by the caprice or partisanship of
the disciplining authority. Where the disciplining authority is given
only the power to suspend and not the power to remove, it
should not be permitted to manipulate the law by usurping the power
to remove.

CASTILLO VS VILLARAMA The power of investigating and deciding an

Administrative case filed against a municipal official is not executive
in nature. It is lodged in the Provincial Board as a body, the
performance of which cannot be frustrated by the absence, fortuitous or
deliberate, of the Provincial Governor.

FACTS:Governor Villarama filed an administrative case against

Mayor Beinvenido Castillo with a simultaneous order of
suspension. Upon suspension, the Vice-mayor assumed the office of
the mayor. The charge was filed on May 19, 1965. In its next regular

weekly meeting, May 26, the Governor was absent, so the ViceGovernor presided the meeting and agreed when the case should
be set for hearing. The Governor from this point, refused to
recognize the authority of the PB. According to the Governor, the
Vice- gov has limited authority in his absence and such does not
extend to matters not in the agenda beforehand. However, it appears
that one of the agenda was to set the admin case of the petitioner for
hearing. On June 9, 1965, petitioner Castillo w/ counsel came but the
session hall where the hearing will be conducted was locked. The Gov
and Vice- gov did not show-up, so the 3 members of the board decided
to hold it in the office of 1 of them. Thereafter the provincial board (PB)
conducted an investigation regarding the admin case filed. However,
the PB acquitted Mayor Castillo and ordered for his reinstatement. The
Governor refused to recognize the order of the PB, thus it instructed
the Vice- mayor not to relinquish the office of the mayor, prompting
Mayor Castillo to initiate petition for prohibition under Rule 65 to
prevent the Vice- mayor from following the Governors instruction.

ISSUE: WON the Governor can refuse to recognize the decision of the
PB, rendered unanimously by its 3 members after an investigation
conducted by them at a regular meeting where the Governor was not
present.

RULING: NO. The power to investigate an administrative case is

not executive in nature, it is lodegd in the PB. SEC. 5.
Composition of the Provincial Board. The provincial board in
first, second and third class provinces shall be composed of
the provincial governor, who shall be the presiding officer of the
board, the vice-governor, and three other members who shall be
elected at large by the qualified electors of the province ... The
presence of three members shall constitute a quorum for the
transaction of business by the board. In case of a tie on any matter
deliberated upon by the board, the side in favor of which the
governor has voted, shall prevail. In the absence of the governor,
the vote of majority of the members present shall constitute a binding
act of the board.

It may be noted that although the foregoing provision makes the

Provincial Governor the presiding officer of the Board, it does not make
his presence indispensable for the valid transaction of business, for it
not only considers the presence of three members (out of the
entire membership of five) sufficient to constitute a quorum for
that purpose, but also anticipates a case when the Governor is absent,
in which case "the vote of a majority of the members present shall
constitute a binding act of the board." The designation of the
Governor as presiding officer is obviously meant to apply to
meetings where he is present, as the logic of the situation
dictates, he being the Executive and highest officer in
attendance.

The power of investigating and deciding an administrative

case filed against a municipal official is not executive in
nature. It is lodged in the Provincial Board as a body, which is
enjoined by law to fix the day, hour and place for the trial of
the case and, as thus fixed, "to hear and investigate the truth
or falsity of the charges ..." The performance of this duty cannot be

frustrated by the absence, fortuitous or deliberate, of the Provincial

Governor. In the very nature of things he may consider it politically
expedient to absent himself especially if he happens to belong to a
political party different from that ofthe official against whom he
himself has filed the administrative charges. The adverse
consequences of such recalcitrance, not only to the official directly
affected but to public interest as well, can easily be imagined.

MALINAO VS REYES Reelection abates any administrative disciplinary

proceedings against the local elective official.

Petitioners basic contention is that inasmuch as the Decision of

September 5, 1994 had become final and executory, for failure of
respondent Mayor to appeal, it was beyond the power of the
Sanggunian to render another decision on October 21, 1994 which in
effect reversed the first decision.These contentions are without merit.
What petitioner claims to be the September 5, 1994 Decision of the
Sangguniang Panlalawigan bore the signature of only one member
(Rodrigo V. Sotto) who signed the Decision as Presiding
Chairman, Blue Ribbon Committee, Sangguniang Panlalawigan.

Neither may the so-called Decision prepared by Sanggunian Member

Rodrigo V. Sotto on September 5, 1994 be regarded as the decision of
the Sanggunian for lack of the signatures of the requisite majority.

At all events, this case is now moot and academic as a result of the
expiration of respondents term during which the act complained of
was allegedly committed, and further proceedings against respondent
Mayor are barred by his reelection on May 8, 1995.

Pursuant to 66(b) of the Code, the penalty of suspension

cannot exceed the unexpired term of the respondent or a
period of six (6) months for every administrative offense. On
the other hand, any administrative disciplinary proceeding
against respondent is abated if in the meantime he is
reelected, because his reelection results in a condonation of
whatever misconduct he might have committed during his
previous term.

SALALIMA VS GUINGONA The liabilities of the Sanggunian members who

were reelected are condoned without prejudice to appropriate civil or criminal
cases.

Section 66(b) of R.A. No. 7160 expressly provides:SEC. 66. Form and
Notice of Decision. - x x x (b) The penalty of suspension shall not
exceed the unexpired term of the respondent or a period of six
(6) months for every administrative offense, nor shall said
penalty be a bar to the candidacy of the respondent so
suspended as long as he meets the qualifications for the office.

This provision sets the limits to the penalty of suspension, viz., it

should not exceed six months or the unexpired portion of the term of
office of the respondent for every administrative offense.[1] An
administrative offense means every act or conduct or omission which
amounts to, or constitutes, any of the grounds for disciplinary action.

Assuming then that the findings and conclusions of the Office of the
President in each of the subject four administrative cases arc

correct, it committed no grave abuse of discretion in imposing the

penalty of suspension, although the aggregate thereof exceeded six
months and the unexpired portion of the petitioners term of office.
The fact remains that the suspension imposed for each
administrative offense did not exceed six months and there
was an express provision that the successive service of the
suspension should not exceed the unexpired portion of the
term of office of the petitioners. Their term of office expired at
noon of 30 June 1995.[2] And this Court is not prepared to rule that the
suspension amounted to the petitioners removal from office.[3]

The petitioners cannot be administratively liable. This is so because

public officials cannot be subject to disciplinary action for
administrative misconduct committed during a prior term. The Court
should never remove a public officer for acts done prior to his present
term of office. To do otherwise would be to deprive the people of their
right to elect their officers. When the people have elected a man to
office, it must be assumed that they did this with knowledge of his life
and character, and that they disregard or forgave his faults or
misconduct, if he had been guilty of any. It is not for the court, by
reason of such faults or misconduct to practically overrule the will of
the people.

So are the liabilities, if any, of petitioner members of the

Sangguniang Panlalawigan ng Albay, who signed Resolution
No. 129 authorizing petitioner Salalima to enter into the
retainer contract in question and who were reelected in the
1992 elections. This is, however, without prejudice to the
institution of appropriate civil and criminal cases as may be
warranted by the attendant circumstances.

GARCIA VS MOJICA A reelected local official may not be held administratively

accountable for misconduct committed during his prior term of office. There is
no distinction as to the precise timing or period when the misconduct was
committed, reckoned from the date of the officials reelection, except that it
must be prior to said date.

MAYOR DAGADAG VS TONGNAWA

FACTS:Mayor Dagadag created a grievance committee to

investigate
charges
against
Tongnawa
&
Gammod
(respondents). The committee thereafter found the respondents
guilty of insubordination, non-performance of duties & absences w/o
leave. The Mayor then suspended the respondents from their repective
positions for 2 mos. Respondents appealed to the CSC contending that
their right to due process is violated. While the appeal is pending
the Mayor ordered respondents to be dropped from the roll of
ees. CSC then issued a resolution affirming the order of the
Mayor/petitioner. When appealed to the CA, the latter ruled to
the contrary, and ordered for the reinstatement of the
respondents and payment of backwages, hence this instant
petition.

In the respondents joint comment, they aver that petitioner has no

legal personality to file the instant petition because he had ceased as
municipal Mayor and only the CSC being the only aggrieved party is
qualified as the proper party.

ISSUE: Who may appeal decision of the CA?

RULING: Both the Mayor & the CSC are proper parties to appeal
the decision of the CA. However, the Mayor/petitioner ceased to be
the municipal mayor during the appeal, therefore he cannot be
anymore the proper party to file the appeal.

Section 2, Rule 3 of the 1997 Rules of Civil Procedure, as amended,

provides: SEC. 2. Parties in interest. ' A real party in interest is the
party who stands to be benefited or injured by the judgment in the
suit, or the party entitled to the avails of the suit. Unless otherwise
authorized by law or these Rules, every action must be prosecuted or
defended in the name of the real party in interest.

The established rule is that a real party in interest is one who would be
benefited or injured by the judgment, or one entitled to the avails of
the suit. The word 'interest, as contemplated by the Rules, means
material interest or an interest in issue and to be affected by the
judgment, as distinguished from mere interest in the question involved
or a mere incidental interest. Stated differently, the rule refers to a real
or present substantial interest as distinguished from a mere
expectancy, or a future, contingent, subordinate, or consequential
interest. As a general rule, one who has no right or interest to protect
cannot invoke the jurisdiction of the court as party-plaintiff in an
action.

We hold that the CSC and the mayor of Tanudan are real parties in
interest in this case and, therefore, can contest the assailed joint
Decision of the Court of Appeals before us.

The CSC is the party adversely affected by the questioned Decision of

the Court of Appeals because it has been mandated by the
Constitution to preserve and safeguard the integrity of our civil service
system. Thus, any transgression by herein respondents of the CSC
rules and regulations will adversely affect its integrity. Significantly, it
has not challenged the assailed Decision.

As regards the mayor of Tanudan, there are two (2) reasons why he
may interpose such appeal. The first is rooted in his power to appoint
officials and employees of his municipality. Both respondents were
appointed by petitioner during his incumbency. In Francisco Abella, Jr.
vs. Civil Service Commission, the Court En Banc (through Justice
Artemio V. Panganiban) held that the municipal mayor, being the
appointing authority, is the real party in interest to challenge the CSC's
disapproval of the appointment of his appointee, thus:

x x x. The power of appointment necessarily entails the

exercise of judgment and discretion. Luego vs. Civil Service
Commission
declared:
Appointment
is
an
essentially
discretionary power and must be performed by the officer in
which it is vested according to his best lights, the only condition
being that the appointee should possess the qualifications
required by law. If he does, then the appointment cannot be
faulted on the ground that there are others better qualified who
should have been preferred. This is a political question
involving considerations of wisdom which only the appointing
authority can decide.

Significantly, 'the selection of the appointee ' taking into account the
totality of his qualifications, including those abstract qualities that
define his personality ' is the prerogative of the appointing authority.
No tribunal, not even this Court may compel the exercise of an
appointment for a favored person.

The CSC's disapproval of an appointment is a challenge to the exercise

of the appointing authority's discretion. The appointing authority must
have the right to contest the disapproval. Thus, Section 2 of Rule VI of
CSC Memorandum Circular 40, s. 1998 is justified insofar as it allows
the appointing authority to request reconsideration or appeal. In
Central Bank vs. Civil Service Commission, this Court has affirmed that
the appointing authority stands to be adversely affected when the CSC
disapproves an appointment. Thus, the said authority can 'defend its
appointment since it knows the reasons for the same. It is also the act
of the appointing authority that is being questioned when an
appointment is disapproved (id.).

Similarly, where a municipal mayor orders the suspension or dismissal

of a municipal employee on grounds he believes to be proper, but his
order is reversed or nullified by the CSC or the Court of Appeals (as in
this case), he has the right to contest such adverse ruling. His right
to appeal flows from the fact that his power to appoint carries
with it the power to remove. Being chief executive of the
municipality, he possesses this disciplinary power over
appointive municipal officials and employees. To be sure,
whenever his order imposing administrative sanctions upon erring
municipal personnel is challenged, he should be allowed to defend his
action considering that he is the appointing authority.

The second reason why the municipal mayor of Tanudan has legal
personality to challenge the Decision of the Court of Appeals is
because the salaries of the respondents, being municipal officials, are
drawn from the municipal funds. Obviously, the mayor has real and
substantial interest in the outcome of the administrative cases against
respondents. xxx...xxx...xxx...

Interpreting the above rule, in Miranda vs. Carreon, Heirs of Mayor

Nemencio Galvez vs. Court of Appeals, and Roque, et al. vs. Delgado,
et al., we held that where the petitioner (a public officer) ceases to be
mayor, the appeal and/or action he initiated may be continued and
maintained by his successor if there is substantial need to do so. If the
successor failed to pursue the appeal and/or action, the same should
be dismissed.

Records show that upon petitioner's cessation from public

office, his successor did not file any manifestation to the effect
that he is continuing and maintaining this appeal.

We thus agree with the respondents that petitioner has lost

his legal personality to interpose the instant petition

MAYOR FLORES VS SANGGUNIANG PANLALAWIGAN OF PAMPANGA

Facts:An administrative complaint was filed against Mayor Flores in

the SP of Pamapangga for dishonesty & misconduct. The complaint
alleges that he executed a purchase receipt no to buy an
acquisition equipment w/o any ordinance or resolution enacted

by the Sangguniang Bayan of Minalin. While the bidding was still

conducted Kai Electronics delivered the equipment already. The notice
of award states that the bidding took place on August 1 when the
purchase receipt was also issued, when the bidding actually took place
on August 6. Moreover, the equipment was overpriced by a 100%. On
September 9, 2002, issued an order recommending that the
Mayor be preventively suspended, to the Gov. w/o seeking an
MR to the order of the SP Mayor Flores sent a letter to the
Gov. requesting to veto the order of the SP. Also w/o waiting for
the Gov.s action, Mayor Flores filed w/ the CA petition for certiorari, he
contended that the SP acted w/ grave abuse of discretion in issuing the
order of preventive suspension.

ISSUE: WON petition for certiorari filed in the CA was premature for
failing to exhaust first administrative remedies.

RULING: YES. The Mayor should have filed an MR to the order of

the SP. After receiving the Order of respondent Sangguniang
Panlalawigan preventively suspending him from office,
petitioner should have filed a motion for reconsideration in
order to give the latter the opportunity to correct itself if there
was any error on its part. Such motion is a condition sine qua non
before filing a petition for certiorari under Rule 65 of the 1997 Rules of
Civil Procedure, as amended.[5] Section 1 of the same Rule requires
that petitioner must not only show that respondent Sangguniang
Panlalawigan, in issuing the questioned Order, acted without or in
excess of its jurisdiction, or with grave abuse of discretion amounting
to lack or excess of jurisdiction, but that there is no appeal, nor any
plain, speedy, and adequate remedy in the ordinary course of law.[6]
We have held that the plain and adequate remedy referred to in
Section 1 of Rule 65 is a motion for reconsideration of the assailed
Order or Resolution.[7] Petitioner may not arrogate to himself the
determination of whether a motion for reconsideration is necessary or
not.[8] To dispense with the requirement of filing a motion for
reconsideration, petitioner must show a concrete, compelling, and
valid reason for doing so.[9] This, petitioner failed to do. Thus, the
Court of Appeals correctly held that petitioner should have
first interposed a motion for reconsideration of the questioned
Order issued by respondent Sangguniang Panlalawigan.

We must add that petitioner, before filing with the Court of Appeals his
petition for certiorari, should have waited for respondent Governor
Lapids action on the recommendation of respondent Sangguniang
Panlalawigan that he be preventively suspended from office; and on
his letter requesting the Governor to veto the questioned Order,
considering that the latter is the one empowered by law to impose
preventive suspension upon him. (Section 63 of the Local Government
Code)...xxx...xxx...

Petitioner has not shown any valid and compelling reason why,
without waiting for the Governors action on the matter, he
immediately filed with the Court of Appeals a petition for
certiorari. By doing so, petitioner effectively deprived the Governor of
his duty to take appropriate action on the controversy.

It is a well-settled rule that where, as here, the petitioner has

available remedies within the administrative machinery

against the action of an administrative board, body, or officer,
the intervention of the courts can be resorted to by him only
after having exhausted all such remedies.[10] The rationale of
this rule rests upon the presumption that the administrative
body, if given the chance to correct its mistake or error, may
amend its decision on a given matter and decide it properly.
The strict application of the doctrine of exhaustion of administrative
remedies will also prevent unnecessary and premature resort to the
court.[11] We cannot countenance petitioners utter disregard of this
procedural norm and frustrate its purpose of attaining a just, speedy,
inexpensive and orderly judicial proceedings.

HON. TOMAS JOSON III VS CA

FACTS:8 members of the SP filed an administrative case against

Mayor Vargas, alleging that the latter submitted to the
provincial budget officer 2 falsified documents, appropriation
No. 1 & Resolution No. 2. Mayor Vargas countered a complaint
for annulment of falsified minutes of session & appropriation
ordinance w/damages against the SB members in the RTC.
Then, Mayor Vargas also filed w/ the SP a motion to suspend
proceedings due to a prejudicial question of the case he filed in the
RTC. W/O resolving the motion the SP issued an order
recommending to the Gov., that Mayor Vargas be preventively
suspended. Later, the SP eventually denied the motion to suspend
filed by Mayor Vargas. The latter appealed his denied motion to
the Office of the President. However, Gov. Joson issued an
order putting him under preventive suspension. The Office of
the President reversed and lifted the order of preventive
suspension. Unsatisfied, Gov. Joson filed an MR to the Office of
the President, the latter granted the Gov.s MR, thus the order
of preventive suspension was reinstated.

ISSUE: WON the preventive suspension is proper. (NECESSITY OF THE

SUSPENSION ORDER)

RULING:Under Section 63 of the Local Government Code, preventive

suspension may be imposed (a) after the issues are joined; (b) when
the evidence of guilt is strong; and (c) given the gravity of the offense,
there is great probability that the continuance in office of the
respondent could influence the witnesses or pose a threat to the safety
and integrity of the records and other evidence. Issues are considered
joined when the complaint has been answered and there are no longer
any substantial preliminary issues that remain to be threshed out.

In its Order dated 22 April 2003, the Office of the President stated that
the facts of the case do not warrant a conclusion that issues are
deemed joined. Furthermore, the Office of the President found no basis
for the issuance of the preventive suspension. The Office of the
President explained: In the administrative case, it appears that
petitioner did not file, so far, an answer to the complaint thus the
issues could not have been considered joined. What she did was to file
a Motion To Suspend Proceedings And/Or Motion To Dismiss which was
treated by the sanggunian as her answer. However, nothing in the
records can be inferred that the petitioner intended the said motion to

be her answer. In fact, when the motion was denied on March 17, 2003
through SP Resolution No. 105-s-2003, she immediately appealed the
said Resolution to this Office.

