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LOCAL GOVT LAW (Municipal Corp. Law) DAY 1 GENERAL PRINCIPLES What is a corporation?

- an artificial being created by operation of law, having the right of succession and the powers, attributes and properties expressly authorized by law or incident to its existence. What are the reasons for creating a corporation? - Limited Liability from the business perspective. Having a corporation will therefore mean that there is another entity separate from the owners. If you talk about a private corporation, then you have a separate juridical entity called that corporation and you also have the personality of the owners and stockholders and therefore, having said that, then we can talk of limited liability because transactions entered into by the corporation will only affect the corporation. If the corporation gets sued because of its inability to pay then the other party to the contract cannot go after the incorporators or stockholders because it is basic in the corporation law that a corporation has a separate and distinct personality as that of the incorporators or stockholders. That if the president for example, acts on his own, purchases a property, does not pay, the other party, cannot go after the assets of the corporation to answer the liability of the president because he acted on his own and not as a representative of the corporation. If the mayor now slaps somebody and that victim sues the mayor and gets a monetary award from the court, that victim cannot go after the assets of Cebu City to answer for the judgement, the mayor will be held personally liable. If the mayor enters into a contract without the authorization from the sanggunian, and the mayor does not pay, the other party cannot go after the city of cebu. - For convenience, when you have a separate and juridical entity, then it can perform acts with legal effects already because it has personality. It can act rather with legal effects, it can enter into transactions/contracts such as contracts that allow a particular construction company to deliver or to build certain infrastructures. What are the kinds of corporation in general? (1) Public: Organized for the government of a portion of the State. One created by the State either by general or special act for purposes of expediency in administration of local government or rendering service in the public interest. (2) Private: Formed primarily for private purpose, benefit, aim or end. Private Corporation -those formed for some private purpose, benefit, aim or end. DEFINITION Public Corporation -one created by the State either by general or special act for purposes of administration of local government or rendering service in the public interest. -established for purposes connected with the administration of civil or local governments -creations of the State either by general or special act -through a charter 1

-through incorporating it through a general law (corp. code), the process is you go to the bank and deposit certain sum of money for capitalization and the bank would make a certification of such deposit and you go and fill up a form, the articles of incorporation, and you go the SEC to issue a certificate of incorporation. -constitute a voluntary agreement by and among its members

by congress -barangays may be created by law or ordinance

NATURE

-involuntary consequence of legislation

What are the kinds/classes of public corporation? Quasi-public Corporations -created as agencies of the State for narrow and limited purposes without the powers and liabilities of selfgoverning corporations. -actually a private corporation, given a franchise, its function is to deliver basic services or supply of public want such as water, electricity, etc. Ex. PCSO, public utilities like MCWD Municipal Corporations/Local Government -body politic and corporate constituted by the incorporation of the inhabitants for purposes of local government thereof. -established by law partly as an agency of the State to assist in the civil government of the country, but chiefly to regulate and administer the local or internal affairs of the city, town or district which is incorporated. -political subdivision of a nation or state which is constituted by law and has substantial control of local affairs Ex. LGU

LOCAL GOVERNMENT political subdivisions of a nation or state which is constituted by law and has substantial control of local affairs. Eg. Province (under the 1987 Constitution, local governments are not only called political subdivisions but territorial subdivisions as well) 1987 Constitution Art. 10 SECTION 1. The territorial and political subdivisions of the Republic of the Philippines are the provinces, cities, municipalities, and barangays. There shall be autonomous regions in Muslim Mindanao and the Cordilleras as hereinafter provided. CONCEPTS: 1) Municipal corporation abstract; something that has a set of officers, represents stateholders in entering into transactions, agent of the national government 2) Political subdivision every time the LGU performs a governmental function then it is functioning as a political subdivision, meaning as an agent of the state 3) Territorial subdivision for purposes of regulation of activities, regulation of certain forms of gambling, police power, expropriation

-created for private aim, gain, or benefits of its members

PURPOSE OF CREATION

-created by the will of the incorporators with the recognizance of the State.

CREATORS

let us run with perseverance the race marked out for us. Let us fix our eyes on Jesus, the author and perfecter of our faith Heb 12:2

An LGU is to be created, it does not exist on its own. Precisely created by law, an artificial being.

MUNICIPAL CORPORATIONS ELEMENTS: (1) Legal creation - This refers to the law creating it; (2) Corporate name - It is the name by which the public corporation is known. The sangguniang panlalawigan may, in. consultation with the Philippine Historical Institute, change the name of component cities and municipalities, upon the recommendation of the sanggunian concerned; provided that the same shall be effective only upon ratification in a plebiscite conducted for the purpose in the political unit directly affected [Sec. 13, R.A. 7160].

The other concern is satisfaction of an award for monetary claim, you have a plaintiff who file a case against the city of cebu as defendant, gets a favourable award in the amount of 10M for the payment of just compensation because the city of cebu took his private property, the sheriff would now proceed to the bank and wondering if the funds in the account are for governmental or proprietary. In Property, the real property of and LGU may be held governmental or proprietary capacity. The LGU for example has a parcel of land and the national government uses it for offices of national government agencies. The legal concerns here are for example you are the mayor, there is deprivation of property, the beneficial use, then just compensation. You should ask just compensation from the national government, but the question is would you get it. We try to distinguish it now if that property is held in its governmental capacity then the LGU as agent of the national government, must have been holding the property in trust of the principal, so why would it receive just compensation. And then if it is a property held in its proprietary capacity then it is not part of the state, it is as if it is a private corporation so when it is deprive of property, it should receive just compensation. Dual Functions, contd IMPORTANCE OF KNOWING THESE DUAL FUNCTIONS OF LGU: - liability for damages - garnishment of funds - liability of LGU - control of congress over LGU

(3) Inhabitants - This refers to the people


residing in it or comprising it; and

(4) Territory - This refers to the area wherein


which the inhabitants are residing including the land, water, space and air space.

DUAL NATURE AND FUNCTIONS OF LGU 1. Governmental public; political; administering the powers of the state and promoting the public welfare Ex. Regulatory ordinances, Police power, eminent domain, taxation, delegations 2. Proprietary private; corporate; exercised for the special benefit and advantage of the community. Ex. Maintenance, beautification of public plazas, locality, markets

WHAT IS THE LEGAL RELEVANCE OF CHARACTERIZING A PARTICULAR FUNCTION OF A LOCAL GOVERNMENT UNIT AS EITHER PUBLIC/GOVERMENTAL OR PRIVATE/PROPRIETARY? If a LGU performs a governmental function, then it is acting as a political subdivision/agent of the state then it is part of that state and being so it can enjoy the sovereign privileges of the state. Whereas if it is performing a proprietary function, a corporate entity as a representative of the inhabitants, and the inhabitants are not immune from suit. The idea of state immunity is not that the state cannot be sued but the state cannot be sued without its consent. There are various forms of consent, one is express consent, as when the law provides that that particular entity can be sued and if you look at the charter of all LGU, you will there a section that that LGU can sue and be sued, and that is an express consent, but even if you dont see that in every charter of the LGU, it doesnt matter because Jan. 1, 1992 which is the LGU code of 1991, sec. 2 already declares that every LGU has the power to sue and be sued. We can go to the other area of concern after suability which is liability in the area of for example negligence, or tortious acts, like for example the driver of the city of Cebu under the influence of liquor then hits and kills the pedestrian, the heirs will have to claim for redress, the question is who should be the one to be held liable. Would you find it relevant to distinguish between a contract that is entered into by the City of Cebu hiring for example the services of entertainers to appear before a program and a contract entered into between a contractor and the city of cebu for the construction of road; would you say that in the first situation the city of cebu should be held liable because it is a private contract and in the public contract, Its not liable? 2

Section 15. Political and Corporate Nature of Local Government Units. - Every local government unit created or recognized under this Code is a body politic and corporate endowed with powers to be exercised by it in conformity with law. As such, it shall exercise powers as a political subdivision of the national government and as a corporate entity representing the inhabitants of its territory. - Even without this principle, it will still apply because this is the principle since time immemorial.

BARA LIDASAN V COMELEC *On June 18, 1966, Chief Executive signed into law House Bill (HB) 1247, now known as Republic Act (RA) 4790 An Act Creating the Municipality of Dianaton in the Province of Lanao del SurThe new municipality of Dianaton, Lanao del Sur includes: Kapatagan, Bongabong, Aipang, Dagowan, Bakikis, Bungabung, Losain, Matimos, and Magolatung. It also includes: barrios of Togaig and Madalum (both situated in Buldon, Cotabato) and barrios of Bayanga, Langkong, Sarakan, Kat-bo, Digakapan, Magabo, Tangabao, Tiongko, Colodan, and Kabamawakan (all situated in Parang, Cotabato) Bara Lidasan, resident and taxpayer of the detached portion of Parang, Cotabato affected by the implementaion of RA 4790, questions the constitutionality of RA 4790. SC: on 1966, there are still lesser population compared to now. With 9 barangays, its hard to imagine that it can exist as a self-sufficient political community. Remember, and LGU is not only a political subdivision of the state because if it is only a political subdivision of the state, it can always ask funding from the national government, but it is not. It cannot deliver basic services with only 9 barangays. - Municipal corporations perform twin functions. Firstly. They serve as an instrumentality of the State in carrying out the functions of government.

let us run with perseverance the race marked out for us. Let us fix our eyes on Jesus, the author and perfecter of our faith Heb 12:2

Secondly. They act as an agency of the community in the administration of local affairs. It is in the latter character that they are a separate entity acting for their 13 own purposes and not a subdivision of the State.

DAY 2 ANSWER OF ASSIGNMENT BY ATTY. LARGO: LEGAL CONCERNS:

SURIGAO ELECTRIC CO., INC V MUNICIPALITY OF SURIGAO - Theres a law that provides for a requirement that if they operate for a public utility, you need to get a certificate of public convenience however in the same law it provided for certain entities that are exempt from getting a certificate of public convenience, and that public service law mentions of instrumentalities of public government as exempt from getting a certificate public convenience if it opts to operate a public utility. Surigao Electric Co., complained because the municipality operated an electric company without a certificate of public convenience. The question now is the idea of instrumentality of the national government, does it include a local government unit, because it was argued the meaning of instrumentality should be those agencies pertaining to the national government and since it is local, it is not part. - Because of the first function of the LGU, that is, it serves as an agency of the State, and LGU can therefore be considered an instrumentality of the National Government. - SC said: Government affairs do not lose their governmental character by being delegated to the municipal governments. Nor does the fact that such duties are performed by officers of the municipality which, for convenience, the state allows the municipality to select, change their character. - Even if the local government caters to the needs of the inhabitants, its a fact that is also a political subdivision, it is also an agent of the national government, so it is both a corporate entity and a political subdivision and being a political subdivision then it can qualify as an instrumentality of the national government. The SC ruled that there was no need for a certificate of public convenience.

- What would happen to the ordinances? - Contracts, if the LGU was made to pay in that contract, can the people get the funds back? Because it was illegally disburse? Because it was disbursed by a nongovernment entity? - Taxes, for 40 years, it must have collected real property taxes, will you not get the taxes back? - Suppliers, will they get back the supplies delivered to the LGU? What if they have not been paid? Can you still make the LGU liable? - Local officials have been elected and acted as such for 40 years, what would happen to their salaries? Where they entitled, assuming this would be declared unconstitutional. - The bottomline is, the buenavista 2 may have been defectively created and it acted as a lawfully created municipal corporation, and it acted as if it was lawfully created and therefore entered into transactions, exercised powers, collected taxes, it passed ordinances, police power, eminent domain, you want to get it back because it was expropriated by a non-governmental entity which should not exercise the power in the first place. - de facto or not? De jure? QUESTIONS YOU SHOULD BE ASKING: - Was there a plebiscite, how was it done? - There are principles of law applicable to those created before and after the 1987 constitution? - Was the validity of the municipal corporation here involve when questioned to check if it was assailed properly or improperly? - When was this created? Because if this was created before 1965 when Pelaez V Auditor General was decided by the SC, because that was already settled there, I want to know if it was assailed, because its relevant to know whether that municipal corporation was questioned or not, whether a decision has been rendered declaring it invalidly created or not. - I want to know if this was enacted before the 1987 Constitution, let us say 1942 plus 40, 1982, so before 1987 constitution, I remember in one of the cases, it was said that if it was illegally created, like those municipal corporation created by executive order which according to SC in Pelaez v Auditor general, invalid because the creation of municipal corporation is a legislative function and not an executive function, although there was colourable compliance, because president Macapagal had some sort of a basin in creating municipal corporation in section 16 of the code, so there was at least some sort of an attempt in good faith to organize it, it was not as if it was created without utterly legal basis. I want to know that because in the 1987 constitution was ratified by the people, and ordinance was annexed to the 1987 constitution, which happen to list down LGU that constituted the first set of legislative districts in that general apportionment of legislative districts. And you would be asking that question because a de facto municipal corporation, it can actually be rendered de jure through for example ratification recognition by the State as when even mentioned by the Constitution, in fact in 1 case, through congress, state has ratified, recognized a defective municipal corporation like in the LGC of 1991, in section 442 D, you should have asked that question. If it was created before 1987, was it included in the list? Otherwise, the state had ratified, recognized an invalidly created, assuming this can be assailed as invalidly created. Probably its not even de facto, its de jure. And

SOURCES OF POWER: GENERAL: 1. 1987 Constitution (article X sec. 5, 6, 7 sources of revenues) 2. LGC of 1991 (RA 7160) Consolidation of past local government laws) 3. Other statutes or acts not inconsistent with the foregoing

PROBLEM: A community of people in the northern part of Cebu had always wanted to have their own local government unit. Apparently, these people were considered minority in Cebu as their predecessors were mainly from the province of Bohol. Claiming that they have unique culture and tradition different from most Cebuanos, they lobbied in Congress for the enactment of a law for the creation of a new municipality to be called Buenavista 2. Although lacking in population requirement, they were able to convince congress to pass a law creating the new municipality. Local officials were then elected and acted as such for forty years. Buenavista 2 had then entered into contracts and transactions with various persons. 1)What are the areas of concern; What are the legal aspects of this problem? 2)What are the questions that you should be asking about this problem? 3)Why will you be asking those questions? 3

let us run with perseverance the race marked out for us. Let us fix our eyes on Jesus, the author and perfecter of our faith Heb 12:2

another thing in January 1992, effectivity of the LGC of 1991, sec. 442 D of the Local Government Code was considered as curative law, those created in the past continued to exercise governmental powers as long as it has proof of continued exercise of governmental powers while defectively created and continued to exist, were deemed regular municipal corporations.

proceeding is otherwise, or any other purpose, but you brought up the issue on invalidity of the municipal corporation, then that becomes a collateral attack.

NEVERTHELESS, THE STATE MAY RECOGNIZE A DE FACTO CORPORATION AND RENDER IT DE JURE - Defective incorporation may be obviated and a de facto unit rendered de jure by subsequent legislative recognition or validation. (Fordham)

KINDS OF MUNICIPAL CORPORATION: 1) DE JURE created with all the elements of a municipal corporation being present; perfectly created; exists by law; lawfully created 2) DE FACTO where there is colourable compliance with the requisites of a de jure municipal corporation; if it does not exist in law because it has not complied with the law then it may have only existed in fact

DE FACTO CORPORATION ELEMENTS: a. valid law authorizing incorporation b. attempt in good faith to organize it

DOCTRINE OF DE FACTO CORPORATION - where there is authority in law for a municipal corporation, the organization of the people of a given territory as such a corporation under a color of delegated authority, followed by a user in good faith of the government powers incidental thereto, will be recognized by the law as a municipal corporation de facto, wherever through the failure to comply with the constitutional or statutory requirements, the corporation cannot be said to exist de jure.

c. colourable compliance with law d. assumption of corporate powers

MUNICIPALITY OF JIMENEZ V BAS, JR. (1996) - The municipality of Sinacaban was created through E.O. 258 in 1949 and since then had been exercising the powers of an LGU; - in 1965, Pelaez V. Auditor General case invalidated certain EOs issued by the President creating municipalities because the power to create LGU is essentially legislative, excluding EO 258 - in 1990, Sinacabans existence was questioned. - SC: First. The preliminary issue concerns the legal existence of Sinacaban. If Sinacaban legally exist, then it has standing to bring a claim in the Provincial Board. Otherwise, it cannot. The principal basis for the view that Sinacaban was not validly created as a municipal corporation is the ruling in Pelaez v. Auditor General that the creation of municipal corporations is essentially a legislative matter and therefore the President was without power to create by executive order the Municipality of Sinacaban. The ruling [9] this case has been reiterated in a number of in cases later decided. However, we have since held that where a municipality created as such by executive order is later impliedly recognized and its acts are accorded legal validity, its creation can no longer be questioned. [10] Municipality of San Narciso, Quezon v. In Mendez, Sr., this Court considered the following factors as having validated the creation of a municipal corporation, which, like the Municipallity of Sinacaban, was created by executive order of the President before the ruling in Pelaez v. Auditor general: (1) the fact that for nearly 30 years the validity of the creation of the municipality had never been challenged; (2) the fact that following the ruling in Pelaez no quo warranto suit was filed to question the validity of the executive order creating such municipality; and (3) the fact that the municipality was later classified as a fifth class municipality, organized as part of a municipal circuit court and considered part of a legislative district in the Constitution apportioning the seats in the House of Representatives. Above all, it was held that whatever doubt there might be as to the de jure character of the municipality must be deemed to have been put to rest by the local Government Code of 1991 (R.A. no. 7160), 442 (d) of which provides that municipal districts organized pursuant to presidential issuances or executive orders and which have their respective sets of elective officials holding office at the time of the effectivity of this Code shall henceforth be considered as regular municipalities. Here, the same factors are present so as to confer on Sinacaban the status of at least a de facto municipal

EFFECTS OF A DE FACTO CORPORATION STATUS - Where at least a de facto municipal corporation, 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 corp. (Fordham) - Where there is no municipal corporation at all (even a de facto one), the acts of that entity are not recognized as valid by the State. - Is there a difference between de jure and de facto municipal corporation in so far as there effects of their acts are concerned?

