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FRATERNAL ORDER OF UTOPIA

ATENEO DE MANILA UNIVERSITY


SCHOOL OF LAW
Atty. ARIS S. MANGUERA

MANGUERA OUTLINE 2011


CONSTITUTIONAL LAW I
PART 2
VERSION 4.0

Section 6. Each Commission en banc may


promulgate its own rules concerning pleadings and
practice before it or before any of its offices. Such
Article IX rules, however, shall not diminish, increase, or
CONSTITUTIONAL COMMISSIONS modify substantive rights.

Section 7. Each Commission shall decide by a


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

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FRATERNAL ORDER OF UTOPIA
ATENEO DE MANILA UNIVERSITY
SCHOOL OF LAW
Atty. ARIS S. MANGUERA

5. The Chairmen and members are given fairly 3. Shall not engage in the active management
long term of office of 7 years. (Art. IX-B, C and or control of any business which in any way
§1(2)) may be affected by the functions of his office.
6. The terms of office of the chairmen and 4. Shall not be financially interested, directly or
members of all the commissioners are indirectly, in any contract with, or in any
staggered in such a way as to lessen the franchise or privilege granted by the
opportunity for appointment of the majority of Government, any of its subdivisions, agencies
the body by the same President. (Art. IX-B, C or instrumentalities, including government-
and §1(2)) owned or controlled corporation or their
7. The chairmen and members may not be subsidiaries.
reappointed or appointed in an acting
capacity.3 (Art. IX-B, C and §1(2)) Purpose of Disqualifications. To compel the
8. The salaries of the chairman and members are chairmen and members of the Constitutional
relatively high and may not be decreased Commissions to devote their full attention to the
during continuance in office. (Art. IX-A, §3; Art. discharge of their duties and, as well, to remove
XVIII, §17 ) from them any temptation to take advantage of
9. The Commissions enjoy fiscal autonomy. their official positions for selfish purposes.4
(Art. IX-A, §5)
10. Each Commission may promulgate its own “Practice of profession” for the purpose of
procedural rules, provided they do not Section 3, does not include teaching. Thus, a
diminish, increase or modify substantive rights. lawyer who teaches law does not thereby, for the
(Art. IX-A, §4) purpose of Section 2, violate the prohibition of
11. The chairmen and members are subject to practice of a profession. (I RECORD 544-555, 558-
certain disqualifications calculated to 559)
strengthen their integrity. (Art. IX-A, §4)
12. The Commissions may appoint their own Prohibition of “active management” does not
officials and employees in accordance with prohibit a Commissioner from owning business but
Civil Service Law. (Art. IX-A, §4) it prohibits him from being the managing officer or a
member of the governing board of a business,
Q: There are independent offices specifically “which in any way may be affected by the functions
authorized by the Constitution to appoint their of his office,” a qualifying phrase which does not
officials. Does this imply that their appointment will apply to the prohibition of a practice of a
not be subject to Civil Service Law and Rules? profession. (I RECORD 552-559)
A: No. if this were the case, these independent
bodies would arrogate upon themselves a power D. Rotational Scheme of Appointments (1999 Bar Q)
that properly belongs to the Civil Service (Section 1(2) of Article IX-B, C and D.)
Commission. Had the intention of the framers of
the Constitution been to isolate and grant full The first appointees shall serve 7, 5 and 3 years
independence to Constitutional Commission in the respectively.
matter of appointments, it would have been so
provided. But that is not the case. And since all Reason for Staggering of Terms:
matters pertaining to appointments are within the 1. To lessen the opportunity of the President
realm of expertise of the CSC, all laws, rules and to appoint a majority of the body during
regulations it issues on appointments must be his term;
complied with. (Ombudsman v. CSC, February 16, 2. To ensure continuance of the body, which
2005) always retains 2/3 of its membership.
3. The system is expected to stabilize the
C. Inhibitions/Disqualifications (Section 2)
policies of the body as maintained by the
Members of constitutional commissions: remaining members.5
1. Shall not, during tenure, hold any other office
or employment; Gaminde v. COA, December 13, 2000. It was held
2. Shall not engage in the practice of any that in order to preserve the periodic succession
profession; mandated by the Constitution, the rotational plan
requires two conditions:
1. The terms of the first commissioners
should start on a common date (Feb 2,
3
In Matibag v. Benipayo, the SC said that when an ad interim 1987); and
appointment (of the Chairman of COMELEC) is not confirmed (as it
was by-passed, or that there was no ample time for the Commission
on Appointments to pass upon the same), another ad interim 4
Cruz, Philippine Political Law, p. 280 (1995 ed).
appointment may be extended to the appointee without violating the 5
Constitution. Cruz, Philippine Political Law, p. 289 (1995 ed).

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FRATERNAL ORDER OF UTOPIA
ATENEO DE MANILA UNIVERSITY
SCHOOL OF LAW
Atty. ARIS S. MANGUERA

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

6
Pursuant to RA 7902.

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Service, Sacrifice, Excellence
FRATERNAL ORDER OF UTOPIA
ATENEO DE MANILA UNIVERSITY
SCHOOL OF LAW
Atty. ARIS S. MANGUERA

The final decisions of the Civil Service Commission Q: May the Supreme Court disapprove internal
are enforceable by a writ of execution that the rules promulgated by the Commissions?
Civil Service Commission may itself issue. (Vital- A: The Supreme Court has no power to disapprove
Gozon v. CA, 212 SCRA 235) Commission rules except through the exercise of
the power of “judicial review” when such
G. Fiscal Autonomy Commission rules violate the Constitution.8

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

7 8
Bernas Commentary, p 1003(2003 ed). Bernas Commentary, p 1003(2003 ed).

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Service, Sacrifice, Excellence
FRATERNAL ORDER OF UTOPIA
ATENEO DE MANILA UNIVERSITY
SCHOOL OF LAW
Atty. ARIS S. MANGUERA

Section 2. (1) The civil service embraces all present, emolument, office, or title of any kind from
branches, subdivisions, instrumentalities, and any foreign government.
agencies of the Government, including government- Pensions or gratuities shall not be considered as
owned or controlled corporations with original additional, double, or indirect compensation.
charters.
(2) Appointments in the civil service shall be made A. Composition of CSC
only according to merit and fitness to be determined,
as far as practicable, and, except to positions which
are policy-determining, primarily confidential, or Civil Service Commission is composed of a Chairman
highly technical, by competitive examination. and two Commissioners. (Article IX-B, Section 1(1))
(3) No officer or employee of the civil service shall be
removed or suspended except for cause provided by B. Functions of CSC
law.
(4) No officer or employee in the civil service shall
engage, directly or indirectly, in any electioneering or 1. The CSC shall administer the civil service.
partisan political campaign. (Art. IX-B, §1(1))
(5) The right to self-organization shall not be denied 2. The CSC as the personnel agency of
to government employees. the government shall establish a career
(6) Temporary employees of the Government shall be service;
given such protection as may be provided by law. 3. It shall adopt measures to promote
morale, efficiency, integrity, responsiveness,
Section 3. The Civil Service Commission, as the progressiveness, and courtesy in the civil
central personnel agency of the Government, shall service.
establish a career service and adopt measures to 4. It shall strengthen the merit and rewards
promote morale, efficiency, integrity, responsiveness,
system;
progressiveness, and courtesy in the civil service. It
shall strengthen the merit and rewards system, 5. It shall integrate all human resources
integrate all human resources development development programs for all levels and ranks;
programs for all levels and ranks, and institutionalize 6. It shall institutionalize a management
a management climate conducive to public climate conducive to public accountability.
accountability. It shall submit to the President and the 7. It shall submit to the President and the
Congress an annual report on its personnel Congress an annual report on its personnel
programs. programs. (Article IX-B, Section 3)
Section 4. All public officers and employees shall Power to Grant Civil Service Eligibility. In the
take an oath or affirmation to uphold and defend this exercise of its powers to implement RA 6850
Constitution.
(granting civil service eligibility toe employees
under provisional or temporary status who have
Section 5. The Congress shall provide for the
rendered seven years of efficient service), the CSC
standardization of compensation of government
officials and employees, including those in enjoys wide latitude of discretion and may not be
government-owned or controlled corporations with compelled by mandamus to issue eligibility.
original charters, taking into account the nature of the (Torregoza v. CSC) But the CSC cannot validly
responsibilities pertaining to, and the qualifications abolish the Career Executive Service Board
required for, their positions. (CESB); because the CESB was created by law, it
can only be abolished by the Legislature (Eugenio
Section 6. No candidate who has lost in any election v. CSC, 1995)
shall, within one year after such election, be
appointed to any office in the Government or any Power to hear and decide administrative cases.
Government-owned or controlled corporations or in Under the Administrative Code of 1987, the CSC
any of their subsidiaries.
has the power to hear and decide administrative
cases instituted before it directly or on appeal,
Section 7. No elective official shall be eligible for
including contested appointments.9
appointment or designation in any capacity to any
public office or position during his tenure.
Unless otherwise allowed by law or by the primary Jurisdiction on Personnel actions. It is the intent
functions of his position, no appointive official shall of the Civil Service Law, in requiring the
hold any other office or employment in the establishment of a grievance procedure, that
Government or any subdivision, agency or decisions of lower officials (in cases involving
instrumentality thereof, including Government-owned personnel actions) be appealed to the agency
or controlled corporations or their subsidiaries. head, then to the CSC. The RTC does not have
jurisdiction over such personal actions. (Olanda v.
Section 8. No elective or appointive public officer or Bugayong, 2003)
employee shall receive additional, double, or indirect
compensation, unless specifically authorized by law,
nor accept without the consent of the Congress, any
9
Antonio B. Nachura, Outline/Reviewer in Political Law, 307 (2006)

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Service, Sacrifice, Excellence
FRATERNAL ORDER OF UTOPIA
ATENEO DE MANILA UNIVERSITY
SCHOOL OF LAW
Atty. ARIS S. MANGUERA

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


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

Q: What jurisdiction does the CSC have over the F. Scope of Civil Service System
personnel cases given by statute to the jurisdiction
of the Merit Systems Board? The civil service embraces all branches,
A: It has only automatic review jurisdiction, not subdivisions, instrumentalities, and agencies of the
original jurisdiction. (GSIS v. CSC, 1991) Government, including government-owned or
controlled corporations with original charters.
C. Nature of the Powers of CSC (Article IX-B, Section 2(1))

Test for determining whether a government


owned or controlled corporation is subject to
10 the Civil Service Law: The test is the manner of
Antonio B. Nachura, Outline/Reviewer in Political Law, 307
(2006) its creation. Corporations created by special
11
Antonio B. Nachura, Outline/Reviewer in Political Law, 307
13
(2006) Bernas Primer at 372 (2006 ed.)
12 14
Bernas Primer at 386 (2006 ed.) Cruz, Philippine Political Law, p. 289 (1995 ed).

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Service, Sacrifice, Excellence
FRATERNAL ORDER OF UTOPIA
ATENEO DE MANILA UNIVERSITY
SCHOOL OF LAW
Atty. ARIS S. MANGUERA

charter are subject to the Civil Service, whereas helps in a subordinate capacity the person clothed
corporations incorporated under the Corporation with the duties of a secretary. (Samson v. CA, 145
Law are not. (PNOC v. Leogardo, 1989) SCRA 654)17

Facts: Respondent was appointed as member of


Corporations with original charters. They are internal security staff of the PAGCOR. He was
those created by special law, like GSIS, SSS, Local terminated allegedly for loss of confidence, because
Water Districts and PAGCOR. (Corporations which he allegedly engaged in proxy betting. When
are subsidiaries of these chartered agencies like respondent sued for reinstatement, the PAGCOR
the Manila Hotel and PAL, are not within the argued that under PD 1869, all its employees are
coverage of the Civil Service.15 classified as confidential.
Held: The classification in PD 1869 can be no more
than an initial determination and is not conclusive. It
Note: The moment, that a corporation ceases to be
is the nature of the position which finally determines
government controlled, for instance, if it is whether a position is primarily confidential.
privatized, it ceases to fall under the Civil Service.16 Respondent did not enjoy close intimacy with the
appointing authority which would make him a
Q: Does the Department of Labor have a role over confidential employee. As member of the internal
civil service members? staff, he was tasked with preventing irregularities
A: Yes. Entities under the civil service system are among the employees and customers, reporting
not completely beyond the reach of Department of unusual incidents and infractions, coordinating with
security department during chips inventory, refills,
Labor or labor laws.
yields and card shuffling, and escorting the delivery
(When a government entity that is under the Civil of table capital boxes, refills and shoe boxes. (CSC
Service enters into a contract, e.g., with a security v. Salas, 274 SCRA 414)18
agency or janitorial agency, it becomes an indirect
employer of the security guards or the janitors. In Classes of Non-Competitive Positions
such a situation, under the Labor Code, the 1. Policy Determining
liabilities for wages are joint and solidary with the 2. Primarily Confidential
contractor. The law on wages on in the Labor Code 3. Highly Technical
specifically provides that “employer” includes any
person acting directly or indirectly in the interest of Policy-Determining Position
an employer in relation to employees. (Philippine One charged with laying down of principal or
Fisheries Development Authority v. NLRC & Odin fundamental guidelines or rules, such as that
Security Agency, 1992) of a head of a department.19
G. Classification of Positions (under Section 2(2) for Primarily Confidential Position
purpose of determining the manner of testing merit and One denoting not only confidence in the
fitness) aptitude of the appointee for the duties of the
1. Competitive Positions office but primarily close intimacy which
2. Non-competitive Positions ensures freedom of intercourse without
embarrassment or freedom from misgivings or
Competitive Positions betrayals of personal trust on confidential
As a general rule, positions in all branches of matters of state (De los Santos v. Mallare, 87
government belong to the competitive service. Phil 289).
(Samson v. CA)
Proximity Rule: The occupant of a particular
Facts: Petitioner, the Mayor of Caloocan City, position can be considered a confidential
terminated the services of respondent, the Assistant employee if the predominant reason why he
Secretary to the Mayor, on the ground of loss of was chosen by the appointing authority was the
confidence. Respondent protested on the ground latter’s belief that he can share a close intimate
that his position belonged to the classified service. relationship with the occupant which ensures
Petitioner argued that under the Civil Service Law, freedom of discussion without fear of
the secretaries of city mayors occupied primarily embarrassment or misgivings of possible
confidential position and respondent was a secretary betrayals of personal trust and confidential
to the mayor. matters of stare. Delos Santos v. Mallare)
Held: The termination of respondent is void. The (Where the position occupied is remote from
position of Assistant Secretary to the Mayor that of the appointing authority, the element of
should be considered as belonging to the trust between them is no longer predominant,
competitive service. The position of Secretary of and therefore, cannot be classified as primarily
the Mayor and Assistant Secretary are two distinct confidential)
positions. The latter is of a lower rank and is not
primarily confidential. An assistant secretary merely
17
Jacinto Jimenez, Political Law Compendium, 365 (2006 ed.)
15
Cruz, Philippine Political Law, p.290 (1995 ed). 18
Jacinto Jimenez, Political Law Compendium, 367 (2006 ed.)
16 19
Bernas Primer at 374 (2006 ed.) Cruz, Philippine Political Law, p.293 (1995 ed).

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Service, Sacrifice, Excellence
FRATERNAL ORDER OF UTOPIA
ATENEO DE MANILA UNIVERSITY
SCHOOL OF LAW
Atty. ARIS S. MANGUERA

The following are held to be primarily made by the authority creating the office. Executive
confidential: pronouncements as to the nature of the office can
1. Chief legal counsel of PNB. (Besa v. PNB) be no more than initial determination of the nature
2. City legal officer (Cadiente v. Santos)
of the office.22
3. Provincial attorney(Grino v. CSC)
(However, positions of the legal staff are [The competitive and non-competitive positions roughly
not confidential) correspond to the classification in the Civil Service
4. Security guards of a vice-mayor (Borres v.
Code now embodied in the Revised Administrative
CA)
Code of 1987: (1) Career Service and (2) Non-Career
Facts: Upon recommendation of the vice- Service.]23
mayor, the mayor appointed respondents as
security guards of the vice mayor. The H. Classes of Service (under the Revised
mayor and vice mayor lost in the election. As Administrative Code)
the new mayor, petitioner terminated the 1. Career Service
services of respondents for lack of confidence. 2. Non-Career Service
Respondents sued for reinstatement on the
ground that their removal was illegal.
Held: The positions of respondents 1. Career Service (1999 Bar Question)
[security guards of the vice mayor] are The career service is characterized by:
primarily confidential, as they involve giving 1. Entrance based on the merit and fitness to
protection to the vice mayor. The relationship be determined as far as practicable by
between the vice mayor and his security competitive examinations, or based on highly
depend on the highest of trust and confidence. technical qualifications;
Hence, the tenure of respondents ended upon
loss of confidence in them. (Borres v. CA, 153
2. Opportunity for advancement to higher
SCRA 120)20 career positions;
3. Security of Tenure.24
Highly Technical Position
A highly technical position requires the The career service includes:
appointee thereto to possess technical skill or 1. Open Career positions for appointment
training in the supreme or superior degree. to which prior qualification in an appropriate
examination is required.
The position of a city engineer may be technical 2. Closed Career positions which are
but not highly so because he is not required or scientific or highly technical in nature; these
supposed to posses a supreme or superior include the faculty and academic staff of state
degree of technical skill. The duties of a city colleges and universities, and scientific and
engineer are eminently administrative in technical positions in scientific or research
character and can be discharged even by non-
technical men. (Delos Santos v. Mallare)
institutions which shall establish and maintain
their own merit systems;
In Montecillo v. CSC, 2001, the SC said that under 3. Positions in the Career Executive
Administrative Code of 1987, the CSC is expressly Service, namely, Undersecretary, Assistant
empowered to declare positions in the CSC as Secretary, Bureau Director, Assistant Bureau
primarily confidential. This signifies that the Director, Regional Director, Assistant Regional
enumeration in the Civil Service decree, which Director, Chief of Department Service and
defines the non-career service, is not an exclusive other officers of equivalent rank as may be
list. The Commission can supplement this identified by the Chief Executive Service
enumeration, as it did when it issued Memorandum Board, all of whom are appointed by the
Circular 22, s. 1991, specifying positions in the Civil President;
Service which are considered primarily confidential 4. Career officers, other that those in the
and, therefore, their occupants hold tenure co- Career Executive Service, who are appointed
terminous with the officials they serve.21 by the President, such as the Foreign Service
Officers in the DFA.
Q: Who determines whether a position is policy- 5. Commissioned officers and enlisted
determining, primarily confidential or highly men of the Armed Forces, which shall
technical? maintain a separate merit system;
A: It is a judicial question. It is the nature of the 6. Personnel of government-owned or
position which finally determines whether a position controlled corporations, whether performing
is primarily confidential, policy-determining or
highly technical. The initial classification may be 22
See Bernas Commentary, p 1016(2003 ed); See also Antonio B.
20 Nachura, Outline/Reviewer in Political Law, 311 (2006)
Jacinto Jimenez, Political Law Compendium, 366 (2006 ed.)
21 23
Antonio B. Nachura, Outline/Reviewer in Political Law, 311 Bernas Commentary, p 1017(2003 ed).
24
(2006) Cruz, Philippine Political Law, p.290 (1995 ed).

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governmental or proprietary functions, who do 2. Tenure which is limited to a period


not fall under the non-career service; and specified by law, or which is co-terminous with
7. Permanent laborers, whether skilled, that of the appointing authority or subject to his
semi-skilled, or unskilled.25 pleasure, or which is limited to the duration of
a particular project for which purpose
Career Service Executives (CES). On May 31,
employment was made.27
1994, the CSC issued Memorandum Circular No. 21
identifying the positions covered by the CES. The
Memorandum provides that, “incumbents of The non-career service includes:
positions which are declared to be CES positions for 1. Elective officials and their personal or
the first time pursuant to this Resolution who hold confidential staff;
permanent appointments thereto shall remain under 2. Department heads and other officials of
permanent status in their respective positions. Cabinet rank who hold positions at the
However, upon promotion or transfer to other CES pleasure of the President and their personal or
positions, these incumbents shall be under
confidential staff;
temporary status in said other CES positions until
they qualify.”26 3. Chairmen and members of commissions
and boards with fixed terms of office and their
CES and Security of Tenure. The mere fact that a personal or confidential staff;
position belongs to the CES does not automatically 4. Contractual personnel or those whose
confer security of tenure on the applicant. Such right employment in the government is in
will have to depend on the nature of his appointment accordance with a special contract to
which, in turn, depends on his eligibility or lack of it. undertake a specific work or job, requiring
A person who does not have the requisite
special or technical skills not available in the
qualifications for the position cannot be appointed to
it in the first place or, only as an exception to the employing agency, to be accomplished within
rule, may be appointed to it only in an acting a specific period, which in no case shall
capacity in the absence of appropriate eligibles. The exceed one year, and perform or accomplish
appointment extended to him cannot be regarded as the specific work or job, under their own
permanent even if it may be so designated. Such responsibility with a minimum of direction and
being the case, he could transferred or reassigned supervision from the hiring agency; and
without violating the constitutional guarantee of
security of tenure. (De Leon v. CA, 2001) 5. Emergency and seasonal personnel.28

Requisites for Security of Tenure of CES Q: Is the classification in the Revised


employee: Administrative Code (Career and Non-Career) and
1. Career Service Eligibility the classification in Section 2(2) (Competitive and
2. Appointment to the appropriate career Non-competitive) mutually exclusive?
executive service rank.
A: No. Rather, they overlap and complement each
It must be stressed that the security of other. The classification in the Code is for the
tenure of employees in the CES (except purposes of determining tenure. The classification
1st and 2nd level employees in the civil in Section 2(2) is for purposes of determining the
service) pertains only to rank and not to manner of testing merit and fitness.
the office or to the position to which they
may be appointed. (Thus, a CES officer I. Significance of Distinction between competitive
may be transferred or reassigned form and non-competitive positions
one position to another without losing his
rank which follows him wherever he is
transferred or reassigned. In fact, a CES Appointment to a competitive positions must be
officer suffers no diminution in salary even made according to merit and fitness as
if assigned to a CES position with lower determined, as far as practicable, by
salary grade, as he is compensated competitive examination. Merit and fitness in
according to his CES rank and not on the appointments to non-competitive positions are not
basis of the position or office which he determined by competitive examinations; but merit
occupies. (General v. Roco, 2001)
and fitness are required.29
2. Non-Career Service
J. Appointments in the Civil Service
The non-career service is characterized by:
1. Entrance on bases other than of the usual
Appointments in the civil service shall be made
tests of merit and fitness utilized for the career
only according to merit and fitness to be
service;

27
25
Cruz, Philippine Political Law, p.290 (1995 ed). Cruz, Philippine Political Law, p.291 (1995 ed).
28
26 Cruz, Philippine Political Law, p.292 (1995 ed).
Antonio B. Nachura, Outline/Reviewer in Political Law, 307
29
(2006) Bernas Primer at 375 (2006 ed.)

