Utopia Consti Reviewer PART 2 Version 4

FRATERNAL ORDER OF UTOPIA
ATENEO DE MANILA UNIVERSITY

SCHOOL OF LAW
Atty. ARIS S. MANGUERA
MANGUERA OUTLINE 2011

CONSTITUTIONAL LAW I
PART 2
VERSION 4.0
practice before it or before any of its offices. Such

rules, however, shall not diminish, increase, or
Article IX modify substantive rights.
CONSTITUTIONAL COMMISSIONS
Section 7. Each Commission shall decide by a
majority vote of all its Members, any case or matter
brought before it within sixty days from the date of its
I. COMMON PROVISIONS (Article IX-A) submission for decision or resolution. A case or
II. CIVIL SERVICE COMMISSION (Article IX-B) matter is deemed submitted for decision or resolution
upon the filing of the last pleading, brief, or
III. COMMISSION ON ELECTIONS (Article IX-C) memorandum required by the rules of the
IV. COMMISSION ON AUDIT(Article IX-D) Commission or by the Commission itself. Unless
otherwise provided by this Constitution or by law, any
I. Common Provisions decision, order, or ruling of each Commission may
be brought to the Supreme Court on certiorari by the
Independent Constitutional Commissions aggrieved party within thirty days from receipt of a
Safeguards Insuring Independence copy thereof.
Inhibitions on the Members of the Commissions
Rotational Scheme Section 8. Each Commission shall perform such
Reappointment other functions as may be provided by law.
Proceedings
Enforcement of Decisions A. Independent Constitutional Commissions
Section 1. The Constitutional Commissions, which The independent constitutional commissions are
shall be independent, are the Civil Service the:
Commission, the Commission on Elections, and 1. Civil Service Commission
the Commission on Audit. 2. Commission on Elections
3. Commission on Audit
Section 2. No member of a Constitutional
Commission shall, during his tenure, hold any other Q: Why have these commissions been made
office or employment. Neither shall he engage in the constitutional commissions?
practice of any profession or in the active A: The CSC, COA and COMELEC perform key
management or control of any business which, in any functions in the government. In order to protect
way, may be affected by the functions of his office, their integrity, they have been made constitutional
nor shall he be financially interested, directly or
indirectly, in any contract with, or in any franchise or
bodies.1
privilege granted by the Government, any of its
subdivisions, agencies, or instrumentalities, including B. Safeguards Insuring the Independence of the
government-owned or controlled corporations or their Commissions2
subsidiaries.
1. They are constitutionally created; they may not
be abolished by statute. (Art. IX-A, §1)
Section. 3. The salary of the Chairman and the
Commissioners shall be fixed by law and shall not be 2. Each is expressly described as “independent.”
decreased during their tenure. (Art. IX-A, §1)
3. Each is conferred certain powers and functions
Section 4. The Constitutional Commissions shall which cannot be reduced by statute. (Art. IX-B,
appoint their officials and employees in accordance C and D)
with law.
4. The Chairmen and members cannot be
Section 5. The Commission shall enjoy fiscal
removed except by impeachment. (Art. XI, §2)
autonomy. Their approved annual appropriations
shall be automatically and regularly released.
1
Section 6. Each Commission en banc may Bernas Primer at 367 (2006 ed.)
promulgate its own rules concerning pleadings and 2
Cruz, Philippine Political Law, p. 278 (1995 ed).
I sweat, I bleed, I soar… 1

Service, Sacrifice, Excellence
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5. The Chairmen and members are given fairly 2. Shall not engage in the practice of any
long term of office of 7 years. (Art. IX-B, C and profession;
§1(2)) 3. Shall not engage in the active management
6. The terms of office of the chairmen and or control of any business which in any way
members of all the commissioners are may be affected by the functions of his office.
staggered in such a way as to lessen the 4. Shall not be financially interested, directly or
opportunity for appointment of the majority of indirectly, in any contract with, or in any
the body by the same President. (Art. IX-B, C franchise or privilege granted by the
and §1(2)) Government, any of its subdivisions, agencies
7. The chairmen and members may not be or instrumentalities, including government-
reappointed or appointed in an acting owned or controlled corporation or their
capacity.3 (Art. IX-B, C and §1(2)) subsidiaries.
8. The salaries of the chairman and members are
relatively high and may not be decreased Purpose of Disqualifications. To compel the
during continuance in office. (Art. IX-A, §3; Art. chairmen and members of the Constitutional
XVIII, §17 ) Commissions to devote their full attention to the
discharge of their duties and, as well, to remove
9. The Commissions enjoy fiscal autonomy. from them any temptation to take advantage of
(Art. IX-A, §5) their official positions for selfish purposes.4
10. Each Commission may promulgate its own
procedural rules, provided they do not “Practice of profession” for the purpose of
diminish, increase or modify substantive rights. Section 3, does not include teaching. Thus, a
(Art. IX-A, §4) lawyer who teaches law does not thereby, for the
11. The chairmen and members are subject to purpose of Section 2, violate the prohibition of
certain disqualifications calculated to practice of a profession. (I RECORD 544-555, 558-
strengthen their integrity. (Art. IX-A, §4) 559)
12. The Commissions may appoint their own Prohibition of “active management” does not
officials and employees in accordance with prohibit a Commissioner from owning business but
Civil Service Law. (Art. IX-A, §4) it prohibits him from being the managing officer or a
member of the governing board of a business,
Q: There are independent offices specifically “which in any way may be affected by the functions
authorized by the Constitution to appoint their of his office,” a qualifying phrase which does not
officials. Does this imply that their appointment will apply to the prohibition of a practice of a
not be subject to Civil Service Law and Rules? profession. (I RECORD 552-559)
A: No. if this were the case, these independent
bodies would arrogate upon themselves a power D. Rotational Scheme of Appointments (1999 Bar Q)
that properly belongs to the Civil Service
(Section 1(2) of Article IX-B, C and D.)
Commission. Had the intention of the framers of
the Constitution been to isolate and grant full
The first appointees shall serve 7, 5 and 3 years
independence to Constitutional Commission in the
respectively.
matter of appointments, it would have been so
provided. But that is not the case. And since all
Reason for Staggering of Terms:
matters pertaining to appointments are within the
1. To lessen the opportunity of the President
realm of expertise of the CSC, all laws, rules and
to appoint a majority of the body during
regulations it issues on appointments must be
his term;
complied with. (Ombudsman v. CSC, February 16,
2. To ensure continuance of the body, which
2005)
always retains 2/3 of its membership.
C. Inhibitions/Disqualifications (Section 2) 3. The system is expected to stabilize the
Members of constitutional commissions: policies of the body as maintained by the
remaining members.5
1. Shall not, during tenure, hold any other office
or employment; Gaminde v. COA, December 13, 2000. It was held
that in order to preserve the periodic succession
mandated by the Constitution, the rotational plan
3
In Matibag v. Benipayo, the SC said that when an ad interim requires two conditions:
appointment (of the Chairman of COMELEC) is not confirmed (as it
was by-passed, or that there was no ample time for the Commission
on Appointments to pass upon the same), another ad interim 4
appointment may be extended to the appointee without violating the 5
Constitution. Cruz, Philippine Political Law, p. 289 (1995 ed).

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1. The terms of the first commissioners within 30 days fro the receipt thereof. (Article IX-A
should start on a common date (Feb 2, Section 7)
1987); and
2. Any vacancy due to death, resignation or The certiorari referred to is a special civil
disability before the expiration of the term action for certiorari under Rule 65. (Dario v.
should only be filled for the unexpired Mison)
balance of the term.
The certiorari jurisdiction of the Supreme Court
E. Proceedings is limited to decision rendered in actions or
proceedings taken cognizance of by the
1. Decision Commissions in the exercise of their
adjudicatory or quasi-judicial powers.
There is no decision until the draft is signed and
(It does not refer to purely executive powers
promulgated. Hence, if a commissioner signs a
such as those which relate to the COMELEC’s
decision but retires before the decision is
appointing power. Hence, questions arising
promulgated, his vote does not count even if it was
from the award of a contract for the
he who penned the decision. (Ambil v. COMELEC,
construction of voting booths can be brought
October 25, 2005)
before a trial court. Similarly, actions taken by
the COMELEC as prosecutor come under the
2. Who makes the decision
jurisdiction of the trial court which has acquired
The decisions are made by the body and not by jurisdiction over the criminal case.)
individual members. No individual member may
make a decision for the Commission. Much less Q: How are decisions of the commissions
may cases be decided by subordinates of the reviewed by the SC?
Commission. Not even the Commission’s legal
counsel may make a decision fro the Commission. Commission on Audit: Judgments or final
orders of the Commission on Audit may be
3. Each Commission shall decide by a majority brought by an aggrieved party to the Supreme
vote of all its Members any case or matter Court on certiorari under Rule 65.
brought before it within sixty days from the date of Only when COA acts without or excess in
its submission for decision. (Article IX-A Section 7) jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction,
The provision is clear that what is required is may the SC entertain a petition for certiorari
the majority vote of all the members, not only under Rule 65.
of those who participated in the deliberations
and voted thereon. (Estrella v. COMELEC, Civil Service Commission: In the case of
May 27, 2004) decisions of the CSC, Administrative Circular
1-956 which took effect on June 1, 1995,
(Article IX-B, Section 2 allows the COMELEC provides that final resolutions of the CSC shall
to make decisions in divisions) In the be appealable by certiorari to the CA within 15
COMELEC, there is full Commission to form a days from receipt of a copy thereof. From the
banc if there are four Commissioners left. decision of the CA, the party adversely
affected thereby shall file a petition for review
Q: Two commissioners who participated in the on certiorari under Rule 45 of the Rules of
consideration of the case retired before the Court.
promulgation of the COMELEC decision but
after they cast their vote. Four commissioners Q: When certiorari to the Supreme Court is
were left. Should the votes of the retirees be chosen, what is required?
counted? A: Rule 65, Section 1 says that certiorari may
A: No. Their vote should be automatically be resorted to when there is no other plain or
withdrawn. There is no decision until it is speedy and adequate remedy. But
promulgated. reconsideration is a speedy and adequate
Q: Is the 3-1 vote of the remaining remedy. Hence, a case may be brought to the
commissioners a valid decision en banc. Supreme Court only after reconsideration.
A: The vote of 3 is a majority vote of all. (As a consequence, in the case of decisions of
(Dumayas v. COMELEC, April 20, 2001) the COMELEC, only decision en banc may be
brought to the Court by certiorari since Article
4. Unless otherwise provided by this IX-C, 3 says that motions for reconsideration
Constitution or by law, any decision, order, or of decisions shall be decided by the
ruling of each Commission may be brought to the Commission en banc. (Reyes v. RTC, 1995)
Supreme Court on certiorari by the aggrieved party
6
Pursuant to RA 7902.

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proceeding is before a court, the Rules of Court

F. Enforcement of Decisions prevail. (Aruelo Jr. v. CA, October 20, 1993)
The final decisions of the Civil Service Commission Q: May the Supreme Court disapprove internal
are enforceable by a writ of execution that the rules promulgated by the Commissions?
Civil Service Commission may itself issue. (Vital- A: The Supreme Court has no power to disapprove
Gozon v. CA, 212 SCRA 235) Commission rules except through the exercise of
the power of “judicial review” when such
G. Fiscal Autonomy Commission rules violate the Constitution.8
Article IX-A, Section 5 gives the constitutional Q: May Congress assume power to review rules
commissions fiscal autonomy, that is, their promulgated by the Commission?
approved annual appropriations shall be A: No. (By vesting itself with the powers to
automatically and regularly released and shall not approve, review, amend, and revise the
be subject to pre-audit.7 Implementing Rules for the Overseas Absentee
Voting Act of 2003, Congress acted beyond the
Fiscal Autonomy. In Civil Service Commission scope of its constitutional authority. Congress
v. DBM, July 22, 2005, the SC said that the “no trampled upon the constitutional mandate of
report, no release” policy may not be validly independence of the COMELEC.) (Macalintal v.
enforced against offices vested with fiscal COMELEC, July 10, 2003)
autonomy, without violating Section 5 of Article IX-
A of the Constitution. The “automatic release” of If the rules promulgated by a Commission are
approved annual appropriations to petitioner, a inconsistent with a statute, the statute prevails.
constitutional commission vested with fiscal (Antonio v. COMELEC, September 22, 1999)
autonomy should thus be construed to mean that
no condition to fund releases to it may be imposed. II. Civil Service Commission
xxx Composition of CSC
However, petitioner’s claim that its budget may not Functions/ Objective of CSC
be reduced by Congress below the amount Nature of the Powers of CSC
appropriated for the previous year, as in the case Qualifications of CSC Commissioners
of the Judiciary, must be rejected. The provisions in Appointment of CSC Commissioners
Section 3, Article VIII, prohibiting the reduction in Scope of Civil Service
the appropriation for the Judiciary below the Classification of Positions
amount appropriated for the previous year does not Classes of Service
appear in Section 5, Article IX-A. The plain Disqualifications
implication of this omission is that Congress is not Security of Tenure
prohibited from reducing the appropriations of Partisan Political Activity
Constitutional Commissions below the amount Right to Self-organization
appropriated for them for the previous year. Protection to Temporary Employees
Standardization of Compensation
Note: The Supreme Court said that the Double Compensation
Commission on Human Rights, unlike the three
constitutional commissions, does not enjoy fiscal
Section 1. (1) The civil service shall be administered
autonomy. (CHR Employees Association v. CHR, by the Civil Service Commission composed of a
November 25, 2004). Chairman and two Commissioners who shall be
natural-born citizens of the Philippines and, at the
H. Power to Promulgate Rules of Procedure time of their appointment, at least thirty-five years of
age, with proven capacity for public administration,
Article IX-A, Section 6 gives the constitutional and must not have been candidates for any elective
position in the elections immediately preceding their
commissions authority, sitting en, to promulgate
appointment.
rules of procedure. (2) The Chairman and the Commissioners shall be
appointed by the President with the consent of the
Q: In case of conflict between a rule of procedure Commission on Appointments for a term of seven
promulgated by a Commission and a Rule of Court, years without reappointment. Of those first
which prevails? appointed, the Chairman shall hold office for seven
A: In case of conflict between a rule of procedure years, a Commissioner for five years, and another
promulgated by a Commission and a Rule of Court, Commissioner for three years, without
reappointment. Appointment to any vacancy shall be
the rule of the Commission should prevail if the
only for the unexpired term of the predecessor. In no
proceeding is before the Commission; but if the
7 8
Bernas Commentary, p 1003(2003 ed). Bernas Commentary, p 1003(2003 ed).

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case shall any Member be appointed or designated Section 8. No elective or appointive public officer or
in a temporary or acting capacity. employee shall receive additional, double, or indirect
compensation, unless specifically authorized by law,
Section 2. (1) The civil service embraces all nor accept without the consent of the Congress, any
branches, subdivisions, instrumentalities, and present, emolument, office, or title of any kind from
agencies of the Government, including government- any foreign government.
owned or controlled corporations with original Pensions or gratuities shall not be considered as
charters. additional, double, or indirect compensation.
(2) Appointments in the civil service shall be made
only according to merit and fitness to be determined, A. Composition of CSC
as far as practicable, and, except to positions which
are policy-determining, primarily confidential, or
Civil Service Commission is composed of a Chairman
highly technical, by competitive examination.
(3) No officer or employee of the civil service shall be and two Commissioners. (Article IX-B, Section 1(1))
removed or suspended except for cause provided by
law. B. Functions of CSC
(4) No officer or employee in the civil service shall
engage, directly or indirectly, in any electioneering or
partisan political campaign. 1. The CSC shall administer the civil service.
(5) The right to self-organization shall not be denied (Art. IX-B, §1(1))
to government employees. 2. The CSC as the personnel agency of
(6) Temporary employees of the Government shall the government shall establish a career
be given such protection as may be provided by law.
service;
3. It shall adopt measures to promote
Section 3. The Civil Service Commission, as the morale, efficiency, integrity, responsiveness,
central personnel agency of the Government, shall
establish a career service and adopt measures to progressiveness, and courtesy in the civil
promote morale, efficiency, integrity, responsiveness, service.
progressiveness, and courtesy in the civil service. It 4. It shall strengthen the merit and rewards
shall strengthen the merit and rewards system, system;
integrate all human resources development 5. It shall integrate all human resources
programs for all levels and ranks, and institutionalize development programs for all levels and ranks;
a management climate conducive to public 6. It shall institutionalize a management
accountability. It shall submit to the President and climate conducive to public accountability.
the Congress an annual report on its personnel
programs. 7. It shall submit to the President and the
Congress an annual report on its personnel
Section 4. All public officers and employees shall programs. (Article IX-B, Section 3)
take an oath or affirmation to uphold and defend this
Constitution. Power to Grant Civil Service Eligibility. In the
exercise of its powers to implement RA 6850
Section 5. The Congress shall provide for the (granting civil service eligibility toe employees
standardization of compensation of government under provisional or temporary status who have
officials and employees, including those in rendered seven years of efficient service), the CSC
government-owned or controlled corporations with enjoys wide latitude of discretion and may not be
original charters, taking into account the nature of the
responsibilities pertaining to, and the qualifications
compelled by mandamus to issue eligibility.
required for, their positions. (Torregoza v. CSC) But the CSC cannot validly
abolish the Career Executive Service Board
Section 6. No candidate who has lost in any election (CESB); because the CESB was created by law, it
shall, within one year after such election, be can only be abolished by the Legislature (Eugenio
appointed to any office in the Government or any v. CSC, 1995)
Government-owned or controlled corporations or in
any of their subsidiaries. Power to hear and decide administrative cases.
Under the Administrative Code of 1987, the CSC
Section 7. No elective official shall be eligible for has the power to hear and decide administrative
appointment or designation in any capacity to any cases instituted before it directly or on appeal,
public office or position during his tenure. including contested appointments.9
Unless otherwise allowed by law or by the primary
functions of his position, no appointive official shall
Jurisdiction on Personnel actions. It is the intent
hold any other office or employment in the
Government or any subdivision, agency or of the Civil Service Law, in requiring the
instrumentality thereof, including Government-owned establishment of a grievance procedure, that
or controlled corporations or their subsidiaries. decisions of lower officials (in cases involving
9
Antonio B. Nachura, Outline/Reviewer in Political Law, 307
(2006)

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personnel actions) be appealed to the agency A: It has only automatic review jurisdiction, not
head, then to the CSC. The RTC does not have original jurisdiction. (GSIS v. CSC, 1991)
jurisdiction over such personal actions. (Olanda v.
Bugayong, 2003) C. Nature of the Powers of CSC
Authority to Recall Appointments. The Omnibus The Commission is an administrative agency,

Rules implementing the Administrative Code nothing more. As such, it can only perform powers
provides, among others, that notwithstanding the proper to an administrative agency. It can perform
initial approval of an appointment, the same may executive powers, quasi-judicial powers and quasi-
be recalled for violation of other existing Civil legislative or rule-making powers.13
service laws, rules and regulations. Thus, in
Debulgado v. CSC, it was held that the power of D. Qualifications of CSC Commissioners
the CSC includes the authority to recall
appointment initially approved in disregard of 1. Natural-born citizens of the Philippines;
applicable provisions of the Civil Service law and
regulations.10
2. At the time of their appointment, at least thirty-
five years of age;
Original jurisdiction to hear and decide a 3. With proven capacity for public administration;
complaint for cheating. The Commission has 4. Must not have been candidates for any
original jurisdiction and decide a complaint for elective position in the elections immediately
cheating in the Civil Service examinations preceding their appointment. (Article IX-B,
committed by government employees. The fact that Section 1(1))
the complaint was filed by the CSC itself does not
mean that it cannot be an impartial judge. (Cruz v. E. Appointment of CSC Commissioners
CSC. 2001)11
The Chairman and the Commissioners shall be
Q: When there are more than one person qualified appointed by the President with the consent of the
for a position, may the CSC dictate to the Commission on Appointments for a term of seven
appointing authority who among those qualified years without reappointment.
should be appointed?
A: No. the power of the CSC is limited to attesting
Of those first appointed, the Chairman shall hold
to the eligibility or ineligibility of the appointee.
office for seven years, a Commissioner for five
(Orbos v. CSC, 1990)12
years, and another Commissioner for three years,
without reappointment.
Q: May the CSC revoke a certificate of eligibility?
A: Yes. As central personnel agency of the
government, the CSC may revoke a certificate of Appointment to any vacancy shall be only for the
eligibility motu propio. The power to issue a unexpired term of the predecessor. In no case shall
certificate of eligibility carries with it the power to any Member be appointed or designated in a
revoke one that has been given. Whether hearing temporary or acting capacity. (Article IX-B, Section
is required for revocation depends on 1(2))
circumstances of a case.
(Thus, where the case “simply involves the Reason for Staggering of Terms:
rechecking of examination papers and nothing 1. To lessen the opportunity of the President to
more than a re-evaluation of documents already in appoint a majority of the body during his term;
the records of the CSC according to a standard 2. To ensure continuance of the body, which
answer key previously set by it, notice and hearing always retains 2/3 of its membership.
is not required. Instead, what [would apply in such
a case is] the rule of res ipsa loquitor.” (Lazo v.
3. The system is expected to stabilize the policies
of the body as maintained by the remaining
CSC, 1994)
members.14
Q: What jurisdiction does the CSC have over the
F. Scope of Civil Service System
personnel cases given by statute to the jurisdiction
of the Merit Systems Board?
The civil service embraces all branches,
subdivisions, instrumentalities, and agencies of the
10 Government, including government-owned or
(2006)
11
13
(2006) Bernas Primer at 372 (2006 ed.)
12 14
Bernas Primer at 386 (2006 ed.) Cruz, Philippine Political Law, p. 289 (1995 ed).

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controlled corporations with original charters. confidential position and respondent was a secretary
(Article IX-B, Section 2(1)) to the mayor.
Held: The termination of respondent is void. The
position of Assistant Secretary to the Mayor
Test for determining whether a government
should be considered as belonging to the
owned or controlled corporation is subject to competitive service. The position of Secretary of
the Civil Service Law: The test is the manner of the Mayor and Assistant Secretary are two distinct
its creation. Corporations created by special positions. The latter is of a lower rank and is not
charter are subject to the Civil Service, whereas primarily confidential. An assistant secretary merely
corporations incorporated under the Corporation helps in a subordinate capacity the person clothed
Law are not. (PNOC v. Leogardo, 1989) with the duties of a secretary. (Samson v. CA, 145
SCRA 654)17
Corporations with original charters. They are
Facts: Respondent was appointed as member of
those created by special law, like GSIS, SSS, Local internal security staff of the PAGCOR. He was
Water Districts and PAGCOR. (Corporations which terminated allegedly for loss of confidence, because
are subsidiaries of these chartered agencies like he allegedly engaged in proxy betting. When
the Manila Hotel and PAL, are not within the respondent sued for reinstatement, the PAGCOR
coverage of the Civil Service.15 argued that under PD 1869, all its employees are
classified as confidential.
Note: The moment, that a corporation ceases to be Held: The classification in PD 1869 can be no more
than an initial determination and is not conclusive. It
government controlled, for instance, if it is
is the nature of the position which finally determines
privatized, it ceases to fall under the Civil Service.16 whether a position is primarily confidential.
Respondent did not enjoy close intimacy with the
Q: Does the Department of Labor have a role over appointing authority which would make him a
civil service members? confidential employee. As member of the internal
A: Yes. Entities under the civil service system are staff, he was tasked with preventing irregularities
not completely beyond the reach of Department of among the employees and customers, reporting
Labor or labor laws. unusual incidents and infractions, coordinating with
security department during chips inventory, refills,
(When a government entity that is under the Civil
yields and card shuffling, and escorting the delivery
Service enters into a contract, e.g., with a security of table capital boxes, refills and shoe boxes. (CSC
agency or janitorial agency, it becomes an indirect v. Salas, 274 SCRA 414)18
employer of the security guards or the janitors. In
such a situation, under the Labor Code, the Classes of Non-Competitive Positions
liabilities for wages are joint and solidary with the 1. Policy Determining
contractor. The law on wages on in the Labor Code 2. Primarily Confidential
specifically provides that “employer” includes any 3. Highly Technical
person acting directly or indirectly in the interest of
an employer in relation to employees. (Philippine Policy-Determining Position
Fisheries Development Authority v. NLRC & Odin One charged with laying down of principal or
Security Agency, 1992) fundamental guidelines or rules, such as that
of a head of a department.19
G. Classification of Positions (under Section 2(2) for
purpose of determining the manner of testing merit and Primarily Confidential Position
fitness) One denoting not only confidence in the
1. Competitive Positions aptitude of the appointee for the duties of the
2. Non-competitive Positions office but primarily close intimacy which
ensures freedom of intercourse without
Competitive Positions embarrassment or freedom from misgivings or
As a general rule, positions in all branches of betrayals of personal trust on confidential
government belong to the competitive service. matters of state (De los Santos v. Mallare, 87
(Samson v. CA) Phil 289).
Facts: Petitioner, the Mayor of Caloocan City, Proximity Rule: The occupant of a particular
terminated the services of respondent, the Assistant position can be considered a confidential
Secretary to the Mayor, on the ground of loss of employee if the predominant reason why he
confidence. Respondent protested on the ground was chosen by the appointing authority was the
that his position belonged to the classified service. latter’s belief that he can share a close intimate
Petitioner argued that under the Civil Service Law, relationship with the occupant which ensures
the secretaries of city mayors occupied primarily freedom of discussion without fear of
17
Jacinto Jimenez, Political Law Compendium, 365 (2006 ed.)
15
Cruz, Philippine Political Law, p.290 (1995 ed). 18
16 19
Bernas Primer at 374 (2006 ed.) Cruz, Philippine Political Law, p.293 (1995 ed).

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embarrassment or misgivings of possible and, therefore, their occupants hold tenure co-
betrayals of personal trust and confidential terminous with the officials they serve.21
matters of stare. Delos Santos v. Mallare)
(Where the position occupied is remote from
Q: Who determines whether a position is policy-
that of the appointing authority, the element of
trust between them is no longer predominant, determining, primarily confidential or highly
and therefore, cannot be classified as primarily technical?
confidential) A: It is a judicial question. It is the nature of the
position which finally determines whether a position
The following are held to be primarily is primarily confidential, policy-determining or
confidential: highly technical. The initial classification may be
1. Chief legal counsel of PNB. made by the authority creating the office. Executive
(Besa v. PNB) pronouncements as to the nature of the office can
2. City legal officer (Cadiente v.
be no more than initial determination of the nature
Santos)
of the office.22
3. Provincial attorney(Grino v.
CSC) (However, positions of the legal [The competitive and non-competitive positions roughly
staff are not confidential)
correspond to the classification in the Civil Service
4. Security guards of a vice-mayor
(Borres v. CA) Code now embodied in the Revised Administrative
Code of 1987: (1) Career Service and (2) Non-Career
Facts: Upon recommendation of the vice- Service.]23
mayor, the mayor appointed respondents as
security guards of the vice mayor. The H. Classes of Service (under the Revised
mayor and vice mayor lost in the election. As Administrative Code)
the new mayor, petitioner terminated the 1. Career Service
services of respondents for lack of confidence.
2. Non-Career Service
Respondents sued for reinstatement on the
ground that their removal was illegal.
Held: The positions of respondents 1. Career Service (1999 Bar Question)
[security guards of the vice mayor] are The career service is characterized by:
primarily confidential, as they involve giving 1. Entrance based on the merit and fitness to
protection to the vice mayor. The relationship be determined as far as practicable by
between the vice mayor and his security competitive examinations, or based on highly
depend on the highest of trust and confidence.
Hence, the tenure of respondents ended upon
technical qualifications;
loss of confidence in them. (Borres v. CA, 153 2. Opportunity for advancement to higher
SCRA 120)20 career positions;
3. Security of Tenure.24
Highly Technical Position
A highly technical position requires the The career service includes:
appointee thereto to possess technical skill or
training in the supreme or superior degree.
1. Open Career positions for appointment
to which prior qualification in an appropriate
The position of a city engineer may be technical examination is required.
but not highly so because he is not required or 2. Closed Career positions which are
supposed to posses a supreme or superior scientific or highly technical in nature; these
degree of technical skill. The duties of a city include the faculty and academic staff of state
engineer are eminently administrative in
character and can be discharged even by non-
colleges and universities, and scientific and
technical men. (Delos Santos v. Mallare) technical positions in scientific or research
institutions which shall establish and maintain
In Montecillo v. CSC, 2001, the SC said that under their own merit systems;
Administrative Code of 1987, the CSC is expressly 3. Positions in the Career Executive
empowered to declare positions in the CSC as Service, namely, Undersecretary, Assistant
primarily confidential. This signifies that the Secretary, Bureau Director, Assistant Bureau
enumeration in the Civil Service decree, which Director, Regional Director, Assistant Regional
defines the non-career service, is not an exclusive Director, Chief of Department Service and
list. The Commission can supplement this
enumeration, as it did when it issued Memorandum 21
Circular 22, s. 1991, specifying positions in the Civil Antonio B. Nachura, Outline/Reviewer in Political Law, 311
Service which are considered primarily confidential (2006)
22
See Bernas Commentary, p 1016(2003 ed); See also Antonio B.
Nachura, Outline/Reviewer in Political Law, 311 (2006)
23
Bernas Commentary, p 1017(2003 ed).
20 24
Jacinto Jimenez, Political Law Compendium, 366 (2006 ed.) Cruz, Philippine Political Law, p.290 (1995 ed).

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other officers of equivalent rank as may be rank which follows him wherever he is
identified by the Chief Executive Service transferred or reassigned. In fact, a CES
Board, all of whom are appointed by the officer suffers no diminution in salary even
if assigned to a CES position with lower
President;
salary grade, as he is compensated
4. Career officers, other that those in the according to his CES rank and not on the
Career Executive Service, who are appointed basis of the position or office which he
by the President, such as the Foreign Service occupies. (General v. Roco, 2001)
Officers in the DFA.
2. Non-Career Service
5. Commissioned officers and enlisted
men of the Armed Forces, which shall The non-career service is characterized by:
maintain a separate merit system; 1. Entrance on bases other than of the usual
tests of merit and fitness utilized for the career
6. Personnel of government-owned or service;
controlled corporations, whether performing
governmental or proprietary functions, who do
2. Tenure which is limited to a period
not fall under the non-career service; and specified by law, or which is co-terminous with
that of the appointing authority or subject to his
7. Permanent laborers, whether skilled, pleasure, or which is limited to the duration of
semi-skilled, or unskilled.25 a particular project for which purpose
employment was made.27
Career Service Executives (CES). On May 31,
1994, the CSC issued Memorandum Circular No. 21
The non-career service includes:
identifying the positions covered by the CES. The
Memorandum provides that, “incumbents of 1. Elective officials and their personal or
positions which are declared to be CES positions for confidential staff;
the first time pursuant to this Resolution who hold 2. Department heads and other officials of
permanent appointments thereto shall remain under Cabinet rank who hold positions at the
permanent status in their respective positions. pleasure of the President and their personal or
However, upon promotion or transfer to other CES confidential staff;
positions, these incumbents shall be under 3. Chairmen and members of commissions
temporary status in said other CES positions until
and boards with fixed terms of office and their
they qualify.”26
personal or confidential staff;
CES and Security of Tenure. The mere fact that a 4. Contractual personnel or those whose
position belongs to the CES does not automatically employment in the government is in
confer security of tenure on the applicant. Such right accordance with a special contract to
will have to depend on the nature of his appointment undertake a specific work or job, requiring
which, in turn, depends on his eligibility or lack of it. special or technical skills not available in the
A person who does not have the requisite employing agency, to be accomplished within
qualifications for the position cannot be appointed to
a specific period, which in no case shall
it in the first place or, only as an exception to the
rule, may be appointed to it only in an acting exceed one year, and perform or accomplish
capacity in the absence of appropriate eligibles. The the specific work or job, under their own
appointment extended to him cannot be regarded as responsibility with a minimum of direction and
permanent even if it may be so designated. Such supervision from the hiring agency; and
being the case, he could transferred or reassigned
without violating the constitutional guarantee of
5. Emergency and seasonal personnel.28
security of tenure. (De Leon v. CA, 2001)
Q: Is the classification in the Revised
Requisites for Security of Tenure of CES Administrative Code (Career and Non-Career) and
employee: the classification in Section 2(2) (Competitive and
1. Career Service Eligibility Non-competitive) mutually exclusive?
2. Appointment to the appropriate career A: No. Rather, they overlap and complement each
executive service rank. other. The classification in the Code is for the
purposes of determining tenure. The classification
It must be stressed that the security of
tenure of employees in the CES (except in Section 2(2) is for purposes of determining the
1st and 2nd level employees in the civil manner of testing merit and fitness.
service) pertains only to rank and not to
the office or to the position to which they I. Significance of Distinction between competitive
may be appointed. (Thus, a CES officer and non-competitive positions
may be transferred or reassigned form
one position to another without losing his
25
Cruz, Philippine Political Law, p.290 (1995 ed).
26 27
Antonio B. Nachura, Outline/Reviewer in Political Law, 307 Cruz, Philippine Political Law, p.291 (1995 ed).
28
(2006) Cruz, Philippine Political Law, p.292 (1995 ed).

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Appointment to a competitive positions must be law for the position. (Luego v. CSC, 143 SCRA
made according to merit and fitness as 327)
determined, as far as practicable, by
competitive examination. Merit and fitness in Thus, even if officers and employees in the career
appointments to non-competitive positions are not service of the Civil Service enjoy the right to
determined by competitive examinations; but merit preference in promotion, it is not mandatory that the
vacancy be filled by promotion. The appointing
and fitness are required.29
authority should be allowed the choice of men of his
confidence, provided they are qualified and eligible.
J. Appointments in the Civil Service (Central Bank v. CSC 171 SCRA 744)
Appointments in the civil service shall be made The discretion of the appointing authority is not
only according to merit and fitness to be only in the choice of the person who is to be
determined, as far as practicable, by competitive appointed, but also in the nature or character of
examination. (Article IX-B, Section 2(2)) the appointment issued, i.e., whether the
appointment is permanent or temporary. (The CSC
Except: To positions which are policy-determining, may, however, approve as merely temporary an
primarily confidential, or highly technical. appointment intended to be permanent where the
appointee does not possess the requisite eligibility
1. Permanent Appointments and the exigency of the service demands that the
A permanent appointment shall be issued to a position be filled up, even in a temporary capacity.)
person who meets all the requirements for the
positions to which he is being appointed, including Role of CSC (1994 Bar Question)
the appropriate eligibility prescribed, in accordance “All the Commission is authorized to do is to check
with the provision of laws, rules and standards that the appointee possesses the qualifications and
promulgated in pursuance thereof. (Administrative appropriate eligibility. If he does, his appointment is
Code of 1987, Book V-A, Sec. 27) approved; if not, it is disapproved.” (Lopez v. CSC)
2. Temporary Appointments The CSC is not a co-manager, or surrogate

In the absence of appropriate eligibles and it administrator of government offices and agencies.
becomes necessary in the public interest to fill a Its functions and authority are limited to approving
vacancy, a temporary appointment shall be issued or reviewing appointments to determine their
to a person who meets all the requirement for the compliance with requirements of the Civil Service
position to which he is being appointed except the Law. On its own the Commission does not have the
appropriate civil service eligibility. power to terminate employment or to drop
members from the rolls. (Torres v. CSC, 2001)
Temporary appointments do not have a
definite term and may be withdrawn or Substantive Requirement. A substantive
discontinued, with or without cause, by the requirement under Section 11 of the Omnibus
appointing power.30 The new Constitution now Service Rules and Regulations is that an
says: “Temporary employees of the appointment should be submitted to the CSC within
Government shall be given such protection as 30 days from issuance; otherwise it shall be
may be provided by law.” (The provision is not ineffective. (See OMNC v. Macaraig, 2004)
self-executory)
Legal Standing. Both the appointing authority and
Q: A permanent appointment is extended. The the appointee are the real party interest, and both
Civil Service Commission approves it as have legal standing, in a suit assailing a CSC order
temporary in the belief that somebody else is disapproving an appointment. (Abella Jr. v. CSC)
better qualified. May the Commission do so?
A: No. The sole function of the Commission is K. Disqualifications
to attest to the qualification of the appointee. 1. No candidate who has lost in any election
(Luego v. CSC, 1986) shall, within one year after such election, be
appointed to any office in the Government or
Discretion of Appointing Authority any Government-owned or controlled
The appointing authority has discretion who to corporations or in any of their subsidiaries.
appoint even in the career service of the Civil (§6)
Service, where the appointee possesses the 2. No elective official shall be eligible for
minimum qualification requirements prescribed by appointment or designation in any capacity to
any public office or position during his tenure.
(§7)
29
Bernas Primer at 375 (2006 ed.) 3. Unless otherwise allowed by law or by the
30 primary functions of his position, no appointive
Cruz, Philippine Political Law, p.293 (1995 ed).

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official shall hold any other office or

employment in the Government or any 2. “For Cause Provided by Law”
subdivision, agency or instrumentality thereof, This is a guarantee of both procedural and
including Government-owned or controlled substantive due process. “For Cause” means for
corporations or their subsidiaries. (§7) reasons which the law and sound public policy
recognize as sufficient for removal, that is legal
Q: What is the purpose of the prohibition of appointment cause, and not merely causes which the appointing
of “lame ducks” in Section 6? power in the exercise of discretion may deem
A: The extirpation of the “spoils system.” sufficient. Moreover, the cause must relate to and
Q: Are there exceptions to the rule against appointment
effect the administration of the office, and must be
of elective officials? restricted to something of a substantial nature
A: Yes. The Vice-President may be appointed member of directly affecting the rights and interests of the
the Cabinet. A member of Congress is designated to sit in public. (De los Santos v. Mallare)
the Judicial and Bar Council.31
3. Coverage of Security of Tenure
Q: Is the rule on appointive officials (§7) applicable to No officer or employee of the civil service shall be
members of Cabinet?
removed or suspended except for cause provided
A: No. For them, the applicable rule is the stricter
prohibition in Article VII, Section 13.32 by law. (§2(3))
Q: Distinguish the rule on appointments of members of Security of Tenure is enjoyed only by those who
Congress and rule on elective officials (other than posses a permanent appointment.34
Congressmen). • One does not become a permanent appointee
A: The 1st paragraph of Section 7 governs elective unless qualified for the position, and this, even if the
officials. Unlike the provision for members of Congress in appointment extended is mistakenly designated as
Article VI Section 13, which does not prohibit acceptance permanent.
of an appointment but merely causes the forfeiture of the • The appointment of one who is not qualified
congressional seat if the holder accepts an appointment, can only be temporary and it is understood from the
1st paragraph of Section 7 prohibits elective officials outset that it is without fixity but enduring only at the
other than members of Congress from accepting pleasure of the appointing authority.
appointment during their tenure. If the elective official
accepts an appointment without first resigning his elective • For an appointment to be permanent, it must be
position, the appointment is invalid. Neither, however, a real appointment by the appointing authority and
does he thereby forfeit his elective seat. (Flores v. Drilon, not just a designation by one who does not have the
1993) appointing authority. (Thus, where the law says that
the officer is to be appointed by the President,
Q: May Congress by law authorize the appointment of designation by the department secretary does not
elective officials? result in a permanent appointment. (Binamira v.
A: No. Unlike the case of appointive officers in 2nd Garucho))
paragraph of Section 7, Congress may not create • Even one who has an appointment to a position
exception on elective officials mentioned in 1st paragraph which is subsequently converted to a career position
of Section 7. must yield the position to one who has it if he or she
does not possess career eligibility.(Dimayuga v.
L. Security of Tenure (1993, 1999, 2005 Bar Question) Benedicto II)
• A person lacking the necessary
No officer or employee of the civil service shall be qualifications who is given a temporary
removed or suspended except for cause provided by law. appointment does not automatically become a
(§2(3)) permanent appointee when he or she acquires the
required qualification. (For a temporary appointee to
1. Significance of Security of Tenure become permanent, he must receive a new
The efficiency of the a civil service system depends commission, that is, a permanent appointment if he
is to be considered permanent.)
largely on the morale of the officers and employees
in the service. Morale, in turn, can be fatally
undermined when the security of officers in the Persons occupying non-competitive positions
possession of their office is unprotected against the are also covered by the guarantee of security of
arbitrary action of superior officers. tenure. The distinction between competitive and
Hence, basic in any civil service is a guarantee of non-competitive is significant only for purposes of
security of tenure, a guarantee against arbitrary appointment. The termination of the official relation
impairment, whether total or partial of the right to of officials and employees holding primarily
continue in the position held.33 confidential positions on the ground of loss of
confidence can be justified because in that case
31 their cessation from office involves no removal but
Bernas Primer at 387 (2006 ed.)
32
33 34
Bernas Primer at 378 (2006 ed.) Bernas Commentary, p 1025(2003 ed).

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expiration of the term of office. (Hernandez v. would in effect circumvent the provision which
Villegas, 14 SCRA 544, 1965)35 safeguards the tenure of office of those who are in
the Civil Service. (Gloria v. CA, 2000)
Facts: Petitioner a watchman in the office of the
provincial treasurer, was dismissed for the convenience 5. Abolition of Office
of the province. He has no civil service eligibility. He sued While abolition of office does not imply removal of
for reinstatement.
Held: Although petitioner is not a civil service eligible, this
the incumbent officer, this is true only where the
is not a ground to dismiss him anytime without formal abolition of office is done in good faith and not
charge. The position of watchman falls under the merely as a cover for a removal otherwise not
unclassified service. Positions in the unclassified allowed by the Constitution. (Briones v. Osmena,
service are also guaranteed security of tenure. 1958)
(Baquidra v. CFI, 80 SCRA 123)36
Thus, for abolition of office to escape the taint of
Q: Do appointees to the foreign service who do not unconstitutionality, it must be made:
belong to the Career Corps enjoy security of tenure like
the Career Corp.?
1. In good faith;
A: No. Political appointees in the foreign service possess 2. Not for personal or political reasons; and
“tenure coterminous with that of the appointing authority 3. Not in violation of the law. (Roque v.
or subject to his pleasure.” (Astraquillo et al v. Ericta)
Manglapus, 1990)
Note: Abolition of office, even if arising from
Q: Binamira was “designated” by the Secretary of reorganization mandated by law must be justified
Tourism as Manager of the Tourism Authority. The law, by good faith and public need. (Abrogar v.
however, requires that the Manager be appointed by the
President. Did Binamira acquire security of tenure?
Garrucho, 1991) Moreover, abolition of an office
A: No, because he did no receive a valid appointment. created by law can only be done also by law.
(Binamira v. garucho, 1990) (Eugenio v. CSC, 1995)
Q: Can one who does not have qualifications for a 6. Reorganization (1988 Bar Question)
position acquire security of tenure therein? Abolition by law as a result of reorganization is a
A: No, security of tenure in an office is acquired only by recognized cause for termination of a government
one who has the qualifications for that office. (Dimayuga
employee.
v. Benedicto , 2002)
Q: Are temporary appointees protected by the guarantee Q: Does the President have the authority to reorganize
of security of tenure? the executive department?
A: No. they may be removed anytime. (Mendiola v. A: Yes. And this can include deactivation of offices. As far
Tancinco, 1973) The new Constitution now says: as bureaus, agencies or offices in the executive
“Temporary employees of the Government shall be given department are concerned, the President’s power of
such protection as may be provided by law.” (The control may justify him to inactivate the functions of a
provision is not self-executory) particular office, or certain laws may grant him the broad
authority to carry out reorganization measures. (Buklod
Q: What is the extent of the President’s disciplinary ng Kawaning EIIB v. Executive Secretary, 2001)37
authority over presidential appointees who belong to the
career service? 7. Declaration of Office Vacant
A: The power is limited. Career service officers and Q: Section 35 of RA 6715 declared all positions of
employees who enjoy security of tenure may be removed the Commissioners, Executive Labor Arbiters and
only for any of the causes enumerated by law. (Larin .v. Labor Arbiters of the present NLRC vacant.
Executive Secretary, 280 SCRA 713) Petitioners question its constitutionality.
A: Unconstitutional. While abolition by law as a
4. Transfers result of reorganization is a recognized cause for
Permanent Transfer. The transfer of a permanent termination of a government employee, it is not the
employee to another permanent position without same as a declaration that the office is vacant. RA
the consent of the employee violates security of 6715 has effected no express abolition of the
tenure. (Gloria. CA, 2000) positions, neither an implied abolition (i.e., an
irreconcilable inconsistency between the nature,
Temporary Transfer. While a temporary transfer duties and functions of the petitioner’s offices
or assignment of personnel is permissible even under the old rules and those of the new law)
without the employee’s prior consent, it cannot be (Mayor v. Hon. Macaraig, 1991)
done when the transfer is a preliminary step toward
his removal, or is a scheme to lure him away from 8. Preventive Suspension
his permanent position, or designed to indirectly Pending administrative investigation, it is provided
terminate his service, or force his resignation. Such that the employee charged shall be subject to
35
36 37
Jacinto Jimenez, Political Law Compendium, 370 (2006 ed.) Bernas Primer at 383 (2006 ed.)

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preventive suspension but the same shall be lifted 2. Purpose of the Prohibition Against Partisan
after ninety days if he is not a presidential Political Activity
appointee unless the delay in the conduct of the
probe is imputable to him. (Book V(A), Sec. 46) 1. To prevent the members of the civil
service from using the resources of the
9. Back Wages government for the benefit of their candidates;
When an employee is illegally dismissed, and his 2. To insulate them from political retaliation
reinstatement is later ordered by the Court, for all from winning candidates they have opposed or
intents and purposes he is considered as not not supported.40
having left his office, and notwithstanding the
silence of the decision, he is entitled to payment of 3. Meaning of Partisan Political Activity
back salaries. (Del Castillo v. CSC, 1997) As interpreted by the Civil Service Commission,
partisan political activity means active support for
But where the reinstatement is ordered by the court or affiliation with the cause of a political party
not as the result of exoneration but merely as an or candidate. This would include, among others,
act of liberality of the Court of Appeals, the claim being a candidate for any elective office or
for backwages for the period during which the delegate to any political convention, being an
employee was not allowed to work must be denied. officer or member of any political committee, party
The general rule is that a public official is not or organization, delivering speeches, canvassing or
entitled to compensation if he has not rendered any soliciting votes or political support or contributions
service. (Balitaosan v. DECS, 2003) for any political party or candidate or, in general,
becoming actively identified with the success or
The payment of backwages during the period of failure of any candidate or candidates for election
suspension of a civil servant who is subsequently to public office.41
reinstated is proper only if he is found innocent of
the charges and the suspension is unjustified. (See 4 Admin Code of 1987
Brugada v. Sec. of Education, 2005) “No officer or employee in the Civil Service,
including members of the AFP, shall engage
M. Partisan Political Activity directly or indirectly in any partisan political activity
or take part in any election except to vote nor shall
1. Coverage he use his official authority or influence to coerce
No officer or employee in the civil service shall the political activity of any other person or body.
engage, directly or indirectly, in any electioneering Nothing herein provided shall be understood to
or partisan political campaign.(§2(4)) prevent any officer or employee from expressing
his views on current political problems or issues, or
The military establishment is covered by this from mentioning the names of candidates for public
provision. Article XVI, Section 5(3) provides that no office whom he supports: Provided, That public
member of the military shall engage directly or officers and employees holding political offices may
indirectly in any partisan political activity except to take part in political and electoral activities but it
vote. But this prohibition applies only to those in the shall be unlawful for them to solicit contributions
active military service, not to reservists. (Cailles v. from their subordinates or subject them to any of
Bonifacio, 65 Phil 328) the acts involving subordinates prohibition in the
Election Code.” (Book V(A), Sec. 56)
Exceptions:
1. Particularly exempted from the prohibition N. Right to Self-Organization
against partisan political activity are
members of the Cabinet.38 The right to self-organization shall not be denied to
2. Public officers and employees holding government employees. (§2(5))
political offices (who are allowed to take
part in political and electoral activities, Thus, the Congress may provide, for example, that
temporary employees who acquire civil service
except to solicit contributions from their eligibility for the positions occupied by them shall be
subordinates or commit acts prohibited automatically considered permanent appointees
under the Election Code) (Section 45 of thereto, or that temporary employees may not be
Civil Service Law)39 replaced during a fixed period except for cause, or
shall be entitled to the same material benefits, such
as leave privileges, during incumbency.42
40
Cruz, Philippine Political Law, p.298 (1995 ed; Santos v. Yatco,
38
Cruz, Philippine Political Law, p.297 (1995 ed). 106 Phil 745)
39 41
Antonio B. Nachura, Outline/Reviewer in Political Law, 320 Section 14, Rule XVIII, Civil Service Rules.
42
(2006) Cruz, Philippine Political Law, p.300 (1995 ed).

