LGC

THE CTY GOVERNMENT OF QUEZON CTY, AND THE CTY
TREASURER OF QUEZON CTY, DR. VCTOR B.

ENRGA, Petitioners,
vs.
BAYAN TELECOMMUNCATONS, NC., Respondent.
D E C S O N
GARCA,
Before the Court, on pure questions of law, is this petition for review on
certiorari under Rule 45 of the Rules of Court to nullify and set aside
the following issuances of the Regional Trial Court (RTC) of Quezon
City, Branch 227, in its Civil Case No. Q-02-47292, to wit:
1) Decision
1
dated June 6, 2003, declaring respondent Bayan
Telecommunications, nc. exempt from real estate taxation on its real
properties located in Quezon City; and
2) Order
2
dated December 30, 2003, denying petitioners' motion for
reconsideration.
The facts:
Respondent Bayan Telecommunications, nc.
3
(Bayantel) is a
legislative franchise holder under Republic Act (Rep. Act) No. 3259
4
to
establish and operate radio stations for domestic telecommunications,
radiophone, broadcasting and telecasting.
Of relevance to this controversy is the tax provision of Rep. Act No.
3259, embodied in Section 14 thereof, which reads:
SECTON 14. (a) The grantee shall be liable to pay the same taxes on
its real estate, buildings and personal property, exclusive of the
franchise, as other persons or corporations are now or hereafter may
be required by law to pay. (b) The grantee shall further pay to the
Treasurer of the Philippines each year, within ten days after the audit
and approval of the accounts as prescribed in this Act, one and one-
half per centum of all gross receipts from the business transacted
under this franchise by the said grantee (Emphasis supplied).
On January 1, 1992, Rep. Act No. 7160, otherwise known as the
"Local Government Code of 1991" (LGC), took effect. Section 232 of
the Code grants local government units within the Metro Manila Area
the power to levy tax on real properties, thus:
SEC. 232. Power to Levy Real Property Tax. A province or city or a
municipality within the Metropolitan Manila Area may levy an annual ad
valorem tax on real property such as land, building, machinery and
other improvements not hereinafter specifically exempted.
Complementing the aforequoted provision is the second paragraph of
Section 234 of the same Code which withdrew any exemption from
realty tax heretofore granted to or enjoyed by all persons, natural or
juridical, to wit:
SEC. 234 - Exemptions from Real Property Tax. The following are
exempted from payment of the real property tax:
xxx xxx xxx
Except as provided herein, any exemption from payment of real
property tax previously granted to, or enjoyed by, all persons, whether
natural or juridical, including government-owned-or-controlled
corporations is hereby withdrawn upon effectivity of this Code
(Emphasis supplied).
On July 20, 1992, barely few months after the LGC took effect,
Congress enacted Rep. Act No. 7633, amending Bayantel's original
franchise. The amendatory law (Rep. Act No. 7633) contained the
following tax provision:
SEC. 11. The grantee, its successors or assigns shall be liable to pay
the same taxes on their real estate, buildings and personal property,
exclusive of this franchise, as other persons or corporations are now or
hereafter may be required by law to pay. n addition thereto, the
grantee, its successors or assigns shall pay a franchise tax equivalent
to three percent (3%) of all gross receipts of the telephone or other
telecommunications businesses transacted under this franchise by the
grantee, its successors or assigns and the said percentage shall be in
lieu of all taxes on this franchise or earnings thereof. Provided, That
the grantee, its successors or assigns shall continue to be liable for
income taxes payable under Title of the National nternal Revenue
Code .. xxx. [Emphasis supplied]
t is undisputed that within the territorial boundary of Quezon City,
Bayantel owned several real properties on which it maintained various
telecommunications facilities. These real properties, as hereunder
described, are covered by the following tax declarations:
(a) Tax Declaration Nos. D-096-04071, D-096-04074, D-096-04072
and D-096-04073 pertaining to Bayantel's Head Office and Operations
Center in Roosevelt St., San Francisco del Monte, Quezon City
allegedly the nerve center of petitioner's telecommunications franchise
operations, said Operation Center housing mainly petitioner's Network
Operations Group and switching, transmission and related equipment;
(b) Tax Declaration Nos. D-124-01013, D-124-00939, D-124-00920
and D-124-00941 covering Bayantel's land, building and equipment in
Maginhawa St., Barangay East Teacher's Village, Quezon City which
houses telecommunications facilities; and
(c) Tax Declaration Nos. D-011-10809, D-011-10810, D-011-10811,
and D-011-11540 referring to Bayantel's Exchange Center located in
Proj. 8, Brgy. Bahay Toro, Tandang Sora, Quezon City which houses
the Network Operations Group and cover switching, transmission and
other related equipment.
n 1993, the government of Quezon City, pursuant to the taxing power
vested on local government units by Section 5, Article X of the 1987
Constitution, infra, in relation to Section 232 of the LGC, supra,
enacted City Ordinance No. SP-91, S-93, otherwise known as the
Quezon City Revenue Code (QCRC),
5
imposing, under Section 5
thereof, a real property tax on all real properties in Quezon City, and,
reiterating in its Section 6, the withdrawal of exemption from real
property tax under Section 234 of the LGC, supra. Furthermore, much
like the LGC, the QCRC, under its Section 230, withdrew tax
exemption privileges in general, as follows:
SEC. 230. Withdrawal of Tax Exemption Privileges. Unless otherwise
provided in this Code, tax exemptions or incentives granted to, or
presently enjoyed by all persons, whether natural or juridical, including
government owned or controlled corporations, except local water
districts, cooperatives duly registered under RA 6938, non-stock and
non-profit hospitals and educational institutions, business enterprises
certified by the Board of nvestments (BO) as pioneer or non-pioneer
for a period of six (6) and four (4) years, respectively, . are hereby
withdrawn effective upon approval of this Code (Emphasis supplied).
Conformably with the City's Revenue Code, new tax declarations for
Bayantel's real properties in Quezon City were issued by the City
Assessor and were received by Bayantel on August 13, 1998, except
one (Tax Declaration No. 124-01013) which was received on July 14,
1999.
Meanwhile, on March 16, 1995, Rep. Act No. 7925,
6
otherwise known
as the "Public Telecommunications Policy Act of the Philippines,"
envisaged to level the playing field among telecommunications
companies, took effect. Section 23 of the Act provides:
SEC. 23. Equality of Treatment in the Telecommunications ndustry.
Any advantage, favor, privilege, exemption, or immunity granted under
existing franchises, or may hereafter be granted, shall ipso facto
become part of previously granted telecommunications franchises and
shall be accorded immediately and unconditionally to the grantees of
such franchises: Provided, however, That the foregoing shall neither
apply to nor affect provisions of telecommunications franchises
concerning territory covered by the franchise, the life span of the
franchise, or the type of service authorized by the franchise.
On January 7, 1999, Bayantel wrote the office of the City Assessor
seeking the exclusion of its real properties in the city from the roll of
taxable real properties. With its request having been denied, Bayantel
interposed an appeal with the Local Board of Assessment Appeals
(LBAA). And, evidently on its firm belief of its exempt status, Bayantel
did not pay the real property taxes assessed against it by the Quezon
City government.
On account thereof, the Quezon City Treasurer sent out notices of
delinquency for the total amount ofP43,878,208.18, followed by the
issuance of several warrants of levy against Bayantel's properties
preparatory to their sale at a public auction set on July 30, 2002.
Threatened with the imminent loss of its properties, Bayantel
immediately withdrew its appeal with the LBAA and instead filed with
the RTC of Quezon City a petition for prohibition with an urgent
application for a temporary restraining order (TRO) and/or writ of
preliminary injunction, thereat docketed as Civil Case No. Q-02-47292,
which was raffled to Branch 227 of the court.
On July 29, 2002, or in the eve of the public auction scheduled the
following day, the lower court issued a TRO, followed, after due
hearing, by a writ of preliminary injunction via its order of August 20,
2002.
And, having heard the parties on the merits, the same court came out
with its challenged Decision of June 6, 2003, the dispositive portion of
which reads:
WHEREFORE, premises considered, pursuant to the enabling
franchise under Section 11 of Republic Act No. 7633, the real estate
properties and buildings of petitioner [now, respondent Bayantel] which
have been admitted to be used in the operation of petitioner's franchise
described in the following tax declarations are hereby DECLARED
exempt from real estate taxation:
(1) Tax Declaration No. D-096-04071
The preliminary prohibitory injunction issued in the August 20, 2002
Order of this Court is hereby made permanent. Since this is a
resolution of a purely legal issue, there is no pronouncement as to
costs.
SO ORDERED.
Their motion for reconsideration having been denied by the court in its
Order dated December 30, 2003, petitioners elevated the case directly
to this Court on pure questions of law, ascribing to the lower court the
following errors:
. []n declaring the real properties of respondent exempt from real
property taxes notwithstanding the fact that the tax exemption granted
to Bayantel in its original franchise had been withdrawn by the [LGC]
and that the said exemption was not restored by the enactment of RA
7633.
. [n] declaring the real properties of respondent exempt from real
property taxes notwithstanding the enactment of the [QCRC] which
withdrew the tax exemption which may have been granted by RA
7633.
property taxes notwithstanding the vague and ambiguous grant of tax
exemption provided under Section 11 of RA 7633.
V. [n] declaring the real properties of respondent exempt from real
property taxes notwithstanding the fact that [it] had failed to exhaust
administrative remedies in its claim for real property tax exemption.
(Words in bracket added.)
As we see it, the errors assigned may ultimately be reduced to two (2)
basic issues, namely:
1. Whether or not Bayantel's real properties in Quezon City are exempt
from real property taxes under its legislative franchise; and
2. Whether or not Bayantel is required to exhaust administrative
remedies before seeking judicial relief with the trial court.
We shall first address the second issue, the same being procedural in
nature.
Petitioners argue that Bayantel had failed to avail itself of the
administrative remedies provided for under the LGC, adding that the
trial court erred in giving due course to Bayantel's petition for
prohibition. To petitioners, the appeal mechanics under the LGC
constitute Bayantel's plain and speedy remedy in this case.
The Court does not agree.
Petitions for prohibition are governed by the following provision of Rule
65 of the Rules of Court:
SEC. 2. Petition for prohibition. When the proceedings of any
tribunal, . are without or in excess of its or his jurisdiction, or with
grave abuse of discretion amounting to lack or excess of jurisdiction,
and there is no appeal or any other plain, speedy, and adequate
remedy in the ordinary course of law, a person aggrieved thereby may
file a verified petition in the proper court, alleging the facts with
certainty and praying that judgment be rendered commanding the
respondent to desist from further proceedings in the action or matter
specified therein, or otherwise, granting such incidental reliefs as law
and justice may require.
With the reality that Bayantel's real properties were already levied
upon on account of its nonpayment of real estate taxes thereon, the
Court agrees with Bayantel that an appeal to the LBAA is not a speedy
and adequate remedy within the context of the aforequoted Section 2
of Rule 65. This is not to mention of the auction sale of said properties
already scheduled on July 30, 2002.
Moreover, one of the recognized exceptions to the exhaustion- of-
administrative remedies rule is when, as here, only legal issues are to
be resolved. n fact, the Court, cognizant of the nature of the questions
presently involved, gave due course to the instant petition. As the
Court has said in Ty vs. Trampe:
7

xxx. Although as a rule, administrative remedies must first be
exhausted before resort to judicial action can prosper, there is a well-
settled exception in cases where the controversy does not involve
questions of fact but only of law. xxx.
Lest it be overlooked, an appeal to the LBAA, to be properly
considered, required prior payment under protest of the amount
of P43,878,208.18, a figure which, in the light of the then prevailing
Asian financial crisis, may have been difficult to raise up. Given this
reality, an appeal to the LBAA may not be considered as a plain,
speedy and adequate remedy. t is thus understandable why Bayantel
opted to withdraw its earlier appeal with the LBAA and, instead, filed its
petition for prohibition with urgent application for injunctive relief in Civil
Case No. Q-02-47292. The remedy availed of by Bayantel under
Section 2, Rule 65 of the Rules of Court must be upheld.
This brings the Court to the more weighty question of whether or not
Bayantel's real properties in Quezon City are, under its franchise,
exempt from real property tax.
The lower court resolved the issue in the affirmative, basically owing to
the phrase "exclusive of this franchise" found in Section 11 of
Bayantel's amended franchise, Rep. Act No. 7633. To petitioners,
however, the language of Section 11 of Rep. Act No. 7633 is neither
clear nor unequivocal. The elaborate and extensive discussion devoted
by the trial court on the meaning and import of said phrase, they add,
suggests as much. t is petitioners' thesis that Bayantel was in no time
given any express exemption from the payment of real property tax
under its amendatory franchise.
There seems to be no issue as to Bayantel's exemption from real
estate taxes by virtue of the term "exclusive of the franchise" qualifying
the phrase "same taxes on its real estate, buildings and personal
property," found in Section 14, supra, of its franchise, Rep. Act No.
3259, as originally granted.
The legislative intent expressed in the phrase "exclusive of this
franchise" cannot be construed other than distinguishing between two
(2) sets of properties, be they real or personal, owned by the
franchisee, namely, (a) those actually, directly and exclusively used in
its radio or telecommunications business, and (b) those properties
which are not so used. t is worthy to note that the properties subject of
the present controversy are only those which are admittedly falling
under the first category.
To the mind of the Court, Section 14 of Rep. Act No. 3259 effectively
works to grant or delegate to local governments of Congress' inherent
power to tax the franchisee's properties belonging to the second group
of properties indicated above, that is, all properties which, "exclusive of
this franchise," are not actually and directly used in the pursuit of its
franchise. As may be recalled, the taxing power of local governments
under both the 1935 and the 1973 Constitutions solely depended upon
an enabling law. Absent such enabling law, local government units
were without authority to impose and collect taxes on real properties
within their respective territorial jurisdictions. While Section 14 of Rep.
Act No. 3259 may be validly viewed as an implied delegation of power
to tax, the delegation under that provision, as couched, is limited to
impositions over properties of the franchisee which are not actually,
directly and exclusively used in the pursuit of its franchise. Necessarily,
other properties of Bayantel directly used in the pursuit of its business
are beyond the pale of the delegated taxing power of local
governments. n a very real sense, therefore, real properties of
Bayantel, save those exclusive of its franchise, are subject to realty
taxes. Ultimately, therefore, the inevitable result was that all realties
which are actually, directly and exclusively used in the operation of its
franchise are "exempted" from any property tax.
Bayantel's franchise being national in character, the "exemption" thus
granted under Section 14 of Rep. Act No. 3259 applies to all its real or
personal properties found anywhere within the Philippine archipelago.
However, with the LGC's taking effect on January 1, 1992, Bayantel's
"exemption" from real estate taxes for properties of whatever kind
located within the Metro Manila area was, by force of Section 234 of
the Code, supra, expressly withdrawn. But, not long thereafter,
however, or on July 20, 1992, Congress passed Rep. Act No. 7633
amending Bayantel's original franchise. Worthy of note is that Section
11 of Rep. Act No. 7633 is a virtual reenacment of the tax provision,
i.e., Section 14, supra, of Bayantel's original franchise under Rep. Act
No. 3259. Stated otherwise, Section 14 of Rep. Act No. 3259 which
was deemed impliedly repealed by Section 234 of the LGC was
expressly revived under Section 14 of Rep. Act No. 7633. n concrete
terms, the realty tax exemption heretofore enjoyed by Bayantel under
its original franchise, but subsequently withdrawn by force of Section
234 of the LGC, has been restored by Section 14 of Rep. Act No.
7633.
The Court has taken stock of the fact that by virtue of Section 5, Article
X of the 1987 Constitution,
8
local governments are empowered to levy
taxes. And pursuant to this constitutional empowerment, juxtaposed
with Section 232
9
of the LGC, the Quezon City government enacted in
1993 its local Revenue Code, imposing real property tax on all real
properties found within its territorial jurisdiction. And as earlier stated,
the City's Revenue Code, just like the LGC, expressly withdrew, under
Section 230 thereof, supra, all tax exemption privileges in general.
This thus raises the question of whether or not the City's Revenue
Code pursuant to which the city treasurer of Quezon City levied real
property taxes against Bayantel's real properties located within the City
effectively withdrew the tax exemption enjoyed by Bayantel under its
franchise, as amended.
Bayantel answers the poser in the negative arguing that once again it
is only "liable to pay the same taxes, as any other persons or
corporations on all its real or personal properties, exclusive of its
franchise."
Bayantel's posture is well-taken. While the system of local government
taxation has changed with the onset of the 1987 Constitution, the
power of local government units to tax is still limited. As we explained
in Mactan Cebu nternational Airport Authority:
10

The power to tax is primarily vested in the Congress; however, in our
jurisdiction, it may be exercised by local legislative bodies, no longer
merely be virtue of a valid delegation as before, but pursuant to direct
authority conferred by Section 5, Article X of the Constitution. Under
the latter, the exercise of the power may be subject to such guidelines
and limitations as the Congress may provide which, however, must be
consistent with the basic policy of local autonomy. (at p. 680;
Emphasis supplied.)
Clearly then, while a new slant on the subject of local taxation now
prevails in the sense that the former doctrine of local government units'
delegated power to tax had been effectively modified with Article X,
Section 5 of the 1987 Constitution now in place, .the basic doctrine on
local taxation remains essentially the same. For as the Court stressed
in Mactan, "the power to tax is [still] primarily vested in the Congress."
This new perspective is best articulated by Fr. Joaquin G. Bernas, S.J.,
himself a Commissioner of the 1986 Constitutional Commission which
crafted the 1987 Constitution, thus:
What is the effect of Section 5 on the fiscal position of municipal
corporations? Section 5 does not change the doctrine that municipal
corporations do not possess inherent powers of taxation. What it does
is to confer municipal corporations a general power to levy taxes and
otherwise create sources of revenue. They no longer have to wait for a
statutory grant of these powers. The power of the legislative authority
relative to the fiscal powers of local governments has been reduced to
the authority to impose limitations on municipal powers. Moreover,
these limitations must be "consistent with the basic policy of local
autonomy." The important legal effect of Section 5 is thus to reverse
the principle that doubts are resolved against municipal corporations.
Henceforth, in interpreting statutory provisions on municipal fiscal
powers, doubts will be resolved in favor of municipal corporations. t is
understood, however, that taxes imposed by local government must be
for a public purpose, uniform within a locality, must not be confiscatory,
and must be within the jurisdiction of the local unit to pass.
11
(Emphasis
supplied).
n net effect, the controversy presently before the Court involves, at
bottom, a clash between the inherent taxing power of the legislature,
which necessarily includes the power to exempt, and the local
government's delegated power to tax under the aegis of the 1987
Constitution.
Now to go back to the Quezon City Revenue Code which imposed real
estate taxes on all real properties within the city's territory and
removed exemptions theretofore "previously granted to, or presently
enjoyed by all persons, whether natural or juridical ..,"
12
there can
really be no dispute that the power of the Quezon City Government to
tax is limited by Section 232 of the LGC which expressly provides that
"a province or city or municipality within the Metropolitan Manila Area
may levy an annual ad valorem tax on real property such as land,
building, machinery, and other improvement not hereinafter specifically
exempted." Under this law, the Legislature highlighted its power to
thereafter exempt certain realties from the taxing power of local
government units. An interpretation denying Congress such power to
exempt would reduce the phrase "not hereinafter specifically
exempted" as a pure jargon, without meaning whatsoever. Needless to
state, such absurd situation is unacceptable.
For sure, in Philippine Long Distance Telephone Company, nc.
(PLDT) vs. City of Davao,
13
this Court has upheld the power of
Congress to grant exemptions over the power of local government
units to impose taxes. There, the Court wrote:
ndeed, the grant of taxing powers to local government units under the
Constitution and the LGC does not affect the power of Congress to
grant exemptions to certain persons, pursuant to a declared national
policy. The legal effect of the constitutional grant to local governments
simply means that in interpreting statutory provisions on municipal
taxing powers, doubts must be resolved in favor of municipal
corporations. (Emphasis supplied.)
As we see it, then, the issue in this case no longer dwells on whether
Congress has the power to exempt Bayantel's properties from realty
taxes by its enactment of Rep. Act No. 7633 which amended
Bayantel's original franchise. The more decisive question turns on
whether Congress actually did exempt Bayantel's properties at all by
virtue of Section 11 of Rep. Act No. 7633.
Admittedly, Rep. Act No. 7633 was enacted subsequent to the LGC.
Perfectly aware that the LGC has already withdrawn Bayantel's former
exemption from realty taxes, Congress opted to pass Rep. Act No.
7633 using, under Section 11 thereof, exactly the same defining
phrase "exclusive of this franchise" which was the basis for Bayantel's
exemption from realty taxes prior to the LGC. n plain language,
Section 11 of Rep. Act No. 7633 states that "the grantee, its
successors or assigns shall be liable to pay the same taxes on their
real estate, buildings and personal property, exclusive of this franchise,
as other persons or corporations are now or hereafter may be required
by law to pay." The Court views this subsequent piece of legislation as
an express and real intention on the part of Congress to once again
remove from the LGC's delegated taxing power, all of the franchisee's
(Bayantel's) properties that are actually, directly and exclusively used
in the pursuit of its franchise.
WHEREFORE, the petition is DENED.
No pronouncement as to costs.
ALTERNATVE CENTER FOR ORGANZATONAL REFORMS AND
DEVELOPMENT, NC., VS. ZAMORA
G.R. No. 144256
Subject: Public Corporation
Doctrine: Automatic release of RA
Facts:
Pres. Estrada, pursuant to Sec 22, Art V mandating the Pres to
submit to Congress a budget of expenditures within 30 days before the
opening of every regular session, submitted the National Expenditures
program for FY 2000. The President proposed an RA of
P121,778,000,000. This became RA 8760, "AN ACT
APPROPRATNG FUNDS FOR THE OPERATON OF THE
GOVERNMENT OF THE REPUBLC OF THE PHLPPNES FROM
JANUARY ONE TO DECEMBER THRTY-ONE, TWO THOUSAND,
AND FOR OTHER PURPOSES also known as General
Appropriations Act (GAA) for the Year 2000. t provides under the
heading "ALLOCATONS TO LOCAL GOVERNMENT UNTS that the
RA for local government units shall amount to P111,778,000,000.
n another part of the GAA, under the heading "UNPROGRAMMED
FUND, it is provided that an amount of P10,000,000,000 (P10 Billion),
apart from the P111,778,000,000 mentioned above, shall be used to
fund the RA, which amount shall be released only when the original
revenue targets submitted by the President to Congress can be
realized based on a quarterly assessment to be conducted by certain
committees which the GAA specifies, namely, the Development
Budget Coordinating Committee, the Committee on Finance of the
Senate, and the Committee on Appropriations of the House of
Representatives.
Thus, while the GAA appropriates P111,778,000,000 of RA as
Programmed Fund, it appropriates a separate amount of P10 Billion of
RA under the classification of Unprogrammed Fund, the latter amount
to be released only upon the occurrence of the condition stated in the
GAA.
On August 22, 2000, a number of NGOs and POs, along with 3
barangay officials filed with this Court the petition at bar, for Certiorari,
Prohibition and Mandamus With Application for Temporary Restraining
Order, against respondents then Executive Secretary Ronaldo
Zamora, then Secretary of the Department of Budget and Management
Benjamin Diokno, then National Treasurer Leonor Magtolis-Briones,
and the Commission on Audit, challenging the constitutionality of
provision XXXV (ALLOCATONS TO LOCAL GOVERNMENT UNTS)
referred to by petitioners as Section 1, XXXV (A), and LV
(UNPROGRAMMED FUND) Special Provisions 1 and 4 of the GAA
(the GAA provisions)
Petitioners contend that the said provisions violates the LGUs
autonomy by unlawfully reducing the RA allotted by 10B and by
withholding its release by placing the same under "Unprogrammed
funds. Although the effectivity of the Year 2000 GAA has ceased, this
Court shall nonetheless proceed to resolve the issues raised in the
present case, it being impressed with public interest. Petitioners argue
that the GAA violated the constitutional mandate of automatically
releasing the RAs when it made its release contingent on whether
revenue collections could meet the revenue targets originally submitted
by the President, rather than making the release automatic.
SSUE: WON the subject GAA violates LGUs fiscal autonomy by not
automatically releasing the whole amount of the allotted RA.
HELD:
Article X, Section 6 of the Constitution provides:
SECTON 6. Local government units shall have a just share, as
determined by law, in the national taxes which shall be automatically
released to them.
Petitioners argue that the GAA violated this constitutional mandate
when it made the release of RA contingent on whether revenue
collections could meet the revenue targets originally submitted by the
President, rather than making the release automatic. Respondents
counterargue that the above constitutional provision is addressed not
to the legislature but to the executive, hence, the same does not
prevent the legislature from imposing conditions upon the release of
the RA.
Respondents thus infer that the subject constitutional provision merely
prevents the executive branch of the government from "unilaterally
withholding the RA, but not the legislature from authorizing the
executive branch to withhold the same. n the words of respondents,
"This essentially means that the President or any member of the
Executive Department cannot unilaterally, i.e., without the backing of
statute, withhold the release of the RA.
As the Constitution lays upon the executive the duty to automatically
release the just share of local governments in the national taxes, so it
enjoins the legislature not to pass laws that might prevent the
executive from performing this duty. To hold that the executive branch
may disregard constitutional provisions which define its duties,
provided it has the backing of statute, is virtually to make the
Constitution amendable by statute a proposition which is patently
absurd. f indeed the framers intended to allow the enactment of
statutes making the release of RA conditional instead of automatic,
then Article X, Section 6 of the Constitution would have been worded
differently.
Since, under Article X, Section 6 of the Constitution, only the just share
of local governments is qualified by the words "as determined by law,
and not the release thereof, the plain implication is that Congress is not
authorized by the Constitution to hinder or impede the automatic
release of the RA.
n another case, the Court held that the only possible exception to
mandatory automatic release of the RA is, as held in Batangas:
.if the national internal revenue collections for the current fiscal year
is less than 40 percent of the collections of the preceding third fiscal
year, in which case what should be automatically released shall be a
proportionate amount of the collections for the current fiscal year. The
adjustment may even be made on a quarterly basis depending on the
actual collections of national internal revenue taxes for the quarter of
the current fiscal year.
This Court recognizes that the passage of the GAA provisions by
Congress was motivated by the laudable intent to "lower the budget
deficit in line with prudent fiscal management. The pronouncement in
Pimentel, however, must be echoed: "[T]he rule of law requires that
even the best intentions must be carried out within the parameters of
the Constitution and the law. Verily, laudable purposes must be carried
out by legal methods.
WHEREFORE, the petition is GRANTED. XXXV and LV Special
Provisions 1 and 4 of the Year 2000 GAA are hereby declared
unconstitutional insofar as they set apart a portion of the RA, in the
amount of P10 Billion, as part of the UNPROGRAMMED FUND.

BATANGAS CATV, NC. vs. THE COURT OF APPEALS, THE
BATANGAS CTY SANGGUNANG PANLUNGSOD and BATANGAS
CTY MAYOR [G.R. No. 138810. September 29, 2004]

FACTS:
On July 28, 1986, respondent Sangguniang Panlungsod enacted
Resolution No. 210 granting petitioner a permit to construct, install, and
operate a CATV system in Batangas City. Section 8 of the Resolution
provides that petitioner is authorized to charge its subscribers the
maximum rates specified therein, "provided, however, that any
increase of rates shall be subject to the approval of the Sangguniang
Panlungsod.

Sometime in November 1993, petitioner increased its subscriber rates
from P88.00 to P180.00 per month. As a result, respondent Mayor
wrote petitioner a letter threatening to cancel its permit unless it
secures the approval of respondent Sangguniang Panlungsod,
pursuant to Resolution No. 210.

Petitioner then filed with the RTC, Branch 7, Batangas City, a petition
for injunction alleging that respondent Sangguniang Panlungsod has
no authority to regulate the subscriber rates charged by CATV
operators because under Executive Order No. 205, the National
Telecommunications Commission (NTC) has the sole authority to
regulate the CATV operation in the Philippines.

SSUE :
may a local government unit (LGU) regulate the subscriber rates
charged by CATV operators within its territorial jurisdiction?

HELD: No.

x x x

The logical conclusion, therefore, is that in light of the above laws and
E.O. No. 436, the NTC exercises regulatory power over CATV
operators to the exclusion of other bodies.

x x x

Like any other enterprise, CATV operation maybe regulated by LGUs
under the general welfare clause. This is primarily because the CATV
system commits the indiscretion of crossing public properties. (t uses
public properties in order to reach subscribers.) The physical realities
of constructing CATV system the use of public streets, rights of
ways, the founding of structures, and the parceling of large regions
allow an LGU a certain degree of regulation over CATV operators.

x x x

But, while we recognize the LGUs' power under the general welfare
clause, we cannot sustain Resolution No. 210. We are convinced that
respondents strayed from the well recognized limits of its power. The
flaws in Resolution No. 210 are: (1) it violates the mandate of existing
laws and (2) it violates the State's deregulation policy over the CATV
industry.