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determined, as far as practicable, by competitive appointment is permanent or temporary. (The CSC


examination. (Article IX-B, Section 2(2)) may, however, approve as merely temporary an
appointment intended to be permanent where the
Except: To positions which are policy-determining, appointee does not possess the requisite eligibility
primarily confidential, or highly technical. and the exigency of the service demands that the
position be filled up, even in a temporary capacity.)
1. Permanent Appointments
A permanent appointment shall be issued to a Role of CSC (1994 Bar Question)
person who meets all the requirements for the “All the Commission is authorized to do is to check
positions to which he is being appointed, including that the appointee possesses the qualifications and
the appropriate eligibility prescribed, in accordance appropriate eligibility. If he does, his appointment is
with the provision of laws, rules and standards approved; if not, it is disapproved.” (Lopez v. CSC)
promulgated in pursuance thereof. (Administrative
Code of 1987, Book V-A, Sec. 27) The CSC is not a co-manager, or surrogate
administrator of government offices and agencies.
2. Temporary Appointments Its functions and authority are limited to approving
In the absence of appropriate eligibles and it or reviewing appointments to determine their
becomes necessary in the public interest to fill a compliance with requirements of the Civil Service
vacancy, a temporary appointment shall be issued Law. On its own the Commission does not have the
to a person who meets all the requirement for the power to terminate employment or to drop
position to which he is being appointed except the members from the rolls. (Torres v. CSC, 2001)
appropriate civil service eligibility.
Substantive Requirement. A substantive
Temporary appointments do not have a requirement under Section 11 of the Omnibus
definite term and may be withdrawn or Service Rules and Regulations is that an
discontinued, with or without cause, by the appointment should be submitted to the CSC within
appointing power.30 The new Constitution now 30 days from issuance; otherwise it shall be
says: “Temporary employees of the ineffective. (See OMNC v. Macaraig, 2004)
Government shall be given such protection as
may be provided by law.” (The provision is not Legal Standing. Both the appointing authority and
self-executory) the appointee are the real party interest, and both
have legal standing, in a suit assailing a CSC order
Q: A permanent appointment is extended. The disapproving an appointment. (Abella Jr. v. CSC)
Civil Service Commission approves it as
temporary in the belief that somebody else is K. Disqualifications
better qualified. May the Commission do so? 1. No candidate who has lost in any election
A: No. The sole function of the Commission is shall, within one year after such election, be
to attest to the qualification of the appointee. appointed to any office in the Government or
(Luego v. CSC, 1986) any Government-owned or controlled
corporations or in any of their subsidiaries.
Discretion of Appointing Authority (§6)
The appointing authority has discretion who to 2. No elective official shall be eligible for
appoint even in the career service of the Civil appointment or designation in any capacity to
Service, where the appointee possesses the any public office or position during his tenure.
minimum qualification requirements prescribed by (§7)
law for the position. (Luego v. CSC, 143 SCRA 3. Unless otherwise allowed by law or by the
327) primary functions of his position, no appointive
official shall hold any other office or
Thus, even if officers and employees in the career employment in the Government or any
service of the Civil Service enjoy the right to subdivision, agency or instrumentality thereof,
preference in promotion, it is not mandatory that the including Government-owned or controlled
vacancy be filled by promotion. The appointing corporations or their subsidiaries. (§7)
authority should be allowed the choice of men of his
confidence, provided they are qualified and eligible.
Q: What is the purpose of the prohibition of appointment
(Central Bank v. CSC 171 SCRA 744)
of “lame ducks” in Section 6?
A: The extirpation of the “spoils system.”
The discretion of the appointing authority is not
only in the choice of the person who is to be Q: Are there exceptions to the rule against appointment
appointed, but also in the nature or character of of elective officials?
the appointment issued, i.e., whether the

30
Cruz, Philippine Political Law, p.293 (1995 ed).

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A: Yes. The Vice-President may be appointed member of directly affecting the rights and interests of the
the Cabinet. A member of Congress is designated to sit in public. (De los Santos v. Mallare)
the Judicial and Bar Council.31
3. Coverage of Security of Tenure
Q: Is the rule on appointive officials (§7) applicable to
members of Cabinet? No officer or employee of the civil service shall be
A: No. For them, the applicable rule is the stricter removed or suspended except for cause provided
prohibition in Article VII, Section 13.32 by law. (§2(3))

Q: Distinguish the rule on appointments of members of Security of Tenure is enjoyed only by those who
Congress and rule on elective officials (other than posses a permanent appointment.34
Congressmen).  One does not become a permanent appointee
A: The 1st paragraph of Section 7 governs elective unless qualified for the position, and this, even if the
officials. Unlike the provision for members of Congress in appointment extended is mistakenly designated as
Article VI Section 13, which does not prohibit acceptance permanent.
of an appointment but merely causes the forfeiture of the  The appointment of one who is not qualified
congressional seat if the holder accepts an appointment, can only be temporary and it is understood from the
1st paragraph of Section 7 prohibits elective officials outset that it is without fixity but enduring only at the
other than members of Congress from accepting pleasure of the appointing authority.
appointment during their tenure. If the elective official
 For an appointment to be permanent, it must be
accepts an appointment without first resigning his elective
a real appointment by the appointing authority and
position, the appointment is invalid. Neither, however,
not just a designation by one who does not have the
does he thereby forfeit his elective seat. (Flores v. Drilon,
appointing authority. (Thus, where the law says that
1993)
the officer is to be appointed by the President,
designation by the department secretary does not
Q: May Congress by law authorize the appointment of
result in a permanent appointment. (Binamira v.
elective officials?
Garucho))
A: No. Unlike the case of appointive officers in 2 nd
 Even one who has an appointment to a position
paragraph of Section 7, Congress may not create
which is subsequently converted to a career position
exception on elective officials mentioned in 1 st paragraph
must yield the position to one who has it if he or she
of Section 7.
does not possess career eligibility.(Dimayuga v.
Benedicto II)
L. Security of Tenure (1993, 1999, 2005 Bar Question)  A person lacking the necessary
qualifications who is given a temporary
No officer or employee of the civil service shall be appointment does not automatically become a
removed or suspended except for cause provided by law. permanent appointee when he or she acquires the
(§2(3)) required qualification. (For a temporary appointee to
become permanent, he must receive a new
commission, that is, a permanent appointment if he
1. Significance of Security of Tenure
is to be considered permanent.)
The efficiency of the a civil service system depends
largely on the morale of the officers and employees Persons occupying non-competitive positions
in the service. Morale, in turn, can be fatally are also covered by the guarantee of security of
undermined when the security of officers in the tenure. The distinction between competitive and
possession of their office is unprotected against the non-competitive is significant only for purposes of
arbitrary action of superior officers. appointment. The termination of the official relation
Hence, basic in any civil service is a guarantee of of officials and employees holding primarily
security of tenure, a guarantee against arbitrary confidential positions on the ground of loss of
impairment, whether total or partial of the right to confidence can be justified because in that case
continue in the position held.33 their cessation from office involves no removal but
expiration of the term of office. (Hernandez v.
2. “For Cause Provided by Law” Villegas, 14 SCRA 544, 1965)35
This is a guarantee of both procedural and
substantive due process. “For Cause” means for Facts: Petitioner a watchman in the office of the
reasons which the law and sound public policy provincial treasurer, was dismissed for the convenience of
recognize as sufficient for removal, that is legal the province. He has no civil service eligibility. He sued
cause, and not merely causes which the appointing for reinstatement.
power in the exercise of discretion may deem Held: Although petitioner is not a civil service eligible, this
sufficient. Moreover, the cause must relate to and is not a ground to dismiss him anytime without formal
charge. The position of watchman falls under the
effect the administration of the office, and must be
unclassified service. Positions in the unclassified
restricted to something of a substantial nature

31
Bernas Primer at 387 (2006 ed.)
32 34
Bernas Primer at 388 (2006 ed.) Bernas Commentary, p 1025(2003 ed).
33 35
Bernas Primer at 378 (2006 ed.) Bernas Primer at 379 (2006 ed.)

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service are also guaranteed security of tenure.


(Baquidra v. CFI, 80 SCRA 123)36 Thus, for abolition of office to escape the taint of
unconstitutionality, it must be made:
Q: Do appointees to the foreign service who do not
1. In good faith;
belong to the Career Corps enjoy security of tenure like
the Career Corp.? 2. Not for personal or political reasons; and
A: No. Political appointees in the foreign service possess 3. Not in violation of the law. (Roque v.
“tenure coterminous with that of the appointing authority Ericta)
or subject to his pleasure.” (Astraquillo et al v. Manglapus,
1990) Note: Abolition of office, even if arising from
reorganization mandated by law must be justified
Q: Binamira was “designated” by the Secretary of by good faith and public need. (Abrogar v.
Tourism as Manager of the Tourism Authority. The law,
Garrucho, 1991) Moreover, abolition of an office
however, requires that the Manager be appointed by the
President. Did Binamira acquire security of tenure? created by law can only be done also by law.
A: No, because he did no receive a valid appointment. (Eugenio v. CSC, 1995)
(Binamira v. garucho, 1990)
6. Reorganization (1988 Bar Question)
Q: Can one who does not have qualifications for a Abolition by law as a result of reorganization is a
position acquire security of tenure therein? recognized cause for termination of a government
A: No, security of tenure in an office is acquired only by employee.
one who has the qualifications for that office. (Dimayuga
v. Benedicto , 2002)
Q: Does the President have the authority to reorganize
the executive department?
Q: Are temporary appointees protected by the guarantee
A: Yes. And this can include deactivation of offices. As far
of security of tenure?
as bureaus, agencies or offices in the executive
A: No. they may be removed anytime. (Mendiola v.
department are concerned, the President’s power of
Tancinco, 1973) The new Constitution now says:
control may justify him to inactivate the functions of a
“Temporary employees of the Government shall be given
particular office, or certain laws may grant him the broad
such protection as may be provided by law.” (The
authority to carry out reorganization measures. (Buklod
provision is not self-executory)
ng Kawaning EIIB v. Executive Secretary, 2001)37
Q: What is the extent of the President’s disciplinary
authority over presidential appointees who belong to the 7. Declaration of Office Vacant
career service? Q: Section 35 of RA 6715 declared all positions of
A: The power is limited. Career service officers and the Commissioners, Executive Labor Arbiters and
employees who enjoy security of tenure may be removed Labor Arbiters of the present NLRC vacant.
only for any of the causes enumerated by law. (Larin .v. Petitioners question its constitutionality.
Executive Secretary, 280 SCRA 713)
A: Unconstitutional. While abolition by law as a
result of reorganization is a recognized cause for
4. Transfers termination of a government employee, it is not the
Permanent Transfer. The transfer of a permanent same as a declaration that the office is vacant. RA
employee to another permanent position without 6715 has effected no express abolition of the
the consent of the employee violates security of positions, neither an implied abolition (i.e., an
tenure. (Gloria. CA, 2000) irreconcilable inconsistency between the nature,
duties and functions of the petitioner’s offices under
Temporary Transfer. While a temporary transfer or the old rules and those of the new law) (Mayor v.
assignment of personnel is permissible even Hon. Macaraig, 1991)
without the employee’s prior consent, it cannot be
done when the transfer is a preliminary step toward 8. Preventive Suspension
his removal, or is a scheme to lure him away from Pending administrative investigation, it is provided
his permanent position, or designed to indirectly that the employee charged shall be subject to
terminate his service, or force his resignation. Such preventive suspension but the same shall be lifted
would in effect circumvent the provision which after ninety days if he is not a presidential
safeguards the tenure of office of those who are in appointee unless the delay in the conduct of the
the Civil Service. (Gloria v. CA, 2000) probe is imputable to him. (Book V(A), Sec. 46)
5. Abolition of Office 9. Back Wages
While abolition of office does not imply removal of When an employee is illegally dismissed, and his
the incumbent officer, this is true only where the reinstatement is later ordered by the Court, for all
abolition of office is done in good faith and not intents and purposes he is considered as not
merely as a cover for a removal otherwise not having left his office, and notwithstanding the
allowed by the Constitution. (Briones v. Osmena,
1958)
36 37
Jacinto Jimenez, Political Law Compendium, 370 (2006 ed.) Bernas Primer at 383 (2006 ed.)

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silence of the decision, he is entitled to payment of


back salaries. (Del Castillo v. CSC, 1997) 3. Meaning of Partisan Political Activity
As interpreted by the Civil Service Commission,
But where the reinstatement is ordered by the court partisan political activity means active support for
not as the result of exoneration but merely as an or affiliation with the cause of a political party
act of liberality of the Court of Appeals, the claim or candidate. This would include, among others,
for backwages for the period during which the being a candidate for any elective office or
employee was not allowed to work must be denied. delegate to any political convention, being an
The general rule is that a public official is not officer or member of any political committee, party
entitled to compensation if he has not rendered any or organization, delivering speeches, canvassing or
service. (Balitaosan v. DECS, 2003) soliciting votes or political support or contributions
for any political party or candidate or, in general,
The payment of backwages during the period of becoming actively identified with the success or
suspension of a civil servant who is subsequently failure of any candidate or candidates for election
reinstated is proper only if he is found innocent of to public office.41
the charges and the suspension is unjustified. (See
Brugada v. Sec. of Education, 2005) 4 Admin Code of 1987
“No officer or employee in the Civil Service,
M. Partisan Political Activity including members of the AFP, shall engage
directly or indirectly in any partisan political activity
1. Coverage or take part in any election except to vote nor shall
No officer or employee in the civil service shall he use his official authority or influence to coerce
engage, directly or indirectly, in any electioneering the political activity of any other person or body.
or partisan political campaign.(§2(4)) Nothing herein provided shall be understood to
prevent any officer or employee from expressing
The military establishment is covered by this his views on current political problems or issues, or
provision. Article XVI, Section 5(3) provides that no from mentioning the names of candidates for public
member of the military shall engage directly or office whom he supports: Provided, That public
indirectly in any partisan political activity except to officers and employees holding political offices may
vote. But this prohibition applies only to those in the take part in political and electoral activities but it
active military service, not to reservists. (Cailles v. shall be unlawful for them to solicit contributions
Bonifacio, 65 Phil 328) from their subordinates or subject them to any of
the acts involving subordinates prohibition in the
Exceptions: Election Code.” (Book V(A), Sec. 56)
1. Particularly exempted from the prohibition
against partisan political activity are N. Right to Self-Organization
members of the Cabinet.38
The right to self-organization shall not be denied to
2. Public officers and employees holding government employees. (§2(5))
political offices (who are allowed to take
part in political and electoral activities, Thus, the Congress may provide, for example, that
except to solicit contributions from their temporary employees who acquire civil service
subordinates or commit acts prohibited eligibility for the positions occupied by them shall be
under the Election Code) (Section 45 of automatically considered permanent appointees
Civil Service Law)39 thereto, or that temporary employees may not be
replaced during a fixed period except for cause, or
2. Purpose of the Prohibition Against Partisan shall be entitled to the same material benefits, such
as leave privileges, during incumbency.42
Political Activity
Q: May members of the Civil Service unionize?
1. To prevent the members of the civil
A: Yes.
service from using the resources of the
1. Article III, Section 8 guarantees the right
government for the benefit of their candidates;
of all “including those employed in the
2. To insulate them from political retaliation public and private sectors, to form
from winning candidates they have opposed or unions…”
not supported.40 2. Article IX-B, Section 2(5) states that “the
right to self-organization shall not be
38
Cruz, Philippine Political Law, p.297 (1995 ed). denied to government employees.”
39
Antonio B. Nachura, Outline/Reviewer in Political Law, 320
(2006)
41
40
Cruz, Philippine Political Law, p.298 (1995 ed; Santos v. Yatco, Section 14, Rule XVIII, Civil Service Rules.
42
106 Phil 745) Cruz, Philippine Political Law, p.300 (1995 ed).

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3. Article XIII, Section 3 guarantees “the right


of all workers to self-organization, 2. What is Prohibited
collective bargaining and negotiations, The prohibition of the Constitution was against
and peaceful concerted activities, double compensation or additional compensation,
including the right to strike in accordance not double appointments. Hence, a second position
with law.” may be held concurrently with the principal position
Their right to strike, however, may be limited as long as the two are not incompatible, but the
by law.43 incumbent cannot collect additional salaries for
services rendered unless specifically allowed by
Right to Strike law. (Quimson v. Ozaeta)
Right to organize does not include the right to
strike. Hence, the Court ruled that employees of Additional Compensation. There is
SSS and public school teachers do not have a additional compensation when for one and the
constitutional right to strike. This does not mean, same office for which a compensation has
however, that they may not be given the right to been fixed there is added to such fixed
strike by statute.44 compensation an extra reward in the form, for
instance, of a bonus. This is not allowed in the
O. Protection to Temporary Employees absence of law specifically authorizing such
extra reward. (Thus, where an officer’s pay as
Temporary employees of the Government shall be provided by law was a fixed per diem, the SC
given such protection as may be provided by law. disallowed additional compensation in the form
(§2(6)) of cost of living allowances as well as incentive
and Christmas bonuses. However, the Court
P. Standardization of Compensation was careful to point out that when a per diem
or an allowance is given as reimbursement for
The Congress shall provide for the standardization expenses incident to the discharge of an
of compensation of government officials and officer’s duties, it is not an additional
employees, including those in government-owned compensation prohibited by the Constitution.
or controlled corporations with original charters, (Peralta v. Mathay, 1967))
taking into account the nature of the responsibilities
pertaining to, and the qualifications required for, Double Compensation. Refers to two sets of
their positions. (Art. IX-B, §5) compensation for two different offices held
concurrently by one officer. In the instances
Q. Double Compensation/ Additional Compensation when holding a second office is allowed, when
an officer accepts a second office, he can
draw the salary attached to the second office
No elective or appointive public officer or employee
only when he is specifically authorized by law
shall receive additional, double, or indirect
to receive double compensation.45
compensation, unless specifically authorized by
law, nor accept without the consent of the
3. Meaning of “Specifically Authorized By Law”
Congress, any present, emolument, office, or title
of any kind from any foreign government. Strict Interpretation: “The authority required by
the Constitution to receive double or additional
Pensions or gratuities shall not be considered as compensation is a specific authority given to a
additional, double, or indirect compensation. (Art. particular employee or officer of the government
IX-B, §8) because of peculiar or exceptional reasons
warranting the payment of extra or additional
1. Reason for Prohibition compensation.” (Sadueste v. Surigao, 1941)
1. To inform the people of the exact amount (The above interpretation seems to be too strict. It
a public functionary is receiving from the seems in effect to require a special law for every
government so they can demand instance of additional or double compensation. An
commensurate services; obiter dictum in the later case of Quimson v.
2. To prevent the public functionary from Ozaeta, 1956, approves of a more liberal and
dividing his time among several positions perhaps administratively more rational approach.)46
concurrently held by him and ineptly
performing his duties in al of them because he Liberal Interpretation: “According to law, under
cannot devote to each the proper attention it certain circumstances, the President may authorize
deserves. double compensation in some cases, such as

43 45
Bernas Primer at 385 (2006 ed.) Bernas Primer at 389 (2006 ed.)
44 46
Bernas Commentary, p 1027(2003 ed). Bernas Primer at 389 (2006 ed.)

I sweat, I bleed, I soar… 14


Service, Sacrifice, Excellence
FRATERNAL ORDER OF UTOPIA
ATENEO DE MANILA UNIVERSITY
SCHOOL OF LAW
Atty. ARIS S. MANGUERA

government officials acting as members with Elections


compensation in government examining board…,
or department secretaries acting as members of Section 1. (1) There shall be a Commission on
Board of Directors of government corporations, and Elections composed of a Chairman and six
in such cases the prohibition against double Commissioners who shall be natural-born citizens of
compensation is not observed. If the President the Philippines and, at the time of their appointment,
at least thirty-five years of age, holders of a college
approves the double compensation, well and good.
degree, and must not have been candidates for any
The appointee whose appointment may then be elective positions in the immediately preceding
regarded as valid from the beginning could receive elections. However, a majority thereof, including the
extra compensation. If it is disapproved, then the Chairman, shall be members of the Philippine Bar
appointment will have to be withdrawn or who have been engaged in the practice of law for at
cancelled, unless of course, the appointee was least ten years.
willing to serve without compensation, in which (2) The Chairman and the Commissioners shall be
case there would be no valid objection. (Quimson appointed by the President with the consent of the
Commission on Appointments for a term of seven
v. Ozaeta, 98 Phil 705, 709-710))
years without reappointment. Of those first
appointed, three Members shall hold office for seven
When a law says that money generated by a school years, two Members for five years, and the last
may be used for “other programs/projects of the Members for three years, without reappointment.
university or college,” such a law is not Appointment to any vacancy shall be only for the
authorization for giving additional or double unexpired term of the predecessor. In no case shall
compensation.47 any Member be appointed or designated in a
temporary or acting capacity.
Q: Upon optional retirement from the judiciary on April 1,
1992, Santos was fully paid of his retirement gratuity
under RA 910, as amended. For five years thereafter he Sec. 2. The Commission on Elections shall exercise
has been receiving a monthly pension. Thereafter he was the following powers and functions:
appointed Director III of the defunct MMA. (1) Enforce and administer all laws and regulations
(1) Can he continue to receive his pension while receiving relative to the conduct of an election, plebiscite,
salary as director? initiative, referendum, and recall.
A: Yes. The second paragraph of Section 8 means that a (2) Exercise exclusive original jurisdiction over all
retiree receiving pension of gratuity can continue to contests relating to the elections, returns, and
receive such pension or gratuity even if he accepts qualifications of all elective regional, provincial, and
another government position to which another city officials, and appellate jurisdiction over all
compensation is attached. contests involving elective municipal officials decided
(2) Upon separation from MMA, can his separation pay by trial courts of general jurisdiction, or involving
under RA 7294 include years of service in judiciary? elective barangay officials decided by trial courts of
A: No. That would be double compensation for the same limited jurisdiction.
service in the judiciary for which he has already been Decisions, final orders, or rulings of the Commission
paid. Section 11 of RA 7924 does not specifically on election contests involving elective municipal and
authorize payment of additional compensation for years barangay offices shall be final, executory, and not
of government outside of the MMA. (Santos v. CA, appealable.
2000)48 (3) Decide, except those involving the right to vote,
all questions affecting elections, including
determination of the number and location of polling
O. Oath of Allegiance
places, appointment of election officials and
inspectors, and registration of voters.
All public officers and employees shall take an oath (4) Deputize, with the concurrence of the President,
or affirmation to uphold and defend this law enforcement agencies and instrumentalities of
Constitution. (Art. IX-B, §4) the Government, including the Armed Forces of the
Philippines, for the exclusive purpose of ensuring
free, orderly, honest, peaceful, and credible
III. Commission on Elections elections.
Composition of COMELEC (5) Register, after sufficient publication, political
Qualifications of COMELEC Commissioners parties, organizations, or coalitions which, in addition
Appointment of COMELEC Commissioners to other requirements, must present their platform or
Independence of COMELEC program of government; and accredit citizens' arms
of the Commission on Elections. Religious
Nature of COMELEC Powers
denominations and sects shall not be registered.
Constitutional Powers and Objectives Those which seek to achieve their goals through
Statutory Powers of COMELEC violence or unlawful means, or refuse to uphold and
En Banc and Division Cases adhere to this Constitution, or which are supported
Judicial Review by any foreign government shall likewise be refused
Open Party System registration.
Representation Financial contributions from foreign governments and
their agencies to political parties, organizations,
47
Benguet State U v. Colting, G.R. No. 169637, June 8, 2007. coalitions, or candidates related to elections,
48 constitute interference in national affairs, and, when
Bernas Primer at 390 (2006 ed.)

I sweat, I bleed, I soar… 15


Service, Sacrifice, Excellence
FRATERNAL ORDER OF UTOPIA
ATENEO DE MANILA UNIVERSITY
SCHOOL OF LAW
Atty. ARIS S. MANGUERA

accepted, shall be an additional ground for the Section 8. Political parties, or organizations or
cancellation of their registration with the coalitions registered under the party-list system, shall
Commission, in addition to other penalties that may not be represented in the voters' registration boards,
be prescribed by law. boards of election inspectors, boards of canvassers,
(6) File, upon a verified complaint, or on its own or other similar bodies. However, they shall be
initiative, petitions in court for inclusion or exclusion entitled to appoint poll watchers in accordance with
of voters; investigate and, where appropriate, law.
prosecute cases of violations of election laws, Section 9. Unless otherwise fixed by the
including acts or omissions constituting election Commission in special cases, the election period
frauds, offenses, and malpractices. shall commence ninety days before the day of
(7) Recommend to the Congress effective measures election and shall end thirty days thereafter.
to minimize election spending, including limitation of
places where propaganda materials shall be posted, Section 10. Bona fide candidates for any public
and to prevent and penalize all forms of election office shall be free from any form of harassment and
frauds, offenses, malpractices, and nuisance discrimination.
candidacies.
(8) Recommend to the President the removal of any
officer or employee it has deputized, or the Section 11. Funds certified by the Commission as
imposition of any other disciplinary action, for necessary to defray the expenses for holding regular
violation or disregard of, or disobedience to, its and special elections, plebiscites, initiatives,
directive, order, or decision. referenda, and recalls, shall be provided in the
(9) Submit to the President and the Congress, a regular or special appropriations and, once
comprehensive report on the conduct of each approved, shall be released automatically upon
election, plebiscite, initiative, referendum, or recall. certification by the Chairman of the Commission.

Section 3. The Commission on Elections may sit en A. Composition of COMELEC


banc or in two divisions, and shall promulgate its
rules of procedure in order to expedite disposition of There shall be a Commission on Elections
election cases, including pre- proclamation composed of a Chairman and six
controversies. All such election cases shall be heard Commissioners. (Article IX-C, Section 1(1))
and decided in division, provided that motions for
reconsideration of decisions shall be decided by the
Commission en banc. B. Qualifications of Members of COMELEC

1. Natural-born citizens of the Philippines;


Section 4. The Commission may, during the election
period, supervise or regulate the enjoyment or 2. At the time of their appointment, at least thirty-
utilization of all franchises or permits for the five years of age;
operation of transportation and other public utilities, 3. Holders of a college degree;
media of communication or information, all grants, 4. Must not have been candidates for any
special privileges, or concessions granted by the elective positions in the immediately preceding
Government or any subdivision, agency, or elections.
instrumentality thereof, including any government- A majority thereof, including the Chairman, shall be
owned or controlled corporation or its subsidiary.
members of the Philippine Bar who have been
Such supervision or regulation shall aim to ensure
equal opportunity, and equal rates therefor, for public engaged in the practice of law for at least ten
information campaigns and forums among years. (Article IX-C, Section 1(1))
candidates in connection with the objective of holding
free, orderly, honest, peaceful, and credible Q: For purposes of this provision, what does
elections. “engaged in the practice of law” mean?
A: It means to engage in “any activity, in or out of
court, which requires the application of law, legal
Section 5. No pardon, amnesty, parole, or
procedure, knowledge, training and experience.”
suspension of sentence for violation of election laws,
(Cayetano v. Monsod, 1991)
rules, and regulations shall be granted by the
President without the favorable recommendation of
the Commission. C. Appointment of COMELEC Members

Section 6. A free and open party system shall be The Chairman and the Commissioners shall be
allowed to evolve according to the free choice of the appointed by the President with the consent of the
people, subject to the provisions of this Article. Commission on Appointments for a term of seven
years without reappointment.
Section 7. No votes cast in favor of a political party,
organization, or coalition shall be valid, except for Of those first appointed, three Members shall hold
those registered under the party-list system as office for seven years, two Members for five years,
provided in this Constitution. and the last Members for three years, without
reappointment.