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1. To inform the people of the exact amount

Q: May members of the Civil Service unionize? a public functionary is receiving from the
A: Yes. government so they can demand
1. Article III, Section 8 guarantees the right commensurate services;
of all “including those employed in the 2. To prevent the public functionary from
public and private sectors, to form dividing his time among several positions
unions…” concurrently held by him and ineptly
2. Article IX-B, Section 2(5) states that “the performing his duties in al of them because he
right to self-organization shall not be cannot devote to each the proper attention it
denied to government employees.” deserves.
3. Article XIII, Section 3 guarantees “the right
of all workers to self-organization, 2. What is Prohibited
collective bargaining and negotiations, The prohibition of the Constitution was against
and peaceful concerted activities, double compensation or additional compensation,
including the right to strike in accordance not double appointments. Hence, a second position
with law.” may be held concurrently with the principal position
Their right to strike, however, may be limited as long as the two are not incompatible, but the
by law.43 incumbent cannot collect additional salaries for
services rendered unless specifically allowed by
Right to Strike law. (Quimson v. Ozaeta)
Right to organize does not include the right to
strike. Hence, the Court ruled that employees of Additional Compensation. There is
SSS and public school teachers do not have a additional compensation when for one and the
constitutional right to strike. This does not mean, same office for which a compensation has
however, that they may not be given the right to been fixed there is added to such fixed
strike by statute.44 compensation an extra reward in the form, for
instance, of a bonus. This is not allowed in the
O. Protection to Temporary Employees absence of law specifically authorizing such
extra reward. (Thus, where an officer’s pay as
Temporary employees of the Government shall be provided by law was a fixed per diem, the SC
given such protection as may be provided by law. disallowed additional compensation in the form
(§2(6)) of cost of living allowances as well as incentive
and Christmas bonuses. However, the Court
P. Standardization of Compensation was careful to point out that when a per diem
or an allowance is given as reimbursement for
The Congress shall provide for the standardization expenses incident to the discharge of an
of compensation of government officials and officer’s duties, it is not an additional
employees, including those in government-owned compensation prohibited by the Constitution.
or controlled corporations with original charters, (Peralta v. Mathay, 1967))
taking into account the nature of the responsibilities
pertaining to, and the qualifications required for, Double Compensation. Refers to two sets of
their positions. (Art. IX-B, §5) compensation for two different offices held
concurrently by one officer. In the instances
Q. Double Compensation/ Additional Compensation when holding a second office is allowed, when
an officer accepts a second office, he can
No elective or appointive public officer or employee draw the salary attached to the second office
shall receive additional, double, or indirect only when he is specifically authorized by law
compensation, unless specifically authorized by to receive double compensation.45
law, nor accept without the consent of the
Congress, any present, emolument, office, or title 3. Meaning of “Specifically Authorized By Law”
of any kind from any foreign government. Strict Interpretation: “The authority required by
the Constitution to receive double or additional
Pensions or gratuities shall not be considered as compensation is a specific authority given to a
additional, double, or indirect compensation. (Art. particular employee or officer of the government
IX-B, §8) because of peculiar or exceptional reasons
warranting the payment of extra or additional
1. Reason for Prohibition compensation.” (Sadueste v. Surigao, 1941)
43
44 45
Bernas Commentary, p 1027(2003 ed). Bernas Primer at 389 (2006 ed.)

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(The above interpretation seems to be too strict. It III. Commission on Elections

seems in effect to require a special law for every
instance of additional or double compensation. An Composition of COMELEC
obiter dictum in the later case of Quimson v. Qualifications of COMELEC Commissioners
Ozaeta, 1956, approves of a more liberal and Appointment of COMELEC Commissioners
perhaps administratively more rational approach.)46 Independence of COMELEC
Nature of COMELEC Powers
Liberal Interpretation: “According to law, under Constitutional Powers and Objectives
certain circumstances, the President may authorize Statutory Powers of COMELEC
double compensation in some cases, such as En Banc and Division Cases
government officials acting as members with Judicial Review
compensation in government examining board…, Open Party System
or department secretaries acting as members of Representation
Board of Directors of government corporations, and Elections
in such cases the prohibition against double
compensation is not observed. If the President Section 1. (1) There shall be a Commission on
approves the double compensation, well and good. Elections composed of a Chairman and six
Commissioners who shall be natural-born citizens of
The appointee whose appointment may then be
the Philippines and, at the time of their appointment,
regarded as valid from the beginning could receive at least thirty-five years of age, holders of a college
extra compensation. If it is disapproved, then the degree, and must not have been candidates for any
appointment will have to be withdrawn or elective positions in the immediately preceding
cancelled, unless of course, the appointee was elections. However, a majority thereof, including the
willing to serve without compensation, in which Chairman, shall be members of the Philippine Bar
case there would be no valid objection. (Quimson who have been engaged in the practice of law for at
v. Ozaeta, 98 Phil 705, 709-710)) least ten years.
(2) The Chairman and the Commissioners shall be
When a law says that money generated by a school
Commission on Appointments for a term of seven
may be used for “other programs/projects of the
years without reappointment. Of those first
university or college,” such a law is not
appointed, three Members shall hold office for seven
authorization for giving additional or double
years, two Members for five years, and the last
compensation.47
Members for three years, without reappointment.
Appointment to any vacancy shall be only for the
Q: Upon optional retirement from the judiciary on April 1, unexpired term of the predecessor. In no case shall
1992, Santos was fully paid of his retirement gratuity any Member be appointed or designated in a
under RA 910, as amended. For five years thereafter he temporary or acting capacity.
has been receiving a monthly pension. Thereafter he was
appointed Director III of the defunct MMA.
(1) Can he continue to receive his pension while receiving Sec. 2. The Commission on Elections shall exercise
salary as director? the following powers and functions:
A: Yes. The second paragraph of Section 8 means that a (1) Enforce and administer all laws and regulations
retiree receiving pension of gratuity can continue to relative to the conduct of an election, plebiscite,
receive such pension or gratuity even if he accepts initiative, referendum, and recall.
another government position to which another (2) Exercise exclusive original jurisdiction over all
compensation is attached. contests relating to the elections, returns, and
(2) Upon separation from MMA, can his separation pay qualifications of all elective regional, provincial, and
under RA 7294 include years of service in judiciary? city officials, and appellate jurisdiction over all
A: No. That would be double compensation for the same contests involving elective municipal officials decided
service in the judiciary for which he has already been by trial courts of general jurisdiction, or involving
paid. Section 11 of RA 7924 does not specifically elective barangay officials decided by trial courts of
authorize payment of additional compensation for years limited jurisdiction.
of government outside of the MMA. (Santos v. CA, Decisions, final orders, or rulings of the Commission
2000)48 on election contests involving elective municipal and
barangay offices shall be final, executory, and not
O. Oath of Allegiance appealable.
(3) Decide, except those involving the right to vote,
All public officers and employees shall take an oath all questions affecting elections, including
determination of the number and location of polling
or affirmation to uphold and defend this
places, appointment of election officials and
Constitution. (Art. IX-B, §4) inspectors, and registration of voters.
(4) Deputize, with the concurrence of the President,
law enforcement agencies and instrumentalities of
the Government, including the Armed Forces of the
46 Philippines, for the exclusive purpose of ensuring
47 free, orderly, honest, peaceful, and credible
Benguet State U v. Colting, G.R. No. 169637, June 8, 2007.
elections.
48

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(5) Register, after sufficient publication, political rules, and regulations shall be granted by the
parties, organizations, or coalitions which, in addition President without the favorable recommendation of
to other requirements, must present their platform or the Commission.
program of government; and accredit citizens' arms
of the Commission on Elections. Religious Section 6. A free and open party system shall be
denominations and sects shall not be registered. allowed to evolve according to the free choice of the
Those which seek to achieve their goals through people, subject to the provisions of this Article.
violence or unlawful means, or refuse to uphold and
adhere to this Constitution, or which are supported
by any foreign government shall likewise be refused Section 7. No votes cast in favor of a political party,
registration. organization, or coalition shall be valid, except for
Financial contributions from foreign governments and those registered under the party-list system as
their agencies to political parties, organizations, provided in this Constitution.
coalitions, or candidates related to elections,
constitute interference in national affairs, and, when Section 8. Political parties, or organizations or
accepted, shall be an additional ground for the coalitions registered under the party-list system, shall
cancellation of their registration with the not be represented in the voters' registration boards,
Commission, in addition to other penalties that may boards of election inspectors, boards of canvassers,
be prescribed by law. or other similar bodies. However, they shall be
(6) File, upon a verified complaint, or on its own entitled to appoint poll watchers in accordance with
initiative, petitions in court for inclusion or exclusion law.
of voters; investigate and, where appropriate, Section 9. Unless otherwise fixed by the
prosecute cases of violations of election laws, Commission in special cases, the election period
including acts or omissions constituting election shall commence ninety days before the day of
frauds, offenses, and malpractices. election and shall end thirty days thereafter.
(7) Recommend to the Congress effective measures
to minimize election spending, including limitation of Section 10. Bona fide candidates for any public
places where propaganda materials shall be posted, office shall be free from any form of harassment and
and to prevent and penalize all forms of election discrimination.
frauds, offenses, malpractices, and nuisance
candidacies.
(8) Recommend to the President the removal of any Section 11. Funds certified by the Commission as
officer or employee it has deputized, or the necessary to defray the expenses for holding regular
imposition of any other disciplinary action, for and special elections, plebiscites, initiatives,
violation or disregard of, or disobedience to, its referenda, and recalls, shall be provided in the
directive, order, or decision. regular or special appropriations and, once
(9) Submit to the President and the Congress, a approved, shall be released automatically upon
comprehensive report on the conduct of each certification by the Chairman of the Commission.
election, plebiscite, initiative, referendum, or recall.
A. Composition of COMELEC
Section 3. The Commission on Elections may sit en
banc or in two divisions, and shall promulgate its There shall be a Commission on Elections
rules of procedure in order to expedite disposition of composed of a Chairman and six
election cases, including pre- proclamation Commissioners. (Article IX-C, Section 1(1))
controversies. All such election cases shall be heard
and decided in division, provided that motions for
reconsideration of decisions shall be decided by the B. Qualifications of Members of COMELEC
Commission en banc.
1. Natural-born citizens of the Philippines;
Section 4. The Commission may, during the election 2. At the time of their appointment, at least thirty-
period, supervise or regulate the enjoyment or
five years of age;
utilization of all franchises or permits for the
operation of transportation and other public utilities, 3. Holders of a college degree;
media of communication or information, all grants, 4. Must not have been candidates for any
special privileges, or concessions granted by the elective positions in the immediately preceding
Government or any subdivision, agency, or elections.
instrumentality thereof, including any government-
A majority thereof, including the Chairman, shall be
owned or controlled corporation or its subsidiary.
Such supervision or regulation shall aim to ensure members of the Philippine Bar who have been
equal opportunity, and equal rates therefor, for public engaged in the practice of law for at least ten
information campaigns and forums among years. (Article IX-C, Section 1(1))
candidates in connection with the objective of holding
free, orderly, honest, peaceful, and credible Q: For purposes of this provision, what does
elections. “engaged in the practice of law” mean?
A: It means to engage in “any activity, in or out of
Section 5. No pardon, amnesty, parole, or court, which requires the application of law, legal
suspension of sentence for violation of election laws, procedure, knowledge, training and experience.”
(Cayetano v. Monsod, 1991)

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capacity. The choice of temporary chairman fall under the

C. Appointment of COMELEC Members discretion of the Commission and cannot be exercised for
it by the President. (Brillantes v. Yorac, 1990)
The Chairman and the Commissioners shall be
D. Independence of COMELEC
Commission on Appointments for a term of seven
years without reappointment. For violating the constitutional mandate of
independence of the COMELEC, Sections 17.19
Of those first appointed, three Members shall hold and 25 of RA 9189 (Overseas Absentee Voting Act
office for seven years, two Members for five years, of 2003) insofar as they relate to the creation of
and the last Members for three years, without Joint Congressional Oversight Committee and
reappointment. grant to it the power to review, revise, amend and
approve the Implementing Rules and Regulations
Appointment to any vacancy shall be only for the promulgated by the COMELEC, were declared
unexpired term of the predecessor. In no case shall unconstitutional. (Makalintal v. COMELEC, 2003)
any Member be appointed or designated in a
temporary or acting capacity. (Article IX-C, Section E. Nature of powers of the COMELEC
1(2))
Like the CSC, the COMELEC is an administrative
Q: What is the common starting point for appointees agency. As such, therefore, the power it possesses
to the Commission? are executive, quasi-judicial and quasi-
A: February 2, 1987, the day the new Constitution legislative.
took effect. Thus, in reckoning the seven year term, By exception, however, it has been given judicial
counting must always start from February 2 even if power as judge with exclusive original jurisdiction
the appointee took office later. This way the
staggering of the terms is preserved.49
over “all contest relating to the election, returns,
and qualifications of all elective regional, provincial,
Facts: Respondents were appointed as ad interim and city officials, and appellate jurisdiction over all
Chairman and Commissioners of the COMELEC. As their contest involving elective municipal officials
appointments were not acted upon by the Commission on decided by trial courts of general jurisdiction or
Appointments (COA), the President renewed their ad involving elective barangay officials decided by trial
interim appointments twice. Petitioner questioned the courts of limited jurisdiction.51
validity of appointments on the ground that they violated
the constitutional prohibition against temporary
appointments and reappointments to the COMELEC.
F. Constitutional Powers of COMELEC (under Article
Held: An ad interim appointment is a permanent IX-C)
appointment, because it takes effect immediately and can (Read complete text of Section 2 above)
no longer be withdrawn by the President once the
appointee has qualified into the office. The fact that is
subject to confirmation by COA does not alter its
1. Enforcement of election laws. (Section 2
permanent character. An ad interim appointment means it (1), (4),(6) and (8)).
is a permanent appointment made by the President in the 2. Deciding election contests. (Section
meantime that Congress is in recess. 2(2)).
The prohibition on reappointment in Section 1(20,
Article IX-C of the Constitution does not apply to a 3. Deciding Administrative Questions.
by-passed ad interim appointment, because there is (Section 2(3)).
no final disapproval under Article VII, Section 16.
There must be confirmation by the COA of the
4. Deputization of Law-enforcement
previous appointment before the prohibition on
agencies. (Section 2(4)).
appointment can apply. If an interim appointment 5. Registration of Political Parties.
cannot be renewed, the President will hesitate to make ad (Section 2(5))
interim appointments because most of the appointees will
effectively disapproved by mere inaction of the COA. This 6. Improvement of elections. (Section 2(7),
will nullify the constitutional power of the President to (8) and (9)).
make ad interim appointments. (Matibag v. Benipayo,380 7. Power to Promulgate Rules (Section 3)
SCRA 49)50
8. Supervision or regulation of franchises
Q: In the absence of a Chairman of the COMELEC, the (Section 4)
President designated Commissioner Yorac Acting
Chairman. Valid?
9. Power to recommend executive
A: No. Article IX-C, Section 1(2) prohibits the
clemency for violation of election laws and
appointment of Members in a temporary or acting rules. (Section 5)
49
10. In special cases, power to fix the
Bernas Primer at 391 (2006 ed.) election period. (Section 9)
50
51

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Power to Ascertain identity of a political party

1. Enforcement of Election Laws and its legitimate officer. The power to enforce
and administer laws relative to the conduct
Section 2(1): “The Commission on Elections elections, decide all questions affecting elections,
shall xxx [e]nforce and administer all laws and register and regulate political parties, and ensure
regulations relative to the conduct of an orderly elections, include the ascertainment of the
election, plebiscite, initiative, referendum, and identity of political party and its legitimate officers.
recall.”
(LDP v. COMELEC, 2004) (In this case the SC
(See also Section 2(6) and (8))
held that the COMELEC erred in resolving the
controversy by granting official candidate status to
Such authority includes: the LDP candidates either the “Angara Wing” or the
1. Promulgate rules and regulations for the “Aquino Wing”, because clearly, it is the Party
implementation of election laws. (Gallardo Chairman, who is the Chief Executive Officer of the
v. Tabamo, 1993) Party, who has the authority to represent the party
2. Power to Ascertain identity of a political in all external affairs and concerns, and to sign
party and its legitimate officer. (LDP v. documents for and in its behalf.)
COMELEC)
3. By virtue of such authority, the COMELEC The regular courts have no jurisdiction to entertain
can require compliance with the rules for
a petition to enjoin the construction of public works
the filing of certificates of candidacy, projects within 45 days before an election.
prevent or prosecute election offenses,
(Gallardo v. Tabamo, 218 SCRA 253)
supervise the registration of voters and
the holding of the polls, and see to tie that
Section 2(4): “The Commission on Elections
the canvass of the votes and the shall xxx [d]eputize, with the concurrence of the
proclamation of the winners are done in President, law enforcement agencies and
accordance with law.52 instrumentalities of the Government, including
4. Such authority includes the power to the Armed Forces of the Philippines, for the
exclusive purpose of ensuring free, orderly,
annul an illegal registry of voters, to
honest, peaceful, and credible elections.”
cancel a proclamation made by the board
of canvassers on the basis of irregular or
incomplete canvass, and even to oust the
shall xxx [r]ecommend to the President the
candidate proclaimed notwithstanding that removal of any officer or employee it has
he has already assumed office. It may deputized, or the imposition of any other
also reject nuisance candidates.53 disciplinary action, for violation or disregard of,
5. Power to annul an entire municipal or disobedience to, its directive, order, or
decision.”
election on the ground of post-election
terrorism. (COMELEC has extensive powers
under the general authority to “enforce and Article IX-C, Section 2(8); Section 52, Omnibus
administer all laws relative to the conduct of Election Code: The COMELEC has the power to
elections.” (Biliwang v. COMELEC, 1982) (Here recommend the imposition of disciplinary action
the COMELEC had found that it was impossible upon an employee it has deputized for violation of
to distinguish the illegal from the valid returns. its order.
(Note also that the COMELEC annulled the
elections after proclamation))
Since the COMELEC can recommend that
disciplinary action be taken against an officer it
Power to promulgate rules and regulations for
had deputized, it can investigate an
the implementation of election laws. The
administrative charge against such an officer
Commission may promulgate rules and regulations
to determine whether or not it should
for the implementation of election laws. Such
recommend that disciplinary action be taken
power is deemed implicit in the power to
against him. (Tan v. COMELEC, 237 SCRA
implement regulations. (Gallardo v. Tabamo, 1993)
353)
Accordingly, where the subject of the action is
the enforcement of the provisions of the shall xxx [f]ile, upon a verified complaint, or on
Omnibus Election Code, the case is within the its own initiative, petitions in court for inclusion
exclusive jurisdiction of the COMELEC, not of or exclusion of voters; investigate and, where
the regular courts. (Gallardo v. Tabamo, 1993) appropriate, prosecute cases of violations of
election laws, including acts or omissions
constituting election frauds, offenses, and
52 malpractices.”
53

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Jurisdiction to investigate and prosecute decisions in election contests. It does not refer to
cases. The COMELEC has exclusive jurisdiction prosecutory function of the Commission) The RTC
to investigate and prosecute cases for violations of on the other hand, is given exclusive authority to try
and decide criminal cases involving elections.
election laws. (De Jesus v. People, 120 SCRA 760)
When the COMELEC as prosecutor files a case
However, the COMELEC may validly delegate this before a trial court, the trial court acquires
power to the Provincial Fiscal [Prosecutor]. (People jurisdiction and all subsequent dispositions of the
v. Judge Basilla, 179 SCRA 87) case must be subject to approval by the court.
Hence, the court may order reinvestigation and
Finding of probable cause. It is well-settled that require submission of records of the preliminary
the finding of probable cause in the prosecution of examination to satisfy itself that there is probable
election offenses rests in the COMELEC’s sound cause for the issuance of a warrant of arrest.
(People v. Hon. Delgado, 1990)
discretion. The COMELEC exercises the
constitutional authority to investigate and where
The power of the Commission under Section 2(6)
appropriate, prosecute cases for violation of
covers not just criminal cases but also
election laws, including acts or omissions
administrative cases. (Thus, where the
constituting election, fraud, offenses and
Commission has deputized a City Prosecutor as
malpractices. (Baytan v. COMELEC, 2003)
election canvasser, such Prosecutor cannot claim
immunity from the power of the Commission on the
No obligation to search for evidence needed.
argument that he comes under the executive
COMELEC has no obligation to search for the
department. The Commission has power all
evidence needed. ”The task of the COMELEC as
persons required by law to perform duties relative
investigator and prosecutor, acting upon any
to the conduct of elections. However, under
election offense complaint is not searching and
Section 2(8), the Commission may merely issue a
gathering of proof in support of a complaint for
recommendation for disciplinary action to the
alleged commission of an election offense. A
President.)55
complainant, who in effect accuses another person
of having committed an act constituting an election
2. Deciding Election Contests
offense, has the burden, as it is his responsibility to
follow through his accusation and prove the
complaint.”54 shall xxx [e]xercise exclusive original
jurisdiction over all contests relating to the
Subject to authority of trial judge. When the elections, returns, and qualifications of all
Commission acts as prosecutor, its actions and elective regional, provincial, and city officials,
decision are subject to the authority of the trial and appellate jurisdiction over all contests
judge. Even after the Commission has decided that involving elective municipal officials decided by
an information be filed, a trial judge before whom trial courts of general jurisdiction, or involving
the information is filed may still order elective barangay officials decided by trial
courts of limited jurisdiction.
reinvestigation. Decisions, final orders, or rulings of the
Commission on election contests involving
Authority to decide whether to appeal. This elective municipal and barangay offices shall be
power to investigate and prosecute election law final, executory, and not appealable. “
violations includes the authority to decide whether
or not to appeal the dismissal of a criminal case by Powers under Section 2(2):
the trial court. (COMELEC v. Silva, 286 SCRA 177)
1. Exclusive original jurisdiction over all
contests relating to the elections, returns, and
Q: The COMELEC is given authority to investigate
qualifications of all elective regional, provincial,
and prosecute violations of the election law and
and city officials;
Section 7 says that decisions, orders and rulings of
the Commission may be reviewed only by the SC 2. Appellate jurisdiction over all contests
on certiorari. After the preliminary investigation involving elective municipal officials decided by trial courts
conducted by COMELEC lawyers and after the of general jurisdiction, or involving elective barangay
COMELEC approves the report and orders the officials decided by trial courts of limited jurisdiction.
filing of a criminal case, may the trial court order a (The enumeration found in Section 2(2)
reinvestigation and require the presentation of the excludes jurisdiction over elections for the
records of the preliminary investigation made by Sangguniang Kabataan. Jurisdiction over
the COMELEC? these is given to the DILG. (Alunan III v.
A: Yes. The final orders, rulings and decision of the Mirasol, 1997)
COMELEC reviewable on certiorari by the SC as
provided by law are those rendered in actions of The COMELEC shall exercise… exclusive
proceedings before the COMELEC and taken original jurisdiction over all contests relating to
cognizance of by said body in the exercise of its
adjudicatory or quasi-judicial powers. (such as
54 55
Kilosbayan v. COMELEC (1997) Bernas Commentary, p 1055 (2003 ed).

SCHOOL OF LAW
the elections, returns, and qualifications of all the election returns or certificate of canvass.
elective regional, provincial, and city officials.56 (Pangilinan v. COMELEC, 228 SCRA 36)61
Who decides problems involving In a congressional election, the losing

“elections, returns, and qualifications” of candidate cannot file a petition for correction
candidates? of manifest errors. (Vinzons-Chato v.
Congressional Candidate: Once a winning COMELEC, 520 SCRA 166)62
candidate has been proclaimed, taken his
oath, and assumed office as a Member of the Q: Does the COMELEC have authority to review contests
House of Representatives, COMELEC’s involving the election of officers of a barangay federation?
A: No. the power of the COMELEC is over popular
jurisdiction over election contests relating to
elections. (Taule v. Secretary Santos, 1991)
his election, returns and qualifications ends,
and the HRET”s own jurisdiction begins
The COMELEC shall have …appellate jurisdiction
(Aggabao v. COMELEC, 2005) over all contests involving elective municipal officials
Municipal Offices: In the case of municipal decided by trial courts of general jurisdiction, or
offices; even if the case began with the involving elective barangay officials decided by trial
COMELEC before proclamation before the courts of limited jurisdiction.
controversy is resolved, it ceases to be a pre-
proclamation controversy and becomes a Appellate Jursidiction. The COMELEC exercises
contest cognizable by the Court of First appellate jurisdiction over contests involving
Instance.57 municipal or barangay officials as originally decided
by regional or municipal trial courts, and its
Q: What is the difference between the jurisdiction decision in these cases shall be final, executory
of the COMELEC before the proclamation and its
and not appealable
jurisdiction after proclamation?
Q: Section 9 of RA 6679 makes decisions of a
A: The difference lies in the due process
municipal or metropolitan court in a barangay
implications. COMELEC’s jurisdiction over a pre-
election appealable to the regional trial court. Is this
proclamation controversy is administrative or quasi-
valid?
judicial and is governed by the less stringent
A: No. The COMELEC has exclusive appellate
requirements of administrative due process
jurisdiction over all contests involving barangay
(although the SC has insisted that question on
elective officials decided by trial court of limited
“qualifications” should be decide only after a full-
jurisdiction. The jurisdiction of the COMELEC,
dress hearing).
however, is over questions of fact; questions of law
COMELEC’s jurisdiction over “contests” is judicial
go to the Supreme Court. (Flores v. COMELEC,
and is governed by the requirements of judicial
1990)
process. Hence, even in the case of regional or
provincial or city offices, it does make a difference
whether the COMELEC will treat it as a pre- Power to issue writs. The appellate
proclamation controversy or as a contest.58 jurisdiction includes, by virtue of Section 50 of
BP 967, the power to issue writs of certiorari,
Exclusive Jurisdiction over pre-proclamation prohibition and mandamus.63
cases. The COMELEC shall have exclusive
jurisdiction over all pre-proclamation controversies. The COMELEC has the power to review
(BP 881, Section 242) This should be construed as decisions of municipal courts on municipal
referring only to regional, provincial and city election contests. And when it does so, the
officials.(Pangilinan v. COMELEC)59 entire case is not opened as what happens in
appeals on criminal cases.64
RA 7166 Section 15 prohibits pre-proclamation
controversies in national offices (except on Period to Appeal from RTC. Appeal to the
questions involving the composition and COMELEC from the RTC must be filed within
proceedings of the Board of Canvassers).60 5 days from receipt of a copy of the decision. A
motion for reconsideration of the RTC decision
As regards national offices, No pre-proclamation is a prohibited pleading, and does not interrupt
case is allowed regarding the preparation, the running of the period for appeal. (Veloria v.
transmission, receipt, custody and appreciation of COMELEC)65
56
Dean Bautista: Decide questions affecting elections (but not to be
voted for). 61
Jacinto Jimenez, Election Law 37 (2008).
57 62
Bernas Primer at 396 (2006 ed.) Jacinto Jimenez, Election Law 37 (2008).
58
Bernas Primer at 391 (2006 ed.) 63
Bernas Commentary, p 1048 (2003 ed).
59 64
Jacinto Jimenez, Political Law Compendium, 390 (2006 ed.) Manzala v. Comelec, GR 176211m May 8, 2007.
60 65
Antonio B. Nachura, Outline/Reviewer in Political Law 330 (2006 Antonio B. Nachura, Outline/Reviewer in Political Law 332 (2006
ed.) ed.)

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Under COMELEC Rules of Procedure, the divests COMELEC of jurisdiction in favor of the
mere filing of the Notice of Appeal is not proper Electoral Tribunal – unless the proclamation
enough; it should be accompanied by payment was invalid.70
of the correct amount of appeal fee, in order
that the appeal may be deemed perfected.66 Plebiscites. The Comelec has jurisdiction over
cases involving plebiscites. Thus where the
Execution Pending Appeal. The COMELEC question was whether the electorate of Taguig
cannot deprive the RTC of its competence to voted in favor of, or against the conversion of the
order execution of judgment pending appeal, municipality of Taguig into a highly urbanized city in
because the mere filing of appeal does not the plebiscite conducted for the purpose, the
divest the trial court of its jurisdiction over a Comelec correctly assumed jurisdiction. The
case and the authority to resolve pending problem was not for regular courts. It was not a
incidents. (Edding v. COMELEC, 246 SCRA case calling for the exercise of judicial power since
502)67 it did not involve the violation of any legally
demandable right and its enforcement. There was
Rationale. Such exception is allowed in no plaintiff or defendant in the case. It merely
election cases “to give as much recognition to involved the ascertainment of the vote of the
the worth of the trial judge’s decision as that electorate of Taguig.71
which is initially ascribed by the law to the
proclamation of the board of canvassers”.
Q: Does the Commission have the power to transfer
Indeed, to deprive trial courts of their discretion
municipalities form one congressional district to another
to grant execution pending appeal would “bring
for the purpose of preserving proportionality?
back the ghost of the ‘grab-the-proclamation,
A: No. This is not one of the broad power granted by
prolong the protest’ techniques so often
Section 2(2). Neither is it what is referred to by the
resorted to by devious politicians in the past in
Ordinance Appended to the Constitution (Sections 2 and
their efforts to perpetuate their hold on an
3) authorizing the Commission to make “ minor
elective public office.” (Santos v. COMELEC,
adjustments”. The deliberations of the Constitutional
2003)68
Commission on the subject clearly excluded the power to
transfer whole municipalities. (Montejo v. COMELEC,
It was held that RTC may grant a motion for
1995)
execution pending appeal when there are valid
and special reasons to grant the same such as:
1. The public interest or the will of Power to Punish Contempt. The power to punish
the electorate; contempt can be exercised only in connection with
2. The shortness of the remaining judicial functions and not administrative functions.
portion of the term; (Masangcay v. COMELEC, 6 SCRA 27)
3. The length of time that the
election contest has been pending. Decisions, final orders, or rulings of the
(Navarosa v. COMELEC, 2003) Commission on election contests involving
elective municipal and barangay offices shall
The motion for execution pending appeal be final, executory, and not appealable. “
should be filed before the expiration of the
period for appeal. (Relampos v. Cumba, 243 . (This rule does not conflict with the minimum
SCRA 757) appellate jurisdiction of the SC under Article VIII,
Section 5(2), which covers only the final judgments
Q: Does the COMELEC have jurisdiction to issue and orders of courts of justice. The Commission is
writs of certiorari, mandamus, quo warranto or not a judicial tribunal but only an administrative
habeas corpus? body.) It should be noted that, its decisions, orders
A: Yes, it does, but only in aid of its appellate and rulings may be challenged in a petition for
jurisdiction over election protest cases involving
elective municipal officials decided by courts of
certiorari with the SC under Article IX-A, Section 7,
general jurisdiction. (This means that its jurisdiction on the ground of grave abuse of discretion.72
is concurrent with that of the Supreme Court under
Article VIII, Section 5(1). (Carlos v. Judge Angeles, The non-appealable character refers only to
2000)69 questions of fact and not of law. Such decisions
remain subject to the jurisdiction of the SC through
Congressional Candidate. The general rule is the special civil action of certiorari under Rule 65 in
that the proclamation of a congressional candidate accordance with Article IX-A, Section 7.(Rivera v.
COMELEC, 1991)
66
Antonio B. Nachura, Outline/Reviewer in Political Law 332 (2006
ed.) 3. Deciding Administrative Questions
67
Antonio B. Nachura, Outline/Reviewer in Political Law 332 (2006
70
ed.) Planas v Comelec, G.R. No. 167594, March 10, 2006.
68 71
Antonio B. Nachura, Outline/Reviewer in Political Law 332 (2006 Buac and Bautista v. Comelec, G.R. No. 155855, January 26,
ed.) 2004.
69 72

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Section 2(3): “The Commission on Elections Q: What is the scope of power of the Commission over
shall xxx [d]ecide, except those involving the deputized officers?
right to vote, all questions affecting elections, A: The power of the Commission over deputized officers
including determination of the number and under Section 2(6) covers not just criminal cases but also
location of polling places, appointment of administrative cases. Thus, where the Commission has
election officials and inspectors, and registration deputized a City Prosecutor as election canvasser, such
of voters.” Prosecutor cannot claim immunity form the power of the
Commission on the argument that he comes under the
executive department. The Commission has power over
Questions on Right to Vote. The COMELEC
all persons required by law to perform duties relative to
cannot decide the right to vote, which refers to the the conduct of elections. However, under Section 2(8),
inclusion or exclusion of voters. (2001 Bar the Commission may merely issue a recommendation for
Question) disciplinary action to the President. (Tan v. COMELEC,
1994)
The Constitution prevents the COMELEC, in
the exercise of its administrative powers and Q: What is one instance that the COMELEC is
functions, to decide questions involving the subordinated to the President?
right to vote. (It may do so, however, in the A: Section 2(8) provides that the COMELEC may merely
discharge of its duties concerning registration “recommend to the President the removal of any officer
or employee it has deputized, or the imposition of any
of voters, except that its decision shall be disciplinary action, for violation or disregard of, or
subject to judicial review. Such power comes disobedience to, its decision, order, or directive.”75
within its quasi-judicial authority and may be
validly exercised as incidental to its powers of 5. Registration of Political Parties
regulation.)73
Section 2(5): “The Commission on elections
Change in polling places. While changes in the shall xxx [r]egister, after sufficient publication,
location of polling places may be initiated by the political parties, organizations, or coalitions
written petition of the majority of the voters, or by which, in addition to other requirements, must
agreement of all the political parties, ultimately, it is present their platform or program of
the COMELEC that determines whether a change government; and accredit citizens' arms of the
Commission on Elections. Religious
is necessary after due notice and hearing. (Cawasa
denominations and sects shall not be
v. COMELEC, 2002) registered. Those which seek to achieve their
goals through violence or unlawful means, or
The Supreme Court held that the contempt power refuse to uphold and adhere to this Constitution,
conferred upon the COMELEC by law was an or which are supported by any foreign
inherently judicially prerogative and could not be government shall likewise be refused
exercised by it in connection with the discharge of registration.
its purely routinary or administrative duties, as Financial contributions from foreign
governments and their agencies to political
distinguished from quasi-judicial duties. (Guevara
parties, organizations, coalitions, or candidates
v. COMELEC) related to elections, constitute interference in
national affairs, and, when accepted, shall be
an additional ground for the cancellation of their
4. Deputization of Law Enforcement Agencies registration with the Commission, in addition to
other penalties that may be prescribed by law.”
shall xxx [d]eputize, with the concurrence of the Purpose of Registration.
President, law enforcement agencies and
instrumentalities of the Government, including
1. To acquire juridical personality
the Armed Forces of the Philippines, for the 2. To qualify for accreditation,
exclusive purpose of ensuring free, orderly,
honest, peaceful, and credible elections.“
3. To be entitled to the rights of political
parties, a political party must be registered
with the COMELEC (Section 60, Omnibus
It should be stressed that this power may be
Election Code)
exercised only with the consent of the President, or
negatively stated, may not be exercised without his
Reason for presentation of platforms and
permission.74
programs. It is essential that political parties
73 present their programs and platforms of
Cruz, Philippine Political Law, p. 313 (1995 ed); Nachura: As an
government for the information of the electorate
incident to its duties concerning registration of voters, it may
decide a question involving the right to vote, but its decision whose support they are seeking as otherwise the
shall be subject to judicial review. Antonio B. Nachura, voters may not properly and intelligently exercise
Outline/Reviewer in Political Law 334 (2006 ed.)
74 75
Bernas Commentary, p 1052 (2003 ed). Cruz, Philippine Political Law, p. 314 (1995 ed).

SCHOOL OF LAW
their suffrages. This rule will also enable the

Commission to determine if the party seeking One candidate per party for each Political Party.
registration is not entitled thereto because it is a The SC annulled the COMELEC resolution dividing
religious group, or is subversive in nature or the LDP into “wings”, each of which nominate
purpose, or does not recognize the Constitution, or candidates for every elective position and be
being supported by a foreign government. entitled to representation in the election
committees that the COMELEC create. The Court
Political Party. Section 80 of the 1965 Election declared that the electoral process envisions one
Code and Section 22 of the 1971 Election Code candidate from a political party for each position,
defined a political party as “an organized group of and disunity and discord amongst members of a
person pursuing the same political ideals in a political party should not be allowed to create a
government and includes its branches and mockery thereof. By according both wings
divisions..” the 1978 Election Code adopted the representation in the election committees, the
aforequoted definition by providing in Section 199 COMELEC has eroded the significance of political
that “any other group of persons pursuing the same parties and effectively divided the opposition. (LDP
political ideals in the government may register with v. COMELEC)
the Commission and be entitled to the same right
and privileges.” (Geronimo v. COMELEC, 1981)76 Q: To register for purposes of the electoral process, must
an organization be a political party?
Groups which cannot be registered as political A: No.77
parties:
Q: Is there a distinction between an accredited political
1. Religious denominations or sects; party and a registered political party?
2. Those who seek to achieve their goals A: The concept of accreditation no longer appears in the
through violence or unlawful means; new Constitution. For purpose of the electoral process, all
3. Those who refuse to uphold and adhere to parties, organizations and coalitions are considered
the Constitution; and equal.78
4. Those supported by foreign governments
(Article IX-C, Section2(5)) 6. Improvement of Elections
Grounds for Cancellation of Registration. Under Section 2(7): “The Commission on Elections
RA 7941, COMELEC may motu propio or upon a shall xxx [r]ecommend to the Congress effective
verified complaint of any interested party, refuse or measures to minimize election spending,
including limitation of places where propaganda
cancel, after due notice and hearing, the materials shall be posted, and to prevent and
registration of any national, regional or sectoral penalize all forms of election frauds, offenses,
party, organization or coalition, on any of the malpractices, and nuisance candidacies.”
following grounds:
1. It is a religious sect or denomination, The Omnibus Election Code has expanded the list
organization or association organized for of prohibited election practices, changed the
religious purposes; limitations on the expenses to be incurred by
2. Advocates violence or unlawful political parties or candidates, allows the
means to seek its goal; COMELEC to refuse to give due course to
3. It is a foreign party or organization; certificates of nuisance candidates and assures
4. It is receiving support from any equal treatment for all candidates privileged or
foreign government; foreign political party, not.79
foundation, organization, whether directly or
through any of its officers or members, or Section 2(9): “The Commission on Elections
indirectly through third parties, for partisan shall xxx [s]ubmit to the President and the
election purposes; Congress, a comprehensive report on the
5. It violates or fails to comply with laws, conduct of each election, plebiscite, initiative,
rules and regulations relating to elections; referendum, or recall.”
6. T declares untruthful statements in its
petition; The report mentioned here can be the basis of
7. It has ceased to exist for at least one legislation that may improve the conduct of future
year; elections.80
8. It fails to participate in the last two
preceding elections, or fails to obtain at least 7. Power to Promulgate Rules of Procedure
2% of the votes cast under the party-list
system in the two preceding elections for the 77
constituency in which it was registered. 78
79
76 80

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newspaper columnists from commenting on the

Section 3: “The Commission on Elections may issues involved in the forthcoming plebiscite for the
sit en banc or in two divisions, and shall ratification of the organic law establishing the CAR.
promulgate its rules of procedure in order to
expedite disposition of election cases, including Q: Does the power to regulate media during “election
pre- proclamation controversies. All such period” also extend to the period of a plebiscite or
election cases shall be heard and decided in referendum?
division, provided that motions for A: Yes. Of essence to plebiscite and referenda is “fair
reconsideration of decisions shall be decided by submission.” Moreover, the formulation of the Constitution
the Commission en banc.” is more important in a sense than choice of men who will
implement that charter. Evidently, therefore, regulatory
COMELEC Rules v. Rules of Court. Should there power during the period of plebiscite or referendum, is
be a conflict between a rule of procedure also intended. (Unido v. COMELEC, 1981)
promulgated by the Commission and a Rule of
Court, if the proceeding is before the Commission , 9. Power to Recommend Executive Clemency…
the Commission rule should prevail; but if the
proceeding is in court, the Rules of Court should Section 5: “No pardon, amnesty, parole, or
suspension of sentence for violation of election
prevail. ( Aruelo v. CA, 1993)
laws, rules, and regulations shall be granted by
the President without the favorable
8. Supervision or Regulation of Franchises recommendation of the Commission.”
Section 4: “The Commission may, during the 10. In Special Cases, Power to Fix Election
election period, supervise or regulate the
Period
enjoyment or utilization of all franchises or
permits for the operation of transportation and
other public utilities, media of communication or Section 9: Unless otherwise fixed by the
information, all grants, special privileges, or Commission in special cases, the election
concessions granted by the Government or any period shall commence ninety days before the
subdivision, agency, or instrumentality thereof, day of election and shall end thirty days
including any government-owned or controlled thereafter.
corporation or its subsidiary. Such supervision
or regulation shall aim to ensure equal Election Period v. Campaign Period.
opportunity, and equal rates therefor, for public Election period refers to the period of time needed
information campaigns and forums among for administering an election. It can thus go beyond
candidates in connection with the objective of
the date for the casting of ballots.81
holding free, orderly, honest, peaceful, and
credible elections.” Campaign period refers to the period of active
solicitation of votes. This may be set by the
legislature for a period less than the election
Chavez v. COMELEC, 2004: The SC upheld the
period.82 Campaign period cannot extend
validity of Section 32, Resolution No. 6520,
beyond the election day.83
providing that all materials showing the picture,
image or name of a person, and all advertisements Q: Enumerate some specific recommendatory powers of
on print, in radio or on television showing the COMELEC.
image or mentioning the name of a person, who A: Section 2(7), (8) and (9). (See also Section 5)
subsequent to the placement or display thereof
becomes a candidate for public office shall be E. Statutory Powers
immediately removed, otherwise the person and
the radio station shall be presumed to have
conducted premature campaigning in violation of
1. The COMELEC shall have exclusive charge of
the enforcement and administration of all laws
Section 80 of the Omnibus Election Code.
relative to the conduct of elections. (BP 881,
Section 52)
PPI v. COMELEC, 244 SCRA 272: The SC
2. Exercise direct and immediate supervision and
invalidated the COMELEC resolution requiring
control over national and local officials or
newspapers to give, for free, one-half page
employees. (BP 881, Section 52(a)).
newspaper space for use by the COMELEC. This
3. The power to authorize any members of AFP,
was held to be an invalid exercise of the police
PNP, NBI to act as deputies during the period
power, there being no imperious public necessity
of campaign and ending 30 days thereafter
for the taking of the newspaper space.
when in any are of the country there are
SWS v. COMELEC, 181 SCRA 529: The SC held
that this power may be exercised only over the 81
media, not over practitioners of media. Thus, in this 82
case the SC invalidated a COMELEC resolution Bernas Commentary, p 1062 (2003 ed).
83
prohibiting radio and TV commentators and Cruz, Philippine Political Law, p. 318 (1995 ed).

SCHOOL OF LAW
persons committing acts of terrorism. (BP 881, 1. The election in any polling place has
Section 52(b)). not bee held on the date fixed on account of
4. Promulgate rules and regulations force majeure, violence, terrorism, fraud or
implementing provisions of laws which the other analogous causes;
Commission is required to enforce. (BP 881 2. The election in any polling place had
Section 52(c)). been suspended before the hour fixed by law
5. Power to summon parties to a controversy for the closing of the voting on account of force
pending before it. (BP 881, Section 52(d)) majeure, violence terrorism, fraud or other
analogous cases; or
6. Power to punish contempt. (BP 881, Section 3. After the voting and during the
52(d)) preparation and transmission of the election
7. Power to enforce and execute its decisions, returns or in the custody or canvass thereof
directives, orders and instructions. (BP 881, such election results in a failure to elect on
Section 52(f)) account of force majeure, violence, terrorism,
8. Power to prescribe forms to be used in the fraud or other analogous causes. (Sison v.
election, plebiscite or referendum. COMELEC, 1999; Pasandalan v. COMELEC,
9. Power to procure any supplies, equipment, 2002)
materials or services needed for holding of
elections. (BP 881, Section 52(h)) Contents of Petition. The SC held that for
10. Power to prescribe use or adoption of the COMELEC to conduct a hearing on a verified
latest technological devices. (BP 881, petition to declare a failure of election, it is
Section 52(i)) necessary that the petition must show on its face
11. Power to prescribe latest technological and two conditions:
electronic devices upon notice to 1. That no voting has taken place in the
accredited political parties and candidates precinct on the date fixed by law or, even if
not less than 30 days before. The there was voting, the election nevertheless
COMELEC is authorized to use an results in a failure to elect; and
AUTOMATED ELECTION SYSTEM for the 2. The votes not cast would affect the
process of voting, counting votes, and results of the election. (Mitmug v. COMELEC,
canvassing of the results. (RA 8436, Section 230 SCRA 54)
6) Thus, in this case, for failure of the petition to show
12. Power to carry out continuing systematic the existence of the first condition, the COMELEC
campaign. (BP 881, Section 52(j)) did not commit grave abuse of discretion when it
13. Power to enlist non-partisan group or dismissed the petition even without a hearing.
organizations of citizens (BP 881, Section
52(k)) G. Examples of Matters Not Within the
14. Power to issue search warrants during Powers/Jurisdiction of COMELEC
election periods. (BP 881, Section 57(1)) 1. COMELEC has no power to decide questions
15. Power to stop any election activity, or “involving the right to vote.” (Section 2(3)
confiscate tear down, and stop any unlawful, Section 2(6) places cases involving “inclusion
libelous, misleading or false election or exclusion of voters” under the jurisdiction of
propaganda, after due notice and hearing. (BP courts.84
881, Section 57(2)) 2. The general rule is that the proclamation of a
16. Power to inquire into the financial records congressional candidate divests COMELEC of
of candidates and any organization or group of jurisdiction in favor of the proper Electoral
persons after due notice and hearing. (BP 881, Tribunal – unless the proclamation was
Section 57(3)) invalid.85
17. Power to declare failure of election and call 3. In the case of municipal offices; even if the
for special elections (RA 7166, Section 4) case began with the COMELEC before
18. Divide a province with only one legislative proclamation before the controversy is
district into two districts for purposes of resolved, it ceases to be a pre-proclamation
the election of the members of the controversy and becomes a contest
Sangguniang Kabataan. (RA 7166, Section cognizable by the Court of First Instance.86
3(b))
Power to Declare Failure of Elections

The SC said that under BP 881, there are only 84
three instances where a failure of elections may Bernas Commentary, p 1051 (2003 ed).
85
been declare, namely: Planas v Comelec, G.R. No. 167594, March 10, 2006.
86

SCHOOL OF LAW
4. The COMELEC has no power to make a of the division agree. (Soriano et al v

Comelec, GR 164496-505, April 2, 2007).
reapportionment of legislative districts. If a case which should go to the Comelec
(Montejo v. COMELEC) en banc is erroneously filed with a
5. The COMELEC cannot prohibit radio and TV division, it may automatically be elevated
commentators and newspaper columnists from to the Comelec en banc. This is not
provided for in the Comelec Rules of
commenting on the issues involved in the
Procedure, but such action is not
forthcoming plebiscite for the ratification of the prohibited. (Mutilan v Comelec, G.R.
organic law establishing the CAR. (PPI v. 1712468, April 2, 2007.)
COMELEC)
6. The COMELEC cannot deprive the RTC of its 2. Election cases are decided in division.
competence to order execution of judgment The rule that all election cases, including pre-
pending appeal, because the mere filing of proclamation cases, should first be heard and
appeal does not divest the trial court of its decided by the COMELEC in division applies
jurisdiction over a case and the authority to only when the COMELEC exercises its
adjudicatory or quasi-judicial functions, not
resolve pending incidents. (Edding v.
when it exercises purely administrative
COMELEC, 246 SCRA 502) functions. (Municipal Board of Canvassers v.
COMELEC, 2003)
H. Powers of Chairman The conduct of a preliminary investigation
before the filing of an information in court
Facts: Respondent as Chairman of the COMELEC does not involve the exercise of
removed petitioner as Director of the Education and adjudicatory function. (Balindong v.
Information Department and reassigned her to the Law COMELEC, 2003)
Department. Petitioner argued that only the COMELEC Election cases must first be decided in division.
acting as a collegial body can authorize her Hence the Comelec en banc may not decide an
reassignment. election case still pending before a division.
Held: Under Section 7(4), chapter 2, Subtitle C, (Muñoz v Comelec, G.R. 170678, July 17,
Book V of the Revised Administrative Code, the 2006.)
Chairman COMELEC is vested with power to
Cases which must first be heard and decided in
make temporary assignments, rotate and
division:
transfer personnel in accordance with the
provision of the Civil Service Law. In the 1. All election cases, including pre-proclamation
contests, originally cognizable by the
exercise of this power, the Chairman is not
required by law to secure the approval of the Commission in the exercise of its powers
under Section 2(2) of Article IX-C.
COMELEC en banc. (Matibag v. Benipayo)87
2. Petition to cancel a certificate of candidacy
rests with the COMELEC in division, not he
I. En Banc/ Two Divisions
COMELEC en banc. (Bautista v. COMELEC,
2003)
The Commission on Elections may sit en banc or in two 3. Cases appealed from the RTC or MTC. (Abad
divisions, and shall promulgate its rules of procedure in
order to expedite disposition of election cases, including
v. COMELEC, 1999)
pre- proclamation controversies. All such election cases 4. Petition for certiorari from a decision of the
shall be heard and decided in division, provided that RTC (or MTC).(Soller v. COMELEC, 2000)
motions for reconsideration of decisions shall be decided
by the Commission en banc. (Article IX-C, Section 3) Cases by En Banc
1. Motions for reconsideration of “decisions”.
The last sentence of Section 3 prescribes two (Section 3, Article IX-C)
important rules: 2. Cases that involve the exercise of purely
1. Motions for reconsideration are administrative functions.
decided en banc.
But a decision en banc is required only when • COMELEC en banc may directly
the subject for reconsideration is a “decision,” assume jurisdiction over a petition to
that is, a resolution of substantive issues. Thus, correct manifest errors in the tabulation or
reconsideration of a dismissal based on lack of tallying of results (Statement of Votes) by
interest may be heard in division. (Salazar v. the Board of canvassers.(Torres v.
COMELEC, 1990) COMELEC)
However, while a motion to reconsider an o Statement of Votes is
interlocutory order of a division should be
merely a tabulation per precinct of the
resolved by the division which issued the
votes obtained by the candidates as
interlocutory order, it may be referred to
reflected in the election returns. What is
the Comelec en banc if all the members
involved is simple arithmetic. In making
87 the correction in the computation, the
Jacinto Jimenez, Political Law Compendium, 382 (2006 ed.) Board of Canvassers acts in an
administrative capacity under the

SCHOOL OF LAW
control and supervision of the Section 8: Parties…registered under the party-list

COMELEC. Pursuant to its system…shall be entitled to appoint poll watchers in
constitutional function to decide accordance with law.
questions affecting elections, the
COMELEC en banc has authority to
resolve any question pertaining to
proceedings of the Board of
I. Representation
Canvassers. (Mastura v. COMELEC)
• The power of the COMELEC to Political parties, or organizations or coalitions
prosecute cases of violation of election registered under the party-list system, shall not be
laws involves the exercise of represented in the voters' registration boards,
administrative powers which may be boards of election inspectors, boards of
exercised directly by the COMELEC en canvassers, or other similar bodies. However, they
banc. (Baytan v. COMELEC, 2003) shall be entitled to appoint poll watchers in
accordance with law. (Article IX-C, Section 8)
Q: Does the COMELEC en banc have jurisdiction to
decide election cases? J. Elections
A: No. This power pertains to the divisions of the
Commission. Any decision by the Commission en banc 1. Election Period
as regards election cases decided by it in the first
instance is null and void. (Soller v. COMELEC, 2000) Unless otherwise fixed by the Commission in
special cases, the election period shall commence
Q: When is hearing by division required? ninety days before the day of election and shall
A: It is only in the exercise of its adjudicatory or quasi- end thirty days thereafter. (Article IX-C, Section 9)
judicial powers that the COMELEC is mandated to hear
and decide cases first by division and then, upon motion The election period is distinguished from the
for reconsideration, by the COMELEC en banc. The campaign period in that the latter cannot extend
conduct of a preliminary investigation before the filing of beyond the election day.88
an information in court does not involve the exercise of
adjudicatory function. (Baytan v. COMELEC, 2003)
2. Equal Protection of Candidates
Q: Must a motion for reconsideration of an order of Bona fide candidates for any public office shall be
dismissal for lack of interest due to the failure of petitioner free from any form of harassment and
or counsel to appear for hearing be reviewed by the discrimination. (Article IX-C, Section 10)
COMELEC en banc or may it be considered by a
division? Q: Does Section 10 give candidates immunity from
A: It may be considered by a division. What the suit?
Constitution says must be heard en banc are motions for A: No.89
reconsideration of “decisions,” that is resolutions of
substantive issues. The described dismissal was not a Q: Give example of discrimination.
decision. (Salazar v. COMELEC, 1990) A: Unequal treatment in the availment of media
facilities.90
Q: Is the rule on preferential disposition of election cases
suggested by Article IX-A, Section 7 and the requirement 3. Funds/ Fiscal Autonomy
in Section 257 of the Omnibus Election CODE that the Funds certified by the Commission as necessary to
COMELEC shall decide all election cases brought before defray the expenses for holding regular and special
it within ninety days from the date of submission a hard
elections, plebiscites, initiatives, referenda, and
and firm rule?
A: No. Considering the tribunal’s manpower and logistic recalls, shall be provided in the regular or special
limitations, it is sensible to treat the procedural appropriations and, once approved, shall be
requirements on deadlines realistically. (Alvarez v. released automatically upon certification by the
COMELEC, 2001) Chairman of the Commission. (Article IX-C, Section
11)
H. Party System
K. Review of Decisions
Section 6: A free and open party system shall be
allowed to evolve according to the free choice of the Article IX-A, Section 7. xxx Unless otherwise
people, subject to the provisions of this Article. provided by this Constitution or by law, any
decision, order, or ruling of each Commission may
Section 7. No votes cast in favor of a political be brought to the Supreme Court on certiorari by the
party, organization, or coalition shall be valid, aggrieved party within thirty days from receipt of a
except for those registered under the party-list copy thereof.
system as provided in this Constitution.
(Relate this to Article VI, Section 5 par.2 providing for 88
20% of the seats in the House of Representatives being Cruz, Philippine Political Law, p. 318 (1995 ed).
89
allocated to party-list representatives) Bernas Primer at 407 (2006 ed.)
90

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Commission on Audit is composed of a Chairman

Supreme Court. Only decisions of the COMELEC and two Commissioners.
en banc may be brought to the SC on certiorari (as
a special civil action under Rule 65). B. Qualifications of Commissioners
1. Natural-born citizens of the Philippines;
What is contemplated by the term final orders,
rulings and decisions of COMELEC 2. At the time of their appointment, at least thirty-
reviewable by certiorari by the SC as provided five years of age;
by law are those rendered in actions or 3. Certified Public Accountants with not less than
proceedings before the COMELEC and taken ten years of auditing experience, or members
cognizance of by the said body in the exercise of the Philippine Bar who have been engaged
of its adjudicatory or quasi-judicial in the practice of law for at least ten years;
powers91. (Filipinas Engineering and Machine 4. Must not have been candidates for any
Shop v. Ferrer, 135 SCRA 25) The certiorari
elective position in the elections immediately
jurisdiction of the SC does not refer to purely
preceding their appointment.
executive powers such as those which relate
At no time shall all Members of the Commission
to the COMELEC’s appointing power.92 (Ambil
belong to the same profession.
v. COMELEC, 2000)
C. Appointment of Commissioners
Trial Courts. Determinations made by the
COMELEC which are merely administrative (not
judicial) in character, may be challenged in an Section 1(2) The Chairman and the Commissioners shall be
ordinary civil action before trial courts. (Filipinas appointed by the President with the consent of the
Engineering & Machine Shop v. Ferrer) Commission on Appointments for a term of seven years
• Thus, where what was assailed in the without reappointment. Of those first appointed, the Chairman
shall hold office for seven years, one Commissioner for five
petition for certiorari was the COMELEC’s years, and the other Commissioner for three years, without
choice of appointee, which is a purely reappointment. Appointment to any vacancy shall be only for
administrative duty, the case is cognizable the unexpired portion of the term of the predecessor. In no
by the RTC (or the CSC as the case may case shall any Member be appointed or designated in a
be). temporary or acting capacity.
IV. Commission on Audit D. Powers and Duties of COA

Composition of COA
Qualifications of Commissioners of COA Section 2. (1) The Commission on Audit shall have the power,
Appointment of Commissioners authority, and duty to examine, audit, and settle all accounts
Powers and Duties of COA pertaining to the revenue and receipts of, and expenditures or
Jurisdiction uses of funds and property, owned or held in trust by, or
pertaining to, the Government, or any of its subdivisions,
Section 1. (1) There shall be a Commission on Audit agencies, or instrumentalities, including government-owned or
composed of a Chairman and two Commissioners, who shall controlled corporations with original charters, and on a post-
be natural-born citizens of the Philippines and, at the time of audit basis:
their appointment, at least thirty-five years of age, Certified
Public Accountants with not less than ten years of auditing (a) constitutional bodies, commissions and offices that have
experience, or members of the Philippine Bar who have been been granted fiscal autonomy under this Constitution;
engaged in the practice of law for at least ten years, and must
not have been candidates for any elective position in the
elections immediately preceding their appointment. At no time (b) autonomous state colleges and universities;
shall all Members of the Commission belong to the same
profession. (c) other government-owned or controlled corporations and
their subsidiaries; and
A. Composition of COA
(d) such non-governmental entities receiving subsidy or equity,
directly or indirectly, from or through the Government, which
are required by law or the granting institution to submit to such
91
audit as a condition of subsidy or equity. However, where the
Thus, a person whose certificate of candidacy is rejected or internal control system of the audited agencies is inadequate,
canceled by the COMELEC on the ground, say, that he does the Commission may adopt such measures, including
not possess the required qualifications, may elevate the matter temporary or special pre-audit, as are necessary and
on certiorari to the Supreme Court. (Cruz, Philippine Political appropriate to correct the deficiencies. It shall keep the general
Law, p. 319 (1995 ed). accounts of the Government and, for such period as may be
92
Hence, questions arising from the award of a contract for the provided by law, preserve the vouchers and other supporting
construction of voting booths can be brought before a trial papers pertaining thereto.
court.