In fine, no inference can be had that the motion filed was considered
her answer otherwise, petitioner could have stated so therein. Finally,
even assuming that petitioners motion was already her answer and
therefore, the issues have been joined, it is observed that the
grounds cited by the sanggunian in recommending the
assailed preventive suspension are general statements mere
verbatim reproduction of the provision of law, unsupported by
any factual and substantial evidence. There is no showing that
the evidence of guilt is strong, with both parties charging each
other with falsification of documents. In fact, that is the
subject of Civil Case No. 4442. Moreover, it cannot be said that
the continuance in office of respondent could influence the
witnesses or pose a threat to the safety and integrity of the
records and other evidence. The recitals in SP Resolution No. 105 s.
2003 are unconvincing.

xxx...xxx...xxx... It would thus appear that the grounds cited by the

Sangguniang Panlalawigan for recommending the preventive
suspension of Mayor Vargas were just general statements unsupported
by any evidence. This is contrary to the requisites for a preventive
suspension which require that evidence of guilt must be strong and
that given the gravity of the offense, there is great probability that the
continuance in office of the respondent could influence the witnesses
or pose a threat to the safety and integrity of the records and other
evidence. The haste in issuing the resolution recommending the
preventive suspension of Mayor Vargas is unreasonable considering
the gravity of the effects of such suspension. Suspension from office of
an elective official would deprive the electorate of the services of the
person they have voted into office. As held in Ganzon v. Court of
Appeals:

The plain truth is that this Court has been ill at ease with suspensions
x x x because it is out of the ordinary to have a vacancy in local
government. The sole objective of a suspension, as we have
held, is simply "to prevent the accused from hampering the
normal cause (sic) of the investigation with his influence and
authority over possible witnesses" or to keep him off "the
records and other evidence." It is a means, and no more, to assist
prosecutors in firming up a case, if any, against an erring local official.
Under the Local Government Code, it cannot exceed sixty days, which
is to say that it need not be exactly sixty days long if a shorter period
is otherwise sufficient, and which is also to say that it ought to be lifted
if prosecutors have achieved their purpose in a shorter span.

EDMUNDO JOSE BUENCAMINO VS CA

FACTS:Constantino Pascual, private respondent filed an

administrative complaint against Edmundo Buencamino, mayor
of Bulacan in the Ombudsman. The complaint allege that
Mayor Buencamino demand a pass way fee worth 1000 pesos
per delivery truck of marble rocks that passes the territorial
jurisdiction of Bulacan w/o official receipt. Mayor Buencamino

denied the allegations and explained that the same was imposed as
regulatory fees under an ordinance enacted by the SB of San Miguel
Bulacan. However, according to Constantino Pascual, the ordiance was
disapproved by the SP of Bulacan for being ultra vires. In a decision,
the Ombudsman found Mayor Buencamino guilty & suspended
him for 6 mos.

ISSUE: WON the decision of the Ombudsman is immediately executory

pending appeal.

RULING: Decisions are immediately executory even pending

appeal, no distinction whether small or big cases. However, as
aptly stated by the Office of the Ombudsman in its comment, Section
7, Rule III of Administrative Order No. 07 has been amended by
Administrative Order No. 17, thus:

Sec. 7. Finality and execution of decision. - Where the respondent is

absolved of the charge, and in case of conviction where the
penalty imposed is public censure or reprimand, suspension of
not more than one month, or a fine not equivalent to one
month salary, the decision shall be final, executory and
unappealabe. In all other cases, the decision may be appealed to the
Court of Appeals on a verified petition for review under the
requirements and conditions set forth in Rule 43 of the Rules of Court,
within fifteen (15) days from receipt of the written Notice of the
Decision or Order denying the Motion for Reconsideration.

An appeal shall not stop the decision from being executory. In

case the penalty is suspension or removal and the respondent wins
such appeal, he shall be considered as having been under preventive
suspension and shall be paid the salary and such other emoluments
that he did not receive by reason of the suspension or removal.

A decision of the Office of the Ombudsman in administrative cases

shall be executed as a matter of course. The Office of the Ombudsman
shall ensure that the decision shall be strictly enforced and properly
implemented. The refusal or failure by any officer without just cause to
comply with an order of the Office of the Ombudsman to remove,
suspend, demote, fine, or censure shall be a ground for disciplinary
action against said officer.

Clearly, considering that an appeal under Administrative Order No. 17,

the amendatory rule, shall not stop the Decision of the Office
of the Ombudsman from being executory, we hold that the
Court of Appeals did not commit grave abuse of discretion in
denying petitioners application for injunctive relief.

SANGGUNIANG BARANGAY OF DON MARIANO MARCOS VS MARTINEZ

ISSUE: 1. WON the Sangguniang Bayan has the power to remove

an elective official from office.

NO. As the law stands, Section 61 of the Local Government Code

provides for the procedure for the filing of an administrative case
against an erring elective barangay official before the
Sangguniang Panlungsod or Sangguniang Bayan. However, the
Sangguniang Panlungsod or Sangguniang Bayan cannot order
the removal of an erring elective barangay official from office,

as the courts are exclusively vested with this power under

Section 60 of the Local Government Code. Thus, if the acts
allegedly committed by the barangay official are of a grave nature
and, if found guilty, would merit the penalty of removal from office, the
case should be filed with the regional trial court. Once the court
assumes jurisdiction, it retains jurisdiction over the case even if it
would be subsequently apparent during the trial that a penalty less
than removal from office is appropriate. On the other hand, the most
extreme penalty that the Sangguniang Panlungsod or Sangguniang
Bayan may impose on the erring elective barangay official is
suspension; if it deems that the removal of the official from service is
warranted, then it can resolve that the proper charges be filed in court.

The rule which confers to the proper courts the power to

remove an elective local official from office is intended as a
check against any capriciousness or partisan activity by the
disciplining authority. Vesting the local legislative body with the
power to decide whether or not a local chief executive may be
removed from office, and only relegating to the courts a mandatory
duty to implement the decision, would still not free the resolution of
the case from the capriciousness or partisanship of the disciplining
authority. Thus, the petitioners interpretation would defeat the clear
intent of the law.

Moreover, such an arrangement clearly demotes the courts to nothing

more than an implementing arm of the Sangguniang Panlungsod, or
Sangguniang Bayan. This would be an unmistakable breach of the
doctrine on separation of powers, thus placing the courts under the
orders of the legislative bodies of local governments. The courts would
be stripped of their power of review, and their discretion in imposing
the extreme penalty of removal from office is thus left to be exercised
by political factions which stand to benefit from the removal from
office of the local elective official concerned, the very evil which
Congress sought to avoid when it enacted Section 60 of the Local
Government Code.

Congress clearly meant that the removal of an elective local official be

done only after a trial before the appropriate court, where court rules
of procedure and evidence can ensure impartiality and fairness and
protect against political maneuverings. Elevating the removal of an
elective local official from office from an administrative case to a court
case may be justified by the fact that such removal not only punishes
the official concerned but also, in effect, deprives the electorate of the
services of the official for whom they voted.

ISSUE 2: WON the interpretation, that the power to remove is a

judicial function, violates the doctrine of separation of powers.

The doctrine of separation of powers is not absolute in its

application; rather, it should be applied in accordance with the
principle of checks and balances. The removal from office of
elective officials must not be tainted with partisan politics and
used to defeat the will of the voting public. Congress itself saw it
fit to vest that power in a more impartial tribunal, the court.
Furthermore, the local government units are not deprived of the right
to discipline local elective officials; rather, they are prevented from

imposing the extreme penalty of dismissal.

SALUMBIDES VS OFFICE OF THE OMBUDSMAN

FACTS:Towards the end of 2001, the mayor saw the need to

construct 2-classroom building, so he consulted Salumbides
(municipal legal officer). The latter advised the mayor that the
construction og the building be charged on the Maintenance & other
Operating Expenses/Repair & Maintenance Facilities (MOOE/RMF)
already implemented. However, when they consulted Glenda
(municipal budget officer) they found out that there were no funds left
MOOE/RMF. Since, The SB is in recess, Glenda & Salumbides advised
the mayor to source the funds from the 1M MOOE/RMF allocation in the
approved municipal budget in 2002.

The mayor then instructed the municipal engineer to proceed with

construction project. Upon advice Hernan Jason (municipal planning &
development officer, the mayor included the construction projects in
the list scheduled for bidding on Jan. 25, 2002 w/c failed. Moved to
another bidding w/c also failed.

The mayor later, admitted his expectation to be reimbursed of the

advances he made to start the project, since the construction of the
projects commenced w/o any approved appropriation and ahead of the
bidding. On May 13, 2002, Ricardo Agon et. al. ( respondents)
filed a complaint in the Ombudsman against, the mayor,
Hernan Jason, Aquino, Salumbides and Glenda. By order the
ombudsman denied the prayer of the respondents to put the
petitioners under preventive suspension. Later it dropped the
mayor in the case because his re- election to the same office served as
a condonation for acts done in a prior term, thus no longer
administratively liable.

ISSUE: WON the condonation of the act of an elective official in a prior

term would also condone the same act done by appointed officials who
were administratively charged along w/ the re-elected official.

RULING: NO. The doctrine of condonation does not extend to

appointive officials.

More than 60 years ago, the Court in Pascual v. Hon. Provincial Board
of Nueva Ecija17 issued the landmark ruling that prohibits the
disciplining of an elective official for a wrongful act committed during
his immediately preceding term of office. The Court explained that
"[t]he underlying theory is that each term is separate from
other terms, and that the reelection to office operates as a
condonation of the officer's previous misconduct to the extent
of cutting off the right to remove him therefor."18

The Court should never remove a public officer for acts done
prior to his present term of office. To do otherwise would be to
deprive the people of their right to elect their officers. When
the people elect[e]d a man to office, it must be assumed that they did
this with knowledge of his life and character, and that they disregarded
or forgave his faults or misconduct, if he had been guilty of any. It is
not for the court, by reason of such faults or misconduct[,] to
practically overrule the will of the people.19

xxx...xxx...xxx...
28
29 Salalima v. Guingona, Jr. and
Mayor
Garcia v. Hon. Mojica administrative complaint was not filed before the
reelection of the public official, and even if the alleged misconduct
occurred four days before the elections, respectively. Salalima did not
distinguish as to the date of filing of the administrative complaint, as
long as the alleged misconduct was committed during the prior
term, the precise timing or period of which Garcia did not
further distinguish, as long as the wrongdoing that gave rise
to the public official's culpability was committed prior to the
date of reelection. xxx...xxx...xxx...

The doctrine this Court laid down in Salalima v. Guingona, Jr. and
Aguinaldo v. Santos are inapplicable to the present circumstances.
Respondents in the mentioned cases are elective officials,
unlike respondent here who is an appointed official. Indeed,
election expresses the sovereign will of the people. Under the
principle of vox populi est suprema lex, the re-election of a
public official may, indeed, supersede a pending administrative
case. The same cannot be said of a re-appointment to a non-career
position.

Substantial distinctions clearly exist between elective officials

and appointive officials. The former occupy their office by
virtue of the mandate of the electorate. They are elected to an
office for a definite term and may be removed therefrom only
upon stringent conditions. On the other hand, appointive officials
hold their office by virtue of their designation thereto by an
appointing authority. Some appointive officials hold their office
in a permanent capacity and are entitled to security of tenure
while others serve at the pleasure of the appointing authority.

An election is the embodiment of the popular will, perhaps the purest

expression of the sovereign power of the people. It involves the choice
or selection of candidates to public office by popular vote. Considering
that elected officials are put in office by their constituents for a
definite term, x x x complete deference is accorded to the will of the
electorate that they be served by such officials until the end of the
term for which they were elected. In contrast, there is no such
expectation insofar as appointed officials are concerned. (emphasis
and underscoring supplied)

The electorate's condonation of the previous administrative infractions

of the reelected official cannot be extended to that of the reappointed
coterminous employees, the underlying basis of the rule being to
uphold the will of the people expressed through the ballot. In other
words, there is neither subversion of the sovereign will nor
disenfranchisement of the electorate to speak of, in the case of
reappointed coterminous employees.

It is the will of the populace, not the whim of one person who happens
to be the appointing authority, that could extinguish an administrative
liability. Since petitioners hold appointive positions, they cannot claim
the mandate of the electorate. The people cannot be charged with the
presumption of full knowledge of the life and character of each and
every probable appointee of the elective official ahead of the latter's
actual reelection.

The appellate court correctly ruled that as municipal legal officer,

petitioner Salumbides "failed to uphold the law and provide a sound
legal assistance and support to the mayor in carrying out the delivery
of basic services and provisions of adequate facilities when he advised
[the mayor] to proceed with the construction of the subject projects
without prior competitive bidding."38 As pointed out by the Office of
the Solicitor General, to absolve Salumbides is tantamount to allowing
with impunity the giving of erroneous or illegal advice, when by law he
is precisely tasked to advise the mayor on "matters related to
upholding the rule of law."39 Indeed, a legal officer who renders a
legal opinion on a course of action without any legal basis becomes no
different from a lay person who may approve the same because it
appears justified.

As regards petitioner Glenda, the appellate court held that the

improper use of government funds upon the direction of the mayor
and prior advice by the municipal legal officer did not relieve her of
liability for willingly cooperating rather than registering her written
objection40 as municipal budget officer.
PART X RECALL

1. By whom exercised

Section 69. By Whom Exercised. - The power of recall for loss of

confidence shall be exercised by the registered voters of a
local government unit to which the local elective official subject to
such recall belongs.

2. Initiation of Recall Process

Section 70. Initiation of the Recall Process.

a. The Recall of any elective provincial, city, municipal or barangay

official shall be commenced by a petition of a registered voter in
the local government unit concerned and supported by the
registered voters in the local government unit concerned
during the election in which the local official sought to be
recalled was elected subject to the following percentage
requirements:

1. At least twenty-five percent (25%) in the case of local

government units with a voting population of not more
than twenty thousand (20,000);

2. At least twenty percent (20%) in the case of local

government units with a voting population of at least
twenty thousand (20,000) but not more than seventyfive thousand (75,000): Provided, That in no case shall
the required petitioners be less than five thousand
(5,000);

3. At least fifteen percent (15%) in the case of local

government nits with a voting population of at least
seventy-five thousand (75,000) but not more than three
hundred thousand (300,000): Provided, however, That in no
case shall the required number of petitioners be less than

fifteen thousand (15,000); and

4. At least ten percent (10%) in the case of local

government units with a voting population of over three
hundred thousand (300,000): Provided, however, That in no
case shall the required petitioners be less than forty-five
thousand (45,000).

b. The process of recall shall be effected in accordance with the

following procedure:

1. A written petition for recall duly signed by the

representatives of the petitioners before the election
registrar or his representative, shall be filed with the
Comelec through its office in the local government unit
concerned.

2. The petition to recall shall contain the following:

a. The names and addresses of the petitioners written in

legible form and their signatures;

b. The barangay, city or municipality, local legislative

district and the province to which the petitioners belong;

c. The name of the official sought to be recalled; and

d. A brief narration of the reasons and justifications

therefore.

1. The Comelec shall, within fifteen (15) days from the

filing of the petition, certify to the sufficiency of the
required number of signatures. Failure to obtain the
required number of signatures automatically nullifies
the petition;

2. If the petition is found to be sufficient in form, the

Comelec or its duly authorized representative shall,
within three (3) days form the issuance of the
certification, provide the official sought to be recalled a
copy of the petition, cause its publication a national
newspaper of general circulation and a newspaper of general
circulation in the locality, once a week for three (3) consecutive
weeks at the expense of the petitioners and at the same time
post copies thereof in public and conspicuous places for a
period of not less than ten (10) days nor more than twenty (20)
days, for the purpose of allowing interested parties to examine
and verify the validity of the petition and the authenticity of the
signatures contained therein.

3. The Comelec or its duly authorized representatives shall,

upon issuance of certification, proceed independently
with the verification and authentication of the
signatures of the petitioners and registered voters
contained therein. Representatives of the petitioners and the
official sought to be recalled shall be duly notified and shall
have the right to participate therein as mere observers. The
filing of any challenge or protest shall be allowed within the
period provided in the immediately preceding paragraph and

shall be ruled upon with finality within fifteen (15) days from
the date of filing of such protest or challenge;

3. Election on Recall

Section 73. Prohibition from Resignation. - The elective local official

sought to be recalled shall not be allowed to resign while the
recall process is in progress.

6. Limitations on Recall

Section 74. Limitations on Recall.

(a) Any elective local official may be the subject of a recall

election only once during his term of office for loss of
confidence.

(b) No recall shall take place within one (1) year from the date of the
official's assumption to office or one (1) year immediately preceding a
regular local election.

7. Expenses

Section 72. Effectivity of Recall. - The recall of an elective local

official shall be effective only upon the election and
proclamation of a successor in the person of the candidate
receiving the highest number of votes cast during the election
on recall. Should the official sought to be recalled receive the highest
number of votes, confidence in him is thereby affirmed, and he shall
continue in office.

5. Prohibition from Resignation

SEC. 71. Election on Recall. - Upon the filing of a valid petition for
recall with the appropriate local office of the Comelec, the Comelec or
its duly authorized representative shall set the date of the election or
recall, which shall not be later than thirty (30) days upon the
completion of the procedure outlined in the preceding article,
in the case of the barangay, city or municipal officials, and
forty-five (45) days in the case of provincial officials. The
officials sought to be recalled shall automatically be considered as duly
registered candidate or candidates to the pertinent positions and, like
other candidates, shall be entitled to be voted upon.

4. Effectivity of Recall

4. Upon the lapse of the aforesaid period, the Comelec or its

duly authorized representative shall announce the acceptance
of candidates to the positive and thereafter prepare the list of
candidates which shall include the name of the official sought
to be recalled.

Section 75. Expenses Incident to Recall Elections. - All expenses

incident to recall elections shall be borne by the COMELEC. For this
purpose, there shall be included in the annual General Appropriations
Act a contingency fund at the disposal of the COMELEC for the conduct
of recall elections.

Recall

Recall is a mode of removing an elected official by the people before

the end of his term.

Ground: loss of trust and confidence

NO MORE PREPARATORY RECALL ASSEMBLY (PRA) AS MODE OF

INITIATING RECALL.

There is only one mode of initiating recall: By the Registered Voters

(following certain percentage)

The incumbent officials, who is the subject of the recall

proceedings, will automatically become a candidate for that
recall election. In fact, he cannot resign. Then, Comelec will
invite others ti file COC for the recall election.

2 things may happen:

i. incumbent official will win the recall election, meaning, the

recall election fails since it has been shown that the people still
have their trust and confidence on the incumbent

ii. if somebody else wins the recall election, meaning, the recall
election succeeds, since it has been shown that the people lost
their trust and confidence on the incumbent

Prohibition in recall proceedings

No resignation during recall process;

Recall election should only be once during the term of the official.
(note of election, not proceeding, thus, initiation can be
done more than once)

No recall (election) shall take place within one (1) year from
date of officials assumption to office or one (1) year
immediately preceding a regular election (day of election and that
election affecting the office of the official concerned)

Resignation of elective official

Effective upon acceptance by President, Governor, Sanggunian,

or Mayor, as the case may be.

