Professional Documents
Culture Documents
Ulep Notes
Ulep Notes
1. They were merely exercising the police power of the state for a lawful purpose
and through lawful means, which can validly limit the exercise of Civil liberty. The
Supreme Court cited past legislation implemented in the Philippines which justified the
placing in a reservation of the Manguianes such as:
a. Book 6, Title 3 A compilation of laws implemented during the Spanish forcing
the Indios to leave poblaciones (communities) or reducciones in order to instruct them
to the Catholic faith and enable them to live in a civilized manner.
b. Decree of the Governor-General of January 14, 1881- Decree ordering the
Indios to be governed by the common law and not allowing them, unless with absolute
necessity, to change their residence.
c. Letter of Instructions by President McKinley Uncivilized tribes are allowed to
keep their tribal governments, subject to regulation by the Americans.
d. The Philippine Bill of 1902 The Philippine Commission (which composed
of the Philippine Legislature, the other being the Philippine Assembly) was given
exclusive jurisdiction over the territory inhabited by the Moros and other non-Christian
tribes of the Philippines
e. The Jones Law
2. Although the Maguianes were labeled as non-Christian, the intent of the law
was not to refer to any particular religions or geographical discrimination but is
predicated on the lack of civilization by them, which the measure implemented by the
provincial officials of Mindoro intended to correct.
3. The measure implemented was a valid delegation of legislative power by the
Philippine legislature as it was done in accordance with Administrative Code of 1917
c.3 The Maura Law
Queen Regent Maria Cristina of Spain, upon the recommendation of Colonial
Minister Antonio Maura, promulgated the Royal Decree of May 19, 1893 which provided
for an autonomous local government in the Philippines. Under the Maura Law there was
constituted a Municipal Tribunal of five, the captain and 4 lieutenants. It was given
charge of the active work of governing the municipality, such as administration of public
works, etc. and the details of taxation. In addition, each of its members was required to
have special qualifications. These positions were honorary. The term of office was 4
years. The officers, together with 2 substitutes, were elected by 12 delegates of the
principalia. The principalia was composed of all persons who has held certain offices
(such as cabeza de barangay or former captains) or who has paid a land tax of P50.
The Governor General and the provincial governor retained disciplinary jurisdiction over
the council and its individual members, the Provincial Board also had supervision of the
municipal council (Malcolm, Govt. of the Philippines Islands, pp. 69-71, Document 362,
The Maura Law of 1893)
This Act is essentially the same as its predecessor, with the following pertinent
amendments;
1) A plebiscite may be called to decide on the recall of any member of the barrio
council member or approve any budgetary, supplement appropriations or special tax
ordinances.
2) Renaming the barrio lieutenant as barrio captain
3) Right of succession in case of vacancy in the barrio captain position (there is no
vice-barrio captain in both Acts).
4) The municipal mayor shall have power of supervision over barrio officials\
5) Procedure in barrio council, such as holding of meetings every month
6) Effectively of barrio ordinances (unless otherwise, after 60 days after its passage or
15 days after its confirmation in a plebiscite)
f. 4 R.A. 5185 The Decentralization Act of 1967
This Act further strengthens the autonomous powers of local governments by
providing for the following pertinent provisions:
1) Provincial and city governments are empowered to undertake field agricultural
work and rural health work whenever deemed to be necessary to assist in national
programs or services.
2) Appointment of heads, assistant heads of local officers and their subordinates
3) Suspension and removal of elective local officials (grounds: disloyalty to
RP, dishonesty, oppression and misconduct in the office)
4) Restriction in practice of law by members of provincial, city or municipal board
5) Succession to office of vice-governor and vice-mayor.
6) Filling of special vacancies in local legislative bodies.
7) Filling of elective officers in newly created and newly classified provinces,
cities, municipalities or municipal districts
8) List of actions of provincial, city and municipal officials and provincial boards
declared immediately effective.
9) Certain duties and powers of local chief executives not to be subject to
direction and review of any national official
10) Release and apportionment of certain government funds
11) Creation of following positions: provincial engineer, city public works official,
provincial attorney and city legal officer
city-barangay,
H. The Present
h. 1 R.A. 7160 The Local Government Code of 1991. From the LGC of 1983,
the following pertinent provisions were added:
1) Operative principles of decentralization
2) Authority by Congress or any political subdivision to create, divide, merge,
abolish or alter boundaries
3) Emphasis on general welfare and imposition of basic services and facilities on
political subdivisions
4) Reclassification of lands
5) Authority of LGUs to secure and negotiate grants
6) Creation of Local Prequalification, Bids and Awards Committee
7) Other procedural and technical changes
plebiscite. By virtue of martial law and the absence of an interim Batasang Pambansa at
that time, the President had authority to enact said P.D.
2. There is reasonable classification in organizing said 4 cities and 13 municipalities
into a metropolitan area
3. Article 8, Sec. 2 of the 1973 Constitution expressly recognizes the juridical entity
known as Metropolitan Manila
4. There is presumption of constitutionality in the Presidents power of direct
supervision and control over the Metropolitan Manila Commission. The presidential
power of control can and should be constructed to mean that said control is limited to
those that may be considered national in character.
b. 2 MMDA v. Bel-Air Assn, Inc., 328 SCRA 836
Facts: Pursuant to R.A. 7924 which created the MMDA, MMDA issued a notice
to the Bel-Air Village Assoc. (BAVA) that the former will open Neptune Street owned by
the latter in Bel-Air Village, as well as tear down a perimeter wall owned by said village.
Both actions, the MMDA said, is necessary for the decongestion of traffic along the said
areas.
BAVA petitioned the trail court and later on the Court of Appeals to enjoin the
implementation of MMDAs proposed actions. BAVAs petition was granted. The MMDA
thus now seeks recourse with the Supreme Court, claiming among others that its
proposed actions were in the exercise of the police power.
Held: MMDA is wrong. The reason is that R.A. 7924 did not expressly or
impliedly delegate any police power to the MMDA, most notably the power to enact
ordinances necessary for the implementation of its plans, programs and projects aimed
at the delivery of metro-wide services in Metro Manila, without diminution of the
autonomy of the LGUs concerning purely local matters (See. 2, R.A. 7924) MMDAs
proposed actions were not under the authority of any ordinance (Whats funny is that
the MMC, the governing board of the MMDA, is composed of the different mayors of
Metro Manila, and these guys, as mayors per se, have the power or at least, the political
will to enact ordinances)
C. Read R.A. 6732 (Organic Act for ARMM [Autonomous Region in Muslim
Mindanao])
Mindanao, encompassing 13 provinces and 9 cities, through a plebiscite for that
purpose. This government shall operate within the framework of the Regional
Government. The executive power is conferred on the Regional Governor. The
legislative power is conferred in the Regional Assembly. The Supreme Court, the Court
of Appeals and the lower courts shall continue to exercise their power as mandated in
the Constitution; however, there shall be a Shariah Appellate Court which shall also be
learned in Islamic law and jurisprudence. The Shariah Courts decisions shall be final
and executory subject to the original and appellate jurisdiction of the Supreme Court.
Tribal Appellate Courts for cases dealing with tribal codes shall also be established.
The Regional Government shall have fiscal autonomy or the power to create its
own sources of revenue, subject to the limitations of the Constitution and this Organic
Act. The Organic Act also provides for: Protection of ancestral lands, ancestral domain
and indigenous cultural communities; urban and rural planning and development; power
to enact laws pertaining to the national economy and patrimony responsive to the needs
of the Regional Government; public order and security; education, science and
technology and sports development; social justice and services; and power to amend or
revise the Organic Act, either by Congress or by the Regional Assembly, the latter being
subject to approval by Congress.
c. 1 Abbas v. COMELEC, 179 SCRA 287
Facts: Datu Firdausi Abbas, et.al. challenged the constitutionality of R.A. 6734
on the following grounds:
1) R. A. 6734 conflicts with the Tripoli Agreement (what conflicts the case
doesnt say)
2)
R. A. 6734 provides for the unconditional creation of the ARMM and not
through the mode of a plebiscite as provided in the Constitution
3)
The Constitution provides that ARMM shall be approved by a majority of
votes cast in a plebiscite by all voters residing in the provinces and cities affected, but
R.A. 6734 says by a majority or votes cast by the constituent units in a plebiscite and
only those provinces and cities where a majority of votes cast in favor of the Organic Act
shall be included in the Autonomous Region. R.A. 6734 thus conflicts the Constitution
4)
R. A. 6734 includes provinces and cities which do not have the same
cultural and historical heritage and other relevant characteristics needed for admission
to the ARMM
5)
R. A. 6734 violates constitutional guarantee on freedom of exercise of
religion as some its provisions run counter to the Koran
6)
The creation of an Oversight Committee to supervise the transfer of power
to the ARMM is contrary to the constitutional mandate that the creation of the
autonomous region hinges solely on the result of the plebiscite
7)
R. A. 6734 says that only the provinces and cities voting favorably in
such plebiscite shall be included in the ARMM. The provinces and cities which in the
plebiscite do not vote for inclusion in the Autonomous Region shall remain in the
existing administrative regions: Provided however, that the President may, by
administrative determination, merge the existing regions. This provision, Abbas claims,
is contrary to the Constitutional mandate 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 with the local government
code and subject to approval by a majority of the votes cast in a plebiscite in the units
directly affected. (Art. 10, Sec. 10, 1987 Constitution)
Held: Abbas is wrong. Reasons:
1)
R. A. 6734 as an enactment of Congress, is superior to the Tripoli
Agreement, being a subsequent law to the Tripoli Agreement (though in my opinion it
wouldnt matter if R. A. 6734 was prior to the Tripoli Agreement)
2)
The transitory provisions of R. A. 6734 does provide for a plebiscite (1
guess nobody reads the transitory provisions)
3)
The framers of the Constitution must have intended that the majority of
votes must come from each of the constituent units and not all the votes of the
provinces and cities (I couldnt understand how the justices arrived at this conclusion)
4)
It is not for the Court to decide on the wisdom of the law concerning the
inclusion of provinces and cities which Abbas claims should not be included in a
plebiscite
5)
There is no actual controversy yet as to any violation of freedom of
religion, only a potential one
6)
The creation of an Oversight Committee is merely procedural and in fact
will aid in the timely creation of the ARMM
7)
The power of the President to merge administrative regions is inherent in
his power of general supervision over local governments. Besides, administrative
regions are not territorial or political regions. Examples of administrative regions are
Regions I to XII and the NCR
c. 2 Chiongbian v. Orbos, 245 SCRA 253
Facts: In 1990, President Aquino issued E. O. No. 439 wherein she picked
certain provinces and cities, some of which did not participate in the inclusion to the
ARMM, to the reorganized to new regions (e.g. Misamis Occidental, which did not
participate in the ARMM plebiscite, was transferred from Region X to Region XI).
Aquino issued said E. O. pursuant ant R. A. 6734, which says: That only the
provinces and cities voting favorably in suitable plebiscites shall be included in the
ARMM. The provinces and cities which plebiscite no vote for inclusion in the
Autonomous Region shall remain in the existing administrative regions. Provided
however, that the President may, by administrative determination, merge existing
regions. James Chiongbian, a Sultan Kudarat congressman, filed a certiorari prohibition
to protest the E. O., claiming that President Aquino had no power to reorganize
administrative regions because said provision in R. A. 6734 1) also states that
provinces, cities which in the plebiscite do not vote for inclusion in the Autonomous
Region shall remain the existing administrative regions 2) the Constitution does not
expressly provide the President the power to merge administrative regions; in fact Art.
10, Sec. 10 of the Constitution (see II of your outline) prohibits this and 3) even granting
that the President is allowed to merge administrative regions, there is law setting
standard on how it is to be done.
Held: Chiongbian is wrong. Reasons:
1) The sentence shall remain in the existing administrative regions, is further
qualify by the phrase, Provided however that the President may, by
administration determination merge the existing regions.
2) Past legislation, particularly R. A. 5345 issued in 1968, authorized the
President the help of a Commission on Reorganization, to reorganize the
different example departments including administrative regions. This shows
that traditional power to reorganize administrative regions has always been
lodged in the President
3) The standard is found in R. A. 5345 which states to promote simplicity,
economic efficiency in the government to enable it to pursue programs
of the 1987 Constitution (See 11-1). Finally petitioner claims the CAR will interfere with
the local autonomy of individual cities and provinces in general.
Held: Cordillera Board Coalition is wrong. Reasons:
1. The presumption of constitutionality of laws shall be applied in the case. E. O.
220 was actually envisioned to consolidate and coordinate the delivery of services of
line departments and agencies of the National Government in the areas covered by the
CAR as a step preparatory to the grant of autonomy to the Cordillera. It was not
intended to preempt Congress
2. CAR is not a public corporation or a territorial or political subdivision. It is in the
same genre as an administrative region for the purpose of coordinating the planning
and implementation of program and services in the covered areas. Thus no new
territorial or political subdivision was created or merged with another.
3. Local autonomy is administrative autonomy. In the case of CAR and Muslim
Mindanao, they are granted both administrative and political autonomy. Petitioner has
failed to show specifically how the creation of administrative regions will interfere with
local autonomy.
d. 3 E.O. 459 dated May 17, 1991
This E. O. is entitled Devolving to the Autonomous Region Government of the
Autonomous region in Muslim Mindanao Certain Powers of the DECS, the Control and
Supervision Over Its Offices in the Region and for other Offices.
The E. O. aims to implement Sec. 1, Article XV of R. A. 6734 which states that,
The Autonomous Region shall establish, maintain and support a complete and
integrated system of quality education and adopt an educational framework that is
meaningful, relevant and responsive to the needs, aspirations and ideals of the people
in the region.
To this end, the Regional Government is made responsible for the regional
educational framework of the ARMM, such as formulating and implementing programs
to improve education in general in the region.
E. Read R. A. 7901, dated Feb. 23, 1995 (Creating the CARAGA Administrative
Region)
This Act is entitled An Act Creating Region 13 to be known as the CARAGA
Administrative Region, and For Other Purposes. It consists of the provinces of Agusan
del Norte, Agusan del Sur, Surigao del Norte, Surigao del Sur and the cities of Butuan
and Surigao. The Act also transfers Sultan Kudarat to Region 11.
5. Fiscal autonomy Local government have the power to create their own sources of
revenue in addition to their equitable share in the national taxes released by the national
government, as well as the power to the allocate their resources in accordance with
their own priorities.
g. 1 Malonzo, et, al v. Zamora, et, al 311 SCRA 224
NOTE: Dates and peso figures are crucial to this case.
Facts: In 1994, the Sangguniang Panlungsod of Caloocan City issued Ordinance
No. 0168, authorizing Caloocan City mayor Macario Asistio Jr. to initiate expropriation
proceedings for lot 26 of the Maysilo Estate owned by the CLT Realty Development
Corp. An amount of P39, 352,047.75 was appropriated for this purpose. CLT however
countered with an interpleaded and prayer for TRO on August 6, 1997, on the ground
that Maysilo estate actually straddled both Caloocan City and the municipality of
Malabon; therefore the Caloocan City and Malabon municipal governments should be
restrained and CLT must interplead and litigate among themselves their conflicting
rights to claim such taxes.
In the meantime, the voluntary sale of the CLT property failed to push through so
the city government field a suit for eminent domain against CLT on March 23, 1998.
Some months afterwards, Rey Malonzo became mayor of Caloocan City. The
expropriation of the CLT property was then declared discontinued, thus the
appropriation of P50M for the budgetary item Expropriation of properties could now be
reverted for use in supplement budget. Ordinance No. 0254 was then passed
appropriating an amount of P39, 343,028.00 for the immediate repair of offices and
hiring of additional personnel.
Because of this, the office of the President (OP), acting on an administrative
complaint filed against Malonzo et. al., were adjudged guilty of misconduct and meted
the penalty of suspension. Malonzos refuted the decision, claiming that 1) the
interpleader filed by CLT was an unavoidable discontinuance of the expropriation
project; thus the amount of P39, 352,047.00 could be reverted into savings and 2) said
amount was could be denominated as Expropriation of Properties and classified under
Current Operating Expenditures. The OP countered that the amount of P39,
352,047.75 was a capital outlay that must be spent for the project it is intended for, thus
under Sec. 322 of the LGC it could not be reverted into savings for another use 2) the
filling of the interpleader could not be considered as an unavoidable discontinuance
since months after the interpleader, the Caloocan City government even filed an
expropriation case for the CLT property 3) The Sangguniang Panlungsod, at the time of
passing Ordinance No. 0254 did not adopt new or updated rules of procedure for the
current year; this was shown by the hurried passage in one day of the said ordinance
and 4) the appropriation of P50M for Expropriation of Properties actually did not exist
this was merely a subterfuge by Malonzo to dip his hands into the P39, 352. 017.75
intended for the CLT property expropriation project.
Held: Malonzo is correct. Reasons:
1) During the oral arguments and pleadings, it was clear that the amount of
P39, 352, 017.75 and whether it was a capital outlay or continuing appropriation was
not the issue; rather the issue was the budgetary item Expropriation of Properties
wherein the amount of P50M was appropriated for said use but was later discontinued,
and later on, an amount of P39, 313, 028.00 from the P50M was appropriated for office
repair and other miscellaneous expenses. Malonzos explanation that the P50M was not
intended for the purchase of CLT property but for expenses incidental to expropriation,
such as relocation of squatters, appraisal fee, etc. was believed by the Court. (So what
happened to the P39, 352, 047.75, if Malonzos explanation is to be believed? Justice
Kapunan and 2 others dissented, believing the OPs argument that there was actually
no P50M existing to fund the Expropriation of Properties item. In fact, Malonzo used
the nonexistent P50M appropriation as a cover-up to illegally spend the P32, 352,
047.75 for repair of offices and hiring of personnel. Can you say kickback?)
2) The failure to adopt new or updated rules of procedure of the Sangguniang
Panlungsod as mandated by Sec. 50 and 52 of the LGC is not intended to paralyze said
Sanggunian from doing its job. An interpretation of Sec. 50 and 52 of the LGC that will
avoid inconvenience and absurdity must be adopted, thus the OPs contention is
mistaken.
g. 2 Sec. 1, Chapter 1, Title XII, E. O. 292
Declaration of policy. The State shall ensure the autonomy of local
governments. For this purpose, it shall provide for a more responsive and accountable
local government structure instituted through a system of decentralization. The
allocation of powers and resources to loose government units shall be promoted and
inter-local government grouping, consolidation a coordination of resources shall be
encouraged. The state shall guarantee the local government units their just share in
national taxes and their equitable shares in proceeds from the use natural resources,
and afford them wider latitude for resource generation.
g. 3 Pimentel v. Aguirre, G. R. No. 132988, July 19, 2000
Facts: In 1997, President Ramos issued A. O. No. 372 which caught the ire of
Senator Aquilino Pimentel because of certain 2 provisions which state 1) All government
departments and agencies, including state universities and colleges, governmentowned and controlled corporation and local government units will identify and implement
measures in FY 1998 that will reduce total expenditures for the year by at least 25% of
authorized regular appropriation for non-personal service items, along the following
suggested areas and 2) Pending of assessment and evaluation of the Development
Budget Coordinating Committee of the emergency fiscal situation, the amount
equivalent to 10% of the Internal Revenue Allotment (IRA) to LGUs shall be withheld.
Pimentel claims that both provisions do not comply with Section 284 of LGC, which
provides for the 4 requisites before the President may interfere in local fiscal matters 1)
an unmanaged public sector deficit of the national government 2) consultations with the
presiding officers of the Senate and the House of Representatives and the presidents of
various local leagues 3) the corresponding recommendation of the secretaries of the
DOF, DILG and DBM and 4) any adjustment in the allotment shall in no case be less
than 30% of the collection of national internal revenue taxes of the third fiscal year
preceding the current one. Specially, Pimentel claims that there was no showing that
there was actually an unmanaged public sector deficit and that there was no
consultations conducted with the different leagues of local governments.
the central government, even though they live in states or provinces. The central
government has direct authority over the people concerning powers granted to it in the
constitution.
III. CREATION AND ABOLITION OF MUNICIPAL CORPORATION
Sec. 6, LGC: Authority to create Local Government Units. A local government
unit may be created divided, merged, abolished or its boundaries substantially altered
either by law enacted by Congress in the case of a province, city, municipality or any
other political subdivision of by ordinance passed by the Sangguniang Panlalawigan or
Sangguniang Panlungsod concerned in the case of a barangay located within its
territorial jurisdiction, subject to such limitations and requirements prescribed in this
Code.
A. Requisites for creation of Local Government Units
1. Income. It must be sufficient based on acceptable standards, to provide for all
essential government facilities and services and special functions commensurate with
the size of its population, as expected of the LGU concerned.
2. Population. It shall be determined as the total number of inhabitants of the
within the territorial jurisdiction of the LGU concerned.
3. Land Area. It must be contiguous unless it comprises 2 or more islands or is
separated by an LGU independent of the other properly identified by metes and bounds
with technical descriptions and sufficient to provide for such basic services and facilities
to meet the requirements of its populace.
Compliance with the foregoing indicators shall be arrested by the Department of
Finance, the NSO and the Land Management Bureau of the DENR.
B. Decided cases:
b. 1 Pelaez V. Auditor General, 15 SCRA 569
Facts: In 1964, President Macapagal issued several EOs creating 33 new
municipalities, mainly in Northern Luzon and Mindanao. The President based his power
from Sec. 68 of the Revised Penal Code of 1917. Vice President Emmanuel Pelaez filed
a petition for writ of prohibition with preliminary injunction, against the Auditor General,
restraining him from passing in audit any expenditure of public funds in implementation
of said executive order and/or any disbursement by said municipalities.
Pelaez contends that: 1) Sec 68 of the Revised Administration Code has been
impliedly repealed by R.A 2370, the Barrio Charter Act. 2) Sec. 68 is an undue
delegation of legislative power to the President and 3) Sec. 68 can allow the president
to interfere in local government affairs.
Held: Pelaez is correct. Reasons:
1. The Barrio Charter Act states that barrios may not be created nor their
boundaries altered or their names changed except by act of Congress of the
corresponding municipal board upon petition of the majority of voters in the areas
excludes the waters over which the political unit has control. In other words, Negros del
Norte failed to meet the required land area of 3,500 sq. km for it to become a province.
b. 3 Paredes v. Executive Secretary 128 SCRA 6
Facts: By virtue of B.P. Blg 56, certain barangays in the municipality of Mayoyao,
Ifugao held a plebiscite to determine whether they want to constitute themselves into
the new municipality of Aguinaldo. Governor Zosimo Paredes et. al. however claimed
that the rest of the barangays on Mayoyao should be allowed to participate in the
plebiscite by virtue of Art. XI, Sec of the 1973 Constitution as the other barangays are
also affected by the creation of the municipality of Aguinaldo.
Held: Paredes is wrong. Presumption of constitutionality should be applied in this
case. B.P. Blg. 56 is a reflection of local autonomy on the part of the barangay wanting
to constituent themselves into a new municipality. Said barangays should be given
leeway in becoming self-reliant communities. Moreover, the people in said barangays
are the ones who will constitute the new municipality of Aguinaldo, not the other
barangays of Mayoyao excluded from B.P. Blg. 56
b. 4 Mun. of Candijay, Bohol v. Ca 251 SCRA 182
Facts: The municipality of Candijay petitioned the RTC of Tagbilaran, Bohol,
claiming that its boundary line actually covered barrio Pagahat, since the municipality of
Alicia claims to have current territorial jurisdiction over said barrio. The RTC awarded
Pagahat to Candijay Alicia appealed to the Court of Appeals. The CA ruled in favor of
Alicia on the grounds that 1) applying the rule of equiponderance of evidence (a
principle in Civil Procedure) with Candijay as plaintiff and Alicia as defendant in the
lower court, the court must rule in favor of the defendant. The equiponderance of
evidence rule states: Where the scale shall stand upon equipoise and there is nothing
in the evidence which shall incline it to one side or the other, the court will find for the
defendant. Under said principle, the plaintiff must rely on the strength of his evidence
and not on the weakness of defendants claim. Even if the evidence of the plaintiff may
be stronger than that of the defendant, there is no preponderance of evidence on his
side if such evidence is insufficient in itself to establish his cause of action. In this case,
both municipalities failed to satisfactorily back their claims that they owned barrio
Pagahat: and 2) if Candijays boundary line claim was true, then not only would they
claim Pagahat but also other certain barrios as well, which would as a result, certainly
expand Candijays territory far beyond than what the law allows her, Candijay petitioned
is review on certiorari with the SC, claiming that 1) the CA misapplied the
equiponderance of evidence rule and 2) the municipality of Alicia had no juridical
personality, having been created under avoid E.O. ( E.O. No.265) since Sec. 68 of the
RAC of 1917 from which the said E.O. derived its authority, was declared
unconstitutional in Pelaez v. Audition General (See III-b 1).
Held: The Municipality of Candijay is incorrect Reasons:
1. The SC sees no need in reviewing the equiponderance rule as it was not arrived
whimsically or capriciously by the CA
2. The Municipality of Alicia was created by virtue of E.O. 265 in 1949. 16 years late
when Pelaez v. Auditor General was promulgated. And yet even after, various
government acts, most notably the recognition by the 1987 Constitution of Alicia as one
of the 20 municipalities of the Third District of Bohol, indicate the States recognition and
acknowledgement of the existence thereof. Alicia therefore, can claim the benefits of
Sec. 442 (d) of the LGC of 1991 which states Municipal District organized pursuant to
presidential issuances and E.O. and which have their respective set of municipal
officials holding officials holding office at the time of the effectivity of the code shall
henceforth be considered as regular municipalities. Sec. 442 (d) is therefore a curative
law in favor of Alicia. The objection against it being a municipal corporation should have
been done before the LGC was enacted in 1991.
b. 5 Municipality of Jimenez v. Baz, Jr. 265 SCRA 182
NOTE: Dates in this case are important because essentially Jimenez lost on
account of the slow wheels of justice
Facts: In 1949, President Quirino issued E.O. 258, creating the municipality of
Sinacaban in the Province of Misamis Occidental. In 1988 by virtue of said E.O.
Sinacaban filed a claim with the provincial Board of Misamis Occidental against the
municipality of Jimenez territorial possession of about 5 barrios. Jimenez in its reply with
the provincial Board that same year and later on with the RTC in 1990, said that
Sinacaban had no juridical personality to file a suit because it was created under a void
E.O. as promulgated in Pelaez Auditor General and 2) the disputed barrios belong to
Jimenez since in 1950 the municipalities entered into an agreement duly approved by
the Provincial Board of Misamis Occidental back then which recognized Jimenezs
jurisdiction over the disputed barrio in 1992, the RTC ruled in favor of Sinacaban using
as its basis the curative benefits of Sec. 2 of the LGC of 1991. Angrily, Jimenez added
in its petition with the Supreme Court the RTCs decision was null and void because it
failed to decide the case within one year mandated by the LGC of 1983 and the
Constitution.
Held: Jimenez is incorrect Reasons:
1. Sinacaban can claim the benefits of Sec.442 (d) of the LGC of 1991, since
various government acts through the years after the Pelaez case of 1965 indicate the
recognition by the years after the Pelaez case 1965 indicate the recognition by the state
of the municipality of Sinacaban, most notably when the 1987 Constitution recognized
Sinacaban as part of the 2nd District of Misamis Occidental.
2. Whatever agreement Sinacaban and Jimenez entered into 1950 must still
conform with the territorial metes and bounds set forth in E.O. 258, otherwise the
agreement in void (A relocation survey was ordered but the results of the survey was
not stated in the case)
3. Even granting that the RTC was deliberately slow, its decision is not rendered
void. The only remedy left would be to file administrative sanctions against it.
b. 6 Mendenilla v. Onandia 5 SCRA 536
Facts: In 1954, the mayor of the municipality of Legaspi appointed Emilio
Mendenilla as Chief of Police. Then, in 1959, Congress passed R.A. 2234 converting
the municipality of Legaspi into the City of Legaspi R.A. 2234 provides that the position
of Chief of Police of the city of Legaspi is to be appointed by the President. Therefore,
when Jose Manuel Onandia was appointed by the President City Chief of Police,
Mendenilla assailed the legality of such a move, claiming that his position as chief of
police was not abolished when Legaspi was converted from a city to a municipality 2)
Under R.A. 557 his employment status as Chief of Police may not be abolished except
in the manner specified in R.A. 557 and 3) The Civil Service Law guarantees his
security of tenure.
