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University of San Carlos POLITICAL LAW REVIEW TRANSCRIPTION Allied Political Laws and Public International Law Local

Government Law Atty. Daryl Bretch Largo July 24, 2010 Definition. Local government law or municipal corporation law. A corporation is called a public corporation if it is created by the state for purposes of administration of local government or rendering service in the public interest. In the power point presentation, you will see there special act has been emphasized because this is a definition given by an American author and if you apply it to the Philippines the issue on public corporation can only be through a special act rather if you are to talk about municipal corporation only through a special act. But quasi-public corporations may be created through general law because if you look at the definition there, quasi-public corporations, they are created as agencies of the state for limited purposes but without the powers and liabilities of self-governing corporations. These are actually private corporations but they render government/public function, that is the delivery of public service or the supply of public want. Very common, of course, public utility companies. Public utility companies, they come within the purview of the concept of quasi-public corporations. The second kind of public corporation is municipal corporation which is referred to as local government unit. As defined, it is a body politic and corporate, constituted by the incorporation of the inhabitants for purposes of local government thereof. These are called local governments. The term local government may be perceived in 3 different ways. You may consider having local governments as: 1) limitation to the power of central government; 2) political subdivisions of the national government; and 3) municipal corporations, primarily for the inhabitants or the community in a certain locality. The first view of a local government as limitation to the central government is that basically, if there is no local government system, then all powers of government are concentrated in the national government. But if you have local governments, then certain powers are distributed or allocated to local governments and therefore all the powers of governance is not concentrated in the central government. In a way, it becomes a limitation to the central government. It deals pretty much on allocation of powers and allocation of powers is one fundamental method of limiting powers of government. You can view local government that way. That is not the common view. The common view is to view local government as either political subdivision of the state or even territorial subdivision of a particular territory. Sometimes, if we talk of the province, we don't look at the province as a body politic. It's either we look at the province as that belonging to Gwen or belonging to the Cebuano population belonging to the province or you can look at the province as a mere territory. But in the study of local government law, we view the local government not just as a political subdivision but more of a municipal corporation. The elements of political corporations. Taken from the word of Lord Cope of England borrowed by the US and of course we have patterned our constitutional law system. We also have to use the elements already identified by certain authorities on the study of municipal corporation. We have legal creation or incorporation, this actually refers to the law creating a local government unit. If it is an ordinance, a barangay may be crated also through an ordinance as we'll discuss later on. Because a barangay may be created either by law or by an ordinance. Second, a corporate name, like the City of Cebu, that's the corporate name. Cebu City is not a corporate name, by the way, of the city, it's the City of Cebu. Inhabitants, of course, the population in a given territory and then, of course, you have territory. Almost like the elements of a state. A local government unit has dual nature or functions. In the study of local government law, it is important that we put in mind that a local government unit has dual nature or functions: 1) governmental; and 2) proprietary. Governmental is also called public or political and proprietary is also called private or corporate purpose or function. As defined, governmental function is the administration of the powers of the state and the promotion of public welfare. If the LGU performs the governmental function, it performs like an agent of the central government. So this is the view that it is a political subdivision. If it is proprietary, then the function exercised is to give special benefit or advantage to the members of the community. That is the view as a municipal corporation. And this nature or dual function of LGU is not just based on opinions of authorities, in fact under Art. 15 of LGC 1991, this is being recognized. This is not just based on jurisprudence but it is found in

the very provision in our LGC; is found in Art. 15, it says political and corporate nature of local government units. Every local government unit created or recognized under this Code is a body politic and corporate endowed with powers to be exercised by it in conformity with law. As such, it shall exercise powers as: 1) political subdivision of the national government and 2) as corporate entity representing the inhabitants of its territory. So, these are the examples of these functions. The exercise of local police power, the enactment of ordinances, regulating certain activities in the locality, that is governmental, obviously. The levy, imposition, collection of local taxation, part of governmental function. The exercise of local eminent domain for public works, that is still, obviously, governmental. In all these, you will notice that LGU is exercising a function that pertains to the government, that's why it is called an agent of the national government in this regard and therefore is a political subdivision. Examples of proprietary function, meaning functions that are not pertaining to the government: establishment of slaughter houses; parks; cemeteries; fiesta celebrations and other similar functions. Importance of determining the dual functions of local government. Question: will they matter to you as students of local government law? That you know that the function is governmental and this function is proprietary? You mention suability. The ____ issue of suability is under Art. 32 of LGC as a corporate entity, it has the power to sue and be sued, so that is the express consent. You mentioned of liability. What about liability? Public funds cannot be the subject to liability, garnishment, execution, attachment. What about disposition of assets? If we are to talk about south road properties, for example, if you argue that there shouldn't be public bidding for the disposition of these properties, why would you argue that way? What is important here, aside from knowing the distinction, which one is governmental which one is proprietary, you should also know the rule. Because you cannot just say that one rule applies to this and the other. Liability of LGUs for damages like by reason of torts. If the driver of the Kaoshiong of the City of Cebu, by reason of negligence, kills a pedestrian. How should you resolve the issue of liability? What about a dam truck, for example, of the City of Cebu, delivering a sand and gravel for the repair of roads in the City of Cebu and the driver had been negligent, either because he was under the influence of liquor while driving or simply over-speeding. If the City of Cebu is undergoing repairs in the SRP to pave the way for development, economic development in that area and then by reason of negligence, a worker, for example, injures a pedestrian, those are some areas of concern. Garnishment of funds. Even liability of LGU for contacts. There's a school of thought that suggests that you also have to characterize the function of the government there because the rule that when a government enters into a contract, and that therefore, it descends itself to the level of a private individual and for which reason it can be sued and even be held liable is not an absolute rule. That is one school of thought, so in local government law, we also would want to look at the function performed by the LGU when it enters into a contract in so far as liability under the contract is concerned. Control of Congress over LGUs, specially in the area of property. What about the LGU, can it be treated as in [solidarity ---- d ko sure] of the government? Why would that be relevant? Because in some special laws, as you will see later on, there may be mentioned there that with this law requires certain conditions to be complied with by persons and then it puts there except in the following: ni-mention xa ug instrumentality of the government. May the LGU be considered as in solidarity of the government? Here's an example of a question in the BAR exam that deals with practically the importance of governmental and proprietary functions. Jarry was employed as a driver of the Municipality of Calumpit, Bulacan and while driving recklessly in Municipal dam truck, (the act of negligence is already there, it's given. The dam truck belongs to the municipality because it said municipal dam truck.) with its load of sand for the repair of municipal streets (so public works; what does it tell? Governmental). The dam truck hit a jeepney and 2 passengers died. The Sangguniang Bayan passed an ordinance appropriating P 300, 000 as compensation for the heirs of the victims. Questions: 1) is the municipality liable for the negligence of Jarry? ANSWER: distinction between governmental and proprietary. Indeed, in one case, in Municipality of San Fernando case, a distinction was made between governmental and proprietary and what's the rule? If the regular employee of LGU had been performing governmental function, what's the rule? NOT LIABLE. What's the rationale behind that principle? If it performs a governmental function, then it becomes an agent of the national government and the national government enjoys the privilege of being immune from liability if it is also performing governmental function. Agent man xa so he shall also share the same privilege kai agent man xa of the national government. But if the LGU is performing a proprietary function, then he is not related to the national government, it enjoys the same privilege of not being liable for the negligence of the regular employees.

If that's your answer, you'll be given full credit but the UP Law Center gives 2 alternative answer because it observed that under Sec. 24 of the LGC 1991, there's an express declaration that the LGU and its officials are not exempt from liability of death of persons or damage to property. This is, of course, with reference to liabilities as a result of negligent acts. That is Sec. 24. if you answer that, it's very clear, there is no qualification, governmental or proprietary. UP Law Center has suggested an answer that is also correct. But the alternative answer is to distinguish between governmental and proprietary which is also correct. This should be tested in the SC. It seems that these are not actually compatible answers. Because Sec.24 does not make any qualification, so in all cases, not exempt but in the 2nd answer, a qualification will help; it will distinguish the liability. Aside from that, there is also usefulness in distinguishing the function or at least realizing that a LGU performs dual functions. Like what happened in the case of Bara Lidasan vs COMELEC. A law was passed creating a certain municipality and it was supposed to consist of 21 barangays according to the law. When the law creates a municipality, it would list down the member barangays. However, someone questioned the law as unconstitutional because they found out that the supposed newly created municipality involved 12 barangays from a neighboring province instead of just getting all barangays in the same municipality. One municipality covering barangays from one province and another barangays from another province. It was questioned on the ground that it violates the one subject expressed in the title rule. A law to be valid, it must only contain one subject and it must be expressed as far as practicable in the title thereof. The petitioner there argued that this law covered 2 subjects: 1) the creation of the new municipality; 2) the reduction of the territory of the neighboring province. Indeed, it was declared unconstitutional, the law creating that municipality. At least in so far as the 12 barangays were concerned at that time, the 12 coming from a separate province. Wala mo-surrender ang proponents. Ingon sila illegal ang 12, let's make it still valid in so far as the 9 barangays are concerned. Total valid man sila kai they belong to the same municipality. They will only be carved out from the same municipality. So, kun invalid ang 12, the law should be saved in so far as the 9 barangays are concerned. Ingon SC: well, OK na if a LGU in the Philippines only serves one function, and that is as agent of the national government because whatever it does, it may only seek or ask resources from the national government. But the thing is, according to the SC, it also function as a corporate body and as the representative of its constituents and therefore the issue of self-sufficiency. Would it be self-sufficient with just 9 barangays? Will it have enough funds to perform its corporate function? SC said, in the Philippines, every municipal corporation performs twin functions. The same knowledge or this realization of the distinction between governmental and proprietary and that LGU possesses dual function. This was also applied in Surigao Electric Co., Inc. vs Municipality of Surigao. Surigao Electric Co. was the only electric company operating in Surigao at that time. I think this is now known as the City of Surigao. One time, the LGU operated an electric company without obtaining a certificate of public convenience from the Public Service Commission. Of course, Surigao Electric Co. complained. Why didn't the Municipality of Surigao obtain a certificate of public convenience when it operated a public utility company? And under the Public Service Law, you must have a certificate of public convenience. The LGU concerned argued that if you look at the Public Service Law, there is an exception there. It says: if you are an instrumentality of national government, you are exempt from obtaining a certificate of public convenience. The issue at the time it reached the SC, whether or not a LGU can be classified as an instrumentality of the national government. And to the extent that a LGU performs governmental function, then it can be considered an instrumentality of the national government. So it was exempt from the certificate of public convenience. In one BAR examination, simple ra kaau ang question, I think this is in the area of Administrative Law. Nag-lista ang examiner ug name of agencies, then the examinees were asked to identify whether these are agencies of the government or instrumentalities of the government, the, explain. LGU was no included there but what if the same question will be asked and aside from putting their certain companies or corporation or agencies, they will add City of Cebu? At least you know the case of Surigao Electric Co. says maybe considered as an instrumentality of the national government. Sources of powers. Obviously we have the 1987 Constitution, found in Art. 10; the LGC of 1991, this is actually the consolidation of past local government laws; and other statutes or acts not inconsistent with these laws even the Civil Service Law will also apply as one of the sources. But if we talk about powers, basically you the 1987 Constitution and the LGC, in general. But if you are to talk about powers that are specific powers, then you look at the charter, the law creating the LGU. According to the Code, if this LGU will be created under the LGC of 1991, the content of the charter will be valid only in so far as it is not inconsistent with the LGC of 1991. How will this lawmakers prepare the charter? Copy and paste from the LGC. De jure and de facto municipal corporation.

This is different from de facto and de jure governments in your political law and international law because this is only with reference to the requirements of creating an LGU whereas in de facto and de jure governments in public international law, the issue there is more complicated and besides, the terms de jure and de facto governments are used only in a particular condition or situation not in any situation like the case of Philippine government at present, how will you characterize it? Will you characterize it as de jure or de facto Philippine government? You already learned from your PIL that you only use the terms de jure and de facto if there are 2, at least, contending governments in a given territory. One is considered de jure if it has the legal title to govern the territory but it has not actually govern the territory like a government in exile. The other government which has not the legal title but is actually governing the territory, that is the de facto government. That's the distinction between de facto and de jure government. But here, that's not the case, we only refer to the manner of creating it. It is de jure, of course, if it has all the elements of a municipal corporation and we already mentioned the elements of a municipal corporation. It is de facto, though, if there is barely tolerable compliance with the requisites of a de jure municipal corporation. What's the importance of distinguishing de jure from de facto? Why distinguish de jure from de facto? Actually, there isn't much relevance or significance rather at all if you talk about de jure or de facto because in local government law, whether you are de jure or de facto, you will be treated as de jure municipal corporation. What is important or significant though is for you to be able to distinguish between a de facto and a non-municipal corporation. That's why it is important whether a certain group of people will qualify as a municipal corporation or not. If it attains the status of a de facto municipal corporation, that is only for academic purpose, that in case it is not de jure, but you will treat the acts of the the LGU and its officers as if the LGU is a de jure municipal corporation. That is the meaning of the doctrine of a de facto municipal corporation. Do not think that because it's de facto, the act will be, in so far as legitimacy is concerned, will be different from a de jure government, NO. the acts of that LGU and its officers will be treated as if they are the acts of legitimate de jure municipal corporation. What is important is for you to be able to distinguish between a de jure municipal corporation and a non-municipal corporation, meaning it's not a municipal corporation, at all. That's the meaning of the so-called doctrine of de facto municipal corporation. There is authority in law for a municipal corporation, the compensation of the people of a given territory as such corporation under a color of delegated authority followed by user in good faith of the governmental powers will be recognized by law a municipal corporation de facto wherever through the failure to comply with the constitutional, statutory requirements, the corporation cannot be said to exist de jure. In one book on municipal corporation, this is the reason for the doctrine of de facto corporation: Strong public policy supporting the security of units of local government and conduct of business against attack, grounded upon ___ inquiry into the legality of their organization. It also underlies the theory that local units may exist by whatever-fusion, we go back to the doctrine, it says under a color of delegated authority, and at least there is that colorable compliance, then we have to secure the inhabitants from illegal challenge of its existence and worse it will prejudice the acts of the community or rather of the LGU and affect the general welfare. The other one is it shall be followed by a user in good faith. This is the requirement for prescription that an LGU may exist by reason of prescription. Some books made mention of long use of corporate power as an element of a de facto municipal corporation. Effects of a de facto corporation status. What are the effects of a de facto corporation status? We want to determine whether a group of people has achieved the de facto status, if the answer is YES, the, these are the effects: 1) the acts of that entity will be respected and will be recognized as valid and binding by the state as if it is a de jure public corporation. In one case, there is also the application of the doctrine of operative fact in the case of Malabang vs Benito that SC cannot just close its eyes to the fact that before an LGU had been declared illegally created, it had operated as an LGU; it had entered into transaction; it had exercised certain powers and the effects of these will have to be honored and recognized because of the doctrine of operative fact. However, even though long use of corporate power may make a corporation a de facto municipal corporation, the state, however, reserves the right to question the creation of a particular LGU or municipal corporation through the method of what we call quo warranto. And, of course, a quo warranto proceeding is a direct attack to the existence of a municipal corporation. However, while the state reserves the right to question the existence of LGU despite long use of corporate powers, it may, on the other hand, recognize and render, in fact, a de facto municipal corporation de jure through a subsequent legislative recognition or validation. De facto corporations. In one BAR examination, it mentioned of the doctrine of operative fact as stated in the case of Malabang vs Benito but still about de facto corporation. These are the elements: 1) valid law authorizing a corporation. The mere existence of law will not make a corporation de facto. The law must in itself be valid. And then, in good faith to

organize it. 2) colorable compliance with law and 3) assumption of corporate powers or the exercise of corporate powers. Municipality of Jimenez vs Baz, this involves the Municipality of Sinacaban which was created through an Executive Order 258. Note of the fact that it was created through an executive order; that it was created in 1949; since 1949 it had been exercising the powers of an LGU. In 1965, through the famous Pelaez vs Auditor General case, a petition was filed to invalidate certain executive orders which created certain municipalities at that time. The word 'certain' means that not all municipalities that were created through executive orders were the subject of the petition. The contention was: the president cannot create an LGU because it is a legislative function. SC agreed that the creation of an LGU is primarily a legislative function and therefore these executive orders that were the subject of the petition were declared unconstitutional, but not all of course, like the Municipality of Sinacaban. The EO creating it was not among declared unconstitutional because you cannot, of course, make the ruling of the court applicable to parties/entities/persons that have made parties to the case, that is very basic. It was only in 1990 that someone questioned the existence of the Municipality of Sinacaban. The fact that it was questioned only in 1990 is relevant long use of corporate powers. SC ruled that Sinacaban attained the status of a de facto municipal corporation because its existence had not been questioned for more than 40 years. Municipal corporations may also be created by way of prescription or recognized at least its existence because of prescription. Municipality of San Narciso vs Mendez: Municipality of San Andres was created in 1959 through an EO. It became a 5th class municipality in 1965, indicating that it had been performing the function of a municipal corporation until the case of Pelaez vs Auditor General was decided. EO 353 creating the Municipality of San Andres was not among those questioned in Pelaez case. San Andres, its existence, was questioned in 1989. SC had a different perspective on this, it applied a certain provision of narrative, it made an observation of the fact that in the appendix or ordinance to the 1987 Constitution, take note it was questioned in 1989, meaning after the 1987 Constitution took effect. I think you have read the Constitution, duna ba na ordinance or appendix, unsa man ang tua didto? Legislative districts ang appropriate act. Apportionment of legislative districts, nakalista sa appendix of the 1987 Constitution. What was the observation of the Court? One of the 12 municipalities composing the 3rd district of Quezon, naa gyud, Municipality of San Andres as one of those municipalities, 12 of them composing the Quezon. SC said, di lng na xa de facto if you are apply the case of Jimenez. Even declared de jure by subsequent recognition. Let's go back to what the Court mentioned about it: defective incorporation may be obviated and a de facto rendered de jure by subsequent legislative recognition or validation. SC observed nga di pa gani ni-legislative, it is even constitutional. So, recognized by the state so it attained the status of de jure municipal corporation. In 1995, there was this case of Municipality of Candijay vs CA, the SC applied the rulings in Jimenez and Narciso. Nagka-bright ang SC, there's another reason mentioned by SC here. In addition, according to the SC, the Municipality of Alicia, again it was the Municipality of Candijay who questioned. You look at Sec. 442 (d) of the LGC of 1991. it was described by the SC as curative law aimed at giving validity to acts done that would have been invalid under existing laws as if existing laws have been complied with. So, mao lng gihapon, Municipality of Alicia was created via EO nya wala xa ma-declare as invalidly created sa Pelaez case, nipadayon gihapon xa and then, cguro it must have been forgotten by those who would love to ask or question the existence, na-abtan ug LGC of 1991 usa pa na question. Ingon ang SC: let's look at 442(d), it's a curative law, it says: municipalities existing as of the date of the effectivity of this Code shall continue to exist and operate as such. Existing municipal districts organized pursuant to presidential issuances or executive orders and which have their respective set of elective municipal officials, holding office at the time of the effectivity of this Code which was on January 1, 1992, shall henceforth be considered as regular municipalities. Kadtong not created via EO, presidential issuances, which continued, of course, to function as such until the effectivity of LGC of 199, then the defect had been cured. And what's the status? De facto, de jure? This is now the legislative validation, the Court had mentioned earlier, this curative provision, Sec. 442(d) of the LGC. Tanan defective municipalities, cured na pursuant to Sec. 442 (d) of the LGC of 1991. In the case of Sultan Osop Camid vs Office of the President, Andong was created in 1964, created a year earlier when Pelaez vs Auditor General was decided by the SC. It was among the municipalities declared invalidly created in the case of Pelaez vs Auditor General but continued to operate as an LGU. Declared invalidly created a year after its creation but continued to operate as an LGU, allegedly according to the officials of Andong. Perhaps when their lawyers came across the case of Narciso, oi naa diay ng Sec. 442 (d) of the LGC, ato na i-invoke as a curative law. Para i-confirm na xa ug de jure or at least de facto. Petitioner attached certificate showing the exercise of corporate powers after Pelaez case was decided in 1965. There's a caveat according to the SC, Sec. 442 (d) does not sanction the recognition of just any municipality. Wala na ni-ingon nga para ra to mga defectively created, they will be

cured. It can only be applied to those that can prove continued exercise of corporate powers. Kai mao man usa sa mga elements sa de facto. There must be assumption of corporate powers. SC, though, was too technical in disposing of the case. Ingon SC, we're not a trier of facts. The issue did not go through trial. The Court cannot just accept certificate attached to the petition filed before it and say that it is valid and that it is in fact based on certain facts, etc. Therefore, Andong failed to prove its continued exercise of corporate powers. Aside from the fact that it was already declared to be invalidly created in the Pelaez case. Their contention is despite invalidation they continued to exercise corporate powers. But SC said NO, that's different from the cases of Narciso and Candijay. 442 (d), therefore is not a blanket curative law. It cannot be applied to just any municipality. Only those that can prove continued exercise of corporate powers. The doctrine of operative fact is applicable to invalidly created LGU. This was asked in the 2004 BAR exam. That was letter B question but the problem before that involved a situation where 30 barangays out of 50 wanted to separate from an already existing municipality as a separate municipality. But in relation to the doctrine of operative fact, the question was: suppose 1 year after Masigla was constituted as a municipality, the law creating it is voided because of defects, would that invalidate the acts of municipality and/or its municipal officers? ANSWER: doctrine of operative fact, they will be recognized, they will not be invalidated, both acts of officers and that of the municipality. This is actually based on the so-called modern view in the declaration of unconstitutionality of a law. The orthodox view, you remember, that when a law is declared unconstitutional, it's void from the very beginning. It's as if it had not been enacted at all and therefore the state will not recognize any effects but the doctrine of operative fact is the modern view that there were actually acts that should be honored and recognized by the state because before it was declared unconstitutional, it was presumed constitutional and the local officials and the people followed and obeyed the law because it was presumed valid at the time. How will you challenge the existence of a municipal corp?' Before we proceed to the overview of the Philippine local governmental system, there is a procedural concern on the matter of de facto municipal corporation, not sure if it will be asked in the bar because it is more of a remedial law question but maybe yes, in the case of Municipality of Malabang vs. Benito (dli ko sure, dli klaro or bungol lang jud ko) where it was mentioned the method of challenge(ing) of the existence of a municipal corporation. You might be asked the question ' How will you challenge the existence of a municipal corp?' And we said already that it should only be through a direct act of the State- through a quo warranto proceeding. Therefore, a collateral challenge to the existence of a municipal corp is un-procedural. I think this is also true to private corp. So the General Rule is it is only through a direct attack of quo warranto proceeding that you can question the existence of a local government unit and not through collateral attack. However, and I think this is the important concern, according to Mun. of Malabang vs. Benito the rule that collateral attack is not allowed in questioning the existence of the municipal corp is applicable only if the municipal corp is at least a de facto municipal corp. The SC did not continue however but the implication of that is if the group of people therefore, a particular community, could not even be classified or categorized as a de facto municipal corp and therefore it is obvious that it is not a de facto municipal corp then, conversely, it is allowed to question the existence of an alleged municipal corp if it is not even a de facto municipal corp. So if in the earlier case like this case of Andong, for example Andong would like to expropriate a parcel of land and therefore files a complaint for expropriation before the RTC and make the private owner the defendant of course, then the defendant can question the status of Andong because Andong is not be considered even as a de facto municipal corp. So that is by way of collateral challenge 'coz that is mentioned only by a defendant in an answer questioning the status of Andong. That is an interesting observation. I hope you will agree with me. Overview of the Phil Local Government System In 1987, and there is a good explanation why that question was asked because it was the year the 1987 Constitution obviously took effect, the question was give the salient features of a Presidential system of government as distinguished from a Parliamentary form of government. We thought it was just a political science question but it came out in 1987 question. In 2004, there was also a question about ' Give the salient features of a Presidential type of government?'. My point is, it's possible that the bar examiner will ask about a form of government and the matter of unitary or federal form of government has not been asked yet. Basta wa pa gani nigawas, bantayanan jud na. So if you are to distinguish, will you be able to give one suppose today is the bar exam? Ang madali-dali ra jud nato ana kanang powers of the government sir are centralized if it is a centralized form of government (joker)...