If not acted upon by the authority within 15 working days from

receipt, deemed accepted.

Note: An elected official cannot resign when (a) facing recall

process or (b) facing administrative proceeding.

ANGOBUNG VS COMELEC

Facts: Petitioner won as the duly elected Mayor of the Municipality of

Tumauini, Isabela in the local elections of 1995. He garnered 55% of all
the votes cast. Private respondent de Alban was also a candidate in
said elections.

Sometime in early September, 1996, private respondent filed with the

Local Election Registrar in Tumauni, Isabela, a Petition for
Recall[3]against petitioner. On September 12, 1996, petitioner
received a copy of this petition. Subsequently said petition was
forwarded to the Regional Office in Tuguegarao, Cagayan and then to
the main office of COMELEC in Manila, for approval.

Acting on the petition, Deputy Executive Director for Operations Pio

Jose
Joson
submitted
to
the
COMELEC
En
Banc,
a
Memorandum[4]dated October 8, 1996 recommending approval of the
petition for recall filed by private respondent and its signing by other
qualified voters in order to garner at least 25% of the total number of
registered voters as required by Section 69(d) of the Local
Government code of 1991.

In turn acting on the abovementioned Memorandum of Deputy

Executive Director Joson, the COMELEC en banc issued the herein
assailed Resolution No. 96-2951.

Issue: Whether or not the one-year ban applies in this case

Ruling: The SC resolved the issue against Mayor Paras, because

the next election is for Barangay, not Mayoralty position which
is the one to be recalled from. The regular local election
referred to in Section 74, LGC, means that the approaching
local election must be one where the position of the official to
be recalled is actually contested and to be filled by the
electorate.

Private respondent is correct in saying that in the light of our

pronouncement in Paras v. COMELEC[8], the recall election scheduled
on December 2, 1996 in the instant case cannot be said to be barred
by the May 12, 1997 Barangay Elections. In construing the meaning of
the term, regular local election in Section 74 of the Local
Government Code of 1991 which provides that no recall shall take
place within one (1) year x x x immediately preceding a regular
local election, we ruled that for the time bar to apply, the
approaching regular local election must be one where the position of
the official to be recalled, is to be actually contested and filled by the
electorate. Thus, in the instant case where the time bar is being
invoked by petitioner mayor in view of the approaching Barangay
Elections in May 1997, there can be no application of the one year bar,
hence no invalidity may be ascribed to Resolution No. 96-2951 on this
ground.

PARAS VS COMELEC It would be more in keeping with the intent of the

recall provision of the LGC to construe regular local election as one
referring to an election where the office held by the local elective
official sought to be recalled will be contested and filled by the
electorate. Barangay recall election cannot be barred by SK elections.

The evident intent of Section 74 is to subject an elective local official

to recall election once during his term of office. Paragraph (b)
construed together with paragraph (a) merely designates the period
when such elective local official may be subject of a recall election,
that is, during the second year of his term of office. Thus, subscribing
to petitioners interpretation of the phrase regular local election to
include the SK election will unduly circumscribe the novel provision of
the Local Government Code on recall, a mode of removal of public
officers by initiation of the people before the end of his term. And if
the SK election which is set by R.A. No. 7808 to be held every three
years from May 1996 were to be deemed within the purview of the
phrase regular local election, as erroneously insisted by petitioner,
then no recall election can be conducted rendering inutile the recall

provision of the Local Government Code.

It would, therefore, be more in keeping with the intent of the recall

provision of the Code to construe regular local election as one referring
to an election where the office held by the local elective official sought
to be recalled will be contested and be filled by the electorate.

Nevertheless, recall at this time is no longer possible because

of the limitation stated under Section 74 (b) of the Code
considering that the next regular election involving the
barangay office concerned is barely seven (7) months away,
the same having been scheduled on May 1997.

CLAUDIO VS COMELEC The term recall in Sec. 74(b) refers to the recall
election itself and does not include the convening of the PRA. The phrase
regular local election refers to the day of the regular local election
and not to the election period.

Petitioner contends that the term "recall" in 74(b) refers to a process,

in contrast to the term "recall election" found in 74(a), which
obviously refers to an election. He claims that "when several barangay
chairmen met and convened on May 19, 1999 and unanimously
resolved to initiate the recall, followed by the taking of votes by the
PRA on May 29, 1999 for the purpose of adopting a resolution to
initiate the recall of Jovito Claudio as Mayor of Pasay City for loss of
confidence, the process of recall began" and, since May 29, 1999 was
less than a year after he had assumed office, the PRA was illegally
convened and all proceedings held thereafter, including the filing of
the recall petition on July 2, 1999, were null and void.

We can agree that recall is a process which begins with the convening
of the preparatory, recall assembly or the gathering of the signatures
at least 25% of the registered voters of a local government unit, and
then proceeds to the filing of a recall resolution or petition with the
COMELEC, the verification of such resolution or petition, the fixing of
the date of the recall election, and the holding of the election on the
scheduled date.

However, as used in paragraph (b) of 74, "recall" refers to the

election itself by means of which voters decide whether they should
retain their local official or elect his replacement, excluding the
convening of the PRA and the filing of a petition for recall with the
Comelec.

The term "recall" in paragraph (b) refers to the recall election

and not to the preliminary proceedings to initiate recall

1. Because 74 speaks of limitations on "recall" which,

according to 69, is a power which shall be exercised by the
registered voters of a local government unit. Since the voters
do not exercise such right except in an election, it is clear that
the initiation of recall proceedings is not prohibited within the
one-year period provided in paragraph (b);

2. Because the purpose of the first limitation in paragraph (b) is

to provide voters a sufficient basis for judging an elective local
official, and final judging is not done until the day of the
election; and

3. Because to construe the limitation in paragraph (b) as

including the initiation of recall proceedings would unduly
curtail freedom of speech and of assembly guaranteed in the
Constitution.

As the recall election in Pasay City is set on April 15, 2000,

more than one year after petitioner assumed office as mayor
of that city, we hold that there is no bar to its holding on that
date.

Petitioner contends, however, that the date set by the COMELEC for
the recall election is within the second period of prohibition in
paragraph (b). He argues that the phrase "regular local elections" in
paragraph (b) does not only mean "the day of the regular local
election" which, for the year 2001 is May 14, but the election period as
well, which is normally at least forty five (45) days immediately before
the day of the election. Hence, he contends that beginning March 30,
2000, no recall election may be held.

This contention is untenable.

The law is unambiguous in providing that "[n]o recall shall

take place within . . . one (1) year immediately preceding a
regular local election." Had Congress intended this limitation
to refer to the campaign period, which period is defined in the
Omnibus Election Code,[10] it could have expressly said so.
PART XI HUMAN RESOURCES AND DEVELOPMENT

Secs. 76-96 - see codal

Practice of profession

GR: All LCEs cannot practice profession nor engage in any occupation
other than the exercise of their functions as LCEs.

E: If he is a doctor, in which case, he can practice such

profession but only in case of emergency even during
session hours without compensation.

SP Member can practice profession or engage in any

occupation except during session hours, with certain
limitations to Lawyers on grounds of conflict of interests.

Doctors can practice in case of emergency even during session hours

without compensation.

DE RAMA VS COURT OF APPEALS

Facts: Upon his assumption to the position of Mayor of Pagbilao,

Quezon, petitoner Conrado De Rama wrote a letter to the CSC seeking
the recall of the appointments of 14 municipal employees. Petitioner
justified his recall request on the allegation that the appointments of
said employees were midnight appointments of the former mayor,
done in violation of Art. VII, Sec. 15 of the Constitution. The CSC
denied petitioners request for the recall of the appointments
of the 14 employees for lack of merit. The CSC dismissed
petitioners allegation that these were midnight appointments,
pointing out that the constitutional provision relied upon by petitioner

prohibits only those appointments made by an outgoing President and

cannot be made to apply to local elective officials. The CSC opined that
the appointing authority can validly issue appointments until his term
has expired, as long as the appointee meets the qualification
standards for the position.

Issue: Whether or not the appointments made by the outgoing Mayor

are forbidden under Art. VII, Sec. 15 of the Constitution

Held: The CSC correctly ruled that the constitutional prohibition on socalled midnight appointments, specifically those made within 2
months immediately prior to the next presidential elections,
applies only to the President or Acting President. There is no
law that prohibits local elective officials from making
appointments during the last days of his or her tenure.

Petitioner admits that his very first official act upon assuming the
position of town mayor was to issue Office Order No. 95-01 which
recalled the appointments of the private respondents. There was no
previous notice, much less a hearing accorded to the latter. Clearly, it
was petitioner who acted in undue haste to remove the private
respondents without regard for the simple requirements or due
process of law. In doing so, he overstepped the bounds of his authority.
While he argues that the appointing power has the sole authority to
revoke said appointments, there is no debate that he does not have
blanket authority to do so. Neither can he question the CSC's
jurisdiction to affirm or revoke the recall.

Rule V, Section 9 of the Omnibus Implementing Regulations of the

Revised Administrative Code specifically provides that "an
appointment accepted by the appointee cannot be withdrawn
or revoked by the appointing authority and shall remain in
force and in effect until disapproved by the Commission." Thus,
it is the CSC that is authorized to recall an appointment initially
approved, but only when such appointment and approval are proven to
be in disregard of applicable provisions of the civil service law and
regulations.19 Moreover, Section 10 of the same rule provides:

Sec. 10. An appointment issued in accordance with pertinent laws and

rules shall take effect immediately upon its issuance by the
appointing authority, and if the appointee has assumed the duties
of the position, he shall be entitled to receive his salary at once
without awaiting the approval of his appointment by the Commission.
The appointment shall remain effective until disapproved by
the Commission. In no case shall an appointment take effect
earlier than the date of its issuance.

Section 20 of Rule VI also provides: Sec. 20. Notwithstanding the initial

approval of an appointment, the same may be recalled on any of the
following grounds:

(a) Non-compliance with the procedures/criteria provided

in the agency's Merit Promotion Plan;

(b)
Failure
to
pass
Selection/Promotion Board;

(c)

Violation

of

the

through

existing

the

collective

agency's
agreement

between management
promotion; or

and

employees

to

(d) Violation of other existing civil service law, rules and

regulations.

Accordingly, the appointments of the private respondents may only be

recalled on the above-cited grounds. And yet, the only reason
advanced by the petitioner to justify the recall was that these were
"midnight appointments." The CSC correctly ruled, however, that the
constitutional prohibition on so-called "midnight appointments,"
specifically those made within two (2) months immediately prior to the
next presidential elections, applies only to the President or Acting
President.

If ever there were other procedural or legal requirements that were

violated in implementing the appointments of the private respondents,
the same were not seasonably brought before the Civil Service
Commission. These cannot be raised for the first time on appeal.

PEOPLE VS TOLEDANO RA 7160 which repealed BP 337, reenacted in its Sec.

89 the legal provision of Sec. 41 of BP 337 and penalizes the same act
previously penalized under the repealed law, such that the act
committed before the reenactment continues to be a crime.

Respondent judge dismissed the information on the ground that the

administrative case filed against private respondent Bunao with the
Office of the Ombudsman had been dismissed.

But Article 89 of the Revised Penal Code enumerates the

grounds for extinction of criminal liability; and, dismissal of an
administrative charge against accused is not one of them.

It is indeed a fundamental principle of administrative law that

administrative cases are independent from criminal actions for
the same act or omission.[7] Besides, the reliance made by respondent
judge on the re-election of private respondent as Kagawad in the May
1992 election so as to warrant the dismissal of the information filed
against him, citing Aguinaldo vs. Santos[8] is misplaced. The ruling in
said case which forbids the removal from office of a public
official for administrative misconduct committed during a prior
term, finds no application to criminal cases, pending against
said public officer.

Finally, Republic Act 7160, otherwise known as the Local Government

Code of 1991, which repealed B.P. Blg. 337 reenacted in its Section 89
the legal provision of Section 41 of B.P. Blg. 337 under which private
respondent Bunao was charged and penalizes the same act previously
penalized under the repealed law, such that the act committed before
the reenactment continuous to be a crime.[9] Hence, prosecution will
proceed under the provisions of Section 89 in relation to Section 514 of
R.A.7160.[10]

PART XII LOCAL LEGISLATIONS

relative

1. Ordinance vs Resolution

Art. 107 IRR

Art. 107. Ordinances and Resolutions. - The following rules shall

govern the enactment of ordinances and resolutions:

(a) Legislative actions of a general and permanent

character shall be enacted in the form of
ordinances, while those which are of temporary
character shall be passed in the form of
resolutions. Matters relating to proprietary
functions and to private concerns shall also be
acted upon by resolution.

(b) Proposed ordinances and resolutions shall be in

writing and shall contain an assigned number, a title or
caption, an enacting or ordaining clause, and the date of
its proposed effectivity. In addition, every proposed
ordinance shall be accompanied by a brief explanatory
note containing the justification for its approval. It shall
be signed by the author or authors and submitted to the
secretary to the sanggunian who shall report the
same to the sanggunian at its next meeting.

(c) A resolution shall be enacted in the same

manner prescribed for an ordinance, except that
it need not go through a third reading for its final
consideration unless decided otherwise by a majority
of all the sanggunian members.

(d) No ordinance or resolution shall be considered

on second reading in any regular meeting unless
it has been reported out by the proper committee
to which it was referred or certified as urgent by
the local chief executive.

(e) Any legislative matter duly certified by

local chief executive as urgent, whether or not
included in the calendar of business, may
presented and considered by the body at
same meeting without need of suspending
rules.

(f) The secretary to the sanggunian of the province, city

or municipality shall prepare copies of the proposed
ordinance or resolution in the form it was passed on
second reading, and shall distribute to each sanggunian
member a copy thereof, except that a measure certified
by the local chief executive concerned as urgent may be
submitted for final voting immediately after debate or
amendment during the second reading.

(g) No ordinance or resolution passed by the

sanggunian in a regular or special session duly
called for the purpose shall be valid unless
approved by a majority of the members present,
there being a quorum. Any ordinance or resolution
authorizing or directing the payment of money or
creating liability, shall require the affirmative vote of

the
it is
be
the
the

a majority of all the sanggunian members for its

passage.

(h) Upon the passage of all ordinances and resolutions

directing the payment of money or creating liability, and
at the request of any member, of any resolution or
motion, the sanggunian shall record the ayes and
nays. Each approved ordinance or resolution shall
be stamped with the seal of the sanggunian and
recorded in a book kept for the purpose.

2. Requisites for the validity of ordinances

ALBON VS BAYANI FERNANDO

Like all LGUs, the City of Marikina is empowered to enact

ordinances for the purposes set forth in the Local Government
Code (RA 7160). It is expressly vested with police powers
delegated to LGUs under the general welfare clause of RA
7160.8 With this power, LGUs may prescribe reasonable
regulations to protect the lives, health, and property of their
constituents and maintain peace and order within their
respective territorial jurisdictions. Cities and municipalities also
have the power to exercise such powers and discharge such
functions and responsibilities as may be necessary, appropriate
or incidental to efficient and effective provisions of the basic
services and facilities, including infrastructure facilities
intended primarily to service the needs of their residents and
which are financed by their own funds.10 These infrastructure
facilities include municipal or city roads and bridges and similar
facilities.

There is no question about the public nature and use of the

sidewalks in the Marikina Greenheights Subdivision. One of the
"whereas clauses" of PD 121612 (which amended PD 95713)
declares that open spaces,14 roads, alleys and sidewalks in a
residential subdivision are for public use and beyond the
commerce of man. In conjunction herewith, PD 957, as
amended by PD 1216, mandates subdivision owners to set
aside open spaces which shall be devoted exclusively for the
use of the general public. Thus, the trial and appellate
courts were correct in upholding the validity of
Ordinance No. 59, s. 1993. It was enacted in the exercise
of the City of Marikinas police powers to regulate the
use of sidewalks. However, both the trial and appellate courts
erred when they invoked our 1991 decision in White Plains
Association and automatically applied it in this case.

This Court has already resolved three interrelated White Plains

Association cases:15 (1) G.R. No. 5568516resolved in 1985; (2)
G.R. No. 9552217 decided in 1991 and (3) G.R. No. 12813118
decided in 1998. The ruling in the 1991 White Plains Association
decision relied on by both the trial and appellate courts was
modified by this Court in 1998 in White Plains Association v.
Court of Appeals.19 Citing Young v. City of Manila,20this Court
held in its 1998 decision that subdivision streets belonged to
the owner until donated to the government or until

expropriated upon payment of just compensation. The word

"street," in its correct and ordinary usage, includes not only the
roadway used for carriages and vehicular traffic generally but
also the portion used for pedestrian travel.21 The part of the
street set aside for the use of pedestrians is known as a
sidewalk.

Under subdivision laws,23 lots allotted by subdivision

developers as road lots include roads, sidewalks, alleys and
planting strips.24 Thus, what is true for subdivision roads or
streets applies to subdivision sidewalks as well. Ownership of
the sidewalks in a private subdivision belongs to the subdivision
owner/developer until it is either transferred to the government
by way of donation or acquired by the government through
expropriation.

Section 335 of RA 7160 is clear and specific that no public

money or property shall be appropriated or applied for private
purposes. This is in consonance with the fundamental principle
in local fiscal administration that local government funds and
monies shall be spent solely for public purposes. In Pascual v.
Secretary of Public Works,26 the Court laid down the test of
validity of a public expenditure: it is the essential character of
the direct object of the expenditure which must determine its
validity and not the magnitude of the interests to be affected
nor the degree to which the general advantage of the
community, and thus the public welfare, may be ultimately
benefited by their promotion.27 Incidental advantage to the
public or to the State resulting from the promotion of private
interests and the prosperity of private enterprises or business
does not justify their aid by the use of public money.

The implementing rules of PD 957, as amended by PD 1216,

provide that it is the registered owner or developer of a
subdivision who has the responsibility for the maintenance,
repair and improvement of road lots and open spaces of the
subdivision prior to their donation to the concerned LGU. The
owner or developer shall be deemed relieved of the
responsibility of maintaining the road lots and open space only
upon securing a certificate of completion and executing a deed
of donation of these road lots and open spaces to the LGU.
Therefore, the use of LGU funds for the widening and
improvement of privately-owned sidewalks is unlawful as it
directly contravenes Section 335 of RA 7160. This conclusion
finds further support from the language of Section 17 of RA
7160 which mandates LGUs to efficiently and effectively
provide basic services and facilities. The law speaks of
infrastructure facilities intended primarily to service the needs
of the residents of the LGU and "which are funded out of
municipal funds."32 It particularly refers to "municipal roads
and bridges" and "similar facilities." Applying the rules of
ejusdem generis, the phrase "similar facilities" refers to or
includes infrastructure facilities like sidewalks owned by the
LGU. Thus, RA 7160 contemplates that only the construction,
improvement, repair and maintenance of infrastructure

facilities owned by the LGU may be bankrolled with local

government funds.