BASIS FOR THE DOCTRINE OF DE FACTO CORPORATION - The basis for this doctrine is a very strong public policy supporting the security of units of local government and the conduct of their business against attack grounded upon collateral inquiry into the legality of their organization. (operative fact doctrine) - It also underlies the theory that local units may exist by prescription. (Fordham).

BUT LONG USE OF CORPORATE POWER DOES NOT SILENCE THE STATE -The state controls the objects and methods of creation of local units and, to effectuate a policy in that area, it should be free to challenge local departures from that policy. Long exercise of corporate powers without question from any quarter was not enough to silence the state; it might still attack directly, in quo warranto or other appropriate proceedings, the legal existence of a local unit either on the ground that there was no authority in law for its existence or that were the irregularities in its organization, as the case might be. (Fordham) - First, if its de facto then it can be questioned through a direct proceeding where the nature of the proceeding is in this case to assail the validity of the existence of the municipal corporation, meaning that is the purpose or nature of the proceeding. If the nature or purpose of the 4

let us run with perseverance the race marked out for us. Let us fix our eyes on Jesus, the author and perfecter of our faith Heb 12:2

corporation in the sense that its legal existence has been recognized and acquiesced publicly and officially. Sinacaban had been in existence for sixteen years when Pelaez v. Auditor General was decided on December 24, 1965. Yet the validity of E.O. No. 258 creating it had never been questioned. Created in 1949, it was only 40 years later that its existence was questioned and only because it had laid claim to an area that apparently is desired for its revenue. This fact must be underscored because under Rule 66, 16 of the Rules of Court, a quo warranto suit against a corporation for forfeiture of its charter must be commenced within five (5) years from the time the act complained of was done or committed. On the contrary, the State and even the municipality of Jimenez itself have recognized Sinacabans corporate existence. Under Administrative order no. 33 dated June 13, 1978 of this Court, as reiterated by 31 of the judiciary Reorganization Act of 1980 (B.P. Blg. 129), Sinacaban is constituted part of municipal circuit for purposes of the establishment of Municipal Circuit Trial Courts in the country. For its part, Jimenez had earlier recognized Sinacaban in 1950 by entering into an agreement with it regarding their common boundary. The agreement was embodied in Resolution no. 77 of the Provincial Board of Misamis Occidental. Indeed Sinacaban has attained de jure status by virtue of the Ordinance appended to the 1987 Constitution, apportioning legislative districts throughout the country, which considered Sinacaban part of the Second District of Misamis Occidental. Moreover following the ruling in Municipality of san Narciso, Quezon v. Mendez, Sr., 442(d) of the Local Government Code of 1991 must be deemed to have cured any defect in the creation of Sinacaban. This provision states: Municipalities existing as of the date of the effectivity of this Code shall continue to exist and operate as such. Existing municipal district 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 the Code shall henceforth be considered as regular municipalities. Second. Jimenez claims, however, that R.A. No. 7160, 442(d) is invalid, since it does not conform to the constitutional and statutory requirements for the holding [11] of plebiscites in the creation of new municipalities. This contention will not bear analysis. Since, as previously explained, Sinacaban had attained de facto status at the time the 1987 Constitution took effect on February 2, 1987, it is not subject to the plebiscite requirement. This requirement applies only to new municipalities created for the first time under the Constitution. Actually, the requirement of plebiscite was originally contained in Art. XI, 3 of the previous Constitution which took effect on January 17, 1973. It cannot, therefore, be applied to municipal corporations created before, such as the municipality of Sinacaban in the case at bar. Jimenez properly brought to the RTC for review the decision of October 11, 1989 and Resolution No. 13-90 of the Provincial Board. Its action is in accordance with the local Government Code of 1983, 79 of which provides that I case no settlement of boundary disputes is made the dispute should be elevated to the RTC of the province.

seats of the house of representative (as one of the 12 rd municipalities composing the 3 district of Quezon) While petitioners would grant that the enactment of Republic Act No. 7160 may have converted theMunicipality of San Andres into a de facto municipality, they, however, contend that since the petition for quo warranto had been filed prior to the passage of said law, petitioner municipality had acquired a vested right to seek the nullification of Executive Order No. 353, and any attempt to apply Section 442 of Republic Act 7160 to the petition would perforce be violative of due process and the equal protection clause of the Constitution. Petitioners' theory might perhaps be a point to consider had the case been seasonably brought. Executive Order No. 353 creating the municipal district of San Andres was issued on 20 August 1959 but it was only after almost thirty (30) years, or on 05 June 1989, that the municipality of San Narciso finally decided to challenge the legality of the executive order. In the meantime, the Municipal District, and later the Municipality, of San Andres, began and continued to exercise the powers and authority of a duly created local government unit. In the same manner that the failure of a public officer to question his ouster or the right of another to hold a position within one-year period can abrogate an action belatedly filed, 19 so also, if not indeed with greatest imperativeness, must a quo warranto proceeding assailing the lawful authority of a political subdivision be timely raised. 20 Public interest demands it. Granting the Executive Order No. 353 was a complete nullity for being the result of an unconstitutional delegation of legislative power, the peculiar circumstances obtaining in this case hardly could offer a choice other than to consider the Municipality of San Andres to have at least attained a status uniquely of its own closely approximating, if not in fact attaining, that of a de facto municipal corporation. Conventional wisdom cannot allow it to be otherwise. Created in 1959 by virtue of Executive Order No. 353, the Municipality of San Andres had been in existence for more than six years when, on 24 December 1965, Pelaez v. Auditor General was promulgated. The ruling could have sounded the call for a similar declaration of the unconstitutionality of Executive Order No. 353 but it was not to be the case. On the contrary, certain governmental acts all pointed to the State's recognition of the continued existence of the Municipality of San Andres. Thus, after more than five years as a municipal district,Executive Order No. 174 classified the Municipality of San Andres as a fifth class municipality after having surpassed the income requirement laid out in Republic Act No. 1515. Section 31 of Batas Pambansa Blg. 129, otherwise known as the Judiciary Reorganization Act of 1980, constituted as municipal circuits, in the establishment of Municipal Circuit Trial Courts in the country, certain municipalities that comprised the municipal circuits organized underAdministrative Order No. 33, dated 13 June 1978, issued by this Court pursuant to Presidential Decree No. 537. Under this administrative order, the Municipality of San Andres had been covered by the 10th Municipal Circuit Court of San FranciscoSan Andres for the province of Quezon. Cdpr At the present time, all doubts on the de jure standing of the municipality must be dispelled. Under the Ordinance (adopted on 15 October 1986) apportioning the seats of the House of Representatives, appended to the 1987 Constitution, the Municipality of San Andres has been considered to be one of the twelve (12) municipalities composing the Third District of the province of Quezon. Equally significant is Section 442(d) of the Local Government Code to the effect that municipal districts "organized pursuant to presidential issuances or executive orders and which have their respective sets of elective municipal officials holding office at the time of the effectivity of (the) Code shall henceforth be considered as regular municipalities." No pretension of unconstitutionality per se of Section 442(d) of the Local Government Code is preferred. It is doubtful whether such a pretext, even if made, would succeed. The power to create political subdivisions is a function of the

MUN. OF SAN NARCISO V MENDEZ, SR. - Municipality of San Andres was created in 1959 through EO 353 - It became a fifth class municipality in 1965 - in 1965, Palaez V Auditor General case invalidated some EO (excluding EO 353) of the President creating some municipalities; - San Andres existence was questioned in 1989; - SC: San Andres became de jure by subsequent recognition because it was included in the ordinance (appendix) to the 1987 constitution apportioning the 5

let us run with perseverance the race marked out for us. Let us fix our eyes on Jesus, the author and perfecter of our faith Heb 12:2

legislature. Congress did just that when it has incorporated Section 442(d) in the Code.

MUN. OF CANDIJAY V CA (1995) - Same Ruling in Jimenez and Narciso cases; - In addition, as in Narciso Case, the Municipality of Alicia should benefit from the effects of Section 442 D of the LGC of 1991 which was declared in Narciso as curative law aimed at giving validity to acts done that would have been invalid under existing laws have been complied. After deliberating on the petition, comment and reply, this Court is not persuaded to grant due course to the petition. On the second issue, we noted that petitioner commenced its collateral attack on the juridical personality of respondent municipality on 19 January 1984 (or some thirty five years after respondent municipality first came into existence in 1949) during the proceedings in the court a quo. It appears that, after presentation of its evidence, herein petitioner asked the trial court to bar respondent municipality from presenting its evidence on the ground that it had no juridical personality. Petitioner contended that Exec. Order No. 265 issued by President Quirino on September 16, 1949 creating respondent municipality is null and void ab initio, inasmuch as Section 68 of the Revised Administrative Code, on which said Executive Order was based, constituted an undue delegation of legislative powers to the President of the Philippines, and was therefore declared unconstitutional, per this Court's ruling in Pelaez vs. Auditor General. 3 In this regard, we call to mind the ruling of this Court in Municipality of San Narciso, Quezon vs. Mendez, Sr., 4which will be found very instructive in the case at bench. Therein we stated: "While petitioners would grant that the enactment of Republic Act No. 7160 [Local Government Code of 1991] may have converted the Municipality of San Andres into a de facto municipality, they, however, contend that since the petition for quo warranto had been filed prior to the passage of said law, petitioner municipality had acquired a vested right to seek the nullification of Executive Order No. 353, and any attempt to apply Section 442 of Republic Act 7160 to the petition would perforce be violative of due process and the equal protection clause of the Constitution. "Petitioner's theory might perhaps be a point to consider had the case been seasonably brought. Executive Order No. 353 creating the municipal district of San Andres was issued on 20 August 1959 but it was onlyafter almost thirty (30) years, or on 05 June 1989, that the municipality of San Narciso finally decided to challenge the legality of the executive order. In the meantime, the Municipal district, and later the Municipalityof San Andres, began and continued to exercise the powers and authority of a duly created local government unit. In the same manner that the failure of a public officer to question his ouster or the right of another to hold a position within a one-year period can abrogate an action belatedly file, so also, if not indeed with greatest imperativeness, must a quo warranto proceeding assailing the lawful authority of a political subdivision be timely raised. Public interest demands it.

of Executive Order No. 353, the Municipality of San Andres had been in existence for more than six years when, on 24 December 1965, Pelaez vs. Auditor Generalwas promulgated. The ruling could have sounded the call for a similar declaration of the unconstitutionality of Executive Order No. 353 but it was not to be the case. On the contrary, certain governmental acts all pointed to the State's recognition of the continued existence of the Municipality of San Andres. Thus, after more than five years as a municipal district, Executive Order No. 174 classified the Municipality of San Andres as a fifth class municipality after having surpassed the income requirement laid out in Republic Act No. 1515. Section 31 of Batas Pambansa Blg. 129, otherwise known as the Judiciary Reorganization Act of 1980, constituted as municipal circuits, in the establishment of Municipal Circuit Trial Courts in the country, certain municipalities that comprised the municipal circuits organized under Administrative Order No. 33, dated 13 June 1978, issued by this court pursuant to Presidential Decree No. 537. Under this administrative order, the Municipalityof San Andres had been covered by the 10th Municipal Circuit Court of San Francisco-San Andres for the province of Quezon. "At the present time, all doubts on the de jure standing of the municipality must be dispelled. Under the Ordinance (adopted on 15 October 1986) apportioning the seats of the House of Representatives, appended to the 1987 Constitution, the Municipality of San Andres has been considered to be one of the twelve (12) municipalities composing the Third District of the province of Quezon. Equally significant is Section 442(d) of the Local Government Code to the effect that municipal districts "organized pursuant to presidential issuances or executive orders and which have their respective sets of elective municipal officials holding office at the time of the effectivity of (the) Code shall henceforth be considered as regular municipalities." No pretension of unconstitutionality per se of Section 442(d) of the Local Government Code is proffered. It is doubtful whether such a pretext, even if made, would succeed. The power to create political subdivisions is a function of the legislature. Congress did just that when it has incorporated Section 442(d) in the Code. Curative laws, which in essence are retrospective, and aimed at giving "validity to acts done that would have been complied with," are validly accepted in this jurisdiction, subject to the usual qualification against impairment of vested rights. "All considered, the de jure status of the Municipality of San Andres in the province of Quezon must now be conceded." Respondent municipality's situation in the instant case is strikingly similar to that of the municipality of San Andres. Respondent municipality of Alicia was created by virtue of Executive Order No. 265 in 1949, or ten years ahead of the municipality of San Andres, and therefore had been in existence for all of sixteen years when Pelaez vs. Auditor General was promulgated. And various governmental acts throughout the years all indicate the State's recognition and acknowledgment of the existence thereof. For instance, under Administrative Order No. 33 above-mentioned, the Municipality of Alicia was covered by the 7th Municipal Circuit Court of AliciaMabini for the province of Bohol. Likewise, under the Ordinance appended to the 1987 Constitution, the Municipality of Alicia is one of twenty municipalities comprising the Third District of Bohol. Inasmuch as respondent municipality of Alicia is similarly situated as the municipality of San Andres, it should likewise benefit from the effects of Section 442(d) of the Local Government Code, and should henceforth be considered as a regular, de jure municipality.

"Granting that Executive Order No. 353 was a complete nullity for being the result of an unconstitutional delegation of legislative power, the peculiar circumstances obtaining in this case hardly could offer a choice other than to consider the Municipality of San Andres to have at least attained a status uniquely of its own closely approximating, if not in fact attaining, that of a de facto municipal corporation. Conventional wisdom cannot allow it to be otherwise. Created in 1959 by virtue 6

SECTION 442 (D), LGC: Municipalities existing as of the date of the effectivity of this Code shall continue to exist and operate as such. Existing municipal districts organized pursuant to presidential issuances or executive orders and which

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have their respective set of elective municipal officials holding office at the time of the effectivity of this Code shall henceforth be considered as regular municipalities.

states are in some sense sovereign, insofar as certain powers are reserved to them that may not be exercised by the central government. However, a federation is more than a mere loose alliance of independent states. A federal system of government is one that divides the powers of government between the national (federal) government and state and local governments. The Constitution of the United States established the federal system, also known as federalism. Under federalism, each level of government has sovereignty in some areas and shares powers in other areas. For example: both the federal and state governments have the power to tax. Only the federal government can declare war. UNITARY unitary state is a state governed as one single unit in which the central government is supreme and any administrative divisions (subnational units) exercise only powers that their central government chooses to delegate. The great majority of states in the world have a unitary system of government. Unitary states are contrasted with federal states (federations): In a unitary state, subnational units are created and abolished and their powers may be broadened and narrowed, by the central government. Although political power in unitary states may be delegated throughdevolution to local government by statute, the central government remains supreme; it may abrogate the acts of devolved governments or curtail their powers. A unitary state is sometimes one with only a single, centralised, national tier of government. However, unitary states often also include one or more selfgoverning regions. The difference between a federation and this kind of unitary state is that in a unitary state the autonomous status of self-governing regions exists by the sufferance of the central government, and may be unilaterally revoked. While it is common for a federation to be brought into being by agreement between a number of formally independent states, in a unitary state self-governing regions are often created through a process of devolution, where a formerly centralised state agrees to grant autonomy to a region that was previously entirely subordinate. Thus federations are often established voluntarily from 'below' whereas devolution grants self-government from 'above'. It is often part of the philosophy of a unitary state that, regardless of the actual status of any of its parts, its entire territory [citation needed] a single sovereign entity constitutes or nation-state , and that by virtue of this the central government exercises sovereignty over the whole territory as of right. In a federation, on the other hand, sovereignty is often regarded as residing notionally in the component states, or as being shared between these states and the central government. CONFEDERATION - in modern political terms is a permanent union of political units for common action in [1] relation to other units. Usually created by treaty but often later adopting a common constitution, confederations tend to be established for dealing with critical issues (such as defense, foreign affairs, or a common currency), with the central government being required to provide support for all members. The nature of the relationship among the states constituting a confederation varies considerably. Likewise, the relationship between the member states, the central government, and the distribution of powers among them is highly variable. Some looser confederations are similar to intergovernmental organizations, while tighter confederations may resemble federations. In a non-political context, confederation is used to describe a type of organization which consolidates authority from other autonomous (or semi-autonomous) bodies. Examples include sports confederations or confederations of pan-European trades unions. In Canada, the word confederation has an additional, [2] unrelated meaning. "Confederation" refers to the

SULTAN OSOP CAMID V OFFICE OF THE PRESIDENT - SC: 1. Section 442(d) of the LGC does not sanction the recognition of just any municipality. 2. Only those that can prove continued exercise of corporate powers can be covered; Andong does not have the certification from DILG as such 3. Incidentally, the SC being not a trier of facts Section 442(d) of the Local Government Code requires that in order that the municipality created by executive order may receive recognition, they must have their respective set of elective municipal officials holding office at the time of the effectivity of the Local Government Code. Petitioner admits that Andong has never elected its municipal officers at all.

DOCTRINE OF OPERATIVE FACT APPLICABLE IN INVALIDLY CREATED LGU 2004 BAR EXAM VII. B. Suppose that one year after Masigla was constituted as a municipality, the law creating it is voided because of defects. Will that invalidate the acts of the municipality and officers?

ASS: Even during the 1973 consti, local governments had already been given local autonomy. In the appointment of a provincial accountant, the secretary of the department of Budget and Management appoints from among the list of nominess the Governor would submit to the DBM. This was the case before the Local Govt code of 1991 took effect. When a Governer submitted a list of nominees, namely X,Y and Z for the position of Provincial Accountant, none of the nominess was a CPA, which was one of the qualifications for a provincial accountant. The Secretary of DBM appointed instead W, a CPA. What are the legal aspects of the case?