LGUs must recognize that technical matters concerning CATV
operation are within the exclusive regulatory power of the NTC.

LEONARDO TAN, ROBERT UY and LAMBERTO TE, petitioners,
vs SOCORRO Y. PEREA, respondent
D E C S O N
TNGA, .:
The resolution of the present petition effectively settles the
question of how many cockpits may be allowed to operate in a city or
municipality.
There are two competing values of high order that come to fore
in this casethe traditional power of the national government to enact
police power measures, on one hand, and the vague principle of local
autonomy now enshrined in the Constitution on the other. The facts are
simple, but may be best appreciated taking into account the legal
milieu which frames them.
n 1974, Presidential Decree (P.D.) No. 449, otherwise known as
the Cockfighting Law of 1974, was enacted. Section 5(b) of the Decree
provided for limits on the number of cockpits that may be established in
cities and municipalities in the following manner:
Section 5. Cockpits and Cockfighting in General.
(b) Establishment of Cockpits. Only one cockpit shall be allowed in
each city or municipality, except that in cities or municipalities with a
population of over one hundred thousand, two cockpits may be
established, maintained and operated.
With the enactment of the Local Government Code of 1991,
[1]
the
municipal sangguniang bayan were empowered, "[a]ny law to the
contrary notwithstanding, to "authorize and license the establishment,
operation and maintenance of cockpits, and regulate cockfighting and
commercial breeding of gamecocks.
[2]

n 1993, the Sangguniang Bayan of the municipality of
Daanbantayan,
[3]
Cebu Province, enacted Municipal Ordinance No. 6
(Ordinance No. 6), Series of 1993, which served as the Revised
Omnibus Ordinance prescribing and promulgating the rules and
regulations governing cockpit operations in Daanbantayan.
[4]
Section 5
thereof, relative to the number of cockpits allowed in the municipality,
stated:
Section 5. There shall be allowed to operate in the Municipality of
Daanbantayan, Province of Cebu, not more than its equal number of
cockpits based upon the population provided for in PD 449, provided
however, that this specific section can be amended for purposes of
establishing additional cockpits, if the Municipal population so
warrants.
[5]

Shortly thereafter, the Sangguniang Bayan passed an
amendatory ordinance, Municipal Ordinance No. 7 (Ordinance No. 7),
Series of 1993, which amended the aforequoted Section 5 to now read
as follows:
Section 5. Establishment of Cockpit. There shall be allowed to operate
in the Municipality of Daanbantayan, Province of Cebu, not more than
three (3) cockpits.
[6]

On 8 November 1995, petitioner Leonardo Tan (Tan) applied
with the Municipal Gamefowl Commission for the issuance of a
permit/license to establish and operate a cockpit in Sitio Combado,
Bagay, in Daanbantayan. At the time of his application, there was
already another cockpit in operation in Daanbantayan, operated by
respondent Socorro Y. Perea (Perea), who was the duly franchised
and licensed cockpit operator in the municipality since the 1970s.
Perea's franchise, per records, was valid until 2002.
[7]

The Municipal Gamefowl Commission favorably recommended
to the mayor of Daanbantayan, petitioner Lamberto Te (Te), that a
permit be issued to Tan. On 20 January 1996, Te issued a mayor's
permit allowing Tan "to establish/operate/conduct the business of a
cockpit in Combado, Bagay, Daanbantayan, Cebu for the period from
20 January 1996 to 31 December 1996.
[8]

This act of the mayor served as cause for Perea to file a
Complaint for damages with a prayer for injunction against Tan, Te,
and Roberto Uy, the latter allegedly an agent of Tan.
[9]
Perea alleged
that there was no lawful basis for the establishment of a second
cockpit. She claimed that Tan conducted his cockpit fights not in
Combado, but in Malingin, at a site less than five kilometers away from
her own cockpit. She insisted that the unlawful operation of Tan's
cockpit has caused injury to her own legitimate business, and
demanded damages of at least Ten Thousand Pesos (P10,000.00) per
month as actual damages, One Hundred Fifty Thousand Pesos
(P150,000.00) as moral damages, and Fifty Thousand Pesos
(P50,000.00) as exemplary damages. Perea also prayed that the
permit issued by Te in favor of Tan be declared as null and void, and
that a permanent writ of injunction be issued against Te and Tan
preventing Tan from conducting cockfights within the municipality and
Te from issuing any authority for Tan to pursue such activity.
[10]

The case was heard by the Regional Trial Court
(RTC),
[11]
Branch 61 of Bogo, Cebu, which initially granted a writ of
preliminary injunction.
[12]
During trial, herein petitioners asserted that
under the Local Government Code of 1991, the sangguniang bayan of
each municipality now had the power and authority to grant franchises
and enact ordinances authorizing the establishment, licensing,
operation and maintenance of cockpits.
[13]
By virtue of such authority,
the Sangguniang Bayan of Daanbantayan promulgated Ordinance
Nos. 6 and 7. On the other hand, Perea claimed that the amendment
authorizing the operation of not more than three (3) cockpits in
Daanbantayan violated Section 5(b) of the Cockfighting Law of 1974,
which allowed for only one cockpit in a municipality with a population
as Daanbantayan.
[14]

n a ecision dated 10 March 1997, the RTC dismissed the
complaint. The court observed that Section 5 of Ordinance No. 6, prior
to its amendment, was by specific provision, an implementation of the
Cockfighting Law.
[15]
Yet according to the RTC, questions could be
raised as to the efficacy of the subsequent amendment under
Ordinance No. 7, since under the old Section 5, an amendment
allowing additional cockpits could be had only "if the municipal
population so warrants.
[16]
While the RTC seemed to doubt whether
this condition had actually been fulfilled, it nonetheless declared that
since the case was only for damages, "the [RTC] cannot grant more
relief than that prayed for.
[17]
t ruled that there was no evidence,
testimonial or documentary, to show that plaintiff had actually suffered
damages. Neither was there evidence that Te, by issuing the permit to
Tan, had acted in bad faith, since such issuance was pursuant to
municipal ordinances that nonetheless remained in force.
[18]
Finally, the
RTC noted that the assailed permit had expired on 31 December 1996,
and there was no showing that it had been renewed.
[19]

Perea filed a Motion for Reconsideration which was denied in
an Order dated 24 February 1998. n this Order, the RTC categorically
stated that Ordinance Nos. 6 and 7 were "valid and legal for all intents
and purpose[s].
[20]
The RTC also noted that the Sangguniang Bayan
had also promulgated Resolution No. 78-96, conferring on Tan a
franchise to operate a cockpit for a period of ten (10) years from
February 1996 to 2006.
[21]
This Resolution was likewise affirmed as
valid by the RTC. The RTC noted that while the ordinances seemed to
be in conflict with the Cockfighting Law, any doubt in interpretation
should be resolved in favor of the grant of more power to the local
government unit, following the principles of devolution under the Local
Government Code.
[22]

The ecision and Order of the RTC were assailed by Perea on
an appeal with the Court of Appeals which on 21 May 2001, rendered
the ecision now assailed.
[23]
The perspective from which the Court of
Appeals viewed the issue was markedly different from that adopted by
the RTC. ts analysis of the Local Government Code, particularly
Section 447(a)(3)(V), was that the provision vesting unto the
sangguniang bayan the power to authorize and license the
establishment of cockpits did not do away with the Cockfighting Law,
as these two laws are not necessarily inconsistent with each other.
What the provision of the Local Government Code did, according to the
Court of Appeals, was to transfer to the sangguniang bayan powers
that were previously conferred on the Municipal Gamefowl
Commission.
[24]

Given these premises, the appellate court declared as follows:
Ordinance No. 7 should [be] held invalid for allowing, in unconditional
terms, the operation of "not more than three cockpits in Daan
Bantayan (sic), clearly dispensing with the standard set forth in PD
449. However, this issue appears to have been mooted by the
expiration of the Mayor's Permit granted to the defendant which has
not been renewed.
[25]

As to the question of damages, the Court of Appeals agreed with
the findings of the RTC that Perea was not entitled to damages. Thus,
it affirmed the previous ruling denying the claim for damages.
However, the Court of Appeals modified the RTC's Decision in that it
now ordered that Tan be enjoined from operating a cockpit and
conducting any cockfights within Daanbantayan.
[26]

Thus, the present Petition for Review on Certiorari.
Petitioners present two legal questions for determination:
whether the Local Government Code has rendered inoperative the
Cockfighting Law; and whether the validity of a municipal ordinance
may be determined in an action for damages which does not even
contain a prayer to declare the ordinance invalid.
[27]
As the denial of the
prayer for damages by the lower court is not put in issue before this
Court, it shall not be passed upon on review.
The first question raised is particularly interesting, and any
definitive resolution on that point would have obvious ramifications not
only to Daanbantayan, but all other municipalities and cities. However,
we must first determine the proper scope of judicial inquiry that we
could engage in, given the nature of the initiatory complaint and the
rulings rendered thereupon, the exact point raised in the second
question.
Petitioners claim that the Court of Appeals, in declaring
Ordinance No. 7 as invalid, embarked on an unwarranted collateral
attack on the validity of a municipal ordinance.
[28]
Perea's complaint,
which was for damages with preliminary injunction, did not pray for the
nullity of Ordinance No. 7. The Municipality of Daanbantayan as a local
government unit was not made a party to the case, nor did any legal
counsel on its behalf enter any appearance. Neither was the Office of
the Solicitor General given any notice of the case.
[29]

These concerns are not trivial.
[30]
Yet, we must point out that the
Court of Appeals did not expressly nullify Ordinance No. 7, or any
ordinance for that matter. What the appellate court did was to say that
Ordinance No. 7 "should therefore be held invalid for being in violation
of the Cockfighting Law.
[31]
n the next breath though, the Court of
Appeals backtracked, saying that "this issue appears to have been
mooted by the expiration of the Mayor's Permit granted to Tan.
[32]

But our curiosity is aroused by the dispositive portion of the
assailed ecision, wherein the Court of Appeals enjoined Tan "from
operating a cockpit and conducting any cockfights within
Daanbantayan.
[33]
Absent the invalidity of Ordinance No. 7, there would
be no basis for this injunction. After all, any future operation of a
cockpit by Tan in Daanbantayan, assuming all other requisites are
complied with, would be validly authorized should Ordinance No. 7
subsist.
So it seems, for all intents and purposes, that the Court of
Appeals did deem Ordinance No. 7 a nullity. Through such resort, did
the appellate court in effect allow a collateral attack on the validity of
an ordinance through an action for damages, as the petitioners argue?
The initiatory Complaint filed by Perea deserves close scrutiny.
mmediately, it can be seen that it is not only an action for damages,
but also one for injunction. An action for injunction will require judicial
determination whether there exists a right in esse which is to be
protected, and if there is an act constituting a violation of such right
against which injunction is sought. At the same time, the mere fact of
injury alone does not give rise to a right to recover damages. To
warrant the recovery of damages, there must be both a right of action
for a legal wrong inflicted by the defendant, and damage resulting to
the plaintiff therefrom. n other words, in order that the law will give
redress for an act causing damage, there must be damnum et
injuriathat act must be not only hurtful, but wrongful.
[34]

ndubitably, the determination of whether injunction or damages
avail in this case requires the ascertainment of whether a second
cockpit may be legally allowed in Daanbantayan. f this is permissible,
Perea would not be entitled either to injunctive relief or damages.
Moreover, an examination of the specific allegations in
the Complaint reveals that Perea therein puts into question the legal
basis for allowing Tan to operate another cockpit in Daanbantayan.
She asserted that "there is no lawful basis for the establishment of a
second cockpit considering the small population of
[Daanbantayan],
[35]
a claim which alludes to Section 5(b) of the
Cockfighting Law which prohibits the establishment of a second cockpit
in municipalities of less than ten thousand (10,000) in population.
Perea likewise assails the validity of the permit issued to Tan and
prays for its annulment, and also seeks that Te be enjoined from
issuing any special permit not only to Tan, but also to "any other
person outside of a duly licensed cockpit in Daanbantayan, Cebu.
[36]

t would have been preferable had Perea expressly sought the
annulment of Ordinance No. 7. Yet it is apparent from
her Complaint that she sufficiently alleges that there is no legal basis
for the establishment of a second cockpit. More importantly, the
petitioners themselves raised the valid effect of Ordinance No. 7 at the
heart of their defense against the complaint, as adverted to in
their Answer.
[37]
The averment in the Answer that Ordinance No. 7 is
valid can be considered as an affirmative defense, as it is the
allegation of a new matter which, while hypothetically admitting the
material allegations in the complaint, would nevertheless bar
recovery.
[38]
Clearly then, the validity of Ordinance No. 7 became a
justiciable matter for the RTC, and indeed Perea squarely raised the
argument during trial that said ordinance violated the Cockfighting
Law.
[39]

Moreover, the assailed rulings of the RTC, its ecision and
subsequent Order denying Perea's Motion for Reconsideration, both
discuss the validity of Ordinance No. 7. n the Decision, the RTC
evaded making a categorical ruling on the ordinance's validity because
the case was "only for damages, [thus the RTC could] not grant more
relief than that prayed for. This reasoning is unjustified, considering
that Perea also prayed for an injunction, as well as for the annulment
of Tan's permit. The resolution of these two questions could very well
hinge on the validity of Ordinance No. 7.
Still, in the Order denying Perea's Motion for Reconsideration,
the RTC felt less inhibited and promptly declared as valid not only
Ordinance No. 7, but also Resolution No. 78-96 of the Sangguniang
Bayan dated 23 February 1996, which conferred on Tan a franchise to
operate a cockpit from 1996 to 2006.
[40]
n the Order, the RTC ruled
that while Ordinance No. 7 was in apparent conflict with the
Cockfighting Law, the ordinance was justified under Section
447(a)(3)(v) of the Local Government Code.
This express affirmation of the validity of Ordinance No. 7 by the
RTC was the first assigned error in Perea's appeal to the Court of
Appeals.
[41]
n their Appellee's Brief before the appellate court, the
petitioners likewise argued that Ordinance No. 7 was valid and that the
Cockfighting Law was repealed by the Local Government Code.
[42]
On
the basis of these arguments, the Court of Appeals rendered its
assailed ecision, including its ruling that the Section 5(b) of the
Cockfighting Law remains in effect notwithstanding the enactment of
the Local Government Code.
ndubitably, the question on the validity of Ordinance No. 7 in
view of the continuing efficacy of Section 5(b) of the Cockfighting Law
is one that has been fully litigated in the courts below. We are
comfortable with reviewing that question in the case at bar and make
dispositions proceeding from that key legal question. This is militated
by the realization that in order to resolve the question whether
injunction should be imposed against the petitioners, there must be
first a determination whether Tan may be allowed to operate a second
cockpit in Daanbantayan. Thus, the conflict between Section 5(b) of
the Cockfighting Law and Ordinance No. 7 now ripens for adjudication.
n arguing that Section 5(b) of the Cockfighting Law has been
repealed, petitioners cite the following provisions of Section
447(a)(3)(v) of the Local Government Code:
Section 447. Powers, uties, Functions and Compensation. (a) The
sangguniang bayan, as the legislative body of the municipality, shall
enact ordinances, approve resolutions and appropriate funds for the
general welfare of the municipality and its inhabitants pursuant to
Section 16 of this Code and in the proper exercise of the corporate
powers of the municipality as provided for under Section 22 of this
Code, and shall:
. . . .
(3) Subject to the provisions of Book of this Code, grant franchises,
enact ordinances authorizing the issuance of permits or licenses, or
enact ordinances levying taxes, fees and charges upon such
conditions and for such purposes intended to promote the general
welfare of the inhabitants of the municipality, and pursuant to this
legislative authority shall:
. . . .
(v) Any law to the contrary notwithstanding, authorize and license the
establishment, operation, and maintenance of cockpits, and regulate
cockfighting and commercial breeding of gamecocks; Provided, that
existing rights should not be prejudiced;
For the petitioners, Section 447(a)(3)(v) sufficiently repeals
Section 5(b) of the Cockfighting Law, vesting as it does on LGUs the
power and authority to issue franchises and regulate the operation and
establishment of cockpits in their respective municipalities, any law to
the contrary notwithstanding.
However, while the Local Government Code expressly repealed
several laws, the Cockfighting Law was not among them. Section
534(f) of the Local Government Code declares that all general and
special laws or decrees inconsistent with the Code are hereby
repealed or modified accordingly, but such clause is not an express
repealing clause because it fails to identify or designate the acts that
are intended to be repealed.
[43]
t is a cardinal rule in statutory
construction that implied repeals are disfavored and will not be so
declared unless the intent of the legislators is manifest.
[44]
As laws are
presumed to be passed with deliberation and with knowledge of all
existing ones on the subject, it is logical to conclude that in passing a
statute it is not intended to interfere with or abrogate a former law
relating to the same subject matter, unless the repugnancy between
the two is not only irreconcilable but also clear and convincing as a
result of the language used, or unless the latter Act fully embraces the
subject matter of the earlier.
[45]

s the one-cockpit-per-municipality rule under the Cockfighting
Law clearly and convincingly irreconcilable with Section 447(a)(3)(v) of
the Local Government Code? The clear import of Section 447(a)(3)(v)
is that it is the sangguniang bayan which is empowered to authorize
and license the establishment, operation and maintenance of cockpits,
and regulate cockfighting and commercial breeding of gamecocks,
notwithstanding any law to the contrary. The necessity of the qualifying
phrase "any law to the contrary notwithstanding can be discerned by
examining the history of laws pertaining to the authorization of cockpit
operation in this country.
Cockfighting, or sabong in the local parlance, has a long and
storied tradition in our culture and was prevalent even during the
Spanish occupation. When the newly-arrived Americans proceeded to
organize a governmental structure in the Philippines, they recognized
cockfighting as an activity that needed to be regulated, and it was
deemed that it was the local municipal council that was best suited to
oversee such regulation. Hence, under Section 40 of Act No. 82, the
general act for the organization of municipal governments promulgated
in 1901, the municipal council was empowered "to license, tax or close
cockpits. This power of the municipal council to authorize or license
cockpits was repeatedly recognized even after the establishment of the
present Republic in 1946.
[46]
Such authority granted unto the municipal
councils to license the operation of cockpits was generally unqualified
by restrictions.
[47]
The Revised Administrative Code did impose
restrictions on what days cockfights could be held.
[48]

However, in the 1970s, the desire for stricter licensing
requirements of cockpits started to see legislative fruit. The
Cockfighting Law of 1974 enacted several of these restrictions. Apart
from the one-cockpit-per-municipality rule, other restrictions were
imposed, such as the limitation of ownership of cockpits to Filipino
citizens.
[49]
More importantly, under Section 6 of the Cockfighting Law,
it was the city or municipal mayor who was authorized to issue licenses
for the operation and maintenance of cockpits, subject to the approval
of the Chief of Constabulary or his authorized representatives.
[50]
Thus,
the sole discretion to authorize the operation of cockpits was removed
from the local government unit since the approval of the Chief of
Constabulary was now required.
P.D. No. 1802 reestablished the Philippine Gamefowl
Commission
[51]
and imposed further structure in the regulation of
cockfighting. Under Section 4 thereof, city and municipal mayors with
the concurrence of their respective sangguniang panglunsod or
sangguniang bayan, were given the authority to license and regulate
cockfighting, under the supervision of the City Mayor or the Provincial
Governor. However, Section 4 of P.D. No. 1802 was subsequently
amended, removing the supervision exercised by the mayor or
governor and substituting in their stead the Philippine Gamefowl
Commission. The amended provision ordained:
Sec. 4. City and Municipal Mayors with the concurrence of their
respective "Sanggunians shall have the authority to license and
regulate regular cockfighting pursuant to the rules and regulations
promulgated by the Commission and subject to its review and
supervision.
The Court, on a few occasions prior to the enactment of the
Local Government Code in 1991, had opportunity to expound on
Section 4 as amended. A discussion of these cases will provide a
better understanding of the qualifier "any law to the contrary
notwithstanding provided in Section 447(a)(3)(v).
n Philippine Gamefowl Commission v Intermediate Appellate
Court,
[52]
the Court, through Justice Cruz, asserted that the conferment
of the power to license and regulate municipal cockpits in municipal
authorities is in line with the policy of local autonomy embodied in the
Constitution.
[53]
The Court affirmed the annulment of a resolution of the
Philippine Gamefowl Commission which ordered the revocation of a
permit issued by a municipal mayor for the operation of a cockpit and
the issuance of a new permit to a different applicant. According to the
Court, the Philippine Gamefowl Commission did not possess the power
to issue cockpit licenses, as this was vested by Section 4 of P.D. No.
1802, as amended, to the municipal mayor with the concurrence of the
sanggunian. t emphasized that the Philippine Gamefowl Commission
only had review and supervision powers, as distinguished from control,
over ordinary cockpits.
[54]
The Court also noted that the regulation of
cockpits was vested in municipal officials, subject only to the guidelines
laid down by the Philippine Gamefowl Commission.
[55]
The Court
conceded that "[if] at all, the power to review includes the power to
disapprove; but it does not carry the authority to substitute one's own
preferences for that chosen by the subordinate in the exercise of its
sound discretion.
The twin pronouncements that it is the municipal authorities who
are empowered to issue cockpit licenses and that the powers of the
Philippine Gamefowl Commission were limited to review and
supervision were affirmed in eang v Intermediate Appellate
Court,
[56]
Municipality of Malolos v Libangang Malolos
Inc
[57]
and Adlawan v Intermediate Appellate Court.
[58]
But notably
in Cootauco v Court of Appeals,
[59]
the Court especially noted
that Philippine Gamefowl Commission did indicate that the
Commission's "power of review includes the power to
disapprove.
[60]
nterestingly, Justice Cruz, the writer of Philippine
Gamefowl Commission, qualified his concurrence in Cootauco "subject
to the reservations made in [Philippine Gamefowl
Commission] regarding the review powers of the PGC over cockpit
licenses issued by city and municipal mayors.
[61]

These cases reiterate what has been the traditional prerogative
of municipal officials to control the issuances of licenses for the
operation of cockpits. Nevertheless, the newly-introduced role of the
Philippine Gamefowl Commission vis--vis the operation of cockpits
had caused some degree of controversy, as shown by the cases
above cited.
Then, the Local Government Code of 1991 was enacted. There
is no more forceful authority on this landmark legislation than Senator
Aquilino Pimentel, Jr., its principal author. n his annotations to the
Local Government Code, he makes the following remarks relating to
Section 447(a)(3)(v):
12. Licensing power. n connection with the power to grant licenses
lodged with it, the Sangguniang Bayan may now regulate not only
businesses but also occupations, professions or callings that do not
require government examinations within its jurisdiction. t may also
authorize and license the establishment, operation and maintenance of
cockpits, regulate cockfighting, and the commercial breeding of
gamecocks. Existing rights however, may not be prejudiced. The
power to license cockpits and permits for cockfighting has been
removed completely from the Gamefowl Commission.
Thus, that part of the ruling of the Supreme Court in the case
of Municipality of Malolos v Libangang Malolos, Inc et al., which held
that ".the regulation of cockpits is vested in the municipal councils
guidelines laid down by the Philippine Gamefowl Commission is no
longer controlling. Under [Section 447(a)(3)(v)], the power of the
Sanggunian concerned is no longer subject to the supervision of the
Gamefowl Commission.
[62]

The above observations may be faulted somewhat in the sense
that they fail to acknowledge the Court's consistent position that the
licensing power over cockpits belongs exclusively to the municipal
authorities and not the Philippine Gamefowl Commission. Yet these
views of Senator Pimentel evince the apparent confusion regarding the
role of the Philippine Gamefowl Commission as indicated in the cases
previously cited, and accordingly bring the phrase Section 447(a)(3)(v)
used in "any law to the contrary notwithstanding into its proper light.
The qualifier serves notice, in case it was still doubtful, that it is the
sanggunian bayan concerned alone which has the power to authorize
and regulate cockfighting and commercial breeding of gamecocks
within its territorial jurisdiction.
Given the historical perspective, it becomes evident why the
legislature found the need to use the phrase "any law to the contrary
notwithstanding in Section 447(a)(3)(v). However, does the phrase
similarly allow the Sangguniang Bayan to authorize more cockpits than
allowed under Section 5(d) of the Cockfighting Law? Certainly,
applying the test of implied repeal, these two provisions can stand
together. While the sanggunian retains the power to authorize and
license the establishment, operation, and maintenance of cockpits, its
discretion is limited in that it cannot authorize more than one cockpit
per city or municipality, unless such cities or municipalities have a
population of over one hundred thousand, in which case two cockpits
may be established. Considering that Section 447(a)(3)(v) speaks
essentially of the identity of the wielder of the power of control and
supervision over cockpit operation, it is not inconsistent with previous
enactments that impose restrictions on how such power may be
exercised. n short, there is no dichotomy between affirming the power
and subjecting it to limitations at the same time.
Perhaps more essential than the fact that the two controverted
provisions are not inconsistent when put together, the Court
recognizes that Section 5(d) of the Cockfighting Law arises from a
valid exercise of police power by the national government. Of course,
local governments are similarly empowered under Section 16 of the
Local Government Code. The national government ought to be attuned
to the sensitivities of devolution and strive to be sparing in usurping the
prerogatives of local governments to regulate the general welfare of
their constituents.
We do not doubt, however, the ability of the national government
to implement police power measures that affect the subjects of
municipal government, especially if the subject of regulation is a
condition of universal character irrespective of territorial jurisdictions.
Cockfighting is one such condition. t is a traditionally regulated activity,
due to the attendant gambling involved
[63]
or maybe even the fact that it
essentially consists of two birds killing each other for public
amusement. Laws have been enacted restricting the days when
cockfights could be held,
[64]
and legislation has even been emphatic
that cockfights could not be held on holidays celebrating national honor
such as ndependence Day
[65]
and Rizal Day.
[66]

The Whereas clauses of the Cockfighting Law emphasize that
cockfighting "should neither be exploited as an object of
commercialism or business enterprise, nor made a tool of uncontrolled
gambling, but more as a vehicle for the preservation and perpetuation
of native Filipino heritage and thereby enhance our national
identity.
[67]
The obvious thrust of our laws designating when cockfights
could be held is to limit cockfighting and imposing the one-cockpit-per-
municipality rule is in line with that aim. Cockfighting is a valid matter of
police power regulation, as it is a form of gambling essentially
antagonistic to the aims of enhancing national productivity and self-
reliance.
[68]
Limitation on the number of cockpits in a given municipality
is a reasonably necessary means for the accomplishment of the
purpose of controlling cockfighting, for clearly more cockpits equals
more cockfights.
f we construe Section 447(a)(3)(v) as vesting an unlimited
discretion to the sanggunian to control all aspects of cockpits and
cockfighting in their respective jurisdiction, this could lead to the
prospect of daily cockfights in municipalities, a certain distraction in the
daily routine of life in a municipality. This certainly goes against the
grain of the legislation earlier discussed. f the arguments of the
petitioners were adopted, the national government would be effectively
barred from imposing any future regulatory enactments pertaining to
cockpits and cockfighting unless it were to repeal Section 447(a)(3)(v).
A municipal ordinance must not contravene the Constitution or
any statute, otherwise it is void.
[69]
Ordinance No. 7 unmistakably
contravenes the Cockfighting Law in allowing three cockpits in
Daanbantayan. Thus, no rights can be asserted by the petitioners
arising from the Ordinance. We find the grant of injunction as ordered
by the appellate court to be well-taken.
WHEREFORE, the petition is DENED. Costs against petitioners.