3. Local Legislative Bodies

Section 48. Local Legislative Power. - Local legislative power shall be

exercised by the sangguniang panlalawigan for the province; the
sangguniang panlungsod for the city; the sangguniang bayan for the
municipality; and the sangguniang barangay for the barangay.

4. Presiding Officer

Section 49. Presiding Officer.

(a) The vice-governor shall be the presiding officer of the sangguniang

panlalawigan; the city vice-mayor, of the sangguniang panlungsod; the
municipal vice-mayor, of the sangguniang bayan; and the punong
barangay, of the sangguniang barangay. The presiding officer shall
vote only to break a tie.

(b) In the event of the inability of the regular presiding officer to

preside at a sanggunian session, the members present and
constituting a quorum shall elect from among themselves a temporary
presiding officer. He shall certify within ten (10) days from the passage
of ordinances enacted and resolutions adopted by the sanggunian in
the session over which he temporarily presided.

5. Internal Rules of Procedure

Section 50. Internal Rules of Procedure.

(a) On the first regular session following the election of its members
and within ninety (90) days thereafter, the sanggunian concerned shall
adopt or update its existing rules of procedure.

(b) The rules of procedure shall provided for the following:

(1) The organization of the sanggunian and the election of its

officers as well as the creation of standing committees which
shall include, but shall not be limited to, the committees on
appropriations, women and family, human rights, youth and
sports
development,
environmental
protection,
and
cooperatives; the general jurisdiction of each committee; and
the election of the chairman and members of each committee;

(2) The order and calendar of business for each session;

(3) The legislative process;

(4) The parliamentary procedures which include the conduct of

members during sessions;

(5) The discipline of members for disorderly behavior and

absences without justifiable cause for four (4) consecutive
sessions, for which they may be censured, reprimanded, or
excluded from the session, suspended for not more than sixty
(60) days, or expelled: Provided, That the penalty of suspension
or expulsion shall require the concurrence of at least two-thirds
(2/3) vote of all the sanggunian members: Provided, further,
That a member convicted by final judgment to imprisonment of
at least one (1) year for any crime involving moral turpitude

shall be automatically expelled from the sanggunian; and

(6) Such other rules as the sanggunian may adopt.

6. Full disclosure of Financial/Business interest of members of Sanggunian

Section 51. Full Disclosure of Financial and Business Interests of

Sanggunian Members.

(a) Every sanggunian member shall, upon assumption to office, make

a full disclosure of his business and financial interests, or professional
relationship or any relation by affinity or consanguinity within the
fourth civil degree, which he may have with any person, firm, or entity
affected by any ordinance or resolution under consideration by the
sanggunian of which he is a member, which relationship may result in
conflict of interest. Such relationship shall include:

(1) Ownership of stock or capital, or investment, in the entity or

firm to which the ordinance or resolution may apply; and

(2) Contracts or agreements with any person or entity which

the ordinance or resolution under consideration may affect.

In the absence of a specific constitutional or statutory provision

applicable to this situation, "conflict of interest" refers in
general to one where it may be reasonably deduced that a
member of a sanggunian may not act in the public interest due
to some private, pecuniary, or other personal considerations
that may tend to affect his judgment to the prejudice of the
service or the public.

(b) The disclosure required under this Act shall be made in writing and
submitted to the secretary of the sanggunian or the secretary of the
committee of which he is a member. The disclosure shall, in all cases,
form part of the record of the proceedings and shall be made in the
following manner:

(1) Disclosure shall be made before the member participates in

the deliberations on the ordinance or resolution under
consideration: Provided, That, if the member did not participate
during the deliberations, the disclosure shall be made before
voting on the ordinance or resolution on second and third
readings; and

(2) Disclosure shall be made when a member takes a position

or makes a privilege speech on a matter that may affect the
business interest, financial connection, or professional
relationship described herein.

7. Meaning of Conflict of Interest

8. Sessions

Section 52. Sessions.

(a) On the first day of the session immediately following the election of
its members, the sanggunian shall, by resolution, fix the day, time, and
place of its regular sessions. The minimum numbers of regular
sessions shall be once a week for the sangguniang panlalawigan,
sangguniang panlungsod, and sangguniang bayan, and twice a month
for the sangguniang barangay.

(b) When public interest so demands, special sessions may be called

by the local chief executive or by a majority of the members of the
sanggunian.

(c) All sanggunian sessions shall be open to the public unless a closeddoor session is ordered by an affirmative vote of a majority of the
members present, there being a quorum, in the public interest or for
reasons of security, decency, or morality. No two (2) sessions,
regular or special, may be held in a single day.

(d) In the case of special sessions of the sanggunian, a written notice

to the members shall be served personally at the member's
usual place of residence at least twenty-four (24) hours before
the special session is held.

Unless otherwise concurred in by two-thirds (2/3) vote of the

sanggunian members present, there being a quorum, no other
matters may be considered at a special session except those
stated in the notice.

(e) Each sanggunian shall keep a journal and record of its proceedings
which may be published upon resolution of the sanggunian concerned.

9. Quorum

Section 53. Quorum.

(a) A majority of all the members of the sanggunian who have

been elected and qualified shall constitute a quorum to
transact official business. Should a question of quorum be raised
during a session, the presiding officer shall immediately proceed
to call the roll of the members and thereafter announce the
results.

(b) Where there is no quorum, the presiding officer may declare

a recess until such time as a quorum is constituted, or a
majority of the members present may adjourn from day to day and
may compel the immediate attendance of any member absent without
justifiable cause by designating a member of the sanggunian to be
assisted by a member or members of the police force assigned in the
territorial jurisdiction of the local government unit concerned, to
arrest the absent member and present him at the session.

(c) If there is still no quorum despite the enforcement of the

immediately preceding subsection, no business shall be transacted.
The presiding officer, upon proper motion duly approved by the
members present, shall then declare the session adjourned for
lack of quorum.

10. Approval of Ordinances

Section 54. Approval of Ordinances.

(a) Every ordinance enacted by the sangguniang panlalawigan,

sangguniang panlungsod, or sangguniang bayan shall be
presented to the provincial governor or city or municipal
mayor, as the case may be. If the local chief executive
concerned approves the same, he shall affix his signature on
each and every page thereof; otherwise, he shall veto it and
return the same with his objections to the sanggunian, which

may proceed to reconsider the same. The sanggunian

concerned may override the veto of the local chief executive
by two-thirds (2/3) vote of all its members, thereby making the
ordinance or resolution effective for all legal intents and
purposes.

(b) The veto shall be communicated by the local chief executive

concerned to the sanggunian within fifteen (15) days in the
case of a province, and ten (10) days in the case of a city or a
municipality; otherwise, the ordinance shall be deemed
approved as if he had signed it.

(c) Ordinances enacted by the sangguniang barangay shall, upon

approval by the majority of all its members, be signed by the punong
barangay.

11. Veto power of LCE

Section 55. Veto Power of the Local Chief Executive.

(a) The local chief executive may veto any ordinance of

the sanggunian panlalawigan, sangguniang panlungsod,
or sanggunian bayan on the ground that it is ultra vires
or prejudicial to the public welfare, stating his reasons
therefor in writing.

(b) The local chief executive, except the punong

barangay, shall have the power to veto any particular item or
items of an appropriations ordinance, an ordinance or
resolution adopting a local development plan and public
investment program, or an ordinance directing the payment of
money or creating liability. In such a case, the veto shall not
affect the item or items which are not objected to. The vetoed
item or items shall not take effect unless the
sanggunian overrides the veto in the manner herein
provided; otherwise, the item or items in the
appropriations
ordinance
of
the
previous
year
corresponding to those vetoed, if any, shall be deemed
reenacted.

(c) The local chief executive may veto an ordinance or

resolution only once. The sanggunian may override the veto of
the local chief executive concerned by two-thirds (2/3) vote of
all its members, thereby making the ordinance effective even
without the approval of the local chief executive concerned.

DE LOS REYES VS SANDIGANBAYAN The approval of an ordinance

where the LCE affixes his signature is not a purely ministerial
act. He in fact has veto power.

In an effort to exonerate himself from the charge, petitioner

argues that the deliberations undertaken and the consequent
passage of Resolution No. 57-S-92 are legislative in nature. He
adds that as local chief executive, he has neither the official
custody of nor the duty to prepare said resolution; hence, he
could not have taken advantage of his official position in
committing the crime of falsification as defined and punished
under Article 171 6 of the Revised Penal Code.

Petitioner would like to impress upon this Court that the final
step in the approval of an ordinance or resolution, where the
local chief executive affixes his signature, is purely a ministerial
act. This view is erroneous. Article 109(b) of the Local
Government Code outlines the veto power of the Local Chief
Executive which provides:Art. 109 (b). The local chief executive,
except the punong barangay shall have the power to veto any
particular item or items of an appropriations ordinance, an
ordinance or resolution adopting a local development plan and
public investment program or an ordinance directing the
payment of money or creating liability. . . . .

Contrary to petitioner's belief, the grant of the veto power

confers authority beyond the simple mechanical act of signing
an ordinance or resolution, as a requisite to its enforceability.
Such power accords the local chief executive the discretion to
sustain a resolution or ordinance in the first instance or to veto
it and return it with his objections to the Sanggunian, which
may proceed to reconsider the same. The Sanggunian
concerned, however, may override the veto by a two-thirds
(2/3) vote of all its members thereby making the ordinance or
resolution effective for all legal intents and purposes. It is
clear, therefore, that the concurrence of a local chief
executive in the enactment of an ordinance or resolution
requires, not only a flourish of the pen, but the
application of judgment after meticulous analysis and
intelligence as well.

The minutes of the session reveal that petitioner attended the

session of the Sangguniang Bayan on July 27, 1992. It is
evident, therefore, that petitioner approved the subject
resolution knowing fully well that "the subject matter treated
therein was neither taken up and discussed nor passed upon by
the Sangguniang Bayan during the legislative session."

The Sandiganbayan is directed to set the criminal case for

arraignment and trial.

12. Review of Ordinances

i. of Component City and Municipal Ordinances

Section 56. Review of Component City and Municipal

Ordinances or Resolutions by the Sangguniang Panlalawigan.

(a) Within three (3) days after approval, the secretary to

the sanggunian panlungsod or sangguniang bayan shall
forward to the sangguniang panlalawigan for review,
copies of approved ordinances and the resolutions
approving the local development plans and public
investment
programs
formulated
by
the
local
development councils.

(b) Within thirty (30) days after the receipt of copies of

such ordinances and resolutions, the sangguniang
panlalawigan shall examine the documents or transmit
them to the provincial attorney, or if there be none, to the
provincial prosecutor for prompt examination. The provincial

attorney or provincial prosecutor shall, within a period of ten

(10) days from receipt of the documents, inform the
sangguniang panlalawigan in writing of his comments or
recommendations, which may be considered by the
sangguniang panlalawigan in making its decision.

(c) If the sangguniang panlalawigan finds that such an

ordinance or resolution is beyond the power conferred
upon the sangguniang panlungsod or sangguniang
bayan concerned, it shall declare such ordinance or
resolution invalid in whole or in part. The sangguniang
panlalawigan shall enter its action in the minutes and shall
advise the corresponding city or municipal authorities of the
action it has taken.

(d) If no action has been taken by the sangguniang

panlalawigan within thirty (30) days after submission of
such an ordinance or resolution, the same shall be
presumed consistent with law and therefore valid.

ii. of Barangay Ordinances

Section 57. Review of Barangay Ordinances

Sangguniang Panlungsod or Sangguniang Bayan.

by

the

(a) Within ten (10) days after its enactment, the

sangguniang barangay shall furnish copies of all
barangay ordinances to the sangguniang panlungsod or
sangguniang bayan concerned for review as to whether
the ordinance is consistent with law and city or
municipal ordinances.

(b) If the sangguniang panlungsod or sangguniang bayan, as

the case may be, fails to take action on barangay ordinances
within thirty (30) days from receipt thereof, the same shall be
deemed approved.

(c) If the sangguniang panlungsod or sangguniang bayan, as

the case may be, finds the barangay ordinances inconsistent
with law or city or municipal ordinances, the sanggunian
concerned shall, within thirty (30) days from receipt thereof,
return the same with its comments and recommendations to
the sangguniang barangay concerned for adjustment,
amendment, or modification; in which case, the effectivity of
the barangay ordinance is suspended until such time as the
revision called for is effected.

13. Enforcement of Disapproved Ordinances

Section 58. Enforcement of Disapproved Ordinances or Resolutions. Any attempt to enforce any ordinance or any resolution
approving the local development plan and public investment
program, after the disapproval thereof, shall be sufficient
ground for the suspension or dismissal of the official or
employee concerned.

14. Effectivity of Ordinances and Resolutions

Section 59. Effectivity of Ordinances or Resolutions.

(a) Unless otherwise stated in the ordinance or the resolution

approving the local development plan and public investment program,
the same shall take effect after ten (10) days from the date a
copy thereof is posted in a bulletin board at the entrance of
the provincial capitol or city, municipal, or barangay hall, as
the case may be, and in at least two (2) other conspicuous
places in the local government unit concerned.

(b) The secretary to the sanggunian concerned shall cause the posting
of an ordinance or resolution in the bulletin board at the entrance of
the provincial capitol and the city, municipal, or barangay hall in at
least two (2) conspicuous places in the local government unit
concerned not later than five (5) days after approval thereof.

The text of the ordinance or resolution shall be disseminated and

posted in Filipino or English and in the language understood by the
majority of the people in the local government unit concerned, and the
secretary to the sanggunian shall record such fact in a book kept for
the purpose, stating the dates of approval and posting.

(c) The gist of all ordinances with penal sanctions shall be published in
a newspaper of general circulation within the province where the local
legislative body concerned belongs. In the absence of any newspaper
of general circulation within the province, posting of such ordinances
shall be made in all municipalities and cities of the province where the
sanggunian of origin is situated.

(d) In the case of highly urbanized and independent component cities,

the main features of the ordinance or resolution duly enacted or
adopted shall, in addition to being posted, be published once in a local
newspaper of general circulation within the city: Provided, That in the
absence thereof the ordinance or resolution shall be published in any
newspaper of general circulation.

Arts. 113-114 IRR

Art. 113. Effectivity of Ordinances and Resolutions. - Unless

otherwise stated in the ordinance or resolution approving the
local development plan and public investment program, the
same shall take effect after ten (10) days from the date a
copy thereof is posted in a bulletin board at the
entrance of the provincial capitol or city, municipal, or
barangay hall, as the case may be, and in at least two
(2) other conspicuous places in the LGU concerned.

Art. 114. Posting and Publication of Ordinance with Penal

Sanctions. - (a) Ordinances with penal sanctions shall be
posted at conspicuous places in the provincial capitol, or
city, municipal or barangay hall, as the case may be, for
a minimum period of three (3) consecutive weeks. Such
ordinances shall also be published in a newspaper of
general circulation, where available, within the
territorial jurisdiction of the LGU concerned, except in
the case of barangay ordinances. Unless otherwise provided
therein, said ordinances shall take effect on the day following
its publication, or at the end of the period of posting, whichever
occurs later.

(b) Any public officer or employee who violates an ordinance

may be meted administrative disciplinary action, without
prejudice to the filing of the appropriate civil or criminal action.

(c) The secretary to the sanggunian concerned shall

transmit official copies of such ordinances to the chief
executive officer of the Official Gazette within seven (7)
days following the approval of said ordinance for
publication. The Official Gazette may publish ordinances with
penal sanctions for archival and reference purposes.

GAMBOA VS AGUIRRE A vice-governor who is concurrently an

acting governor is actually a quasi-governor. For the purpose
of exercising his legislative prerogatives and powers, he is
deemed a non member of the SP for the time being.

A Vice-Governor who is concurrently an Acting Governor is

actually a quasi-Governor. This means, that for purposes of
exercising his legislative prerogatives and powers, he is
deemed as a non-member of the SP for the time being.

Being the Acting Governor, the Vice-Governor cannot continue

to simultaneously exercise the duties of the latter office, since
the nature of the duties of the provincial Governor call for a fulltime occupant to discharge them. 19 Such is not only
consistent with but also appears to be the clear rationale of the
new Code wherein the policy of performing dual functions in
both offices has already been abandoned. To repeat, the
creation of a temporary vacancy in the office of the Governor
creates a corresponding temporary vacancy in the office of the
Vice-Governor whenever the latter acts as Governor by virtue of
such temporary vacancy.

This event constitutes an "inability" on the part of the regular

presiding officer (Vice Governor) to preside during the SP
sessions, which thus calls for the operation of the remedy set in
Article 49(b) of the Local Government Code concerning the
election of a temporary presiding officer. The continuity of the
Acting Governor's (Vice Governor) powers as presiding officer of
the SP is suspended so long as he is in such capacity. Under
Section 49(b), "(i)n the event of the inability of the regular
presiding officer to preside at the sanggunian session, the
members present and constituting a quorum shall elect from
among themselves a temporary presiding officer."

MALONZO VS ZAMORA The law does not require the completion of

the updating or adoption of the internal rules of procedures before the
Sanggunian could act on any other matter like the enactment of an
ordinance; There is nothing in the law, which prohibits that the
3 readings of a proposed ordinance be held in just one session
day.

ROBERT TAYABAN VS PEOPLE

Facts: In 1988, Tayaban was the mayor of Tinoc, Ifugao. He

intimated a project proposal with the Governor for a
public market to be erected. The same was approved and it
was funded by the Cordillera Executive Board. The project

bidding was subsequently won by Lopez Pugong. Pugong began

erecting the market but in 1989, Tayaban and Tinocs
councilors enforced a resolution to demolish the structure being
built on the ground that the structure is not being erected in
the proper area as specified by Tayaban and that the structure
is a public nuisance and by virtue of police power to protect
general welfare.

Tayaban and some councilors then went to the site and

demolished the structure. Pugong sued Tayaban et al for
violation of Section 3 (e) of Republic Act No. 3019 (Anti Graft
Act). Pugong also averred that the resolution reviewing the said
local public development project (market) that the council
passed in 1989 was not posted in a conspicuous place as
required by Sections 56 and 59(a) of the 1991 LGC (R.A. No.
7160). Tayaban lost and he appealed contending that he
demolished the structure by virtue of PD 1096 (National
Building Code) and LOI 19 (removal of illegal structures).

Held: On the other hand though, as held by the OSG, Sec 56

and 59 of the LGC of 1991 is not applicable as said law
was not yet passed in 1989 hence there was no need for
Tayaban to post the 89 resolution in a conspicuous
place.