DAY 3 OVERVIEW OF THE PHIL. LOCAL GOVERNMENT SYSTEM - Vertical Classification of Phil. Local System: Unitary (as distinguished from Federal) - Lina V Pano Ours is still a unitary form of government, not a federal state. Being so, any form of autonomy granted to local governments will necessarily be limited and confined within the extent allowed by the central authority. Besides, the principle of local autonomy under the 1987 Constitution simply means decentralization. It does not make local governments sovereign within the state or an imperium in imperio.

FEDERAL - is a political entity characterized by a union of partially self-governing states or regions united by a central (federal) government. In a federation, the self-governing status of the component states, as well as the division of power between them and the central government, are typically constitutionally entrenched and may not be altered by a unilateral decision of the latter. In a federation the component 7

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process of (or the event of) establishing or joining the Canadian federal state.

ZOOMZAT, INC. V PEOPLE - Executive Order No. 205 provides that only the NTC could grant certificates of authority to cable television ooperators. - There is no law specifically authorizing the LGUs to grant franchises to operated CATV system. Whatever authority the LGUs had before, the same had been withdrawn when President Marcos issued PD 1512. - It is clear that in the absence of constitutional or legislative authorization, municipalities have no power to grant franchises. Notes: First you should look at the constitution, has this power been granted. Next you look at the charter, has this power been granted to the LGU concerned and of course the Local Government Code, has this power been granted to the Local Government Units and fourthly, has there been a law that granted that power to the Local government entities. If none, then the LGU cannot exercise that power.

DECENTRALIZATION OF POWER - involves the abdication of political power in favor of local government units declared to be autonomous. In that case, the autonomous government is free to chart its own destiny and shape its future with minimum intervention from central authorities. Decentralization accounts for selfimmolation since in that event, the autonomous government becomes accountable not to the central authorities but to its constituency.

Autonomous Region ART. X. SECTION 15 (CONSTI). There shall be created autonomous regions in Muslim Mindanao and in the Cordilleras consisting of provinces, cities, municipalities, and geographical areas sharing common and distinctive historical and cultural heritage, economic and social structures, and other relevant characteristics within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines. SECTION 16. The President shall exercise general supervision over autonomous regions to ensure that the laws are faithfully executed. SECTION 20. Within its territorial jurisdiction and subject to the provisions of this Constitution and national laws, the organic act of autonomous regions shall provide for legislative powers over: (1) Administrative organization; (2) Creation of sources of revenues; (3) Ancestral domain and natural resources; (4) Personal, family, and property relations;

LOCAL AUTONOMY, DECENTRALIZATION, DEVOLUTION, AND DECONCENTRATION - Art. 2 sec 25 (Consti) The State shall ensure the autonomy of local governments. - Art. 10, sec. 2 (Consti) The territorial and political subdivisions shall enjoy local autonomy. - Sec. 2, LGC (a) It is hereby declared the policy of the State that the territorial and political subdivisions of the State shall enjoy genuine and meaningful local autonomy to enable them to attain their fullest development as self-reliant communities and make them more effective partners in the attainment of national goals. Toward this end, the State shall provide for a more responsive and accountable local government structure instituted through a system of decentralization whereby local government units shall be given more powers, authority, responsibilities, and resources. The process of decentralization shall proceed from the national government to the local government units.

(5) Regional urban and rural planning development; (6) Economic, social, and tourism development; (7) Educational policies; (8) Preservation and development of the cultural heritage; and (9) Such other matters as may be authorized by law for the promotion of the general welfare of the people of the region.

LIMBONA CASE - Decentralization of power, on the other hand, involves an abdication of political power in favor of local governments units declared to be autonomous. In that case, the autonomous government is free to chart its own destiny and shape its future with minimum intervention from central authorities. According to a constitutional author, decentralization of power amounts to a constitutional author, decentralization of power amounts to self-immolation, since in that even, the autonomous government becomes accountable not to the central authorities but to its constituency.

ADMINISTRATIVE POWERS OR POLITICAL POWERS? What is the kind of decentralization adopted or practiced in the Phils? Pimentel V. Aguirre Under the Philippine concept of local autonomy, the national government has not completely relinquished all its powers over local government units including autonomous regions. Only administrative powers over local affairs are delegated to political subdivisions and still policy set in with president and congress.

LOCAL AUTONOMY Limbona V Mangelin: Now, autonomy is either decentralization of administration or decentralization of power. DECENTRALIZATION OF ADMINISTRATION it involves the delegation of administrative powers to political subdivisions in order to broaden the base of government power and in the process, make local governments more responsive and accountable and ensure their fullest development as self-reliant communities and make them more effective partners in the pursuit of national development and social progress. 8 DECENTRALIZATION - A system whereby local government units shall be given more powers, authority, responsibilities and resources. (Sec. 2 LGC) - The process of decentralization shall proceed from the National government to the local government units.

DEVOLUTION

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- the act by which the National government confers power and authority upon various local governments units to perform specific functions and responsibilities [sec. 17 (4)(e)] - it shall include the transfer to local government units the records, equipment, and other assets and personnel of national agencies and offices corresponding to the devolved powers, functions, and responsibilities. - Notes: 1992 EO 543 issued by President Aquino providing for the infrastructure for devolution. There is infrastructure protection, security of tenure, etc. At present, we have local colleges, city colleges, local day care centers. Local chief executive directly appoints the local accountant and other positions. But of course since there is devolution, it includes the funds, instead of the national government giving salary, now, it is the Local Government. In return, we are given fiscal autonomy also to be able to respond to the devolution process. Although the Dept. of Finance still makes the appointment to the local treasurer yet all other positions is directly appointed by the local chief executive.

- We have to obey the clear mandate on local autonomy. Where a law is capable of two interpretations, one in favor of centralized power in Malacanang and the other beneficial to local autonomy, the scales must be weighed in favor of autonomy. - When the CSC interpreted the recommending power of the Provincial Governor as purely directory, it went against the letter and spirit of the constitutional provisions on local autonomy. Syllabus: STATUTORY CONSTRUCTION AND INTERPRETATION; WHERE THE LAW IS CAPABLE OF TWO INTERPRETATIONS, ONE IN FAVOR OF CENTRALIZED POWER IN MALACAANG AND THE OTHER BENEFICIAL TO LOCAL AUTONOMY, THE LATTER PREVAILS. Where a law is capable of two interpretations, one in favor of centralized power in Malacaang and the other beneficial to local autonomy, the scales must be weighed in favor of autonomy. CONSTITUTIONAL LAW; LOCAL AUTONOMY; PRESIDENTIAL CONTROL DISTINGUISHED FROM SUPERVISION. The 1935 Constitution had no specific article on local autonomy. However, in distinguishing between presidential control and supervision "The President shall have control of all the executive departments, bureaus, or offices, exercise general supervision over all local governments as may be provided by law, and take care that the laws be faithfully executed." (Sec. 11, Article VII, 1935 Constitution) the Constitution clearly limited the executive power over local governments to "general supervision . . . as may be provided by law." The President controls the executive departments. He has no such power over local governments. He has only supervision and that supervision is both general and circumscribed by statute. In Mondano v. Silvosa, (97 Phil. 143 [1955]),supervision goes no further than overseeing or the power or authority of an officer to see that subordinate officers perform their duties. If the latter fail or neglect to fulfill them the former may take such action or step as prescribed by law to make them perform their duties. (Ibid, pp. 147-148) Control, on the other hand, 'means the power of an officer to alter or modify or nullify or set aside what a subordinate had done in the performance of their duties and to substitute the judgment of the former for that of the latter.' It would follow then, according to the present Chief Justice, to go back to the Hebron opinion, that the President had to abide by the then provisions of the Revised Administrative Code on suspension and removal of municipal officials, there being no power of control that he could rightfully exercise, the law clearly specifying the procedure by which such disciplinary action would be taken. RIGHT RESERVING TO THE DEPARTMENT OF BUDGET AND MANAGEMENT TO FILL UP VACANCIES;ULTRA VIRES. The right given by Local Budget Circular No. 31 which states: "Sec. 6.0 The DBM reserves the right to fill up any existing vacancy where none of the nominees of the local chief executive meet the prescribed requirements" is ultra vires and is, accordingly, set aside. The DBM may appoint only from the list of qualified recommendees nominated by the Governor. If none is qualified, he must return the list of nominees to the Governor explaining why no one meets the legal requirements and ask for new recommendees who have the necessary eligibilities and qualifications.

DECONCENTRATION - the process of transferring authority and power to the appropriate regional offices or field offices of national agencies of offices whose major functions are not devolved to local government units. (sec. 528 LGC)

Local Autonomy degree of self-determination exercised by LGU vis--vis the central government. - to attain local autonomy, we establish the system called decentralization, which is actualized through the process called devolution.

TENSION - The affirmation that the Philippines is still a Unitary government and the guarantee that LGUs shall enjoy local autonomy create a tension

MAGTAJAS CASE: - The rationale of the requirement that the ordinances should not contravene a statue is obvious. Municipal governments are only agents of the national government. Local councils exercise only delegated legislative powers conferred on them by Congress as the national law making body. The delegate cannot be superior to the principal or exercise powers higher than those of the latter. - this basic relationship between the national legislature and the local government units has not been enfeebled by the new provisions in the Constitution strengthening the policy of local autonomy. Without meaning to detract from that policy, Congress retains control of the local government units although in significantly reduced degree now than under our previous Constitutions. The power to create still includes the, power to destroy. The power to grant still includes the power to withhold or recall. True, there are some notable innovations in the Constitution, like the direct conferment on the local government units of the power to tax (Sec. 5, Art. X), which cannot now be withdrawn by mere statute. By and large, however, the national legislature is, still the principal of local government units, which cannot defy its will or modify or violate it. Ours is still a unitary form of government, not a federal state. Being so, any form of autonomy granted to local governments will necessarily be limited and confined within the extent allowed by the central authority.

LAGUNA LAKE DEVT AUTHORITY - The power of the Authority to grant permits for fishpens, fishcages and other aqua culture structures is for the purpose of effectively regulating and monitoring activities in the Laguna de Bay region. It does partake of the nature of police power which is the most pervasive, the lease limitable and the most demanding of all State powers including the power of taxation. Accordingly, the charter of the Authority which embodies a valid exercise of police power should prevail over the Local

SAN JUAN CASE 9 let us run with perseverance the race marked out for us. Let us fix our eyes on Jesus, the author and perfecter of our faith Heb 12:2

Government Code of 1991 on matters affecting Laguna de Bay. STATUTORY CONSTRUCTION; CONFLICT BETWEEN A GENERAL LAW AND A SPECIAL LAW; RULE; APPLICATION IN CASE AT BAR. It has to be conceded that the charter of the Laguna Lake Development Authority constitutes a special law. Republic Act No. 7160, the Local Government Code of 1991, is a general law. It is basic in statutory construction that the enactment of a later legislation which is a general law cannot be construed to have repealed a special law. It is a well settled rule in this jurisdiction that "a special statute, provided for a particular case or class of cases, is not repealed by a subsequent statute, general in its terms, provisions and application, unless the intent to repeal or alter is manifest, although the terms of the general law are broad enough to include the cases embraced in the special law. Where there is a conflict between a general law and a special statute, the special statute should prevail since it evinces the legislative intent more clearly than the general statute. The special law is to be taken as an exception to the general law in the absence of special circumstances forcing a contrary conclusion. This is because implied repeals are not favored and as much as possible, effect must be given to all enactments of the legislature. A special law cannot be repealed, amended or altered by a subsequent general law by mere implication. Thus, it has to be concluded that the charter of the Authority should prevail over the Local Government Code of 1991.

You are asked about the extent of the powers of a province over a city which is geographically situated in the same province. How will you respond? In particular, may the province set aside an ordinance of a city that is geographically situated in the province? What about the EO of the mayor of that city, may they be set aside by the Governor? May the resident of that city run for governer? ART. X,SECTION 12 (CONSTI). Cities that are highly urbanized, as determined by law, and component cities whose charters prohibit their voters from voting for provincial elective officials, shall be independent of the province. The voters of component cities within a province, whose charters contain no such prohibition, shall not be deprived of their right to vote for elective provincial officials.

KINDS OF CITIES Component City - inhabitants can vote for provincial candidates and can run for provincial elective posts = under the supervisory power of the province. Ordinances inactive is reviewed by the Province. Independent Component City independent in the sense that the charter prohibits the voters from voting for provincial elective posts = outside the supervisory power of province (Abella v Comelec); income does not matter; something to do with the charter in relation to whether or not the voters can vote for provincial candidates; even if the charter of Ormoc city mentions of prohibitions to vote, it shall include the idea of prohibition to run also for provincial elective posts. Highly urbanized City independent from province by reason of status = outside the supervisory power of the province; income matters (P50M for the last 2 years); if the city becomes highly urbanized, it only involves the process of conversion which means it does not require congressional act, entails application on the part of the city and submit that to the office of the president orders the conversion.

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

TERRITORIAL AND POLITICAL SUBDIVISIONS: Regular LGU: Provinces, cities, municipalities, barangays Autonomous Regions: Muslim Mindanao, Cordilleras - Art. X, sec. 1 (Constitution) The territorial and political subdivisions of the Republic of the Philippines are the provinces, cities, municipalities, and barangays. There shall be autonomous regions in Muslim Mindanao and the Cordilleras as hereinafter provided.

ABELLA V COMELEC - "the phrase 'shall not be qualified and entitled to vote in the election of the provincial governor and the members of the provincial board of the Province of Leyte' connotes two prohibitions one, from running for and the second, from voting for any provincial elective official."

Special LGU: Special Metropolitan Political Subdivision Art. X, Sec. 11 (Consti) The Congress may, by law, create special metropolitan political subdivisions, subject to a plebiscite as set forth in Section 10 hereof. The component cities and municipalities shall retain their basic autonomy and shall be entitled to their own local executives and legislative assemblies. The jurisdiction of the metropolitan authority that will hereby be created shall be limited to basic services requiring coordination.

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

Section 1 does not create local government units. It only constitutionally ensures the existence of these territorial and political units in our structure (Bernas). Hence, a law cannot, for example, abolish barangays.

CAN THERE BE A HIGHLY URBANIZED CITY THAT STILL VOTES FOR PROVINCIAL OFFICIALS? TAGALOG TERMS: CITY Sangguniang Panglungsod MUNICIPALITY Sangguniang Bayan PROVINCE Sangguniang Panlalawigan SEC. 452 - HIGLY URBANIZED CITY a) Cities with a minimum population of two hundred thousand (200,000) inhabitants as certified by the National Statistics Office, and within the latest annual income of at least Fifty Million Pesos (P50,000,000.00) based on 1991 constant prices, as certified by the city treasurer, shall be classified as highly urbanized cities. (b) Cities which do not meet above requirements shall be considered component cities of the province in which let us run with perseverance the race marked out for us. Let us fix our eyes on Jesus, the author and perfecter of our faith Heb 12:2

QUESTIONS: 10

they are geographically located. If a component city is located within the boundaries of two (2) or more provinces, such city shall be considered a component of the province of which it used to be a municipality. (c) Qualified voters of highly urbanized cities shall remain excluded from voting for elective provincial officials. Unless otherwise provided in the Constitution or this Code, qualified voters of independent component cities shall be governed by their respective charters, as amended, on the participation of voters in provincial elections. Qualified voters of cities who acquired the right to vote for elective provincial officials prior to the classification of said cities as highly-urbanized after the ratification of the Constitution and before the effectivity of this Code, shall continue to exercise such right. (Vested Right theory)

through appropriate ordinances, group themselves, consolidate, or coordinate their efforts, services, and resources for purposes commonly beneficial to them. In support of such undertakings, the local government units involved may, upon approval by the sanggunian concerned after a public hearing conducted for the purpose, contribute funds, real estate, equipment, and other kinds of property and appoint or assign personnel under such terms and conditions as may be agreed upon by the participating local units through Memoranda of Agreement. - The resultant consolidation would not be a new corporate body, and therefore, it does not have a personality. It cannot act as if it is a person who can act with juridical effects. - What are consolidated are not corporate personalities but only efforts, services and resource for purposes commonly beneficial to them in accordance with the law.

SPECIAL METROPOLITAN POLITICAL SUBDIVISIONS - created by congress and requires plebiscite - the component cities and municipalities shall retain their basic autonomy and shall be entitled to their own local executives and legislative assemblies - jurisdiction is limited to basic services requiring coordination.

REGIONAL DEVELOPMENT COUNCILS - To be established by the President and does not need authorization from congress - composed of local government officials, regional heads of departments and other government offices and representatives of NGOs within the region. - We need that for purposes of coordinating, assessing, evaluating and identifying and later on implementing regional developments in the locality usually sponsored by the national government. - Identifies possible projects in the region to be funded by the national government.

MMDA V BEL-AIR - MMDA is not a local government unit. It is not even a special metropolitan political subdivision because a plebiscite is needed and it is still to be created by congress as found in Sec. 11 art. X of Constitution. - The Court held that the MMDA does not have the capacity to exercise police power. Police power is primarily lodged in the National Legislature. However, police power may be delegated to government units. Petitioner herein is a development authority and not a political government unit. Therefore, the MMDA cannot exercise police power because it cannot be delegated to them. It is not a legislative unit of the government. Republic Act No. 7924 does not empower the MMDA to enact ordinances, approve resolutions and appropriate funds for the general welfare of the inhabitants of Manila. There is no syllable in the said act that grants MMDA police power. It is an agency created for the purpose of laying down policies and coordinating with various national government agencies, peoples organizations, nongovernmental organizations and the private sector for the efficient and expeditious delivery of basic services in the vast metropolitan area.