For the perspective of existence of local government units and the central government, this is how you distinguish one from the other: in a unitary set-up or centralized, it was confirmed ha in DENR vs. Tano and several other cases that though we are adapting a decentralized system of government we are still in a unitary system, local governments derived both their (1) powers and (2) existence from the central government. That is a legal decision. Local government units derive their powers and existence from the national or central government. That explains why the LGC and the Constitution provides that local government units can be created only through law. So it's the central government through Congress that creates local government units and in the creation it gives and grants powers. So local governments are creations of central government. But if you are to talk about federal system, it's quite the opposite. The federal/central government is the creation actually of the local governments. If you gather the history of U.S., it was first a confederation of 13 states who later on decided that confederation was insufficient because in confederation there is no central government. It's just a loose relationship between the members of the confederation. There is only an understanding that they will perform functions with certain degree of coordination with the members of the confederation. But if it is a federation, then there is a creation of the federal government. So when the 13 states decided to federalized, they created the national government. see, local governments then now we called in the U.S. the states akin to local governments, they created the central government. In the Philippines, it is still the central government which is creating the local government. Why is that important? It is important in the area of interpretation. Specially if the issue is about which agency, the national or the local, a government can exercise a particular power. This is where your knowledge of residual power doctrine will be applicable/useful/ What is the idea of residual power? In every distribution of powers, you will have to include in your study the idea of residual powers because when an organic act, either the Constitution or a statute distributes power of the government, it cannot anticipate all powers- specific or general and allocate/assign it to a known agency. It is possible that there is a power of government, settled that it is a power of the government, but the organic act is unable to allocate/assign it to a particular agency. The question then is ' Who can exercise the power?' because it is settled that it is a power that can be exercised. If you look at the distribution of powers in the national government among the legislative, executive and the judiciary, the rule on residual power says ' Who can exercise the power which is not allocated to either legislative, executive of the judiciary?'". What did you learn in your political law? The residual power is vested in the President of the Philippines. So if the power is recognized and understood as a power that can be exercised by the national government but it has not been allocated or assigned to a particular branch by the Constitution or any law for that matter then the President can exercise the power under its residual power. Because if you apply that to national government and local government you will also do the same analysis. Suppose there is a power that is obviously a power of the government but the issue is as between the national government and the local government, who shall exercise the power? Of course it requires answering the question ' Which government exercises the residual power?'. As what I've said, powers of central and local governments have been distributed also, this is a way of limiting the powers of the government- by distributing the powers from the central to the local. Who/ which agency do you think should exercise the power that is not expressly or even impliedly allocated on either national or local? We say national. Yes, That is correct. The residual powers are vested in the national government. So it is a question whether it can be exercised by the national or the local government. Notwithstanding that we are adopting/ upholding local autonomy as I will show you later on . That is not the case in a federal state. In the US, if you have studied American government, the powers of the government are limited and enumerated in the Constitution. The understanding there is the power that is not granted in the federal government can only be exercised by the local states. See, different in a federal set-up. That is just to show you the importance of this framework. You can use this in interpreting certain issues. That's the matter of unitary and federal system of government. LOCAL AUTONOMY Certain terms before we study the LGC proper. There are provisions about local autonomy in the provisions and the code itself. If we look at Art. 2, Sec. 25- The State shall insure the autonomy of local governments. The territorial and political subdivisions shall enjoy local autonomy- Art. 10. The Code also mentions local autonomy. The question is ' What is local autonomy?' in relation to the concept of decentralization, devolution and deconcentration. It came out in one bar examination ' What is devolution with reference to the LGC?'. 1999 Bar. What is the meaning of local autonomy? Limbonas vs. Mangelin, local autonomy is either decentralization of administration or decentralization of power- taken from an American book, actually, where it was cited here . There is decentralization of administration when the central government delegates administrative powers to political subdivisions in order to broaden the base of government; to make the local governments responsive and accountable.

On the other hand, there is another kind of decentralization which is called decentralization of power. This involves abdication of power and the autonomous government is free to chart its own destiny and shape its future with minimum intervention. The local government unit here is accountable not to the central government but to its constituency. So if magbasa ka og reviewer, mo ingon ka' what is local autonomy?' you will mention that 2 because that's how it was presented in the case of Limbonas. But later on, in the case of Pimentel vs. Aguirre in 2000, SC clarified: it is only administrative power over local affairs that is delegated to political subdivisions. So we should still not forget the same concept that policy setting for the entire country still lies in the President and Congress. That explains why ordinances for them to be valid, must not only conform to Constitution but the ordinances must also conform to statutes. Basically because we are still in a unitary set-up. For an ordinance to be valid, it must not contrary law- policy crafted by Congress or perhaps through the suggestion of the President. So only administrative power is delegated to political subdivisions. There is no abdication of political power in our system but still there is minimum intervention in some areas by the national government. DECENTRALIZATION This brings me to the concept of decentralization. Local autonomy does not make empires within an empire. Local autonomy does not make mini-states within a state. (Limbonas case) Focus your attention to the word system. So decentralization is a system whereby local government units shall be given more powers, authorities, responsibilities and resources and this decentralization shall proceed, according to Sec. 2 of LGC, from the national government top the local government units. What's the significance. If the decentralization process proceeds from the national government to regional offices of the national government, you call it DECONCENTRATION and not decentralization. That's why the Code specifies to what kind of distributing or sharing the powers of the national government will the term decentralization apply. It is only when it is from the national government to local government units coz there's another term if it is from the national government head offices to local offices- the term there is DECONCENTRATION. That is a system. Look at the definition, local government units shall be given more powers, authorities, responsibilities and resources, if it is a system then we have to ask further ' How is the system implemented? How is this done?', the giving of more powers, authority, responsibilities and resources. The answer to that is the term DEVOLUTION, which as defined in Sec. 17 4(e) of the Code, it is an act by which the national government confers power and authority, administrative, upon various local government units to perform specific functions and responsibilities. That is the meaning of DEVOLUTION. That is specific process in order to implement the system of decentralization. In the same section, there is a description of how it is to be done, at least it says it shall include the transfer to local government units of the records, equipments, other assets, personnel of national agencies, offices and corresponding powers, functions and responsibilities. Deconcentration is Sec. 528 of the Code. Para dili ta ma ignoy. The process of transferring authority and power to the appropriate regional offices or field offices of national agencies or offices are not devolve to local government units. It's for Congress to decide asa iyang i devolve; it's not of course in the Code. So if you are to distinguish on from the other, these terms: local autonomy is a degree of self-determination exercised by local government units vis-a-vis the central government. To attain local autonomy, a system of decentralization is a pre-requisite or at least some sort of the infrastructure in order to achieve local autonomy. For that infrastructure to work, it is done through devolution- the process. And then there's deconcentration. The affirmation that the Philippines, in Magtajas, is still a unitary government and a guarantee that LGUs shall enjoy local autonomy as mentioned in the Constitution and the Code, create a tension between the national government and local governments. In 1999, there was a question involving this one- local autonomy. In the case of Magtajas, the Sanggunian Panglunsod of CDO passed an ordinance prohibiting the operation of PAGCOR. At first, it prohibited owners of commercial buildings to allow PAGCOR to enter into a contract of lease. Siguro upon advise of lawyers, that would not be sufficient, you should prohibit the operation of PAGCOR. So there's another ordinance passed prohibiting the operation of PAGCOR. The SC said, the LGU cannot do that because PAGCOR is a creation of a law and therefore it is allowed by Congress. A LGU cannot undo the intent of Congress. The SC continued and said that municipal governments are only agents of the national government. This is an affirmation of the declaration that the Philippines is still a unitary set-up; a unitary system of government. Wala pa ni invocation of local autonomy. Let's see if it will ever be applied. The SC also said ' We here confirmed that Congress remains control over LGU although insignificantly --- than under our previous constitutions. In the San Juan vs. Civil Service Commission case, this came out in the 1999 bar, gikopya lang ang facts, the issue there is the Provincial Budget Officer was at that time to be appointed by the Sec of Budget and Management but only from the names nominated by the governor. Note that the position is Provincial Budget Officer. The provincial governor nominated somebody who was not an accountant, unya one of the qualifications

of a Budget Officer is that you must be a CPA, therefore not qualified. So what the Sec did was he appointed another who is qualified. The governor complains, uy you bypass my authority... I should be giving you another nominee... of course if it is already qualified, you choose from the nominee I've submitted. But the Sec did not agree with this suggestion of the governor so it reached the Civil Service Commission. The CSC affirmed the appointment made by the Sec of Budget and Management then it reached the SC. It is in this case that the SC applied also the concept of local autonomy and it said ' We are to obey the clear mandate of local autonomy. Where a law is capable of two interpretations, one in favor of centralized power in Malacanang and the other beneficial to local autonomy, the scales must be weighed in favor of autonomy.' By the way, this is not an issue of who can exercise the power because the law is clear here. The issue only was whether or not the process of nomination to be done by the provincial governor was merely directory or mandatory. So if you interpret that it is directory, then it is not following the mandate of local autonomy. But if you interpret it as mandatory then that is to give spirit to the concept of local autonomy. According to the Court, if you can have two interpretation- one against local autonomy and one in favor of local autonomy, then local autonomy in the application should be applied or used. In the case of Laguna Lake Development Authority (LLDA), another local autonomy case, Laguna is a province so there were several municipalities. In 1990s, as a observed by LLDA, there were indiscriminate issuance of permits for fish pens/fish cage therefore resulting to damage in marine or natural resources along the bay of Laguna. So LLDA issued a cease and desist order. Reklamo ang mga municipalities nga naa man ni sa among powers nga we can issue permits for fish pens. Ingon ang SC nga power lagi na ninyo but it is for revenue raising power. In the case of LLDA, the power exercised by it is police power. Police power is the most pervasive, less limitable kind of power. And besides, it is a delegated power on the part of LGU and so we will uphold the power of LLDA. There is still a tension between the central government and the local government because LLDA is a creation of Congress. In this case, the charter of LLDA was upheld. The thinking of course if correct- between police power and taxation power, police power should prevail. Territorial and Political Subdivision For purposes of my discussion, I'll call the provinces, cities, municipalities and barangays as regular LGUs so we'll be able to distinguish them from autonomous regions and special LGUs. Autonomous regions, ARMM and CAR- but CAR failed to become an autonomous region because only one province got a favorable vote in a plebiscite conducted before and according to the Constitution an autonomous region should consist of more than 1 LGU; so 1 LGU can not constitute an autonomous region. Now, we only have the ARMM. Then we have what we call Special Metropolitan Political Subdivisions under Art. 10, Sec. 11 of the Constitution. They are not actually LGUs strictly speaking that's why we have to call them special LGUs. The mandate of Sec. 1 of Art. 10 which says the territorial and political subdivisions shall be provinces, cities, municipalities and barangays and ARMM and Cordilleras, this provision does not create LGU according to Fr. Bernas. You still have Congress to create this LGU. What is the import of this enumeration of the territorial and political subdivisions in Sec. 1? It simply ensures that in the Philippines, there shall only be provinces, cities, municipalities and barangays. What's my point? Suppose in the bar exams you will be asked a question ' A law has been passed abolishing barangays because of too much politicking in the barangay level etc. Can it be done?' of course your answer is it cannot be done; it is unconstitutional because Sec. 1 Art. 10 already identified barangays as one of the LGUs. The Constitution already guarantees that these are the local governments in the Philippines. In my presentation I did asked ' Whether or not an associated stated can be created in the Philippines?'. I think it was included in your Consti in the case of Province of North Cotabato in 2008. The Bangsamoro Juridical Entity case. According to the SC, the way it was described since the central/national government could not exercise jurisdiction over the Bangsamoro Juridical Entity, the MOA therefore established and associated state in the Philippines. Of course, you apply your basic knowledge in Public International Law or Political Law that sovereignty among other characteristics is indivisible. That's an important characteristic, You cannot divide sovereignty. You cannot have an empire within and empire; a state within a state. The counter-argument was ' No, dili ni siya associated state. This can perhaps be considered merely as a LGU. Ayaw associated state because we understand the import of that. It cannot be done. We cannot have a state within a state because in international law, an associated state is still a state under the 1933 Multi--- Convention of the Rights and Duties of a State. An associated state has a capacity to enter into relations with the other states- that is the 4th element of a state under the Multi--- Convention. Ingon sila, ayaw lang mi tawga associated state, LGU lang- para within out framework. Ingon and SC, that can not be done as well because you know that Sec. 1, Art. 10 the only LGUs recognized in our Constitution are provinces, cities, municipalities and barangays. No other. Only a

Constitutional amendment can welcome any other entity that you call LGU or a political/ territorial subdivision in our country. That case of the Province of North Cotabato is still relevant in the study of LGC. Different Kinds of Cities A component city, an independent component city and highly urbanized city. There are different rules applicable or governing these kinds of cities. But provinces, municipalities and barangays are treated similarly under the LGC. Sa cities lang mo matter. Ang 1st class, 2nd class, 3rd class only refers to income. It has no bearing at all in its juridical personality- exercise of powers. Cities though, are governed differently in some areas. Component city, the inhabitants can vote for provincial candidates and can run for provincial elective post and they are under the supervisory power of a province. Don't ask how the province will exercise supervisory power; we will go to that later on. Independent component city is a component city but what makes it independent is because of its charter- it's charter prohibits the voters from voting provincial elective post. Because of that, it will be outside the supervisory power of the province regardless of the income. So if you are under the province, then your ordinances, as you will see later on, will have to be reviewed by the provincial board. If you are independent component city, you are not required to submit your ordinances to the provincial board for review because you are not under its supervision. You will understand this later on when we study the provisions dealing with supervisory power of mother LGUs (kadtong naa sa taas). In highly urbanized city, it is here that income matters. It is independent from the province by reason of its status. It is so declared as a highly urbanized city and therefore it is outside the supervisory power of the province. Later on you will see/learn how to convert an ordinary city into a highly urbanized city. If it is an component city, a highly urbanized city is not to be created. It's only component city that must be converted into a highly urbanized city. You will also know the process later on. In the case of Abella vs. COMELEC, Ormoc City was considered an independent component city because its charter prohibits its inhabitants from voting and also have to include from running for provincial elective post. If you look at definition of independent component city, it simply says independent in the sense that the charter prohibits from voting for provincial elective post. Kung skewed gamay imong thinking, maybe dili covered and mo run ka for provincial post. Pwede ka mo argue nga kung mudagan ko, ah well voters are prohibited from voting, running man ni for provincial post di man ni voting. So it was settled in this case, dili oi. The prohibition connotes 2: from running for provincial elective post and obviously from voting for provincial candidates. Special Metropolitan Political Subdivisions It is still to be created by Congress. This is found in the Constitution and it also requires plebiscite. They are similar to the manner we create regular political subdivisions- also through Congress and there shall likewise plebiscite. But the difference is the component cities and municipalities shall retain their basic autonomy. So dili na cla ma dissolve as LGUs and therefore shall be entitled to all local executives and legislative assemblies. The jurisdiction is limited only to basic services requiring coordination. Is the MMDA a special metropolitan political subdivision? or Is it a LGU? You know what happened in MMDA? It wanted to open a road in a particular subdivision- Bel Air Village to ease the traffic. What kind of power is exercised there? Police power. Question is ' Can MMDA exercise police power?'. This can be answered if you classify MMDA as a LGU. SC said, it's not a LGU. Ingon sad daun ang MMDA, well at least maybe we are a special metropolitan political subdivision. Just the same, it can not say that it is a special metropolitan political subdivision (for academic discussion purposes) because there was no plebiscite at the time when it was created. And the law requires plebiscite when you create a special metropolitan political subdivision. Then you have loose federation of LGUs. Dili ni regional development councils. Different na cya. We can have loose federation and the Constitution allows the LGUs to group among themselves, consolidate, coordinate their efforts, services and resources for purposes commonly beneficial to them in accordance with the law. The question there is ' How?'. It has not been asked in the bar. It is found in the Constitution. The How is found in the LGC, Sec. 33. First, there shall be ordinances passed by all members of the federation- all LGUs; the Sanggunian must approve the same upon or after lawful hearing and; that there shall be a memorandum of agreement stipulating the manner and extent of the contribution of funds and assets. That is in Sec. 33, LGC. So a question may simply be asked how it is created. This is my term though- loose federation. You don't see that in the Code nor in the Constitution but the way it is being described is a loose federation- they just group themselves, consolidate, coordinate their effort. That's how states actually establish loose federation. Each time gani mo ingon og through ordinances, duna nay meaning. It can not be done in any other way kay naa man gud lain enactments. Let's say resolution. And it will not result into a new corporate body. Local Government Code of 1991