I sweat, I bleed, I soar… 16


Service, Sacrifice, Excellence
FRATERNAL ORDER OF UTOPIA
ATENEO DE MANILA UNIVERSITY
SCHOOL OF LAW
Atty. ARIS S. MANGUERA

Appointment to any vacancy shall be only for the promulgated by the COMELEC, were declared
unexpired term of the predecessor. In no case shall unconstitutional. (Makalintal v. COMELEC, 2003)
any Member be appointed or designated in a
temporary or acting capacity. (Article IX-C, Section E. Nature of powers of the COMELEC
1(2))
Like the CSC, the COMELEC is an administrative
Q: What is the common starting point for appointees agency. As such, therefore, the power it possesses
to the Commission? are executive, quasi-judicial and quasi-
A: February 2, 1987, the day the new Constitution
legislative.
took effect. Thus, in reckoning the seven year term,
counting must always start from February 2 even if By exception, however, it has been given judicial
the appointee took office later. This way the power as judge with exclusive original jurisdiction
staggering of the terms is preserved.49 over “all contest relating to the election, returns,
and qualifications of all elective regional, provincial,
Facts: Respondents were appointed as ad interim and city officials, and appellate jurisdiction over all
Chairman and Commissioners of the COMELEC. As their contest involving elective municipal officials
appointments were not acted upon by the Commission on decided by trial courts of general jurisdiction or
Appointments (COA), the President renewed their ad
involving elective barangay officials decided by trial
interim appointments twice. Petitioner questioned the
validity of appointments on the ground that they violated courts of limited jurisdiction.51
the constitutional prohibition against temporary
appointments and reappointments to the COMELEC. F. Constitutional Powers of COMELEC (under Article
Held: An ad interim appointment is a permanent IX-C)
appointment, because it takes effect immediately and can (Read complete text of Section 2 above)
no longer be withdrawn by the President once the
appointee has qualified into the office. The fact that is
subject to confirmation by COA does not alter its
1. Enforcement of election laws. (Section 2
permanent character. An ad interim appointment means it (1), (4),(6) and (8)).
is a permanent appointment made by the President in the 2. Deciding election contests. (Section
meantime that Congress is in recess. 2(2)).
The prohibition on reappointment in Section 1(20, 3. Deciding Administrative Questions.
Article IX-C of the Constitution does not apply to a (Section 2(3)).
by-passed ad interim appointment, because there is 4. Deputization of Law-enforcement
no final disapproval under Article VII, Section 16. agencies. (Section 2(4)).
There must be confirmation by the COA of the
previous appointment before the prohibition on
5. Registration of Political Parties.
appointment can apply. If an interim appointment (Section 2(5))
cannot be renewed, the President will hesitate to make ad 6. Improvement of elections. (Section 2(7),
interim appointments because most of the appointees will (8) and (9)).
effectively disapproved by mere inaction of the COA. This 7. Power to Promulgate Rules (Section 3)
will nullify the constitutional power of the President to 8. Supervision or regulation of franchises
make ad interim appointments. (Matibag v. Benipayo,380 (Section 4)
SCRA 49)50 9. Power to recommend executive
Q: In the absence of a Chairman of the COMELEC, the
clemency for violation of election laws and
President designated Commissioner Yorac Acting rules. (Section 5)
Chairman. Valid? 10. In special cases, power to fix the
A: No. Article IX-C, Section 1(2) prohibits the appointment election period. (Section 9)
of Members in a temporary or acting capacity. The choice
of temporary chairman fall under the discretion of the 1. Enforcement of Election Laws
Commission and cannot be exercised for it by the
President. (Brillantes v. Yorac, 1990) Section 2(1): “The Commission on Elections
shall xxx [e]nforce and administer all laws and
D. Independence of COMELEC regulations relative to the conduct of an
election, plebiscite, initiative, referendum, and
For violating the constitutional mandate of recall.”
independence of the COMELEC, Sections 17.19 (See also Section 2(6) and (8))
and 25 of RA 9189 (Overseas Absentee Voting Act
of 2003) insofar as they relate to the creation of Such authority includes:
Joint Congressional Oversight Committee and 1. Promulgate rules and regulations for the
grant to it the power to review, revise, amend and implementation of election laws. (Gallardo
approve the Implementing Rules and Regulations v. Tabamo, 1993)
2. Power to Ascertain identity of a political
49 party and its legitimate officer. (LDP v.
Bernas Primer at 391 (2006 ed.) COMELEC)
50
Jacinto Jimenez, Political Law Compendium, 381 (2006 ed.)
51
Bernas Primer at 393 (2006 ed.)

I sweat, I bleed, I soar… 17


Service, Sacrifice, Excellence
FRATERNAL ORDER OF UTOPIA
ATENEO DE MANILA UNIVERSITY
SCHOOL OF LAW
Atty. ARIS S. MANGUERA

3. By virtue of such authority, the COMELEC The regular courts have no jurisdiction to entertain
can require compliance with the rules for a petition to enjoin the construction of public works
the filing of certificates of candidacy, projects within 45 days before an election.
prevent or prosecute election offenses, (Gallardo v. Tabamo, 218 SCRA 253)
supervise the registration of voters and
the holding of the polls, and see to tie that Section 2(4): “The Commission on Elections
the canvass of the votes and the shall xxx [d]eputize, with the concurrence of the
proclamation of the winners are done in President, law enforcement agencies and
accordance with law.52 instrumentalities of the Government, including
the Armed Forces of the Philippines, for the
4. Such authority includes the power to
exclusive purpose of ensuring free, orderly,
annul an illegal registry of voters, to honest, peaceful, and credible elections.”
cancel a proclamation made by the board
of canvassers on the basis of irregular or
Section 2(8): “The Commission on Elections
incomplete canvass, and even to oust the shall xxx [r]ecommend to the President the
candidate proclaimed notwithstanding that removal of any officer or employee it has
he has already assumed office. It may deputized, or the imposition of any other
also reject nuisance candidates.53 disciplinary action, for violation or disregard of,
5. Power to annul an entire municipal or disobedience to, its directive, order, or
election on the ground of post-election decision.”
terrorism. (COMELEC has extensive powers
under the general authority to “enforce and Article IX-C, Section 2(8); Section 52, Omnibus
administer all laws relative to the conduct of Election Code: The COMELEC has the power to
elections.” (Biliwang v. COMELEC, 1982) (Here recommend the imposition of disciplinary action
the COMELEC had found that it was impossible upon an employee it has deputized for violation of
to distinguish the illegal from the valid returns.
its order.
(Note also that the COMELEC annulled the
elections after proclamation))
Since the COMELEC can recommend that
Power to promulgate rules and regulations for disciplinary action be taken against an officer it
the implementation of election laws. The had deputized, it can investigate an
Commission may promulgate rules and regulations administrative charge against such an officer
for the implementation of election laws. Such to determine whether or not it should
power is deemed implicit in the power to recommend that disciplinary action be taken
implement regulations. (Gallardo v. Tabamo, 1993) against him. (Tan v. COMELEC, 237 SCRA
353)
Accordingly, where the subject of the action is
the enforcement of the provisions of the Section 2(6): “The Commission on Elections
Omnibus Election Code, the case is within the shall xxx [f]ile, upon a verified complaint, or on
its own initiative, petitions in court for inclusion
exclusive jurisdiction of the COMELEC, not of or exclusion of voters; investigate and, where
the regular courts. (Gallardo v. Tabamo, 1993) appropriate, prosecute cases of violations of
election laws, including acts or omissions
Power to Ascertain identity of a political party constituting election frauds, offenses, and
and its legitimate officer. The power to enforce malpractices.”
and administer laws relative to the conduct
elections, decide all questions affecting elections, Jurisdiction to investigate and prosecute
register and regulate political parties, and ensure cases. The COMELEC has exclusive jurisdiction
orderly elections, include the ascertainment of the to investigate and prosecute cases for violations of
identity of political party and its legitimate officers. election laws. (De Jesus v. People, 120 SCRA 760)
(LDP v. COMELEC, 2004) (In this case the SC held However, the COMELEC may validly delegate this
that the COMELEC erred in resolving the power to the Provincial Fiscal [Prosecutor]. (People
controversy by granting official candidate status to v. Judge Basilla, 179 SCRA 87)
the LDP candidates either the “Angara Wing” or the
“Aquino Wing”, because clearly, it is the Party Finding of probable cause. It is well-settled that
Chairman, who is the Chief Executive Officer of the the finding of probable cause in the prosecution of
Party, who has the authority to represent the party election offenses rests in the COMELEC’s sound
in all external affairs and concerns, and to sign discretion. The COMELEC exercises the
documents for and in its behalf.) constitutional authority to investigate and where
appropriate, prosecute cases for violation of
election laws, including acts or omissions
constituting election, fraud, offenses and
52
Cruz, Philippine Political Law, p. 308 (1995 ed). malpractices. (Baytan v. COMELEC, 2003)
53
Cruz, Philippine Political Law, p. 308 (1995 ed).

I sweat, I bleed, I soar… 18


Service, Sacrifice, Excellence
FRATERNAL ORDER OF UTOPIA
ATENEO DE MANILA UNIVERSITY
SCHOOL OF LAW
Atty. ARIS S. MANGUERA

No obligation to search for evidence needed. immunity from the power of the Commission on the
COMELEC has no obligation to search for the argument that he comes under the executive
evidence needed. ”The task of the COMELEC as department. The Commission has power all
investigator and prosecutor, acting upon any persons required by law to perform duties relative
election offense complaint is not searching and to the conduct of elections. However, under Section
gathering of proof in support of a complaint for 2(8), the Commission may merely issue a
alleged commission of an election offense. A recommendation for disciplinary action to the
complainant, who in effect accuses another person President.)55
of having committed an act constituting an election
offense, has the burden, as it is his responsibility to 2. Deciding Election Contests
follow through his accusation and prove the
complaint.”54 Section 2(2): “The Commission on Elections
shall xxx [e]xercise exclusive original
Subject to authority of trial judge. When the jurisdiction over all contests relating to the
Commission acts as prosecutor, its actions and elections, returns, and qualifications of all
elective regional, provincial, and city officials,
decision are subject to the authority of the trial and appellate jurisdiction over all contests
judge. Even after the Commission has decided that involving elective municipal officials decided by
an information be filed, a trial judge before whom trial courts of general jurisdiction, or involving
the information is filed may still order elective barangay officials decided by trial
reinvestigation. courts of limited jurisdiction.
Decisions, final orders, or rulings of the
Authority to decide whether to appeal. This Commission on election contests involving
power to investigate and prosecute election law elective municipal and barangay offices shall be
final, executory, and not appealable. “
violations includes the authority to decide whether
or not to appeal the dismissal of a criminal case by
the trial court. (COMELEC v. Silva, 286 SCRA 177) Powers under Section 2(2):
1. Exclusive original jurisdiction over all
Q: The COMELEC is given authority to investigate contests relating to the elections, returns, and
and prosecute violations of the election law and qualifications of all elective regional, provincial,
Section 7 says that decisions, orders and rulings of and city officials;
the Commission may be reviewed only by the SC 2. Appellate jurisdiction over all contests
on certiorari. After the preliminary investigation
involving elective municipal officials
conducted by COMELEC lawyers and after the
decided by trial courts of general
COMELEC approves the report and orders the
jurisdiction, or involving elective barangay
filing of a criminal case, may the trial court order a
officials decided by trial courts of limited
reinvestigation and require the presentation of the
jurisdiction.
records of the preliminary investigation made by
(The enumeration found in Section 2(2)
the COMELEC?
excludes jurisdiction over elections for the
A: Yes. The final orders, rulings and decision of the
Sangguniang Kabataan. Jurisdiction over
COMELEC reviewable on certiorari by the SC as
these is given to the DILG. (Alunan III v.
provided by law are those rendered in actions of
Mirasol, 1997)
proceedings before the COMELEC and taken
cognizance of by said body in the exercise of its
adjudicatory or quasi-judicial powers. (such as The COMELEC shall exercise… exclusive
decisions in election contests. It does not refer to original jurisdiction over all contests relating to
prosecutory function of the Commission) The RTC the elections, returns, and qualifications of all
on the other hand, is given exclusive authority to try elective regional, provincial, and city officials.56
and decide criminal cases involving elections.
When the COMELEC as prosecutor files a case Who decides problems involving
before a trial court, the trial court acquires “elections, returns, and qualifications” of
jurisdiction and all subsequent dispositions of the candidates?
case must be subject to approval by the court. Congressional Candidate: Once a winning
Hence, the court may order reinvestigation and
require submission of records of the preliminary candidate has been proclaimed, taken his
examination to satisfy itself that there is probable oath, and assumed office as a Member of the
cause for the issuance of a warrant of arrest. House of Representatives, COMELEC’s
(People v. Hon. Delgado, 1990) jurisdiction over election contests relating to
his election, returns and qualifications ends,
The power of the Commission under Section 2(6) and the HRET”s own jurisdiction begins
covers not just criminal cases but also (Aggabao v. COMELEC, 2005)
administrative cases. (Thus, where the
Commission has deputized a City Prosecutor as
election canvasser, such Prosecutor cannot claim 55
Bernas Commentary, p 1055 (2003 ed).
56
Dean Bautista: Decide questions affecting elections (but not to be
54
Kilosbayan v. COMELEC (1997) voted for).

I sweat, I bleed, I soar… 19


Service, Sacrifice, Excellence
FRATERNAL ORDER OF UTOPIA
ATENEO DE MANILA UNIVERSITY
SCHOOL OF LAW
Atty. ARIS S. MANGUERA

Municipal Offices: In the case of municipal The COMELEC shall have …appellate jurisdiction
offices; even if the case began with the over all contests involving elective municipal officials
COMELEC before proclamation before the decided by trial courts of general jurisdiction, or
controversy is resolved, it ceases to be a pre- involving elective barangay officials decided by trial
courts of limited jurisdiction.
proclamation controversy and becomes a
contest cognizable by the Court of First
Instance.57 Appellate Jursidiction. The COMELEC exercises
appellate jurisdiction over contests involving
Q: What is the difference between the jurisdiction municipal or barangay officials as originally decided
of the COMELEC before the proclamation and its by regional or municipal trial courts, and its
jurisdiction after proclamation? decision in these cases shall be final, executory
A: The difference lies in the due process and not appealable
implications. COMELEC’s jurisdiction over a pre- Q: Section 9 of RA 6679 makes decisions of a
proclamation controversy is administrative or quasi- municipal or metropolitan court in a barangay
judicial and is governed by the less stringent election appealable to the regional trial court. Is this
requirements of administrative due process valid?
(although the SC has insisted that question on A: No. The COMELEC has exclusive appellate
“qualifications” should be decide only after a full- jurisdiction over all contests involving barangay
dress hearing). elective officials decided by trial court of limited
COMELEC’s jurisdiction over “contests” is judicial jurisdiction. The jurisdiction of the COMELEC,
and is governed by the requirements of judicial however, is over questions of fact; questions of law
process. Hence, even in the case of regional or go to the Supreme Court. (Flores v. COMELEC,
provincial or city offices, it does make a difference 1990)
whether the COMELEC will treat it as a pre-
proclamation controversy or as a contest.58 Power to issue writs. The appellate
jurisdiction includes, by virtue of Section 50 of
Exclusive Jurisdiction over pre-proclamation BP 967, the power to issue writs of certiorari,
cases. The COMELEC shall have exclusive prohibition and mandamus.63
jurisdiction over all pre-proclamation controversies.
(BP 881, Section 242) This should be construed as The COMELEC has the power to review
referring only to regional, provincial and city decisions of municipal courts on municipal
officials.(Pangilinan v. COMELEC)59 election contests. And when it does so, the
entire case is not opened as what happens in
RA 7166 Section 15 prohibits pre-proclamation appeals on criminal cases.64
controversies in national offices (except on
questions involving the composition and Period to Appeal from RTC. Appeal to the
proceedings of the Board of Canvassers).60 COMELEC from the RTC must be filed within
5 days from receipt of a copy of the decision. A
As regards national offices, No pre-proclamation motion for reconsideration of the RTC decision
case is allowed regarding the preparation, is a prohibited pleading, and does not interrupt
transmission, receipt, custody and appreciation of the running of the period for appeal. (Veloria v.
the election returns or certificate of canvass. COMELEC)65
(Pangilinan v. COMELEC, 228 SCRA 36)61
Under COMELEC Rules of Procedure, the
In a congressional election, the losing mere filing of the Notice of Appeal is not
candidate cannot file a petition for correction enough; it should be accompanied by payment
of manifest errors. (Vinzons-Chato v. of the correct amount of appeal fee, in order
COMELEC, 520 SCRA 166)62 that the appeal may be deemed perfected.66
Q: Does the COMELEC have authority to review contests
involving the election of officers of a barangay federation? Execution Pending Appeal. The COMELEC
A: No. the power of the COMELEC is over popular cannot deprive the RTC of its competence to
elections. (Taule v. Secretary Santos, 1991) order execution of judgment pending appeal,
because the mere filing of appeal does not
divest the trial court of its jurisdiction over a
case and the authority to resolve pending
57
Bernas Primer at 396 (2006 ed.)
58
Bernas Primer at 391 (2006 ed.) 63
Bernas Commentary, p 1048 (2003 ed).
59
Jacinto Jimenez, Political Law Compendium, 390 (2006 ed.) 64
Manzala v. Comelec, GR 176211m May 8, 2007.
60
Antonio B. Nachura, Outline/Reviewer in Political Law 330 (2006 65
Antonio B. Nachura, Outline/Reviewer in Political Law 332 (2006
ed.) ed.)
61
Jacinto Jimenez, Election Law 37 (2008). 66
Antonio B. Nachura, Outline/Reviewer in Political Law 332 (2006
62
Jacinto Jimenez, Election Law 37 (2008). ed.)

I sweat, I bleed, I soar… 20


Service, Sacrifice, Excellence
FRATERNAL ORDER OF UTOPIA
ATENEO DE MANILA UNIVERSITY
SCHOOL OF LAW
Atty. ARIS S. MANGUERA

incidents. (Edding v. COMELEC, 246 SCRA it did not involve the violation of any legally
502)67 demandable right and its enforcement. There was
no plaintiff or defendant in the case. It merely
Rationale. Such exception is allowed in involved the ascertainment of the vote of the
election cases “to give as much recognition to electorate of Taguig.71
the worth of the trial judge’s decision as that
which is initially ascribed by the law to the Q: Does the Commission have the power to transfer
proclamation of the board of canvassers”. municipalities form one congressional district to another
Indeed, to deprive trial courts of their discretion for the purpose of preserving proportionality?
to grant execution pending appeal would “bring A: No. This is not one of the broad power granted by
back the ghost of the ‘grab-the-proclamation, Section 2(2). Neither is it what is referred to by the
prolong the protest’ techniques so often Ordinance Appended to the Constitution (Sections 2 and
resorted to by devious politicians in the past in 3) authorizing the Commission to make “ minor
their efforts to perpetuate their hold on an adjustments”. The deliberations of the Constitutional
elective public office.” (Santos v. COMELEC, Commission on the subject clearly excluded the power to
2003)68 transfer whole municipalities. (Montejo v. COMELEC,
1995)
It was held that RTC may grant a motion for
execution pending appeal when there are valid
and special reasons to grant the same such as: Power to Punish Contempt. The power to punish
1. The public interest or the will of the contempt can be exercised only in connection with
electorate; judicial functions and not administrative functions.
2. The shortness of the remaining portion of (Masangcay v. COMELEC, 6 SCRA 27)
the term;
3. The length of time that the election contest Decisions, final orders, or rulings of the
has been pending. (Navarosa v. Commission on election contests involving
COMELEC, 2003) elective municipal and barangay offices shall
be final, executory, and not appealable. “
The motion for execution pending appeal
should be filed before the expiration of the
. (This rule does not conflict with the minimum
period for appeal. (Relampos v. Cumba, 243 appellate jurisdiction of the SC under Article VIII,
SCRA 757) Section 5(2), which covers only the final judgments
and orders of courts of justice. The Commission is
Q: Does the COMELEC have jurisdiction to issue not a judicial tribunal but only an administrative
writs of certiorari, mandamus, quo warranto or body.) It should be noted that, its decisions, orders
habeas corpus? and rulings may be challenged in a petition for
A: Yes, it does, but only in aid of its appellate certiorari with the SC under Article IX-A, Section 7,
jurisdiction over election protest cases involving
elective municipal officials decided by courts of
on the ground of grave abuse of discretion.72
general jurisdiction. (This means that its jurisdiction
is concurrent with that of the Supreme Court under The non-appealable character refers only to
Article VIII, Section 5(1). (Carlos v. Judge Angeles, questions of fact and not of law. Such decisions
2000)69 remain subject to the jurisdiction of the SC through
the special civil action of certiorari under Rule 65 in
Congressional Candidate. The general rule is accordance with Article IX-A, Section 7.(Rivera v.
that the proclamation of a congressional candidate COMELEC, 1991)
divests COMELEC of jurisdiction in favor of the
proper Electoral Tribunal – unless the proclamation 3. Deciding Administrative Questions
was invalid.70
Section 2(3): “The Commission on Elections
Plebiscites. The Comelec has jurisdiction over shall xxx [d]ecide, except those involving the
cases involving plebiscites. Thus where the right to vote, all questions affecting elections,
question was whether the electorate of Taguig including determination of the number and
location of polling places, appointment of
voted in favor of, or against the conversion of the
election officials and inspectors, and registration
municipality of Taguig into a highly urbanized city in of voters.”
the plebiscite conducted for the purpose, the
Comelec correctly assumed jurisdiction. The
Questions on Right to Vote. The COMELEC
problem was not for regular courts. It was not a
cannot decide the right to vote, which refers to the
case calling for the exercise of judicial power since
inclusion or exclusion of voters. (2001 Bar
67 Question)
Antonio B. Nachura, Outline/Reviewer in Political Law 332 (2006
ed.)
68
Antonio B. Nachura, Outline/Reviewer in Political Law 332 (2006
ed.) 71
Buac and Bautista v. Comelec, G.R. No. 155855, January 26,
69 2004.
Bernas Primer at 393 (2006 ed.)
70 72
Planas v Comelec, G.R. No. 167594, March 10, 2006. Cruz, Philippine Political Law, p. 311 (1995 ed).

I sweat, I bleed, I soar… 21


Service, Sacrifice, Excellence
FRATERNAL ORDER OF UTOPIA
ATENEO DE MANILA UNIVERSITY
SCHOOL OF LAW
Atty. ARIS S. MANGUERA

The Constitution prevents the COMELEC, in


the exercise of its administrative powers and Q: What is one instance that the COMELEC is
functions, to decide questions involving the subordinated to the President?
right to vote. (It may do so, however, in the A: Section 2(8) provides that the COMELEC may merely
“recommend to the President the removal of any officer
discharge of its duties concerning registration
or employee it has deputized, or the imposition of any
of voters, except that its decision shall be disciplinary action, for violation or disregard of, or
subject to judicial review. Such power comes disobedience to, its decision, order, or directive.”75
within its quasi-judicial authority and may be
validly exercised as incidental to its powers of 5. Registration of Political Parties
regulation.)73
Section 2(5): “The Commission on elections
Change in polling places. While changes in the shall xxx [r]egister, after sufficient publication,
location of polling places may be initiated by the political parties, organizations, or coalitions
written petition of the majority of the voters, or by which, in addition to other requirements, must
agreement of all the political parties, ultimately, it is present their platform or program of
the COMELEC that determines whether a change government; and accredit citizens' arms of the
Commission on Elections. Religious
is necessary after due notice and hearing. (Cawasa denominations and sects shall not be
v. COMELEC, 2002) registered. Those which seek to achieve their
goals through violence or unlawful means, or
The Supreme Court held that the contempt power refuse to uphold and adhere to this Constitution,
conferred upon the COMELEC by law was an or which are supported by any foreign
inherently judicially prerogative and could not be government shall likewise be refused
exercised by it in connection with the discharge of registration.
its purely routinary or administrative duties, as Financial contributions from foreign
governments and their agencies to political
distinguished from quasi-judicial duties. (Guevara parties, organizations, coalitions, or candidates
v. COMELEC) related to elections, constitute interference in
national affairs, and, when accepted, shall be
an additional ground for the cancellation of their
4. Deputization of Law Enforcement Agencies registration with the Commission, in addition to
other penalties that may be prescribed by law.”
Section 2(4): “The Commission on Elections
shall xxx [d]eputize, with the concurrence of the Purpose of Registration.
President, law enforcement agencies and 1. To acquire juridical personality
instrumentalities of the Government, including 2. To qualify for accreditation,
the Armed Forces of the Philippines, for the 3. To be entitled to the rights of political
exclusive purpose of ensuring free, orderly,
parties, a political party must be registered
honest, peaceful, and credible elections.“
with the COMELEC (Section 60, Omnibus
Election Code)
It should be stressed that this power may be
exercised only with the consent of the President, or
Reason for presentation of platforms and
negatively stated, may not be exercised without his
programs. It is essential that political parties
permission.74
present their programs and platforms of
government for the information of the electorate
Q: What is the scope of power of the Commission over
deputized officers? whose support they are seeking as otherwise the
A: The power of the Commission over deputized officers voters may not properly and intelligently exercise
under Section 2(6) covers not just criminal cases but also their suffrages. This rule will also enable the
administrative cases. Thus, where the Commission has Commission to determine if the party seeking
deputized a City Prosecutor as election canvasser, such registration is not entitled thereto because it is a
Prosecutor cannot claim immunity form the power of the religious group, or is subversive in nature or
Commission on the argument that he comes under the purpose, or does not recognize the Constitution, or
executive department. The Commission has power over
being supported by a foreign government.
all persons required by law to perform duties relative to
the conduct of elections. However, under Section 2(8),
the Commission may merely issue a recommendation for Political Party. Section 80 of the 1965 Election
disciplinary action to the President. (Tan v. COMELEC, Code and Section 22 of the 1971 Election Code
1994) defined a political party as “an organized group of
person pursuing the same political ideals in a
73
Cruz, Philippine Political Law, p. 313 (1995 ed); Nachura: As an government and includes its branches and
incident to its duties concerning registration of voters, it may divisions..” the 1978 Election Code adopted the
decide a question involving the right to vote, but its decision aforequoted definition by providing in Section 199
shall be subject to judicial review. Antonio B. Nachura,
Outline/Reviewer in Political Law 334 (2006 ed.)
74 75
Bernas Commentary, p 1052 (2003 ed). Cruz, Philippine Political Law, p. 314 (1995 ed).