THE LGC OF 1991 - Constitutionally mandated (Art. X, Sec. 3, Consti) CONSTI ART. X, Section 3. The Congress shall enact a local government code which shall provide for a more responsive and accountable local government structure instituted through a system of decentralization with effective mechanisms of recall, initiative, and referendum, allocate among the different local government units their powers, responsibilities, and resources, and provide for the qualifications, election, appointment and removal, term, salaries, powers and functions and duties of local officials, and all other matters relating to the organization and operation of the local units. - Mandatory contents of the Code: o o o o o Responsive and accountable structure System of decentralization Mechanisms of recall, initiative and referendum Allocation of powers, responsibilities and functions of LGUs Qualifications, elections, etc. of elective officials

DAY 4 LOOSE FEDERATION SEC. 13, ART. X, CONSTITUTION LGU may group themselves their efforts, services, and resources for purposes commonly beneficial to them in accordance with law. HOW?

SOURCES OF THE CODE - the LGC of 1983 (BP 337) - Local tax code (PD 201) - The Real Property Tax Code (PD 464)

1. Through Ordinances - Barangay Justice Law (PD 1508) - 3 readings 2. Upon approval by the Sanggunian concerned, after lawful hearing, contribute funds and assets through MOA (Sec. 33, LGC) LGC Section 33. Cooperative Undertakings Among Local Government Units. - Local government units may, 11 SCOPE OF APPLICATION OF THE CODE - The code shall apply to: provinces, cities, municipalities, barangays, and other political subdivisions created by law

let us run with perseverance the race marked out for us. Let us fix our eyes on Jesus, the author and perfecter of our faith Heb 12:2

- It shall also apply to officials and offices of the national government as provided by the Code. What about provinces, cities, municipalities and barangays in the Autonomous Regions (ARs)? - LGC applies until AR has its own code.

of the Authority should prevail over the Local Government Code of 1991. POLITICAL LAW; LOCAL GOVERNMENT; REPUBLIC ACT NO. 7160; DOES NOT CONTAIN ANY EXPRESS PROVISION CATEGORICALLY REPEALING THE CHARTER OF THE LAGUNA LAKE DEVELOPMENT AUTHORITY. We hold that the provisions of Republic Act No. 7160 do not necessarily repeal the aforementioned laws creating the LagunaLake Development Authority and granting the latter water rights authority over Laguna de Bay and the lake region. The Local Government Code of 1991 does not contain any express provision which categorically expressly repeal the charter of the Authority. It has to be conceded that there was no intent on the part of the legislature to repeal Republic Act No. 4850 and its amendments. The repeal of laws should be made clear and expressed. LLDA HAS EXCLUSIVE JURISDICTION TO ISSUE PERMITS FOR THE ENJOYMENT OF FISHERY PRIVILEGES IN LAGUNA DE BAY TO THE EXCLUSION OF MUNICIPALITIES SITUATED THEREIN AND THE AUTHORITY TO EXERCISE SUCH POWERS AS ARE BY ITS CHARTER VESTED ON IT. This Court holds that Section 149 of Republic Act No. 7160, otherwise known as the Local Government Code of 1991, has not repealed the provisions of the charter of the Laguna Lake Development Authority, Republic Act No. 4850, as amended. Thus, the Authority has the exclusive jurisdiction to issue permits for the enjoyment of fishery privileges in Laguna de Bay to the exclusion of municipalities situated therein and the authority to exercise such powers as are by its charter vested on it. Removal from the Authorityof the aforesaid licensing authority will render nugatory its avowed purpose of protecting and developing the LagunaLake Region. Otherwise stated, the abrogation of this power would render useless its reason for being and will in effect denigrate, if not abolish, the Laguna Lake Development Authority. This, the Local Government Code of 1991 had never intended to do.

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 LGU, Devolution of powers, and General Welfare ordinances. - In case of doubt as to existence of power, resolved in favor of LGU. (vs. residual power doctrine) - But, tax ordinances are construed strictly against the LGU and liberally in favor of taxpayer. (tax exemption interpreted against the one claiming for tax exemption and liberally in favor of the government) - Where no law or jurisprudence applies, customs or traditions in the locality may be applied to resolve controversies.

EFFECTIVITY OF LGC - January 1, 1992 - Effects of Effectivity: (1) All tax ordinances of revenue measures of LGUs enacted before the LGC of 1991 shall continue to be in force and effect after the effectivity of the LGC, unless amended by the Sanggunian or inconsistent with or inconsistent with, or in violation of, the provisions of this Code. sec. 529 LGC - All general and special laws, acts, city charters, decrees, Eos, proclamations, and admin regulations (or parts thereof) that are inconsistent with any of the provisions of the Code are repealed or modified accordingly sec. 534 (f) LGC - Note: Implied Repeal is not favoured (LLDA case) STATUTORY CONSTRUCTION; CONFLICT BETWEEN A GENERAL LAW AND A SPECIAL LAW; RULE; APPLICATION IN CASE AT BAR. It has to be conceded that the charter of the Laguna Lake Development Authority constitutes a special law. Republic Act No. 7160, the Local Government Code of 1991, is a general law. It is basic in statutory construction that the enactment of a later legislation which is a general law cannot be construed to have repealed a special law. It is a well settled rule in this jurisdiction that "a special statute, provided for a particular case or class of cases, is not repealed by a subsequent statute, general in its terms, provisions and application, unless the intent to repeal or alter is manifest, although the terms of the general law are broad enough to include the cases embraced in the special law. Where there is a conflict between a general law and a special statute, the special statute should prevail since it evinces the legislative intent more clearly than the general statute. The special law is to be taken as an exception to the general law in the absence of special circumstances forcing a contrary conclusion. This is because implied repeals are not favored and as much as possible, effect must be given to all enactments of the legislature. A special law cannot be repealed, amended or altered by a subsequent general law by mere implication. Thus, it has to be concluded that the charter 12

CREATION, CONVERSION, DIVISION, MERGER, ABOLITION, SUBSTANTIAL CHANGE OF BOUNDARY A. Regular Political Subdivisions B. Autonomous Region C. Special Metropolitan Political Subdivisions D. Beginning of Corporate Existence

GENERAL REQUIREMENTS - law - Plebiscite - Compliance with criteria on income, Land and/or Population Income is constant in the creation of cities, municipalities and provinces but not in the case of barangays. 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.

LEAGUE OF CITIES CASES,

let us run with perseverance the race marked out for us. Let us fix our eyes on Jesus, the author and perfecter of our faith Heb 12:2

Facts: - 11 Congress (1998-2001) 57 bills pending conversion from municipalities to cities; approved 33 bills only - 12 Congress (2001-2004) RA 9009 (2001) increased income requirement from P20M to P100M annually. - 13 Congress (2004-2007) 16 of the 24 bills were approved and became laws, with exception provision. Legal issues: - Are the 16 Cityhood laws unconstitutional in the light of the ff. provision in the constitution? Sec. 10, Art. X. No province, city, municipality, or barangay shall be created, divided, merged, abolished or its boundary substantially altered, except in accordance with the criteria established in the local government code, and subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected. (emphasis added)
th th th

- Granted the MR of the 16 cities; reversed and set aside the 24 august 2010 resolution of SC. - Decided on the basic of SCs reasoning in the 21 Dec 2009 ruling that congress intent to exempt the 16 cities from the operation of RA 9009 should be respected.

LEAGUE OF CITIES V COMELEC 2008 - SEC. 10, ART. X of the 1987 constitution - the constitution is clear. The creation of local government units must follow the criteria established in the Local Government Code and not in any other law. - No other law, not even the charter of the city, can govern such creation. The clear intent of the Constitution is to insure that the creation of cities and other political units must follow the same uniform, nondiscriminatory criteria found solely in the Local Government Code. Any derogation or deviation from the criteria prescribed in the Local Government Code violates Section 10, Article X of the Constitution.

2008 LEAGE OF CITIES CASE REVERSED ON DEC. 21, 2009 - These criteria need not be embodied in the Local Government Code, albeit this code is the ideal repository to ensure, as much as possible, the element of uniformity. Congress can even, after making a codification, enact an amendatory law, adding to the existing layers of indicators earlier codified, just as efficaciously as it may reduce the same. - The amendatory RA 9009 upped the already codified income requirement from P20M to P100M. At the end of the day, the passage of amendatory laws is no different from the enactment of laws,i.e., the cityhood laws specifically exempting a particular political subdivision from the criteria earlier mentioned. Congress, in enacting the exempting law/s, effectively decreased the already codified indicators. - Petitioners theory that Congress must provide the criteria solely in the LGC and not in any other law strikes the Court as illogical. - it is startling however that petitioners do not question the constitutionality of RA 9009, as they in fact use said law as an argument for the alleged unconstitutionality of the cityhood law.

LEAGUE OF CITIES (AUG. 24, 2010) - Granted the motion of League of Cities of the Philippines and reinstated its November 18, 2008 decision declaring the 16 cityhood as unconstitutional.

LEAGUE OF CITIES (FEB. 15, 2011; APRIL 12, 2011)

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 Congress2001 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

13

let us run with perseverance the race marked out for us. Let us fix our eyes on Jesus, the author and perfecter of our faith Heb 12:2

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. During the 11 Congress, 57 bills seeking the conversion of municipalities into component cities were filed before the House of Representatives. However, Congress acted only on 33 bills. It did not act on bills converting 24 other municipalities into th cities. During the 12 Congress, R.A. No. 9009 became effective revising Section 450 of the Local Government Code. It increased the income requirement to qualify for conversion into a city from P20 million annual income to P100 million th locally-generated income. In the 13 Congress, 16 of the 24 municipalities filed, through their respective sponsors, individual cityhood bills. Each of the cityhood bills contained a common provision exempting the particular municipality from the 100 million income requirement imposed by R.A. No. 9009. Are the cityhood laws converting 16 municipalities into cities constitutional? SUGGESTED ANSWER: November 18, 2008 Ruling No. The SC (voting 6-5) ruled that the exemptions in the City Laws is unconstitutional because sec. 10, Art. X of the Constitution requires that such exemption must be written into the LGC and not into any other laws. The Cityhood Laws violate sec. 6, Art. X of the Constitution because they prevent a fair and just distribution of the national taxes to local government units. The criteria, as prescribed in sec. 450 of the LGC, must be strictly followed because such criteria prescribed by law, are material in determining the just share of local government units (LGUs) in national taxes. (League of Cities of the Philippines v. Comelec GR No. 176951, November 18, 2008) March 31, 2009 Ruling No. The SC denied the first Motion for Reconsideration. 7-5 vote. April 28, 2009 Ruling No. The SC En Banc, by a split vote (6-6), denied a second motion for reconsideration. December 21, 2009 Ruling Yes. The SC (voting 6-4) reversed its November 18, 2008 decision and declared as constitutional the Cityhood Laws or Republic Acts (RAs) converting 16 municipalities into cities. It said that based on Congress deliberations and clear legislative intent was that the then pending cityhood bills would be outside the pale of the minimum income requirement of PhP100 million that Senate Bill No. 2159 proposes; and RA 9009 would not have any retroactive effect insofar as the cityhood bills are concerned. The conversion of a municipality into a city will only affect its status as a political unit, but not its property as such, it added. The Court held that the favorable treatment accorded the sixteen municipalities 14
th

by the cityhood laws rests on substantial distinction. The Court stressed that respondent LGUs were qualified cityhood applicants before the enactment of RA 9009. To impose on them the much higher income requirement after what they have gone through would appear to be indeed unfair. Thus, the imperatives of fairness dictate that they should be given a legal remedy by which they should be allowed to prove that they have all the necessary qualifications for city status using the criteria set forth under the LGC of 1991 prior to its amendment by RA 9009. (GR No. 176951, League of Cities of the Philippines v. COMELEC; GR No. 177499, League of Cities of the Philippines v. COMELEC; GR No. 178056, League of Cities of the Philippines v. COMELEC, December 21, 2009) NOTE: The November 18, 2008 ruling already became final and executory and was recorded in the SCs Book of Entries of Judgments on May 21, 2009.) August 24, 2010 Ruling No. The SC (voting 7-6) granted the motions for reconsideration of the League of Cities of the Philippines (LCP), et al. and reinstated its November 18, 2008 decision declaring unconstitutional the Cityhood Laws or Republic Acts (RAs) converting 16 municipalities into cities. Undeniably, the 6-6 vote did not overrule the prior majority en banc Decision of 18 November 2008, as well as the prior majority en banc Resolution of 31 March 2009 denying reconsideration. The tie-vote on the second motion for reconsideration is not the same as a tie-vote on the main decision where there is no prior decision, the Court said. In the latest resolution, the Court reiterated its November 18, 2008 ruling that the Cityhood Laws violate sec. 10, Art. X of the Constitution which expressly provides that no cityshall be createdexcept in accordance with the criteria established in the local government code. It stressed that while all the criteria for the creation of cities must be embodied exclusively in the Local Government Code, the assailed Cityhood Laws provided an exemption from the increased income requirement for the creation of cities under sec. 450 of the LGC. The unconstitutionality of the Cityhood Laws lies in the fact that Congress provided an exemption contrary to the express language of the Constitution.Congress exceeded and abused its law-making power, rendering the challenged Cityhood Laws void for being violative of the Constitution, the Court held. The Court further held that limiting the exemption only to the 16 municipalities violates the requirement that the classification must apply to all similarly situated. Municipalities with the same income as the 16 respondent municipalities cannot convert into cities, while the 16 respondent municipalities can. Clearly, as worded the exemption provision found in the Cityhood Laws, even if it were written in Section 450 of the Local Government Code, would still be unconstitutional for violation of the equal protection clause. (GR No. 176951,League of Cities of the Philippines v. Comelec; GR No. 177499, League of Cities of the Philippines v. Comelec; GR No. 178056, League of Cities of the Philippines v. Comelec, August 24, 2010) February 15, 2011 Ruling Yes, the laws are constitutional. The February 15, 2011 resolution is the fourth ruling since the High Court first resolved the Cityhood case in 2008. April 12, 2011Ruling Yes! Its final. The 16 Cityhood Laws are constitutional. We should not ever lose sight of the fact that the 16 cities covered by the Cityhood Laws not only had conversion bills pending during the 11th Congress, but have also complied with the requirements of the [Local Government Code] LGC prescribed prior to its amendment by RA No. 9009. Congress undeniably gave these cities all the considerations that justice and fair play demanded. Hence, this Court should do no less by stamping its imprimatur to the clear and unmistakable legislative intent and by duly recognizing the certain collective wisdom of Congress, the SC said.

let us run with perseverance the race marked out for us. Let us fix our eyes on Jesus, the author and perfecter of our faith Heb 12:2

The Court stressed that Congress clearly intended that the local government units covered by the Cityhood Laws be exempted from the coverage of RA 9009, which imposes a higher income requirement of PhP100 million for the creation of cities. The Court reiterated that while RA 9009 was being deliberated upon, the Congress was well aware of the pendency of conversion bills of several municipalities, including those covered by the Cityhood Laws. It pointed out that RA 9009 took effect on June 30, 2001, when the 12th Congress was incipient. By reason of the clear legislative intent to exempt the municipalities covered by the conversion bills pending during the 11th Congress, the House of Representatives adopted Joint Resolution No. 29 entitled Joint Resolution to Exempt Certain Municipalities Embodied in Bills Filed in Congress before June 30, 2001 from the coverage of Republic Act No. 9009. However, the Senate failed to act on the said Joint Resolution. Even so, the House readopted Joint Resolution No. 29 as Joint Resolution No. 1 during the 12th Congress, and forwarded the same for approval to the Senate, which again failed to prove it. Eventually, the conversion bills of respondents were individually filed in the Lower House and were all unanimously and favorably voted upon. When forwarded to the Senate, the bills were also unanimously approved. The acts of both Chambers of Congress show that the exemption clauses ultimately incorporated in the Cityhood Laws are but the express articulations of the clear legislative intent to exempt the respondents, without exception, from the coverage of RA No. 9009. Thereby, RA 9009, and, by necessity, the LCG, were amended, not by repeal but by way of the express exemptions being embodied in the exemption clauses. The Court held that the imposition of the income requirement of P100 million from local sources under RA 9009 was arbitrary. While the Constitution mandates that the creation of local government units must comply with the criteria laid down in the LGC, it cannot be justified to insist that the Constitution must have to yield to every amendment to the LGC despite such amendment imminently producing effects contrary to the original thrusts of the LGC to promote autonomy, decentralization, countryside development, and the concomitant national growth.

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.

REGULAR POLITICAL SUBDIVISIONS MANNER OF creation and conversion: 1. For province, city, municipality, and other political subdivision: - by LAW to be enacted by Congress (sec. 6, LGC) [question? Including PDs] 2. For Barangay: - By ORDINANCE but does not prohibit creation by LAW (Q: need not be enacted by congress?) under Sec. 385. Manner of Creation. - A barangay may be created, divided, merged, abolished, or its boundary substantially altered, by law or by an ordinance of the sangguniang panlalawigan or panlungsod, subject to approval by a majority of the votes cast in a plebiscite to be conducted by the COMELEC in the local government unit or units directly affected within such period of time as may be determined by the law or ordinance creating said barangay. In the case of the creation of barangays by the sangguniang panlalawigan, the recommendation of the sangguniang bayan concerned shall be necessary. Also, if by SP, the SB shall recommend (Sec. 385)

PLEBISCITE REQUIREMENT: QUESTIONS: - Who shall participate? - What is meant by units affected? - In what sense affected? Reduction in territory, population, income; To that extent, this inhabitants in the mother province will be affected and therefore they should participate in the plebiscite. - How is it different from the manner of creating autonomous regions?