Miranda v. Aguirre
Facts: n 1994, RA 7720 converting the municipality of Santiago
toan independent component city was signed into law and
thereafterratified in a plebiscite. Four years later, RA 8528 which
amendedRA 7720 was enacted, changing the status of Santiago from
an CCto a component city. Petitioners assail the constitutionality of
RA8528 because it does not provide for submitting the law
forratification by the people of Santiago City in a proper
plebiscite.ssues:1. WON petitioners have standing. YES.
Rule: constitutionality of law can be challenged by one who will
sustain a direct injury as a result of itsenforcement
Miranda was mayor when he filed the petition, hisrights would
have been greatly affected. Otherpetitioners are residents and voters
of Santiago.1. WON petition involves a political question. NO.
PQ: concerned with issues dependent upon thewisdom, not
legality, of a particular measure,
Justiciable issue: implies a given right, legallydemandable and
enforceable, an act or omissionviolative of such right, and a remedy
granted andsanctioned by law, for said breach of right
Case at bar=justiciable. WON petitioners have rightto a
plebiscite is a legal question. WON laws passedby Congress comply
with the requirements of the Consti pose questions that this court alone
candecide.1. WON the change involved any creation, division, merger,
abolition or substantial alteration of boundaries. YES.
2. WON a plebiscite is necessary considering the change was a
mere reclassification from CC to CC. YES.
A close analysis of the said constitutional provision will reveal
that the creation, division, merger,abolition or substantial alteration of
boundaries of LGUs involve a common denominator material change
in the political and economic rights of the LGUs directly affected as
well as the people therein.t is precisely for this reason that the
Constitution requires the approval of the people "in the political units
directly affected."
Sec 10, Art X addressed the undesirable practice inthe past
whereby LGUs were created, abolished,merged or divided on the basis
of the vagaries of politics and not of the welfare of the people. Thus,the
consent of the people of the LGU directly affected was required to
serve as a checkingmechanism to any exercise of legislative power
creating, dividing, abolishing, merging or alteringthe boundaries of
LGUs. t is one instance where the people in their sovereign capacity
decide on amatter that affects them direct democracy of the people
as opposed to democracy thru people'srepresentatives. This plebiscite
requirement is also in accord with the philosophy of the
Constitutiongranting more autonomy to LGUs.
The changes that will result from the downgrading of the city of
Santiago from an independent component city to a component city are
many and cannot be characterized as insubstantial.
The independence of the city as a political unitwill be
diminished: The city mayor will be placed under theadministrative
supervision of theprovincial governor. The resolutions and ordinances
of the citycouncil of Santiago will have to bereviewed by the Provincial
Board of sabela. Taxes that will be collected by the city willnow have
to be shared with the province.
When RA 7720 upgraded the status of SantiagoCity from a
municipality to an independentcomponent city, it required the approval
of itspeople thru a plebiscite called for the purpose.There is neither
rhyme nor reason why thisplebiscite should not be called to determine
thewill of the people of Santiago City when RA 8528downgrades the
status of their city. There is morereason to consult the people when a
lawsubstantially diminishes their right.
Rule , Art 6, paragraph (f) (1) of the RRs of theLGC is in
accord with the Constitution when itprovides that no creation,
conversion, division, merger, abolition, or substantial alteration of
boundaries of LGUS shall take effect unlessapproved by a majority of
the votes cast in aplebiscite called for the purpose in the LGU orLGUs
affected. The plebiscite shall be conductedby the Commission on
Elections (COMELEC)within one hundred twenty (120) days from
theeffectivity of the law or ordinance prescribingsuch action, unless
said law or ordinance fixesanother date.
The rules cover all conversions, whether upwardor downward in
character, so long as they resultin a material change in the LGU
directly affected,especially a change in the political and economicrights
of its people
This is a petition for a writ of prohibition with prayer for preliminary
injunction assailing the constitu-tionality of Republic Act No. 8528,
converting the City of Santiago, sabela from an independent
component city to merely a component city.
On May 5, 1994, RA No. 7720 was signed into a law, which
converted the municipality of Santiago, sabela, into an independent
component city.
on July 4, 1994, RA No. 7720 was approved by the people of
Santiago in a plebiscite.
On February 14, 1998, RA No. 8528 was enacted and it amended
RA No. 7720 that practically downgraded the City of Santiago from an
independent component city to a merely component city.
Petitioners assail the constitutionality of RA No. 8528 for the lack
of provision to submit the law for the approval of the people of
Santiago in a proper plebiscite.
Respondents defended the constitutionality of RA No. 8528
saying that the said act merely reclassified the City of Santiago from
an independent component city into a component city. t allegedly did
not involve any "creation, division, merger, abolition, or substantial
alteration of boundaries of local government units, therefore, a
plebiscite of the people of Santiago is unnecessary. They also
questioned the standing of petitioners to file the petition and argued
that the petition raises a political question over which the Court lacks
jurisdiction.
SSUE/S:
WHETHER OR NOT RA NO. 8528 S UNCONSTTUTONAL FOR TS
FALURE TO SUBMT T TO PROPER PLEBSCTE.
WHETHER OR NOT THE PETTONERS LACKS STANDNG OR
PERSONALTY N FLNG THS PETTON.
WHETHER OR NOT THE COURT HAS JURSDCTON OVER THE
PETTON AT BAR ON THE GROUND THAT T NVOLVES
A POLITICAL QUESTON.
DECSON:

Petition was GRANTED. RA No. 8528 is declared
unconstitutional and the writ of prohibition is hereby issued
commanding the respondents to desist from implementing the said
law.
RATO DECDEND:
RA No. 8528 is declared unconstitutional because Sec. 10 of Art.
X of the 1987 Constitution clearly states that: No province, city,
municipality, or barangay may be created, divided, merged, abolished,
or its boundary substantially altered, except in accordance with the
criteria established in the local government code and subject to
approval by a majority of the votes cast in a plebiscite in the political
units directly affected.
That when an amendment of the law involves creation, merger,
division, abolition or substantial alteration of boundaries of local
government units, a plebiscite in the political units directly affected
is mandatory.
Petitioners are directly affected in the imple-mentation of RA No.
8528. Petitioner Miranda was the mayor of Santiago City, Afiado was
the President of the Sangguniang Liga, together with 3 other
petitioners were all residents and voters in the City of Santiago. t is
their right to be heard in the conversion of their city thru a plebiscite to
be conducted by the COMELEC. Thus, denial of their right in RA No.
8528 gives them proper standing to strike down the law as
unconstitutional.
Sec. 1 of Art. V of the Constitution states that: the judicial power
shall be vested in one Supreme Court and in such lower courts as may
be established by law. Judicial power includes the duty of the courts of
justice to settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not there
has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instru-mentality of the
Government.
That the Supreme Court has the jurisdiction over said petition
because it involves not a political question but a justiciable issue, and
of which only the court could decide whether or not a law passed by
the Congress is unconstitutional.

The Facts During the 11th Congress, Congress enacted into law 33
bills converting 33 municipalities into cities.However, Congress did not
act on bills converting 24 other municipalities into cities. During the
12th Congress, Congress enacted into law Republic ActNo. 9009 (RA
9009), which took effect on 30 June 2001.RA 9009 amended Section
450 of the Local Government Code by increasing the annual income
requirement for conversion of a municipality into a city from P20 million
to P100 million.The rationale for the amendment was to restrain, in the
words of Senator Aquilino Pimentel, "the mad rush of municipalities to
convert into cities solely to secure a larger share in the nternal
Revenue Allotment despite the fact that they are incapable of fiscal
independence. After the effectivity of RA 9009, the House of
Representatives of the 12th Congress adopted Joint Resolution No.
29, which sought to exempt from the P100 million income requirement
in RA 9009 the 24 municipalities whose cityhood bills were not
approved in the 11th Congress.However, the 12th Congress ended
without the Senate approving Joint Resolution No. 29. During the 13th
Congress, the House of Representatives re-adopted Joint Resolution
No. 29 as Joint Resolution No. 1 and forwarded it to the Senate for
approval.However, the Senate again failed to approve the Joint
Resolution. Following the advice of Senator Aquilino Pimentel, 16
municipalities filed, through their respective sponsors, individual
cityhood bills.The 16 cityhood bills contained a common provision
exempting allthe 16 municipalities from the P100 million income
requirement in RA 9009. On 22 December 2006, the House of
Representatives approved the cityhood bills.The Senate also approved
the cityhood bills in February 2007, except that of Naga, Cebu which
was passed on 7 June 2007.The cityhood bills lapsed into law
(Cityhood Laws) on various dates from March to July 2007 without the
President's signature. The Cityhood Laws direct the COMELEC to hold
plebiscites to determine whether the voters in each respondent
municipality approve of the conversion of their municipality into a city.
Petitioners filed the present petitions to declare the Cityhood Laws
unconstitutional for violation of Section 10, Article X of the Constitution,
as well as for violation of the equal protection clause.Petitioners also
lament that the wholesale conversion of municipalities into cities will
reduce the share of existing cities in the nternal Revenue Allotment
because more cities will share the same amount of internal revenue
set aside for all cities under Section 285 of the Local Government
Code. The ssues The petitions raise the following fundamental issues:
1. Whether the Cityhood Laws violate Section 10, Article X of the
Constitution; and 2.Whether the Cityhood Laws violate the equal
protection clause.

The Ruling of the Court We grant the petitions. The Cityhood Laws
violate Sections 6 and 10, Article X of the Constitution, and are thus
unconstitutional. First, applying the P100 million income requirement in
RA 9009 to the present case is a prospective, not a retroactive
application, because RA 9009 took effect in 2001 while the cityhood
bills became law more than five years later. Second, the Constitution
requires that Congress shall prescribe all the criteria for the creation of
a city in the Local Government Code and not in any other law,
including the Cityhood Laws. Third, the Cityhood Laws violate Section
6, Article X of the Constitution because they prevent a fair and just
distribution of the national taxes to local government units. Fourth, the
criteria prescribed in Section 450 of the Local Government Code, as
amended by RA 9009, for converting a municipality into a city are
clear, plain and unambiguous, needing no resort to any statutory
construction. Fifth, the intent of members of the 11th Congress to
exempt certain municipalities from the coverage of RA 9009 remained
an intent and was never written into Section 450 of the Local
Government Code. Sixth, the deliberations of the 11th or 12th
Congress on unapproved bills or resolutions are not extrinsic aids in
interpreting a law passed in the 13th Congress. Seventh, even if the
exemption in the Cityhood Laws were written in Section 450 of the
Local Government Code, the exemption would still be unconstitutional
for violation of the equal protection clause. Preliminary Matters
Prohibition is the proper action for testing the constitutionality of laws
administered by the COMELEC,like the Cityhood Laws, which direct
the COMELEC to hold plebiscites in implementation of the Cityhood
Laws.Petitioner League of Cities of the Philippines has legal standing
because Section 499 of the Local Government Code tasks the League
with the "primary purpose of ventilating, articulating and crystallizing
issues affecting city government administration and securing, through
proper and legal means, solutions thereto.Petitioners-in-intervention,
which are existing cities, have legal standing because their nternal
Revenue Allotment will be reduced if the Cityhood Laws are declared
constitutional.Mayor Jerry P. Treas has legal standing because as
Mayor of loilo City and as a taxpayer he has sufficient interest to
prevent the unlawful expenditure of public funds, like the release of
more nternal Revenue Allotment to political units than what the law
allows. Applying RA 9009 is a Prospective Application of the Law RA
9009 became effective on 30 June 2001 during the 11th Congress.This
law specifically amended Section 450 of the Local Government Code,
which now provides: Section 450.Requisites for Creation. (a) A
municipality or a cluster of barangays may be converted into a
component city if it has a locally generated average annual income, as
certified by the Department of Finance, of at least One hundred million
pesos (P100,000,000.00) for the last two (2) consecutive years based
on 2000 constant prices, and if it has either of the following requisites:
(i) a contiguous territory of at least one hundred (100) square
kilometers, as certified by the Land Management Bureau; or (ii) a
population of not less than one hundred fifty thousand (150,000)
inhabitants, as certified by the National Statistics Office. The creation
thereof shall not reduce the land area, population and income of the
original unit or units at the time of said creation to less than the
minimum requirements prescribed herein. (b) The territorial jurisdiction
of a newly-created city shall be properly identified by metes and
bounds. The requirement on land area shall not apply where the city
proposed to be created is composed of one (1) or more islands. The
territory need not be contiguous if it comprises two (2) or more islands.

(c) The average annual income shall include the income accruing to
the general fund, exclusive of special funds, transfers, and non-
recurring income.(Emphasis supplied) Thus, RA 9009 increased the
income requirement for conversion of a municipality into a city from
P20 million to P100 million.Section 450 of the Local Government Code,
as amended by RA 9009, does not provide any exemption from the
increased income requirement. Prior to the enactment of RA 9009, a
total of 57 municipalities had cityhood bills pending in Congress.Thirty-
three cityhood bills became law before the enactment of RA
9009.Congress did not act on 24 cityhood bills during the 11th
Congress. During the 12th Congress, the House of Representatives
adopted Joint Resolution No. 29, exempting from the income
requirement of P100 millionin RA 9009 the 24 municipalities whose
cityhood bills were not acted upon during the 11th Congress.This
Resolution reached the Senate.However, the 12th Congress adjourned
without the Senate approving Joint Resolution No. 29. During the 13th
Congress, 16 of the 24 municipalities mentioned in the unapproved
Joint Resolution No. 29 filed between November and December of
2006, through their respective sponsors in Congress,individual
cityhood bills containing a common provision, as follows: Exemption
from Republic Act No. 9009. The City of x x x shall be exempted
from the income requirement prescribed under Republic Act No. 9009.
This common provisionexempted each of the 16 municipalities from
the income requirement of P100 million prescribed in Section 450 of
the Local Government Code, as amended by RA 9009.These cityhood
bills lapsed into law on various dates from March to July 2007 after
President Gloria Macapagal-Arroyo failed to sign them. ndisputably,
Congress passed the Cityhood Laws longafter the effectivity of RA
9009.RA 9009 became effective on 30 June 2001 or during the 11th
Congress.The 13th Congress passed in December 2006 the cityhood
bills which became law only in 2007.Thus, respondent municipalities
cannot invoke the principle of non-retroactivity of laws.This basic rule
has no application because RA 9009, an earlier law to the Cityhood
Laws, is not being applied retroactively but prospectively. Congress
Must Prescribe in the Local Government Code All Criteria Section 10,
Article X of the 1987 Constitution provides: No province, city,
municipality, or barangay shall be created, divided, merged, abolished
units directly affected.(Emphasis supplied) The Constitution is
clear.The creation of local government units must follow the criteria
established in the Local Government Code and not in any other law.
There is only one Local Government Code.The Constitution requires
Congress to stipulate in the Local Government Code all the criteria
necessary for the creation of a city, including the conversion of a
municipality into a city.Congress cannot write such criteria in any other
law, like the Cityhood Laws. The criteria prescribed in the Local
Government Code govern exclusively the creation of a city.No other
law, not even the charter of the city, can govern such creation. The
clear intent of the Constitution is to insure that the creation of cities and
other political units must follow the same uniform, non-discriminatory
criteria found solely in the Local Government Code.Any derogation or
deviation from the criteria prescribed in the Local Government Code
violates Section 10, Article X of the Constitution. RA 9009 amended
Section 450 of the Local Government Code to increase the income
requirement from P20 million to P100 million for the creation of a city.
This took effect on 30 June 2001. Hence, from that moment the Local
Government Code required that any municipality desiring to become a
city must satisfy the P100 million income requirement.Section 450 of
the Local Government Code, as amended by RA 9009, does not
contain any exemption from this income requirement. n enacting RA
9009, Congress did not grant any exemption to respondent
municipalities, even though their cityhood bills were pending in
Congress when Congress passed RA 9009.The Cityhood Laws, all
enactedafter the effectivity of RA 9009, explicitly exempt respondent
municipalities from the increased income requirement in Section
THE CTY GOVERNMENT OF QUEZON CTY, AND THE CTY
TREASURER OF QUEZON CTY, DR. VCTOR B.
ENRGA, Petitioners,
vs.
BAYAN TELECOMMUNCATONS, NC., Respondent.
D E C S O N
GARCA,
Before the Court, on pure questions of law, is this petition for review on
certiorari under Rule 45 of the Rules of Court to nullify and set aside
the following issuances of the Regional Trial Court (RTC) of Quezon
City, Branch 227, in its Civil Case No. Q-02-47292, to wit:
1) Decision
1
dated June 6, 2003, declaring respondent Bayan
Telecommunications, nc. exempt from real estate taxation on its real
properties located in Quezon City; and
2) Order
2
dated December 30, 2003, denying petitioners' motion for
reconsideration.
The facts:
Respondent Bayan Telecommunications, nc.
3
(Bayantel) is a
legislative franchise holder under Republic Act (Rep. Act) No. 3259
4
to
establish and operate radio stations for domestic telecommunications,
radiophone, broadcasting and telecasting.
Of relevance to this controversy is the tax provision of Rep. Act No.
3259, embodied in Section 14 thereof, which reads:
SECTON 14. (a) The grantee shall be liable to pay the same taxes on
its real estate, buildings and personal property, exclusive of the
franchise, as other persons or corporations are now or hereafter may
be required by law to pay. (b) The grantee shall further pay to the
Treasurer of the Philippines each year, within ten days after the audit
and approval of the accounts as prescribed in this Act, one and one-
half per centum of all gross receipts from the business transacted
under this franchise by the said grantee (Emphasis supplied).
On January 1, 1992, Rep. Act No. 7160, otherwise known as the
"Local Government Code of 1991" (LGC), took effect. Section 232 of
the Code grants local government units within the Metro Manila Area
the power to levy tax on real properties, thus:
SEC. 232. Power to Levy Real Property Tax. A province or city or a
municipality within the Metropolitan Manila Area may levy an annual ad
valorem tax on real property such as land, building, machinery and
other improvements not hereinafter specifically exempted.
Complementing the aforequoted provision is the second paragraph of
Section 234 of the same Code which withdrew any exemption from
realty tax heretofore granted to or enjoyed by all persons, natural or
juridical, to wit:
SEC. 234 - Exemptions from Real Property Tax. The following are
exempted from payment of the real property tax:
xxx xxx xxx
Except as provided herein, any exemption from payment of real
property tax previously granted to, or enjoyed by, all persons, whether
natural or juridical, including government-owned-or-controlled
corporations is hereby withdrawn upon effectivity of this Code
(Emphasis supplied).
On July 20, 1992, barely few months after the LGC took effect,
Congress enacted Rep. Act No. 7633, amending Bayantel's original
franchise. The amendatory law (Rep. Act No. 7633) contained the
following tax provision:
SEC. 11. The grantee, its successors or assigns shall be liable to pay
the same taxes on their real estate, buildings and personal property,
exclusive of this franchise, as other persons or corporations are now or
hereafter may be required by law to pay. n addition thereto, the
grantee, its successors or assigns shall pay a franchise tax equivalent
to three percent (3%) of all gross receipts of the telephone or other
telecommunications businesses transacted under this franchise by the
grantee, its successors or assigns and the said percentage shall be in
lieu of all taxes on this franchise or earnings thereof. Provided, That
the grantee, its successors or assigns shall continue to be liable for
income taxes payable under Title of the National nternal Revenue
Code .. xxx. [Emphasis supplied]
t is undisputed that within the territorial boundary of Quezon City,
Bayantel owned several real properties on which it maintained various
telecommunications facilities. These real properties, as hereunder
described, are covered by the following tax declarations:
(a) Tax Declaration Nos. D-096-04071, D-096-04074, D-096-04072
and D-096-04073 pertaining to Bayantel's Head Office and Operations
Center in Roosevelt St., San Francisco del Monte, Quezon City
allegedly the nerve center of petitioner's telecommunications franchise
operations, said Operation Center housing mainly petitioner's Network
Operations Group and switching, transmission and related equipment;
(b) Tax Declaration Nos. D-124-01013, D-124-00939, D-124-00920
and D-124-00941 covering Bayantel's land, building and equipment in
Maginhawa St., Barangay East Teacher's Village, Quezon City which
houses telecommunications facilities; and
(c) Tax Declaration Nos. D-011-10809, D-011-10810, D-011-10811,
and D-011-11540 referring to Bayantel's Exchange Center located in
Proj. 8, Brgy. Bahay Toro, Tandang Sora, Quezon City which houses
the Network Operations Group and cover switching, transmission and
other related equipment.
n 1993, the government of Quezon City, pursuant to the taxing power
vested on local government units by Section 5, Article X of the 1987
Constitution, infra, in relation to Section 232 of the LGC, supra,
enacted City Ordinance No. SP-91, S-93, otherwise known as the
Quezon City Revenue Code (QCRC),
5
imposing, under Section 5
thereof, a real property tax on all real properties in Quezon City, and,
reiterating in its Section 6, the withdrawal of exemption from real
property tax under Section 234 of the LGC, supra. Furthermore, much
like the LGC, the QCRC, under its Section 230, withdrew tax
exemption privileges in general, as follows:
SEC. 230. Withdrawal of Tax Exemption Privileges. Unless otherwise
provided in this Code, tax exemptions or incentives granted to, or
presently enjoyed by all persons, whether natural or juridical, including
government owned or controlled corporations, except local water
districts, cooperatives duly registered under RA 6938, non-stock and
non-profit hospitals and educational institutions, business enterprises
certified by the Board of nvestments (BO) as pioneer or non-pioneer
for a period of six (6) and four (4) years, respectively, . are hereby
withdrawn effective upon approval of this Code (Emphasis supplied).
Conformably with the City's Revenue Code, new tax declarations for
Bayantel's real properties in Quezon City were issued by the City
Assessor and were received by Bayantel on August 13, 1998, except
one (Tax Declaration No. 124-01013) which was received on July 14,
1999.
Meanwhile, on March 16, 1995, Rep. Act No. 7925,
6
otherwise known
as the "Public Telecommunications Policy Act of the Philippines,"
envisaged to level the playing field among telecommunications
companies, took effect. Section 23 of the Act provides:
SEC. 23. Equality of Treatment in the Telecommunications ndustry.
Any advantage, favor, privilege, exemption, or immunity granted under
existing franchises, or may hereafter be granted, shall ipso facto
become part of previously granted telecommunications franchises and
shall be accorded immediately and unconditionally to the grantees of
such franchises: Provided, however, That the foregoing shall neither
apply to nor affect provisions of telecommunications franchises
concerning territory covered by the franchise, the life span of the
franchise, or the type of service authorized by the franchise.
On January 7, 1999, Bayantel wrote the office of the City Assessor
seeking the exclusion of its real properties in the city from the roll of
taxable real properties. With its request having been denied, Bayantel
interposed an appeal with the Local Board of Assessment Appeals
(LBAA). And, evidently on its firm belief of its exempt status, Bayantel
did not pay the real property taxes assessed against it by the Quezon
City government.
On account thereof, the Quezon City Treasurer sent out notices of
delinquency for the total amount ofP43,878,208.18, followed by the
issuance of several warrants of levy against Bayantel's properties
preparatory to their sale at a public auction set on July 30, 2002.
Threatened with the imminent loss of its properties, Bayantel
immediately withdrew its appeal with the LBAA and instead filed with
the RTC of Quezon City a petition for prohibition with an urgent
application for a temporary restraining order (TRO) and/or writ of
preliminary injunction, thereat docketed as Civil Case No. Q-02-47292,
which was raffled to Branch 227 of the court.
On July 29, 2002, or in the eve of the public auction scheduled the
following day, the lower court issued a TRO, followed, after due
hearing, by a writ of preliminary injunction via its order of August 20,
2002.
And, having heard the parties on the merits, the same court came out
with its challenged Decision of June 6, 2003, the dispositive portion of
which reads:
WHEREFORE, premises considered, pursuant to the enabling
franchise under Section 11 of Republic Act No. 7633, the real estate
properties and buildings of petitioner [now, respondent Bayantel] which
have been admitted to be used in the operation of petitioner's franchise
described in the following tax declarations are hereby DECLARED
exempt from real estate taxation:
The preliminary prohibitory injunction issued in the August 20, 2002
Order of this Court is hereby made permanent. Since this is a
resolution of a purely legal issue, there is no pronouncement as to
costs.
SO ORDERED.
Their motion for reconsideration having been denied by the court in its
Order dated December 30, 2003, petitioners elevated the case directly
to this Court on pure questions of law, ascribing to the lower court the
following errors:
. []n declaring the real properties of respondent exempt from real
property taxes notwithstanding the fact that the tax exemption granted
to Bayantel in its original franchise had been withdrawn by the [LGC]
and that the said exemption was not restored by the enactment of RA
7633.
property taxes notwithstanding the enactment of the [QCRC] which
withdrew the tax exemption which may have been granted by RA
7633.
property taxes notwithstanding the vague and ambiguous grant of tax
exemption provided under Section 11 of RA 7633.
V. [n] declaring the real properties of respondent exempt from real
property taxes notwithstanding the fact that [it] had failed to exhaust
administrative remedies in its claim for real property tax exemption.
(Words in bracket added.)
As we see it, the errors assigned may ultimately be reduced to two (2)
basic issues, namely:
1. Whether or not Bayantel's real properties in Quezon City are exempt
from real property taxes under its legislative franchise; and
2. Whether or not Bayantel is required to exhaust administrative
remedies before seeking judicial relief with the trial court.
We shall first address the second issue, the same being procedural in
nature.
Petitioners argue that Bayantel had failed to avail itself of the
administrative remedies provided for under the LGC, adding that the
trial court erred in giving due course to Bayantel's petition for
prohibition. To petitioners, the appeal mechanics under the LGC
constitute Bayantel's plain and speedy remedy in this case.
The Court does not agree.
Petitions for prohibition are governed by the following provision of Rule
65 of the Rules of Court:
SEC. 2. Petition for prohibition. When the proceedings of any
tribunal, . are without or in excess of its or his jurisdiction, or with
grave abuse of discretion amounting to lack or excess of jurisdiction,
and there is no appeal or any other plain, speedy, and adequate
remedy in the ordinary course of law, a person aggrieved thereby may
file a verified petition in the proper court, alleging the facts with
certainty and praying that judgment be rendered commanding the
respondent to desist from further proceedings in the action or matter
specified therein, or otherwise, granting such incidental reliefs as law
and justice may require.
With the reality that Bayantel's real properties were already levied
upon on account of its nonpayment of real estate taxes thereon, the
Court agrees with Bayantel that an appeal to the LBAA is not a speedy
and adequate remedy within the context of the aforequoted Section 2
of Rule 65. This is not to mention of the auction sale of said properties
already scheduled on July 30, 2002.
Moreover, one of the recognized exceptions to the exhaustion- of-
administrative remedies rule is when, as here, only legal issues are to
be resolved. n fact, the Court, cognizant of the nature of the questions
presently involved, gave due course to the instant petition. As the
Court has said in Ty vs. Trampe:
7

xxx. Although as a rule, administrative remedies must first be
exhausted before resort to judicial action can prosper, there is a well-
settled exception in cases where the controversy does not involve
questions of fact but only of law. xxx.
Lest it be overlooked, an appeal to the LBAA, to be properly
considered, required prior payment under protest of the amount
of P43,878,208.18, a figure which, in the light of the then prevailing
Asian financial crisis, may have been difficult to raise up. Given this
reality, an appeal to the LBAA may not be considered as a plain,
speedy and adequate remedy. t is thus understandable why Bayantel
opted to withdraw its earlier appeal with the LBAA and, instead, filed its
petition for prohibition with urgent application for injunctive relief in Civil
Case No. Q-02-47292. The remedy availed of by Bayantel under
Section 2, Rule 65 of the Rules of Court must be upheld.
This brings the Court to the more weighty question of whether or not
Bayantel's real properties in Quezon City are, under its franchise,
exempt from real property tax.
The lower court resolved the issue in the affirmative, basically owing to
the phrase "exclusive of this franchise" found in Section 11 of
Bayantel's amended franchise, Rep. Act No. 7633. To petitioners,
however, the language of Section 11 of Rep. Act No. 7633 is neither
clear nor unequivocal. The elaborate and extensive discussion devoted
by the trial court on the meaning and import of said phrase, they add,
suggests as much. t is petitioners' thesis that Bayantel was in no time
given any express exemption from the payment of real property tax
under its amendatory franchise.
There seems to be no issue as to Bayantel's exemption from real
estate taxes by virtue of the term "exclusive of the franchise" qualifying
the phrase "same taxes on its real estate, buildings and personal
property," found in Section 14, supra, of its franchise, Rep. Act No.
3259, as originally granted.
The legislative intent expressed in the phrase "exclusive of this
franchise" cannot be construed other than distinguishing between two
(2) sets of properties, be they real or personal, owned by the
franchisee, namely, (a) those actually, directly and exclusively used in
its radio or telecommunications business, and (b) those properties
which are not so used. t is worthy to note that the properties subject of
the present controversy are only those which are admittedly falling
under the first category.
To the mind of the Court, Section 14 of Rep. Act No. 3259 effectively
works to grant or delegate to local governments of Congress' inherent
power to tax the franchisee's properties belonging to the second group
of properties indicated above, that is, all properties which, "exclusive of
this franchise," are not actually and directly used in the pursuit of its
franchise. As may be recalled, the taxing power of local governments
under both the 1935 and the 1973 Constitutions solely depended upon
an enabling law. Absent such enabling law, local government units
were without authority to impose and collect taxes on real properties
within their respective territorial jurisdictions. While Section 14 of Rep.
Act No. 3259 may be validly viewed as an implied delegation of power
to tax, the delegation under that provision, as couched, is limited to
impositions over properties of the franchisee which are not actually,
directly and exclusively used in the pursuit of its franchise. Necessarily,
other properties of Bayantel directly used in the pursuit of its business
are beyond the pale of the delegated taxing power of local
governments. n a very real sense, therefore, real properties of
Bayantel, save those exclusive of its franchise, are subject to realty
taxes. Ultimately, therefore, the inevitable result was that all realties
which are actually, directly and exclusively used in the operation of its
franchise are "exempted" from any property tax.
Bayantel's franchise being national in character, the "exemption" thus
granted under Section 14 of Rep. Act No. 3259 applies to all its real or
personal properties found anywhere within the Philippine archipelago.
However, with the LGC's taking effect on January 1, 1992, Bayantel's
"exemption" from real estate taxes for properties of whatever kind
located within the Metro Manila area was, by force of Section 234 of
the Code, supra, expressly withdrawn. But, not long thereafter,
however, or on July 20, 1992, Congress passed Rep. Act No. 7633
amending Bayantel's original franchise. Worthy of note is that Section
11 of Rep. Act No. 7633 is a virtual reenacment of the tax provision,
i.e., Section 14, supra, of Bayantel's original franchise under Rep. Act
No. 3259. Stated otherwise, Section 14 of Rep. Act No. 3259 which
was deemed impliedly repealed by Section 234 of the LGC was
expressly revived under Section 14 of Rep. Act No. 7633. n concrete
terms, the realty tax exemption heretofore enjoyed by Bayantel under
its original franchise, but subsequently withdrawn by force of Section
234 of the LGC, has been restored by Section 14 of Rep. Act No.
7633.
The Court has taken stock of the fact that by virtue of Section 5, Article
X of the 1987 Constitution,
8
local governments are empowered to levy
taxes. And pursuant to this constitutional empowerment, juxtaposed
with Section 232
9
of the LGC, the Quezon City government enacted in
1993 its local Revenue Code, imposing real property tax on all real
properties found within its territorial jurisdiction. And as earlier stated,
the City's Revenue Code, just like the LGC, expressly withdrew, under
Section 230 thereof, supra, all tax exemption privileges in general.
This thus raises the question of whether or not the City's Revenue
Code pursuant to which the city treasurer of Quezon City levied real
property taxes against Bayantel's real properties located within the City
effectively withdrew the tax exemption enjoyed by Bayantel under its
franchise, as amended.
Bayantel answers the poser in the negative arguing that once again it
is only "liable to pay the same taxes, as any other persons or
corporations on all its real or personal properties, exclusive of its
franchise."
Bayantel's posture is well-taken. While the system of local government
taxation has changed with the onset of the 1987 Constitution, the
power of local government units to tax is still limited. As we explained
in Mactan Cebu nternational Airport Authority:
10