Held: Mendenilla is incorrect Reasons:
1. The position of Chief of Police of a municipality is totally different from the position of
the Chief of Police of a city. Therefore, R.A. 2234 abolished the position of municipality
Chief of Police and replaced it with a city Chief of police. In support of this contention,
the Supreme Court cited Sec. 96, Article XVII of the charter which provides that the City
Mayor the Vice Mayor, etc. are allowed to continue in office upon the effectivity of the
charter until the expiration of their terms in office. Nowhere does it mention the Chief of
Police in the said list of officials. Expressio unius est exclusio alterius.
2. Notwithstanding both R.A. 557 and the Civil Service Law, it is within the legal
competence of Congress to enact R.A. 2234. Congress has the plenary power to make
laws, meaning its power to make any kind of law is, in theory, unlimited.
Quiz: If the municipality of a municipal judge is converted into a city, can the judge
continue to serve in the new city? Answer: Yes. A judge is not a municipal official. He
does not derive his power or his appointment from a city charter; he derives them from
the Constitution and other Laws.
b. 7 Mathay v. CA 320 SCRA 703
NOTE: Dont confuse CSU with CSC
Facts: During his term, Mayor Brigido Simon appointed 16 people to positions
in the Civil Service Unit (CSU) of the local government of Quezon City. Simons
authority to appoint was based upon P.D. 51. The Secretary of Justice rendered an
Opinion, stating that P.D. 51 was never published in the Gazette, therefore, conformably
with the Tanada v. Tuvera ruling P.D. 51 never became law at all. The Civil Service
Commission (CSC) thus ordered the revocation of all appointments in the CSU.
However, the effects of such revocation were temporarily cushioned when the city
council issued an ordinance creating the Department of Public Order and Safety
(DPOS). All present personnel of the CSU, the said ordinance stated are to be
absorbed into the DPOS.
However, the regular positions in the DPOS never got filled due to insufficient
number of said positions and lack of funds.
Simon and later on his successor, Mayor Ismael Mathay, remedied the
situation by offering the CSU personnel contractual appointment. When Mathay refused
to renew their appointments, the CSU personnel complained to the CSC. The CSC
replied by issuing resolutions ordering the CSU personnel reinstated. Mathay now
asserts that the CSC cannot order him to reinstate the said personnel as it is. In effect,
giving the appointing power he possesses, as city Mayor to the CSC.
Held: Mathay is correct. Reasons:
1) First of all, the law applicable is B.P. 337 or the old LGC and not the LGC of
1991 since the material events of the case took place during the time of the old LGC.
2) Under B.P. 337, the power to appoint rests in the local chief executive in the
case the Mayor. When the city council issued the ordinance allowing for the absorption
of CSU personnel into the DPOS, it specifically made use of the wordings Present
Personnel and not positions, thus the city council arrogated upon itself the appointing
power by dictating who shall occupy the DPOS positions. Even in the local government
level, the separation of powers must be respected.
3) The reasoning in no. 2 also applies to the CSC. The CSC claims that by virtue
of the ordinance enacted by the city council, the CSU personnel became regular
employees and such they have gained the protection of the Civil Service Law. Such
reasoning is wrong because in the first place the CSU never existed at all, thus they
were never part of the Civil Service to begin with. Thus when Simon and later on
Mathay offered them contractual appointments, they were at the mercy of the appointing
power of the said mayors, as they have the option not to renew their appointments
b. 8 Samson v. Aguirre, 315 SCRA 53
Facts: R.A. 8535 was signed into law creating the City of Novaliches out of 15
barangays in Quezon City. Quezon City councilor Moises Samson questioned the
constitutionality of said R.A. claiming that 1) certifications as to income, land area and
population of Novaliches were not presented during the deliberations that led to the
passage of R.A. 8535 2) a certification attesting to the fact that the mother LGU,
Quezon City, would not be adversely affected by the creation of Novaliches city in terms
of income, land area and population, was also not presented 3) a copy of the petition of
concerned barangays calling or the creation of City of Novaliches was not presented to
the Quezon City Council, as mandated by the Implementing Rules of the LGC, 1991
and 4) R.A. 8535 failed to specify the seat of government of the proposed City of
Novaliches as mandated by Sec. 11 (a) of the LGC, 1991.
Held: Samson is wrong. Reasons:
1. The presumption of constitutionally of laws shall be applied in this case,
meaning that Samson has burden of proof to show that R.A. 8535 was unconstitutional.
Samson did not present any proof that no certifications were presented during the
deliberations. And even granting that no certifications were indeed presented, the
representatives of the DOF, NSO, DENR and even Quezon City mayor Ismael Mathay
were present during the deliberations. The official statements attesting to the income,
land area and population of Novaliches could serve the certifications contemplated by
law
2. Mathay was present during the deliberation. If Quezon City would object to
the creation of the City of Novaliches, he would be the first representative to do so. But
he didnt.
Sanggunian Panlalawigan, all of whom shall likewise hold office unit their successors
shall have been elected in the next local election and qualified.
All qualified appointive officials and employees in the career service of the said
sub-provinces at the time of their conversion into regular provinces shall continue in
accordance with civil service law, rules and regulation.
C 1. Grino v. COMELEC, 213 SCRA 672
Facts: Pursuant to Sec. 462, LGC, a plebiscite to determine whether the subprovince of Guimaras (its mother province was Iloilo) wants to become a regular
province was held simultaneously with the May 11, 1992 elections. The participants in
the said plebiscite were the residents of Iloilo (except Iloilo city) and the 3 municipalities
of Guimaras. Surprisingly, the ballots issued in the said 3 municipalities did not provided
any space for the election of governor, vice-governor and the members of the
Sangguniang Panlalawigan of the province of Iloilo. LDP Iloilo governor-candidate
Simplicio Grino claims that the COMELEC erred in not allowing the said 3 municipalities
to vote for the provincial officials of Iloilo, since at the time of the plebiscite Guimaras
was still a sub-province of Iloilo. Grino says if Guimaras voted for regular
provincehood then there would have been no need for them at all to vote for the
provincial officials of Iloilo. But what if Guimaras votes to remain as a sub-province?
Should special election be held for the 3 municipalities so that they can vote for the
provincial official of Iloilo?
Held: Obviously, Grinos petition was rendered moot and academic when Guimaras
voted to become regular province. Besides its too late to undo what COMELEC has
done. If Guimaras did vote to remain as a sub province, Grinos petition would have
been meritorious.
D. Conversion of a component city into a highly urbanized city and
reclassification (implementing Rules and regulations, LGC).
* Art 12 Conversion of a component city into a highly urbanized city
a) Requisites for conversion. A component city shall not be converted into a
highly urbanized city unless the following requirements are present:
1. Income latest annual income of not less than P50M based on 1991 constant
prices, as certified by the city treasure. The annual income shall included the income
accruing to the general fund exclusive of special funds, transfers and non-recurring
income and
2. Population, which shall not be less than 200,000 inhabitants as certified by
NSO.
b) Procedure for conversion:
1. Resolution. The interested component city shall submit to the office of the
President a resolution of its Sanggunian adopted by a majority of all its members in a
meeting duly called for the purpose, and approved and endorsed by the city mayor.
Said resolution shall be accompanied by certifications as to income and population
these provincial officials have ceased to exercise any government jurisdiction and
authority over said city.
2. Regular annual income of a given city is substantial distinction for
classification. The revenue of a city would show whether or not it is capable of existence
and development as a relatively independent economic, social and political unit. Thus,
the equal protection of the laws in not violated.
3. Freedom of suffrage is not imperiled since the Constitution does not give the
city voter the right to participate in provincial elections for territorial reasons
4. The city of Mandaue came into existence. In 1969, the constitutional
requirement that the creation, alteration, etc. of a city, province, etc. is subject to a
plebiscite only came into being when the 1973 Constitution was enacted and therefore
cannot be applied retroactively.
d. 2 Tobias v. Abalos 239 SCRA 106
Facts: Robert Tobias, et. al. invoking their right as taxpayers and as residents of
Mandaluyong City, assailed the constitutionality of R.A. No. 7675, known as An act
Converting the City of Mandaluyong into a Highly urbanized city known as the City of
Mandaluyong. They cited, among others, Art. VIll, Sec. 49 of R.A. 7675, which provides
that As a highly urbanized city, the City of Mandaluyong shall have its own legislative
district with the first representative to be elected in the next national elections after the
passage of this Act. The remainder of the former legislative district of San
Juan/Mandaluyong shall become the new legislative district of San Juan with its first
representative to be elected at the same region Said provision Tobias claims is not
germane to the title of R.A. 7675 thus being contrary to the one title-one subject rule
since it creates a legislative district whereas the title expressly provides only for the
conversion of Mandaluyong into highly urbanized city. Also, Tobias, et. al. contend that
the people of san Juan should have been made to participate in the plebiscite as the
same involves a change in their legislative district.
Held: Tobias, et.al. are grossly erroneous Reasons:
1. The creation of a new legislative district is a natural logical consequence of its
conversion into a highly urbanized city.
2. The contention that the people of San Juan should have been made to
participate in the plebiscite on R.A. 7675 as the same involved a change in their
legislative district is benefit of merit. The reason is that the principle subject involved I
the plebiscite was the conversion of Mandaluyong into a highly urbanized city. The
matter of separate district representation was only ancillary thereto. Thus the
inhabitants of San Juan were properly excluded from the said plebiscite as they have
nothing to do with the changed in status of neighboring Mandaluyong. (This argument is
rather strange for me).
d.3 Miranda v. Aguirre 314 SCRA 603
Facts: On May 5, 1994 R.A. 7720 was passed converting the municipality of
Santiago, Isabel into an independent component city. On Feb 14, 1998 R.A. 8528 was
passed amending R.A. 7720 on 2 points: 1 Sec. 2 of R.A. 7720 is hereby amended by
deleting the words, an independent so that the municipality of Santiago will be
converted into a component city only and 2) the voters of Santiago could now vote
again for the provincial officials of the province of Isabela. Jose Miranda, the mayor of
Santiago and other petitioners assailed the constitutionality of R.A. 8528. He says that
said law lacks the provision requiring that the plebiscite be held for its ratification.
Alexander Aguirre, the Executive Secretary and other respondents on the other hand
countered that (1) Miranda et. al. had no standing to file their petition 2) the issue is a
political question and 3) R.A. 8528 did not created divide, etc or after any boundaries of
Santiago it merely reclassified Santiago from an independent component city into a
component city.
Held: Aguirre and his cohorts are gravely mistaken. Reasons:
1. Miranda had standing, he field the petition in his capacity as mayor of
Santiago.
2. The issue is justiciable, Petitioners assail the constitutionality of R.A. 8528,
since it runs contrary to article X, Sec 10 of the 1987 Constitution. The court has the
power to decide the constitutionality of any law.
3. The reclassification will downgrade Santiagos status from an independent
component city into a component city. Far reaching changes will then take place. Its
political independence will diminish. The city mayor will be placed under the
administrative supervision of the provincial governor. Ordinance and resolution passed
by the city council of Santiago will have to be reviewed by the Provincial Board of
Isabel. Taxes collected by the city would then be shared with the province. All these
changes merit the need of a plebiscite so that the people at Santiago can air their side
on the issue. Moreover, if a plebiscite can be held for the upgrading of an LGU, should
not a plebiscite be held for its downgrading as well?
NOTE: Mendozas strong dissent was anchored on Art. X Sec. 10 of the 1987
Constitution. Said section refers to alteration of boundaries of Santiago were
substantially altered nor any of its income, population or land area been radically
changes Santiago was neither recreated into another LGU nor abolished, much less its
boundaries alter. (This good justice is implying the reclassification was administrative in
nature.
E. Classification of provinces, cities and municipalities (Read E.O. 349)
This act is entitled providing for a new income classification of provinces, cities and
other municipalities Pertinent provisions include:
Sec. 1. Classification of provinces and cities. Provinces and cities except Manila and
Quezon City, which shall be considered as special class cities, are hereby divided into 6
main classes according to the annual average income they actually realized during the
last 4 calendar years immediately preceding as follows: a) First class P30M or more b)
Second class P20M-P30M; c) Third class P15M-P20M; d) Fourth class P10M-15M, e)
Fifth class P5M-10-M; f) Sixth class less than P5M
Sec. 2. Classification of Municipalities x x x according to the annual average income
they actually realized during the last 4 calendar years immediately preceding as follows;
a) First class, P15M or more b) second class, P10M-15M c) Third class, P5M-10M d)
fourth class P3M-P5M e) Fifth class, P1M-3M f) Sixth Class, less than P1M.
Sec. 3. Period of General Reclassification of Province, Cities and Municipalities.
Upon the effectivity of this E.O. and for each period of 4 consecutive calendar years
thereafter, the Secretary of Finance shall reclassify the all provinces, cities, except
Manila and Quezon City, Which shall remain as special class cities, and municipalities,
on the basis of the foregoing schedules of the average annual income of each province,
city or municipality derived during the last 4 consecutive calendar years immediately
such reclassification according to the provisions hereof.
Sec. 4. Definition of Terms. As used this E.O.
a. Annual Income revenues and receipts realized by provinces, cities and
municipalities from regular sources of the local general and infrastructure funds
including the internal revenue and specific tax allotments provided for in PDs 144 and
436, both as amended but exclusive of non-recurring receipt, such as other national
ads, grants, financial assistance, loan proceeds, sales of fixed assets and similar others
b. Average annual income- sum of the annual income- sum of the Annual Income
as herein defined actually obtained by a province, cities and municipalities.
Sec. 5 Use of income classification of provinces, cities, and municipalities. xxx as
basis for: a) Fixing of maximum tax ceiling imposable by the local government b)
Determination of statutory and administrative aids, Financial grants and other forms of
assistance to local government c) Establishment of salary scales and rates of
allowances per diems, and other emoluments that local government officials and
personnel may be entitled to d) Implementation of personnel policies on promotions,
transfers, details or secondment, and related matters at the local government levels e)
formulation and execution of local government budget policies and f) Determination of
the financial capability of local government units to undertake development programs
and priority projects
NOTE: There are 7 more sections, mainly on salaries and taxes- you know, ways
to put more money into the pocket of our bureaucrats
F. Settlement of boundary disputes( Sec. 118, LGC, Sec 15-19, IRR)
* Section 118. Judicial Responsibility for settlement of Boundary Dispute.
Boundary dispute between and among LGUs shall, as much as possible. Be settled
amicably. To this end:
a. Boundary disputes involving 2 or more barangays in the same city or
municipality shall be referred for settlement to the Sangguniang Panlungsod
Sangguniang Bayan concerned.
b. Boundary disputes involving 2 or more municipalities within the same province
shall be referred for settlement to the Sangguniang Panlalawigan concerned.
c. Boundary dispute involving municipalities or component cities of different
provinces shall be jointly referred for settlement to the Sangguniang of the province
concerned.
barangay dispute is a prejudicial question which must be resolved before any plebiscite
can be held and 2) Whether the plebiscite already conducted ratifying the creation of
Barangay Napico has rendered the issue as to it moot and academic.
Held: Cainta is correct. Reasons
1. Pasig cannot deny that there is a pending boundary dispute between her and
Cainta Surely, whether the area in controversy shall be decided as within the territorial
jurisdiction of the Municipality of Cainta or the City of the Pasig has material bearing to
the proposed barangay Karangalan and Napico. The importance of drawing with precise
strokes the territorial boundaries of an LGU cannot be overemphasized. The boundaries
must be clear for they define the limits of the territorial jurisdiction of an LGU. It can
legitimately exercise powers of government only within the limits of its territorial
jurisdiction. Beyond these limits, its acts are ultra vires. Needless to state, any
uncertainty in the boundaries of LGUs will sow costly conflicts in the exercise of
government powers which will ultimately the peoples welfare.
2. As was done before in Tan v. COMELEC, the plebiscite already conducted for
the creation of Barangay Napico can be annulled and set aside.
Held: SC held that the plebiscite should be held in abeyance.
f. 2 DILG Opinion No. 161-1994 (still to search)
G. Naming of LGU naming of LGUs and public places, streets and structures
* Sec 13, LGC, Art 20-23, IRR
a. The Sangguniang Panlalawigan may in consultation with the Philippine
Historical Commission (PHC), change the name of the following within territorial
jurisdiction:
1. Component cities and municipalities upon the recommendation of the
Sangguniang concerned.
2. Provincial roads, boulevards, avenue, thoroughfares and bridges
3. Public vocational or technical school and other post-secondary and tertiary
schools
4. Provincial hospitals, health centers and other health facilities
5. Any other place or building owned by the provincial government.
b. The Sangguniang of highly urbanized cities and of component cities whose
charters prohibit their voters from voting for provincial electrical officials, hereinafter
referred to in this code as independent component cities may in consultation with the
PHC change the name of the following within its territorial jurisdiction:
1. City barangays, upon the recommendation of the Sangguniang barangay
concerned.
2-5 essentially the same as (a) nos. 2-5 above except only to those within its
territorial jurisdiction.
As used in this code the term devolution refers to the act by which the National
Government confers power and authority upon the various LGUs to perform specific
functions and responsibilities.
c. The devolution contemplated in this Code shall include the transfer to LGUs of
the records ,equipment, and other assets and personnel of national agencies and
offices corresponding to the develop powers, function and responsibilities personnel of
said national agencies or office shall be absorb by the local government units to which
they belong or in whose areas they are assigned to the extend that it is administratively
viable as determined by the said oversight community Provided, That the right accorded
to such personnel pursuant to civil service law, rules of similar regulation shall not be
impaired Provided for their, That regional directors who are career service executed
officers and other officers of similar rank in the said regional offices who cannot be
absorbed by the LGU shall be retained by the National Government, without any
revolution of rank, salary or tenure.
h. 2 Badua v. Cordillera Bodong Administration, 94 SCRA 10
Facts: In 1996.David Quema as the owner of 2 parcels of land in Lacaga,
Lumaba, Villaviciosa, Abra mortgaged said parcels of land of 6,000 to Dra. Erotida
Valera. He was able to redeem the land of 22 years later, long after Dra. Valera had
already died. He allegedly was able to pay the redemption price of Dra. Valeras heir.
Spouses Leonor and Rosa Badua alleged however that Dra. Valera sold the land to her
while she was still alive. However, Rosa could not produce the deed of sale because it
was allegedly in the possession of Vice-governor Benesa.
As Quema was prevented by Rosa from cultivating the land, Quema, instead of
filling a case with the provincial courts, filed it instead with the Maeng Tribal Court of the
Cordillera Bondong Administration (CBA) In 1989, The tribal court rule in favor of
Quema when the Baduas refused to vacate the subject land, they (the Baduas)
received a warning order from the Cordillera Peoples Liberation Army. The Baduas the
felid a special and extraordinary relief with the SC, which was duly treated as a petition
for certiorari and prohibition, questioning the jurisdiction and legal personality of the
Maeng Tribal Court, the CBA and the CPLA.
Held: The petition is that the Cordillera Autonomous Region (CAR) never came
into legal existence as a consequence of the Ordillo v. COMELIC ruling. As a result, the
Maeng Tribal Court was not constituted into an advisory or special court under R.
A.6766. Instead, it is just an ordinary tribal court with mere advisory and conciliatory
power to make peace, settle and compromise. Such courts are not considered part of
Philippine judicial system. By analogy to the pangkat or conciliatory panels created
under P.D.1508, if the Badua had failed to seasonably repudiate the Maeng Tribal
Courts decision, said decision would have had the force and effect of a final judgment
in court. As was shown, the Baduas did file a timely petition with the SC.
1. Constitution of a state
2. Statutes of a state including a) those applicable to all municipal corporation or
to the class to which the particular municipal corporation belongs and b) special act of
the legislature, as far as authorized, applicable to the particular municipal corporation.
3. The charter
4. Doctrine of inherent right of self-government with respect to certain municipal
matters (applicable to states which adhere to it).
B. Classification of Power
1.) Express, implied and inherent power
a. Express - those granted in express word by the special charter or the
general law under which corporation is organized.
b. Implied- those granted which arise by natural implication from the
granted of express power or by necessary inference from the purposes or function of
the corporation (e.g. an ordinance to prevent fires necessarily carries with it the
authority to chase fire trunks).
c. Inherent-those which are necessary and inseparable from every
corporation, and which come into existence as a matter of course as soon as an MC is
created they are:
1. To have perpetual succession
2. To sue and be sued, implead, grant and receive by its corporation name
and other acts as a judicial person
3. To make by laws and ordinances for the government of the corporation.
4. To make and ordinance for the government of the corporation.
Note: Usually these so-called inherent powers are expressly provided in MCs charter.
2.) Legislative and executive powers
a. Legislative authority to make laws
b. Executive authority to enforce laws
NOTE: The test to determine what is legislative and what is administrative is
whether the ordinance is one making a new or one executing law already in existence.
The former is legislative; the latters executive.
3.) Intramural and extramural powers
1.) Intramural those exercised within the corporate limits of a municipal
corporation.
2.) Extramural those exercised without like those given for the protection of
water supply, prevention of Nuisance, and also for police purposes.
4.) Governmental and municipal powers
1.) Governmental those exercised by the corporation in administering the
powers of the state and promoting the public welfare within. They include those which
are legislative, judicial, public and political. Specific examples are: Administration of
justice, police power; eminent domain; promotes public education; fire prevention and
safety; and all other powers to be exercised by the MC as an agent the State, for the
benefit of the public or of the exercise of which the corporation receives consideration.
2.) Municipal those exercised for the specified benefits and advantage of the
urban community and they include those which are ministerial, preemptory, private and
corporate plans of which the corporation receives no compensation.
5.) mandatory and discretionary powers
a.) Mandatory those the exercise of which are required of municipal
corporations.
b.) Discretionary those which the corporations may perform or not
depending upon own judgment and discretion.
III. Kinds of Powers
A. Police Power (General Welfare Clause) and the limitations on the
exercise (Sec. 16, LGC)
1. Police Power the power to prescribe regulations to promote health, moral,
peace, education, good order or safety and general welfare of the people. It is the most
essential insistent and illimitable of power. It is elastic and must be responsive to
various social conditions. Police power is inherent in the State but not in municipal
corporations. In order that a municipality corporation may exercise police power, there
must be a legislative grant which necessarily also sets limits for the exercise of the
power.
2. General Welfare Clause (Sec. 16, LGC) Every LGU shall exercise the power
expressly granted, those necessarily implied there from, as well as the powers
necessary, appropriated incidental for its efficient and effective governance, and those
which are essential to the promotion of general welfare. Within their respective territorial
jurisdictions, LGUs shall ensure and support among other things, he preservation and
enrichment of culture, promote health and safety, enhance the right people to balanced
ecology, encourage and support the development of appropriate the self-reliant
scientific and technological capabilities, improve public morals, enhance economic
prosperity and social justice, promote full employment among their residents, maintain
peace and order and preserve the comfort and convenience of their inhabitant.
3. Limitations on the exercise - a police power measure may be struck down as
invalid if it does not meet tests a.) The interest of the public generally, as distinguish
from those of a particular class, requires the exercise of the police power and b.) The
means employed are reasonably necessary for the accomplishment of the purpose and
not unduly oppressive upon individuals.
1. Binay y Domingo 201 SCRA 508
Facts: On Sept 27, 1988, the Municipality of Makati, through its Council,
approved Resolution No. 60, which provided for a burial assistance program by the
office of the mayor. Said program aims to extend financial assistance of P500 to
bereaved families whose income does not exceed P2, 000. The Commission on Audit
(COA) disapproved Res. No. 60 on the grounds that the said resolution 1.) did not have
an obvious or real connection to the public safety, health, morals or general welfare in
order to be sustained as a legitimate exercise of police power; and 2.) said resolution
only benefits few individuals when it should benefit the inhabitants of the municipality as
a whole. Mayor Jejomar Binay now petitions the SC that the Resolution be declared a
valid exercise of the police power.
Held: The COA is wrong Reasons:
1. COA tried to redefine for itself the meaning of police power. Police power is
not capable of an exact definition. It is not limited to peace, order, morals and all the
crap but is broadened to deal with conditions which exists so as to bring out of them the
greatest welfare of the people by promoting public convenience or general prosperity,
and everything worthwhile for the preservation of comfort of the inhabitants of the
corporation. (wow)
2. COA is not attuned to the changing times. Public purpose is not
unconstitutional merely because it incidentally benefits a limited number of persons. The
drift is toward social welfare legislation geared towards state policies to provide
adequate social services, the promotion of the general welfare, social justice, as well as
human dignity and respect for human rights.
2. American Mail Line v. City of Basilan 2 SCRA 309
Facts: On Sept. 12, 1955, the City Council of Basilan City enacted Ordinance
No. 180, amending Title Iv, Ordinance No. 7, which read as follows: Article IV
Regulation of berthing, mooring, docking and anchoring at piers or wharves at any point
within the City of Basilan and for anchoring at any open bay, channel or any point within
the territorial waters of the City of Basilan. Ordinance No. 180 also added a new
paragraph as an amendment with read: Any foreign vessel engaged in otherwise trade
which may anchor at any open bay, channel or any loading point within the territorial
limits of the City of the City of Basilan for the purpose of unloading logs or passengers
and other cargoes shall pay an anchorage fee of centavo (P0.50) per registered
gross ton of the vessel for the first 24 hours or part of thereof and for succeeding hours
part thereof, provided that maximum charge shall not exceed P75 per day, irrespective
of the greater tonnage of shippage.
Several foreign shipping companies, including American Mail Lines questioned
the validity of such an ordinance with regards to the right of City of Basilan to impose
such a fee. The City of Basilan answered that heir power to enact such an ordinance is
based on a citys exercise of its revenue raising or of its police power. To support their
contention, Basilan presented their Charter (R.A. 288) which states: Sec. 14 General
Powers and Duties of the Council. Except as otherwise provided by law, and subject to
the conditions and limitations thereof, the Council, the Council shall have the following
legislative powers: a.) To levy and collects taxes for general and special purposes in
accordance with law x x x c) To enact ordinances for the maintenance and preservation
of peace and good morals x x x v) fix the charges to be paid by all watercraft at or using
public wharves, docks, levees, or landing places. Moreover, Basilan said the fees in
question are for a regulatory purpose, the reason being the island is a potential haven
for smugglers and other illegal activities (the understatement of the century). Who is
correct?
Held: American Mail Line is correct Reasons:
1. First of all, the phrase, in accordance with the law in Sec. 14 a.) of the Charter
means that the City of Basilan is not given a blanket taxation power.
lawbreakers and suspicious characters and to act as patrols for the protection of the
municipality, not exceeding one day in each week. Violation of said ordinance is
penalized by a fine not less than P100 or 3 months imprisonment or both. Pompeya
argues that the said ordinance violates the citizen provisional right to liberty.
Held: Pompeya is just plain lazy (in other words, Pompeya is wrong). Way back
during the feudal age, lords of manors have called upon their vassals to defend the very
land they till upon. Even up to the time remote towns and countries have made it
obligatory upon their citizens to defend their territory from felons. The ancient obligation
to assist in the protection of peace and good order of the community is still recognized
in all well-organized governments in the posse comitatus (power of the country).
Posse comitatus is in other words common law and Act 1309 is statutory recognition of
such common-law right. Overall, the State is simply exercising its police power.
7. Iloilo Cold Storage v. Municipal Council 24 Phil 471
Facts: The Municipal Council of Iloilo granted the Iloilo Ice Cold Storage
Company (ICS) authority to construct an ice cold storage plant in the city of Iloilo. Some
time later, residents within the vicinity of said plant complained of the smoke and fumes
emitted by the smokestacks of the said plant. The Municipal Council thus ordered the
ICS to elevate the subject smokestacks; otherwise the plant would be enforced to close
down. ICS replied that the Municipal Council has no power under the Municipal Code to
declare their plant as a nuisance. Only the counts may do so.