CAN AN ASSOCIATED STATE (2009 BAR) BE ESTABLISHED IN THE PHILIPPINES? - PROVINCE OF NORTH COTABATO V GRP (2008) - The concept of an associated state is not sanctioned by the Constitution. Under Art. X, the following are the only recognized political subdivisions in the Philippines: Provinces, Cities, Municipalities, Barangays and the Autonomous Regions of Muslim Mindanao and the Cordilleras. 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 15

TAN V COMELEC (1986): 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? In interpreting the above provision, the Supreme Court held that whenever a province is created, divided or merged and there is substantial alteration of the boundaries, "the approval of a majority of votes in the plebiscite in the unit or units affected" must first be obtained. The creation of the proposed new province of Negros del Norte will necessarily result in the division and alteration of the existing boundaries of Negros Occidental. "Plain and simple logic will demonstrate that two political units would be affected. The first would be the parent province of Negros Occidental because its boundaries would be substantially altered. The other affected entity would be composed of those in the area subtracted from the mother province to constitute the proposed province of Negros del Norte." "...when the Constitution speaks of "the unit or units affected" it means all of the people of the municipality if the municipality is to be divided such as in the case at bar or of the people of two or more municipalities if there be a merger. I see no ambiguity in the Constitutional

let us run with perseverance the race marked out for us. Let us fix our eyes on Jesus, the author and perfecter of our faith Heb 12:2

provision." Consequently, the Supreme Court pronounced that the plebscite held on January 3, 1986 has no legal effect for being a patent nullity. "WHEREFORE, Batas Pambansa Blg. 885 is hereby declared unconstitutional. The proclamation of the new province of Negros del Norte, as well as the appointment of the officials thereof are also declared null and void. 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.

PROVINCE: INCOME AND POPULATION OR LAND AREA

TABULARIZATION OF SPECIFIC REQUIRMENTS: LGU Created Income Population 2,000 but 5,000 for Metro Manila and highly urbanized cities 25,000, and 150,000 or Land area

Barangay

No minimum requirement

No minimum requirement

Municipality Component City Highly Urbanized City Province

P2.5 million P100 million

50 sq.km 100 sq.km. No minimum requirement 2,000 sq.km.

P50 million

200,000

P20 million

250,000 or

COMMON STANDARDS FOR COMPLIANCE OF CRITERIA: LAND AREA: - comply with area requirement, unless and island;

2004 BAR EXAM VII. Madako is a municipality composed of 80 barangays, 30 west of Madako River and 50 east thereof. The 30 western barangays, feeling left out of economic initiatives, wish to constitute themselves into new and separated town to be called Masigla. A. Granting the Masiglas proponents succeed to secure a law in their favor, would a plebiscite be necessary or not? If it is necessary, who should vote or participate in the plebiscite?

- must be contiguous, unless 1) 2 or more islands, or 2) separated by chartered cities or cities which do not contribute to the income of province (for province and cities) sec. 7 LGC

NAVARRO V ERMITA 2010 PAR. 2 OF ART. 9 of the Rules and Regulations Implementing the Local Government Code of 1991, which states that the land area requirement shall not apply where the proposed province is composed of one (1) 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. Section 461. Requisites for Creation. (a) A province may be created if it has an average annual income, as certified by the Department of Finance, of not less than Twenty million pesos (P20,000,000.00) based on 1991 constant prices and either of the following requisites: (i) a contiguous territory of at least two thousand (2,000) square kilometers, as certified by the Lands Management Bureau; or (ii) a population of not less than two hundred fifty thousand (250,000) inhabitants as certified by the National Statistics Office: Provided, That, the creation thereof shall not reduce the land area, population, and income of the original unit or units at the time of said creation to less than the minimum requirements prescribed herein. (b) The territory need not be contiguous if it comprise two (2) or more islands or is separated by a chartered

CRITERIA FOR CREATION AND CONVERSION: 1. INCOME (C/O DEPT. OF FINANCE) 2. POPULATION (C/O NSO) 3. LAND AREA (C/O DENR) Sec. 7, LGC Note: the criteria call for questions of facts. Findings of facts by administrative agencies are binding and conclusive upon courts unless there is grave abuse of discretion or clear mistake of facts. Hence, findings of facts by the DOF, NSO, and DENR deserve great respect, if not finality, and also enjoy presumption of regularity being acts of government agencies.

SPECIFIC CRITERIA: BARANGAYS: POPULATION MUNICIPALITIES: INCOME, POPULATION, AND LAND AREA Component Cities: INCOME, POPULATION, OR LAND AREA Highly Urbanized Cities: INCOME AND POPULATION

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let us run with perseverance the race marked out for us. Let us fix our eyes on Jesus, the author and perfecter of our faith Heb 12:2

city or cities which do not contribute to the income of the province. (c) The average annual income shall include the income accruing to the general fund, exclusive of special funds, trust funds, transfers and non-recurring income.

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?

REVERSED IN APRIL 12, 2011! - SC, through J. Nachura, ruled that congress intended to apply the exemption on land area requirements enjoyed by municipalities and cities which have islands as territories to the Province (Province of Dinagat). - Note of J. Carpios Dissent that the majority opinion will allow the creation of a province with only 1 unit (say a municipality) instead of various component LGUs.

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?

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.

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?

Ave. annual income = income accruing to the general fund (regular), exclusive of special funds, trust funds, transfers, and non-recuriing income. INCLUDE IRA? ALVAREZ V GUINGONA - However, in the case of conversion of a municipality into a city or a cluster of barangays to be informed into a new city, RA 9009, enacted on June 30, 2001 and amending Sec. 450 of the Code, IRAs are no longer included in the computation of the annual income for purposes of complying with the income requirement. Income refers to locally generated income. ISSUE: Whether or not the IRA forms part in the computation of income of LGUs. HELD: YES. Section 306 (i): Income is defined as all revenues and receipts collected or received forming the gross accretions of funds of the LGU. Thus, IRAs are items of income because they form part of the gross accretion of the funds of the LGU, The IRAS regularly and automatically accrue to the local treasury without need of any further action on the part of the local government unit. They constitute income which the local government can invariably rely upon as the source of much needed funds. Section 450 (c ): Average Annual Income shall include the income accruing to the general fund, exclusive of special funds, transfers and non recurring income. IRAs are a regular, recurring item of income. There is no basis to classify the same as special fund of transfer, since IRAs have a technical definition and meaning all its own as used in the Local Government Code that unequivocally makes it distinct from special funds of transfers referred to when the Code speaks of funding support from the national government, its instrumentalities and government owned or controlled corporations. 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

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 should be properly identified by metes and bounds (sec. 7) (why?) powers of the LGU can only be exercised within his territorial jurisdiction. - Few exceptions, ordinances and acts of the LGU even extend outside of its territorial jurisdiction on matters that affect for example water supply, which the source is found in other LGU. (extraterritorial jurisdiction) With technical descriptions? See: Mariano V Comelec the true test is whether or not the description of boundary will cause territorial confusion. Otherwise, requirement is substantially complied with. 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.

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let us run with perseverance the race marked out for us. Let us fix our eyes on Jesus, the author and perfecter of our faith Heb 12:2

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.

- Proper party and nature of challenge: 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.

MUN. OF MALABANG V BENITO - 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.

PROCEDURE IN CREATION AND CONVERSION. A. CREATION:

AQUINO III V COMELEC (2010) - 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 highlyurbanized city because under the Code HUC only requires 50 million. Now if you are going to create a city that should already be a highly-urbanized 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?

1. PETITION by the prospective units in a form of resolution 2. Comments on the petition by the Sanggunian of the mother unit to be submitted to congress. 3. Attachment of supporting documents to the petition consisting of certificates of DOF, NSO, and LMB (DENR) 4. Enactment of Law by congress - bill of local application to be submitted to House of Representatives. 5. Plebiscite (after law takes effect) ART. 9-11 IRR

B. CONVERSION FROM COMPONENT CITY TO HUC 1. RESOLUTION by the interested unit (by the SP, duly approved and endorsed by the mayor) to be submitted to the office of the president with proofs of compliance with income and population requirements. 2. Declaration of conversion by president 3. Plebiscite

DAY 5 DIVISION AND MERGER - REQUIREMENTS: same as conversion and creation - CONDITIONS AND LIMITATIONS: should not reduce the (1) land area, population, and income to less than the minimum requirements under the Code, and (2) income classification of the original LGU (mother unit) affected. (Sec. 8, LGC)

HOW TO CHALLENGE EXISTENSE OF LGU - QUO WARRANTO 18

SUBSTANTIAL ALTERATION OF BOUNDARIES

let us run with perseverance the race marked out for us. Let us fix our eyes on Jesus, the author and perfecter of our faith Heb 12:2

REQUIREMENTS: Same as creation and conversion, except that the criteria on income and population are not factors to consider. But, the alteration of the boundaries should not also reduce the minimum requirements on land area.

There shall be created autonomous regions in Muslim Mindanao and in the Cordilleras consisting of provinces, cities, municipalities, and geographical areas sharing common and distinctive historical and cultural heritage, economic and social structures, and other relevant characteristics within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines. Distinguish the manner of creation between regular political subdivisions and AR Regular LGU: majority of Total votes of all units Vs. ARs: majority of the votes in each unit

ABOLITION GROUND: When its income, population, or land area has been irreversible reduce to less than the minimum standards as certified by the national agencies concerned. (Sec. 9, LGC) Note: irreversible reduction to less than the minimum standards only offers a ground for abolition. Hence, a further act (law or ordinance) is still required to effect abolition. [DILG Opinion No. 17 Series of 2006]

Read: Abbas V Comelec, Ordillo V Comelec SARANGANI V COMELEC 2000 (obiter dictum) - Upon review of the records, the Court finds that the COMELEC had exerted efforts to investigate the facts and verified that there were no public or private buildings in the said place, hence its conclusion that there were no inhabitants. If there were no inhabitants, a fortiori, there can be no registered voters, or the registered voters may have left the place. It is not impossible for a certain barangay not to actually have inhabitants considering that people migrate. A barangay may officially exist on record and the fact that nobody resides in the place does not result in its automatic cessation as a unit of local government. Under the Local Government Code of 1991, the abolition of a local government unit (LGU) may be done by Congress in the case of a province, city, municipality, or any other political subdivision. In the case of a barangay, except in Metropolitan Manila area and in cultural communities, it may be done by the Sangguniang Panlalawigan or Sangguniang Panglungsod concerned subject to the mandatory requirement of a plebiscite conducted for the purpose in the political units affected. Section 9. Abolition of Local Government Units. - A local government unit may be abolished when its income, population, or land area has been irreversibly reduced to less than the minimum standards prescribed for its creation under Book III of this Code, as certified by the national agencies mentioned in Section 7 hereof to Congress or to the sangguniang concerned, as the case may be. The law or ordinance abolishing a local government unit shall specify the province, city, municipality, or barangay with which the local government unit sought to be abolished will be incorporated or merged. Section 10. Plebiscite Requirement. - No creation, division, merger, abolition, or substantial alteration of boundaries of local government units shall take effect unless approved by a majority of the votes cast in a plebiscite called for the purpose in the political unit or units directly affected. Said plebiscite shall be conducted by the Commission on Elections (COMELEC) within one hundred twenty (120) days from the date of effectivity of the law or ordinance effecting such action, unless said law or ordinance fixes another date.

ARMM ELECTIONS LOCAL Although called regional elections, the ARMM elections should be included among the elections to be synchronized as it is a local election based on the wording and structure of the Constitution (Kida V Senate, Oct. 18, 2011) - only 2 kinds of election in our system, national and local No Hold-over for ARMM officials (supra.) - instances when hold-over is not allowed: 1) express prohibition for hold-over, 2) implied prohibition, ex. if the public officer is serving the office under a term, meaning at the end of your term, you have to step down. - the feasible option is for the president to appoint OIC. - term of office of all LGU officials is 3 years, 3 term limit except for barangay officials. Date for ARMM elections can only be set by congress, not by the Comelec. (supra.) - Read Kida V Senate ruling

DIFFERENT MERGERS/COMBINATIONS INVOLVING LGUS - merger of LGU (legislative, law + plebiscite) - SMPS consisting of LGU (legislative, law + plebiscite) - merger of LGU to constitute the AR (legislative, law + plebiscite) - merger of ADM. REGIONS (executive, traditionally because part and essential of supervisory power) Ex. regional offices of the national government ex. DILG 7, DENR 7 etc.

AUTONOMOUS REGION MANNER OF CREATION: law, plebiscite Dual Purpose of Plebiscite: 1. Determine will of people whether to create AR 2. Which LGU shall form part of AR - only those with majority votes provided more than 1 - Sec. 15 art. 10, 1987 Consti: 19

BEGINNING OF CORPORATE EXISTENSE UNDER THE LGC OF 1991 1) As fixed by the law or ordinance (usually, effectivity of law) creating the LGU, or 2) Election and Qualifications of Chief Executive and majority of Sanggunian members (when not fixed by law or ordinance) Sec. 14, LGC Section 14. Beginning of Corporate Existence. - When a new local government unit is created, its corporate existence shall commence upon the election and qualification of its chief executive and a majority of the

let us run with perseverance the race marked out for us. Let us fix our eyes on Jesus, the author and perfecter of our faith Heb 12:2

members of its sanggunian, unless some other time is fixed therefor by the law or ordinance creating it. upon election upon a valid proclamation Note: Mejia case (1948): LGU begins to exist upon the effectivity of the law creating it; not anymore true.

(b) A complaint against any elective official of a municipality shall be filed before the sangguniang panlalawigan whose decision may be appealed to the Office of the President; and (c) A complaint against any elective barangay official shall be filed before the sangguniang panlungsod or sangguniang bayan concerned whose decision shall be final and executory. 2. Provincial Governor/HUC Mayor is mandated to furnish the President copies of his/her EOs within 72 hours from issuance (Sec. 455 (xii) and 465 (xii)) for Review;

IV. POWER RELATIONS INVOLVING LGUS LGUS AND NATIONAL GOVERNMENT - LGUs are agent of the State Read Magtajas V Pryce ruling

DRILON V LIM - Sec. 187 of the LGC, allows the secretary of justice to set aside revenue ordinances of local government units on grounds of 1) illegal, 2) unconstitutional. It was questioned by city mayor of manila - SC: Section 187 authorizes the Secretary of Justice to review only the constitutionality or legality of the tax ordinance and, if warranted, to revoke it on either or both of these grounds. When he alters or modifies or sets aside a tax ordinance, he is not also permitted to substitute his own judgment for the judgment of the local government that enacted the measure. Secretary Drilon did set aside the Manila Revenue Code, but he did not replace it with his own version of what the Code should be. He did not pronounce the ordinance unwise or unreasonable as a basis for its annulment. He did not say that in his judgment it was a bad law. What he found only was that it was illegal. All he did in reviewing the said measure was determine if the petitioners were performing their functions is accordance with law, that is, with the prescribed procedure for the enactment of tax ordinances and the grant of powers to the city government under the Local Government Code. As we see it, that was an act not of control but of mere supervision. Section 187. Procedure for Approval and Effectivity of Tax, Ordinances and Revenue Measures; Mandatory Public Hearings. - The procedure for approval of local tax ordinances and revenue measures shall be in accordance with the provisions of this Code: Provided, That public hearings shall be conducted for the purpose prior to the enactment thereof: Provided, further, That any question on the constitutionality or legality of tax ordinances or revenue measures may be raised on appeal within thirty (30) days from the effectivity thereof to the Secretary of Justice who shall render a decision within sixty (60) days from the date of receipt of the appeal: Provided, however, That such appeal shall not have the effect of suspending the effectivity of the ordinance and the accrual and payment of the tax, fee, or charge levied therein: Provided, finally, That within thirty (30) days after receipt of the decision or the lapse of the sixty-day period without the Secretary of Justice acting upon the appeal, the aggrieved party may file appropriate proceedings with a court of competent jurisdiction.

LGUs AND SUPREME COURT - LGUs acts are subject to Judicial Review Both Ordinary judicial review and Expanded Certiorari jurisdiction (Expanded Judicial Review) Sec. 4 (2) of Article VIII of the Constitution: All cases involving the constitutionality of a treaty, international or executive agreement, or law, which shall be heard by the Supreme Court en banc, and all other cases which under the Rules of Court are required to be heard en banc, including those involving the constitutionality, application, or operation of presidential decrees, proclamations, orders, instructions, ordinances, and other regulations, shall be decided with the concurrence of a majority of the Members who actually took part in the deliberations on the issues in the case and voted thereon.

LGUS AND PRESIDENT - President exercise General Supervision over LGUs - The president shall exercise general supervision over local government units, under Sec. 4 (Constitution) and Sec. 25 (LGC) and autonomous regions under Sec. 16 (Constitution) - General Supervision essentially means that the president shall ensure that laws are faithfully executed and that LGU acts are within the scope of their prescribed powers and functions. - Sec. 4 (Art. X) of the Constitution and Sec. 25 of the LGC recognize 2 levels of supervision that the President exercises Direct or Indirect. 1. Direct: Provinces, HUC, Independent Component Cities 2. Indirect: Component Cities, Municipalities (because through the Province to which these belong) and Barangay (through the Municipalities or cities which it belongs) - Some manifestations of Direct Supervision over Provinces, HUC, and ICC include: 1. Power of the President to discipline local officials of provinces and cities (Sec. 61, LGC) and impose preventive suspension (60 days for single offense, 90 days maximum) during the pendency of an administrative case against them (Sec. 63, LGC) Section 61. Form and Filing of Administrative Complaints. - A verified complaint against any erring local elective official shall be prepared as follows: (a) A complaint against any elective official of a province, a highly urbanized city, an independent component city or component city shall be filed before the Office of the President;

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

NATIONAL LIGA NG BARANGAY V PAREDES (2004)

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let us run with perseverance the race marked out for us. Let us fix our eyes on Jesus, the author and perfecter of our faith Heb 12:2

- The DILG (as alter ego of the President) can exercise general supervision over the Liga ng mga barangays. The Liga is an aggregation of barangays which are in turn represented therein by their respective punong barangays. The representatives of the Liga sit in an ex officio capacity at the municipal, city and provincialsanggunians. As such, they enjoy all the powers and discharge all the functions of regular municipal councilors, city councilors or provincial board members, as the case may be. Thus, the Liga is the vehicle through which the barangayparticipates in the enactment of ordinances and formulation of policies at all the legislative local levels higher than thesangguniang barangay, at the same time serving as the mechanism for the bottom-to-top approach of development. - But, the DILG went beyond its general supervision power when it nullified the results of the Liga elections and promulgated DILG memorandum Circular No. 97193 dated 11 August 1997, where he laid down the supplemental guidelines for the 1997 synchronized elections of the provincial and metropolitan chapters and for the election of the national chapter of the Liga ng mga Barangay; scheduled dates for the new provincial, metropolitan andnational chapter elections; and appointed respondent Rayos as president of LigaCaloocan Chapter. - As the entity exercising supervision over the Liga ng mga Barangay, the DILGs authority over the Liga is limited to seeing to it that the rules are followed, but it cannot lay down such rules itself, nor does it have the discretion to modify or replace them. In this particular case, the most that the DILG could do was review the acts of the incumbent officers of the Liga in the conduct of the elections to determine if they committed any violation of the Liga's Constitution and By-laws and its implementing rules. If the National Liga Board and its officers had violated Liga rules, the DILG should have ordered the Liga to conduct another election in accordance with the Liga's own rules, but not in obeisance to DILG-dictated guidelines. Neither had the DILG the authority to remove the incumbent officers of the Liga and replace them, even temporarily, with unelected Liga officers. Like the local government units, the Liga ng mga Barangay is not subject to control by the Chief Executive or his alter ego.