I sweat, I bleed, I soar… 22


Service, Sacrifice, Excellence
FRATERNAL ORDER OF UTOPIA
ATENEO DE MANILA UNIVERSITY
SCHOOL OF LAW
Atty. ARIS S. MANGUERA

that “any other group of persons pursuing the same Q: To register for purposes of the electoral process, must
political ideals in the government may register with an organization be a political party?
the Commission and be entitled to the same right A: No.77
and privileges.” (Geronimo v. COMELEC, 1981)76
Q: Is there a distinction between an accredited political
party and a registered political party?
Groups which cannot be registered as political A: The concept of accreditation no longer appears in the
parties: new Constitution. For purpose of the electoral process, all
1. Religious denominations or sects; parties, organizations and coalitions are considered
2. Those who seek to achieve their goals equal.78
through violence or unlawful means;
3. Those who refuse to uphold and adhere to 6. Improvement of Elections
the Constitution; and
4. Those supported by foreign governments Section 2(7): “The Commission on Elections
(Article IX-C, Section2(5)) shall xxx [r]ecommend to the Congress effective
measures to minimize election spending,
including limitation of places where propaganda
Grounds for Cancellation of Registration. Under materials shall be posted, and to prevent and
RA 7941, COMELEC may motu propio or upon a penalize all forms of election frauds, offenses,
verified complaint of any interested party, refuse or malpractices, and nuisance candidacies.”
cancel, after due notice and hearing, the
registration of any national, regional or sectoral The Omnibus Election Code has expanded the list
party, organization or coalition, on any of the of prohibited election practices, changed the
following grounds: limitations on the expenses to be incurred by
1. It is a religious sect or denomination, political parties or candidates, allows the
organization or association organized for COMELEC to refuse to give due course to
religious purposes; certificates of nuisance candidates and assures
2. Advocates violence or unlawful means to seek equal treatment for all candidates privileged or
its goal; not.79
3. It is a foreign party or organization;
4. It is receiving support from any foreign Section 2(9): “The Commission on Elections
government; foreign political party, foundation, shall xxx [s]ubmit to the President and the
organization, whether directly or through any Congress, a comprehensive report on the
of its officers or members, or indirectly through conduct of each election, plebiscite, initiative,
third parties, for partisan election purposes; referendum, or recall.”
5. It violates or fails to comply with laws, rules
and regulations relating to elections; The report mentioned here can be the basis of
6. T declares untruthful statements in its petition; legislation that may improve the conduct of future
7. It has ceased to exist for at least one year; elections.80
8. It fails to participate in the last two preceding
elections, or fails to obtain at least 2% of the 7. Power to Promulgate Rules of Procedure
votes cast under the party-list system in the
two preceding elections for the constituency in Section 3: “The Commission on Elections may
which it was registered. sit en banc or in two divisions, and shall
promulgate its rules of procedure in order to
expedite disposition of election cases, including
One candidate per party for each Political Party.
pre- proclamation controversies. All such
The SC annulled the COMELEC resolution dividing election cases shall be heard and decided in
the LDP into “wings”, each of which nominate division, provided that motions for
candidates for every elective position and be reconsideration of decisions shall be decided by
entitled to representation in the election the Commission en banc.”
committees that the COMELEC create. The Court
declared that the electoral process envisions one COMELEC Rules v. Rules of Court. Should there
candidate from a political party for each position, be a conflict between a rule of procedure
and disunity and discord amongst members of a promulgated by the Commission and a Rule of
political party should not be allowed to create a Court, if the proceeding is before the Commission ,
mockery thereof. By according both wings the Commission rule should prevail; but if the
representation in the election committees, the proceeding is in court, the Rules of Court should
COMELEC has eroded the significance of political prevail. ( Aruelo v. CA, 1993)
parties and effectively divided the opposition. (LDP
v. COMELEC) 77
Bernas Primer at 405 (2006 ed.)
78
Bernas Primer at 405 (2006 ed.)
79
Cruz, Philippine Political Law, p. 317 (1995 ed).
76 80
Bernas Primer at 404 (2006 ed.) Cruz, Philippine Political Law, p. 317 (1995 ed).

I sweat, I bleed, I soar… 23


Service, Sacrifice, Excellence
FRATERNAL ORDER OF UTOPIA
ATENEO DE MANILA UNIVERSITY
SCHOOL OF LAW
Atty. ARIS S. MANGUERA

laws, rules, and regulations shall be granted by


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

I sweat, I bleed, I soar… 24


Service, Sacrifice, Excellence
FRATERNAL ORDER OF UTOPIA
ATENEO DE MANILA UNIVERSITY
SCHOOL OF LAW
Atty. ARIS S. MANGUERA

10. Power to prescribe use or adoption of the necessary that the petition must show on its face
latest technological devices. (BP 881, two conditions:
Section 52(i)) 1. That no voting has taken place in the precinct
11. Power to prescribe latest technological and on the date fixed by law or, even if there was
electronic devices upon notice to voting, the election nevertheless results in a
accredited political parties and candidates failure to elect; and
not less than 30 days before. The 2. The votes not cast would affect the results of
COMELEC is authorized to use an the election. (Mitmug v. COMELEC, 230 SCRA
AUTOMATED ELECTION SYSTEM for the 54)
process of voting, counting votes, and Thus, in this case, for failure of the petition to show
canvassing of the results. (RA 8436, Section the existence of the first condition, the COMELEC
6) did not commit grave abuse of discretion when it
12. Power to carry out continuing systematic dismissed the petition even without a hearing.
campaign. (BP 881, Section 52(j))
13. Power to enlist non-partisan group or G. Examples of Matters Not Within the
organizations of citizens (BP 881, Section Powers/Jurisdiction of COMELEC
52(k))
1. COMELEC has no power to decide questions
14. Power to issue search warrants during
“involving the right to vote.” (Section 2(3)
election periods. (BP 881, Section 57(1))
Section 2(6) places cases involving “inclusion
15. Power to stop any election activity, or
or exclusion of voters” under the jurisdiction of
confiscate tear down, and stop any unlawful,
courts.84
libelous, misleading or false election
2. The general rule is that the proclamation of a
propaganda, after due notice and hearing. (BP
congressional candidate divests COMELEC of
881, Section 57(2))
jurisdiction in favor of the proper Electoral
16. Power to inquire into the financial records
Tribunal – unless the proclamation was
of candidates and any organization or group of
invalid.85
persons after due notice and hearing. (BP 881,
3. In the case of municipal offices; even if the
Section 57(3))
case began with the COMELEC before
17. Power to declare failure of election and call
proclamation before the controversy is
for special elections (RA 7166, Section 4)
resolved, it ceases to be a pre-proclamation
18. Divide a province with only one legislative
controversy and becomes a contest
district into two districts for purposes of
cognizable by the Court of First Instance.86
the election of the members of the
4. The COMELEC has no power to make a
Sangguniang Kabataan. (RA 7166, Section
reapportionment of legislative districts.
3(b))
(Montejo v. COMELEC)
5. The COMELEC cannot prohibit radio and TV
Power to Declare Failure of Elections
commentators and newspaper columnists from
The SC said that under BP 881, there are only commenting on the issues involved in the
three instances where a failure of elections may forthcoming plebiscite for the ratification of the
been declare, namely: organic law establishing the CAR. (PPI v.
1. The election in any polling place has not bee COMELEC)
held on the date fixed on account of force 6. The COMELEC cannot deprive the RTC of its
majeure, violence, terrorism, fraud or other competence to order execution of judgment
analogous causes; pending appeal, because the mere filing of
2. The election in any polling place had been appeal does not divest the trial court of its
suspended before the hour fixed by law for the jurisdiction over a case and the authority to
closing of the voting on account of force resolve pending incidents. (Edding v.
majeure, violence terrorism, fraud or other COMELEC, 246 SCRA 502)
analogous cases; or
3. After the voting and during the preparation and H. Powers of Chairman
transmission of the election returns or in the
custody or canvass thereof such election
Facts: Respondent as Chairman of the COMELEC
results in a failure to elect on account of force removed petitioner as Director of the Education and
majeure, violence, terrorism, fraud or other Information Department and reassigned her to the Law
analogous causes. (Sison v. COMELEC, 1999; Department. Petitioner argued that only the COMELEC
Pasandalan v. COMELEC, 2002) acting as a collegial body can authorize her
reassignment.
Contents of Petition. The SC held that for
COMELEC to conduct a hearing on a verified 84
Bernas Commentary, p 1051 (2003 ed).
petition to declare a failure of election, it is 85
Planas v Comelec, G.R. No. 167594, March 10, 2006.
86
Bernas Primer at 396 (2006 ed.)

I sweat, I bleed, I soar… 25


Service, Sacrifice, Excellence
FRATERNAL ORDER OF UTOPIA
ATENEO DE MANILA UNIVERSITY
SCHOOL OF LAW
Atty. ARIS S. MANGUERA

Held: Under Section 7(4), chapter 2, Subtitle C, (Muñoz v Comelec, G.R. 170678, July 17,
Book V of the Revised Administrative Code, the 2006.)
Chairman COMELEC is vested with power to
make temporary assignments, rotate and Cases which must first be heard and decided in
transfer personnel in accordance with the division:
provision of the Civil Service Law. In the 1. All election cases, including pre-proclamation
exercise of this power, the Chairman is not required contests, originally cognizable by the
by law to secure the approval of the COMELEC en Commission in the exercise of its powers
banc. (Matibag v. Benipayo)87 under Section 2(2) of Article IX-C.
2. Petition to cancel a certificate of candidacy
I. En Banc/ Two Divisions rests with the COMELEC in division, not he
COMELEC en banc. (Bautista v. COMELEC,
2003)
The Commission on Elections may sit en banc or in two
divisions, and shall promulgate its rules of procedure in 3. Cases appealed from the RTC or MTC. (Abad
order to expedite disposition of election cases, including v. COMELEC, 1999)
pre- proclamation controversies. All such election cases 4. Petition for certiorari from a decision of the
shall be heard and decided in division, provided that RTC (or MTC).(Soller v. COMELEC, 2000)
motions for reconsideration of decisions shall be decided
by the Commission en banc. (Article IX-C, Section 3) Cases by En Banc
1. Motions for reconsideration of “decisions”.
The last sentence of Section 3 prescribes two (Section 3, Article IX-C)
important rules: 2. Cases that involve the exercise of purely
1. Motions for reconsideration are administrative functions.
decided en banc.  COMELEC en banc may directly
But a decision en banc is required only when assume jurisdiction over a petition to
the subject for reconsideration is a “decision,” correct manifest errors in the tabulation or
that is, a resolution of substantive issues. Thus,
reconsideration of a dismissal based on lack of
tallying of results (Statement of Votes) by
interest may be heard in division. (Salazar v. the Board of canvassers.(Torres v.
COMELEC, 1990) COMELEC)
However, while a motion to reconsider an o Statement of Votes is
interlocutory order of a division should be merely a tabulation per precinct of the
resolved by the division which issued the votes obtained by the candidates as
interlocutory order, it may be referred to reflected in the election returns. What is
the Comelec en banc if all the members involved is simple arithmetic. In making
of the division agree. (Soriano et al v the correction in the computation, the
Comelec, GR 164496-505, April 2, 2007). Board of Canvassers acts in an
If a case which should go to the Comelec administrative capacity under the
en banc is erroneously filed with a control and supervision of the
division, it may automatically be elevated COMELEC. Pursuant to its
to the Comelec en banc. This is not constitutional function to decide
provided for in the Comelec Rules of questions affecting elections, the
Procedure, but such action is not COMELEC en banc has authority to
prohibited. (Mutilan v Comelec, G.R. resolve any question pertaining to
1712468, April 2, 2007.) proceedings of the Board of
Canvassers. (Mastura v. COMELEC)
2. Election cases are decided in division.  The power of the COMELEC to
The rule that all election cases, including pre- prosecute cases of violation of election
proclamation cases, should first be heard and laws involves the exercise of
decided by the COMELEC in division applies administrative powers which may be
only when the COMELEC exercises its
exercised directly by the COMELEC en
adjudicatory or quasi-judicial functions, not
when it exercises purely administrative banc. (Baytan v. COMELEC, 2003)
functions. (Municipal Board of Canvassers v.
COMELEC, 2003) Q: Does the COMELEC en banc have jurisdiction to
The conduct of a preliminary investigation decide election cases?
before the filing of an information in court A: No. This power pertains to the divisions of the
does not involve the exercise of Commission. Any decision by the Commission en banc as
adjudicatory function. (Balindong v. regards election cases decided by it in the first instance is
COMELEC, 2003) null and void. (Soller v. COMELEC, 2000)
Election cases must first be decided in division.
Hence the Comelec en banc may not decide an Q: When is hearing by division required?
election case still pending before a division. A: It is only in the exercise of its adjudicatory or quasi-
judicial powers that the COMELEC is mandated to hear
87
and decide cases first by division and then, upon motion
Jacinto Jimenez, Political Law Compendium, 382 (2006 ed.) for reconsideration, by the COMELEC en banc. The
conduct of a preliminary investigation before the filing of

I sweat, I bleed, I soar… 26


Service, Sacrifice, Excellence
FRATERNAL ORDER OF UTOPIA
ATENEO DE MANILA UNIVERSITY
SCHOOL OF LAW
Atty. ARIS S. MANGUERA

an information in court does not involve the exercise of The election period is distinguished from the
adjudicatory function. (Baytan v. COMELEC, 2003) campaign period in that the latter cannot extend
beyond the election day.88
Q: Must a motion for reconsideration of an order of
dismissal for lack of interest due to the failure of petitioner
2. Equal Protection of Candidates
or counsel to appear for hearing be reviewed by the
COMELEC en banc or may it be considered by a Bona fide candidates for any public office shall be
division? free from any form of harassment and
A: It may be considered by a division. What the discrimination. (Article IX-C, Section 10)
Constitution says must be heard en banc are motions for
reconsideration of “decisions,” that is resolutions of Q: Does Section 10 give candidates immunity from
substantive issues. The described dismissal was not a suit?
decision. (Salazar v. COMELEC, 1990) A: No.89

Q: Is the rule on preferential disposition of election cases Q: Give example of discrimination.


suggested by Article IX-A, Section 7 and the requirement A: Unequal treatment in the availment of media
in Section 257 of the Omnibus Election CODE that the facilities.90
COMELEC shall decide all election cases brought before
it within ninety days from the date of submission a hard 3. Funds/ Fiscal Autonomy
and firm rule? Funds certified by the Commission as necessary to
A: No. Considering the tribunal’s manpower and logistic defray the expenses for holding regular and special
limitations, it is sensible to treat the procedural
elections, plebiscites, initiatives, referenda, and
requirements on deadlines realistically. (Alvarez v.
COMELEC, 2001) recalls, shall be provided in the regular or special
appropriations and, once approved, shall be
H. Party System released automatically upon certification by the
Chairman of the Commission. (Article IX-C, Section
11)
Section 6: A free and open party system shall be
allowed to evolve according to the free choice of the
people, subject to the provisions of this Article. K. Review of Decisions

Section 7. No votes cast in favor of a political Article IX-A, Section 7. xxx Unless otherwise
party, organization, or coalition shall be valid, provided by this Constitution or by law, any
except for those registered under the party-list decision, order, or ruling of each Commission may
system as provided in this Constitution. be brought to the Supreme Court on certiorari by the
aggrieved party within thirty days from receipt of a
(Relate this to Article VI, Section 5 par.2 providing for
copy thereof.
20% of the seats in the House of Representatives being
allocated to party-list representatives)
Supreme Court. Only decisions of the COMELEC
Section 8: Parties…registered under the party-list en banc may be brought to the SC on certiorari (as
system…shall be entitled to appoint poll watchers in a special civil action under Rule 65).
accordance with law.
What is contemplated by the term final orders,
rulings and decisions of COMELEC
I. Representation reviewable by certiorari by the SC as provided
by law are those rendered in actions or
Political parties, or organizations or coalitions proceedings before the COMELEC and taken
registered under the party-list system, shall not be cognizance of by the said body in the exercise
represented in the voters' registration boards, of its adjudicatory or quasi-judicial
boards of election inspectors, boards of powers91. (Filipinas Engineering and Machine
canvassers, or other similar bodies. However, they Shop v. Ferrer, 135 SCRA 25) The certiorari
shall be entitled to appoint poll watchers in jurisdiction of the SC does not refer to purely
accordance with law. (Article IX-C, Section 8) executive powers such as those which relate

J. Elections

1. Election Period
88
Unless otherwise fixed by the Commission in Cruz, Philippine Political Law, p. 318 (1995 ed).
89
special cases, the election period shall commence Bernas Primer at 407 (2006 ed.)
ninety days before the day of election and shall 90
Bernas Primer at 407 (2006 ed.)
end thirty days thereafter. (Article IX-C, Section 9) 91
Thus, a person whose certificate of candidacy is rejected or
canceled by the COMELEC on the ground, say, that he does
not possess the required qualifications, may elevate the matter
on certiorari to the Supreme Court. (Cruz, Philippine Political
Law, p. 319 (1995 ed).

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Service, Sacrifice, Excellence
FRATERNAL ORDER OF UTOPIA
ATENEO DE MANILA UNIVERSITY
SCHOOL OF LAW
Atty. ARIS S. MANGUERA

to the COMELEC’s appointing power.92 (Ambil without reappointment. Of those first appointed, the Chairman
v. COMELEC, 2000) shall hold office for seven years, one Commissioner for five
years, and the other Commissioner for three years, without
Trial Courts. Determinations made by the reappointment. Appointment to any vacancy shall be only for
the unexpired portion of the term of the predecessor. In no
COMELEC which are merely administrative (not
case shall any Member be appointed or designated in a
judicial) in character, may be challenged in an temporary or acting capacity.
ordinary civil action before trial courts. (Filipinas
Engineering & Machine Shop v. Ferrer)
 Thus, where what was assailed in the D. Powers and Duties of COA
petition for certiorari was the COMELEC’s
choice of appointee, which is a purely Section 2. (1) The Commission on Audit shall have the power,
administrative duty, the case is cognizable authority, and duty to examine, audit, and settle all accounts
by the RTC (or the CSC as the case may pertaining to the revenue and receipts of, and expenditures or
be). uses of funds and property, owned or held in trust by, or
pertaining to, the Government, or any of its subdivisions,
IV. Commission on Audit agencies, or instrumentalities, including government-owned or
controlled corporations with original charters, and on a post-
Composition of COA audit basis:
Qualifications of Commissioners of COA
Appointment of Commissioners
(a) constitutional bodies, commissions and offices that have
Powers and Duties of COA been granted fiscal autonomy under this Constitution;
Jurisdiction
(b) autonomous state colleges and universities;
Section 1. (1) There shall be a Commission on Audit
composed of a Chairman and two Commissioners, who shall
be natural-born citizens of the Philippines and, at the time of (c) other government-owned or controlled corporations and
their appointment, at least thirty-five years of age, Certified their subsidiaries; and
Public Accountants with not less than ten years of auditing
experience, or members of the Philippine Bar who have been
(d) such non-governmental entities receiving subsidy or equity,
engaged in the practice of law for at least ten years, and must
directly or indirectly, from or through the Government, which
not have been candidates for any elective position in the
are required by law or the granting institution to submit to such
elections immediately preceding their appointment. At no time
audit as a condition of subsidy or equity. However, where the
shall all Members of the Commission belong to the same
internal control system of the audited agencies is inadequate,
profession.
the Commission may adopt such measures, including
temporary or special pre-audit, as are necessary and
A. Composition of COA appropriate to correct the deficiencies. It shall keep the general
accounts of the Government and, for such period as may be
Commission on Audit is composed of a Chairman provided by law, preserve the vouchers and other supporting
and two Commissioners. papers pertaining thereto.

B. Qualifications of Commissioners (2) The Commission shall have exclusive authority, subject to
the limitations in this Article, to define the scope of its audit and
1. Natural-born citizens of the Philippines;
examination, establish the techniques and methods required
2. At the time of their appointment, at least thirty- therefor, and promulgate accounting and auditing rules and
five years of age; regulations, including those for the prevention and
3. Certified Public Accountants with not less than disallowance of irregular, unnecessary, excessive, extravagant,
ten years of auditing experience, or members or unconscionable expenditures or uses of government funds
of the Philippine Bar who have been engaged and properties.
in the practice of law for at least ten years;
4. Must not have been candidates for any 1. General Function of COA
elective position in the elections immediately
It is the function of the COA to examine the
preceding their appointment.
accuracy of the records kept by accountable
At no time shall all Members of the Commission
officers and to determine whether expenditures
belong to the same profession.
have been made in conformity with law. It is
therefore through the Commission on Audit that the
C. Appointment of Commissioners
people can verify whether their money has been
properly spent.93
Section 1(2) The Chairman and the Commissioners shall be
appointed by the President with the consent of the 2. Classification of COA’s Functions94
Commission on Appointments for a term of seven years

92
Hence, questions arising from the award of a contract for the 93
construction of voting booths can be brought before a trial Bernas Primer at 409 (2006 ed.)
94
court. Bernas Primer at 409 (2006 ed.)

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Atty. ARIS S. MANGUERA

1. To examine and audit all forms of government over those of private auditors, at least insofar
revenues; as government agencies and officials are
2. To examine and audit all forms of government concerned.96
expenditures;
3. To settle government accounts; Compromise Agreement. The participation by
4. To define the scope of techniques for its own the City in negotiations for an amicable
settlement of a pending litigation and its
auditing procedures;
eventual execution of a compromise agreement
5. To promulgate accounting and auditing rules relative thereto, are indubitably within its
“including those for the prevention and authority and capacity as a public corporation,
disallowance of irregular, unnecessary, and a compromise of a civil suit in which it is
excessive, extravagant, or unconscionable involved as a party is a perfectly legitimate
expenditures,”; transaction, not only recognized but even
6. To decide administrative cases involving encouraged by law. Thus, COA committed
expenditures of public funds. grave abuse of discretion when it disallowed
the City’s appropriation of P30,000 made
conformably with the compromise agreement.
To examine and audit all forms of (Osmena v. COA, 238 SCRA 463)
government expenditures;
Post-audit. The provision on post-audit is a Salary Voucher. The duty to pass in audit a
recognition of the fact that there are certain salary voucher is discretionary. (Gonzales v.
government institutions which can be Provincial Board of Iloilo, 12 SCRA 711)
hampered in their operation by pre-audit
The SC held that the COA has the power to
requirements.95 overrule the NPC (National Power Corporation)
General Counsel on post-audit measures
Post-audit Authority. The Commission has relative to the determination of whether an
only post-audit authority over: expenditure of a government agency is
1. Constitutional bodies, commissions and irregular, unnecessary, extravagant or
offices that have been granted fiscal unconscionable.
autonomy under the Constitution;
2. Autonomous state colleges and Q: May COA in the exercise of its auditing function,
universities; disallow the payment of backwages to employees illegally
dismissed and say that the responsibility belongs to the
3. Other government-owned controlled official who dismissed them in bad faith?
corporations and their subsidiaries; A: No. COA cannot say that the responsibility belongs to
4. Such non-governmental entities receiving the official who made the illegal dismissal when such
subsidy or equity, directly or indirectly, official has not been heard. Besides, payment of
from or through the government, which backwages is not an irregular, unnecessary, excessive or
are required by law or by the granting extravagant expense. (Uy et. al. v. COA, 2000)
institution to submit to such audit as a
condition of subsidy or equity. Q: Does the power of the Commission extend to non-
(Where the internal control system of audited accountable officers?
A: Yes. The Commission has authority not just over
agencies is inadequate, the Commission may accountable officers but also over the officers who
adopt such measures, including temporary or perform functions related to accounting such as
special pre-audit, as are necessary and verification of evaluations and computation of fees
appropriate to correct any deficiencies. collectible, and the adoption of internal rules of control.
Moreover, even in cases where pre-audit is (An Evaluator/Computer, for instance is an indispensable
allowed and pre-audit has already been part of the process of assessment and collection and
performed, the Commission is not estopped comes within the scope of the Commission’s
from making a post-audit.) jurisdiction.) (Mamaril v. Domingo, 1993)97

Private Auditors. Public corporations may To settle government accounts


employ private auditors. The clear and Power to “settle accounts”. This means the
unmistakable conclusion from a reading of the power to settle liquidated accounts, that is,
entire Section 2 is that the COA's power to those accounts which may be adjusted simply
examine and audit is non-exclusive. On the by an arithmetical process. It does not include
other hand, the COA's authority to define the the power to fix the amount of an unfixed or
scope of its audit, promulgate auditing rules undetermined debt. (Compania General de
and regulations, and disallow unnecessary Tabacos v. French and Unison, 1919)
expenditures is exclusive.
However, as the constitutionally mandated Unliquidated claims present a justiciable
auditor of all government agencies, the COA's question which is beyond the powers of the
findings and conclusions necessarily prevail 96
DBP v. COA, G.R. No. 88435. January 16, 2002
95 97
Bernas Commentary, p 1066 (2003 ed). Bernas Primer at 409 (2006 ed.)