The Code is mandated to be passed or enacted by the Constitution. It's found in Sec.3, Art. 10. Indeed, we passed the LGC of 1991. I think it was in 1991 or 1992 bar exam where the question was to describe the content of the LGC. So at least you can give the basic contents or body or skeleton of the Code. So these are the things you will see in the Code: Responsive and autonomous (dili ko sure ani. check lang inyong notes if naa) structure system of decentralization; Recall, initiative, referendum; --- (sori. paspas kaau cya. murag gi gukod og lion); Special meetings and functions of LGUs; Combinations( dili pud ko sure ani. check lang ang notes) and elections of the elective officials- the favorite area of bar examinations. Sources of the Code- this is therefore a consolidation of the codes: LGC of 1983; Local Tax Code PD 201; The Real Property Tax Code; Barangay Justice Law PD 1508; Katarungang Pambarangay Law. Scope of application of the Code- obviously, it will apply to provinces, cities, municipalities, barangays and other political subdivisions; and it can also apply to officials and offices in the national government in so far as they are mentioned in the Code. What about those LGUs supposedly belonging to an autonomous region? Yes this will apply until the autonomous region has its own organic act. Rules of interpretation: liberal interpretation in favor of LGUs; liberal interpretation in favor of devolution; liberal interpretation in favor of the General Welfare clause- Sec. 16 of the Code. The rest are the usual- tax ordinance etc. The LGC mentions of January 1, 1992 as the date of effectivity. The significant question here is what would be the effect/s of the effectivity of the Code upon tax ordinances or revenue measures enacted before the LGC of 1991. Sec. 529 provides for the answer- All tax ordinances and revenue measures of LGUs enacted before the Code shall continue to be in force and effect after the effectivity unless amended by the Sanggunian or inconsistent with or in violation of the provision of the Code. Very obvious. They continue unless they're inconsistent or changed by the Sanggunian. Dili ingon nga repealed automatically. If we are to talk about laws- general and special laws, not ordinances that are inconsistent with the Code, shall be repealed or nullified accordingly. That is Sec. 534(f) of the LGC. But take note of what the SC said in the ---, implied repeal is not favored. Obvious rule in stat con. Creation, Conversion, Division, Division, Merger, Abolition, Substantial Change of Boundary First, the framework: law, plebiscite, and compliance with criteria on income, land and/or population. Pay attention to the words and/or coz you might think that it means compliance with the criteria of income, land and population. No. There will be an instance in a particular LGU where the requirement is income + land or income + population. Like in a case of province. It was discussed very clearly in the case of Aquino III vs. COMELEC that the requirement is not to comply with all 3. In the case of a province, you only comply with income- indispensable then you comply with either land or population. Take note of that. The first League of Cities vs. COMELEC case, modesty aside (hmmm), before this was decided by the SC, we made a prediction that the SC (dili na lang nako ipadayon...) will nullify the 16 cityhood laws when it was first decided... (dili nalang jud). The League of Cities complained because there were apparently, in the words of Pimentel, indiscriminate application for cityhood. Bisan dili ka comply sa income and there was this law in 2001, RA 9009, that increased the income requirement from 20M to 100M. Ni complain ang League of Cities kay mo reduce naman ang Internal Revenue Allotment (IRA) so natural reklamo sila. During the 11th Congress- period 1998 to 2001, there were 33 pending bills for creation of cities. Actually, conversion from municipalities into cities. 1998- 2001. Nahuman ang 11th Congress, there were only about 24 that were approved as cities. So duna pa nabilin and few more others applied for cityhood during the 11th Congress so wala na converted tanan. Then came the supervening event that is the effectivity of RA 9009. This became a law, it's hard to get a copy of RA 9009 in e-lib because apparently the e-lib only listed laws that have been signed by the President, through executive inaction which increased the minimum income requirement from 20M to 100M. Unsay relevance? Duna pay pending nga bill when this law took effect. Then came the 12th Congress- period of 2001 to 2004. Gi push na sad nila nga mahimo na jud nga laws ag pending nga bills. Wala man japon na class until ni adjourn ang 12th Congress in 2004. Nahimo na silang laws, 16 of them, in 2007. During the 12th Congress- 2001 to 2004, a resolution was passed by the lower house indicating the 16 bills should be exempt from the requirement established by RA 9009. Apparently, these municipalities could not comply with the requirement. So kita sila pending man ni since 2001, wala lang ma approve. Then came RA 9009 which increased the income to 100M, wala pa gihapon ma approve. Ni pass sila og resolution nga iexempt. The 12th Congress adjourned without approving the resolution. Then came the 13th Congress. So ang gihimo nila, gi re-draft nila ang pending bills and placed there the exemption. All these 16 bills, gi exempt sila sa 100M income requirement. Question: What does the Constitution say about creation of LGUs? Sec. 10, Art. 10 says, no province, city, municipality or barangay shall be created, divided, merged, abolished or its boundaries substantially altered except in accordance with criteria established with the LGC. Unya kadtong RA 9009 is an amendatory law to Sec. 450 of the LGC pertaining to conversion from a municipality to a city. So the thinking of the SC at that time was, RA 9009 form part of the LGC and the Constitution says, a LGU can only be created in accordance with the criteria established in the LGC. Question: Unsa may relevance adtong

16 laws nga dunay exemption? Can Congress do that? Congress can create a LGU in the same manner that it also enacted the LGC and therefore it can make and provide such exemption with the thinking of course that creation is a legislative function. But the SC said, in the first League of Cities case, NO- the creation is unconstitutional. Wala ni ingon nga invalid because it did not comply with RA 9009. Dili man ka maka ingong nga ang law is invalid if it contravenes with another law. The only way to nullify a law is when it contravenes the Constitution. Going back: It is unconstitutional. The argument was, it violated this one (asa?), it says if we create a LGU, it should be in accordance with the criteria set-forth by no other law than the LGC. Ni ingon ang LGC, as amended by RA 9009, nga 100M (ang income) each of you 100M. A subsequent law that it is exempt is considered unconstitutional precisely because of this mandate- because it is not anymore in accordance with the LGC. Kakuha mo sa thinking class? (blink*blink) Logical. Let's continue the ruling of the Court, ' the Constitution is clear. The creation of LGUs must follow the criteria established by the LGC and not in any other law and there is only one LGC. Congress can not write such criteria in any other law like the cityhood laws.' In December 21, 2009, Justice Velasco said these criteria did not deem embodied in the LGC. It may be embodied in other laws, not just the Code, this criteria. So when this 16 cityhood laws provided for the exemption, that is part of the criteria that is embodied in a different law. Dili na tanan should be in the Code lang. Although ang reasoning sa 2008 League of Cities case was, the reason why the Constitution requires that the criteria should only be in the LGC and that all LGUs when created shall comply with the criteria in a single law is for purposes of uniformity. Pero gi usab pag 2009- logically correct sad iyang thinking coz it said, petitioner's theory that Congress must provide the criteria solely in the LGC and not in any other law strikes the court as illogical. For if we pursue the contention with logical conclusion, then RA 9009 embodying the new and increased income criterion would in a way also suffer the vice of unconstitutionality. Although dili pud kaayo xa sensible, logical, but it doesn't make sense because that would also violate the principle that Congress as a plenary power. Dili man pud pwede mo ingon nga once a law is passed, it can not be therefore amended by subsequent laws for Congress possesses plenary power. Please find time to analyze the case. July 26, 2010 CREATION AND CONVERSION OF POLITICAL SUBDIVISIONS Did you read the two decisions by the SC involving the League of Cities? So as it is, the 16 Cityhood Laws have been affirmed as constitutional or shall we say not unconstitutional. Interestingly in one of the cases that you will also read which is a 2010 case, Aquino vs. COMELEC, incidentally the SC while discussing the requisites for the creation of LGU invoked not the 2009 League of Cities case but the 2008 League of Cities case in so far as the pronouncement in that case that the criteria for the creation of LGU shall be written in the Local Government Code. Although there is no further pronouncement as to whether it can in fact be written in another law just like what was pronounced in 2009 (December 21, 2009) League of Cities case. As Ive said, this is an important case especially for you because this has been not asked in the previous bar exam. Province of North Cotabato vs. GRP This is the case of Province of North Cotabato vs. GRP that I mentioned last Saturday, decided in 2008. There are so may issues actually involved in this case, but for purposes of Local Government Law, you only have to deal with the propriety of having an associated state given that we are in a unitary set-up or system of government; and given that under Article 10, no less than the Constitution enumerates the territorial and political subdivisions n the Philippines, which are the provinces, cities, municipalities, barangays, and the autonomous regions of Muslim Mindanao and the Cordileras. So it is unthinkable, not to mention of course unconstitutional, to have an entity that is not so recognized by the Constitution itself; not to mention of course that having a state within a state is a clear violation of the principle of sovereignty cannot be divided. That is your case of Province of North Cotabato vs. GRP. The question about this may not be about associated state but maybe just a test if you know for a fact that the different territorial and political subdivisions are mandated or at least assured by the Constitution. So it is possible that the examiner will simply come up with a problem where it is stated there that a law had been passed abolishing barangays. And you will be asked if the law is not unconstitutional. So it will just be easy for you if you know of course the codal provisions. CREATION So lets take a look at the manner of creating or converting province, city, municipality and other political subdivisions. We look at Section 6 of the LGC, and of course Sec. 385 in so far as barangay is concerned. The law creating the province, city and municipality have to be enacted by the Congress. Incidentally in Section 6, the creation of a province, city and municipality the law that will create them will have to be enacted by the Congress. I am not sure if this was deliberately

done or maybe this is just a result of a hastily crafted law. Whats the objective or intention of using the word Congress when as a rule a law is to be enacted by Congress? There should be a purpose not unless it was just placed there without any objective at all; and if it is then it is true that the LGC is hastily crafted and poorly drafted so to speak. If you have to come up with an interpretation there must be an objective with this - only a law enacted by congress and not by anyone else. Because there maybe instances where the President will be given legislative power. Like for example, the President is given by law emergency powers. So the President may exercise legislative powers, but of course it should be in accordance with a declared national policy or goal. But at least there is an assurance that there is no way in this situation that an LGU maybe created. So it will only be the Congress. What if the Congress is not functioning for whatever political reason or event? So the President may temporarily exercise legislative powers, just like former President Corazon Aquino. So the President in this situation may issue an Executive Order, which would have a force and effect of law, like your Family Code which was issued by an Executive Order. Or when martial law is declared and to the extent that it is necessary to quell invasion or rebellion, the President may exercise limited legislative power and will then issue Presidential Decrees which of course will have the force and effect of law. In either case, based on the LGC, no LGU can be created. That is if you are to interpret the phrase to be enacted by Congress. Barangay But if it is creation of Barangay, it may be created through an ordinance or by law. In fact, if you try to search the different Republic Acts made by our Congress, there are Barangays created by virtue of the legislative enactment by the Congress. Lakas kayo ang mga opisyal aning Baranggaya kay laliman ka Congress itself creating a Barangay. So it is either ordinance or law. If you read Section 385, interestingly, it does not mention of law that should be enacted by Congress. It simply mentioned of law. And so any law therefore for that matter - whether the Congress during ordinary situations or the President during extra-ordinary situations. (That is still a guess. That is still to be deiced by the SC). PLEBISCITE The questions that you should resolve are the following: 1. 2. 3. 4. who shall participate in the plebiscite if the Constitution says that those persons or members of the population of the unit affected, how would you determine whether or not these are the units that will be affected by the creation or even a merger or division of an LGU; and perhaps if you are to give a complete answer you might also include when are they amended; how about Autonomous Regions how are they created and is the manner of creating Autonomous Regions different from the manner of creating an LGU. Who shall participate in the plebiscite? Tan vs. COMELEC (142 SCRA 727) is a landmark case on the issue of plebiscite. Whether the creation a new province should include the participation of the residents of the mother province for the plebiscite to conform to the constitutionality requirement? Why? If you are to divide, for example, Province of Cebu into Cebu del Sur and Cebu del Norte, the Cebu del Sur will compose of municipalities and component cities from Talisay to Santander, and the Cebu del Norte will be composed of component cities and municipalities going up to the north. Question, which municipalities and component cities will participate in the plebiscite? Sayon ra Sir - tanan because apparently these are new provinces. Correct! What if this is the situation the supposed Cebu del Norte will now be called Cebu and the supposed Cebu del Sur will be given a different name say Sugbo. Province of Sugbo and of course the mother Province of Cebu. Will that matter? No, of course. So, which residents will participate? The residents of ALL municipalities and component cities. Why? Because the political units where they are residents will be affected. In what sense? Number one, there will be economic dislocation (?) - lesser income now because of lesser area and of lesser economic activities. Then there will be reduction in territory. To that extent, these units will be affected, and so the mother province will be included in the plebiscite. The ruling in Paredes vs. Executive Secretary is not doctrinal so remove the doctrine in Paredes vs. Executive Secretary from your memory. So these are the reasons: economic dislocation(?), and reduction of territory. In 2004 bar exam, the problem there: Madaku is a municipality composed of 80 barangays, 30 west of Madaku River and 50 east thereof. The 30 western barangays being left out of economic initiatives wish to constitute themselves into a new and separate town

to be called Masibunga. Granting that the components succeed, will a plebiscite be necessary or not? There will be a creation of a new municipality here. So plebiscite is necessary. If it is necessary, who should vote or participate in the plebiscite? Just the 30 Barangays or all 80 Barangays of the mother Madaku municipality? PAKSIT!!! 80, of course. Mao ra na pangutana nimo Sir?... Criteria for Creation and Conversion Lets go to the criteria for the creation and conversion. These are now the specific criteria income, population, and land area. Which government agency will determine compliance of these criteria? The Code provides for the Department of Finance for income, the National Statistics Office for population, and the Land Management Bureau of the DENR for land area. This is found in Section 7 of the LGC. Applying administrative law principle also, since these are specialized agencies, then you have to apply your knowledge in administrative law that their factual findings are binding or conclusive as a general rule upon courts. That is basic in administrative law, with only few exceptions like blatant error of the facts or appreciation of the facts, tainted with malice or bad faith. Thats where these findings of facts will not be binding or conclusive upon courts. Precisely, when the City of Talisay was the subject of a case that reached the CA, the CA respected the findings of the DENR through the LMB that it has complied with the land area requirement. So there should be proof of the exceptions - clear error of facts, malice or bad faith before these findings cannot be considered as binding upon courts. In the case of Navarro vs. Executive Secretary Ermita (2010), which involved the Dinagat Island, they argue that they have complied with the population requirement because when the Province of Surigao conducted a survey of the population, they invited some officers of the NSO to join them in that study. However, the result of the study was not certified by the office itself, the NSO. And so, when it reached the SC. It was not honored because the requirement according to the Code is the population must have been certified by the NSO. It is not sufficient that the NSO officials participated in the determination of the population compliance. Land Area Requirement Common standards for compliance of the criteria. First, land area. Obviously, it must comply with the requirement. The exception is when it is an island. It is possible that it may not comply with the area requirement. We should change this because of the new ruling in Navarro. I took this partly from Section 2 of Article 9 of the Implementing Rules. So we should only comply with area requirement. Then it must be contiguous unless two or more islands are separated by cities or chartered cities which do not contribute to the income of the province. Of course, obviously if these are islands, then they separated by waters then they cannot comply with the requirement of contiguity. For obvious reasons, if they are separated by charted cities or cities which do not contribute to the income of the province, then the requirement of contiguity may be dispensed with. This is the case Secretary Ermita declaring as null and void paragraph 2 of Article 9 of the IRR of the Code. If you look at paragraph 2 of Article 9 of the IRR, it says the land area requirement shall not apply where the proposed province is composed of one or more islands. That was declared illegal because the LGC of 1991 does not mention of any exception as to the land area requirement. So if you look at this case, the SC said nowhere in the LGC is the said provision stated or implied. So if you look at the case of Aquino III vs. COMELEC (2010), the requirement of territory is at least 2000 square kilometers. Is it possible to dispense with the 2000 sq. km. requirement if you are an island? The IRR says there should be an exception, but then again according to Navarro vs. Ermita, that is already declared null and void because it is already an expansion of a law or a statute. Where if it is not so provided, especially that is an exception, in a statute we know for a fact that the implementing rule cannot provide for such. Income What about income? First, how is average annual income, as a criterion, determined? The average annual income shall refer to income accruing to the general fund. Meaning, they are regularly accruing to the general fund. So funds that are special or those that belong to trust funds, transfers and other non-recurring income, they are not included in computing the income for the purposes of complying with the criterion. So it is not just any income in other words. Jurisprudence says it should refer only to the funds or income accruing the general fund. The question in Alvarez vs. Guingona was, especially for municipalities that rely heavily on Internal Revenue Allotment (IRA) which is actually a national government income but it is mandated to be share to the LGU in the form of IRA, will the IRA that the LGU had been receiving from the national government be included in computing the average annual

income. The case said yes because it is automatically and regularly released. And so it forms part of the gross accretion of funds. But now, have you read the R.A. 9009? What is the effect of RA 9009 to this doctrine made in Alvarez vs. Guingona? Okay, you PARTICIPATE If you are asked a question: for purposes of complying the income requirement, how should the income of LGU be computed or determined? How do you respond to that question, considering that RA 9009 is an amendatory law to the LGC of 1991? Have you read RA 9009? Kung wa mo kabasa og RA 9009, dili nalang ko mag expect makatubag mo. The idea is to raise the income requirement from 20 million to 10 million. Mao ra nah? Did it mention about IRA? The RA 9009 mentions of it as locally generated income. So if that is locally generated income, then IRA is not locally generated because that is a national income only given or released automatically to the LGU. So if you are to give an answer to that question, will Alvarez vs. Guingona be applicable still or no? So you are saying that RA 9009 changed the doctrine in Alvarez vs. Guingona that IRA should not anymore be included in the computation of income because it says locally generated? The caveat is that RA 9009 is limited in its application. It does not apply to all creation of LGUs. RA 9009 applies only to conversion from municipality to a city. Therefore, if it is a case of creation of a local government unit which happens to be for example a new province, then I submit that it is not covered by RA 9009. So take note that the coverage of RA 9009 that increases the income requirement from 20 million to 100 million applies only to (1) conversion from a municipality into a city, and (2) creation of a city from a cluster of barangays. So municipality converted into a city or a cluster of barangays to form a city. In those cases, they are covered by RA 9009, then the income requirement should be up to 100 million, and the IRA shall not be included. If it is a province, then we apply Alvarez vs. Guingona IRA should still be included. That is my opinion there. Because province is not covered by RA 9009, and also a new municipality is not covered by RA 9009. So the negation therefore if you are going to talk about Alvarez vs. Guingona, happens only if it is a case of municipality converted into a city or a cluster of barangays to form into a city. In those cases, locally generated income only and IRA is excluded. In all other situations, you add IRA as forming part of the annual income. Boundary What about boundary? Section 7 of the LGC requires that the boundary shall be properly identified by metes and bounds - the number of kilometers from north to west, and where lies the north, the west or other side or part of the territory of a particular local government unit. This requirement was tested in Mariano vs. COMELEC. If I am not mistaken, this involved the then municipality of Mandaluyong. When it was converted into a city, the then municipality of Mandaluyong was involved also in a boundary dispute with a neighboring municipality. Of course the charter of the municipality described the metes and bounds of that municipality. But when a law was created establishing the city, the law failed to state the metes and bounds. We are referring to the technical description that is also required in the territory of a particular local government unit. In the law creating the municipality, there was a technical description of the property, but when a law was passed creating the city, there was no technical description. It clearly said that the territory of the city of Mandaluyong shall be that territory so specified in the law creating the municipality of Mandaluyong. According to the SC, it does not matter even if there was no technical description because the true test is whether or not the description of boundary will cause territorial confusion. And if that is the only objective of the law for requiring technical description and it will be accomplished by the statement that the territory of the City of Mandaluyong shall be that territory described in the law creating the municipality, then there will be no territorial confusion. Apart, of course, from also saying that it was excusable on the part of Congress for not specifying with precision the technical description there because that LGU was then involved in a boundary dispute. The Congress therefore was not trying to preempt the result of the boundary dispute. Income is an indispensable requirement. Then I mentioned about the three criteria that almost always income is an indispensable requirement. In some instances, like province for example, the province doesnt have to comply with all three criteria income, population and land. It was clarified in this case of Aquino III vs. COMELEC. According to the SC, population requirement is not an


indispensable requirement but merely an alternative addition to the indispensable income requirement. If you are to create a province, you only need 20 million plus EITHER of territory OR population. I think in the case of Dinagat, it failed to comply with the territory and the population. Although the population as submitted during the hearing in the Congress reached 300 000 plus inhabitants. But that was just based on a study by the provincial government accompanied by officials of the NSO. According to the SC, that is not what the law requires that the officials of the NSO will be there present during the study. What is required is a certification. So the SC did not agree that they have complied with the requirement because of that. No question had been asked about specific requirements like 20 million, 50 million for high-urbanized cities. Unya malibog ta kay kung ordinary city, 100 million naman. That should be automatically be highly-urbanized city because under the Code HUC only requires 50 million. Now if you are going to create a city that should already be a highlyurbanized city because there is a requirement now under RA 9009. But who knows it might be asked in the bar exam now because of this Aquino III vs. COMELEC case. Simple ra kayo, maghimo ug problem ang examiner unya kupya-on ra ang facts sa Aquino III and it will be asked whether it has complied with the requirement. PAKSIT dayon!!! Si Mayol pa ang paisturya-on, when you take the bar exam and you have memorized the Civil Code, muingon na dayon ka ug dalia na palihug be kay gadali ko! Lain akong version ana, inig dawat sa papel, Maam wala naba kayong ibang questions diyan? Challenging the existence of a local government unit How to challenge the existence of a local government unit? As I have said last Saturday, Quo Warranto proceeding. In Malabag vs. Pepito, the proper party, as a rule, is the State and it should be in a direct action. Because you should remember that the State reserved the right to question the validity of the creation of the LGU. But this rule applies only if the LGU is at least a de facto municipal corporation. Because if it is a patent nullity, according to Malabag, any person and even in a collateral attack. Procedure for the Creation of Local Government Unit IRR of LGC of 1991, Sections 9 11 There will be a petition by the prospective units in the form of a resolution. Then the Sanggunian will be asked to make a comment on the petition and this will be submitted to Congress. Then there will be the submission, to be attached to the petition the certificates of the Department of Finance for income, the NSO for population, and LMB for the area. When these are all complied with, then there shall be now the enactment of law by the Congress. During the enactment of law, there will be of course some sort of a public hearing lawmakers will then try to question the authenticity of the certificates or the truthfulness of what is found in the certificate, etc. And If they are convinced that the applicant has complied with the requirements, then theoretically, they will enact law and it will be followed by a plebiscite. Conversion from component city to high-urbanized city. What about conversion from component city to high-urbanized city? There is no law required. This is just a conversion from one status to another status, but that is still the same city. There will only be a resolution by the interested unit approved and endorsed by the Mayor - by the Sangguniang Panglusod and then approved and endorsed by the mayor to be submitted to the Office of the President, with proofs of compliance of income and population requirement. Naa man na siyay income and population requirement. 50 million for highly-urbanized and If I am not mistaken population requirement is 250 000. And then the President will issue a declaration of conversion. And then there will be a plebiscite. Walay law. Because this is not a creation of a new LGU. Had it been so, then there should be a law. If it is a municipality, and you want to be converted into a city The term conversion actually is a misnomer. It should be a creation of a new city or a new local government unit. Thats why a law is required. So lahi ang conversion from a municipality into a city from component city into a highly-urbanized city. In the first case, a law is required and in the latter case, no law is required. Division and Merger The same requirement in creation and conversion but there are limitations under Section 8 of the LGC. The division or merger shall not reduce the land area, population, and income to less than the minimum requirement AND the income classification of the original LGU affected.