SCHOOL OF LAW
(2) The Commission shall have exclusive authority, subject to (Where the internal control system of audited
the limitations in this Article, to define the scope of its audit and agencies is inadequate, the Commission may
examination, establish the techniques and methods required adopt such measures, including temporary or
therefor, and promulgate accounting and auditing rules and special pre-audit, as are necessary and
regulations, including those for the prevention and appropriate to correct any deficiencies.
disallowance of irregular, unnecessary, excessive,
extravagant, or unconscionable expenditures or uses of Moreover, even in cases where pre-audit is
government funds and properties. allowed and pre-audit has already been
performed, the Commission is not estopped
from making a post-audit.)
1. General Function of COA
It is the function of the COA to examine the Private Auditors. Public corporations may
accuracy of the records kept by accountable employ private auditors. The clear and
officers and to determine whether expenditures unmistakable conclusion from a reading of the
have been made in conformity with law. It is entire Section 2 is that the COA's power to
therefore through the Commission on Audit that the examine and audit is non-exclusive. On the
people can verify whether their money has been other hand, the COA's authority to define the
properly spent.93 scope of its audit, promulgate auditing rules
and regulations, and disallow unnecessary
2. Classification of COA’s Functions94 expenditures is exclusive.
1. To examine and audit all forms of However, as the constitutionally mandated
government revenues; auditor of all government agencies, the COA's
2. To examine and audit all forms of findings and conclusions necessarily prevail
government expenditures; over those of private auditors, at least insofar
3. To settle government accounts; as government agencies and officials are
4. To define the scope of techniques for concerned.96
its own auditing procedures;
5. To promulgate accounting and Compromise Agreement. The participation by
auditing rules “including those for the the City in negotiations for an amicable
settlement of a pending litigation and its
prevention and disallowance of irregular,
eventual execution of a compromise agreement
unnecessary, excessive, extravagant, or relative thereto, are indubitably within its
unconscionable expenditures,”; authority and capacity as a public corporation,
6. To decide administrative cases and a compromise of a civil suit in which it is
involving expenditures of public funds. involved as a party is a perfectly legitimate
transaction, not only recognized but even
To examine and audit all forms of encouraged by law. Thus, COA committed
government expenditures; grave abuse of discretion when it disallowed
the City’s appropriation of P30,000 made
Post-audit. The provision on post-audit is a conformably with the compromise agreement.
recognition of the fact that there are certain (Osmena v. COA, 238 SCRA 463)
government institutions which can be
hampered in their operation by pre-audit Salary Voucher. The duty to pass in audit a
requirements.95 salary voucher is discretionary. (Gonzales v.
Provincial Board of Iloilo, 12 SCRA 711)
Post-audit Authority. The Commission has
The SC held that the COA has the power to
only post-audit authority over:
overrule the NPC (National Power Corporation)
1. Constitutional bodies, commissions and General Counsel on post-audit measures
offices that have been granted fiscal relative to the determination of whether an
autonomy under the Constitution; expenditure of a government agency is
2. Autonomous state colleges and irregular, unnecessary, extravagant or
universities; unconscionable.
3. Other government-owned controlled
corporations and their subsidiaries; Q: May COA in the exercise of its auditing function,
4. Such non-governmental entities receiving disallow the payment of backwages to employees illegally
dismissed and say that the responsibility belongs to the
subsidy or equity, directly or indirectly,
official who dismissed them in bad faith?
from or through the government, which A: No. COA cannot say that the responsibility belongs to
are required by law or by the granting the official who made the illegal dismissal when such
institution to submit to such audit as a official has not been heard. Besides, payment of
condition of subsidy or equity. backwages is not an irregular, unnecessary, excessive or
extravagant expense. (Uy et. al. v. COA, 2000)
93
94
95 96
Bernas Commentary, p 1066 (2003 ed). DBP v. COA, G.R. No. 88435. January 16, 2002

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Q: Does the power of the Commission extend to non- Decide Money Claims. The COA can decide
accountable officers? money claims based on law. But if a money
A: Yes. The Commission has authority not just over claim is denied by a law, COA has no authority
accountable officers but also over the officers who
to pass judgment on the constitutionality of the
perform functions related to accounting such as
verification of evaluations and computation of fees law.100
collectible, and the adoption of internal rules of control.
(An Evaluator/Computer, for instance is an indispensable 1998 Bar Question (Money Claims)
part of the process of assessment and collection and Q: The Department of National Defense
comes within the scope of the Commission’s entered into a contract with Raintree
jurisdiction.) (Mamaril v. Domingo, 1993)97 Corporation for the supply of ponchos to the
AFP, stipulating that, in the event of breach,
To settle government accounts action may be filed in the proper courts in
Power to “settle accounts”. This means the Manila. Suppose the AFP fails to pay for
power to settle liquidated accounts, that is, delivered ponchos, where must Raintreee
those accounts which may be adjusted simply Corporation file its claim? Why?
by an arithmetical process. It does not include A: Raintree Corporation must file its claim with
the power to fix the amount of an unfixed or the COA. Under Article IX-D, Section 2(1), the
undetermined debt. (Compania General de COA has the authority to settle all the
Tabacos v. French and Unison, 1919) accounts pertaining to expenditure of public
funds. Raintree Corporation cannot file a case
Unliquidated claims present a justiciable in court. The Republic of the Philippines did
question which is beyond the powers of the not waive its immunity from suit when it
COA to adjudicate. Recovery based on entered into the contract with Raintree
quantum meruit involves a unliquidated claim,
Corporation for the supply of ponchos for the
because its settlement requires the application
of judgment and discretion and cannot be use of AFP. The contract involves the defense
adjusted by simple arithmetical process. (F.F. of the Philippines and therefore relates to a
Manacop Construction Co., Inc. v. CA, 266 sovereign function.
SCRA 235)98 The provision for venue in the contract does
not constitute a waiver of the State immunity
To secure the release of funds from the from suit because the express waiver of this
Treasury, a warrant must be drawn by the immunity can only be made by a statute.
proper administrative official and
countersigned by the Commission on Audit.99 Authority to define the scope of its audit an
This counter-signature may be compelled if it examination, establish techniques and
can be shown that: methods required therefor.
1. The warrant has been legally drawn by The SC said that the power of the Commission
the officer authorized by law to do so; to define the scope of its audit and to
2. An appropriation to which the warrant may promulgate auditing rules and regulations and
be applied exists by virtue of law; the power to disallow unnecessary
3. An unexpected balance of the amount expenditures is exclusive. (But its power to
appropriated is available. (Yncausti v. examine and audit is not exclusive)
Wright, 47 Phil. 866)
The duty to countersign the warrant in this To promulgate accounting and auditing
case is merely ministerial. rules “including those for the prevention
and disallowance of irregular, unnecessary,
The following have been held to be excessive, extravagant, or unconscionable
discretionary: expenditures.”
1. The duty to pass audit a salary voucher. The SC held that the COA has the power to
(Gonzales v. Provincial Auditor of Iloilo, 12 overrule the NPC (National Power
SCRA 711) Corporation) General Counsel on post-audit
2. The duty of the Commission on Audit to measures relative to the determination of
issue a certificate of clearance to any whether an expenditure of a government
accountable officer seeking to leave the agency is irregular, unnecessary, extravagant
Philippines. (Lamb v. Philipps, 22 Phil. or unconscionable.
473)
It was held that COA may stop the payment of
the price stipulated in government contracts
when found to be irregular, extravagant or
97
98
99 100
Cruz, Philippine Political Law, p.324 Parreño c. COA, G.R. 162224 June 7, 2007

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unconscionable. (Sambeli v. Province of directors, officials or employees of GOCC receiving

Isabela, 210 SCRA 80) additional allowances and bonuses are entitled to
such benefits under applicable laws. Thus, water
COA Circular No 75-6, prohibiting the use of districts are subject to the jurisdiction of the COA.
government vehicles by officials who are (De Jesus v. COA, 2003)
provided with transportation allowance was
held to be a valid exercise of its powers under PAL (Phil. Airlines) having ceased to be a
Section 2, Article IX-D of the Constitution; and government-owned or –controlled corporation, is
the prohibition may be made to apply to no longer under the audit jurisdiction of the COA.
officials of the NPC. (PAL v. COA, 245 SCRA 39)
Q: The COA reduced the amount that was passed in 2001 Bar Question
audit on the ground that the original amount was Q: The PNB was then one of the leading
“excessive and disadvantageous to the
government –owned banks and it was under the
government.” Does the Commission have the
authority to do so? audit jurisdiction of the COA. A few years ago, it
A: Yes, on the basis of its authority in Article IX-D, was privatized. What is the effect if any, of the
Section 2(1). This extends to the accounts of all privatization of PNB on the audit jurisdiction of the
persons respecting funds or properties received or COA?
held by tem in an accountable capacity. (Dincong v. A: In accordance with the ruling in Pal v. COA,
Commissioner Guingona, 1988)101 since PNB is no longer owned by the government
the COA no longer has jurisdiction to audit it as an
Q: May COA in the exercise of its auditing function, institution. Under Article IX-D, Section 2(2),
disallow the payment of backwages to employees
GOCCs and their subsidiaries are subject to audit
illegally dismissed and say that the responsibility
belongs to the official who dismissed them in bad by the COA.
faith? However, in accordance with Section 2(1), the
A: No. COA cannot say that the responsibility COA can audit the PNB with respect to its accounts
belongs to the official who made the illegal dismissal because the government still has equity in it.
when such official has not been heard. Besides,
payment of backwages is not an irregular, Audit of Private Entities
unnecessary, excessive or extravagant expense. Facts: Petitioners were end-users of copra. PD
(Uy et. al. v. COA, 2000)
276 imposed a levy on copra to be collected by the
end-users from the sellers of the copra. The fund
Power to veto appropriations. There is now
was to be used to subsidize the purchase of copra
a view to the effect that the critical function of
to maintain the stability of the price. The COA
the Commission on Audit under the reworded
audited the petitioners and found that there was a
provision of the Constitution authorizes it to
deficiency in their collection of the levy. Petitioners
veto appropriations. This can be done, so it is
argued that the COA had no authority to audit them
argued, through the power of the Commission
as they were not government-owned or controlled
to refuse to “examine, audit and settle” any
corporation.
account violating its own regulations “for the
Held: The argument has no merit. Under the
prevention and disallowance of irregular,
Constitution, the COA has the power to audit non-
unnecessary, excessive, extravagant or
governmental entities receiving subsidy from or
unconscionable expenditures or uses of
through the government. (Blue Bar Coconut
government funds properties.”102
Philippines v. Tantuico, 163 SCRA 716)103
E. Jurisdiction In Bagatsing v. Committee on Privatization, the Court
interpreting COA Circular No. 89-296 that there is failure
of bidding when (a) there is only one offeror, or (b) when
Section 3. No law shall be passed exempting any entity of the
all the offers are non-complying or unacceptable,
Government or its subsidiaries in any guise whatever, or any
declared that the COA circular does not speak of
investment of public funds, from the jurisdiction of the
accepted bids, but of offerors, without distinction as to
Commission on Audit.
whether they are disqualified or qualified. Thus, since in
the bidding of the 40% block of Petron shares, there were
Water Districts Subject to the Jurisdiction of three offerors, namely Saudi Aramco, Petronas and
COA. The Court already ruled in several cases that Westmont—although the latter were disqualified—then
there was no failure of bidding.
a water district is a government-owned and
controlled corporation with a special charter since it F. Report
is created pursuant to a special law, PD 198. The
COA has the authority to investigate whether
101 103
Bernas Primer at 410 (2006 ed.) Jacinto Jimenez, Political Law Compendium, 391 (2006 ed.)
102
Cruz, Philippine Political Law, p.329

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Section 4. The Commission shall submit to the President and

the Congress, within the time fixed by law, an annual report
covering the financial condition and operation of the
Government, its subdivisions, agencies, and instrumentalities,
including government-owned or controlled corporations, and
non-governmental entities subject to its audit, and recommend
measures necessary to improve their effectiveness and
efficiency. It shall submit such other reports as may be
required by law.
Purpose of Report. Through the report required

by this provision, the President and the Congress
shall be informed of the financial status of the
government and the manner in which revenues
have been collected, appropriation laws have been
implemented, and expenditures or uses of public
funds and properties undertaken. Information
contained in this report and the recommendations
made by the Commission on Audit will be useful in
enabling the government to improve its financial
operations.104
The authority of the Commission to recommend

measure to improve the efficiency and
effectiveness of the government empowers it “to
conduct the so-called performance audit which
consist of the analytical and critical review,
assessment and evaluation of the activities,
management and fiscal operations of the
Government in order to reduce operational costs
and losses and promote greater economy and
administrative efficiency in public expenditures.
This is a modern concept of auditing that goes
beyond the mere examination of receipts and
expenditures as it extends to the evaluation of the
application of funds, to the analysis of expenditures
as well as cost benefit studies.”105
H. Review of Commission’s Decisions
The review power of the SC over decision of the

Commission is the same as that over the
COMELEC- the limited-certiorari power under Rule
65. The jurisdiction of the SC over the Commission
is on money matters and not over decisions on
personnel movements. Neither is it the task of the
SC to review a Commission opinion on tax
liability.106
104
105
Cruz, Philippine Political Law, p.331 quoting Montejo, The New
Constitution, 208.
106

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B. Quotable Quotes on Nature of Local

Article X Governments
LOCAL GOVERNMENT 1. “Ours is still a unitary form of government,
not a federal state. Being so, any form of
I. LOCAL GOVERNMENTS (Sections 1, 10- autonomy granted to local governments will
14) necessarily be limited and confined within the extent
allowed by the central authority.” (Lina v. Pano,
II. LOCAL AUTONOMY (Section 2)
GR 129093, 08.30.2001)
III. LOCAL GOVERNMENT CODE (Section 3)
IV. GENERAL POWERS AND ATTRIBUTES 2. “A Local Government Unit is a political
subdivision of the State which is constituted by
(Section 5,6,7) law and possessed of substantial control over its
V. MUNICIPAL LIABILITY own affairs. Remaining to be an intra sovereign
VI. LOCAL OFFICIALS (Section 8,9) subdivision of one sovereign nation, but not
VII. AUTONOMOUS REGIONS intended, however, to be an imperium in imperio,
the local government unit is autonomous in the
VIII.INTER-GOVERNMENTAL RELATIONS sense that it is given more powers, authority,
IX. LOCAL INITIATIVE AND REFERENDUM responsibilities and resources. Power which used to
be highly centralized in Manila, is thereby
GENERAL PROVISIONS deconcentrated, enabling especially the peripheral
local government units to develop not only at their
own pace and discretion but also with their own
I. Local Governments resources and assets.” (Alvarez v. Guingona, GR
Local Government Unit 118303, 01.31.96)
Quotable Quotes on Nature of Local Governments 3. An LGGU is created by law and all its
Territorial and Political Subdivisions powers and rights are sourced therefrom. It
The Barangay has therefore no power to amend or act beyond the
The Municipality authority given and the limitations imposed on it by
The City law.” (Paranaque v. VM Realty Corp., GR
The Province 127820, 07.20.98)
Leagues of LGUs/Officials
C. Enumerate the Territorial and Political
Section 1. The territorial and political subdivisions of the Subdivisions in Section 1:
Republic of the Philippines are the provinces, cities,
municipalities, and barangays. There shall be autonomous The territorial and political subdivisions of the
regions in Muslim Mindanao and the Cordilleras as hereinafter Republic of the Philippines are the:
provided. 1. Provinces
2. Cities
A. What is a Local Government Unit? 3. Municipalities
4. Barangays
A local government unit is a political subdivision There shall be autonomous regions in Muslim
of the State which is constituted by law and Mindanao and Cordilleras as provided in the
possessed of substantial control over its own Constitution. (Section1)
affairs. In a unitary system of government, it is an
intra-sovereign subdivision of one sovereign Significance of Section 1. The constitutional
nation, not intended to be an imperium in imperio significance of Section 1 is that provinces, cities
[empire within an empire)]. (Alvarez v. Guingona and municipalities and barangays have been fixed
GR 118303, 1996) as the standard territorial and political subdivisions
of the Philippines. This manner of subdividing
When the Drafters of the 1987 Constitution the Philippines cannot go out of existence
enunciated the policy of ensuring the autonomy of except by a constitutional amendment.108
local governments, it was never their intention to
create an imperium in imperio and install an intra- Q: EO 220 dated July 15, 1987 creates the Cordillera
Administrative Region (CAR) creating a temporary
sovereign political subdivision independent of a
administrative agency pending the creation of Cordillera
single sovereign state. (Batangas CATV v. Court of Autonomous Region. Does EO 222 thereby create a
Appeals, GR No. 138810, 2004) territorial and political subdivision?
A: No. What is created is not a public corporation but an
Q: What is the present form of local government? executive agency under the control of the national
A: The present form consists of an executive distinct government. It is more similar to the regional
from the legislative body.107 development councils which the President may create
107 108
Bernas Primer at 416 (2006 ed.) Bernas Primer at 413 (2006 ed.)

SCHOOL OF LAW
under Article X, Section 14. (Cordillera Board Coalition v. A local government unit may be created, divided,
COA, 1990) merged, abolished, or its boundaries substantially
altered either by law enacted by Congress in the
D. Municipal Corporations case of a province, city, municipality or any other
political subdivision, or by ordinance passed by the
1. Municipal Corporation sangguniang panlalawigan or sagguniang
A body politic and corporate constituted by the panlungsod concerned in the case of a barangay
incorporation of the inhabitants for the purpose of located within its territorial jurisdiction, subject to
local government.109 such limitations and requirements prescribed in the
Local Government Code (RA 7160, Section 6)
2. Elements of a Municipal Corporation110
1. Legal creation or incorporation- the law 2. Requisites/Limitations on Creation or
creating or authorizing the creation or Conversion
incorporation of a municipal corporation. Article X, Section 10: No province, city,
municipality or any barangay may be created,
2. Corporate name- The name by which the divided, merged, abolished, or is its boundary
corporation shall be known. substantially altered, except in accordance with the
The Sangguniang Panlalawigan may, in
criteria established in the local government code
consultation with the Philippine Historical
Institute, change the name of the component and subject to approval by a majority of the votes
cities and municipalities, upon the cast in a PLEBISCITE in the political units directly
recommendation of the sanggunian concerned; affected.
provided that the same shall be effective only RA 7160, Section 10: No creation, division or
upon the ratification in a plebiscite conducted merger, abolition or substantial alteration of
for the purpose in the political unit directly boundaries of local government units shall take
affected. (RA 7160, Section 13) effect unless approved by a majority of the votes
3. Inhabitants- The people residing in the cast in a plebiscite called for the purpose in the
territory of the corporation. political unit or units directly affected. Said
4. Territory- The land mass where the plebiscite shall be conducted by the Comelec
inhabitants reside, together with the internal within 120 days from the date of effectivity of the
and external waters, and the air space above law or ordinance effecting such action, unless said
the land waters. law or ordinance fixes another date.
It was held that a plebiscite for creating a new
province should include the participation of the
3. Dual Nature and Functions residents of the mother province in order to conform
Every local government unit created or organized to the constitutional requirement. (Tan v. Comelec,
(under the Local Government Code) is a body 142 SCRA 727; Padilla v. Comelec, 214 SCRA 735)
politic and corporate endowed with powers to be In other words, all political units affected should
exercised by it in conformity with law. As such, it participate in the plebiscite. If what is involved is a
shall exercise powers as a political subdivision of barangay, the plebiscite should be municipality or
the National Government and as a corporate entity city-wide; if a municipality or component city,
province wide. If a portion of province is to be carved
representing the inhabitants of its territory. (RA
out and made into another province, the plebiscite
7160, Section 15) Accordingly it has dual functions should include the mother province. (Tan v.
namely: COMELEC, 1986)
1. Public or governmental- It acts as an
agent of the State for the government of RA 7160, Section 7: Based on verifiable indicators
the territory and the inhabitants. of viability and projected capacity to provide
2. Private or proprietary- It acts as an services, to wit:
agent of the community in the 1. Income- Income must be sufficient,
administration of local affairs. As such, it based on acceptable standards, to provide for
acts as a separate entity, for its own all essential government facilities and services
purposes, and not as a subdivision of the and special functions commensurate with the
State (Bara Lidasan v. Comelec, 21 size of population, as expected of the local
SCRA 496) government unit concerned. Average annual
income for the last two consecutive years
E. Creation/ Dissolution of Municipal Corporations based on 1991 constant prices should be at
least:
1. Authority to Create Municipality: 2.5 M
City: 100M (Year 2000 constant prices,
amended by RA 9009)
109 Highly urbanized city: 50M
Antonio Nachura, Outline on Political Law, 553 (2006) Province: 20M
110
Antonio Nachura, Outline on Political Law, 553 (2006)

SCHOOL OF LAW
It was held that the Internal Revenue

Allotments (IRAs) should be included in the Applying Article X, Section 10 the Supreme Court,
computation of the average annual income of
the municipality (for purposes of determining in the case of League of Cities of the
whether the municipality may be validly Philippines (LCP), et al. vs. Commission on
converted into a city), but under RA 9009, it is Elections, et al. (G.R. No. 176951, G.R. No.
specifically provided that for conversion to 177499 & G.R. No. 178056; 24 August 2010),
cities, the municipality’s income should not
include the IRA. (Alvarez v. Guingona, 252 held that the creation of local government units
SCRA 695) must follow the criteria established in the
2. Population- it shall be determined as Local Government Code and not in any other
the total number of inhabitants within the law.
territorial jurisdiction of the local government
unit concerned. In LCP v. COMELEC, February 15, 2011, April 12,
2011, the Supreme Court held that the 16 cityhood laws
3. Land Area- It must be contiguous,
did not violate Section Article X, Section of the
unless it comprises two or more islands or is
Constitution:
separated by a local government unit
independent of the others; properly identified
“Without doubt, the LGC is a creation of Congress
by metes and bounds with technical
through its law-making powers. Congress has the
descriptions and sufficient to provide for such
power to alter or modify it as it did when it enacted R.A.
basic services and facilities to meet the
No. 9009. Such power of amendment of laws was
requirements of its populace.
again exercised when Congress enacted the Cityhood
Income Population Land Area
Laws. When Congress enacted the LGC in 1991, it
Barangay 2,000 inhabitants
(except in Metro provided for quantifiable indicators of economic viability
Manila and other for the creation of local government units—income,
metropolitan population, and land area. Congress deemed it fit to
political modify the income requirement with respect to the
subdivisions or conversion of municipalities into component cities
in highly when it enacted R.A. No. 9009, imposing an amount of
urbanized cities P100 million, computed only from locally-generated
where the
sources. However, Congress deemed it wiser to
requirement is
5,000 exempt respondent municipalities from such a belatedly
inhabitants) imposed modified income requirement in order to
Municipalit 2.5M 25,000 50sqkm uphold its higher calling of putting flesh and blood to the
y very intent and thrust of the LGC, which is countryside
City 100M 150,000 100sqkm development and autonomy, especially accounting for
Highly 50M 200,000 these municipalities as engines for economic growth in
Urbanized their respective provinces.
City
Province 20M 250,000 2,000sq Congress clearly intended that the local government
hkm
units covered by the Cityhood Laws be exempted from
Compliance with the foregoing indicators shall be
the coverage of R.A. No. 9009.
attested to by the Department of Finance, the NSO
and the Lands Management Bureau of the DENR.
The 16 cities covered by the Cityhood Laws not only
had conversion bills pending during the 11th Congress,
The SC said that the requirement that the territory
but have also complied with the requirements of the
of newly-created local government units be LGC prescribed prior to its amendment by R.A. No.
identified by metes and bounds is intended to
9009. Congress undeniably gave these cities all the
provide the means by which the area of the local considerations that justice and fair play demanded.”
government unit may be reasonably ascertained,
i.e., as a toll in the establishment of the local Navarro v. Ermita, April 12, 20110, (Dinagat Case):
government unit. As long as the territorial
Republic Act No. 9355 (An Act Creating the Province of
jurisdiction of the newly created city may be Dinagat Islands) is declared as VALID and
reasonably ascertained—by referring to common
CONSTITUTIONAL, and the proclamation of the
boundaries with neighboring municipalities—then Province of Dinagat Islands and the election of the
the legislative intent has been sufficiently served.
officials thereof are declared VALID.
(Mariano v. Comelec, 242 SCRA 211)
[Note: RA 7854, which converted Makati into a city,
When the local government unit to be created consists
did not define the boundaries of the new city by of one (1) or more islands, it is exempt from the land
metes and bounds, because of a territorial dispute
area requirement as expressly provided in Section 442
between Makati and Taguig, which was best left for and Section 450 of the LGC if the local government unit
the courts to decide]

SCHOOL OF LAW
to be created is a municipality or a component city, ruling in Pelaez v. Auditor General was promulgated
respectively. This exemption is absent in the and various governmental acts throughout the years
enumeration of the requisites for the creation of a indicate the State’s recognition and acknowledgment
of the existence of the municipal corporation, the
province under Section 461 of the LGC, although it is
municipal corporation should be considered as a
expressly stated under Article 9(2) of the LGC-IRR. regular de jure municipality.
2004 Bar Question:

3. Beginning of Corporate Existence Q:MADAKO is a municipality composed of 80
Upon the election and qualification of its chief barangays, 30 west of Madako River and 50 east
executive and a majority of the members of its thereof. The 30 western barangays, feeling left out
sanggunian, unless some other time is fixed of economic initiatives, wish to constitute
therefor by the law or ordinance creating it. (RA themselves into a new and separate town to be
7160, Section 14) called Masigla. A law is passed creating Masigla
and a plebiscite is made in favor of the law. B.
4. Division and Merger; Abolition of LGUs Suppose that one year after Masigla was
Division and merger shall comply with same constituted as a municipality, the law creating it is
requirements, provided that such division shall not voided because of defects. Would that invalidate
reduce the income, population or land area of the the acts of the municipality and/or its municipal
local government unit or units concerned to less officers? Explain briefly.
than the minimum requirements prescribed; Suggested Answer: Although the municipality
provided further that the income classification of cannot be considered as a de facto corporation,
the original local government unit or units shall not because there is no valid law under which it was
fall below its current income classification prior to created, the acts of the municipality and of its
the division. (RA 7160, Section 8) officers will not be invalidated, because the
existence of the law creating it is an operative fact
Abolition. A local government unit may be before it was declared unconstitutional. Hence, the
abolished when its income, population or land area previous acts of the municipality and its officers
has been irreversibly reduced to less than the should be given effect as a matter of fairness and
minimum standards prescribed for its creation, as justice. (Municipality ofMalabang v. Benito, 27
certified by the national agencies mentioned. The SCRA 533 [1969]
law or ordinance abolishing a local government unit
shall specify the province, city, municipality or F. The Barangay
barangay with which the local government unit
sought to be abolished will be incorporated or As the basic political unit, the barangay serves as
merged. (RA 7160, Section 9) the primary planning and implementing unit of
governmental policies, plans, programs, projects
5. De Facto Municipal Corporations and activities in the community, as a forum wherein
Requisites: the collective views of the people may be
1. Valid law authorizing incorporation expressed , crystallized and considered, and where
2. Attempt in good faith to organize disputes may be amicably settled. (RA 7160,
under it Section 384)
3. Colorable compliance with the law.
4. Assumption of corporate powers G. The Municipality
The SC declared as unconstitutional Section 68 of the
Revised Administrative Code which authorized the
President to create municipalities through Executive The municipality, consisting of a group of baranays,
Order. With this declaration, municipalities created by serves primarily as a general purpose government
Executive Order could not claim to be de facto municipal for the coordination of and delivery of basic, regular
corporations because there was no valid law authorizing and direct services and effective governance of the
incorporation. (Pelaez v. Auditor General, 15 SCRA 569) inhabitants within its jurisdiction. (RA 7160, Section
440)
6. Attack Against Invalidity of Incorporation RA 7160 Sections 440-447
No collateral attack shall lie; and inquiry into the
legal existence of a municipal corporation is H. The City
reserved to the State in a proceeding for quo
warranto or other direct proceeding. (Malabang v. The city, composed of more urbanized and
Benito, 27 SCRA 533) But this rule applies only developed barangays, serves as a general-
when the municipal corporation is at least a de purpose government for the coordination and
facto municipal corporation. delivery of basic, regular and direct services and
However, where the challenge was made nearly 30
effective governance of the inhabitants within its
years after the executive order; creating the
municipality was issued, or where the municipality territorial jurisdiction. (RA 7160, Section 448)
has been in existence for all of 16 years before the RA 7160 Sections 448-258

SCHOOL OF LAW
validly enacted by the legislature or those agencies

Section 12. Cities that are highly urbanized, as to whom legislative powers have been delegated
determined by law, and component cities whose (the City of Manila in this case) empowering it to
charters prohibit their voters from voting for confiscate suspend licenses of erring drivers, it
provincial elective officials, shall be independent may do perform such acts. Without such law,
of the province. The voters of component cities
however, the MMDA has no power.111
within a province, whose charters contain no
such prohibition, shall not be deprived of their
right to vote for elective provincial officials. L. Leagues of LGUs/Officials
(See RA 7160 Sections 491-495; 496-498)
Q: May a resident of “component cities whose charter
prohibit their voters from voting for provincial elective Section 13. Local government units may group themselves,
officials” run for a provincial elective office? consolidate or coordinate their efforts, services, and resources
A: No. Section 12 says, these are independent of the for purposes commonly beneficial to them in accordance with
province. This independence includes the incapacity of its law.
residents to run for provincial office. (Abella v.
COMELEC, 1991) Q: Does the grouping contemplated in Section 13
create a new juridical entity?
I. The Province A: No.112
The province composed of a cluster of Q: May local government units create these groupings
municipalities and component cities, and as a even without prior enabling law?
political and corporate unit of government, serves A: Yes.
as a dynamic mechanism for developmental
processes and effective governance of local Liga ng mga Barangay- Organization of all
government units within its territorial jurisdiction. barangay for the primary purpose of determining
(RA 7160, Section 459) the representation of the Liga in the sanggunians,
(See RA 7160 Sections 459-468) and for ventilating, articulating and crystallizing
issues affecting barangay government
J. Autonomous regions in Muslim Mindanao and in administration and securing, through proper and
Cordilleras legal means, solutions thereto.
(This will be discussed under Section 15)
(As of this writing, only one autonomous region, 2003 Bar Question
that of the Muslim Mindanao, has been Q: Can the Liga ng mga Barangay exercise
established.) legislative powers?
SUGGESTED ANSWER: The Liga ng Mga
Barangay cannot exercise legislative powers. As
K. Special Metropolitan Political Subdivisions stated in Bito-Onon v. Fernandez. 350 SCRA 732
Section 11. The Congress may, by law, create special [2001], it is not a local government unit and its
metropolitan political subdivisions, subject to a plebiscite as primary purpose is to determine representation of
set forth in Section 10 hereof. The component cities and the mga in the sanggunians; to ventilate, articulate,
municipalities shall retain their basic autonomy and shall be and crystallize issues affecting barangay
entitled to their own local executive and legislative assemblies. government administration; and to secure solutions
The jurisdiction of the metropolitan authority that will thereby for them through proper and legal means.
be created shall be limited to basic services requiring
coordination. League of Municipalities. Organized for the
primary purpose of ventilating, articulating and
Pursuant to Article X, Section 11, Congress may, crystallizing issues affecting municipal government
by law, create special metropolitan political administration, and securing, through proper and
subdivisions subject to a plebiscite set forth in legal means, solutions thereto.
Section 20, but the component cities and
municipalities shall retain their basic autonomy and M. Regional Development Councils
shall be entitled to their own local executives and
legislative assemblies. The jurisdiction of the Section 14. The President shall provide for regional
metropolitan authority that will thereby created shall development councils or other similar bodies composed of
be limited to basic services requiring coordination. local government officials, regional heads of departments and
other government offices, and representatives from non-
NOTE: As earlier decided in the Belair case, the governmental organizations within the regions for purposes of
MMDA is NOT the metropolitan political unit administrative decentralization to strengthen the autonomy of
contemplated in Section 11. Rather it is an the units therein and to accelerate the economic and social
administrative agency of the government and as growth and development of the units in the region.
such it does not possess police power. It may
exrcise only such powers as are given to it by law. 111
MMDA v. Garin, G.R. No. 130230, April 15, 2005.
Hence, where there is a traffic law or regulation 112

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and in the manner set forth therein, impose

Purpose. The purpose of this provision is to foster disciplinary action against local officials;
administrative decentralization as a complement to 5. "Supervision" and "investigation" are not
political decentralization. This is meant to allow
inconsistent terms; "investigation" does
bottom-to-top planning rather than the reverse.113
not signify "control" (which the President
does not have); xxx” (Ganzon v. CA, GR
Power to Create RDCs. It will be noted that the
93252, 08.05.91)
power to form these development councils is given
to the President. He does not need authorization
E. Meaning of Local Autonomy
from Congress.114
*Local autonomy, under the Constitution,
II. Local Autonomy
involves a mere DECENTRALIZATION OF
ADMINISTRATION, not of power.... (Ganzon v.
Section 2. The territorial and political subdivisions shall enjoy CA, 1991)
local autonomy.
Nachura and Agra Notes: The principle of local
A. Constitutional Provisions autonomy under the 1987 Constitution simply means
decentralization. (Basco v. Pagcor, 197 SCRA
Article II, Section 25: The State shall ensure the 52)116 (Lina v. Pano, 2001)
autonomy of local governments.
Bernas: Local autonomy means more than just
Article X, Section 2: The territorial and political
decentralization. But the concept of autonomy is
subdivisions shall enjoy local autonomy. relative. Autonomy for local governments in general
(See also Sections 4,5,6, 7 and 10 of Article X) will be less than for the autonomous regions.117
B. Significance of Declaration of Local Autonomy However, even as we recognize that the
Constitution guarantees autonomy to local
It is meant to free local governments from the well- government units, the exercise of local autonomy
nigh absolute control by the legislature which remains subject to the power of control by
characterized local government under the 1935 Congress, and the power of general supervision by
Constitution. Thus, although a distinction is made the President. (Judge Dadole v. COA, 2002)
between local governments in general and
autonomous regions, even those outside the Q: What is the meaning of local autonomy as it has
autonomous regions are supposed to enjoy emerged in recent decisions?
autonomy.115 A: It means that local governments have certain
powers given by the Constitution which may not be
D. Rules on Local Autonomy curtailed by the national government, but that,
outside of these, local governments may not pass
“In resumé, the Court is laying down the following ordinances contrary to statute. (Magtajas v. Pryce
rules: Properties, 234 SCRA 255 (1994)).118
1. Local autonomy, under the Constitution,
involves a mere decentralization of Q: Do local governments have the power to grant
administration, not of power, in which local franchise to operate CATV system.
officials remain accountable to the central A: No. (Batangas CATV v. CA, 2004)
government in the manner the law may
Q: The law says that the budget officer shall be
provide; appointed by the Department head upon the
2. The new Constitution does not prescribe recommendation of the head of local government
federalism; subject to civil service rules and regulations. If none
3. The change in constitutional language (with of those recommended by the local government
respect to the supervision clause) was meant head meets the requirements of law, may the
but to deny legislative control over local Department head appoint anyone he chooses?
governments; it did not exempt the latter from A: No, he must return the recommendations of the
legislative regulations provided regulation is local government head explaining why the
recommendees are not qualified and ask for a new
consistent with the fundamental premise of recommendation. In other words, the
autonomy; recommendation of the local government head is a
4. Since local governments remain accountable condition sine qua non of the Department’s
to the national authority, the latter may, by law, appointing authority. This is the only way local
autonomy can be given by recognition the
113 116
Bernas Commentary, p 1098 (2003 ed). Antonio Nachura, Outline on Political Law, 551 (2006)
114 117
Bernas Commentary, p 1098 (2003 ed). Bernas Commentary, p 1077 (2003 ed).
115 118

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Constitution wants it to have. When in doubt, favor

autonomy. (San Juan v. CSC, 1991) “Under existing law, local government units, in
addition to having administrative autonomy in the
Q: May COA reduce the allowance given to judges
exercise of their functions, enjoy fiscal autonomy
by local governments?
A: No. Since the Local Government Code authorizes as well. Fiscal autonomy means that local
local governments to give allowance to judges and governments have the power to create their
decide how much this should be, local autonomy own sources of revenue in addition to their
prohibits the Commission on Audit from interfering equitable share in the national taxes released
with the authority of the local a government by by the national government, as well as the
reducing what has been decided by the local power to allocate their resources in accordance
government. (Dadole v. COA, 2002; Leynes v. COA, with their own priorities. It extends to the
2003) preparation of their budgets, and local officials in turn-
have to work within the constraints thereof. They are not
F. Regional Autonomy formulated at the national level and imposed on local
governments, whether they are relevant to local needs
Regional autonomy is the degree of self- and resources or not. Hence, the necessity of a balancing
determination exercised by the local of viewpoints and the harmonization of proposals from
both local and national officials, who in any case are
government unit vis-à-vis the central partners in the attainment of national goals. Local fiscal
government. (Disomangcop v. Secretary of Public autonomy does not however rule out any manner of
Works and Highways, GR 149848, 11.25.2004) national government intervention by way of supervision,
in order to ensure that local programs, fiscal and
“Regional autonomy refers to the granting of otherwise, are consistent with national goals.
basic internal government powers to the people Significantly, the President, by constitutional fiat, is the
of a particular area or region with least control head of the economic and planning agency of the
and supervision from the central government. government, primarily responsible for formulating and
implementing continuing, coordinated and integrated
The objective of the autonomy system is to permit social and economic policies, plans and programs for the
determined groups, with a common tradition and entire country. However, under the Constitution, the
shared social-cultural characteristics, to develop formulation and the implementation of such policies and
freely their ways of life and heritage, exercise their programs are subject to "consultations with the
rights, and be in charge of their own business.” appropriate public agencies, various private sectors, and
(Disomangcop v. Secretary of Public Works and local government units. The President cannot do so
Highways, GR 149848, 11.25.2004) unilaterally.” (Pimentel v. Aguirre, GR 132988,
07.19.2000)
Regional autonomy is also a means towards
solving existing serious peace and order “xxx the limited and restrictive nature of the tax
problems and secessionist movements. exemption privileges under the Local
Parenthetically, autonomy, decentralization and Government Code is consistent with the State
regionalization, in international law, have become policy to ensure autonomy of local
politically acceptable answers to intractable governments and the objective of the Local
problems of nationalism, separatism, ethnic conflict Government Code to grant genuine and
and threat of secession. However, the creation of meaningful autonomy to enable local government
autonomous regions does not signify the units to attain their fullest development as self-
establishment of a sovereignty distinct from that of reliant communities and make them effective
the Republic, as it can be installed only "within the partners in the attainment of national goals. The
framework of this Constitution and the national obvious intention of the law is to broaden the tax
sovereignty as well as territorial integrity of the base of local government units to assure them of
Republic of the Philippines. (Disomangcop v. substantial sources of revenue.” (PHILRECA v.
Secretary of Public Works and Highways, GR DILG, GR 143076, 06.10.2003)
149848, 11.25.2004)
“With the added burden of devolution, it is even
G. Fiscal Autonomy more imperative for government entities to share
in the requirements of development, fiscal or
“Local autonomy includes both administrative otherwise, by paying taxes or other charges due
and fiscal autonomy. xxx The Court declared from them.” (NAPOCOR v. Cabanatuan City, GR
therein that local fiscal autonomy includes the 149110, 04.09.2003)
power of the LGUs to, inter alia, allocate their
resources in accordance with their own priorities. “ xxx in taxing government-owned or controlled
xxx Further, a basic feature of local fiscal autonomy corporations, the State ultimately suffers no
is the constitutionally mandated automatic release loss.” (Philippine Ports Authority v. Iloilo City, GR
of the shares of LGUs in the national internal 109791, 07.14.2003)
revenue.” (Province of Batangas v. Romulo, GR
152774, 05.27.2004)

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“The important legal effect of Section 5 (of Article X the shares of local governments in the national
of the 1987 Constitution) is that henceforth, in internal revenue.
interpreting statutory provisions on municipal
Civil Service Commission v. Department of
fiscal powers, doubts will have to be resolved in
Budget and Management (GR 158791,
favor of municipal corporations.” (San Pablo City v. 07.22.2005)
Reyes, GR 127708, 03.25.99) “No Report, No Release” policy violates fiscal
autonomy.
ACORD v. Zamora (GR 144256, 06.08.2005) A “no report, no release” policy may not be
Constitution provides for automatic release of validly enforced against offices vested with
IRA. fiscal autonomy. Such policy cannot be
The General Appropriation Act of 2000 cannot enforced against offices possessing fiscal
place a portion of the Internal Revenue autonomy such as Constitutional Commissions
Allotment (P10B) in an Unprogrammed Fund and local governments. The automatic release
only to be released when a condition is met i.e. provision found in the Constitution means that
the original revenue targets are realized, since these local governments cannot be required to
this would violate the automatic release perform any act to receive the “just share”
provision under Section 5, Article X of the accruing to them from the national coffers.
Constitution. As the Constitution lays upon the
executive the duty to automatically release the Pimentel v. Aguirre (GR 132988, 07.19.2000)
just share of local governments in the national Executive withholding of 10% of the Internal
taxes, so it enjoins the legislature not to pass Revenue Allotment without complying with
laws that might prevent the executive from requirements set forth in Section 284 LGC
performing this duty. Both the executive and violated local autonomy and fiscal autonomy of
legislative are barred from withholding the local governments; Withholding amounted to
release of the IRA. If the framers of the executive control
Constitution intended to allow the enactment of “Under existing law, local government units, in
statutes making the release of IRA conditional addition to having administrative autonomy in
instead of automatic, then Article X, Section 6 the exercise of their functions, enjoy fiscal
of the Constitution would have been worded autonomy as well” and that “fiscal autonomy
differently. Congress has control only over the means that local governments have the power
share which must be just, not over the manner to create their own sources of revenue in
by which the share must be released which addition to their equitable share in the national
must be automatic since the phrase “as taxes released by the national government, as
determined by law” qualified the share, not the well as the power to allocate their resources in
release thereof. accordance with their own priorities”.
Province of Batangas v. Romulo (GR 152774, Dadole v. Commission on Audit (GR 125350,
05.27.2004) 12.03.2002)
GAA cannot amend LGC. Constitution provides
for automatic release of IRA. DBM cannot impose a limitation when the law
The General Appropriation Acts of 1999, 2000 imposes none.
and 2001 and resolutions of the Oversight
DBM Local Budget Circular No. 55 which
Committee cannot amend the 1991 Local
provides a limit to allowance that may be given
Government Code insofar as they provide for
by local governments to judges is null and void
the local governments’ share in the Internal
since the 1991 Local Government does not
Revenue Allotments as well as the time and
prescribe a limit. By virtue of his/ her power of
manner of distribution of said share. A national
supervision, the President can only interfere in
budget cannot amend a substantive law, in this
the affairs and activities of a local government
case the Code. The provisions in the GAA
unit if it has acted contrary to law.
creating the Local Government Special
Equalization Fund and authorizing the non-
release of the 40% to all local governments are Leynes v. COA (GR 143596, 12.11.2003)
inappropriate provisions. Further, the DBM cannot nullify a statutory power.
restrictions are violative of fiscal autonomy. A National Compensation Circular by the
Fiscal autonomy means that local governments Department of Budget and Management cannot
have the power to create their own sources of nullify the authority of municipalities to grant
revenue in addition to their equitable share in allowances to judges authorized in the 1991
the national taxes released by the national Local Government Code. The Circular prohibits
government, as well as the power to allocate the payment of representation and
their resources in accordance with their own transportation allowances from more than one
priorities. It extends to the preparation of their source – from national and local governments.
budgets, and local officials in turn have to work
within the constraints thereof. They are not G. Self-Determination
formulated at the national level and imposed on
local governments, whether they are relevant to
local needs and resources or not. Further, a “Self-determination refers to the need for a political
basic feature of local fiscal autonomy is the structure that will respect the autonomous peoples'
constitutionally mandated automatic release of uniqueness and grant them sufficient room for self-