SOCIAL JUSTICE SOCIETY VS HON. MAYOR ATIENZA

The Local Government Code imposes upon respondent the

duty, as city mayor, to enforce all laws and ordinances
relative to the governance of the city.[20] One of these is
Ordinance No. 8027. As the chief executive of the city, he has
the duty to enforce Ordinance No. 8027 as long as it has
not been repealed by the Sanggunian or annulled by the
courts.[21] He has no other choice. It is his ministerial
duty to do so. In Dimaporo v. Mitra, Jr.,[22] we stated the
reason for this: These officers cannot refuse to perform their
duty on the ground of an alleged invalidity of the statute
imposing the duty. The reason for this is obvious. It might
seriously hinder the transaction of public business if these
officers were to be permitted in all cases to question the
constitutionality of statutes and ordinances imposing duties
upon them and which have not judicially been declared
unconstitutional. Officers of the government from the
highest to the lowest are creatures of the law and are
bound to obey it.

Ordinance No. 8027 was enacted right after the Philippines,

along with the rest of the world, witnessed the horror of the
September 11, 2001 attack on the Twin Towers of the World
Trade Center in New York City. The objective of the ordinance is
to protect the residents of Manila from the catastrophic
devastation that will surely occur in case of a terrorist
attack[25] on the Pandacan Terminals. No reason exists why
such a protective measure should be delayed.

ONGSUCO VS MALONES

Article 219 of the Local Government Code provides that a local

government unit exercising its power to impose taxes, fees and
charges should comply with the requirements set in Rule XXX,
entitled Local Government Taxation: Article 219. Power to
Create Sources of Revenue.Consistent with the basic policy of
local autonomy, each LGU shall exercise itspower to create its
own sources of revenue and to levy taxes, fees, or charges,
subject to the provisions of this Rule. Such taxes, fees, or
charges shall accrue exclusively to the LGU. Article 221(g) of
the Local Government Code of 1991 defines charges as:
Article 221. Definition of Terms. x x x x (g) Charges refer to
pecuniary liability, as rents or fees against persons or property.
Evidently, the revenues of a local government unit do not
consist of taxes alone, but also other fees and charges. And
rentals and goodwill fees, imposed by Municipal Ordinance No.
98-01 for the occupancy of the stalls at the municipal public
market, fall under the definition of charges.

There is no dispute herein that the notices sent to petitioners

and other stall holders at the municipal public market were sent
out on 6 August 1998, informing them of the supposed public
hearing to be held on 11 August 1998. Even assuming that
petitioners received their notice also on 6 August 1998, the
public hearing was already scheduled, and actually
conducted, only five days later, on 11 August 1998. This
contravenes Article 277(b)(3) of the Implementing Rules and
Regulations of the Local Government Code which requires that
the public hearing be held no less than ten days from the time
the notices were sent out, posted, or published. When the
Sangguniang Bayan of Maasin sought to correct this procedural
defect through Resolution No. 68, series of 1998, dated 18
September 1998, respondent vetoed the said resolution.
Although the Sangguniang Bayan may have had the power to
override respondents veto,[37] it no longer did so.

The defect in the enactment of Municipal Ordinance No. 98 was

not cured when another public hearing was held on 22 January
1999, after the questioned ordinance was passed by the
Sangguniang Bayan and approved by respondent on 17 August
1998. Section 186 of the Local Government Code prescribes
that the public hearing be held prior to the enactment by a local
government unit of an ordinance levying taxes, fees, and
charges. Since no public hearing had been duly conducted prior
to the enactment of Municipal Ordinance No. 98- 01, said
ordinance is void and cannot be given any effect. Consequently,
a void and ineffective ordinance could not have conferred upon
respondent the jurisdiction to order petitioners stalls at the
municipal public market vacant.

Local legislative bodies

Quorum

Attendance may be compelled the Presiding officer can ask for the
assistance of the local police force to effect the arrest.

Unlike HR and the Senate, SANGGUNIANS DO NOT HAVE THE

INHERENT POWER TO ISSUE SUBPOENA OR CITE A PERSON IN

CONTEMPT!

Reasons:

i. Such power is inherent in Congress to effect proper

legislation, unlike in lgus, which have derivativee power
from congress and such power is not delegated to the
lgus in the LGC;

ii. This is a power not originally legislative, but by its

nature, a judicial power, thus, its only when theres clear
conferment or grant of such power to lgus that they are
allowed to exercise such power but such power is not
expressly granted in the LGC.

Local legislations

Ordinance vs resolution

Approval of ordinance

Veto by the LCE vs Review by mother SP

Rules on veto (Who can make item veto?; How many times may the
LCE veto?)

Punony Brgy. cannot make item veto

Veto can only be made once

Effectivity of ordinance; What is the effect of review mechanism by the

mother SP to the effectivity of the ordinance?

What ordinance should be published?

Under the Code, as a general rule, all ordinances need not

be published, except if the ordinance has a penal
provision or a penal ordinance, in which case publication
is required in order to comply with due process
requirement.

Publication publication of general circulation general

readership

PART XIII LOCAL INITIATIVE AND REFERENDUM

1. Scope

GARCIA VS COMELEC

The Constitution clearly includes not only ordinances but

resolutions as appropriate subjects of a local initiative. Section
32 of Article VI provides in luminous language: "The Congress
shall, as early as possible, provide for a system of initiative and
referendum, and the exceptions therefrom, whereby the people
can directly propose and enact laws or approve or reject any
act or law or part thereof passed by the Congress, or local
legislative body . . ." An act includes a resolution. Black 20
defines an act as "an expression of will or purpose . . . it may
denote something done . . . as a legislature, including not

merely physical acts, but also decrees, edicts, laws,

judgments,resolves, awards, and determinations . . . ." It is
basic that a law should be construed in harmony with and not in
violation of the constitution. The constitutional command to
include acts (i.e., resolutions) as appropriate subjects of
initiative was implemented by Congress when it enacted
Republic Act No. 6735 entitled "An Act Providing for a System of
Initiative and Referendum and Appropriating Funds Therefor."
Thus, its section 3(a) expressly includes resolutions as subjects
of initiatives on local legislations. There can hardly be any
doubt that when Congress enacted Republic Act No. 6735 it
intend resolutions to be proper subjects of local initiatives. The
debates confirm this intent.

Contrary to the submission of the respondents, the subsequent

enactment of the local Government Code of 1991 which also
dealt with local initiative did not change the scope of its
coverage. More specifically, the Code did not limit the coverage
of local initiatives to ordinances alone. Section 120, Chapter 2,
Title IX Book I of the Code cited by respondents merely defines
the concept of local initiative as the legal process whereby the
registered voters of a local government unit may directly
propose, enact, or amend any ordinance. It does not, however,
deal with the subjects or matters that can be taken up in a local
initiative. It is section 124 of the same Code which does.

This provision (section 124) clearly does not limit the

application of local initiatives to ordinances, but to all "subjects
or matters which are within the legal powers of the
Sanggunians to enact," which undoubtedly includes resolutions.
This interpretation is supported by Section 125 of the same
Code which provides: "Limitations upon Sanggunians. Any
proposition or ordinance approved through the system of
initiative and referendum as herein provided shall not be
repealed, modified or amended by the sanggunian concerned
within six (6) months from the date of the approval
thereof . . . ." Certainly, the inclusion of the word proposition is
inconsistent with respondents' thesis that only ordinances can
be the subject of local initiatives.

We note that respondents do not give any reason why

resolutions should not be the subject of a local initiative. In
truth, the reason lies in the well known distinction between a
resolution and an ordinance i.e., that a resolution is used
whenever the legislature wishes to express an opinion which is
to have only a temporary effect while an ordinance is intended
to permanently direct and control matters applying to persons
or things in general. 25 Thus, resolutions are not normally
subject to referendum for it may destroy the efficiency
necessary to the successful administration of the business
affairs of a city.

Finally, it cannot be gained that petitioners were denied due

process. They were not furnished a copy of the letter-petition of
Vice Mayor Edilberto M. de Leon to the respondent COMELEC
praying for denial of their petition for a local initiative on

Pambayang Kapasyahan Blg. 10, Serye 1993. Worse,

respondent COMELEC granted the petition without affording
petitioners any fair opportunity to oppose it. This procedural
lapse is fatal for at stake is not an ordinary right but the
sanctity of the sovereignty of the people, their original power to
legislate through the process of initiative. Ours is the duty to
listen and the obligation to obey the voice of the people. It
could well be the only force that could foil the mushrooming
abuses in government.

2. Local Initiative

a. Definition

b. Authority

Section 120. Local Initiative Defined. - Local initiative is the

legal process whereby the registered voters of a local
government unit may directly propose, enact, or amend any
ordinance.
Section 121. Who May Exercise. - The power of local initiative
and referendum may be exercised by all registered voters of
the provinces, cities, municipalities, and barangays.

c. Procedure

Section 122. Procedure in Local Initiative.

(a) Not less than one thousand (1,000) registered voters in case
of provinces and cities, one hundred (100) in case of
municipalities, and fifty (50) in case of barangays, may file a
petition with the sanggunian concerned proposing the adoption,
enactment, repeal, or amendment of an ordinance.

(b) If no favorable action thereon is taken by the sanggunian

concerned within thirty (30) days from its presentation, the
proponents, through their duly authorized and registered
representatives, may invoke their power of initiative, giving
notice thereof to the sanggunian concerned.

(c) The proposition shall be numbered serially starting from

Roman numeral I. The COMELEC or its designated
representative shall extend assistance in the formulation of the
proposition.

(d) Two (2) or more propositions may be submitted in an

initiative.

(e) Proponents shall have ninety (90) days in case of provinces

and cities, sixty (60) days in case of municipalities, and thirty
(30) days in case of barangays, from notice mentioned in
subsection (b) hereof to collect the required number of
signatures. (f) The petition shall be signed before the election
registrar. or his designated representatives, in the presence of a
representative of the proponent, and a representative of the
sanggunian concerned in a public place in the local government
unit, as the case may be. Stations for collecting signatures may
be established in as many places as may be warranted.

(g) Upon the lapse of the period herein provided, the COMELEC,
through its office in the local government unit concerned, shall
certify as to whether or not the required number of signatures
has been obtained. Failure to obtain the required number
defeats the proposition.

(h) If the required number of signatures is obtained, the

COMELEC shall then set a date for the initiative during which
the proposition shall be submitted to the registered voters in
the local government unit concerned for their approval within
sixty (60) days from the date of certification by the COMELEC,
as provided in subsection (g) hereof, in case of provinces and
cities, forty-five (45) days in case of municipalities, and thirty
(30) days in case of barangays. The initiative shall then be held
on the date set, after which the results thereof shall be certified
and proclaimed by the COMELEC.

d. Effectivity

Section 123. Effectivity of Local Propositions. - If the proposition

is approved by a majority of the votes cast, it shall take effect
fifteen (15) days after certification by the COMELEC as if
affirmative action thereon had been made by the sanggunian
and local chief executive concerned. If it fails to obtain said
number of votes, the proposition is considered defeated.

e. Limitations

i. on local initiative

Section 124. Limitations on Local Initiative.

(a) The power of local initiative shall not be exercised

more than once a year.

(b) Initiative shall extend only to subjects or matters

which are within the legal powers of the sanggunian to
enact.

(c) If at any time before the initiative is held, the

sanggunian concerned adopts in toto the proposition
presented and the local chief executive approves the
same, the initiative shall be cancelled. However, those
against such action may, if they so desire, apply for
initiative in the manner herein provided.

ii. upon Sanggunians

Section 125. Limitations upon Sanggunians. - Any

proposition or ordinance approved through the system
of initiative and referendum as herein provided shall not
be repealed, modified or amended by the sanggunian
concerned within six (6) months from the date of the
approval thereof, and may be amended, modified or
repealed by the sanggunian within three (3) years
thereafter by a vote of three-fourths (3/4) of all its
members: Provided, That in case of barangays, the
period shall be eighteen (18) months after the approval
thereof.

3. Local Referendum

a. Definition

Section 126. Local Referendum Defined. - Local referendum is

the legal process whereby the registered voters of the local
government units may approve, amend or reject any ordinance
enacted by the sanggunian.

The local referendum shall be held under the control and

direction of the COMELEC within sixty (60) days in case of
provinces and cities, forty-five (45) days in case of
municipalities and thirty (30) days in case of barangays.

The COMELEC shall certify and proclaim the results of the said
referendum.

b. Control and Supervision

c. Limitation

4. Authority of Courts

Section 127. Authority of Courts. - Nothing in this Chapter shall prevent

or preclude the proper courts from declaring null and void any
proposition approved pursuant to this Chapter for violation of the
Constitution or want of capacity of the sanggunian concerned to enact
the said measure.

SUBIC BAY METROPOLITAN AUTHORITY VS COMELEC

POLITICAL LAW; ELECTIONS; INITIATIVE AND REFERENDUM; MAY

BE EXERCISED BY THE PEOPLE TO PROPOSE AND ENACT LAWS
OR APPROVE OR REJECT ANY ACT OR LAW OR ANY PART
THEREOF PASSED BY THE CONGRESS OR LOCAL LEGISLATIVE
BODY.- The Constitution clearly includes not only ordinances but
resolution as appropriate subjects of a local initiative. Section
32 of Article VI provides in luminous language: 'The Congress
shall, as early as possible, provide for a system of initiative and
referendum, and the exceptions therefrom, whereby the people
can directly propose and enact laws or approve or reject any
act or law or part thereof passed by the Congress, or local
legislative body x x x.' An act includes a resolution. Black
defines an act as 'an expression of will or purpose x x x it may
denote something done x x x as a legislature, including not
merely physical acts, but also decrees, edits, laws, judgments,
resolves, awards, and determinations xxx.' It is basic that a law
should be construed in harmony with and not in violation of the
Constitution. In line with this postulate, we held in In Re Guarina
that 'if there is doubt or uncertainty as to the meaning of the
legislative, if the words or provisions are obscure, or if the
enactment is fairly susceptible of two or more constructions,
that interpretation will be adopted which will avoid the effect of
unconstitutionality, even though it may be necessary, for this
purpose, to disregard the more usual or apparent import of the
language used."'

There are statutory and conceptual demarcations between a

referendum and an initiative. In enacting the "Initiative and

Referendum Act, Congress differentiated one term from the

other. Along these statutory definitions, Justice Isagani A. Cruz
defines initiative as the "power of the people to propose bills
and laws, and to enact or reject them at the polls independent
of the legislative assembly." On the other hand, he explains
that referendum "is the right reserved to the people to adopt or
reject any act or measure which has been passed by a
legislative body and which in most cases would without action
on the part of electors become a law." The foregoing
definitions, which are based on Black's and other leading
American authorities, are echoed in the Local Government Code
(R.A. 7160). Prescinding from these definitions, we gather that
initiative is resorted to (or initiated) by the people directly
either because the law-making body fails or refuses to enact
the law, ordinance, resolution or act that they desire or because
they want to amend or modify one already existing. Under Sec.
13 of R.A. 6735, the local legislative body is given the
opportunity to enact theproposal. If it refuses/neglects to do so
within thirty (30) days from its presentation, the proponents
through their duly-authorized and registered representatives
may invoke their power of initiative, giving notice thereof to the
local legislative body concerned. Should the proponents be able
to collect the number of signed conformities within the period
granted by said statute, the Commission on Elections "shall
then set a date for the initiative (not referendum) at which the
proposition shall be submitted to the registered voters in the
local government unit concerned x x x." On the other hand, in a
local referendum, the law-making body submits to the
registered voters of its territorial jurisdiction, for approval or
rejection, any ordinance or resolution which is duly enacted or
approved by such law-making authority. Said referendum shall
be conducted also under the control and direction of the
Commission on Elections. In other words, while initiative is
entirely the work of the electorate, referendum is begun and
consented to by the law-making by the people themselve's
without process of law wishes of their elected representatives,
while referendum consists merely of the electorate approving
or rejecting what has been drawn up or enacted by a legislative
body. Hence, the process and the voting in an initiative are
understandably more complex than in a referendum where
expectedly the voters will simply write either "Yes" or "No" in
the ballot.

COMELEC EXERCISES ADMINISTRATION AND SUPERVISION

CONDUCT THEREOF.- From the above differentiation, it follows
that there is need for the Comelec to supervise an initiative
more closely, its authority thereon extending not only to the
counting and canvassing of votes but also to seeing to it that
the matter or act submitted to the people is in the proper form
and language so it may be easily understood and voted upon
by the electorate. This is especially true were the proposed
legislation is lengthy and complicated, and should thus be
broken down into several autonomous parts, each such part to
be voted upon separately. Care must also be exercised that

"(n)o petition embracing more than one subject shall be

submitted to the electorate," although "two or more
propositions may be submitted in an initiative." It should be
noted that under Sec. 13 (c) of R.A. 6735, the "Secretary of
Local Government or his designated representative extend
assistance in the formulation of the proposition." In initiative
and referendum, the Comelec exercises administration and
supervision of the process itself, akin to its powers over the
conduct of elections. This law- making powers belong to the
people, hence the respondent Commission cannot control or
change the substance or the content of legislation. In the
exercise of its authority, it may (in fact it should have done so
already) issue relevant and adequate guidelines and rules for
the orderly exercise of these "people-power" features of our
Constitution.

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. We also note that the Initiative and
Referendum Act itself provides that "(n)othing in this Act shall
prevent or preclude the proper courts from declaring null and
void any proposition approved pursuant to this Act xxx." So too,
the Supreme Court is basically a review court. It passes upon
errors of law (and sometimes of fact, as in the case of
mandatory appeals of capital offenses) of lower courts as well
as determines whether there had been grave abuse of
discretion amounting to lack or excess of jurisdiction on the
part of any "branch or instrumentality" of government. In the
present case, it is quite clear that the Court has authority to
review Comelec Resolution No. 2848 to determine the
commission of grave abuse of discretion. However, it does not
have the same authority in regard to the proposed initiative
since it has not been promulgated or approved, or passed upon
by any "branch or instrumentality" or lower court, for that
matter. The Commission on Elections itself has made no
reviewable pronouncement about the issues brought by the
pleadings. The Comelec simply included verbatim the proposal
in its questioned Resolution No. 2848. Hence, there is really no
decision or action made by a branch, instrumentality or court
which this Court could take cognizance of and acquire
jurisdiction over, in the exercise of its review powers.

THE COMELEC MY PASS UPON SUCH PROPOSAL INSOFAR AS TO

ITS FORM AND LANGUAGE ARE CONCERNED AND WHETHER

THE SAME IS PATENTLY AND CLEARLY OUTSIDE THE CAPACITY

OF THE LOCAL LEGISLATIVE BODY TO ENACT.- Having said that,
we are in no wise suggesting that the Comelec itself has no
power to pass upon proposed resolutions in an initiative. Quite
the contrary, we are ruling that these matters are in fact within
the initiatory jurisdiction of the Commission - to which then the
herein basic questions ought to have been addressed, and by
which the same should have been decided in the first instance.
In other words, while regular courts may take jurisdiction over
"approved" propositions" per said Sec. 18 of R.A. 6735, the
Comelec in the exercise of its quasi-judicial and administrative
powers may adjudicate and pass upon such proposals insofar as
their form and language are concerned, as discussed earlier;
and it may be added, even as to content, where the proposals
or parts thereof are patently and clearly outside the "capacity
of the local legislative body to enact." Accordingly, the question
of whether the subject of this initiative is within the capacity of
the Municipal Council of Morong to enact may be ruled upon by
the Comelec upon remand and after hearing the parties
thereon.