It not difficult to understand that there should be a limitation that it shall not reduce the land area, population, and income requirement to less than the minimum. But there is an additional requirement that the income classification also of the original LGU will not be affected. Di ba 1st class, 2nd class, 3rd class, 4th class, 5th class, 6th class by reason of income ang atong LGU. If that will be affected as well, division or merger will not be allowed. That is an added guaranty that the mother LGU will not be affected to the extent that its status will also be affected. There shall only be a reduction in population, income or area but retaining its being, like for example, a province, and also its income classification like a 1 st class, 2nd class, 3rd class province. Substantial alteration of boundaries. Requirements are the same as creation and conversion except that criteria (?) in income, population are not factors to consider. But the alteration of the boundaries should not also reduce also the minimum requirements on land area. ABOLITION Do you remember what happened in Leyte involving Saint Bernard. Kadtong natabunan landslide. Practically, covered by mud soil ang entire barangay of St. Bernard. Abot gud og 6 meters ang ka thick sa mud. The municipality there concerned wrote a letter to the DILG asking whether or not they will still give St. Bernard as a barangay a share in the IRA. Nganong hatagan man ni nga basically there is no more St. Bernard. The residents have transferred to neighboring baranggays, so there is no population anymore. Naa ang territory nag double man gani mibaga but walay population. The DILG opined, interpreting Section 9 of the LGC saying, irreversible reduction to less than the minimum standards only confers a ground for abolition. So there should still be an act to be done before an LGU will be considered abolished. Dili na automatic. This is done either through law or ordinance as provided for in the LGC. The ground of course is irreversible reduction to less than the minimum standards. But the irreversible reduction shall be determined by the national agencies concerned. Kay income for example ma ________ man nah. Kintahay province 20 million unya the following year because of bad governance investors and businessmen pulled out their businesses, so the income miubos nalang og 19 million nalang for example. To my mind that is not irreversible reduction. Maybe next year they can recover. But just the same there must be a certification to that effect. Creation of Autonomous Region There should still be law and there should still be plebiscite. And there are two objectives or purposes for the plebiscite. First, to determine the will of the people whether to create Autonomous Region. Second, to determine which LGUS shall form part of the Autonomous Region. And according to Abbas and Ordillo, only those with majority votes provided that there shall be more than one will constitute the autonomous region. Difference between LGU created and the Autonomous Region Illustration: if there are 10 provinces that intend to be part of the Autonomous Region, there shall be plebiscite involving 10 provinces. How do you go about applying the results of the plebiscite? You will not determine whether all residents of 10 provinces reached the majority requirement vote. Instead, you will determine in each province whether there is majority vote. Not the total like adding all the voters of all 10 provinces. And for example there is a majority of all 10 it doesnt mean that there is an autonomous region created. You determine only the majority in each province and list down those provinces that obtained majority and they shall form part of the Autonomous Region. Even if kung imong I-total ang tanan dili makabot ug majority. Lets say about 10 provinces, there are only about three provinces which obtained majority vote pero kung i-add nimo tong 7, dili jud kaabot man gani ug 1/3 ang votes. The difference: If you are talking about regular LGUs, majority of total votes of all units. In Autonomous Region, majority of the votes in each unit. COMBINATIONS OF LOCAL GOVERNMENT UNITS If you merge LGUs, that is legislative function obviously. If you create a special metropolitan political subdivision consisting of several LGUs, both the Constitution and the Code require legislative enactment. Law is required. In fact, there is also a requirement for plebiscite. If you merger also LGU to constitute Autonomous Region, obviously there is also a legislative enactment required. But the merger of administrative regions, no law is required. This is just part of the supervisory power of the President. So mag-usab ta ug Regions 1, 2, 3, 4, 5; or the formation of the CARAGA region for example or NCR; or maghimo ta ug laing region sa region 7, we will call it Bisaya Region; or combination of regions 7 and 8 for example - only Executive Act, no law is required.


Sayon ra man na sir.. mao gani precisely, this is a reminder. Mao bitaw nga review bitaw ni! Beginning of Corporate Existence Section 14 of the LGC. In the case of Mejia vs. Balolong (1948), the SC had trouble determining the beginning of the corporate existence. Should it be upon the effectivity of the law creating the LGU, or should it be upon the appointment of the local officials because perhaps organization is to be treated differently from existence of the government. The framers of the Code this time, specified now with clarity when is the beginning of corporate existence. So Section 14 is the answer. First, determine the law or the ordinance creating the LGU. If it has mentioned of the beginning of the corporate existence, then it shall govern. Otherwise, it should be as what Mejia vs. Balolong has mentioned upon the election and qualification of the Chief Executive and the majority of Sanggunian members. Why majority of Sanggunian members? Because the same Code provides that the Sanggunian can now function when there is presence of the majority of members because that is the quorum required under the LGC. What is meant by qualification of the Chief Executive and majority of the Sanggunan members? When is a public officer deemed qualified a such? Upon the taking of oath of course. That is required for you to qualify to hold a public office. So, the meaning of election and qualification therefore means that after election you must taken oath as a chief executive and majority of the Sanggunian members. Well of course, that is relevant only when the law does not provide for the period or the date of the beginning of corporate existence. Mo matter diay na sir? Of course yes kay it is only when it has a corporate existence that it shall be considered to have a personality. So you do not enter into a contract of lease to a supposed entity that is not really an entity under the law because its corporate existence has not yet begun. POWER RELATIONS You know the study of political law, to the large extent, deals with power relations. You study the relationships of the different branches of the government; you study the relationships between different agencies when you study administrative law. In the same manner, you when you study local government law, you also have to deal with the relationship of agencies, officials involving local units. LGU and National Government How is the local government unit related to the national government? You of course know the answer Magtajas vs. Pryce Properties. LGUs are but agents of the state. And you know of course the legal import of LGUs being agents - they are mere delegates and therefore cannot be superior to the principal. In Magtajas, an ordinance cannot undo the will of Congress that allowed the operation of PAGCOR. LGU and the Supreme Court The acts of the LGU are subject to the judicial review of the SC. Our legal basis is Section 4 paragraph 2 of Article 8, which says that our SC has minimum appellate jurisdiction on matters involving constitutionality of ordinances, aside from presidential decrees, executive orders, treaties, etc. And in fact, even as to expanded judicial review, the SC may also exercise that power involving local government units. LGU and the President Under the Constitution, the relationship of the President and the LGU is only that of general supervision by the President over the LGU. In administrative law, there are also various relationships. You can mention of supervision and control; then you have supervision; and you have attachment. But in this case, it mentions of general supervision. It is found in Section 4 of Article 10. And in so far as the Autonomous Region is concerned, under Section 16, Article 10 of the Constitution, it says autonomous region is under the general supervisory power of the President.


What does general supervision mean? It simply means, under Section 17 of Article 7, the President shall ensure that laws are faithfully executed and that LGU acts are within the scope of their prescribed powers and functions. Why highlight general supervision? Because in a given problem, the power exercised by the President tantamount to an exercise of control, then it should be invalidated by the SC. The President is not allowed to exercise the power of control over LGUs. How do you distinguish general supervision from control? Or when is an act considered an act of control? Aaron Pedrosa: I forgot the exact words used. As longs as the power of control is intended to substitute the judgment of the superior to that of the subordinate. That is the exercise of control. The mere ability on the part of the President to set aside a decision of the subordinate will not necessarily amount to control, correct? If under a particular statute, the President is allowed to set aside, nullify for example or declare invalid, an act of an LGU, Is that control? Well, if you are going to use the definition or the short description made by Aaron here that there should be an ability to substitute the judgment of the subordinate with his own judgment, then there is control. is that correct. Of course yes, but take note however that control power need not be exercised before the President is barred from or prohibited from further doing it. The mere fact that under the law, the President has the ability to exercise the power of control, it may already be nullified. This issue of control was discussed in Drilon vs. Lim (1994). Under section 187 of the Code, an aggrieved party to a tax ordinance may question the constitutionality of that tax ordinance and even raise it to the Secretary of Justice. And what is the extent of the authority of the Secretary of Justice? The Secretary of Justice can modify or set aside the tax ordinance on two grounds constitutionality and illegality. In this case of Drilon vs. Lim which involved the Manila Tax Code, the Manila Tax Code was questioned by some businessmen as invalidly enacted because the City Council of Manila failed to comply with the requirement on public hearing. Under the Code, tax ordinances or tax measure can only be valid if among other requirements, these tax ordinances have undergone public hearing. Indeed the then Secretary Franklin Drilon nullified the Manila Tax Code because there was no proof that public hearing was conducted. But it was questioned by the City of Manila arguing that the Secretary as alter ego of the President cannot do that because under the Constitution the President is only limited to general supervisory powers. The SC said that when the Secretary nullified the Manila Tax Code, Drilon at that time, he did not also substitute with his own judgment. He did not say that this should have been the tax code, perhaps for example the Secretary will rewrite the Manila Tax Code which was not provided in the Local Government Code. The most that the Secretary of Justice can do is to set aside or nullify as unconstitutional or illegal the tax ordinance. That is not yet control according the SC. supervision vs. control Here is the distinction given by the SC on supervision vs. control. In supervision, the supervisor or superintendent merely sees to it that the rules are followed but he himself does not lay down such rules, nor does he has the jurisdiction to modify or replace it. If the rules are not observed, he may order undone or redone but only to conform to the prescribed rules. He may not prescribed his own manner for the doing of the act. In Ganzon vs. COMELEC, this was also tested. May the President discipline LGU officials? Before the LGC of 1991, the Office of the President had the power to order the removal of LGU officials. Now, under Section 60 of the LGC, last paragraph, it is only the court that can order the removal. It is a new innovation under the new LGC. Just so as you will not be misled by this case of Ganzon vs. COMELEC because it mentions of the power of the President to remove LGU officials which at present under the Code is not allowed. Unya Sir, unsa namna lang? Eh di another forms of disciplinary actions - suspension, reprimand, censure and other forms of disciplinary actions short of removal because under the Code, only a court can effect the removal of LGU official. But even if we assume that removal is allowed, will that violate the Constitution that prohibits the President to exercise control power over LGU officials?


The answer is, of course, Ganzon vs. CA. The SC said that disciplinary power of the President is not incompatible with general supervisory powers. It does not amount to power of control. Again, assuming there is power to remove, or the disciplinary power in general will still not amount to exercise of power of control. What about the National Liga Ng Mga Baranggay? Will it be subject to the general supervisory power of the President.? In The National Liga Ng Mga Barangay vs. Paredes, the answer is yes. Take note hah that DILG, as an alter ego of the President, has general supervisory power over Liga Ng Mga Barangay. Sir, LGU ba diay nah? This is how the SC justified its ruling. The Liga is an aggregation of Barangays which are represented by their respective Punong Barangays, and the representatives of the Liga sit in an ex-officio capacity at the municipal, city and provincial sanggunian. So the representatives will become an LGU official. Remember that general supervisory power is not only on the entity but on officials as well. Thats why we mention disciplinary authority over the officials. To that extent, because they will be enjoined with all the powers and functions of the regular councilors, city, municipal councilors or even provincial board members, then it would be prudent to conclude that the President can also exercise general supervisory power over the Liga Ng Mga Barangay. But of course, in this case you will there find out that Secretary Barbers overstepped that boundary because it only covers general supervisory power. There was an issue with the election of thes officials of the charters of this Liga. Because of the controversy of the election, Sec. Barbers nullified the entire proceeding, and instead of ordering the new election of these officials under their own rules, Sec. Barbers issued Memorandum Circular 97-193, and it was the M.C. that was made applicable to the election of the officers of the Liga Ng Mga Barangay. The SC found that as not anymore an exercise of general supervisory powers but of control because he laid down himself the rules for the conduct of the elections instead of the rules of the Liga. LGU and Congress What about LGU and Congress? We go back to Magtajas. - LGUs derived their existence and powers from Congress. But theres a little modification in the area of taxation, because Section 5 of Article 10 guarantees the general power to tax of LGUs. What is therefore the extent of the power of Congress over local taxation? Only specific power to tax can be the subject to statutory and the guidelines or limitations that Congress may provide. What do you mean by general power to tax and there is specific power to tax? The SC said in Basco vs. PAGCOR, that LGUs do not possess the inherent power to tax. Practically that had been the doctrine before the 1987 Constitution. That pronouncement was actually made citing also previous cases before the 1987 Constitution the doctrine being that the LGUs do not possess the inherent power to tax and they only exercise power to tax only by mere delegation. Then came the 1987 Constitution, Article 10, Section 5, which says that LGUs shall have the power to impose or levy taxes, revenues, etc. Now the question is what is the significance of Section 5, Article 10 in relation to the doctrinal pronouncement of the SC that LGU do not possess the inherent power to tax? Has it altered the doctrine that LGUs do not possess inherent power to tax? It has not, of course. But what does it do to the doctrine? It modified a bit in the sense that while it is true that LGUs still do not possess inherent power to tax, and therefore power to tax is the subject of delegation - that rule applies now to specific power to tax and not to the general power to tax. What does it mean? It means therefore that Congress cannot deny LGUs the power to tax through statutory requirement because the Constitution already guarantees that. It cannot therefore altogether deprive LGUs the power to tax. But as to specific power to tax, it may do so. It may perhaps for example through a law say that LGU has no more power to impose community tax. Is that a total denial of the power to tax? NO, because the LGU may still raise revenue through other revenue-raising but not just through community tax, because community tax is not constitutionally-guaranteed, it is only statutorily provided. To the


extent that Congress has participation to specific power to tax, then it may provide guidelines and limitations. Mother LGU and a Component LGU What about a mother LGU and a Component LGU? Province for example, that is the mother LGU in relation to municipalities and component cities. The city also is also the mother LGU in relation to barangays. The same is true to municipalities. A municipality is a mother LGU in relation to the component barangays. What is the relationship? The mother LGU reviews acts of component LGUS. That is essentially how a mother is related to the component LGU the power to review the act. What is the extent of that power? Does it have the power to set aside an ordinance on the ground that it is not a wise ordinance? Bar Question (2009, 2004/5): The common situation was a component municipality passed an ordinance authorizing the mayor to expropriate a parcel of land. And because it is an ordinance under the Code and because it involved a municipality, then as a rule the ordinance will have to be submitted to the Provincial Board for review. Then the Provincial Board nullified or declared the ordinance that authorized the Mayor to expropriate as not valid. Apparently the basis would be that the subject of the expropriation should have not been the property that should be the subject of the expropriation. It should have been another property. Was the act of the Provincial Board in accordance with law? Clue: the Mother LGU shall ensure that the acts of their component units are within the scope of their prescribed powers and functions. To determine whether or not they are ultra vires. Does the Provincial Board have the power to set aside the ordinance passed by a component municipality allowing the Mayor to expropriate? Answer: A Provincial Board does not have the power to do that because it is settled that a local government unit has the power to expropriate. The ground for setting aside an ordinance of a component LGU is merely ultra vires. Therefore, the question that should be resolved there in the Provincial Board is whether or not the municipality has the power to expropriate because the ordinance is about expropriation. And if it can be set aside by the Provincial Board, it is just saying that the municipality does not have the power to expropriate, but the power is recognized there in Section 19 in the LGC that all LGUs can expropriate. The only reason that a PB can nullify or set aside an ordinance is that it is beyond the power or function of the component LGU. Unsa may example ana sir? If there is a tax ordinance imposing income on compensation earners. Di ba na covered sa NIRC national tax. The ordinance cannot contravene the law. So it is not within the powers. Let us go to the pertinent provisions in the Code on how this relationship between mother LGU and component LGU is being implemented. We have Section 30 (for provincial governors) of the LGC. Then you jump to Sections 56 and 57 (for Sangguniang Panlalawigan). Then you go to Sections 447 (for province), 458 (for city), and 468 (for municipality) for ordinances and executive orders. Section 30: Provincial governors have the power to review the executive orders of the component city and municipal mayors; and city and municipal mayors will also review the executive orders of punong baranngay. These are local chief executives reviewing the executive orders of the local chief executives of component LGUs. Executive orders kay local chief executives man. Under Sections 56 and 57, these now involved ordinances and NOT ALL resolutions. The code only mentions of a single kind of resolution that should be submitted for review. All ordinances should be submitted for review; while resolutions, not all of them. As a rule, resolution stays in the issuing sanggunuan, except if the resolution involves approving of plans and programs of Local Development Councils, in which case, the Code requires that these kind of resolutions should be submitted to the reviewing LGU. For consistency of the implementation of these projects. The Sanguniang Panglugnsod for cities, and Sanguniang Bayan for municipality review also the ordinances of barangays. And you have also mother Sanguniang review ordinanace and executive orders of component units. (Balik-balik ang LGC, pwedi ra man unta na ma simplify. Hastily crafted jud siguro). Just an important distinction. The ground for the exercise of review power of the Sangunian Panlalawigan is merely or only ultra vires. But if it is by Sanguniang Panglungsod for city or Ssnguniang Bayan for municipality, Section 57 mentions of different grounds. But to my mind, it is still of the same effect consistent with laws and consistent with city or municipal ordinances. Hinuon kung consistent with law, pwedi it is ultra vire; but naay additional consistent with city or municipal ordinances.


And it is interesting also to distinguish the grounds for the review power of mother Sangunian from the Veto power of the local chief executive because it also mentions of ultra vires. In the veto power of the local chief executive, there are two grounds ultra vires and prejudicial to public welfare. That second ground (prejudicial to public welfare) you dont see in the power of the mother LGU to review the acts of the component LGU. That is only peculiar to the veto power of the local chief executive.

LGU and National Agencies and Offices with Project Implementation Function Section 27 provides that no project or programs shall be implemented by the government authorities unless the consultations in Sections 2 (c) and 26 of the LGC and prior approval of the Sangunian concerned obtained. Provided that if in the implementation of the project there shall be some occupants hat will be affected, then they shall be given relocations sites. This is applicable only if there are occupants who will be affected. This is relevant at present. Remember the issue on LRT-BRT thing in Cebu City? Rep. Gullas wanted to establish an LRT connecting Talisay City, Cebu City, and Mandaue City. The initial pan is gikan sa Talisay, then to M. Bacalso Land Bank to Capitol,- right turn towards Escario - Old SSS Building right turn towards Immaculada left turn towards Reclamation Project. The project implementor is DPWH because it is national government project. Ang problema kay dili man musugot si Tomas kay BRT ang I-implement dinhi sa Cebu City. Do you know the idea of Bus Rapid Transit? The idea is mura siyag train pero bus lang ang gamiton. In other words, naa siyay lane and dili na siya muliko or mohunong bisan asa. The situation here is a little bit unique becasue the program apparently will involve of just one LGU but at least three LGUS. If Gullas will get the approval of Talisay City, and if Cortes and officials of Mandaue City will also give their approval but Cebu City will not, will that stop the implementation of the project. Well, if you will use your common sense, since one of the LGUs will object then dili pwedi. This is mandatory. No project or program shall be implemented by government authorities (of course with project implementation functions) without the consultation, (which is easily done); and the approval (that is difficult to obtain) from the local Sangunian. In the case of Lina vs. Pano (2001), it interpreted Section 27 in relation to Section 26 to mean that it shall only refer to programs by national government. So if it is by, in this case for example, government-owned-or-controlled corporation like PAGCOR, the rule on prior consultation before implementation will not apply. Because in this case, PAGCOR operates in Laguna or Pangasinan. One of the contentions there was that PAGCOR failed to get an approval and did not even consult the Sangunian of the municipality concerned. That is not a requirement because to invoke Section 27 in relation to Section 26, that only applies to projects by the national government, and not by the government-owned-orcontrolled corporation. You know of course in Admin Law that national government as entity is different from regulatory agencies, GOCCs, chartered institutions, etc. LGUs and National Agencies. Offices, and GOCCs with Fields Unit in the LGU If there is no program implementation, It is only mere consultation that is required. Prior approval by the Sangunian is not required.

LGU and National Agencies. Offices, and GOCCs With Environmental Programs If it environmental program, prior approval is also not required. It is mere consultation if you look at the Code. LGU and PNP. Fire Protection Unit and Jail Management Personnel What is the extent of the exercise of power by the LGU through the Mayor? Only operational supervision and control. It is not even supervision and control. it is just operational supervision and control. Meaning, how to mobilize the police force if we are to talk about PNP. This was tested in the case of Andaya vs, RTC (1999), involving then former mayor Alvin Garcia. Under the law creating National Police Commission. In choosing the city director

(the chief of police or city police commander), the Regional Police Director shall give a list of 5 eligibles to the Mayor. Unya kutob ra pod didto sa lima ang i-appoint sa Mayor. Si Mayor Alvin miingon nga kani si I forgot the name maoy i-apil. Unya wala ma jud giapil Sa Regional Police Director didto sa lima nga recommended. Iya gipaapil. May the City Mayor insist on a name that is not included in the nominees by the Regional Police Director? It is here that the SC discussed the relationship between the Mayor and the National Police Commission, applying of course the rule that the Mayor is only limited to operational supervision and control. GOVERNMENTAL POWERS OF LOCAL GOVERNMENTS These are the powers that we will study local power of taxation, police power and eminent domain. Local Power of Taxation We will be talking about the power and not about the specific local taxes because that is not part of the coverage in the bar exam in so far as political law is concerned. That will be in taxation. We will just talk about the power in general. Sources of Revenues 1999 Bar exam: What are the sources of revenues of LGUs? Sections 5, 6, and 7 of Article 10 Taxes, Fees and Charges through ordinances; just share in the national taxes (it is in the LGC); and then, equitable share in the proceeds of the utilization and development of national wealth within their respective areas. All these sources are already found in the LGC of 1991. Article 10, Section 5. Each local government shall have the power to create its own sources of revenues and to levy taxes, fees, and charges subject to such guidelines and limitations as the Congress may provide, consistent with the basic policy of local autonomy. Such taxes, fees, and charges shall accrue exclusively (another important phrase) to the local governments. Question: Under the law that is created, certain local taxes shall be spent to other purposes but not accruing to the LGUs. Is the law valid? Take note that this is a provision in the Constitution. This is not under the LGC. So Congress cannot change this. Any law that alters this rule that they shall accrue exclusively to the local governments shall be declared unconstitutional. Local Fiscal Autonomy Here is the definition of Local Fiscal Autonomy given by the SC in Pimentel vs. Aguirre (2000). Local governments have power to create their own sources of revenues, in addition to the equitable share in the national taxes released by the national government. What is important here is you should add as well as the power to allocate their resources in accordance to their own priorities. So it is the power to allocate their resources in accordance with their priorities that gives true meaning to local autonomy. Nature of Local Power to Tax So we have the nature of Local Power to Tax as declared or enumerated by the SC in Basco vs. PAGCOR (1991). 1. 2. 3. It is still true that municipal corporations do not have inherent right to impose taxes. Therefore, the power to impose tax should be by delegation. The LGUs power to tax is subject to control by Congress. But Congress cannot altogether deprive all local governments the power to tax. Local governments have no power to tax instrumentalities of the national government.