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expression and self-construction. (Disomangcop v. managing local affairs and enable it to concentrate
Secretary of Public Works and Highways, GR on national concerns…
149848, 11.25.2004) Decentralization of power on the other hand,
involves an abdication of political power in favor of
local government units declared to be autonomous.
H. Decentralization In that case the autonomous government is free to
chart its own destiny and shape its future with
A necessary prerequisite of autonomy is minimum intervention from central government
decentralization. Decentralization is a decision by authorities. According to a constitutional author,
the central government authorizing its decentralization of power amounts to “self-
subordinates, whether geographically or immolation,” since in that event, the autonomous
government becomes accountable not to the central
functionally defined, to exercise authority in certain authorities but to its constituency. (Limbona v. Conte
areas. It involves decision-making by subnational Miguelin, 1989 citing Bernas, Brewing the Storm
units. It is typically a delegated power, wherein a Over Autonomy)119
larger government chooses to delegate certain
authority to more local governments. Federalism I. President’s General Supervision
implies some measure of decentralization, but
unitary systems may also decentralize. Section 4. The President of the Philippines shall exercise
Decentralization differs intrinsically from federalism general supervision over local governments. Provinces with
in that the sub-units that have been authorized to respect to component cities and municipalities, and cities and
act (by delegation) do not possess any claim of municipalities with respect to component barangays, shall
right against the central government. ensure that the acts of their component units are within the
Decentralization comes in two forms — scope of their prescribed powers and functions.
deconcentration and devolution.
Deconcentration is administrative in nature; it 1. Power of General Supervision
involves the transfer of functions or the delegation The power of general supervision is the power of a
of authority and responsibility from the national superior officer to see to it that the lower officers
office to the regional and local offices. This mode of perform their functions in accordance with law. It
decentralization is also referred to as administrative does not include the power to substitute one’s
decentralization. judgment for that of a lower officer in matters where
Devolution, on the other hand, connotes political a lower officer has various legal alternatives to
decentralization, or the transfer of powers, choose from.120
responsibilities, and resources for the performance
of certain functions from the central government to “Consistent with the doctrine that local government
local government units. This is a more liberal form does not mean the creation of imperium in imperio
of decentralization since there is an actual transfer or a state within a State, the Constitution has
of powers and responsibilities. It aims to grant vested the President of the Philippines the power of
greater autonomy to local government units in general supervision over local government units.
cognizance of their right to self-government, to Such grant of power includes the power of
make them self-reliant, and to improve their discipline over local officials, keeping them
administrative and technical capabilities.” accountable to the public, and seeing to it that their
(Disomangcop v. Secretary of Public Works and acts are kept within the bounds of law. Needless to
Highways, GR 149848, 11.25.2004) say, this awesome supervisory power, however,
must be exercised judiciously and with utmost
“Decentralization simply means the devolution circumspection so as not to transgress the avowed
of national administration, not power, to local constitutional policy of local autonomy.” (Malonzo
governments. Local officials remain accountable v. Zamora, GR 137718, 07.27.99)
to the central government as the law may provide.”
(Pimentel v. Aguirre, GR 132988, 07.19.2000) “Hand in hand with the constitutional restraint on
the President's power over local governments is
the state policy of ensuring local autonomy. xxx
Q: Are autonomy and decentralization the same? Paradoxically, local governments are still
A: Not really. Autonomy is either decentralization subject to regulation, however limited, for the
of administration or decentralization of power. purpose of enhancing self-government.”
There is decentralization of administration when
(Pimentel v. Aguirre, GR 132988, 07.19.2000)
the central government delegates administrative
powers to political subdivisions in order to broaden
the base of governmental power an in the process to Q: When Section 187 of the Local Government
make local governments more responsive and Code authorizes the Secretary of Justice to pass
accountable and ensure their fullest development as judgment on the constitutionality or legality of tax
self-reliant communities and make them mote
effective partners in the pursuit of national
development and social progress. At the same time 119
it relieves the central government of the burden of 120

SCHOOL OF LAW
ordinances or revenue measures, does he not the principal of the local government units, which
exercise the power of control? cannot defy its will or modify or violate it.”
A: No. He does not thereby dictate the law should (Magtajas v. Pryce Properties, GR 111097,
be but merely ensures that the ordinance is in
07.20.94)
accordance with law. (Drilon v. Lim)
Q: Petitioner challenges the right of the President, III. Local Government Code
through the Secretary of Interior to suspend him on
the ground that the removal of the phrase “As may
Principal Guidelines Given to Congress
be provided by law” from unconstitutional provision Effectivity of LGC
has stripped the President and legislature of the Scope of Application
power over local governments. Corollarily, he argues Declaration of Policy
that new Constitution has effectively repealed Rules of Interpretation
existing laws on the subject. Decide.
A: The power of general supervision of the Section 3. The Congress shall enact a local government code
President includes the power to investigate and which shall provide for a more responsive and accountable
remove. Moreover, Section 3 itself of this Article local government structure instituted through a system of
provides that the Local Government Code (LGC) decentralization with effective mechanisms of recall, initiative,
may provide for “removal” thus indicating that laws and referendum, allocate among the different local government
on the subject are not out of the compass of the units their powers, responsibilities, and resources, and provide
legislature. Autonomy does not transform local for the qualifications, election, appointment and removal, term,
governments into kingdoms unto themselves. salaries, powers and functions and duties of local officials, and
(Ganzon v. CA, 1991) all other matters relating to the organization and operation of
the local units.
Q: May the Secretary of the local Government
annul the election of officers of a federation of
barangay officials? A. Principal Guidelines Given to Congress
A: No. Such annulment would amount to control and
therefore in excess of executive supervisory powers. The principal guidelines given to Congress for
(Taule v. Secretary Santos, 1991)121 structuring LGUs are:
2. Supervisory Structure in the Local 1. That the structure must be “responsive and
Government System accountable” and “instituted though a system
The President has general supervision over all of decentralization.”
LGUs. But his direct supervisory contact is with 2. The structure must be both sensitive to the
autonomous regions, provinces, and independent needs of the locality, accountable to the
cities. The rest follow in hierarchal order as electorate of the locality, and freed as much as
indicated in Section 4. possible from central government
interference.122
J. Local Autonomy and Legislative Control
Q: The 1973 Constitution contained a provision
“The Constitution did not, however, intend, for the which said that “No change in the existing form of
sake of local autonomy, to deprive the legislature government shall take effect until ratified by a
of all authority over municipal corporations, in majority of the votes cast in a plebiscite called for
the purpose.” Why was this not retained?
particular, concerning discipline. The change in A: The provision was considered too limitive of the
constitutional language did not exempt local power of Congress.123
governments from legislative regulation provided
regulation is consistent with the fundamental B. Effectivity of LGC
premise of autonomy.” (Ganzon v. CA, GR 93252,
08.05.91) January 1, 1992, unless otherwise provided
herein, after its complete publication in at least one
This basic relationship between the national newspaper of general circulation (RA 7160, Section
legislature and the local government units has not 536)
been enfeebled by the new provisions in the
Constitution strengthening the policy of local C. Scope of LGC’s Application
autonomy. Without meaning to detract from that
policy, we here confirm that Congress retains
The Code shall apply to all provinces, cities,
control of the local government units although
municipalities, barangays and other political
in significantly reduced degree now than under
subdivisions as may be created by law, and , to the
our previous Constitutions. The power to create still
extent herein provided, to officials, offices or
includes the power to destroy. The power to grant
still includes the power to withhold or recall. xxx By
122
and large, however, the national legislature is still Bernas Commentary, p 1081 (2003 ed).
123
121

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agencies of the National Government (RA 7160, Governmental Powers

Section 536) Corporate Powers
D. Declaration of Policy (Section 2) Section 5. Each local government unit shall have the power to
create its own sources of revenues and to levy taxes, fees and
charges subject to such guidelines and limitations as the
1. The territorial and political subdivisions of the Congress may provide, consistent with the basic policy of local
State shall enjoy genuine and meaningful local autonomy. Such taxes, fees, and charges shall accrue
autonomy to enable them to attain their fullest exclusively to the local governments.
development as self-reliant communities and
make them more effective partners in the Section 6. Local government units shall have a just share, as
attainment of national goals; determined by law, in the national taxes which shall be
2. Ensure accountability of local government automatically released to them.
units through the institution of effective
mechanisms of recall, initiative and Section 7. Local governments shall be entitled to an equitable
referendum; and share in the proceeds of the utilization and development of the
national wealth within their respective areas, in the manner
3. Require all national agencies and offices to
provided by law, including sharing the same with the
conduct periodic consultations with appropriate inhabitants by way of direct benefits.
local government units, non-governmental and
people’s organizations, and other concerned A. Powers in General
sectors of the community before any project or
program is implemented in their respective 1. Sources
jurisdictions.
1. Article II, Section 25: “The Sate shall
ensure the autonomy of local
E. Rules of Interpretation
governments.”
2. Article X, Sections 5,6, & 7.
1.
Any provision on a power of local government 3. Statutes (e.g., RA 7160)
unit shall be liberally interpreted in its favor, 4. Charter (particularly of cities)
and in case of doubt, any question thereon
shall be resolved in favor of devolution of 2. Classification
powers and of the local government unit.
2. Any tax ordinance or revenue measure shall 1. Express, implied, inherent (powers
be construed strictly against the local necessary and proper for governance,
government unit enacting it and liberally in e.g., to promote health and safety,
favor of the taxpayer. Any tax exemption, enhance prosperity, improve morals of
incentive or relief granted by any local inhabitants)
government unit shall be construed strictly 2. Public or governmental; Private or
against the person claiming it. proprietary
3. The general welfare provisions shall be 3. Intramural, extramural
liberally interpreted to give more powers to
local government units in accelerating 4. Mandatory, directory; Ministerial,
economic development and upgrading the discretionary.
quality of life for the people in the community.
4. Rights and obligations existing on the date of Governmental Powers Corporate Powers
1. General Welfare 1. To have
effectivity of this Code and arising out of
2. Basic Services continuous
contracts or any other source of prestation and Facilities succession in its
involving a local government unit shall be 3. Power to corporate name.
governed by the original terms and conditions Generate and Apply 2. To sue and be
of said contracts or the law in force at the time Resources sued
such rights were vested. 4. Eminent Domain 3. To have and
5. Reclassification use a corporate seal
5. In the resolution of controversies arising under of Lands 4. To acquire and
this Code where no legal provision or 6. Closure and convey real or
jurisprudence applies, resort may be had to Opening of Roads personal property
the customs and traditions in the place where 7. Local Legislative 5. Power to enter
the controversies take place.124 Power into contracts
(See page 676-697 of Jack’s Compendium(2006)) 8. Authority over 6. To exercise
Police Units such other powers as
are granted to
IV. General Powers and Attributes of LGUs corporations, subject
Powers in General to the limitations
provided in the Code
124 and other laws.

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their property.” (Rural Bank of Makati v.

3. Execution of Powers Makati, GR 150763, 07.02.2004)
1. Where statute prescribes the manner of
exercise, the procedure must be followed; “As with the State, the local government may
2. Where the statute is silent, local be considered as having properly exercised its
government units have discretion to select police power only if the following requisites are
reasonable means and methods of met: (1) the interests of the public generally,
exercise.125 as distinguished from those of a particular
class, require the interference of the State, and
B. Governmental Powers (2) the means employed are reasonably
necessary for the attainment of the object
1. General Welfare (RA 7160, Section 16)
sought to be accomplished and not unduly
2. Basic Services and Facilities (RA 7160, §17)
oppressive upon individuals. Otherwise
3. Power to Generate and Apply Resources (RA
stated, there must be a concurrence of a
7160 §18; Article X, §§5-7)
lawful subject and lawful method.” (Lucena
4. Eminent Domain (RA 7160, § 19)
Grand Central v. JAC, GR 148339
5. Reclassification of Lands (RA 7160, § 20)
02.23.2005)
6. Closure and Opening of Roads (RA 7160, §
21)
Limitations on the exercise of powers under
7. Local Legislative Power (RA 7160, §§ 48-59)
this clause:
8. Authority over Police Units (See Article XVI,
Section 6; PNP Act) 1. Exercisable only within territorial limits of the
local government unit, except for protection of
1. General Welfare water supply.
RA 7160, Section 16: Every local government unit 2. Equal protection clause. (The interests of the
shall exercise the powers expressly granted, those public in general, as distinguished from those
necessarily implied therefrom, as well as powers of a particular class, require the exercise of the
necessary, appropriate, or incidental for its efficient power.
and effective governance, and those which are
essential to the promotion of general welfare.
3. Due process clause. (The means employed
are reasonably necessary for the
Within their respective territorial jurisdiction, local
accomplishment of the purpose and not unduly
government units shall ensure and support, among
oppressive on individuals)
other things, the preservation and enrichment of
culture, promote health and safety, enhance the 4. Must not be contrary to the Constitution and
right of the people to a balanced ecology, the laws. Prohibited activities may not be
encourage and support the development of legalized in the guise of regulation; activities
appropriate and self-reliant scientific and allowed by law cannot be prohibited, only
technological capabilities, improve public morals, regulated.
enhance economic prosperity and social justice, Magtajas v. Pryce Properties: To be
promote full employment among its residents, valid , an ordinance:
maintain peace and order, and preserve the a. Must not contravene
comfort and convenience of their inhabitants. the Constitution and any statute;
b. Must not be unfair or
Police power. The general welfare clause is
oppressive;
the statutory grant of police power to local c. Must not be partial or
government units. discriminatory;
d. Must not prohibit, but
“The general welfare clause has two ay regulate trade;
branches. e. Must not be
(1) General legislative power, authorizes the unreasonable and;
municipal council to enact ordinances and f. Must be general in
application and consistent with public
make regulations not repugnant to law, as may
policy.
be necessary to carry into effect and discharge
the powers and duties conferred upon the Cases:
municipal council by law. Valid Exercise of Police Power
(2) Police power proper, authorizes the
municipality to enact ordinances as may be 1. Closure of Bank. A local government unit
may, in the exercise of police power under the
necessary and proper for the health and
general welfare clause, order the closure of a bank
safety, prosperity, morals, peace, good order, for failure to secure the appropriate mayor’s permit
comfort, and convenience of the municipality and business licenses. (Rural Bank of Makati v.
and its inhabitants, and for the protection of Municipality of Makati, 2004)
125
2. Ban on Shipment. The SC upheld, as
Antonio Nachura, Outline on Political Law, 562 (2006) legitimate exercise of the police power, the validity of

SCHOOL OF LAW
the Puerto Princesa Ordinance “banning the 3. Where power to grant franchise not
shipment of all live fish and lobster outside Puerto
granted. What Congress delegated to the City of
Princesa from 1993-1998 as well as the
Manila in RA 409 (Revised Charter of Manila) with
Sangguniang Panlalawigan Resolution “prohibiting
respect to wagers and betting was the power “to
that catching, gathering, possessing, buying, selling
license, permit or regulate,” not the power to
and shipment of live marine coral dwelling of aquatic
franchise. This means that the license or permit
organisms for a period of 5 years, coming from
issued by the City of Manila to operate wager or
Palawan waters.”
betting activity, such as jai-lai, would not amount to
3. It was held that the power of municipal
something meaningful unless the holder of the
corporations is broad and has been said to be
license or permit was also franchised by the National
commensurate with but to exceed the duty to
Government to operate. Therefore, Manila
provide for the real needs of the people in their
Ordinance No. 7065, which purported to grant ADC
health, safety, comfort and convenience, and
a frachise to conduct jai-alai operations, is void and
consistently as may be with private rights. Ordinance
ultra vires (Lim v. Pacquing)
is not unconstitutional merely because it incidentally
RA 7160 expressly authorizes the Mayor to
benefits a limited number of persons. The support
issue permits and licenses for the holding of
for the poor has long been an accepted exercise of
activities for any charitable or welfare purpose;
the police power in the promotion of the common
thus, the Mayor cannot feign total lack of
good. (Binay v. Domingo, 201 SCRA 508)
authority to act on requests for such permits.
4. Imposition of Annual Fee. It was held (Olivares v. Sandiganbayan , 1995) But its is
that where police power is used to discourage non- the Laguna Lake Development Authority
useful occupations or enterprises, an annual permit/ (LLDA), not the municipal government, which
license fee of P100.00 although a bit exorbitant, is has the exclusive jurisdiction to issue permits
valid. (Physical Therapy Organization of the for the enjoyment of fishery privileges in
Philippines v. Municipal Board of Manila) Laguna de Bay, by virtue of RA 4850, PD 813
5. The ordinance requiring owners of and EO 927, because although RA 7160 vests
commercial cemeteries to reserve 6% of their burial in municipalities the authority to grant fishery
lots for burial grounds of paupers was held invalid; it privileges in municipal waters, RA 7160 did not
was not an exercise of the police power, but of repeal the charter of LLDA, and the latter is an
eminent domain. (QC v. Ericta, 122 SCRA 759) exercise of the police power. (LLDA v. CA)
6. The Manila Ordinance prohibiting barber 4. The ordinance of Bayambang,
shops from conducting massage business in another Pangasinan, appointing Lacuesta manager of
room was held valid, as it was passed for the fisheries for 25 years, renewable for another 25
protection of public morals. (Velasco v. Villegas, 120 years, was held invalid, ultra vires, as it effectively
SCRA 568) amends a general law.(Terrado, v. CA, 131 SCRA
7. Zoning Ordinance. A zoning ordinance 373)
5. An ordinance imposing P0.30 police
reclassifying residential into commercial or light
inspection fee per sack of cassava flour produced
industrial area is a valid exercise of the police
and shipped out of the municipality was held invalid.
power. (Ortigas v. Feati Bank, 94 SCRA 533)
It is not a license fee but a tax, unjust and
8. The act of the Municipal Mayor in opening
unreasonable, since the only service of the
Jupiter and Orbit Streets of Bel Air Subdivision, to
municipality is for the policeman to verify from the
the public was deemed a valid exercise of police
drivers of trucks of petitioner the number of sacks
power. (Sangalang v. IAC, 176 SCRA 719)
actually loaded. (Matalin Coconut v. Municipal
Council of Malabang, 143 SCRA 404)
Invalid Ordinances
6. The power to issue permits to operate
1. LGU may not regulate subscriber rate. cockpits is vested in the Mayor, in line with the policy
A local government unit may not regulate the of local autonomy. (Philippine Gamefowl
subscribe rates charged by CATV operators within Commission v. IAC)
its territorial jurisdiction. The regulation and 7. The Bocaue, Bulacan ordinance
supervision of the CATV industry shall remain
prohibiting the operation of night-clubs, was
vested “solely” in the NTC. Considering that the
declared invalid, because of his prohibitory, not
CATV industry is so technical a field, NTC, a
merely regulatory, character. (Dela Cruz v. Paras,
specialized agency, is in a better position than the
123 SCRA 569)
local government units to regulate it. This does not
8. It was held that the ordinance penalizing
mean, however, that the LGU cannot prescribe
persons charging full payment for admission of
regulations over CATV operators in the exercise of
children (ages 7-12) in moviehouses was an invalid
the general welfare clause. (Batangas CATV v. CA,
exercise of police power for being unreasonable and
2004)
oppressive on business of petitioners. (Balacuit v.
2. Ordinance contrary to statute held CFI)
invalid. The ordinance prohibiting the issuance of a
business permit to, and cancelling any business 1993 Bar Question
permit of any establishment allowing its premises to Q: Mayor Alfredo Lim closed the funhouses in the Ermita
be used as a casino, and the ordinance prohibiting district suspected of being fronts for prostitution. To
the operation of a casino, were declared invalid for determine the feasibility of putting up a legalized red light
being contrary to PD 1869 (Charter of district, the city council conducted an inquiry and invited
PAGCOR)which has the character and force of a operators of the closed funhouses to get their views. No
statute. (Magtajas) one honored the invitation. The city council issued

SCHOOL OF LAW
subpoenas to compel the attendance of the operators but

which were completely disregarded. The council declared 3. Power to Generate and Apply Resources
the operators guilty of contempt and issued warrants for RA 7160, Section 18: Local government units shall
their arrest. The operators come to you for legal advice,
asking the following questions: (1) Is the council
have the power and authority to establish an
empowered to issue subpoenas to compel their organization that shall be responsible for the
attendance? (2) Does the council have the power to cite efficient and effective implementation of their
for contempt? development plans, program objectives and
Suggested Answer: (1) The city council is not priorities; to create their own sources of revenue
empowered to issue subpoenas to compel the attendance and to levy taxes, fees and charges which shall
of the operators of the fun-houses In the Ermita district. accrue exclusively to their use and disposition and
There is no provision in the Constitution, the Local which shall be retained by them; to have a just
Government Code, or any law expressly granting local
legislative bodies the power to subpoena witnesses. As
share in the national taxes which shall be
held in Negros Oriental II Electric Cooperative, Inc. vs. automatically and directly released to them without
Sangguniang Panlungsod of Dumaguete, 155 SCRA 421, need of further action; to have an equitable share
such power cannot be implied from the grant of delegated in the proceeds from the utilization and
legislated power. Such power is Judicial. To allow local development of the national wealth and resources
legislative bodies to exercise such power without express within their respective territorial jurisdictions
statutory basis would violate the doctrine of separation of including develop, lease, encumber, alienate or
powers. otherwise dispose of real or personal property held
(2) The city council does not have the power to cite for
contempt. There is likewise no provision in the
by them in their proprietary capacity and to apply
Constitution, the Local Government Code, or any other their resources and assets for productive,
laws granting local legislative bodies the power to cite for developmental or welfare purposes, in the exercise
contempt. Such power cannot be deemed implied in the of furtherance of their governmental or proprietary
delegation of legislative power to local legislative bodies, powers and functions and thereby ensure their
for the existence of such power poses a potential development into self-reliant communities and
derogation of individual rights. active participants in the attainment of national
goals.
2. Basic Services and Facilities Section 18 of RA 7160 restates and
RA 7160, Section 17: Local government units shall implements Sections 5,6,7 of Article X. But
endeavor to be self-reliant and shall continue this power is always subject to the limitations which
exercising the powers and discharging the duties the Congress may provide by law. (Basco v.
and functions currently vested upon them. They PAGCOR, 197 SCRA 52) Thus, it was held that the
shall also discharge the functions and local government units have no power to tax
responsibilities of national agencies and offices instrumentalities of the National Government, such
devolved to them pursuant to this Code (within 6 as PAGCOR.
months after the effectivity of this Code) They shall
“The power to tax is primarily vested in the
likewise exercise such other powers and discharge Congress; however, in our jurisdictions, it may be
such other functions as are necessary, appropriate, exercised by local legislative bodies, no longer
or incidental to efficient and effective provision of merely by virtue of a valid delegation as before,
the basic services and facilities enumerated herein. but pursuant to direct authority conferred by
Note that public works and infrastructure projects Section 5, Article X of the Constitution. Under the
and other facilities, programs and services funded latter the exercise of the power may be subject to
by the national government under the General such guidelines and limitations as the Congress may
Appropriations Act and other laws, are not covered provide which, however, must be consistent with the
under this section, except where the local basic policy of local autonomy. xxx These policy
government unit is duly designated as the considerations are consistent with the State policy to
implementing agency for such projects, facilities, ensure autonomy to local governments and the
126
programs and services. objective of the LGC that they enjoy genuine and
Devolution. Devolution refers to the act by which meaningful local autonomy to enable them to attain
the national government confers power and authority their fullest development as self-reliant communities
upon the various local government units to perform and make them effective partners in the attainment
specific functions and responsibilities. This includes of national goals. The power to tax is the most
the transfer to the local government units of the effective instrument to raise needed revenues to
records, equipment and other assets and personnel finance and support myriad activities of local
of national agencies and offices. Regional offices of government units for the delivery of basic services
national agencies shall be phased out within one essential to the promotion of the general welfare and
year form the approval of this Code. Career regional the enhancement of peace, progress, and prosperity
directors who cannot be absorbed by the local of the people.” (Mactan Cebu International Airport v.
government unit shall be retained by the national Marcos, GR 110082, 09.11.96)
government, without diminution in rank, salary or
tenure.127 Q: What are the fund sources of local
governments?
126
Antonio Nachura, Outline on Political Law, 566 (2006) A: They are:
127
Antonio Nachura, Outline on Political Law, 567 (2006) 1. Local taxes, fees and charges;

SCHOOL OF LAW
2. Its share in the national taxes; municipal corporation the power to tax certain
3. Its share in the proceeds of the matters, it can also provide for exemptions or even
utilization of national resources within their take back the power. xxx The power of local
governments to impose taxes and fees is always
respective areas;
subject to limitations which Congress may provide
4. Other “sources of revenues” which by law.xxx Local governments have no power to tax
they may legitimately make use of either in instrumentalities of the National Government and is
their public or governmental capacity, or therefore exempt from local taxes. (Basco v.
private or proprietary capacity.128 PAGCOR, 197 SCRA 52)
3. LGUs have the power to create their own
Q: What is the scope of their power to levy taxes, sources of revenue, levy taxes, etc., but subject to
fees, and charges? such guidelines set by Congress. (Estanislao v.
A: They are subject to such guidelines and costales, 196 SCRA 853)
limitations as Congress may provide. However, such 4. Section 187, RA 7160 which authorizes
guidelines and limitations to be imposed by the Secretary of Justice to review the
Congress must not be such as to frustrate the “basic constitutionality of legality of a tax ordinance—and if
policy of local autonomy.”129 warranted, to revoke it on either or both grounds—is
valid, and does not confer the power of control over
Q: What is the share of the national government in local government units in the Secretary of Justice,
such taxes, fees and charges? as even if the latter can set aside a tax ordinance,
A: None.130 he cannot substitute his own judgment for that of the
local government unit. (Drilon v. Lim, 1994)
Q: In what way can local governments share in the
fruits of the utilization of local natural resources?
5. The City of Cebu as a LGU, the power to
A: Local governments can either have shares from collect real property taxes from the Mactan Cebu
revenues accruing through fees and charges or they International Airport Auhtority (MCIAA v. Marcos,
can receive direct benefits such as lower rates, e.g., 1996) There is no question that under RA 6958,
for consumption of electricity generated within their MCIAA is exempt form the payment of realty taxes
locality.131 imposed by the National Government or any of its
political subdivisions; nevertheless, since taxation is
Fundamental Principle Governing the Exercise of the rule, the exemption may be withdrawn at the
the Taxing and other Revenue-Raising Powers of pleasure of the taxing authority. The only exception
LGUs (RA 7160, Section 130) to this rule is where the exemption was granted to
1. Taxation shall be uniform in each LGU; private parties based on material consideration of a
2. Taxes, fees, charges and other mutual nature, which then becomes contractual and
impositions shall be equitable and based as far is thus covered by the non-impairment clause of the
as practicable on the taxpayer’s ability to pay; Constitution.
levied and collected only for public purposes; 6. While indeed local governments are
not unjust, excessive, oppressive or authorized to impose business taxes, they can do so
confiscatory; and not contrary to law, public only if the entity being subjected to business tax is a
policy, national economic policy, or in restraint business. (Thus, for Makati to impose a business
of trade; tax on a condominium, the city must prove that the
3. The collection of local taxes, fees and condominium is engaged in business.)132
charges and other impositions shall in no case
be let to any private person; Article X, Section 6: “Local government units
4. The revenue collected shall inure solely to shall have a just share, as determined by law, in
the benefit of, and be subject to disposition by the national taxes which shall be automatically
the local government unit, unless specifically released to them.”
provided herein; and Share in National Taxes. Section 6 mandates that
5. Each LGU shall as far as practicable (1) the LGUs shall have a "just share" in the national
evolve a progressive system of taxation. taxes; (2) the "just share" shall be determined by
law; and (3) the "just share" shall be automatically
Cases: released to the LGUs. Thus, where the local
1. The exercise by local governments of the government share has been determined by the
power to tax is ordained by the present Constitution; General Appropration Act, its relese may not be
only guidelines and limitations that may be made subject to te condition that "such amount shall
established by Congress can define and limit such be released to the local government units subject to
power of local governments. (Philippine Petroleum the implementing rules and regulations, including
Corporation v. Municipality of Pililia, Rizal, 198 such mechanisms and guidelines for the equitable
SCRA 82) allocations and distribution of said fund among local
government units subject to the guidelines that may
2. Congress has the power of control over be prescribed by the Oversight Committee on
local governments; if Congress can grant a Devolution." To subject its distribution and release to
128 the vagaries of the implementing rules and
Bernas Primer at 423 (2006 ed.) regulations, including the guidelines and
129
130
Bernas Primer at 423 (2006 ed.) 132
Yamane v. BA Lepanto Condominium, G.R. No. 154993, October
131
Bernas Primer at 423 (2006 ed.) 25, 2005.

SCHOOL OF LAW
mechanisms unilaterally prescribed by the Oversight 9. Local budgets shall operationalize approved
Committee from time to time, as sanctioned by the local development plans;
assailed provisos in the GAAs of 1999, 2000 and 10. LGUs shall ensure that their respective budgets
2001 and the OCD resolutions, makes the release incorporate the requirements of their
not automatic and a flagrant violation of the component units and provide for equitable
constitutional and statutory mandate that the "just allocation of resources among these
share" of the LGUs "shall be automatically released component units;
to them."133 11. National planning shall be based on local
Moreover, neither Congress nor the Executive may planning to ensure that the needs and
impose conditions on the release. As the aspirations of the people is articulated by the
Constitution lays upon the executive the duty to LGUs in their respective local development
automatically release the just share of local plans are considered in the formulation of
governments in the national taxes, so it enjoins the budgets of national line agencies or offices;
legislature not to pass laws that might prevent the 12. Fiscal responsibility shall be shared by all those
executive from performing this duty. To hold that the exercising authority over the financial affairs,
executive branch may disregard constitutional transactions, and operations of the LGUs; and
provisions which define its duties, provided it has the 13. The LGU shall endeavor to have a balanced
backing of statute, is virtually to make the budget in each fiscal year of operation.
Constitution amendable by statute – a proposition
which is patently absurd. Moreover, if it were the 1991 Bar Question
intent of the framers to allow the enactment of Q:The province of Palawan passes an ordinance
statutes making the release of IRA conditional requiring all owners/operators of fishing vessels
instead of automatic, then Article X, Section 6 of the
that fish in waters surrounding the province to
Constitution would have been worded to say “shall
be [automatically] released to them as provided by invest ten percent (10%) of their net profits from
law.”134 operations therein in any enterprise located in
Palawan. NARCO Fishing Corp., a Filipino
Fundamental Principle Governing the Financial corporation with head office in Navotas, Metro
Affairs, Transactions and Operations of LGUs Manila, challenges the ordinance as
(RA 7160, Section 305) unconstitutional. Decide the case.
1. No money shall be paid out of the local treasury Suggested Answer: The ordinance is invalid. The
except in pursuance of an appropriation ordinance was apparently enacted pursuant to
ordinance of law;
Article X, Sec. 7 of the Constitution, which entitles
2. Local government funds and monies shall be
spent solely for public purposes; local governments to an equitable share in the
proceeds of the utilization and development of the
3. Local revenue is generated only from sources
national wealth within their respective areas.
expressly authorized by law or ordinance, and
However, this should be made pursuant to law. A
collection thereof shall at all times be
acknowledged properly. law is needed to implement this provision and a
4. All monies officially received by a local local government cannot constitute itself unto a
government officer in any capacity or on any law. In the absence of a law the ordinance in
occasion shall be accounted for as local funds, question is invalid.
unless otherwise provided by law;
5. Trust funds in the local treasury shall not be 4. Eminent Domain
paid out except in fulfillment of the purpose for RA 7160, Section 19: A Local Government Unit
which the trust was created or the funds may, through its chief executive and acting
received;
6. Every officer of the local government unit
pursuant to an ordinance, exercise power of
whose duties permit or require the possession eminent domain for public use, or purpose, or
or custody of local funds shall be properly welfare for the benefit of the poor and the landless,
bonded, and such officer shall be accountable upon payment of just compensation, pursuant to
and responsible for said funds and for the the provisions of the Constitution and pertinent
safekeeping thereof in conformity with the laws: Provided, however, That the power of
provisions of law; eminent domain may not be exercised unless a
7. Local governments shall formulate sound valid and definite offer has been previously made
financial plans, and the local budgets shall be
based on functions, activities, and projects in
to the owner and such offer was not accepted:
terms of expected results; Provided, further, That the LGU may immediately
8. Local budget plans and goals shall, as far as take possession of the property upon the filing of
practicable, be harmonized with national expropriation proceedings and upon making a
development plans, goals and strategies in deposit with the proper court of at least 15% of the
order to optimize the utilization of resources fair market value of the property based on the
and to avoid duplication in the use of fiscal and current tax declaration of the property to be
physical resources. expropriated: Provided, finally, That the amount to
be paid for the expropriated property shall be
133
Batangas v. Executive Secretary, G.R. No. 152774. May 27, determined by the proper court, based on the fair
2004 market value at the time of the taking of the
134
Alternative Center v. Zamora, G.R. No. 144256, June 8, 2005. property.

SCHOOL OF LAW
“Local government units have no inherent power approved by the Mayor. However, the Sangguniang
of eminent domain and can exercise it only when Panlalawigan of Ilocos Sur disapproved the Resolution as
expressly authorized by the legislature. By virtue of there might still be other available lots in Santa for a
RA 7160, Congress conferred upon local sports center. Nonetheless, the Municipality of Santa,
government units the power to expropriate. xxx through its Mayor, filed a complaint for eminent domain.
There are two legal provisions which limit the Christina opposed this on the following grounds: (a) the
exercise of this power: (1) no person shall be Municipality of Santa has no power to expropriate; (b)
deprived of life, liberty, or property without due Resolution No. 1 has been voided since the Sangguniang
process of law, nor shall any person be denied the Panlalawigan disapproved it for being arbitrary; and (c)
equal protection of the laws; and (2) private property the Municipality of Santa has other and better lots for that
shall not be taken for public use without just purpose. Resolve the case with reasons.
compensation. Thus, the exercise by local Suggested Answer: Under Section 19 of R.A. No. 7160,
government units of the power of eminent domain is the power of eminent domain is explicitly granted to the
not absolute. In fact, Section 19 of RA 7160 itself municipality, but must be exercised through an ordinance
explicitly states that such exercise must comply with rather than through a resolution. (Municipality
the provisions of the Constitution and pertinent ofParanaque v. V.M. Realty Corp., G.R. No. 127820, July
laws.” (Lagcao v. Labra, GR 155746, 10.13. 2004) 20, 1998)
The Sangguniang Panlalawigan of Ilocos Sur was without
“Strictly speaking, the power of eminent domain the authority to disapprove Resolution No. 1 as the
delegated to an LGU is in reality not eminent but municipality clearly has the power to exercise the right of
"inferior" domain, since it must conform to the eminent domain and its Sangguniang Bayan the capacity
limits imposed by the delegation, and thus partakes to promulgate said resolution. The only ground upon
only of a share in eminent domain. Indeed, "the which a provincial board may declare any municipal
national legislature is still the principal of the local resolution, ordinance or order invalid is when such
government units, which cannot defy its will or resolution, ordinance or order is beyond the powers
modify or violate it.” (Paranaque v. VM Realty Corp., conferred upon the council or president making the same.
GR 127820, 07.20.98) Such is not the situation in this case. (Moday v. Court of
Appeals, G.R. No. 107916, February 20, 1997)
“It is true that local government units have no The question of whether there is genuine necessity for
inherent power of eminent domain and can exercise the expropriation of Christina's lot or whether the
it only when expressly authorized by the legislature. municipality has other and better lots for the purpose is a
It is also true that in delegating the power to matter that will have to be resolved by the Court upon
expropriate, the legislature may retain certain control presentation of evidence by the parties to the case.
or impose certain restraints on the exercise thereof
by the local governments. While such delegated 5. Reclassification of Lands
power may be a limited authority, it is complete A city or municipality may, through an ordinance
within its limits. Moreover, the limitations on the passed after conducting public hearings for the
exercise of the delegated power must be clearly
expressed, either in the law conferring the power or
purpose, authorize the reclassification of
in other legislations. Statutes conferring the power agricultural lands and provide for the manner of
of eminent domain to political subdivisions their utilization or disposition:
cannot be broadened or constricted by 1. When the land ceases to be economically
implication.” (Province of Camarines Sur v. CA, feasible and sound for agricultural
222 SCRA 173) purposes as determined by the
Department of Agriculture, or
Limitations on the Exercise of the Power of 2. Where the land shall have substantially
Eminent Domain by Local Government Units: greater economic value for residential,
1. Exercised only by the local chief commercial or industrial purposes, as
executive, acting pursuant to a valid determined by the sanggunian;
ordinance; Provided that such reclassification shall be
2. For public use or purpose or welfare, limited to the following percentage of the total
for the benefit of the poor and the landless; agricultural land area at the time of the
3. Only after a valid and definite offer passage of the ordinance:
had been made to, and not accepted by, the i. For highly urbanized cities and
owner. independent component cities: 15%
It was held that the Sangguniang Panlalawigan ii. For component cities and 1st to 3rd
cannot validly disapprove the resolution of the class municipalities: 10%
municipality expropriating a parcel of land for the iii. For 4th to 6th municipalities: 5%.
establishment of a government center. The power of
eminent domain is explicitly granted to the
Provided that agricultural land distributed to
municipality under the Local Government Code. land reform beneficiaries shall not be
affected by such reclassification.
2005 Bar Question
Q: The Sangguniang Bayan of the Municipality of Santa, 6. Closure and Opening of Roads
Ilocos Sur passed Resolution No. 1 authorizing its Mayor RA 7160, Section 21. A local government unit may,
to initiate a petition for the expropriation of a lot owned by pursuant to an ordinance, permanently or
Christina as site for its municipal sports center. This was

SCHOOL OF LAW
temporarily close or open any local road, alley, a. Products of legislative action:
park or square falling within its jurisdiction, 1. Ordinance- prescribes a permanent
provided that in case of permanent closure, such rule of conduct.
ordinance must be approved by at least 2/3 of all
the members of the sanggunian, and when 2. Resolution- of temporary character,
necessary, an adequate substitute for the public or expresses sentiment.
facility shall be provided.
b. Requisites for validity
Additional limitations in case of permanent 1. Must not contravene the Constitution
closure: and any statute;
1. Adequate provision for the maintenance of 2. Must not be unfair or oppressive;
public safety must be made; 3. Must not be partial or discriminatory;
2. The property may be used or conveyed for any 4. Must not prohibit but may regulate
purpose for which other real property may be trade;
lawfully used or conveyed, but no freedom 5. Must not be unreasonable;
park shall be closed permanently without 6. Must be general in application and
provision for its transfer or relocation to a new consistent with public policy.
site.
c. Approval of Ordinances
Note: Temporary closure may be made during an Ordinances passed by the sangguniang
actual emergency, fiesta celebrations, public panlalawigan, sangguniang panlungsod, or
rallies, etc. sangguniang bayan shall be approved:
1. If the local chief executive approves
Cases: the same, affixing his signature on each
1. A municipality has the authority to prepare and an every page thereof.
adopt a land use map, promulgate a zoning 2. If the local chief executive vetoes the
ordinance, and close any municipal road.
same, and the veto is overridden by 2/3
(Pilapil v. CA, 216 SCRA 33)
vote of all the members of the
2. The closure of 4 streets in Baclaran, sanggunian. The local chief executive
Paranaque was held invalid for non-compliance may veto the ordinance, only once, on the
with MMA Ordinance No. 2. Further, provincial
ground that the ordinance is ultra vires, or
roads and city streets are property for public
use under Article 424, Civil Code, hence under that it is prejudicial to the public welfare.
the absolute control of Congress. They are He may veto any particular item or items
outside the commerce of man, and cannot be of an appropriation ordinance, an
disposed of to private persons. (Note: This ordinance or resolution adopting a
case was decided under the aegis of the old development plan and public investment
Local Government Code) (Macasiano v. program, or an ordinance directing the
Diokno, 212 SCRA 464) payment of money or creating liability. In
3. One whose property is not located on the
such a case, the veto shall not affect the
closed section of the street ordered closed by
the Provincial Board of Catanduanes has no items or items which are not objected to.
right to compensation for the closure if he still The veto shall be communicated by the
has reasonable access to the general system local chief executive to the sanggunian
of streets. (Cabrera v. CA, 195 SCRA 314) within 15 days in case of a province, or 10
4. The power to vacate is discretionary on the days in case of a city or municipality;
Sanggunian.xxx when properties are no longer otherwise, the ordinance shall be deemed
intended for public use, the same may be used approved as if he signed it.
or conveyed for any lawful purpose, and may In Delos Reyes v. Sandiganbayan, 1997,
even become patrimonial and thus be the where petitioner was charged with
subject of common contract. (Cebu Oxygen & falsification of a public document for
Acetylene Co. v. Berciles, 66 SCRA 481) approving a resolution which purportedly
5. The City Council has the authority to determine appropriate money to pay for the terminal
whether or not a certain street is still necessary leave of 2 employees when actually no
for public use. (Favis v. City of Baguio, 29 such resolution was passed, the petitioner
SCRA 456) argued that his signature on the resolution
6. The City Mayor of Manila cannot by himself, was merely ministerial. The SC disagreed,
withdraw Padre Rada as a public market. The saying that the grant of the veto power
establishment and maintenance of public accords the Mayor the discretion whether
markets is among the legislative powers of the or not to disapprove the resolution.
City of Manila; hence, the need for joint action
by the Sanggunian and the Mayor. “A sanggunian is a collegial body. Legislation,
which is the principal function and duty of the
7. Local Legislative Power (Exercised by the sanggunian, requires the participation of all its
local sanggunian) members so that they may not only represent

SCHOOL OF LAW
the interests of their respective constituents but disapproval thereof, shall be sufficient ground
also help in the making of decisions by voting for the suspension or dismissal of the official or
upon every question put upon the body. The acts employee concerned.
of only a part of the Sanggunian done outside
the parameters of the legal provisions
aforementioned are legally infirm, highly g. Effectivity.
questionable and are, more importantly, null and Unless otherwise stated in the ordinance or
void. And all such acts cannot be given binding resolution, the same shall take effect after 10
force and effect for they are considered unofficial days from the date a copy thereof is posted in
acts done during an unauthorized session.” a bulletin board at the entrance of the
(Zamora v. Caballero, GR 147767, provincial capitol, or city, municipal or
01.14.2004) barangay hall, and in at least two other
conspicuous places in the local government
[Note: Ordinances enacted by the unit concerned.
sangguniang barangay shall, upon i. The gist of all ordinances with penal
approval by a majority of all its members, sanction shall be published in a
be signed by the punong barangay. The newspaper of general circulation within
latter has no veto power.] the province where the local legislative
body concerned belongs. In the absence
d. Review by Sangguniang Panlalawigan of a newspaper of general circulation
Procedure: Within 3 days after approval, the within the province, posting of such
secretary of the sanguniang panlugsod (in ordinances shall be made in all
component cities) or sangguninang bayan municipalities and cities of the province
shall forward to the sangguniang where the sanggunian of origin is
panglalawigan for review copies of approved situated.
ordinances and resolutions approving the local ii. In the case of highly urbanized and
development plans and public investment independent component cities, the main
programs formulated by the local development features of the ordinance or resolution
councils. The sannguniang panlalawigan shall duly enacted shall, in additions to being
review the same within 30 days; if it finds that posted, be published once in a local
the ordinance or resolution is beyond the newspaper of general circulation within
power conferred upon the sangguniang the city; of there is no such newspaper
panlusgsod or sagguniang bayan concerned, it within the city, then publication shall be
shall declare such ordinance or resolution made in any newspaper of general
invalid in whole or in part. If no action is taken circulation.
within 30 days, the ordinance or resolution is
presumed consisted with law, valid. h. Scope of Local Law Making Authority
1. Sanggunians exercise only
e. Review of Barangay Ordinances delegated legislative powers conferred on
Within 10 days from enactment, the them by Congress. As mere agents, local
sangguniang barangay shall furnish copies of governments are vested with the power of
all barangay ordinances to the sangguniang subordinate legislation. (Magtajas v.
panlungsod or sangguniang bayan for review. Pryce, GR 111097, 07.20.94)
If the reviewing sanggunian finds the barangay 2. It is a fundamental principle that
ordinances inconsistent with law or city or municipal ordinances are inferior in status
municipal ordinances, the sanggunian and subordinate to the laws of the State.
concerned shall, within 30 days form receipt An ordinance in conflict with a state law of
thereof, return the same with its commentsand general character and statewide
recommendations to the sangguniang application is universally held to be
barangay for adjustment, amendment or invalid. The principle is frequently
modification, in which case the effectivity of the expressed in the declaration that
ordinance is suspended until the revision municipal authorities, under a general
called for is effected. If no action is taken by grant of power, cannot adopt ordinances
the sangguniang panlungsod or sangguniang which infringe upon the spirit of a state
bayan within 30 days, the ordinance is law or repugnant to the general policy of
deemed approved. the state. In every power to pass
ordinances given to a municipality, there
f. Enforcement of disapproved ordinances/ is an implied restriction that the
resolutions ordinances shall be consistent with the
Any attempt to enforce an ordinance or general law. (Batangas CATV v. Court of
resolution approving the local development Appeals, GR 138810, 09.20.2004)
plan and public investment program, after the

SCHOOL OF LAW
3. The 1991 Local Government Code ordinances, ie., that it must be in consonance with
provides that local legislative power shall certain well-established and basic principles of a
be exercised by the sanggunian. The substantive nature, to wit: [it does not contravene
legislative acts of the sanggunian in the the Constitution or the law, it is not unfair or
exercise of its lawmaking authority are oppressive. It is not partial or discriminatory. It is
denominated ordinances. For an consistent with public policy, and it is not
ordinance to be valid, it must not only be unreasonable.]
within the corporate powers of the local
government concerned to enact but must 8. Authority Over Police Units
also be passed according to the As may be provided by law. (See Section 6, Article
procedure prescribed by law. (Lagcao v. XVI; PNP Act)
Labra, GR 155746, October 13, 2004)
4. A proviso in an ordinance directing C. Corporate Powers
that the real property tax be based on the
actual amount reflected in the deed of Local government units shall enjoy full autonomy in
conveyance or the prevailing BIR zonal the exercise of their proprietary functions and in the
value is invalid not only because it management of their economic enterprises, subject
mandates an exclusive rule in determining to limitations provided in the Code and other
the fair market value but more so because applicable laws. The corporate powers of local
it departs from the established procedures government units are:
stated in the Local Assessment 7. To have continuous succession in its
Regulations No. 1-92 and unduly corporate name.
interferes with the duties statutorily placed 8. To sue and be sued
upon the local assessor by completely 9. To have and use a corporate seal
dispensing with his analysis and discretion 10. To acquire and convey real or
which the Code and the regulations personal property
require to be exercised. Further, the 11. Power to enter into contracts
charter does not give the local 12. To exercise such other powers as are
government that authority. An ordinance granted to corporations, subject to the
that contravenes any statute is ultra vires limitations provided in the Code and other
and void. (Allied Banking Corporation v. laws.
Quezon City, GR 154126, 10.11.2005)
1. To have continuous succession in its
1999 Bar Question corporate name
Q: Johnny was employed as a driver by the
Municipality of Calumpit, Bulacan. While driving
recklessly a municipal dump truck with its load of 2. To sue and be sued
sand for the repair of municipal streets,Johnny hit a The rule is that suit is commenced by the local
jeepney. Two passengers of the jeepney were executive, upon the authority of the Sanggunian,
killed. The Sangguniang Bayan passed an except when the City Councilors themselves and
ordinance appropriating P300,000 as as representatives of or on behalf of the City, bring
compensation for the heirs of the victims. action to prevent unlawful disbursement of City
1) Is the municipality liable for the negligence of funds. (City Council of Cebu v. Cuison, 47 SCRA
Johnny? 325)
2) Is the municipal ordinance valid? But the municipality cannot be represented by a
Suggested Answer: private attorney. Only the Provincial Fiscal or the
2) The ordinance appropriating P300,000.00 for the Municipal Attorney can represent a province or
municipality in lawsuits. This is mandatory. The
heirs of the victims of Johnny is void. This amounts municipality’s authority to employ a private lawyer is
to appropriating public funds for a private purpose. limited to situations where the Provincial Fiscal is
Under Section 335 of the Local Government Code, disqualified to represent it, and the fact of
no public money shall be appropriated for private disqualification must appear on record. The Fiscal’s
purposes. refusal to represent the municipality is not legal
Alternative Answer: Upon the foregoing justification for employing the services of private
considerations, the municipal ordinance is null and counsel; the municipality should request the
void for being ultra vires. The municipality not being Secretary of Justice to appoint an Acting Provincial
Fiscal in place of the one declined to handle the case
liable to pay compensation to the heirs of the in court. (Municipality of Pililia Rizal v. CA, 233 SCRA
victims, the ordinance is utterly devoid of legal 484)
basis. It would in fact constitute an illegal use or
expenditure of public funds which is a criminal 3. To have and use a corporate seal
offense. What is more, the ordinance does not
meet one of the requisites for validity of municipal