The power to tax is primarily vested in the Congress; however, in our
jurisdiction, it may be exercised by local legislative bodies, no longer
merely be virtue of a valid delegation as before, but pursuant to direct
authority conferred by Section 5, Article X of the Constitution. Under
the latter, the exercise of the power may be subject to such guidelines
and limitations as the Congress may provide which, however, must be
consistent with the basic policy of local autonomy. (at p. 680;
Emphasis supplied.)
Clearly then, while a new slant on the subject of local taxation now
prevails in the sense that the former doctrine of local government units'
delegated power to tax had been effectively modified with Article X,
Section 5 of the 1987 Constitution now in place, .the basic doctrine on
local taxation remains essentially the same. For as the Court stressed
in Mactan, "the power to tax is [still] primarily vested in the Congress."
This new perspective is best articulated by Fr. Joaquin G. Bernas, S.J.,
himself a Commissioner of the 1986 Constitutional Commission which
crafted the 1987 Constitution, thus:
What is the effect of Section 5 on the fiscal position of municipal
corporations? Section 5 does not change the doctrine that municipal
corporations do not possess inherent powers of taxation. What it does
is to confer municipal corporations a general power to levy taxes and
otherwise create sources of revenue. They no longer have to wait for a
statutory grant of these powers. The power of the legislative authority
relative to the fiscal powers of local governments has been reduced to
the authority to impose limitations on municipal powers. Moreover,
these limitations must be "consistent with the basic policy of local
autonomy." The important legal effect of Section 5 is thus to reverse
the principle that doubts are resolved against municipal corporations.
Henceforth, in interpreting statutory provisions on municipal fiscal
powers, doubts will be resolved in favor of municipal corporations. t is
understood, however, that taxes imposed by local government must be
for a public purpose, uniform within a locality, must not be confiscatory,
and must be within the jurisdiction of the local unit to pass.
11
(Emphasis
supplied).
n net effect, the controversy presently before the Court involves, at
bottom, a clash between the inherent taxing power of the legislature,
which necessarily includes the power to exempt, and the local
government's delegated power to tax under the aegis of the 1987
Constitution.
Now to go back to the Quezon City Revenue Code which imposed real
estate taxes on all real properties within the city's territory and
removed exemptions theretofore "previously granted to, or presently
enjoyed by all persons, whether natural or juridical ..,"
12
there can
really be no dispute that the power of the Quezon City Government to
tax is limited by Section 232 of the LGC which expressly provides that
"a province or city or municipality within the Metropolitan Manila Area
may levy an annual ad valorem tax on real property such as land,
building, machinery, and other improvement not hereinafter specifically
exempted." Under this law, the Legislature highlighted its power to
thereafter exempt certain realties from the taxing power of local
government units. An interpretation denying Congress such power to
exempt would reduce the phrase "not hereinafter specifically
exempted" as a pure jargon, without meaning whatsoever. Needless to
state, such absurd situation is unacceptable.
For sure, in Philippine Long Distance Telephone Company, nc.
(PLDT) vs. City of Davao,
13
this Court has upheld the power of
Congress to grant exemptions over the power of local government
units to impose taxes. There, the Court wrote:
ndeed, the grant of taxing powers to local government units under the
Constitution and the LGC does not affect the power of Congress to
grant exemptions to certain persons, pursuant to a declared national
policy. The legal effect of the constitutional grant to local governments
simply means that in interpreting statutory provisions on municipal
taxing powers, doubts must be resolved in favor of municipal
corporations. (Emphasis supplied.)
As we see it, then, the issue in this case no longer dwells on whether
Congress has the power to exempt Bayantel's properties from realty
taxes by its enactment of Rep. Act No. 7633 which amended
Bayantel's original franchise. The more decisive question turns on
whether Congress actually did exempt Bayantel's properties at all by
virtue of Section 11 of Rep. Act No. 7633.
Admittedly, Rep. Act No. 7633 was enacted subsequent to the LGC.
Perfectly aware that the LGC has already withdrawn Bayantel's former
exemption from realty taxes, Congress opted to pass Rep. Act No.
7633 using, under Section 11 thereof, exactly the same defining
phrase "exclusive of this franchise" which was the basis for Bayantel's
exemption from realty taxes prior to the LGC. n plain language,
Section 11 of Rep. Act No. 7633 states that "the grantee, its
successors or assigns shall be liable to pay the same taxes on their
real estate, buildings and personal property, exclusive of this franchise,
as other persons or corporations are now or hereafter may be required
by law to pay." The Court views this subsequent piece of legislation as
an express and real intention on the part of Congress to once again
remove from the LGC's delegated taxing power, all of the franchisee's
(Bayantel's) properties that are actually, directly and exclusively used
in the pursuit of its franchise.
WHEREFORE, the petition is DENED.
No pronouncement as to costs.
ALTERNATVE CENTER FOR ORGANZATONAL REFORMS AND
DEVELOPMENT, NC., VS. ZAMORA
G.R. No. 144256
Subject: Public Corporation
Doctrine: Automatic release of RA
Facts:
Pres. Estrada, pursuant to Sec 22, Art V mandating the Pres to
submit to Congress a budget of expenditures within 30 days before the
opening of every regular session, submitted the National Expenditures
program for FY 2000. The President proposed an RA of
P121,778,000,000. This became RA 8760, "AN ACT
APPROPRATNG FUNDS FOR THE OPERATON OF THE
GOVERNMENT OF THE REPUBLC OF THE PHLPPNES FROM
JANUARY ONE TO DECEMBER THRTY-ONE, TWO THOUSAND,
AND FOR OTHER PURPOSES also known as General
Appropriations Act (GAA) for the Year 2000. t provides under the
heading "ALLOCATONS TO LOCAL GOVERNMENT UNTS that the
RA for local government units shall amount to P111,778,000,000.
n another part of the GAA, under the heading "UNPROGRAMMED
FUND, it is provided that an amount of P10,000,000,000 (P10 Billion),
apart from the P111,778,000,000 mentioned above, shall be used to
fund the RA, which amount shall be released only when the original
revenue targets submitted by the President to Congress can be
realized based on a quarterly assessment to be conducted by certain
committees which the GAA specifies, namely, the Development
Budget Coordinating Committee, the Committee on Finance of the
Senate, and the Committee on Appropriations of the House of
Representatives.
Thus, while the GAA appropriates P111,778,000,000 of RA as
Programmed Fund, it appropriates a separate amount of P10 Billion of
RA under the classification of Unprogrammed Fund, the latter amount
to be released only upon the occurrence of the condition stated in the
GAA.
On August 22, 2000, a number of NGOs and POs, along with 3
barangay officials filed with this Court the petition at bar, for Certiorari,
Prohibition and Mandamus With Application for Temporary Restraining
Order, against respondents then Executive Secretary Ronaldo
Zamora, then Secretary of the Department of Budget and Management
Benjamin Diokno, then National Treasurer Leonor Magtolis-Briones,
and the Commission on Audit, challenging the constitutionality of
provision XXXV (ALLOCATONS TO LOCAL GOVERNMENT UNTS)
referred to by petitioners as Section 1, XXXV (A), and LV
(UNPROGRAMMED FUND) Special Provisions 1 and 4 of the GAA
(the GAA provisions)
Petitioners contend that the said provisions violates the LGUs
autonomy by unlawfully reducing the RA allotted by 10B and by
withholding its release by placing the same under "Unprogrammed
funds. Although the effectivity of the Year 2000 GAA has ceased, this
Court shall nonetheless proceed to resolve the issues raised in the
present case, it being impressed with public interest. Petitioners argue
that the GAA violated the constitutional mandate of automatically
releasing the RAs when it made its release contingent on whether
revenue collections could meet the revenue targets originally submitted
by the President, rather than making the release automatic.
SSUE: WON the subject GAA violates LGUs fiscal autonomy by not
automatically releasing the whole amount of the allotted RA.
HELD:
Article X, Section 6 of the Constitution provides:
SECTON 6. Local government units shall have a just share, as
determined by law, in the national taxes which shall be automatically
released to them.
Petitioners argue that the GAA violated this constitutional mandate
when it made the release of RA contingent on whether revenue
collections could meet the revenue targets originally submitted by the
President, rather than making the release automatic. Respondents
counterargue that the above constitutional provision is addressed not
to the legislature but to the executive, hence, the same does not
prevent the legislature from imposing conditions upon the release of
the RA.
Respondents thus infer that the subject constitutional provision merely
prevents the executive branch of the government from "unilaterally
withholding the RA, but not the legislature from authorizing the
executive branch to withhold the same. n the words of respondents,
"This essentially means that the President or any member of the
Executive Department cannot unilaterally, i.e., without the backing of
statute, withhold the release of the RA.
As the Constitution lays upon the executive the duty to automatically
release the just share of local governments in the national taxes, so it
enjoins the legislature not to pass laws that might prevent the
executive from performing this duty. To hold that the executive branch
may disregard constitutional provisions which define its duties,
provided it has the backing of statute, is virtually to make the
Constitution amendable by statute a proposition which is patently
absurd. f indeed the framers intended to allow the enactment of
statutes making the release of RA conditional instead of automatic,
then Article X, Section 6 of the Constitution would have been worded
differently.
Since, under Article X, Section 6 of the Constitution, only the just share
of local governments is qualified by the words "as determined by law,
and not the release thereof, the plain implication is that Congress is not
authorized by the Constitution to hinder or impede the automatic
release of the RA.
n another case, the Court held that the only possible exception to
mandatory automatic release of the RA is, as held in Batangas:
.if the national internal revenue collections for the current fiscal year
is less than 40 percent of the collections of the preceding third fiscal
year, in which case what should be automatically released shall be a
proportionate amount of the collections for the current fiscal year. The
adjustment may even be made on a quarterly basis depending on the
actual collections of national internal revenue taxes for the quarter of
the current fiscal year.
This Court recognizes that the passage of the GAA provisions by
Congress was motivated by the laudable intent to "lower the budget
deficit in line with prudent fiscal management. The pronouncement in
Pimentel, however, must be echoed: "[T]he rule of law requires that
even the best intentions must be carried out within the parameters of
the Constitution and the law. Verily, laudable purposes must be carried
out by legal methods.
WHEREFORE, the petition is GRANTED. XXXV and LV Special
Provisions 1 and 4 of the Year 2000 GAA are hereby declared
unconstitutional insofar as they set apart a portion of the RA, in the
amount of P10 Billion, as part of the UNPROGRAMMED FUND.

BATANGAS CATV, NC. vs. THE COURT OF APPEALS, THE
BATANGAS CTY SANGGUNANG PANLUNGSOD and BATANGAS
CTY MAYOR [G.R. No. 138810. September 29, 2004]

FACTS:
On July 28, 1986, respondent Sangguniang Panlungsod enacted
Resolution No. 210 granting petitioner a permit to construct, install, and
operate a CATV system in Batangas City. Section 8 of the Resolution
provides that petitioner is authorized to charge its subscribers the
maximum rates specified therein, "provided, however, that any
increase of rates shall be subject to the approval of the Sangguniang
Panlungsod.

Sometime in November 1993, petitioner increased its subscriber rates
from P88.00 to P180.00 per month. As a result, respondent Mayor
wrote petitioner a letter threatening to cancel its permit unless it
secures the approval of respondent Sangguniang Panlungsod,
pursuant to Resolution No. 210.

Petitioner then filed with the RTC, Branch 7, Batangas City, a petition
for injunction alleging that respondent Sangguniang Panlungsod has
no authority to regulate the subscriber rates charged by CATV
operators because under Executive Order No. 205, the National
Telecommunications Commission (NTC) has the sole authority to
regulate the CATV operation in the Philippines.

SSUE :
may a local government unit (LGU) regulate the subscriber rates
charged by CATV operators within its territorial jurisdiction?

HELD: No.

x x x

The logical conclusion, therefore, is that in light of the above laws and
E.O. No. 436, the NTC exercises regulatory power over CATV
operators to the exclusion of other bodies.

x x x

Like any other enterprise, CATV operation maybe regulated by LGUs
under the general welfare clause. This is primarily because the CATV
system commits the indiscretion of crossing public properties. (t uses
public properties in order to reach subscribers.) The physical realities
of constructing CATV system the use of public streets, rights of
ways, the founding of structures, and the parceling of large regions
allow an LGU a certain degree of regulation over CATV operators.

x x x

But, while we recognize the LGUs' power under the general welfare
clause, we cannot sustain Resolution No. 210. We are convinced that
respondents strayed from the well recognized limits of its power. The
flaws in Resolution No. 210 are: (1) it violates the mandate of existing
laws and (2) it violates the State's deregulation policy over the CATV
industry.

LGUs must recognize that technical matters concerning CATV
operation are within the exclusive regulatory power of the NTC.

LEONARDO TAN, ROBERT UY and LAMBERTO TE, petitioners,
vs SOCORRO Y. PEREA, respondent
D E C S O N
TNGA, .:
The resolution of the present petition effectively settles the
question of how many cockpits may be allowed to operate in a city or
municipality.
There are two competing values of high order that come to fore
in this casethe traditional power of the national government to enact
police power measures, on one hand, and the vague principle of local
autonomy now enshrined in the Constitution on the other. The facts are
simple, but may be best appreciated taking into account the legal
milieu which frames them.
n 1974, Presidential Decree (P.D.) No. 449, otherwise known as
the Cockfighting Law of 1974, was enacted. Section 5(b) of the Decree
provided for limits on the number of cockpits that may be established in
cities and municipalities in the following manner:
Section 5. Cockpits and Cockfighting in General.
(b) Establishment of Cockpits. Only one cockpit shall be allowed in
each city or municipality, except that in cities or municipalities with a
population of over one hundred thousand, two cockpits may be
established, maintained and operated.
With the enactment of the Local Government Code of 1991,
[1]
the
municipal sangguniang bayan were empowered, "[a]ny law to the
contrary notwithstanding, to "authorize and license the establishment,
operation and maintenance of cockpits, and regulate cockfighting and
commercial breeding of gamecocks.
[2]

n 1993, the Sangguniang Bayan of the municipality of
Daanbantayan,
[3]
Cebu Province, enacted Municipal Ordinance No. 6
(Ordinance No. 6), Series of 1993, which served as the Revised
Omnibus Ordinance prescribing and promulgating the rules and
regulations governing cockpit operations in Daanbantayan.
[4]
Section 5
thereof, relative to the number of cockpits allowed in the municipality,
stated:
Section 5. There shall be allowed to operate in the Municipality of
Daanbantayan, Province of Cebu, not more than its equal number of
cockpits based upon the population provided for in PD 449, provided
however, that this specific section can be amended for purposes of
establishing additional cockpits, if the Municipal population so
warrants.
[5]

Shortly thereafter, the Sangguniang Bayan passed an
amendatory ordinance, Municipal Ordinance No. 7 (Ordinance No. 7),
Series of 1993, which amended the aforequoted Section 5 to now read
as follows:
Section 5. Establishment of Cockpit. There shall be allowed to operate
in the Municipality of Daanbantayan, Province of Cebu, not more than
three (3) cockpits.
[6]

On 8 November 1995, petitioner Leonardo Tan (Tan) applied
with the Municipal Gamefowl Commission for the issuance of a
permit/license to establish and operate a cockpit in Sitio Combado,
Bagay, in Daanbantayan. At the time of his application, there was
already another cockpit in operation in Daanbantayan, operated by
respondent Socorro Y. Perea (Perea), who was the duly franchised
and licensed cockpit operator in the municipality since the 1970s.
Perea's franchise, per records, was valid until 2002.
[7]

The Municipal Gamefowl Commission favorably recommended
to the mayor of Daanbantayan, petitioner Lamberto Te (Te), that a
permit be issued to Tan. On 20 January 1996, Te issued a mayor's
permit allowing Tan "to establish/operate/conduct the business of a
cockpit in Combado, Bagay, Daanbantayan, Cebu for the period from
20 January 1996 to 31 December 1996.
[8]

This act of the mayor served as cause for Perea to file a
Complaint for damages with a prayer for injunction against Tan, Te,
and Roberto Uy, the latter allegedly an agent of Tan.
[9]
Perea alleged
that there was no lawful basis for the establishment of a second
cockpit. She claimed that Tan conducted his cockpit fights not in
Combado, but in Malingin, at a site less than five kilometers away from
her own cockpit. She insisted that the unlawful operation of Tan's
cockpit has caused injury to her own legitimate business, and
demanded damages of at least Ten Thousand Pesos (P10,000.00) per
month as actual damages, One Hundred Fifty Thousand Pesos
(P150,000.00) as moral damages, and Fifty Thousand Pesos
(P50,000.00) as exemplary damages. Perea also prayed that the
permit issued by Te in favor of Tan be declared as null and void, and
that a permanent writ of injunction be issued against Te and Tan
preventing Tan from conducting cockfights within the municipality and
Te from issuing any authority for Tan to pursue such activity.
[10]

The case was heard by the Regional Trial Court
(RTC),
[11]
Branch 61 of Bogo, Cebu, which initially granted a writ of
preliminary injunction.
[12]
During trial, herein petitioners asserted that
under the Local Government Code of 1991, the sangguniang bayan of
each municipality now had the power and authority to grant franchises
and enact ordinances authorizing the establishment, licensing,
operation and maintenance of cockpits.
[13]
By virtue of such authority,
the Sangguniang Bayan of Daanbantayan promulgated Ordinance
Nos. 6 and 7. On the other hand, Perea claimed that the amendment
authorizing the operation of not more than three (3) cockpits in
Daanbantayan violated Section 5(b) of the Cockfighting Law of 1974,
which allowed for only one cockpit in a municipality with a population
as Daanbantayan.
[14]

n a ecision dated 10 March 1997, the RTC dismissed the
complaint. The court observed that Section 5 of Ordinance No. 6, prior
to its amendment, was by specific provision, an implementation of the
Cockfighting Law.
[15]
Yet according to the RTC, questions could be
raised as to the efficacy of the subsequent amendment under
Ordinance No. 7, since under the old Section 5, an amendment
allowing additional cockpits could be had only "if the municipal
population so warrants.
[16]
While the RTC seemed to doubt whether
this condition had actually been fulfilled, it nonetheless declared that
since the case was only for damages, "the [RTC] cannot grant more
relief than that prayed for.
[17]
t ruled that there was no evidence,
testimonial or documentary, to show that plaintiff had actually suffered
damages. Neither was there evidence that Te, by issuing the permit to
Tan, had acted in bad faith, since such issuance was pursuant to
municipal ordinances that nonetheless remained in force.
[18]
Finally, the
RTC noted that the assailed permit had expired on 31 December 1996,
and there was no showing that it had been renewed.
[19]

Perea filed a Motion for Reconsideration which was denied in
an Order dated 24 February 1998. n this Order, the RTC categorically
stated that Ordinance Nos. 6 and 7 were "valid and legal for all intents
and purpose[s].
[20]
The RTC also noted that the Sangguniang Bayan
had also promulgated Resolution No. 78-96, conferring on Tan a
franchise to operate a cockpit for a period of ten (10) years from
February 1996 to 2006.
[21]
This Resolution was likewise affirmed as
valid by the RTC. The RTC noted that while the ordinances seemed to
be in conflict with the Cockfighting Law, any doubt in interpretation
should be resolved in favor of the grant of more power to the local
government unit, following the principles of devolution under the Local
Government Code.
[22]

The ecision and Order of the RTC were assailed by Perea on
an appeal with the Court of Appeals which on 21 May 2001, rendered
the ecision now assailed.
[23]
The perspective from which the Court of
Appeals viewed the issue was markedly different from that adopted by
the RTC. ts analysis of the Local Government Code, particularly
Section 447(a)(3)(V), was that the provision vesting unto the
sangguniang bayan the power to authorize and license the
establishment of cockpits did not do away with the Cockfighting Law,
as these two laws are not necessarily inconsistent with each other.
What the provision of the Local Government Code did, according to the
Court of Appeals, was to transfer to the sangguniang bayan powers
that were previously conferred on the Municipal Gamefowl
Commission.
[24]

Given these premises, the appellate court declared as follows:
Ordinance No. 7 should [be] held invalid for allowing, in unconditional
terms, the operation of "not more than three cockpits in Daan
Bantayan (sic), clearly dispensing with the standard set forth in PD
449. However, this issue appears to have been mooted by the
expiration of the Mayor's Permit granted to the defendant which has
not been renewed.
[25]

As to the question of damages, the Court of Appeals agreed with
the findings of the RTC that Perea was not entitled to damages. Thus,
it affirmed the previous ruling denying the claim for damages.
However, the Court of Appeals modified the RTC's Decision in that it
now ordered that Tan be enjoined from operating a cockpit and
conducting any cockfights within Daanbantayan.
[26]

Thus, the present Petition for Review on Certiorari.
Petitioners present two legal questions for determination:
whether the Local Government Code has rendered inoperative the
Cockfighting Law; and whether the validity of a municipal ordinance
may be determined in an action for damages which does not even
contain a prayer to declare the ordinance invalid.
[27]
As the denial of the
prayer for damages by the lower court is not put in issue before this
Court, it shall not be passed upon on review.
The first question raised is particularly interesting, and any
definitive resolution on that point would have obvious ramifications not
only to Daanbantayan, but all other municipalities and cities. However,
we must first determine the proper scope of judicial inquiry that we
could engage in, given the nature of the initiatory complaint and the
rulings rendered thereupon, the exact point raised in the second
question.
Petitioners claim that the Court of Appeals, in declaring
Ordinance No. 7 as invalid, embarked on an unwarranted collateral
attack on the validity of a municipal ordinance.
[28]
Perea's complaint,
which was for damages with preliminary injunction, did not pray for the
nullity of Ordinance No. 7. The Municipality of Daanbantayan as a local
government unit was not made a party to the case, nor did any legal
counsel on its behalf enter any appearance. Neither was the Office of
the Solicitor General given any notice of the case.
[29]

These concerns are not trivial.
[30]
Yet, we must point out that the
Court of Appeals did not expressly nullify Ordinance No. 7, or any
ordinance for that matter. What the appellate court did was to say that
Ordinance No. 7 "should therefore be held invalid for being in violation
of the Cockfighting Law.
[31]
n the next breath though, the Court of
Appeals backtracked, saying that "this issue appears to have been
mooted by the expiration of the Mayor's Permit granted to Tan.
[32]

But our curiosity is aroused by the dispositive portion of the
assailed ecision, wherein the Court of Appeals enjoined Tan "from
operating a cockpit and conducting any cockfights within
Daanbantayan.
[33]
Absent the invalidity of Ordinance No. 7, there would
be no basis for this injunction. After all, any future operation of a
cockpit by Tan in Daanbantayan, assuming all other requisites are
complied with, would be validly authorized should Ordinance No. 7
subsist.
So it seems, for all intents and purposes, that the Court of
Appeals did deem Ordinance No. 7 a nullity. Through such resort, did
the appellate court in effect allow a collateral attack on the validity of
an ordinance through an action for damages, as the petitioners argue?
The initiatory Complaint filed by Perea deserves close scrutiny.
mmediately, it can be seen that it is not only an action for damages,
but also one for injunction. An action for injunction will require judicial
determination whether there exists a right in esse which is to be
protected, and if there is an act constituting a violation of such right
against which injunction is sought. At the same time, the mere fact of
injury alone does not give rise to a right to recover damages. To
warrant the recovery of damages, there must be both a right of action
for a legal wrong inflicted by the defendant, and damage resulting to
the plaintiff therefrom. n other words, in order that the law will give
redress for an act causing damage, there must be damnum et
injuriathat act must be not only hurtful, but wrongful.
[34]

ndubitably, the determination of whether injunction or damages
avail in this case requires the ascertainment of whether a second
cockpit may be legally allowed in Daanbantayan. f this is permissible,
Perea would not be entitled either to injunctive relief or damages.
Moreover, an examination of the specific allegations in
the Complaint reveals that Perea therein puts into question the legal
basis for allowing Tan to operate another cockpit in Daanbantayan.
She asserted that "there is no lawful basis for the establishment of a
second cockpit considering the small population of
[Daanbantayan],
[35]
a claim which alludes to Section 5(b) of the
Cockfighting Law which prohibits the establishment of a second cockpit
in municipalities of less than ten thousand (10,000) in population.
Perea likewise assails the validity of the permit issued to Tan and
prays for its annulment, and also seeks that Te be enjoined from
issuing any special permit not only to Tan, but also to "any other
person outside of a duly licensed cockpit in Daanbantayan, Cebu.
[36]

t would have been preferable had Perea expressly sought the
annulment of Ordinance No. 7. Yet it is apparent from
her Complaint that she sufficiently alleges that there is no legal basis
for the establishment of a second cockpit. More importantly, the
petitioners themselves raised the valid effect of Ordinance No. 7 at the
heart of their defense against the complaint, as adverted to in
their Answer.
[37]
The averment in the Answer that Ordinance No. 7 is
valid can be considered as an affirmative defense, as it is the
allegation of a new matter which, while hypothetically admitting the
material allegations in the complaint, would nevertheless bar
recovery.
[38]
Clearly then, the validity of Ordinance No. 7 became a
justiciable matter for the RTC, and indeed Perea squarely raised the
argument during trial that said ordinance violated the Cockfighting
Law.
[39]