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FRATERNAL ORDER OF UTOPIA
ATENEO DE MANILA UNIVERSITY
SCHOOL OF LAW
Atty. ARIS S. MANGUERA

COA to adjudicate. Recovery based on the supply of ponchos for the use of AFP. The
quantum meruit involves a unliquidated claim, contract involves the defense of the
because its settlement requires the application Philippines and therefore relates to a
of judgment and discretion and cannot be
sovereign function.
adjusted by simple arithmetical process. (F.F.
Manacop Construction Co., Inc. v. CA, 266 The provision for venue in the contract does
SCRA 235)98 not constitute a waiver of the State immunity
from suit because the express waiver of this
To secure the release of funds from the immunity can only be made by a statute.
Treasury, a warrant must be drawn by the
proper administrative official and Authority to define the scope of its audit an
countersigned by the Commission on Audit.99 examination, establish techniques and
This counter-signature may be compelled if it methods required therefor.
can be shown that: The SC said that the power of the Commission
1. The warrant has been legally drawn by to define the scope of its audit and to
the officer authorized by law to do so; promulgate auditing rules and regulations and
2. An appropriation to which the warrant may the power to disallow unnecessary
be applied exists by virtue of law; expenditures is exclusive. (But its power to
3. An unexpected balance of the amount examine and audit is not exclusive)
appropriated is available. (Yncausti v.
Wright, 47 Phil. 866) To promulgate accounting and auditing
The duty to countersign the warrant in this rules “including those for the prevention
case is merely ministerial. and disallowance of irregular, unnecessary,
excessive, extravagant, or unconscionable
The following have been held to be expenditures.”
discretionary: The SC held that the COA has the power to
1. The duty to pass audit a salary voucher. overrule the NPC (National Power
(Gonzales v. Provincial Auditor of Iloilo, 12 Corporation) General Counsel on post-audit
SCRA 711) measures relative to the determination of
2. The duty of the Commission on Audit to whether an expenditure of a government
issue a certificate of clearance to any agency is irregular, unnecessary, extravagant
accountable officer seeking to leave the or unconscionable.
Philippines. (Lamb v. Philipps, 22 Phil.
473) It was held that COA may stop the payment of
the price stipulated in government contracts
Decide Money Claims. The COA can decide when found to be irregular, extravagant or
money claims based on law. But if a money unconscionable. (Sambeli v. Province of
claim is denied by a law, COA has no authority Isabela, 210 SCRA 80)
to pass judgment on the constitutionality of the
law.100 COA Circular No 75-6, prohibiting the use of
government vehicles by officials who are
1998 Bar Question (Money Claims) provided with transportation allowance was
Q: The Department of National Defense held to be a valid exercise of its powers under
entered into a contract with Raintree Section 2, Article IX-D of the Constitution; and
Corporation for the supply of ponchos to the the prohibition may be made to apply to
AFP, stipulating that, in the event of breach, officials of the NPC.
action may be filed in the proper courts in
Manila. Suppose the AFP fails to pay for Q: The COA reduced the amount that was passed in
delivered ponchos, where must Raintreee audit on the ground that the original amount was
Corporation file its claim? Why? “excessive and disadvantageous to the
A: Raintree Corporation must file its claim with government.” Does the Commission have the
authority to do so?
the COA. Under Article IX-D, Section 2(1), the A: Yes, on the basis of its authority in Article IX-D,
COA has the authority to settle all the accounts Section 2(1). This extends to the accounts of all
pertaining to expenditure of public funds. persons respecting funds or properties received or
Raintree Corporation cannot file a case in held by tem in an accountable capacity. (Dincong v.
court. The Republic of the Philippines did not Commissioner Guingona, 1988)101
waive its immunity from suit when it entered
into the contract with Raintree Corporation for Q: May COA in the exercise of its auditing function,
disallow the payment of backwages to employees
98
illegally dismissed and say that the responsibility
Jacinto Jimenez, Political Law Compendium, 394 (2006 ed.)
99
Cruz, Philippine Political Law, p.324
100 101
Parreño c. COA, G.R. 162224 June 7, 2007 Bernas Primer at 410 (2006 ed.)

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Atty. ARIS S. MANGUERA

belongs to the official who dismissed them in bad However, in accordance with Section 2(1), the COA
faith? can audit the PNB with respect to its accounts
A: No. COA cannot say that the responsibility because the government still has equity in it.
belongs to the official who made the illegal dismissal
when such official has not been heard. Besides,
payment of backwages is not an irregular, Audit of Private Entities
unnecessary, excessive or extravagant expense. (Uy Facts: Petitioners were end-users of copra. PD
et. al. v. COA, 2000) 276 imposed a levy on copra to be collected by the
end-users from the sellers of the copra. The fund
Power to veto appropriations. There is now was to be used to subsidize the purchase of copra
a view to the effect that the critical function of to maintain the stability of the price. The COA
the Commission on Audit under the reworded audited the petitioners and found that there was a
provision of the Constitution authorizes it to deficiency in their collection of the levy. Petitioners
veto appropriations. This can be done, so it is argued that the COA had no authority to audit them
argued, through the power of the Commission as they were not government-owned or controlled
to refuse to “examine, audit and settle” any corporation.
account violating its own regulations “for the Held: The argument has no merit. Under the
prevention and disallowance of irregular, Constitution, the COA has the power to audit non-
unnecessary, excessive, extravagant or governmental entities receiving subsidy from or
unconscionable expenditures or uses of through the government. (Blue Bar Coconut
government funds properties.”102 Philippines v. Tantuico, 163 SCRA 716)103

E. Jurisdiction In Bagatsing v. Committee on Privatization, the Court


interpreting COA Circular No. 89-296 that there is failure
of bidding when (a) there is only one offeror, or (b) when
Section 3. No law shall be passed exempting any entity of the all the offers are non-complying or unacceptable,
Government or its subsidiaries in any guise whatever, or any declared that the COA circular does not speak of
investment of public funds, from the jurisdiction of the accepted bids, but of offerors, without distinction as to
Commission on Audit. whether they are disqualified or qualified. Thus, since in
the bidding of the 40% block of Petron shares, there were
three offerors, namely Saudi Aramco, Petronas and
Water Districts Subject to the Jurisdiction of Westmont—although the latter were disqualified—then
COA. The Court already ruled in several cases that there was no failure of bidding.
a water district is a government-owned and
controlled corporation with a special charter since it F. Report
is created pursuant to a special law, PD 198. The
COA has the authority to investigate whether Section 4. The Commission shall submit to the President and
directors, officials or employees of GOCC receiving the Congress, within the time fixed by law, an annual report
additional allowances and bonuses are entitled to covering the financial condition and operation of the
Government, its subdivisions, agencies, and instrumentalities,
such benefits under applicable laws. Thus, water
including government-owned or controlled corporations, and
districts are subject to the jurisdiction of the COA. non-governmental entities subject to its audit, and recommend
(De Jesus v. COA, 2003) measures necessary to improve their effectiveness and
efficiency. It shall submit such other reports as may be
PAL (Phil. Airlines) having ceased to be a required by law.
government-owned or –controlled corporation, is
no longer under the audit jurisdiction of the COA. Purpose of Report. Through the report required
(PAL v. COA, 245 SCRA 39) by this provision, the President and the Congress
shall be informed of the financial status of the
2001 Bar Question government and the manner in which revenues
Q: The PNB was then one of the leading have been collected, appropriation laws have been
government –owned banks and it was under the implemented, and expenditures or uses of public
audit jurisdiction of the COA. A few years ago, it funds and properties undertaken. Information
was privatized. What is the effect if any, of the contained in this report and the recommendations
privatization of PNB on the audit jurisdiction of the made by the Commission on Audit will be useful in
COA? enabling the government to improve its financial
A: In accordance with the ruling in Pal v. COA, operations.104
since PNB is no longer owned by the government
the COA no longer has jurisdiction to audit it as an The authority of the Commission to recommend
institution. Under Article IX-D, Section 2(2), measure to improve the efficiency and
GOCCs and their subsidiaries are subject to audit
by the COA. 103
Jacinto Jimenez, Political Law Compendium, 391 (2006 ed.)

102 104
Cruz, Philippine Political Law, p.329 Cruz, Philippine Political Law, p.330

I sweat, I bleed, I soar… 31


Service, Sacrifice, Excellence
FRATERNAL ORDER OF UTOPIA
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SCHOOL OF LAW
Atty. ARIS S. MANGUERA

effectiveness of the government empowers it “to


conduct the so-called performance audit which
consist of the analytical and critical review,
assessment and evaluation of the activities,
management and fiscal operations of the
Government in order to reduce operational costs
and losses and promote greater economy and
administrative efficiency in public expenditures.
This is a modern concept of auditing that goes
beyond the mere examination of receipts and
expenditures as it extends to the evaluation of the
application of funds, to the analysis of expenditures
as well as cost benefit studies.”105

H. Review of Commission’s Decisions

The review power of the SC over decision of the


Commission is the same as that over the
COMELEC- the limited-certiorari power under Rule
65. The jurisdiction of the SC over the Commission
is on money matters and not over decisions on
personnel movements. Neither is it the task of the
SC to review a Commission opinion on tax
liability.106

105
Cruz, Philippine Political Law, p.331 quoting Montejo, The New
Constitution, 208.
106
Bernas Commentary, p 83 (2003 ed).

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A: The present form consists of an executive distinct


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

Q: What is the present form of local government?


107
Bernas Primer at 416 (2006 ed.)
108
Bernas Primer at 413 (2006 ed.)

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Atty. ARIS S. MANGUERA

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

I sweat, I bleed, I soar… 34


Service, Sacrifice, Excellence
FRATERNAL ORDER OF UTOPIA
ATENEO DE MANILA UNIVERSITY
SCHOOL OF LAW
Atty. ARIS S. MANGUERA

It was held that the Internal Revenue


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

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to be created is a municipality or a component city, and various governmental acts throughout the years
respectively. This exemption is absent in the indicate the State’s recognition and acknowledgment
enumeration of the requisites for the creation of a of the existence of the municipal corporation, the
municipal corporation should be considered as a
province under Section 461 of the LGC, although it is
regular de jure municipality.
expressly stated under Article 9(2) of the LGC-IRR.
2004 Bar Question:
Q:MADAKO is a municipality composed of 80
3. Beginning of Corporate Existence barangays, 30 west of Madako River and 50 east
Upon the election and qualification of its chief thereof. The 30 western barangays, feeling left out
executive and a majority of the members of its of economic initiatives, wish to constitute
sanggunian, unless some other time is fixed themselves into a new and separate town to be
therefor by the law or ordinance creating it. (RA called Masigla. A law is passed creating Masigla
7160, Section 14) and a plebiscite is made in favor of the law. B.
Suppose that one year after Masigla was
4. Division and Merger; Abolition of LGUs constituted as a municipality, the law creating it is
Division and merger shall comply with same voided because of defects. Would that invalidate
requirements, provided that such division shall not the acts of the municipality and/or its municipal
reduce the income, population or land area of the officers? Explain briefly.
local government unit or units concerned to less Suggested Answer: Although the municipality
than the minimum requirements prescribed; cannot be considered as a de facto corporation,
provided further that the income classification of because there is no valid law under which it was
the original local government unit or units shall not created, the acts of the municipality and of its
fall below its current income classification prior to officers will not be invalidated, because the
the division. (RA 7160, Section 8) existence of the law creating it is an operative fact
before it was declared unconstitutional. Hence, the
Abolition. A local government unit may be previous acts of the municipality and its officers
abolished when its income, population or land area should be given effect as a matter of fairness and
has been irreversibly reduced to less than the justice. (Municipality ofMalabang v. Benito, 27
minimum standards prescribed for its creation, as SCRA 533 [1969]
certified by the national agencies mentioned. The
law or ordinance abolishing a local government unit F. The Barangay
shall specify the province, city, municipality or
barangay with which the local government unit As the basic political unit, the barangay serves as
sought to be abolished will be incorporated or the primary planning and implementing unit of
merged. (RA 7160, Section 9) governmental policies, plans, programs, projects
and activities in the community, as a forum wherein
5. De Facto Municipal Corporations the collective views of the people may be
Requisites: expressed , crystallized and considered, and where
1. Valid law authorizing incorporation disputes may be amicably settled. (RA 7160,
2. Attempt in good faith to organize under it Section 384)
3. Colorable compliance with the law.
4. Assumption of corporate powers G. The Municipality
The SC declared as unconstitutional Section 68 of the
Revised Administrative Code which authorized the
President to create municipalities through Executive The municipality, consisting of a group of baranays,
Order. With this declaration, municipalities created by serves primarily as a general purpose government
Executive Order could not claim to be de facto municipal for the coordination of and delivery of basic, regular
corporations because there was no valid law authorizing and direct services and effective governance of the
incorporation. (Pelaez v. Auditor General, 15 SCRA 569) inhabitants within its jurisdiction. (RA 7160, Section
440)
6. Attack Against Invalidity of Incorporation RA 7160 Sections 440-447
No collateral attack shall lie; and inquiry into the
legal existence of a municipal corporation is H. The City
reserved to the State in a proceeding for quo
warranto or other direct proceeding. (Malabang v.
The city, composed of more urbanized and
Benito, 27 SCRA 533) But this rule applies only
developed barangays, serves as a general-
when the municipal corporation is at least a de
purpose government for the coordination and
facto municipal corporation.
delivery of basic, regular and direct services and
However, where the challenge was made nearly 30
years after the executive order; creating the effective governance of the inhabitants within its
municipality was issued, or where the municipality territorial jurisdiction. (RA 7160, Section 448)
has been in existence for all of 16 years before the RA 7160 Sections 448-258
ruling in Pelaez v. Auditor General was promulgated

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Section 12. Cities that are highly urbanized, as to whom legislative powers have been delegated
determined by law, and component cities whose (the City of Manila in this case) empowering it to
charters prohibit their voters from voting for confiscate suspend licenses of erring drivers, it
provincial elective officials, shall be independent may do perform such acts. Without such law,
of the province. The voters of component cities however, the MMDA has no power.111
within a province, whose charters contain no
such prohibition, shall not be deprived of their
right to vote for elective provincial officials. L. Leagues of LGUs/Officials
(See RA 7160 Sections 491-495; 496-498)
Q: May a resident of “component cities whose charter
prohibit their voters from voting for provincial elective Section 13. Local government units may group themselves,
officials” run for a provincial elective office? consolidate or coordinate their efforts, services, and resources
A: No. Section 12 says, these are independent of the for purposes commonly beneficial to them in accordance with
province. This independence includes the incapacity of its law.
residents to run for provincial office. (Abella v. COMELEC,
1991) Q: Does the grouping contemplated in Section 13
create a new juridical entity?
I. The Province A: No.112

The province composed of a cluster of Q: May local government units create these groupings
municipalities and component cities, and as a even without prior enabling law?
political and corporate unit of government, serves A: Yes.
as a dynamic mechanism for developmental
processes and effective governance of local Liga ng mga Barangay- Organization of all
government units within its territorial jurisdiction. barangay for the primary purpose of determining
(RA 7160, Section 459) the representation of the Liga in the sanggunians,
(See RA 7160 Sections 459-468) and for ventilating, articulating and crystallizing
issues affecting barangay government
J. Autonomous regions in Muslim Mindanao and in administration and securing, through proper and
Cordilleras legal means, solutions thereto.
(This will be discussed under Section 15)
(As of this writing, only one autonomous region, 2003 Bar Question
that of the Muslim Mindanao, has been Q: Can the Liga ng mga Barangay exercise
established.) legislative powers?
SUGGESTED ANSWER: The Liga ng Mga
Barangay cannot exercise legislative powers. As
K. Special Metropolitan Political Subdivisions stated in Bito-Onon v. Fernandez. 350 SCRA 732
Section 11. The Congress may, by law, create special [2001], it is not a local government unit and its
metropolitan political subdivisions, subject to a plebiscite as primary purpose is to determine representation of
set forth in Section 10 hereof. The component cities and the mga in the sanggunians; to ventilate, articulate,
municipalities shall retain their basic autonomy and shall be and crystallize issues affecting barangay
entitled to their own local executive and legislative assemblies. government administration; and to secure solutions
The jurisdiction of the metropolitan authority that will thereby for them through proper and legal means.
be created shall be limited to basic services requiring
coordination. League of Municipalities. Organized for the
primary purpose of ventilating, articulating and
Pursuant to Article X, Section 11, Congress may, crystallizing issues affecting municipal government
by law, create special metropolitan political administration, and securing, through proper and
subdivisions subject to a plebiscite set forth in legal means, solutions thereto.
Section 20, but the component cities and
municipalities shall retain their basic autonomy and M. Regional Development Councils
shall be entitled to their own local executives and
legislative assemblies. The jurisdiction of the Section 14. The President shall provide for regional
metropolitan authority that will thereby created shall development councils or other similar bodies composed of
be limited to basic services requiring coordination. local government officials, regional heads of departments and
other government offices, and representatives from non-
NOTE: As earlier decided in the Belair case, the governmental organizations within the regions for purposes of
MMDA is NOT the metropolitan political unit administrative decentralization to strengthen the autonomy of
contemplated in Section 11. Rather it is an the units therein and to accelerate the economic and social
growth and development of the units in the region.
administrative agency of the government and as
such it does not possess police power. It may
exrcise only such powers as are given to it by law.
Hence, where there is a traffic law or regulation 111
MMDA v. Garin, G.R. No. 130230, April 15, 2005.
validly enacted by the legislature or those agencies 112
Bernas Primer at 432 (2006 ed.)

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

113 116
Bernas Commentary, p 1098 (2003 ed). Antonio Nachura, Outline on Political Law, 551 (2006)
114 117
Bernas Commentary, p 1098 (2003 ed). Bernas Commentary, p 1077 (2003 ed).
115 118
Bernas Primer at 414 (2006 ed.) Bernas Primer at 415 (2006 ed.)

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“Under existing law, local government units, in


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

G. Fiscal Autonomy “With the added burden of devolution, it is even


more imperative for government entities to share
in the requirements of development, fiscal or
“Local autonomy includes both administrative
otherwise, by paying taxes or other charges due
and fiscal autonomy. xxx The Court declared
from them.” (NAPOCOR v. Cabanatuan City, GR
therein that local fiscal autonomy includes the
149110, 04.09.2003)
power of the LGUs to, inter alia, allocate their
resources in accordance with their own priorities.
“ xxx in taxing government-owned or controlled
xxx Further, a basic feature of local fiscal autonomy
corporations, the State ultimately suffers no
is the constitutionally mandated automatic release
loss.” (Philippine Ports Authority v. Iloilo City, GR
of the shares of LGUs in the national internal
109791, 07.14.2003)
revenue.” (Province of Batangas v. Romulo, GR
152774, 05.27.2004)
“The important legal effect of Section 5 (of Article X
of the 1987 Constitution) is that henceforth, in

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interpreting statutory provisions on municipal Civil Service Commission v. Department of


fiscal powers, doubts will have to be resolved in Budget and Management (GR 158791,
favor of municipal corporations.” (San Pablo City v. 07.22.2005)
“No Report, No Release” policy violates fiscal
Reyes, GR 127708, 03.25.99)
autonomy.
A “no report, no release” policy may not be
ACORD v. Zamora (GR 144256, 06.08.2005)
validly enforced against offices vested with
Constitution provides for automatic release of
fiscal autonomy. Such policy cannot be
IRA.
enforced against offices possessing fiscal
The General Appropriation Act of 2000 cannot
autonomy such as Constitutional Commissions
place a portion of the Internal Revenue
and local governments. The automatic release
Allotment (P10B) in an Unprogrammed Fund
provision found in the Constitution means that
only to be released when a condition is met i.e.
these local governments cannot be required to
the original revenue targets are realized, since
perform any act to receive the “just share”
this would violate the automatic release
accruing to them from the national coffers.
provision under Section 5, Article X of the
Constitution. As the Constitution lays upon the
Pimentel v. Aguirre (GR 132988, 07.19.2000)
executive the duty to automatically release the
Executive withholding of 10% of the Internal
just share of local governments in the national
Revenue Allotment without complying with
taxes, so it enjoins the legislature not to pass
requirements set forth in Section 284 LGC
laws that might prevent the executive from
violated local autonomy and fiscal autonomy of
performing this duty. Both the executive and
local governments; Withholding amounted to
legislative are barred from withholding the
executive control
release of the IRA. If the framers of the
“Under existing law, local government units, in
Constitution intended to allow the enactment of
addition to having administrative autonomy in
statutes making the release of IRA conditional
the exercise of their functions, enjoy fiscal
instead of automatic, then Article X, Section 6
autonomy as well” and that “fiscal autonomy
of the Constitution would have been worded
means that local governments have the power
differently. Congress has control only over the
to create their own sources of revenue in
share which must be just, not over the manner
addition to their equitable share in the national
by which the share must be released which
taxes released by the national government, as
must be automatic since the phrase “as
well as the power to allocate their resources in
determined by law” qualified the share, not the
accordance with their own priorities”.
release thereof.
Dadole v. Commission on Audit (GR 125350,
Province of Batangas v. Romulo (GR 152774,
12.03.2002)
05.27.2004)
DBM cannot impose a limitation when the law
GAA cannot amend LGC. Constitution provides
imposes none.
for automatic release of IRA.
The General Appropriation Acts of 1999, 2000 DBM Local Budget Circular No. 55 which
and 2001 and resolutions of the Oversight provides a limit to allowance that may be given
Committee cannot amend the 1991 Local by local governments to judges is null and void
Government Code insofar as they provide for since the 1991 Local Government does not
the local governments’ share in the Internal prescribe a limit. By virtue of his/ her power of
Revenue Allotments as well as the time and supervision, the President can only interfere in
manner of distribution of said share. A national the affairs and activities of a local government
budget cannot amend a substantive law, in this unit if it has acted contrary to law.
case the Code. The provisions in the GAA
creating the Local Government Special
Equalization Fund and authorizing the non- Leynes v. COA (GR 143596, 12.11.2003)
release of the 40% to all local governments are DBM cannot nullify a statutory power.
inappropriate provisions. Further, the A National Compensation Circular by the
restrictions are violative of fiscal autonomy. Department of Budget and Management cannot
Fiscal autonomy means that local governments nullify the authority of municipalities to grant
have the power to create their own sources of allowances to judges authorized in the 1991
revenue in addition to their equitable share in Local Government Code. The Circular prohibits
the national taxes released by the national the payment of representation and
government, as well as the power to allocate transportation allowances from more than one
their resources in accordance with their own source – from national and local governments.
priorities. It extends to the preparation of their
budgets, and local officials in turn have to work G. Self-Determination
within the constraints thereof. They are not
formulated at the national level and imposed on “Self-determination refers to the need for a political
local governments, whether they are relevant to
structure that will respect the autonomous peoples'
local needs and resources or not. Further, a
basic feature of local fiscal autonomy is the uniqueness and grant them sufficient room for self-
constitutionally mandated automatic release of expression and self-construction. (Disomangcop v.
the shares of local governments in the national Secretary of Public Works and Highways, GR
internal revenue. 149848, 11.25.2004)

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Decentralization of power on the other hand,


H. Decentralization involves an abdication of political power in favor of
local government units declared to be autonomous.
In that case the autonomous government is free to
A necessary prerequisite of autonomy is chart its own destiny and shape its future with
decentralization. Decentralization is a decision by minimum intervention from central government
the central government authorizing its authorities. According to a constitutional author,
subordinates, whether geographically or decentralization of power amounts to “self-
functionally defined, to exercise authority in certain immolation,” since in that event, the autonomous
areas. It involves decision-making by subnational government becomes accountable not to the central
units. It is typically a delegated power, wherein a authorities but to its constituency. (Limbona v. Conte
Miguelin, 1989 citing Bernas, Brewing the Storm
larger government chooses to delegate certain Over Autonomy)119
authority to more local governments. Federalism
implies some measure of decentralization, but I. President’s General Supervision
unitary systems may also decentralize.
Decentralization differs intrinsically from federalism
Section 4. The President of the Philippines shall exercise
in that the sub-units that have been authorized to general supervision over local governments. Provinces with
act (by delegation) do not possess any claim of respect to component cities and municipalities, and cities and
right against the central government. municipalities with respect to component barangays, shall
Decentralization comes in two forms — ensure that the acts of their component units are within the
deconcentration and devolution. scope of their prescribed powers and functions.
Deconcentration is administrative in nature; it
involves the transfer of functions or the delegation 1. Power of General Supervision
of authority and responsibility from the national The power of general supervision is the power of a
office to the regional and local offices. This mode of superior officer to see to it that the lower officers
decentralization is also referred to as administrative perform their functions in accordance with law. It
decentralization. does not include the power to substitute one’s
Devolution, on the other hand, connotes political judgment for that of a lower officer in matters where
decentralization, or the transfer of powers, a lower officer has various legal alternatives to
responsibilities, and resources for the performance choose from.120
of certain functions from the central government to
local government units. This is a more liberal form “Consistent with the doctrine that local government
of decentralization since there is an actual transfer does not mean the creation of imperium in imperio
of powers and responsibilities. It aims to grant or a state within a State, the Constitution has
greater autonomy to local government units in vested the President of the Philippines the power of
cognizance of their right to self-government, to general supervision over local government units.
make them self-reliant, and to improve their Such grant of power includes the power of
administrative and technical capabilities.” discipline over local officials, keeping them
(Disomangcop v. Secretary of Public Works and accountable to the public, and seeing to it that their
Highways, GR 149848, 11.25.2004) acts are kept within the bounds of law. Needless to
say, this awesome supervisory power, however,
“Decentralization simply means the devolution must be exercised judiciously and with utmost
of national administration, not power, to local circumspection so as not to transgress the avowed
governments. Local officials remain accountable constitutional policy of local autonomy.” (Malonzo v.
to the central government as the law may provide.” Zamora, GR 137718, 07.27.99)
(Pimentel v. Aguirre, GR 132988, 07.19.2000)
“Hand in hand with the constitutional restraint on
the President's power over local governments is
Q: Are autonomy and decentralization the same? the state policy of ensuring local autonomy. xxx
A: Not really. Autonomy is either decentralization
Paradoxically, local governments are still
of administration or decentralization of power.
There is decentralization of administration when subject to regulation, however limited, for the
the central government delegates administrative purpose of enhancing self-government.”
powers to political subdivisions in order to broaden (Pimentel v. Aguirre, GR 132988, 07.19.2000)
the base of governmental power an in the process to
make local governments more responsive and Q: When Section 187 of the Local Government
accountable and ensure their fullest development as Code authorizes the Secretary of Justice to pass
self-reliant communities and make them mote judgment on the constitutionality or legality of tax
effective partners in the pursuit of national ordinances or revenue measures, does he not
development and social progress. At the same time exercise the power of control?
it relieves the central government of the burden of
managing local affairs and enable it to concentrate
on national concerns… 119
Bernas Primer at 414 (2006 ed.)
120
Bernas Primer at 418 (2006 ed.)