SCHOOL OF LAW
LGUs may continue using, modify or change their authorization by the sanggunian
corporate seal; any change shall be registered with concerned.
the DILG.135 3. The contract must comply with certain
substantive requirements, i.e., when
4. To acquire and convey real or personal expenditure of public fund is to be made,
property there must be an actual appropriation and
a. The LGU may acquire tangible or intangible a certificate of availability of funds.
property, in any manner allowed by law, e.g., 4. The contract must comply with the formal
sale, donation, etc. requirements of written contracts, e.g. the
b. The local government unit may alienate only Statute of Frauds.
patrimonial property, upon proper authority.
c. In the absence of proof that the property was Ultra Vires Contracts. When a contract is entered
acquired through corporate or private funds, into without the compliance with the 1st and 3rd
the presumption is that it came from the State requisites (above), the same is ultra vires and is
upon the creation of municipality and thus, is null and void. Such contract cannot be ratified or
governmental or public property. (Salas v. validated. Ratification of defective municipal
Jarencio, 48 SCRA 734) contracts is possible only when there is non-
d. Town plazas are properties of public dominion; compliance with the second and/or the fourth
they may be occupied temporarily, but only for requirements above. Ratification may either be
the duration of an emergency (Espiritu v. express or implied.
In Quezon City v. Lexber, 2001, it was held that PD
Pangasinan, 102 Phil 866) 1445 does not provide that the absence of
e. A public plaza is beyond the commerce of appropriation ordinance ipso fact makes a contract
man, and cannot be the subject of the lease or entered into by a local government unit null and
other contractual undertaking. And, even void. Public funds may be disbursed not only
assuming the existence of a valid lease of the pursuant to an appropriation law, but also in
pursuance of other specific statutory authority. (In
public plaza or part thereof, the municipal this case, BP 337, the law which was then in force,
resolution effectively terminated the empowered the Mayor to represent the city in its
agreement, for it is settled that the police business transactions and sign all warrants drawn
power cannot be surrendered or bargained on the city treasury and all bonds, contracts and
away through the medium of a contract. obligations of the city. While the Mayor has power to
(Villanueva v. Castaneda, 154 SCRA 142) appropriate funds to support the contracts, neither
f. Public streets or thoroughfares are property for does BP 337 prohibit him from entering into
public use, outside the commerce of man, and contracts unless and until funds are appropriated
therefor. By entering into the two contracts, Mayor
may not be the subject of lease or other Simon did not usurp the city council’s power to
contracts. (Dacanay v. Asistio, 208 SCRA 404) provide for the proper disposal of garbage and to
g. Procurement of supplies is made through appropriate funds therefor. The execution of
competitive public bidding [PD 526], except contracts to address such a need is his statutory
when the amount is minimal (as prescribed in duty, just as it is the city council’s duty to provide for
such service. There is no provision in the law that
PD 526) where a personal canvass of at least prohibits the city mayor form entering into contracts
three responsible merchants in the locality for the public welfare unless and until there is a prior
may be made by the Committee on Awards, or authority form the city council.)
in case of emergency purchases allowed
under PD 526.136 Other Cases:
1. A contract of lease granting fishing privileges is
5. Power to Enter into Contracts a valid and binding contract and cannot be
Requisites of valid municipal contract: impaired by a subsequent resolution setting it
1. The local government units has the aside and grating the privilege to another.
(Unless the subsequent resolution is a police
express, implied or inherent power to
measure, because the exercise of police power
enter into the particular contract. prevails over the non-impairment clause.)
2. The contract is entered in to by the proper (Manantan v. La Union, 82 Phil 844)
department, board, committee, officer or
agent. Unless otherwise provided by the
2. A municipal zoning ordinance, as a police
measure, prevails over the non-impairment
Code, no contract may be entered into by clause. (Ortigas v. Feati Bank, 94 SCRA 533)
the local chief executive on behalf of the
local government unit without prior 3. Breach of contractual obligations by the City of
Manila renders the City liable in damages. The
principle of respondeat superior applies.
135
Authority to negotiate and secure grants. (RA
7160, Section 23) the local chief executive may,
136
Antonio Nachura, Outline on Political Law, 576 (2006) upon authority of the sanggunian, negotiate and

SCHOOL OF LAW
secure financial grants or donations in kind, in persons or damage to property, it is still unclear
support of the basic services and facilities whether liability will accrue when the local
enumerated in Section 17, from local and foreign government unit is engaged in governmental
assistance agencies without necessity of securing functions. Supreme Court decisions, interpreting
clearance or approval form and department legal provisions existing prior to the effectivity of
agency, or office of the national government or the Local Government Code, have come up with
from any higher local government unit; Provided, the following rules on municipal liability for tort:
that projects financed by such grants or assistance 1. If the LGU is engaged in governmental
with national security implications shall be functions, it is not liable;
approved by the national agency concerned. 2. If engaged in proprietary functions; LGU is
liable.
6. To exercise such other powers as are
granted to corporations subject to the 1. If the LGU is engaged in governmental
limitations provided in the Code and other laws. functions, it is not liable.
i. The prosecution of crimes is a
governmental function, and thus, the local
V. Municipal Liability government unit may not be held liable
therefor. (Palafox v. Province of Ilocos
RULE: LGUs and their officials are not exempt Norte, 102 Phil 1186)
from liability for death or injury to persons or ii. In Municipality of San Fernando v. Firme,
damage to property (RA 7160, Section 24) 195 SCRA 692, the municipality was not
held liable for torts committed by a regular
A. Specific Provisions of Law Making LGUs Liable employee, even if the dump truck used
belong to the municipality, inasmuch as
the employee was discharging
1. Article 2189, Civil Code: The Local
governmental (public works) functions.
Government Unit is liable in damages or
injuries suffered by reason of the defective iii. Delivery of sand and gravel for the
condition of roads, streets, bridges, public construction of municipal bridge in the
buildings and other public works. exercise of the governmental capacity of
City of Manila v. Teotico, 22 SCRA 267: The local governments. The municipality is not
City of Manila was held liable for damages when a liable for injuries that arise in the
person fell into an open manhole in the streets of performance of governmental functions.
the city. (La Union v. Firme,195 SCRA 692)
Jimenez v. City of Manila, 150 SCRA 510:
Despite a management and operating contract
Note: For liability to arise under Article 2189 of the
with Asiatic Integrated Corporation over the Sta.
Ana Public Market, the City of Manila (because of Civil Code, ownership of the roads, streets,
Mayor Bagatsing’s admission that the City still has bridges, public buildings and other public works is
control and supervision) is solidarily liable for not a controlling factor, it being sufficient that a
injuries sustained by an individual who stepped on province, city or municipality has control or
a rusted nail while the market was flooded. supervision thereof. On the other hand, a
Guilatco v. City of Dagupan, 171 SCRA 382: municipality’s liability under Section 149 of the
Liability of the City for injuries due to defective 1983 Local Government Code for injuries caused
roads attaches even if the road does not belong to
by its failure to regulate the drilling and excavation
the local government unit, as long as the City
exercises control or supervision over said road. of the ground for the laying of gas, water, sewer,
and other pipes, attaches regardless of whether
2. Article 2180 (6th par.) Civil Code: the drilling or excavation is made on a national or
The State is responsible when it acts through a municipal road, for as long as the same is within its
special agent. territorial jurisdiction. (Municipality of San Juan v.
3. Article 34, Civil Code: The local CA, GR 121920, 08.09.2005)
government unit is subsidiarily liable for
damages suffered by a person by reason of 2. If engaged in proprietary functions, LGU is
the failure or refusal of a member of the police liable
force to render aid and protection in case of i. Operation of a ferry service is a
danger to life and property. proprietary function. The municipality is
negligent and thus liable for having
B. Liability for Tort awarded the franchise to operate ferry
service to another notwithstanding the
Despite the clear language of Section 24, RA 7160, previous grant of the franchise to the
that local government units and their officials are plaintiff. (Mendoza v. De Leon, 33 Phil
not exempt form liability for death or injury to 508)

SCHOOL OF LAW
ii. Holding of town fiesta is a proprietary injure individuals rather than discharge a
public duty, they are personally liable.
function. The Municipality of Malasigue, Correa v. CFI Bulacan, 92 SCRA 312, the
Pangasinan was held liable for the death Mayor who, without just cause, illegally
of a member of the zarzuela group when dismissed an employee, acted with grave
the stage collapsed, under the principle of abuse of authority, and he not the Municipality
respondeat superior. [Note: The Municipal of Norzagaray, Bulacan, is personally liable.
Council managed the town fiesta. While This liability attaches even if, at the time of
the municipality was held liable, the execution, he is no longer the Mayor.
Salcedo v. CA, 81 SCRA 408, the Mayor, for
councilors themselves are not liable for
his persistent defiance of the order of the CSC
the negligence of their employees or to reinstate the employee, was held personally
agents.] (Torio v. Fontanilla, 85 SCRA liable for the payment of back salaries.
599) Pilar v. Sangguniang Bayan of Dasol, 128
iii. The operation of a public cemetery is a SCRA 173, the Mayor was held liable for
exemplary and corrective damages for vetoing,
proprietary function of the City of Manila.
without just cause, the resolution of the
The City is liable for the tortuous acts of Sangguniang Bayan appropriating the salary of
its employees, under the principle of petitioner.
respondeat superior. Nemenzo v. Sabillano, 25 SCRA 1, Mayor
iv. Maintenance of cemeteries is in the Sabillano was adjudged personally liable for
payment of back salaries of a policeman who
exercise of the proprietary nature of local
was illegally dismissed. The Mayor cannot hide
governments. The City is liable for breach behind the mantle of his official capacity and
of agreement. (City of Manila v. IAC, 179 pass the liability to the Muncipality of which he
SCRA 428) is Mayor.
v. Liability for illegal dismissal of an San Luis v. CA, 1989, Laguna Governor San
Luis was held personally liable for moral
employee. It was held that inasmuch as
damages for refusing to reinstate Berroya,
there is no finding that malice or bad faith quarry superintendent, despite the ruling of the
attended the illegal dismissal and refusal CSC as affirmed by the Office of the President.
to reinstate respondent Gentallan by her
superior officers, the latter cannot be held C. Liability for Violation of Law
personally accountable for her back
salaries. The municipal government 1. Where the Municipality closed a part
therefore, should disburse funds to of a municipal street without indemnifying the
answer for her claims (back salaries and person prejudiced thereby, the Municipality
other monetary benefits form the time of can be held liable for damages. (Abella v,
her illegal dismissal up to her Municipality of Naga, 90 Phil 385)
reinstatement) resulting from dismissal. 2. Lack of funds does not excuse the
In City of Cebu v. Judge Piccio, 110 Phil Municipality from paying the statutory
558, it was held that a municipal minimum wage of P120 a month to its
corporation, whether or not included in the employees. The payment of the minimum
complaint for recovery of back salaries
due to wrongful removal from office, is
wage is a mandatory statutory obligation of the
liable. Municipality. (Racho v. Municipality of Ilagan,
Isabela)
vi. Local officials may also be held 3. The Municipality of Bunawan, Agusan
personally liable. del Sur, through the Mayor was held in
City of Angeles v. CA, 261 SCRA 90, where the
contempt and fined P1,000.00 with a warning,
city officials ordered the construction of a drug
rehabilitation center on the open space donate because of the refusal of the Mayor to abide
by the subdivision owner in violation of PD by a TRO issued by the Court.
1216, the cost of the demolition of the drug
rehabilitation center should be borne by the cit D. Liability for Contracts
officials who ordered the construction because
they acted beyond the scope of their 1. Rule: A municipal corporation, like an ordinary
authority and with evident bad faith. person, is liable on a contract it enters into,
(However, since the city mayor and the provided that the contract is intra vires (If the
sanggunian members were sued in their official contract is ultra vires, the municipal
capacity, they cannot be held personally liable corporation is not liable.)
without giving them their day in court.) 2. A private individual who deals with a
Rama v. CA, 148 SCRA 496, the Provincial municipal corporation is imputed constructive
governor and the members of the Provincial
Board where held liable in damages in their
knowledge of the extent of the power or
personal capacity arising form the illegal act of authority of the municipal corporation to enter
dismissing employees in bad faith. Where into contracts.
they act maliciously and wantonly and

SCHOOL OF LAW
3. Ordinarily, therefore, the doctrine of estoppel cannot be represented by a private

does not lie against the municipal corporation. attorney. Only the Provincial Fiscal or
the Muncipal Attorney can represent a
4. The doctrine of implied municipal liability: province of municipality in lawsuits. This
A municipality may become obligated upon an is mandatory. The municipality’s
implied contact to pay the reasonable value of authority to employ a private lawyer is
the benefits accepted or appropriated by it as limited to situations where the Provincial
to which it has the general power to contract. Fiscal is disqualified to represent it, and
(Province of Cebu v. IAC, 147 SCRA 447) The the fact of disqualification must appear
doctrine applies to all cases where money or on record. The Fiscal’s refusal to
other property of a party is received under represent the municipality is not a legal
such circumstances that the general law, justification for employing the services
independent of an express contract, implies an of private counsel; the municipality
obligation to do justice with respect to the should request the Secretary of Justice
same. to appoint an Acting Provincial Fiscals
i. It was held that the Province of Cebu in place of the one who declines to
cannot set up the plea that the contract handle the case in court.
was ultra vires and still retain benefits v. But if the suit is filed against a local
thereunder.xxx having regarded the official which could result in personal
contract as valid for purposes of reaping liability of the said public official, the
benefits, the Province of Cebu is latter may engage the services of
estopped to question its validity for the private counsel. (Mancenido v. CA,
purpose of denying answerability. 2000)
(Province of Cebu v. IAC, 147 SCRA
447) VI. Local Officials
ii. Q: Does Province of Cebu v. IAC,
reverse De Guia v. Auditor General A. Nature of Office (Agra Notes)
where the Supreme Court held that the
engagement of the services of Atty. De 1. A local chief executive is considered an
Guia by the Municipal Council of accountable public officer as defined under the
Mondragon, Northern Samar was ulra Revised Penal Code since he/ she, in the
vires, because a municipality can discharge of his/ her office, receives money or
engage the services of a private lawyer property of the government which he/ she is duty
only if the Provincial Fiscal is bound to account for. Thus, a local chief executive
disqualified from appearing as counsel is guilty of malversation upon finding that he/ she
for the municipality? received public funds and was unable to
A: Apparently not, because in Province satisfactorily account for the same. (Tanggote v.
of Cebu v. IAC, the Province could not Sandiganbayan, GR 103584, 09.02.94)
possibly engage the legal services of
the Provincial Fiscal, the latter having 2. A local chief executive is mandated to abide by
taken a position adverse to the interest Article I of Section 444(b)(x) of 1991 Local
of the Province for having priorly Government Code which directs executive officials
rendered an opinion that the donation and employees of the municipality to faithfully
was valid. discharge their duties and functions as provided
iii. Estoppel cannot be applied against a by law. (Velasco v. Sandiganbayan, GR 160991,
municipal corporation in order to 02.28.2005)
validate a contract which the municipal
corporation has no power to make or 3. The 1987 Constitution provides that no
which it is authorized to make only elective official shall be eligible for appointment or
under prescribed limitations or in a designation in any capacity to any other public
prescribed mode or manner—even if office or position during his/ her tenure in order
the municipal corporation has accepted that they may serve full-time with dedication.
benefits therunder. In San Diego v. Thus, a local chief executive cannot be appointed
Municipality of Naujan, the SC rejected as chairperson of the Subic Bay Metropolitan
the doctrine of estoppels, because to Authority since such office is not an ex officio post
apply the principle would enable the or attached to the office of the local chief
municipality to do indirectly what it executive. (Flores v. Drilon, GR 104732, 06.22.93)
cannot do directly.
iv. In Muncipality of Pililia Rizal v. CA, 4. The municipal mayor, being the appointing
where the SC said that the municipality authority, is the real party in interest to challenge

SCHOOL OF LAW
the Civil Service Commission's disapproval of the 3. Purchase any real estate or other
appointment of his/ her appointee. The CSC's property forfeited in favor of the local
disapproval of an appointment is a challenge to government unit for unpaid taxes or
the exercise of the appointing authority's assessment, or by virtue of a legal process at
discretion. The appointing authority must have the the instance of the local government unit;
right to contest the disapproval. (Dagadag v. 4. Be a surety of any person contracting
Tongnawa, GR 161166-67, 02.03.2005) or doing business with the local government
unit for which a surety is required; and
5. The municipal mayor, not the municipality 5. Possess or use any public property of
alone must be impleaded in a petition assailing the local government unit for private purposes.
the dismissal of an employee whom he/she 6. The prohibitions and inhibitions
appointed even if the mayor acted in his/her prescribed in RA 6713 also apply.
official capacity when he dismissed the
respondent. If not impleaded, he/she cannot be Practice of Profession (Section 90, RA 7160)
compelled to abide by and comply with its 1. All governors, city and municipal mayors are
decision, as the same would not be binding on prohibited form practicing their profession or
him/her. (Civil Service Commission v. Sebastian, engaging in any occupation other than the
GR 161733, 10.11.2005) exercise of their function as local chief
executives.
2. Sanggunian members may practice their
6. A proclaimed candidate who was later on profession, engage in any occupation, or teach
disqualified has no legal personality to institute an in schools except during session hours,
action seeking to nullify a decision of the Civil Provided, that those who are also members of
Service Commission concerning the dismissal of the Bar shall not (i) appear as counsel before
municipal employees since he/ she is not a real any court in any civil case wherein the local
party in interest. (Miranda v. Carreon, GR 143540, government unit or any office, agency or
04.11.2003) instrumentality of the government is the
adverse party; (ii) appear as counsel in any
7. The city treasurer is the proper disciplining criminal case wherein an officer or employee
authority in the case of a local revenue officer, the of the national or local government is accused
former being the head of agency. (Garcia v. of an offense committed in relation to his
Pajaro, GR 141199, 07.05.2002) office; (iii) collect any fee for their appearance
in administrative proceedings involving the
8. A punong barangay cannot terminate the LGU of which he is an official; and (iv) use
services of the barangay treasurer and secretary property and personnel of the government
without the concurrence of sangguniang barangay except when the sanggunian member
since this is explicitly required under Section 389 concerned is defending the interest of the
of the 1991 Local Government Code. (Alquizola v. government.
It was held that by appearing as counsel for
Ocol, GR 132413, 08.27.99)
dismissed employees, City Councilor Javellana
violated the prohibition against engaging in
B. Provisions Applicable to Elective and Appointive private practice if such practice represents
Local Officials interests adverse to the government. (Javellana
v. DILG, 212 SCRA 475)
Prohibited Business and Pecuniary Interest (RA 3. Doctors of medicine may practice their
7160, Section 89): It shall be unlawful for any local profession even during official hours of work
government official or employee, directly or only on occasion of emergency, provided they
indirectly to: do not derive monetary compensation
1. Engage in any business transaction therefrom.
with the local government unit in which he is It was held that DILG Memorandum Circular
an official or employee or over which he has No. 90-81 does not discriminate against
lawyers and doctors; it applies to all provincial
the power of supervision, or with any of its and municipal officials. (Javellana v. DILG, 212
authorized boards, officials, agents or SCRA 475)
attorneys, whereby money is to be paid, or
property or any other thing of value is to be Prohibition Against Appointment (RA 7160,
transferred, directly or indirectly, out of the Section 94)
resources of the local government unit to such 1. No elective or appointive local official shall be
person or firm; eligible for appointment or designation in any
2. Hold such interests in any cockpit or capacity to any public office or position during
other games licensed by the local government his tenure. Unless otherwise allowed by law or
unit; by the primary functions of his office, no local
official shall hold any other office or

SCHOOL OF LAW
employment in the government or any citizenship is required to ensure that no

subdivision, agency or instrumentality thereof, alien shall govern our people. An official
including GOCCs or their subsidiaries. (Relate begins to govern only upon his
proclamation and on the day that his
this to Section 7, Article IX-B)
term begins. Since Frivaldo took his oath
2. Except for losing candidates in barangay of allegiance the day that his term
election, no candidate who lost in any election begins. Since Frivaldo took his oath of
shall, within one year after such election, be allegiance on June 30, 1995, when his
appointed to any office in the government of application for repatriation was granted
GOCC or their subsidiaries. (Relate this to by the Sepcial Committee on
Section 6, Article IX-B) Naturalization created under PD 825, he
was therefore qualified to be proclaimed.
Besides, Section 30 of the LGC speaks
C. Elective Local Officials
of qualifications of elective officials, not
Qualifications of candidates. Furthermore, repatriation
Disqualifications retroacts to the date of the filing of his
Manner of Election application on August 17, 1994. (Frivaldo
Date of Election v. COMELEC, 257 SCRA 727)
Term of Office ii. In Altajeros v. COMELEC,
Rules of Succession 2004, the petitioner took his oath of
Compensation allegiance on December 17, 1997, but
Recall his Certificate of Repatriation was
Resignation registered with the Civil Registry of
Grievance Procedure Makati City only after 6 years, or on
February 18, 2004, and with the Bureau
Discipline of Immigration on March 1, 2004, thus
Cases on Offenses (Agra Notes) completing the requirements for
Cases on Procedure (Agra Notes) repatriation only after he filed his
Complaints certificate of candidacy, but before the
Preventive Suspension election. On the issue of whether he was
Penalty (Agra Notes) qualified to run for Mayor of San Jacinto,
Administrative Appeal Masabate, the Court applied the ruling in
Execution Pending Appeal Frivaldo, that repatriation retroacts to the
date of filing of the application for
Jurisdiction of Sandiganbayan (Agra Notes) repatriation. Petitioner was, therefore,
Effect of Re-election qualified to run for Mayor.
iii. Petitioner who was over 21
1. Qualifications (RA 7160, Section 39) years of age on the day of the election
1. Citizen of the Philippines; was ordered disqualified by the SC when
2. Registered Voter in the barangay, the latter rejected the contention of the
municipality, city or province, or in the petitioner that she was qualified because
she was less than 22 years old. The
case of a member of the sangguniang
phrase “not more than 21 years old” is
panlalawigan, panlungsod or bayan, the not equivalent to “less than 22 years old.”
district where he intends to be elected; (Garvida v. Sales, 271 SCRA 767)
3. A resident therein for at least 1 year
immediately preceding the election’ 2. Disqualifications (RA 7160, Section 40)
4. Able to read and write Filipino or any other The following are disqualified from running for
local language or dialect; any elective local position:
5. On the election day, must be at least 23 1. Those sentenced by final judgment for an
years of age [for governor, vice-governor, offense involving moral turpitude or for an
member of the sangguniang offense punishable by one year or more of
panlalawigan, mayor, vice mayor, or imprisonment, within two years after
member of the ssangguniang panlungsd serving sentence;
of highly urbanized cities]; 21 years of age 2. Those removed from office as a result of
[for mayor or vice mayor of independent an administrative case;
component cities, component cities, or 3. Those convicted by final judgment for
munciplaities]; 18 years of age [for violating the oath of allegiance to the
member of the sangguniang panlungsod Republic.
or sagguniang bayan, or punong
barangay or member of the sangguniang 4. Those with dual citizenship137;
barangay], or at least 15 but not more 5. Fugitives from justice in criminal or non-
than 21 years of age [candidates for the political cases here or abroad;
sangguniang kabataan] 6. Permanent residents in a foreign country
i. The LGC does not specify any or those who have acquired the right to
particular date when the candidate must
137
posses Filipino citizenship. Philippine Interpreted in the case of Mercado v. Manzano, 307 SCRA 630).

SCHOOL OF LAW
reside abroad and continue to avail of the with mere dual citizenship do not fall
same right after the effectivity of the Code; under the disqualification.
7. The insane or feeble-minded.
3. Manner of Election (RA 7160, Section 41)
i. Violation of the Anti-Fencing Law involves 1. The governor, vice-governor, city or
moral turpitude, and the only legal effect municipal mayor, city or municipal vice-
of probation is to suspend the mayor and punong barangay shall be
implementation of the sentence. Thus, the
disqualification still subsists. (De la Torre
elected at large in their respective units.
v. COMELEC, 258 SCRA 483) Likewise, The sangguniang kabataan chairman
violation of BP 22 is a crime involving shall be elected by the registered voters of
moral turpitude, because the accused the katipunan ng kabataan.
knows at the time of the issuance of the 2. The regular members of the sangguniang
check that he does not have sufficient
funds in , or credit with, the drawee bank
panlalawigan, panlungsod and bayan
for payment of the check in full upon shall be elected by district as may be
presentment. (Villaber v. COMELEC, provided by law. The presidents of the
2001) leagues of sanggunian members of
ii. Article 73 of the Rules Implementing RA component cities and municipalities shall
7160, to the extent that it confines the serve as ex officio members of the
term “fugitive from justice” to refer only sanffuniang panlalawigan concerned. The
to a person “who has been convicted by presidents of the liga ng mga barangay
final judgment” is an inordinate an undue and the pederasyon ng mga sangguniang
circumscription of the law. The term kabataan elected by their respective
includes not only those who flee after chapters, shall serve ex officio members
conviction to avoid punishment, but of the sangguniang panlalawigan,
likewise those who, after being charged,
flee to avoid prosecution”.
panlungsod or bayan.
In Rodriguez v. COMELEC, 259 SCRA Article X, Section 9. Legislative bodies of local
296, it was held that Rodriuez cannot be governments shall have sectoral representation
considered a “fugitive from justice”, as may be prescribed by law.
because his arrival in the Philippines form 3. In addition, there shall be one sectoral
the US preceded by at least five months representative from the women, one from
the filing of the felony complaint in the Los the workers, and one from any of the
Angeles Court and the issuance of the following sectors: urban poor, indigenous
warrant for his arrest by the same foreign
cultural communities, disabled persons, or
court.
iii. Section 40, RA 7160, cannot apply any other sector as may be determined by
retroactively. Thus, an elective local sanggunian concerned within 90 days
official who was removed from office as a prior to the holding of the next local
result of an administrative case prior to elections as may be provided by law. The
January 1, 1992 (date of LGC’s effectivity) Comelec shall promulgate the rules and
is not disqualified form running for elective regulations to effectively provide for the
local office (Grego v. COMELEC election of such sectoral representatives.
In Reyes v. COMELEC, 254 SCRA 514,
the SC ruled that the petitioner, a
Municipal Mayor who had been ordered 4. Date of Election
removed from office by the Sanggunian Every three years on the second Monday of May,
Panlalawigan, was disqualified, even as unless otherwise provided by law.
he alleged that the decision was not yet
final because he had not yet received a 5. Term of Office
copy of the decision. It was shown, Three years, starting from noon of June 30, 1992,
however, that he merely refuse to accept
or such date as may be provided by law, except
delivery of the copy of the decision.
that of elective barangay officials. No local elective
iv. In Mercado v. Manzano, 307 SCRA 630, official shall serve for more than three consecutive
the SC clarified the “dual citizenship” terms in the same position. The term of office of
disqualification, and reconciled the same
barangay officials and members of the
with Section 5, Article IV of the
COnsitution on “dual allegiance”. sangguniang kabataan shall be for five (5) years,
Recognizing situation in which a Filipino which shall begin after the regular election of
citizen may, without performing any act barangay officials on the second Monday of May,
and as an involuntary consequence of the 1997. (RA 8524)
conflicting laws of different countries, be
also a citizen of another State, the Court Article X, Section 8. The term of office of elective local
explained that “dual citizenship”, as a officials, except barangay officials, which shall be
disqualification, must refer to citizens with determined by law, shall be three years and no such
“dual allegiance”. Consequently, persons official shall serve for more than three consecutive terms.

SCHOOL OF LAW
Voluntary renunciation of the office for any length of time 8. Suppose he is twice elected after that term, is he
shall not be considered as an interruption in the continuity qualified to run again in the next election?
of his service for the full term for which he was elected. A: Yes, because he was not elected to the office of the
mayor in the first terms but simply found himself thrust
Q: Due to incumbent mayor’s death, the vice-mayor into it by operation of law. Neither had he served the
succeeds to the office of mayor by operation of law and full term because he only continued the service,
serves the remainder of the mayor’s term. Is he interrupted by the death, of the deceased mayor.
considered to have served a term in that office for the
purpose of the three-term limit? Current Rules on Term Limits:
A: No. Section of Article X embodies two policies, viz.: 1. Lonzanida was elected Mayor to a third term. His
(1)to prevent political dynasties and election was challenged, however, and he lost and had
(2) to enhance the freedom of choice of the people. The to abandon his office. He could still run in the next
term limit of elective officials must be taken to refer election year because he did not serve three full
to the right to be elected as well as the right to serve terms.139
in the same elective position. Consequently, it is not 2. Talaga lost when he ran for a third term. The
enough that an individual served three consecutive terms winner, however, lost to him in a recall election and he
in an elective local office, he must also been elected to served the rest of the former winner’s term. At the end
the same position for the same number of times before of this term he could run again because he had not
the disqualification can apply.138 served three full terms.140
3. Hagedorn served as Mayor for three full terms. In
Q: When will the three-limit of local elective officials- the first year after the end of his third term, he ran in a
except barangay officials- apply? recall election. Qualified? Yes, because between the
A: Only when these two conditions concur: end of his third term and the recall election there was
an interruption thus breaking the successiveness.141
1. The local official concerned has been elected 4. During the third term of a Mayor of a municipality,
three consecutive times; and the municipality was converted to a city. The Mayor
2. He has fully served three consecutive terms. was allowed to finish the third term. Could he run as
(Borja v. COMELEC, 1998) Mayor of the city in the next election? No. There has
been no change in territory nor in constituency. Thus
SC devised scenarios to explain the the three term limit applies.142
5. When a municipal councilor assumed the office of
application of Article X, Section 8 in Borja v.
Vice-Mayor respondent’s assumption of office as vice-
COMELEC: mayor in January 2004 by operation of law, it was an
Q: Suppose A is a vice-mayor who becomes mayor by involuntary severance from his office as municipal
reason of the death of the incumbent. Six months councilor resulting in an interruption in the service of
before the next election, he resigns and is twice his 2001-2004 term. He did not serve the full 2001-
elected thereafter. Can he run again for mayor in the 2004 term.143
next election? 6. After serving a full three year term, Alegre was
A: Yes, because although he has already first served declared to have been invalidly elected. Should that
as mayor by succession and subsequently resigned term be counted for purposes of the three term limit?
from office before the full term expired, he has not Yes. The decision declaring him not elected is of no
actually served there full terms in all for the purpose of practical consequence because he has already
applying the term limit. Under Art. X, Section 8, served.144
voluntary renunciation of office is not considered as an
interruption in the continuity of his service for the full
Q: RA 7160, Section 43-c limits the term of office of
term only if the term is one “for which he was elected.”
barangay official to three years. Petitioners argue that
Since A is only completing the service of the term for
Section 8, Article X “by excepting barangay officials
which the deceased and not he was elected, A cannot
whose ‘terms shall be determined law’ from the general
be considered to have completed one term. His
provision fixing the term of ‘elective local officials’ at three
resignation constitutes an interruption of the full term.
years,” impliedly prohibits Congress form legislating a
(Borja v. COMELEC, 1998)
three-year term for such officers. Thus, Section 43-C of
RA 7160 is unconstitutional. Decide.
Q: Suppose B is elected mayor and, during his term,
A: The Constitution did not expressly prohibit Congress
he is twice suspended for misconduct for a total of 1
from fixing any term of office of barangay officials. (David
year. If he is twice re-elected after that, can he run for
v. COMELEC, 1997)
one more term in the next election?
A: Yes, because he has served only two-full terms
Q: How long then is the term of barangay officials?
successively. (Borja v. COMELEC, 1998) Bernas: It is
submitted that this is not correct. Suspension does not
interrupt his term nor in fact his tenure because the
139
office still belongs to him during suspension. Lonzanida v Comelec, G.R. No. 135150. July 28, 1999.
Moreover, the Court’s solution rewards wrong doing. 140
Adormeo v Comelec, G.R. No. 147927. February 4, 2002.
141
Socrates v Comelec, G.R. No. 154512. November 12, 2002.
Q: The case of vice-mayor C who becomes mayor by 142
succession involves a total failure of the two conditions Latasa v. Comelec. G.R. No. 154829. December 10, 2003.
143
to concur for the purpose of applying Article X, Section Montebon v COMELEC, G.R. No. 180444, April 8, 2008.
144
Ong v. Alegre, G.R. No. 163295, January 23, 2006; Rivera III v.
Morales, GR 167591, May 9, 2007.
138
Borja v. COMELEC, 1998

SCHOOL OF LAW
A: As may be determined by law. And the Local sanggunian members shall be resolved by
Government Code, Section 43-c limits their term to three drawing of lots.]
years.
4. Sangguniang member, where
2006 Bar Question. Law fixing the terms of automatic succession provided above do not
local elective officials. apply: filled by appointment by the President,
Q:State whether or not the law is constitutional. through the Executive Secretary in the case of
Explain briefly. the Sanggunian Panlalawigan or sanggunian
“A law fixing the terms of local elective officials, panlungsod of highly urbanized cities and
other than barangay officials, to 6 years.” independent component cities; by the
Suggested Answer: The law is invalid. Under Governor in the case of the sangguniang
Article X, Section 8 of the 1987 Constitution, "the panlungsod of component cities and
term of office of elective local officials, except sangguniang bayan; and by the city or
barangay officials, which shall be determined by municipality mayor in the case of sangguniang
law, shall be three years and no such official shall barangay upon recommendation of the
serve for more than three consecutive terms." The sangguniang barangay concerned.
law clearly goes against the aforesaid constitutional However, except for the sangguniang
requirement of three year terms for local officials barangay, only the nominee of the political
except for barangay officials. party under which the sanggunian member
concerned had been elected and whose
6. Rules of Succession (RA 7160, Sections 444- elevation to the position next higher in rank
46) created the last vacancy in the sanggunian
Permanent Vacancies- A permanent vacancy shall be appointed.
arises when an elective local officials fills higher A nomination and a certificate of membership
vacant office, refuses to assume office, fails to of the appointee from the highest official of the
qualify, dies, is removed from office, voluntarily political party concerned are conditions sine
resigns, or is permanently incapacitated to qua non, and any appointment without such
discharge the functions of his office. If a permanent nomination and certificate shall be null and
vacancy occurs in the office of: void and shall be a ground for administrative
1. Governor or mayor, the vice-governor action against the official concerned.
or vice-mayor concerned shall become the In case the permanent vacancy is caused by a
governor or mayor. sangguniang member who does not belong to
any political party, the local chief executive
2. Vice-governor or vice-mayor, the shall upon the recommendation of the
highest ranking sanggunian member or, in sanggunian concerned, appoint a qualified
case of permanent inability, the second person to fill the vacancy.
highest ranking sanggunian member, and
subsequent vacancies shall be filled
a) The reason behind the right given to a
political party to nominate a replacement when
automatically by the other sanggunian a permanent vacancy occurs in the Sanggunian
members according to their ranking. Ranking is to maintain the party representation as willed
in the sanggunian shall be determined on the by the people in the election. (In this case, with
basis of the proportion of votes obtained by the elevation of Tamayo, who belonged to
each winning candidate to the total number of Reforma-LM to the position of Vice Mayor, a
registered voters in each district in the vacancy occurred in the Sangguninan that
immediately preceding election. should be filled up with someone who belongs
to the political party of Tamayo. Otherwise,
a) In Victoria v. Comelec, 229 SXRA 269, Reforma-LM’s representation in the
the SC rejected the contention that this Sanggunian would be diminished. To argue
provision be interpreted by factoring the that the vacancy created was that formerlyheld
number of the voters who actually voted, by the 8th Sanggunian member, a Lakas-
because the law is clear and must be applied— NUCD-Kampi member, would result in the
and the courts may not speculate as the increase in that party’s representation in the
probable intent of the legislature apart form the Sanggunian at the expense of Reforma-LM.
words used in the law. (Navarro v. CA, 2001)
b) In Menzon v. Petilla, 197 SCRA 251, it b) The appointment to any vacancy caused
was held that this mode of succession for by the cessation from office of a member of the
permanent vacancies may also be observed in sangguniang barangay must be made by the
the case of temporary vacancies in the same mayor upon the recommendation of the
office. sanggunian. The recommendation by the
3. Punong barangay, the highest- sanggunian takes the place of nomination by
the political party (since members of the
ranking sanggunian barangay member, or in sangguniang barangay are prohibited to have
case of his permanent inability, the second party affiliations) and is considered as a
highest ranking barangay member. [Note: A tie condition sine qua non for the validity of the
between or among the highest ranking appointment.

SCHOOL OF LAW
In Farinas v. Barba, 256 SCRA 396, where appointments. There is no law that prohibits
vacancy to be filled was that of a member of local elective officials from making
the Sangguniang Bayan who did not belong to appointments during the last days of his/ her
any political party, the SC held that neither the
tenure. (De Rama v. Court of Appeals, 353
petitioner nor the respondent was validly
appointed. Not the petitioner, because although SCRA 94)
he was appointed by the Governor, he was not In accordance with Section 44 of the 1991
recommended by the Sanggunian Bayan. Local Government Code, the highest ranking
Neither the respondent, because although he sangguniang barangay member, not the
was recommended by the Sanggunian Bayan, second placer, who should become the
he was not appointed by the Governor. punong barangay in case the winning
5. Vacancy in the representation of the candidate is ineligible. (Bautista v. Comelec,
youth and the barangay in the sanggunian: GR 154796, 10.23.2003; Toral Kare v.
filled automatically by the official next in rank Comelec, GR 157526/ 157527, 04.28.2004)
of the organization concerned.
In Garvida v. Sales, 271 SCRA 767, the SC Temporary Vacancies
pointed out that under the LGC, the member of
the Sangguniang Kabataan who obtained the 1. When the governor, city or municipal
next highest number of votes shall succeed the mayor, or punong barangay is temporarily
Chairman if the latter refuses to assume office, incapacitated to perform his duties for physical
fails to qualify, is convicted of a crime, voluntary or legal reasons such as, but not limited to,
resigns, dies is permanently incapacitated, is leave of absence, travel abroad and
removed from office, or has been absent
suspension form office, the vice governor, city
without leave for more than three consecutive
months. Ineligibility is not one of causes or municipal vice mayor, or the highest ranking
enumerated in the Local Government Code. sanggunian barangay member shall
Thus, to avoid hiatus in the office of the automatically exercise the powers and perform
Chairman, the vacancy should be filled by the the duties and functions of the local chief
members of the Sangguniang Kabataan executive concerned, except the power to
chosen by the incumbent SK members by appoint, suspend, or dismiss employees which
simple majority from among themselves. can be exercised only if the period of
temporary incapacity exceeds thirty working
Other Cases on “Succession” days. (Said temporary incapacity shall
1. Vice-governor acting as governor terminate upon submission to the appropriate
cannot continue to preside over sangguniang sanggunian of a written declaration that he has
panlalawigan sessions while acting as such. reported back to office. In case the temporary
(Gamboa v. Aguirre, GR 134213, 07.20.99) incapacity is due to legal causes, the local
2. Under Section 444(b)(1)(xiv) of the chief executive concerned shall also submit
1991 Local Government Code, applications for necessary documents showing that the legal
leave of municipal officials and employees causes no longer exists.)
appointed by the Mayor shall be acted upon by 2. When the local chief executive is
him/her, not by the Acting Vice-Mayor. (Civil travelling within the country but outside this
Service Commission v. Sebastian, GR territorial jurisdiction for a period not exceeding
161733, 10.11.2005) three consecutive days, he may designate in
writing the officer-in-charge of the said office.
3. In case of vacancy in the Such authorization shall specify the powers
Sangguniang Bayan, the nominee of the party and functions that the local official shall
under which the member concerned was exercise in the absence of the local chief
elected and whose elevation to the higher executive, except the power to appoint,
position created the last vacancy will be suspend or dismiss employees. (If the local
appointed. The last vacancy refers to that chief executive fails or refuses to issue such
created by the elevation of the councilor as authorization, the vice-governor, city or
vice-mayor. The reason behind the rule is to municipal vice-mayor, or the highest ranking
maintain party representation. (Navarro v. sanggunian barangay member, as the case
Court of Appeals, GR 141307, 03.28.2001) may be , shall have the right to assume the
The ranking in the sanggunian shall be powers, duties and functions of the said office
determined on basis of the proportion of the on the fourth day of absence of the local chief
votes obtained by each winning candidate to executive, except the power to appoint.,
the total number of registered voters. The law suspend or dismiss employees.)
does not provide that the number of votes who
actually voted must be factored in the ranking. 7. Compensation (RA 7160, Section 81)
(Victoria v. Comelec, GR 109005, 01.10.94) The compensation of local officials and personnel
4. The prohibition on midnight shall be determined by the sanggunian concerned,
appointments only applies to presidential subject to the provisions of RA 6758

SCHOOL OF LAW
[Compensation and Position Classification Act of v. Comelec, GR 123169, 11.04.96; Jariol v.

1989). The elective barangay officials shall be Comelec, GR 127456, 03.20.97)
entitled to receive honoraria, allowances and other 10. A party aggrieved by the issuance of
emoluments as may be provided by law or Comelec en banc resolution (calendar of
barangay, municipal or city ordinance, but in no activities for recall election) when he/ she had
case less than 1,000 per month for the punong sufficient time, must file a motion for
barangay and P600.00 for the sanggunian reconsideration with Comelec en banc.
members. (Jariol v. Comelec, GR 127456, 03.20.97)
Elective officials shall be entitled to the same leave
privileges as those enjoyed by appointive local
officials, including the cumulation and commutation 9. Resignation (RA 7160, Section 82)
thereof. Resignation of elective local officials shall be
deemed effective only upon acceptance by the
8. Recall following authorities:
Recall is the termination of official relationship of an a) The President, in case of governors,
elective official for loss of confidence prior to the vice-governors, and mayors and vice-mayors
expiration of his term through the will of electorate. of highly urbanized cities and independent
component cities.
1. Initiating the process of recall through
b) The governor, in the case of
the convening of the Preparatory Recall
municipal mayors and vice-mayors, city
Assembly (PRA) is constitutional. The
mayors and vice-mayors of component cities.
Constitution empowers Congress to provide
c) The sanggunian concerned, in case
effective means of recall. The adoption of the
of sanggunian members.
PRA resolution is not the recall itself. (Garcia
d) The city or municipal mayor, in the
v. Comelec, GR 111511, 10.05.93)
case of barangay officials.
2. Loss of confidence as a ground for [Note: The resignation shall be deemed accepted if
recall is a political question. (Garcia v. not acted upon by the authority concerned within
Comelec, GR 111511, 10.05.93) 15 working days from receipt thereof. Irrevocable
3. Another resolution by the Preparatory resignations by sanggunian members shall be
Recall Assembly must be adopted to initiate deemed accepted upon presentation before an
the recall of a vice-mayor who, before the open session of the sanggunian concerned and
recall election, became the mayor. (Afiado v. duly entered in its records, except where the
Comelec, GR 141787, 09.18.2000) sanggunian members are subject to recall elections
or to cases where existing laws prescribe the
4. The Preparatory Recall Assembly is
manner of acting upon such resignations.]
distinct from liga ng mga barangay. Barangay
officials who participated in recall did so not
10. Grievance Procedure (RA 7160, Section 83)
as members of the liga but as PRA members.
The local chief executive shall establish a
(Malonzo v. Comelec, GR 127066, 03.11.97)
procedure to inquire into, act upon, resolve or
5. Notice to all members of the settle complaints and grievances presented by
Preparatory Recall Assembly is a mandatory local government employees.
requirement. (Garcia v. Comelec, GR
111511, 10.05.93) 11. Discipline (RA 7160, Sections 60-68)
6. Notice may be served by president of Grounds for Disciplinary Action:
the liga ng mga barangay who is also a An elective local official may be disciplined,
member of the Preparatory Recall Assembly. suspended, or removed from office on any of the
(Malonzo v. Comelec, GR 127066, 03.11.97) following grounds:
7. Service of notice may be effected 1. Disloyalty to the republic of the
under any of the modes of service of Philippines.
pleadings – personal, by registered mail. 2. Culpable violation of the Constitution.
(Malonzo v. Comelec, GR 127066, 03.11.97) 3. Dishonesty, oppression, misconduct
8. The 1-year ban (from assumption and in office, gross negligence, or dereliction of
next election) refers to the holding of the duty.
recall election, not the convening of the PRA. It was held that acts of lasciviousness cannot
(Claudio v. Comelec, GR 140560/ 714, be considered misconduct in office, and may
not be the basis of an order of suspension. To
05.04.2000)
constitute a ground for disciplinary action, the
9. The ‘regular recall election’ mayor charged with the offense must be
mentioned in the 1-year proscription refers to convicted in the criminal action.
an election where the office held by the local 4. Commission of any offense involving
elective official sought to be recalled will be moral turpitude or an offense punishable by at
contested and filled by the electorate. (Paras least prision mayor.

SCHOOL OF LAW
5. Abuse of authority. herself or constitute and Investigating

In failing to share with the municipalities Committee. The Secretary of the
concerned the amount paid by the Naitonal Department, however, is not the exclusive
Power Corporation for the redemption of the Investigating Authority. In lieu of the
properties acquired by the Province of Albay at
Department Secretary, the Disciplining
a public auction held for delinquent realty taxes,
the Provincial Officials were held guilty of Authority may designate a Special
abuse of authority. (Salalima v. Guingona, 257 Investigating Committee. The power of the
SCRA 55) President over administrative disciplinary
6. Unauthorized absence for 15 cases against elective local officials is
consecutive working days, except in the case derived from his/ her power of general
of members of the sangguniang palalawigan, supervision over local governments. The
panlungsod, bayan and barangay. power of the Department to investigate
7. Application for, or acquisition of, administrative complaints is based on the
alter-ego principle or the doctrine of qualified
foreign citizenship or residence or the status of
political agency. (Joson v. Torres, GR
an immigrant of another country.
131255,05.20.98)
8. Such other grounds as may be
provided in this Code and other laws. 3. An ‘administrative offense’ means
[An elective local official may be removed from every act or conduct or omission which
office on the grounds enumerated above by order amounts to, or constitutes, any of the
of the proper court.] grounds for disciplinary action. (Salalima v.
Guingona, GR 117589-92,05.22.96)
Cases on Discipliinary Action (Agra Notes) 4. The 1991 Local Government Code is
1. The power of the President over the applicable law insofar as disciplinary
administrative disciplinary cases against action against an elective local official is
elective local officials is derived from his/ her concerned. The Code prevails over the
power of general supervision over local Administrative Code since the latter is of
governments. The power to discipline and general application and the former was
ensure that the laws be faithfully executed enacted much later than the latter. (Calingin
must be construed to authorize the v. Court of Appeals, GR 154616,
President to order an investigation of the act 07.12.2004)
or conduct of local officials when in his/ her 5. When a mayor is adjudged to be
opinion the good of the public service so disqualified, a permanent vacancy was
requires. Thus: “Independently of any created for failure of the elected mayor to
statutory provision authorizing the President qualify for the office. In such eventuality, the
to conduct an investigation of the nature duly elected vice mayor shall succeed as
involved in this proceeding, and in view of provided by law. The second placer cannot
the nature and character of the executive be declared as mayor. (Toral Kare v.
authority with which the President of the Comelec, GR 157526/ 157527, 04.28.2004)
Philippines is invested, the constitutional
grant to him/ her power to exercise general
6. Any vote cast in favor of a candidate,
whose disqualification has already been
supervision over all local governments and
declared final regardless of the ground, shall
to take care that the laws be faithfully
be considered stray. The application of this
executed must be construed to authorize
rule is not only limited to disqualification by
him/ her to order an investigation of the act
conviction in a final judgment. Section 40 of
or conduct of the local official.(Joson v.
the 1991 Local Government Code
Torres, GR 131255, 05.20.98)
enumerates other grounds. The
2. Jurisdiction over administrative disqualification of a candidate is not only by
disciplinary actions against elective local conviction in a final judgment. (Toral Kare v.
officials is lodged in two authorities: the Comelec, GR 157526/ 157527, 04.28.2004)
Disciplining Authority and the Investigating
Authority. The Disciplinary Authority may
7. A reelected local official may not be
held administratively accountable for
constitute a Special Investigating Committee
misconduct committed during his/ her prior
in lieu of the Secretary of the Interior and
term of office. The re-election of a public
Local Government. With respect to a
official extinguishes only the administrative,
provincial governor, the disciplining Authority
but not the criminal, liability incurred during
is the President of the Philippines, whether
the previous term of office. (Valencia v.
acting by himself/ herself or through the
Sandiganbayan, GR 141336, 06.29.2004) A
Executive Secretary. The Secretary of the
local official who was re-elected can no
Interior and Local Government is the
longer be charged administratively for
Investigating Authority, who may act himself/
misconduct during previous term. (Garcia v.