STATUTORY CONSTRUCTION; LAWS REGARDING INITIATIVE AND

REFERENDUM ARE LIBERALLY CONSTRUED TO EFFECTUATE ITS
PURPOSES.- In deciding this case, the Court realizes that
initiative and referendum, as concepts and processes, are new
in our country. We are remanding the matter to the Comelec so
that proper corrective measures, as above discussed, may be
undertaken, with a view to helping fulfill our people's
aspirations for the actualization of effective direct sovereignty.
Indeed we recognize that "(p)rovisions for initiative and
referendum are liberally construed to effectuate their purposes,
to facilitate and not to hamper the exercise by the voters of the
rights granted thereby." In his authoritative treatise on the
Constitution, Fr. Joaquin G. Bernas, S.J. treasures these
"instruments which can be used should the legislative show
itself indifferent to the needs of the people." Impelled by a
sense of urgency, Congress enacted Republic Act No. 6735 to
give life and form to the constitutional mandate. Congress also
interphased initiative and referendum into the workings of local
governments by including a chapter on this subject in the Local
Government Code of 1991. And the Commission on Elections
can do no less by seasonably and judiciously promulgating
guidelines and rules, for both national and local use, in
implementation of these laws. For its part, this Court early on
expressly recognized the revolutionary import of reserving
people power in the process of law-making.

Initiative vs Referendum (both are characteristics of a direct democracy)

Initiative if the proposed legislation comes from the people and then
submitted to the local legislative body in order to become a legislative
measure

Referendum if a question is asked and submitted to the people in order

to the sentiments of the constituents.

Subject matter in initiative or referendum: Any matter that is subject of

legislation, thus, it may be an ordinance or a resolution

PART XIV MANDATED LOCAL AGENCIES/BODIES: Local School Boards; Local

Health Boards; Local Development Council; Local Peace and Order Council;
Peoples Law Enforcement Boards; Local Pre-qualification, Bids and Awards
Committee (Local PBAC)

1. Creation & Composition

2. Functions

Arts. 182-187 IRR

Art. 182. Local Development Councils. - Every LGU shall have a

comprehensive multi-sectoral development plan to be initiated by the
LDC concerned and approved by its sanggunian. For this purpose, the
provincial, city, municipal, or barangay development council, shall
assist the corresponding sanggunian in setting the direction of
economic and social development, and coordinating development
efforts within its territorial jurisdiction.

(a) Composition.

(1) The provincial development council shall be headed by the

governor and shall be composed of the following members:

(i) All mayors of component cities and municipalities;

(ii) The chairman of the committee on appropriations of

the sangguniang panlalawigan;

(iii) The congressman or his representative; and

(iv) Representatives of NGOs operating in the province,

who shall constitute not less than one-fourth (1/4) of the
members of the fully organized council.

(2) The city or municipal development council shall be headed

by the mayor and shall be composed of the following members:

(i) All punong barangays in the city or municipality;

(ii) The chairman of the committee on appropriations of

the sangguniang panlungsod or sangguniang bayan
concerned;

(iii) The congressman or his representative; and

(iv) Representatives of NGOs operating in the city or

municipality, as the case may be, who shall constitute
not less than one-fourth (1/4) of the members of the
fully organized council.

(3) The barangay development council shall be headed by the

punong barangay and shall be composed of the following
members:

(i) Members of the sangguniang barangay;

(ii) Representatives of NGOs operating in the barangay,

who shall constitute not less than one fourth (1/4) of the

members of the fully organized council.

(iii) A representative of the congressman.

(4) The LDC may call upon any local or national official in the
LGU to assist in the formulation of the development plans and
public investment programs of the said LGU.

(b) Representation of NGOs - Within a period of sixty (60) days from

organization of LDCs, NGOs shall choose from among themselves their
representatives to said LDCs. The sanggunian concerned shall accredit
NGOs, subject to such criteria as provided in Rule XIII of these Rules.

(c) Reconstitution of LDCs - Upon effectivity of these Rules, all existing

LDCs organized under EO 319, series of 1988, as amended, shall be
reconstituted in accordance with this Rule.

(d) Functions of LDCs - (1) The provincial, city, and municipal

development councils shall perform the following functions:

(i)
Formulate
long-term,
medium-term,
socioeconomic development plans and policies;

and

(ii) Formulate medium-term and annual public investment

programs;

(iii) Evaluate and prioritize

programs and projects;

(iv)Formulate local investment incentives to promote the inflow

and direction of private investment capital;

(v) Coordinate, monitor, and evaluate the implementation of

development programs and projects; and

(vi) Perform such other functions as may be provided by law or

component authority.

socioeconomic

annual

development

(2) The barangay development council shall perform the following

functions:

(i) Mobilize people's participation in local development efforts;

(ii) Prepare barangay development plans based on local

requirements;

(iii) Monitor and evaluate the implementation of national or

local programs and projects; and

(iv) Perform such other functions as may be provided by law or

component authority.

(e) Meetings - The LDCs shall meet at least once every six (6) months
or as often as may be necessary.

(f) Executive Committee - The provincial, city, municipal, or barangay

development council shall, by resolution and within three (3) months
from the date of reorganization of the LDC, create an executive
committee to represent and act in behalf of the LDC when it is not in
session.

(1) Composition

(i)

The

executive

committee

of

the

provincial

development council shall be composed of the governor

as chairman, the representative of the component city
and municipal mayors to be chosen from among
themselves, the chairman of the committee on
appropriations of the sangguniang panlalawigan, the
president of the provincial liga ng mga barangay, and a
representative of NGOs that are represented in the LDC,
as members.

(ii) The executive committee of the city or municipal

development council shall be composed of the mayor as
chairman, the chairman of the committee on
appropriations of the sangguniang panlungsod or
sangguniang bayan, the president of the city or
municipal liga ng mga barangay, and a representative of
NGOs that are represented in the LDC, as members.

(iii) The executive committee of the barangay

development council shall be composed of the punong
barangay as chairman, a representative of the
sangguniang barangay to be chosen from among its
members, and a representative of NGOs that are
represented in the LDC, as members.

(2) Powers and Functions. - The executive committee shall

exercise and perform the following powers and functions:

(i) Ensure that the decisions of the LDC are faithfully

carried out and implemented;

(ii) Act on matters that need immediate attention and

action of the LDC;

(iii) Formulate policies, plans, and programs based on

the objectives and priorities set by the LDC; and

(iv) Take final action on matters that may be authorized

by the LDC except the approval of local development
plans and annual investment plans.

(3) Meetings - The executive committee shall hold its meetings

at least once a month. Special meetings may be called by the
chairman or by a majority of its members.

(g) Sectoral and Functional Committees

(1) The LDCs may form sectoral or functional committees to

assist them in the performance of their functions.

(2) To ensure policy coordination and uniformity in operational

directions, the sectoral and functional committees shall directly
establish linkages with NGAs and such sectoral or functional
committees organized by the government for development,
investment and consultative purposes.

(3) Consistent with national policies and standards, the sectoral

or functional committees shall:

(i) Provide the LDC with data and information essential

to the formulation of plans, programs, and activities;

(ii) Define sectoral or functional objectives, set targets,

and identify programs, projects, and activities for the
particular sector or function;

(iii) Collate and analyze information and statistics and

conduct related studies;

(iv) Conduct public hearings on vital issues affecting the

sector or function;

(v)
Coordinate
planning,
programming,
and
implementation of programs, projects, and activities
within each sector;

(vi) Monitor and evaluate programs and projects; and

(vii) Perform such other functions as may be assigned by

the LDC.

(h) Participation of LDC Members in Sectoral or Functional Committees

- Each member of the LDC shall, as far as practicable, participate in at
least one sectoral or functional committee.

(i) Secretariat - There shall be constituted for each LDC a secretariat

responsible for providing technical and administrative support,
documenting proceedings, preparing reports; and providing such other
assistance as may be required by the LDC. The LDC may avail of the
services of any NGO or educational or research institution for this
purpose.

The secretariat of the provincial, city, and municipal development

councils shall be headed by their respective local planning and
development coordinators.

The secretariat of the barangay development council shall be headed

by the barangay secretary who shall be assisted by the city or
municipal planning and development coordinator concerned.

(j) Relation of LDCs to the Sanggunian and the Regional Development

Council

(1) The policies, programs, and projects proposed by the LDCs

shall be submitted to the sanggunian concerned for appropriate
action.

(2) The local development plan approved by the sanggunian

shall be integrated into the development plan of the next
higher LDC.

(3) Approved development plans of provinces, highly-urbanized

cities, and independent component cities shall be submitted to
the regional development council, which shall be integrated
into the regional development plan for submission to NEDA, in
accordance with applicable laws, rules and regulations.

(k) Local Development Planning Process - The DILG shall, in

coordination and consultation with NEDA and the leagues of LGUs,
formulate the operational guidelines of the local development planning
process.

(l) Budget Information - The DBM shall furnish LDCs information on

financial resources and budgetary allocations applicable to their

respective jurisdictions to guide them in their planning functions.

Art. 183. A Local Prequalification, Bids and Awards Committee. - (a)

Creation and Composition - There shall be created in every province,
city, and municipality a PBAC which shall be primarily responsible for
the conduct of prequalification of contractors, bidding, evaluation of
bids, and the recommendation of awards concerning local
infrastructure projects. The governor, city or municipal mayor shall act
as chairman with the following as members:

(1) The chairman of the appropriations committee of the

sanggunian;

(2) A representative of the minority party in the sanggunian, if

any, or if there be none, one (1) chosen by the sanggunian from
among its members;

(3) The local treasurer;

(4) Two (2) representatives of NGOs that are represented in the

LDC concerned, to be chosen by the organizations themselves;
and

(5) Any practicing certified public accountant, from the private

sector, to be designated by the local chapter of the Philippine
Institute of Certified Public Accountants, if any. Representatives
of COA shall observe the proceedings of the PBAC and shall
certify that the rules and procedure for prequalification, bids
and awards have been complied with.

(b) Agenda and Meetings

(1) The agenda and other information relevant to the meetings

of the PBAC shall be deliberated upon by the committee at least
one (1) week before the holding of such meetings.

(2) All meetings of the PBAC shall be held in the provincial

capitol or the city or municipal hall. The minutes of such
meetings of the committee and any decision made therein shall
be duly recorded, posted at conspicuous places in the provincial
capitol or the city or municipal hall, and delivered by the most
expedient means to elective local officials concerned.

(c) Technical Committee

(1) A technical committee shall be created in every province,

city, and municipality to provide technical assistance to PBACs.
It shall be composed of the local engineer, the local planning
and development coordinator, and such other officials
designated by the local PBAC.

(2) The chairman of the technical committee shall be

designated by the local PBAC and shall attend its meetings in
order to present the reports and recommendations of the said
technical committee.

Art. 184. Local School Boards. - (a) Creation and Composition - There
shall be established in every province, city or municipality a provincial,
city or municipal school board, respectively, in accordance with the

following:

(1) The provincial school board shall be composed of the

governor and the division superintendent of schools as cochairmen; the chairman of the education committee of
sangguniang panlalawigan, the provincial treasurer, the
representative of the pederasyon ng mga sangguniang
kabataan in the sangguniang panlalawigan, the duly elected
president of the provincial federation of parents-teachers
associations, the duly elected representative of the teachers'
organizations in the province, and the duly elected
representative of the non-academic personnel of public schools
in the province, as members;

(2) The city school board shall be composed of the city mayor
and the city superintendent of schools as co-chairmen; the
chairman of the committee on education of the sangguniang
panlungsod, the city treasurer, the representative of
pederasyon ng mga sangguniang kabataan in the sangguniang
panlungsod, the duly elected president of the city federation of
parents- teachers associations, the duly elected representative
of the teachers' organizations in the city, and the duly elected
representative of the non-academic personnel of public schools
in the city, as members; and

(3) The municipal school board shall be composed of the

municipal mayor and the district supervisor of schools as cochairmen; the chairman of the committee on education of the
sangguniang bayan, the municipal treasurer, the representative
of the pederasyon ng mga sangguniang kabataan in the
sangguniang bayan, the duly elected president of the municipal
federation of parents-teachers associations, the duly elected
representative of the teachers' organization in the municipality,
and the duly elected representative of the non-academic
personnel of public schools in the municipality, as members.

In the event that a province or city has two (2) or more school
superintendents, and in the event that a municipality has two
(2) or more district supervisors, the co-chairman of the local
school board shall be determined as follows:

(i) The Department of Education, Culture and Sports

(DECS) shall designate the co- chairman for the
provincial and city school boards; and

(ii) The division superintendent of schools shall

designate the district supervisor who shall serve as cochairman of the municipal school board.

(b) Functions. - The provincial, city or municipal school board shall:

(1) Determine, in accordance with the criteria set by DECS, the

annual supplemental budgetary needs for the operation and
maintenance of public schools within the province, city, or
municipality, as the case may be, and the supplementary local
cost of meeting such needs, which shall be reflected in the form
of an annual school board budget corresponding to its share of
the proceeds of the special levy on real property constituting

the special education fund and such other sources of revenue

as the Code and other laws or ordinances may provide;

(2) Authorize the provincial, city, or municipal treasurer, as the

case may be, to disburse funds from the special education fund
pursuant to the budget prepared in accordance with applicable
existing rules and regulations;

(3) Serve as advisory committee to the sanggunian concerned

on educational matters such as, but not limited to, the
necessity for and the uses of local appropriations for
educational purposes; and

(4) Recommend changes in the names of public schools within

the territorial jurisdiction of the LGU for enactment by the
sanggunian concerned.

(c) Consultation. - The DECS shall consult the local school board on the
appointment of division superintendents, district supervisors, school
principals, and other school officials.

(d) Prohibition from Delegation - The performance of the duties and

responsibilities of the officials mentioned in paragraph (a) of this
Article in their respective local school boards shall not be delegated.

(e) Meetings and Quorum

(1) The local school board shall meet at least once a month or
as often as may be necessary.

(2) Any of the co-chairmen may call a meeting. A majority of all

its members shall constitute a quorum. When both co-chairmen
are present in a meeting, the local chief executive concerned,
as a matter of protocol, shall be given preference to preside
over the meeting.

(f) Budget - The division superintendent, city superintendent, or district

supervisor, as the case may be, shall prepare the budget of the school
board concerned. Such budget shall be supported by programs,
projects and activities of the school board for the ensuing fiscal year. A
majority of all the members shall be necessary to approve the budget.

The annual school board shall give priority to the following:

(1) Construction, repair and maintenance of school buildings

and other facilities of public elementary and secondary schools;

(2) Establishment and maintenance of extension classes when

necessary; and

(3) Holding of sports activities at the division, district,

municipal, and barangay levels.

(g) Special Education Fund - The proceeds from the additional one
percent (1%) tax on real property accruing to the Special Education
Fund (SEF) shall be automatically released to the local school boards
provided that in case of provinces, the proceeds shall be divided
equally between the provincial and municipal school boards and
provided further, that the proceeds shall be allocated in accordance
with Article 327 of Rule XXXI of these Rules, as determined by the local
school boards.

(h) Compensation and Remuneration - The co-chairmen and members

of the provincial, city, or municipal school board shall perform their
duties as such without compensation or remuneration. Members
thereof shall be entitled to necessary traveling expenses and
allowances chargeable against the funds of the local school board
concerned.

Art. 185. Local Health Boards. - (a) Creation and Composition - There
shall be established in every province, city, or municipality a local
health board composed of the following:

(1) The provincial health board shall be headed by the governor

as chairman, the provincial health officer as vice chairman, and
the chairman of the committee on health of the sanggunian
panlalawigan, a representative from the private sector or NGO
involved in health services, and a representative of the DOH in
the province, as members;

(2) The city health board shall be headed by the city mayor as
chairman, the city health officer as vice chairman, and the
chairman of the committee on health of the sangguniang
panlungsod, a representative from the private sector or NGO
involved in health services, and a representative of the DOH in
the city, as members;

(3) The municipal health board shall be headed by the

municipal mayor as chairman, the municipal health officer as
vice chairman, and the chairman of the committee on health of
the sangguniang bayan, a representative from the private
sector or NGO involved in health services and a representative
of the DOH in the municipality, as members.

(b) Functions - The provincial, city, and municipal health boards shall:

(1) Propose to the sanggunian concerned, in accordance with

the standards and criteria set by DOH, annual budgetary
allocations for the operation and maintenance of health
facilities and services within the province, city, or municipality,
as the case may be;

(2) Serve as an advisory committee to the sanggunian

concerned on health matters such as, but not limited to, the
necessity for, and application of local appropriations for public
health purposes; and

(3)
Create committees which shall advise, local health
agencies on matters such as, but not limited to, technical and
administrative standards of DOH, personnel selection and
promotion, bids and awards, grievances and complaints,
personnel discipline, budget review, operations review and
similar functions.

(c) Meetings and Quorum

(1) The board shall meet at least once a month or as often as

may be necessary.

(2) A majority of the members of the board shall constitute a

quorum, but the chairman or the vice chairman must be

present during meetings where budgetary proposals are being

prepared or considered. The affirmative vote of a majority of
the members shall be necessary to approve such proposals.

(d) Compensation and Remuneration - The chairman, vice chairman,

and members of the provincial, city, or municipal health boards shall
perform their duties as such without compensation or remuneration.
Members thereof who are not government officials or employees shall
be entitled to necessary traveling expenses and allowances
chargeable against the funds of the local health board concerned,
subject to existing accounting and auditing rules and regulations.

(e) Direct supervision and control of DOH over local health operations In cases of epidemics, pestilence, and other widespread public health
dangers, the Secretary of Health may, upon the direction of the
President and in consultation with the LGU concerned, temporarily
assume direct supervision and control over health operations in any
LGU for the duration of the emergency, but in no case exceeding a
cumulative period of six (6) months. With the concurrence of the LGU
concerned, the period for such direct national control and supervision
may be further extended.

Art. 186. Local Peace and Order Councils. - There shall be established
in every province, city, and municipality a local peace and order
council pursuant to EO No. 309, series of 1988, as amended (Annex C).
The local peace and order councils shall have the same composition
and functions as those prescribed by said executive order.

Art. 187. People's Law Enforcement Boards. - There shall be

established in the LGU concerned a people's law enforcement board
(PLEB) pursuant to the pertinent provisions of RA 6975 (Annex D). The
PLEBs shall have the same composition and functions as those
prescribed by said law.

OSEA VS MALAYA The requirement in Sec. 99 of prior consultation

with the local school board, does not apply in this case. It only refers to
appointments made by the DECS.