VII, Section 12, of RA 9054. In turn, Acting Governor Adiong named the then Speaker of the ARMM Regional Assembly, petitioner Sahali-Generale, Acting ARMM Vice-Governor. In short, the DILG Secretary did not take over the administration or operations of the ARMM.

PNP local, domestic concerns, common crimes such as murder, robbery, kidnapping, etc, ordinary police work on which the operational control and supervision is vested upon the local chief executive AFP on matters of national defense, territorial integrity, national security; to solve a domestic problem, you need the president to call out the AFP *when public safety requires it (in the declaration of martial law) grounds for martial law are invasion, rebellion, either ground must be when public safety requires it; as thought of by the experts, martial law is declared if in the particular condition, civil authorities or organs of the government can no longer function. If the civil authorities are not functioning, thats when the president should declare martial law, precisely because the president may issue orders so that the LG can continue to function. If the LG is overthrown, the mayor for example must have been singled out of his office, sanggunian members cannot pass ordinances, so the president can order that there should be fixing of curfew, instead of ordinance because theres no more sanggunian, in fact, Justice Mendoza said under pain of arrest if you dont comply. Think about it and ask the question whether it amounts to control because it is now the president who orders and pass rules to run the LG. In this case of Ampatuan, SC some sort of made a reasoning that there was no control because there was no take over because after Ampatuan was arrested, the Vice Governor, assumed the office by operation of law under the rules of succession by the LGC.

JAMAR KULAYAN V TAN II.Only the President is vestedVwith calling-out powers, as theVcommander-in-chief of the Republic i.One executive, one commander-in-chief

GANZON V CA (1991) - The constitution did not however, intend, for the sake of local autonomy, to deprive the legislature of all authority over municipal corporations, in particular, concerning discipline. - Autonomy, does not, after all, contemplate making mini-states out of local government units, as in the federal governments of the United States of America (or Brazil or Germany), although Jefferson is said to have compared municipal corporations euphemistically to 26 "small republics." Autonomy, in the constitutional sense, is subject to the guiding star, though not control, of the legislature, albeit the legislative responsibility under the Constitution and as the "supervision clause" itself suggest-is to wean local government units from over-dependence on the central government. - The power or the authority to discipline LG officials, is not incompatible with supervisory powers. It does not involve substitution of judgment, its just telling you to follow the law.

As early as Villena v. Secretary of Interior, 32 it has already been established that there is one repository of executive powers, and that is the President of the Republic. This means that when Section 1, Article VII of the Constitution speaks of executive power, it is granted to the President and no one else. 33 As emphasized by Justice Jose P. Laurel, in hisponencia in Villena: With reference to the Executive Department of the government, there is one purpose which is crystal-clear and is readily visible without the projection of judicial searchlight, and that is the establishment of a single, not plural, Executive. The first section of Article VII of the Constitution, dealing with the Executive Department, begins with the enunciation of the principle that "The executive power shall be vested in a President of the Philippines." This means that the President of the Philippines is the Executive of the Government of the Philippines, and no other. 34 Corollarily, it is only the President, as Executive, who is authorized to exercise emergency powers as provided under Section 23, Article VI, of the Constitution, as well as what became known as the calling-out powers under Section 7, Article VII thereof. ii.The exceptional character of VCommander-in-Chief powers dictate that theyVare exercised by one president Springing from the well-entrenched constitutional precept of One President is the notion that there are certain acts which, by their very nature, may only be performed by the president as the Head of the State. One of these acts or prerogatives is the bundle of Commander-in-Chief powers to which the "calling-out"

DAY 6 AMPATUAN V PUNO (read ruling) DILG Secretary did not take over control of the powers of the ARMM. After law enforcement agents took the Governer of ARMM into custody for alleged complicity in the Maguindanao massacre, the ARMM Vice-Governor, Adiong, assumed the vacated post on December 10, 2009 pursuant to the rule on succession found in Article 21

let us run with perseverance the race marked out for us. Let us fix our eyes on Jesus, the author and perfecter of our faith Heb 12:2

powers constitutes a portion. The President's Emergency Powers, on the other hand, is balanced only by the legislative act of Congress, as embodied in the second paragraph of Section 23, Article 6 of the Constitution: aIETCA Article 6, Sec 23(2).In times of war or other national emergency, the Congress may, by law, authorize the President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof. 35 Article 7, Sec 18.The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it. The Congress, if not in session, shall, within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without need of a call. 36 The power to declare a state of martial law is subject to the Supreme Court's authority to review the factual basis thereof. 37 By constitutional fiat, the calling-out powers, which is of lesser gravity than the power to declare martial law, is bestowed upon the President alone. As noted in Villena, "(t)here are certain constitutional powers and prerogatives of the Chief Executive of the Nation which must be exercised by him in person and no amount of approval or ratification will validate the exercise of any of those powers by any other person. Such, for instance, is his power to suspend the writ of habeas corpus and proclaim martial law . . . . 38

and fees shall accrue to the LGU. Does this mean that the power to tax of the LGU is inherent? The question is relevant because you want to know the extent of the power of congress to control the power to tax because if it is not inherent and therefore delegated and so you can say that that power may be taken away from the LGU, if you say it is inherent then congress cannot take that away. Bernas made an interpretation that it is not conferment of power, it is just a guarantee of the general power to tax but the specific power to tax is still of statutory origin and therefore delegated. If you look at the LGC of 1991, it confers LGU specific powers to tax, certain taxable objects, transaction, etc so when it enumerated certain local taxes, that the LG can collect like real property tax, community tax, provisional tax, transfer tax, franchise tax, fees and charges, amusement tax, so these are local taxes, as enumerated these are of statutory origin which means while congress confers specific power to tax and therefore congress can take it back, congress however cannot absolutely bar or prohibit all LGU from exercising power to tax. If a law is passed withdrawing all conferment of specific powers to tax to the effect that LGU cannot anymore impose tax, that cannot be done because that will violate sec. 5, but if you take away 1 specific power to tax, for example franchise tax, that can be done.

MOTHER LGU AND COMPONENT LGU - Mother LGU reviews acts of component LGU - Provinces with respect to component cities and municipalities, and cities and municipalities with respect to component barangays shall ensure that the acts of their component units are within the scope of their prescribed powers and functions. (whether or not ultra vires).

*BAR EXAM question: A municipality, passed and ordinace authorizing the mayor to initiate expropriation proceedings against a private property but the property owner, try to raise the expropriation, in fact he tried to influence the member of the sangguniang bayan not to pass the ordinance in the first place but he failed. And so the ordinance was passed. The next step is that the ordinance goes to the reviewing mother sangguniang, if its a sangguniang bayan it goes to the sangguniang panlalawigan or the provincial board, there the private property owner, successfully convinced the members of the sannguniang board to oppose the expropriation. So what the provincial board did was to reject and set aside the ordinance. Was the act of the sangguniang panlalawigan valid? Answer: As can be gleaned from the facts given, the authority of the reviewing sangguniang is only to see to it the act of the component LGU is within the prescribed powers and functions. The issue here is the power to expropriate, the relevant question therefore is does the municipal board or the sangguniang bayan have the power to expropriate, under sec. 19 of the LGC of 1991, Eminent Domain. - A local government unit may, through its chief executive and acting pursuant to an ordinance, exercise the power of eminent domain for public use, or purpose or welfare for the benefit of the poor and the landless, upon payment of just compensation, pursuant to the provisions of the Constitution and pertinent laws: Provided, however, That the power of eminent domain may not be exercised unless a valid and definite offer has been previously made to the owner, and such offer was not accepted: Provided, further, That the local government unit may immediately take possession of the property upon the filing of the expropriation proceedings and upon making a deposit with the proper court of at least fifteen percent (15%) of the fair market value of the property based on the current tax declaration of the property to be expropriated: Provided, finally, That, the amount to be paid for the expropriated property shall be determined by the proper court, based on the fair market value at the time of the taking of the property, LGU have the power to expropriate, that being the case, it is not therefor outside the powers and function, (ergo, therefore, consequently, thus) the act of the

LGU and CONGRESS - LGUs derive existence and powers from Congress *So when we talk about local powers, we will be talking about taxation, police power and eminent domain. Are these powers delegated, inherent? These powers are merely delegated power, they are not therefore inherent powers but a question had been asked when sec. 5, Art. X had been introduced. - MAGTAJAS case - Under Sec. 5, Art. X (Constitution), however, the general power to tax of LGUs is not conferred by law but guaranteed by the Constitution. Only the specific power to tax is statutory and subject to guidelines and limitations as congress may provide. Art. X. SECTION 5. Each local government unit shall have the power to create its own sources of revenues and to levy taxes, fees, and charges subject to such guidelines and limitations as the Congress may provide, consistent with the basic policy of local autonomy. Such taxes, fees, and charges shall accrue exclusively to the local governments. *SC held that the power to tax is not inherent in the LGU, however under the 1987 constitution, LGU can now impose taxes, charges and fees and that these taxes 22

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sangguniang panlalawigan is improper because it set aside an exercise that is well within the power of the Sangguniang Bayan.

or sanggunian bayan on the ground that it is ultra vires or prejudicial to the public welfare, stating his reasons therefor in writing. (b) The local chief executive, except the punong barangay, shall have the power to veto any particular item or items of an appropriations ordinance, an ordinance or resolution adopting a local development plan and public investment program, or an ordinance directing the payment of money or creating liability. In such a case, the veto shall not affect the item or items which are not objected to. The vetoed item or items shall not take effect unless the sanggunian overrides the veto in the manner herein provided; otherwise, the item or items in the appropriations ordinance of the previous year corresponding to those vetoed, if any, shall be deemed reenacted. (c) The local chief executive may veto an ordinance or resolution only once. The sanggunian may override the veto of the local chief executive concerned by two-thirds (2/3) vote of all its members, thereby making the ordinance effective even without the approval of the local chief executive concerned. * Ordinances copying Statutes may lessen its impact especially if there is penal clause, the point is if you are a sangguniang panglungsod the penalty that you can impose is only limited to P5,000 maximum.

Examples Sec. 30, LGC: Provincial Governors review the EOs of component city and municipal Mayors; City and Municipal Mayors review the EOs of Punong Barangays *take note, ordinances get reviewed, resolutions as a rule do not get reviewed except: Sec. 56, 57, LGC: SP (Province) reviews ordinances and resolutions approving plans and programs of Local Development Councils of component cities and municipalities; and SP (City or Municipality) reviews ordinances of Barangays Sec. 447, 458, 468 a 1 I, LGC: Mother sanggunian reviews ordinances, EO of component cities

MOTHER SANGGUNIANS REVIEW POWER - GROUNDS: If by Sangguniang Panlalawigan: 1. Ultra Vires (sec. 56 (C), LGC) 2009 Bar (c) If the sangguniang panlalawigan finds that such an ordinance or resolution is beyond the power conferred upon the sangguniang panlungsod or sangguniang bayan concerned, it shall declare such ordinance or resolution invalid in whole or in part. The sangguniang panlalawigan shall enter its action in the minutes and shall advise the corresponding city or municipal authorities of the action it has taken.

LGUS AND NATIONAL AGENCIES (WITH PROJECT IMPLEMENTATION FUNCTIONS) - Prior Consultation Before Implementation No project or program shall be implemented by government authorities unless consultations in Sec. 2 (c) and 26 of the LGC and prior approval of the Sanggunian concerned obtained, provided that occupants affected shall be given relocation site. (sec. 27, LGC) Sec. 2 (c) It is likewise the policy of the State to require all national agencies and offices to conduct periodic consultations with appropriate local government units, nongovernmental and people's organizations, and other concerned sectors of the community before any project or program is implemented in their respective jurisdictions. Section 26. Duty of National Government Agencies in the Maintenance of Ecological Balance. - It shall be the duty of every national agency or government-owned or controlled corporation authorizing or involved in the planning and implementation of any project or program that may cause pollution, climatic change, depletion of non-renewable resources, loss of crop land, rangeland, or forest cover, and extinction of animal or plant species, to consult with the local government units, nongovernmental organizations, and other sectors concerned and explain the goals and objectives of the project or program, its impact upon the people and the community in terms of environmental or ecological balance, and the measures that will be undertaken to prevent or minimize the adverse effects thereof. Section 27. Prior Consultations Required. - No project or program shall be implemented by government authorities unless the consultations mentioned in Sections 2 (c) and 26 hereof are complied with, and prior approval of the sanggunian concerned is obtained: Provided, That occupants in areas where such projects are to be implemented shall not be evicted unless appropriate relocation sites have been provided, in accordance with the provisions of the Constitution. *It speaks of Local Autonomy, the idea of this one is to respect priorities of a particular locality so that before a project gets implemented in the locality, the national government agency must have already complied with the requirement of consultation and prior approval of the Sanggunian.

If by Sangguniang Panglunsod/Bayan 1. Consistent with law 2. Consistent with city/municipality. Ordinances (Sec. 57, LGC) (c) If the sangguniang panlungsod or sangguniang bayan, as the case may be, finds the barangay ordinances inconsistent with law or city or municipal ordinances, the sanggunian concerned shall, within thirty (30) days from receipt thereof, return the same with its comments and recommendations to the sangguniang barangay concerned for adjustment, amendment, or modification; in which case, the effectivity of the barangay ordinance is suspended until such time as the revision called for is effected.

*The wording of sec. 56 is within the prescribe powers and functions if you are talking about the sangguniang panlalawigan reviewing the acts of component LGU. But if panglunsod or bayan, the term used is not within prescribed powers or functions

COMPARE WITH VETO POWER OF LOCAL CHIEF EXECUTIVE - GROUNDS: 1. Ultra Vires 2. Prejudicial to public welfare (Sec. 55, LGC) Veto Power of the Local Chief Executive. -

(a) The local chief executive may veto any ordinance of LINA V PANO the sanggunian panlalawigan, sangguniang panlungsod, 23 let us run with perseverance the race marked out for us. Let us fix our eyes on Jesus, the author and perfecter of our faith Heb 12:2

- SC: Section 27 in relation to Sec. 26 as applicable only to national government agencies with project implementation function to the exclusion therefore of government owned or controlled corporations. National government like DPWH, and other agencies with project implementation function. - in this case, it involved operation of Lotto which was authorized by PAGCOR which is a government owned and controlled corporation. It was argued that PAGCOR could not operate Lotto without asking for consent of the Sanggunian and conduct consultation. According to SC sec. 27 is not applicable to PAGCOR because it is a GOCC, it is not part of the national government, it has its own charter, national government is different as defined by law.

- Closure and Opening of roads

LOCAL POWER OF TAXATION *Question: When a government agency or an institution in its charter, it is exempt from real property tax, then came the city treasurer assessing that agency to pay real property tax. Will that institution be held liable to pay? Sec. 193, 234 (LGC) Section 193. Withdrawal of Tax Exemption Privileges. Unless otherwise provided in this Code, tax exemptions or incentives granted to, or presently enjoyed by all persons, whether natural or juridical, including government-owned or controlled corporations, except local water districts, cooperatives duly registered under R.A. No. 6938, non-stock and non-profit hospitals and educational institutions, are hereby withdrawn upon the effectivity of this Code. Section 234. Exemptions from Real Property Tax. - The following are exempted from payment of the real property tax: (a) Real property owned by the Republic of the Philippines or any of its political subdivisions except when the beneficial use thereof has been granted, for consideration or otherwise, to a taxable person; (b) Charitable institutions, churches, parsonages or convents appurtenant thereto, mosques, non-profit or religious cemeteries and all lands, buildings, and improvements actually, directly, and exclusively used for religious, charitable or educational purposes; (c) All machineries and equipment that are actually, directly and exclusively used by local water districts and government owned or controlled corporations engaged in the supply and distribution of water and/or generation and transmission of electric power; (d) All real property owned by duly registered cooperatives as provided for under R.A. No. 6938; and (e) Machinery and equipment used for pollution control and environmental protection. Except as provided herein, any exemption from payment of real property tax previously granted to, or presently enjoyed by, all persons, whether natural or juridical, including all government-owned or controlled corporations are hereby withdrawn upon the effectivity of this Code. *If charter was enacted before the effectivity of LGC, then the tax exemption is withdrawn, whereas if the charter is enacted after the effectivity of the LGC, it is exempted for being the later intent of congress.