Held: ICS is correct Reasons:
1.) it is conceded that 39(j) of the Municipal code empowers the Municipal
Council to declare and abate nuisances, However, there is a distinction between a
nuisance per se and nuisance per accidens. The first refers to those which are
unquestionably and under all circumstances, nuisances. The second is well obviously,
the opposite of the first.
2.) The question now is whether the Municipal Council has the blanket authority
to declare anything as a nuisance. The court ruled in the negative, the reason being that
everything would be at the uncontrolled will of the local authorities, In order words, while
the Municipal Council has the power to declare and abate nuisance it does not have the
power to declares such nuisance as a fact and that it exists. Only the ordinary courts
can determine the fact of nuisance. The ice plant in question can be definitely said to be
not nuisance per se.
8. Technological developers, Inc. y CA 193 SCRA 147
Facts: Technology Developers Inc. (TDI) is a domestic private corporation
engaged in the manufacture and export of charcoal briquette. It received an order from
Acting Mayor Pablo Cruz ordering he full cessation of TDIs plant in Guyong Sta. Maria,
Bulacan. Also TDI Plant manager Armando Meneses was ordered to appear before the
said mayor and produce the following a.) Building permit b.) Mayors Permit c.) Region
III Pollution of Environment and Natural Resources Anti-Pollution Permit, and other
documents.
TDI was found to lack a Mayors Permit and the Region III-Pollution of
Environment and Natural Resources Anti-Pollution Permit. Without previous and
reasonable notice to TDI, Acting Mayor Cruz ordered the padlock of TDIs plant.
TDI was granted a writ of preliminary injunction against the Acting Mayors order.
Upon motion for reconsideration, Acting Mayor Cruz presented evidence that TDIs
plant produce hazardous fumes which endangered the lives of the people living nearby.
Based on the evidence presented, the trial court dissolved the writ. An appeal by TDI
with the CA proves fruitless. Thus, TDI sought relief with the SC.
Held: TDI's petition has no merit. The simple reason is that TDI failed to secure a
Mayors Permit and Region III-Pollution of Environment and natural Resources AntiPollution Permit. The Temporary Permit it received from the national Pollution Control
Commission has already expired.
9. US v. Toribio 15 Phil. 86
Facts: Act No. 1147 regulates the registration, branding and slaughter of cattle.
Its provisions state among others that 1.) no large cattle shall be slaughter or killed for
food at the municipal slaughterhouse except upon permit secured from the municipal
treasure and 2.) any person violating this Act shall be punished by line of up to P500 or
imprisonment of up to 6 months or both. Convicted under said Act, Luis Toribio insists
that he had not violated any law since. If you read the provision quite carefully, there
was no showing that the animal he slaughtered was committed inside a municipal
slaughterhouse and that thereof, any animal he slaughters elsewhere does not require a
permit from the municipal treasure.
Held Toribio is wrong. The act primarily seeks to protect large cattle of the
Philippines against them and to make easy the return and recovery of such cattle to
their proper owners when lost. Strayed or stolen therefore the act can also be
constructed as to require a permit for all slaughter of cattle whether in or out of a
municipal slaughterhouse. And if as a result, the language of the statue is fairly
susceptible of two or more constructions, that construction can be adopted which will tell
most to give effect to the manifest intent of the law maker and promote the object for
which the statue was enacted, and a construction should be rejected which will tend
most to tender abortive other provision of the statue. Thus, Toribios construction of the
law should not be adopted and be replaced instead with the omniscient SC.
Another reason for the adoption of the second construction is that it is more
attuned to the exercise of the police power of the state, in order to protect the
community from the lost of service of such animals by their slaughter by improvised
owners.
10. Solicitors Generally MMA No. 204 SCRA No. 837
Facts: On May 24, 1990 the Metropolitan Manila Authority (MMA) issued
ordinance No. 11 series of 1991 authorizing itself to detach the license plates of motor
vehicles for traffic violation was not among the sanction imposed by the Metro Manila
Commission under PD 1605 and was permitted only under the conditions laid down by
Letter of Instruction 43 in the case of stalled vehicles obstructing the public street. It was
there also observed that even confiscation of drivers licenses for traffic violations was
not directly prescribe by the degree nor was it allowed by the decree to be impose by
the commission
Months later, several complaints again proliferated all over metro Manila
concerning the confiscation of drivers licenses and license plates. Several officers
offered different defenses justifying the confiscation, the more popular once being that,
the confiscations were valid pursuant to ordinance no.7 series of 1988 and that the
Gonong decision should be interpreted to mean that only the confiscation of license
plates are prohibited. Director General Cesar Nazareno of the PNP even insisted that
his office has never authorized the removal of license plates of illegally parked vehicles
and has in fact, event the directed full compliance of the Gonong decision in
memorandum dated February 28, 1991.
On July 2, 1991, the SC issued a resolution asking the solicitor general and the
MMA to file their comments regarding the issue. The solicitor general involves the view
that ordinance no.11 is null and void for begin unrivalled exercise of the delegated
legislative power since PD 1605 does not permit and thus impliedly prohibits, the
removal of license plates and the confiscation of drivers license (Expresio unuis est
exclusion alterius). The MMA however, invokes EO 392 the law providing for MMAs
creation, which vested in it among others the responsibility of promulgating resolutions
and other is issuances of Metropolitan Wide Application, approval of a code of basic
services requiring coordination and the exercise of its role making powers. Also MMA
said that the ordinance cannot be attacked collaterally but only in a direct action
challenging its validity.
Held: The MMA is wrong. Reasons:
1) Considering the confusion over what law to follow regarding the confiscation,
with some officers even declaring that Gonong decision was wrong the SC decided to
rule on the issue squarely despite the fact that ordinance No.11 was not challenged in a
direct action. Besides, the SC squarely said, said rule concerning direct actions is not
an inflexible one.
2) As to the merits, the SC admits that the power to promulgate measures to
promote the comfort and convenience of the public and to alleviate the worsening traffic
problems due in a large part to stimulation of traffic rules (E.O. 392 and the general
welfare clause LGC) is valid delegation of legislative power. But the real issue is not
the validity of the delegation of legislative power. It is the validity of such exercise of
delegated power. A municipal ordinance to be valid
a) Must not contravene the Constitution
b) Must not be unfair or oppressive
c) Must not be partial or discriminatory
d) Must not prohibit but may regulate trade and
e) Must be general and consistent with public policy.
11. Acebedo Optical Co. Inc. v CA 329 SCRA 314
Facts: Acebedo Optical Co. applied with the office of the City Mayor Iligan for a
business permit. City Mayor Camilo Cabili issued the said permit but subject to the
following conditions.
1) Since it is a corporation, Acebedo cannot put up an optical clinic but only an
optical store.
2) Acebedo cannot examine and/or prescribe reading and similar optical glasses
for patients, because these are function of optical clinics.
3) Acebedo cannot sell reading and similar eye glasses without a prescription
having been first made by an independent optometrist (not its employee) or
independent optical clinic. Acebedo can only sell directly to the public without need of
prescriptions, Ray ban and similar eye glasses.
4) Acebedo cannot advertise optical lenses and eyeglasses but can advertise
Ray ban and similar glasses and frames.
5) Acebedo is allowed to grind glasses but only upon the prescriptions of an
independent optometrist.
The Samahan ng Optometrist ng Pilipinas (SOPI) however, ledged a complaint against
Acebedo, alleging that Acebedo violated all the conditions impose on its business
permit. Acebedo in response, protested the conditions impose by the city mayor stating
that
1) The conditions impose are beyond what the city mayor can impose within his
authority as they have no basis in any law or ordinance and
2) Acebedos acceptance of the business permit does not stop it from
challenging the said conditions as ultra vires since a permit is not a binding
contract.
Held: Acebedo is correct. Reason:
1) The court has already ruled in SOPI v. Acebedo International that in the
absence of a law prohibiting the hiring by corporation of optometrist, there is
then no prohibition against the hiring by corporations of optometrist
(this is in reference to the No.3 conditions of the business permit). The current
optometry law (R.A. 8050) contains no such prohibitions,
2) a license of contract is not a contract between the sovereignty and the
licensee or permitted and is not a property in the constitutional sense. A
license is rather in the nature of a special privilege of permission or authority
to do what is within its term. It is not anyway vested permanent or absolute.
Therefore the business permit in the case at bar not being a contract
Acebedo is not stopped from challenging the conditions therein as ultra vires.
3) Overall, the primary purpose of the optometry law in regulating the practice of
optometry to insure that opt metrical services are too be rendered by
competent and licensed person in order protect the health and physical
welfare of the people from the dangers endangered by unlicensed practice.
Such purpose may be fully accomplished although the person rendering the
service is employed by a corporation.
NOTE: In effect, the only condition challenged by Acebedo was condition No. 3
NOTE: Is optometry a profession or a mechanical art? Both the majority (as penned by
just Purisima) and dissenting opinions (as penned by justice Vitug) could not agree on
this question.
Distinction is important because if optometry is a profession, then the optometry,
Law should be reexamined as there is the danger that corporation , in hiring optometrist,
may be perceived as engaged in the practice of optometry is a profession, them
corporation might compromise the professional accountability of optometry as the
motivation to sell eyeglasses may prevail over professional ethics. For instance, the
control exercised by corporations over optometrist hired as employees might force said
optometrist in sacrificing their professional opinion for the for the sake of selling the
corporations products (All these arguments about optometry being a profession is BS.
The SOPI is just afraid of the competition offered by corporation, but the Court, in its
infinite wisdom not touch on that)
B) Eminent Domain
1. Requisites for the Exercise
*Sec. 19, LGC Eminent Domain, An LGU may, through its chief executive,
and acting pursuant to an ordinance, exercise the power of eminent domain for public
use or purpose or welfare for the benefits of the poor and landless upon payment of just
compensation pursuant to the provision of the Constitution and pertinent laws: provided
however that the power of eminent domain may not be exercised unless a valid and
definite offering has been previously made to the owner and such offer was not
accepted. Provided further , that the LGU may immediately take possession of the
property upon the filing of expropriation proceeding and upon making a deposit with the
proper court of at least 15% of the fair market value of the property based on the
current tax declaration of the property to be expropriated. Provided finally that the
amount to be paid for the expropriated property shall be determined by the proper court
based on the fair market value at the time of the taking of the property.
*Art 32.IRR Eminent Domain when exercise a) an LGU may through its chief
executive and acting pursuant to an ordinance exercise the power of eminent domain
for public use purpose welfare of the poor and landless upon payment of just
compensation, pursuant to the provision the Constitution and pertinent laws b) The
power of eminent domain may not be exercised unless a valid and definite offer has
been previously made to the owner and such offer was not accepted.
*Art, 36 IRR a) if the LGU fails to acquire private property for public use
purpose or welfare through purchase, LGU may expropriate said property through a
resolution of the Sangguniang authorizing its chief executive to initiate expropriation
proceeding b) The local chief executive shall cause the provincial, city or municipal
attorney concern or: in his absence , the provincial or city prosecutor to file expropriation
proceeding in the proper court in accordance with rule of Court and other pertinent laws
c) The LGU may immediately take possession of the property upon the filing
expropriation proceeding and upon making a deposit with the proper court of at least
15% of the fair market value of the property based on the current tax declaration of the
property to be expropriated
*Art 37, IRR Payment. The amount to be paid for the expropriated property
shall determined by the proper court based on the fair market value at the time of the
taking of the property.
*Rule 67, 1997 Rules of Civil Procedure
This rule consists of 14 sections enumerating the procedure to be followed in
eminent domain. Briefly the rule enumerates the following section: 1) The Complaint 2)
entry of plaintiff depositing value with National or provincial Treasure (but this section
No. 2 has been repealed by P.D. No. 42) 3) defenses and objection 4) order of
In compliance with said Order. NAPOCOR deposited the sum of P23, 180,828.00
with the PNB.
Two of the defendants however, filled motions for reconsideration. The first one
filled by Jesus, Fernando, Michael and Ma. Cristina Gonzaga (the Gonzaga Four)
alleged that the provisional value of the property involved therein has been set much to
low, the reason being that the expropriation of their areas would render the remaining
portion practically at a loss considering that the presence of the transmission lines will
pose a danger to the inhabitants in the area as well as destroy the marketability of the
remaining potion after expropriation. Moreover, the subject areas are located near
several posh subdivisions. The second one filled by Louis Gonzaga, et, al. sought
for a re-evaluation of the areas owned by them as said areas were contiguous to the
Gonzaga Four and were thus affected by the same condition.
The RTC granted their motion and the NAPOCOR, in compliance, deposited the
additional amount of P22,866,860,00 with the PNB.
On July 18, 1990 the RTC Judge Enrique Jocson issued another Order
increasing the amounts to be received as compensation on the part of the Gonzaga
Four, Louis Gonzaga and 3 other defendants amounts. NAPOCOR in a response filled
a complaint of grave abuse of discretion against the said judge, saying the increases he
ordered are excessive and unconscionable. Nevertheless, due to the urgent need to
complete the interconnection project as soon as possible, NAPOCOR deposited the
order additional amounts. Still despite doing so, NAPOCOR claimed the Judge
stubbornly refused to issue the writ of possession.
Did the Judge act with grave abuse of discretion?
Held: Yes. Reasons:
1. The Judge ignore P.D.No.42 ( see the info titled Rule 67,Rules of Court,
page 27 of this reviewer).He fixed the provisional values of the subject properties at
their market values and daily opportunity profits, something which should not be done.
The values should be fixed at an amount equivalent to the assessed value for taxation
purpose.
2. More importantly, when the Judge, although erroneously, fixed the provisional
values of the subject property and NAPOCOR in turn deposited the said amounts, the
said Judge last plenary control over the order fixing the amount of the deposit and has
no power to annul, amend or modify it matters of substance pending the course of the
condemnation proceedings. The reason for this is that a contrary ruling would defeat the
very purpose of the law which is to provide for a speedy and summary procedure
whereby the peaceable possession of the property subject of the expropriation
proceedings may be secured without the delays incident to prolonged and vexatious
litigation touching the ownership and value of such lands, which should not be permitted
to delay the progress of the work.
3. The Judge also, in effect, gave the defendants the final authority to determine
just compensation when in fact; the determination of just compensation in expropriation
proceedings is a judicial function. Moreover, he did not even appoint the 3
commissioners as mandated by Sec. 5 of Rule 67 of Court in order to ascertain and
report to him the just compensation sought to be taken. He even ruled that the writ of
possession shall be issued only after the defendants have received the amounts, which
should not be the ease. All these show the gross ignore of the Judge and his orders and
rulings must be reversed.
2. City Government of QC v. Ericta 129 SCRA 759
Facts: The Quezon City Council passed Ordinance No.6118 S-94 entitled
Ordinance regulating the establishment, maintenance and operation of private memorial
type cemetery or burial ground within the jurisdiction of Q.C and providing penalties for
he violation thereof. Said ordinance provides, among others: Sec.9 .At least 6% o f the
total area of the memorial park cemetery shall be seta side for a charity burial of
deceased persons who are paupers and have been residents of Q.C for at least 5 years
prior to their death, to be determined by competent City Authorities. The area so
designated shall immediately be developed and should be open for operation not later
than 6 months from the date of approval of the application.
For 7 years, the ordinance was not enforced by city authorities, but when the Q.C
Council decided to enforce it by passing a resolution to that effect, Himlayang Pilipino,
Inc. responded by filling a petition for declaratory relief, prohibition and mandamus with
preliminary injunction with the CFI in Q.C praying that the ordinance be declared null
and void. Said petition was granted. The question now raised is: Is the said ordinance a
valid exercise of the police power?
Held: No. Reasons:
1. The Charter of Q.C grants Q.C. the power to tax, fix the license fee and
regulate such other Business, trade and occupation as may be established or practiced
in the City. The power to regulate however, does not include the power to prohibit. A
portion, the power to regulate does not include the power to confiscate. The ordinance
not only confiscates but also prohibits the operation of a memorial park cemetery
because under Sec. 13 of said ordinance, violation of its provisions is punishable by
fine, imprisonment and/or that the permit to operate and maintain a private cemetery
shall be revoked or cancelled. Sec.9 is not mere police regulation but an outright
confiscation of private property without due process of law may, even without
compensation.
2. When the Local Government Code of 1983 provided that a Sangguniang
Panlungsod may provide, for the burial of the dead in such manner as prescribed by law
or ordinance it simply authorized the city to provide its owned city owned land or to buy
of expropriate private properties to construct public cemeteries. Expropriation however,
requires payment of just compensation. Thus, Himlayang Pilipino Inc. cannot be said to
have impliedly acknowledge sequestration of 6 % of its property without just
compensation when it accepted the permits to operate from the city government.
3. Heirs of Juancho Ardona v.Reyes 125 SCRA 221
Facts: The Philippine Tourism Authority (PTA) filed 4 complaints with the CFI
of Cebu City for the expropriation of some 282 hectares of rolling land situated in
Barangays Malubog and Babag, Cebu City, under PTAs express authority, as
mandated in its Charter, to acquire by purchase, by negotiation or by condemnation
proceedings any private land within and without the tourist zones for the development
into integrated resort and sport complexes of selected and well- defined geographic
areas with potential tourism value.
The defendants, numbering 40, filed motions to dismiss on the ground that the
taking was not for Public use, specifically that the there is no constitutional provision
authorizing the taking of private property for tourism purposes. Moreover, the
defendants claimed that the land they own subject of the expropriation is actually
covered by certificate of land transfer (CLT) and emancipation patents
Thereby making the lands expropriated within the coverage of the land reform
area under P.D No.2The defendants argue that the agrarian reform program occupies a
higher level in the order of priorities than other state policies like those relating to the
health and physical well-being of the people.
Held : The Ardonas fortys petition should be dismissed. Reasons:
1. The concept of public use is not limited to traditional purposes like the
construction of roads, bridges, parks and the like. Public use is not use by the public. It
also mean, public well-fare and such a concept are broad, and inclusive. The values it
represents are spiritual, as well as physical, aesthetic as well as monetary. It is within
the power of the legislature to determine that the community should be beautiful as well
as healthy, spacious, as well as clean, well balanced as well as carefully patrolled.
Once the object is within the authority of Congress, the right to realize it through the
exercise of Eminent Domain is clear. As a general rule then, as long as the taking is
public, the power of eminent domain comes into pay.
2. The fact that private concessionaires such as private firms, food outlets, etc.
will lease the subject areas will not diminish the public character of the expropriation ( In
other words, the place is open to anybody for as long as she or he can pay).
3. The records show that the only 2 of the 40 defendants have CLTs or
emancipation patents. And those CLTs in their possession covers only less than 1
hectare of the 282 hectares intended fore expropriation. Moreover, the less-than 10hectare portion of land is not even part of the resort and sports complex proper but is
part of the 32 hectare resettlement are for all persons affected by the expropriation.
Certainly, the human settlement needs of the many beneficiaries of the 32 hectare
Resettlement area should prevail over the property rights of two of their compatriots.
(This last sentence did not sit well which Justice Makasiar and 2 others dissenters
because the two persons who had CLTs were conveniently ignored).
4. City of Manila v. Chinese Community 40 Phil. 349
Facts: On Dec. 11.1916, the City of Manila presented a petition in the CFI of
Manila praying that for the purpose of constructing a public improvement, namely the
extension of Rizal Avenue, Manila, it is necessary for the City of Manila to acquire
ownership in fee simple of certain parcels of land situated in the district of Binondo of
said city within Block 83 of said district. The proposed extension of Rizal Avenue
however will take a part of the Chinese cemetery, a public cemetery at that the Chinese
Community of Manila thus contended that 1) the City of Manila cannot appropriate the
cemetery or a portion thereof as said cemetery is public property, only private property
may be expropriated and 2) there is no necessity for the improvement as a whole in the
first place. Is the Chinese Community correct?
Held: The Chinese community is correct as to its contention Reasons:
1. First of all, the matter regarding the extent of the courts authority in
expropriation cases must settled. An examination of Sec.243 in Act No.190 (the
predecessor of todays Rule 67 of the Rules of Court) reveals, if the Court shall find
upon trial that the right to expropriate the land exists, it shall then appoint
commissioners. The City of Manila contends that since expropriation is exclusively a
Legislative function, the authority of the courts then is limited to determining the
following a whether a law granting the expropriation exists and b) the value of the land
in question. This contention is partly meritorious. There is no question that the court has
authority to fix the values of the land question. As to the authority of determining
whether a law granting the expropriation exists, a distinction must be made between a)
laws granting special purpose and b) laws grating a general authority. If the law in
question grants expropriation of a particular parcel of land and for a specific public
purpose, then the Courts would he without jurisdiction to inquire into the purpose of
that legislation, regardless on whether or not the land in question is private or public.
But if the Legislature should grant general authority to a municipal corporation then to
expropriate private lands, for public purpose, the courts then would have Authority then
to make inquiry and to hear proof, upon an issue properly presented concerning
whether Or not the land in question was private and whether the purpose was in fact,
public. In the instant case, since the City of Manila was given a general grant of
authority to expropriate private lands under its Charter, the Court has authority to inquire
on whether the exercise of such expropriation by the City of Manila is indeed public- in
other words, the Court may inquire into the necessity of the expropriation.
2. As mentioned above public property may be expropriated provided a special
grant of Authority for a particular parcel of land was passed by the Legislature. The City
of Manila was not granted such a special authority. Therefore, the Chinese Cemetery or
a portion thereof may not be expropriated.
3. It is axiomatic that the taking of private property for public use is not justified
unless there is a genuine public necessity for the taking. In the present case, even if
granting that a necessity exists for The opening of the street in question, the record
contain no proof of the necessity of opening the same through the cemetery. The
records show that adjoining and adjacent lands and have been offered to the city free of
charge, which will answer every purpose of the city.
5. National Power Corporation v. CA 254 SCRA 577
Facts: In 1978, NAPOCOR took possession of a 21,995 sq. m. land which is a
portion of Lot 1 Of the subdivision plan (LRC) Psd_116169 situated in Marawi City,
owned by Macapanton Mangondato, Under the mistaken belief that it forms part of the
public land reserved for use by NAPOCOR of Hydroelectric power purposes under
Proclamation No. 1354 of the President of the Philippines dated Dec.3, 1974.
NAPOCOR alleged that the subject land was until then possessed and
administered by Marawi City so that in exchange for the citys waiver and quitclaim of
any right over the property, NAPACOR had paid the city a :financial assistance : of P40
sq. m.
In 1979, when NAPOCOR started building its Agus 1 (Hydroelectric plant)
project, Mangondato demanded compensation from NAPOCOR. NAPOCOR refused to
compensate insisting that the property is public land and that it has already paid
financial assistance to Marawi City in exchange for the rights over the property.
Mangondato claimed that the subject land is his duly registered property covered
by a TCT in his name that he was not privy to agreement between Marawi City and
NAPOCOR and that any Payment made to said city cannot be considered as payment
to him.
More than a decade later, NAPOCOR acceded to the fact that the property
belongs to Mangondato. On August 14, 1990, NAPOCORs National power Board
(hereafter Power Board) passed a resolution resolving to pay Mangondato the base
price of P40 per sq.m for only a 12,132 sq.m portion Of the subject property (P
485,280,001) plus 12% interest per annum from 1978 (P698, 808.00) pending A
determination by NAPOCORs regional legal council on whether P100.00 is the fair
market value of Property.
Pursuant to the aforementioned resolution, Mangondato paid P1, 184.088.00. On
May 17, 1991, the power Board passed a resolution resolving to pay Mangondato P100
per sq.m excluding the 12 % interest per annum.
In a letter, Mangondato disagrees with the power boards new resolution. He said
that this property was worth even more than p300 per sq.m but he was willing to settle
for P300 per sq.m greedy bastard).
On May 25,192, NAPOCOR authorized its president to negotiate with Mangondato
for the payment of P100 for the land plus 12 % per annum from 1978 less the payments
already made 10 Mangodato and to Marawi City on the portion of his land.
On July 7, 1992, the greedy bastard replied by filling a civil case seeking to
recover possession of he property described in the complaint as Lot of the subdivision
plan against NAPOCOR, the payment of a P15, 000 monthly rent until the surrender of
the property, and the issuance of a TRO and a writ of preliminary mandatory injunction
to restrain NAPOCOR from proceeding with any construction and/or improvements on
Mangondatos land or from committing any act of dispossession.
On July 27, 1992, NAPOCOR countered by filling a complaint for eminent
domain against Mangondato. The lower court then ordered, after duly appointing 2
commissioners, that NAPOCOR deposit the amount of P10, 997,500.00 with the PNB,
provisionally fixing the value of the land at P500 per sq. m., P100 lower than the
assessed value of the land appearing in its tax declaration for 1992 which was P100.
In its decision, the lower court denied the recovery of possession by Mangondato
but ordered NAPOCOR to pay the former a monthly rent of P 15,000 from 1978 to 1992
with 12 % interest per annum and condemning the property in favor of NAPOCOR
effective July 1992 upon payment of P1000 per sq.m. or P21,995,000.00 as just
compensation.
NAPACOR contested the decision. In its assignment of errors, NAPOCOR said
that the lower court erred in affirming that the just compensation for the property is its
value in 1992, when the complaint was filed, and not its value in 1978, when he property
was taken by petition, ergo, the court erred in fixing the value of just compensation at
P1, 000 per sq.m instead of P40 per sq.m
Held: NAPOCOR is wrong. Reasons:
Department of Agrarian Reform ( DAR) regarding the plan to expropriate the lands of
the San Joaquins for use as a housing project.
The province now defends its expropriation of the subject lands, claiming its
authority from Sections 4 and 7 of the Local Government Code of 1983, and that the
expropriation was for a public purpose.
Held: The Province of Camarines Sur is correct. Reasons:
1. Public use now means public advantage, convenience or benefit, which tends
to contribute to the general welfare and the prosperity of the whole community, like are
sort community or a housing complex. In the cage, the expropriation here is for public
purpose. The establishment of a pilot center would inure to the direct benefit and
advantage of the people of the Province. Once operational, the center would make
available to the community invaluable information and technology on agriculture, fishery
and the cottage industry. Ultimately, the livelihood of fisherman, farmers, and
craftsmens would be enhanced. The housing project also satisfies the public purpose
requirement of the Constitution.
2. As to the issue whether the approval of the DAR (for the purpose of realizing
the housing project intent of the expropriation) is needed before expropriation
proceedings can continue, the Court simply ruled that the same is not needed, simply
because the L:GC of 1983 nor any other laws does not require the same.
7. Moday v. CA 268 SCRA 586
Facts: On July 23,, 1989, the Sangguniang Bayan of Bumawan in Agusan del
Sur passed Resolution No. 43-89 authorizing the Municipal Mayor to initiate the
expropriation of a one (1) hectare portion of Lot No. 6138 Pls-4 along the National
Highway owned by Percival Moday for the site of the Bunawan Farmers Center and
other Government Sports Facilities.
Said Resolution was approved by then Municipal Mayor Anuncio Bustillo and
transmitted to the Sangguniang Panlalawigan.
The Sangguniang Panlalawigan
however disapproved the resolution on the ground that the expropriation was
unnecessary considering that there are still available lots in Bunawan for the
establishment of government center.
Undaunted, the Municipality of Bunawan nevertheless filed a petition for Eminent
Domain against Moday. After depositing the necessary amount in accordance with Rule
67 of the Rules of Court with the municipal treasurer, the Municipality filed a Motion to
Take or Enter Upon the Possession of the Subject Matter.
Despite Modays opposition and after the hearing of the merits, the RTC ruled in
favor of the Municipality, saying that among others, that since the Sangguniang
Panlalawigan failed to declare the Municipalitys resolution as invalid, the same should
be deemed effective. (Wow, the RTC has 2 different meanings for invalid and
disapproval). An appeal to the CA also proved fruitless. In the meantime, the
Municipality created 3 buildings on the subject property.