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A: No. He does not thereby dictate the law should (Magtajas v. Pryce Properties, GR 111097,
be but merely ensures that the ordinance is in 07.20.94)
accordance with law. (Drilon v. Lim)
III. Local Government Code
Q: Petitioner challenges the right of the President,
through the Secretary of Interior to suspend him on Principal Guidelines Given to Congress
the ground that the removal of the phrase “As may Effectivity of LGC
be provided by law” from unconstitutional provision Scope of Application
has stripped the President and legislature of the Declaration of Policy
power over local governments. Corollarily, he argues Rules of Interpretation
that new Constitution has effectively repealed
existing laws on the subject. Decide.
A: The power of general supervision of the President Section 3. The Congress shall enact a local government code
includes the power to investigate and remove. which shall provide for a more responsive and accountable
Moreover, Section 3 itself of this Article provides that local government structure instituted through a system of
the Local Government Code (LGC) may provide for decentralization with effective mechanisms of recall, initiative,
“removal” thus indicating that laws on the subject are and referendum, allocate among the different local government
not out of the compass of the legislature. Autonomy units their powers, responsibilities, and resources, and provide
does not transform local governments into kingdoms for the qualifications, election, appointment and removal, term,
unto themselves. (Ganzon v. CA, 1991) salaries, powers and functions and duties of local officials, and
all other matters relating to the organization and operation of
Q: May the Secretary of the local Government the local units.
annul the election of officers of a federation of
barangay officials? A. Principal Guidelines Given to Congress
A: No. Such annulment would amount to control and
therefore in excess of executive supervisory powers.
The principal guidelines given to Congress for
(Taule v. Secretary Santos, 1991)121
structuring LGUs are:
2. Supervisory Structure in the Local 1. That the structure must be “responsive and
Government System accountable” and “instituted though a system
The President has general supervision over all of decentralization.”
LGUs. But his direct supervisory contact is with 2. The structure must be both sensitive to the
autonomous regions, provinces, and independent needs of the locality, accountable to the
cities. The rest follow in hierarchal order as electorate of the locality, and freed as much as
indicated in Section 4. possible from central government
interference.122
J. Local Autonomy and Legislative Control
Q: The 1973 Constitution contained a provision
which said that “No change in the existing form of
“The Constitution did not, however, intend, for the government shall take effect until ratified by a
sake of local autonomy, to deprive the legislature majority of the votes cast in a plebiscite called for
of all authority over municipal corporations, in the purpose.” Why was this not retained?
particular, concerning discipline. The change in A: The provision was considered too limitive of the
constitutional language did not exempt local power of Congress.123
governments from legislative regulation provided
regulation is consistent with the fundamental B. Effectivity of LGC
premise of autonomy.” (Ganzon v. CA, GR 93252,
08.05.91) January 1, 1992, unless otherwise provided
herein, after its complete publication in at least one
This basic relationship between the national newspaper of general circulation (RA 7160, Section
legislature and the local government units has not 536)
been enfeebled by the new provisions in the
Constitution strengthening the policy of local C. Scope of LGC’s Application
autonomy. Without meaning to detract from that
policy, we here confirm that Congress retains The Code shall apply to all provinces, cities,
control of the local government units although municipalities, barangays and other political
in significantly reduced degree now than under subdivisions as may be created by law, and , to the
our previous Constitutions. The power to create still extent herein provided, to officials, offices or
includes the power to destroy. The power to grant agencies of the National Government (RA 7160,
still includes the power to withhold or recall. xxx By Section 536)
and large, however, the national legislature is still
the principal of the local government units, which D. Declaration of Policy (Section 2)
cannot defy its will or modify or violate it.”
122
Bernas Commentary, p 1081 (2003 ed).
123
Bernas Primer at 417 (2006 ed.)
121
Bernas Primer at 419 (2006 ed.)

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charges subject to such guidelines and limitations as the


1. The territorial and political subdivisions of the Congress may provide, consistent with the basic policy of local
State shall enjoy genuine and meaningful local autonomy. Such taxes, fees, and charges shall accrue
autonomy to enable them to attain their fullest exclusively to the local governments.
development as self-reliant communities and
make them more effective partners in the Section 6. Local government units shall have a just share, as
attainment of national goals; determined by law, in the national taxes which shall be
automatically released to them.
2. Ensure accountability of local government
units through the institution of effective
mechanisms of recall, initiative and Section 7. Local governments shall be entitled to an equitable
share in the proceeds of the utilization and development of the
referendum; and national wealth within their respective areas, in the manner
3. Require all national agencies and offices to provided by law, including sharing the same with the
conduct periodic consultations with appropriate inhabitants by way of direct benefits.
local government units, non-governmental and
people’s organizations, and other concerned A. Powers in General
sectors of the community before any project or
program is implemented in their respective 1. Sources
jurisdictions. 1. Article II, Section 25: “The Sate shall
ensure the autonomy of local
E. Rules of Interpretation governments.”
2. Article X, Sections 5,6, & 7.
1.
Any provision on a power of local government 3. Statutes (e.g., RA 7160)
unit shall be liberally interpreted in its favor, 4. Charter (particularly of cities)
and in case of doubt, any question thereon
shall be resolved in favor of devolution of 2. Classification
powers and of the local government unit. 1. Express, implied, inherent (powers
2. Any tax ordinance or revenue measure shall necessary and proper for governance,
be construed strictly against the local e.g., to promote health and safety,
government unit enacting it and liberally in enhance prosperity, improve morals of
favor of the taxpayer. Any tax exemption, inhabitants)
incentive or relief granted by any local 2. Public or governmental; Private or
government unit shall be construed strictly proprietary
against the person claiming it. 3. Intramural, extramural
3. The general welfare provisions shall be 4. Mandatory, directory; Ministerial,
liberally interpreted to give more powers to discretionary.
local government units in accelerating
economic development and upgrading the Governmental Powers Corporate Powers
quality of life for the people in the community. 1. General Welfare 1. To have continuous
4. Rights and obligations existing on the date of 2. Basic Services and succession in its
effectivity of this Code and arising out of Facilities corporate name.
contracts or any other source of prestation 3. Power to Generate 2. To sue and be sued
involving a local government unit shall be and Apply Resources 3. To have and use a
4. Eminent Domain corporate seal
governed by the original terms and conditions 5. Reclassification of 4. To acquire and
of said contracts or the law in force at the time Lands convey real or
such rights were vested. 6. Closure and Opening personal property
5. In the resolution of controversies arising under of Roads 5. Power to enter into
this Code where no legal provision or 7. Local Legislative contracts
Power 6. To exercise such
jurisprudence applies, resort may be had to 8. Authority over Police other powers as are
the customs and traditions in the place where Units granted to
the controversies take place.124 corporations, subject
(See page 676-697 of Jack’s Compendium(2006)) to the limitations
provided in the Code
IV. General Powers and Attributes of LGUs and other laws.
Powers in General
3. Execution of Powers
Governmental Powers
Corporate Powers 1. Where statute prescribes the manner of
exercise, the procedure must be followed;
Section 5. Each local government unit shall have the power to 2. Where the statute is silent, local
create its own sources of revenues and to levy taxes, fees and government units have discretion to select
124
Antonio Nachura, Outline on Political Law, 561 (2006)

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reasonable means and methods of met: (1) the interests of the public generally,
exercise.125 as distinguished from those of a particular
class, require the interference of the State, and
B. Governmental Powers (2) the means employed are reasonably
1. General Welfare (RA 7160, Section 16) necessary for the attainment of the object
2. Basic Services and Facilities (RA 7160, §17) sought to be accomplished and not unduly
3. Power to Generate and Apply Resources (RA oppressive upon individuals. Otherwise
7160 §18; Article X, §§5-7) stated, there must be a concurrence of a
4. Eminent Domain (RA 7160, § 19) lawful subject and lawful method.” (Lucena
5. Reclassification of Lands (RA 7160, § 20) Grand Central v. JAC, GR 148339
6. Closure and Opening of Roads (RA 7160, § 02.23.2005)
21)
7. Local Legislative Power (RA 7160, §§ 48-59) Limitations on the exercise of powers under
8. Authority over Police Units (See Article XVI, this clause:
Section 6; PNP Act) 1. Exercisable only within territorial limits of the
local government unit, except for protection of
1. General Welfare water supply.
RA 7160, Section 16: Every local government unit 2. Equal protection clause. (The interests of the
shall exercise the powers expressly granted, those public in general, as distinguished from those
necessarily implied therefrom, as well as powers of a particular class, require the exercise of the
necessary, appropriate, or incidental for its efficient power.
and effective governance, and those which are 3. Due process clause. (The means employed
essential to the promotion of general welfare. are reasonably necessary for the
Within their respective territorial jurisdiction, local accomplishment of the purpose and not unduly
government units shall ensure and support, among oppressive on individuals)
other things, the preservation and enrichment of 4. Must not be contrary to the Constitution and
culture, promote health and safety, enhance the the laws. Prohibited activities may not be
right of the people to a balanced ecology, legalized in the guise of regulation; activities
encourage and support the development of allowed by law cannot be prohibited, only
appropriate and self-reliant scientific and regulated.
technological capabilities, improve public morals, Magtajas v. Pryce Properties: To be
enhance economic prosperity and social justice, valid , an ordinance:
promote full employment among its residents, a. Must not contravene
maintain peace and order, and preserve the the Constitution and any statute;
b. Must not be unfair or
comfort and convenience of their inhabitants.
oppressive;
Police power. The general welfare clause is c. Must not be partial or
the statutory grant of police power to local discriminatory;
government units. d. Must not prohibit, but
ay regulate trade;
“The general welfare clause has two e. Must not be
branches. unreasonable and;
(1) General legislative power, authorizes the f. Must be general in
application and consistent with public
municipal council to enact ordinances and
policy.
make regulations not repugnant to law, as may
be necessary to carry into effect and discharge
Cases:
the powers and duties conferred upon the Valid Exercise of Police Power
municipal council by law. 1. Closure of Bank. A local government unit may, in
(2) Police power proper, authorizes the the exercise of police power under the general
municipality to enact ordinances as may be welfare clause, order the closure of a bank for failure
necessary and proper for the health and to secure the appropriate mayor’s permit and
safety, prosperity, morals, peace, good order, business licenses. (Rural Bank of Makati v.
comfort, and convenience of the municipality Municipality of Makati, 2004)
2. Ban on Shipment. The SC upheld, as legitimate
and its inhabitants, and for the protection of
exercise of the police power, the validity of the
their property.” (Rural Bank of Makati v. Puerto Princesa Ordinance “banning the shipment of
Makati, GR 150763, 07.02.2004) all live fish and lobster outside Puerto Princesa from
1993-1998 as well as the Sangguniang
“As with the State, the local government may Panlalawigan Resolution “prohibiting that catching,
be considered as having properly exercised its gathering, possessing, buying, selling and shipment
police power only if the following requisites are of live marine coral dwelling of aquatic organisms for
a period of 5 years, coming from Palawan waters.”
3. It was held that the power of municipal corporations
125 is broad and has been said to be commensurate
Antonio Nachura, Outline on Political Law, 562 (2006)

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with but to exceed the duty to provide for the real RA 7160 expressly authorizes the Mayor to
needs of the people in their health, safety, comfort issue permits and licenses for the holding of
and convenience, and consistently as may be with activities for any charitable or welfare purpose;
private rights. Ordinance is not unconstitutional thus, the Mayor cannot feign total lack of
merely because it incidentally benefits a limited authority to act on requests for such permits.
number of persons. The support for the poor has (Olivares v. Sandiganbayan , 1995) But its is
long been an accepted exercise of the police power the Laguna Lake Development Authority
in the promotion of the common good. (Binay v. (LLDA), not the municipal government, which
Domingo, 201 SCRA 508) has the exclusive jurisdiction to issue permits
4. Imposition of Annual Fee. It was held that where for the enjoyment of fishery privileges in
police power is used to discourage non-useful Laguna de Bay, by virtue of RA 4850, PD 813
occupations or enterprises, an annual permit/ and EO 927, because although RA 7160 vests
license fee of P100.00 although a bit exorbitant, is in municipalities the authority to grant fishery
valid. (Physical Therapy Organization of the privileges in municipal waters, RA 7160 did not
Philippines v. Municipal Board of Manila) repeal the charter of LLDA, and the latter is an
5. The ordinance requiring owners of commercial exercise of the police power. (LLDA v. CA)
cemeteries to reserve 6% of their burial lots for 4. The ordinance of Bayambang, Pangasinan,
burial grounds of paupers was held invalid; it was appointing Lacuesta manager of fisheries for 25
not an exercise of the police power, but of eminent years, renewable for another 25 years, was held
domain. (QC v. Ericta, 122 SCRA 759) invalid, ultra vires, as it effectively amends a general
6. The Manila Ordinance prohibiting barber shops from law.(Terrado, v. CA, 131 SCRA 373)
conducting massage business in another room was 5. An ordinance imposing P0.30 police inspection fee
held valid, as it was passed for the protection of per sack of cassava flour produced and shipped out
public morals. (Velasco v. Villegas, 120 SCRA 568) of the municipality was held invalid. It is not a license
7. Zoning Ordinance. A zoning ordinance reclassifying fee but a tax, unjust and unreasonable, since the
residential into commercial or light industrial area is only service of the municipality is for the policeman
a valid exercise of the police power. (Ortigas v. Feati to verify from the drivers of trucks of petitioner the
Bank, 94 SCRA 533) number of sacks actually loaded. (Matalin Coconut v.
8. The act of the Municipal Mayor in opening Jupiter Municipal Council of Malabang, 143 SCRA 404)
and Orbit Streets of Bel Air Subdivision, to the public 6. The power to issue permits to operate cockpits is
was deemed a valid exercise of police power. vested in the Mayor, in line with the policy of local
(Sangalang v. IAC, 176 SCRA 719) autonomy. (Philippine Gamefowl Commission v. IAC)

Invalid Ordinances
7. The Bocaue, Bulacan ordinance prohibiting the
operation of night-clubs, was declared invalid,
1. LGU may not regulate subscriber rate. A local because of his prohibitory, not merely regulatory,
government unit may not regulate the subscribe character. (Dela Cruz v. Paras, 123 SCRA 569)
rates charged by CATV operators within its territorial 8. It was held that the ordinance penalizing persons
jurisdiction. The regulation and supervision of the charging full payment for admission of children
CATV industry shall remain vested “solely” in the (ages 7-12) in moviehouses was an invalid exercise
NTC. Considering that the CATV industry is so of police power for being unreasonable and
technical a field, NTC, a specialized agency, is in a oppressive on business of petitioners. (Balacuit v.
better position than the local government units to CFI)
regulate it. This does not mean, however, that the
LGU cannot prescribe regulations over CATV 1993 Bar Question
operators in the exercise of the general welfare Q: Mayor Alfredo Lim closed the funhouses in the Ermita
clause. (Batangas CATV v. CA, 2004) district suspected of being fronts for prostitution. To
2. Ordinance contrary to statute held invalid. The determine the feasibility of putting up a legalized red light
district, the city council conducted an inquiry and invited
ordinance prohibiting the issuance of a business
operators of the closed funhouses to get their views. No
permit to, and cancelling any business permit of any
one honored the invitation. The city council issued
establishment allowing its premises to be used as a
subpoenas to compel the attendance of the operators but
casino, and the ordinance prohibiting the operation
which were completely disregarded. The council declared
of a casino, were declared invalid for being contrary
the operators guilty of contempt and issued warrants for
to PD 1869 (Charter of PAGCOR)which has the
their arrest. The operators come to you for legal advice,
character and force of a statute. (Magtajas)
asking the following questions: (1) Is the council
3. Where power to grant franchise not granted. empowered to issue subpoenas to compel their
What Congress delegated to the City of Manila in RA attendance? (2) Does the council have the power to cite
409 (Revised Charter of Manila) with respect to for contempt?
wagers and betting was the power “to license, permit Suggested Answer: (1) The city council is not
or regulate,” not the power to franchise. This means empowered to issue subpoenas to compel the attendance
that the license or permit issued by the City of of the operators of the fun-houses In the Ermita district.
Manila to operate wager or betting activity, such as There is no provision in the Constitution, the Local
jai-lai, would not amount to something meaningful Government Code, or any law expressly granting local
unless the holder of the license or permit was also legislative bodies the power to subpoena witnesses. As
franchised by the National Government to operate. held in Negros Oriental II Electric Cooperative, Inc. vs.
Therefore, Manila Ordinance No. 7065, which Sangguniang Panlungsod of Dumaguete, 155 SCRA 421,
purported to grant ADC a frachise to conduct jai-alai such power cannot be implied from the grant of delegated
operations, is void and ultra vires (Lim v. Pacquing) legislated power. Such power is Judicial. To allow local
legislative bodies to exercise such power without express

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statutory basis would violate the doctrine of separation of including develop, lease, encumber, alienate or
powers. otherwise dispose of real or personal property held
(2) The city council does not have the power to cite for by them in their proprietary capacity and to apply
contempt. There is likewise no provision in the
their resources and assets for productive,
Constitution, the Local Government Code, or any other
laws granting local legislative bodies the power to cite for developmental or welfare purposes, in the exercise
contempt. Such power cannot be deemed implied in the of furtherance of their governmental or proprietary
delegation of legislative power to local legislative bodies, powers and functions and thereby ensure their
for the existence of such power poses a potential development into self-reliant communities and
derogation of individual rights. active participants in the attainment of national
goals.
2. Basic Services and Facilities Section 18 of RA 7160 restates and
RA 7160, Section 17: Local government units shall implements Sections 5,6,7 of Article X . But
endeavor to be self-reliant and shall continue this power is always subject to the limitations which
exercising the powers and discharging the duties the Congress may provide by law. (Basco v.
and functions currently vested upon them. They PAGCOR, 197 SCRA 52) Thus, it was held that the
shall also discharge the functions and local government units have no power to tax
responsibilities of national agencies and offices instrumentalities of the National Government, such
as PAGCOR.
devolved to them pursuant to this Code (within 6
months after the effectivity of this Code) They shall “The power to tax is primarily vested in the
likewise exercise such other powers and discharge Congress; however, in our jurisdictions, it may be
such other functions as are necessary, appropriate, exercised by local legislative bodies, no longer
or incidental to efficient and effective provision of merely by virtue of a valid delegation as before,
the basic services and facilities enumerated herein. but pursuant to direct authority conferred by
Note that public works and infrastructure projects Section 5, Article X of the Constitution. Under the
and other facilities, programs and services funded latter the exercise of the power may be subject to
by the national government under the General such guidelines and limitations as the Congress may
Appropriations Act and other laws, are not covered provide which, however, must be consistent with the
under this section, except where the local basic policy of local autonomy. xxx These policy
government unit is duly designated as the considerations are consistent with the State policy to
implementing agency for such projects, facilities, ensure autonomy to local governments and the
programs and services.126 objective of the LGC that they enjoy genuine and
Devolution. Devolution refers to the act by which meaningful local autonomy to enable them to attain
the national government confers power and authority their fullest development as self-reliant communities
upon the various local government units to perform and make them effective partners in the attainment
specific functions and responsibilities. This includes of national goals. The power to tax is the most
the transfer to the local government units of the effective instrument to raise needed revenues to
records, equipment and other assets and personnel finance and support myriad activities of local
of national agencies and offices. Regional offices of government units for the delivery of basic services
national agencies shall be phased out within one essential to the promotion of the general welfare and
year form the approval of this Code. Career regional the enhancement of peace, progress, and prosperity
directors who cannot be absorbed by the local of the people.” (Mactan Cebu International Airport v.
government unit shall be retained by the national Marcos, GR 110082, 09.11.96)
government, without diminution in rank, salary or
tenure.127 Q: What are the fund sources of local
governments?
3. Power to Generate and Apply Resources A: They are:
RA 7160, Section 18: Local government units shall 1. Local taxes, fees and charges;
have the power and authority to establish an 2. Its share in the national taxes;
organization that shall be responsible for the 3. Its share in the proceeds of the utilization of
efficient and effective implementation of their national resources within their respective
development plans, program objectives and areas;
priorities; to create their own sources of revenue 4. Other “sources of revenues” which they may
and to levy taxes, fees and charges which shall legitimately make use of either in their public
accrue exclusively to their use and disposition and or governmental capacity, or private or
which shall be retained by them; to have a just proprietary capacity.128
share in the national taxes which shall be
automatically and directly released to them without Q: What is the scope of their power to levy taxes,
need of further action; to have an equitable share fees, and charges?
in the proceeds from the utilization and A: They are subject to such guidelines and
development of the national wealth and resources limitations as Congress may provide. However, such
guidelines and limitations to be imposed by
within their respective territorial jurisdictions
126
Antonio Nachura, Outline on Political Law, 566 (2006)
127 128
Antonio Nachura, Outline on Political Law, 567 (2006) Bernas Primer at 423 (2006 ed.)