LGUS AND OTHER AGENCIES/OFFICES - With field units in the LGU: Consultation - With environmental programs: Consultation - With PNP, Fire protection Unit and Jail Management Personnel: Operational Supervision and Control by LGU *No control over appointments in the case of ANDAYA V RTC - As deputy of the Commission, the authority of the mayor is very limited. In reality, he has no power of appointment; he has only the limited power of selecting one from among the list of 5 eligibles to be named the chief of police. Actually, the power to appoint the chief of police of Cebu City is vested in the Regional Director. Moreover, it is the prerogative of the Regional Police Director to name the 5 eligibles from a pool of eligible officers without interference from local executives. Hence, the mayor cannot require the petitioner to include the mayors protg in the list of 5 eligibles to be recommended by the Regional Police Director to the mayor. - With NGOs: LGUs shall support and may give assistance to NGO LGC Section 34. Role of People's and Nongovernmental Organizations. - Local government units shall promote the establishment and operation of people's and non-governmental organizations to become active partners in the pursuit of local autonomy. LGC Section 35. Linkages with People's and Nongovernmental Organizations. - Local government units may enter into joint ventures and such other cooperative arrangements with people's and non-governmental organizations to engage in the delivery of certain basic services, capability-building and livelihood projects, and to develop local enterprises designed to improve productivity and income, diversity agriculture, spur rural industrialization, promote ecological balance, and enhance the economic and social well-being of the people. LGC Section 36. Assistance to People's and Nongovernmental Organizations. - A local government unit may, through its local chief executive and with the concurrence of the sanggunian concerned, provide assistance, financial or otherwise, to such people's and non-governmental organizations for economic, sociallyoriented, environmental, or cultural projects to be implemented within its territorial jurisdiction.

SOURCES OF REVENUES 1. Taxes, Fees, and Charges (sec. 5, Art. X, consti) Each local government unit shall have the power to create its own sources of revenues and to levy taxes, fees, and charges subject to such guidelines and limitations as the Congress may provide, consistent with the basic policy of local autonomy. Such taxes, fees, and charges shall accrue exclusively to the local governments. 2. Just share in the national taxes (Sec. 6, Article X) or IRA Local government units shall have a just share, as determined by law, in the national taxes which shall be automatically released to them. 3. Equitable share in the proceeds of the utilization and development of the national wealth within their respective areas (Sec. 7, Article X)

V. POWER - local power of taxation - local police power - local eminent domain - Delivery of Services and Facilities - Reclassification of lands 24

let us run with perseverance the race marked out for us. Let us fix our eyes on Jesus, the author and perfecter of our faith Heb 12:2

Local governments shall be entitled to an equitable share in the proceeds of the utilization and development of the national wealth within their respective areas, in the manner provided by law, including sharing the same with the inhabitants by way of direct benefits.

1999 BAR B. under the constitution, what are the 3 main sources of revenues of local government units? (2%) Sec. 5, 6, 7

LOCAL FISCAL AUTONOMY - Local Fiscal Autonomy: Local governments have the power to create their own sources of revenue in addition to their equitable share in the national taxes released by the national government, as well as the power to allocate their resources in accordance with their own priorities. - But, this does not rule out any manner of national government intervention by way of supervision, in order to ensure that local programs, fiscal and otherwise, are consistent with national goals. (Pimentel V Aguirre, 2000) *Sometime in 1997 issued an AR during the height of Asian financial crisis and one way of responding to it was to manage well domestic funds. The government does not want the LGU to unwisely spend their moneys so what Ramos require is to retain 10% of the IRA. SC declared the AR as unconstitutional because the IRA should be automatically released, it should not therefore be subject to withholding lien as already founded in the LGC of 1991 and in fact it should be released automatically to the local treasurer. It is in this case where the SC explained the rationale behind it and it mentioned of idea of local fiscal autonomy.

the same. That a building permit fee is a regulatory imposition is highlighted by the fact that in processing an application for a building permit, the Building Official shall see to it that the applicant satisfies and conforms with approved standard requirements on zoning and land use, lines and grades, structural design, sanitary and sewerage, environmental health, electrical and mechanical safety as well as with other rules and regulations implementing the National Building Code. 24Thus, ancillary permits such as electrical permit, sanitary permit and zoning clearance must also be secured and the corresponding fees paid before a building permit may be issued. And as can be gleaned from the implementing rules and regulations of the National Building Code, clearances from various government authorities exercising and enforcing regulatory functions affecting buildings/structures, like local government units, may be further required before a building permit may be issued. Since building permit fees are not charges on property, they are not impositions from which petitioner is exempt. In distinguishing tax and regulation as a form of police power, the determining factor is the purpose of the implemented measure. If the purpose is primarily to raise revenue, then it will be deemed a tax even though the measure results in some form of regulation. On the other hand, if the purpose is primarily to regulate, then it is deemed a regulation and an exercise of the police power of the state, even though incidentally, revenue is generated. - Petitioner failed to discharge its burden to prove that its real property is actually, directly and exclusively used for educational purposes. While there is no allegation or proof that petitioner leases the land to its present occupants, still there is no compliance with the constitutional and statutory requirement that said real property is actually, directly and exclusively used for educational purposes. The respondents correctly assessed the land for real property taxes for the taxable period during which the land is not being devoted solely to petitioner's educational activities. Accordingly, the CA did not err in ruling that petitioner is likewise not entitled to a refund of the real property tax it paid under protest.

DAY 7 TAXES, FEES AND CHARGES MCIAA V MARCOS (read ruling, effect of sec. 193) Art. X sec. 5 ANGELES UNIV. FOUNDATION V CITY OF ANGELES - SC distinguished taxes, fees and charges as they are distinct in concepts, you have to be careful about what has been enjoyed and granted. - Exempted from the payment of building permit fees are: (1) public buildings and (2) traditional indigenous family dwellings. 21 Not being expressly included in the enumeration of structures to which the building permit fees do not apply, petitioner's claim for exemption rests solely on its interpretation of the term "other charges imposed by the National Government" in the tax exemption clause of R.A. No. 6055. A "charge" is broadly defined as the "price of, or rate for, something," while the word "fee" pertains to a "charge fixed by law for services of public officers or for use of a privilege under control of government." 22 As used in the Local Government Code of 1991 (R.A. No. 7160), charges refers to pecuniary liability, as rents or fees against persons or property, while fee means a charge fixed by law or ordinance for the regulation or inspection of a business or activity. 23 That "charges" in its ordinary meaning appears to be a general term which could cover a specific "fee" does not support petitioner's position that building permit fees are among those "other charges" from which it was expressly exempted. Note that the "other charges" mentioned in Sec. 8 of R.A. No. 6055 is qualified by the words "imposed by the Government on all . . . property used exclusively for the educational activities of the foundation." Building permit fees are not impositions on property but on the activity subject of government regulation. While it may be argued that the fees relate to particular properties, i.e., buildings and structures, they are actually imposed on certain activities the owner may conduct either to build such structures or to repair, alter, renovate or demolish 25 - MAYBE EXERCISED BY THE LOCAL LEGISLATIVE BODIES. The power to tax is primarily vested in the Congress; however, in our jurisdictions, it may be exercised by local legislative bodies, no longer merely by virtue of a valid delegation as before, but pursuant to direct authority conferred by Section 5, Article X of the Constitution. Under the latter, the exercise of the power may be subject to such guidelines and limitations as the Congress may provide which, however, must be consistent with the basic policy of local autonomy. The LGC, enacted pursuant to Section 3, Article X of the Constitution, provides for the exercise by local government units of their power to tax, the scope thereof or its limitations, and the exemptions from taxation. Section 133 of the LGC prescribes the common limitations on the taxing powers of local government - LOCAL GOVERNMENT CODE; SEC. 234 PROVIDES FOR THE EXEMPTION FROM THE PAYMENT OF REAL PROPERTY TAX; BASIS THEREOF. Section 234 of the LGC provides for the exemptions from payment of real property taxes and withdraws previous exemptions therefrom granted to natural and juridical persons, including government-owned and controlled corporations, except as provided therein. These exemptions are based on the ownership, character, and use of the property. Thus: (a) Ownership Exemptions. Exemptions from real property taxes on the basis of ownership are real properties owned by: (i) the Republic, (ii) a province, (iii) a city, (iv) a municipality, (v) a barangay, (vi) registered cooperatives. (b) character exemptions. Exempted from real property taxes on the basis of their character are: (i) charitable institutions, (ii) houses and temples of prayer like churches, parsonages or convents appurtenant thereto, mosques, and (iii) nonprofit or religious cemeteries. (c) Usage exemptions. Exempted from real property taxes on the basis of the actual, direct and exclusive use to which they are

let us run with perseverance the race marked out for us. Let us fix our eyes on Jesus, the author and perfecter of our faith Heb 12:2

devoted are: (i) all lands, buildings and improvements which are actually, directly and exclusively used for religious, charitable or educational purposes; (ii) all machineries and equipment actually, directly and exclusively used by local water districts or by government-owned or controlled corporations engaged in the supply and distribution of water and/or generation and transmission of electric power; and (iii) all machinery and equipment used for pollution control and environmental protection. To help provide a healthy environment in the midst of the modernization of the country, all machinery and equipment for pollution control and environmental protection may not be taxed by local governments. 2. Other Exemptions Withdrawn. All other exemptions previously granted to natural or juridical persons including government-owned or controlled corporations are withdrawn upon effectivity of the Code. - The last paragraph of Section 234 unequivocally withdrew, upon the effectivity of the LGC, exemptions from real property taxes granted to natural or juridical persons, including government-owned or controlled corporations, except as provided in the said section, and the petitioner is, undoubtedly, a government-owned corporation, it necessarily follows that its exemption from such tax granted it in Section 14 of its charter, R.A. No. 6958, has been withdrawn. Any claim to the contrary can only be justified if MCIAA can show that the parcels of land in question, which are real property, are any one of those enumerated in Section 234, either by virtue of ownership, character, or use of the property.

and limitations thereof, and the exemptions from taxations, the tax exempted status of GSIS was restored through the enactment of RA 8291 that gives the full taxexempted status of GSIS. However, due to the beneficial use of the Katigbak property as it is being leased to MHC. The taxes due on the said property are valid due for it being leased to a taxable entity, MHC. MHC has the responsibility of paying the accrued taxes and in case of non-payment, through means the sale at public auction of the leased property.

QUEZON CITY V BAYANTEL, contd - the power to tax is primarily vested in the congress; however, in our jurisdiction, it may be exercised by local legislative bodies, no longer merely be virtue of a valid delegation as before, but pursuant to direct authority conferred by Sec. 5, Article X of the constitution; - what is the effect of Sec. 5 on the fiscal position of municipal corporation? Sec.5 does not change the doctrine that municipal corporations do not possess inherent powers of taxation. What it does is to confer municipal corporations a general power to levy taxes and otherwise create sources of revenue. - (same reasoning was applied in Digital Telecom 2007case) - Admittedly, Rep. Act No. 7633 was enacted subsequent to the LGC. The Court views this subsequent piece of legislation as an express and real intention on the part of Congress to once again remove from the LGCs delegated taxing power, all of Bayantels properties that are actually, directly and exclusively used in the pursuit of its franchise.

BASCO V PAGCOR - Congress has the power of control over local governments; if Congress can grant a municipal corporation the power to tax certain matters, it can also provide for exemptions or even take back the power. x x x The power of local governments to impose taxes and fees is always subject to limitations which Congress may provide by law x x x Local governments have no power to tax instrumentalities of the National Government; PAGCOR being an instrumentality of the National Government is therefore exempt from' local taxes.

CITY OF ILOILO V SMART (2009) - As SMARTs franchise was made effective on March 27, 1992 after the effectivity of the LGC Section 193 will therefore not apply in this case. - R.A. No 7294 does not expressly provide what kind of taxes SMART is exempted from. It is not clear whether the in lieu of all taxes provision in the franchise of SMART would include exemption from local or national taxation. - The uncertainty in the in lieu of all taxes clause in R.A. No. 7294 on whether SMART is exempted from both local and national franchise tax must be construed strictly against SMART which claims the exemption. SMARTs claim for exemption from local business and franchise taxes based on Section 9 of its franchise is therefore unfounded.

MIAA V CA - MIAA is not a GOCC but a government instrumentality vested with corporate powers to perform efficiently government functions. A government instrumentality falls under sec 133(o) of the LGC which limits the taxing powers of LGUs. The LGC recognize that the LGUs cannot tax the national government, which delegated the power to tax. Moreover, the airport lands and buildings of MIAA are owned by the republic is not taxable pursuant to Sec 234 (a) of the LGC. - MIAA is a Mere Trustee of the Republic. MIAA is merely holding title to the Airport Lands and Buildings in trust for the Republic. Section 48, Chapter 12, Book I of the Administrative Code allows instrumentalities like MIAA to hold title to real properties owned by the Republic. - Portions of the Airport Lands and Buildings that MIAA leases to private entities are not exempt from real estate tax. For example, the land area occupied by hangars that MIAA leases to private corporations is subject to real estate tax. In such a case, MIAA has granted the beneficial use of such land area for a consideration to a taxable person and therefore such land area is subject to real estate tax.

JUST SHARE IN THE NATIONAL TAXES ART. X SEC. 6 Sec. 18, LGC of 1991 Sec. 284-288, LGC of 1991 Section 286. Automatic Release of Shares. (a) The share of each local government unit shall be released, without need of any further action, directly to the provincial, city, municipal or barangay treasurer, as the case may be, on a quarterly basis within five (5) days after the end of each quarter, and which shall not be subject to any lien or holdback that may be imposed by the national government for whatever purpose. (b) Nothing in this Chapter shall be understood to diminish the share of local government units under existing laws. PIMENTEL V AGUIREE, GR. NO. (2000) Sec. 4 of A. O. No. 372 which mandates that Pending the assessment

GSIS V CITY TREASURER OF MANILA - GSIS, as a non-stock government corporation is exempted from any form of taxation under P.D.1146. Even with the enactment of Local Government Code in 1991, known as RA 7160, providing the exercise of local government units (LGUs) of their power to tax, the scope 26

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and evaluation by the Development Budget Coordinating Committee of the emerging fiscal situation, the amount equivalent to 10% of the internal revenue allotment to local government units shall be withheld - cannot be upheld. A basic feature of local fiscal autonomy is the automatic release of the shares of LGUs in the national internal revenue. This is mandated by the Constitution and the Local Government Code. Section 4 which orders the withholding of 10% of the LGUs IRA clearly contravenes the Constitution and the law.

REQUISITES FOR VALIDITY OF LOCAL POLICE POWER TATEL V MUN. OF VIRAC: 1. must not contravene the Constitution and statute. 2. not unfair or oppressive (also a constitutional reqt.) 3. not partial or discriminatory (also a constitutional reqt.) 4. not prohibit, but only regulate lawful trade (dela cruz v paras where an ordinance prohibited the operation of night clubs) 5. consistent with public policy (bec. of the requirements of valid delegation of legislative power) see. Lim V Pacquing where it was found out the national policy was for national government, not for LGU, to grant franchises for operation of jai-alai. LGU can only regulate but not grant franchise for operation of jai-alai. * In Lim vs Paquing, where the LGU insisted that it has the authority to grant franchises for the Operation of JaiAlai. 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. 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. 6. not unreasonable (also a constitutional reqt) See Balaquit case where an ordinance penalized movie houses that charged full payment for admission of children between 7-12) Dont forget Lawful subject and lawful means! *Lawful means method employed will be considered lawful if it is reasonably necessary for the accomplishment of the purpose of the law, and not unduly oppressive upon individuals. * Lawful subject the act or activity must be something that affects the public.

2007 BAR EXAM VIII. The provincial Governor of Bataan requested the DBM to release its IRA of P100M for the current budget year. However, the General Appropriations Act provided that the 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? *No. it is a violation of the IRA. - 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%).

EQUITABLE SHARE IN THE PROCEEDS OF UTILIZATION OF WEALTH IN THE LOCALITY. SEC. 290, LGC of 1991 Amount of Share of Local Government Units. - Local government units shall, in addition to the internal revenue allotment, have a share of forty percent (40%) of the gross collection derived by the national government from the preceding fiscal year from mining taxes, royalties, forestry and fishery charges, and such other taxes, fees, or charges, including related surcharges, interests, or fines, and from its share in any co-production, joint venture or production sharing agreement in the utilization and development of the national wealth within their territorial jurisdiction.

LUCENA GRAND CENTRAL TERMINAL, INC. V JAC LINER (2005) * 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.

LOCAL POLICE POWER - The general welfare clause: Sec.16, LGC of 1991 - Every local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective governance, and those which are essential to the promotion of the general welfare. Within their respective territorial jurisdictions, local government units shall ensure and support, among other things, the preservation and enrichment of culture, promote health and safety, enhance the right of the people to a balanced ecology, encourage and support the development of appropriate and self-reliant scientific and technological capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment among their residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants. - Basically a delegated power both in its general and specific sense, unlike in taxation power where the general power to tax is constitutionally guaranteed. Hence, police power is still under the control of Congress in all its respects, although under sec. 5 of the code, the general welfare provision shall be liberally construed to give more powers to the LGU.