Upon petition by Moday, the SC issued a TRO to prevent the Municipality from
using the buildings it already constructed as well as constructing future buildings.
Moday, in his petition to the SC, also adds that since the Sangguniang Panlalawigan
disapproved the resolution, the same is void and thus the Municipality could not insist in
pushing through with the expropriation.
Held: Moday is wrong. Reasons:
1) The Municipalitys power to exercise the right of eminent domain is not
disputed. Sec. 9 of the LGHC of 1983 states, LGUs may, through its head, and acting
pursuant to a resolution of its Sanggunian, exercise the right of eminent domain and
institute condemnation proceedings for public use or purpose.
2) A reading of Sec. 153, LGC of 1983 states, If the Sangguniang Panlalawigan
(SP) shall find that any municipal ordinance, resolution or executive order is beyond the
power conferred upon the Sangguniang bayan (SB) or the Mayor, it shall declare such
ordinance, resolution or Executive Order invalid in whole or in part xxx. The effect of
such action shall be to annul the ordinance, resolution or Executive Order in question in
whole or in part. The action of the SP shall be final. Said section gives the condition if
such resolution is beyond the power conferred upon by the Sangguniang Bayan or
Mayor xxx. Obviously, it is well within the power of the Municipality to exercise the right
of eminent domain and thus, the SB has the capacity to promulgate a resolution
pursuant to the exercise of such a right. The SP therefore, was without authority to
disapprove said resolution.
3. Finally, Moday claimed the expropriation against his property was motivated
by political revenge since he did not support Mayor Bustillos candidacy in the previous
elections. If that were true, then Modays petition would have been meritorious since the
taking of private property for public use must be genuine. The SC simply ruled that there
was no evidence to support such claim. Besides, the records do not show that there
was indeed another available property for the same purpose.
C) Power of Taxation (Five requisites for the exercise, publication requirements
and public hearing)
Five requisites for the exercise:
1. Municipal revenue obtainable by taxation shall be derived from such sources
only as are expressly authorized by law.
2. Taxation shall be just and uniform in each municipality.
3. It shall not be in the power of the municipal council to impose tax in any form,
whatever upon goods and merchandize carried into the municipality, or out of
the same, and any attempt to impose an import or export tax upon such
goods in the guise of an unreasonable charge for wharfage, use of bridges or
otherwise, shall be void.
Note: Compare this with Sec 133 (e) of LGC 1991, Unless otherwise provided herein,
the exercise of the taxing powers of provinces, cities, municipalities and barangays shall
not extend to the levy of the following xxx (e) taxes, fees and charges and other
impositions upon goods carried into or out of, or passing through, the territorial
jurisdictions of LGUs in the guise of charges of wharfage, tolls for bridges or otherwise,
or other taxes, fees or charges in any form whatsoever upon such goods or
merchandise.
4. In no case shall the collection of municipal taxes be left to any person.
of the Philippines, Allied Thread Co engaged the services of a sales broker, Ker and
Company Ltd, the latter deriving commission for every sale made for its principal.
On June 12, 1974, the Municipal Board of the City of Manila enacted Ordinance
No. 7516 imposing on manufacturers, importer, porters or producers, doing business in
the city of Manila, business taxes based on gross sales recorded on a graduated basis.
A s used by the Ordinance, graduated basis meant that 60% of all sales recorded in
the principal offices of all businesses are located in the City of Manila, the same shall be
taxable as well by said City. As for the branches of businesses, all sales recorded by it
shall be taxable by the City of Manila provided they are also located in the said City.
The Mayor of Manila approved said Ordinance on June 15, 1974. In less than
two months, however, the ordinance underwent a series of amendments. The last
amendment was approved by the Mayor on July 29, 2974.
Having affected by the aforementioned Ordinance, being manufacturers and
sales brokers, Allied Thread Co filed a petition for declaratory relief contending that
Ordinance 7516 is not valid or enforceable as the same is contrary to Sec 52 of PD 426,
as clarified by Local Tax Regulation No 1-71. To quote said Regulation: A local tax
ordinance shall go into effect on the 15th day after approved by the local chief executive
in accordance with Sec 41 of the Code. In view hereof and considering the provisions of
Art 54 of the Code regarding the accrual of taxes a local tax ordinance intended to take
effect on July 1, 1974 should be enacted by the local chief executive not later than June
15, 1974. Otherwise stated, Allied Thread Co asserts that due to the series of
amendments in the Ordinance 7516, the same Ordinance fell short of the deadline set
forth by Sec 54 of PD 426 that for an ordinance intended to take effect on July 1, 1974,
it must be enacted on or before June 15, 1954. As mentioned earlier, the last
amendment of the ordinance was approved on July 29, 1974.
Allied Thread also contended that the questioned Ordinance did not comply with
the necessary publication requirement in a newspaper of general circulation as
mandated by Sec43 of the Local Tax Code. Moreover, Allied Thread claimed that it
should not be covered by the said Ordinance as amended; because it does not operate
or maintain a branch office in Manila and that its principal office and factory are located
in Pasig, Rizal.
Held: Allied Thread is wrong. Reasons:
1. Ordinance No 7516 was approved by the City Mayor in June 15, 1974.
Therefore, he made the deadline (barely). The subsequent amendments did not in any
way invalidate nor move the date of its effectivity. To hold otherwise would limit the
power of the defunct Municipal Board of Manila to amend an existing ordinance as
exigencies require.
2. The Court is persuaded that there was substantial compliance of the law on
publication. The City of Manila complied with the second mode of notice.
3. Allied Thread does its business through its agent, Ker and Company. The
power to levy an excise tax upon the performance of an act or the engaging of an
occupation does not depend on the domicile of the person subject to the excise nor
upon the physical location of the property and in connection with the act or occupation
taxed but depend upon the place in which the act is performed or occupation engaged
in in this case, upon the place where the respected sales transactions is perfected
and consummated.
1.b Reyes v. CA 320 SCRA 486
Facts: The Sangguniang Bayan of San Juan, Metro Manila implemented 5 tax
ordinances. Antonio Reyes and 2 others (the Reyes Three) filed an appeal with the
Department of Justice alleging the constitutionality of these tax ordinances allegedly
because they were promulgated without previous public hearings thereby constituting
deprivation of property without due process of law. Secretary of Justice Franklin Drilon
however, dismissed the appeal for being filed out of time since the last of the 5
ordinances took effect on Oct 29, 2992 while the Reyes Three filed their appeal only on
May 21, 1993, way past the 30-day period from the effectivity thereof for appeal as
allowed by Sec 187 of the LGC of 1993. The CA also ruled in favor of Franklin Drilon.
Undaunted, the Reyes Three, in a petition for review with the SC, claim that
notwithstanding the 30-day period imposed by the law for appeal, an ordinance enacted
without the requisite of public hearing is unconstitutional and thus void from the
beginning ( in other words, an action to declare anything unconstitutional does not
prescribe since it is reduction as absurdum). Also the Reyes Three ask if
constitutionality of Sec. 187 can be raised for the first time on appeal. (see Public
Hearing of this reviewer).
Held: The Reyes Three are wrong: Reasons:
1. There is a reason why protests over tax ordinances are required to be done
within certain time frames. A municipal tax ordinance empowers an LGU to impose
taxes. The power to tax is one of the most effective instruments to raise needed
revenues to finance and support the myriad activities of LGUs for the delivery of basic
services essential to the promotion of the general welfare and enhancement of peace,
progress and prosperity of the people. Consequently, any delay in tax measures would
be to the detriment of the public.
2. While it is true that the public hearings are required to be conducted prior to
the enactment of a tax ordinance, the Reyes Three did not show any proof that the
Sangguniang Bayan of San Juan failed to conduct the required public hearings. The
reason is that the lack of a public hearing is a negative allegation essential to a
petitioner cause of action. Hence, as the Reyes Three are the ones asserting the lack of
a public hearing, they have the burden of proof. Since the Reyes Three failed to rebut
the presumption of validity in favor of the subject ordinances and to discharge the
burden of proving that no public hearings were conducted prior to the enacted thereof,
the Court is constrained to uphold their constitutionality or legality. This is true despite
the fact that the Sanggunian has the control of records or the better means of proof
regarding the alleged, and the Reyes Three are not relieved from the burden of proving
their averments.
3. On the validity of Sec. 187 of LGC of 1991, the Court stresses that the
constitutionality of an act of Congress will not be passed upon by the Court unless at
the first opportunity that question is properly raised and presented in an appropriate
case, and is necessary for the determination of the case, particularly where the issue of
constitutionality is the very lis mota presented. The constitutionality of a statutory
provision should not be entertained by the Court where it was not specifically raised
below, insisted upon and adequately argued. The Court finds no real necessity in
tackling the constitutionality of Sec. 187 of LGC of 1991.
2. Limitations on municipal taxing power
* Sec. 133, LGC of 1991. Common Limitations on the Taxing Power of LGUs.
Unless otherwise provided herein, the exercise of the taxing powers of provinces, cities,
municipalities, and barangays shall not extend to the levy of the following:
a. Income tax, except when levied on banks and other financial institutions
b. Documentary stamp tax
c. Taxes on estates, inheritance, gifts, legacies and other acquisitions mortis
causa, except as otherwise provided therein
d. Customs duties, registration of fees of vehicles and wharfages on wharves,
tonnage dues and all other kinds of custom fees, charges and dues except wharfage of
wharves constructed and maintained by the LGU concerned.
e. Taxes, fees, and charges and other impositions upon goods carried into, or out
of, or passing through the territorial jurisdictions of LGUs in the guise of charges for
wharfage, tolls for bridges ort otherwise, or other taxes, fees in any form whatsoever
upon such goods and merchandise
f. Taxes, fees or charges on agricultural and aquatic products when sold by
marginal farmers or fishermen
g. Taxes on business enterprises certified by the BOI as pioneer or non-pioneer
for a period of 6 or 4 years, respectively from the date of the registration.
h. Excise taxes on articles enumerated under the NIRC, as amended, and taxes,
fees or charges on petroleum products.
i. Percentage on VAT sales, barters or exchanges or similar transactions on
goods and services except as otherwise provided herein
j. Tax on gross receipts of transportation contractors and persons engaged in the
transportation of passengers or freight by hire and common carriers by air, land or
water, except as provided in this Code
k. Taxes paid on premiums by way of reinsurance or retrocession
l. Taxes, fees or charges for the registration of motor vehicles and for the
issuance of all kinds of licenses or permits for the driving thereof, except tricycles.
m. Taxes, fees or other charges actually exported, except as otherwise provided
herein
n. Taxes, fees or charges on Countryside and Barangay Business Enterprise and
Cooperatives duly registered under R.A. 6180 and R.A. 6938 otherwise known as the
Cooperative Code of the Philippines respectively
o. Taxes, fees or charges of any kind on the National Government, its agencies
and instrumentalities, and LGUs
*The Basic Rule of Municipal Taxing Power
Under the now prevailing Constitution, where there is neither a grant nor a
prohibition by statute, the tax power must be deemed to exist although Congress may
provide statutory limitations and guidelines. The basic rationale for the current rule is to
safeguard the viability and self-sufficiency of local government units by directly granting
them general and broad tax powers. Nevertheless, the fundamental law did not intend
the delegation to be absolute and unconditional; the constitutional objective obviously is
to ensure that, while the local government units are being strengthened and made more
autonomous, the legislature must still see to it that a) the taxpayer will not be
overburdened or saddled with multiple and unreasonable impositions; b) each local
government unit will have its fair share of available resources; c) the resources of the
national government will not be unduly disturbed; and d) local taxation will be fair,
uniform, and just (MERALCO v. Province of Laguna)
2.a Pepsi Cola Bottling Co. v. City of Butuan 24 SCRA 789
Facts: Pepsi Cola seeks to recover the taxes paid by it to the City of Butuan and
collected by the letter. Pursuant to its Municipal Ordinance No. 110, as amended by
Municipal Ordinance No. 122, both series of 1960, which Pepsi assail as null and void
and to prevent the enforcement thereof.
Pepsi maintains that the disputed ordinance is null and void because (1) it
partakes of the nature of an important tax; (2) it amounts to double taxation; (3) it is
excessive, oppressive and confiscatory; (4) it is highly unjust and discriminatory; and (5)
section 2 of Republic Act No. 2264, upon the authority of which it was enacted, is an
unconstitutional delegation of legislative powers. Said Ordinance, as amended, imposes
as a tax on any person, association, etc., of P0.10 per case of 24 bottles of Pepsi-Cola
and Pepsi paid under protest the amount of P4,926.63 from August 16 to December 31,
1960 and the amount of P9,250.40 from January 1 to July 30, 1961.
Held: Pepsis contentions are partly tenable. Reasons:
(1)
The Second and last objections are manifestly devoid of merit. Indeed,
independently of whether or not the tax in question, when considered in relation to the
sales tax prescribed by Acts of Congress, amounts to double taxation, on which the
Court need not and does not express any opinion-double taxation, in general, is not
forbidden by the Constitution. The Philippines has not adopted, as part thereof, the
injunction against double taxation found in the Constitution of the United States. Then,
again, the general principle against , delegation of legislative powers, in consequence of
the theory of separation of powers is subject to one well-established exception, namely;
legislative powers may be delegated to local government to which said theory does not
apply in respect of matters of local concern.
(2)
The third objection is, likewise, untenable. The tax of P0.10 per case of
24 bottles, of soft drinks of carbonated drinks in the production and sale of which
plaintiff is engaged or less than P0.0042 per bottle is manifestly too small to be
excessive, oppressive, or confiscatory.
(3)
The first and the fourth objection merit, however, serious consideration. As
amended by Ordinance no. 122, the tax is imposed only upon any agent and/or
consignee of any person, association, partnership, company or corporation engaged in
selling soft drinks or carbonated drinks. As defined in section 3-A of Ordinance no.
122, a consignee of agent shall mean any person, association, partnership, company or
corporation who acts in the place of another by authority from him or one entrusted with
the business of another or to whom is consigned or shipped no less than 1,000 cases of
hard liquors or soft drinks every month for resale, either retail or wholesale.
As a consequence, merchants engaged in the sale of soft drinks of carbonated
drinks, are not subjected to the tax, unless they are agents and/or consignee of another
dealer, who, in the very nature of things, must be one engaged in the business outside
the City. The intention to limit the application of the ordinance to soft drinks and
carbonated drinks brought into city from outside thereof becomes apparent. Viewed
from this angle, the tax partakes of the nature of an import duty, which is beyond
defendants authority to impose by express provision of law.
The tax in question would still be invalid, as discriminatory, and hence, violative
of the uniformity required by the Constitution and the law thereof, since only sales by
agents of consignee of outside dealers would be subject to tax. Sales by local dealers,
not acting for or on behalf of other merchants, regardless of the volume of their sales,
and even if the same exceeded those made by said agents or consignee of producers
or merchants established outside the City of Butuan, would be exempt from the
disputed tax.
2. b Province of Bulacan v. CA 299 SCRA 442
Facts: on June 26, 1992, the Sangguniang Panlalawigan of Bulacan passed
Provincial Ordinance No. 3, known as an Ordinance Enacting the Revenue Code of the
Bulacan Province. Which was to take effect on July 1, 1992. Section 21 of the
ordinance provides as follows: Sec. 21. Imposition of Tax. There is hereby levied and
collected a tax of 10% of the fair market value in the locality per cubic meter of ordinary
stones, sand, gravel, earth and other quarry resources, such. But not limited to marble,
granite, volcanic cinders, basalt, tuff and rock phosphate. Extracted from public lands or
from bed of seas, lakes, rivers, streams, creeks and other public waters within its
territorial jurisdiction.
Pursuant thereto, the Provincial Treasurer of Bulacan, in a letter dated November
11, 1993, assessed private respondent Republic Cement corporation (hereafter
Republic Cement) O2,524,692.13 for extracting limestone, shale and silica from several
parcels of private land in the province during the third quarter of 1992 until the second
quarter of 1993. Believing that the province, on the basis of above-said ordinance, had
no authority to impose taxes o quarry resources extracted from private lands, Republic
Cement formally contested the same on December 23, 1993. The same was however,
denied by the Provincial Treasurer on January 17, 1994. Republic Cement
consequently filed a petition for declaratory relief with the Regional Trial Court of
Bulacan on February 14, 1994. The province filed a motion to dismiss Republic
Cements petition, which was granted by the trial court on May 13, 1993, which ruled
that declaratory relief was improper, allegedly because a breach of the ordinance had
been committed by Republic Cement.
On July 11, 1994, Republic Cement filed a petition for certiorari with the Supreme
Court seeking to reverse the trial courts dismissal of their petition. The Court, in a
resolution dated July 27, 1994, referred the same to the Court of Appeals.
In the interim, the Province of Bulacan issued a warrant of levy against Republic
Cement, allegedly because of its unpaid tax liabilities. Negotiations between Republic
Cement and the province resulted in an agreement and modus vivendi on December
12, 1994, whereby Republic Cement Agreed to pay under protest P1,262,364.00, 50%
of the tax assessed by petitioner, in exchange for the lifting of the warrant of levy.
Furthermore, Republic Cement and the Province Agreed to limit the issue for resolution
by the Court of Appeals to the question as to whether or not the provincial government
could pursuant to Section 21of Provincial Ordinance No. 3.
The CA ruled that the Province had no authority to issue Ordinance No. 3, hence
this appeals to the SC.
Held: The decision of the CA must be sustained. Reasons:
(1)
Ordinance No. 3 is based on Sec. 158 of the LGC of 1991 which states:
The province may levy and collect not more than ten percent (10%) of fair market value
in the locality per cubic meter of ordinary stones, sand, gravel, earth and other quarry
resources, as defined under the National Internal Revenue Code, as amended,
extracted from private lands. Need we say more?
(2)
It is true that under Sec. 133 (h), the exercise of the taxing powers of
provinces, cities, municipalities and barangays shall not extend to the levy of exercise
taxes on articles enumerated under the National Internal Revenue Code (NIRC).
Section 151 of the NIRC, by the way levies excise taxes on all quarry resources,
regardless of origin, whether extracted from public or private land. Thus an LGU may
not ordinarily impose taxes on stones, sand, earth and other quarry resources, as the
same are already taxed under the National Internal Revenue Code, However an LGU
can still impose a tax on stones, sand, gravel, earth and other quarry resources
extracted from public land because it is expressly empowered to do so under the LGU.
But again it only says Public The Province of Bulacan cannot tax Republic Cement
because its extracting minerals from private lands. Dont forget, public versus private.
3. Other Illustrative Cases:
3. a Basco v. PAGCOR 197 SCRA 52
Facts: Atty. Humberto Basco, the Chairman on the committee of Laws of the
City Council of Manila, and 3 other lawyers, (the Basco Four) filed a petition seeking to
annul the Phil. Amusement and Gaming Corporation (PAGCOR) because among
others. 1) It waived the Manila City governments right to impose taxes and license fees,
which is recognized by law and 2) for the same reason stated in the immediately
preceding paragraph, the law has intruded into the local governments right to impose
local taxes and license fees in contravention of the constitutionally enshrined principle of
the local autonomy.
Held: The Basco four contentions are all unmeritorious Reasons:
1)
Any petitioner assailing the constitionality of the law must realize that said
law is armed with the presumption of constitionality. With this in mind, the petitioner has
the burden of proof to show that the law he wishes to assail is unconstitutional.
2)
The Basco Four assailed Sec. 13 par. 2 of P.D 1869 which states that
LGUs cannot impose on PAGCOR taxes on any kind (except for the 5% franchise tax)
Said provision, they claim is a violation of local autonomy it waives the City of Manilas
right to impose taxes and license fees. The court answered that.
a)
The City of Manila being a Mere municipal corporation has no inherent right
to impose taxes. Thus, the Charter or statute must plainly show am intent to
confer that power or the municipality cannot assume it. Its power to tax
therefore must always yield to a legislative act which is superior having
been passed upon by the state itself which has the inherent power to tax.
b)
The charter of the City of Manila is subject to control by congress. It should
be stressed that municipal corporation are mere creatures of Congress
which has the power to create and abolish municipal corporation due to its
legislative powers Congress, therefore, has the power of control over
Local. And if Congress can grant the City of Manila the power to tax certain
matters, it can also provide for exemption or even take back the power.
c)
The City of Manilas power to impose licenses fees on gambling has long
been revoked. As early as 1975, the power of local government to regulate
gambling thru the grant of franchise, licenses or permits was withdrawn by
P.D. No. 771 and was vested exclusively on the National Government.
PAGCOR is a government owned or controlled corporation with an original
charter, PD 1869. All its stocks are owned by the National Government: it has dual role,
to operate and to regulate gambling casinos. The latter role is governmental, which
places it in the category of an agency or instrumentality of the Government. Being an
instrumentality of the Government, PAGCOR should be and actually is exempt from
local taxes. Otherwise, its operation might be burdened, impeded or subjected to control
by a mere Local Government.
(3)
The states have no power by taxation or otherwise, to retard, impede,
burden or in any manner control the operation of constitutional laws enacted by
Congress to carry into execution the powers vested in the federal government. This
doctrine emanates from the supremacy of the National Government over local
governments. Otherwise, mere creatures of the state can defeat National policies thru
extermination of what local authorities may perceive to be undesirable activities or
enterprise using the power to tax as a tool for regulation.
(4)
The Basco Four cannot also invoke Article X, sec 5 of the 1987
Constitution which says, Each local government unit shall have the power to create its
own source of revenue and to levy taxes, fees, and other charges subject to such
guidelines and limitation as the congress may provide, consistent with the basic policy
on local autonomy. Such taxes, fees and charges shall exclusively to the local
government. The power of local government to impose taxes and fees is always
subject to limitations which Congress may provide by law.
3. b Mactan Cebu Intl Airport v. Marcos
Facts: Mactan Cebu International Airport Authority (MCIAA) was created by
virtue of Republic Act No. 6958 mandated to principally undertake to economical,
efficient and effective control, management and supervision of the Mactan International
Airport in the province of Cebu and the Lahug Airport in Cebu City, and such other
Airports as may be established in the province of Cebu. It is also mandated to a)
encourage, promote and develop international and domestic air traffic in the Central
that is parcels of land are basically owned by the Republic of the Philippines in Cebu
thus lands are exempt from real property tax? The court answered no, because under
MCIAAs charter, all lands owned by existing airports belonging to the Republic of the
Philippines in Cebu are transferred to the MCIAA, meaning, there was an absolute
conveyance of ownership to MCIAA. The Republic of the Philippines is no longer the
owner of the lands in question, thus MCIAA is not spared from real property taxes.
3)
While MCIAA is correct in invoking Sec 133 (o) above which disallows
LGUs to tax the National Government, its agencies and instrumentalities, and LGUs,
Sec 133 (o) is also qualified by the phrase, unless otherwise provided herein. (in this
code). The tax imposed upon MCIAA concerns real property taxes. Thus MCIAA is also
subject to Sec 234 and for reasons mentioned in no.2). MCIAA is not spared from
property taxes.
4)
The ultimate fact remains that Sec 193 of the LGC of 1991 has repealed
the tax exemption privilege enjoyed by MCIAA as stated in Sec. 14 of its charter. This
policy is consistent with the States policy to ensure genuine and meaningful autonomy
to LGUs.
NOTE: the Republic of the Philippines is not the same as National Government
(Wow!). To better understand this situation, lets have a rundown of some boring
definitions:
a) Republic of the Philippines synonymous with Government of the
Republic of the Philippines; the corporate government entity through
which the function of government are exercised throughout the
Philippines, including, save as the contrary appears from the context,
the various arms through which political authority is made effective in
the Philippines, whether pertaining to the autonomous regions, the
provincial city, municipal or barangay subdivisions or other forms of
local government.
b) National Government the entire machinery of the central government
(executive, legislative and juridical) as opposed to the forms of local
governments.
c) Agency any of the various units of the Government, including a
department, bureau, office instrumentality, or GOCC or a local
government or a distinct unit therein
d) Instrumentality any agency of the National Government, not
integrated within the department framework, vested with special
functions or jurisdiction by law, endowed with some if not all corporate
powers, administering special funds, and enjoying operational
autonomy; usually though a charter e.g. regulatory agencies, chartered
institutions and GOCCs
3. c MERALCO v Province of Laguna 306 SCRA 750
Facts: On various dates. Certain municipalities of the Province of Laguna,
including, Bian, Sta. Rosa, San Pedro, Luisiana, Canluan and Cabuyao, by virtue of
existing laws then effect, issued resolution through their respective municipal councils
granting franchise in favor of petitioner Manila Electric Company (MERALCO) for the
supply of electric light, heat and power within their concerned areas. On 19 January
1983, MERALCO was likewise granted a franchise by the National Electrification
Administration to operate an electric light and power service in the Municipality of
Calamba, Laguna.
On 12 September 1991, Republic Act No. 7160, otherwise known as the Local
Government, Code of 1991, was enacted to take effect on 01 January 1992, enjoying
local government units expressed therein own sources of revenue and to levy taxes,
fees and charges, subject to the limitations expressed therein, consistent with the basic
policy of local autonomy. Pursuant to the provisions of the Code, respondent province
enacted Laguna Provincial Ordinance No. 01-92, effective 01 January 1993, imposing a
tax on business enjoying a franchise.
On the basis of the above ordinance, respondent Provincial Treasurer sent a
demand letter to MERALCO for the corresponding tax payment. MERALCO, however,
contented that the imposition of a franchise tax under Section 2.09 of Laguna Provincial
Ordinance No. 01-92, insofar as it concerned MERALCO, contravened the provisions of
Section 1 of P.D. 551 which read: Any provision of law or local ordinance to the
contrary notwithstanding, the franchise tax payable by all grantees of franchises to
generate, distribute and sell electric current for light, heat and power shall be two per
cent (2%) of their gross receipt received from the sale of electric current and from
transactions incident to the generation, distribution and sale of electric current. Such
franchise tax x x x shall any provision of the Local Tax Code or any other law to the
contrary notwithstanding, be in lieu of all taxes and assessments of whatever nature
imposed by any national or local authority on earnings, receipt, income and privilege of
generation, distribution and sale of electric current. (Note the italicized sentence)
MERALCO now contents that 1) the phrase shall be in lieu of all taxes x x x in
sec 1 of P.D. 551 prevents the province of Laguna from imposing franchise taxes on it
2) whether the ordinance is violative of the non-impairment clause and 3) whether the
LGC of 1991 has repealed, modified or amended P.D. 551.
Held: All contentions by MERALCO are incorrect. Reasons:
1)
Indicative of the legislative intent to carry out the Constitutional mandate of
vesting broad tax powers to local government units, the Local Government Code has
effectively withdrawn under Section 193 thereof, tax exemptions or incentives therefore
enjoyed by certain entities. This is also supported by Section 137 which states,
Notwithstanding any exemption granted by any law or other special law, the province
may impose a tax on business enjoying a franchise x x x and also by Sec. 534, the
repealing clause, which declares. All general and special laws, acts, city charters,
decrees, executive orders, proclamation and administrative regulation, or part or parts
thereof which are inconsistent with any of the provisions of this Code are hereby
repealed or modified accordingly.
2)
In the recent case of the City Government of San Pablo, etc., et al. vs.
Hon. Beinvenido V. Reyes, et. Al., the Court has held the phrase in lieu of all taxes
has to give way to the peremptory language of the Local Government Code specifically
providing for the withdrawal of such exemptions, privileged, and that upon the
effectivity of the Local Government Code all exemptions except only as provided therein
can no longer be invoked by MERALCO to disclaim liability for the local tax.