4. What are the reasons for giving Congress the power to provide guidelines and limitations? The SC listed the following reasons in Manila Electric Company vs. Province of Laguna (1999). Apparently indicating that Congress does not trust LGUs in so far as exercise of the power to tax is concerned. (1.) Because the legislature must still see to it that the taxpayer will not be over-burdened and suffer with multiple and unreasonable impositions. That is to say therefore that LGUs do not know the distinction between the reasonable and the unreasonable imposition. (2) Each LGU will have its fair share of the available resources. (3) The resources of the LGU will not be unduly disturbed. (4) local taxation will be fair, uniform and just.


What are the possible limitations to the power to tax? Only two Constitution and Law. Not an executive order or memorandum circular by the department. Wala na class. Only Constitution and law if we are to truly implement local autonomy. That is Philippine Petroleum Corporation vs. Municipality of Pililla, Rizal (1991). Effect of Local Government Code on privileges and exemptions granted to GOCCs. Section 234 provides for the exemptions from payment of real property taxes, and withdraws previous exemptions granted to natural and juridical persons including GOCCs. You add Section 230 (?). Tax Exemptions or incentives granted to or presently enjoyed by all person whether natural or juridical including GOCCs are hereby withdrawn effective upon the approval of this Code. Indeed that was the ruling of the Court in Mactan Cebu International Airport Authority vs. Marcos (1996). Judge Marcos not President Marcos. These involved the properties now occupied IT Park. Gi assessan sa City of Cebu real property tax. Invoking Basco, MCIAA said exempt. And then invoking also a provision in their charter that it is exempt. Apparently was there before the LGC of 1991. The SC said revoked - effectively withdrawn is the phrase used in the LGC of 1991. In 2006, it was changed. MIAA vs. CA disregards MCIAA vs. Marcos. Have you read this case; the dissent of Justice Tinga? You read that so that you will be convinced whether or not this is not a good rule. Unsa may kalainan sa MIAA ug MCIAA? Mao to nga miingon si Justice Tinga that MCIAA vs. Marcos case applies squarely. Interestingly, in this case, there was no mention, not a single words was used discussing the propriety or impropriety of the MCIAA vs. Marcos doctrine. And discussion ra diya MIAA kuno is a government instrumentality and not a GOCC kay kuno its ownership is not divided into shares and there are no members also, applying the introductory provisions of the Administrative Code. Since this is just a review we will not discuss or analyze Justice Tingas dissent. I will leave it to you to read Justice Tingas dissent. Especially Justice Tinga said that MCIAA vs. Marcos has been applied by the SC in several cases. That doctrine has been applied many times giving strength to that doctrine that all persons whether juridical or natural and it is irrelevant whether it is GOCC or not basta entity, effectively withdrawn. Mao na ang MCIAA vs. Marcos. But suddenly, the SC did not apply MCIAA in this case of MIAA. In GSIS vs. City of Manila, it applied MIAA and not Marcos. Nagsugod na sad ug affirm ang MIAA doctrine. The same reason that it was created as a non-stock corporation, the GSIS capital is not divided into shares, and there are no members (members according to the SC should be interpreted as the beneficiaries of GSIS) of the entity. SO it applied MIAA. Kung nay exam sir unsa man among gamiton. Sir: ambot nimo dako naman ka. Mao basaha na kung asa nimo feel ang correct. Because I am not convinced that MIAA is really a doctrinal pronouncement of the Court especially that it abandons several rulings as said in the dissent of Justice Tinga. In Quezon City vs. Bayantel. Di ba effectively withdrawn. But it does not prohibit the Congress from reinstating the exemption. Just like what happened here in Quezon City vs. Bayantel. A law RA 7633 restored the exemption. So pwedi ug while effectively withdrawn by LGC of 1991 but through a special law, pwedi i-reinstate ang exemption. So Congress is not barred to do that plenary power of the Congress. Just share in the National Taxes I think the important rule here is the rule on automatic release. Internal Revenue Allotment (IRA) should be released automatically. What do you mean by automatic release of the IRA. You have Pimentel vs. Aguirre. It says shall not subject to any lien or hold back that may be imposed by the national government for whatever purpose. At that time, around 1996 or 1997, due tot the Asia financial crisis, Ramos thought of preserving funds to address the financial crisis. Hunuhuna niya nganong diretso ma nato release ang IRA to LGUs. Maybe it can be used to address this financial crisis. Miingon ang Administrative Order 372 pending the assessment and evaluation by the development project coordinating committee of the ____________________, the amount equivalent to 10 percent of the IRA shall be withheld. In 2007 bar exam: the provincial governor of Bataan requested the DBM to release its IRA of P100 million for the current budget year. However the General Appropriations Act provided that IRA may be released only if the province meets certain conditions as determined by an oversight council created by the President. Is this requirement valid? Definition of automatic release - shall not subject to any lien or hold back that may be imposed by the national government for whatever purpose. You know, of course, how to answer that question. That is a clear violation of Section 6, Article 10 of the Constitution. Just so as you will have an idea on how on the sharing of IRAs (how it is allocated: provinces (23%), cities (23%), municipalities (34%), barangays (20%).

July 31, 2010 POLICE POWER-GENERAL WELFARE CLAUSE We can talk about the next topic on the Outline which is the Local Police Power. This is not alien to you because you have studied this in part in your constitutional law 2. At any rate i know you are familiar with Local Police Power or what we call the General Welfare Clause. Each time the LGU speaks of its local police power, the LGU would refer to the General Welfare Clause. You might be asked a very simple question, what is meant by the General Welfare Clause then that refers to the local Police Power of Local Governments. Sec. 16 is the pertinent provision in the LGC, its says: SEC. 16. General Welfare. - Every local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective governance, and those which are essential to the promotion of the general welfare... Expectedly you would read the phrase General Welfare because that is the objective of police power. Basically the promotion of general welfare. And so several questions have been asked in the bar as to whether or not a particular ordinance having been passed by a LGU where it is valid or not. So it is important to know what are the requisites for the validity of local police power. POLICE POWER INHERENTLY LEGISLATIVE However it is important that you first read sec 5 of the LGC because you will notice that sec. 16 is the provision that effectively delegates police power to the LGU because Police Power is inherently in Congress. You learned that already. Police power is legislative and inherently possessed by congress. If there is any other agency or instrumentality of government that maybe authorized to exercise Police Power, it can only be done through a valid delegation. One of these valid delegation is this delegation to LGUs. What does it tell you if it is a mere delegated power? This is a matter of interpretation. Normally, if the power is delegated we only speak of limited power of the delegate. Such that in case of doubt whether the delegate can exercise a particular power, usually out thinking is it cannot if the power is neither express or implied in the law which granted it such power. But in Sec 51 of the LGC there is however an assurance that the General Welfare Provision shall be liberally construed to give more power to the LGU. When you read section 16 you go to sec. 5 because it provides that the General Welfare shall be liberally construed to give more powers to the LGU. What im trying to say is that Local Police power is a delegated power and therefore should be strictly construed because it is fundamental in the delegation of Legislative powers. It is strictly construed against the delegate. But in this case it should be liberally construed to give way to more powers to the LGUs. This will somehow help you if you are confronted with a problem that is not base on an actual case it is merely hypothetical. But most bar examiners when the draft questions for the bar they make sure that they have a case to support their answer which is a supreme court decision or if not the codal provision. Okay so Liberal Construction in favor of Local Police Power. REQUISITES FOR VALIDITY OF LOCAL POLICE POWER Lets go to the Requisites for Validity of Local Police Power. Your relevant case is CELESTINO TATEL vs. MUNICIPALITY OF VIRAC, it has been cited in so many cases dealing with local police power. 1. Its not difficult to understand that the ordinance, (by the way this is only through an ordinance), must not contravene the Constitution and statutes. You remember what I talked about with regards to the nature of LGUs still under generally the control of Congress and we are still in a unitary set-up and so Local Legislative enactments must still conform not only to the Constitution and also the Statutes. And of course it must not be unfair or oppressive and other obvious requirement in fact it is a component of the requirement of due process, substantive due process. You remember your constitutional law 2. There are 2 aspects of due process, one is substantive and the other is procedural. And by Substantive Due process you remember that it requires among others that the law itself must be reasonable, fair and just. And that is included in these requirements on, it must not be unfair, not oppressive. It must not be partial or discriminatory. The 4th one had been, i dont know why, the favorite of bar exam questions. Maybe because its a little bit tricky and this you should understand, the exercise of Local Police Power cannot However prohibit Lawful trade. Obviously because if the trade is lawful then it is not prohibited by Statute, especially if it is expressly allowed by the Statute or by

Sec 5 (c) The general welfare provisions in this Code shall be liberally interpreted to give more powers to local government units in accelerating economic development and upgrading the quality of life for the people in the community

congressional enactment. The most that the LGU can do is regulate but it cant make a demand that it is prohibited. This in the case of DELA CRUZ vs PARAS, an ordinance which prohibited the operation of Night Clubs. This was declared by the SC as unconstitutional or illegal because there is no Law that prohibits the Operation of Night Clubs. Of course there are laws which regulate the activities inside the night club. But the operation of Night Clubs, even up to the present, declared illegal. So an Ordinance cant prohibit the Operation of Night Club. No matter how noble the intention maybe. Again we are govern by the Rule of Law. Another requirement is that it must be consistent with public policy. As in this case of Lim vs Paquing, where the LGU insisted that it has the authority to grant franchises for the Operation of Jai- Alai. However there was a law that actually provided that it is not within the power of the LGU to grant franchises for the operation of Jai-Alai but is for the National Government. Therefore it is the National Government policy that it is the National Government which shall regulate the _____ . so if the LGU regulates the Operation of the Jai-Alai through the issuance of franchises then it contravenes the policy of the National Government. Ordinances like that cant also be considered as valid. And of course it must not be Unreasonable. In the past it is seldom that you will see the requirement of Lawful subject and Lawful means in the discussion of the court striking down or dealing with ordinances of LGUs. Usually they apply the six requisites found in Tate vs Municipality of Virac but recently in the last few years perhaps 20 years, the SC have been used to adopting what are considered the basic test in determining validity of Police Power in general. Before you dont see this in SC decision because this is just a term given by an author (Isagani Cruz), Lawful Subject and Lawful means. But recently as mentioned Earlier, SC have now used Lawful Subject and Lawful means as test. Naa na Sa SC decision dili na lng sa Book, and terms na lawful subject and lawful means. PRESUMPTION OF CONSTITUTIONALITY-EXEMPTION Ordinances also enjoy presumption of Constitutionality, and just like laws they are also presumed constitutional. It is incumbent upon those who alleged that it is constitutionally infirmed to prove that it is so. It is not incumbent upon the State. Recent developments however show that there is an exemption to this, the rule on Presumption of Constitutionality. You Remember your Doctrine of Strict Scrutiny? Of course you remember the so called, Overbreadth doctrine, the O brien test. You remember that in your consti 2, there is another doctrine which has something to do with the Presumption of constitutionality. And this is your Doctrine of Strict Scrutiny. The SC of the Philippines has adopted a judicial Philosophy about laws dealing with Liberty. If the Law deals with valuable aspects of our liberties, especially with the freedom of expression, this rule on the presumption of constitutionality has been somehow changed. In the sense that whenever a law, regulates, affects or interferes with the individual freedom. Or the most preferred rights as the SC would sometimes call it, like the freedom of expression. It becomes incumbent now applying the doctrine of strict scrutiny. Incumbent upon the government to prove that the interference of the freedom of expression has a valid and legitimate governmental purpose. And the means employed to accomplish the purpose of course is not over breadth. That is the meaning of the Doctrine of Strict Scrutiny. It may perhaps be applicable if we are to talk about ordinances that will affect the freedom of expression. My point is when generally laws and ordinances are presumed constitutional, the rule will not apply if these laws or ordinances interfere with freedom of expression under the law or doctrine of strict scrutiny. Now of course the application of the Police Power, ORTIGAS VS FAETI BANK. I think this is a familiar case. You remember what happened to this case? Zoning ordinances are police measures therefore, as you have learned already in consti 2, they will prevail over the rule on non impairment of obligations. In this case, a property having sold to the buyer with annotation on the title, that the property could only be used for residential purposes, at the time of sale the land had been classified in the zoning ordinance as residential. Even if it was perfectly alright to annotate that it should remain for residential use only. But later on the Zoning ordinance was changed and amended and the area where that property was situated had already been considered commercial. And so the buyer started to build a commercial building. The owner which was just beside the building which was the seller who was just beside the building complained because in the certificate of title it was annotated that it should only be used for residential purpose. And now or at that time it was used for commercial purpose. And then when the buyer invoked the zoning ordinance, the seller also invoked non-impairment clause of the constitution and you know of course the ruling of the Court there, the Zoning Ordinance is a Police Measure and thus it should prevail over contractual obligations. (Ok, you dont find it interesting? Cge lang, sometimes i discuss case with so much passion, i always take the cases to be very interesting only to find out that it becomes so only after i asked my students. dont you find it interesting?. The case of ZOOMZAT VS PEOPLE. Its a simple case. The rule is that if it is an issue whether the LGU possesses a power. Sometimes its difficult really whether we apply liberality principle or not. But if it is clear according to the court that it has no authority


then the rule on Liberality of the General Welfare of ordinances will not apply. The SC said that in the absence of constitutional or legislative authorization, municipalities have no power to grant franchises. This is a declaration made by the court when a particular LGU wanted to grant franchise to a local cable TV system. Then in Leonardo Tan vs Perena, this is a local case on the northern part of Cebu. Under the LGC the Sanguniang has the power to authorize and license establishment, operation and maintenance of cockpits. This might sound interesting to some people. Yes the Sanggunian has the power to authorize and license the operations and maintenance of cockpit. However, the law provides that there should be only one cockpit per city or municipality. The only exception is when such cities or municipalities have a population over 100k. Then the sanggunian cant act contrary to the particular mandate of the statute. There is a law regulating the cockpits/LGUs. This is the case where i said which mentions lawful subject and lawful method. Before when i asked my students to give me requisites of the exercise of Police Power. They answer, Sir there are 2 requisites, Lawful subject and Lawful means. And i would answer that it is wrong. Because i havent seen in any SC decision that such requirement (26:00)___. Yes its in the book, but i havent seen it in the decisions of the court. What you would see instead are the main meaning of Lawful subjects and Lawful Methods. 1. The meaning of Lawful subjectthat the interest of the Public Generally as distinguished from those of a particular class require the interference of the State. That is the meaning of Lawful Subject. And 2nd. The means employed are reasonably necessary for the attainment sought to be accomplished and not unduly oppressive upon individuals. Inana ra na class. Reasonably necessary for the attainment of the object and not unduly oppressive upon individuals. And in this case, LUCENA GRAND CENTRAL TERMINAL, the ponente used the terms Lawful subject and Law Methods. As it is it is now in the SC decision this terms mentioned by the former justice Isaagani Curz. You know what happened in Lucena Grand Central Terminal? In Lucena City there were certain terminals (about 2 or 3 terminals) that have been in operation within the interior part of the City. As observed it caused traffic and congestion to the city. The solution was to have a terminal and make it a central terminal outside the city. Indeed it was implemented by the LGU but at the same time it ordered through the ordinance that existing terminals inside the city cannot operate as terminals. And so the affective owners of these terminals filed a case in court questioning that ordinance, saying that it took their properties, private properties without payment of Just compensation. Then of course the LGU argued, we did not take your property, because in the exercise of Police Power there is no taking of property here and the payment of just compensation. It was an exercise of Local Police Power. The objective of which was to promote general welfare which was to ease the traffic in the city. This case also applied the concept of overbreadth in police power measures. It is overbreadth if it does not comply with lawful means or lawful methods, as when it is not reasonably necessary. According to the court while the objective was for the promotion of the general welfare and therefore the subject was lawful, the means employed by the LGC was not reasonably necessary. Why? Because according to the Court the LGU was not without recourse in solving congestion. It could have 1. Implemented strictly traffic rules 2. It could have widened roads for example or if not create some more roads to ease the traffic, rather than order the non-operation of existing terminals and deprive them of their right to property without payment of just compensation. Another application of Lawful means requirement. If that was not interesting i think this one is, WHITE LIGHT CORPORATION VS CITY OF MANILA, just last year January 2009. You know its very common short time accommodation. Why are there short time accommodations? One is for transient. Other than that? R&R? Well of course you know what im trying to say but i dont want to say it. Apparently it was the reason why this short time accommodation by hotels, motels and other similar establishments have encouraged the strength of prostitution. Not only that in this case another concern was drug pushing. In the privacy of hotel rooms there will be of course prostitution or the commission of crimes specifically drug pushing, selling or using. So an ordinance was passed in Manila, prohibiting this kind of accommodation, the short time admission and tolerated or wash-up rates for abbreviated stays. If we are to resolve this issue, taking into consideration the objective, 1. Lawful subject. What is the object? The operation of the hotel. Does it affect the general welfare? Yes, in away because the hotel is operating its services to the public. So it is a matter that can be lawfully regulated. So lawful subject. What about the means employed? In city of Manila vs Laguio Jr. 2005 it was obvious, remember the rule? The LGU cant prohibit but they can only regulate the operation of lawful trade. And the Operation of Hotel has not been declared invalid by statute, so no LGU can prohibit the operation of these establishments. Do you think the ordinance here in Whitelight Corporation is valid? <berns answers but dili claro sa recordings> Awlward answers: no its not valid. There are less intrusive ways of solving such problem rather than radically prohibiting such activities or establishments. Atty Largo: what are the least intrusive means? That is actually the idea of an over breadth doctrine. If the government wants to interfere with certain freedom. It must do so with the method that is least intrusive. And what are the least intrusive methods? According to the SC if you are talking about regulation of drugs, then enforced strictly the laws governing or

regulating drug use. Mobilize police force, implement laws against prostitution. The solution to these problems according to the court is simply strict implementation of the status quo and you dont have to intrude further to the business of the hotels because this is of course peculiar, as what you have mentioned earlier, there are those who avail short time accommodation for wholesome purposes. There are those who would avail of the short time operations for wholesome purposes, and they themselves will suffer from this ordinance. It is not reasonable anymore to compel them to pay the full price of the daily use if they would only stay there for 2 hours or 3 hours because there are changes in their flight schedule. Actually the problems in the bar exams dealing with police power are very easy to solve. Makita man nimo, importante lng you have a good explanation why you would say yes or of you would say no to a given problem. LOCAL EMINENT DOMAIN (GENERAL REQUISITES) Lets go to Local Eminent Domain. You have studied Eminent Domain in Consti 1 im sure you remembered that there are what we call General Requirements. And these are the general requirements, as a reminder. In any case there should be 1. NECESSITY FOR THE EXPROPRIATION. 2. INVOLVE PRIVATE PROPERTY, of course there is also no prohibition to subject a public property to an expropriation and it does not make sense. There is also no prohibition for a private property which has already been devoted for public use be a subject of expropriation proceedings. 3.TAKING of course as what you have already learned in the 1st year and Judge Singcos discussion. Does not prohibit literal taking for it requires or it simply means deprivation of the enjoyment of the property. So in any case of deprivation of the enjoyment of the property and not just possession or not just referring to the literal meaning of deprivation of possession but the deprivation of the enjoyment of the property. That is covered by eminent Domain. 4. Of course PUBLIC USE is an indispensable and constitutional requirement the same is true with 5.JUSTCOMPENSATION and DUE PROCESS.