Moreover, the assailed rulings of the RTC, its ecision and
subsequent Order denying Perea's Motion for Reconsideration, both
discuss the validity of Ordinance No. 7. n the Decision, the RTC
evaded making a categorical ruling on the ordinance's validity because
the case was "only for damages, [thus the RTC could] not grant more
relief than that prayed for. This reasoning is unjustified, considering
that Perea also prayed for an injunction, as well as for the annulment
of Tan's permit. The resolution of these two questions could very well
hinge on the validity of Ordinance No. 7.
Still, in the Order denying Perea's Motion for Reconsideration,
the RTC felt less inhibited and promptly declared as valid not only
Ordinance No. 7, but also Resolution No. 78-96 of the Sangguniang
Bayan dated 23 February 1996, which conferred on Tan a franchise to
operate a cockpit from 1996 to 2006.
[40]
n the Order, the RTC ruled
that while Ordinance No. 7 was in apparent conflict with the
Cockfighting Law, the ordinance was justified under Section
447(a)(3)(v) of the Local Government Code.
This express affirmation of the validity of Ordinance No. 7 by the
RTC was the first assigned error in Perea's appeal to the Court of
Appeals.
[41]
n their Appellee's Brief before the appellate court, the
petitioners likewise argued that Ordinance No. 7 was valid and that the
Cockfighting Law was repealed by the Local Government Code.
[42]
On
the basis of these arguments, the Court of Appeals rendered its
assailed ecision, including its ruling that the Section 5(b) of the
Cockfighting Law remains in effect notwithstanding the enactment of
the Local Government Code.
ndubitably, the question on the validity of Ordinance No. 7 in
view of the continuing efficacy of Section 5(b) of the Cockfighting Law
is one that has been fully litigated in the courts below. We are
comfortable with reviewing that question in the case at bar and make
dispositions proceeding from that key legal question. This is militated
by the realization that in order to resolve the question whether
injunction should be imposed against the petitioners, there must be
first a determination whether Tan may be allowed to operate a second
cockpit in Daanbantayan. Thus, the conflict between Section 5(b) of
the Cockfighting Law and Ordinance No. 7 now ripens for adjudication.
n arguing that Section 5(b) of the Cockfighting Law has been
repealed, petitioners cite the following provisions of Section
447(a)(3)(v) of the Local Government Code:
Section 447. Powers, uties, Functions and Compensation. (a) The
sangguniang bayan, as the legislative body of the municipality, shall
enact ordinances, approve resolutions and appropriate funds for the
general welfare of the municipality and its inhabitants pursuant to
Section 16 of this Code and in the proper exercise of the corporate
powers of the municipality as provided for under Section 22 of this
Code, and shall:
. . . .
(3) Subject to the provisions of Book of this Code, grant franchises,
enact ordinances authorizing the issuance of permits or licenses, or
enact ordinances levying taxes, fees and charges upon such
conditions and for such purposes intended to promote the general
welfare of the inhabitants of the municipality, and pursuant to this
legislative authority shall:
. . . .
(v) Any law to the contrary notwithstanding, authorize and license the
establishment, operation, and maintenance of cockpits, and regulate
cockfighting and commercial breeding of gamecocks; Provided, that
existing rights should not be prejudiced;
For the petitioners, Section 447(a)(3)(v) sufficiently repeals
Section 5(b) of the Cockfighting Law, vesting as it does on LGUs the
power and authority to issue franchises and regulate the operation and
establishment of cockpits in their respective municipalities, any law to
the contrary notwithstanding.
However, while the Local Government Code expressly repealed
several laws, the Cockfighting Law was not among them. Section
534(f) of the Local Government Code declares that all general and
special laws or decrees inconsistent with the Code are hereby
repealed or modified accordingly, but such clause is not an express
repealing clause because it fails to identify or designate the acts that
are intended to be repealed.
[43]
t is a cardinal rule in statutory
construction that implied repeals are disfavored and will not be so
declared unless the intent of the legislators is manifest.
[44]
As laws are
presumed to be passed with deliberation and with knowledge of all
existing ones on the subject, it is logical to conclude that in passing a
statute it is not intended to interfere with or abrogate a former law
relating to the same subject matter, unless the repugnancy between
the two is not only irreconcilable but also clear and convincing as a
result of the language used, or unless the latter Act fully embraces the
subject matter of the earlier.
[45]

s the one-cockpit-per-municipality rule under the Cockfighting
Law clearly and convincingly irreconcilable with Section 447(a)(3)(v) of
the Local Government Code? The clear import of Section 447(a)(3)(v)
is that it is the sangguniang bayan which is empowered to authorize
and regulate cockfighting and commercial breeding of gamecocks,
notwithstanding any law to the contrary. The necessity of the qualifying
phrase "any law to the contrary notwithstanding can be discerned by
examining the history of laws pertaining to the authorization of cockpit
operation in this country.
Cockfighting, or sabong in the local parlance, has a long and
storied tradition in our culture and was prevalent even during the
Spanish occupation. When the newly-arrived Americans proceeded to
organize a governmental structure in the Philippines, they recognized
cockfighting as an activity that needed to be regulated, and it was
deemed that it was the local municipal council that was best suited to
oversee such regulation. Hence, under Section 40 of Act No. 82, the
general act for the organization of municipal governments promulgated
in 1901, the municipal council was empowered "to license, tax or close
cockpits. This power of the municipal council to authorize or license
cockpits was repeatedly recognized even after the establishment of the
present Republic in 1946.
[46]
Such authority granted unto the municipal
councils to license the operation of cockpits was generally unqualified
by restrictions.
[47]
The Revised Administrative Code did impose
restrictions on what days cockfights could be held.
[48]

However, in the 1970s, the desire for stricter licensing
requirements of cockpits started to see legislative fruit. The
Cockfighting Law of 1974 enacted several of these restrictions. Apart
from the one-cockpit-per-municipality rule, other restrictions were
imposed, such as the limitation of ownership of cockpits to Filipino
citizens.
[49]
More importantly, under Section 6 of the Cockfighting Law,
it was the city or municipal mayor who was authorized to issue licenses
for the operation and maintenance of cockpits, subject to the approval
of the Chief of Constabulary or his authorized representatives.
[50]
Thus,
the sole discretion to authorize the operation of cockpits was removed
from the local government unit since the approval of the Chief of
Constabulary was now required.
P.D. No. 1802 reestablished the Philippine Gamefowl
Commission
[51]
and imposed further structure in the regulation of
cockfighting. Under Section 4 thereof, city and municipal mayors with
the concurrence of their respective sangguniang panglunsod or
sangguniang bayan, were given the authority to license and regulate
cockfighting, under the supervision of the City Mayor or the Provincial
Governor. However, Section 4 of P.D. No. 1802 was subsequently
amended, removing the supervision exercised by the mayor or
governor and substituting in their stead the Philippine Gamefowl
Commission. The amended provision ordained:
Sec. 4. City and Municipal Mayors with the concurrence of their
respective "Sanggunians shall have the authority to license and
regulate regular cockfighting pursuant to the rules and regulations
promulgated by the Commission and subject to its review and
supervision.
The Court, on a few occasions prior to the enactment of the
Local Government Code in 1991, had opportunity to expound on
Section 4 as amended. A discussion of these cases will provide a
better understanding of the qualifier "any law to the contrary
notwithstanding provided in Section 447(a)(3)(v).
n Philippine Gamefowl Commission v Intermediate Appellate
Court,
[52]
the Court, through Justice Cruz, asserted that the conferment
of the power to license and regulate municipal cockpits in municipal
authorities is in line with the policy of local autonomy embodied in the
Constitution.
[53]
The Court affirmed the annulment of a resolution of the
Philippine Gamefowl Commission which ordered the revocation of a
permit issued by a municipal mayor for the operation of a cockpit and
the issuance of a new permit to a different applicant. According to the
Court, the Philippine Gamefowl Commission did not possess the power
to issue cockpit licenses, as this was vested by Section 4 of P.D. No.
1802, as amended, to the municipal mayor with the concurrence of the
sanggunian. t emphasized that the Philippine Gamefowl Commission
only had review and supervision powers, as distinguished from control,
over ordinary cockpits.
[54]
The Court also noted that the regulation of
cockpits was vested in municipal officials, subject only to the guidelines
laid down by the Philippine Gamefowl Commission.
[55]
The Court
conceded that "[if] at all, the power to review includes the power to
disapprove; but it does not carry the authority to substitute one's own
preferences for that chosen by the subordinate in the exercise of its
sound discretion.
The twin pronouncements that it is the municipal authorities who
are empowered to issue cockpit licenses and that the powers of the
Philippine Gamefowl Commission were limited to review and
supervision were affirmed in eang v Intermediate Appellate
Court,
[56]
Municipality of Malolos v Libangang Malolos
Inc
[57]
and Adlawan v Intermediate Appellate Court.
[58]
But notably
in Cootauco v Court of Appeals,
[59]
the Court especially noted
that Philippine Gamefowl Commission did indicate that the
Commission's "power of review includes the power to
disapprove.
[60]
nterestingly, Justice Cruz, the writer of Philippine
Gamefowl Commission, qualified his concurrence in Cootauco "subject
to the reservations made in [Philippine Gamefowl
Commission] regarding the review powers of the PGC over cockpit
licenses issued by city and municipal mayors.
[61]

These cases reiterate what has been the traditional prerogative
of municipal officials to control the issuances of licenses for the
operation of cockpits. Nevertheless, the newly-introduced role of the
Philippine Gamefowl Commission vis--vis the operation of cockpits
had caused some degree of controversy, as shown by the cases
above cited.
Then, the Local Government Code of 1991 was enacted. There
is no more forceful authority on this landmark legislation than Senator
Aquilino Pimentel, Jr., its principal author. n his annotations to the
Local Government Code, he makes the following remarks relating to
Section 447(a)(3)(v):
12. Licensing power. n connection with the power to grant licenses
lodged with it, the Sangguniang Bayan may now regulate not only
businesses but also occupations, professions or callings that do not
require government examinations within its jurisdiction. t may also
authorize and license the establishment, operation and maintenance of
cockpits, regulate cockfighting, and the commercial breeding of
gamecocks. Existing rights however, may not be prejudiced. The
power to license cockpits and permits for cockfighting has been
removed completely from the Gamefowl Commission.
Thus, that part of the ruling of the Supreme Court in the case
of Municipality of Malolos v Libangang Malolos, Inc et al., which held
that ".the regulation of cockpits is vested in the municipal councils
guidelines laid down by the Philippine Gamefowl Commission is no
longer controlling. Under [Section 447(a)(3)(v)], the power of the
Sanggunian concerned is no longer subject to the supervision of the
Gamefowl Commission.
[62]

The above observations may be faulted somewhat in the sense
that they fail to acknowledge the Court's consistent position that the
licensing power over cockpits belongs exclusively to the municipal
authorities and not the Philippine Gamefowl Commission. Yet these
views of Senator Pimentel evince the apparent confusion regarding the
role of the Philippine Gamefowl Commission as indicated in the cases
previously cited, and accordingly bring the phrase Section 447(a)(3)(v)
used in "any law to the contrary notwithstanding into its proper light.
The qualifier serves notice, in case it was still doubtful, that it is the
sanggunian bayan concerned alone which has the power to authorize
and regulate cockfighting and commercial breeding of gamecocks
within its territorial jurisdiction.
Given the historical perspective, it becomes evident why the
legislature found the need to use the phrase "any law to the contrary
notwithstanding in Section 447(a)(3)(v). However, does the phrase
similarly allow the Sangguniang Bayan to authorize more cockpits than
allowed under Section 5(d) of the Cockfighting Law? Certainly,
applying the test of implied repeal, these two provisions can stand
together. While the sanggunian retains the power to authorize and
license the establishment, operation, and maintenance of cockpits, its
discretion is limited in that it cannot authorize more than one cockpit
per city or municipality, unless such cities or municipalities have a
population of over one hundred thousand, in which case two cockpits
may be established. Considering that Section 447(a)(3)(v) speaks
essentially of the identity of the wielder of the power of control and
supervision over cockpit operation, it is not inconsistent with previous
enactments that impose restrictions on how such power may be
exercised. n short, there is no dichotomy between affirming the power
and subjecting it to limitations at the same time.
Perhaps more essential than the fact that the two controverted
provisions are not inconsistent when put together, the Court
recognizes that Section 5(d) of the Cockfighting Law arises from a
valid exercise of police power by the national government. Of course,
local governments are similarly empowered under Section 16 of the
Local Government Code. The national government ought to be attuned
to the sensitivities of devolution and strive to be sparing in usurping the
prerogatives of local governments to regulate the general welfare of
their constituents.
We do not doubt, however, the ability of the national government
to implement police power measures that affect the subjects of
municipal government, especially if the subject of regulation is a
condition of universal character irrespective of territorial jurisdictions.
Cockfighting is one such condition. t is a traditionally regulated activity,
due to the attendant gambling involved
[63]
or maybe even the fact that it
essentially consists of two birds killing each other for public
amusement. Laws have been enacted restricting the days when
cockfights could be held,
[64]
and legislation has even been emphatic
that cockfights could not be held on holidays celebrating national honor
such as ndependence Day
[65]
and Rizal Day.
[66]

The Whereas clauses of the Cockfighting Law emphasize that
cockfighting "should neither be exploited as an object of
commercialism or business enterprise, nor made a tool of uncontrolled
gambling, but more as a vehicle for the preservation and perpetuation
of native Filipino heritage and thereby enhance our national
identity.
[67]
The obvious thrust of our laws designating when cockfights
could be held is to limit cockfighting and imposing the one-cockpit-per-
municipality rule is in line with that aim. Cockfighting is a valid matter of
police power regulation, as it is a form of gambling essentially
antagonistic to the aims of enhancing national productivity and self-
reliance.
[68]
Limitation on the number of cockpits in a given municipality
is a reasonably necessary means for the accomplishment of the
purpose of controlling cockfighting, for clearly more cockpits equals
more cockfights.
f we construe Section 447(a)(3)(v) as vesting an unlimited
discretion to the sanggunian to control all aspects of cockpits and
cockfighting in their respective jurisdiction, this could lead to the
prospect of daily cockfights in municipalities, a certain distraction in the
daily routine of life in a municipality. This certainly goes against the
grain of the legislation earlier discussed. f the arguments of the
petitioners were adopted, the national government would be effectively
barred from imposing any future regulatory enactments pertaining to
cockpits and cockfighting unless it were to repeal Section 447(a)(3)(v).
A municipal ordinance must not contravene the Constitution or
any statute, otherwise it is void.
[69]
Ordinance No. 7 unmistakably
contravenes the Cockfighting Law in allowing three cockpits in
Daanbantayan. Thus, no rights can be asserted by the petitioners
arising from the Ordinance. We find the grant of injunction as ordered
by the appellate court to be well-taken.
WHEREFORE, the petition is DENED. Costs against petitioners.

Miranda v. Aguirre
Facts: n 1994, RA 7720 converting the municipality of Santiago
toan independent component city was signed into law and
thereafterratified in a plebiscite. Four years later, RA 8528 which
amendedRA 7720 was enacted, changing the status of Santiago from
an CCto a component city. Petitioners assail the constitutionality of
RA8528 because it does not provide for submitting the law
forratification by the people of Santiago City in a proper
plebiscite.ssues:1. WON petitioners have standing. YES.
Rule: constitutionality of law can be challenged by one who will
sustain a direct injury as a result of itsenforcement
Miranda was mayor when he filed the petition, hisrights would
have been greatly affected. Otherpetitioners are residents and voters
of Santiago.1. WON petition involves a political question. NO.
PQ: concerned with issues dependent upon thewisdom, not
legality, of a particular measure,
Justiciable issue: implies a given right, legallydemandable and
enforceable, an act or omissionviolative of such right, and a remedy
granted andsanctioned by law, for said breach of right
Case at bar=justiciable. WON petitioners have rightto a
plebiscite is a legal question. WON laws passedby Congress comply
with the requirements of the Consti pose questions that this court alone
candecide.1. WON the change involved any creation, division, merger,
abolition or substantial alteration of boundaries. YES.
2. WON a plebiscite is necessary considering the change was a
mere reclassification from CC to CC. YES.
A close analysis of the said constitutional provision will reveal
that the creation, division, merger,abolition or substantial alteration of
boundaries of LGUs involve a common denominator material change
in the political and economic rights of the LGUs directly affected as
well as the people therein.t is precisely for this reason that the
Constitution requires the approval of the people "in the political units
directly affected."
Sec 10, Art X addressed the undesirable practice inthe past
whereby LGUs were created, abolished,merged or divided on the basis
of the vagaries of politics and not of the welfare of the people. Thus,the
consent of the people of the LGU directly affected was required to
serve as a checkingmechanism to any exercise of legislative power
creating, dividing, abolishing, merging or alteringthe boundaries of
LGUs. t is one instance where the people in their sovereign capacity
decide on amatter that affects them direct democracy of the people
as opposed to democracy thru people'srepresentatives. This plebiscite
requirement is also in accord with the philosophy of the
Constitutiongranting more autonomy to LGUs.
The changes that will result from the downgrading of the city of
Santiago from an independent component city to a component city are
many and cannot be characterized as insubstantial.
The independence of the city as a political unitwill be
diminished: The city mayor will be placed under theadministrative
supervision of theprovincial governor. The resolutions and ordinances
of the citycouncil of Santiago will have to bereviewed by the Provincial
Board of sabela. Taxes that will be collected by the city willnow have
to be shared with the province.
When RA 7720 upgraded the status of SantiagoCity from a
municipality to an independentcomponent city, it required the approval
of itspeople thru a plebiscite called for the purpose.There is neither
rhyme nor reason why thisplebiscite should not be called to determine
thewill of the people of Santiago City when RA 8528downgrades the
status of their city. There is morereason to consult the people when a
lawsubstantially diminishes their right.
Rule , Art 6, paragraph (f) (1) of the RRs of theLGC is in
accord with the Constitution when itprovides that no creation,
conversion, division, merger, abolition, or substantial alteration of
boundaries of LGUS shall take effect unlessapproved by a majority of
the votes cast in aplebiscite called for the purpose in the LGU orLGUs
affected. The plebiscite shall be conductedby the Commission on
Elections (COMELEC)within one hundred twenty (120) days from
theeffectivity of the law or ordinance prescribingsuch action, unless
said law or ordinance fixesanother date.
The rules cover all conversions, whether upwardor downward in
character, so long as they resultin a material change in the LGU
directly affected,especially a change in the political and economicrights
of its people
This is a petition for a writ of prohibition with prayer for preliminary
injunction assailing the constitu-tionality of Republic Act No. 8528,
converting the City of Santiago, sabela from an independent
component city to merely a component city.
On May 5, 1994, RA No. 7720 was signed into a law, which
converted the municipality of Santiago, sabela, into an independent
component city.
on July 4, 1994, RA No. 7720 was approved by the people of
Santiago in a plebiscite.
On February 14, 1998, RA No. 8528 was enacted and it amended
RA No. 7720 that practically downgraded the City of Santiago from an
independent component city to a merely component city.
Petitioners assail the constitutionality of RA No. 8528 for the lack
of provision to submit the law for the approval of the people of
Santiago in a proper plebiscite.
Respondents defended the constitutionality of RA No. 8528
saying that the said act merely reclassified the City of Santiago from
an independent component city into a component city. t allegedly did
not involve any "creation, division, merger, abolition, or substantial
alteration of boundaries of local government units, therefore, a
plebiscite of the people of Santiago is unnecessary. They also
questioned the standing of petitioners to file the petition and argued
that the petition raises a political question over which the Court lacks
jurisdiction.
SSUE/S:
WHETHER OR NOT RA NO. 8528 S UNCONSTTUTONAL FOR TS
FALURE TO SUBMT T TO PROPER PLEBSCTE.
WHETHER OR NOT THE PETTONERS LACKS STANDNG OR
PERSONALTY N FLNG THS PETTON.
WHETHER OR NOT THE COURT HAS JURSDCTON OVER THE
PETTON AT BAR ON THE GROUND THAT T NVOLVES
A POLITICAL QUESTON.
DECSON:

Petition was GRANTED. RA No. 8528 is declared
unconstitutional and the writ of prohibition is hereby issued
commanding the respondents to desist from implementing the said
law.
RATO DECDEND:
RA No. 8528 is declared unconstitutional because Sec. 10 of Art.
X of the 1987 Constitution clearly states that: No province, city,
municipality, or barangay may be created, divided, merged, abolished,
units directly affected.
That when an amendment of the law involves creation, merger,
division, abolition or substantial alteration of boundaries of local
government units, a plebiscite in the political units directly affected
is mandatory.
Petitioners are directly affected in the imple-mentation of RA No.
8528. Petitioner Miranda was the mayor of Santiago City, Afiado was
the President of the Sangguniang Liga, together with 3 other
petitioners were all residents and voters in the City of Santiago. t is
their right to be heard in the conversion of their city thru a plebiscite to
be conducted by the COMELEC. Thus, denial of their right in RA No.
8528 gives them proper standing to strike down the law as
unconstitutional.
Sec. 1 of Art. V of the Constitution states that: the judicial power
shall be vested in one Supreme Court and in such lower courts as may
be established by law. Judicial power includes the duty of the courts of
justice to settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not there
has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instru-mentality of the
Government.
That the Supreme Court has the jurisdiction over said petition
because it involves not a political question but a justiciable issue, and
of which only the court could decide whether or not a law passed by
the Congress is unconstitutional.

. LCP vs CD|ELEC
November 18, 2008

Facts:

0urIng the 11th Congress, Congress enacted Into law JJ bIlls convertIng
JJ munIcIpalItIes Into cItIes. However, Congress dId not act on bIlls
convertIng 24 other munIcIpalItIes Into cItIes. 0urIng the 12th Congress,
Congress enacted Into law FepublIc Act No. 9009 whIch took effect on
June J0, 2001. FA 9009 amended SectIon 450 of the Local Covernment
Code by IncreasIng the annual Income requIrement for conversIon of a
munIcIpalIty Into a cIty from P20 mIllIon to P100 mIllIon. After the
effectIvIty of FA 9009, the House of FepresentatIves of the 12th
Congress adopted JoInt FesolutIon No. 29, whIch sought to exempt from
the P100 mIllIon Income requIrements In FA 9009 the 24 munIcIpalItIes
whose cItyhood bIlls were not approved In the 11th Congress. However,
the 12th Congress ended wIthout the Senate approvIng JoInt FesolutIon
No. 29. 0urIng the 1Jth Congress, the House of FepresentatIves re
adopted JoInt FesolutIon No. 29 as JoInt FesolutIon No. 1 and
forwarded It to the Senate for approval. However, the Senate agaIn
faIled to approve the JoInt FesolutIon. FollowIng the advIce of Senator
AquIlIno PImentel, 16 munIcIpalItIes fIled, through theIr respectIve
sponsors, IndIvIdual cItyhood bIlls. The 16 cItyhood bIlls contaIned a
common provIsIon exemptIng all the 16 munIcIpalItIes from the P100
mIllIon Income requIrements In FA 9009. Dn 0ecember 22, 2006, the
House of FepresentatIves approved the cItyhood bIlls. The Senate also
approved the cItyhood bIlls In February 2007, except that of Naga, Cebu
whIch was passed on June 7, 2007. The cItyhood bIlls lapsed Into law
(CItyhood Laws) on varIous dates from |arch to July 2007 wIthout the
PresIdent's sIgnature. The CItyhood Laws dIrect the CD|ELEC to hold
plebIscItes to determIne whether the voters In each respondent
munIcIpalIty approve of the conversIon of theIr munIcIpalIty Into a cIty.
PetItIoners fIled the present petItIons to declare the CItyhood Laws
unconstItutIonal for vIolatIon of SectIon 10, ArtIcle X of the
ConstItutIon, as well as for vIolatIon of the equal protectIon clause.
PetItIoners also lament that the wholesale conversIon of munIcIpalItIes
Into cItIes wIll reduce the share of exIstIng cItIes In the nternal
Fevenue Allotment because more cItIes wIll share the same amount of
Internal revenue set asIde for all cItIes under SectIon 285 of the Local
Covernment Code.

Issues:

1. Whether the CItyhood Laws vIolate SectIon 10, ArtIcle X of the
ConstItutIon; and
2. Whether or not the CItyhood Laws vIolate the equal protectIon
clause.

eId:

1. The CItyhood Laws vIolate SectIons 6 and 10, ArtIcle X of the
ConstItutIon, and are thus unconstItutIonal.

2. Yes. There Is no substantIal dIstInctIon between munIcIpalItIes wIth
pendIng cItyhood bIlls In the 11th Congress and munIcIpalItIes that dId
not have pendIng bIlls. The mere pendency of a cItyhood bIll In the 11th
Congress Is not a materIal dIfference to dIstInguIsh one munIcIpalIty
from another for the purpose of the Income requIrement. The pendency
of a cItyhood bIll In the 11th Congress does not affect or determIne the
level of Income of a munIcIpalIty. |unIcIpalItIes wIth pendIng cItyhood
bIlls In the 11th Congress mIght even have lower annual Income than
munIcIpalItIes that dId not have pendIng cItyhood bIlls. n short, the
classIfIcatIon crIterIon - mere pendency of a cItyhood bIll In the 11th
Congress - Is not ratIonally related to the purpose of the law whIch Is to
prevent fIscally nonvIable munIcIpalItIes from convertIng Into cItIes.
The Case
These are consolidated petitions Ior prohibition with prayer Ior the
issuance oI a writ oI preliminary injunction ortemporary restraining order Iiled
by the League oI Cities oI the Philippines, City oI Iloilo, City oI Calbayog, and
Jerry P.Treas assailing the constitutionality oI the subject Cityhood Laws and
enjoining the Commission on Elections(COMELEC) and respondent
municipalities Irom conducting plebiscites pursuant to the Cityhood Laws.
The Facts
During the 11th Congress, Congress enacted into law 33 bills converting 33
municipalities into cities.However,
Congress did not act on bills converting 24 other municipalities into cities.
During the 12th Congress, Congress enacted into law Republic
A
ctNo. 9009 (RA 9009), which took eIIect on30 June 2001.RA 9009 amended
Section 450 oI the Local Government Code by increasing the annual income
requirement Ior conversion oI a municipality into a city Irom P20 million to
P100 million.The rationale Ior the amendment was to restrain, in the words oI
Senator Aquilino Pimentel, 'the mad rush oI municipalities to convert intocities
solely to secure a larger share in the Internal Revenue Allotment despite the Iact
that they are incapable oI Iiscal independence.
After the eIIectivity oI RA 9009, the House oI Representatives oI the
12th Congress adopted Joint Resolution No. 29,
which sought to exempt Irom the P100 million income requirement in RA 9009
the 24 municipalities whose cityhood billswere not approved in the
11th Congress. However, the 12th Congress ended without the Senate approving
Joint ResolutionNo. 29.
During the 13th Congress, the House oI Representatives re-adopted Joint
Resolution No. 29 as Joint Resolution No. 1
and Iorwarded it to the Senate Ior approval.However, the Senate again Iailed to
approve the Joint Resolution.Following the advice oI Senator Aquilino Pimentel,
16 municipalities Iiled, through their respective sponsors, individualcityhood
bills.The 16 cityhood bills contained a common provision exempting allthe 16
municipalities Irom the P100million income requirement in RA 9009.
On 22 December 2006, the House oI Representatives approved the
cityhood bills.The Senate also approved thecityhood bills in February 2007,
except that oI Naga, Cebu which was passed on 7 June 2007.The cityhood bills
lapsedinto law (Cityhood Laws) on various dates Irom March to July 2007
without the President`s signature.
The Cityhood Laws direct the COMELEC to hold plebiscites to determine
whether the voters in each respondent municipality approve oI the conversion oI
their municipality into a city.
Petitioners Iiled the present petitions to declare the Cityhood Laws
unconstitutional Ior violation oI Section 10,Article X oI the Constitution, as well
as Ior violation oI the equal protection clause.Petitioners also lament that
thewholesale conversion oI municipalities into cities will reduce the share oI
existing cities in the Internal Revenue Allotmentbecause more cities will share
the same amount oI internal revenue set aside Ior all cities under Section 285 oI
the LocalGovernment Code.
The Issues
The petitions raise the Iollowing Iundamental issues:
1. Whether the Cityhood Laws violate Section 10, Article X oI the Constitution;
and
2. Whether the Cityhood Laws violate the equal protection clause
The Ruling of the Court
We grant the petitions.
The Cityhood Laws violate Sections 6 and 10, Article X oI the Constitution, and
are thus unconstitutional.
First, applying the P100 million income requirement in RA 9009 to the present
case is a prospective, not a
retroactive application, because RA 9009 took eIIect in 2001 while the cityhood
bills became law more than Iive years
later.
Second, the Constitution requires that Congress shall prescribe all the criteria Ior
the creation oI a city in the Local
Government Code and not in any other law, including the Cityhood Laws.
Third, the Cityhood Laws violate Section 6, Article X oI the Constitution
because they prevent a Iair and just
distribution oI the national taxes to local government units.
Fourth, the criteria prescribed in Section 450 oI the Local Government Code, as
amended by RA 9009, Ior
converting a municipality into a city are clear, plain and unambiguous, needing
no resort to any statutory construction.
Fifth, the intent oI members oI the 11th Congress to exempt certain
municipalities Irom the coverage oI RA 9009
remained an intent and was never written into Section 450 oI the Local
Government Code.
Sixth, the deliberations oI the 11th or 12th Congress on unapproved bills or
resolutions are not extrinsic aids in
interpreting a law passed in the 13th Congress.
Seventh, even iI the exemption in the Cityhood Laws were written in Section 450
oI the Local Government Code,
the exemption would still be unconstitutional Ior violation oI the equal protection
clause.
!reliminary Matters
Prohibition is the proper action Ior testing the constitutionality oI laws
administered by the COMELEC, like the Cityhood Laws, which direct the
COMELEC to hold plebiscites in implementation oI the Cityhood Laws.
Petitioner League oI Cities oI the Philippines has legal standing because Section
499 oI the Local Government Code tasks the League with the 'primary purpose
oI ventilating, articulating and crystallizing issues aIIecting city government
administration and securing, through proper and legal means, solutions
thereto.Petitioners-in-intervention, which are existing cities, have legal standing
because their Internal Revenue Allotment will be reduced iI the Cityhood Laws
are declared constitutional .Mayor Jerry P. Treas has legal standing because as
Mayor oI Iloilo City and as a taxpayer he has suIIicient interest to prevent the
unlawIul expenditure oI public Iunds, like the release oI more Internal Revenue
Allotment to political units than what the law allows.
Applying RA 99 is a !rospective Application of the Law
RA 9009 became effective on 30 1une 2001 during the 11th Congress. This
law speciIically amended Section 450 oI the Local Government Code, which
now provides:
Section 450.#equisites for Creation. (a) A municipality or a cluster oI
barangays may be converted into a component city iI it has a locally
generated average annual income, as certified by the
Department of Finance, of at least One hundred million pesos
(P100,000,000.00) for the last two (2) consecutive years based on 2000
constant prices, and iI it has either oI the Iollowing requisites:
(i)
a
contiguous territory oI at least one hundred (100) square kilometers, as certiIied
by the Land
Management Bureau; or
(ii) a population oI not less than one hundred IiIty thousand (150,000)
inhabitants, as certiIied by
the National Statistics OIIice.
The creation thereoI shall not reduce the land area, population and income oI the
original unit or units at
the time oI said creation to less than the minimum requirements prescribed
herein.
(b)The territorial jurisdiction oI a newly-created city shall be properly identiIied
by metes andbounds. The requirement on land area shall not apply where the city
proposed to be created is composedoI one (1) or more islands. The territory need
not be contiguous iI it comprises two (2) or more islands.
(c)The average annual income shall include the income accruing to the general
Iund, exclusive oI
special Iunds, transIers, and non-recurring income.(Emphasis supplied)
Thus, RA 9009 increased the income requirement Ior conversion oI a
municipality into a city Irom P20 million to P100million.Section 450 oI the
Local Government Code, as amended by RA 9009, does not provide any
exemption Irom the increased income requirement.
Prior to the enactment oI RA 9009, a total oI 57 municipalities had cityhood bills
pending in Congress.Thirty-three
cityhood bills became law beIore the enactment oI RA 9009.Congress did not
act on 24 cityhood bills during the 11th
Congress.
During the 12th Congress, the House oI Representatives adopted Joint
Resolution No. 29, exempting Irom theincome requirement oI P100 millionin
RA 9009 the 24 municipalities whose cityhood bills were not acted upon
duringthe 11th Congress. This Resolution reached the Senate.However, the
12th Congress adjourned without the Senate
approving 1oint Resolution No. 29. During the 13th Congress, 16 oI the 24
municipalities mentioned in the unapproved Joint Resolution No. 29 Iiled
between November and December oI 2006, through their respective sponsors in
Congress, individual cityhood bills containing a common provision, as Iollows:
Exemption Irom Republic Act No. 9009. The City oI x x x shall be exempted
Irom the income requirement prescribed under Republic Act No. 9009.
This common provisionexempted each of the 16 municipalities from the
income requirement of P100 million prescribed in Section 450 of the Local
Government Code, as amended by RA 9009.These cityhood bills lapsed into
law on various dates Irom March to July 2007 aIter President Gloria Macapagal-
Arroyo Iailed to sign them.
Indisputably, Congress passed the Cityhood Laws longafter the eIIectivity oI RA
9009.RA 9009 became effective on 30 1une 2001 or during the
11th Congress.The 13th Congress passed in December 2006 the cityhood
bills which became law only in 2007.Thus, respondent municipalities cannot
invoke the principle oI non-retroactivity oI laws.This basic rule has no
application because RA 9009, an earlier law to the Cityhood Laws, is not being
applied retroactively but prospectively.
ongress Must !rescribe in the Local Covernment ode All riteria
Section 10, Article X oI the 1987 Constitution provides:
No province, city, municipality, or barangay shall be created, divided, merged,
abolished or its boundary substantially altered, except in accordance with the
criteria established in the local government code and subject to approval by a
majority oI the votes cast in a plebiscite in the political units directly
aIIected.(Emphasis supplied)
The Constitution is clear.The creation oI local government units must Iollow
the criteria established in the Local
Government Code and not in any other law. There is only one Local
Government Code.The Constitution requires
Congress to stipulate in the Local Government Code all the criteria necessary Ior
the creation oI a city, including the
conversion oI a municipality into a city.Congress cannot write such criteria in
any other law, like the Cityhood Laws.
The criteria prescribed in the Local Government Code govern
exclusively the creation oI a city.No other law,not even the charter oI the city,
can govern such creation. The clear intent oI the Constitution is to insure that the
creationoI cities and other political units must Iollow the same uniform, non-
discriminatory criteria found solely in the Local Government Code. Any
derogation or deviation Irom the criteria prescribed in the Local Government
Code violates
Section 10, Article X oI the Constitution.
RA 9009 amended Section 450 oI the Local Government Code to increase the
income requirement Irom P20million to P100 million Ior the creation oI a
city. This took effect on 30 1une 2001. Hence, from that moment the
Local Government Code required that any municipality desiring to become
a city must satisfy the P100 million
income requirement. Section 450 oI the Local Government Code, as amended
by RA 9009, does not contain any
exemption Irom this income requirement.
In enacting RA 9009, Congress did not grant any exemption to
respondent municipalities, even though their cityhood bills were pending in
Congress when Congress passed RA 9009.The Cityhood Laws, all enacted
after the eIIectivity oI RA 9009, explicitly exempt respondent municipalities
Irom the increased income requirement in Section
450 oI the Local Government Code, as amended by RA 9009.Such exemption
clearly violates Section 10, Article X of
the Constitution and is thus patently unconstitutional. To be valid, such
exemption must be written in the Local
Government Code and not in any other law, including the Cityhood Laws.
ityhood Laws Jiolate Section , Article X of the onstitution
&niIorm and non-discriminatory criteria as prescribed in the Local
Government Code are essential to implement aIair and equitable distribution oI
national taxes to all local government units. Section 6, Article X oI the
Constitution provides:
Local government units shall have a just share, as determined by law, in the
national taxes which shall be automatically released to them.(Emphasis supplied)
II the criteria in creating local government units are not uniIorm and
discriminatory, there can be no Iair and just distribution oI the national taxes to
local government units.
A city with an annual income oI only P20 million, all other criteria
being equal, should not receive the same sharein national taxes as a city with an
annual income oI P100 million or more. The criteria oI land area, population and
income, as prescribed in Section 450 oI the Local Government Code, must be
strictly Iollowed because such criteria,prescribed by law, are material in
determining the 'just share oI local government units in national taxes. Since
the Cityhood Laws do not Iollow the income criterion in Section 450 oI the
Local Government Code, they prevent the Iairand just distribution oI the Internal
Revenue Allotment in violation oI Section 6, Article X oI the Constitution.
Section 45 of the Local Covernment ode is lear,
!lain and Unambiguous
There can be no resort to extrinsic aids like deliberations oI
Congress iI the language oI the law is plain, clearand unambiguous.Courts
determine the intent oI the law Irom the literal language oI the law, within the
law`s Iourcorners.II the language oI the law is plain, clear and unambiguous,
courts simply apply the law according to its expressterms.II a literal application
oI the law results in absurdity, impossibility or injustice, then courts may resort
to extrinsicaids oI statutory construction like the legislative history oI the law.
Congress, in enacting RA 9009 to amend Section 450 oI the Local
Government Code, did not provide anyexemption Irom the increased income
requirement, not even to respondent municipalities whose cityhood bills were
thenpending when Congress passed RA 9009.Section 450 oI the Local
Government Code, as amended by RA 9009, containsno exemption
whatsoever.Since the law is clear, plain and unambiguous that any municipality
desiring to convert into acity must meet the increased income requirement, there
is no reason to go beyond the letter oI the law in applying Section450 oI the
Local Government Code, as amended by RA 9009.
%he 11th ongress' Intent was not Written into the Local Covernment ode
True, members oI Congress discussed exempting respondent
municipalities Irom RA 9009, as shown by the variousdeliberations on the matter
during the 11th Congress.However, Congress did not write this intended
exemption into law.Congress could have easily included such exemption in RA
9009 but Congress did not. This is Iatal to the cause oIrespondent municipalities
because such exemption must appear in RA 9009 as an amendment to Section
450 oI the LocalGovernment Code. The Constitution requires that the criteria Ior
the conversion oI a municipality into a city, includingany exemption Irom such
criteria, must all be written in the Local Government Code.Congress cannot
prescribe suchcriteria or exemption Irom such criteria in any other law. In
short, Congress cannot create a city through a law that
does not comply with the criteria or exemption found in the Local
Government Code.
Section 10 oI Article X is similar to Section 16, Article XII oI the Constitution
prohibiting Congress Irom creating
private corporations except by a general law. Section 16 oI Article XII provides:
The Congress shall not, except by general law, provide for the formation,
organization, or
regulation of private corporations. Government-owned or controlled
corporations may be created or
established by special charters in the interest oI the common good and subject to
the test oI economic
viability. (Emphasis supplied)
Thus, Congress must prescribe all the criteria Ior the 'Iormation, organization, or
regulation oI private corporations in a
general law applicable to all without discrimination. Congress cannot create a
private corporation through a special
law or charter.
eliberations of the 11th ongress on Unapproved Bills Inapplicable
Congress is not a continuing body. The unapproved cityhood bills
Iiled during the 11th Congress became mere scraps oI paper upon the
adjournment oI the 11th Congress. All the hearings and deliberations conducted
during the 11thCongress on unapproved bills also became worthless upon the
adjournment oI the 11th Congress. These hearings and
deliberations cannot be used to interpret bills enacted into law in the 13th or
subsequent Congresses.
The members and oIIicers oI each Congress are diIIerent. All unapproved bills
Iiled in one Congress become
functus officio upon adjournment oI that Congress and must be re-Iiled anew in
order to be taken up in the next Congress.
When their respective authors re-Iiled the cityhood bills in 2006 during the
13th Congress, the bills had to start Irom square one again, going through the
legislative mill just like bills taken up Ior the Iirst time, Irom the Iiling to the
approval. Section 123, Rule XLIV oI the Rules oI the Senate, on &nIinished
Business, provides:
Sec. 123.x x x
All pending matters and proceedings shall terminate upon the expiration of
one (1)
Congress, but may be taken by the succeeding Congress as if presented for the
first time. (Emphasis
supplied)
Similarly, Section 78 oI the Rules oI the House oI Representatives, on
&nIinished Business, states:
Section 78. Calendar oI Business. The Calendar oI Business shall consist oI the
Iollowing:
a.
nIinished Business. This is business being considered by the House at the time oI
its last adjournment. Its consideration shall be resumed until it is disposed oI.
The &nIinished Business at the end oI a session shall be resumed at the
commencement oI the next session as iI no adjournment has taken place. At the
end
of the term of a Congress, all Unfinished Business are deemed terminated.
(Emphasis supplied)
Thus, the deliberations during the 11th Congress on the unapproved
cityhood bills, as well as the deliberations during the 12th and 13th Congresses
on the unapproved resolution exempting Irom RA 9009 certain municipalities,
have no legal signiIicance. They do not qualiIy as extrinsic aids in construing
laws passed by subsequent Congresses.
Applicability of Equal !rotection lause
II Section 450 oI the Local Government Code, as amended by RA
9009, contained an exemption to the P100 million annual income requirement,
the criteria Ior such exemption could be scrutinized Ior possible violation oI the
equal protection clause. Thus, the criteria Ior the exemption, iI Iound in the Local
Government Code, could be assailed on the ground oI absence oI a valid
classiIication. However, Section 450 oI the Local Government Code, as amended
by RA9009, does not contain any exemption. The exemption is contained in the
Cityhood Laws, which are unconstitutional because such exemption must be
prescribed in the Local Government Code as mandated in Section 10, Article X
oI the Constitution.
Even iI the exemption provision in the Cityhood Laws were written
in Section 450 oI the Local Government Code, as amended by RA 9009, such
exemption would still be unconstitutional Ior violation oI the equal protection
clause. The exemption provision merely states, 'xemption from Republic Act
No. 9009- The City of x x x shall be
exempted from the income requirement prescribed under Republic Act No.
9009.This one sentence exemption
provision contains no classiIication standards or guidelines diIIerentiating the
exempted municipalities Irom those that are
not exempted.
Even iI we take into account the deliberations in the 11th Congress
that municipalities with pending cityhood bills should be exempt Irom the P100
million income requirement, there is still no valid classiIication to satisIy the
equalprotection clause. The exemption will be based solely on the fact that the
16 municipalities had cityhood bills pending in the 11th Congress when RA
9009 was enacted. This is not a valid classiIication between those entitled and
those not entitled to exemption Irom the P100 million income requirement.
To be valid, the classiIication in the present case must be based on
substantial distinctions, rationally related to a legitimate government objective
which is the purpose oI the law, not limited to existing conditions only, and
applicable toall similarly situated. Thus, this Court has ruled:
The equal protection clause oI the 1987 Constitution permits a valid
classiIication under the Iollowing conditions:
1. The classiIication must rest on substantial distinctions;
2. The classiIication must be germane to the purpose oI the law;
3. The classiIication must not be limited to existing conditions only; and
4. The classiIication must apply equally to all members oI the same class.
There is no substantial distinction between municipalities with
pending cityhood bills in the 11th Congress and municipalities that did not have
pending bills. The mere pendency oI a cityhood bill in the 11th Congress is not a
material diIIerence to distinguish one municipality Irom another Ior the purpose
oI the income requirement. The pendency oI a cityhood bill in the 11th Congress
does not aIIect or determine the level oI income oI a municipality. Municipalities
with pending cityhood bills in the 11th Congress might even have lower annual
income than municipalities that did not have pending cityhood bills. In short, the
classiIication criterion mere pendency oI a cityhood bill in the
11th Congress isnot rationally related to the purpose oI the law which is to
prevent Iiscally non-viable municipalities Irom converting intocities.
Municipalities that did not have pending cityhood bills were not inIormed that a
pending cityhood bill in the 11th
Congress would be a condition Ior exemption Irom the increased P100 million
income requirement. Had they been inIormed, many municipalities would have
caused the Iiling oI their own cityhood bills. These municipalities, even iIthey
have bigger annual income than the 16 respondent municipalities, cannot now
convert into cities iI their income is less than P100 million.
The Iact oI pendency oI a cityhood bill in the 11th Congress limits the
exemption to a speciIic condition existing atthe time oI passage oI RA 9009.That
speciIic condition will never happen again. This violates the requirement that a
valid classiIication must not be limited to existing conditions only. This
requirement is illustrated in Mayflower Farms,
Inc. v. Ten Eyck, where the challenged law allowed milk dealers engaged in
business prior to a Iixed date to sell at a price
lower than that allowed to newcomers in the same business. In Mayflower, the
&.S. Supreme Court held:
We are reIerred to a host oI decisions to the eIIect that a regulatory
law may be prospective in operation and may except Irom its sweep those
presently engaged in the calling or activity to which it isdirected. Examples are
statutes licensing physicians and dentists, which apply only to those entering the
proIession subsequent to the passage oI the act and exempt those then in practice,
or zoning laws which exempt existing buildings, or laws Iorbidding
slaughterhouses within certain areas, but excepting existing establishments. The
challenged provision is unlike such laws, since, on its face, it is not a
regulation
of a business or an activity in the interest of, or for the protection of, the
public, but an attempt togive an economic advantage to those engaged in a
given business at an arbitrary date as against all those who enter the
industry after that date. The appellees do not intimate that the classiIication
bears
any relation to the public health or welIare generally; that the provision will
discourage monopoly; or thatit was aimed at any abuse, cognizable by law, in the
milk business. In the absence oI any such showing,we have no right to conjure
up possible situations which might justiIy the discrimination. The classiIication
is arbitrary and unreasonable and denies the appellant the equal protection oI the
law.(Emphasis supplied)
In the same vein, the exemption provision in the Cityhood Laws
gives the 16 municipalities a unique advantage based on an arbitrary date the
Iiling oI their cityhood bills beIore the end oI the 11th Congress as against all
other municipalities that want to convert into cities aIter the eIIectivity oI RA
9009.
Furthermore, limiting the exemption only to the 16 municipalities
violates the requirement that the classiIication must apply to all similarly
situated. Municipalities with the same income as the 16 respondent
municipalities cannotconvert into cities, while the 16 respondent municipalities
can. Clearly, as worded the exemption provision Iound in theCityhood Laws,
even iI it were written in Section 450 oI the Local Government Code, would still
be unconstitutional Iorviolation oI the equal protection clause.
HRFOR, we GRANT the petitions and
declare UNCONSTITUTIONAL the Cityhood Laws, namely:
Republic Act Nos. 9389, 9390, 9391, 9392, 9393, 9394, 9398, 9404, 9405, 9407,
9408, 9409, 9434, 9435, 9436, and
9491

League of Cities of the Philippines (LCP), et al. vs. Commission on
Elections, et al.
G.R. No. 176951, G.R. No. 177499 & G.R. No. 178056; 24 August 2010
Facts: The 11
th
Congress enacted into law 33 bills converting 33
municipalities into cities. However, it did not act on bills converting 24
other municipalities into cities. Subsequently, the 12 th Congress enacted
Republic Act No. 9009 (RA 9009), which took effect on 20 June 2001,
amending Section 450 of the Local Government Code by increasing the
annual income requirement for conversion of a municipality into a city
from P20million to P100million. Thereafter, 16 municipalities filed their
individual cityhood bills. The 16 cityhood bills contained a common
provision exempting all the 16municipalities from the P100million income
requirement of RA 9009. The cityhood bills were approved by the House
of Representatives and the Senate, and lapsed into law without the
President's signature. Said Cityhood Laws directed the Commission on
Elections (COMELEC) to hold plebiscites to determine whether the voters
in each municipality approved of the conversion. Petitioners sought to
declare the 16 Cityhood Laws unconstitutional for violation of Section
10,Article X of the Constitution and the equal protection clause, lamenting
that the wholesale conversion of municipalities into cities would reduce
the share of existing cities in the nternal Revenue Allotment (RA).
On 18 November 2008, the Supreme Court En Banc, by a majority vote,
declared the 16 Cityhood Laws to be in violation of Section 10, Article X
of the 1987 Constitution, which provides that no city shall be created
except in accordance with the criteria established in the local government
code. The Supreme Court held that since respondent municipalities did
not meet the P100million income requirement under Section 450 of the
Local Government Code, as amended by RA 9009, th e Cityhood Laws
converting said municipalities into cities were unconstitutional. The
Supreme Court also declared the 16 Cityhood Laws to be in violation of
the equal protection clause since there was no valid classification
between those entitled and those not entitled to exemption from
theP100million income requirement: (1) there was no substantial
distinction between municipalities with pending cityhood bills in the
11thCongress when RA 9009 was enacted and municipalities that did not
have such pending bills; (2) the classification criterion mere pendency of
a cityhood bill in the 11
th
Congress was not germane to the purpose of
the law, which was to prevent fiscally nonviable municipalities from
converting into cities; (3) the pendency of a cityhood bill in the 11
th

Congress limited the exemption to a specific condition existing at the time
of passage of RA 9009 a condition that would never happen again,
violating the requirement that a valid classification must not be limited to
existing conditions only; and (4) limiting the exemption only to the 16
respondent municipalities violated the requirement that the classification
must apply to all similarly situated; municipalities with the same income
as the 16 respondent municipalities could not convert into cities.
On 31 March 2009, the Supreme Court En Banc, also by a majority vote,
denied the respondent municipalities' first motion for reconsideration. On
28 April 2009, the Supreme Court En Banc, by a split vote, denied the
respondent municipalities' second motion for reconsideration. The 18
November 2008 Decision became final and executory and was recorded
in the Book of Entries of Judgments on 21 May 2009. However, on 21
December 2009, the Supreme Court En Banc reversed the 18 November
2008
Decision and upheld the constitutionality of the Cityhood Laws. The Court
reasoned that:
(1) When Section 10, Article X of the 1987 Constitution speaks of
the local government code, the reference cannot be to any
specific statute or codification of laws, let alone the Local
Government Code (LGC) of 1991. t would be noted that at the
time of the adoption of the 1987 Constitution,
Batas Pambansa Blg. (BP) 337, the then LGC, was still in
effect. Had the framers of the 1987
Constitution intended to isolate the embodiment of the criteria
only in the LGC, they would have
referred to BP 337. Also, they would not have provided for the
enactment by Congress of a new
LGC, as they did in Section 3, Article X of the Constitution.
Accordingly, the criteria for creation of cities need not be
embodied in the LGC. Congress can impose such criteria in a
consolidated set oflaws or a single-subject enactment or
through amendatory laws. The passage of amendatory laws,
such as RA 9009, was no different from the enactment of the
cityhood laws specifically exempting a particular political
subdivision from the criteria earlier mentioned. Congress, in
enacting the exempting laws, effectively decreased the already
codified indicators.
(2) Deliberations on RA 9009, particularly the floor exchange
between Senators Aquilino Pimentel and Franklin Drilon,
indicated the following complementary legislative intentions: (a)
the then pending cityhood bills would be outside the pale of the
proposed P100million minimum income requirement; and (b)
RA 9009 would not have any retroactive effect insofar as the
pending cityhood bills were concerned. That said deliberations
were undertaken in the 11
th
and/or 12
th
Congress (or before the
cityhood laws were passed during the 13
th
Congress) and
Congress was not a continuing legislative body, was
immaterial. Debates, deliberations, and proceedings of
Congress and the steps taken in the enactment of the law, in
this case the cityhood laws in relation to RA 9009 or vice versa,
were part of its legislative history and may be consulted, if
appropriate, as aids in the interpretation of the law.
(3) Petitioners could not plausibly invoke the equal protection
clause because no deprivation of property resulted by the
enactment of the Cityhood Laws. t was presumptuous on the
part of petitioner LCP member-cities to already stake a claim
on the RA, as if it were their property, as the
RA was yet to be allocated. Furthermore, the equal protection
clause does not preclude reasonable classification which (a)
rests on substantial distinctions; (b) is germane to the purpose
of the law; (c) is not be limited to existing conditions only; and
(d) applies equally to all members of the same class.
All of these requisites had been met by the subject Cityhood
Laws: (a) Respondent municipalities were substantially
different from other municipalities desirous to be cities. They
had pending cityhood bills before the passage of RA 9009, and
years before the enactment of the amendatory RA
9009, respondent municipalities had already met the income
criterion exacted for cityhood under the LGC of 1991. However,
due to extraneous circumstances (the impeachment of then
President
Estrada, the related jueteng scandal investigations conducted
before, and the EDSA events that followed the aborted
impeachment), the bills for their conversion remained unacted
upon by Congress. To imposed on them the much higher
income requirement after what they had gone through would
appear to be unfair; (b) the exemption of respondent
municipalities from the
P100million income requirement was meant to reduce the
inequality, occasioned by the passage of the amendatory RA
9009, between respondent municipalities and the 33 other
municipalities whose cityhood bills were enacted during the 11
th

Congress; and (c) the uniform exemption clause would apply to
municipalities that had pending cityhood bills before the
passage of RA 9009 and were compliant with then Sec. 450 of
the LGC of 1991, which prescribed an income requirement of
P20 million.
(4) The existence of the cities consequent to the approval of
the Cityhood Laws in the plebiscites
held in the affected municipalities is now an operative fact. New
cities appear to have been
organized and are functioning accordingly, with new sets of
officials and employees. Pursuant to the
operative fact doctrine, the constitutionality of the Cityhood
Laws in question should be upheld. Petitioners moved for
reconsideration (ad cautelam) and for the annulment of 21
December 2009 Decision. Some petitioners-in-intervention also
moved for reconsideration (ad cautelam).

88ue8: Whether or not the 16 Cityhood Laws violated Section
10, Article X of the 1987 Constitution and the equal protection
clause

eId: The 16 Cityhood Laws are unconstitutional.
(1) Section 10, Article X of the Constitution is clear the
creation of local government units must follow the criteria
established in the Local Government Code and not in any other
law. There is only one Local Government Code. The
Constitution requires Congress to stipulate in the Local
Government Code all the criteria necessary for the creation of a
city, including the conversion of a municipality into a city.
Congress cannot write such criteria in any other law, like the
Cityhood Laws. The clear intent of the Constitution is to insure
that the creation of cities and other political units follows the
same uniform, non-discriminatory criteria found solely in the
Local Government Code.
From the moment RA 9009 took effect (on 30 June 2001), the
LGC required that any municipality desiring to become a city
must satisfy the P100million income requirement. Section 450
of the LGC, as amended by RA 9009, does not contain any
exemption from this income requirement, even for
municipalities with pending cityhood bills in Congress when RA
9009 was passed. The uniform exemption clause in the
Cityhood Laws, therefore, violated Section 10, Article X of the
Constitution.
To be valid, such exemption must be written in the Local
Government Code and not in any other law, including the
Cityhood Laws.
RA 9009 is not a law different from the Local Government
Code. RA 9009, by amending Section
450 of the Local Government Code, embodies the new and
prevailing Section 450 of the Local Government Code. Since
the law is clear, plain and unambiguous that any municipality
desiring to convert into a city must meet the increased income
requirement, there is no reason to go beyond the letter of the
law. Moreover, where the law does not make an exemption, the
Court should not create one.
(2) Under the operative fact doctrine, the law is recognized as
unconstitutional but the effects of the unconstitutional law, prior
to its declaration of nullity, may be left undisturbed as a matter
of equity and fair play. n fact, the invocation of the operative
fact doctrine is an admission that the law is unconstitutional.
Respondent municipalities' theory that the implementation of
the Cityhood Laws, which resulted in
16 municipalities functioning as new cities with new sets of
officials and employees, operated to contitutionalize the
unconstitutional Cityhood Laws, was a misapplication of the
operative fact doctrine and would set a gravely dangerous
precedent. This view would open the floodgates to the want on
enactment of unconstitutional laws and a mad rush for their
immediate implementation before the Court could declare them
unconstitutional.
The operative fact doctrine never validates or constitutionalizes
an unconstitutional law. Under
the operative fact doctrine, the unconstitutional law remains
unconstitutional, but the effects of the unconstitutional law,
prior to its judicial declaration of nullity, may be left undisturbed
as a matter of
equity and fair play. Accordingly, the 16 Cityhood Laws remain
unconstitutional because they
violate Section 10, Article X of the Constitution. However, the
effects of the implementation of the Cityhood Laws prior to the
declaration of their nullity, such as the payment of salaries and
supplies by the "new cities or their issuance of licenses or
execution of contracts, may be recognized
as valid and effective, as a matter of equity and fair play, to
innocent people who may have relied on
the presumed validity of the Cityhood Laws prior to the Court's
declaration of their unconstitutionality.
(3) There is no substantial distinction between municipalities
with pending cityhood bills in the 11 th Congress and
municipalities that did not have pending bills. The pendency of
a cityhood bill in the
11
th
Congress does not affect or determine the level of income
of a municipality. n short, the classification criterion mere
pendency of a cityhood bill in the 11
th
Congress is not
rationally related to the purpose of the law which is to prevent
fiscally non-viable municipalities from converting into cities.
Moreover, the pendency of a cityhood bill in the 11
th
Congress,
as a criterion, limits the exemption to a specific condition
existing at the time of passage of RA 9009. That specific
condition will never happen again. This violates the
requirement that a valid classification must not be limited to
existing conditions only. Furthermore, limiting the exemption
only to the 16 municipalities violates the requirement that the
classification must apply to all similarly situated; municipalities
with the same income as the 16 respondent municipalities
cannot convert into cities, while the 16 respondent
municipalities can.
* Re: the split or tie-vote on the second motion for
reconsideration of the 18 November 2008 Decision.
The dissenting opinion stated that "a deadlocked vote of six is
not a majority and a non-majority does
not constitute a rule with precedential value.
However, Section 7, Rule 56 of the Rules of Court provides
that when, in appealed cases, the court
en banc is equally divided in opinion, or the necessary majority
cannot be had, the judgment or order
appealed from shall stand affirmed and on all incidental
matters, the petition or motion shall be denied.
The 6-6 tie-vote by the Court en banc on the second motion for
reconsideration necessarily resulted in the denial of the second
motion for reconsideration. Since the Court was evenly divided,
there could be no reversal of the 18 November 2008 Decision,
for a tie-vote cannot result in any court order or directive. The
tie-vote plainly signifies that there is no majority to overturn the
prior 18
November 2008 Decision and 31 March 2009 Resolution
denying reconsideration, and thus the second motion for
reconsideration must be denied. Hence, the 18 November
2008 judgment and the
31 March 2009 resolution stand in full force. These prior
majority actions of the Court en banc can only be overruled by
a new majority vote, not a tie-vote because a tie-vote cannot
overrule a prior affirmative action.
The 18 November 2008 Decision, declaring the 16 Cityhood
Laws unconstitutional, was reinstated.

avarro v8 Ermita 2010
The ationaI Stati8tic8 Office certified that Dinagat 8Iand8
popuIation i8 120,813. t8 Iand area i8 802.12 86uare kiIometer8
and it8 average annuaI income i8 P82,696,433.23, a8 certified by the
Bureau of LocaI Government Finance. On October 2, 2006, the
Pre8ident approved into Iaw R.A. 9355 creating the Province of
Dinagat 8Iand8. On December 3, 2006, the COMELEC conducted the
mandatory pIebi8cite for the ratification of the creation of the
province under the LGC which yieIded 69,943 affirmative vote8 and
63,502 negative vote8. With the approvaI of the peopIe from both the
mother province of Surigao deI orte and the Province of Dinagat
8Iand8 (Dinagat), the Pre8ident appointed the interim 8et of
provinciaI officiaI8 who took their oath of office on January 26,
2007. Later, during the May 14, 2007 8ynchronized eIection8, the
Dinagatnon8 eIected their new 8et of provinciaI officiaI8 who
a88umed office on JuIy 1, 2007.
MeanwhiIe, on ovember 10, 2006, petitioner8 RodoIfo G.
avarro and other former poIiticaI Ieader8 of Surigao deI orte, fiIed
before the SC a petition for certiorari and prohibition (G.R. o.
175158) chaIIenging the con8titutionaIity of R.A. o. 9355 aIIeging
that that the creation of Dinagat a8 a new province, if uncorrected,
wouId perpetuate an iIIegaI act of Congre88, and wouId unju8tIy
deprive the peopIe of Surigao deI orte of a Iarge chunk of the
provinciaI territory, nternaI Revenue AIIocation (RA), and rich
re8ource8 from the area. 8 R.A. o. 9355 con8titutionaI?
February 10, 2010 Ruling
No. The SC ruled that the population of 120,813 is below the
Local Government Code (LGC) minimum population requirement of
250,000 inhabitants. Neither did Dinagat slands, with an approximate
land area of 802.12 square kilometers meet the LGC minimum land area
requirement of 2,000 square kilometers. The Court reiterated its ruling
that paragraph 2 of Article 9 of the Rules and Regulations Implementing
the Local Government Code, which exempts proposed provinces
composed of one or more islands from the land area requirement, was
null and void as the said exemption is not found in Sec. 461 of the LGC.
"There is no dispute that in case of discrepancy between the basic law
and the rules and regulations implementing the said law, the basic law
prevails, because the rules and regulations cannot go beyond the terms
and provisions of the basic law, held the Court. (GR No.
180050, avarro v. Ermita, May 12, 2010)
The Republic, represented by the Office of the Solicitor
General, and Dinagat filed their respective motions for reconsideration of
the Decision. n its Resolution dated May 12, 2010, the Supreme Court
denied the said motions.