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Congress must not be such as to frustrate the “basic even if the latter can set aside a tax ordinance, he
policy of local autonomy.”129 cannot substitute his own judgment for that of the
local government unit. (Drilon v. Lim, 1994)
Q: What is the share of the national government in 5. The City of Cebu as a LGU, the power to collect real
such taxes, fees and charges? property taxes from the Mactan Cebu International
A: None.130 Airport Auhtority (MCIAA v. Marcos, 1996) There is
no question that under RA 6958, MCIAA is exempt
Q: In what way can local governments share in the form the payment of realty taxes imposed by the
fruits of the utilization of local natural resources? National Government or any of its political
A: Local governments can either have shares from subdivisions; nevertheless, since taxation is the rule,
revenues accruing through fees and charges or they the exemption may be withdrawn at the pleasure of
can receive direct benefits such as lower rates, e.g., the taxing authority. The only exception to this rule is
for consumption of electricity generated within their where the exemption was granted to private parties
locality.131 based on material consideration of a mutual nature,
which then becomes contractual and is thus covered
Fundamental Principle Governing the Exercise of by the non-impairment clause of the Constitution.
the Taxing and other Revenue-Raising Powers of 6. While indeed local governments are authorized to
LGUs (RA 7160, Section 130) impose business taxes, they can do so only if the
1. Taxation shall be uniform in each LGU; entity being subjected to business tax is a business.
2. Taxes, fees, charges and other impositions (Thus, for Makati to impose a business tax on a
shall be equitable and based as far as condominium, the city must prove that the
practicable on the taxpayer’s ability to pay; condominium is engaged in business.)132
levied and collected only for public purposes;
not unjust, excessive, oppressive or Article X, Section 6: “Local government units
confiscatory; and not contrary to law, public shall have a just share, as determined by law, in
policy, national economic policy, or in restraint
the national taxes which shall be automatically
of trade;
3. The collection of local taxes, fees and charges released to them.”
and other impositions shall in no case be let to Share in National Taxes. Section 6 mandates that
any private person; (1) the LGUs shall have a "just share" in the national
4. The revenue collected shall inure solely to the taxes; (2) the "just share" shall be determined by
benefit of, and be subject to disposition by the law; and (3) the "just share" shall be automatically
local government unit, unless specifically released to the LGUs. Thus, where the local
provided herein; and government share has been determined by the
5. Each LGU shall as far as practicable evolve a General Appropration Act, its relese may not be
progressive system of taxation. made subject to te condition that "such amount shall
be released to the local government units subject to
Cases: the implementing rules and regulations, including
1. The exercise by local governments of the power to such mechanisms and guidelines for the equitable
tax is ordained by the present Constitution; only allocations and distribution of said fund among local
guidelines and limitations that may be established by government units subject to the guidelines that may
Congress can define and limit such power of local be prescribed by the Oversight Committee on
governments. (Philippine Petroleum Corporation v. Devolution." To subject its distribution and release to
Municipality of Pililia, Rizal, 198 SCRA 82) the vagaries of the implementing rules and
2. Congress has the power of control over local regulations, including the guidelines and
governments; if Congress can grant a municipal mechanisms unilaterally prescribed by the Oversight
corporation the power to tax certain matters, it can Committee from time to time, as sanctioned by the
also provide for exemptions or even take back the assailed provisos in the GAAs of 1999, 2000 and
power. xxx The power of local governments to 2001 and the OCD resolutions, makes the release
impose taxes and fees is always subject to not automatic and a flagrant violation of the
limitations which Congress may provide by law.xxx constitutional and statutory mandate that the "just
Local governments have no power to tax share" of the LGUs "shall be automatically released
instrumentalities of the National Government and is to them."133
therefore exempt from local taxes. (Basco v. Moreover, neither Congress nor the Executive may
PAGCOR, 197 SCRA 52) impose conditions on the release. As the
3. LGUs have the power to create their own sources of Constitution lays upon the executive the duty to
revenue, levy taxes, etc., but subject to such automatically release the just share of local
guidelines set by Congress. (Estanislao v. costales, governments in the national taxes, so it enjoins the
196 SCRA 853) legislature not to pass laws that might prevent the
4. Section 187, RA 7160 which authorizes the executive from performing this duty. To hold that the
Secretary of Justice to review the constitutionality of executive branch may disregard constitutional
legality of a tax ordinance—and if warranted, to provisions which define its duties, provided it has the
revoke it on either or both grounds—is valid, and backing of statute, is virtually to make the
does not confer the power of control over local Constitution amendable by statute – a proposition
government units in the Secretary of Justice, as
132
129 Yamane v. BA Lepanto Condominium, G.R. No. 154993, October
Bernas Primer at 423 (2006 ed.) 25, 2005.
130
Bernas Primer at 423 (2006 ed.) 133
Batangas v. Executive Secretary, G.R. No. 152774. May 27,
131
Bernas Primer at 423 (2006 ed.) 2004

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which is patently absurd. Moreover, if it were the that fish in waters surrounding the province to
intent of the framers to allow the enactment of invest ten percent (10%) of their net profits from
statutes making the release of IRA conditional operations therein in any enterprise located in
instead of automatic, then Article X, Section 6 of the
Palawan. NARCO Fishing Corp., a Filipino
Constitution would have been worded to say “shall
be [automatically] released to them as provided by corporation with head office in Navotas, Metro
law.”134 Manila, challenges the ordinance as
unconstitutional. Decide the case.
Fundamental Principle Governing the Financial Suggested Answer: The ordinance is invalid. The
Affairs, Transactions and Operations of LGUs ordinance was apparently enacted pursuant to
(RA 7160, Section 305) Article X, Sec. 7 of the Constitution, which entitles
1. No money shall be paid out of the local treasury local governments to an equitable share in the
except in pursuance of an appropriation proceeds of the utilization and development of the
ordinance of law;
national wealth within their respective areas.
2. Local government funds and monies shall be
spent solely for public purposes; However, this should be made pursuant to law. A
3. Local revenue is generated only from sources law is needed to implement this provision and a
expressly authorized by law or ordinance, and local government cannot constitute itself unto a
collection thereof shall at all times be law. In the absence of a law the ordinance in
acknowledged properly. question is invalid.
4. All monies officially received by a local
government officer in any capacity or on any 4. Eminent Domain
occasion shall be accounted for as local funds, RA 7160, Section 19: A Local Government Unit
unless otherwise provided by law;
5. Trust funds in the local treasury shall not be
may, through its chief executive and acting
paid out except in fulfillment of the purpose for pursuant to an ordinance, exercise power of
which the trust was created or the funds eminent domain for public use, or purpose, or
received; welfare for the benefit of the poor and the landless,
6. Every officer of the local government unit upon payment of just compensation, pursuant to
whose duties permit or require the possession the provisions of the Constitution and pertinent
or custody of local funds shall be properly laws: Provided, however, That the power of
bonded, and such officer shall be accountable eminent domain may not be exercised unless a
and responsible for said funds and for the
safekeeping thereof in conformity with the
valid and definite offer has been previously made
provisions of law; to the owner and such offer was not accepted:
7. Local governments shall formulate sound Provided, further, That the LGU may immediately
financial plans, and the local budgets shall be take possession of the property upon the filing of
based on functions, activities, and projects in expropriation proceedings and upon making a
terms of expected results; deposit with the proper court of at least 15% of the
8. Local budget plans and goals shall, as far as fair market value of the property based on the
practicable, be harmonized with national current tax declaration of the property to be
development plans, goals and strategies in
order to optimize the utilization of resources
expropriated: Provided, finally, That the amount to
and to avoid duplication in the use of fiscal and be paid for the expropriated property shall be
physical resources. determined by the proper court, based on the fair
9. Local budgets shall operationalize approved market value at the time of the taking of the
local development plans; property.
10. LGUs shall ensure that their respective budgets “Local government units have no inherent power
incorporate the requirements of their of eminent domain and can exercise it only when
component units and provide for equitable expressly authorized by the legislature. By virtue of
allocation of resources among these RA 7160, Congress conferred upon local
component units; government units the power to expropriate. xxx
11. National planning shall be based on local There are two legal provisions which limit the
planning to ensure that the needs and exercise of this power: (1) no person shall be
aspirations of the people is articulated by the deprived of life, liberty, or property without due
LGUs in their respective local development process of law, nor shall any person be denied the
plans are considered in the formulation of equal protection of the laws; and (2) private property
budgets of national line agencies or offices; shall not be taken for public use without just
12. Fiscal responsibility shall be shared by all those compensation. Thus, the exercise by local
exercising authority over the financial affairs, government units of the power of eminent domain is
transactions, and operations of the LGUs; and not absolute. In fact, Section 19 of RA 7160 itself
13. The LGU shall endeavor to have a balanced explicitly states that such exercise must comply with
budget in each fiscal year of operation. the provisions of the Constitution and pertinent
laws.” (Lagcao v. Labra, GR 155746, 10.13. 2004)
1991 Bar Question
Q:The province of Palawan passes an ordinance “Strictly speaking, the power of eminent domain
requiring all owners/operators of fishing vessels delegated to an LGU is in reality not eminent but
"inferior" domain, since it must conform to the
134
Alternative Center v. Zamora, G.R. No. 144256, June 8, 2005. limits imposed by the delegation, and thus partakes

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SCHOOL OF LAW
Atty. ARIS S. MANGUERA

only of a share in eminent domain. Indeed, "the resolution, ordinance or order is beyond the powers
national legislature is still the principal of the local conferred upon the council or president making the same.
government units, which cannot defy its will or Such is not the situation in this case. (Moday v. Court of
modify or violate it.” (Paranaque v. VM Realty Corp., Appeals, G.R. No. 107916, February 20, 1997)
GR 127820, 07.20.98) The question of whether there is genuine necessity for
the expropriation of Christina's lot or whether the
“It is true that local government units have no municipality has other and better lots for the purpose is a
inherent power of eminent domain and can exercise matter that will have to be resolved by the Court upon
it only when expressly authorized by the legislature. presentation of evidence by the parties to the case.
It is also true that in delegating the power to
expropriate, the legislature may retain certain control 5. Reclassification of Lands
or impose certain restraints on the exercise thereof A city or municipality may, through an ordinance
by the local governments. While such delegated passed after conducting public hearings for the
power may be a limited authority, it is complete
within its limits. Moreover, the limitations on the
purpose, authorize the reclassification of
exercise of the delegated power must be clearly agricultural lands and provide for the manner of
expressed, either in the law conferring the power or their utilization or disposition:
in other legislations. Statutes conferring the power 1. When the land ceases to be economically
of eminent domain to political subdivisions feasible and sound for agricultural
cannot be broadened or constricted by purposes as determined by the
implication.” (Province of Camarines Sur v. CA, Department of Agriculture, or
222 SCRA 173) 2. Where the land shall have substantially
greater economic value for residential,
Limitations on the Exercise of the Power of
commercial or industrial purposes, as
Eminent Domain by Local Government Units:
determined by the sanggunian;
1. Exercised only by the local chief executive,
Provided that such reclassification shall be
acting pursuant to a valid ordinance;
limited to the following percentage of the total
2. For public use or purpose or welfare, for the
agricultural land area at the time of the
benefit of the poor and the landless;
passage of the ordinance:
3. Only after a valid and definite offer had been
i. For highly urbanized cities and
made to, and not accepted by, the owner.
independent component cities: 15%
It was held that the Sangguniang Panlalawigan ii. For component cities and 1st to 3rd
cannot validly disapprove the resolution of the class municipalities: 10%
municipality expropriating a parcel of land for the iii. For 4th to 6th municipalities: 5%.
establishment of a government center. The power of Provided that agricultural land distributed to
eminent domain is explicitly granted to the land reform beneficiaries shall not be
municipality under the Local Government Code. affected by such reclassification.
2005 Bar Question
Q: The Sangguniang Bayan of the Municipality of Santa,
6. Closure and Opening of Roads
Ilocos Sur passed Resolution No. 1 authorizing its Mayor RA 7160, Section 21. A local government unit may,
to initiate a petition for the expropriation of a lot owned by pursuant to an ordinance, permanently or
Christina as site for its municipal sports center. This was temporarily close or open any local road, alley, park
approved by the Mayor. However, the Sangguniang or square falling within its jurisdiction, provided that
Panlalawigan of Ilocos Sur disapproved the Resolution as in case of permanent closure, such ordinance must
there might still be other available lots in Santa for a be approved by at least 2/3 of all the members of
sports center. Nonetheless, the Municipality of Santa,
the sanggunian, and when necessary, an adequate
through its Mayor, filed a complaint for eminent domain.
Christina opposed this on the following grounds: (a) the substitute for the public facility shall be provided.
Municipality of Santa has no power to expropriate; (b)
Resolution No. 1 has been voided since the Sangguniang Additional limitations in case of permanent
Panlalawigan disapproved it for being arbitrary; and (c) closure:
the Municipality of Santa has other and better lots for that 1. Adequate provision for the maintenance of
purpose. Resolve the case with reasons. public safety must be made;
Suggested Answer: Under Section 19 of R.A. No. 7160, 2. The property may be used or conveyed for any
the power of eminent domain is explicitly granted to the
purpose for which other real property may be
municipality, but must be exercised through an ordinance
rather than through a resolution. (Municipality lawfully used or conveyed, but no freedom
ofParanaque v. V.M. Realty Corp., G.R. No. 127820, July park shall be closed permanently without
20, 1998) provision for its transfer or relocation to a new
The Sangguniang Panlalawigan of Ilocos Sur was without site.
the authority to disapprove Resolution No. 1 as the
municipality clearly has the power to exercise the right of Note: Temporary closure may be made during an
eminent domain and its Sangguniang Bayan the capacity actual emergency, fiesta celebrations, public rallies,
to promulgate said resolution. The only ground upon
etc.
which a provincial board may declare any municipal
resolution, ordinance or order invalid is when such
Cases:

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SCHOOL OF LAW
Atty. ARIS S. MANGUERA

1. A municipality has the authority to prepare and 2. If the local chief executive vetoes the
adopt a land use map, promulgate a zoning
ordinance, and close any municipal road. same, and the veto is overridden by 2/3
(Pilapil v. CA, 216 SCRA 33) vote of all the members of the
2. The closure of 4 streets in Baclaran, sanggunian. The local chief executive
Paranaque was held invalid for non-compliance may veto the ordinance, only once, on the
with MMA Ordinance No. 2. Further, provincial ground that the ordinance is ultra vires, or
roads and city streets are property for public that it is prejudicial to the public welfare.
use under Article 424, Civil Code, hence under He may veto any particular item or items
the absolute control of Congress. They are
of an appropriation ordinance, an
outside the commerce of man, and cannot be
disposed of to private persons. (Note: This ordinance or resolution adopting a
case was decided under the aegis of the old development plan and public investment
Local Government Code) (Macasiano v. program, or an ordinance directing the
Diokno, 212 SCRA 464) payment of money or creating liability. In
3. One whose property is not located on the such a case, the veto shall not affect the
closed section of the street ordered closed by items or items which are not objected to.
the Provincial Board of Catanduanes has no The veto shall be communicated by the
right to compensation for the closure if he still
local chief executive to the sanggunian
has reasonable access to the general system
of streets. (Cabrera v. CA, 195 SCRA 314) within 15 days in case of a province, or 10
4. The power to vacate is discretionary on the days in case of a city or municipality;
Sanggunian.xxx when properties are no longer otherwise, the ordinance shall be deemed
intended for public use, the same may be used approved as if he signed it.
or conveyed for any lawful purpose, and may In Delos Reyes v. Sandiganbayan, 1997,
even become patrimonial and thus be the where petitioner was charged with
subject of common contract. (Cebu Oxygen & falsification of a public document for
Acetylene Co. v. Berciles, 66 SCRA 481) approving a resolution which purportedly
5. The City Council has the authority to determine appropriate money to pay for the terminal
whether or not a certain street is still necessary leave of 2 employees when actually no
for public use. (Favis v. City of Baguio, 29 such resolution was passed, the petitioner
SCRA 456) argued that his signature on the resolution
6. The City Mayor of Manila cannot by himself, was merely ministerial. The SC disagreed,
withdraw Padre Rada as a public market. The saying that the grant of the veto power
establishment and maintenance of public accords the Mayor the discretion whether
markets is among the legislative powers of the or not to disapprove the resolution.
City of Manila; hence, the need for joint action
by the Sanggunian and the Mayor. “A sanggunian is a collegial body. Legislation,
which is the principal function and duty of the
7. Local Legislative Power (Exercised by the sanggunian, requires the participation of all its
local sanggunian) members so that they may not only represent
a. Products of legislative action: the interests of their respective constituents but
also help in the making of decisions by voting
1. Ordinance- prescribes a permanent rule upon every question put upon the body. The acts
of conduct. of only a part of the Sanggunian done outside
2. Resolution- of temporary character, or the parameters of the legal provisions
expresses sentiment. aforementioned are legally infirm, highly
questionable and are, more importantly, null and
void. And all such acts cannot be given binding
b. Requisites for validity force and effect for they are considered unofficial
1. Must not contravene the Constitution and acts done during an unauthorized session.”
any statute; (Zamora v. Caballero, GR 147767,
2. Must not be unfair or oppressive; 01.14.2004)
3. Must not be partial or discriminatory;
4. Must not prohibit but may regulate trade; [Note: Ordinances enacted by the
5. Must not be unreasonable; sangguniang barangay shall, upon
6. Must be general in application and approval by a majority of all its members,
consistent with public policy. be signed by the punong barangay. The
latter has no veto power.]
c. Approval of Ordinances
Ordinances passed by the sangguniang d. Review by Sangguniang Panlalawigan
panlalawigan, sangguniang panlungsod, or Procedure: Within 3 days after approval, the
sangguniang bayan shall be approved: secretary of the sanguniang panlugsod (in
1. If the local chief executive approves the component cities) or sangguninang bayan
same, affixing his signature on each an shall forward to the sangguniang
every page thereof. panglalawigan for review copies of approved
ordinances and resolutions approving the local

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SCHOOL OF LAW
Atty. ARIS S. MANGUERA

development plans and public investment ii. In the case of highly urbanized and
programs formulated by the local development independent component cities, the main
councils. The sannguniang panlalawigan shall features of the ordinance or resolution
review the same within 30 days; if it finds that duly enacted shall, in additions to being
the ordinance or resolution is beyond the posted, be published once in a local
power conferred upon the sangguniang newspaper of general circulation within
panlusgsod or sagguniang bayan concerned, it the city; of there is no such newspaper
shall declare such ordinance or resolution within the city, then publication shall be
invalid in whole or in part. If no action is taken made in any newspaper of general
within 30 days, the ordinance or resolution is circulation.
presumed consisted with law, valid.
h. Scope of Local Law Making Authority
e. Review of Barangay Ordinances 1. Sanggunians exercise only delegated
Within 10 days from enactment, the legislative powers conferred on them by
sangguniang barangay shall furnish copies of Congress. As mere agents, local
all barangay ordinances to the sangguniang governments are vested with the power of
panlungsod or sangguniang bayan for review. subordinate legislation. (Magtajas v.
If the reviewing sanggunian finds the barangay Pryce, GR 111097, 07.20.94)
ordinances inconsistent with law or city or 2. It is a fundamental principle that municipal
municipal ordinances, the sanggunian ordinances are inferior in status and
concerned shall, within 30 days form receipt subordinate to the laws of the State. An
thereof, return the same with its commentsand ordinance in conflict with a state law of
recommendations to the sangguniang general character and statewide
barangay for adjustment, amendment or application is universally held to be
modification, in which case the effectivity of the invalid. The principle is frequently
ordinance is suspended until the revision expressed in the declaration that
called for is effected. If no action is taken by municipal authorities, under a general
the sangguniang panlungsod or sangguniang grant of power, cannot adopt ordinances
bayan within 30 days, the ordinance is which infringe upon the spirit of a state
deemed approved. law or repugnant to the general policy of
the state. In every power to pass
f. Enforcement of disapproved ordinances/ ordinances given to a municipality, there is
resolutions an implied restriction that the ordinances
Any attempt to enforce an ordinance or shall be consistent with the general law.
resolution approving the local development (Batangas CATV v. Court of Appeals, GR
plan and public investment program, after the 138810, 09.20.2004)
disapproval thereof, shall be sufficient ground 3. The 1991 Local Government Code
for the suspension or dismissal of the official or provides that local legislative power shall
employee concerned. be exercised by the sanggunian. The
legislative acts of the sanggunian in the
g. Effectivity. exercise of its lawmaking authority are
Unless otherwise stated in the ordinance or denominated ordinances. For an
resolution, the same shall take effect after 10 ordinance to be valid, it must not only be
days from the date a copy thereof is posted in within the corporate powers of the local
a bulletin board at the entrance of the government concerned to enact but must
provincial capitol, or city, municipal or also be passed according to the
barangay hall, and in at least two other procedure prescribed by law. (Lagcao v.
conspicuous places in the local government Labra, GR 155746, October 13, 2004)
unit concerned. 4. A proviso in an ordinance directing that
i. The gist of all ordinances with penal the real property tax be based on the
sanction shall be published in a actual amount reflected in the deed of
newspaper of general circulation within conveyance or the prevailing BIR zonal
the province where the local legislative value is invalid not only because it
body concerned belongs. In the absence mandates an exclusive rule in determining
of a newspaper of general circulation the fair market value but more so because
within the province, posting of such it departs from the established procedures
ordinances shall be made in all stated in the Local Assessment
municipalities and cities of the province Regulations No. 1-92 and unduly
where the sanggunian of origin is interferes with the duties statutorily placed
situated. upon the local assessor by completely
dispensing with his analysis and discretion

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Atty. ARIS S. MANGUERA

which the Code and the regulations 10. To acquire and convey real or personal
require to be exercised. Further, the property
charter does not give the local 11. Power to enter into contracts
government that authority. An ordinance 12. To exercise such other powers as are granted
that contravenes any statute is ultra vires to corporations, subject to the limitations
and void. (Allied Banking Corporation v. provided in the Code and other laws.
Quezon City, GR 154126, 10.11.2005)
1. To have continuous succession in its
1999 Bar Question corporate name
Q: Johnny was employed as a driver by the
Municipality of Calumpit, Bulacan. While driving
recklessly a municipal dump truck with its load of 2. To sue and be sued
sand for the repair of municipal streets,Johnny hit a The rule is that suit is commenced by the local
jeepney. Two passengers of the jeepney were executive, upon the authority of the Sanggunian,
killed. The Sangguniang Bayan passed an except when the City Councilors themselves and
ordinance appropriating P300,000 as as representatives of or on behalf of the City, bring
compensation for the heirs of the victims. action to prevent unlawful disbursement of City
1) Is the municipality liable for the negligence of funds. (City Council of Cebu v. Cuison, 47 SCRA
Johnny? 325)
2) Is the municipal ordinance valid? But the municipality cannot be represented by a
Suggested Answer: private attorney. Only the Provincial Fiscal or the
Municipal Attorney can represent a province or
2) The ordinance appropriating P300,000.00 for the
municipality in lawsuits. This is mandatory. The
heirs of the victims of Johnny is void. This amounts municipality’s authority to employ a private lawyer is
to appropriating public funds for a private purpose. limited to situations where the Provincial Fiscal is
Under Section 335 of the Local Government Code, disqualified to represent it, and the fact of
no public money shall be appropriated for private disqualification must appear on record. The Fiscal’s
purposes. refusal to represent the municipality is not legal
Alternative Answer: Upon the foregoing justification for employing the services of private
considerations, the municipal ordinance is null and counsel; the municipality should request the Secretary
of Justice to appoint an Acting Provincial Fiscal in
void for being ultra vires. The municipality not being
place of the one declined to handle the case in court.
liable to pay compensation to the heirs of the (Municipality of Pililia Rizal v. CA, 233 SCRA 484)
victims, the ordinance is utterly devoid of legal
basis. It would in fact constitute an illegal use or 3. To have and use a corporate seal
expenditure of public funds which is a criminal LGUs may continue using, modify or change their
offense. What is more, the ordinance does not corporate seal; any change shall be registered with
meet one of the requisites for validity of municipal the DILG.135
ordinances, ie., that it must be in consonance with
certain well-established and basic principles of a 4. To acquire and convey real or personal
substantive nature, to wit: [it does not contravene property
the Constitution or the law, it is not unfair or a. The LGU may acquire tangible or intangible
oppressive. It is not partial or discriminatory. It is property, in any manner allowed by law, e.g.,
consistent with public policy, and it is not sale, donation, etc.
unreasonable.] b. The local government unit may alienate only
patrimonial property, upon proper authority.
8. Authority Over Police Units c. In the absence of proof that the property was
As may be provided by law. (See Section 6, Article acquired through corporate or private funds,
XVI; PNP Act) the presumption is that it came from the State
upon the creation of municipality and thus, is
C. Corporate Powers governmental or public property. (Salas v.
Jarencio, 48 SCRA 734)
Local government units shall enjoy full autonomy in d. Town plazas are properties of public dominion;
the exercise of their proprietary functions and in the they may be occupied temporarily, but only for
management of their economic enterprises, subject the duration of an emergency (Espiritu v.
to limitations provided in the Code and other Pangasinan, 102 Phil 866)
applicable laws. The corporate powers of local e. A public plaza is beyond the commerce of
government units are: man, and cannot be the subject of the lease or
7. To have continuous succession in its corporate other contractual undertaking. And, even
name. assuming the existence of a valid lease of the
8. To sue and be sued
9. To have and use a corporate seal 135
Antonio Nachura, Outline on Political Law, 576 (2006)