3)
While the court has, not too infrequently, referred to tax exemptions
contained in special franchises as being in the nature of contracts and a part of the
inducement for carrying on the franchise, these exemptions, nevertheless, are far from
being strictly contractual in nature. Contractual tax exemptions, in the real sense of the
term and where the non-impairment clause of the Constitution can rightly, be invoked,
are those agreed to by the taxing authority in contracts, such as those contained in
special government bonds or debentures, lawfully entered into by them under enabling
laws in which the government, acting in its private capacity, sheds its cloak of authority
and waives its governmental immunity. Truly, tax exemptions of this kind may not be
revoked without impairing the obligations of contracts. These contractual tax
exemptions, however, are not to be confused with tax exemptions granted under
franchise. A franchise partakes the nature of a grant which is beyond the purview of the
non-impairment clause of the Constitution. Indeed, Article XII, section 11, of the 1987
Constitution, like its precursor provisions in the 1935 and the 1973 Constitutions, is
explicit that no franchise for the operation of a public utility shall be granted except
under the condition that such privilege shall be subject to amended, alternation or
repeal by Congress as and when the common good so requires.
3. d Municipality of San Fernando v. Sta. Romana 149 SCRA 27
Facts: The Municipality of San Fernando, La Union which was undertaking a
cement road construction around its Supermarket and other municipal projects, needed
sufficient gravel and sand from their source, the Municipality of Luna, La Union but its
trucks sent to the latter municipality to haul said road construction materials were
allegedly charged unreasonable fees per truck load.
Said fees charged by Luna were based on Section 1 of Ordinance No. 1 enacted
by it which reads, There shall be collected from any person, partnership or corporation
engaged in any business, occupation or calling or enjoying any privilege hereunder
enumerated the following municipal license and/or fees x x x
On March 18, 1968, the Municipality of San Fernando represent by its incumbent
Municipal Mayor Lorenzo L. Dacanay filed a complaint for injunction with Writ of
preliminary Injunction at the Court of First Instance of La Union against the Municipality
of Luna and its officials and authorized agents, praying that the Municipality of Luna be
immediately enjoined from preventing San Fernandos its from obtaining road
construction from Luna, La Union and from levying unreasonable and after trial to make
the injunction permanent. The lower court granted said petition.
The main issue in this case is whether the Municipality of Luna has the authority
to pass Ordinance No.1 and impose the license fees in question.
Held: The answer is No, but for a surprising reason. The reason is that this issue
in the case at is governed by President Decree No. 231, enacting a Local Tax Code (for
Provinces, Cities, municipalities and Barrios) which took effect on July 1, 1973. The
Code provides:
SEC 10. Sand and gravel fee. The province may levy and collect a fee of not
exceeding twenty-five centavos per cubic meter of ordinary stones, sand, gravel earth
and other materials selected from lakes, rivers, streams, creeks and other public waters
within the jurisdiction of the province.
SEC 22. Specific limitations on power. Except as otherwise provided in this Code, the
municipality shall not levy the following:
(a) Taxes, fees and charges that the province or city is authorized to levy in this
Code x x x
Section 10 of aforesaid decree was later amended by Presidential Decree No.
426 dated March 1974, and now reads: Sand and gravel tax. The province may levy
and collect a tax of not exceeding seventy-five centavos per cubic meter of ordinary
stones, sand, gravel earth and other materials extracted from public and private lands of
the government or from the beds of seas, lakes, streams, creeks, and other public
waters within the jurisdiction of the province. The municipality where the materials
extracted shall share in the proceeds of the tax herein authorized at a rate of not more
than thirty per cent thereof as may be determined by the Provincial Board. The permit to
extract the materials shall be issued by the Direction of Mines or his duly authorized
representative and the extraction thereof shall be governed by regulations issued by the
Director of Mines.
Under the above-quoted provisions of the Local Tax Code, there is no question
that the authority impose the license fees in dispute, properly belongs to the province
concerned and not to the Municipality of Luna which is specifically prohibited under
Section 22 of same Code from levying fees and charges that the province or city is
authorized to levy in this Code. On the other hand, Municipality of San Fernando
cannot extract sand and gravel from the Municipality of Luna without the corresponding
taxes or fees that may be imposed by the province of La Union.
NOTE: This is a lousy case. The LGC wasnt even used as legal basis in the
decision, but then was an old case. What if we decide this case using the LGC of 1991?
Was San Fernando forming a governmental or proprietary function in constructing
roads? In either case, based on these of facts alone, can the municipality of Luna tax
the municipality of San Fernando?
3. e Compania General de Tabacos v. City of Manila 8 SCRA 367
Facts: Compania General Tabacos de Filipinas (Tabacalera for short) filed this
action in the court of First Instance of Manila to recover from appellants, City of Manila
and its Treasurer, Marcelino Sarmiento also hereinafter referred to as the city the sum
of P15, 280.00 allegedly overpaid by it as on its wholesale and retail sales of liquor for
the period from the third quarter of 1954 to the second quarter of 1957, inclusive, under
Ordinances Nos. 3634, 3301, and 3816.
Tabacaleras action for refund is based on the theory tat, in connection with its
liquor sales, it could pay the license fees prescribe by Ordinance No. 2258 but not the
municipal sales taxes imposed Ordinances Nos. 3634, 3301, and 3816; and since it
already paid the license fees aforesaid, the sales paid by the amounting ton sum of P
15,208.00 under the three ordinance mentioned heretofore is overpayment made by
mistake and therefore refundable.
The city, on the other hand, contends that for permit issued to it granting proper
authority to conduct or engage in the sale of alcoholic beverages or liquors Tabacalera
is subject to pay the license prescribed by Ordinance No. 3358, aside from the sales
taxes imposed by Ordinances Nos. 3634, and 3816 that even assuming that Tabacalera
is not subject to the payment of the sales taxes prescribed by the said three ordinances
as regards its liquor sales, it is not entitled to the refund for the following reasons: 1) the
said amount was paid by the plaintiff voluntarily and without protest: 2) If at all the
alleged overpayment was made by mistake, such mistake was one of law and impose
from the plaintiff neglect of duty; 3) The said amount had been added by the plaintiff to
the selling price of the liquor sold by it and passed to the consumers; 4) The said
amount had been already expended by the defendant City for public improvement and
essential services of the City government, the benefits of which are enjoyed and being
enjoyed by the plaintiff.
Held: Tabacaleras contentions are untenable. What is collected under
Ordinance No. 3358 is a license fee for the privilege of engaging in the sale of liquor a
calling in which it is obviously not anyone or anybody may freely engage, considering
that the sale of liquor indiscriminately may endanger public health and morals. On the
other hand, what the three ordinances mentioned herefore impose is a tax for revenue
purposes based on the sales made of the same article or merchandise. It is already
settled on this connection that both a license fee and a tax may be imposed on the
same business or occupation for selling the same article, this not being in violation of
the rule against double taxation. This is precisely the case with the ordinances involved
in the case at bar.
3. f Ty v. Trampe 250 SCRA 500
Facts: On 06 January 1994, the Municipal Assessor of Pasig sent a notice of
assessment concerning certain real properties owned by Alejandro B Ty located in
Pasig, Metro Manila. A similar notice for the same reason was also sent to MVR Picture
Tube. Inc. located in Pasig, Metro Manila. In a dated 18 March 1994, petitioners Ty and
MVR Picture Tube Inc. (Ty and Company) through counsel requested the Municipal
Assessor to consider the subject assessments. Not satisfied, Ty and Company on 29
March 1994 filed with the RTC of the National Capital Judicial Region, Branch 163,
presided over by Judge Aurelio Trampe, a Petition for Prohibition with prayer for a
restraining order or writ of preliminary injunction to declare null and void the new tax
assessment and to enjoin the collection of real estate taxes based on said
assessments. The judge denied said petition.
Ty and Company now contends that 1)the Court gravely erred in holding that
Presidential decree No. 921, including its implementing rules and regulations, were
expressly repealed by R.A 7160 the Court erred in not declaring the confiscatory and
oppressive nature of the assessments as illegal ab initio and unconstitutional
constituting a deprivation of property without due process of law and the Court erred in
declaring that Ty and company failed to exhaust administrative remedies provided the
law by not paying tax although under protest instead (Sec. 252, LGC). To put it in words
justice Panganiban, who loves to ask a question before writing his decisions, are the
increased real state taxes imposed by and collected by the Municipality of Pasig,
effective from the year 1994, legal? (With all due respect to the good Justice, the real
question is: Does the municipal, provincial city assessor [as the case may be]. Acting
alone, have the authority to prepare the Schedule of Values real property as mandated
by R.A. 7160, or is the schedule of Values prepared by a group of assessors as
mandated by P.D. 921? Obviously, we have 2 conflicting laws here).
Manila
Quezon City, Pasig, Marikina, Mandaluyong and San Juan
Caloocan City, Malabon, Navotas and Valenzuela
Pasay City, Makati, Paraaque, Muntinlupa, Las Pias, Pateros
and Taguig
Manila, Quezon City, Caloocan City and Pasay City shall be the respective Centers of
the aforesaid Treasury and Assessment Districts.
The third is Sec. 212 of the LGC, 1991 which states, Preparation of Schedule of
Fair Market Values. Before any general revision of property assessment is made
pursuant to the provisions of this Title, there shall be prepared a schedule of fair market
values by the provincial, city and the municipal assessors of the municipalities within the
Metropolitan Manila Area for the different classes of real property situated in their
respective local government units for enactment by ordinance of the sanggunian
concerned x x x.
The question now is, who will prepared the schedule of Fair Market Values: the
guys under P.D. 921 of the guys under LGC of 1991? It should be noted that the LGC
did not expressly repeal P.D. 921. Did the former impliedly repeal the latter then? The
court answered no. I t is a basic rule of statutory construction that repeals by implication
are not favored. An implied repeal will not be allowed unless it is convincingly and
unambiguously demonstrated that the two laws are so clearly repugnant and patently
inconsistent that they cannot co-exist. This is based on the rationale that the will of the
legislature cannot be overturned by judicial function of construction and interpretation.
Courts cannot take the place of Congress in repealing statutes. Their function is to try to
harmonize, as much as possible, seeming conflicts in the laws and resolve doubts in
favor of their validity and co-existence.
It is obvious that harmony in these provisions is not only possible, but in fact
desirable, necessary and consistent with the legislative intent and policy. By reading
together and harmonizing these two provisions, we arrive at the following steps in the
preparation of the said schedule, as follows:
a) The assessors in each municipality or city in the Metropolitan Manila area
shall prepare his/her proposed schedule of values, in accordance with Sec.
212 R.A. 7160.
b) Then, the Local Treasury and Assessment District shall meet per Sec. 9 P.D.
921. In the instant case, that district shall be composed of the assessors in
Quezon City, Pasig , Marikina, Mandaluyong and San Juan, pursuant to Sec.
1 of said P.D. In this meeting, the different assessors shall compare their
individual assessments, discuss and thereafter jointly agree and produce a
schedule of values for their districts, taking into account the preamble of said
P.D. that they should evolve a progressive revenue raising program that will
not unduly burden the taxpayers.
c) The schedule jointly agreed upon by the assessors shall they be published in
a newspaper of general circulation and submitted to the sanggunian
concerned for enactment by ordinance, per Sec. 212, R.A. 7160.
2) 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 question of fact but of la. Ty and company are not
merely questioning the amounts of increase in the tax, they are questioning the
very authority and power of the assessor, acting solely and increase in the tax,
they are questioning the very authority and power of the assessor, acting solely
and independently, to impose the assessment and of the treasurer to collect the
tax. Therefore, there is no reason for Ty and company to exhaust the
administrative remedies provided for in the LGC, namely Sec 226 (appeal to the
Local Board of Assessment Appeals) and Sec. 252 (Payment under protest).
3) Finally the court will not pass upon the constitutionality of the law if the
controversy can be settled on other grounds, like in this case, by harmonizing the
conflicting provisions of P.D. 921 and the LGC.
D) Power to Open and Close Roads (Sec. 21, LGC, Art. 43-45, IRR)
* Sec. 21. Closure and Opening of Roads
On April 30, 1957, Antonio Favis bought a parcel of land from the Assumption
Convent, Inc. This land is surrounded by the following areas (go get a pen and paper
and draw a map of this land to better understand this case):
1. Lot 2-E-3-B-3-B-1 this lot is owned by Assumption and is located southwest
of Favis land; this lot was donated to the City because it was the site for a proposed
road. This donated road is Favis only means of ingress and egress to Lapu-lapu Street,
a public street.
2. Lapu-lapu Street this street is a portion of the Baguio Market Subdivision, a
big tract of land registered in the name of the City. Lapu-lapu street is connected at one
end to two lots: a) Lot 2-E-3-B-3-B-1; and b) a lot owned by Olmina Fernandez.
Generally, Lapu-lapu Street is 8 m. in width, but at its connecting point with Lot 2-E-3-B3-B-1, its only 2.5 m. in width.
3. Lot 25 this lot is located in the northern portion of Baguio Market Subdivision
and is right beside Fernandezs lot. The shell Oil Company leased this lot in 1947 for its
use as a service station. 10 years later, Shell leased Lot 25 again and a portion of Lapulapu Street as well, reducing the latters width to only 5 meters. The City approved the
renewal of the lease thru Resolution No. 132-61.
Favis protested the lease because it reduced the width of Lapu-lapu Street, thus
(1) his entrance and exit to and from his property has become very difficult; (2) it
became impossible for his big trucks and trailers to turn around; (3) it made the area
around it very dangerous in case of fire; and (4) it has caused perpetual danger,
annoyance, irreparable loss and damage not only to the public in general but especially
to Favis himself. In response, the City approved Resolution 215-61, converting the
remaining 5 m.-width portion of Lapu-lapu street into an alley (lousy resolution).
Unsatisfied with the Citys response, Favis Commenced suit to annul the lease contract
for the reasons mentioned above and also because of the following: 1) the power to
close streets should be effected thru an ordinance and not thru a resolution; 2) the City
failed to give notice to owners of contiguous properties whose rights might be affected;
and 3) the city council of Baguio and municipal bodies in general, have no inherent right
to vacate or withdraw a street from public use, either in whole or in part, thus there must
be a specific grant by the legislative body to the city or municipality concerned.
Held: Favis contentions are unmeritorious. Reasons:
1) The embattled resolutions are just as good as ordinances. The objection is
only of forms, not of substance.
2) Notice is not needed because the City Charter requires notice only when the
ordinance in question also calls for an assessment regarding a project to be
implemented. In this case, no assessment was called for and was in fact, not
necessary.
3) While Favis is correct that municipal bodies have no inherent right to close a
public street, still the City Charter does authorize Baguio City to close public roads in its
discretion absent a plain case of abuse, or fraud or collision. Faithfulness in public trust
is presumed. Public interest is served thru 1) savings from cost of road maintenance;
and 2) gaining by the City of some income thru leasing.
4) Favis private rights were not invaded. Lapu-lapu street does not abut his
parcel of land. The general rule is that one whose property does not abut on the closed
section of a street has no right to compensation for the closing or vacation of the street,
if he still has reasonable access to the general system of streets. The circumstances in
some cases may be such as to give a right to damages to a property owner, even
though his property does not abut on the closed section. But to warrant recovery in any
such case the property owner must show that the situation is such that he has sustained
special damages differing in from those sustained by kind, and not merely in degree, the
public generally.
2. Other illustrative cases:
d.1. Cabrera v. CA 195 SCRA 314
Facts: On Sept. 19, 1969, the Provincial Board of Catanduanes passed
Resolution 158 authorizing the closure of the old road leading to the Capitol City of
Catanduanes. A new road was built which traversed the land of Remedios Bagadiong
and several others similarly affected. Bagadiong and friends were given portions of the
old road as compensation for the properties they lost as a result of the construction of
the new road.
One man, Bruno Cabrera, did not like the idea of the old road being gone. He
filed a complaint for Restoration of Public Road and/or Abatement of Nuisance,
Annulment of Resolutions and Documents with Damages alleging that the old road in
question was a public road owned by the Province of Catanduanes in its governmental
capacity and was thus beyond the commerce of man. It stands to reason then, that said
road cannot be the subject of private contracts, such as barter or exchange. Moreover,
Cabrera insists, control over public roads lies with Congress, not with the Provincial
Board.
Held: Cabrera is wrong. Reasons:
1) Resolution 158 states, in black and white ink, that it is for the closure of a
public road and not for a contract of barter or exchange. RA 5185 Sec 11 (a) (An Ant
Granting Further Local Autonomy to Local Governments), in relation to Sec. 2246 of the
revised Administration Code, is the pertinent law from which Resolution 158 derives its
authority.
2) The barter or exchange is legal coz its in accordance with Sec. 412 of the
Civil Code, which states: Property of public dominion, when no longer intended for
public use or for public service, shall form part of the patrimonial property of the State.
Note: The power to open or close roads is expressly provided for in Art. 43, IRR
of the LGC, 1991.
d.2.Dacanay v. Asistio 208 SCRA 404
Facts: Way back in January 5, 1979, the Metropolitan Manila Commission
(MMC) enacted MMC Ordinance 79-02, which allowed certain city and municipal public
streets and roads to be sites for many vendors applied for licenses to conduct such
activities in said streets.
On Dec. 20, 1987, the RTC of Caloocan City ruled that the streets were of public
dominion and ordered the demolition of said stalls. But Mayor Martinez, who had
advocated the demolition of the said stalls, has been replaced by Mayor Asistio. Mayor
Asistio did not carry out the order of the RTC, for humanitarian reasons. Francisco
Dacanay, a concerned citizen and a resident along Heroes del 96 street, filed a petition
for mandamus to compel the Mayor, thru the City Engineer, to remove the said stalls.
Will the petition prosper?
Held: Yes, for the plain and simple reason that public roads cannot be the object
of leases and thus cannot be bargain away thru contracts. Public roads should serve
the purpose for which they were built: for public use as arteries of travel for vehicles and
pedestrians.
d.3. Macasiano v. Diokno 212 SCRA 464
Facts: On June 13, 1990, the municipality of Paranaque passed Ordinance no.
90, series of 1990, which authorized the closure of 5 streets located at Baclaran,
Paranaque for the establishment there of a flea market. On July 20, 1990, the
Metropolitan Manila Authority approved the said ordinance but subject to the following
conditions:
1. That the afore-named streets are not used for vehicular traffic, and that the
majority of the residents do not oppose the establishment of the flea market/vending
areas thereon;
2. That the 2 meter middle road to be used for flea market/vending area shall be
marked distinctly, and that the 2 meters on both sides of the road shall be used by
pedestrians;
3. That the time during which the vending area is to be used shall be clearly
designated;
4. That the use of the vending areas shall be temporary and shall be closed
once the reclaimed areas are developed and donated by the Public Estate Authority.
Palanyag Kilusang Bayan for Service, a service cooperative, then entered into a
contract with Paranaque for the construction and operation of market stalls in the said
streets.
Some months later, Brg. Gen. Levy Macasiano, PNP Superintendent of the
Metropolitan Traffic Command, entered the picture. He wrote Palanyag a letter
demanding the latter to discontinue the flea market, otherwise the market stalls would
be dismantled. Macasianos beef was that Ordinance No. 90which authorized the lease
and use of public thoroughfares as site for flea markets is not valid because it is on legal
basis. Was he correct?
Held: Yes. Reasons:
1) The Municipality of Paranaque did not follow Sec. 10, Chapter 11, LGC 1983,
to the letter. Its states that: Closure of roads. A local Government unit may likewise,
through its head acting pursuant to resolution of its sanggunian and in accordance with
existing law and the provisions of this Code, states any barangay, municipal, city or
provincial road, street, alley, park or square. No such way or any part of thereof shall be
close without indemnifying any person prejudiced thereby. A property thus withdrawn
form public use may be used or conveyed for any purpose for which other real property
belonging to the local unit concerned might be lawfully used or conveyed.
Note the italicized phrase and in accordance with existing law and the provisions
of this Code. The power to close roads by LGUs is still subject to existing law. In this
light, Art. 424 of the Civil Code is relevant. It essentially says that if public property is
withdrawn from public use, the property becomes patrimonial property of the LGU
concerned and may thus be subject to ordinary contracts. This is all assuming if the
public are still open to vehicular traffic and are thus still devoted to public use.
2) Following the argument of the # 1 above, it goes to show that Paranaque did
not follow condition as imposed by the MMA for Ordinance 90 tie be valid. The legality
of Ordinance 90, under the circumstances, cannot be sustained.
d.4. Sangalang v. IAC 176 SCRA 719
Facts: As far back in 1977, Makati, Metro Manila has always been plagued by
traffic. For this reason, during that time, Mayor Nemesio Yabut of Makati ordered that
studies be made on ways on how to alleviate the traffic problem, particularly in the
areas along the public streets adjacent to Bel-Air Village. The studies revealed that the
subdivision plan of Bel-Air was approved by the Court of First. Distance of Rizal on the
condition, among others, that its major thoroughfares connecting to public streets and
highways shall be opened to public traffic. Accordingly, it was deemed necessary by the
Municipality of Makati in the interest of the general public to open to traffic Amapola,
Mercedes, Zodiac, Jupiter, Neptune, Orbit and Pasco de Roxas streets. As a result, the
gates owned by BAVA at Jupiter and Orbit were ordered demolished.
Mayor Yabut justified the opening of the streets on the following grounds:
1) Some time ago, Ayala Corporation donated Jupiter and Orbit Streets to BelAir on the condition that, under certain reasonable conditions and restrictions, the
general public shall always be open to the general public. These conditions were
evidenced by a deed of donation executed between Ayala and Bel-Air.
2) The opening of the streets was justified by public necessity and the exercise
of the police power.
3) Bel-Air Village Associations (BAVA) articles of incorporation recognized
Jupiter Street as a mere boundary to the southwest thus it cannot be said to be for the
exclusive benefit of Bel-Air residents.
4) BAVA cannot hide behind the non-impairment clause on the ground that is
constitutionally guaranteed. The reason is that it is not absolute, since it has to be
reconciled with the legitimate exercise of police power.
BAVA, on the other hand, contended:
1) Rufino Santos, president of BAVA, never agreed to the opening of the said
streets
2) BAVA has always kept the streets voluntarily open anyway
Moreover, BAVA claims the demolition of the gates abovementioned was a
deprivation of property without process of law or expropriation without just
compensation.
Who is correct: the Mayor or BAVA?
Held: The Mayor is correct, for the reasons mentioned above. Also, the
demolition of the gates is justified under Art. 436 of the Civil Code.
merely proposed since other roads and streets were classified as such. The CA
upheld that trial court, basically because it said that findings of facts by the trial court, as
a general rule, should be undisturbed.
Would the SC uphold the CA ruling?
Held: No. In its infinite wisdom, the SC said that it didnt matter what opinion the
Colomidas or the engineer gave regarding the existence of the camino vecinal. What
really mattered is the zoning plan (the Urban Land Use Plan) as finally approved by the
Sangguniang Bayan of the Municipality of Liloan. The zoning plan showed that the
camino vecinal was declared closed. CLOSED! Its so crystal clear, cant you see? And
its beyond dispute that the abandonment, closure or establishment of the camino
vecinal is the sole prerogative of the Municipality of Liloan under the LGU of 1983. The
SC rebuked the parties for not having resorted to a pre-trial conference which would
have prevented the dragging of a trivial case for six years.
E) Corporate Powers (Sec. 22, LGC, Art. 46, IRR)
* Sec. 22, LGC, Corporate Powers. A) Every LGU, as a corporate, shall have the
following powers:
1. To have continuous succession in its corporate name;
2. To sue and be sued;
3. To have and use a corporate seal;
4. To acquire and convey real or personal property
5. To enter into contracts; and
6. To exercise such other powers as are granted to corporations, subject to the
limitations provided in this Code and other laws.
b) LGUs may continue using, modify, or change their existing corporate
seals. Provided, that newly established LGUs or those without corporate seals may
create their own corporate seals which shall be registered with the DILG. Provided
further, that may change of corporate seal shall also be registered as provided herein.
c) Unless otherwise provided in this Code, no contract may be entered
into by the local chief executive in behalf of the LGU without prior authorization by the
sanggunian concerned. A legible copy of such contrast shall be posted at a
conspicuous place in the province capitol or the city, municipal or barangay hall.
d) LGUs shall enjoy full local autonomy to the exercise of their proprietary
functions and in the management of their economic enterprises, subject to the
limitations provided in this Code and other applicable laws.
*Article 46, IRR. Note: Its exactly the same as Sec. 22, LGC.
*Municipality Liability
A. General Rule
Municipal liabilities arise from various sources in the conduct of municipal
affairs, both governmental and proprietary. Broadly, claims against municipalities
include all obligations upon all municipal contracts and upon all outstanding bonds,
notes, and warrants issued by them. Strictly, however, these claims are demands for
trial court held the AIC responsible but absolved the City of Manila. Is the City of Manila
indeed not liable?
Held: The City of Manila is liable. Reasons:
1) Again, Art. 2189 comes into play, since the injury took place in a public
building.
2) Also, Art. 2189 requires that the LGU must retain supervision and control over
the public work in question for it to be held liable. The evidence showed that the
Management and Operating Contract explicitly stated that the City of Manila retained
supervision and control over the Sta. Ana Market. Also, in a letter to Finance Secretary
Cesar Virata, Mayor Raymond Bagatsing admitted this fact of supervision and control.
Moreover, Sec. 30(g) of the Local Tax Code says that public markets shall be under the
immediate supervision, administration and control of the City Treasurer.
3) Jimenez could not be held for negligence. A customer in a store has every
right to presume that the owner will comply with his duty to keep his premises safe for
customers. The owner of the market, on the other hand, was proven to have been
negligent in not providing a cover for the said opening. The negligence of the City of
Manila is the proximate cause of the injury suffered.
NOTE: It is not necessary for the LGU to have ownership over the public work in
question; mere control and supervision is sufficient.
e.3. Guilatco v. City of Dagupan 171 SCRA 382
Facts: Florentina Guilatco, a court interpreter, was about to board a tricycle at a
sidewalk located at Perez Boulevard when she accidentally fell into a manhole located
in said side walk, causing her right leg to be fractured. She was hospitalized and also as
a result, suffered loss of income and moral damages.
Guilatco sued the City of Dagupan. The City replied that Perez Boulevard, where
the deadly manhole was located, is a national road not under the control and
supervision of Dagupan. It is submitted that it is actually the Ministry of Public Highways
that has control and supervision thru the Highway Engineer, who by mere coincidence,
is also the City Engineer of Dagupan (malas naman namin, City Engineer).
Is the City of Dagupan liable?
Held: Yes, Reasons:
1) We again apply Art. 2189. But the bigger question is , does the City of
Dagupan have control and supervision over Perez Boulevard in order for it to be held
liable? The answer is yes. Why? Read on.
2) The City of Dagupan argued that the supervision and control over Perez
Boulevard belongs more to his function as ex-officio Highway Engineer, thus the
Ministry of Public Highways should be held liable. However, the court gave this
arguments: Alfredo G. Tangco, in his official capacity as City Engineer of Dagupan, as
Ex-Officio Highway Engineer, as Ex-Officio City Engineer of the Bureau of Public
Works, and, last but not the least, as Building Official for Dagupan City, receives the
following monthly compensation: P1,810.66 from Dagupan City, P200.00 from the
Ministry of Public Highways, P100.00 from the Bureau of Public Works and P500.00 by
virtue of P>D 1096, respectively. This function of supervision over streets, public
buildings, and other public works pertaining to the City Engineer is coursed through
Maintenance Foeman and a Maintenance Engineer. Although these last two officials are
employees of the National Government, they are detailed with the City of Dagupan and
hence receive instruction and supervision from the city through the City Engineer. There
is , therefore, no doubt that the City Engineer exercises control or supervision over the
public works in question. Hence, the liability of the city to the petitioner under article
2198 of the City Code is clear. (Duh? What kind of explanation is that? Personally, I
cant understand it, but if the SC says the City of Dagupan is liable, then we must trust
the wisdom of the omniscience SC).
e.4. Dumlao v. CA 114 SCRA 247
Facts: These events took place in Dagupan City.
On Feb. 28, 1964, about 11:30 p.m., the spouses Elizalde were driving a jeep
thru Telomes Bridge when suddenly; they came upon a huge hole about 1 meter in
diameter and 8 feet deep at the south end of the bridge. The Elizaldes managed to
avoid the boulders but instead slammed into a truck owned by Hermanos de Yap and
driven by Dulcesimo Ducoy. The truck came from the opposite direction on the wrong
lane. The Elizaldes died as a result of the incident. The heirs of the Elizaldes included in
defendants in its complaint the City of Davao and Samuel Dumlao, the City Engineer.