RODOLFO G. NAVARRO, ET AL. v. EXECUTVE SECRETARY
EDUARDO ERMTA, ETC. ET AL G.R. No. 180050, May 12, 2010
PeruILu, J.:
Doctrine8
The r equi r ement of a cont i guous t er r i t or y and t he
r equi r ement of a l and ar ea of at l east 2, 000 squar e
ki l omet er s ar e di st i nct and separ at e r equi r ement s f or l and
ar ea. The exempt i on under Sec 461( b) pertains only to the
requirement of territorial contiguity.
Fact 8
When t he Di nagat sl ands was pr ocl ai med a new pr ovi nce
on December 3, 2006, i t had an of f i ci al popul at i on of onl y
106, 951 bas ed on t he 2000 Census of Popul at i on
conduct ed by t he Nat i onal Statistics Office (NSO), which population
is short of the statutory requirement of 250,000 inhabitants. Mor eover ,
t he l and ar ea of t he pr ovi nce f ai l ed t o compl y wi t h t he
st at ut or y r equi r ement of 2, 000square kilometers. R.A. No. 9355
specifically states that the Province of Dinagat slands contains an
approximate land area of 802.12 square kilometers.

Hence, Republ i c Act No. 9355, ot her wi se known as An Act
Cr eat i ng t he Pr ovi nce of Di nagat sl ands was hel d
unconst i t ut i onal and t he pr ovi si on i n Ar t i cl e 9 ( 2) of
t he Rul es and Regul at i ons mpl ement i ng t he Local
Gover nment Code of 1991 st at i ng, "The l and ar ea
r equi r ement shal l not appl y wher e t he proposed province is
composed of one (1) or more islands," was declared NULL and VOD.

Respondent s i nst ead asser t ed t hat t he pr ovi nce, whi ch i s
composed of mor e t han one i sl and, i s exempt ed f r om t he
l and ar ea r equi r ement bas ed on t he pr ovi si on i n t he Rul es
and Regul at i ons mplementing the Local Government Code of 1991
(RR), specifically paragraph 2 of Article 9 which st at es t hat " [ t ] he
l and ar ea r equi r ement shal l not appl y wher e t he pr oposed
pr ovi nce i s composed of one (1) or more islands."
88ue
Whet her Di nagat sl ands i s exempt ed f r om t he l and ar ea
r equi r ement
eI d
No. Ther e ar e t wo r equi r ement s f or l and ar ea: ( 1) t he
l and ar ea must be cont i guous; and ( 2) t he l and area must be
sufficient to provide for such basic services and facilities to meet the
requirements of its popul ace. The r equi r ement of a cont i guous
t er r i t or y and t he r equi r ement of a l and ar ea of at l east 2, 000
squar e ki l omet er s ar e di st i nct and separ at e r equi r ement s
f or l and ar ea. The exempt i on above pertains only to the
requirement of territorial contiguity. t clearly states that the requirement
of territorial contiguity may be dispensed with in the case of a province
comprising two or more islands, or is separated by a chartered city or
cities which do not contribute to the income of the province. Nowhere in
paragraph (b) is it expressly stated or may it be implied that when a
province is composed of t wo or mor e i sl ands, or when t he
t er r i t or y of a pr ovi nce i s separ at ed by a char t er ed ci t y or
ci t i es, such pr ovi nce need not compl y wi t h t he l and ar ea
r equi r ement of at l east 2, 000 squar e ki l omet er s or the
requirement in paragraph (a) (i) of Section 461of the Local Government
Code.

RAMR R. PABLCO, 5etitioner, vs. ALEJADRO A.
VLLAPADO, res5ondent.
May local legislative bodies and/or the Office of the President, on
appeal, validly impose the penalty of dismissal from service on erring
elective local officials?
This purely legal issue was posed in connection with a dispute over
the mayoralty seat of San Vicente, Palawan. Considering that the term of
the contested office expired on June 30, 2001,
[1]
the present case may be
dismissed for having become moot and academic.
[2]
Nonetheless, we
resolved to pass upon the above-stated issue concerning the application
of certain provisions of the Local Government Code of 1991.
The undisputed facts are as follows:
On August 5, 1999, Solomon B. Maagad, and Renato M.
Fernandez, both members of the $angguniang Bayan of San Vicente,
Palawan, filed with the $angguniang Panlalawigan of Palawan an
administrative complaint against respondent Alejandro A. Villapando,
then Mayor of San Vicente, Palawan, for abuse of authority and culpable
violation of the Constitution.
[3]
Complainants alleged that respondent, on
behalf of the municipality, entered into a consultancy agreement with
Orlando M. Tiape, a defeated mayoralty candidate in the May 1998
elections. They argue that the consultancy agreement amounted to an
appointment to a government position within the prohibited one-year
period under Article X-B, Section 6, of the 1987 Constitution.
n his answer, respondent countered that he did not appoint Tiape,
rather, he merely hired him. He invoked Opinion No. 106, s. 1992, of the
Department of Justice dated August 21, 1992, stating that the
appointment of a defeated candidate within one year from the election as
a consultant does not constitute an appointment to a government office or
position as prohibited by the Constitution.
On February 1, 2000, the $angguniang Panlalawigan of Palawan
found respondent guilty of the administrative charge and imposed on him
the penalty of dismissal from service.
[4]
Respondent appealed to the
Office of the President which, on May 29, 2000, affirmed the decision of
the $angguniang Panlalawigan of Palawan.
[5]

Pending respondent's motion for reconsideration of the decision of
the Office of the President, or on June 16, 2000, petitioner Ramir R.
Pablico, then Vice-mayor of San Vicente, Palawan, took his oath of office
as Municipal Mayor. Consequently, respondent filed with the Regional
Trial Court of Palawan a petition for certiorari and prohibition with
preliminary injunction and prayer for a temporary restraining order,
docketed as SPL Proc. No. 3462.
[6]
The petition, seeks to annul, inter alia,
the oath administered to petitioner. The Executive Judge granted a
Temporary Restraining Order effective for 72 hours, as a result of which
petitioner ceased from discharging the functions of mayor. Meanwhile,
the case was raffled to Branch 95 which, on June 23, 2000, denied
respondent's motion for extension of the 72-hour temporary restraining
order.
[7]
Hence, petitioner resumed his assumption of the functions of
Mayor of San Vicente, Palawan.
On July 4, 2000, respondent instituted a petition for certiorari and
prohibition before the Court of Appeals seeking to annul: (1) the May 29,
2000 decision of the Office of the President; (2) the February 1, 2000,
decision of the $angguniang Panlalawigan of Palawan; and (3) the June
23, 2000 order of the Regional Trial Court of Palawan, Branch 95.
On March 16, 2001, the Court of Appeals
[8]
declared void the
assailed decisions of the Office of the President and the $angguniang
Panlalawigan of Palawan, and ordered petitioner to vacate the Office of
Mayor of San Vicente, Palawan.
[9]
A motion for reconsideration was
denied on April 23, 2001.
[10]
Hence, the instant petition for review.
The pertinent portion of Section 60 of the Local Government Code
of 1991 provides:
Section 60. Grounds for isciplinary Actions An elective local official
may be disciplined, suspended, or removed from office on any of the
following grounds:
x x x x x x x x x
An eIective IocaI officiaI may be removed from office on the ground8
enumerated above by order of the proper court. (Emphasis supplied)
t is clear from the last paragraph of the aforecited provision that
the penalty of dismissal from service upon an erring elective local official
may be decreed only by a court of law. Thus, in $alalima, et al v
Guingona, et al,
[11]
we held that "[t]he Office of the President is without
any power to remove elected officials, since such power is exclusively
vested in the proper courts as expressly provided for in the last
paragraph of the aforequoted Section 60.
Article 124 (b), Rule XX of the Rules and Regulations
mplementing the Local Government Code, however, adds that "(b) An
elective local official may be removed from office on the grounds
enumerated in paragraph (a) of this Article [The grounds enumerated in
Section 60, Local Government Code of 1991] by order of the proper
court or the di8cipIining authority whichever fir8t ac6uire8
juri8diction to the excIu8ion of the other." The disciplining authority
referred to pertains to the $angguniang
Panlalawigan/Panlungsod/Bayan and the Office of the President.
[12]

As held in $alalima,
[13]
this grant to the "disciplining authority of the
power to remove elective local officials is clearly beyond the authority of
the Oversight Committee that prepared the Rules and Regulations. No
rule or regulation may alter, amend, or contravene a provision of law,
such as the Local Government Code. mplementing rules should
conform, not clash, with the law that they implement, for a regulation
which operates to create a rule out of harmony with the statute is a
nullity. Even Senator Aquilino Q. Pimentel, Jr., the principal author of the
Local Government Code of 1991, expressed doubt as to the validity of
Article 124 (b), Rule XX of the implementing rules.
[14]

Verily, the clear legislative intent to make the subject power of
removal a judicial prerogative is patent from the deliberations in the
Senate quoted as follows:
x x x x x x x x x
Senator Pimentel. This has been reserved, Mr. President, including the
issue of whether or not the Department Secretary or the Office of the
President can suspend or remove an elective official.
Senator Saguisag. For as long as that is open for some later disposition,
may just add the following thought: t seems to me that instead of
identifying only the proper regional trial court or the Sandiganbayan, and
since we know that in the case of a regional trial court, particularly, a
case may be appealed or may be the subject of an injunction, in the
framing of this later on, would like to suggest that we consider replacing
the phrase "PROPER REGONAL TRAL COURT OR THE
SANDGANBAYAN simply by "COURTS. asi po, maaaring sabihin
nila na mali iyong regional trial court o ang Sandiganbayan.
Senator Pimentel. "OR THE PROPER COURT.
Senator Saguisag. "OR THE PROPER COURT.
Senator Pimentel. Thank you. We are willing to accept that now, Mr.
President.
Senator Saguisag. t is to be incorporated in the phraseology that will
craft to capture the other ideas that have been elevated.
x x x x x x x x x.
[15]

t is beyond cavil, therefore, that the power to remove erring
elective local officials from service is lodged exclusively with the
courts. Hence, Article 124 (b), Rule XX, of the Rules and Regulations
mplementing the Local Government Code, insofar as it vests power on
the "disciplining authority to remove from office erring elective local
officials, is void for being repugnant to the last paragraph of Section 60 of
the Local Government Code of 1991. The law on suspension or removal
of elective public officials must be strictly construed and applied, and the
authority in whom such power of suspension or removal is vested must
exercise it with utmost good faith, for what is involved is not just an
ordinary public official but one chosen by the people through the exercise
of their constitutional right of suffrage. Their will must not be put to
naught by the caprice or partisanship of the disciplining authority. Where
the disciplining authority is given only the power to suspend and not the
power to remove, it should not be permitted to manipulate the law by
usurping the power to remove.
[16]
As explained by the Court in Lacson v
Roque
[17]

".the abridgment of the power to remove or suspend an elective mayor
is not without its own justification, and was, we think, deliberately
intended by the lawmakers. The evils resulting from a restricted authority
to suspend or remove must have been weighed against the injustices and
harms to the public interests which would be likely to emerge from an
unrestrained discretionary power to suspend and remove.
WEREFORE, in view of the foregoing, the instant petition for
review is DENED.
LATA3A vs. C0VELEC
Pel|l|or: A pel|l|or lor cerl|orar| urder Ru|e 5 ol lre Ru|es ol Courl Wr|cr see|s lo
cra||erge lre reso|ul|or |ssued oy lre F|rsl 0|v|s|or ol lre Corr|ss|or or E|ecl|ors
(C0VELEC) daled Apr|| 2Z, 2001 |r 3PA Case No. 01-059 erl|l|ed, Roreo V. 3urga,
Pel|l|orer, versus Arser|o A. Lalasa, resporderl, ard lre Reso|ul|or ol
lre C0VELEC er oarc dery|rg rere|r pel|l|orers Vol|or lor Recors|deral|or.
Treassa||ed Reso|ul|or der|ed due course lo lre cerl|l|cale ol card|dacy ol pel|l|orer
Arser|o A. Lalasa, dec|ar|rg r|r d|squa||l|ed lo rur lor rayor ol 0|gos C|ly, 0avao de|
3ur Prov|rce |r lre Vay 11, 2001 e|ecl|ors, order|rg lral a|| voles casl |r r|s lavor sra||
rol oe courled, ard |l re ras oeer proc|a|red W|rrer, dec|ar|rg sa|d proc|aral|or ru||
ard vo|d.
Ru||rg: 0l3Vl33E0
FACT3: Pel|l|orer Arser|o A. Lalasa, Was e|ecled rayor ol lre Vur|c|pa||ly ol 0|gos,
0avao de| 3ur |r lre e|ecl|ors ol 1992, 1995, ard 1998. 0ur|rg pel|l|orers lr|rd lerr, lre
Vur|c|pa||ly ol 0|gos Was dec|ared a corporerl c|ly, lo oe |roWr as lre C|ly ol 0|gos. A
p|eo|sc|le corducled or 3epleroer 8, 2000 ral|l|ed Repuo||c Acl No. 8Z98 erl|l|ed, Ar Acl
Corverl|rg lre Vur|c|pa||ly ol 0|gos, 0avao de| 3ur Prov|rce |rlo a Corporerl C|ly lo oe
|roWr as lre C|ly ol 0|gos or lre Crarler ol lre C|ly ol 0|gos. Tr|s everl a|so rar|ed lre
erd ol pel|l|orers lerure as rayor ol lre Vur|c|pa||ly ol 0|gos. loWever, urder 3ecl|or
53, Arl|c|e lX ol lre Crarler, pel|l|orer Was rardaled lo serve |r a ro|d-over capac|ly as
rayor ol lre reW C|ly ol 0|gos. lerce, re loo| r|s oalr as lre c|ly rayor. 0r Feoruary
28, 2001, pel|l|orer l||ed r|s cerl|l|cale ol card|dacy lor c|ly rayor lor lre Vay 11, 2001
e|ecl|ors. le slaled lrere|r lral re |s e||g|o|e lrerelor, ard |||eW|se d|sc|osed lral re rad
a|ready served lor lrree corsecul|ve lerrs as rayor ol lre Vur|c|pa||ly ol 0|gos ard |s
roW rurr|rg lor lre l|rsl l|re lor lre
pos|l|or ol c|ly rayor. 0r Varcr 1, 2001, pr|vale resporderl Roreo V. 3urga, a|so a
card|dale lor c|ly
rayor |r lre sa|d e|ecl|ors, l||ed oelore lre C0VELEC a Pel|l|or lo 0ery 0ue Course,
Carce| Cerl|l|cale ol Card|dacy ard/ or For 0|squa||l|cal|or aga|rsl pel|l|orer Lalasa.
Resporderl 3urga a||eged lrere|r lral pel|l|orer la|se|y represerled |r r|s cerl|l|cale ol
card|dacy lral re |s e||g|o|e lo rur as rayor ol 0|gos C|ly s|rce pel|l|orer rad a|ready
oeer e|ecled ard served lor lrree corsecul|ve lerrs as rayor lror 1992 lo
2001.crarroo|esv|rlua||aW||orary 0r Varcr 5, 2001, pel|l|orer Lalasa l||ed r|s arsWer,
argu|rg lral re d|d rol ra|e ary la|se represerlal|or |r r|s cerl|l|cale ol card|dacy s|rce
re lu||y d|sc|osed lrere|r lral re rad served as rayor ol lre Vur|c|pa||ly ol 0|gos lor
lrree corsecul|ve lerrs. Voreover, re argued lral lr|s lacl does rol oar r|r lror l|||rg a
cerl|l|cale ol card|dacy lor lre Vay 11, 2001 e|ecl|ors s|rce lr|s W||| oe lre l|rsl l|re lral
re W||| oe rurr|rg lor lre posl ol c|ly rayor.
8olr parl|es suor|lled lre|r pos|l|or papers or Varcr 19, 2001.
0r Apr|| 2Z, 2001, resporderl C0VELECs F|rsl 0|v|s|or |ssued a Reso|ul|or, lre
d|spos|l|ve porl|or ol Wr|cr reads, as lo||oWs: wrerelore, prer|ses cors|dered, lre
resporderls cerl|l|cale ol card|dacy srou|d oe carce||ed lor oe|rg a v|o|al|or ol lre lrree
(3)-lerr ru|e proscr|oed oy lre 198Z
Corsl|lul|or ard lre Loca| 0overrrerl Code ol 1991. Pel|l|orer l||ed r|s Vol|or lor
Recors|deral|or daled Vay 1, 2001, Wr|cr rera|red uracled upor url|| lre day ol lre
e|ecl|ors, Vay 11, 2001. 0r Vay 1, 2001, pr|vale resporderl 3urga l||ed ar Ex Parle
Vol|or lor lssuarce ol Terporary Reslra|r|rg 0rder Erjo|r|rg lre C|ly 8oard ol
Carvassers Fror Carvass|rg or Taou|al|rg Resporderls voles, ard Fror Proc|a|r|rg
l|r as lre 0u|y E|ecled Vayor |l le w|rs lre E|ecl|ors.[| 0esp|le lr|s, roWever,
pel|l|orer Lalasa Was sl|||
proc|a|red W|rrer or Vay 1Z, 2001, rav|rg garrered lre rosl ruroer ol voles.
Corsequerl|y, pr|vale resporderl 3urga l||ed, or Vay 2Z, 2001, a 3upp|ererla| Vol|or
Wr|cr esserl|a||y sougrl lre arru|rerl ol pel|l|orers proc|aral|or ard lre suspers|or ol
|ls ellecls. 0r Ju|y 1, 2001, pel|l|orer Was sWorr |rlo ard assured r|s oll|ce as lre reW|y
e|ecled rayor ol 0|gos C|ly. ll Was or|y or Augusl 2Z, 2002 lral lre C0VELEC er oarc
|ssued a Reso|ul|or dery|rg pel|l|orers Vol|or lor Recors|deral|or.
$$& :Wrelrer or rol pel|l|orer Lalasa |s e||g|o|e lo rur as card|dale lor lrepos|l|or ol
rayor ol lre reW|y-crealed C|ly ol 0|gos |rred|ale|y aller re servedlor lrree
corsecul|ve lerrs as rayor ol lre Vur|c|pa||ly ol 0|gos.
: As a ru|e, |r a represerlal|ve derocracy, lre peop|e srou|d oe a||oWed lree|y lo
croose lrose Wro W||| goverr lrer. Arl|c|e X, 3ecl|or 8 ol lre Corsl|lul|or |s ar
excepl|or lo lr|s ru|e, |r lral |l ||r|ls lre rarge ol cro|ce
ol lre peop|e. 3ecl|or 8. Tre lerr ol oll|ce ol e|ecl|ve |oca| oll|c|a|s, excepl oarargay
oll|c|a|s, Wr|cr sra|| oe delerr|red oy |aW, sra|| oe lrree years ard ro sucr oll|c|a| sra||
serve lor rore lrar lrree corsecul|ve lerrs. vo|urlary rerurc|al|or ol lre oll|ce lor ary
|erglr ol l|re sra|| rol oe cors|dered as ar |rlerrupl|or |r lre corl|ru|ly ol r|s serv|ce lor
lre lu|| lerr lor Wr|cr re Was e|ecled. Ar e|ecl|ve |oca| oll|c|a|, lrerelore, |s rol oarred
lror rurr|rg aga|r |r lor sare |oca| goverrrerl posl, ur|ess lWo cord|l|ors corcur:
1.) lral lre oll|c|a| corcerred ras oeer e|ecled lor lrree corsecul|ve lerrs lo lre sare
|oca|
goverrrerl posl, ar
2.) lral re ras lu||y served lrree corsecul|ve lerrs. lr lre preserl case, pel|l|orer slales
lral a c|ly ard a rur|c|pa||ly rave separale ard d|sl|rcl persora||l|es. Trus lrey carrol
oe lrealed as a s|rg|e erl|ly ard rusl oe accorded d|llererl lrealrerl cors|slerl W|lr
spec|l|c prov|s|ors ol lre Loca| 0overrrerl Code. le does rol dery lre lacl lral re ras
a|ready served lor lrree corsecul|ve lerrs as rur|c|pa| rayor. loWever, re asserls
lral Wrer 0|gos Was corverled lror a rur|c|pa||ly lo a c|ly, |l alla|red a d|llererl jur|d|ca|
persora||ly. Trerelore, Wrer re l||ed r|s cerl|l|cale ol card|dacy lor c|ly rayor, re carrol
oe corslrued as vy|rg lor lre sare |oca| goverrrerl posl
As seer |r lre alorererl|ored prov|s|ors (3ecl|or 150 (Requ|s|les lor Creal|or), 3ec Z
(Creal|or ard Corvers|or) ol lre Loca| 0overrrerl Code ard 3ecl|ors 2 ard 53 ol lre
Crarler ol lre C|ly ol 0|gos), lre Courl roled lral lre de||real|or ol lre relers ard
oourds ol lre C|ly ol 0|gos d|d rol crarge ever oy ar |rcr lre |ard area
prev|ous|y covered oy lre Vur|c|pa||ly ol 0|gos. Tr|s Courl a|so roles lral lre e|ecl|ve
oll|c|a|s ol lre Vur|c|pa||ly ol 0|gos corl|rued lo exerc|se lre|r poWers ard lurcl|ors url||
e|ecl|ors Were re|d lor lre reW c|ly oll|c|a|s.
True, lre reW c|ly acqu|red a reW corporale ex|slerce separale ard d|sl|rcl lror lral ol
lre rur|c|pa||ly. Tr|s does rol rear, roWever, lral lor lre purpose ol app|y|rg lre
suojecl Corsl|lul|ora| prov|s|or, lre oll|ce ol lre rur|c|pa| rayor Wou|d roW oe
corslrued as a d|llererl |oca| goverrrerl posl as lral ol lre oll|ce ol lre c|ly rayor. As
slaled ear||er, lre lerr|lor|a| jur|sd|cl|or ol lre C|ly ol 0|gos |s lre sare as lral ol lre
rur|c|pa||ly. Corsequerl|y, lre |rrao|larls ol lre rur|c|pa||ly are lre sare as lrose |r
lre c|ly. Trese |rrao|larls are lre sare group ol volers Wro e|ecled pel|l|orer Lalasa lo
oe lre|r rur|c|pa| rayor lor lrree corsecul|ve lerrs. Trese are a|so lre sare
|rrao|larls over Wror re re|d poWer ard aulror|ly as lre|r cr|el execul|ve lor r|re
years. ll |s ev|derl lral |r lre cases ol 8orja, Jr. v. C0VELEC, 3ocrales vs C0VELEC,
Lorzar|da vs C0VELEC, ard Adorreo vs. C0VELEC, lrere ex|sls a resl per|od or a
orea| |r lre serv|ce ol lre |oca| e|ecl|ve oll|c|a|. lr Lorzar|da, pel|l|orer lrere|r Was a
pr|vale c|l|zer a leW rorlrs oelore lre rexl rayora| e|ecl|ors.
3|r||ar|y, |r Adorreo ard 3ocrales, lre pr|vale resporderls lrere|r ||ved as pr|vale
c|l|zers lor lWo years ard l|lleer rorlrs respecl|ve|y. lrdeed, lre |aW corlerp|ales a resl
per|od dur|rg Wr|cr lre |oca| e|ecl|ve oll|c|a| sleps doWr lror oll|ce ard ceases lo
exerc|se poWer or aulror|ly over lre |rrao|larls ol lre lerr|lor|a| jur|sd|cl|or ol a parl|cu|ar
|oca| goverrrerl ur|l. Tr|s Courl re|lerales lral lre lrarers ol lre Corsl|lul|or
spec|l|ca||y |rc|uded
ar excepl|or lo lre peop|es lreedor lo croose lrose Wro W||| goverr lrer |r order lo
avo|d lre ev|| ol a s|rg|e persor accuru|al|rg excess|ve poWer over a parl|cu|ar lerr|lor|a|
jur|sd|cl|or as a resu|l ol a pro|orged slay |r lre sare oll|ce. To a||oW pel|l|orer Lalasa lo
v|e lor lre pos|l|or ol c|ly rayor aller rav|rg served lor lrree corsecul|ve lerrs as a
rur|c|pa| rayor Wou|d oov|ous|y deleal lre very |rlerl ol lre lrarers Wrer lrey Wrole
lr|s excepl|or. 3rou|d re oe a||oWed arolrer lrree corsecul|ve lerrs as rayor ol lre
C|ly ol 0|gos, pel|l|orer Wou|d lrer oe poss|o|y ro|d|rg oll|ce as cr|el execul|ve over lre
sare lerr|lor|a| jur|sd|cl|or ard |rrao|larls lor a lola| ol e|grleer corsecul|ve years. Tr|s
|s lre very scerar|o sougrl lo oe avo|ded oy lre Corsl|lul|or, |l rol aororred oy |l.
RVERA V. COMELEC G.R. o. 167591 May 9, 2007
FACTS
A petition for cancelation of the Certificate of Candidacy of Marino
Morales as mayoralty candidate in Mabalacat, Pampanga for the May
2004 mayoralty was filed on the ground the he already served three
consecutive terms in the office he seeks to run.

Morales argues that this is not so because although he really served in
1995-1998 (1
st
term) and 2004-2007 (3
rd
term), he was merely a
caretaker or de facto mayor in 1998-2001(2
nd
term) because his election
was declared void by the RTC due to an election protest.

Comelec ruled that Morales already served his third term and after an MR
was filed, declared it final and executory on May 14, 2004.

SSUE
WON Morales had already served his 3 consecutive terms and if so, who
should take his position.

ELD
For the three-term limit for elective local government officials to apply, two
conditions or requisites must concur, to wit: (1) that the official concerned
has been elected for three (3) consecutive terms in the same local
government post, and (2) that he has fully served three (3) consecutive
terms.

Here, Morales was elected for the term July 1, 1998 to June 30, 2001. He
assumed the position. He served as mayor until June 30, 2001. He was
mayor for the entire period notwithstanding the Decision of the RTC in the
electoral protest case filed by petitioner Dee ousting him (respondent) as
mayor. Such circumstance does not constitute an interruption in serving
the full term.

Whether as "caretaker" or "de facto" officer, he exercises the powers and
enjoys the prerequisites of the office which enables him "to stay on
indefinitely".

With regard to the person who will replace Morales, it is a rule that the
ineligibility of a candidate receiving majority votes does not entitle the
eligible candidate receiving the next highest number of votes to be
declared elected. A minority or defeated candidate cannot be deemed
elected to the office.