Difference: EXPROPRIATION BY NATIONAL GOVERNMENT AND EXPROPRIATION BY LGU There should however be a special mention of the 1st requirement on NECESSITY. A distinction is to be made between expropriation done by the National Government and Expropriation done by a local government unit. While it only says that there should be necessity for the expropriation, Who determines or who can determine the existence of this necessity? As a general rule, if expropriation is done pursuant to a law and the law determines the policy of the state, that would constitute as the basis to say that there is a need to expropriate, then under present jurisprudence the court will hesitate to disturb the findings of Congress. Perhaps it would consider a political question. It is the Congress who determines if there is necessity for the Expropriation. But there is always a reservation because this is discretionary, you have of course the expanded certiorari jurisdiction of the Court. On the other hand if it is an expropriation by the LGU it is settled that the Court has the power to determine genuine necessity of the Expropriation. There is no more a basis by which you can prevent the courts from determining genuine necessity for expropriation. It is already settled. But not on the case of the National Government expropriating. The National government can still invoke political question doctrine. That is why in DE LA PAZ MASIKIP VS CITY OF PASIG JAN. 23, 2006. The City of Pasig wanted to expropriate the property of De la Paz Masikip family for the purpose of promoting Sports or Sports development and recreation. That was the objective of the expropriation. But the expropriation was questioned on the ground that there was no need to expropriate the private property because few meters from the private property ,subject matter of the expropriation, there already exist recreational facilities which have been opened to the public and availed of by the public. The SC said that were the taking is done for the benefit in the hopes of the community who seeks to have its own sports and recreational facility, notwithstanding that there is a recreational facility a short distance away, such taking cannot be considered for Public use. And then heres the declaration by the Court, the Court defines what constitutes genuine necessity for Public use. Moreover according to the court, Moreover, the ascertainment of the necessity must precede or at least contemporaneous or must accompany and not follow, the taking of the land. Because during trial it was found out they will only develop the property after expropriation. For future use, according to the Court that cant be done. Genuine necessity must be present before or at least during the expropriation. You cannot say that it will be treated in the future. SPECIFIC REQUIREMENTS: EXPROPRIATION FOR LGUS If those are the general requirements then these are the specific requirements, if we are to talk about LGUs. Interpreting and expounding further section 19 of the LGC. We go to Sec 19 for Eminent Domain. Did you read the case of Jesus is Lord Christian Foundation school vs City of Pasig case ? 1. ORDINANCE. There should be an ordinance enacted by the Local legislative council authorizing either the mayor or the governor in behalf of

the LGU to exercise the power of Eminent Domain over a particular private property. Focus your attention to the following component of the requirement. a. Purpose ordinance. b. Authorizing the local chief executive c. Over a particular private property. So if it is in a mere resolution, as already declared by the SC in the City of Paranaque Case (Municipality of Paranaque vs VM realty) a mere resolution will not suffice. The expropriation is defective. In fact, upon filing of the complaint it will be dismissed for lack of cause of action. It should be through an ordinance. Why do we need to emphasize this, because just like what happened in the case of VM realty, because the councilors were old, what they were used to is the old Local Government law. Under the Old Local government Law, expropriation could be done by mere resolution. Before 1991, what they were used to are all through resolution. But in 1991, it was changed to Ordinance. It was declared by the SC invalid. What would justify the setting aside or nullification of the proceeding if it is just through a resolution? In that case of VM realty the SC had the occasion to rule or to distinguish an ordinance from a mere resolution. RESOLUTION VS ORDINANCE If you are to distinguish an ordinance from a resolution, how do you distinguish and how many? Can you give differences? If the answer is yes, how many? 1. Somebody mentioned of Permanence, the CHARACTER OF PERMANENCE. The Ordinance of Course has the force and effect of a law, it is permanent in nature unless it is repealed or modified, amended or set aside. While a resolution is of temporary character. Usually it addresses a specific and temporary concern. Like when you authorize a mayor via resolution to enter into a contract. That is for specific and temporary concern for a specific contract. If you pass a resolution congratulating ( Manny Paquiao ta but wla man fight si Manny. Councilor Labella is contemplating of passing a resolution condemning the tirades of Mayweather Jr. Against Manny Paquiao.) that is merely temporary. 2. An ordinance will always require 3 readings. Very much like the bills in Congress, they will not become laws unless and until they passed 3 readings whether on separate days or not. A resolution would only need 2 readings. 1st reading is the announcement of the resolution and referred to a committee. On the 2nd reading it would be alright to approve it in the plenary right away. But if it is an Ordinance there should be a 3rd reading. These are procedural and legal requirements. And so according to the court since they are not the same in nature, there are legal and procedural requirements therefore it is important. That one should be strictly distinguish from the other. The Code requires an ordinance and a resolution cant be a substitute. Of course authorizing a chief executive over a private property. The ordinance must therefore specify the private property which will be the subject of the expropriation. They cant just pass an ordinance in general terms where the Local chief executive is hereby authorize to expropriate whatever private land it would deemed proper for expropriation. It should be over a particular private property. That is again a legal requirement. 2. PUBLIC USE, PURPOSE, WELFARE OR FOR THE BENEFIT OF THE POOR AND THE LANDLESS. That is an obvious requirement, in fact that is also a general requirement, Public Use. And you know of course the idea of public use it had already been expanded. Its not anymore the traditional concept of Public use where anyone can avail of the expropriation, like a park or a road, which are the traditional concept of public use. Now public use has a modern concept. It is now similar to the concept of Police Power, general Welfare. This is the justification why LGUs can expropriate for low cost housing projects. Only few families will be benefited and will qualify. Practically it is not something that is available to anyone but only to the beneficiaries. Will you consider that not for public use? Yes if you are going to use the traditional concept of not for public use. But i think you have learned already that there is now a modern concept of public use. 3rd requirement, as provided in sec. 9 article 3 of the constitution, there should be PAYMENT OF JUST COMPENSATION. And number 4, is the one that you dont easily see because it is not found in the general requirement for exercise of Eminent Domain. This is Peculiar to LGUs, before expropriation can be legally initiated the code requires that there should be a. VALID AND DEFINITE OFFER THAT HAS BEEN PREVIOULSY MADE TO THE OWNER and OFFER NOT ACCEPTED. Twin requirements of valid and definite offer previously made to the owner and such was not accepted. Lets take this one by one, VALID AND DEFINITE OFFER. What will make the offer valid and definite? You have studied obligations and contracts so you know of course the requirements of making a definite offer. You cant just say Dear heirs of Juan Dela Cruz, for and in behalf of the City of Cebu we are offering to buy your property, described as Lot no. 510 consisting of 1000 sq. M. Should you accept this offer to buy, please dont hesitate to contact the undersigned. Whats wrong with that offer? No price. Of course it must be specified, therefore as to the object, and the consideration. There are many LGUs who make a mistake on this part of the same tenor without putting the price. PREVIOUSLY MADE TO THE OWNER, question what if, the property had been the subject of a legal battle. An precisely ownership has not been finally determined, in one SC ruling the SC has said that it is enough that the LGU makes an offer to the Registered owner. Even if subsequently the court declares that another owns legitimately the property. It is enough that the offer was made to the registered owner as found in its certificate of title. And of course without need of further discussion it must NOT HAVE BEEN ACCEPTED. What if the owner did not respond, how

will we know that it was not accepted? You have to be creative with your offer. You will say therefore as an example that we appreciate that you will respond to this letter within a period of 30 days. Your failure to do so will constrained the City of Cebu to consider that our offer had been rejected. After the lapse of such period it is sufficient. That is how it is being done. You really dont need to wait for a letter which expressly rejects the offer. This case of PHIL STREAM is very important. Came out in the bar exams last year 2009. There was simply a problem involving low cost housing project. Basta low cost housing project, you go directly to the Phil stream case. Because aside from the 4 requirements found in sec 19 of the LGC as interpreted in the Philippine Christian School Case. Phil Stream Added 2 more Requirements. Again this is peculiar only to Low Cost Housing Projects. Because a LGU can expropriate properties for other uses and not just for low cost housing projects. But in case, RA 7279 Urban Development and Housing Act of 1992, specifically sec 9 and sec 10 thereof. Requires that first private lands should be last in the selection in the acquisition of properties for the purposes of Low cost housing projects. You go to sec 9 you would see there: idle lands of the government that had not been used, Abandoned lands, BLISS projects, the government must first use or acquire other properties enumerated in section 9 before the resort to acquisition of private properties. Private properties or private lands should be last in the selection. There is a pending case in the SC, if im not mistaken, involving the property in V. Rama, owned by the Aznars that was expropriated by the City of Cebu many years ago. It reached the CA and the expropriation was declared illegal and irregular. Why? Because when it was established that it was really for, as found in the complaint, that it was low cost housing projects, the City of Cebu failed to establish that it had complied with sec. 9 of RA 7279. Secondly, expropriation should only be resorted when other modes of acquisition has been exhausted, such as Land Swapping (maoy g awayan tawn allegedly between Mayor Mike and Gov Gwen). If the LGU can acquire the private land not by purchase but by land swapping, then it should resort to that method first before expropriating the property. What are the other modes of acquiring the property? Donation, which is common on the provinces. (have you heard about the modus operandi of Local government officials in the provinces? (Our lolo and lola na nahabilin in tawn walay kalinutan, duolon ug papirmahon dayon ug Deed of Donation. Human ig balik nimo didto, mahibong nlng ka ngano dagahan mani laing tao mo agi na ngadtokilid sa among babae? Gi-donate naman gud na namo dodong. Mangutana ka if dunay bay gbayad? Of course wala kay donation.) but usually in the low cost housing projects no one would donate in that big area so that is where land swapping is very common. The LGUs have many properties. It might find that it has a property it already owns but it is not suitable for low cost housing project. It will be the land that will be land-swapped to the owner but if it is refused then we can do nothing. My point is that all these must be stated in the complaint, that will be filed in court because all these constitutes an action for the complaint of expropriation. Failure to do that would make the complaint and the cause of action defective. Important Rules, Philstream case still, the LGU has the burden of proving that the foregoing requirements have been complied with and that all reasonable efforts have been exhausted. The burden of proof is with the LGU. Even if the complaint alleges those requirement, the allegation is not sufficient, the LGU must still be able to prove the allegations in court. Valid and definite offer to the owner as shown in the title of the latter. Ive already mentioned that. The implementing rules of a valid and definite offer must be complied with. Lets take a look at very quickly the meaning of valid and definite offer as provided in art 35 of the IRR, offer to buy and contract of sale. The offer to buy private property for public use shall be in writing and it shall specify the property, the reason and the price offered. It must identify the property (eg. The property known as Lot number and certificate of tile number. We intend to buy this property for low cost housing project in the amount of 200 per sq. m.) If the owner accepts the offer then no problem, the sale will be executed. If the owner is willing to sell the property but at a price higher than the offer to them, then there is an additional requirement class, that says that the Local Chief Executive shall call them to conference. This is a mandatory requirement during the hearing there will be questions asked about this. (What was the response of the private owner? It may be counter-offered priced higher. And can you recall if the mayor conducted a conference? No sir. Did you not receive any notice or letter inviting you to the conference? None sir. What about verbal invitation? None all sir.) For the purpose of reaching an agreement on the selling price. Whats the reason for this? The idea is, again expropriation should be resorted as last resort all other means of acquiring the property without expropriating should be acquired first by amicable or peaceful settlement of this issue. Because expropriation si sale, it is in derogation of private property. As much as possible it should not be expropriated by the State, only if it is so necessary. And then if there is already a contract of sale the implementing rules also require the following documents: 1. Resolution of the Sangguniang authorizing the chief executive to enter into a contract of sale if they have agreed in this 2. The ordinance appropriating the amount 3. And certification of the local treasurer as to the availability of funds. This is what i have mentioned about the ordinance, the local government code specifically requires ordinance.


Res judicata does not apply in expropriation. If the LGU filed a complaint for expropriation and it have been resolved and it went up all the way to the SC that the expropriation was illegal. It does not mean that the LGU is perpetually barred from expropriating the same private property. Res judicata there which not necessarily apply. RECKONING POINT OF JUST COMPENSATION CITY OF CEBU VS DEDAMO 2002, in general if you are to look at sec 4of rule 67 in relation to jurisprudence involving expropriation. And in the issue of the reckoning point in determining the just compensation. Diba you learned that the just compensation of the property shall be determined at the time of either the taking or the filing of the complaint, whichever came first. Mao man toh ang barato kay appreciating man ang value sa property. It is expected of a law to make it more affordable on the part of the LGU. That is the general rule. But that rule is not applicable if it is the LGU expropriating because the code in Section 19 is specific that the just compensation should be determined at the time of taking. Again that rule that you have learned that the just compensation should be based on the value of the property at the time of either the taking or the filing of the complaint whichever came first does not apply if it is expropriation done by the LGU. The reason is because the code is specific, it says that at the time of taking. Will not the Rules of Court prevail over the code? SC said the rule of the SC cannot prevail over RA 7160 because it is substantive law. 5-YEAR RULE The rule of course forget REPUBLIC VS LIM 2005, this is indeed a revolutionary pronouncement of a court. It never happened before 2005 that the SC castigated in its pronouncement the practice of the government both national and local, of delaying the payment of just compensation. The land owner is entitled to recover possession of the property expropriated if the government fails to fully the just compensation to the owner for the period of 5 years from the finality of the judgment in an expropriation proceeding. (Mo daghan au ron g himong hocus pocus ron na gi himong negosyo sa mga lawyers and unscrupulous businessmen. Ngano man? Gamay ra ang nakahibaw sa Rep. Vs Lim. Pagkamatay sa ginikanan na mao ang gikiha ug defendants, expropriation proceedings. Ang mga anak walay kalibutan. Nya daghan man lagi connection sa courts, RD and will soon discover properties that has been expropriated before and remained unpaid by the government. Mao duolon nila ang mga heirs, especially kato mga ingnorante kaayo. Ila ignun, kahibaw bah mo nga kani na property, especially kato wla na tagad na property. Unya wla g occupy sa government. If the occupy man gani partly, what do they do is usually like this. They will represent the heirs and recover the property from someone or the government. Mao mo ingon dayon ang heirs, ah dugay naman na gi-embargo atty, makuha pa kaha nato na. Of course they will not say about Rep. Vs Lim. They will say that they will get it and they will insure that they will get their property back nya managyo dayon ug percento. Wla bya mi kwarta ikabayad atty. Ok lng contingent, 60-40) the owner will be restored to his possession. Five years from the finality of judgment in an expropriation proceeding. IMMEDIATE POSSESSION BY GOV FRANCIA VS MEKAWAYAN 2008, when the municipality of Mekawayan, wanted to immediately possess the property, the owner of the private property objected to the immediate possession because, according to the owner, the issue of public use and purpose should be settled first. The private owner can claim that there was no genuine necessity of the expropriation and that it was not for public purpose. The court said, we will do that after because there is no requirement in the code that says that the issue of the public use must be settled first before the LGU can obtain immediate possession of the property. There are now 2 requirements according to the court, 1. the filing of the complaint sufficient in form and substance and the deposit in the court of at least 15% of the FMV base on the current. Those requirements are complied with then the LGU can have immediate possession of the property. In case of the National government expropriating you learned that it is 100% of the (fair market) value if the government wants to immediately take possession of the property. Its 100% deposit. If its LGU its only 15% and its not the actual fair market value, just the fair market value appearing at the current tax declaration. Those are the 2 requirements if the LGU wants to immediately possess the property subject to expropriation. CLOSURE AND OPENING OF ROADS We might as well skip the reclassification of Agricultural lands, never been asked in the Bar. It is more relevant in agrarian law. Lets go to closure and opening of roads. The closure of the road maybe temporary or permanent. If it is temporary it can be done in 2 ways. Either by ordinance or mere written order of the Local chief executive. But one is applicable only to certain conditions and the other applicable only to certain different conditions. And one way of temporarily closing a road may apply to a local road or national road and one may apply only to a local road. If the closure is temporary and it is to address a non-urgent concern it can be done only through an ordinance by a majority vote. But that is only applicable to a local road. But for urgent closure such as, fiesta celebration,

public works and similar events it can be done by written order of the local Chief executive. But it is required that the written order specify the period of the closure. Applicable to both local and national road. But of course the rule is many times not followed. But if closure however is permanent which is seldom done because we always need roads we even have to widen our roads, it can now only be done by ordinance and the voting requirement is 2/3 of all the members and not just the majority. And then you add the following additional conditions: there should be a provision for adequate substitute for the facility. Provision for the maintenance of public safety, that is an obvious requirement. if you are closing a freedom park and not a road, then there must be a provision for relocation for a new site. There will however be a freedom park, if that is the case because the moment you close a freedom park there must be a relocation or new site as for the freedom park. You dont see however in the code the requirements mentioned in Macasiano, because it was decided by the SC before the LGC of 1991. It was expected though that it should have been included in the provision because these are necessary conditions: 1. Compliance with due process 2. The property is no longer intended or necessary for public use. To my mind these are requirements that should be complied with by LGU. That is found in the MACASIANO VS DIOKNO CASE. Now what happens if the road is permanently withdrawn or a park permanently withdrawn or a plaza permanently withdrawn from public use? They become patrimonial and what is of course the legal consequence? They can now be subjects of contracts. DAMNUM ABSQUE INJURIA The TAVERA CASE you have learned in your basic Political Law that the closure is by reason of local police power you apply Damnum Absque injuria, no compensation. Damage without injury. There maybe damage but there is no injury because injury presupposes a violation of right. And when the State through the LGU exercises a power it cant be said that it has violated a right so Damnum Absque injuria. There may be damaged but there is no injury involved. NO MANDAMUS In CEBU OXYGEN CASE, you cant file a case in court for Mandamus to Open a road or close a road. Injunction of you want but not mandamus, it presupposes that the authority is ministerial and that it can totally do that. So it is discretionary upon the LGU. August 2, 2010 CORPORATE POWERS Lets go to corporate powers. These are also matters you should take note and we can learn them by just looking at your notes without the power point presentation. Lets go to sec. 22 that is the enumeration of the so called corporate powers of the LGU. By the term corporate what can you imply? One is proprietary. Your basic knowledge in corporation law will also apply here. Since it is a corporate entity it has a distinct and separate personality. This is relevant when for example the question is on liability. So the liability of the Local government official is not necessarily the liability of the LGU or vice versa. So that in one case the complaint was file only against the city mayor in his official capacity but the LGU was not impleaded. The Plaintiff assumed that the judgment would bind the LGU; the court said that the LGU cant be held liable. And the judgment cant bind the LGU because is not impleaded in the case regardless of the fact that the mayor was sued in his official capacity. Rightly so because as the term corporate would tell you, the LGU has a distinct and separate personality very much the same with the rule in Corporation law where you sue the responsible officers of the corporation, you also have to sue the Corporation as a separate and distinct body. The same matter that the properties of the LGU may not be used to answer the liabilities of the Local Government official and vice versa. Of course, the property of the local government official may not be made to answer for the liability of the LGU. So maybe you would ask the question: Sir if the LGU has a separate personality, may it be held liable for the acts of local government officials? certainly yes, but according to jurisprudence, there are only 2 instances where the Local Government official make LGUs liable for their actions, namely: 1. if the act of the local government official is by authority of law 2. If it is done in conformity with the requirements of the law. So again, by authority meaning by the authority of the LGU and 2nd in conformity with the requirements of the law. Any act which is outside of each standard, its consequences should not be imputed to the LGU. Precisely you have studied the Law on public officers, I think you have remembered the rule that if the Local government official acted with bad faith or malice and the act which was tainted with bad faith and malice results to damages of 3 rd persons then only the local government official concern shall be liable for such damages and not the LGU. Why? It is obvious that the law does not authorize the local government official to act in bad faith or with malice. So an act in bad faith or with malice is certainly outside the authority of the LGU. So it should not therefore make the LGU liable. We will study that anyway when we reached liability of LGUs when we reached illegal dismissal cases. Another implication of the word corporate is a rule in your Local government law the LGU acts pursuant to a governing body very much so like the corporation where you have the