SCHOOL OF LAW
Mojica, GR 139043, 09.10.99) An National Police. (Miranda v. Sandiganbayan,

administrative case has become moot and GR 154098, 07.27.2005)
academic as a result of the expiration of 3. By allowing a dismissed employee
term of office of an elective local official whose dismissal was affirmed by the Civil
during which the act complained of was Service Commission to continue working and
allegedly committed. Proceedings against receive his/ her salary, the mayor accorded
respondent are therefore barred by his/ her unwarranted benefits to a party. Therefore
re-election. (Malinao v. Reyes, GR 117618, he/ she is liable for violating Section 3(e) of
03.29.96; Reyes v. Comelec, GR 120905, the Anti-Graft and Corrupt Practices Act. At
03.07.96) the time of the commission of the crime, the
8. Under the 1991 Local Government municipal mayor, he/ she was mandated to
Code, the disqualification to run for any abide by Article I of Section 444(b)(x) of 1991
elective local position is for two years after Local Government Code which directs
service of sentence, not 5 years under the executive officials and employees of the
Omnibus Election Code since the LGC is the municipality to faithfully discharge their duties
later enactment. (Magno v. Comelec, GR and functions as provided by law.
147904, 10.04.2002) Considering such duty, the mayor had to
enforce decisions or final resolutions, orders
12. Cases on Offenses (Agra Notes) or rulings of the Civil Service Commission.
1. There are no unlawful disbursements (Velasco v. Sandiganbayan, GR160991,
of public funds when disbursements are 02.28.2005)
made pursuant to a reenacted budget. Money 4. Under Section 3(h) of R.A. 3019, the
can be paid out of the local treasury since person liable is any public officer who directly
there is a valid appropriation. There is no or indirectly has financial or pecuniary interest
undue injury since there was non unlawful in any business, contract or transaction in
expenditure. However, only the annual connection with which he intervenes or takes
appropriations for salaries and wages, part in his official capacity, or in which he is
statutory and contractual obligations, and prohibited by the Constitution or by any law
essential operating expenses are deemed from having any interest. The essential
reenacted. There is criminal liability in delay elements of the violation of said provision are
in submission of the budget proposal as follows: 1) The accused is a public officer;
provided the requirements under Section 318 2) he has a direct or indirect financial or
of the Code are not met. The mayor must first pecuniary interest in any business, contract
receive the necessary financial documents or transaction; 3) he either: a) intervenes or
from other city officials in order to be able to takes part in his official capacity in connection
prepare the budget. (Villanueva v. Ople, GR with such interest, or b) is prohibited from
165125, 11.18.2005) having such interest by the Constitution or by
2. A mayor who continues to perform law. In other words, there are two modes by
the functions of the office despite the fact that which a public officer who has a direct or
he/ she is under preventive suspension indirect financial or pecuniary interest in any
usurps the authority of the Office of the Mayor business, contract, or transaction may violate
and is liable for violation of Section 13 of the Section 3(h) of R.A. 3019. The first mode is
Anti-Graft and Corrupt Practices Act. Section when the public officer intervenes or takes
13 of R.A. No. 3019 covers two types of part in his official capacity in connection with
offenses: (1) any offense involving fraud on his financial or pecuniary interest in any
the government; and (2) any offense involving business, contract or transaction. The second
public funds or property. The first type mode is when he is prohibited from having
involves any fraud whether public funds are such an interest by the Constitution or by law.
[
involved or not. “Fraud upon government” Thus, a mayor violated the aforestated
means “any instance or act of trickery or provision via the first mode when he/she
deceit against the government.” It cannot be intervened in his/her official capacity in
read restrictively so as to be equivalent to connection with his/her financial or pecuniary
malversation of funds. Honest belief that he is interest in the transaction regarding the
no longer under preventive suspension supply and delivery of mixed gravel and sand
cannot serve as defense when he refused to to the constituent barangays. It was the
leave his position despite having received the mayor’s company that supplied the materials.
memorandum from the Department of Interior (Domingo v. Sandiganbayan, GR 149175,
and Local Government and only vacating the 10.25.2005)
office after being forced out by the Philippine 5. There are two modes by which a
public officer who has a direct or indirect

SCHOOL OF LAW
financial or pecuniary interest in any there is no appropriations ordinance and

business, contract, or transaction may violate when there is no certification of availability of
Section 3(h) of the Anti-Graft and Corrupt funds for the intended purpose. For not
Practices Act. The first mode is if in signing the voucher, bad faith cannot be
connection with his/ her pecuniary interest in imputed against him/ her. (Llorente v.
any business, contract or transaction, the Sandiganbayan, GR122166, 03.11.98)
public officer intervenes or takes part in his/ 9. When the validity of subsequent
her official capacity. The second mode is appointments to the position of Assistant City
when he/ she is prohibited from having such Assessor has not been challenged, the city
interest by the Constitution or any law. A mayor who appointed a person to serve in
mayor relative to the issuance of a license to said position had every right to assume in
operate a cockpit which he/ she owns cannot good faith that the one who held the position
be held liable under the first mode since he/ prior to the appointments no longer held the
she could not have intervened or taken part in same. Thus, the city mayor is not liable for
his/ her official capacity in the issuance of a violation of Sections 3(a) and 3(e) of the Anti-
cockpit license because he was not a Graft and Corrupt Practices Act. Section 3(a)
member of the Sangguniang Bayan. Under requires a deliberate intent on the part of the
the 1991 Local Government Code, the grant public official concerned to violate those rules
of a license is a legislative act of the and regulations duly promulgated by
sanggunian. However, the mayor could be competent authority, or to commit an offense
liable under the second mode. Further, in connection with official duties. On the other
Section 89 of the 1991 Local Government hand, Section 3(e) poses the standard of
Code proscribes such pecuniary interest. The manifest partiality, evident bad faith, or gross
penalty must be that one provided under the inexcusable negligence before liability can be
Code, not under the Anti-Graft Law since the had on that paragraph. Manifest partiality has
Code specifically refers to interests in been characterized as a clear, notorious or
cockpits while the latter refers in general to plain inclination or predilection to favor one
pecuniary interest. (Teves v. Sandiganbayan, side rather than the other. Evident bad faith
GR 154182, 12.17.2004) connotes a manifest deliberate intent on the
6. An illegally dismissed government part of the accused to do wrong or cause
employee who is later ordered reinstated is damage. Gross inexcusable negligence has
entitled to backwages and other monetary been defined as negligence characterized by
benefits from the time of his/ her illegal the want of even slight care, acting or
dismissal up to his/ her reinstatement. This is omitting to act in a situation where there is a
only fair and just because an employee who duty to act, not inadvertently but wilfully and
is reinstated after having been illegally intentionally with a conscious indifference to
dismissed is considered as not having left his/ consequences in so far as other persons may
her office and should be given the be affected. (Reyes v. Atienza, GR 152243,
corresponding compensation at the time of 09.23.2005)
his/ her reinstatement. When there is no 10. The approval by the Commission on
malice or bad faith that attended the illegal Audit (COA) of disbursements of local funds
dismissal and refusal to reinstate on the part by a local executive relates to the
of the municipal officials, they cannot be held administrative aspect of the matter of the
personally accountable for the back salaries. officials accountability. It does not foreclose
The municipal government should disburse the Ombudsman’s authority to investigate
funds to answer for the claims resulting from and determine whether there is a crime to be
dismissal. (Civil Service Commission v. prosecuted for which he/ she is accountable.
Gentallan, GR 152833, 05.09.2005) Compliance with COA rules and regulations
7. ‘Moral Turpitude’ is an act of does not necessarily mean that no
baseness, vileness, or depravity in the private misappropriation of public funds was
duties which a person owes his/ her fellow committed. Evidence in this regard must still
men (and women) or to the society in be adduced. (Aguinaldo v. Sandiganbayan,
general, contrary to the accepted and GR 124471, 11.28.96)
customary rule of right and duty between man 11. Public officials, more especially an
and woman or conduct contrary to justice, elected one, should not be onion-skinned.
honesty, modesty, or good morals. One such Thus, a vice-mayor who beat up a motorist
act is the crime of fencing. (Dela Torre v. despite the provocation by the latter, is guilty
Comelec GR 121592, 07.05.96) of misconduct. The period where an official
8. A local chief executive is not duty- was placed under preventive suspension
bound to approve and sign a voucher when cannot be credited to the penalty imposed on

SCHOOL OF LAW
him/ her. (Yabut v. Office of the Ombudsman, process simply means the opportunity to
GR 111304, 07.17.94) explain one’s side or the opportunity to seek
12. A city mayor cannot be held liable a reconsideration of the action or ruling
under Section 3(g) of the Anti-Graft and complained of. Procedural due process has
Corrupt Practices Act for entering into a been recognized to include the following: (1)
contract which is grossly and manifestly the right to actual or constructive notice of the
disadvantageous to the government when the institution of proceedings which may affect a
contract which is subject of the complaint has respondent’s legal rights; (2) a real
been rescinded before the report of the opportunity to be heard personally or with the
Commission on Audit came out and before assistance of counsel, to present witnesses
the complaint was filed with the Ombudsman. and evidence in one’s favor, and to defend
(Duterte v. Sandiganbayan, GR 130191, one’s rights; (3) a tribunal vested with
04.27.98) competent jurisdiction and so constituted as
to afford a person charged administratively a
13. Partial restitution of cash shortage is reasonable guarantee of honesty as well as
an implied admission of misappropriation of impartiality; and (4) a finding by said tribunal
missing funds by the municipal treasurer in which is supported by substantial evidence
case where he/ she offers no competent and submitted for consideration during the
credible evidence to prove that the missing hearing or contained in the records or made
funds were actually cash advances of known to the parties affected. Kinship alone
employees in the municipality. (Doldol v. does not establish bias and partiality. Bias
People of the Philippines, GR 164481, and partiality cannot be presumed. In
09.20.2005) administrative proceedings, no less than
substantial proof is required. Mere allegation
13. Cases on Procedure (Agra Notes) is not equivalent to proof. Mere suspicion of
1. An erring elective local officials has partiality is not enough. There should be
rights akin to the constitutional rights of an hard evidence to prove it, as well as manifest
accused. These are essentially part of showing of bias and partiality stemming from
procedural due process. The local elective an extrajudicial source or some other basis.
official has the (1) right to appear and defend (Casimiro v. Tandog, GR 146137,
himself/ herself in person or by counsel; (2) 06.08.2005)
the right to confront and cross-examine the 3. An administrative complaint against
witnesses against him/ her; and (3) the right an erring elective official must be verified and
to compulsory attendance of witness and the filed with the proper government office. A
production of documentary evidence. Thus, complaint against an elective provincial or city
the official’s right to a formal investigation must be filed with the Office of the President.
was not satisfied when the complaint against A complaint against an elective municipal
him/ her decided on the basis of position official must be filed with the Sangguniang
papers. The provisions for administrative Panlalawigan while that of a barangay official
disciplinary actions elective local officials are must be filed before the Sangguniang
markedly different from appointive officials. Panlungsod or Sangguniang Bayan.
The rules on the removal and suspension of (Mendoza v. Laxina, GR 146875,
elective local officials are more stringent. The 07.14.2003)
procedure of requiring position papers in lieu
of a hearing in administrative cases is
4. The lack of verification in a letter-
expressly allowed with respect to appointive complaint may be waived, the defect being
officials but not to those elected. An elective not fatal. Verification is a formal, not
official, elected by popular vote, is directly jurisdictional requites. (Joson v. Torres GR
responsible to the community that elected 131255, 05.20.98)
him/ her. The official has a definite term of 5. Decisions of the Office of the
office fixed by law which is relatively of short President are final and executory. No motion
duration. Suspension and removal from office for reconsideration is allowed by law but the
definitely affects and shortens this term of parties may appeal the decision to the Court
office. When an elective official is suspended of Appeals. The appeal, however, does not
or removed, the people are deprived of the stay the execution of the decision. The
services of the official they had elected. Secretary of the Interior and Local
(Joson v. Torres, GR 131255, 05.20.98) Government may validly move for its
2. The essence of procedural due immediate execution. (Calingin v. Court of
process is embodied in the basic requirement Appeals, GR 154616, 07.12.2004)
of notice and a real opportunity to be heard. 6. Direct recourse to the courts without
In administrative proceedings, procedural due exhausting administrative remedies is not

SCHOOL OF LAW
permitted. Thus, a mayor who claims that the 11. Under the 1991 Local Government
imposition of preventive suspension by the Code, an elective local official must be citizen
governor was unjustified and politically of the Philippines. One who claims that a
motivated, should seek relief first from the local official is not has the burden of proving
Secretary of the Interior and Local his/ her claim. In administrative cases and
Government, not from the courts. (Espiritu v. petitions for disqualification, the quantum of
Melgar, GR 100874, 02.13.92) proof required is substantial evidence.
7. The 1991 Local Government Code (Matugas v. Comelec, GR 151944,
does not preclude the filing of an appeal of a 01.20.2004)
decision of a sangguniang panlungsod 12. The Office of the President is
involving an elective barangay official. authorized to stay the execution of a decision
Section 68 of the Code specifically allows a against a municipal mayor issued by the
party to appeal to the Office of the President. Sangguniang Panalawigan pending appeal.
The decision is immediately executory but the Reviewing officials are not deprived of their
respondent may nevertheless appeal the authority to order a stay an appealed
adverse decision to the Office of the decision. Supervising officials are given such
President or to the Sangguniang discretion. (Berces v. Guingona, 241 SCRA
Panlalawigan, as the case may be. (Mendoza 539)
v. Laxina, GR 146875, 07.14.2003)
8. Under Section 61 of the 1991 Local 14. Complaints
Government Code, a complaint against any 1. A verified complaint against
elective official of a municipality shall be filed provincial, highly urbanized city or independent
before the sangguniang panlalawigan whose component city elective official, shall be filed
decision may be appealed to the Office of the before the Office of the President.
President. When appeal to the Office of the
President is available, resort to filing a a) It may be noted that the Constitution
petition for certiorari, prohibition and places local governments under the supervision
of the Executive. Likewise, the Constitution
mandamus with the Court of Appeals under allows Congress to include in the Local
Rule 65, 14 was inapt. The availability of the Government Code provisions for removal of
right of appeal precludes recourse to the local officials, which suggest that Congress
special civil action for certiorari. (Balindong v. may exercise removal powers. So, the Local
Dacalos, GR 158874, 11.10. 2004) Government Code has done and delegated its
exercise to the President. Note also that legally,
9. No notice of the session where a
supervision is not incompatible with disciplinary
decision of the sanggunian is to be authority. (Ganzon v. CA, 200 SCRA 271)
promulgated on the administrative case is
required to be given to the petitioner. The
b) Under Administrative Order No. 23, the
President has delegated the power to
deliberation of the sanggunian is an internal investigate complaints to the Secretary of
matter. In order to render a decision in Interior and Local Government. This is valid
administrative cases involving elective local delegation because what is delegated is only
officials, the decision of the sanggunian must the power to investigate, not the power to
be writing stating clearly and distinctly the discipline. Besides, the power of the Secretary
facts and the reasons for the decision. Thus, of Interior and Local Government to investigare
the voting following the deliberation of the is based on the alter ego principle. (Joson v.
members of the sanggunian did not constitute Torres, 290 SCRA 279)
the decision unless this was embodied in an c) The respondent has the right to formal
opinion prepared by one of them and investigation under Administrative Order No. 23
concurred in by the others. Until the members which includes the right to appear and defend
have signed the opinion and the decision is himself in person or by counsel, the right right
to confront the witnesses against him and the
promulgated, they are free to change their right to compulsory process for the attendance
votes. (Malinao v. Reyes, GR 117618, of witnesses and the production of documents.
03.29.96) Thus, in this case, where the Secretary denied
10. The filing of motion for the petitioners motion for a formal investigation
reconsideration before the supervising local and decided the case on the basis of position
papers, the right f the petitioner was violated
government concerning a disciplinary case (Joson v. Torres) In Salalima v. Guingona, 257
involving an elective official of the supervised SCRA 55, the SC said that the administrative
unit prevents the decision of the former from investigation can proceed even during the
becoming final. Thus, there is thus no pendency of an appeal of audit findings to the
decision finding the official guilty to speak of Commission on Audit.
which would disqualify said official. (Lingating 2. A verified complaint against elective
v. Comelec, GR 153475, 11.13.2002) municipal officials, shall be filed before the

SCHOOL OF LAW
sangguinian panlalawigan, whose decision her right to present evidence in his/ her
may be appealed to the Office of the behalf. In this situation, a preventive
President. suspension may be imposed even if an
a) Administrative Order No. 18 dated answer has not been filed. (Joson v. Torres,
February 12, 1987, which provides that on GR 131255, 05.20.98)
appeal from the decision of the Sangguniang
Panlalawigan, the President may stay
execution of the appealed decision, was 3. Section 63 of the Local Government
deemed not to have been repealed by RA 7160 Code which provides for a 60 day maximum
did not expressly repeal the administrative period for preventive suspension for a single
order, and implied repeals are frowned upon. office does not govern preventive
(Berces v. Executive Secretary, 241 SCRA
suspensions imposed by the Ombudsman,
539)
which is a constitutionally created office and
b) The decision of the sanggunian independent from the Executive branch of
panlalawigan in administrative cases involving government. The Ombudsman’s power of
elective officials may be in writing stating
preventive suspension is governed by
clearly and distinctly the facts and the reasons
for the decision, and must be signed by the Republic Act No. 6770 otherwise known as
requisite majority of the sanggunian. (Malinao “The Ombudsman Act of 1989”. Under the
v. Reyes, 256 SCRA 616) Act, the preventive suspension shall continue
3. A valid complaint against elective until the case is terminated by the Office of
barangay officials, shall be filed before the the Ombudsman but not more than six
sangguniang panglungsod os sagguniang months. (Miranda v. Sandiganbayan, GR
bayan concerned, whose decision shall be 154098, 07.27.2005)
final and executor. 4. Under the 1991 Local Government
Code, a single preventive suspension of local
15. Preventive Suspension (Agra Notes) elective officials should not go beyond 60
1. Nature. Preventive suspension is days. Thus, the Sandiganbayan cannot
preventively suspend a mayor for 90 days.
merely a preventive measure, a preliminary
(Rios v. Sandiganbayan, GR 129913,
step in an administrative investigation.
09.26.97)
Purpose. The purpose of the suspension
order is to prevent the accused from using his 5. A municipal official placed under
position and the powers and prerogatives of preventive suspension by a sangguniang
his office to influence potential witnesses or panlalawigan must file a motion for
tamper with records which may be vital in the reconsideration before the said sanggunian
prosecution of the case against him. If after before filing a petition for certiorari with the
such investigation, the charge is established Court of Appeals. Such motion is a condition
and the person investigated is found guilty of sine qua non before filing a petition for
acts warranting his suspension or removal, certiorari under Rule 65 of the 1997 Rules of
then he is suspended, removed or dismissed. Civil Procedure, as amended. (Flores v.
This is the penalty. Not being a penalty, the Sangguniang Panlalawigan of Pampanga,
period within which one is under preventive GR 159022, 02.23.2005)
suspension is not considered part of the 6. There is nothing improper in placing
actual penalty of suspension. Thus, service of an officer in preventive suspension before
the preventive suspension cannot be credited charges against him/ her are heard and
as service of penalty. (Quimbo v. Gervacio, before he/she is given an opportunity to prove
GR 155620,08.09.2005) his/her innocence. This is allowed so that
2. Pre-requisites. A preventive such officer may not hamper the normal
suspension may be imposed by the course of the investigation through the use of
Disciplinary Authority at any time (a) after the his/ her influence and authority. (Espiritu v.
issues are joined i.e. respondent has filed an Melgar, GR 100874, 02.13.92)
answer; (b) when the evidence of guilt is 7. The Ombudsman pursuant to
strong; and (c) given the gravity of the Republic Act No. 6770 and the President are
offenses, there is great probability that the both authorized to place under preventive
respondent, who continues to hold office, suspension erring local officials of highly-
could influence the witnesses or pose a threat urbanized cities, independent cities and
to the safety and integrity of the records and provinces. The Ombudsman may impose a
other evidence. These are the pre-requisites. longer period of preventive suspension than
However, the failure of respondent to file his/ the President may. In order to justify the
her answer despite several opportunities preventive suspension of a public official
given him/ her is construed as a waiver of his/ under Section 24 of Republic Act No. 6770,

SCHOOL OF LAW
the evidence of guilt should be strong, and (a) continuation of the proceedings against him,
the charge against the officer or employee which shall be terminated within 120 days from
should involve dishonesty, oppression or the time he was formally notified of the case
grave misconduct or neglect in the against him.
performance of duty; (b) the charges should 3. Any abuse of the exercise of the
warrant removal from the service; or (c) the power of preventive suspension shall be
respondent’s continued stay in office would penalized as abuse of authority.
prejudice the case filed against him/her. The
Ombudsman can impose the 6-month 16. Penalty (Agra Notes)
preventive suspension on all public officials, 1. Under Section 60 of the 1991 Local
whether elective or appointive, who are under Government Code, the penalty of dismissal
investigation. On the other hand, in imposing from service upon an erring local official may
the shorter period of sixty (60) days of be declared only by a court of law. Thus,
preventive suspension under the 1991 Local Article 124(b), Rule XIX of the Rules and
Government Code on an elective local official Regulations Implementing the Local
(at any time after the issues are joined), it Government Code, which grants the
would be enough that (a) there is reasonable disciplinary authority the power to remove
ground to believe that the respondent has elective local officials, is a nullity. (Pablico v.
committed that act or acts complained of, (b) Villapando, GR 147870, 07.31.2002)
the evidence of culpability is strong, (c) the
gravity of the offense so warrants, or (d) the 2. A sanggunian panlalawigan may
continuance in office of the respondent could cause the removal of a municipal mayor who
influence the witnesses or pose a threat to did not appeal to the Office of the President
the safety and integrity of the records and within the reglemantary period the decision
other evidence. (Hagad v. Gozo-dadole, GR removal him/ her from office. If a public
108072, 12.12.95) official is not removed before his/ her term of
office expires, he/ she can no longer be
Who may impose preventive suspension. removed if he/she thereafter re-elected for
Preventive suspension may be imposed by the another term. Therefore, a decision removing
President, the governor, or the mayor [as the case an elective local official, which has become
may be] at any tome after the issues are joined, final before the election, constitutes a
when the evidence of guilt is strong, and given the disqualification. (Reyes v. Comelec, GR
gravity of the offense, there is great probability that 120905, 03.07.96)
the continuance in office of the respondent could 3. The President may suspend an erring
influence the witnesses or pose a threat to the provincial elected official who committed
safety and integrity of the records and other several administrative offenses for an
evidence; provided that any single preventive aggregate period exceeding 6 months
suspension shall not extend beyond 60 days, and provided that each administrative offense, the
in the event several administrative cases are filed period of suspension does not exceed the 6-
against the respondent, he cannot be suspended month limit. (Salalima v. Guingona, GR
for more than 90 days within a single year on the 117589-92, 05.22.96)
same ground or grounds existing and known at the 4. Dishonesty, oppression, misconduct
time of the first suspension. in office, gross negligence, or an offense
1. The authority to preventively suspend punishable by at least prison mayor constitute
is exercised concurrently by the Ombudsman, grounds for removal upon order of the proper
pursuant to RA 6770; the same law authorizes court. (Castillo-Co v. Barbers GR 129952,
a preventive suspension of six months. (Hagad 06.16.98)
v. Gozo-Dadole, 1995)
The preventive suspension of an elective local The penalty of suspension imposed upon the
official (in this case the Mayor of San respondent shall not exceed his unexpired term, or
Fernando, Romblon) by the Sandignabayan a period of 6 months for every administrative
on a charge of violation of RA 3019, shall offense, nor shall said penalty be a bar to the
likewise be only for a period of 60 days, not 90 candidacy of the respondent as long as he meets
days, consistent with Section 63, RA 7160, the qualifications required for the office.
which provides that “any single preventive
suspension of local elective officials shall not 1. In Pablico v. Villapando, 2002, it was
extend beyond 60 days.” (Rios v. held that by virtue of Section 60 of the LGC,
Sandiganbayan, 1997) which provides that “an elective local official
2. Upon expiration of the preventive may be removed from office on grounds
suspension, the respondent shall be deemed enumerated above by order of the proper
reinstated in office without prejudice to the court,” the penalty of dismissal form the
service may be imposed upon an erring local

SCHOOL OF LAW
elective official only by a court of law. The during the pendency of the appeal. But in Berces
provision of the Implementing Rules and v. Executive Secretary, 241 SCRA 530, the SC
Regulations granting the disciplining authority pointed out the Administrative Order No. 18
the power to remove an elective local official authorizes the Office of the President to stay the
administratively are invalid. execution of a decision pending appeal.
2. Note that under Section 40 of the Administrative Order No. 18 was not repealed by
Local Government Code, the penalty of the Local government Code.
removal form office as a result of an
administrative case shall be a bar to the 19. Jurisdiction of Sandiganbayan
candidacy of the respondent for any elective 1. For an offense to fall under the
local office. exclusive original jurisdiction of the
3. In Salalima v. Guingona, 257 SCRA Sandiganbayan, the following requisites must
55, the SC upheld the imposition of the concur:
administrative penalty of suspension of not (1) the offense committed is a violation of
more than 6 months for each offense, provided (a) R.A. 3019, as amended (the Anti-Graft
that the successive serves of the sentence and Corrupt Practices Act),
should not exceed the unexpired portion of the (b) R.A. 1379 (the law on ill-gotten
term of the petitioners. The suspension did not wealth), (c) Chapter II, Section 2, Title VII,
amount to removal from office. Book II of the Revised Penal Code (the
law on bribery),
17. Administrative Appeal (d) Executive Order Nos. 1, 2, 14 and 14-
Decision may, within 30 days from receipt thereof, A, issued in 1986 (sequestration cases),
be appealed to: or
1. The sangguniang panlalawigan, in (e) other offenses or felonies whether
the case of decision of component cities’ simple or complexed with other crimes;
sangguniang panlungsod and sangguniang (2) the offender committing the offenses in
bayan; items (a), (b), (c) and (e) is a public official or
employee holding any of the positions
2. The Office of the President, in the enumerated in paragraph A of Section 4; and
case of decision of the sangguniang (3) the offense committed is in relation to the
panlalawigan and the sangguniang office.
panglungsod of highly urbanized cities and Thus, for the Sandiganbayan to have
independent component cities. Decision of the exclusive jurisdiction, it is essential that the
Office of the President shall be final and facts showing the intimate relation between
executory. the office of the offender, a mayor who holds
a) In Malinao v. Reyes, 255 SCRA 616, the a salary grade level 27, and the discharge of
SC ruled that certiorari will not lie because official duties be alleged in the information.
there is still adequate remedy available in the The jurisdiction of a court is determined by
ordinary course of law, i.e., appeal of the the allegations in the complaint or
decision of the Sangguniang Panlalawigan to
information, and not by the evidence
the Office of the President.
presented by the parties at the trial. It does
b) That there is appeal to the Office of the not thus suffice to merely allege in the
President is reiterated in Mendoza v. Laxina, information that the crime charged was
2003, although in this case, because the issue
committed by the offender in relation to his
raised was purely legal, resort to court was
upheld. The phrases, “final and executory” and office or that he took advantage of his
“final or executory” in Sections 67 and 68 of the position as these are conclusions of law. The
Local Government Code, simply mean that specific factual allegations in the information
administrative appeal will not prevent the that would indicate the close intimacy
enforcement of the decision. While the between the discharge of the offender’s
administrative decision is immediately official duties and the commission of the
executory, the local elective official may offense charged, in order to qualify the crime
nevertheless appeal the adverse decision to
as having been committed in relation to public
the Office of the President or the Sanggunian
Panlalawigan, as the case may be. After all, if office are controlling. (Adaza v.
exonerated on appeal, he will be paid his salary Sandiganbayan, GR 154886, 07.28.2005)
an such other emoluments denied him during 2. For purposes of acquisition of
the pendency of the appeal. jurisdiction by the Sandiganbayan, the
requirement imposed by Republic Act No.
18. Execution Pending Appeal 8249 that the offense be “committed in
An appeal shall not prevent a decision from being relation” to the offender’s office is entirely
executed; the respondent shall be considered as distinct from the concept of “taking advantage
having been placed under preventive suspension of one’s position” as provided under Articles

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171 (Falsification by public officer, employee with violation of Section 3(e) of the Anti-Graft
or notary or ecclesiastic minister) and 172 and Corrupt Practices Act. Violation of
(Falsification by private individuals and use of Republic Act No. 3019 committed by officials
falsified documents) of the Revised Penal in the executive branch with Salary Grade 27
Code. The offender under Article 172 must be or higher, and the officials specifically
a private individual or maybe a public officer, enumerated in (a) to (g) of Section 4 a.(1) of
employee or notary public who does not “take P.D. No. 1606, as amended by Section 2 of
advantage of his official position.”. Under Rep. Act No. 7975, regardless of their salary
Article 171, an essential element of the crime grades, such as provincial and city elective
is that the act of falsification must be officials, likewise fall within the original
committed by a public officer, employee or jurisdiction of the Sandiganbayan. (Inding v.
notary who “takes advantage of his official Sandiganbayan, GR 143047, 07.14.2004)
position.” The offender “takes advantage of
his official position” in falsifying a document 20. Effect of Re-election
when: The re-election of a local official bars the
(1) he has the duty to make or to prepare or continuation of the administrative case against him,
otherwise intervene in the preparation of the inasmuch as the re-election of the official is
document; or tantamount to condonation by the people of
(2) he has the official custody of the whatever past misdeeds he may have committed.
document which he falsifies. (Adaza v. (Malinao v. Reyes, 255 SCRA 616)
Sandiganbayan, GR 154886, 07.28.2005) In Lingating v. Comelec, 2002, the respondent
Mayor, having been found guilty of the
3. For purposes of vesting jurisdiction
administrative charges and ordered removed from
with the Sandiganbayan, the local elective office, had seasonably filed a motion for
official who holds a position of Grade 27 reconsideration with the Sanggunian Panlalawigan,
under the Local Government Code of 1991 and no action on his motion was taken, then the
must have committed the offense charged in decision of the Sanggunian Panlalawigan never
relation to the office. For an offense to be became final. After the respondent was re-elected,
committed in relation to the office, the relation he may no longer be removed from office for the
between the crime and the office must be administrative offense.
direct and not accidental, in that in the legal
D. Appointive Local Officials
sense, the offense can not exist without the
office. As an exception to this rule, the Court
1. Responsibility for human resources and
held that although public office is not an
development
element of an offense charged, as long as the
offense charged in the information is The local chief executive shall be responsible for
intimately connected with the office and is human resources and development in his unit and
alleged to have been perpetrated while the shall take all personnel actions in accordance with
accused was in the performance, though the Constitution, pertinent laws, including such
improper or irregular, of his/ her official policies, guidelines and standards as the Civil
functions, there being no personal motive to Service Commission may establish; Provided that
commit the crime and had the accused would the local chief executive may employ emergency or
not have committed it had he not held the casual employees or laborer paid on a daily wage
aforesaid office, the accused is held to have or piecework basis and hired through job orders for
been indicted for “an offense committed in local projects authorized by the sanggunian
relation” to his office. However, even if public concerned, without need of approval or attestation
office is not an essential element of the by the Civil Service Commission, as long as the
offense of obstruction of justice under Section said employment shall not exceed 6 months.
1(b) of P.D. 1829 but could have been a) In De Rama v. CA, 2001, it was held that the
committed had said mayor not held the office constitutional prohibition on so-called midnight
of the mayor, said official is subject to the appointments specifically those made within
two months immediately prior to the next
jurisdiction of the Sandiganbayan. The mayor
presidential elections, applies only to the
in the course of his/ her duty as Mayor, who President or to Acting President. There is no
is tasked to exercise general and operational law that prohibits local elective officials from
control and supervision over the local police making appointments during the last days of
forces, used his/ her influence, authority and their tenure absent fraud on their part, when
office to call and command members of the such appointments are not tainted by
municipal police. (Rodriguez v. irregularities or anomalies which breach laws
Sandiganbayan, GR 141710, 03.03.2004) and regulations governing appointments.
4. The Sandiganbayan has original b) The Provincial Governor is without authority to

designate the petitioner as Assistant Provincial
jurisdiction over a member of the
Treasurers from a list of recommendees of the
Sangguniang Panlungsod, who was charged

SCHOOL OF LAW
Provincial Governor. (Dimaandal v. COA, 291 being an officer under him, the former may
SCRA 322) validly investigate the said Revenue Officer and
place him under preventive suspension.
2. Officials common to all Municipalities, Cities (Garcia v. Pajaro, 2002)
and Provinces (RA 7160, Section 469-490)
1. Secretary to the Sanggunian VII. Autonomous Regions
2. Treasurer
3. Assessor
4. Accountant
5. Budget Officer
6. Planning and Development Coordinator
7. Engineer NOTE: As of this writing, only one autonomous
8. Health Officer region, that of Muslim Mindanao, has been
9. Civil Registrar established. (The Organic Act for the autonomous
10. Administrator region of the Cordilleras failed to obtain the
11. Legal Officer necessary number of votes because only one
12. Agriculturist province approved the Organic Act. An autonomous
13. Social Welfare and Development Officer region must have at least two provinces. It is
14. Environment and Natural Resources Officer however, still possible for an Organic Act for the
15. Architect Cordilleras to be approved at some future date.)
16. Information Officer
17. Cooperatives Officer
18. Population Officer Article X Section 15. There shall be created autonomous
19. Veterinarian regions in Muslim Mindanao and in the Cordilleras consisting
20. General Services Officer of provinces, cities, municipalities, and geographical areas
[Note: In the barangay, the mandated appointed sharing common and distinctive historical and cultural heritage,
officials are the Barangay Secretary and the economic and social structures, and other relevant
Barangay Treasurer, although other officials of the characteristics within the framework of this Constitution and
barangay may be appointed by the punong the national sovereignty as well as territorial integrity of the
barangay.] Republic of the Philippines.
3. Administrative Discipline
Investigation and adjudication of administrative
complaints against appointive local officials and
employees as well as their suspension and A. Reasons Behind the Creation of Autonomous
removal shall be in accordance with the civil Regions
service law and rules and other pertinent laws.
a) Preventive Suspension. The local
chief executive may preventively suspend for a
period not exceeding 60 days any subordinate
1. The creation of a situation which will allow
official or employee under his authority
each culture to flourish unhampered by the
pending investigation if the charge against
dominance of other cultures and thereby to
such official or employee involves dishonesty,
contribute more effectively to national
oppression or grave misconduct or neglect in
progress.
the performance of duty, or if there is reason to
believe that the respondent is guilty of the
charges which would warrant his removal from 2. To furnish possible solution to the regional
the service. conflicts that have arisen partly from cultural
b) Disciplinary Jurisdiction. Except as diversity.145
otherwise provided by law, the local chief
executive may impose the penalty of removal
from service, demotion in rank, suspension for
not more than 1 year without pay, fine in an Q: Is an autonomous region an independent nation
amount not exceeding 6 months’ salary, or within the nation?
reprimand. If the penalty imposed is
suspension without pay for not more than 30
A: No, an autonomous region is organized “within
days, his decision shall be final; if the penalty the framework of this Constitution and the national
imposed is heavier, the decision shall be sovereignty.”146
appealable to the CSC which shall decide the
appeal within 30 days from receipt thereof.
However, it is not the City Mayor, but the City
Treasurer who exercises disciplinary authority
over a City Revenue Officer. As head of the 145
Office of the Treasurer, and Revenue Officer Bernas Primer at 433 (2006 ed.)
146

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B. President’s General Supervision provinces, cities, and geographic areas voting favorably in
such plebiscite shall be included in the autonomous region.
Section 16. The President shall exercise general supervision

over autonomous regions to ensure that laws are faithfully Section 19. The first Congress elected under this Constitution
executed. 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.
C. Powers Not Given to Autonomous Regions
1. Enactment of Organic Acts
As preliminary step towards the establishment of

Section 17. All powers, functions, and responsibilities not
the autonomous regions, Congress is commanded
granted by this Constitution or by law to the autonomous
regions shall be vested in the National Government. to formulate an Organic Act for each of the two.
The Constitution commands the Congress to enact
an Organic Act which will be the fundamental law
of the regions.
Some of the powers which are NOT given to

autonomous regions:
Q: What law will be the charter of the autonomous
1. Jurisdiction over national defense and regions?
security;
2. Foreign relations and foreign trade; A: Their charter will be the Organic Act which will
3. Customs and tariff, quarantine be passed by Congress in the manner and
4. Currency, monetary affairs, foreign according to the substantive specifications contained
exchange, banking and quasi-banking, in Section 18.
external borrowing;
5. Posts and communications;
6. Air and sea transport
7. Immigration and deportation; Q: If the first Congress fails to pass the Organic Act
8. Citizenship and naturalization; within 18 months, will it no longer be able to pass
9. General auditing. such Act later?
A: Yes. The failure of Congress to act cannot be

allowed to frustrate the clear intent of the electorate.
The relatively short period is prescribed in order to
D. Enactment of Organic Acts; Creation of
emphasize the urgency of creating autonomous
Autonomous Region regions.
Section 18. The Congress shall enact an organic act for each Q: The legality of RA 6734, the Organic Act of
autonomous region with the assistance and participation of the Mindanao, is challenged and the plebiscite called in
regional consultative commission composed of representatives 13 provinces of Mindanao for the ratification of the
appointed by the President from a list of nominees from multi- Organic Act is challenged for being illegal in that
sectoral bodies. The organic act shall define the basic aspects of the Organic Act violate the Tripoli
structure of government for the region consisting of the Agreement which is a valid international agreement.
executive department and legislative assembly, both of which Decide.
shall be elective and representative of the constituent political
units. The organic acts shall likewise provide for special courts
A: Even if the Tripoli Agreement were an
with personal, family, and property law jurisdiction consistent
international agreement, the fact would not affect the
with the provisions of this Constitution and national laws.
validity of the Organic Act. International agreements
as internal law are on the same legal level as
The creation of the autonomous region shall be effective when statutes and whichever as between the two,
approved by majority of the votes cast by the constituent units international agreement or statute, comes later
in a plebiscite called for the purpose, provided that only supersedes the other. (Abbas v. Comelec, 1989)

SCHOOL OF LAW
Nature of Organic Act. The Organic Act itself in Q: May the Province of Ifugao, which was the only
legal category is a statute. However, it is more than province which voted for a Cordillera Autonomous
an ordinary statute because it enjoys affirmation by Region, constitute the Cordillera Autonomous
a plebiscite. Hence, its provision cannot be Region?
amended by ordinary statute. (Pandi v. CA, 2002)
A: No, the Constitution says that an autonomous
region shall consists of provinces, cities and
municipalities, and therefore, not just on province.
(Ordillo v. Comelec, 1990)
2. Creation of Autonomous Region
The enactment of the Organic Act does not yet

create the autonomous region. The creation of the
Q: Can a tribal court of the Cordillera Bodong
autonomous regions takes place only when the Administration render a valid executor decision in a
Organic Act is ratified “by a majority of the votes land dispute?
cast by the constituent units in a plebiscite called
for the purpose.”
A: No. In the January 30, 1990 plebiscite, the
creation of the Cordillera Autonomous Region was
rejected by all the provinces and city of Cordillera
region except Ifugao province, hence the Cordillera
Autonomous Region did not come to be. Hence, no
Q:For the effective creation of the automous region
autonomous region was created. As a logical
is it required that the total votes cast in all the units
consequence of that, the Cordillera Bodong
where the plebiscite is called must yield a majority of
Administration created under EO 220 as well as the
affirmative votes?
indigenous and special courts for the indigenous
cultural communities of the Cordillera region do not
A: No. It is enough for the creation of the exist. “Such tribal courts are not a part of the
autonomous region that some “provinces, cities, and Philippine Judicial system. They do not posses
geographic areas” vote favorably. In other words, as judicial power. Like the pangkats or conciliation
an examination of the constitutional text shows, for panels created by PD 1508 in the barangays, they
effective ratification it is not necessary to achieve a are advisory and conciliatory bodies whose principal
“double majority.” (Abbas v. Comelec, 1989) objective is to bring together parties to a dispute and
persuade them to make peace, settle, and
compromise” (Spouses Badua v. Cordillera Bodong
Administration, 1991)
What areas become part of the Autonomous

Region? Only those areas which vote in favor of
the Organic Act. And since the Constitution speaks
of “provinces,” an autonomous region has to D. Enumerated Powers of Autonomous Region
consist of more than one province.
Section 20. Within its territorial jurisdiction and subject to the

Q: What happens to the political subdivisions which provisions of this Constitution and national laws, the organic
do not vote favorably? act of autonomous regions shall provide for legislative powers
over:
A: They remain in the administrative region to which
they belong. (Abbas v. Comelec, 1989) (1) Administrative organization;
(2) Creation of sources of revenues;
(3) Ancestral domain and natural resources;
(4) Personal, family, and property relations;
(5) Regional urban and rural planning development;
Q: Can constituent units which vote negatively in the (6) Economic, social, and tourism development;
first plebiscite under this Constitution join the (7) Educational policies;
autonomous region at some future time? (8) Preservation and development of the cultural heritage; and
(9) Such other matters as may be authorized by law for the
promotion of the general welfare of the people of the region.
A: It is submitted that they may through a
subsequent plebiscite.147
Q: Legislation passed by the autonomous regions can
come into conflict with the Constitution. How are such
147 conflicts to be resolved?

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A: The Constitution should always prevail. (For instance, VIII. Inter-Governmental Relations148
the full gamut of religious freedom must be recognized
even in an area where a principal basis for the autonomy
is religious homogeneity.) A. National Government
Q: Legislation passed by the autonomous regions can
come into conflict with national laws. How are such 1. Power of General Supervision
conflicts to be resolved? The President shall exercise general supervision
A: There is no easy answer as to which would prevail. over local government units to ensure that their
The matter necessitates the serious weighing of the acts are within the scope of their prescribed powers
values. It may even involve adjustment of national laws in and functions. The President shall exercise
order to accommodate the constitutional desire for local
supervisory authority directly over provinces, highly
autonomy in its various aspects. (And indeed conflict will
almost naturally have to be expected because national urbanized cities and independent component cities;
laws are generally a reflection of the nationally through the province with respect to component
predominant culture. But, although Section 20 says that cities and municipalities; and through the city and
local legislative power should be subject to national laws, municipality with respect to the barangays.
national laws themselves are subject to the Constitution
one of those state policies is to ensure the autonomy of 2. Enactment of Organic Acts
local governments.) National agencies and offices with project
Conflicts can also arise in the application of local laws.
This can be particularly crucial in the case of personal
implementation functions shall coordinate with one
and property laws for those belonging to autonomous another and with the local government units
regions but acting outside the autonomous territory and concerned in the discharge of these functions.
also for those who do not belong to autonomous regions They shall ensure the participation of local
but are acting within autonomous territory. Thus, conflict government units both in the planning and the
of law principles could develop could develop within our implementation of said national projects.
one national municipal law.
3. Enactment of Organic Acts
Q: Is the enumeration in Section 20 exhaustive of what
the Organic Act may give to the autonomous regions? No project or program shall be implemented by
A: No. See Section 17. The enumeration in Section 20 is government authorities unless the consultations
intended as a political signal that indeed the Constitution mentioned in Sections 2(c) and 26 are complied
takes the matter of regional autonomy seriously. with, and prior approval of the sanggunian
concerned is obtained; Provided, that occupants in
E. Peace and Order, Defense and National Security areas where such projects are to be implemented
shall not be evicted unless appropriate relocation
Section 21. The preservation of peace and order within the sites have been provided.
regions shall be the responsibility of the local police agencies
which shall be organized, maintained, supervised, and utilized B. Philippine National Police
in accordance with applicable laws. The defense and security
of the regions shall be the responsibility of the National
Government. The extent of operational supervision and control of
local chief executives over the police force, fire
Section 21 makes a distinction between the protection unit and jail management personnel
problem of internal peace and order and the assigned in their respective jurisdictions shall be
problem of national defense and security. The governed by the provisions of RA 6975, otherwise
former, understood as the problem of ordinary known as the “DILG Act of 1990.”
criminality which should normally be the concern of
police authorities, is the responsibility of the local C. Inter-governmental Relations
police agencies. 1. The province, through the governor, shall
ensure that every component city and
However, the organization, maintenance, and municipality within its territorial jurisdiction acts
supervision of police agencies may in certain within the scope of its prescribed powers and
circumstances be beyond the capabilities of local functions. Highly urbanized cities and
governments. In such instances, the President, as independent component cities shall be
Commander-in-Chief may order the armed forces independent of the province.
into the autonomous region to perform whatever Except as otherwise provided under the
may be necessary. Constitution and special statutes, the governor
shall review all executive orders promulgated
by the component city or municipal mayor
As to national defense and security, that is, as to
within his jurisdiction. The city or municipal
dealing with threats to the stability, integrity, and mayor shall review all executive orders
survival of the nation, this clearly is the primary promulgated by the punong barangay within his
responsibility of the national government.
148

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jurisdiction. If the governor or the city or deserving students was omitted in Sections
municipal mayor fails to act on said executive 100(c) and 272 of the Local Government. (COA of
orders within 30 days from submission, the Cebu v. Province of Cebu, 2001)
same shall be deemed consistent with law and 2. The Local Health Board (Section 102-105)
therefore valid. 3. The Local Development Council (Sections
2. In the absence of the legal officer, the 106-115)
municipal government may secure the opinion 4. The Local Peace and Order Council (Section
of the provincial legal officer, and in the 116)
absence of the latter, that of the provincial
prosecutor on any legal question affecting the F. Settlement of Boundary Disputes
municipality.
1. Boundary disputes between and among local
3. The city or municipality, through the city or
government units shall, as much as possible,
municipal mayor, shall exercise general
be settled amicably.
supervision over component barangays to
The rules on settlement of disputes are:
ensure that said barangays acts within the
scope of their prescribed powers and a) Involving two or more barangays in
functions. the same city or municipality: referred to
4. Local government units may, through the sangguniang panlungsod or
appropriate ordinances, group themselves, sagguniang bayan.
consolidate or coordinate their efforts, services b) Involving two or more municipalities
and resources for purposes commonly in the same province: referred to the
beneficial to them. In support of such sanggunian panlalawigan.
undertakings, the local government units may, The SC declared that the RTC was correct
upon approval by the sanggunian after a when it ordered a relocation survey to
determine to which municipality the barangay
public hearing conducted for the purpose,
belonged. The agreement between the
contribute funds, real estate, equipment, and municipalities of Jimenez and Sinacaban
other kinds of property and appoint or assign which was approved by the Sanggunian
personnel under such terms and conditions as Panlalawigan is invalid as it would effectively
may be agreed upon by th participating local amend EO 258 (creating the municipality of
units. Sinacaban). The power of the Sangguniang
Panlalawigan to settle boundary disputes is
D. People’s and Non-Governmental Organizations limited to implementing the law creating the
municipality; and any alteration of
1. Local government units shall promote the boundaries not in accordance with the law
establishment and operation or people’s and would exceed this authority.
non-governmental organizations to become c) Involving municipalities or component
active partners in the pursuit of local cities in different provinces: jointly referred
autonomy. to the sanggunians of the provinces
2. Local government units may enter into joint concerned.
ventures and such other cooperative d) Involving a component city or
arrangements with people’s and non- municipality on one hand and a highly
governmental organizations to engage in the urbanized city on the other, or two or more
delivery o certain basic services, etc. highly urbanized cities: jointly referred to
3. A local government unit may, through its local the respective sanggunians of the parties.
chief executive and with the concurrence of
the sanggunian concerned, provide 2. In the event the sanggunian fails to effect a
assistance, financial or otherwise, to such settlement within 60 days from the date the
people’s and non-governmental organizations dispute was referred to it, it shall issue a
for economic, socially-oriented, environmental certification to this effect. The dispute shall
or cultural projects to be implemented within its then be formally tried by the sanggunian
territorial jurisdiction. concerned which shall decide the issue within
60 days from the date of certification.
E. Mandated Local Agencies 3. Within the time and manner prescribed by the
Rules of Court, any party may elevate the
1. The Local School Board (Sections 98-101) decision of the sanggunian concerned to the
The SC held that the Special Education Fund
proper RTC having jurisdiction over the area in
(SEF) may be used for the payment of salaries
and personnel-related benefits of the teachers dispute which shall decide the appeal within 1
appointed by the province in connection with the year form the filing thereof.
establishment and maintenance of extension Inasmuch as Section 118 of the Local
classes and operation and maintenance of public Government Code does not provide for the office
schools. However, the fund may not be used to or the agency vested with the jurisdiction over the
defray expenses for college scholarship grants. settlement of boundary disputes between a
The grant of government scholarship to poor but municipality and an independent component city
in the same province, under BP 129, as amended

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by RA 7691, it should be the RTC in the province repeal or amendment of an ordinance. 9RA
that can adjudicate the controversy. After all, RTC 6735, Section 13)
has general jurisdiction to adjudicate all b) If no favorable action is taken by the
controversies, except only those withheld from its
sanggunian concerned within 30 days form
plenary powers. (Municipality of Kananga v.
Madrona, 2003) presentation, the proponents, through their
duty authorized and registered
4. The importance of drawing with precise representatives, may invoke their power of
strokes the territorial boundaries of a local unit initiative, giving notice thereof to the
of government cannot be overemphasized. sanggunian concerned.
The boundaries must be clear for they define c) The prposition shall be numbered
the limits of the territorial jurisdiction of the serially, starting from numeral I. Two or more
local government unit. It can legitimately propositions may be submitted in an initiative.
exercise powers of government only within the The Comelec or its designated representative
limits of its territorial jurisdiction. Beyond these shall extend assistance in the formulation of
limits, its acts are ultra vires. Needless to the proposition.
state, any uncertainty in the boundaries of d) Proponents shall have 90 days [in
local government units will sow costly conflicts case of provinces and cities], 60 days [in case
in the exercise of government power which of municipalities], and 30 days [in case of
ultimately will prejudice the people’s welfare. barangays] from notice mentioned in (b) to
(Mariano v. Comelec) collect the required number of signatures.
e) The petition shall be signed before
BAR QUESTION (2005): Boundary Dispute the election registrar or his designated
Resolution; LGU; RTC’s Jurisdiction – representative, and in the presence of a
Q:There was a boundary dispute between Duenas, representative of the proponent and a
a municipality, and Passi, an independent representative of the sanggunian concerned in
component city, both of the same province. State a public placein the local government unit.
how the two local government units should settle f) Upon the lapse of the period, the
their boundary dispute. (5%) Comelec shall certify as to whether or not the
Suggested Answer: Boundary disputes between required number of signatures has been
local government units should, as much as obtained. Failure to obtain the required
possible, be settled amicably. After efforts at number of signatures defeats the proposition.
settlement fail, then the dispute may be brought to g) If the required number is obtained,
the appropriate Regional Trial Court in the said the Comelec shall set a date for the initiative
province. Since the Local Government Code is during which the proposition is submitted to
silent as to what body has exclusive jurisdiction the registered voters in the local government
over the settlement of boundary disputes between unit for their approval within 60 days [in case
a municipality and an independent component city of provinces], 45 days [in case of
of the same province, the Regional Trial Courts municipalities], and 30 days [in case of
have general jurisdiction to adjudicate the said barangays] from the date of certification by the
controversy. (Mun. of Kananga v. Madrona, G.R. Comelec. The initiative shall be held on the
No. 141375, April 30, 2003) date set, after which the results thereof shall
be certified and proclaimed by the Comelec.
h) If the proposition is approved by a
IX. Local Initiative and Referendum majority of the votes cast, it shall take effect 15
days after certification by the Comelec as if
A. Local Initiative affirmative action had been taken thereon by
the sangguninan and local chief executive
concerned.
1. Definition of Local Initiative
It is the legal process whereby the registered 3. Limitations
voters of a local government unit may directly On Local Initiative:
propose, enact or amend any ordinance. It may be i. The power of local initiative shall not
exercised by all registered votes or the provinces, be exercised more than once a year.
cities, municipalities and barangays.
ii. Initiative shall extend only to subjects
2. Procedure or matters which are within the legal
powers of the sanggunian to enact.
a) Not less than 2,000 registered voters
iii. If at any time before the initiative is
in the region: 1,000 registered voters in case
held, the sanggunian concerned adopts in
of provinces and cities; 100 voters in case of
toto the proposition presented and the
municipalities, and 50 in case of barangays,
local chief executive approves the same,
may file a petition with the sanggunian
the initiative shall be cancelled. However,
concerned proposing the adoption, enactment,

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those against such action may, if they so

desire, apply for initiative in the manner
herein provided.
On the Sanggunian
Any proposition or ordinance approved through
an initiative and referendum shall not be
repealed, modified or amended by the
sanggunian within 6 months from the date of
approval thereof, and may be amended,
modified or repealed within 3 years thereafter by
a vote of ¾ of all its members. In case of
barangays, the period shall be 18 months after
the approval thereof.
B. Local Referendum
1. Definition of Local Referendum. The legal
process whereby the registered voters of the
local government units may approve, amend
or reject any ordinance enacted by the
sanggunian.
2. The local referendum shall be held under the
control and direction of the Comelec within 60
days [in case of provinces], 45 days [in case of
municipalities] and 30 days [in case of
barangays]. The Comelec shall certify and
proclaim the results of the said referendum.
C. Authority of Courts
Nothing in the foregoing shall preclude the proper

courts from declaring null and void any proposition
approved pursuant hereto for violation of the
Constitution or want of capacity of the sanggunian
concerned to enact said measure.
(Read Case Digests in Pages 452-502 of Jack’s

Compendium (2006))

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b. By valid statutory enactments (e.g. Office

of the Insurance Commissioner)
Article XI c. By authority of law150
ACCOUNTABILITY OF PUBLIC
OFFICERS B. Public Officer
I. STATEMENT OF POLICY (Section 1) A person who holds a public office.151

II. IMPEACHMENT (Sections 2 & 3)
C. Public Office as Public Trust
III. SANDIGANBAYAN (Section 4)
IV. OMBUDSMAN (Section 5,6,8-14) Q: What is meant by “public office is a public trust”?
V. SPECIAL PROSECUTOR (Section 7) A: The basic idea of government in the Philippines is that
VI. ILL-GOTTEN WEALTH (Section 15) of a representative government the officers being mere
VII. RESTRICTION ON LOANS(Section 16) agents and not rulers of the people… where every officer
accepts office pursuant to the provisions of law and holds
VIII.TRANSPARENCY RULE (Section 17) the office as a trust for the people whom he represents.
IX. ALLEGIANCE TO THE STATE AND THE (Justice Malcom in Cornejo v. Gabriel, 41 Phil 188,
CONSTITUTION (Section 18) 1920)152
I. Statement of Policy Q: What does the command to lead modest lives entail?
A: Even if the public officer is independently wealthy, he
should not live in a manner that flaunts wealth. 153
Section 1. Public office is a public trust. Public officers and
employees must, at all times, be accountable to the people, II. Impeachment
serve them with utmost responsibility, integrity, loyalty, and
efficiency; act with patriotism and justice, and lead modest
lives. Section 2. The President, the Vice-President, the Members of
the Supreme Court, the Members of the Constitutional
A. Public Office Commissions, and the Ombudsman may be removed from
office on impeachment for, and conviction of, culpable violation
of the Constitution, treason, bribery, graft and corruption, other
1. Definition high crimes, or betrayal of public trust. All other public officers
The right, authority or duty, created and conferred and employees may be removed from office as provided by
by law, by which for a given period, either fixed by law, but not by impeachment.
law or enduring at the pleasure of the creating
power, an individual is invested with some Section 3. (1) The House of Representatives shall have the
sovereign power of government to be exercised by exclusive power to initiate all cases of impeachment.
him for the benefit of the public. (Fernandez v. Sto.
Tomas, 1995) (2) A verified complaint for impeachment may be filed by any
Member of the House of Representatives or by any citizen
2. Elements upon a resolution or endorsement by any Member thereof,
1. Created by law or by authority of law; which shall be included in the Order of Business within ten
2. Possess a delegation of a portion of the session days, and referred to the proper Committee within
three session days thereafter. The Committee, after hearing,
sovereign powers of government, to be
and by a majority vote of all its Members, shall submit its
exercised for the benefit of the public; report to the House within sixty session days from such
3. Powers conferred and duties imposed referral, together with the corresponding resolution. The
must be defined, directly or impliedly, by resolution shall be calendared for consideration by the House
the legislature or by legislative authority; within ten session days from receipt thereof.
4. Duties must be performed independently
and without the control of a superior (3) A vote of at least one-third of all the Members of the House
power other than the law, unless they be shall be necessary either to affirm a favorable resolution with
those of an inferior or subordinate office the Articles of Impeachment of the Committee, or override its
created or authorized by the legislature, contrary resolution. The vote of each Member shall be
and by it placed under the general control recorded.
of a superior office or body; and
5. Must have permanence of continuity.149 (4) In case the verified complaint or resolution of impeachment
is filed by at least one-third of all the Members of the House,
3. Creation
Public officers are created: 150
a. By the Constitution 151
152
149 153
Antonio Nachura, Outline on Political Law, 423 (2006) Bernas Primer at 440 (2006 ed.)