Since his disqualification became final and executory after the elections,
the candidate having the second highest number of votes cannot assume
the position. Hence, it is the petitioner, the elected Vice Mayor Anthony
Dee who should be declared as the mayor.
ROBERTO L. DO, Petitioner,
vs
COMMSSO O ELECTOS and MARO P.
MORALES, Respondents.
D E C S O
CARPO, .:
The Ca8e
This is a petition for certiorari and prohibition, with prayer for the issuance
of a temporary restraining order and writ of preliminary injunction under
Rule 65 of the 1997 Rules of Civil Procedure. The present petition seeks
the reversal of the Resolution dated 27 July 2007 of the Commission on
Elections' (COMELEC) Second Division which dismissed the petition to
disqualify and/or to cancel Marino P. Morales' (Morales) certificate of
candidacy, as well as the Resolution dated 14 February 2008 of the
COMELEC n Banc which denied Roberto L. Dizon's (Dizon) motion for
reconsideration.
The Fact8
The COMELEC Second Division stated the facts as follows:
Roberto L. Dizon, hereinafter referred to as petitioner, is a resident and
taxpayer of the Municipality of Mabalacat, Pampanga. Marino P. Morales,
hereinafter referred to as respondent, is the incumbent Mayor of the
Municipality of Mabalacat, Pampanga.
Petitioner alleges respondent was proclaimed as the municipal mayor of
Mabalacat, Pampanga during the 1995, 1998, 2001 and 2004 elections
and has fully served the same. Respondent filed his Certificate of
Candidacy on March 28, 2007 again for the same position and same
municipality.
Petitioner argues that respondent is no longer eligible and qualified to run
for the same position for the May 14, 2007 elections under Section 43 of
the Local Government Code of 1991. Under the said provision, no local
elective official is allowed to serve for more than three (3) consecutive
terms for the same position.
Respondent, on the other hand, asserts that he is still eligible and
qualified to run as Mayor of the Municipality of Mabalacat, Pampanga
because he was not elected for the said position in the 1998 elections.
He avers that the Commission en banc in SPA Case No. A-04-058,
entitled Atty. Venancio Q. Rivera and Normandick P. De Guzman vs.
Mayor Marino P. Morales, affirmed the decision of the Regional Trial
Court of Angeles City declaring Anthony D. Dee as the duly elected
Mayor of Mabalacat, Pampanga in the 1998 elections.
Respondent alleges that his term should be reckoned from 2001 or when
he was proclaimed as Mayor of Mabalacat, Pampanga. Respondent
further asserts that his election in 2004 is only for his second term.
Hence, the three term rule provided under the Local Government Code is
not applicable to him.
Respondent further argues that the grounds stated in the instant petition
are not covered under Section 78 of the Omnibus Election Code.
Respondent further contend [sic] that even if it is covered under the
aforementioned provision, the instant petition failed to allege any material
misrepresentation in the respondent's Certificate of Candidacy.
1

The RuIing of the COMELEC Second Divi8ion
n its Resolution dated 27 July 2007, the COMELEC Second Division
took judicial notice of this Court's ruling in the consolidated cases of Atty
Venancio Q Rivera III v COMLC and Marino "Boking" Morales in G.R.
No. 167591 and Anthony ee v COMLC and Marino "Boking"
Morales in G.R. No. 170577 (Rivera case) promulgated on 9 May 2007.
The pertinent portions of the COMELEC Second Division's ruling read as
follows:
Respondent was elected as mayor of Mabalacat from July 1, 1995 to
June 30, 1998. There was no interruption of his second term from 1998 to
2001. He was able to exercise the powers and enjoy the position of a
mayor as "caretaker of the office" or a "de facto officer" until June 30,
2001 notwithstanding the Decision of the RTC in an electoral protest
case. He was again elected as mayor from July 1, 2001 to June 30, 2003
[sic].
t is worthy to emphasize that the Supreme Court ruled that respondent
has violated the three-term limit under Section 43 of the Local
Government Code. Respondent was considered not a candidate in the
2004 Synchronized National and Local Elections. Hence, his failure to
qualify for the 2004 elections is a gap and allows him to run again for the
same position in the May 14, 2007 National and Local Elections.
WHEREFORE, premises considered, the Commission RESOLVED, as it
hereby RESOLVES to DENY the instant Petition to Cancel the Certificate
of Candidacy and/or Petition for the Disqualification of Marino P. Morales
for lack of merit.
2

Dizon filed a motion for reconsideration before the COMELEC n Banc.
The RuIing of the COMELEC n Banc
The COMELEC n Banc affirmed the resolution of the COMELEC
Second Division.
The pertinent portions of the COMELEC n Banc's Resolution read as
follows:
Respondent's certificate of candidacy for the May 2004 Synchronized
National and Local Elections was cancelled pursuant to the above-
mentioned Supreme Court decision which was promulgated on May 9,
2007. As a result, respondent was not only disqualified but was also not
considered a candidate in the May 2004 elections.
Another factor which is worth mentioning is the fact that respondent has
relinquished the disputed position on May 16, 2007. The vice-mayor elect
then took his oath and has assumed office as mayor of Mabalacat on
May 17, 2007 until the term ended on June 30, 2007. For failure to serve
for the full term, such involuntary interruption in his term of office should
be considered a gap which renders the three-term limit inapplicable.
The three-term limit does not apply whenever there is an involuntary
break. The Constitution does not require that the interruption or hiatus to
be a full term of three years. What the law requires is for an interruption,
break or a rest period from a candidate's term of office "for any length of
time." The Supreme Court in the case of Latasa v Comelec ruled:
ndeed, the law contemplates a rest period during which the local elective
official steps down from office and ceases to exercise power or authority
over the inhabitants of the territorial jurisdiction of a particular local
government unit.
n sum, the three-term limit is not applicable in the instant case for lack of
the two conditions: 1) respondent was not the duly-elected mayor of
Mabalacat for the July 1, 2004 to June 30, 2007 term primordially
because he was not even considered a candidate thereat; and 2)
respondent has failed to serve the entire duration of the term of office
because he has already relinquished the disputed office on May 16, 2007
which is more than a month prior to the end of his supposed term.
x x x
WHEREFORE, premises considered, the Commission RESOLVED, as it
hereby RESOLVES, to DENY the instant Motion for Reconsideration for
LACK OF MERT. The Resolution of the Commission Second Division is
hereby AFFRMED.
SO ORDERED.
3

The 88ue8
Dizon submits that the factual findings made in the Rivera case should
still be applied in the present case because Morales had, except for one
month and 14 days, served the full term of 2004-2007. Morales'
assumption of the mayoralty position on 1 July 2007 makes the 2007-
2010 term Morales' fifth term in office. Dizon raises the following grounds
before this Court:
1. THE COMELEC GRAVELY ABUSED TS DSCRETON
AMOUNTNG TO LACK OR EXCESS OF TS JURSDCTON
WHEN T RULED THAT RESPONDENT MORALES DD NOT
VOLATE THE THREE-YEAR TERM LMT WHEN HE RAN
AND WON AS MAYOR OF MABALACAT, PAMPANGA
DURNG THE MAY 14, 2007 ELECTON.
AMOUNTNG TO LACK OR EXCESS OF JURSDCTON
WHEN T RULED THAT DUE TO THS HONORABLE
COURT'S RULNG N THE AFORESAD CONSOLDATED
CASES, RESPONDENT MORALES' FOURTH TERM S
CONSDERED A GAP N THE LATTER'S SERVCE WHEN
HE FLED HS CERTFCATE OF CANDDACY FOR THE
2007 ELECTONS.
WHEN T RULED THAT THE FOURTH TERM OF MORALES
WAS NTERRUPTED WHEN HE "RELNQUSHED" HS
POSTON FOR ONE MONTH AND 14 DAYS PROR TO THE
MAY 14, 2007 ELECTON.
4

The RuIing of the Court
The petition has no merit.
The present case covers a situation wherein we have previously ruled
that Morales had been elected to the same office and had served three
consecutive terms, and wherein we disqualified and removed Morales
during his fourth term. Dizon claims that Morales is currently serving his
fifth term as mayor. s the 2007-2010 term really Morales' fifth term?
%e 11ect o1 our Ruling in te Rivera Case
n our decision promulgated on 9 May 2007, this Court unseated Morales
during his fourth term. We cancelled his Certificate of Candidacy dated
30 December 2003. This cancellation disqualified Morales from being a
candidate in the May 2004 elections. The votes cast for Morales were
considered stray votes. The dispositive portion in theRivera case reads:
WHEREFORE, the petition in G.R. No. 167591 is GRANTED.
Respondent Morales' Certificate of Candidacy dated December 30, 2003
is cancelled. n view of the vacancy in the Office of the Mayor of
Mabalacat, Pampanga, the vice-mayor elect of the said municipality in
the May 10, 2004 Synchronized National and Local Elections is hereby
declared mayor and shall serve as such for the remaining duration of the
term July 1, 2004 to June 30, 2007. The petition in G.R. No. 170577 is
DSMSSED for being moot.
This Decision is immediately executory.
SO ORDERED.
5

Article X, Section 8 of the 1987 Constitution reads:
The term of office of elective local officials, except barangay officials,
which shall be determined by law, shall be three years and no such
official shall serve for more than three consecutive terms. Voluntary
renunciation of the office for any length of time shall not be considered as
an interruption in the continuity of his service for the full term for which he
was elected.
Section 43(b) of the Local Government Code restated Article X, Section 8
of the 1987 Constitution as follows:
No local elective official shall serve for more than three (3) consecutive
terms in the same position. Voluntary renunciation of the office for any
length of time shall not be considered as an interruption in the continuity
of service for the full term for which the elective official concerned was
elected.
For purposes of determining the resulting disqualification brought about
by the three-term limit, it is not enough that an individual has served three
consecutive terms in an elective local office, he must also have been
elected to the same position for the same number of times.
6
There should
be a concurrence of two conditions for the application of the
disqualification: (1) that the official concerned has been elected for three
consecutive terms in the same local government post and (2) that he has
fully served three consecutive terms.
7
lavvphilnet
n the Rivera case, we found that Morales was elected as mayor of
Mabalacat for four consecutive terms: 1 July 1995 to 30 June 1998, 1
July 1998 to 30 June 2001, 1 July 2001 to 30 June 2004, and 1 July 2004
to 30 June 2007. We disqualified Morales from his candidacy in the May
2004 elections because of the three-term limit. Although the trial court
previously ruled that Morales' proclamation for the 1998-2001 term was
void, there was no interruption of the continuity of Morales' service with
respect to the 1998-2001 term because the trial court's ruling was
promulgated only on 4 July 2001, or after the expiry of the 1998-2001
term.
Our ruling in the Rivera case served as Morales' involuntary severance
from office with respect to the 2004-2007 term. nvoluntary severance
from office for any length of time short of the full term provided by law
amounts to an interruption of continuity of service.
8
Our decision in
the Rivera case was promulgated on 9 May 2007 and was effective
immediately. The next day, Morales notified the vice mayor's office of our
decision. The vice mayor assumed the office of the mayor from 17 May
2007 up to 30 June 2007. The assumption by the vice mayor of the office
of the mayor, no matter how short it may seem to Dizon, interrupted
Morales' continuity of service. Thus, Morales did not hold office for the full
term of 1 July 2004 to 30 June 2007.
2007-2010: Morales' Fi1t %erm?
Dizon claims that the 2007-2010 term is Morales' fifth term in office.
Dizon asserts that even after receipt of our decision on 10 May 2007,
Morales "waited for the election to be held on 14 May 2007 to ensure his
victory for a fifth term."
9

We concede that Morales occupied the position of mayor of Mabalacat
for the following periods: 1 July 1995 to 30 June 1998, 1 July 1998 to 30
June 2001, 1 July 2001 to 30 June 2004, and 1 July 2004 to 16 May
2007. However, because of his disqualification, Morales was not the duly
elected mayor for the 2004-2007 term. Neither did Morales hold the
position of mayor of Mabalacat for the full term. Morales cannot be
deemed to have served the full term of 2004-2007 because he was
ordered to vacate his post before the expiration of the term. Morales'
occupancy of the position of mayor of Mabalacat from 1 July 2004 to 16
May 2007 cannot be counted as a term for purposes of computing the
three-term limit. ndeed, the period from 17 May 2007 to 30 June 2007
served as a gap for purposes of the three-term limit rule. Thus, the
present 1 July 2007 to 30 June 2010 term is effectively Morales' first term
for purposes of the three-term limit rule.
Dizon alleges that Morales "was able to serve his fourth term as mayor
through lengthy litigations. x x x n other words, he was violating the rule
on three-term limit with impunity by the sheer length of litigation and profit
from it even more by raising the technicalities arising therefrom."
10
To
this, we quote our ruling in Lonzanida v COMLC:
The respondents harp on the delay in resolving the election protest
between petitioner and his then opponent Alvez which took roughly about
three years and resultantly extended the petitioner's incumbency in an
office to which he was not lawfully elected. We note that such delay
cannot be imputed to the petitioner. There is no specific allegation nor
proof that the delay was due to any political maneuvering on his part to
prolong his stay in office. Moreover, protestant Alvez, was not without
legal recourse to move for the early resolution of the election protest
while it was pending before the regional trial court or to file a motion for
the execution of the regional trial court's decision declaring the position of
mayor vacant and ordering the vice-mayor to assume office while the
appeal was pending with the COMELEC. Such delay which is not here
shown to have been intentionally sought by the petitioner to prolong his
stay in office cannot serve as basis to bar his right to be elected and to
serve his chosen local government post in the succeeding mayoral
election.
11

Montebon v8 ComeIec
Date: April 9, 2008
Petitioners: Federico Montebon and Eleonor Ondoy
Respondents: Comelec and Sesinado Potencioso Jr
Ponente: Ynares Santiago
Facts: Montebon, Ondoy and Potencioso, Jr. were candidates for
municipal councilor of the
Municipality of Tuburan, Cebu for the May 14, 2007 Elections. Petitioners
and other candidates
filed a petition for disqualification against respondent with the COMELEC
alleging that respondent had been elected and served three consecutive
terms as municipal councilor in 1998-2001, 2001-2004, and 2004-
2007.Thus, he is proscribed from running for the same position in the
2007 elections as it would be his fourth consecutive term. Respondent
admitted having been elected, but claimed that the service of his second
term in 2001-2004 was interrupted on January 12, 2004 when he
succeeded as vice mayor of Tuburan due to the retirement of Vice Mayor
Petronilo L. Mendoza.Consequently, he is not disqualified from vying for
the position of municipal councilor in the 2007 elections. Petitioners, on
the other hand contended that voluntary renunciation of the office shall
not be considered an interruption in the continuity of service for the full
term for which
the official concerned was elected.
The comelec denied the petition for disqualification. On appeal, the
Comelec en banc affirmed and ruled that there was no voluntary
renunciation of office, but rather, an effective disruption in the full service
of his second term as councilor.

ssue:WON respondent's assumption of office as vice-mayor in January
2004 interrupted his 2001-
2004 term as municipal councilor
Held: Yes
Ratio: n onzunIdu v. CommIssIon on EIecLIons the Court held that the
two conditions for the
application of the disqualification must concur: 1) that the official
concerned has been elected for
three consecutive terms in the same local government post; and 2) that
he has fully served three
consecutive terms. n Borju, Jr. v. CommIssIon on EIecLIons, the Court
emphasized that the term
limit for elective officials must be taken to refer to the right to be elected
as well as the right to
serve in the same elective position.Thus, for the disqualification to apply,
it is not enough that the
official has been elected three consecutive times; he must also have
served three consecutive
terms in the same position.
While it is undisputed that respondent was elected municipal
councilor for three consecutive
terms, the issue lies on whether he is deemed to have fully served his
second term in view of his
assumption of office as vice-mayor of Tuburan on January 12, 2004.
Succession in local government offices is by operation of
law.Section 44 of Republic Act No.
7160, otherwise known as the Local Government Code, provides that if a
permanent vacancy
occurs in the office of the vice mayor, the highest ranking sanggunian
member shall become vice
mayor.
n this case, a permanent vacancy occurred in the office of
the vice mayor due to the
retirement of Vice Mayor Mendoza.Respondent, being the highest
ranking municipal councilor,
succeeded him in accordance with law.t is clear therefore that his
assumption of office as vice-
mayor can in no way be considered a voluntary renunciation of his office
as municipal councilor.
n onzunIdu v. CommIssIon on EIecLIons, the Court
explained the concept of voluntary
renunciation as follows: The second sentence of the constitutional
provision under scrutiny states,
`Voluntary renunciation of office for any length of time shall not be
considered as an interruption in
the continuity of service for the full term for which he was elected.' The
clear intent of the framers
of the constitution to bar any attempt to circumvent the three-term limit by
a voluntary
renunciation of office and at the same time respect the people's choice
and grant their elected
official full service of a term is evident in this provision.Voluntary
renunciation of a term does not
cancel the renounced term in the computation of the three term limit;
conversely,invo lunt ary
severance from office for any length of time short of the
full term provided by law
amounts to an interruption of continuity of service.
Thus, respondent's assumption of office as vice-mayor in
January 2004 was an involuntary
severance from his office as municipal councilor, resulting in an
interruption in the service of his
2001-2004 term.t cannot be deemed to have been by reason of
voluntary renunciation because it
was by operation of law. Succession by law to a vacated government
office is characteristically not
voluntary since it involves the performance of a public duty by a
government official, the non-
performance of which exposes said official to possible administrative and
criminal charges of
dereliction of duty and neglect in the performance of public functions.t is
therefore more
compulsory and obligatory rather than voluntary.

BoIo8 v. COMELEC
Peralta | 2009
Facts:
For three consecutive terms, petitioner Nicasio Bolos Jr. was elected to
the position of Punong Bar angay of Bar angay Bi ki ng, Daui s,
Bohol i n t he Bar angay El ect i ons hel d i n 1994, 1997
and2002. n May 2004, whi l e si t t i ng as t he i ncumbent
Punong Bar angay, pet i t i oner r an f or Muni ci pal Councilor of
Dauis, Bohol and won. He assumed office as Municipal Councilor,
leaving his post as Punong Barangay. He served the full term of
the Sangguniang Bayan position, which was until June 30,
2007. Thereafter, petitioner filed his Certificate of Candidacy for Punong
Barangay of Barangay Bikingin the 2007 Barangay and Sangguniang
Kabataan Elections. Respondent Cinconiegue, the incumbent Punong
Barangay and candidate for the same office,f i l ed bef or e t he
COMELEC a pet i t i on f or t he di squal i f i cat i on of pet i t i oner as
candi dat e on t he ground that he had already served the three-term
limit, in violation of Section 8, Article X of the Constitution and Section
43 (b) of R.A. No. 7160. Respondent: Contended that petitioner's
relinquishment of the position of Punong Barangay in2004 was voluntary
on his part, as it could be presumed that it was his personal decision to
run as municipal councilor.

Petitioner's Answer:
Argued that his election and assumption of office as Sangguniang
Bayanmember was by operation of law; hence, it must be considered as
an involuntary interruption in the continuity of his last term of service.
Fi r st Di vi si on of COMELEC:
Hel d t hat pet i t i oner ' s r el i nqui shment of t he
of f i ce of PunongBarangay was a voluntary renunciation of his office.
Cited that it was unlikely that respondent had filed his Certificate of
Candidacy for the Sangguniang Bayan post, campaigned and exhorted
the municipal electorate to vote for him as such and then after being
elected and proclaimed, return to his former position. Thus, he was
disqualified from being a candidate for the same office in the2007
elections.
COMELEC en banc: Denied the motion for reconsideration.
ssue:
Whet her or not t her e was vol unt ar y r enunci at i on of t he
Of f i ce of Punong Bar angay
byp e t i t i o n e r wh e n h e a s s u m e d o f f i c e a s Mu n i c i p a l
C o u n c i l o r w h i c h wi l l r e n d e r u n b r o k e n t h e continuity of
his service as Punong Barangay for the full term of office.

Ruling: YES.
T h e t h r e e - t e r m l i mi t f o r
e l e c t i v e l o c a l o f f i c i a l s i s c o n t a i n e d i n S e c t i o n 8 ,
A r t i c l e X o f t h e Constitution. Meanwhile, Section 43(b) of the Local
Government Code provides that barangayofficials are covered by the
three-term limit, while Section 43(c)[7] thereof states that the term
of office of barangay officials shall be five (5) years.
Socrates v. COMELEC
: The rule on the three-term limit two parts:
1)An elective local official cannot serve for more than three consecutive
terms.
The clear intent is that only consecutive terms count in determining
the three-term limit rule.
2) Voluntary renunciation of office for any length of time does not
interrupt the continuity of service. The clear intent is that involuntary
severance from office for any length of time interruptscontinuity of service
and prevents the service before and after the interruption from being
joinedtogether to form a continuous service or consecutive terms.
Lonzanida v. COMELEC: The second part of the rule shows the clear
intent of the framers of theConstitution to bar any attempt to circumvent
the three-term limit by a voluntary renunciation of office and at the same
time respect the people's choice and grant their elected official full
serviceof a term
Two conditions for the application of the disqualification must concur:
(1) that the official concer ned has been elected for three
consecutive terms in the same government post; and ( 2) that
he has fully served three consecutive terms.
(2) Pet i t i oner was el ect ed as Punong Bar angay f or
t hr ee consecut i ve t er ms, sat i sf yi ng t he f i rst condition
for disqualification. As to the second requirement, the
COMELEC correctly held that petitioner abandoned his office.
Abandonment, like resignation, is voluntary. Petitioner did not
assume the position of Sangguniang Bayan member by
operation of law. The t er m " oper at i on of l aw i s " a t er m
descr i bi ng t he f act t hat r i ght s may be acqui r ed or
l ost by t he effect of a legal rule without any act of the person
affected.
Examples of interruption in the service of a term of office, by operation of
law:
1.Municipal Councilor succeeded as Vice-Mayor of Tuburan due to the
retirement of the Vice-Mayor. ( Montebon v. COMELEC)
2. Vice-Mayor became Mayor, by operation of law, upon the death of the
incumbent Mayor.( Borja, Jr. v. COMELEC)
n t hi s case, pet i t i oner di d not f i l l i n or succeed t o a
vac ancy by oper at i on of l aw. He i nst ead r el i nqui shed hi s
of f i ce asPunong Bar angay dur i ng hi s t hi r d t er m when he
won and assumed office as Sangguniang Bayan member of Dauis,
Bohol, which is deemed a voluntary renunciation of the Office of Punong
Barangay
ALDOVNO VS COMELEC AND ASLO
FACTS: s the preventive suspension of an elected public official an
interruption of his term of office for purposes of the three-term limit rule
under Section 8, Article X of the Constitution and Section 43(b) of
Republic Act No. 7160 (RA 7160, or the Local Government Code)?
The respondent Commission on Elections (COMELEC) ruled that
preventive suspension is an effective interruption because it renders the
suspended public official unable to provide complete service for the full
term; thus, such term should not be counted for the purpose of the three-
term limit rule.
The present petition seeks to annul and set aside this COMELEC ruling
for having been issued with grave abuse of discretion amounting to lack
or excess of jurisdiction.
Wilfredo F. Asilo (Asilo) was elected councilor of Lucena City for three
consecutive terms: for the 1998-2001, 2001-2004, and 2004-2007 terms,
respectively. n September 2005 or during his 2004-2007 term of office,
the Sandiganbayan preventively suspended him for 90 days in relation
with a criminal case he then faced. This Court, however, subsequently
lifted the $andiganbayan's suspension order; hence, he resumed
performing the functions of his office and finished his term
n the 2007 election, Asilo filed his certificate of candidacy for the same
position. The petitioners Simon B. Aldovino, Jr., Danilo B. Faller, and
Ferdinand N. Talabong (the petitioners) sought to deny due course to
Asilo's certificate of candidacy or to cancel it on the ground that he had
been elected and had served for three terms; his candidacy for a fourth
term therefore violated the three-term limit rule under Section 8, Article X
of the Constitution and Section 43(b) of RA 7160.
The COMELEC's Second Division ruled against the petitioners and in
Asilo's favour in its Resolution of November 28, 2007. t reasoned out
that the three-term limit rule did not apply, as Asilo failed to render
complete service for the 2004-2007 term because of the suspension the
Sandiganbayan had ordered.
SSUE: Whether preventive suspension of an elected local official is an
interruption of the three-term limit rule; and . Whether preventive
suspension is considered involuntary renunciation as contemplated in
Section 43(b) of RA 7160
HELD: NEGATVE. Petition is meritorious.
As worded, the constitutional provision fixes the term of a local elective
office and limits an elective official's stay in office to no more than three
consecutive terms. This is the first branch of the rule embodied in Section
8, Article X.
Significantly, this provision refers to a "term" as a period of time three
years during which an official has title to office and can serve
The word "term" in a legal sense means a fixed and definite period of
time which the law describes that an officer may hold an office.,
preventive suspension is not a qualified interruption.
Lonzanida v Commission on lections
7
presented the question of
whether the disqualification on the basis of the three-term limit applies if
the election of the public official (to be strictly accurate, the proclamation
as winner of the public official) for his supposedly third term had been
declared invalid in a final and executory judgment We ruled that the two
requisites for the application of the disqualification (viz, 1 that the official
concerned has been elected for three consecutive terms in the same
local government post; and 2 that he has fully served three consecutive
terms.. The petitioner vacated his post a few months before the next
mayoral elections, not by voluntary renunciation but in compliance with
the legal process of writ of execution issued by the COMLC to that
effect $uch involuntary severance from office is an interruption of
continuity of service and thus, the petitioner did not fully serve the 1995-
1998 mayoral term(CPTION)
"nterruption" of a term exempting an elective official from the three-term
limit rule is one that involves no less than the involuntary loss of title to
office. The elective official must have involuntarily left his office for a
length of time, however short, for an effective interruption to occur. This
has to be the case if the thrust of Section 8, Article X and its strict intent
are to be faithfully served, i.e., to limit an elective official's continuous
stay in office to no more than three consecutive terms, using "voluntary
renunciation" as an example and standard of what does not constitute an
interruption.
Strict adherence to the intent of the three-term limit rule demands that
preventive suspension should not be considered an interruption that
allows an elective official's stay in office beyond three terms. A preventive
suspension cannot simply be a term interruption because the suspended
official continues to stay in office although he is barred from exercising
the functions and prerogatives of the office within the suspension period.
The best indicator of the suspended official's continuity in office is the
absence of a permanent replacement and the lack of the authority to
appoint one since no vacancy exists.

ADORMO vs. COMLC
G.R. No. 147927. February 4, 2002
FACTS:
Adormeo and Talaga, Jr. Iiled their certiIicates oI candidacy Ior mayor oI Lucena
City Ior the 2001 elections. Talaga, Jr. was then the incumbent mayor. He was
elected mayor in 1992 and was again re-elected in 1995-1998. In the election oI
1998, he lost, however, in the recall election oI May 2000, he won and served the
unexpired term. Adormeo Iiled a Petition to Cancel
CertiIicate oI Candidacy and/or DisqualiIication oI Talaga, Jr., on the ground
that the latter was elected and had served as city mayor Ior 3 consecutive terms.
Talaga, Jr. responded that he was not elected City Mayor Ior 3 consecutive terms
but only Ior 2 consecutive terms since he was deIeated in the 1998 election,
interrupting the consecutiveness oI his years as mayor. COMELEC First
Division Iound Talaga, Jr. disqualiIied Ior the position oI city mayor. He Iiled a
motion Ior reconsideration and COMELEC en banc ruled in his Iavor and held
that 1) respondent was not elected Ior three (3) consecutive terms because he did
not win in the 1998 elections; 2) that he was installed only as mayor by reason oI
his victory in the recall elections; 3) that his victory in the recall elections was
not considered a term oI oIIice and is not included in the 3-term disqualiIication
rule, and 4) that he did not Iully serve the three (3) consecutive terms, and his
loss in the 1998 elections is considered an interruption in the continuity oI his
service as Mayor oI Lucena City. AIter canvassing, Talaga, Jr. was proclaimed
as the duly elected Mayor oI Lucena City.
ISSU:
Whether or not Talaga, Jr was disqualiIied to run Ior mayor oI in the elections.
RULING:
The term limit Ior elective local oIIicials must be taken to reIer to the right to be
elected as well as the right to serve in the same elective position. It is not enough
that an individual has served three consecutive terms in an elective local oIIice,
he must also have been elected to the same position Ior the same number oI
times beIore the disqualiIication can apply. The tw conditions Ior the application
oI the disqualiIication must concur: a) that the oIIicial concerned has been
elected Ior three consecutive terms in the same local government post and 2) that
he has Iully served three consecutive terms. COMELECs ruling that private
respondent were not elected Ior three (3) consecutive terms should be upheld.
The continuity oI his mayorship was disrupted by his deIeat in the 1998
elections. Voluntary renunciation oI oIIice Ior any length oI time shall not be
considered as an interruption in the continuity oI service Ior the Iull term Ior
which he was elected. Voluntary renunciation oI a term does not cancel the
renounced term in the computation oI the three term limit; conversely,
involuntary severance Irom oIIice Ior any length oI time short oI the Iull term
provided by law amounts to an interruption oI continuity oI service.
HRFOR, the instant petition is hereby DISMISSED

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THE CTY GOVERNMENT OF QUEZON CTY, AND THE CTY

TREASURER OF QUEZON CTY, DR. VCTOR B.

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