Specifically, Dumlao was sued in his personal capacity.
Dumlao argued that he cannot be held liable is his personal capacity. Is he
correct?
Held: Yes.
1) The allegations in the complaint clearly state that he was being sued in his
official capacity as City Engineer.
2) There was no showing that there was bad faith or malice which would warrant
Dumlao personally liable in connection with the discharge of his duties.
3) The best that could be imputed to him is an act of culpable neglect,
inefficiency and gross negligence in the performance of his official duties.
b) Article 2180, Civil Code The obligation imposed by Article 2176 is
demandable was only for ones own acts or omission, but also for those of persons for
whom one is responsible.
The father and, in case of his death or incapacity, the mother, are
responsible for the damages caused by the minor children who live in their company.
The owners and managers of an establishment or enterprise are likewise
responsible for damages caused by their employees in the service of the branches in
which the latter are employed or on the occasion of their functions.
Employers shall be liable for the damages caused by their employees
and household helpers acting within the scope of their assigned tasks, even though the
former are not engaged in any business or industry.
The State is responsible in like manner when it acts thru a special agent
but not when the damage has been caused by the official to whom the task done
properly pertains, in which caused what is provided in Article 2176 shall be applicable.
Consent is implied when the government enters into business contracts, thereby
descending to the level of the other contracting party, and also when the State files a
complaint thus opening itself to a counterclaim.
Municipal corporations for example, like provinces and cities, are agencies of the
State when they are engaged in governmental functions and therefore should enjoy the
sovereign immunity from suit. Nevertheless, they are subject to suit even in the
performance of such functions because their charter provided that they can sue and be
sued.
2. A distinction should first be made between suability and liability. Suability
depends on the consent of the state to be sued, liability on the applicable law and the
established facts. The circumstance that a State is suable does not necessarily mean
that it is liable; on the other hand, it can never be held allowing itself to be sued. When
the state does waive its sovereign immunity, it is only giving the plaintiff the chance to
prove, if it can, that the defendant is liable.
3. About the issue of whether or not the municipality is liable for the torts
committed by its employee, the test of liability of the municipality depends on whether or
not the driver, acting in behalf of the municipality is performing governmental of
propriety functions. As emphasized in the case of Torio vs. Fontanilla, the distinction of
powers becomes important for purposes of determining the liability of the municipality
for the acts of its agents which result in an injury to third persons.
It has already been remarked that municipal corporations are suable because
their charters grant them the competence to sue and be sued. Nevertheless, they are
generally not liable for torts committed by them in the discharge of governmental
functions and can be held answerable only if it can be shown that they were acting in a
propriety capacity. In permitting such entities to be sued, the State merely gives the
claimant the right to show that the defendant is not acting in its governmental capacity
when the injury was committed or that the case comes under exceptions recognized by
law. Failing this, the claimant cannot recover.
4. In the case at bar, the driver of the dump truck of the municipality insists that
he was on his way to Naguilian River to get a load of sand and gravel for the repair of
San Fernandos municipal streets.
In the absence of any evidence to the contrary, the regularity of the performance
of official duty is presumed pursuant to Section 3 (m) of Rule 131 of the Revised Rules
of Court, Hence, We rule that the driver of the dump truck was performing duties or
tasks pertaining to his office.
3. Read RA 7678 DIGITEL Franchise
The title states: Republic Act no. 7678, February 17, 1994: An Act granting the
Digital Telecommunications Philippines, Incorporated, a franchise to install, operates
and maintains telecommunications systems throughout the Philippines and for other
purposes.
Section 13 states: Warranty in Favor of the National and Local Government. The
grantee shall hold the national, provincial, city and municipal governments harmless
from all claims, accounts, demands or actions arising out of accidents or injuries,
whether to property or to persons, caused by the installation and operation of the
telecommunications systems of the grantee.
* Liability for Contract
Municipal corporations are liable on contracts entered into in their behalf by their
authorized agents acting within the scope of their authority, provided that the municipal
corporations are authorized to enter into said contracts by their charter.
* Section 24, LGC. Liability for damages
LGUs and their officials are not exempt from liability for death or injury or
damage to property.
4. City of Manila v. JAC 179 SCRA 423
Facts: The City of Manila leased a lot of the North Cemetery to Irene Sto.
Domingo. The period of the lease is from June 6, 1971 to June 6, 2001.
Irenes husband died and was buried in said lot on June 6, 1971. The authorities
of the North cemetery however, ordered the lot exhumed on January 25, 1978,
according to their interpretation in good faith of AO No. 5, 1975, which provided for a
uniform procedure and guidelines in the processing of documents pertaining to and for
the use and disposition of burial lots and plots within the North Cemetery, etc.
Naturally, Irene and her family were shocked, Adding to their dismay was that the
remains of her husband was callously dumped in a warehouse of a cemetery were
thousands of other sacks of bones were kept. The risk, according to her, of claiming the
wrong set of bones was high. Irene filed a claim for damages against the city. Will the
suit prosper?
Held: Yes, reasons:
1. In connection with its powers as a municipal corporation, the City of Manila
may acquire property in its public or governmental capacity, and private or
propriety capacity. The NCC divides such properties into property for public
use as provincial roads, city streets, municipal streets, the squares, fountains,
public waters, promenades, and public works for public service paid for by
said provisions, cities or municipalities, all other property is patrimonial
without prejudice to the provisions of special laws.
b.
It seemed that the request of the Barangay Captain of Caloocan for petitioners
legal assistance was not taken up nor approved by the Sangguniang Barangay nor was
there any showing that it was approved by the Solicitor General and concurred in by
COA as required under COA Circular No. 86 255, dated April 2, 1986.
Also it seemed that the hiring of petitioner by the Punong Barangay did not carry
with it the approval of the Sangguniang Barangay as required under Section 91 (1-1) of
the B.P. 377, nor was there any appropriation therefore; the hiring was not approved by
the Solicitor General and concurred in by COA.
In other words, Barangay Caloocan doesnt want to pay Atty. Inciong. Is that
correct?
Held: Our companero must be paid. Reasons:
1.
We dont want to see a kindred spirit get unpaid or else we lawyers will
have to go on strike.
2.
As correctly stated by the Office of the Solicitor General, the position of
respondent Chairman of the COA disallowing payment of attorneys fees to petitioner
Atty. Ceferino Inciong is not proper in the light of the following considerations:
a. The employment by Barangay Caloocan of petitioner as its counsel,
even if allegedly unauthorized by the Sangguniang Barangay, is
binding on Barangay Caloocan as it took no prompt measure to
repudiate petitioners employment.
b. The decision of the RTC directing Barangay Caloocan to pay
attorneys fees to petitioner has become final and executory and is
binding upon Barangay Caloocan.
c. COA Circular No. 86 255 cannot diminish the substantive right of
petitioner to recover attorneys fees under the final and executory
decision dated August 9, 1989 of the Regional Trial Court.
3.
The respondent COA Chairman states that PHILSUCOM paid the amount
of 7,199,887. 51 pesos to the Municipal Treasurer under the Amnesty Compromise
Agreement. Out of this amount, the Municipal Treasurer allocated to Barangay
Caloocan as its share the amount of 719,988.75 pesos. This allocation is erroneous
because pursuant to Republic Act No. 5447, Barangay Caloocan should only share
from the basic tax which is 50% of what PHILSUCOM paid because the other half
should go to the Special Education Fund. Under the said Republic Act No. 5447, the
rightful share of Barangay Caloocan should be 359,944.38 pesos only.
The Chairman prayed that in the event the Court orders the payment of attorneys fees
to petitioner this amount of 359,944.38 pesos should be made the basis therefore. The
Ibi quid generaliter conceditur; inest haee exception, si non aliquid sit
contra jus fasque. (Where anything is granted generally, this exception
is implied; that nothing shall be contrary to law and right). This simply
means that every rule, no matter how strict or harsh, must have an
exception. Here, equity comes into play. To deny Atty. Garcia
compensation for his professional services would amount to a
deprivation of property without due process of law.
2.
The argument that the hiring of private lawyers by a province must first
gain the approval of the Provincial Board is absurd. First of all, the
service of the Provincial Fiscal has already been engaged by the
Provincial Board. More importantly, its so stupid for the Provincial
Board to pass a resolution grant the hiring of a private lawyer who
would litigate against them. The Provincial Board may just not pass
such a resolution. The legal maxim which we can use as a basis for this
situation is Nemo tenetur ad impossibile (The law obliges no one to
perform an impossibility)
3.
4.
* Instances where the municipal mayor was held liable for back salaries of, or
damages to dismissed municipal employees, to the exclusion of the municipality
Salcedo vs. Court of Appeals the municipal mayor was held liable for the back
salaries of the Chief of Police he had dismissed, not only because the dismissal was
arbitrary but also because the mayor refuse to reinstate him in defiance of an order of
the Commissioner of Civil Service to reinstate.
Nemenzo vs. Sabillano the municipal mayor was held personally liable for
dismissing a police corporal who possessed the necessary civil service eligibility, the
dismissal being done without justifiable cause and without any administrative
investigation.
Rama vs. Court of Appeals- the governor, vice governor, member of the
Sangguniang Panlalawigan, provincial auditor, provincial treasurer and provincial
engineer were ordered to pay jointly and severally in their individual and personal
capacity damages to some 200 employees of the province of Cebu who were eased out
from their positions because of their party affiliations.
* Instance where the municipality was also held liable along with municipal mayor
3. Laganapan v. Asedillo 154 SCRA 377
Facts: Solano Laganapan was appointed Chief of Police. However, he was
summarily dismissed from his position by respondent Mayor Elpidio Asedillo of
Kalayaan, Laguna on the ground that his appointment was provisional and that he has
no civil service eligibility. Respondent Epifanio Ragotero was appointed acting chief of
police of Kalayaan, Laguna on the same day in place of the petitioner.
Subsequently, the Municipal Council of Kalayaan, Laguna abolished the
appropriation for the salary of the chief of police of Kalayaan, Laguna. Laganapan thus
filed a complaint against Mayor Asedillo and the Municipality of Kalayaan for
reinstatement and payment of back wages. May Laganapan be reinstated? Is the
Municipality also liable?
Held: The municipality is liable but Laganapan cannot be reinstated. Reasons:
1.
Laganapan was summarily dismissed without any semblance of
compliance with due process. No charges were filed, no notice or hearing was made, no
nothing. The Court finds no merit in the mayors contention that, since the appointments
extended to Laganapan as chief of police of Kalayaan, Laguna, were all provisional in
nature, and not permanent, his services could be terminated with or without cause at
the pleasure of the appointing officer. While it may be true that Laganapan was holding
a provisional appointment at the time of his dismissal, he was not a temporary official
who could be dismissed at any time. His provisional appointment could only be
terminated thirty (30) days after receipt by the appointing officer of a list of eligible form
the Civil Services Commission. Here no such certification was received by Mayor
Asedillo thirty (30) days prior to his dismissal of Laganapan.
Furthermore, it is of record that, after the summary dismissal of Laganapan by
Asedillo, the Municipal Council of Kalayaan instead of opposing or at least protesting
Laganapans summary dismissal of his position, even abolished the appropriation for
the salary of the Chief of Police of Kalayaan Laguna. The Court considers this act of
the Municipal Council as an approval or confirmation of the act of respondent Mayor in
summarily dismissing Laganapan, as to make said municipality equally liable as the
mayor for the reinstatement of Laganapan and for the payment of his back salaries.
Finally it should be noted that Asedillo was sued not personally, but in his
capacity as mayor.
2.
Laganapan cannot be reinstated. PD 482, recently enacted at that time,
calls for the appointment of a permanent Chief of Police (known as Station
1.
2.
3.
4.
5.
6.
7.
*Article 107, IRR. Ordinances and Resolutions. The following rules shall govern the
enactment of ordinances and resolutions:
1. Legislative actions in a general and permanent character shall be enacted in the
form of ordinances, while those temporary characters shall be passed in the form
of resolutions. Matters relating to propriety functions and to private concerns shall
be enacted in a resolution.
2. Proposed ordinances and resolutions shall begin writing and shall contain an
assigned number, a title or caption, an enacting or ordaining clause and the date
of its proposed effectivity. In addition, every proposed ordinance shall be
accompanied by a brief explanatory note contain the justification for its approval.
It shall be signed by the author or authors and submitted to the secretary to the
sanggunian who shall report the same to the sanggunian at the next meeting.
3. A resolution shall be enacted in the same manner prescribed for an ordinance,
except that it need not go through a third reading for its final consideration unless
decided otherwise by a majority of the sanggunian members.
4. No ordinance or resolution shall be considered on second reading in any regular
meeting unless it has been reported out by the proper committee to which it was
referred or certified as urgent by the local chief executive.
5. Any legislative matter duly certified by the local chief executive as urgent whether
or not it is included in the calendar of business, may be presented and
considered by the body at the same meeting without need of suspending the
rules.
6. The secretary to the sanggunian of the province, city or municipality shall prepare
copies of the proposed ordinance or resolution in the form it was passed on
second reading and shall distribute to each sanggunian member a copy thereof,
except that a measure certified by the local chief execute as urgent may be
submitted for final voting immediately after debate or amendment during the
second reading.
7. No ordinance or resolution passed by the sanggunian in a regular or special
session duly called for the purpose shall be valid unless approved by majority of
the members present, there being a quorum. Any ordinance or resolution
authorizing or directing the payment of money or creating liability, shall require
the affirmative vote of all the sanggunian members for its passage.
8. Upon passage of all ordinances and resolution directing the payment of money or
creating liability, and at the request of any members, of any resolution or motion,
the sanggunian shall record the ayes and nays. Each approved ordinance or
resolution shall be stamped with the seal of the sanggunian and recorded in a
book kept for the purpose.
*Article 108 144, IRR, LGC
As we go along this reviewer, we'll ferret out the cream from the crap which
articles deserve to be read again and again and which should be considered stinker,
articles of such jaw - dropping ineptitude that the hapless law student has no recourse
but to shake her head and mutter, What the hell they were thinking?. But then, this is
just probably the author talking lazy, so go read the codal instead.
1. Mascunana v. Provincial Board of Negros Occidental 79 SCRA 339
Facts: The case doesnt really teach mush -if anything at all about the
coordinates and resolution but anyway...
Angel Mascunana and Angeles Veldeflor lived near a piece of land which was
the subject of controversy of this case. The two claimed that this piece of land was
actually part of the extension of Burgos Street. On this piece of land were squatters and
their houses. One of the squatters was an influential councilor named Leon Treyes.
The two requested the municipal mayor of Talisay, Negros Occidental that the
land in question be cleared of squatters so that the public can make use of that portion
of Burgos Street.
A debate resulted on whether the land had been used as street or has it been
withdrawn form public. The municipal council of Talisay made an ocular inspection of
the place and declared that there was no reason for opening it to vehicular traffic (note
that Treyes is a member of the municipal council). The municipal council thus passed
Resolution no. 59 ordering the said land closed. The provincial board of Negros
Occidental approved Res. No. 59 thru its res. NO. 1035
Mascunana and Veldeflor filed a complaint with the VCFI of Negros Occidental
questioning the validity of the two resolutions. They wanted the street opened because
it was a property of public dominion and if the same was not possible, then they should
have been indemnified for damages under Sec. 2246 of the RAC since their properties
were adjacent near the questioned land. The CFI however dismissed their complaint
summarily in a minute resolution. The reason, the CFI explained, is that the issue
concerns a resolution passed by a municipal corporation and therefore does not need to
be resolved thru an action for declaratory relief. Section 1, Rule 64 of the Rules of
Court, the pertinent rule to be followed in this case, refers only to an ordinance and not
a resolution.
Should the CFI pass on the merits of the case of Mascunana and Veldeflor?
Held: Yes. A trial court's order dismissing a complaint or petitions is appealable
like a final judgment. Also, Mascunana, et. al.'s action is not an action for declaratory
relief but an ordinary action for the enforcement of Sec. 2246 of the RAC. The issue on
whether the complaint involved an ordinance or a resolution is irrelevant.
2. Magtajas v. Pryce Properties July 20, 1994
Facts: This case is interesting because local autonomy was defeated unwittingly
perhaps by the same statute granting it. The LGC of 1991.
PAGCOR, drunk with the success because it was able to open casinos in several
cites, announce plans of opening one in Cagayan de Oro City. The reaction of the
Sangguniang Panlungsod of said city was swift: it passed 2 ordinances preventing the
operation of casinos in its territory. Mayor Pablo Magtajas, one of the petitioners, said
the ordinances were valid because 1. the Sangguniang Panlungsod have the power to
enact ordinances to prevent, suppress and impose appropriate penalties for gambling
and other prohibited games of chance (Art. 468, LGC, 1991); 2. the ordinance were an
expression of the police power under the General Welfare Clause; and 3. the LGC of
1991 modified the charter of the PAGCOR as the LGC of 1991 was a later enactment of
Congress. Is Magtajas correct?
Held: No. Reasons:
1. Art. 48 of the LGC clearly refers only to prohibit gambling and other games of
chance. Casinos are not prohibited because they are expressly allowed by P.D.
1869. the law creating PAGCOR.
2. The ordinances in question cannot contravene PD 1839. It must be remembered
that a municipal ordinance to be valid, must among others not contravene the
constitution or any statute. The reason is that municipal governments are mere
agents of the state.
3. The repealing clause of LGC of 1991 did not expressly repeal PD 1869. Implied
repeal, on the other hand are not lightly presumed in the absence of a clear and
unmistakable showing of such intention. There was no sufficient indication of an
implied repeal of PD 1869. In fact, later enactments after the LGC of 1991
recognize the existence of PD 1869. The rule in legal hermeneutics is that
statues should not be pit against each other but instead, every effort by the
courts must be made to harmonize them. As a becoming respect to a co - equal
(idiotic?) branch of government.
V. INTERGOVERNMENTAL RELATIONS OF PUBLIC CORPORATIONS (ART. 59,
64, IRR)
Article 59, IRR... General supervision of the province over component cites and
municipalities.
a. The province, thru its governor, shall exercise supervisory authority over component
cities and municipalities within its territorial jurisdiction to ensure that they act within the
scope of their prescribed powers and function. Highly urbanize cites and independent
component cities shall be independent of the province.
b. The scope of the supervision by the province over component cites and municipalities
shall include but not limited to the following:
1. The governor shall review executive order issued by the mayor of the component
city or municipality, subject to the concurrence of the sangguniang panlalawigan,
except as otherwise provided under the Constitution and special statutes. If the
governor and the sangguniang panlalawigan failed to act on said executive order
within 30 days form receipt thereof, the same shall be deemed consistent with
law and therefore valid.
2. The sangguniang panlalawigan shall review all approved city or municipal
ordinance and resolution approving the development plans and public investment
programs formulated by the city or municipal development councils.
3. The SP shall review the ordinances authorizing annual or supplemental
appropriations of component cities and municipalities in the same manner and
within the same period prescribe for the review of other ordinances of the LGU.
4. The governor shall visit component cities and municipalities of the province at
least once every 6 months to fully understand their problems and conditions,
listen and give appropriate counsel to local officials and inhabitants, inform the
officials and inhabitants of component cites and municipalities of general laws
and ordinances which especially concern them and conduct visits and
inspections to the end that the governance of the province shall improve the
quality of life of the inhabitants.
5. The governor shall coordinate plans of the province in coordination with mayors
of cites and municipalities as well as NGO's concerned to:
a. Formulate peace and order plan of the province in coordination with mayors of
component cities and municipalities and the National Police Commission.
and
6. The proceeds of the basic real property tax, including interest thereon and
proceeds form the use, leas or disposition, sale or redemption of property
acquired at a public auction shall be shared by the province, municipality and
barangay in the manner prescribed in Rule XXXI of these Rules.
7. The province shall share its collections form the tax on sand, gravel and other
quantity resources within its component city and municipality and the barangay
where said resources are extracted.
* Article 62, IRR. Role of people's organizations, non governmental organizations
and the private sector
LGU's shall promote the establishment and operation of people's organizations,
NGOs and the private sector to make them active partners in the pursuit of local
autonomy. For this purposes, people's organization, NGO's and the private sector shall
be directly involved in the following plans, programs, projects and activities of LGUs:
a. Local special bodies;
b. Delivery of basic services and facilities
c. Joint ventures and cooperative programs and undertakings
d. Financial and other forms of assistance
e. Preferential treatment for organizations and cooperatives of marginalized
fishermen
f. Preferential treatment for cooperatives development and
g. Financing, cooperative, maintenance, operation, and management
of
infrastructure projects
* 1. Between the national government and the local governments: 2. With PNP: 3. With
component cites and municipalities: 4. With People's and Non Governmental
Organizations (Sec. 25-36, LGC)
Sec. 25. National supervision over local governments
a. Consistent with the basic policy on local autonomy, the President shall
exercise general supervision over LGU's to ensure that their acts are within the scope of
their prescribed powers and functions.
The President shall exercise supervisory authority directly over provinces, highly
urbanized cities and independent component cities, thru the province with respect to
component cities and municipalities and the city and municipalities with respect to
barangays.
b. National Agencies and offices with the project implementation functions shall
coordinate with one another and with the LGU's concerned in the discharge of these
functions. They shall ensure the participation of LGU's both in the planning and
implementation of the said projects.
c. The President may, upon request of the LGU concerned, direct the appropriate
national agency provide financial, technical or other forms of assistance to the LGU.
Such assistance shall be extended at extra cost to the LGU concerned
d. National agencies and offices including government owned or controlled
corporations with field under or branches in a province, city or municipality shall furnish
the local chief executive concerned, for information and guidance, monthly reports
including duly certified budgetary allocations and expenditures.
Sec. 26. Duty of national government agencies in the maintenance of ecological
balance (just go and read the code or JGRC)
Sec. 27. Prior consultations required (JGRC)
Sec. 28. Powers of local chief executives over the units of the Philippine National Police
The extent of operational management and control of local chief executives over
the police force, fire protection unit, and jail management personnel assigned in their
respective jurisdictions shall be governed by the provisions of RA 6975, otherwise
known as the DILG Act of 1990, the rules and regulations issued are pursuant thereto.
Sec. 29. Provincial relations with component cites and municipalities
The province, thru the governor, shall ensure that every component cities and
municipality within its territorial jurisdiction acts within the scope of its prescribed powers
and functions. Highly urbanized cities and independent component cities shall be
independent of the province.
Sec. 30. Review of executive orders
a. Except as otherwise provided under the Constitutions and special statues, the
governor shall review executive orders promulgated by the component city or municipal
mayor within his jurisdiction. The city municipal mayor shall review all EO's promulgated
by the punong barangay within his jurisdiction. Copies of such orders shall be forward to
the governor or the city or municipal mayor, as the case may be, within 3 days from
their issuance. In all instances of review, the local chief executive concerned shall
ensure that such EO's are within the powers granted by law and in conformity with
provincial, city or municipal ordinances.
b. If the governor or city or municipal mayor fails to act on said EO's within 30
days of submission, the same shall be deemed consistent with law and therefore valid.
Sec 31. Submission of municipal question to the provincial legal officer or prosecutor
In the absence of municipal legal officer, the municipal government may secure
the opinion of the provincial legal officer and in the absence of the latter, that of the
provincial prosecutor on any legal question affecting the municipality
Sec 32. City and municipal supervision over their respective barangays
The city or municipality, thru the city or municipal mayor concerned shall exercise
general supervision after component barangay to ensure that said barangays act within
the scope of their prescribed powers and functions.
Sec 33. Cooperative undertakings among LGU's
LGUs' may, thru appropriate ordinances, group themselves, consolidate, or
coordinate their efforts, services and resources for purposes commonly beneficial to
them. In support of such undertakings, the LGU's involved may, upon approval by the
sanggunian concerned after a public hearing for the purpose, contribute lands, real
estate, equipment, and other king of property and appoint or assign personnel under
such terms and conditions as may be agreed upon by the participating local units thru
Memoranda of Agreement.
Sec. 34. Role of people's and non governmental organizations
LGU's shall promote the establishment and operation of people's and non
governmental organization to become active partners in the pursuit of local autonomy.
Sec. 35. Linkages with people's and non governmental organizations
LGU's may enter into joint ventures and such other cooperative agreements with
people's and non governmental organizations to engage in the delivery of basic
services, capability building and livelihood projects, and top develop local enterprises
designed to improve productivity and income, diversity, agriculture, spur
industrialization, promote ecological balance and enhance the economic and social well
being of the people.
Sec 36. Assistance to people's and non governmental organizations
An LGU may thru its local chief executive and with the concurrence of the
sanggunian concerned, provide assistance, financial or otherwise to such people's and
b. Except for losing candidates in barangay elections, no candidate who lost in any
elections shall within 1 year after such election be appointed to any office in the
Government or any GOCC or in any of the subsidiaries
Section 95. Additional or double compensation
No elective or appointive local official or employee shall receive additional,
double or indirect compensation unless specifically authorized by law, nor accept,
without the consent of Congress, any present, emoluments, office, or title of any kind
form any foreign government. Pensions or gratuities shall not be considered additional
or double or indirect compensation.
Article 177. IRR. Practice of profession. Same as Section 90, LGC
Article 179. IRR Prohibited business and pecuniary interest.
a. It shall be unlawful for any local government official or employee whether
directly or indirectly, to:
1. Engage in any business transaction with the LGU in which he is an official or
employee or over which he has the power of supervision or with any of its
authorized boards, officials, agents or attorneys where money is to be paid, or
property or any other thing of value is to be transferred, directly or indirectly, out
of the resources of the LGU to such person or firm;
2. Hold such interests in any cockpit or other games licensed by LGU
3. Purchase any real estate or other property forfeited in favor of an LGU for unpaid
taxes or assessment or by virtues of a legal process at the instance of the said
LGU
4. Be a surety for any person contracting or doing business with an LGU for which a
surety is acquired; and
5. Possess or use any public property of an LGU for private purposes
b., All other prohibitions governing the conduct of national public officers relating to
prohibited business and pecuniary interest so provided in RA 6713, otherwise known as
the Code of Conduct and Ethical Standards of Public officials and Employees, and other
rules and regulations shall also be applicable to local government officials and
employees.
Read SC Circular No. 12 dated June 30, 1988
Circulars passed by the SC and administrative agencies are a bit more difficult to
research. They're probably not that important anyway probably.
1. Javellana v. DILG 212 SCRA 475
Facts: Attorney Edwin Javellana was a city councilor of Bago City, Negros
Occidental. He was accused of engaging in the practice of law without securing
authority form the Regional Director of the Department of Local Government. He also
filed a case against the City Engineer, obviously a fellow city official. Javellana contends
that the 2 ordinances and Sec. 90 of the LGC of 1991 which served as the basis of the
charges against him were unconstitutional because, according to Article VIII Section 5
of the 1987 Constitution, only the Supreme Court may promulgate rules and regulations
for the practice of law. He also attacked the said laws for being discriminatory for they
ganged upon lawyers and doctors when other similar professions like teachers and
morticians were not affected.
Held: Javellana is wrong. Reasons:
1. His contention that Section 90 of the LGC of 1991 and DLG Memorandum
Circular No. 90-81 violate Article VII, Section 5 of the Constitution is completely off
tangent. Neither the statute nor the circular trenches upon the Supreme Court's power
and authority to prescribe rules on the practice of law. The LGC and DLG
Memorandum Circular No. 90- 81 simply prescribes rules of conduct for public officials
to avoid conflict of interest between the discharge of their public duties and the private
practice of their profession, in those instances where the law allows it.
2. Section 90 of the LGC does not discriminate against the lawyers and doctors. It
applies to all provincial and municipal officials in the professions or engaged in any
occupation. Section 90 explicitly provides that sanggunian members may practice their
professions, engage in any occupation or teach in school except during session hours.