board in many cases for major decisions, the officer should be authorized by the board. In corporation law it is done through resolution, the same is done in the LGU but instead of the board you have the sangguniang acting as the governing body. When we study later on the requirements for validity of contracts you will see there the indispensable requirement of prior authority of the sanggunian if the local chief executive enters into a contract. The other power of the LGU, is the power to sue and be sued. Typical questions here are, may the LGU claim State immunity from suit because under the constitution the state and its political subdivisions cant be sued without its consent. Well you know of course that since sec. 22 allows the LGU to sue and be sued, then it can be taken as the express form of consent, for consent to be sued maybe expressly through the law or the charter. In fact it is both the LGC, the law give its power to the LGUs a practice also if you look at the charter of the LGU it has also provided there the power to sue and be sued and not anymore a question, where they can invoke the state immunity from suit. Note however that as you have already learned in Consti 1 that suability is different from liability. The LGU has consented to be sued; it is still incumbent upon the complainant or the plaintiff to prove that the LGU should in a particular case be held liable. Your basic knowledge of State Immunity from suit and distinction of suability and liability should be reviewed in this regard. Now as to the power to sue, question here maybe, How may the local government sue? the code provides that it is through the local chief executive as authorized by the Sanggunian. This is very much similar to your private corporation but the difference is that in private corporation you ma authorize other responsible officer but here the code specifies that it is the local chief executive as authorize by the Sanggunian. You still have to take note of the authority by the Sanggunian. WHO CAN FILE SUIT FOR LGU; EXCEPTION Interestingly in the case of CITY COUNCIL OF CEBU CITY VS CUIZON it was not the local chief executive who filed the case for and in behalf of the city. It was considered an exceptional case. It was a case filed by the councilors of the Sangunnian not by the local chief executive. You know why it was allowed when our understanding is it is supposed to be by the Local Chief executive? It is because the respondent there is the city Mayor, it has happened in the city of Cebu. Obviously, you cant say that the city councilors do not have standing to sue and besides it was taken by the SC as a representative suit on the part of the City councilors as representatives of the City of Cebu. A contract was questioned there as entered by the City Mayor. More like a stray opinion of the court, it was also more like a tax payers suit. Now if Im not mistaken, the taxpayers suit is not allowed in local suits. It is only allowed in national suit. There is no such thing as Taxpayers suit involving local government cases because a taxpayers suit as you can fairly recall applies specifically to a fund and not just public fund appropriated by Congress. Interesting issue now is EO created now by Pres. Noy, his 1 st executive order, creating the Truth Commission. Im expecting a question in this regard in the upcoming bar exam. There are many areas like one, admin law, as to whether it was validly created because one can argue that agencies can be created only by legislative action and those who are under me in admin Law, you know that there are exceptions. Anyway that is admin law we will talk about it on Saturday. COUNSEL FOR LGU; EXCEPTIONS Next concern came out in the Bar exam, who may represent as counsel for the LGU? May an LGU hire a private Lawyer? As a rule for LGU which have created the position of , in the case of city the City Attorney and in case of Municipality, the Municipal Attorney. Then that is not a problem the LGU should be represented by either the City Attorney or the Municipal Attorney. What is the reason? In CASE OF RAMOS VS CA, only accountable public officers can represent public entities as a rule. You cant make private lawyers accountable because they have not been appointed by Public officials. Your only recourse if they dont do their job well is to disbar them or cancel the contract for legal services. But can you file an administrative case against the private lawyer? No, because he is not a government official. You cant make him accountable. So as a rule according to Ramos vs CA, only public officers can represent public entities. So we are referring to the City Attorney or Municipal Attorney if there is any because there are municipalities which cant afford to make that position especially 6th class and poorer municipalities. The provincial attorney of course may represent in the case of the province. The other basis why only these lawyers are allowed is that public funds should not be expended to hire private lawyers again for the reason that public funds should be for public use. But the Question here as mentioned earlier is that is there any instance where a private lawyer maybe hired by the LGU? In your outline you have section 4813 (i) of the LGC. It is an exact illustration of this possibility. In case of a Municipality that has no Municipal attorney under the LGC, that municipality would have to be represented by the Provincial attorney. But suppose the controversy involves a municipality that has no municipal attorney and a component city for example, may the provincial attorney represent that municipality against a component city which is under the province? No, because there is conflict of interest as provided in (i). the basis is Conflict of Interest, the provincial attorney cant represent a Municipality against a Component City of the same province that is sec 4813 provides for such situation. In which case the municipality may hire a private lawyer because the provincial

attorney cant represent such municipality. What happened if there was an illegal hiring of a private lawyer? Once it is questioned, what would happen to the proceedings when the LGU was represented by a private lawyer assuming that the hiring was not proper? In the same case of Ramos vs CA the moment the private attorney and the municipal attorney assumes the tasked of representing an LGU it may adopt the proceedings conducted by the private lawyer. It will not be affected in other words. You might in fact invoke your Doctrine of Operative Fact. ACQUISITION AND CONVEYANCE OF PROPERTIES BY LGUS The power of LGU to convey and acquire real estate property, just like the private corporation it can acquire and dispose of properties. So I think you have already learned that properties of LGUs are held in either its governmental capacity or its proprietary capacity. And as I have mentioned already this becomes relevant in different situations. At this time you just have to take note that a property can be held in either its governmental or proprietary capacity. Our concern however is how do we determine if the property is held in either governmental or proprietary capacity? As a rule just because a property is titled in the name of the LGU is not conclusive that it is held in its proprietary capacity. In fact in one case it has been proved that even if the property was titled under the name of the LGU it was found out that it was donated by the National Government to the LGU for public purpose. SC ruled that the fact that it was registered in the name of the LGU, will not be conclusive the purpose in that case was considered by the court. And so since it was granted by the national government unit to the LGU for public purpose then it was held by the LGU in trust for the National Government. There are many ways in determining whether a property has been held as proprietary or governmental capacity. TEST: DETERMINATION WHETHER NATURE OF THE PROPERTY IS HELD IN ITS GOVERNMENTAL OR PROPRIETARY CAPACITY One of these tests you can use is art 424 of the NCC. Im sure you are familiar with this there is an enumeration there which is clearly held in its governmental capacity because obviously these are for governmental objectives. Another is the manner by which it was acquired; one guideline there could be the source of the funds in acquiring the property. Such that as a rule it was acquired through the use of proprietary fund or private fund then it can be considered by the LGU as held in its proprietary capacity. So the Sale proceeds of the SRP when deposited in the bank may have the character of a fund held in its proprietary capacity. Of course when this is used to acquire property then you can say that the real property acquired through the use of this private fund can be considered as held in its proprietary capacity. So source of fund is also a test in determining whether a property is held in its governmental or proprietary capacity. IMPORTANCE IN DISTINGUISHING PUBLIC FROM PATRIMONIAL PROPERTY Of course is there relevance in distinguishing public from patrimonial property? It came out many times in the bar exam not only in your local government law but in civil as well as in property law. 1st rule : Property for public use is under the control of Congress. So if congress converts the property to other uses and as a consequence deprives the LGU holding the beneficial use of the property, may the LGU demand payment for Just compensation? The obvious answer is no because that property is held in its governmental capacity. The idea is it is merely held by the LGU in trust for the State. And the State through the instrumentality of Congress converts it to other uses with or without the consent of the LGU. Conversely if the property has been held by the LGU in its proprietary capacity and the national government through congress converts the property to other uses that will deprive the LGU of the beneficial use of the property then you apply the rule on payment of Just Compensation. It is because the word person in sec. 9 Art. 3 of the 1987 constitution also apply to an LGU when acting in its proprietary capacity. The LGU can demand payment of Just compensation as any private corporation in that regard. 2nd rule : property for public use cant be subject of a contract. This is fundamental. Public property or property for public use cannot be a subject of a contract because it is beyond the commerce of man. What is the corollary principle? Anything that is found on a public property even if it is subject to a contract may be considered as nuisance. This will give the authority to the LGU to remove Stalls of sidewalk vendors even without court order because anything that is found on a public property may be considered as nuisance per se. so very obvious you cannot enter into a contract and make the public property the subject of a contract. So Im really wondering and curious how the municipality of Minglanilla was able to allow Jollibee to operate inside its plaza. It could be because t=it is not part of the public plaza or that there was not contract entered thereto as it is simply by tolerance or by nuisance. In the case of MACASIANO VS DIOKNO, Mandamus is a remedy to compel the LGU to remove objects which are considered nuisance per se. if you look at the powers of the Sangunian and the powers of the Local chief executive, they are not just powers but they are also duties. So they are mandated by law to implement existing laws. Just like the Social Justice case we will study later on. Patrimonial property can be the subject of contract and maybe alienated. Typical example is your SRP in the southern part of Cebu City. 3rd rule public property cant be acquired by prescription against the state. I believe this is more relevant in property. 4th rule: this is illustrated in the recent case of MUNICIPALITY OF JAGONOY VS HON. SIMEON DOMDOM Jr. 2010. Public property cant be subject to an attachment or to an execution. This is also true in public funds. Each

time you say property this could include public funds. Public funds cannot also be the subject of garnishment. Public property cant be the subject of attachment or execution. You know of course the reason for this, (someone answers but could not be heard in the recordings). And of course public property cant be burdened with voluntary easements. Interesting case is of CHAVEZ VS PUBLIC ESTATE AUTHORITY (2003), reclaimed properties. What is the nature of a reclaimed property? Can LGU reclaimed properties? Can submerged properties be reclaimed? Yes, RA 1899 authorized municipalities and chartered cities to reclaim foreshore lands only. Meaning a Municipality not a province and chartered cities can reclaim foreshore lands under RA 1899. Submerged lands that are not foreshore lands cant be reclaimed by an LGU because the law is clear the authority granted to chartered cities and municipalities, mentions only or applies only to foreshore lands. And of course the city of Cebu is doing that, one time in the North and this time in the South. You know also of art 12 of the 1987 constitution submerged lands are properties of public dominion therefore it is unalienable. That it is obvious because it is outside the commerce of man and therefore cant be disposed off as a rule. However when the law authorizes the reclamation of the submerged lands and in the case of LGUs for foreshore lands, these foreshore lands (since we are talking about local government law) after they have been reclaimed they ceased to be considered as inalienable properties and are no longer part of public domain. So they are no longer part of properties of public dominion because Congress has allowed the LGUs to reclaim foreshore lands. So after the reclamation there shall be a presidential proclamation declaring the reclaimed properties as alienable and disposable, after which the Register of Deeds will issue the certificate of title because these properties are no longer part of public dominion having been declared by presidential proclamation being alienable and disposable and can now be disposed of by the LGU. Should there be public bidding? No, such contention is wrong because the rule on public bidding applies if the property disposed of belongs to the LGU and held in its governmental capacity. Reclaimed lands after all the legal requirements have been complied with the ultimate or final act being the issuance of the title; the property belongs to the patrimonial property of the LGUs reclaiming the foreshore lands. REQUISITES FOR VALIDITY OF CONTRACTS ENTERED INTO BY LGUS Requisites for validity of contracts entered into by LGUs were also asked in the bar exams. There are four important requisites in the validity of contracts that are entered into by LGUs that you should remember. 1. THE LGUS MUST HAVE THE POWER TO ENTER INTO THAT PARTICULAR CONTRACT. That is a civil law requirement; if you dont have the power then the contract you have entered into is ultra vires, since you dont have the power. The contract is unauthorized. Second, 22 c of the LGC when it enters into a contract there must be a prior authorization of the Sanggunian. There is an interesting case involving our very own province of Cebu, in your outline that is the case of Garcia vs Quisumbing. 1ST THE ENUMERATION: THE LGUS must have the power to enter into the contract 2ND, AS REQUIRED BY SEC 22 C OF THE CODE there must be a prior authorization by the Sanggunian and a legible copy of the contract must be posted in conspicuous place in the provincial capital or the city or municipal or brgy hall as the case may be so prior authorization by the Sangunian and plus posting requirement. 3RD if the contract involves expenditure of public funds, ADMIN CODE SEC 46 AND 47 require 2 indispensable requirements: a. there should be actual appropriation and b. certificate of availability of funds issued by the treasurer except of course in contract of supplies to be carried in stock, each time a purchase is made this may not be necessarily covered by actual appropriation or certificate of availability of funds. It can be covered by the general appropriation. 4TH THE CONTRACT MUST CONFORM TO THE FORMAL REQUISITES OF A WRITTEN CONTRACT PRESCRIBED BY LAW. Again that is a civil law requirement. Non- compliance of no. 2 and no. 4 may result to a void contract with qualification that you dont apply the DEXTER DOCTRINE under this rule. The DEXTER Doctrine was applied under the old local government code and not under the 1991 LGC. That is important because under the 1983 LG law, the rule on purchases or entry into contracts by the Mayor was not very strict compared to sec. 22 c of the LGC of 1991. In the past, in many cases there has been no requirement of a prior authorization by the Sanggunian. But now under the 1991 LGC, the law is very clear there must be a prior authorization by the Sanggunian apart from the certificate of availability o funds. Non compliance with this would render the contract void. Why is this important? Because there are 2 important doctrines in contracts entered into the LGUs that you should study. You have the1st one, the DOCTRINE OF ESTOPPEL and 2nd the DOCTRINE OF IMPLIED MUNICIPAL LIABILITY. If for example if a contract is entered into by the LGU under the LGC 1991, without the prior authorization of the Sangunian, as mentioned earlier, it may render the contract void. It is very interesting and it should be made clear by the SC because the Traditional rule is the Doctrine of Estoppel will not apply to void contracts which are basic in civil law. If you enter into a contract that is void, you cant say that the contract should be binding on both parties as the doctrine of estoppels as both parties entered into the contract knowing that it is void. You remember your civil law concept of Doctrine of Estoppel? If the reason for making the contract void is by reason of Public policy, doctrine of estoppels will not apply. The rule is doctrine of estoppels will not apply to void contracts. This should be read therefore with your basic doctrine of Estoppel in civil law because if the local government has already received benefit from the contract then it may not later on say that it does not have the authority to enter into the contract. We shall not pay if on the part of the LGU it involves the payment in the form of money. But it has

already received benefits. Have you read the CASE OF LEXVER? That is the basic idea if the LGU has already received benefits it cant later on say that it is not liable under the contract. Doctrine of Estoppel will be applied there however, that doctrine of Estoppel will not apply if the contract is void. What is the DOCTRINE OF IMPLIED MUNICIPAL LIABILITY? Again this rule apply to contracts or rather transactions without contracts, but could have been valid have one been entered into to the extent of the benefit received. So this is more or less similar to the Doctrine of Estoppel. So in this doctrine of implied municipal liability 1 st condition: there is a transaction that is not covered into by a contract, had a contract been entered into then that should have been perfectly valid. If the LGU received benefits it may not later on reneged from its obligation to pay just because there is not contract covering the transaction. If it has already received benefits then it is liable to pay under this doctrine of implied municipal liability. That was also applied in Lexver case. Very briefly in Lexver, the former Mayor entered into a contract with Lexver to provide for infrastructure for a landfill. Of course Lexver spent considerable amount of money in millions. The contract was to continue after the expiration of the Term of the former Mayor. When a new mayor was elected he questioned the transaction entered into by the former Mayor with Lexver because according to the new mayor it was entered into without authority of the Sangunnian. Had it been entered into under the LGC 1991 a decision may be different. In that case it does not require when it was entered into because it was entered before the LGC of 1991. At any rate the LGU, the City of Quezon has already been benefitted by the presence of Lexver, and so applying the Doctrine of Municipal Liability it should also honor the contract. Before we take a break this is the case of QUISUMBING VS GARCIA, it was not last year in the bar maybe it will be asked in your mock bar. The requirement in sec 22 c before the Local chief executive can enter into a contract, the word is prior authorization. Thus the term authorization covers also the term an appropriation ordinance? Obviously of course by the term authorization in many instances, this is in the form of a resolution. What about an appropriation ordinance, which is of course an act of the Sangunnian, would that constitute as the prior authorization? It depends. Gov Gwens argument was why require a resolution when the transaction, infrastructure, had already been covered by an appropriation ordinance? Wouldnt that be more than sufficient compliance of the requirement of prior authorization? It depends because the Appropriation ordinance may mention of the project in general terms (eg. It would just say road widening budget _____ million. Supposedly to be spent this year and you have to consider that there was no appropriation ordinance enacted so the proceeding, so the immediately preceding ordinance was reenacted. It was considered an item in the reenacted appropriation ordinance). If the appropriation ordinance mentions it only in general terms then it will not be considered as compliance to the prior authorization requirement. Because if it is in general terms of road widening or bridge then that could still be covered by specific contracts. And because this will still be covered by Specific contracts, these contracts should have the prior authorization of the Sanggunian distinct and separate from the appropriation ordinance. It can of course and should be in a form of Resolution. However, if the appropriation ordinance is specific, it identifies the project road widening from the municipality of ______ to ________ with cost, so you have actually the contract in the appropriation ordinance so to speak and so the appropriation ordinance can be considered as prior authorization. In this case the General Appropriations Ordinance of Cebu did not comply with the prior authorization requirement. ACQUISITION OF SUPPLIES: LGU; exceptions Singson vs People, Im not sure if this is proper in the Local Government Law course but acquisition by supplies of LGU shall be done through competitive bidding. The General rule is competitive bidding in the procurement of Supplies but there are exceptions. 1. Personal canvass of responsible merchants, you go to the case as to how this personal canvass by responsible merchant maybe done still through the intervention of the Committee on Awards. 2. Emergency purchase 3. Negotiated purchase, have you heard of the Swiss Method? This is what is done by the City of Cebu in this joint venture contract or the Swiss Method on acquiring properties or entering into contracts. 4. Direct purchase from manufacturers or exclusive distributors and 5. purchase from other government entities. LIABILITY for DAMAGES Let us take a look at the pertinent provisions first. We have Article 34 of the Civil Code, Article 2189 of the same Code and Article of the LGC. Article 34 of the Civil Code. Subsidiary liability of LGU for liability of local police force in case of refusal or failure to render aid pr protection to any person in case of danger to life or property. Maybe you can make use of Article 34 when police officers simply ignore your complaints when the issue is domestic (family issue). There is no such thing as that. Whether it is internal or not, if there are injuries or danger to life or property, police should perform their function. They may be held liable, subsidiarily of course - the LGU. You know of course the meaning of subsidiary liability. Then under 2189, control and supervision which results to (1) death and (2) injuries to person. Article 2189 (NCC). Provinces, cities and municipalities shall be liable for damages for the death of, or injuries suffered by, any person by reason of the defective condition of roads, streets, bridges, public buildings, and other public works under their control or supervision.


Injuries to persons lang, no damage to property. Ato ning klaruhon kay basin nagdagandagan ka didto unya natangtang ang usa ka ligid sa imo sakyanan. Basin kasuhan dayon nimo and LGU on the ground of defective condition of road resulted to damage of your vehicle. The most important consideration is not ownership of the road. It may be owned by the national government or national road, by the LGU or local road it does not matter. What is important is that it is within the control and supervision of the LGU. Article 24 is an admission of liability in case of death or injury to person or damage to property as a result of negligent act. Lets go to liability of defective public works. City of Manila vs. Teotico. Remember that person who was trying to hail a jeepney. And when the jeepney stopped and wanted to board the jeepney but instead fell on an uncovered manhole. The law requires control and supervision only and not ownership. Regardless of a provision in the charter that the LGU is exempt from liability for negligence, the Charter of Manila is general in its exempting provision and Article 2129 is more specific, and therefore the latter governs not the charter. Remember the case of Jiminez. Nangumpra siya didto sa public market unya after a heavy downpour of rains, muddy and floodwater, and so this person natunok ug lansang (nail) because there was an uncovered portion of the ongoing construction of the public market. Incidentally the public market was managed by a private corporation. So mi argue ang City of Manila, not under our control and supervision. In the contract, it was provided that while the public market is to be managed by the private corporation, there added a phrase it was to be under the control and supervision still of the city engineer. Miingon dayon ang SC nga mao ni ang basis for the control and supervision. The same rule was applied in Guilatco case. Another open manhole in the sidewalk. So thats how you determine whether it is under the control and supervision of the LGU. First, you look at the charter. Does the charter mention of the function of the city engineer in so far as roads are concerned. And then look at the duties of the local government engineer. Does it cover the duty to control and supervise a particular public work. That test was applied in Municipality of San Juan vs. CA (2005). In this case, it involved excavation of the ground for the laying of the gas and underground water pipes. Under paragraph 1 (bb) of Section 149, it is covered by the functions of the City Engineer. It does not matter local national or even drilling and excavation of the ground for the laying gas and water pipes, etc. Still it is under the supervision of the city engineer. That is in the Code already. So dili na ta motan-aw sa charter kay klaro na man sa Code. So if you are given a problem about excavation of the ground for the laying of the pipes, you know that under the Code that activity is to be under the control and supervision of the city engineer. For as long as of course that it is within its territorial jurisdiction. Liability for Torts or Quasi-delicts You remember we had an illustration that the UP Law Center suggested answer, you can actually distinguish governmental and proprietary function. That is in San Fernando (La Union) vs. Firme case. Or you can apply directly Section 24 which does not make any qualification. No need to expound on this hah kay you know this. Liability for Contracts The LGU can be considered as a private person when it enters into a contract and therefore it can be held liable ex contrcatu. Even the national government. In fact you file you claim before the COA. In the case of LGU, thats the same principle. However theres a caveat that the contract must at least be ultra vires. Because if not, the LGU cannot be held liable under a void contract. Not even the doctrine of estoppel can cure the fact that it is null and void. Otherwise, a void contract may be cured when under city law, a void contract cannot be ratified, it cannot be cured. If the LGU sells a public property, it is ultra vires. May the LGU be held liable for entering into that contract. No of course because it is void. Not even the doctrine of estoppels will apply. Liability for Illegal Dismissal of Employees Then finally for municipal liability, dont forget the Municipality of Jasaan case (2005). Dismissal of an employee may be illegal either because of the non-observance of procedure in dismissing an employee covered by the civil services rules (matter of procedural requirements for dismissing an employee); or it may be illegal because there is not ground and the dismissal is precisely tainted with malice and bad faith especially if it is politically motivated which is a very common cause of illegal dismissal like immediately after a new administration takes over the LGU, kung kinsa tong wa milaban sa election kay tang-tang. Already settled in a lot of SC decisions. If that is politically-motivated, covered na sa malice and bad faith. As I said illegal dismissal maybe because the procedure had not been complied with, or perhaps there is a wrong judgment as to the ground. Sayop lang jud siguro nga maybe dismissal is not the proper penalty pero minus-minus lang si mayor, gi-dismiss dayon on that ground. So it can be considered illegal. Or it can be because of malice and bad faith like politically-motivated dismissal of employees. It is only when the dismissal which is illegal is tainted with malice or bad faith that the LGU may not be held liable but it becomes a personal liability of the officer. In one case, if the officer held liable is already dead, according to the SC, the liability will be shouldered by the LGU. Take note: It is not the fact of illegality that will make the LGU official personally liable. As I have said it can be illegal but without malice and bad faith. Wa lang mi follow sa procedure, or sayop si mayor kay nag dinaghag dili diay to a ground for dismissal under the civil service law or any law for that matter. The LGU will be held liable for backwages. But if it is illegal and also tainted with malice and bad faith, then LGU is not anymore liable to pay the backwages. Only the local government official concerned. As I mentioned