Section 99 of the Local Government Code of 1991 applies to

appointments made by the Department of Education, Culture
and Sports. This is because at the time of the enactment of the
Local Government Code, schools division superintendents were
appointed by the Department of Education, Culture and Sports
to specific division or location. In 1994, the Career Executive
Service Board issued Memorandum Circular No. 21, Series of
1994, placing the positions of schools division superintendent
and assistant schools division superintendent within the career
executive service. Consequently, the power to appoint persons
to career executive service positions was transferred from the
Department of Education, Culture and Sports to the President.9
The appointment may not be specific as to location. The
prerogative to designate the appointees to their particular
stations was vested in the Department of Education, Culture
and Sports Secretary, pursuant to the exigencies of the service,
as provided in Department of Education, Culture and Sports
Order No. 75, Series of 1996.

In the case at bar, the appointment issued by President Ramos

in favor of respondent to the Schools Division Superintendent
position on September 3, 1996 did not specify her station.10 It
was Secretary Gloria who, in a Memorandum dated November
3, 1997, assigned and designated respondent to the Division of
Camarines Sur, and petitioner to the Division of Iriga City.

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.

THE COMMISSION ON AUDIT VS GARCIA The salaries and personnelrelated 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.

SEC. 100. Meeting and Quorum; Budgetxxx

xxx

xxx

(c) The annual school board budget shall give priority to

the following:

(1) Construction, repair, and maintenance of

school buildings and other facilities of public
elementary and secondary schools;

(2) Establishment and maintenance of extension

classes where necessary; and

(3) Sports activities at the division, district,

municipal, and barangay levels.

The intent of the legislature is the controlling factor in

the interpretation of a statute.6 In this connection, the
following portions of the deliberations of the Senate on
the second reading of the Local Government Code on
July 30, 1990 are significant:

Continuing her interpellation, Ms. Raymundo then

adverted to subsection 4 of Section 101 [now
Section 100, paragraph (c)] and asked if the
budget is limited only to the three priority areas
mentioned. She also asked what is meant by the
phrase "maintenance of extension classes."

In response, Mr. De Pedro clarified that the

provision is not limited to the three activities, to

which may be added other sets of priorities at the

proper time. As to extension classes, he pointed
out that the school boards may provide out of its
own funds, for additional teachers or other
requirements if the national government cannot
provide funding therefor. Upon Ms. Raymundo's
query, Mr. de Pedro further explained that
support for teacher tools could fall under the
priorities cited and is covered by certain
circulars.

Undoubtedly, the aforecited exchange of views clearly

demonstrates that the legislature intended the SEF to
answer for the compensation of teachers handling
extension classes.

Even under the doctrine of necessary implication, the

allocation of the SEF for the establishment and
maintenance of extension classes logically implies the
hiring of teachers who should, as a matter of course be
compensated for their services.

With respect, however, to college scholarship grants, a

reading of the pertinent laws of the Local Government
Code reveals that said grants are not among the
projects for which the proceeds of the SEF may be
appropriated. It should be noted that Sections 100 (c)
and 272 of the Local Government Code substantially
reproduced Section 1, of R.A. No. 5447. But, unlike
payment of salaries of teachers which falls within the
ambit of "establishment and maintenance of extension
classes" and "operation and maintenance of public
schools," the "granting of government scholarship to
poor but deserving students" was omitted in Sections
100 (c) and 272 of the Local Government Code. Casus
omissus pro omisso habendus est. A person, object, or
thing omitted from an enumeration in a statute must be
held to have been omitted intentionally. It is not for this
Court to supply such grant of scholarship where the
legislature has omitted it.

PART XV THE LOCAL GOVERNMENT UNITS

Secs. 384-468 see codal

1. Manner of Creation (see: PART III)

2. Requisites for Creation (see: PART III)

3. Chief Officials and Offices

Powers and Functions of:

a. Punong Barangay Sec. 389

b. Municipal Mayor Sec. 444

c. City Mayor Sec. 455

d. Provincial Governor Sec. 465

e. Municipal Vice-Mayor Sec. 445

f. City Vice-Mayor Sec. 456

g. Provincial Vice-Governor Sec. 466

ACEBEDO OPTICAL VS CA The fact that a party acquiesced in the

special conditions imposed by the City Mayor in subject business
permit does not preclude it from challenging the said imposition, which
is ultra vies or beyond the ambit of authority of the City Mayor. Ultra
vies acts or acts which are clearly beyond the scope of ones authority
are null and void and cannot be given any effect.

Facts: Petitioner applies with the office of the city mayor of

Iligan a business permit. Respondent City Mayor issued
business permit subject to the following conditions:

1. Since it is a corporation, Acebedo cannot put up an

optical clinic but only a commercial store;

2. Acebedo cannot examine and/or prescribe reading

and similar optical glasses for patients, because these
are functions of optical clinics

3. Acebedo cannot sell reading and similar eyeglasses

without a prescription having first been made by an
independent optometrist (not its employee), or
independent optical clinic

The City mayor, then, after investigation sent petitioner a notice

of resolution cancelling its business permit for violating the
conditions set forth in its business permit.

Held: The authority of city mayors to issue or grant licenses and

business permits is beyond cavil. It is provided for by law.

Distinction must be made between the grant of a license or

permit to do business and the issuance of a license to engage
in the practice of a particular profession. The first is usually
granted by the local authorities and the second is issued by the
Board or Commission tasked to regulate the particular
profession. A business permit authorizes the person, natural or
otherwise, to engage in business or some form of commercial
activity. A professional license, on the other hand, is the grant
of authority to a natural person to engage in the practice or
exercise of his or her profession.

In the case at bar, what is sought by petitioner from respondent

City Mayor is a permit to engage in the business of running an
optical shop. It does not purport to seek a license to engage in
the practice of optometry as a corporate body or entity,
although it does have in its employ, persons who are duly
licensed to practice optometry by the Board of Examiners in
Optometry.

A business permit is issued primarily to regulate the conduct of

business and the City Mayor cannot, through the issuance of
such permit, regulate the practice of a profession, like that of

optometry. Such a function is within the exclusive domain of the

administrative agency specifically empowered by law to
supervise the profession, in this case the Professional
Regulations Commission and the Board of Examiners in
Optometry.

The contention that the business permit was a contract

between Iligan City and petitioner was therefore binding
between them and that petitioner is estopped from questioning
the same are untenable. A license or permit is not in the nature
of a contract but a special privilege.

. . . a license or a permit is not a contract between the

sovereignty and the licensee or permitee, and is not a
property in the constitutional sense, as to which the
constitutional proscription against impairment of the
obligation of contracts may extend. A license is rather in
the nature of a special privilege, of a permission or
authority to do what is within its terms. It is not in any
way vested, permanent or absolute.

It is therefore decisively clear that estoppel cannot apply in this

case. The fact that petitioner acquiesced in the special
conditions imposed by the City Mayor in subject business
permit does not preclude it from challenging the said
imposition, which is ultra vires or beyond the ambit of authority
of respondent City Mayor. Ultra vires acts or acts which are
clearly beyond the scope of one's authority are null and void
and cannot be given any effect. The doctrine of estoppel cannot
operate to give effect to an act which is otherwise null and void
or ultra vires.

The respondent city mayor is hereby ordered to reissue

petitioners business permit in accordance with law and with
this disposition.

LIM VS CA Mayor Lim had no authority to close down Bistros business

or any business establishment in Manila without due procee of law.

Facts: Bistro Pigalle filed before the trial court a petition for
mandamus and prohibition against Mayor Lim because
policemen under Lims instructions inspected and investigated
Bistros license as well as the work permits and health
certificates of its staff. This caused the stoppage of work in
Bistros night club and restaurant operations. Lim also refused
to accept Bistros application for a business license, as well as
the work permit applications of Bistros staff.

Held: The authority of mayors to issue business licenses and

permits is beyond question. The law expressly provides for such
authority under Section 11 (l), Article II of the Revised Charter
of the City of Manila and Section 455 (3) (iv) of the Local
Government Code.

From the language of the two laws, it is clear that the power of
the mayor to issue business licenses and permits necessarily
includes the corollary power to suspend, revoke or even refuse
to issue the same. However, the power to suspend or revoke

these licenses and permits is expressly premised on the

violation of the conditions of these permits and licenses. The
laws specifically refer to the "violation of the condition(s)" on
which the licenses and permits were issued. Similarly, the
power to refuse to issue such licenses and permits is premised
on non-compliance with the prerequisites for the issuance of
such licenses and permits. The mayor must observe due
process in exercising these powers, which means that the
mayor must give the applicant or licensee notice and
opportunity to be heard.

True, the mayor has the power to inspect and investigate

private commercial establishments for any violation of the
conditions of their licenses and permits. However, the mayor
has no power to order a police raid on these establishments in
the guise of inspecting or investigating these commercial
establishments. Lim acted beyond his authority when he
directed policemen to raid the New Bangkok Club and the
Exotic Garden Restaurant.

Lim has no authority to close down Bistros business or any

business establishment in Manila without due process of law.
Lim cannot take refuge under the Revised Charter of the City of
Manila and the Local Government Code. There is no provision in
these laws expressly or impliedly granting the mayor authority
to close down private commercial establishments without
notice and hearing, and even if there is, such provision would
be void. The due process clause of the Constitution requires
that Lim should have given Bistro an opportunity to rebut the
allegations that it violated the conditions of its licenses and
permits.

In the instant case, we find that Lims exercise of this power

violated Bistros property rights that are protected under the
due process clause of the Constitution.

NAZARENO VS CITY OF DUMAGUETE

It is true that there is no constitutional prohibition against the

issuance of "mass appointments" by defeated local government
officials prior to the expiration of their terms. Clearly, this is not
the same as a "midnight appointment," proscribed by the
Constitution, which refers to those appointments made within
two months immediately prior to the next presidential
election.15 As we ruled in De Rama v. Court of Appeals:16

The records reveal that when the petitioner brought the matter
of recalling the appointments of the fourteen (14) private
respondents before the CSC, the only reason he cited to justify
his action was that these were midnight appointments that are
forbidden under Article VII, Section 15 of the Constitution.
However, the CSC ruled, and correctly so, that the said
prohibition applies only to presidential appointments. In truth
and in fact, there is no law that prohibits local elective officials
from making appointments during the last days of his or her
tenure.

However, even while affirming De Rama, we explained in

Quirog v. Aumentado,17 that:

We, however, hasten to add that the aforementioned ruling

does not mean that the raison d' etre behind the prohibition
against midnight appointments may not be applied to those
made by chief executives of local government units, as here.
Indeed, the prohibition is precisely designed to discourage, nay,
even preclude, losing candidates from issuing appointments
merely for partisan purposes thereby depriving the incoming
administration of the opportunity to make the corresponding
appointments in line with its new policies.

XXX Indeed, not all appointments issued after the elections by

defeated officials are invalid. CSC Resolution No. 010988 does
not purport to nullify all "mass appointments." However, it must
be shown that the appointments have undergone the regular
screening process, that the appointee is qualified, that there is
a need to fill up the vacancy immediately, and that the
appointments are not in bulk.

4. Sanggunian

Sec. 9 Art. 10 consti - Legislative bodies of local governments shall

have sectoral representation as may be prescribed by law.

i. Composition

Section 390. Composition. - The sangguniang barangay, the

legislative body of the barangay, shall be composed of the
punong barangay as presiding officer, and the seven (7) regular
sangguniang barangay members elected at large and
sangguniang kabataan chairman, as members.

Section 446. Composition.

(a) The sangguniang bayan, the legislative body of the

municipality, shall be composed of the municipal vice mayor as
the presiding officer, the regular sanggunian members, the
president of the municipal chapter of the liga ng mga barangay,
the president of the pambayang pederasyon ng mga
sangguniang kabataan, and the sectoral representatives, as
members.

(b) In addition thereto, there shall be three (3) sectoral

representatives: one (1) from the women; and as shall be
determined by the sanggunian concerned within ninety (90)
days prior to the holding of local elections, one (1) from the
agricultural or industrial workers, and one (1) from other
sectors, including the urban poor, indigenous cultural
communities, or disabled persons.

(c) The regular members of the sangguniang bayan and the

sectoral representatives shall be elected in the manner as may
be provided for by law.

Section 457. Composition

(a) The sangguniang panlungsod, the legislative body of the

city, shall be composed of the city vice-mayor as presiding

officer, the regular sanggunian members, the president of the

city chapter of the liga ng mga barangay, the president of the
panlungsod na pederasyon ng mga sangguniang kabataan, and
the sectoral representatives, as members.

(b) In addition thereto, there shall be three (3) sectoral

representatives: one (1) from the women; and as shall be
determined by the sanggunian concerned within ninety (90)
days prior to the holding of the local elections, one (1) from
agricultural or industrial workers; and one (1) from the other
sectors, including the urban poor, indigenous cultural
communities, or disabled persons.

(c) The regular members of the sangguniang panlungsod and

the sectoral representatives shall be elected in the manner as
may be provided for by law.

Section 467. Composition.

(a) The sangguniang panlalawigan, the legislative body of the

province, shall be composed of the provincial vice-governor as
presiding officer, the regular sanggunian members, the
president of the provincial chapter of the liga ng mga barangay,
the president of the panlalawigang pederasyon ng mga
sangguniang kabataan, the president of the provincial
federation of sanggunian members of municipalities and
component cities and the sectoral representatives, as
members.

(b) In addition thereto, there shall be three (3) sectoral

representatives: one (1) from the women; and as shall be
determined by the sanggunian concerned within ninety (90)
days prior to the holding of the local elections, one (1) from the
agricultural or industrial workers; and one (1) from other
sectors including the urban poor, indigenous cultural
communities, or disabled persons.

(c) The regular members of the sangguniang panlalawigan and

the sectoral representatives shall be elected in the manner as
may be provided for by law.

PROVINCE OF AGUSAN DEL NORTE VS COMELEC

Sections 1 and 2 of R.A. No. 8553, amending Sec. 41(b)

of the Local Government Code of 1991 (R.A. No. 7160),
respectively state:

SECTION 1. Section 41(b) of Republic Act No. 7160,

otherwise known as the Local Government Code of
1991, is hereby amended to read as follows:

(b) The regular members of the [SP], sangguniang

panlungsod, and sangguniang bayan shall be elected by
district as follows:

First and second-class provinces shall have ten

(10) regular members; xxx; Provided: That in
provinces having more than five (5) legislative
districts, each district shall have two (2) [SP]

members, without prejudice to the provisions of

Section 2 of Republic Act No. 6637. xxx. The
presidents of the leagues of sanggunian
members of component cities and municipalities
shall serve as ex officio members of the [SP]
concerned. The presidents of the liga ng mga
Barangay and the pederasyon ng mga
sangguniang
kabataan
elected
by
their
respective chapters, as provided in this Code,
shall serve as ex officio members of the [SP],
sangguniang panlungsod, and sangguniang
bayan.

Pursuant to the afore-quoted provisions, the COMELEC

en banc issued Res. No. 6662 which increased the
allocated slots for Agusan del Norte SP from eight (8) to
ten (10) seats (1 slot for the 1st District and 9 slots for
the 2nd District). The provinces recent acquisition of
second class status accounted for the increase of
allocated seats.

Appropriately, the Constitution14 invests the COMELEC

with broad power to enforce and administer all laws and
regulations relative to the conduct of an election,
plebiscite and other electoral exercises. In the discharge
of its legal duties, the COMELEC is provided by the law
with tools, ample wherewithal, and considerable latitude
in adopting means that will ensure the accomplishment
of the great objectives for which it was created - to
promote free, orderly and honest elections.15 Conceived
by the charter as the effective instrument to preserve
the sanctity of popular suffrage, endowed with
independence and all the needed concomitant powers,
COMELEC deserves to be accorded by the Court the
greatest measure of presumption of regularity in its
course of action and choice of means in performing its
duties, to the end that it may achieve its designed place
in the democratic fabric of our government.16

XXX As the requirements of R.A. No. 8553 and Res. No.

6662 appear to have been complied with insofar as
Agusan del Norte was concerned, the Comelec en banc
was, under the premises, correct in having the 8th and
9th winning SP candidates for said provinces Second
District proclaimed. To be sure, there is no clear showing
that the COMELECs order to proclaim was made in
grave abuse of discretion, a phrase which denotes a
capricious, despotic or whimsical exercise of judgment
as is equivalent to lack of jurisdiction.

SEC. 2. Upon the petition of the provincial board, the

election for any additional regular member to the [SP] as
provided for under this Act, shall be held not earlier than
six (6) months after the May 11, 1998 national and local
elections.

ii. Powers, Duties and Functions of

a. Sangguniang Barangay Sec. 391

b. Sangguniang Bayan Sec. 447

c. Sangguniang Panglungsod Sec. 458

d. Sangguniang Panlalawigan Sec. 468

5. Appointive Officials Common to Municipalities, Cities and Provinces

Secs. 469-490 see codal

Art. 119 IRR

Art. 119. Appointment of Appointive Local Officials. - (a) Unless

otherwise provided in this Rule, heads of offices and
departments in the LGUs shall be appointed by the local chief
executive concerned with the concurrence of a majority of all
the members of the sanggunian, subject to civil service laws,
rules and regulations.

(b) The sanggunian concerned shall act on the appointment

within fifteen (15) days from the date of its submission;
otherwise, the same shall be deemed confirmed.

(c) The term of office of the local administrator, local legal

officer, and local information officer is coterminous with that of
their appointing authority.

Art. 121 IRR

Art. 123 IRR

Art. 121. Residency Requirement. - The requirement for an

appointive local official to be a resident of the LGU concerned
shall be construed to mean as actual residence in the locality
for at least six (6) months immediately preceding his
appointment.
Art. 123. Resignations. - Resignation of appointive local officials
and employees must be in writing and shall be deemed
effective upon acceptance by the local chief executive
concerned. In the case of the provincial, city, and municipal
treasurers, and their respective assistants, their resignations
shall be deemed effective upon acceptance by the Secretary of
Finance.

NEGROS ORIENTAL II ELECTRIC COOPERATIVE INC. VS SANGGUNIANG

PANLUNGSOD OF DUMAGUETE

A line should be drawn between the powers of Congress as the

repository of the legislative power under the Constitution, and
those that may be exercised by the legislative bodies of local
government unit, e.g. the Sangguniang Panlungsod of
Dumaguete which, as mere creatures of law, possess delegated
legislative power. While the Constitution does not expressly
vest Congress with the power to punish non-members for
legislative contempt, the power has nevertheless been invoked
by the legislative body as a means of preserving its authority
and dignity in the same way that courts wield an inherent

power to "enforce their authority, preserve their integrity,

maintain their dignity, and ensure the effectiveness of the
administration of justice." The exercise by Congress of this
awesome power was questioned for the first time in the leading
case of Arnault v. Nazareno, where this Court held that the
legislative body indeed possessed the contempt power.