If there are some prohibitions that apply particularly to lawyers, it is because of all the
professions, the practice of law is more likely than other to relate to or affect the area of
public service
2. Villegas v. Legazpi 113 SCRA 39
Facts: Raul Villegas was an Assemblyman of the Batasang Pambansa form the
province of Cebu. Estanislao Fernandez was also an Assemblyman (from where, the
case doesn't say, but that's not important). Both were accused of violating Sec. 11
Article VIII of the 1973 Charter which states that: No member of the National Assembly
shall appear as counsel before any court inferior to a court without appellate jurisdiction.
The records show they appeared as counsel for cases which were exercised by the
CFIs in their original jurisdiction. Did they violate the constitutional prohibition?
Held: Yes. Stated positively, the constitutional provision allows Assemblyman to
appear only when the court handling their case exercise appellate jurisdiction. Only
Appellate jurisdiction is permitted because the office of the Assemblyman carry so much
influence and prestige that they might unduly influence upon the administration of
justice.
3. Noriega v. Sison 125 SCRA 293
Facts: The name of the guy here is Emmanuel Sison. We place emphasize on
the name here coz the complainant Hermino Noriega made such a big deal out of it
Noriega claimed that Sison, an attorney who works as a Hearing Officer for the SEC,
held himself out to the public as Atty. Manuel Sison and under such a gross
misrepresentation of his name handled a case for a close family friend. Noriega said
that Sison violated the prohibition on government employees form practicing their
professions. Sison replied that the SEC, thru associate commissioner, authorized him to
allow as counsel for such and that he did it for free.
Held: Sison's appearance as counsel as cited was an isolated case, the same
therefore did not constitute practice of law since he did not receive pecuniary benefit
(Note that this case took place before the advent of the Cayetano v Monsod ruling). The
case against him seemed more like an instrument of harassment Noriega since the
latter once lost to Sison in a SEC case. There is simply no evidence that the
interchanges his name for a fraudulent purpose (the guy's entitled to use a nickname
like everybody else, right?) nor this pleading which revealed his name to be Manuel
Sison be tainted with deception since it was a mistake of Sison's part and he
consistently tried to correct the same by pointing it out in court.
ELECTIVE OFFICIALS
A. Qualification and Election
1. Frivaldo v. COMELEC 257 SCRA 727
Facts: The dissenting opinion by Justice Davide here is both prophetic and ironic
because he spoke that sovereignty cannot be fragmentized because such fragment
cannot be treated as a whole. Davide was talking about the rule that the popular will of
the people (of Sorsogon) in electing Juan Frivaldo as governor should not be frustrated
since he garnered the most votes. Yet Frivaldo won under a cloud of doubt because he
may not have legally reacquired his citizenship in time for the elections. To allow
Frivaldo as governor just because the popular will of the electorate should not be
frustrated but setting aside the rule of law in the process would be anarchy. Davide
said (How ironic that it was Davide himself who swore in GMA as President during
EDSA II)
The majority opinion however, fortunately or otherwise, is the prevailing
rule, Frivaldo filed his certificate of candidacy for governor on March 20, 1995. Raul
Lee, the eventual second placer, filed a petition with the COMELEC to disqualify
Frivaldo because he was not yet a Filipino citizen at the time. The COMELEC ruled in
favor of Lee but since Frivaldo moved for reconsideration, his candidacy continued.
Frivaldo eventually topped the elections but on June 30, 1995, the COMELEC acting on
Lee's petition, proclaimed Lee as governor.
A week later, Frivaldo filed a petition claiming that on June 30, 1995 (day of Lee's
proclamation), he took his oath of allegiance as a Filipino citizen after his August 17,
1994 petition for repatriation has been granted. The COMELEC thus proclaimed
Frivaldo as winner.
Lee contends: 1. that Frivaldo's disqualification due to his lack of citizenship is a
continuing condition and rendered him ineligible to run for governor; and 2. the alleged
repatriation of Frivaldo cannot be retroactive.
Held: Lee is wrong (or maybe, wronged). Reasons:
1. Under Sec. 39 of the LGC of 1991, there is no showing that a candidate for an
electoral position must be a Filipino citizen at any particular date and time. Admittedly,
there was the objection that since a candidate must have been a registered voter
1. Permanent Vacancies
* Sec 44. Permanent vacancies in the office of the governor, vice governor,
mayor and vice mayor.
a. If a permanent vacancy occurs in the office of the governor or mayor, the vice
governor or vice mayor concerned shall become the governor or mayor. If a permanent
vacancy occurs on the office of the governor, vice governor, mayor, or vice mayor
as the case may be. Subsequent vacancies in the said office shall be filled automatically
by other sangguniang members according to their ranking as defined therein.
b. If a permanent vacancy occurred in the office of the punong barangay, the
highest ranking sangguniang barangay member or, in the case of his permanent
inability, the second highest ranking sanggunian member shall become the punong
barangay.
c. A tie between or among the highest ranking sangguniang members shall be
resolved by the drawing of lots
d. The successors as defined herein shall serve only the unexpired portions of
their predecessors.
For purposes of this chapter, a permanent vacancy arises when an elective local
official fills a higher vacant office, refuses to assume office, fails to qualify, dies, is
removed from office, voluntarily resigns, or is otherwise permanently incapacitated to
discharge the functions of his office.
For purposes of succession as provided in this chapter, ranking in the
sanggunian shall be determined on the basis of the proportion of votes obtained by
each winning candidate to the total number of registered voters in each district in the
immediately preceding local election.
* Sec 45. Permanent vacancies in the sanggunian
a. Permanent vacancies in the sanggunian where automatic successions
provided above do not apply shall be filled by appointment in the manner provided:
1. The President, thru the Executive Secretary, in the case of the Sangguniang
Panlalawigan and the Sanggunian Panlungsod of highly urbanized cites and
independent component cities;
2. The governor, in case of the sangguniang panlungsod of component cites and
the sangguniang bayan
3. The city or municipal mayor, in case of the sangguniang barangay, upon
recommendation of the sangguniang bayan concerned
b. Except for the sangguniang barangay, only the nominee of the political party under
which the sangguniang member concerned had been elected and whose elevation to
the position next higher in rank created the last vacancy in the sanggunian shall be
appointed in the same manner herein provided. The appointee shall come form the
same political party as that of the sangguniang member who caused the vacancy and
shall serve the unexpired term of the vacant office. In the appointment herein mentioned
a nomination and a certificate of membership of the appointee from the highest official
of the political party concerned are conditions sine qua non and any appointment
without such nomination shall be null and void and shall be a ground for administrative
action against the official thereof.
c. In case the permanent vacancy in the representation of the youth and barangay in the
sanggunian, said vacancy shall be filled automatically by the official next in rank by the
organization concerned
2. Temporary Vacancies
* Section 46 Temporary vacancies in the office of the local chief executive
a. When the governor city or municipal mayor or punong barangay is temporarily
incapacitated to perform his duties for physical or legal reasons such as but not limited
to, leave of absence, travel abroad, suspension from office, the vice-governor, city or
municipal vice-mayor or the highest ranking sangguniang barangay member shall
automatically exercise the powers and perform the duties of the local chief executive
concerned except the power to appoint, suspend, or dismiss employees which can only
be exercised if the period of the temporary incapacity exceeds for 30 working days
b. Said temporary incapacity shall terminate upon submission to the appropriate
sanggunian of a written declaration by the local chief executive concerned that he has
to return back to office. In cases where the temporary incapacity is due to legal causes
the local chief executive concerned shall also submit necessary documents that said
legal causes no longer exist.
c. When the incumbent local chief executive is traveling within the country but
outside his territorial jurisdiction for period not exceeding 3 consecutive days, he may
designate in writing an officer-in-charge of the said office. Such authorization shall
specifies the powers and functions that the local official concerned shall exercise in the
absence of the local chief executive except the power to appoint, suspend, or dismiss
employees
d. In the event, however, that the local chief executive concerned fails or refuses
to issue such authorization, the vice-governor, the city or municipal vice-mayor, or the
highest ranking sangguniang barangay member, as the case may be, shall have the
right to assume powers, duties and function of the said office on the 4 th day of absence
of the said local chief executive, subject to the limitation provided in subsection (C)
hereof.
e. Except as provided above the local chief executive in no case authorized any
local official to assume the powers, duties and functions, other than the vice-governor,
the city or municipal vice-mayor, the highest sangguniang barangay member, as the
case may be.
3. Resignation
* Article 82 IRR. Resignation
Now the position of vice-guy was vacant. The secretary of local government thus
appointed Aurelio Menson, a senior member of sangguniang panlalawigan as vicegovernor.
Everything would have been fine except for one thing: the LGC of 1983 does not
provide for succession of the office of the vice-governor (even the LGC of 1991 as well).
Still, Menzon did serve for more than a year as vice-governor.
On July 7, 1989, after some serious debate on the legality of Menson's
appointment, the sangguniang panlalawigan issued a resolution holding invalid the
appointment of Menson as vice-governor. Their reasoning: legally speaking, there is no
vacancy in the office of the vice-governor cause no law recognizes its existence. And
granting that such vacancy legally exists, the law does not authorize secretary of local
government to have an appointment thereto. As a result, poor Menson was not paid
emoluments attached to his office as vice-governor.
Was there really a vacancy? Is Menson entitled to the emoluments?
Held: 1. Menson was appointed precisely to avoid such scenario. Besides, the
law on public officers is clear on the matter. There is no vacancy whenever the office is
occupied by a legally qualified incumbent. In a scenario there is a vacancy when there
is no person lawfully authorized to assume and exercise at present the duties of the
office.
Applying the definition of vacancy in this case, it can be readily seen that the
office of the vice-governor was left vacant when the duly elected vice-governor
Leopoldo Petilla was appointed acting governor. In the eyes of the law, the office to
which he was elected was left barren of a legally qualified person to exercise the duties
of the vice-governor
2. It may be noted under commonwealth act no. 588 and the revised
administrative code of 1987, the President is empowered to make temporary
appointments in certain public offices, in case of any vacancy that may occur.
Admittedly, both laws deal only with the filling of vacancies in appointive positions.
However, in the absence of any contrary provision in the local government code and in
the best interest of public service, the SC saw no-cogent reason why the procedure thus
outlined by the two laws may not be similarly applied in the present case. Petilla et. al.
contend that the provincial board is the correct appointing power. This argument has no
merit. As between the President who has supervision over local government as
provided by law and the members of the board who are junior to the vice-governor, the
SC has no problem ruling in favor of the president, until the law provides otherwise.
3. In view of the foregoing, Menson's right to be paid the salary attached to the
office of the vice-governor is indubitable. And, even granting that the President, acting
through the secretary of local government, possesses no power to appoint the
petitioner, at the very least, the petitioner is de facto officer entitled to compensation.
4. The SC explained that the vacancy must always be filled, in this wise: A
vacancy creates an anomalous situation and finds no approbation under the law for it
deprives the constituents of the right of the representation and governance in their own
local government. In a republican form of government, the majority rules through their
chosen few, and if one of them is incapacitated or absent, etc, the management of
governmental affairs, may be hampered. Necessarily, there will be a consequent delay
in the delivery of basic services to the people of Leyte if the governor or the vicegovernor is missing
3. Sangguniang Bayan of San Andres, Catanduanes v. CA 284 SCRA 276
Facts: Augusto Antonio was a barangay captain of Sapang Palay, San Andres,
Catanduanes in March 1989. This guy later became president of the Association of
Barangay Councils or ABC. Thanks to the LGC of 1983, his position also entitles him to
be a member of the sangguniang bayan of the Municipality of San Andres.
Meanwhile, the election for president of the Federation of the Association of
Barangay Councils (ABC) was for the municipality. FABC was for the province was
declared void for lack of quorum so the provincial council was forced to reorganize. As
a result, the DILG secretary, in recognition of Antonio as a power hungry politician,
designated him as a temporary member of the Sangguniang Panlalawigan. Nenito
Aquino, the ABC vice-president took his place. Antonio however, never questioned
Aquino as his replacement. Antonio tendered his resignation from the sangguniang
bayan (but not as ABC president) and would later on serve the sangguniang
panlalawigan for 2 years.
Some time afterwards, the election for president of FABC above quoted, which
was once declared void, was reversed by the SC. Also, was found to unqualified for
membership in the Sangguniang Panlalawigan so he got promptly kicked-out.
A year passed. Then Antonio heard that Aquino resigned from the presidency of
the ABC. Antonio now wants his old job back as ABC president. The Sangguniang
Bayan refused to take him back, saying he resigned from the Sangguniang Bayan a
long time ago. Antonio replied that the third requirement for his valid resignation
acceptance by the president or his alter ego was missing. Moreover, if his resignation
was valid he did not resign as ABC president and said position still carries with it the
benefit of being an ex-officio member of the Sangguniang Bayan. The Sangguniang
Bayan countered that he either did one of two things resignation or abandonment of
his old post.
Held: Antonio did not effectively resign but he did abandon his post. Reasons:
1. Resignation as the Act of giving up or the act of an officer by which he
declines his office and renounces the further right to use it. It is an expression of the
incumbent in some form expressed or implied or the intention to surrender renounce
and relinquish the office and the acceptance by competent and lawful authority. To
constitute a complete and operative resignation from public office, there must be: a. an
intention to relinquish a part of the term; b. an act of relinquishment; and c. an
acceptance by the proper authority. The last one is required by reason of Article 238 of
the Revised Penal Code.
Antonio did not effectively resign because the third element is missing. While it is
true that the LGC is silent as to who shall accept the resignation of a Sanggunian
Bayan member, jurisprudence has held that in the absence of statutory provisions as to
whom resignations shall be submitted, the appointing person or body shall receive the
resignation. The president or his alter ego is the appointing person in this case and
there was no evidence that either of them have received Antonio's resignation.
2. Antonio however, abandoned his post. Abandonment of an office has been
defined as the voluntary relinquishment of an office by the holder with the intention of
terminating his possession and control thereof. The following clearly manifest the
intention of private respondent to abandon his position: 1. his failure to perform his
function as member of the Sangguniang Bayan. 2. his failure to collect the
corresponding remuneration for the position, 3. his failure to object to the appointment
of Aquino as his replacement in the Sangguniang Bayan, 4. his prolonged failure to
initiate any act to re assume his post in the Sangguniang Bayan after the Supreme
Court had nullified his designation to the Sangguniang Panlalawigan.
On the other hand, the following, the following overt acts demonstrate that he
had affected his intention 1. his letter of resignation from the Sangguniang Bayan, 2.
his assumption of office as member of said Sanggunian Panlalawigan 3. his faithful
discharge of his duties and functions as member of said Sanggunian and 4. his receipt
of the remuneration for such post.
While it was true that Antonio was designated as member of the Sanggunian
Panlalawigan meaning his appointment there was merely to discharge duties in
addition to his regular responsibilities as a Sanggunian Bayan Members still his
express and implied acts clearly indicate hi abandonment of the latter.
3. Lastly, Antonio, who remained ABC president, claims the legal right to be a
member of the Sangguniang Bayan by virtue of Section 146 of BP Blg 337. However,
his right thereto is not self executory, for the law itself requires another positive act an
appointment by the President or the secretary of local government per EO 342. What
Antonio could have done in order to be able to re assume his post after Aquino's
resignation was to seek a reappointment form the President of the secretary of local
government. By large, Antonio cannot claim an absolute right to the office which. By his
own actuations, he is deemed to have relinquished.
4. Gamboa Jr. v. Aguirre Jr. 310 SCRA 867
Facts: In the 1995 elections, we have the following winners from Negros
Occidental: Rafael Coscolluela as governor; Romeo Gamboa as vice governor; and
Marcelo Aguirre and Juan Araneta as Sangguniang Panlalawigan (SP). Now, under the
LGC of 1991, the vice governor shall also be the officer of the SP. Keep this in mind
later on.
The governor went away on an official trip abroad. Before he left, he designated
vice governor as acting governor. So the vice governor became acting governor. But
when vice governor Gamboa, who was now acting governor as well, tried to preside
over SP sessions, some SP members resented and even filed a case in court to prohibit
him from doing so. The court even declared Gamboa as temporarily legally
incapacitated to preside over the sessions of the SP during the period that he is the
acting governor. Was the trial court correct?
Held: Yes, if you'll look at the composition of the SP, no presence of the
governor. can be found. Since Gamboa became acting governor., he technically had
given up his SP membership notwithstanding him being still vice governor. since the
LGC of 1991 is clear that the composition of the SP should not have even the slightest
hint of governor's presence not even his smell. What the law enumerates, the law
necessarily excludes. An acting give smells like a governor. For all other purposes
however, Gamboa still remains as vice governor.
In such case, since the vice governor. cannot preside, the SP members present
and constituting a quorum shall elect a temporary presiding officer form among
themselves (Sec 49b, LGC)
C. Recall(See 69-75, LGC and Art 154 162, IRR)
* Sec 69, LGC. By whom exercised. The power of recall for loss of confidence
shall be exercised by regular voters of an LGU to which the local elective official
subject to such recall belongs.
* Sec 70 Initiation of the recall process
a. Recall may be initiated by a preparatory recall assembly or by the registered
voters of the LGU to which the local elective official to such recall belongs.
b. There shall be a preparatory recall assembly in every province, city, district
and municipality which shall be composed of the following:
1. Provincial level. All the mayors, vice mayors and sanggunian members of
the municipalities and component cities
2. City level: all punong barangay and sangguniang barangay members in the
city
3. Legislative district level. In case where sangguniang panlalawigan
members are elected by district, all elective municipal officers in the district
and in cases where sangguniang panlungsod members are elected by
district, all elective barangay officials in the district and
4. Municipal level. All punong barangay and sangguniang barangay members
in the municipality.
c. A majority of all the preparatory recall assembly members may convene in
session in a public place initiate a recall proceeding against any elective official in the
LGU concerned. Recall of city, provincial and municipal officials shall be validly initiated
through a resolution adopted by a majority of all the preparatory recall assembly
concerned during its session called for the purpose.
d. recall of any elective provincial, city, or municipal or barangay official may also
be validly initiated on petition of at least 25% of the total number of registered voters in
the LGU concerned during the election which the local official sought to be recalled was
elected.
1. A written petition for recall duly signed before the election registrar or his rep
and in the absence of rep of the petitioner and a rep of the official sought to be recalled
and in a public lace in the province, city or municipality or barangay as the case maybe,
shall be filed with the COMELEC thru its office of the LGU concerned. The COMELEC
or its duly authorized rep shall cause the publication of the petition in a public and
conspicuous place for a period of not less than 10 days nor more than 20 days for the
purpose of ratifying the authenticity and genuineness of the petition and the required
percentage of voters.
2. Upon the lapse of the aforesaid period, the COMELEC or its duly authorize rep
shall announce the acceptance of candidates to the position and thereafter prepare a
list of candidates which shall include the name of the official sought to be recalled.
*Sec 71 Election on recall. Upon filing of a valid resolution or petition for recall with the
appropriate local office of the COMELEC, the Commission or its duly recognized rep
shall set the date of the election on recall, which shall be not later than 30 days after the
filing of the resolution or petition for recall in the case of the barangay, city, or municipal
officials and 45 days in the case of provincial officials. The official officials sought to be
recalled shall automatically be considered as a duly registered candidate or candidates
to pertinent positions and like other candidates, shall be entitled to be voted upon.
*Sec 72 effectivity of recall. The recall of an elective local official shall be effective only
upon the secretion and proclamation of a successor in the person of the candidate
receiving the highest number of votes cast during the election on recall. Should the
official sought to be recalled receive the highest number of votes, confidence in him is
thereby affirmed and he shall continue in office.
*Sec 73 Prohibition form resignation. The elective local official sought to be recalled
shall not be allowed to resign while the recall process is in progress.
*Sec 74 Limitations on recall
a. An elective local official may be the subject of a recall election only once during the
term of his office or loss of confidence.
b. No recall shall take place within 1 year from the date of the official's assumption to
office of 1 year immediately preceding a regular local election.
* Sec 75. Expenses incidental to recall elections. All expenses incidental to recall
elections shall be borne by the COMELEC. For this purpose, there shall be included in
the annual General Appropriation Act a Contingency fund at the disposal of the
COMELEC for the conduct of recall elections.
* Art 154 162, IRR. Exactly the same as above, but with addition of Who may be
recalled (see below)
1. Requisites
If there's such a thing as requisites of a recall, it's probably found buried in
Section 69 and 70 of the LGC of 1991. The requisites probably are:
a. Initiation, either thru direct action by the people or thru a preparatory recall
assembly; and
b. Election
initiating recall is because admittedly, initiating recall thru direct action by the people is
difficult and expensive.
4) Davides dissent: the power to initiate recall includes the power not to initiate.
The power to initiate becomes meaningless if another body is authorized to do it for the
electorate. Its not hard to see that in reality, its far easy get majority of the PRA to
initiate a recall proceeding. In effect a small group can easily negate the power of the
vast electorate to initiate recall (therefore, the good justice is doubtful of the republican
system of the government). What congress should have done is to reduce the minimum
25% requirement down to 15 or 20% (which is good idea).
2. Evardone v. COMELEC 204 SCRA 464
Facts: The guys here calling for a recall of an elective official failed because they
initiated the recall a bit too late.
Felipe Evardone won as mayor of municipality of Sulat, Eastern Samar in the
1988 election. 2 years later, Alexander Apelado and friends filed a petition for the recall
of Evardone. The COMELEC approved the signing of the said petition for recall.
There was some ballyhoo regarding a TRO issued by the SC retraining Apelado
and friends from proceeding of the signing of the petition, but thats not important. What
Everdone complaining about is that the COMELEC cannot formulate rules and
regulations governing the procedure of recall elections because according to the 1987
Constitution, Congress is supposed to pass a new local government code which would
provide for the procedure in recall elections. Since such a code wasnt passed at the
time, the initiation for recall must fail because theres no procedure in existence to follow
anyway.
Held: The initiation of recall must fail, but for a different reason.
1) Its true tat the LGC of 1991 has yet to be passed. However, the LGC of 1983
(BP 337) was still in force in hat time as can be shown in the proceedings of the 1986
Constitutional Commission where the effectiveness of BP 337 was expressly
recognized. BP 337 authorizes the COMELEC to supervise and control recall elections
and promulgate the necessary rules and regulations.
2) However, the SC promulgated this decision in 1991. The 1992 elections was
only 7 months away, BP 337 disallows the holding of recall elections one year
immediately preceding a regular local election.
3. Paras v. COMELEC 264 SCRA 49
Facts: Pati SK elections ba naman pinatulan ng recall.
Danilo Paras won as Punong Barangay in the 1994 barangay elections of Pula,
Cabanatuan City. A petition for his recall as Punong Barangay was filed by the
registered voters of the barangay. Paras managed to delay the holding of the recall
elections 3 times (note that the term of a Punong Barangay is for 3 years only). The
third attempt at a recall election was slated for January 13, 1996. Paras gleefully noted
that the recall action was barred by representation as no recall shall take place. 1 year
immediately preceding a regular election as managed by SEC.74(b), LGC of 1991.
Claudio however complained that what his opponents did was contrary to section
74 of the LGC 1991, because of the word recall in said section should be interpreted
not only to mean a recall election alone, but is also intended to include the convening of
the PRA and the filling by it of a recall resolution. If Claudios interpretation is correct,
then his enemies may have indeed violated the statutory prohibition that no recall shall
take place within 1 year from the date of the officials assumption to office since the
PRA did indeed convene less than a year from Claudios assumption into office.
Claudio also argued that the phrase regular local election in said Section 74(b)
includes the election period for that regular election and not only the date of such
election.
Held: Claudio is wrong. Reasons:
1) The word recall in Section 74(b) refers to the recall election and not the
preliminary proceedings to recall. Section 74 speaks of limitations on recall which,
according to section 69, is a power which exercised by the registered voters of an LGU.
Since the voters do not exercise such right except in an election, it is clear that the
initiation of recall proceedings is not prohibited within the 1 year period provided.
2) Another reason why the initiation of recall proceedings is not prohibited within
the 1 year period provided in 74(b) is that to hold the otherwise would be to unduly
restrict the constitutional right of speech and of assembly of its members. Indeed, it
would be wrong to assume that such assemblies will always eventuate in a recall
election. To the contrary, they may result in the expression of confidence in incumbent.
3) The election period is not included in the phrase regular local election.
Claudios interpretation would severely limit the period during which a recall election
may be held. Such an interpretation must be rejected because it would devitalize the
right of recall which is designed to make LGUs more responsive and accountable
D. Local Initiative and Referendum (Sec. 120-127, Art. 133-153, IRR)
*Sec. 120, LGC. Local initiatives defined. Local initiative is the legal process
whereby the registered voters of an LGU may directly propose, enact, or amend any
ordinance.
*Sec. 121. Who may exercise. The power of local initiative and the referendum
may be exercised by all registered voters of the provinces, cities, municipalities and
barangays.
*Sec. 122. Procedure in local initiative.
a) Not less than 1,000 registered voters in case of provinces and cities, 100 in
case of municipalities, and 50 in case of barangays, may file a petition with the
sanggunian concerned proposing the adoption, enactment, repeal or amendment of an
ordinance.
b) If no favorable action is taken thereon by the sanggunian concerned within 30
days from its presentation, the proponents, thru their duly authorized representatives,
may invoke their power of initiative giving notice thereof to the sanggunian concerned.
*Sec. 127. Authority of courts. Nothing in this chapter shall prevent or preclude
the power courts from declaring null and void any proposition approved pursuant to this
Chapter for the violation of the Constitution or want of capacity of the sanggunian
concerned to enact the said measure.
NOTE: Articles 133-153, IRR are roughly the same Section 120-127 above.
However, we should take note of Art. 145, IRR, which basically states the number of
signature required.
1) In a province or city at least 10% of the registered voters therein, with each
legislative district represented by at least 3 % of the registered voters therein.
2) In a municipality at least 10% of registered voters therein, with each
barangay represented by at least 3% of registered voters therein.
3) In a barangay 10% of registered voters therein.
1. Garcia v. COMELEC 237 SCRA 279
Facts: The Sangguniang Bayan (SB) ng Morong, Bataan passed Resolution No.
10 wherein agreed to the inclusion of the municipality of Morong as part of the Subic
Special Economic Zone in accordance with RA 7227
Enrique Garcia (whos this guy? His name keeps popping out of nowhere) and
friends filed a petition with the SB to annul the said resolution. When their petition went
unheeded, Garcia resorted to the power of initiative under the LGC of 1991. The
COMELEC however denied the petition for local initiative on the ground that under the
LGC of 1991m the subject of local initiative refers only to an ordinance and not a
solution. Is the COMELEC correct?
Held: No. and the SC made COMELEC pay by dumping tons of legal basis
providing that resolutions can also be the subject of local initiatives thus making the
case as written unnecessarily long. Some reasons are:
1) Sec. 32 of Article VI of the Constitution says that initiative and referendum is a
system wherein the people can directly propose and enact laws or approve or reject any
act or law. The word act makes it clear that resolutions are also included initiatives.
2) RA 6735 defines 3 system of initiative, one of them being initiative on local
legislation which included, among others, resolution.
3) In the LGC itself, Section 124 says, Initiatives shall extend only to subjects or
matters which are within the legal powers of the Sanggunian to enact. Definitely, the
scopes of Sanggunians powers include resolutions which make them covered under
initiatives.
E. Disciplinary Action (Art. 124, IRR)
*Article 124. Grounds for Disciplinary Action.
a) An elective local official may be censured, reprimanded, suspended or
removed from office after due notice and hearing on the following grounds:
1) Disloyalty to the republic of the Philippines.
2) Culpable violation of the Constitution.
3) Dishonesty, oppression, misconduct in office, gross negligence or
dereliction of duty.
and a becoming regard for the principle of separations of powers demand that the
action of said officer or body should be left undisturbed.