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the same shall constitute the Articles of Impeachment, and trial Note: The list of officers subject to impeachment in
by the Senate shall forthwith proceed. Section 2 as worded is exclusive.
(5) No impeachment proceedings shall be initiated against the Members of the Supreme Court
same official more than once within a period of one year. The Supreme Court said that the Special Prosecutor
cannot conduct an investigation into alleged misconduct
of a Supreme Court justice, with the end view of filing a
(6) The Senate shall have the sole power to try and decide all criminal information against him with the Sandiganbayan.
cases of impeachment. When sitting for that purpose, the A Supreme Court Justice cannot be charged in a criminal
Senators shall be on oath or affirmation. When the President case or a disbarment proceeding, because the ultimate
of the Philippines is on trial, the Chief Justice of the Supreme effect of either is to remove him from office, and thus
Court shall preside, but shall not vote. No person shall be circumvent the provision on removal by impeachment
convicted without the concurrence of two-thirds of all the thus violating his security of tenure (In Re: First
Members of the Senate. Indorsement from Hon. Raul Gonzalez, A.M. No. 88-4-
5433)
(7) Judgment in cases of impeachment shall not extend further
than removal from office and disqualification to hold any office An impeachable officer who is a member of the Philippine
under the Republic of the Philippines, but the party convicted bar cannot be disbarred first without being impeached.
shall nevertheless be liable and subject to prosecution, trial, (Jarque v. Desierto, 250 SCRA 11)156
and punishment, according to law.
D. Grounds
(8) The Congress shall promulgate its rules on impeachment 1. Culpable Violation of the Constitution
to effectively carry out the purpose of this section. 2. Treason, Bribery and Graft and Corruption
3. Other High Crimes or
4. Betrayal of Public Trust
A. Definition of Impeachment
Note: The enumeration is exclusive.
A national inquest into the conduct of public men.154 Culpable Violation of the Constitution
Culpable violation of the Constitution is wrongful,
To “impeach” simply means to formally charge intentional or willful disregard or flouting of the
with a violation of public trust. fundamental law. Obviously, the act must be
deliberate and motivated by bad faith to constitute
NATURE: Impeachment is a political process. a ground for impeachment. Mere mistakes in the
Thus, the decision to impeach lies exclusively on proper construction of the Constitution, on which
Congress. (J. Carpio in Gutierrez v. HR-CAJ) students of law may sincerely differ, cannot be
Within the limitations set forth in the Constitution, considered a valid ground for impeachment.157
impeachment is inarguably a political act
exercised by the Legislature, a political body Treason
elected by and directly accountable to the people. Treason is committed by any person who, owing
(J. Sereno in Gutierrez v. HR-CAJ) Impeachment allegiance to the Government of the Philippines,
proceedings are political processes that the levies war against it or adheres to its enemies,
Constitution places within the exclusive domain of giving them aid and comfort. (RPC, Article 114)
the legislature. (J. Brion in Gutierrez v. HR-CAJ)
Bribery
B. Purpose of Impeachment Bribery is committed by any public officer who shall
agree to perform an ac, whether or not constituting
The purpose of impeachment is not to punish but crime, or refrain from doing an act which he is
only to remove an officer who does not deserve to officially required to do in connection with the
hold office.155 performance of his official duties, in consideration
for any offer, promise, gift or present received by
C. Impeachable Officers him personally or through the mediation of another,
1. President or who shall accept gifts offered to him by reason
2. Vice-President of his office. 9RPC, Arts. 210-211)
3. Chief Justice and Associate Justice of the
Supreme Court Other High Crimes
4. Chairmen and members of the Constitutional According to the special committee of the House of
Commissions Representatives that investigated the impeachment
5. Ombudsman charges against President Quirino, are supposed
to refer to those offenses “which, like treason and
154 156
Antonio Nachura, Outline on Political Law, 345 (2006) Antonio Nachura, Outline on Political Law, 345 (2006)
155 157
Bernas Primer at 442 (2006 ed.) Cruz, Philippine Political Law, p.335

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bribery, are of so serious and enormous a nature together with the corresponding resolution.
as to strike at the very life or the orderly workings The resolution shall be calendared for
of the government.” This rather ambiguous consideration by the House within ten session
definition, assuming it is correct, would probably days from receipt thereof.
exclude such offenses as rape and murder which,
although as serious as treason and bribery, will not 5. House Plenary Vote. A vote of a least one-
necessarily strike at the orderly workings, let alone third of all the Members of the House shall be
life of the government.158 necessary either to affirm a favorable
resolution with the Articles of Impeachment of
Graft and Corruption the Committee, or override its contrary
Graft and corruption is to be understood in the light resolution.
of the prohibited acts enumerated in the Anti-Grant
and Corrupt Practices Act, which was in force at
the time of the adoption of the Constitution.159
6. Transmittal of Articles of Impeachment. In
case the verified complaint or resolution of
Betrayal of Public Trust impeachment is filed by at least one-third of all
The 1987 Constitution has added “betrayal of the Members of the House, the same shall
constitute the Articles of Impeachment, and
public trust,” which means any form of violation of
the oath of office even if such violation may not be trial by the Senate shall forthwith proceed.
criminally punishable offense.160
This is a catch-all to cover all manner of offenses Congress shall promulgate its rules on
impeachment to effectively carry out the purpose.
unbecoming a public functionary but not
punishable by the criminal statutes, like (Section 3(8))
(See 15th Congress Rules of Procedure in
“inexcusable negligence of duty, tyrannical abuse
of authority, breach of official duty by malfeasance Impeachment Proceedings)
or misfeasance, cronyism, favoritism, obstruction of
justice.161 The determination of sufficiency of form and
substance of an impeachment complaint is an
E. Procedure exponent of the express constitutional grant of rule-
making powers of the House of Representatives
which committed such determinative function to
1. Filing of the Verified Complaint. A verified public respondent. In the discharge of that power
complaint for impeachment is filed by either: and in the exercise of its discretion, the House has
(a) a Member of the House of formulated determinable standards as to the form
Representatives; or (b) any citizen upon a and substance of an impeachment complaint.
resolution of endorsement by any Member Prudential considerations behoove the Court to
thereof.162 respect the compliance by the House of its duty to
effectively carry out the constitutional purpose,
2. Inclusion in the Order of Business. After absent any contravention of the minimum
constitutional guidelines. (Gutierrez v. HR-COJ)
filing, the complaint shall be included in the
Order of Business within ten session days.
F. Impeachment PROCEEDING v. Impeachment
CASE
3. Referral to the Committee. During the House
Session when the complaint is calendared to
be taken up, the Speaker of the House shall Impeachment Impeachment
refer the complaint for impeachment to the PROCEEDING163 CASE
proper committee within three session days. Comlexus of acts Impeachment case
refers to the legal
controversy that is to
4. Committee Report. The Committee, after be decided by the
hearing, and by a majority vote of all its
Members shall submit its report to the House
163
within sixty (60) session days from the referral, J. Abad in Gutierrez v. HR-COJ: The initiation of the
impeachment proceeding in the House is intended to be a
158 preliminary step for the determination of the sufficiency of the
Cruz, Philippine Political Law, p.335 allegations against the impeachable public official. It is akin to
159 a preliminary investigation in a criminal case where probable
160 cause is determined against the accused. If there is probable
161
cause to indict the impeachable public official, then the Articles
Cruz, Philippine Political Law, p.336 of Impeachment is transmitted to the Senate. In a criminal
162 case, a criminal complaint or information is then filed in court
The verified complaint is filed with the Office of the Secretary
General of the House of Representatives. (15th Congress Rules of against the accused.
Procedure in Impeachment Proceedings, Rule II, Section 3)

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Senate. another verified impeachment complaint (Second

Initiated by a filing of a Initiated by filing of Complaint) against Ombudsman Gutierrez also for
verified complaint the Articles of betrayal of public trust and culpable violation of the
Impeachment Constitution was filed.
A verified complaint for May be initiated
impeachment may be filed exclusively by the (2) On August 10, 2010, upon the instruction of
by any Member of the House of House Majority Leader Neptali Gonzales II,
House of Representatives Chairperson of the Committee on Rules, the two
Representatives
or by any citizen upon a impeachment complaints were included in the
resolution or endorsement
by any Member thereof Order of Business for the following day, August 11,
Initiated in the House of Initiated in the Senate 2010.
Representatives
(3) On August 11, 2010, during its plenary session,
the House of Representatives simultaneously
referred both complaints to House Committee on
G. One-Year Bar Rule Justice.
1. The One-Year Bar Rule (4) On September 1, 2010 the House Committee
“No impeachment proceedings shall be on Justice found the first and second complaints
initiated against the same official more than sufficient in form.
once within a period of one year.”
ISSUE: Petitioner reckons the start of the one-year
2. Purposes bar from the filing of the first impeachment
(1) to prevent undue or too frequent harassment; complaint against her on July 22, 2010 or four days
(2) to allow the legislature to do its principal task of before the opening on July 26, 2010 of the 15th
legislation.” Congress. She posits that within one year from
July 22, 2010, no second impeachment complaint
3. Meaning of “Initiated” may be accepted and referred to the House
Committee on Justice.
The proceeding is initiated or begins, when a
verified complaint (with accompanying HELD: J. Carpio-Morales (Ponente). The filing and
resolution or indorsement) is FILED and the referral of the impeachment complaint to the
REFERRED to the Committee on Justice for proper committee “initiated” the impeachment
action. This is the initiating step which triggers the proceedings and triggered the operation of the
series of steps that follow. (Fransisco v. HR, 2003) one-year bar rule.
In Fransico v. House of Representatives, the SC J. Brion, Dissenting Opinion: The initiation phase
said that considering that the first impeachment ends when the Justice Committee determines and
complaint was filed by former President Estrada
the House of Representatives approves the
against Chief Justice Davide along with seven
associate justices on June 02, 2003 and referred to sufficiency of the impeachment complaint in form
the House Committee on Justice on August 05, and substance. The finding of the validity of the
2003, the second impeachment complaint filed by impeachment complaint in form and substance
some Rep. Teodoro et. al., against the Chief Justice completes the initiation phase of the impeachment
on October 23, 2003, violates the constitutional proceedings and bars the filing of another
prohibition against the initiation of impeachment impeachment complaint for a period of one year
proceedings against the same impeachable officer therefrom. The appropriate point that serves both
within a one-year period.
the “undue harassment” and “interference in
lawmaking” purposes of Section 3(5), Article XI of
4. Reckoning Point of One-Year Bar
the Constitution is when the impeachment
complaint is determined to be valid.
Gutierrez v. HR Committee on Justice
G.R. No. 193459
February 15, 2011
March 8, 2011 Issue: Petitioner argues that heaping two or more
charges in one complaint will confuse her in
FACTS: preparing her defense; expose her to the grave
(1) On July 22, 2010 a verified impeachment dangers of the highly political nature of the
complaint (First Complaint) against petitioner impeachment process; constitute a whimsical
Ombudsman Ma. Merceditas N. Gutierrez for disregard of certain rules; impair her performance
betrayal of public trust and culpable violation of the of official functions as well as that of the House;
Constitution was filed. On August 3, 2010,

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and prevent public respondent from completing its

report within the deadline.
III. Sandiganbayan
Held: The “one offense, one complaint” rule in
ordinary rules of criminal procedure cannot work to
bar multiple complaints in impeachment Section 4. The present anti-graft court known as the
proceedings, as the Constitution allows indictment Sandiganbayan shall continue to function and exercise its
jurisdiction as now or hereafter may be provided by law.
for multiple impeachment offenses.
H. Trial A. Composition of Sandiganbayan
The Senate shall have the sole power to try and Under PD 1606, it is composed of a Presiding
decide all cases of impeachment. When sitting for Justice and Eight Associate Justices, with the rank
that purpose, the Senators shall be on oath or of Justice of the Court of Appeals. It sits in three [3]
affirmation. When the President of the Philippines divisions of three members of each.
is on trial, the Chief Justice of the Supreme Court
shall preside, but shall not vote. A decision of B. Nature of Sandiganbayan
conviction must be concurred in by at least two-
thirds of all the members of the Senate. Sandiganbayan is NOT a constitutional court. It is
a statutory court; that is, it is created not only by
I. Penalty the Constitution but by statute, although its creation
is mandated by the Constitution.166
The penalty which may be imposed “shall not
extend further than removal from office and C. Jurisdiction of Sandiganbayan
disqualification to hold any office under the
Republic.”164 Original Jurisdiction
This penalty is beyond the reach of the President’s • Violations of RA 3019 (AGCPA) as
power of executive clemency, but does not place amended; RA 1379; and Chapter II, Section 2,
the officer beyond liability to criminal prosecution. Titile VII, Book II of the RPV where one or
(When criminally prosecuted, therefore, for the more of the accused are officials occupying
offense which warranted his conviction on the following positions in the government,
impeachment, the officer cannot plead the defense whether in a permanent, acting or interim
of double jeopardy.)165 capacity at the time of the commission of the
offense:
J. Effect of Conviction a. Officials of the Executive branch with
the position of Regional Director or higher,
or with Salary Grade Level 27 (G27)
Removal from office and disqualification to hold
according to RA 6758.
any office under the Republic of the Philippines.
b. Members of Congress and officials
But the party convicted shall be liable and subject
thereof with G27 an up;
to prosecution, trial and punishment according to
c. Members of the Judiciary without
law.
prejudice to the Constitution;
d. Chairmen and members of the
K. Judicial Review
Constitutional Commissions without
prejudice to the Constitutions; and
The Court cannot review the sufficiency of the e. All other national and local officials
substance of the impeachment complaints. The with G27 or higher.
sufficiency of the substance will delve into the
merits of the impeachment complaints over which • Other offenses or felonies whether simple
this Court has no jurisdiction. The Court can only or complexed with other crimes committed by
rule on whether there is a gross violation of the the public officials and employees mentioned
Constitution in filing the impeachment complaint, in in Subsection a in relation to their office;
particular, whether the complaint was filed in • Civil and criminal cases filed pursuant to
violation of the one-year ban. The Court cannot and in connection with EO nos. 1, 2, 14, and
review the decision of the Committee on Justice to 14-A issued in 1986.
impeach. (J. Carpio in Gutierrez v. HR-COJ)
Exclusive Original Jurisdiction over petitions for
164
the issuance of the writs of mandamus,
165 166

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prohibitions, certiorari, habeas corpus, injunction acts complained of were committed in relation to
and other ancillary writs and processes in aid of its the official functions of the accused. It is required
appellate jurisdiction; Provided, that jurisdiction that the charge be set forth with particularity as will
over these petitions shall not be exclusive of the reasonably indicate that the exact offense which
Supreme Court; the accused is alleged to have committed is one in
relation to his office. Thus, the mere allegation in
Exclusive Appellate Jurisdiction over final the information that the offense was committed by
judgments, resolutions or orders of regional trial the accused public officer “in relation to his office”
courts whether in the exercise of their own original is a conclusion of law, not a factual averment that
jurisdiction or of their appellate jurisdiction. (RA would show the close intimacy between the offense
8249) charged and the discharge of the accused’s official
duties. (Lacson v. Executive Secretary)
The following requisites must concur in order that a
case may fall under the exclusive jurisdiction of the Binay v. Sandiganbayan, 1999: The Supreme
Sandiganbayan: Court discussed the ramifications of Section 7, RA
1. The offense committed is a violation of RA 8249, as follows:
1379, Chapter II, Section , Title VII, Book II of 1. If trial of the cases pending before whatever
the Revised Penal Code, Executive Orders court has already begun as of the approval of
Nos. 1, 2 14 and 14-A, issued in 1986, or other RA 8249, the law does not apply;
offenses or felonies whether simple or 2. If trial of cases pending before whatever court
complexed with other crimes; has not begun as of the approval of RA 8249,
2. The offender committing the offenses (violating then the law applies, and the rules are:
RA 3019, RA 1379, the RPC provisions, and i. If the Sandiganbayan has jurisdiction
other offenses, is a public official or employee over a case pending before it, then it
holding any of the positions enumerated in retains jurisdiction;
par. A, Section 4, RA 8249; and ii. If the Sandiganbayan has no
3. The offense committed is in relation to the jurisdiction over a cased pending
office. (Lacson v. Executive Secretary, 1999) before it, the case shall be referred to
the regular courts;
Private individuals. “In case private individuals iii. If the Sandiganbayan has jurisdiction
are charged as co-principals, accomplices or over a case pending before a regular
accessories with the public officers or employees, court, the latter loses jurisdiction and
they shall be tried jointly with said public officers the same shall be referred to the
and employees. (Section 4, PD 1606)” Sandiganbayan;
“Private persons may be charged together with iv. If a regular court has jurisdiction over
public officers to avoid repeated and unnecessary a case pending before it, then said
presentation of witnesses and exhibits against court retains jurisdiction.
conspirators in different venues, especially of the
issues involved are the same. It follows therefore D. Decisions/Review
that if a private person may be tried jointly with
public officers, he may also be convicted jointly The unanimous vote of all the three members shall
with them, as in the case of the present be required for the pronouncement of judgment by
petitioners.” (Balmadrid v. The Honorable a division. Decisions of the Sandiganbayan shall
Sandiganbayan, 1991) be reviewable by the Supreme Court on a petition
for certiorari.
Macalino v. Sandiganbaya, 2002: It was held a. It is now settled that Section 13, RA 3019,
that because the Philippine National Construction makes it mandatory for the
Company (PNCC0 has no illegal charter, petitioner, Snadiganbayan to suspend any public
an officer of PNCC, is not a public officer. That officer against whom a valid information
being so, the Sandiganbayan has no jurisdiction charging violation of that law, or any
over him. The only instance when the offense involving fraud upon the
Sandiganbayan may exercise jurisdiction over a government or public funds or property is
private individual is when the complaint charges filed. (Bolastig v. Sandiganbayan, 235
him either as a co-principal, accomplice or SCRA 103)
accessory of a public officer who has been charged b. The appellate jurisdiction of the Supreme
within the jurisdiction of the Sandiganbayan. Court over decisions and final orders of
the Sandiganbayan is limited to questions
Determination of Jurisdiction. Whether or not the of law. (Republic v. Sandiganbayan, 2002)
Sandiganbayan or the RTC has jurisdiction over
the case shall be determined by the allegations in IV. Ombudsman
the information specifically on whether or not the

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Section 5. There is hereby created the independent Office of Section 13. The Office of the Ombudsman shall have the
the Ombudsman, composed of the Ombudsman to be known following powers, functions, and duties:
as Tanodbayan, one overall Deputy and at least one Deputy
each for Luzon, Visayas, and Mindanao. A separate Deputy for
the military establishment may likewise be appointed. (1) Investigate on its own, or on complaint by any
person, any act or omission of any public official,
employee, office or agency, when such act or
omission appears to be illegal, unjust, improper, or
inefficient.
(2) Direct, upon complaint or at its own instance, any
Section 6. The officials and employees of the Office of the public official or employee of the Government, or
Ombudsman, other than the Deputies, shall be appointed by any subdivision, agency or instrumentality thereof,
the Ombudsman, according to the Civil Service Law. as well as of any government-owned or controlled
corporation with original charter, to perform and
expedite any act or duty required by law, or to stop,
prevent, and correct any abuse or impropriety in the
performance of duties.
Section 8. The Ombudsman and his Deputies shall be natural- (3) Direct the officer concerned to take appropriate
born citizens of the Philippines, and at the time of their action against a public official or employee at fault,
appointment, at least forty years old, of recognized probity and and recommend his removal, suspension, demotion,
independence, and members of the Philippine Bar, and must fine, censure, or prosecution, and ensure
not have been candidates for any elective office in the compliance therewith.
immediately preceding election. The Ombudsman must have, (4) Direct the officer concerned, in any appropriate
for ten years or more, been a judge or engaged in the practice case, and subject to such limitations as may be
of law in the Philippines. provided by law, to furnish it with copies of
documents relating to contracts or transactions
entered into by his office involving the disbursement
During their tenure, they shall be subject to the same or use of public funds or properties, and report any
disqualifications and prohibitions as provided for in Section 2 irregularity to the Commission on Audit for
of Article 1X-A of this Constitution. appropriate action.
(5) Request any government agency for assistance
and information necessary in the discharge of its
responsibilities, and to examine, if necessary,
pertinent records and documents.
Section 9. The Ombudsman and his Deputies shall be (6) Publicize matters covered by its investigation
appointed by the President from a list of at least six nominees when circumstances so warrant and with due
prepared by the Judicial and Bar Council, and from a list of prudence.
three nominees for every vacancy thereafter. Such (7) Determine the causes of inefficiency, red tape,
appointments shall require no confirmation. All vacancies shall mismanagement, fraud, and corruption in the
be filled within three months after they occur. Government and make recommendations for their
elimination and the observance of high standards of
ethics and efficiency.
(8) Promulgate its rules of procedure and exercise
such other powers or perform such functions or
duties as may be provided by law.
Section 10. The Ombudsman and his Deputies shall have the
rank of Chairman and Members, respectively, of the Section 14. The Office of the Ombudsman shall enjoy fiscal
Constitutional Commissions, and they shall receive the same autonomy. Its approved annual appropriations shall be
salary which shall not be decreased during their term of office. automatically and regularly released.
Section 11. The Ombudsman and his Deputies shall serve for A. Composition
a term of seven years without reappointment. They shall not
be qualified to run for any office in the election immediately • An Ombudsman to be known as the
succeeding their cessation from office. Tanodbayan.
• One over-all Deputy
• At least one Deputy each for Luzon,
Visayas and Mindanao
• A separate Deputy for the military
Section 12. The Ombudsman and his Deputies, as protectors establishment may likewise be appointed
of the people, shall act promptly on complaints filed in any
form or manner against public officials or employees of the
Government, or any subdivision, agency or instrumentality
[Read Uy. v. Sandiganbayan, G.R. No. 105965-70,
thereof, including government-owned or controlled 354 SCRA 651]
corporations, and shall, in appropriate cases, notify the
complainants of the action taken and the result thereof. B. Qualifications
The Ombudsman and his Deputies must be:
1. Natural Born Citizens of the Philippines
2. At least 40 years of age

SCHOOL OF LAW
3. Of recognized probity and independence implementation of the policies as set forth by law.
4. Members of the Philippine Bar Laurel v. Desierto, 2002)
5. Must not have been candidates for any
elective office in the immediately preceding Q: Charged with murder, the Governor challenges
election. the authority of the office of the Ombudsman to
The Ombudsman must have been a judge or conduct the investigation. He argues that the
engaged in the practice of law for ten years or authority of the Ombudsman is limited to “crimes
more. related to or connected with an official’s discharge
of his public functions.” Decide.
C. Appointment A: The Ombudsman has authority. Section 12 says
that he may “investigate… any act or omission of
By the President from a list of at least six nominees any public official… when such act or omission
prepared by the Judicial and Bar Council, and from appears to be illegal, unjust, improper or
a list of at least three nominees for every vacancy inefficient. Murder is illegal. And since it was
thereafter. All vacancies to be filled in three allegedly committed by a public official it comes
months. within the jurisdiction of the Ombudsman. (Deloso
v. Domingo, 1990)
a. Term of Office: Seen years without
reappointment F. Powers and Duties
b. Rank and Salary: The Ombudsman and (See Section 12 and 13 of Article XI)
his Deputies shall have the rank of Over the years the scope of the powers of the
Chairman and Members, respectively, of Ombudsman under Section 12 has been clarified
the Constitutional Commissions, and they thus settling various disputed issues:
shall receive the same salary which shall
not be decreased during his term of office. 1. The ombudsman can investigate only officers of
c. Fiscal Autonomy: The Office of the government owned corporations with original
Ombudsman shall enjoy fiscal autonomy. charter. PAL, even when still owned by the
government, did not have original charter.167
D. Disqualifications/Inhibitions
2. The jurisdiction of the Ombudsman over
During their tenure: disciplinary cases involving public school teachers
has been modified by Section 9 of R.A. 4670,
• Shall not hold other office or employment otherwise known as the Magna Carta for Public
• Shall not engage in the practice of any School Teachers, which says that such cases must
profession or in the active management first go to a committee appointed by the Secretary of
of control of any business which in any Education.168
way may be affected by the functions of It is erroneous, thus, for respondents to contend that
his office; R.A. No. 4670 confers an exclusive disciplinary
• Shall not be financially interested, directly authority on the DECS over public school teachers
or indirectly, in any contract with, or in and prescribes an exclusive procedure in
any franchise or privilege granted by the administrative investigations involving them. R.A.
Government, or any of its subdivisions, No. 4670 was approved on June 18, 1966. On the
etc,; other hand, the 1987 Constitution was ratified by the
• Shall not be qualified to run for any office people in a plebiscite in 1987 while R.A. No. 6770
in the election immediately succeeding was enacted on November 17, 1989. It is basic that
their cessation from office. the 1987 Constitution should not be restricted in its
meaning by a law of earlier enactment. The 1987
E. Jurisdiction Constitution and R.A. No. 6770 were quite explicit in
conferring authority on the Ombudsman to act on
How is the jurisdiction of the Ombudsman over complaints against all public officials and
a person determined? For purposes of employees, with the exception of officials who may
determining the scope of the jurisdiction of the be removed only by impeachment or over members
Ombudsman, a public officer is one to whom some of Congress and the Judiciary.
of the sovereign functions of the government has
been delegated. 3. The Ombudsman Act authorizes the
(The National Centennial Commission performs Ombudsman to impose penalties in administrative
executive power which “is generally defined as the cases.169 Section 21 of RA 6770 vests in the
power to enforce and administer laws. It is the Ombudsman “disciplinary authority over all
power of carrying the laws into practical operation
167
and enforcing their due observance.” The Khan, Jr v Ombudsman, G.R. No. 125296, July 20. 2006.
executive function, therefore, concerns the 168
Ombudsman v. Estandarte, GR 168670, April 13, 2007.

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elective and appointive officials of the petitioners seem to think. Indeed, it would be
Government,” except impeachable officers, constitutionally proscribed if the suspension were to
members of Congress, and the Judiciary. And be of an indefinite duration or for an unreasonable
under Section 25 of RA 6770, the Ombudsman may length of time. The Court has thus laid down the
impose in administrative proceedings the “penalty rule that preventive suspension may not exceed the
ranging from suspension without pay for one maximum period of ninety (90) days, in consonance
year to dismissal with forfeiture of benefits or a fine with Presidential Decree No. 807, now Section 52 of
ranging from five thousand pesos (P5,000.00) to the Administrative Code of 1987.176
twice the amount malversed, illegally taken or lost,
or both at the discretion of the Ombudsman x x Q: RA 6770 empowers the Office of the
x.” Clearly, under RA 6770 the Ombudsman has the Ombudsman to conduct preliminary investigations
power to impose directly administrative penalty on and to directly undertake criminal prosecutions.
public officials or employees.170 What is the constitutional basis for this power?
Note, however, that according to the Local A: Article XI, Section 13(8) means that the
Government Code, elective officials may be Ombudsman may be validly empowered with
dismissed only by the proper court. “Where the prosecutorial functions by the legislature, and this
disciplining authority is given only the power to the latter did when it passed RA 6770. (Camanag
suspend and not the power to remove, it should not v. Guerrero, 1997)
be permitted to manipulate the law by usurping the
power to remove.”171 Q: RA 6770 empowers the Office of the
Ombudsman to conduct preliminary investigations
4. The Special Prosecutor may not file an and to directly undertake criminal prosecutions.
information without authority from the Ombudsman. Does it not violate the principle of separation of
Republic Act No. 6770, by conferring upon the powers since the power to conduct preliminary
Ombudsman the power to prosecute, likewise grants investigation is exclusive to the executive branch?
to the Ombudsman the power to authorize the filing A: If it is authorized by the Constitution it cannot be
of informations. A delegated authority to prosecute logically argued that such power or the exercise
was also given to the Deputy Ombudsman, but no thereof is unconstitutional or violative of the
such delegation exists to the Special Prosecutor. principle of the separation of powers. (Camanag v.
Nor is there an implied delegation. The Special Guerrero, 1997)
Prosecutor prosecutes only when authorized by the
Ombudsman.172 Q: RA 6770 empowers the Office of the
Ombudsman to conduct preliminary investigations
5. The Ombudsman has been conferred rule and to directly undertake criminal prosecutions.
making power to govern procedures under it.173 One Does it not directly contravene Article XI, Section 7
who is answering an administrative complaint filed by diminishing the authority and power lodged in
before the Ombudsman may not appeal to the the Office of the Special Prosecutor?
procedural rules under the Civil Service A: In Acop v. Office of the Ombudsman, 1995, the
Commission.174 Court upheld not only the power of Congress to so
place the Office of the Special Prosecutor under
6. The power to investigate or conduct a preliminary the Ombudsman, but also the power of Congress
investigation on any Ombudsman case may be to remove some of the powers granted to the Office
exercised by an investigator or prosecutor of the of Special Prosecutor. . (Camanag v. Guerrero,
Office of the Ombudsman, or by any Provincial or 1997)
City Prosecutor or their assistance, either in their
regular capacities or as deputized Ombudsman Q: Are the powers of Ombudsman delegable?
prosecutors.175 A: The power to investigate or conduct a
preliminary investigation on any Ombudsman case
7. A preventive suspension will only last ninety (90) may be exercised by an investigator or prosecutor
days, not the entire duration of the criminal case like of the Office of the Ombudsman, or by any
Provincial or City Prosecutor or their assistance,
169 either in their regular capacities or as deputized
Ombudsman v. CA, November 22, 2006; Ombudsman v. Lucero,
November 24, 2006.
Ombudsman prosecutors. (Honasan II v. Panel of
170 Investigators of the DOJ, 2004)
Ombudsman v. CA, G.R. No. 168079, July 17, 2007.
171
Sangguniang Barangay v. Punong Barangay, G.R. No. 170626,
“In any form or manner” It was held that the fact
March 3, 2008.
172 that the Ombudsman may start an investigation on
Perez v. Sandigabayan, G.R. No. 166062, September 26, 2006.
173
the basis of any anonymous letter does not violate
Buencamino v. CA, GR 175895,April 4, 2007. the equal protection clause. For purposes of
174
Medina v. COA, G.R. No. 176478, February 4, 2008.
175 176
Honasan II v. Panel of Investigators of the DOJ, G.R. No. Villasenor v Sandiganbayan G.R. No. 180700, March 4, 2008
159747, April 13, 2004.

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initiating preliminary investigation before the Office

of the Ombudsman, a complaint “in any form or F. Power to Investigate
manner” is sufficient. (Garcia v. Miro, 2003)177
The power to investigate, including preliminary
Power of Contempt. The Ombudsman is also investigation, belongs to the Ombudsman and not
granted by law the power to cite for contempt, and to the Special Prosecutor. (Acop v. Ombudsman,
this power may be exercised by the Ombudsman 1995)
while conducting preliminary investigation because
preliminary investigation is an exercise of quasi- Uy v. Sandiganbayan, 2001: It was held that
judicial functions. (Lastimosa v. Vasquez, 243 under Sections 11 and 15, RA 6670, the
SCRA 497)178 Ombudsman s clothed with the authority to conduct
preliminary investigation and to prosecute all
Can the Court be compelled to review the criminal cases involving public officers and
exercise of discernment in prosecuting or employees, not only those within the jurisdiction of
dismissing a case before the Ombudsman? It the Sandiganbayan, but those within the
has been consistently held that it is not for the jurisdiction of regular courts as well. The clause
Court to review the Ombudsman’s paramount “any illegal act or omission of any public official” is
discretion in prosecuting or dismissing a complaint broad enough to embrace any crime committed by
filed before his office. The rule is based not only a public officer or employee.
upon the respect for the investigatory and
prosecutor powers granted by the Constitution to Ombudsman’s Power to Investigate, Not
the Office of the Ombudsman but upon practicality Exclusive. While the Ombudsman’s power to
as well. (Otherwise, the functions of the courts will investigate is primary, it is not exclusive and, under
be grievously hampered by innumerable petitions the Ombudsman Act of 1989, he may delegate it to
assailing the dismissal of investigatory proceedings others and take it back any time he wants to. (Acop
conducted by the Office of the Ombudsman with v. Ombudsman, 1995)
regard to complaints filed before it. (Olairez v.
Sandiganbayan, 2003) This power of investigation granted to the
There is, however, one important exception to this Ombudsman by the 1987 Constitution and The
rule, and that is, when grave abuse of discretion on Ombudsman Act is not exclusive but is shared
the part of the Ombudsman in either prosecuting or with other similarly authorized government
dismissing a case before it is evident. In this event, agencies such as the PCGG and judges of
the act of the Ombudsman can justifiably be municipal trial courts and municipal circuit trial
assailed.179 courts. The power to conduct preliminary
investigation on charges against public employees
Ombudsman has no authority to directly and officials is likewise concurrently shared with
dismiss a public officer from government the Department of Justice. Despite the passage of
service. Under Section 13(3) of Article XI, the the Local Government Code in 1991, the
Ombudsman can only recommend to the officer Ombudsman retains concurrent jurisdiction with the
concerned the removal of a public officer or Office of the President and the local Sanggunians
employee found to be administratively liable. to investigate complaints against local elective
(Taplador v. Office of the Ombudsman, 2002) Be officials. [Emphasis supplied].180 (Ombudsman v.
that as it may, the refusal, without just cause, of Galicia G.R. No. 167711, October 10, 2008, 568
any officer to comply with such an order of the
Ombudsman to penalize erring officer or employee 180
is a ground for disciplinary action. Thus, there is a J. Corona, (Separate Opinion in Biraogo v. PTC
strong indication that the Ombudsman’s [2010])The Constitution has granted to the Ombudsman the
recommendation is not merely advisory in nature power to investigate other public officials and employees, such
power is not absolute and exclusive. Congress has the power
but actually mandatory within the bounds of law.
to further define the powers of the Ombudsman and, impliedly,
This, should not be interpreted as usurpation of the to authorize other offices to conduct such investigation over
Ombudsman of the authority of the head of office their respective officials and personnel.
or any officer concerned. It has long been settled The Constitution has vested in Congress alone the power to
that the power of the Ombudsman to investigate grant to any office concurrent jurisdiction with the Ombudsman
and prosecute any illegal act or omission of any to conduct preliminary investigation of cases of graft and
public official is not an exclusive authority, but a corruption.
shared or concurrent authority in respect of the
In a myriad of cases, the SC has recognized the concurrent
offense charged. (Ledesma v. CA, 2005)
jurisdiction of other bodies vis-à-vis the Ombudsman to
conduct preliminary investigation of complaints of graft and
177 corruption as authorized by law, meaning, for any other
178 person or agency to be able to conduct such
Antonio Nachura, Outline on Political Law, 351 (2006) investigations, there must be a law authorizing him or it to
179
Antonio Nachura, Outline on Political Law, 353 (2006) do so.

SCHOOL OF LAW
SCRA 327 cited by Ponente J. Mendoza in Biraogo Q: May the military deputy investigate civilian
v. PTC, Dec. 7, 2010) police?
A: Because the power of the Ombudsman is broad
and because the Deputy Ombudsman acts under
The Ombudsman can also investigate criminal the direction of the Ombudsman, the power of the
offenses committed by public officers which have Military Deputy to investigate members of the
no relation to their office. (Vasquez v. Alino, 271 civilian police has also been affirmed. (Acop v.
SCRA 67) Ombudsman, 1995)
Bar Question (2003)

Ombudsman; Power to Investigate
In Ombudsman v. Estandarte, the Court recognized the A group of losing litigants in a case decided by the
concurrent jurisdiction of the Division School Superintendent Supreme Court filed a complaint before the
vis-à-vis the Ombudsman to conduct preliminary investigation Ombudsman charging the Justices with knowingly
of complaints of graft and corruption committed by public
and deliberately rendering an unjust decision in
school teachers. Such concurrent jurisdiction of the Division
School Superintendent was granted by law, specifically RA utter violation of the penal laws of the land. Can the
4670 or the Magna Carta for Public School Teachers. Ombudsman validly take cognizance of the case?
Explain.
Likewise, in Ombudsman v. Medrano the Court held that by SUGGESTED ANSWER: No, the Ombudsman
virtue of RA 4670 the Department of Education Investigating cannot entertain the complaint. As stated in the
Committee has concurrent jurisdiction with the Ombudsman to case of In re: Laureta. 148 SCRA 382 [1987],
conduct a preliminary investigation of complaints against pursuant to the principle of separation of powers,
public school teachers.
the correctness of the decisions of the Supreme
Even the Sangguniang Panlungsod has concurrent jurisdiction Court as final arbiter of all justiciable disputes is
with the Ombudsman to look into complaints against the conclusive upon all other departments of the
punong barangay. Such concurrent authority is found in RA government; the Ombudsman has no power to
7160 or the Local Government Code review the decisions of the Supreme Court by
The Department of Justice is another agency with jurisdiction entertaining a complaint against the Justices of the
concurrent with the Ombudsman to conduct preliminary Supreme Court for knowingly rendering an unjust
investigation of public officials and employees. Its concurrent decision.
jurisdiction is based on the 1987 Administrative Code.
SECOND ALTERNATIVE ANSWER: Article XI,
Certainly, there is a law, the Administrative Code, which Section 1 of the 1987 Constitution provides that
authorized the Office of the President to exercise jurisdiction public officers must at all times be accountable to
concurrent with the Ombudsman to conduct preliminary the people. Section 22 of the Ombudsman Act
investigation of graft and corruption cases. However, the provides that the Office of the Ombudsman has the
scope and focus of its preliminary investigation are restricted. power to investigate any serious misconduct
Under the principle that the power to appoint includes the allegedly committed by officials removable by
power to remove, each President has had his or her own impeachment for the purpose of filing a verified
version of a presidential committee to investigate graft and
complaint for impeachment if warranted. The
corruption, the last being President Gloria Macapagal Arroyo’s
Presidential Anti-Graft Commission (PAGC) under E.O. No. Ombudsman can entertain the complaint for this
268. The PAGC exercised concurrent authority with the purpose.
Ombudsman to investigate complaints of graft and corruption
against presidential appointees who are not impeachable Q: May the Ombudsman act on a complaint filed by
officers and non-presidential appointees in conspiracy with the disgruntled party litigants against the Supreme
latter. It is in this light that DOH v. Camposano, should be Court alleging certain named members of the Court
understood. At that time, the PCAGC (now defunct) had no as having committed acts that appear to be illegal,
investigatory power over non-presidential appointees; hence
unjust, improper or inefficient? Would it violate the
the President created an ad-hoc committee to investigate both
the principal respondent who was a presidential appointee and principle of separation of powers if he takes
her co-conspirators who were non-presidential appointees. cognizance?
The PAGC (now also defunct), however, was authorized to Suggested Answer by Abelardo Domondon:
investigate both presidential appointees and non-presidential Yes, it is the duty of the Ombudsman to investigate
appointees who were in conspiracy with each other. “on complaint by any person, any act or omission
of any public official, employee, office or agency
However, although pursuant to his power of control the when such act or omission appears to be illegal,
President may supplant and directly exercise the investigatory
unjust, improper or inefficient.” (Article XI, Section
functions of departments and agencies within the executive
department, his power of control under the Constitution and 13(1))
the Administrative Code is confined only to the executive
department. G. Power to Suspend
(Read also the Dissenting Opinion of J. Carpio in Biraogo v.

PTC, Dec. 7, 2010)

SCHOOL OF LAW
Preventive Suspension. The power to investigate SUGGESTED ANSWER: The contention of Director
also includes the power to impose preventive WOW is not meritorious. The suspension meted out
suspension. (Buenaseda v. Flavier, 1993) to him is preventive and not punitive. Section 24 of
Republic Act No. 6770 grants the Ombudsman the
Suspension under the Ombudsman Act vis-à- power to impose preventive suspension up to six
vis the Local Government Code: months. Preventive suspension maybe imposed
In order to justify the preventive suspension of a without any notice or hearing. It is merely a
public official under Section 24 of RA 6770, the preliminary step in an administrative investigation
evidence of guilt should be strong, and: and is not the final determination of the guilt of the
a. The charge against the officer or officer concerned. (Garcia v. Mojica, 314 SCRA 207
employee should involve dishonesty, [1999]).
oppression or grave misconduct or neglect in
the performance of duty; Q: For his part, the Ombudsman moved to dismiss
b. That the charges should warrant WOWs petition. According to the Ombudsman the
removal form the service; or evidence of guilt of WOW is strong, and petitioner
c. The respondent’s continued stay in failed to exhaust administrative remedies. WOW
office would prejudice the case filed against admitted he filed no motion for reconsideration, but
him. only because the order suspending him was
The Ombudsman can impose the 6-month immediately executory. Should the motion to dismiss
preventive suspension to all public officials, be granted or not? Discuss briefly. (5%)
whether elective or appointive, who are under SUGGESTED ANSWER: The motion to dismiss
investigation. should be denied. Since the suspension of Director
WOW was immediately executory, he would have
On the other hand, in imposing the shorter period suffered irreparable injury had he tried to exhaust
of sixty (60) days of preventive suspension administrative remedies before filing a petition in
prescribed in the Local Government Code of 1991 court (University of the Philippines Board of Regents
on an elective local official (at any time after issues v. Rasul, 200 SCRA 685 [19910Besides, the
are joined), it would be enough that: question involved is purely legal. (Azarcon v.
a. There is reasonable ground to believe Bunagan, 399 SCRA 365 [2003]).
that the respondent has committed the act or
acts complained or; Bar Question (1996)
b. The evidence of culpability is strong; Ombudsman; Power to Suspend; Preventive
c. The gravity of the offense so Suspension
warrants; or An administrative complaint for violation of the Anti-
d. The continuance in office of the Graft and Corrupt Practices Act against X was filed
respondent could influence the witnesses or with the Ombudsman. Immediately after taking
pose a threat to the safety and integrity of the cognizance of the case and the affidavits submitted
records and other evidence. (Jose Miranda v. to him, the Ombudsman ordered the preventive
Sandiganbayan, 2005) suspension of X pending preliminary investigation.
X questioned the suspension order, contending
Bar Question (2004) that the Ombudsman can only suspend
Ombudsman: Power to Suspend; Preventive preventively subordinate employees in his own
Suspension office. Is X correct? Explain.
Director WOW failed the lifestyle check conducted SUGGESTED ANSWER: No, X is not correct. As
by the Ombudsman's Office because WOWs assets held in Buenaseda vs. Flavier, 226 SCRA 645.
were grossly disproportionate to his salary and under Section 24 of Republic Act No. 6770, the
allowances. Moreover, some assets were not Ombudsman can place under preventive
included in his Statement of Assets and Liabilities. suspension any officer under his disciplinary
He was charged of graft and corrupt practices and authority pending an investigation. The moment a
pending the completion of investigations, he was complaint is filed with the Ombudsman, the
suspended from office for six months. respondent is under his authority. Congress
intended to empower the Ombudsman to suspend
Q: Aggrieved, WOW petitioned the Court of Appeals all officers, even if they are employed in other
to annul the preventive suspension order on the offices in the Government. The words
ground that the Ombudsman could only recommend "subordinate" and "in his bureau" do not appear in
but not impose the suspension. Moreover, according the grant of such power to the Ombudsman.
to WOW, the suspension was imposed without any
notice or hearing, in violation of due process. Is the H. Power of Ombudsman Over His Office
petitioner's contention meritorious? Discuss briefly.
(5%)
Under the Constitution, the Office of the
Ombudsman is an independent body. As a

SCHOOL OF LAW
guaranty of this independence, the Ombudsman (Presidential Ad-hoc Fact Finding Committee on
has the power to appoint all officials and Behest Loans v. Deseirto, 1999)
employees of the Office of the Ombudsman, except
his deputies. This power necessarily includes the
VI. Ill-gotten Wealth
power of setting, prescribing and administering the
standards for the officials and personnel of the
Office.
Section 15. The right of the State to recover properties
To further ensure its independence, the unlawfully acquired by public officials or employees, from them
Ombudsman has been vested with the power of or from their nominees or transferees, shall not be barred by
administrative control and supervision of the Office. prescription, laches, or estoppel.
This includes the authority to organize such
directorates for administration and allied services
as may be necessary for the effective discharge of This provision applies only to civil actions for
the functions of the Office, as well as to prescribe recovery of ill-gotten wealth and not to criminal
and approve its position structure and staffing cases. Thus, prosecution of offenses arising from,
pattern. Necessarily, it also includes the authority relating, or incident to, or involving ill-gotten wealth
to determine and establish the qualifications, in the said provision may be barred by prescription.
duties, functions and responsibilities of the various (Presidential Ad-hoc Fact Finding Committee on
directorates and allied services of the Office. This Behest Loans v. Desierto, 1999)
must be so if the constitutional intent to establish
an independent Office of the Ombudsman is to Q: Does Section 15 prevent the prescription of the
remain meaningful and significant. The Civil crime?
Service Commission has no power over this.181 A: No. The right to prosecute criminally can
prescribe.185
I. Claim of Confidentiality
Bar Question (2002)
Graft and Corruption; Prescription of Crime
Even the claim of confidentiality will not prevent the Suppose a public officer has committed a violation
Ombudsman from demanding the production of of Section 3 (b) and (c) of the AntiGraft and Corrupt
documents needed for the investigation.182 Practices Act {RA No, 3019), as amended, by
receiving monetary and other material
In Almonte v. Vasquez, 1995, the Court said that considerations for contracts entered into by him in
where the claim of confidentiality does not rest on
the need to protect military, diplomatic or other
behalf of the government and in connection with
national security secrets but on general public other transactions, as a result of which he has
interest in preserving confidentiality, the courts have amassed illegally acquired wealth. (a) Does the
declined to find in the Constitution an absolute criminal offense committed prescribe? (2%) (b)
privilege even for the President.183 Does the right of the government to recover the
illegally acquired wealth prescribe? (3%)
Moreover, even in cases where matters are really
confidential, inspection can be done in camera.184 SUGGESTED ANSWER:
a) A violation of Section 3(b) and (c) of the Anti-
V. Special Prosecutor Graft and Corrupt Practices Act prescribes. As held
in Presidential Ad-Hoc Fact-Finding Committee on
Behest Loans v. Desierto, 317 SCRA 272 (1999),
Section 7. The existing Tanodbayan shall hereafter be known Article XI, Section 15 of the Constitution does not
as the Office of the Special Prosecutor. It shall continue to apply to criminal cases for violation of the Anti-
function and exercise its powers as now or hereafter may be
provided by law, except those conferred on the Office of the
Graft and Corrupt Practices Act
Ombudsman created under this Constitution. (b) Article XI, Section 15 of the Constitution
provides that the right of the State to recover
properties unlawfully acquired by public officials or
employees, or from them or from their nominees or
transferees, shall not be bared by prescription.
This provision applies only to civil actions for
recovery of ill-gotten wealth and not to criminal VII. Restriction on Financial Accomodations
cases. Thus, prosecution of offenses arising from,
relating, or incident to, or involving ill-gotten wealth
in the said provision may be barred by prescription. Section 16. No loan, guaranty, or other form of financial
accommodation for any business purpose may be granted,
181
Ombudsman v. CSC, G.R. No. 162215, July 30, 2007. directly or indirectly, by any government-owned or controlled
182
Bernas Primer at 446 (2006 ed.) bank or financial institution to the President, the Vice-
183
184 185

SCHOOL OF LAW
President, the Members of the Cabinet, the Congress, the 2. An administrative officer given by
Supreme Court, and the Constitutional Commissions, the statute the rank of Justice is not a member of
Ombudsman, or to any firm or entity in which they have the Judiciary, but of the Executive Department.
controlling interest, during their tenure. He may therefore be investigated by the
Ombudsman. The Supreme Court does not
have jurisdiction to investigate because it
VIII. Transparency Rule would be violative of the concept of separation
of powers. (Noblejas v. Tehankee, 1968)
Section 17. A public officer or employee shall, upon

assumption of office and as often thereafter as may be
required by law, submit a declaration under oath of his assets,
liabilities, and net worth. In the case of the President, the Vice-
President, the Members of the Cabinet, the Congress, the
Supreme Court, the Constitutional Commissions and other
constitutional offices, and officers of the armed forces with
general or flag rank, the declaration shall be disclosed to the
public in the manner provided by law.
IX. Allegiance to the State and the Constitution
Section 18. Public officers and employees owe the State and
this Constitution allegiance at all times and any public officer or
employee who seeks to change his citizenship or acquire the
status of an immigrant of another country during his tenure
shall be dealt with by law.
Q: Miguel is a holder of a “green card” entitling him

to be a resident of the United States permanently.
In his application for the card he put down his
intention to reside in the United States
“permanently”. He actually immigrated to the
United States in 1984 and thereby assumed
allegiance to the United States. He however
returned to the Philippines in 1987 to run for mayor
of a municipality. Is Article XI, Section 18
applicable to him? Does he have the necessary
residence requirement?
A: Article XI, Section 18 is not applicable because
it has reference to “incumbents.” What is applicable
is Section 68 of the Omnibus Election Code which
bars “a permanent resident of or an immigrant to a
foreign country” unless he waives his status as a
permanent resident of the foreign country. The
mere filing of a certificate of candidacy is not the
required waiver. It must be by a special act done
before filing a certificate of candidacy. (Caasi v.
CA, 1990)
X. Notes and Comments by Domondon on Article XI
1. Croniyism which involves unduly

favoring a crony to the prejudice of public
interest is a form of violation of the oath of
office which constitute betrayal of the public
trust.