earlier, LGU can only be held liable by the acts of officers if it is by the authority or in conformity with law. And if it is with malice or bad faith, it is never in conformity with law because the law does not sanction malice or bad faith. ELECTIVE OFFICIALS Lets go over first the qualifications f local elective officials (section 39, LGC): 1. Citizen of the Philippines - need not be natural-born. So pwedi naturalized. 2. Registered voter in the locality or district where he intends to be elected 1 year immediately preceding the day of the election. 3. Able to write and write Filipino or any local language or dialect 4. Ages - will vary depending on the LGU and depending on the position - (23. 21, 18 ) Ayaw nalang na memoriza. Citizenship Who would, of course, forget the Frivaldo case. As to the citizenship requirement, when should the local official possess citizenship requirement? Paksit! In Frivaldo, sometime in August of 1994, he applied for repatriation (in August 17, 1994). Pag March of 1995, or the following year, he filed his certificate of candidacy. And in the certificate , it will ask the citizenship, and he said he is a Filipino citizen. But the petition (for repatriation) was not yet granted. He was sued for having misrepresented in his certificate of candidacy kay ngano kuno nga mi declare siya nga Filipino nga wala pa man na grant iyang petition for repatriation. On noon of June 30, 1995, when he was about to take his oath and assume his office as governor for the Province of Sorsogon, he had already all the requirements for repatriation completed. Few hours before the oath-taking. SC said: If you look at Section 39 (for governor) of the LGC of 1991, essentially these requirements are not requirements for candidates. These are requirements for elective officials. And because these are requirements for public officials, these are to be complied with at least by the time the official becomes elective. And when is an official considered elective? When he had already been validly elected as manifested by the proclamation and by the time he takes his oath, that is the qualification, and assumes his office. The last act would be the taking of oath and the assumption of his office. So he does not have to possess the citizenship requirement at the time of the filing of the COC. Pero miingon dayon ang SC, para walay lalis and to settle this issue once and for all, we now rule that in case of repatriation, the effect of the repatriation shall retroact as to the time of filing the petition for repatriation. Para walay lalis, although okay tong argument about elective local official. Residency In Election Law, residence is synonymous with domicile. If you are going to distinguish residence from domicile, will be able to do that? Paksit, of course! Residence is general in concept, while domicile is specific. Because residence may be temporary or permanent. And if residence is in the concept of a permanent residence, then you call that domicile. How do you know that residence is temporary? Residence is temporary if your physical stay in the locality is for temporary purpose. Such as studies, business, exercise of profession, and other similar temporary activities. Why do you know that these activities are temporary? Simple. Because these activities have definite beginnings and definite ends. Like when you study, you begin with the enrollment in the first year, and then you complete it when you graduate. So there is specific beginning and there is specific end. If your physical stay in that locality is for that temporary purpose, then your residence there is temporary. In political law you have to deals basically with your domicile of origin and your domicile of choice. Your domicile of origin is where? Not in the place of birth but in the domicile of your parents at the time of your birth. Your domicile of choice is when you changed your domicile of origin. In election law cases, diba you will be asked to established whether or not you have abandoned your domicile. You may want to establish that you have not abandon your domicile because perhaps you have been away for a while and you would want to run for public office in that original domicile. (Just like what Atty Torregosa did) And your opponents might question that you have already abandoned your domicile. So you have to established that you have not abandoned it. There are only two proofs: (1) animus manendi your intention to live permanently in that locality; and (2) animus revertendi because you have been physically absent for a while, you should be able to establish that you have the intention to return to your domicile. There should be factual pieces of evidence for this. That is in the area for the practice of election law. Like sell of properties, etc. Proof of abandonment of all domiciles. Like have Atty. Torregosa decided to run for office in Cebu City, he should established that he abandoned his old domicile in Bohol. In which case, he should establish the following: 1. Actual physical presence in the new domicile. Very easy. Cedula lang and you add affidavits of some witnesses. 2. Animus manendi in the new domicile intention to live permanently in that new domicile. 3. Animus non Revertendi (the opposite of animus Revertendi) - intention not to return to your old domicile. Many ways to establish that like you have disposed all your assets there; you have asked your family to transfer here; enroll your children to schools of Cebu City, and many other pieces of evidence. These are just proofs hah. You know of course that proofs are different from evidence. So during hearing in the COMELEC, you must have these as your outline for the proofs when you ask questions.

Important cases In Faypon vs. Quirino, the rule is if you are out of your domicile of origin to pursue studies, engaged in business, practice vocation or profession, then it is not sufficient to constitute abandonment of domicile of origin. Again, because the purposes are temporary. In Coquilla vs. COMELEC (2002), if you have been naturalized in a foreign country, it should also result in the abandonment of your domicile. In Caasid (?), becoming a permanent immigrant like being a green card holder to the United States constitutes abandonment of residency. It should be the case because under the fundamental rule in election law, you can have several temporary residences but you can only have one domicile. You cannot have more than one domicile. Its either you abandoned an old domicile and established a new one or you havent. Precisely because you become a permanent immigrant, so that is your domicile in another country, that should result to abandonment of domicile in the Philippines. Disqualifications (Sec. 40) Sentenced by final judgment for (a) offense involving moral turpitude. Penalty s irrelevant. Just the nature of the offense, or by (b) an Offense punishable by 1 year or more of imprisonment. Penalty is relevant. The nature becomes irrelevant. If you have been sentenced by final judgment of an offense involving moral turpitude, it is regardless of the penalty (even if the penalty is just fine, no imprisonment) if its nature involves moral depravity. Soriano vs. Dizon and Teves vs. COMELEC Moral turpitude has been defined as everything which is that contrary to justice, modesty, and good morals (to be determined by the court). An act of baseness, vileness or depravity in the private and social duties which a man owes his fellow or to society in general. Conviction of violation of B.P. 22 moral turpitude; Anti-Fencing Law moral turpitude; Rape mangutana pa ka? Before, there was no prohibition on operating a cockpit or being financial interested in the operation of a cockpit by a local government official. In one case, there was this mayor who was once a part-owner of a cockpit. Later on, a law had been passed prohibiting local government officials from having financial interest over cockpits. Unya wa siya kabalo anang balaura. Imbis i-divest niya ang iyang self over this financial interest, he continued to be part-owner of this cockpit. He was sued, and when he ran for office, the opponent sought his disqualification. There was a conviction. The SC said: Yes there was conviction. But having financial interest in a cockpit, although prohibited, is not an offense involving moral turpitude especially that before it was not prohibited. Within 2 years after serving sentence This phrase is applicable to both grounds. After two years of service, lifted na ang disqualification. So its either you have been convicted by final judgment of an offense involving moral turpitude, or you have been sentenced by final judgment of a crime which carries a penalty of 1 year of imprisonment. In either of these, after two years of service, you will now be qualified again. So dili diay ni perpetual nga disqualification. Conviction by final judgment is not a perpetual disqualification for local government officials. Its only good within the period of two years from service. After that you will regain your qualification, assuming that you have no other disqualification. (Moreno vs. COMELEC) 2. Removal from office as a result of administrative case. Rules: This should be interpreted as having prospective application only. The LGC of 1991 which took effect in 1992, this particular provision is a new provision. The SC said it cannot apply to a local government official who was removed from office before the effectivity of the LGC of 1991. Very crucial, you have to check when was this official removed from office - before or during the effectivity of the LGC of 1991. If before the effectivity of the LGC of 1991, this provision will not apply. Only those who had been removed from office after the effectivity of the LGC of 1991. So prospective application. In the case of Osorio vs. COMELEC (2004), one public official was removed from office when he was occupying an appointive office, not an elective office as a result of an administrative case. Then he ran for public office. A petition for disqualification has been filed on the ground that he had been removed from public office as a result of an administrative case. The respondent argued that provision will apply only to elective officials who had been removed from office as a result of administrative case. The SC said wrong interpretation. The words says office. So that should be whether you have been holding appointive or elective office. If you have been removed in either of these positions as a result of administrative case, that is a ground for disqualification. 3. Convicted by final judgment for violating the oath of allegiance to the Republic of the Philippines. There are offenses under the Revised Penal Code that are considered such. So RPC will have to be considered here. 4. Those with dual citizenship. Who would forget the case of Mercado vs. Manzano (1999). Di ba dual citizenship in Section 40 should be interpreted as dual allegiance. In this case, the SC had the opportunity to distinguish dial citizenship from dual allegiance. In dual citizenship, it is involuntary on the part of the child. In dual allegiance, it is voluntary. In the Constitution, it is dual allegiance that is declared that is inimical to the national interest and should be dealt by law, and not dual citizenship. Nganong dual citizenship is involuntary on the part of the child? 1.


Because the child has no control over the application of conflicting laws on citizenship. Dili kay because it is not the decision of the child that he will be born (matud pa daw sa mga 1st year nga wala lang kabalo si sir nga ang 4th year maoy gatudlo). The child has no control over the application of conflicting laws on citizenship that would confer the child dual citizenship. This is common when the parents whose national law follows jus sanguinis and the child is born in a country that follows jus soli. That is exactly what happened in Manzano. Dual allegiance is voluntary because showing loyalty to at least two countries would require overt acts like payment of taxes, running for government office, and other overt acts. 5. Fugitive from justice in criminal or nonpolitical cases here or abroad. Fugitive from justice here meaning a case is pending here in the Philippines or you must have already been convicted, and you flee to another country. Fugitive from justice abroad the case has been either pending abroad or you have been already sentenced abroad, then you flee from that foreign country to the Philippines and run for public office here (which is the most common scenario). That is in criminal and nonpolitical cases. Not political cases because in political cases, they have the right to asylum which has now ripen to what is known as jus cogens. So only in criminal and nonpolitical cases, here or abroad. In Marquez vs. Rodrigez (or COMELEC), it includes fugitive from prosecution. So dili kinahanglan nga convicted ka, you are now asked to serve your sentence and then you escape. Even if the case is still pending and you flee to avoid resection. So to avoid service of sentence or to avoid prosecution. In this case of Marquez, didto siya sa US. A case had been filed few days before he left. While he did not know that a case had been filed, the fact that it was filed, it may be assumed that he learned of the filing of the case, thats the reason why he escaped or fled to the Philippines. A question of intent no hard and fast rule. 6. Permanent residents in foreign country or those who have acquired the right to reside abroad and continue to avail for the same right after the effectivity of the Code. 7. The insane or feeble-minded. Additional disqualifications 1. Lone Candidate Law in Special Elections (RA 8295). Lone Candidate Law is applicable only in special elections. So you may add the following disqualifications there. 2. Any elective official who has resigned from his office by accepting an appointive office or for whatever reason which he previously occupied that has caused to become vacant due to his resignation. 3. Any person who directly or indirectly coerces, etc in violation of the election law. 4. Omnibus Election Code Section 12. Any person who has been declared by competent authority insane, incompetent, sentenced by final judgment for subversion, insurrection, rebellion (acts of disloyalty), or for any offenses for which he has been sentenced to a penalty of more that 18 months or for a crime involving moral turpitude shall be disqualified to be a candidate and to hold any office, unless he has been given plenary pardon or granted amnesty. Section 28. (comment: I think Sir is referring to Sec. 261. Prohibited Acts. He was mentioning about threats, intimidation, and other election offenses) Section 69. Nuisance candidates. - The Commission may motu proprio or upon a verified petition of an interested party, refuse to give due course to or cancel a certificate of candidacy if it is shown that said certificate has been filed to put the election process in mockery or disrepute or to cause confusion among the voters by the similarity of the names of the registered candidates or by other circumstances or acts which clearly demonstrate that the candidate has no bona fide intention to run for the office for which the certificate of candidacy has been filed and thus prevent a faithful determination of the true will of the electorate. Kanang disqualifications of candidates sa local government, you apply Section 40 LGC and then you go to Lone Candidate Law, and then you add the OEC. TERM of OFFICE THREE YEARS for elective local officials is constitutionally mandated. Basin makaingon ka nga basin local government code ning term of office. No, constitutionally provided na siya class. That was the 2006 bar question. If a law is passed changing the term of office of the elective local offices, obviously it is not constitutional because of Section 8, Article 10 (three years). And pwedi lang ma fixed by law under the Constitution is under barangay official. Kay miingon man barangay official as may provided for by law. Kana pwedi na by statute which actually happened nga sige ug usab-usab. Gawas nga usbon, usbon pa jud ang election. Nganong okay ra man nah? Because of the hold-over principle that is applicable for barangay officials. Again. Local officials , the term of Office is three years, fixed by the Constitution except for barangay which may be provided for by law. So a statute cannot change that. For barangay officials, the first law applicable is RA 8524 five years in 1998, gi-extend. In 2002, there was this RA 9164 that reduced the five years back to three years, plus the requirement that the three consecutive term limitation shall begin in year 1994. Gquestion ning retroactivity provision of RA 9164 to 1994. SC already ruled: it is


constitutional to make it effective in 1994 kay kabalo naman ka nga public office is just a privilege. You do not have a vested right over public office, etc. In 2005, RA 9340 extended the term which ended on November 30, 2005 to November 30, 2007, noon gyapon. Unya kay three years man, thats we are going to have Barangay Election this year. Pero pwedi na I postpone by law. Ayaw mo ka confuse anah nganng pwedi nah. Its because of the hold-over principle as declared in Sambarani vs. COMELEC (2004) and as provided for in RA 9164. Three-Term Limit Rule If you look at your notes, cases there would mention of two elements here. But for purposes of my discussion, just removed one that is common to two for purposes of emphasis. Elements: 1. Official is elected three times. Ari ta mofocus sa elected. 2. Fully served. 3. There is consecutiveness of the full service 4. In the same office. So imo lang hinumduman: elected, fully served, consecutiveness, and same office. So upat kabuok. Problem No. 1 (2001 Bar Exam): 1993 X, the Vice-mayor, succeeded as mayor Y who died. X served as Mayor until 1995. 1995 to 1998 X was elected and served as Mayor. 1998 to 2001 Reelected and continued to served. 2001 he ran for mayor and was questioned that it was already his fourth term. Was X barred to run as Mayor? NO. Because he was not elected the first time he served as Mayor. He merely succeeded as mayor by operation of law. So dili pa to maapil sa pagcount. The element involved here is ELECTED. Case in point is Borja, Jr. vs. COMELEC (1998). SC said the term served must be one for which the official concerned was elected is another consideration. Sameness of office is another. He was elected but not for that office. He was elected as Vice-mayor. (Refer to the case) Problem No. 2 1988 to 1995 X was elected and served as Mayor for two consecutive terms. (so two terms na daan) 1995 X ran and got reelected 1997 Ordered by the COMELEC to step down because he was found to be illegallyproclaimed. There was an order by the COMELEC. So minaog ra pod siya kay basin ma contempt sa COMELEC. 1998 Elections He filed a COC for Mayor. How will you dispose with the case? Check the elements. Got elected three times (check). Fully served three times? This time, you have to take note. In case the local official fails to finish the term, you have to distinguish between voluntary renunciation and involuntary renunciation. Voluntariness is important in not completing a term. If it is an involuntary renunciation, you the rule that it shall not be considered as an interruption for the full term he was elected. But in this case, It was not voluntary, was it? He was ordered by the COMELEC to step down. He voluntarily step down of course after the order. But that was upon the order of the COMELEC. So asa applicable? Fully served. He was not able to fully served that term 1995 to 1998. Case in point Lonzanida vs. COMELEC (1999). The SC said: petitioner did not fully served the 1995 to 1998 mayoral term by reason of involuntary relinquishment of office. You take note of this case (Lonzanida vs. COMELEC) in relation to the last case ako gibutang dinha (Aldovino vs, COMELEC). Problem No. 3 X was elected and served as Mayor for two consecutive terms. So duwa na daan. In 1998, X ran as Mayor unya napildi. Y became the Mayor. Mao bitaw ni ang reason mao gitangtang and Preparatory Recall Assembly (PRA) as a mode of removing an official via recall effective 2004 because of this case. Highlypoliticized man gud. Kung ang modaog gani kontra partido sa mga daghang local officials, palingkura lang kay i-remove ta nah through recall. Unsay himuon? PRA composed of local officials nga maoy mo pa remove. Unya unsa may ground? Wala , voting lang daugon. Gitangtang na karon, take note effective 2004, there is no more PRA as a mode for initiating a recall. Usa na lang by the registered voters. In 2000, there was a Recall Election and X was elected and served as Mayor. Tangtang, kadyot ra kaayo si Y. In 2004, X ran again for Mayor. Was X barred to run as mayor? NO. We apply consecutiveness. His loss in the May 1998 election was considered by the court as an interruption in the continuity of his service as Mayor. For nearly two years, respondent X, in the illustration lived as a private citizen. Si Y may na-Mayor at that time. Sir, what if less than a year, one day lang or two days? Bisan single day lang if we are really to stretch our imagination just to check the reasonableness of the law. If one day then still it is interrupted. Although it is physically not possible. Problem No. 4 1992 to 2001 X was elected and served as Mayor for three consecutive years. 2001 X did not run; Y was elected Mayor. 2002 Through Recall Election, X joined the Recall Election.


Kabalo man ta nga kung Recall Election, the incumbent officials subject of recall will become automatically candidates whether he likes it or not. And then the COMELEC will invite other candidate. So miapil dayon si X. Can X participate in the Recall Election? Yes, for the same reason no consecutiveness. The principle behind the three-term limit rule is to prevent consecutiveness of the service of terms. And there was in this case a break in such consecutiveness after the end of his third term and before the recall election. Duol ra gyud kaayo. Private citizen siya for nearly one year. That was the case of Socrates vs. COMELEC (2002). Problem No. 5 (2005 Bar Exam) 1992 to 2001 X was Mayor of the then Municipality of Digos for three consecutive years. Before the May 2001 Elections, the municipality became a new city. So midagan pod siya because this is a new entity so this should be a fresh start for the mayor in Digos. Was X qualified to run for Mayor of the new city? No. this is the case of Latasa vs. COMELEC (2003). Latasa argued that this is a new local government unit. Correct, it is a new LGU but it is the same territory and the same inhabitants. Plus, according to the Court, if we rule otherwise, this would be considered a circumvention on the rule on consecutiveness. There, the mayor would then be serving not just 9 years but 18 years. Problem No. 6 X was elected and served as Mayor (one term). X was elected and served as Mayor (1998 to 2001; 2nd term) but in the middle of the term, a 1998 election protest was filed but was not resolved. X was reelected for the third term (2001 to 2004; and served as Mayor. The 1998 election protest was favorably decided at the time when X was already reelected in 2001 (third term). According to the election protest case he did not win in the 1998 Elections. He was not legally the Mayor in 1998-2001. Was X qualified to run for Mayor in the 2004 Elections? NO. The SC said purbida noh kung dili ikaw ang Mayor atong 1998 to 2001, kinsa man nga wala man naglingkod ang protestant. The SC said it would be absurd to say that he was not the mayor at that time when in fact, muingon ka de facto, he served as Mayor. This is your Francis Ong vs. Joseph Alegre case (2006). It was considered as full service even if it was later on declared by the COMELEC that he was not the rightful official. Problem No. 7 1995 to 1998 - X was elected and served as Mayor. 1998 to 2001 X was reelected and served. A protest was made for the 1998 Elections. 2001 to 2004 reelected and served again as Mayor but in July of 2001, the 1998 election protest was decided against X. 2004 to 2007 X ran and was elected. Gi delay pag ayo ang pag implement sa 2001 case miabot nalang ang 2004 Elections nakadagan pa jud si X. But it was cancelled precisely of the July 2001 Election. But he won. Grabe kaayo ang mani-obra aneh. Mao ni ang grab the proclamation, delay the protest. May 17, 2007(?) X step down as ordered. 2007 He ran for Mayor. Was X qualified to run as Mayor for 2007? Because of his disqualification, he was not the duly-elected Mayor for the 2004-2007 term. In fact, his COC was cancelled. Morales cannot be deemed to have served the full term of 2004 to 2007 because he was ordered to vacate his post after (comment: diba dapat before) the expiration of the term. Before mi-end ang iyang term, mi vacate siya sa iya post. Kung ikaw ang mo-advise sa kandidato - before mo-end ang imong term, naog. Pagpaugat sa because by the time you step down, it is not anymore voluntary renunciation. Because Lonzanida case, if you have step down involuntarily, then is interruption. So mo step down ka nalang. Pero dapat nay order para involuntary. Problem No. 8 1994 elections, 1997 elections and 2002 elections X was elected and served as Punong Barangay. 2004 . Two years after na elect siya as Punong Barangay in the 2002 Elections, wa niya gihuman ang pagka Punong Baranggay. He ran as municipal councilor. 2007 mibalik siya pag ka punong barangay. What is the effect of X running and winning as Municipal Councilor? It is voluntary renunciation of the post kay wala may mi compel nimo to file a candidacy for municipal councilor. Abandonment is considered voluntary renunciation. You abandoned your post when you filed your COC as municipal councilor. Abandonment, according to the Court, just like resignation is voluntary. Abandonment of office, just like resignation is voluntary. Problem No. 9 Bolos, Jr. vs. COMELEC (2009). Three consecutive terms. but on the third term he was preventively suspended for six months. Argue dayon siya. Unsa to requirement: Elected (check), Consecutively (check), Same office (check). Anhi ko sa fully served nga issue. Ingon siya, di ba kung issue on full service, we ask the question voluntary or involuntary. If voluntary, should not be considered as an interruption. If involuntary, should be considered as an interruption. Is preventive suspension voluntary or involuntary? It is immaterial to talk about voluntariness or involuntariness because the official here has not been separated from the office. He was merely preventively suspended. If you have been preventively suspended, you were not separated from office. You are still the official but ordered not to perform the function of the official. Mao kuno na ang effect sa preventive suspension.


He did not leave his post, he was merely suspended. Official lang gyapon siya. He was merely prevented from serving his office but he was still with the office.