2. Llamas v. Orbos 202 SCRA 844
Facts: Mariano Un Ocampo III was the incumbent governor of the province of
Tarlac in 1989. he was charged by the vise governor Rodolfo Llamas of violating RA
3019, the Anti-Graft and Corrupt Practices Act Specifically, he was charged with
executing a loan agreement with a non-stock and a non-profit organization headed by
the governor himself as chairman wherein said agreement was grossly inimical to the
interest of the Provincial Government (because the loan, among others, did not provide
for interest and security). The Department of Local Government Secretary Oscar Orbos,
after reviewing the governors case, slapped a 90 days suspension (not preventive
suspension) on the hapless governor. Thereafter, the vise governor took over as acting
governor.
The governor filed a motion for reconsideration. However the DLG secretary, in
the spirit of Christmas perhaps, filed a resolution granting executive clemency to the
governor by reducing his sentence to that portion had already served.
The vise governors now question the legality of issuing executive clemency or
pardon to the administrative case when the same should apply only to criminal cases.
Held: Llamas is incorrect. The 1987 Constitution makes no distinction as to
criminal or administrative cases. The phrase after conviction of final judgment does not
make explicit reference to criminal cases fact, the Constitution does not allow pardon in
impeachment cases. That the Constitution does not make a same exemption to the
administrative cases shows that executive clemency can be granted in administrative
cases.
Section 43 of PD 807 also recognizes executive clemency in administrative
cases in meritorious case by commutation or removal
Padillas Dissent: the spirit and intent of pardons is to afford relief from the
enforcement of the criminal which imposes penalty and which appears unduly harsh. To
grant pardons to release private obligations prevent or destroy civil rights is plain abuse.
3. Aguinaldo v. Santos 212 SCRA 768
Facts: Rodolfo Aguinaldo was elected governor of Cagayan in 1988. Two years
later, after due no hearing, the Department of Local Government Secretary Luis Santos
found Aguinaldos guilty of disloyalty to the Republic and of culpable violation of the
Constitution. Santos ordered Aguinaldos removal from of Pending criminal charges of
disloyalty to the republic, under Art. 137, RPC were also lodged against him:
Aguinaldo questioned the legality of his removal with the SC. In the meantime,
Aguinaldo filed certificate of candidacy for governor again. 3 disqualification cases were
filed against him on the ground he was removed from office. Still, he was allowed to run
and won a landslide victory.
Held: Since Aguinaldo was re-elected as governor, the pending administration
case against regarding his removal from office was rendered moot and academic. The
reason is that the electorate clearly forgiven him for the administrative misconduct he
committed during the last term. This is the rule along with the theory that each term is
separate from other terms, and that the reelection to office operates as a condonation
of the officers misconduct to the extent of cutting of the right to remove him therefore.
The foregoing rule, however, finds no application to criminal cases pending
against petitioner for acts he may have committed during the failed coup.
NOTE: Under the qualified agency doctrine, alter egos of the President have the
power to discipline, suspend or remove elective officials under the grounds provided by
law.
4. Yulo v. CSC 219 SCRA 470
Facts: Back in November 24, 1986, Officer-In-Charged Apolonio Elasigue of the
municipality of Calamba, Laguna terminated the services of Teofilio Mamplata and 43
other employees of said municipality. The basis municipality for the termination was
reorganization and the approval of a new starting pattern.
At first, the later-Agency Review Committee created under the Freedom
Constitution reviewed the case of the said employees.
The Merits System Protection Board (MSFB) of the CSC handled the case of the
43 employees. Pending the disposition of the case however, Elasigue last in the
mayoralty race to Jesus Miguel Yulo.
Yulo was just as unsympathetic as Elasigue regarding the plight of the dismissed
employees. However, the MSFB found no sufficient evidence to prove the guilt of the
dismissed employees (the charges against them were questionable integrity as
insinuated by Yulo) and ordered the reinstatement of some 28 of them (which was
reduced further to 21 due to the death and/or reemployment of some of them) and
payment of their back wages. The CSC affirmed the MSFBs decision.
Yulo now tried a different tack: that the termination of employment of the said
employees was justified under a transitory provision of the Freedom Constitution which
states, All elective and appointive officials under the 1973 Constitution shall continue to
office until otherwise provided by the proclamation or executive order or upon the
designation or appointment and qualification of their successors, if such appointment is
made within the period of 1 year from February 25, 1986.
Held: The argument is devoid of merit. On his narration of facts, Yulo himself
admitted that private respondents services were terminated pursuant to the
reorganization and approval of the new staffing pattern of Calamba on November 3,
1986. Yulos argument to the effect that respondents were separated from the service
by virtue of the Freedom Constitution or Executive Order No. 17 is palpably an
afterthought. It may be reiterated here that the main reason why the then inter-Agency
Review Committee refused to take cognizance of the instant case was because
Mamplata et al were not removed pursuant to Executive Order No. 17, such declaration
by the said Committee destroys whatever argument Yulo tried to build using the
Freedom Constitution as a basis.
More importantly, it is undeniable that private respondents employment with the
municipality was a lawfully terminated. On this score alone, the dismissed employees
ought to and must be reinstated. Illegal removal of career civil service employees in
violation of their Constitutional right to security of tenure will not be condoned under the
guise of reorganization.
5. Grego v. COMELEC 274 SCRA 461
Facts: Back in October 31, 1981, Humberto Basco was removed from his
position as Deputy Sheriff by the SC itself after a finding of serious misconduct in an
administrative case filed against him. The dispositive portion of the decision is important
in this case so its given special mention: Wherefore, finding the respondent Deputy
Sheriff Humberto Basco of the City Court of Manila guilty of all retirement benefits and
with prejudice to reinstatement to any position in the national or local government,
including its agencies and instrumentalities or government-owned or controlled
corporations.
But this guy doesnt give up in the face of adversity. He ran for councilor 3 times
in 1988, 1992 and 1995 in the City of Manila and won each time. His second and
third campaigns as councilor was however mired by disqualification lawsuits from left
and right as his sins from 1981 came back to haunt him.
Particularly, his third campaign for councilor ran into some serious legal obstacle.
One of them come from Sec. 40(b) of the LGC of 1991 which states that persons
running for any elective office are disqualified if they were previously removed from
office as a result if an administrative case. Another was that his proclamation as
councilor for the third time was allegedly void because his disqualification case was still
pending. Lastly, it seemed that the SC decision from 1981 forever barred him from
seeking public office. Will Humberto Lucky Basco overcome the odds and win?
Held: Yes, Reasons:
1) The LGC of 1991 cannot be applied retroactively, since no provision allows for
it. Basco misgivings happened way back in 1981 long before the inception of the LGC.
2) The suspension of the proclamation of a winning candidate on the ground of a
pending disqualification case lies within the discretion of the COMELEC according to its
evaluation of the evidence (Section 6, RA 6646). The findings of facts and conclusions
of the COMELEC, absence of a showing of grave, abuse of discretion, must be
generally respected and even given finality. Besides, absent and any determination of
irregularity in the election returns, it is a mandatory ministerial duty of the Board of
Canvassers to count the votes and declare the result.
3) The 1981 SC decision uses the word reinstatement (see above). Rules and
regulations issued by the Civil Service Commission defined reinstatement as the
reappointment of a person who was previously separated from the service x x x.
Obviously, Basco is not seeking to get reappointed but to get elected and re-elected. He
is not therefore barred from seeking public office.
2. Procedure (Sec. 84, LGC)
*Sec. 84. Administrative discipline. Investigation and adjudication of
administrative complaints against appointive local officials and employees as well as
their suspension and removal shall be in accordance in the civil service law and rules
and order pertinent laws. Te result of such administrative investigations shall be
reported to the CSC.
fluctuating exchange rate, and (3) the interest of the city under the administrative cases
be filed against Mayo Garcia.
The deputy Ombudsman handled Garcias case and recommended 6 moths
preventive suspension against the latter the maximum imposable under RA 6770, the
Ombudsman Law. Garcia now raises the following issues:
1. What is the effect of the reelection of the petitioner on the investigation of acts
done before his reelection? Did the Ombudsman for Visayas gravely abuse his
discretion in conducting the investigation of petitioner and ordering his preventive
suspension?
2. Assuming that the ombudsman properly took cognizance of the case, what law
should apply to the investigation being conducted by him, the LGC R.A 7160 of the
ombudsman law (R.A 6770)? Was the procedure in the law properly observed?
3. Assuming further that the ombudsman has jurisdiction, is the preventive
suspension of the petitioner based on strong evidence as required by law?
Held: The answers are:
1. Garcia cannot anymore be held administratively liable for an act committed
during a previous term. The meeting of minds to the contract, especially with regards to
the stipulation deemed prejudicial to the city has already occurred during the mayors
previous term. It hardly matters that the benefits of the contract are to be delivered
during Garcias current term.
However, the ombudsman did not commit the grave abuse of discretion. It was
Garcias misfortune that the office of the ombudsman, as empowered by the
constitution, decided to investigate his case on its own initiative (Article XI, Sec. 13 1987
Constitution). The ombudsman derives his authority to assume jurisdiction over Garcias
case under the constitution and RA 6670, the ombudsman law. And the power of the
ombudsman to preventively suspend an official subject to its administrative investigation
is expressly provided by RA 6670 as well.
2. Either law can apply to Garcias case but since the ombudsman decided, its
own initiative, to investigate Garcia, RA 6670 must prevail. There is no violation of the
LGC of 1991 because RA 6670 is a special law distinct from that of the LGC and
therefore, administrative complaints filed under RA 6670 must be treated under its
provisions and not with that of the LGC.
3. The news reports describing in detail Garcias misdeeds constituted strong
evidence to preventively suspend Garcia. However, the actual documentary evidence
was obtained after the mayor had already been preventively suspended. Considering
that the purpose of preventing suspension is to enable the investigating authority to
gather documents without intervention from petitioner, it can now be said that the
purpose in preventively suspending Garcia has already been achieved since actual
documentary evidence has already been discovered. The order preventively
suspending Garcia is deemed too harsh and should be shortened to the period he has
already served.
NOTE: duration of preventive suspension under the following laws:
1) LGC of 1991 maximum of 60 days
2) RA 6670 (Ombudsman Law) maximum of 6 moths
a) The employee must be found innocent of the charges which cause his
suspension; and
b) The suspension is unjustified.
Here, the second element is lacking, the reason being that the preventive
suspension of civil service employees charge with dishonesty, oppression or grave
misconduct, or neglect of duty is authorized by the CSC. It cannot, therefore, be
considered unjustified, even if later the charges are dismissed so as to justify the
payment of salaries to the employee concerned. It is one of those sacrifices which
holding the public office requires for the public good. For this reason, it is limited to 90
days unless the delay in the conclusion of the investigation is due to the employee
concerned. After that period, even if the investigation is finished, the law provides that
the employee shall be automatically reinstated.
2) An employee is entitled to back salaries during the preventive suspension
pending appeal. It must be remembered that preventive suspension pending
investigation is not a penalty but only a means of enabling the disciplining authority to
conduct an unhampered investigation. On the other hand, preventive suspension
pending appeal is actually punitive although it is in effect subsequently considered
illegal if respondent is exonerated and the administrative decision finding him guilty is
reversed. Hence, he should be reinstated with full pay for the period of the suspension.
Thus, S 47 (4) (Book V, Chapter 6, RAC 1987) states that respondent shall be
considered as under preventive suspension during the pungency of the appeal in the
event he wins. On the other hand, if his conviction is affirmed, if he is not exonerated,
the period of his suspension becomes part of the final penalty of suspension or
dismissal.
It is precisely because the respondents are penalized before his sentence is
confirmed that he should be paid as salaries in the event he is exonerated. It would be
unjust to deprive him of his pay as the result of the immediate execution of the decision
against him and continue to do so even after it is shown that he is innocent of the
charges for which he was suspended. Indeed to sustain the governments theory would
be to make the administrative decision not only executor but final executor. The fact is
that S.47 (2) and (4) are similar to the execution of judgment pending appeal under Rule
39, S.5 of the Rules of Court Rule 39 S.5 provides that in the event the executed
judgment is reversed, there shall be restitution or reparation of damages of equity and
justice may require.
4. Right of the Respondent (Art. 129, IRR)
*Art. 129. Right of respondent, IRR. The respondent shall be accorded full
opportunity to appear and defend himself in person or by counsel, to confront and
cross-examine the witnesses against him, and to require the attendance of witnesses
and the production of documentary evidence in his favor thru the compulsory process of
subpoena or subpoena duces locum.
5. Administrative Investigation and Appeals (Art. 131, IRR)
*Art. 130. Investigation and decision.
a) The investigation of the case shall be terminated within 90 days from the start
thereof. Unreasonable failure to complete the investigation after same period of 90 days
The case was resolved using position papers submitted by both parties. In its
resolution, the DILG found the governor guilty as charged and imposed a 6 months
suspension without pay on him.
Joson now claims he cannot be denied of his right to a formal investigation
granted under AO 21, thus the resolution finding him guilty should be declared null and
void. Is he correct?
Held: Yes, rejection of Josons right to a formal investigation is denial of
procedural due process Sec. __ of AO 23 states that only the parties to the case have
the right to decide whether they desire a formal investigation. AO 23 does not give the
investigating authority (which is the DILG Secretary by specific mandate of AO 23) the
discretion to determine whether a formal investigation should be conducted. The rights
of the respondent must be respected (Art. 129, IRR).
Another reason why Josons right to a formal investigation cannot be denied is
because he is an elective official. The rules on the removal and suspension of elective
local officials are more stringent because the official has only a limited term of office.
Suspension and removal will shorten this term of office, thus the official must be
accorded his rights under the law in order that the people who elected him into office will
not be unduly deprived of his services. The procedure of requiring position papers in
lieu of a hearing in administrative cases is expressly allowed with respect to appointive
officials but not to those elected.
2. Lupo v. Administrative Action Board 190 SCRA 69
Facts: Fructuso Arroyo, the OIC/CDO, Message Center and former CDO of
Telecom filed a complaint for dishonesty thru falsification (multiple) of official documents
against Maria Lupo, who committed said transgression in her capacity as Chief of
Personnel if Telecom, Region V. the telecom investigator conducted an informal factfinding inquiry. He came out with a memorandum recommending that Lupo be sternly
warned and that a repeat of such offense will merit her graver penalties.
The Secretary of the Department of Transportation and Communication however,
examined the memorandum. Based on said memorandum, the secretary filed a
resolution slipping6 Lupo with 1 year suspension and suspending her from promotion
for a period of 1 year.
Lupo appealed to the CSC. The CSC thru its Merit System Board ordered the
case to be remanded back to the telecom office for further investigation after which the
administrative action board (AAB) was to hear the merits of the case thru a trial.
The AAB however proceeded with the trial of the case without waiting for the
investigation to commence.
Lupo now complains she was not accorded procedural due process because no
formal charge has been filed against her and that the investigation conducted by the
telecom investigation was not a formal investigation but a mere fact-fact finding inquiry.
Held: Lupo is correct. Complaints against employees belonging to the CSC
system is governed by PD 807 says that a formal complaint that should first be filed
after which the respondent must be given the option to submit her self to a formal
investigation if her answer to the complaint is found to be unsatisfactory. Here, not only
was Lupo is given a chance to submit her self to a formal investigation, the DOTC
secretary immediately slapped her with a 1 year suspension based only a mere informal
inquiry. Also, the AAB started hearing her case without the benefit of a formal
investigation.
The cardinal primary rights of due to process in administrative hearings must
always be observed. Lupo must not be denied her right to a formal and full blown
administrative proceeding.
F. Read RA 6770 the Ombudsman Act of 1989
Read the case of Garcia v. Mojica (see p. 69) preferably in its entirely, in
order to best see how the Ombudsman Act was applied in an actual case
G. 1 Read AO No. 23, December 17, 1992
Read the case Joson v. Torres, (see p. 71) preferably in its entirely, in
order to best see how AO 23 was applied in an actual case.
G. 2 Read AO No. 121, March 10, 1992
VII. KATARUNGAN PAMBARANGAY LAW
Read sections 399 to 420, LGC. (Not e: the following information on the KBL and the
League of Local Government Units were lifted from the Political Law Reviewer by
Nachura).
A. The Barangay
1. Chief Officials and Officers
a) There shall be in each barangay a PB; 7 SB members, the SK
chairman, a barangay secretary and a barangay treasurer. There shall also be in every
barangay a lupong tagapamayapa. The SB may from community brigades and create
such other positions or officers as may be deemed necessary to carry out the purposes
of barangay government.
1) For purposes of the RPC, the PB, SB members, lupong
tagapamayapa in each barangay shall be deemed as persons in authority in the
jurisdiction, while other barangay officials and members who may be designated by law
or ordinance and charged with the maintenance of public order, protection and security
of life and property, or the maintenance of a desirable and balanced environment, and
any barangay member who come to the all of persons authority, shall be deemed
agents persons in authority in Milo v. Salonga, 152 SCRA 113, the barangay chairman
is a public officer who may be charged with arbitrary detention. In People v. Monton
(1998), it was held that the barangay chairman is entitled to posses and carry firearm
within the territorial jurisdiction of the barangay (Sec. 88(3), B.P. 337). He may not be
therefore prosecuted for illegal possession of firearms.
2. The Barangay Assembly
There shall be a barangay assembly composed of all person who are actual
residents of the barangay for at least 6 months 15 years of age over citizens of the
Philippines and duly registered in the list of barangay assembly members. It shall meet
at least twice a year to hear and discuss a semestral report of the SB concerning its
activities and finances as well as problems affecting the barangay.
a) Powers of the barangay assembly. Read Sec. 398, R.A 7160
3. Katarungang Pambarangay
a) Lupong Tagapamayapa. There is here by created in each barangay a
LT composed of the PB as chairman and 10 to 20 members. The lupon shall be
constituted every 3 years.
1) Powers of the Lupon (i) exercise administrative supervision over
the conciliation panels; (ii) meet regularly once a month to provide a forum for exchange
of ideas among its members and the members to share with one another their
observations and experiences in effecting speedy resolution of disputes and; (iii)
exercise such other powers and perform such other duties as may be prescribed by law
or ordinance.
b) Pangkat ng Tagapagkasundo. There shall constituted for each, dispute
brought before the lupon a conciliation panel to be known as the pangkat ng
tagapagkasundo, consisting 3 members who shall be chosen by the parties to the
dispute from the list of members of the lupon. Should the parties fail to agree on the
pangkat membership, the same shall be determined by lots drawn by the lupon
chairman.
c) Subject matter of amicable settlement; procedure, conciliation,
arbitration, effects of settlement and arbitration award.
4. Sangguniang Kabataan
a) Creation; composition. There shall be every barangay a SK to be
composed of chairman 7 members, a secretary and a treasurer. An official who during
his term of office shall have passed the age of 21 shall be allowed to serve the
remaining position for the term for which he was elected.
1) Powers and functions. Read Sec. 426 RA 7160
b) Katipunan ng mga Kabataan: Shall be composed of citizens of the
Philippines actually residing in the barangay for at least 6 months, who are 15 but not
more than 21 years of age, who are duly registered in the list of the SK or in the official
barangay list in the custody of the barangay secretary. He shall meet once every 3
months or at the call of the SK chairman, or upon written petition of at least 1/20 of its
members.
c) Pederasyon ng mga SK. There shall be an organization of all the
pederasyon ng mga SK
i) In municipalities, the pambansang pederasyon
ii) in cities, panlungsod na pederasyon
iii) In provinces, panlalawigang pederasyon
iv) In special metropolitan political subdivisions, pangmetropolitang
pederasyon;
v) On the national level; pambansang pederasyon
B. The Municipality. Read Sec. 440-447 RA 7160
Law because of the failure by the barangay chairman to constitute a pangkat to resolve
the parties differences.
Was the CA correct in its contention?
Held: No. Even though there was a failure to constitute a pangkat should the
barangay chairman, by himself fail to resolve the parties differences still is not denied
that the parties met the office of the barangay chairman for possible settlement. The
efforts of the barangay chairman, however proved futile as no agreement was reached.
Although no pangkat was formed, the SC believes that there was substantial
compliance with the law. From the foregoing facts, it is undeniable that there was
substantial compliance with presidential decree No. 1508 which does not require strict
technical compliance with its procedural requirements. Under the factual antecedents, it
cannot be said that the failure of the parties to appear before the pangkat caused any
prejudice to the case for private respondents considering that they already refused
conciliation before the barangay chairman.
To indulge the Pagbas in their stratagem will not only result in a circuitous
procedure but will necessarily entail undue and further delay injustice. This is inevitable
if this court should dismiss the complaint and require the parties to meet before the
pangkat, only to bring the case all over again through the hierarchy of courts and
ultimately back to us for decision on the merits. Obviously, this is the game plan of the
Pagbas. For, when the Pagbas appealed to respondent court, they did not at all assail
the propriety or correctness of judgment of the RTC holding them liable to petitioners for
the sum of money involved. Such primary substantive issue, therefore, has been laid to
rest, but private respondents would wish to keep the case alive merely on a conjured
procedural issue invoking their supposed right to confrontation before the pangkat.
LIGA NG MGA BARANGAY
A. Liga ng mga Barangay - Organization of all barangays for the primary
purpose of determining the representation of the liga in the sanggunians, and for
ventilating, articulating and crystallizing issues affecting barangay government
administration and securing, thru proper and legal means, solutions thereto. Read Sec.
491-495.
B. League of Municipalities. Organized for the primary purpose of ventilating,
articulating and crystallizing issues affecting municipal government administration, and
securing, thru proper and legal means, solutions thereto. Read Sec. 496-498
C. League of Cities. Read Sec. 499-501
D. League of provinces. Read Sec. 502-203
E. League and federation of Local Elective Officials. Read Sec. 508-510
I. Galarosa v. Valencia 227 SCRA 728
Facts: Basically the main issue here is only how to properly interpret Section 494
of the LGC 1991, which says:
Held: It should be noted that the barangay officials who were dismissed are not
provided with a definite of office under the LGC. The reason is that they were merely
appointed to their posts by punong barangay. However, since the punong barangay
who appointed the respondents has already stepped down from office, they are now at
the mercy of the new punong barangay who also possess the power of appointment.
The power of appointment is discretionary and thus implies that the power to remove is
also inherent in the former, since by necessity, the new punong barangay may choose
to remove the incumbent appointive barangay officials in order to make way for his
choice of new barangay officials.
It would be absurd to give section 389 an interpretation which would render
impotent the power of a newly elected punong barangay to choose his barangay
officials. Once the punong barangay has already appointed his choice officials however,
section 389 should then be applied in the sense that said officials cannot be removed by
the punong barangay who appointed them without the approval of the sanggunian
barangay.
VIII. LOCAL SPECIAL BODIES (ART. 181-188, IRR)
*Article 181 names the different local special bodies. The rest of the articles describe
the compositions and functions of each local special body. Only Article 181 will be
reproduced here.
*Article 181. Local special bodies. There shall be organized in the LGU concerned the
following local special bodies (every LGU, from the province down, shall have this local
special bodies the PLEB however shall be governed by RA 6975)
(a) Local Development Council
(b) Local Prequalification, Bids and Awards Committee
(c) Local Scholl Boards
(d) Local Health Board
(e) Local Peace and Order Council
(f) People Law Enforcement Boards
a) LDC (sec. 106, LGC). Each LGU shall have comprehensive multi-sector
development plan to be instituted by its development council and approved by its
sanggunian. For the purpose, the development council at the provincial, city, municipal
or barangay level shall assist the responding sanggunian in setting the direction of
economic and social development, and coordinating development efforts within its
territorial jurisdiction.
a.1) EO 463, May 17, 1991
- Entitled Establishing the relationship between the Regional Planning
and Development Board of the Autonomous Regional Government (of Muslim
Mindanao) and the national economic and development authority (NEDA) board
- Sec. 1. The ARG shall be guided by the synchronized planning,
programming and budgeting system (SPPBS) namely: The Medium term Philippine
development plan (MTPDP), the medium term technical assistance program (MTTAP)
and the regional development investment program (RDIP) in its planning, programming,
and budgeting activities.
- Sec. 2. The regional planning and development board of the
autonomous regional government shall prepare: a) Regional Development Plan (RDP)
consistent with the national development policies, goals, objectives and priorities
embodied in the Medium-Term Philippine Development Plan (MTPDP); and b) Regional
Development Investment Program (RDIP) and regional technical assistance program
which shall be included in the Medium Term Public Investment Program (MTPIP) and
the Medium Term Technical Assistance Program (MTTAP).
The RDP, RDIP and supporting technical assistance programs
shall be submitted directly to the office of the president for review and evaluation of their
consistency with the MTPDP and the MTPIP/MTTAP.
- Sec. 5. The Local Development Council (provincial, city/municipal)
shall be maintained the strengthened in order to ensure continuity in the development
planning process. The ARG may choose to reorganize the LDC through regional
legislation.
a. 2) RA 7640, December 9, 1962
a) RA 7640, December 9, 1962
b) Local PABC (sec. 37, LGC) There shall is hereby created a local
prequalification, bids and awards committee in every province, city and municipality,
which shall be primarily responsible for the conduct of prequalification of contractors,
bidding, evaluation of bids, and the recommendation of awards concerning local
infrastructure projects x x x.
c) Local School Boards (sec. 98, LGC) Creation, composition and function.
(The LSBs do the following: 1) determine, in accordance with the criteria set by the
DECS, the annual supplementary needs for the operation and maintenance of public
high schools in the LGU concerned; in other words, the annual school budget; 2)
authorize the LGU treasurer to disburse funds pursuant to budget; 3) serve as advisory
committee on educational matters; 4) recommended changer in name of public schools
within its assigned territorial jurisdiction; 5) act as an consultant on appointment of
division superintendent, district supervisor, school officials, etc.)
c. 1) LOI 1462, May 31, 1985
Eh?
d) Local Health Board (sec. 102, LGC) Creation and Composition. (The LHB do
the following: 1) Consistent with DOH rules, propose to sanggunian concerned; 2) serve
as advisory committee to sanggunian on local appropriations for public health purposes;
3) consistent with DOH standards, create committees which shall advise local health
agencies on matters such as personnel selection and promotion, etc.
d. 1) sec. 21, EO292
- Entitled INSTITUTING THE ADMINISTRATIVE CODE OF 1987
-Sec. 21, Chapter 5, Sec. IX on Health basically states that DOH shall
review and for the establishment, operation and maintenance of health
agencies funded by local governments.
e) Local Peace and Order Councils (Section 116, LGC) Basically, the local
peace and order councils will have the same composition and functions as prescribed in
EO 309. EO09, on the other hand is entitled REORGANIZING THE PEACE AND
ORDER COUNCIL
- Sec. 2. Responsibility of the National Peace and Order Council. The peace
and Order Council the national level shall be responsible for the following functions:
a) To prepare and recommended for the approval of the President,
proposals, measures, thrusts and strategies that would effectively respond to
peace and order problems.
b) To coordinate and monitor peace and order plans, projects and
operation of Civilian Volunteer Self-Defense Organizations such as other
counter-insurgency programs and activities.
c) To perform such other duties and functions as the President may
direct.
- Sec. 3. Duties and Functions of Sub-National Councils. The Regional,
Provincial and City/Municipal Peace and Order Council shall have the following duties
and functions:
a) Formulate plans and recommended such measures which will
improve or enhance peace and order and public safety in their respective
areas of responsibility.
b) To monitor the implementation of peace and order programs projects
at the provincial, city or municipal levels and the operation of Civilian
Volunteer Self-Defense Organizations and such as other counter-insurgency
programs and activities.
c) Make periodic assessments of the prevailing peace and order
situation in their respective areas of responsibility and submit a report thereon
with recommendations to the Chairman of the National Peace and Order
Council.
d) Perform all other functions assigned by law, the President, or the
National Peace and Order Council.
f) Peoples Law Enforcement Board
f.1. Section 43, RA 6975 Some features:
- Is created only by the sangguniang panlungsod/bayan and found
only in cities and municipalities.
- Composed of 1 sanggunian member (any), 1 barangay captain (any), 3
respected members of the community, at least 1 who is member of the Bar, or if in
absence thereof, any college graduate or principal of central elementary school
- There must be 1 PLEB for every municipality and 1 in every legislative district
of the city
- Procedure in PLEB shall be summary in nature