SCHOOL OF LAW
In the pursuit of these goals, all sectors of the economy and all
regions of the country shall be given optimum opportunity to
Article XII develop. Private enterprises, including corporations,
cooperatives, and similar collective organizations, shall be
NATIONAL ECONOMY AND
encouraged to broaden the base of their ownership.
PATRIMONY
A. Threefold goal of the national economy
I. GOALS OF NATIONAL ECONOMY (Section
1) 1. More equitable distribution of wealth;
II. NATURAL RESOURCES/REGALIAN 2. Increase of wealth for the benefit of the
DOCTRINE (Sections 2) people;
III. LANDS OF PUBLIC DOMAIN (Section 3) 3. Increased productivity.
IV. CITIZENSHIP REQUIREMENT
V. FOREST LANDS AND PARKS (Section 4) B. National Policy on Industrialization and
Agricultural Development
VI. ANCESTRAL LANDS AND ANCESTRAL
DOMAIN (Section 5)
VII. STEWARDSHIP CONCEPT; TRANSFER What is envisioned is not necessarily agriculturally
related industrialization but rather industrialization
OF LANDS(Section 6,7, and 8)
that is a result of releasing through agrarian reform
VIII.INDEPENDENT ECONOMIC AND capital locked up in land. Therefore, this does not
PLANNING AGENCY (Section 17) mean a hard-bound rule that agricultural
IX. FILIPINIZATION OF AREAS OF development must have priority over
INVESTEMENTS (Section 18) industrialization. What is envisioned is a flexible
X. PUBLIC UTILITIES (Section 11) and rational relationship between the two as
XI. PREFERNTIAL USE OF FILIPINO LABOR dictated by the common good.186
(Section 12)
XII. TRADE POLICY (Section 13) C. Meaning of the Phrase “UNFAIR FOREIGN
COMPETITION AND TRADE PRACTICES”
XIII. SUSTAINED DEVELOPMENT OF
HUMAN RESOURCE; PRACTICE OF
PROFESSION (Section 14) The phrase is not to be understood in a limited
legal and technical sense but in the sense of
XIV. COOPERATIVES (Section 15)
anything that is harmful to Philippine enterprises. At
XV. GOCCS (Section 16) the same time, however, the intention is not to
XVI. TEMPORARY STATE TAKE-OVER protect local inefficiency. Nor is the intention to
(Section 17) protect local industries from foreign competition at
XVII. NATIONALIZATION OF INDUSTRIES the expense of the consuming public.187
(Section 18)
XVIII. MONOPOLIES (Section 19) D. De-classification of forests reserves
XIX. CENTRAL MONETARY AUTHORITY
(Section 20) The law on forest reserves was amended by
XX. FOREIGN LOANS (Section 21) Prsidential Decree No. 643 dated 17 May 1974.
XXI. PENAL SANCTIONS (Section 22) Whereas under previous law the concurrence of
the National Assembly was needed to withdraw
forest reserves found to be more valuable for their
I. Goals of National Economy
mineral contents than for the purpose for which the
reservation was made and convert the same into
Section 1. The goals of the national economy are a more non-forest reserves, legislative concurrence is no
equitable distribution of opportunities, income, and wealth; a longer needed. All that is required is a
sustained increase in the amount of goods and services recommendation from the DENR Secretary
produced by the nation for the benefit of the people; and an indicating which forest reservations are to be
expanding productivity as the key to raising the quality of life withdrawn.188
for all, especially the under-privileged.
An unclassified forested area may not be acquired
by continuous possession since it is inalienable.189
The State shall promote industrialization and full employment
based on sound agricultural development and agrarian reform, 186
through industries that make full and efficient use of human 187
and natural resources, and which are competitive in both 188
domestic and foreign markets. However, the State shall protect Apex Mining v. Soutneast Mindanao Gold, G.R. No. 152613 &
Filipino enterprises against unfair foreign competition and No. 152628, June 23, 2006.
189
trade practices. Republic v. Naguiat, G.R. No. 134209. January 24,
2006.

SCHOOL OF LAW
B. Consequence of the Regalian Doctrine in Section

II. Natural Resources/Regalian Doctrine 2
Any person claiming ownership of a portion of the

Section 2. All lands of the public domain, waters, public domain must be able to show title from the
minerals, coal, petroleum, and other mineral oils, all forces of state according to any of the recognized modes of
potential energy, fisheries, forests or timber, wildlife, flora and acquisition of title. (Lee Hong Kok v. David, 48
fauna, and other natural resources are owned by the SCRA 372)
State. With the exception of agricultural lands, all other
natural resources shall not be alienated. The exploration, Q: When the regalia doctrine was introduced into
development, and utilization of natural resources shall be
the Philippines by colonizers, did the colonizers
under the full control and supervision of the State. The State
may directly undertake such activities, or it may enter into co- strip the natives of their ownership of lands?
production, joint venture, or production-sharing agreements A: No. “When as far back as testimony or memory
with Filipino citizens, or corporations or associations at least goes, the land has been held by individuals under
sixty per centum of whose capital is owned by such citizens. a claim of private ownership, it will be presumed
Such agreements may be for a period not exceeding twenty- that to have been held in the same way from
five years, renewable for not more than twenty-five years, and before the Spanish conquest, and never to have
under such terms and conditions as may be provided by law. been public land.” (Carino v. Insular Government,
In cases of water rights for irrigation, water supply fisheries, or
1909)
industrial uses other than the development of water power,
beneficial use may be the measure and limit of the grant.
C. Imperium and Dominium
The State shall protect the nation's marine wealth in its
archipelagic waters, territorial sea, and exclusive economic In public law, there exists the well-known distinction
zone, and reserve its use and enjoyment exclusively to Filipino between government authority possessed by the
citizens. State which is appropriately embraced in
sovereignty, and its capacity to own or acquire
The Congress may, by law, allow small-scale utilization of property. The former comes under the heading of
natural resources by Filipino citizens, as well as cooperative imperium, and the latter of dominium. The use of
fish farming, with priority to subsistence fishermen and fish- the term dominium is appropriate with reference to
workers in rivers, lakes, bays, and lagoons. lands held by the State in its proprietary character.
In such capacity, it may provide for the exploitation
The President may enter into agreements with foreign-owned and use of lands and other natural resources,
corporations involving either technical or financial assistance including their disposition, except as limited by the
for large-scale exploration, development, and utilization of Constitution.191
minerals, petroleum, and other mineral oils according to the
general terms and conditions provided by law, based on real D. Limits Imposed by Section 2 on the Jura Regalia
contributions to the economic growth and general welfare of
the country. In such agreements, the State shall promote the
of the State.
development and use of local scientific and technical
resources. 1. Only agricultural lands of the public domain may
be alienated.
The President shall notify the Congress of every contract 2. The exploration, development, and utilization of
entered into in accordance with this provision, within thirty all natural resources shall be under the full
days from its execution.
control and supervision of the State either by
directly undertaking such exploration,
development, and utilization or through co-
A. Regalian Doctrine [Jura Regalia] production, joint venture, or production-sharing
agreements with qualified persons or
corporations.
“The universal feudal theory that all lands were
3. All agreements with the qualified private sector
held from the Crown” (Carino v. Insular
may be for only a period not exceeding twenty-
Government, 1909)
five years, renewable for another twenty-five
years. (The twenty-five year limit is not
(Recognized in the 1935, 1973 and 1987
applicable to “water rights for irrigation, water
Constitutions; As adopted in a republican system,
supply, fisheries, or industrial uses other than
the medieval concept of jura regalia has been
the development of water power,” for which
stripped of regalia overtones: ownership is vested
“beneficial use may be the measure and the
in the State, not in the head of the State. (Lee
limit of the grant.”)
Hong Kok v. David, 48 SCRA 372)190
191
190

SCHOOL OF LAW
4. The use and enjoyment of marine wealth of the authority to do so. In the absence of such
archipelagic waters, territorial sea, and classification, the land remains unclassified public
exclusive economic zone shall be reserved for land under released therefrom and rendered open
Filipino citizens. (It would seem therefore that to disposition.
corporations are excluded or at least must be
fully owned by Filipinos.) Ituralde v. Falcasantos, 1999: Forest land is nt
5. Utilization of natural resources in rivers, lakes, capable of private appropriation and occupation in
bays, and lagoons may be allowed on a “small the absence of a positive act of the government
scale” Filipino citizens or cooperatives- with declassifying it into alienable or disposable land for
priority for subsistence fishermen and agricultural purposes. Accordingly, where there is
fishworkers. (The bias here is for the protection yet no award or grant to petitioner of the land in
of the little people.)192 question by free patent or other ways of acquisition
of public land, petitioner cannot lawfully claim
E. Cases on Regalian Doctrine ownership of the land. Possession of forest lands,
however long, cannot ripen into private ownership.
Sunbeam Convenience Food v. CA, 181 SCRA F. Reclaimed lands
443: “We adhere to the Regalian Doctrine where
all agricultural, timber and mineral lands are
subject to the dominion of the State.” Thus, before Q: What is the nature of reclaimed foreshore and
any land may be classified from the forest group submerged lands?
and converted into alienable or disposable land for A: They are lands of public domain and, unless
agricultural or other purposes, there must be a classified as alienable, may not be disposed of.
positive act from the Government. The mere fact
that a title was issued by the Director of Lands Q: For reclaimed land to be registered as private
does not confer ownership over the property property what is required?
covered by such title where the property is part of A: (1) There must be a proof that the land had
the public forest. been classified as alienable;
(2) The person seeking registration must show
Republic v. Sayo, 191 SCRA 71: It was held that proof of having acquired the property (e.g., by
in the absence of proof that property is privately prescription). (Republic v. Enciso, 2005)
owned, the presumption is that it belongs to the
State. Q: Could the Public Estates Authority dispose of
Thus, where there is no showing that the land had reclaimed lands?
been classified as alienable before the title was A: In order for PEA to sell its reclaimed foreshore
issued, any possession thereof, no matter how and submerged alienable lands of the public
lengthy, cannot ripen into ownership. And all lands domain, there must be legislative authority
not otherwise appearing to be clearly within private empowering PEA to sell these lands. Without such
ownership are presumed to belong to the State. legislative authority, PEA could not sell but only
(Seville v. National Development Company, 2001) lease its reclaimed foreshore and submerged
alienable lands of the public domain.
United Paracale v. de la Rosa, 221 SCRA 108: Nevertheless, any legislative authority granted to
The Court said that consonant with Regalian PEA to sell its reclaimed alienable lands of the
Doctrine, all lands not otherwise appearing to be public domain would be subject to the
clearly within private ownership are presumed to constitutional ban on private corporations from
belong to the State. It is also on the basis of this acquiring alienable lands of the public domain.
doctrine that the State has the power to control Hence, such legislative authority could only benefit
mining claims, as provided in PD 1214. private individuals. (Chavez v. PEA and AMARI,
July 9, 2002)
Republic v. Register of Deeds of Quezon, 244 “Reclaimed lands of the public domain if sold or
SCRA 537: Under the Regalian Doctrine, all lands transferred to a public or municipal corporation for
not otherwise clearly appearing to be privately a monetary consideration become patrimonial
owned are presumed to belong to the State. In our property… [and] may be sold… to private parties,
jurisdiction, the task of administering and disposing whether Filipino citizens of qualified corporations.”
lands of the public domain belongs to the Director (May 6, 2003 Resolution)
of Lands and, ultimately, the Secretary of
Environment and Natural Resources. The Q: What is the nature of the Roponggi property in
classification of public lands is, thus, an exclusive Japan?
prerogative of the Executive Department through A: It is of public dominion (unless it is convincingly
the Office of the President. Courts have no shown that the property has become patrimonial).
As property of public dominion, the Roponggi lot is
192 outside the commerce of man.

SCHOOL OF LAW
or alienate lands of public domain. More

Chavez v. NHA, G.R. No. 164527, August 15, importantly, it cannot attain its avowed purposes
2007. and goals since it can only transfer patrimonial
Reclaimed land is public land. Before it can be lands to qualified beneficiaries and prospective
registed as private property is must be classified as buyers to raise funds for the SMDRP.
alienable.193 Once classified it becomes alienable.
A presidential proclamation is a sufficient From the foregoing considerations, we find that the
instrument for classifying reclaimed land. Thus 79-hectare reclaimed land has been declared
when President Aquino issued MO 415 conveying alienable and disposable land of the public domain;
the land covered by the Smokey Mountain and in the hands of NHA, it has been reclassified
Dumpsite to the National Housing Authority as well as patrimonial property.194
as the area to be reclaimed across R-10, the
coneyance implicitly carried with it the declaration G. Exploration, Development and Utilization of
that said lands are alienable and disposable. Inalienable Resources.
Otherwise, the NHA could not effectively use them “The exploration, development, and utilization of natural
in its housing and resettlement project. President resources shall be under the full control and supervision
Ramos made similar conveyances to the NHA. of the State. The State may directly undertake such
activities, or it may enter into co-production, joint venture,
or production-sharing agreements with Filipino citizens, or
RA 6957 as amended by RA 7718 provides ample
corporations or associations at least sixty per centum of
authority for the classification of reclaimed land. whose capital is owned by such citizens…”
The fact that RA 6957 as modified by RA 7718
declared that t reclaimed lands that shall serve as Q: Section 2 speaks of “co-production, joint
payment to the project proponent already implies venture, or production sharing agreements” as
that the the land has been classified. This modes of exploration, development, and utilization
conclusion is necessary for how else can the land of inalienable lands. Does this effectively exclude
be used as the enabling component for the Project the lease system?
if such classification is not deemed made. A: Yes, with respect to mineral and forest lands.
(Agricultural lands may be subject of lease)195
We ruled in PEA that “alienable lands of public
domain must be transferred to qualified private Q: Who are qualified to take part in the exploration,
parties, or to government entities not tasked to development and utilization of natural resources?
dispose of public lands, before these lands can A: Filipino citizens and corporations or associations
become private or patrimonial lands (emphasis at least sixty percent of whose capital is owned by
supplied).” To lands reclaimed by PEA or through Filipino citizens. (Note however, that as to marine
a contract with a private person or entity, such wealth, only Filipino citizens are qualified. This is
reclaimed lands still remain alienable lands of also true of natural resources in rivers, bays, lakes
public domain which can be transferred only to and lagoons, but with allowance for
Filipino citizens but not to a private corporation. cooperatives.)196
This is because PEA under PD 1084 and EO 525
is tasked to hold and dispose of alienable lands of Q: If natural resources, except agricultural land,
public domain and it is only when it is transferred to cannot be alienated, how may they be explored,
Filipino citizens that it becomes patrimonial developed, or utilized?
property. A: (1) Direct undertaking of activities by the State
or
On the other hand, the NHA is a government (2) Co-production, joint venture, or production-
agency not tasked to dispose of public lands under sharing agreements with the State and all “under
its charter—The Revised Administrative Code of the full control and supervision of the State.”
1987. The NHA is an “end-user agency”
authorized by law to administer and dispose of Q: May the State enter into service contracts with
reclaimed lands. The moment titles over reclaimed foreign owned corporations?
lands based on the special patents are transferred A: Yes, but subject to the strict limitations in the
to the NHA by the Register of Deeds, they are last two paragraphs of Section 2. Financial and e
automatically converted to patrimonial properties of technical agreements are a form of service
the State which can be sold to Filipino citizens and contract. Such service contacts may be entered
private corporations, 60% of which are owned by into only with respect to minerals, petroleum, and
Filipinos. The reason is obvious: if the reclaimed other mineral oils. The grant of such service
land is not converted to patrimonial land once contracts is subject to several safeguards, among
transferred to NHA, then it would be useless to
transfer it to the NHA since it cannot legally transfer 194
Chavez v. NHA, G.R. No. 164527, August 15, 2007.
195
193 196
Republic v. Enciso, G.R. 160145, November 11, 2005. Bernas Primer at 459 (2006 ed.)

SCHOOL OF LAW
them: (1) that the service contract be crafted in F. Financial and Technical Agreements
accordance with a general law setting standard of
uniform terms, conditions and requirements; (2) the The 1987 Constitution did not completely do away
President be the signatory for the government; and with service contracts; but now their scope has
(3) the President report the executed agreement to been limited and are now called financial and
Congress within thirty days. (La Bugal B’laan Tribal technical agreements and hey may be entered into
Assoc., 2004, Reconsideration, 2005) with foreign corporations. The grant of such service
contracts is subject to several safeguards, among
Q: When technical and financial assistance them: (1) that the service contract be crafted in
agreement is entered into under Section 2, can it accordance with a general law setting standard or
include some management role for the foreign uniform terms, conditions and requirements; (2) the
corporation? President be the signatory for the government; and
A: Yes. While the Constitution mentions only (3) the President report the executed agreement to
financial and technical assistance they necessarily Congress within thirty days.197
include the managerial expertise needed in the Foreign contractors may provide not just capital,
creation and operation of the large-scale techonology and technical know-how but also
mining/extractive enterprise, but the government managerial expertise to the extent needed for the
through its agencies (DENR/MGB) must actively creation and operation of the large-scale
exercises full control and supervision over the mining/extractive enterprise. But the government,
entire enterprise. (La Bugal B’laan Tribal Assoc., through its agencies (DENR, MGB) must actively
2004, Reconsideration, 2005) exercises full control and supervision over the
entire enterprise.198
III. Lands of Public Domain

H. Marine Wealth
Article XII, Section 2: “…The State shall protect the Section 3. Lands of the public domain are classified into
nation's marine wealth in its archipelagic waters, agricultural, forest or timber, mineral lands and national parks.
Agricultural lands of the public domain may be further
territorial sea, and exclusive economic zone, and
classified by law according to the uses to which they may be
reserve its use and enjoyment exclusively to devoted. Alienable lands of the public domain shall be limited
Filipino citizens. xxx” to agricultural lands. Private corporations or associations may
not hold such alienable lands of the public domain except by
lease, for a period not exceeding twenty-five years, renewable
for not more than twenty-five years, and not to exceed one
thousand hectares in area. Citizens of the Philippines may
Article XII, Section 2: “The Congress may, by law, lease not more than five hundred hectares, or acquire not
allow small-scale utilization of natural resources by more than twelve hectares thereof, by purchase, homestead,
Filipino citizens, as well as cooperative fish or grant.
farming, with priority to subsistence fishermen and
fishworkers in rivers, lakes, bays, and lagoons. “ Taking into account the requirements of conservation, ecology,
and development, and subject to the requirements of agrarian
reform, the Congress shall determine, by law, the size of lands
of the public domain which may be acquired, developed, held,
or leased and the conditions therefor.
Marginal Fisherman: A marginal fisherman is
defined as an individual engaged in fishing by Classification of Public Lands. The classification
existing price levels, is barely sufficient to yield a of public lands is a function of the executive branch
profit or cover the cost of gathering the fish while a of government, specifically the Director of Lands,
“subsistence” fisherman is one whose catch yields now the Director of the Land Management Bureau.
but the irreducible minimum to his livelihood. The decision of the Director, when approved by the
Secretary of the Department of Environment and
Section 131 of the Local Government Code defines Natural Resources, as to questions of fact, is
a “marginal farmer or fisherman” as one engaged conclusive upon the courts. (Republic v. Imperial,
in subsistence farming or fishing, which shall be 1999)
limited to the sale, barter or exchange of The prerogative of classifying public lands pertains
agricultural or marine products produced by himself to administrative agencies which have been
and his immediate family. The preferential right specially tasked by statutes to do so and the courts
granted to them is not absolute. (Tano v. Socrates,
1997) 197
La Bugal B’laan Tribal Assoc. DENR, G.R. No. 127882,
December 1, 2004. (On Reconsideration) and February 1, 2005.
198
Id.

SCHOOL OF LAW
will not interfere on matters which are addressed to constitutional prohibition against corporations
the sound discretion of government and/or quasi- acquiring lands of the public domain. This is the
judicial agencies entrusted with the regulation of controlling doctrine today.
activities coming under their special technical
knowledge and training.199 The 1987 Constitution prohibits private
corporations from acquiring alienable lands of
Q: Who may change the classification of public the public domain. Amari being a private
lands, e.g., from inalienable to alienable, and how corporation, is barred from such acquisition.
is the classification done? The Public Estates Authority (PEA) is not an
A: The classification of public lands is the exclusive end user agency with respect to the reclaimed
prerogative of the President upon recommendation lands under the amended Joint Venture
of the pertinent department head. (CA No. 141) Agreement, and PEA may simply turn around
and transfer several hundreds of hectares to a
Q: Does the classification of land change single private corporation in one transaction.
automatically when the nature of the land (Chavez v. PEA, 2003)
changes?
A: No. A positive act of the executive is needed. Q: When does land of the public domain become
Anyone who claims that the classification has been private land?
changed must be able to show the positive act of A: When it is acquired from the government either
the President indicating such positive act. The by purchase of by grant. (As held in Oh Cho v.
classification is descriptive of its legal nature and Director of Lands, 75 Phil 980, “all lands that were
not of what the land actually looks like. Hence, for not acquired from the Government, either by
instance, that a former forest has been denuded purchase or by grant, belong to the public domain.
does not by the fact meant that it has ceased to be An exception to the rule would be any land that
forest land. (Director of Lands v. Judge Aquino, should have been in the possession of an occupant
1990) and of his predecessors-in-interest since time
immemorial, for such possession would justify the
Q: Can a land have a mixed classification, e.g., presumption that the land had never been part of
partly mineral, partly agricultural? the public domain or that it had been private
A: No. “The Court feels that the rights over the land property even before the Spanish conquest.”)
are indivisible and that the land itself cannot be half
agricultural and half mineral.(Republic v. CA) Q: Can prescription transform public land into private
Alienable lands of the public domain shall be land?
limited to agricultural lands. It was determined A: Yes, if it is alienable land. (“Open, exclusive and
undisputed possession of alienable public land for the
that the lands subject of the decree of the Court of
period prescribed by law creates the legal fiction whereby
First Instance were not alienable lands of the public the land, upon completion of the requisite period ipso jure
domain, being part of the reservation for provincial and without need of judicial or other sanction, ceases to
park purposes and thus part of the forest zone. be public land and becomes private property. Such open,
Forest land cannot be owned by private persons; continuous, exclusive and notorious occupation of the
its is not registrable, and possession thereof, no disputed properties for more than 30 years must,
matter how lengthy, cannot convert it into private however, be conclusively established. This quantum of
land, unless the land is reclassified and considered proof is necessary to avoid erroneous validation of
actually fictitious claims or possession over the property
disposable and alienable.
in dispute. (San Miguel Corporation v. CA, 1990)
Foreshore land is that part of the land which is Q: In computing the thirty-year period for acquisitive
between the high and low water, and left dry prescription under Section 49(9) of the Public Land Law,
by the flux and reflux of the tides. It is part of can the period before the land (e.g. forest land) is
the alienable land of the public domain and converted into alienable public land be included?
may be disposed of only by lease and not A: NO. The thirty-year period only begins to toll only from
otherwise. (Republic v. Imperial, 1999) the time the land is converted into alienable land.
(Almeda v. CA, 1991)
Private corporations or associations may not Q: Do mining claims acquired, registered, perfected, and
hold such alienable lands of the public domain patentable under the Old Mining Law mature to private
except by lease. In Director of Lands v. IAC and ownership that would entitle the claimant to the ownership
Acme Plywood &Veneer Co., 146 SCRA 509, the thereof?
Supreme Court declared that the 1973 Constitution A: “Mere location does not mean absolute ownership
cannot impair vested rights. Where the land was over the affected land or the mining claim. It merely
acquired in 1962 when corporation were allowed to segregates the located land or area form the public
domain by barring other would-be locators from locating
acquire lands not exceeding 1,024 hectares, the
the same and appropriating for themselves the minerals
same may be registered in 1982, despite the found therein. To rule otherwise would imply that location
199 is all that is needed to acquire and maintain rights over a
Republic v. Mendoza, GR 153727. March 28, 2007.

SCHOOL OF LAW
located mining claim. This, we cannot approve or

sanction because it is contrary to the intention of the Section 4. The Congress shall, as soon as possible,
lawmaker that the locator should faithfully and determine, by law, the specific limits of forest lands and
consistently comply with the requirements for annual work national parks, marking clearly their boundaries on the ground.
and improvements in the located mining claims.” (Director Thereafter, such forest lands and national parks shall be
of Lands v. Kalahi Investments, 1989) conserved and may not be increased nor diminished, except
by law. The Congress shall provide for such period as it may
Q: May aliens lease land of the public domain? determine, measures to prohibit logging in endangered forests
A: No, because that would enjoy enjoyment of the and watershed areas.
natural resources of the public domain.
VI. Ancestral Lands and Ancestral Domain
Q: May an alien lease a private land?
A: Yes. A lease to an alien for a reasonable period
is valid. So is an option giving an alien the right to Section 5. The State, subject to the provisions of this
buy the real property on condition he is granted Constitution and national development policies and programs,
Philippine citizenship. shall protect the rights of indigenous cultural communities to
their ancestral lands to ensure their economic, social, and
IV. Citizenship Requirement cultural well-being.
Co-production, joint venture Filipino citizens or

The Congress may provide for the applicability of customary
or production sharing
laws governing property rights or relations in determining the
agreements [for exploration, Corporations or associations
ownership and extent of ancestral domain.
development and utilization of at least 60% of whose capital
natural resources] is Filipino owned. (Art. XII,
Section 2)
Note:Agreements shall not

exceed a period of 25 years, VII. Stewardship Concept; Transfer of Lands
renewable for anther 25
years.
Use and enjoyment of the Exclusively for Filipino Section 6. The use of property bears a social function, and all
nation’s marine wealth in its Citizens (Art. XII, Section 2) economic agents shall contribute to the common good.
archipelagic waters, territorial Individuals and private groups, including corporations,
sea and exclusive economic cooperatives, and similar collective organizations, shall have
zone {PD 1599]; UN the right to own, establish, and operate economic enterprises,
Convention on the Law of the subject to the duty of the State to promote distributive justice
Sea (ratified by RP in August, and to intervene when the common good so demands.
1983)]
Alienable lands of the public Only for Filipino citizens may
domain [which shall be acquire not more than 12
limited to agricultural lands]: hectares by purchase,
homestead or grant; or lease Section 7. Save in cases of hereditary succession, no private
not more than 500 hectares. lands shall be transferred or conveyed except to individuals,
corporations, or associations qualified to acquire or hold lands
Private corporations may of the public domain.
lease not more than 1,000
hectares for 25 years,
renewable for another 25
years.
Certain areas of investment Reserved for Filipino citizens Section 8. Notwithstanding the provisions of Section 7 of this
[as Congress shall provide or corporations 60% of whose Article, a natural-born citizen of the Philippines who has lost
when the national interest so capital is Filipino owned, his Philippine citizenship may be a transferee of private lands,
dictates] although Congress may subject to limitations provided by law.
prescribe a higher percentage
of Filipino ownership (Art. XII,
See Annex 1:”Sixth Regular Section 10) A. Stewardship Concept
Foreign Investment Negative
List,” Lists A and B)
Franchise, certificate or any Only to citizens of the See Section 6.
other form of authorization for Philippines or corporations at
the operation of a public least 60% of whose capital is B. Private Lands
utility. Filipino owned. (Art. XII, 1. Rule and Exceptions
Section 11)
RULE: No private lands shall be transferred or

conveyed except to individuals, corporations, or
V. Forest Lands and Parks

SCHOOL OF LAW
associations qualified to acquire or hold lands of Thus, even if private respondents were already
the public domain. Canadians when they applied for registration of the
properties in question, there could be no legal
EXCEPTIONS: impediment for the registration thereof, considering
that it is undisputed that they were formerly natural-
born citizens. (Republic v. CA, 235 SCRA 657)
1. Hereditary Succession (This does not apply to RA 8179 provides that natural-born Filipino citizen
testamentary dispositions, Ramirez v. Vda. De may acquire to a maximum area of private land to
Ramirez, 111 SCRA 740) 5,000 square meters for urban land and 3 hectares
2. A natural born citizen of the Philippines who for rural land. Furthermore, such land may now be
has lost his Philippine citizenship may be a used for business and for other purposes.
transferee of private lands (Section 8, Article
XII)
3. Americans hold valid title to private Americans hold valid title to private lands as
lands as against private persons against private persons.
A previous owner may no longer recover the land

from an American buyer who succeeded in
obtaining title over the land. Only the State has the
No private lands shall be transferred or superior right to the land, through the institution of
conveyed except to individuals, corporations, escheat proceedings [as a consequence of the
or associations qualified to acquire or hold violation of the Constitution], or through an action
lands of the public domain. for reversion [as expressly authorized under the
Any sale or transfer in violation of the prohibition is Public Land Act with respect to lands which
null and void. In Ong Ching Po v. CA, 239 SCRA formerly formed part of the public domain].
341, it was held that even if the petitioner proves
that the Deed of Sale in his favor is in existence
and duly executed, nonetheless, being an alien, 2. Remedies to Recover Private Land from
petitioner is disqualified from acquiring and owning Disqualified Alien
real property. 1. Escheat Proceedings
2. Action for Reversion under the Public Land Act
Frenzel v. Catito, 2003: The Supreme Court 3. An action for recovery filed by the former
said that inasmuch as the petitioner is an alien, Filipino owner (unless the land is sold to an
he is disqualified form acquiring and owning American citizen prior to July 3, 1974 and the
lands in the Philippines. The sale of three American citizen obtained title thereto.
parcels of lands was null and void. Neither can
the petitioner recover the money he had spent Action for reversion under the Public Land Act.
for the purchase thereof. Equity, as a rule will The Director of Lands has the authority and the
follow the law, and will not permit to be done specific duty to conduct investigations of alleged
indirectly that which, because of public policy, fraud in obtaining free patents and the
cannot be done directly. corresponding titles to alienable public lands, and ,
if facts disclosed in the investigation warrant, to file
An action to recover the property sold filed by the corresponding court action for reversion of the
the former owner will lie. (The pari delicto rule land to the State. (Republic v. CA, 172 SCRA 1)
has been abandoned as early as PBC v. Lui She, The action of the State for reversion to the public
21 SCRA 52, where the Supreme Court declared domain of land fraudulently granted to private
that a lease for 99 years, with a 50-year oprtion to individuals is imprescriptible. (Baguio v. Republic,
purchase the property if and when Wong Heng 1999)
would be naturalized, is a virtual surrender of all But it is the State alone which may institute
rights incident to ownership, and therefore, invlaid.) reversion proceedings against public lands
allegedly acquired through fraud and
Land sold to an alien which was later transferred to misrepresentation pursuant to Section 101 of the
a Filipino citizen—or where the alien later becomes Public Land Act. Private parties are without legal
a Filipino citizen—can no longer be recovered by standing at all to question the validity of the
the vendor, because there is no longer any public respondent’s title (Urquiga v. CA, 1999)
policy involved. (Republic v. IAC, 175 SCRA 398; Thus, in Tankiko v. Cezar, 1999, it was held that
Halili v. CA, 1997; Lee v. Director of Lands, 2001) where the property in dispute is still part of the
public domain, only the State can file suit for
A natural born citizen of the Philippines who reconveyance of such public land. Respondents,
has lost his Philippine citizenship may be a who are merely applicants for sales patent thereon,
transferee of private lands, subject to are not proper parties to file an action for
limitations provided by law. reconveyance.

SCHOOL OF LAW
Section 9. The Congress may establish an independent

The State can be put in estoppels by the economic and planning agency headed by the President,
mistakes or errors of its officials or agents. which shall, after consultations with the appropriate public
Estoppel against the State is not favored; it agencies, various private sectors, and local government units,
recommend to Congress, and implement continuing integrated
may be invoked only in rare and unusual
and coordinated programs and policies for national
circumstances as it would operate to defeat development.
the effective operation of a policy adopted to
protect the public. However, the State may not
be allowed to deal dishonorably or capriciously Until the Congress provides otherwise, the National Economic
and Development Authority shall function as the independent
with its citizens. planning agency of the government.
In Republic v. CA, 1999 because for nearly 20
years starting from the issuance of the titles I
n1996 to the filing of the complaint in 1985, the
State failed to correct and recover the alleged
increase in the land area of the titles issued, IX. Filipinization of Areas of Investments
the prolonged inaction strongly militates
against its cause, tantamount to laches, which
means the “failure or neglect, for an Section 10. The Congress shall, upon recommendation of the
unreasonable and unexpected length of time, economic and planning agency, when the national interest
to do that which by exercising due diligence dictates, reserve to citizens of the Philippines or to
could or should have been done earlier.” It is corporations or associations at least sixty per centum of whose
negligence or omission to assert a right within capital is owned by such citizens, or such higher percentage
a reasonable time, warranting a presumption as Congress may prescribe, certain areas of investments. The
Congress shall enact measures that will encourage the
that the party entitled to assert it either
formation and operation of enterprises whose capital is wholly
abandoned it or declined to assert it. owned by Filipinos.
Foreign corporations and land. A foreign

In the grant of rights, privileges, and concessions covering the
corporation may buy shares in excess of 40% of
national economy and patrimony, the State shall give
the shares of the corporation. But the effect would preference to qualified Filipinos.
be that the corporation it buys into would lose its
status as a Filipino corporation and its capacity to
The State shall regulate and exercise authority over foreign
hold private land.200
investments within its national jurisdiction and in accordance
It should be noted, however, that the prohibition in with its national goals and priorities.
the Constitution on aliens applies only to ownership
of land. It does not extend to all immovable or real
property as defined under Article 415 of the Civil Manila Prince Hotel v. GSIS, 277 SCRA 408: The
Code, that is, those which are considered Supreme Court said that the term “patrimony”
immovable for being attached to land, including pertains to heritage—and for over eight decades,
buildings and construction of all kind attached to the Manila Hotel has been mute witness to the
the soil.201 triumphs and failures, loves and frustrations of the
Filipino; its existence is impressed with public
Violation by aliens. An attempt by an alien to interest; its own historicity associate with our
circumvent to prohibition on alien acquisition of struggle for sovereignty, independence and
land can have dire consequences for such alien. nationhood. Verily, the Manila Hotel has become
Thus an alien may not be reimbursed for the part of our national economy and patrimony, and
money he gave to his wife to purchase land and 51 % of its equity comes within the purview of the
build a house.. Upon the dissolution of the constitutional shelter, for it comprises the majority
community of property the alien reimbursement in and controlling stock. Consequently, the Filipino
equity on the theory that Maria merely held the First policy provisions is applicable. Furthermore,
property in trust. To claim equity he must come the Supreme Court said that this provision is a
with clean hands. Klaus knew he was violating the positive command which is complete in itself and
law when he purchased the land.202 needs no further guidelines or implementing rules
or laws for its operation. It is per se enforceable. It
means precisely that Filipinos should be preferred
VIII. Independent Economic and Planning Agency and when the Constitution declares that a right
exists in certain specified circumstances, an action
may be maintained to enforce such right.
200 X. Public Utilities

J.G. Summit v. C.A., G.R. No. 124293. January 31, 2005
201
J.G. Summit v. C.A., G.R. No. 124293. January 31, 2005
202
Muller v. Muller, G.R. No. 149615, August 29, 2006.

SCHOOL OF LAW
Section 11. No franchise, certificate, or any other form of rolling stocks like coaches, rail stations, terminals
authorization for the operation of a public utility shall be and power plant, not public utility. What constitute a
granted except to citizens of the Philippines or to corporations public utility is not their ownership but their use to
or associations organized under the laws of the Philippines, at the public.
least sixty per centum of whose capital is owned by such Bagatsing v. Committee on Privatization: The
citizens; nor shall such franchise, certificate, or authorization
be exclusive in character or for a longer period than fifty years. Court held that Petron is not a public utility; hence
Neither shall any such franchise or right be granted except there is no merit to petitioner’s contention that the
under the condition that it shall be subject to amendment, sale of the block of shares to Aramco violated
alteration, or repeal by the Congress when the common good Article XII, Section 11 of the Constitution. A public
so requires. The State shall encourage equity participation in utility is one organized “for hire or compensation” to
public utilities by the general public. The participation of foreign serve the public, which is given the right to demand
investors in the governing body of any public utility enterprise its service. Petron is not engaged in oil refining for
shall be limited to their proportionate share in its capital, and hire or compensation to process the oil of other
all the executive and managing officers of such corporation or
association must be citizens of the Philippines. parties.
JG Summit Holdings v. CA, 2003: A public utility

A franchise, certificate or authorization shall not be is a business or service engaged in regularly
exclusive nor for a period more than 50 years, and supplying the public with some commodity or
shall be subject to amendment, alteration or repeal service of public consequence, such as electricity,
by Congress. All executive and managing officers gas, water, transportation, telephone or telegraph
must Filipino citizens. In Pilipino Telephone service. To constitute a public utility, the facility
Corporation v. NRC, 2003, it was held that a must be necessary for the maintenance of life and
franchise to operate a public utility is not an occupation of the residents. As the name indicates,
exclusive private property of the franchisee. No “public utility” implies public use and service to the
franchisee can demand or acquire exclusivitly in public. A shipyard is not a public utility. Its nature
the operation of a public utility. Thus, a franchisee dictates that it serves but a limited clientele whom it
cannot complain of seizure or taking of property may choose to serve at its discretion. It has no
because of the issuance of another franchise to a legal obligation to render the services sought by
competitor. each and every client.
See Albano v. Reyes, 175 SCRA 264, where the TELEBAP v. COMELEC, 289 SCRA 337: All
Supreme Court said that Congress does not have broadcasting, whether by radio or television
the exclusive power to issue such authorization. stations, is licensed by the Government. Radio and
Administrative bodies, e.g. LTFRB, ERB, etc., may television companies do not own the airwaves and
be empowered to do so. frequencies; they are merely given temporary
In Philippine Airlines v. Civil Aeronautics Board, privilege of using them. A franchise is a privilege
1997 where it was held that Section 10, RA 776, subject to amendment, and the provision of BP 881
reveals the clear intent of Congress to delegate the granting free airtime to the COMELEC is an
authority to regulate the issuance of a license to amendment of the franchise of radio and television
operate domestic air transport services. stations.
In United Broadcasting Networks v. National
Telecommunications Commission, 2003: the JG Summit Holdings v. CA, 2003: A joint venture
Supreme Court acknowledged that there is a trend falls within the purview of an “association” pursuant
towards delegating the legislative power to to Section 11 of Article XII; thus a joint venture
authorize the operation of certain public utilities to which would engage in the business of operating a
administrative agencies and dispensing with the public utility, such as a shipyard must comply with
requirement of a congressional franchise. the 60%-40% Filipino-foreign capitalization
However, in this case, it was held that in view of requirement.
the clear requirement for a legislative franchise
under PD 576-A, the authorization of a certificate of
public convenience by the NTC for the petitioner to XI. Preferential Use of Filipino Labor
operate television Channel 25 does not dispense
with the need for a franchise.
Section 12. The State shall promote the preferential use of
Tatad v. Garcia: The Constitution, in no uncertain Filipino labor, domestic materials and locally produced goods,
terms, requires a franchise for the operation of and adopt measures that help make them competitive.
public utilities. However, it does not require a
franchise before one can own the facilities needed
to operate a public utility so long as it does not
operate them to serve the public. What private
respondent, in this case, owns are rail tracks, XII. Trade Policy

SCHOOL OF LAW
Section 13. The State shall pursue a trade policy that serves under reasonable terms prescribed by it, temporarily take over
the general welfare and utilizes all forms and arrangements of or direct the operation of any privately-owned public utility or
exchange on the basis of equality and reciprocity. business affected with public interest.
Takeover of Public Utilities. The power given to

the President to take over the operation of public
utilities does not stand alone. It is activated only if
Congress grants emergency powers to the
XIII. Sustained Development of Human Resource; President under Article VI, Section 23.203
Practice of Profession
Section 14. The sustained development of a reservoir of XVII. Nationalization of Industries

national talents consisting of Filipino scientists, entrepreneurs,
professionals, managers, high-level technical manpower and
skilled workers and craftsmen in all fields shall be promoted by Section 18. The State may, in the interest of national welfare
the State. The State shall encourage appropriate technology or defense, establish and operate vital industries and, upon
and regulate its transfer for the national benefit. payment of just compensation, transfer to public ownership
utilities and other private enterprises to be operated by the
The practice of all professions in the Philippines shall be Government.
limited to Filipino citizens, save in cases prescribed by law.
XVIII. Nationalization of Industries

XIV. Cooperatives
Section 19. The State shall regulate or prohibit monopolies

Section 15. The Congress shall create an agency to promote when the public interest so requires. No combinations in
the viability and growth of cooperatives as instruments for restraint of trade or unfair competition shall be allowed.
social justice and economic development.
Monopoly. A monopoly is “a privilege or peculiar
In Cooperative Development Authority v. Dolefil advantage vested in one more persons or
Agrarian Reforms Beneficiaries Cooperative, 2002, companies, consisting in the exclusive right (or
the Supreme Court said that, after ascertaining the power) to carry on a particular business or trade,
clear legislative intent of RA 6939, it now rules that manufacture a particular article, or control the sale
the Cooperative Development Authority (CDA) is of a particular commodity.” Clearly, monopolies are
devoid of any quasi-judicial authority to adjudicate not per se prohibited by the Constitution but may
intra-cooperative disputes and, more particularly, be permitted to exist to aid the government in
disputes related to the election of officers and carrying on an enterprise or to aid in the
directors of cooperatives. It may however, conduct performance of various services and functions in
hearings and inquiries in the exercise of its the interest of the public. However, because
administrative functions. monopolies are subject to abuses that can inflict
severe prejudice to the public, they are subjected
to a higher of State regulation than an ordinary
XV. GOCCs
business undertaking (Agan Jr. v. PIATCO)
The Constitution does not absolutely prohibit
monopolies. Thus for example, an award for
Section 16. The Congress shall not, except by general law,
provide for the formation, organization, or regulation of private stevedoring and arrastre services to only one
corporations. Government-owned or controlled corporations corporation is valid. (Philippine Authority v.
may be created or established by special charters in the Mendoza)
interest of the common good and subject to the test of
economic viability. Be that as it may, in Tatad v. Sec., 1997, the
Supreme Court declared that Article XII, Section 19
is anti-trust in history and spirit; it espouses
competition. The desirability of competition is the
reason for the prohibition against restraint of trade,
XVI. Temporary State Take-Over the reason for the interdiction of unfair competition,
and the reason for the prohibition in unmitigated
Section 17. In times of national emergency, when the public 203
interest so requires, the State may, during the emergency and Obiter in David v. Ermita, G.R. No. 171409, May 3,
2006.

SCHOOL OF LAW
monopolies. A market controlled by one player XX. Foreign Loans

(monopoly) or dominated by a handful of players
(oligopoly) is hardly the marker where honest-to-
goodness competition will prevail. In this case, it Section 21. Foreign loans may only be incurred in accordance
cannot be denied that our downstream oil industry with law and the regulation of the monetary authority.
is operated and controlled by oligopoly, foreign Information on foreign loans obtained or guaranteed by the
oligopoly at that. So, of only to help the may who Government shall be made available to the public.
are poor from further suffering as a result of
unmitigated increase in the prices of oil products
due to deregulation, it is a must that RA 8180 be
XXI. Penal Sanctions
repealed completely.
In Tanada v. Angara, 272 SCRA 18, the Supreme Section 22. Acts which circumvent or negate any of the
Court said that the WTO does not violate Article II provisions of this Article shall be considered inimical to the
Section 19, nor Sections 19 and 12 of Article XII, national interest and subject to criminal and civil sanctions, as
because these sections should be read and may be provided by law.
understood in relation to Sections 1 and 13 of
Article XII, which require the pursuit of trade policy
that “serves the general welfare and utilizes all
forms and arrangements of exchange on the basis
of equality and reciprocity.”
In Association of Philippine Coconut Desiccators v.
Philippine Coconut Authority, 1998, the Supreme
Court declared that although the Constitution
enshrines free enterprise as a policy, it
nevertheless reserves to the Government the
power to intervene whenever necessary for the
promotion of the general welfare, as reflected in
Sections 6 ad 19 of Article XII.
Monopolies in restraint of trade. Contracts

requiring exclusivity are not per se void. Each
contract must be viewed vis-à-vis all the
circumstances surrounding such agreement in
deciding whether a restrictive practice should be
prohibited as imposing an unreasonable restraint
on competition.204
XIX. Central Monetary Authority
Section 20. The Congress shall establish an independent

central monetary authority, the members of whose governing
board must be natural-born Filipino citizens, of known probity,
integrity, and patriotism, the majority of whom shall come from
the private sector. They shall also be subject to such other
qualifications and disabilities as may be prescribed by law. The
authority shall provide policy direction in the areas of money,
banking, and credit. It shall have supervision over the
operations of banks and exercise such regulatory powers as
may be provided by law over the operations of finance
companies and other institutions performing similar functions.
Until the Congress otherwise provides, the Central Bank of the

Philippines operating under existing laws, shall function as the
central monetary authority.
204
Avon v. Luna, G. R. No. 153674, December 20,
2006.


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FRATERNAL ORDER OF UTOPIA

ATENEO DE MANILA UNIVERSITY

MANGUERA OUTLINE 2011

practice before it or before any of its offices. Such

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proceeding is before a court, the Rules of Court

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Authority to Recall Appointments. The Omnibus The Commission is an administrative agency,

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2. Temporary Appointments The CSC is not a co-manager, or surrogate

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official shall hold any other office or

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1. To inform the people of the exact amount

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(The above interpretation seems to be too strict. It III. Commission on Elections

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capacity. The choice of temporary chairman fall under the

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Power to Ascertain identity of a political party

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Who decides problems involving In a congressional election, the losing

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their suffrages. This rule will also enable the

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newspaper columnists from commenting on the

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Power to Declare Failure of Elections

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4. The COMELEC has no power to make a of the division agree. (Soriano et al v

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control and supervision of the Section 8: Parties…registered under the party-list

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Commission on Audit is composed of a Chairman

IV. Commission on Audit D. Powers and Duties of COA

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unconscionable. (Sambeli v. Province of directors, officials or employees of GOCC receiving

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Section 4. The Commission shall submit to the President and

Purpose of Report. Through the report required

The authority of the Commission to recommend

H. Review of Commission’s Decisions

The review power of the SC over decision of the

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B. Quotable Quotes on Nature of Local

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