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let us run with perseverance the race marked out for us. Let us fix our eyes on Jesus, the author and perfecter of our faith Heb 12:2

- As with the State, the local government may be considered as having properly exercised its police power only if the following requisites are met: 1) the interests of the public generally, as distinguished from those of a particular class, require the interference of the State, and 2) the means employed are reasonably necessary for the attainment of the object sought to be accomplished and not unduly oppressive upon individuals. Otherwise stated, there must be a lawful concurrence of a lawful subject and lawful means.

other ways by which that purpose is to be accomplish, then is the method use by the government the least intrusive? The SC said, we have laws against drugs and prostitution so you have to mobilize the police force and apply strictly the laws or heightened police work rather than sacrifice property rights of hotel/motels. So the idea is the least intrusive means should be employed. - That the Ordinance prevents the lawful uses of a wash rate depriving patrons of a product and the petitioners of lucrative business ties in with another constitutional requisite for the legitimacy of the Ordinance as a police power measure. It must appear that the interests of the public generally, as distinguished from those of a particular class, require an interference with private rights and the means must be reasonably necessary for the accomplishment of the purpose and not unduly oppressive of private rights. It must also be evident that no other alternative for the accomplishment of the purpose less intrusive of private rights can work. - More importantly, a reasonable relation must exist between the purposes of the measure and the means employed for its accomplishment, for even under the guise of protecting the public interest, personal rights and those pertaining to private property will not be permitted to be arbitrarily invaded. - Lacking a concurrence of these requisites, the police measure shall be struck down as an arbitrary intrusion into private rights. As held in Morfe v. Mutuc, the exercise of police power is subject to judicial review when life, liberty or property is affected. - The behavior which the Ordinance seeks to curtail is in fact already prohibited and could in fact be diminished simply by applying existing laws. Less intrusive measures such as curbing the proliferation of prostitutes and drug dealers through active police work would be more effective in easing the situation. So would the strict enforcement of existing laws and regulations penalizing prostitution and drug use. These measures would have minimal intrusion on the businesses of the petitioners and other legitimate merchants. LIM V. PACQUING, 240 SCRA 649 What Congress delegated to the City of Manila in R.A. 409 (Revised Charter of Manila) with respect to wagers and betting was the power "to license, permit or regulate", not the power "to franchise". This means that the license or permit issued by the City of Manila to operate wager or betting activity, such as jai-alai, would not amount to something meaningful unless the holder of the license or permit was also franchised by the National Government to so operate. Therefore, Manila Ordinance No. 7065, which purported to grant Associated Development Corporation (ADC) a franchise to conduct jai-alai operations, is void and ultra vires.

TANO V SOCRATES (1997) As laws enjoy presumption of constitutionality (except laws restricting freedom of expression), so too are ordinances. Hence, there must be clear and unequivocal breach of the Constitution, not merely a doubtful or argumentative contradiction. In short, the conflict with the Constitution must be shown beyond reasonable doubt. Where doubt exists, even if well-founded, there can be no finding of unconstitutionality. To doubt is to sustain.

ORTIGAS & CO LIMITED PARTNERSHIP - Zoning ordinance is a police measure *A zoning ordinance primarily is pass to regulate use of property and therefore it is mandating the property use in the locality. It promotes general welfare, bec. without it, like ex. it is hard to imagine having a residence in the middle of industries. - it prevails over contractual obligations - Therefore, parties to a contract who may be affected by zoning ordinances cannot invoke the constitutional right against impairment of obligations and contracts because in constitutional law, police power prevails over nonimpairment clause. *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.

IMPORTANT PRINCIPLES IN POLICE POWER Just like statutes, local ordinances and local police measure are also presumed constitutional (Tano V Socrates). *Remember the rules in interpretation? Liberal interpretation in favor of devolution, Local Govt Units and in favor of general welfare power/police power of govt.

WHITE LIGHT CORPORATION V CITY OF MANILA *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. The purpose of the ordinance is to minimize prostitution and drug deals. Then second, the means employed is to prohibit the wash-up rate. Is it reasonably necessary? Does it prohibit drug deals? Yes, but the question is, is it the only means available for the government to accomplish the purpose? If the answer is No, there are 28

LOCAL EMINENT DOMAIN GENERAL REQT: - Necessity (nation v local) - Private property - Taking - Public use

let us run with perseverance the race marked out for us. Let us fix our eyes on Jesus, the author and perfecter of our faith Heb 12:2

- Just compensation - Due process

assailed that they have the right to exercise the power of eminent domain and that the courts have no right to inquire and determine the necessity of the expropriation. Thus, the same filed an appeal. We are of the opinion that the power of the court is not limited to that question. The right of expropriation is not an inherent power in a municipal corporation, and before it can exercise the right some law must exist conferring the power upon it. When the courts come to determine the question, they must only find (a) that a law or authority exists for the exercise of the right of eminent domain, but (b) also that the right or authority is being exercised in accordance with the law. In the present case there are two conditions imposed upon the authority conceded to the City of Manila: First, the land must be private; and, second, the purpose must be public. If the court, upon trial, finds that neither of these conditions exists or that either one of them fails, certainly it cannot be contended that the right is being exercised in accordance with law. When a municipal corporation attempts to expropriate private property and an objection is made thereto by the owner, the courts have ample authority, in this jurisdiction, to make inquiry, and to hear proof upon an issue properly presented, concerning the question on whether or not the purpose of the expropriation is for some public use. Upon on the other hand, the legislature, in providing for the exercise the power of eminent domain, may directly determine the necessity for appropriating private property for a particular improvement or public use, and it may select the exact location of the improvement. In such a case, it is well settled that the utility of the proposed improvement, the extent of the public necessity for its construction, the expediency of constructing it, the suitableness of the location selected and the consequent necessity of taking the land selected for its site, are all questions exclusively for the legislature to determine, and the courts have no power to interfere, or to substitute their own views for theseof the representatives of the people. Similarly, when the legislature has delegated the power of eminent domain to municipal or public service corporation or other tribunals or bodies, and has given them discretion as to when the power is to be called into exercise and to what extent, the court will not inquire into the necessity or propriety of the taking. *It was also argued that chinese cemetery was already offered and made available to the public, so the issue was, whether or not a local government unit can expropriate a property devoted to public use. So a cemetery that is open to the public is a private property but devoted to public use, may it be expropriated? If Congress no problem because this is an exercise of plenary power. What about LGU? It can only be done if there is a law authorizing it, apparently there is none and so a LGU cannot expropriate a private property that is already devoted to public.

HEIRS OF ALBERTO SUGUITAN V CITY OF MANDALUYONG (GR 135087, MARCH 14, 2000) Despite the existence of this legislative grant in favor of local governments, it is still the duty of the courts to determine whether the power of eminent domain[23] being is exercised in accordance with the delegating law. In fact, the courts have adopted a more censorious attitude in resolving questions involving the proper exercise of this delegated power by local bodies, as compared to instances when it is directly exercised by the national [24] legislature. The courts have the obligation to determine whether the following requisites have been complied with by the local government unit concerned: 1. An ordinance is enacted by the local legislative council authorizing the local chief executive, in behalf of the local government unit, to exercise the power of eminent domain or pursue expropriation proceedings over a particular private property .calr 2. The power of eminent domain is exercised for public use, purpose or welfare, or for the benefit of the poor and the landless. 3. There is payment of just compensation, as required under Section 9, Article III of the Constitution, and other pertinent laws. 4. A valid and definite offer has been previously made to the owner of the property sought to be expropriated, but [25] said offer was not accepted. In the present case, the City of Mandaluyong seeks to exercise the power of eminent domain over petitioners' property by means of a resolution, in contravention of the first requisite. The law in this case is clear and free from ambiguity. Section 19 of the Code requires an ordinance, not a resolution, for the exercise of the power of eminent domain. We reiterate our ruling in Municipality [26] of Paraaque v. V.M. Realty Corporation regarding the distinction between an ordinance and a resolution. In that 1998 case we held that:miso We are not convinced by petitioner's insistence that the terms "resolution" and "ordinance" are synonymous. A municipal ordinance is different from a resolution. An ordinance is a law, but a resolution is merely a declaration of the sentiment or opinion of a lawmaking body on a specific matter. An ordinance possesses a general and permanent character, but a resolution is temporary in nature. Additionally, the two are enacted differently -a third reading is necessary for an ordinance, but not for a resolution, unless decided otherwise by a majority of all the Sanggunian members. We cannot uphold respondent's contention that an ordinance is needed only to appropriate funds after the court has determined the amount of just compensation. An examination of the applicable law will show that an ordinance is necessary to authorize the filing of a complaint with the proper court since, beginning at this point, the power of eminent domain is already being exercised.

GENUINE NECESSITY, required! DE LA PAZ MASIKIP V CITY OF PASIG (2006) * Lourdes Dela Paz Masikip is the registered owner of a parcel of land, which the City of Pasig sought to expropriate a portion thereof for the sports development and recreational activities of the residents of Barangay Caniogan. This was in January 1994. Masikip refused. On March 23, 1994, City of Pasig sought again to expropriate said portion of land for the alleged purpose that it was in line with the program of the Municipal Government to provide land opportunities to deserving poor sectors of our community. Petitioner protested, so City of Pasig filed with the trial court a complaint for expropriation. The Motion to Dismiss filed by Masikip was dismissed by the rial court on the ground that there was genuine necessity to expropriate the property. Case was elevated to the Court of Appeals, which dismissed petition for lack of merit. Hence, this petition.

CITY OF MANILA V CHINESE COMMUNITY OF MANILA (1919) *Plaintiff sought to expropriate a part of a private cemetery devoted for public use to make an extension of Rizal Avenue. Defendants contend that expropriation is not necessary because it will disturb the remains of the dead. Moreover, adjoining and adjacent lots were offered to the city free of charge for the planned public improvement. The lower court ruled that the said public improvement was not necessary on the particular-strip of land in question. Plaintiff herein 29

let us run with perseverance the race marked out for us. Let us fix our eyes on Jesus, the author and perfecter of our faith Heb 12:2

- Where the taking is done for the benefit of a small community which seeks to have its own sports and recreational facility, notwithstanding that there is such a recreational facility only a short distance away, such taking cannot be considered to be for public use. The court defines what constitutes a genuine necessity for public use. * 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, 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.

* Petitioner sought to exercise its power of eminent domain based on a resolution by the municipal council. Petitioner cites a previous case wherein a resolution gave authority to exercise eminent domain. Petitioner also relies on the Implementing Rules, which provides that a resolution authorizes a Local Government Unit to exercise eminent domain. - Under Section 19, of the present Local Government Code (RA 7160), it is stated as the first requisite that LGUs can exercise its power of eminent domain if there is an ordinance enacted by its legislative body enabling the municipal chief executive. A resolution is not an ordinance, the former is only an opinion of a law-making body, the latter is a law. The case cited by Petitioner involves BP 337, which was the previous Local Government Code, which is obviously no longer in effect. RA 7160 prevails over the Implementing Rules, the former being the law itself and the latter only an administrative rule which cannot amend the former. The LGC specifically requires ordinance, hence mere resolution will not suffice. Is there a difference? Substance: effect of a law v sentiment of local council; 3 readings v 2 readings Res judicata does not apply to bar the State or its agents to expropriate private property (no res judicata to the right, as when only the legal requirements were not previously complied with)

WHAT MAY BE REVIEWED BY THE COURTS Judicial review of the exercise of eminent domain is limited to the following areas of concerns: 1. the adequacy of the compensation 2. the necessity of the taking 3. the public use character of the purpose of the taking. (dela paz masikip case, citing bernas)

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 STAGES IN EXPROPPRIATION PROCEEDINGS: 1 STAGE: Necessity - Determination of whether or not the expropriating authority has the authority to expropriate and whether or not the expropriation is for public use. Once that is determined: 2 STAGE: Payment of Compensation adequacy of compensation is a justiceable question.
ND ST

SPECIFIC REQTS LOCAL EMINENT DOMAIN SEC. 19 LGC Eminent Domain. - A local government unit may, through its chief executive and acting pursuant to an ordinance, exercise the power of eminent domain for public use, or purpose or welfare for the benefit of the poor and the landless, upon payment of just compensation, pursuant to the provisions of the Constitution and pertinent laws: Provided, however, That the power of eminent domain may not be exercised unless a valid and definite offer has been previously made to the owner, and such offer was not accepted: Provided, further, That the local government unit may immediately take possession of the property upon the filing of the expropriation proceedings and upon making a deposit with the proper court of at least fifteen percent (15%) of the fair market value of the property based on the current tax declaration of the property to be expropriated: Provided, finally, That, the amount to be paid for the expropriated property shall be determined by the proper court, based on the fair market value at the time of the taking of the property. JESUS IS LORD CHRISTIAN SCHOOL V CITY OF PASIG 1. an ordinance is enacted by the Local legislative council authorizing the local chief executive, in behalf of the local government unit, to exercise the power of eminent domain or pursue expropriation proceedings over a particular private property. MUNICIPALITY OF PARANAQUE V VM REALTY 30

2. for public use, purpose or 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,

let us run with perseverance the race marked out for us. Let us fix our eyes on Jesus, the author and perfecter of our faith Heb 12:2

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.

price. The chairman of the appropriation or finance committee of the sanggunian, or in his absence, any member of the sanggunian duly chosen as its representative, shall participate in the conference. When an agreement is reached by the parties, a contract of sale shall be drawn and executed. (d) The contract of sale shall be supported by the following documents: (1) Resolution of the sanggunian authorizing the local chief executive to enter into a contract of sale. The resolution shall specify the terms and conditions to be embodied in the contract; (2) Ordinance appropriating the amount specified in the contract; and (3) Certification of the local treasurer as to availability of funds together with a statement that such fund shall not be disbursed or spent for any purpose other than to pay for the purchase of the property involved. * 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.

3. there is payment of just compensation CITY OF CEBU V DEDAMO While sec. 4 of rule 67 of the ROC provides that just compensation shall be determined at the time of the filling of the complaint for expropriation (or, time of taking whichever came first), such rule cannot prevail over RA 7160, which is substantive law. Sec. 4, rule 67 (time of filing of complaint or taking, whichever came first) V LGC at the time taking. * 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. The rules of court is a procedural law, the right to a fair and just compensation is a substantive right and that procedural rules should not diminish substantive rights. REPUBLIC V LIM (2005) The landowner is entitled to recover possession of the property expropriated if the government fails to fully pay just compensation to the owner within a period of 5 years from the finality of the judgment in an expropriation proceeding.

FILSTREAM INTERNATIONAL, INC. V CA AND CITY OF MANILA, GR 125218, JANUARY 23, 1998 (IN RE: EXPROPRIATION FOR URBAN DEVELOPMENT AND HOUSING) 5. Priorities in the acquisition of land shall be complied with as mandated by RA 7279, (Urban Development and Housing Act of 1992) meaning private lands should be last in the selection of land! (sec. 9 of RA 7279) 6. Expropriation shall be resorted to only when other modes of acquisition have been exhausted (Sec. 10, RA 7279) RA 7279

4. a valid and definite offer has been previously made to the owner of the property sought to be expropriated, but said offer was not accepted. *Natl government does not require to first make an offer before it can expropriate unlike and LGU. MEANING OF VALID AND DEFINITE OFFER Article 35 of the Rules and Regulations Implementing the Local Government Code provides: ARTICLE 35. Offer to Buy and Contract of Sale. (a) The offer to buy private property for public use or purpose shall be in writing. It shall specify the property sought to be acquired, the reasons for its acquisition, and the price offered. (b) If the owner or owners accept the offer in its entirety, a contract of sale shall be executed and payment forthwith made. (c) If the owner or owners are willing to sell their property but at a price higher than that offered to them, the local chief executive shall call them to a conference for the purpose of reaching an agreement on the selling 31

Section 9. Priorities in the Acquisition of Land. Lands for socialized housing shall be acquired in the following order: a) Those owned by the Government or any of its subdivisions, instrumentalities, or agencies, including government-owned or controlled corporations and their subsidiaries; b) Alienable lands of the public domain; c) Unregistered or abandoned and idle lands; d) Those within the declared Areas for Priority Development, Zonal Improvement Program sites, and Slum Improvement and Resettlement Program sites which have not yet been acquired; e) Bagong Lipunan Improvement of Sites and Services or BLISS sites which have not yet been acquired; and f) Privately-owned lands. Where on-site development is found more practicable and advantageous to the beneficiaries, the priorities

let us run with perseverance the race marked out for us. Let us fix our eyes on Jesus, the author and perfecter of our faith Heb 12:2

mentioned in this section shall not apply. The local government units shall give budgetary priority to on-site development of government lands. Section 10. Modes of Land Acquisition. - The modes of acquiring lands for purposes of this Act shall include, among others, community mortgage, land swapping, land assembly or consolidation, land banking, donation to the Government, joint-venture agreement, negotiated purchase, and expropriation: Provided, however, That expropriation shall be resorted to only when other modes of acquisition have been exhausted. Provided, further, That where expropriation is resorted to, parcels of land owned by small property owners shall be exempted for purposes of this Act: Provided, finally, That abandoned property, as herein defined, shall be reverted and escheated to the State in a proceeding analogous to the procedure laid down in Rule 91 of the Rules of Court. For the purpose of socialized housing, government-owned and foreclosed properties shall be acquired by the local government units, or by the National Housing Authority primarily through negotiated purchase: Provided, That qualified beneficiaries who are actual occupants of the land shall be given the right of first refusal. * There was simply a problem involving low cost housing project. 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 32

allegation is not sufficient, the LGU must still be able to prove the allegations in court.

PROVINCE OF CAMARINES SUR V CA The LGC does not require that LGU must first secure the approval of the Dept. of Agrarian Reform (Dar) for conversion of lands from agricultural to non-agricultural before they can institute expropriation proceeding. Neither does the CARL provide that the power of the LGU to expropriate agricultural lands is subject to the control of DAR. Besides, determination of public use is legislative, not executive (eg. Thru DAR).

ANUNCIACION VDA DE OUANO V REPUBLIC If the genuine public necessity--the very reason or condition as it were--allowing, at the first instance, the expropriation of a private land ceases or disappears, the property owner has the option of getting back the property if the government 1) has not accomplish the public purpose for which it was expropriated or 2) devoted the property to another public purpose. If you expropriate a property for a particular purpose and you change your mind and use it for another public purpose, you have to file another expropriation proceeding.

FRANCIA VS MUNICIPALITY OF MEKAWAYAN IMMEDIATE POSSESSION BY GOV. *When the municipality of Mekawayan, wanted to mmediately 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.

let us run with perseverance the race marked out for us. Let us fix our eyes on Jesus, the author and perfecter of our faith Heb 12:2