The principle that Congress or any of its bodies has the power
to punish recalcitrant witnesses is founded upon reason and
policy. Said power must be considered implied or incidental to
the exercise of legislative power. How could a legislative body
obtain the knowledge and information on which to base
intended legislation if it cannot require and compel the
disclosure of such knowledge and information, if it is impotent
to punish a defiance of its power and authority? When the
framers of the Constitution adopted the principle of separation
of powers, making each branch supreme within the real of its
respective authority, it must have intended each department's
authority to be full and complete, independently of the other's
authority or power. And how could the authority and power
become complete if for every act of refusal every act of
defiance, every act of contumacy against it, the legislative body
must resort to the judicial department for the appropriate
remedy, because it is impotent by itself to punish or deal
therewith, with the affronts committed against its authority or
dignity.

The exercise by the legislature of the contempt power is a

matter of self-preservation as that branch of the government
vested with the legislative power, independently of the judicial
branch, asserts its authority and punishes contempts thereof.
The contempt power of the legislature is, therefore, sui generis,
and local legislative bodies cannot correctly claim to possess it
for the same reasons that the national legislature does. The
power attaches not to the discharge of legislative functions per
se but to the character of the legislature as one of the three
independent and coordinate branches of government. The
same thing cannot be said of local legislative bodies which are
creations of law.

To begin with, there is no express provision either in the 1973

Constitution or in the Local Government Code granting local
legislative bodies, the power to subpoena witnesses and the
power to punish non-members for contempt. Absent a
constitutional or legal provision for the exercise of these
powers, the only possible justification for the issuance of a
subpoena and for the punishment of non-members for
contumacious behaviour would be for said power to be deemed
implied in the statutory grant of delegated legislative power.
But, the contempt power and the subpoena power partake of a
judicial nature. They cannot be implied in the grant of
legislative power. Neither can they exist as mere incidents of
the performance of legislative functions. To allow local
legislative bodies or administrative agencies to exercise these
powers without express statutory basis would run afoul of the

doctrine of separation of powers.

Thus, the contempt power, as well as the subpoena power,

which the framers of the fundamental law did not expressly
provide for but which the then Congress has asserted
essentially for self-preservation as one of three co-equal
branches of the government cannot be deemed implied in the
delegation of certain legislative functions to local legislative
bodies. These cannot be presumed to exist in favor of the latter
and must be considered as an exception to Sec. 4 of B.P. 337
which provides for liberal rules of interpretation in favor of local
autonomy. Since the existence of the contempt power in
conjunction with the subpoena power in any government body
inevitably poses a potential derogation of individual rights, i.e.
compulsion of testimony and punishment for refusal to testify,
the law cannot be liberally construed to have impliedly granted
such powers to local legislative bodies. It cannot be lightly
presumed that the sovereign people, the ultimate source of all
government powers, have reposed these powers in all
government agencies. The intention of the sovereign people,
through their representatives in the legislature, to share these
unique and awesome powers with the local legislative bodies
must therefore clearly appear in pertinent legislation.

There being no provision in the Local Government Code

explicitly granting local legislative bodies, the power to issue
compulsory process and the power to punish for contempt, the
Sanggunian Panlungsod of Dumaguete is devoid of power to
punish the petitioners Torres and Umbac for contempt. The AdHoc Committee of said legislative body has even less basis to
claim that it can exercise these powers.

6. Selection and Transfer of Local Government Site, Offices, and Facilities,

Government Centers; Requisites/Conditions

Section 11. Selection and Transfer of Local Government Site, Offices

and Facilities.

(a) The law or ordinance creating or merging local government units

shall specify the seat of government from where governmental and
corporate services shall be delivered. In selecting said site, factors
relating to geographical centrality, accessibility, availability of
transportation and communication facilities, drainage and sanitation,
development
and
economic
progress,
and
other
relevant
considerations shall be taken into account.

(b) When conditions and developments in the local government unit

concerned have significantly changed subsequent to the establishment
of the seat of government, its sanggunian may, after public hearing
and by a vote of two-thirds (2/3) of all its members, transfer the same
to a site better suited to its needs. Provided, however, That no such
transfer shall be made outside the territorial boundaries of the local
government unit concerned.

The old site, together with the improvements thereon, may be

disposed of by the sale or lease or converted to such other use as the
sangguniang concerned may deem beneficial to the local government

unit concerned and its inhabitants.

(c) Local government offices and facilities shall not be transferred,

relocated, or converted to other uses unless public hearings are first
conducted for the purpose and the concurrence of the majority of all
the members of the sanggunian concerned is obtained.

Section 12. Government Centers. - Provinces, cities, and municipalities

shall endeavor to establish a government center where offices,
agencies, or branches of the national government, local government
units, or government-owned or controlled corporations may, as far as
practicable, be located. In designating such a center, the local
government unit concerned shall take into account the existing
facilities of national and local agencies and offices which may serve as
the government center as contemplated under this Section. The
national government, local government unit or government-owned or
controlled corporation concerned shall bear the expenses for the
construction of its buildings and facilities in the government center.

7.
Naming
of
LGUs,
Requisites/Conditions

Public

Places,

Streets

and

Structures,

Section 13. Naming of Local Government Units and Public Places,

Streets and Structures.

(a) The sangguniang panlalawigan may, in consultation with the

Philippine Historical Commission (PHC), change the name of the
following within its territorial jurisdiction:

(1)
Component
cities
and
municipalities,
recommendation of the sanggunian concerned;

upon

the

(2) Provincial roads, avenues, boulevards, thoroughfares, and

bridges;

(3) Public vocational or technical schools and other postsecondary and tertiary schools;

(4) Provincial hospitals, health centers, and other health

facilities; and

(5) Any other public place or building owned by the provincial

government.

(b) The sanggunian of highly urbanized cities and of component cities

whose charters prohibit their voters from voting for provincial elective
officials, hereinafter referred to in this Code as independent
component cities, may, in consultation with the Philippine Historical
Commission, change the name of the following within its territorial
jurisdiction:

(1) City barangays, upon the

sangguniang barangay concerned;

(2) City
bridges;

(3) Public elementary, secondary and vocational or technical

schools, community colleges and non-chartered colleges;

(4) City hospitals, health centers and other health facilities; and

roads,

avenues,

recommendation

boulevards,

of

the

thoroughfares,

and

(5) Any other public place or building owned by the city

government.

(c) The sanggunians of component cities and municipalities may, in

consultation with the Philippine Historical Commission, change the
name of the following within its territorial jurisdiction:

(1) City and municipal barangays, upon recommendation of the

sangguniang barangay concerned;

(2) City, municipal and barangay roads, avenues, boulevards,

thoroughfares, and bridges;

(3) City and municipal public elementary, secondary and

vocational or technical schools, post- secondary and other
tertiary schools;

(4) City and municipal hospitals, health centers and other

health facilities; and

(5) Any other public place or building owned by the municipal

government.

(d) None of the foregoing local government units, institutions, places,

or buildings shall be named after a living person, nor may a change of
name be made unless for a justifiable reason and, in any case, not
oftener than once every ten (10) years. The name of a local
government unit or a public place, street or structure with historical,
cultural, or ethnic significance shall not be changed, unless by a
unanimous vote of the sanggunian concerned and in consultation with
the PHC.

(e) A change of name of a public school shall be made only upon the
recommendation of the local school board concerned.

(f) A change of name of public hospitals, health centers, and other

health facilities shall be made only upon the recommendation of the
local health board concerned.

(g) The change of name of any local government unit shall be effective
only upon ratification in a plebiscite conducted for the purpose in the
political unit directly affected.

(h) In any change of name, the Office of the President, the

representative of the legislative district concerned, and the Bureau of
Posts shall be notified.

Katarungang Pambarangay

Section 515. Refusal or Failure of Any Party or Witness to

Appear before the Lupon or Pangkat. - Refusal or willful failure of
any party or witness to appear before the lupon or pangkat in
compliance with a summons issued pursuant to the provisions on the
Katarungang Pambarangay under Chapter 7, Title III of this Code may
be punished by the city or municipal court as for indirect contempt of
court upon application filed therewith by the lupon chairman, the
pangkat chairman, or by any of the contending parties. Such refusal or
willful failure to appear shall be reflected in the records of the lupon
secretary or in the minutes of the pangkat secretary and shall bar the
complainant who fails to appear, from seeking judicial recourse for the

same cause of action, and the respondent who refuses to appear, from
filing any counterclaim arising out of, or necessarily connected with
the complaint.

A pangkat member who serves as such shall be entitled to an

honorarium, the amount of which is to be determined by the
sanggunian concerned subject to the provisions in this Code cited
above.
PART XVI SETTLEMENT OF BOUNDARY DISPUTES

1. Jurisdictional Responsibility

(a) Boundary disputes involving two (2) or more barangays in

the same city or municipality shall be referred for settlement to
the sangguniang panlungsod or sangguniang bayan concerned.

(b) Boundary disputes involving two (2) or more municipalities

within the same province shall be referred for settlement to the
sangguniang panlalawigan concerned.

(c) Boundary disputes involving municipalities or component

cities of different provinces shall be jointly referred for
settlement to the sanggunians of the province concerned.

(d) Boundary disputes involving a component city or

municipality on the one hand and a highly urbanized city on the
other, or two (2) or more highly urbanized cities, shall be jointly
referred for settlement to the respective sanggunians of the
parties.

(e) In the event the sanggunian fails to effect an amicable

settlement within sixty (60) days from the date the dispute was
referred thereto, it shall issue a certification to that effect.
Thereafter, the dispute shall be formally tried by the
sanggunian concerned which shall decide the issue within sixty
(60) days from the date of the certification referred to above.

2. Appeal

Section 118. Jurisdictional Responsibility for Settlement of Boundary

Dispute. - Boundary disputes between and among local government
units shall, as much as possible, be settled amicably. To this end:

Section 119. Appeal. - Within the time and manner prescribed by the
Rules of Court, any party may elevate the decision of the sanggunian
concerned to the proper Regional Trial Court having jurisdiction over
the area in dispute. The Regional Trial Court shall decide the appeal
within one (1) year from the filing thereof. Pending final resolution of
the disputed area prior to the dispute shall be maintained and
continued for all legal purposes.

Settlement of Boundary Disputes

Amicable Settlement first by the SP concerned within 60 days;

Joint Referral for settlement

If not settled amicably, SP issues certification and TRIES the case. The
SP shall decide the case within 60 days from date of certification.

Decision of SP may be appealed to the Regional Trial Court

MUN. OF SANTA FE VS MUN. OF ARITAO

As shown above, since the effectivity of R.A. No. 6128, the

Sangguniang Panlalawigan has been the primary tribunal responsible
in the amicable settlement of boundary disputes between or among
two or more municipalities located in the same province. With the LGC
of 1991, however, a major change has been introduced that in the
event the Sanggunian fails to effect a settlement, it shall not only issue
a certification to that effect but must also formally hear and decide the
case within the reglementary period.

Notably, unlike R.A. No. 6128 and B.P. 337, the LGC of 1991 grants an
expanded role on theSangguniang Panlalawiganconcerned in resolving
cases of municipal boundary disputes. Aside from having the function
of bringing the contending parties together and intervening or
assisting in the amicable settlement of the case, the Sangguniang
Panlalawigan is now specifically vested with original jurisdiction to
actually hear and decide the dispute in accordance with the
procedures laid down in the law and its implementing rules and
regulations. This situation, in effect, reverts to the old rule under the
RAC, prior to its amendment by R.A. No. 6128, under which the
provincial boards were empowered to investigate, hear the parties and
eventually decide the case on the basis thereof. On the other hand,
under the LGC of 1991, the trial court loses its power to try, at the first
instance, cases of municipal boundary disputes. Only in the exercise of
its appellate jurisdiction can the proper RTC decide the case, on
appeal, should any party aggrieved by the decision of the Sangguniang
Panlalawigan elevate the same.
PART XVII SANGGUNIANG KABATAAN

Section 423. Creation and Election.

(a) There shall be in every barangay a sangguniang kabataan to be

composed of a chairman, seven (7) members, a secretary, and a
treasurer.

(b) A sangguniang kabataan official who, during his term of office, shall
have passed the age of twenty-one (21) years shall be allowed to serve
the remaining portion of the term for which he was elected.

Section 424. Katipunan ng Kabataan. - The katipunan ng kabataan shall be

composed of all citizens of the Philippines actually residing in the barangay for
at least six (6) months, who are fifteen (15) but not more than twenty-one
(21) years of age, and who are duly registered in the list of the sangguniang
kabataan or in the official barangay list in the custody of the barangay
secretary.

Section 425. Meetings of the Katipunan ng Kabataan. - The katipunan ng

kabataan shall meet at least once every three (3) months, or at the call of the
chairman of the sangguniang kabataan or upon written petition of at least
one-twentieth (1/20) of its members, to decide on important issues affecting
the youth of the barangay.

Section 426. Powers and Functions of the Sangguniang Kabataan. - The

sangguniang kabataan shall:

(a) Promulgate resolutions necessary to carry out the objectives of the

youth in the barangay in accordance with the applicable provisions of
this Code;

(b) Initiate programs designed to enhance the social, political,

economic, cultural, intellectual, moral, spiritual, and physical
development of the members;

(c) Hold fund-raising activities, the proceeds of which shall be taxexempt and shall accrue to the general fund of the sangguniang
kabataan: Provided, however, That in the appropriation thereof, the
specific purpose for which such activity has been held shall be first
satisfied;

(d) Create such bodies or committees as it may deem necessary to

effectively carry out its programs and activities;

(e) Submit annual and end-of-term reports to the sangguniang

barangay on their projects and activities for the survival and
development of the youth in the barangay;

(f) Consult and coordinate with all youth organizations in the barangay
for policy formulation and program implementation;

(g) Coordinate with the appropriate national agency for the

implementation of youth development projects and programs at the
national level;

(h) Exercise such other powers and perform such other duties and
functions as the sangguniang barangay may determine or delegate;
and

(i) Exercise such other powers and perform such other duties and
functions as may be prescribed by law or ordinance.

Section 427. Meetings of the Sangguniang Kabataan. - The sangguniang

kabataan shall meet regularly once a month on the date, time, and place to
be fixed by the said sanggunian. Special meetings may be called by the
sangguniang kabataan chairman or any three (3) of its members by giving
written notice to all members of the date, time, place and agenda of the
meeting at least one (1) day in advance. Notices of regular or special
meetings shall be furnished the punong barangay and the sangguniang
barangay.

A majority of the members of the sangguniang kabataan shall constitute a

quorum.

Section 428. Qualifications. - An elective official of the sangguniang kabataan

must be a citizen of the Philippines, a qualified voter of the katipunan ng
kabataan, a resident of the barangay for at least one (1) year immediately
prior to election, at least fifteen (15) years but not more than twenty- one (21)
years of age on the day of his election, able to read and write Filipino, English,
or the local dialect, and must not have been convicted of any crime involving
moral turpitude.

Section 429. Term of Office. - The sangguniang kabataan chairman and

members shall hold office for a period of three (3) years, unless sooner
removed for cause as provided by law, permanently incapacitated, die or

resign from office.

RA 9164 - AN ACT PROVIDING FOR SYNCHRONIZED BARANGAY AND

SANGGUNIANG KABATAAN ELECTIONS, AMENDING REPUBLIC ACT NO. 7160,
AS AMENDED, OTHERWISE KNOWN AS THE "LOCAL GOVERNMENT CODE OF
1991", AND FOR OTHER PURPOSES

Section 1. Date of Election. There shall be synchronized barangay

and sangguniang kabataan elections which shall be held on July 15,
2002. Subsequent synchronized barangay and sangguniang kabataan
elections shall be held on the last Monday of October and every three
(3) years thereafter.

Section 2. Term of Office. The term of office of all barangay and

sangguniang kabataan officials after the effectivity of this Act shall be
three (3) years.

No barangay elective official shall serve for more than three (3)
consecutive terms in the same position: Provided, however, That the
term of office shall be reckoned from the 1994 barangay elections.
Voluntary renunciation of office for any length of time shall not be
considered as an interruption in the continuity of service for the full
term for which the elective official was elected.

Section 3. Registration. For purposes of the July 15, 2002

synchronized barangay and sangguniang kabataan elections provided
under this Act, a special registration of voters for the sangguniang
kabataan shall be fixed by the Commission on Elections (COMELEC).
Subsequent registration of barangay and sangguniang kabataan voters
shall be governed by Republic Act No. 8189.

Section 4. Assumption of Office. The term of office of the barangay

and sangguniang kabataan officials elected under this Act shall
commence on August 15, 2002. The term of office of the barangay and
sangguniang kabataan officials elected in subsequent elections shall
commence at noon of November 30 next following their election.

Section 5. Hold Over. All incumbent barangay officials and

sangguniang kabataan officials shall remain in office unless sooner
removed or suspended for cause until their successors shall have been
elected and qualified. The provisions of the Omnibus Election Code
relative to the failure of elections and special elections are hereby
reiterated in this Act.

Section 6. Section 424 of Republic Act No. 7160, otherwise known as

the Local Government Code of 1991, is hereby amended to read as
follows:

"Sec. 424. Katipunan ng Kabataan. The katipunan ng

kabataan shall be composed of Filipino citizens actually residing
in the barangay for at least six (6) months, who are fifteen (15)
but less than eighteen (18) years of age on the day of the
election, and who are duly registered in the list of the
sangguniang kabataan or in the official barangay list in the
custody of the barangay secretary."

Section 7. Section 428 of Republic Act No. 7160, otherwise known as

the Local Government Code of 1991, is hereby amended to read as
follows:

"Sec. 428. Qualifications. An elective official of the

sangguniang kabataan must be a Filipino citizen, a qualified
voter of the katipunan ng kabataan, a resident of the barangay
for at least one (1) year immediately prior to election, at least
fifteen (15) years but less than eighteen (18) years of age on
the day of the election, able to read and write Filipino, English,
or the local dialect, and must not have been convicted of any
crime involving moral turpitude."

Section 8. Appropriation. The amount of one billion one hundred

million pesos (P1,100,000,000.00) needed for the purpose shall be
charged from the appropriation of the COMELEC authorized under
Republic Act No. 9162, otherwise known as the FY 2002 General
Appropriations Act.

In addition, the savings of the COMELEC not exceeding three hundred

million pesos (P300,000,000.00) shall be used to augment said
appropriations as authorized under COMELEC Special Provision No. 2 of
the Republic Act No. 9162.

The funds mentioned above may be augmented by an amount not

exceeding ten percent (10%) of the sangguniang kabataan funds
reserved pursuant to Section 532 (c) of Republic Act No. 7160.

Section 9. Applicability of Other Election Laws. The Omnibus Election

Code and other existing election laws, as far as practicable, shall apply
to barangay and sangguniang kabataan elections.

MONTESCLAROS VS COMELEC One who is no longer qualified because of an

amendment in the law cannot complain of being deprived of a proprietary
right to SK membership. SK membership is not a property right protected by
the consti because it is a mere statutory right conferred by law.