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public plaza or part thereof, the municipal obligations of the city. While the Mayor has power to
resolution effectively terminated the appropriate funds to support the contracts, neither
agreement, for it is settled that the police does BP 337 prohibit him from entering into
contracts unless and until funds are appropriated
power cannot be surrendered or bargained
therefor. By entering into the two contracts, Mayor
away through the medium of a contract. Simon did not usurp the city council’s power to
(Villanueva v. Castaneda, 154 SCRA 142) provide for the proper disposal of garbage and to
f. Public streets or thoroughfares are property for appropriate funds therefor. The execution of
public use, outside the commerce of man, and contracts to address such a need is his statutory
may not be the subject of lease or other duty, just as it is the city council’s duty to provide for
contracts. (Dacanay v. Asistio, 208 SCRA 404) such service. There is no provision in the law that
g. Procurement of supplies is made through prohibits the city mayor form entering into contracts
for the public welfare unless and until there is a prior
competitive public bidding [PD 526], except
authority form the city council.)
when the amount is minimal (as prescribed in
PD 526) where a personal canvass of at least Other Cases:
three responsible merchants in the locality 1. A contract of lease granting fishing privileges is
may be made by the Committee on Awards, or a valid and binding contract and cannot be
in case of emergency purchases allowed impaired by a subsequent resolution setting it
under PD 526.136 aside and grating the privilege to another.
(Unless the subsequent resolution is a police
5. Power to Enter into Contracts measure, because the exercise of police power
prevails over the non-impairment clause.)
Requisites of valid municipal contract: (Manantan v. La Union, 82 Phil 844)
1. The local government units has the 2. A municipal zoning ordinance, as a police
express, implied or inherent power to measure, prevails over the non-impairment
enter into the particular contract. clause. (Ortigas v. Feati Bank, 94 SCRA 533)
2. The contract is entered in to by the proper 3. Breach of contractual obligations by the City of
department, board, committee, officer or Manila renders the City liable in damages. The
agent. Unless otherwise provided by the principle of respondeat superior applies.
Code, no contract may be entered into by
the local chief executive on behalf of the Authority to negotiate and secure grants. (RA
local government unit without prior 7160, Section 23) the local chief executive may,
authorization by the sanggunian upon authority of the sanggunian, negotiate and
concerned. secure financial grants or donations in kind, in
3. The contract must comply with certain support of the basic services and facilities
substantive requirements, i.e., when enumerated in Section 17, from local and foreign
expenditure of public fund is to be made, assistance agencies without necessity of securing
there must be an actual appropriation and clearance or approval form and department
a certificate of availability of funds. agency, or office of the national government or
4. The contract must comply with the formal from any higher local government unit; Provided,
requirements of written contracts, e.g. the that projects financed by such grants or assistance
Statute of Frauds. with national security implications shall be
approved by the national agency concerned.
Ultra Vires Contracts. When a contract is entered
into without the compliance with the 1st and 3rd 6. To exercise such other powers as are
requisites (above), the same is ultra vires and is granted to corporations subject to the
null and void. Such contract cannot be ratified or limitations provided in the Code and other laws.
validated. Ratification of defective municipal
contracts is possible only when there is non-
compliance with the second and/or the fourth V. Municipal Liability
requirements above. Ratification may either be
express or implied. RULE: LGUs and their officials are not exempt
In Quezon City v. Lexber, 2001, it was held that PD from liability for death or injury to persons or
1445 does not provide that the absence of damage to property (RA 7160, Section 24)
appropriation ordinance ipso fact makes a contract
entered into by a local government unit null and
A. Specific Provisions of Law Making LGUs Liable
void. Public funds may be disbursed not only
pursuant to an appropriation law, but also in
pursuance of other specific statutory authority. (In 1. Article 2189, Civil Code: The Local
this case, BP 337, the law which was then in force, Government Unit is liable in damages or
empowered the Mayor to represent the city in its injuries suffered by reason of the defective
business transactions and sign all warrants drawn condition of roads, streets, bridges, public
on the city treasury and all bonds, contracts and buildings and other public works.
136
Antonio Nachura, Outline on Political Law, 576 (2006)

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City of Manila v. Teotico, 22 SCRA 267: The City performance of governmental functions.
of Manila was held liable for damages when a (La Union v. Firme,195 SCRA 692)
person fell into an open manhole in the streets of
the city.
Note: For liability to arise under Article 2189 of the
Jimenez v. City of Manila, 150 SCRA 510:
Despite a management and operating contract Civil Code, ownership of the roads, streets,
with Asiatic Integrated Corporation over the Sta. bridges, public buildings and other public works is
Ana Public Market, the City of Manila (because of not a controlling factor, it being sufficient that a
Mayor Bagatsing’s admission that the City still has province, city or municipality has control or
control and supervision) is solidarily liable for supervision thereof. On the other hand, a
injuries sustained by an individual who stepped on municipality’s liability under Section 149 of the
a rusted nail while the market was flooded. 1983 Local Government Code for injuries caused
Guilatco v. City of Dagupan, 171 SCRA 382:
by its failure to regulate the drilling and excavation
Liability of the City for injuries due to defective
roads attaches even if the road does not belong to of the ground for the laying of gas, water, sewer,
the local government unit, as long as the City and other pipes, attaches regardless of whether
exercises control or supervision over said road. the drilling or excavation is made on a national or
2. Article 2180 (6th par.) Civil Code: The State municipal road, for as long as the same is within its
is responsible when it acts through a special territorial jurisdiction. (Municipality of San Juan v.
agent. CA, GR 121920, 08.09.2005)
3. Article 34, Civil Code: The local government
unit is subsidiarily liable for damages suffered 2. If engaged in proprietary functions, LGU is
by a person by reason of the failure or refusal liable
of a member of the police force to render aid i. Operation of a ferry service is a
and protection in case of danger to life and proprietary function. The municipality is
property. negligent and thus liable for having
awarded the franchise to operate ferry
B. Liability for Tort service to another notwithstanding the
previous grant of the franchise to the
Despite the clear language of Section 24, RA 7160, plaintiff. (Mendoza v. De Leon, 33 Phil
that local government units and their officials are 508)
not exempt form liability for death or injury to ii. Holding of town fiesta is a proprietary
persons or damage to property, it is still unclear function. The Municipality of Malasigue,
whether liability will accrue when the local Pangasinan was held liable for the death
government unit is engaged in governmental of a member of the zarzuela group when
functions. Supreme Court decisions, interpreting the stage collapsed, under the principle of
legal provisions existing prior to the effectivity of respondeat superior. [Note: The Municipal
the Local Government Code, have come up with Council managed the town fiesta. While
the following rules on municipal liability for tort: the municipality was held liable, the
1. If the LGU is engaged in governmental councilors themselves are not liable for
functions, it is not liable; the negligence of their employees or
2. If engaged in proprietary functions; LGU is agents.] (Torio v. Fontanilla, 85 SCRA
liable. 599)
iii. The operation of a public cemetery is a
1. If the LGU is engaged in governmental proprietary function of the City of Manila.
functions, it is not liable. The City is liable for the tortuous acts of
i. The prosecution of crimes is a its employees, under the principle of
governmental function, and thus, the local respondeat superior.
government unit may not be held liable iv. Maintenance of cemeteries is in the
therefor. (Palafox v. Province of Ilocos exercise of the proprietary nature of local
Norte, 102 Phil 1186) governments. The City is liable for breach
ii. In Municipality of San Fernando v. Firme, of agreement. (City of Manila v. IAC, 179
195 SCRA 692, the municipality was not SCRA 428)
held liable for torts committed by a regular v. Liability for illegal dismissal of an
employee, even if the dump truck used employee. It was held that inasmuch as
belong to the municipality, inasmuch as there is no finding that malice or bad faith
the employee was discharging attended the illegal dismissal and refusal
governmental (public works) functions. to reinstate respondent Gentallan by her
iii. Delivery of sand and gravel for the superior officers, the latter cannot be held
construction of municipal bridge in the personally accountable for her back
exercise of the governmental capacity of salaries. The municipal government
local governments. The municipality is not therefore, should disburse funds to
liable for injuries that arise in the answer for her claims (back salaries and

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Atty. ARIS S. MANGUERA

other monetary benefits form the time of can be held liable for damages. (Abella v,
her illegal dismissal up to her Municipality of Naga, 90 Phil 385)
reinstatement) resulting from dismissal. 2. Lack of funds does not excuse the Municipality
In City of Cebu v. Judge Piccio, 110 Phil from paying the statutory minimum wage of
558, it was held that a municipal P120 a month to its employees. The payment
corporation, whether or not included in the of the minimum wage is a mandatory statutory
complaint for recovery of back salaries
obligation of the Municipality. (Racho v.
due to wrongful removal from office, is
liable. Municipality of Ilagan, Isabela)
vi. Local officials may also be held 3. The Municipality of Bunawan, Agusan del Sur,
personally liable. through the Mayor was held in contempt and
City of Angeles v. CA, 261 SCRA 90, where the fined P1,000.00 with a warning, because of the
city officials ordered the construction of a drug refusal of the Mayor to abide by a TRO issued
rehabilitation center on the open space donate by the Court.
by the subdivision owner in violation of PD
1216, the cost of the demolition of the drug D. Liability for Contracts
rehabilitation center should be borne by the cit
officials who ordered the construction because
1. Rule: A municipal corporation, like an ordinary
they acted beyond the scope of their person, is liable on a contract it enters into,
authority and with evident bad faith. provided that the contract is intra vires (If the
(However, since the city mayor and the contract is ultra vires, the municipal
sanggunian members were sued in their official corporation is not liable.)
capacity, they cannot be held personally liable 2. A private individual who deals with a municipal
without giving them their day in court.) corporation is imputed constructive knowledge
Rama v. CA, 148 SCRA 496, the Provincial of the extent of the power or authority of the
governor and the members of the Provincial
Board where held liable in damages in their
municipal corporation to enter into contracts.
personal capacity arising form the illegal act of 3. Ordinarily, therefore, the doctrine of estoppel
dismissing employees in bad faith. Where does not lie against the municipal corporation.
they act maliciously and wantonly and 4. The doctrine of implied municipal liability: A
injure individuals rather than discharge a municipality may become obligated upon an
public duty, they are personally liable. implied contact to pay the reasonable value of
Correa v. CFI Bulacan, 92 SCRA 312, the the benefits accepted or appropriated by it as
Mayor who, without just cause, illegally to which it has the general power to contract.
dismissed an employee, acted with grave
abuse of authority, and he not the Municipality
(Province of Cebu v. IAC, 147 SCRA 447) The
of Norzagaray, Bulacan, is personally liable. doctrine applies to all cases where money or
This liability attaches even if, at the time of other property of a party is received under
execution, he is no longer the Mayor. such circumstances that the general law,
Salcedo v. CA, 81 SCRA 408, the Mayor, for his independent of an express contract, implies an
persistent defiance of the order of the CSC to obligation to do justice with respect to the
reinstate the employee, was held personally same.
liable for the payment of back salaries. i. It was held that the Province of Cebu
Pilar v. Sangguniang Bayan of Dasol, 128
SCRA 173, the Mayor was held liable for
cannot set up the plea that the contract
exemplary and corrective damages for vetoing, was ultra vires and still retain benefits
without just cause, the resolution of the thereunder.xxx having regarded the
Sangguniang Bayan appropriating the salary of contract as valid for purposes of reaping
petitioner. benefits, the Province of Cebu is
Nemenzo v. Sabillano, 25 SCRA 1, Mayor estopped to question its validity for the
Sabillano was adjudged personally liable for purpose of denying answerability.
payment of back salaries of a policeman who (Province of Cebu v. IAC, 147 SCRA
was illegally dismissed. The Mayor cannot hide
behind the mantle of his official capacity and
447)
pass the liability to the Muncipality of which he ii. Q: Does Province of Cebu v. IAC,
is Mayor. reverse De Guia v. Auditor General
San Luis v. CA, 1989, Laguna Governor San where the Supreme Court held that the
Luis was held personally liable for moral engagement of the services of Atty. De
damages for refusing to reinstate Berroya, Guia by the Municipal Council of
quarry superintendent, despite the ruling of the Mondragon, Northern Samar was ulra
CSC as affirmed by the Office of the President. vires, because a municipality can
engage the services of a private lawyer
C. Liability for Violation of Law only if the Provincial Fiscal is
1. Where the Municipality closed a part of a disqualified from appearing as counsel
municipal street without indemnifying the for the municipality?
person prejudiced thereby, the Municipality A: Apparently not, because in Province
of Cebu v. IAC, the Province could not

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ATENEO DE MANILA UNIVERSITY
SCHOOL OF LAW
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possibly engage the legal services of 2. A local chief executive is mandated to abide by
the Provincial Fiscal, the latter having Article I of Section 444(b)(x) of 1991 Local
taken a position adverse to the interest Government Code which directs executive officials
of the Province for having priorly and employees of the municipality to faithfully
rendered an opinion that the donation discharge their duties and functions as provided
was valid. by law. (Velasco v. Sandiganbayan, GR 160991,
iii. Estoppel cannot be applied against a 02.28.2005)
municipal corporation in order to
validate a contract which the municipal 3. The 1987 Constitution provides that no elective
corporation has no power to make or official shall be eligible for appointment or
which it is authorized to make only designation in any capacity to any other public
under prescribed limitations or in a office or position during his/ her tenure in order
prescribed mode or manner—even if that they may serve full-time with dedication.
the municipal corporation has accepted Thus, a local chief executive cannot be appointed
benefits therunder. In San Diego v. as chairperson of the Subic Bay Metropolitan
Municipality of Naujan, the SC rejected Authority since such office is not an ex officio post
the doctrine of estoppels, because to or attached to the office of the local chief
apply the principle would enable the executive. (Flores v. Drilon, GR 104732, 06.22.93)
municipality to do indirectly what it
cannot do directly. 4. The municipal mayor, being the appointing
iv. In Muncipality of Pililia Rizal v. CA, authority, is the real party in interest to challenge
where the SC said that the municipality the Civil Service Commission's disapproval of the
cannot be represented by a private appointment of his/ her appointee. The CSC's
attorney. Only the Provincial Fiscal or disapproval of an appointment is a challenge to
the Muncipal Attorney can represent a the exercise of the appointing authority's
province of municipality in lawsuits. This discretion. The appointing authority must have the
is mandatory. The municipality’s right to contest the disapproval. (Dagadag v.
authority to employ a private lawyer is Tongnawa, GR 161166-67, 02.03.2005)
limited to situations where the Provincial
Fiscal is disqualified to represent it, and 5. The municipal mayor, not the municipality alone
the fact of disqualification must appear must be impleaded in a petition assailing the
on record. The Fiscal’s refusal to dismissal of an employee whom he/she appointed
represent the municipality is not a legal even if the mayor acted in his/her official capacity
justification for employing the services when he dismissed the respondent. If not
of private counsel; the municipality impleaded, he/she cannot be compelled to abide
should request the Secretary of Justice by and comply with its decision, as the same
to appoint an Acting Provincial Fiscals would not be binding on him/her. (Civil Service
in place of the one who declines to Commission v. Sebastian, GR 161733,
handle the case in court. 10.11.2005)
v. But if the suit is filed against a local
official which could result in personal 6. A proclaimed candidate who was later on
liability of the said public official, the disqualified has no legal personality to institute an
latter may engage the services of action seeking to nullify a decision of the Civil
private counsel. (Mancenido v. CA, Service Commission concerning the dismissal of
2000) municipal employees since he/ she is not a real
party in interest. (Miranda v. Carreon, GR 143540,
VI. Local Officials 04.11.2003)

A. Nature of Office (Agra Notes) 7. The city treasurer is the proper disciplining
authority in the case of a local revenue officer, the
1. A local chief executive is considered an
former being the head of agency. (Garcia v.
accountable public officer as defined under the
Pajaro, GR 141199, 07.05.2002)
Revised Penal Code since he/ she, in the
discharge of his/ her office, receives money or
8. A punong barangay cannot terminate the services
property of the government which he/ she is duty
of the barangay treasurer and secretary without
bound to account for. Thus, a local chief executive
the concurrence of sangguniang barangay since
is guilty of malversation upon finding that he/ she
this is explicitly required under Section 389 of the
received public funds and was unable to
1991 Local Government Code. (Alquizola v. Ocol,
satisfactorily account for the same. (Tanggote v.
GR 132413, 08.27.99)
Sandiganbayan, GR 103584, 09.02.94)

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B. Provisions Applicable to Elective and Appointive 3. Doctors of medicine may practice their
Local Officials profession even during official hours of work
only on occasion of emergency, provided they
Prohibited Business and Pecuniary Interest (RA do not derive monetary compensation
7160, Section 89): It shall be unlawful for any local therefrom.
government official or employee, directly or It was held that DILG Memorandum Circular
indirectly to: No. 90-81 does not discriminate against
lawyers and doctors; it applies to all provincial
1. Engage in any business transaction with the and municipal officials. (Javellana v. DILG, 212
local government unit in which he is an official SCRA 475)
or employee or over which he has the power of
supervision, or with any of its authorized Prohibition Against Appointment (RA 7160,
boards, officials, agents or attorneys, whereby Section 94)
money is to be paid, or property or any other 1. No elective or appointive local official shall be
thing of value is to be transferred, directly or eligible for appointment or designation in any
indirectly, out of the resources of the local capacity to any public office or position during
government unit to such person or firm; his tenure. Unless otherwise allowed by law or
2. Hold such interests in any cockpit or other by the primary functions of his office, no local
games licensed by the local government unit; official shall hold any other office or
3. Purchase any real estate or other property employment in the government or any
forfeited in favor of the local government unit subdivision, agency or instrumentality thereof,
for unpaid taxes or assessment, or by virtue of including GOCCs or their subsidiaries. (Relate
a legal process at the instance of the local this to Section 7, Article IX-B)
government unit; 2. Except for losing candidates in barangay
4. Be a surety of any person contracting or doing election, no candidate who lost in any election
business with the local government unit for shall, within one year after such election, be
which a surety is required; and appointed to any office in the government of
5. Possess or use any public property of the local GOCC or their subsidiaries. (Relate this to
government unit for private purposes. Section 6, Article IX-B)
6. The prohibitions and inhibitions prescribed in
RA 6713 also apply. C. Elective Local Officials
Qualifications
Practice of Profession (Section 90, RA 7160) Disqualifications
1. All governors, city and municipal mayors are Manner of Election
prohibited form practicing their profession or Date of Election
engaging in any occupation other than the Term of Office
exercise of their function as local chief Rules of Succession
executives. Compensation
2. Sanggunian members may practice their Recall
profession, engage in any occupation, or teach Resignation
in schools except during session hours, Grievance Procedure
Provided, that those who are also members of Discipline
the Bar shall not (i) appear as counsel before Cases on Offenses (Agra Notes)
any court in any civil case wherein the local Cases on Procedure (Agra Notes)
government unit or any office, agency or Complaints
instrumentality of the government is the Preventive Suspension
adverse party; (ii) appear as counsel in any Penalty (Agra Notes)
criminal case wherein an officer or employee Administrative Appeal
of the national or local government is accused Execution Pending Appeal
of an offense committed in relation to his Jurisdiction of Sandiganbayan (Agra Notes)
office; (iii) collect any fee for their appearance Effect of Re-election
in administrative proceedings involving the
LGU of which he is an official; and (iv) use 1. Qualifications (RA 7160, Section 39)
property and personnel of the government 1. Citizen of the Philippines;
except when the sanggunian member 2. Registered Voter in the barangay,
concerned is defending the interest of the municipality, city or province, or in the
government. case of a member of the sangguniang
It was held that by appearing as counsel for
dismissed employees, City Councilor Javellana
panlalawigan, panlungsod or bayan, the
violated the prohibition against engaging in district where he intends to be elected;
private practice if such practice represents 3. A resident therein for at least 1 year
interests adverse to the government. (Javellana immediately preceding the election’
v. DILG, 212 SCRA 475)

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4. Able to read and write Filipino or any other The following are disqualified from running for
local language or dialect; any elective local position:
5. On the election day, must be at least 23 1. Those sentenced by final judgment for an
years of age [for governor, vice-governor, offense involving moral turpitude or for an
member of the sangguniang offense punishable by one year or more of
panlalawigan, mayor, vice mayor, or imprisonment, within two years after
member of the ssangguniang panlungsd serving sentence;
of highly urbanized cities]; 21 years of age 2. Those removed from office as a result of
[for mayor or vice mayor of independent an administrative case;
component cities, component cities, or 3. Those convicted by final judgment for
munciplaities]; 18 years of age [for violating the oath of allegiance to the
member of the sangguniang panlungsod Republic.
or sagguniang bayan, or punong 4. Those with dual citizenship137;
barangay or member of the sangguniang 5. Fugitives from justice in criminal or non-
barangay], or at least 15 but not more political cases here or abroad;
than 21 years of age [candidates for the 6. Permanent residents in a foreign country
sangguniang kabataan] or those who have acquired the right to
i. The LGC does not specify any particular reside abroad and continue to avail of the
date when the candidate must posses same right after the effectivity of the Code;
Filipino citizenship. Philippine citizenship 7. The insane or feeble-minded.
is required to ensure that no alien shall
govern our people. An official begins to
i. Violation of the Anti-Fencing Law involves
govern only upon his proclamation and
moral turpitude, and the only legal effect of
on the day that his term begins. Since
probation is to suspend the
Frivaldo took his oath of allegiance the
implementation of the sentence. Thus, the
day that his term begins. Since Frivaldo
disqualification still subsists. (De la Torre
took his oath of allegiance on June 30,
v. COMELEC, 258 SCRA 483) Likewise,
1995, when his application for
violation of BP 22 is a crime involving
repatriation was granted by the Sepcial
moral turpitude, because the accused
Committee on Naturalization created
knows at the time of the issuance of the
under PD 825, he was therefore qualified
check that he does not have sufficient
to be proclaimed. Besides, Section 30 of
funds in , or credit with, the drawee bank
the LGC speaks of qualifications of
for payment of the check in full upon
elective officials, not of candidates.
presentment. (Villaber v. COMELEC,
Furthermore, repatriation retroacts to the
2001)
date of the filing of his application on
August 17, 1994. (Frivaldo v. COMELEC, ii. Article 73 of the Rules Implementing RA
257 SCRA 727) 7160, to the extent that it confines the
ii. In Altajeros v. COMELEC, 2004, the term “fugitive from justice” to refer only
petitioner took his oath of allegiance on to a person “who has been convicted by
December 17, 1997, but his Certificate of final judgment” is an inordinate an undue
Repatriation was registered with the Civil circumscription of the law. The term
Registry of Makati City only after 6 years, includes not only those who flee after
or on February 18, 2004, and with the conviction to avoid punishment, but
Bureau of Immigration on March 1, 2004, likewise those who, after being charged,
thus completing the requirements for flee to avoid prosecution”.
repatriation only after he filed his In Rodriguez v. COMELEC, 259 SCRA
certificate of candidacy, but before the 296, it was held that Rodriuez cannot be
election. On the issue of whether he was considered a “fugitive from justice”,
qualified to run for Mayor of San Jacinto, because his arrival in the Philippines form
Masabate, the Court applied the ruling in the US preceded by at least five months
Frivaldo, that repatriation retroacts to the the filing of the felony complaint in the Los
date of filing of the application for Angeles Court and the issuance of the
repatriation. Petitioner was, therefore, warrant for his arrest by the same foreign
qualified to run for Mayor. court.
iii. Petitioner who was over 21 years of age iii. Section 40, RA 7160, cannot apply
on the day of the election was ordered retroactively. Thus, an elective local official
disqualified by the SC when the latter who was removed from office as a result
rejected the contention of the petitioner of an administrative case prior to January
that she was qualified because she was 1, 1992 (date of LGC’s effectivity) is not
less than 22 years old. The phrase “not disqualified form running for elective local
more than 21 years old” is not equivalent office (Grego v. COMELEC
to “less than 22 years old.” (Garvida v. In Reyes v. COMELEC, 254 SCRA 514,
Sales, 271 SCRA 767) the SC ruled that the petitioner, a
Municipal Mayor who had been ordered
2. Disqualifications (RA 7160, Section 40)
137
Interpreted in the case of Mercado v. Manzano, 307 SCRA 630).

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SCHOOL OF LAW
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removed from office by the Sanggunian Every three years on the second Monday of May,
Panlalawigan, was disqualified, even as unless otherwise provided by law.
he alleged that the decision was not yet
final because he had not yet received a
5. Term of Office
copy of the decision. It was shown,
however, that he merely refuse to accept Three years, starting from noon of June 30, 1992,
delivery of the copy of the decision. or such date as may be provided by law, except
that of elective barangay officials. No local elective
iv. In Mercado v. Manzano, 307 SCRA 630,
official shall serve for more than three consecutive
the SC clarified the “dual citizenship”
disqualification, and reconciled the same terms in the same position. The term of office of
with Section 5, Article IV of the barangay officials and members of the
COnsitution on “dual allegiance”. sangguniang kabataan shall be for five (5) years,
Recognizing situation in which a Filipino which shall begin after the regular election of
citizen may, without performing any act barangay officials on the second Monday of May,
and as an involuntary consequence of the 1997. (RA 8524)
conflicting laws of different countries, be
also a citizen of another State, the Court
Article X, Section 8. The term of office of elective local
explained that “dual citizenship”, as a
officials, except barangay officials, which shall be
disqualification, must refer to citizens with
determined by law, shall be three years and no such
“dual allegiance”. Consequently, persons
official shall serve for more than three consecutive terms.
with mere dual citizenship do not fall
Voluntary renunciation of the office for any length of time
under the disqualification.
shall not be considered as an interruption in the continuity
of his service for the full term for which he was elected.
3. Manner of Election (RA 7160, Section 41)
1. The governor, vice-governor, city or Q: Due to incumbent mayor’s death, the vice-mayor
municipal mayor, city or municipal vice- succeeds to the office of mayor by operation of law and
mayor and punong barangay shall be serves the remainder of the mayor’s term. Is he
elected at large in their respective units. considered to have served a term in that office for the
purpose of the three-term limit?
The sangguniang kabataan chairman A: No. Section of Article X embodies two policies, viz.:
shall be elected by the registered voters of (1)to prevent political dynasties and
the katipunan ng kabataan. (2) to enhance the freedom of choice of the people. The
2. The regular members of the sangguniang term limit of elective officials must be taken to refer
panlalawigan, panlungsod and bayan to the right to be elected as well as the right to serve
in the same elective position. Consequently, it is not
shall be elected by district as may be enough that an individual served three consecutive terms
provided by law. The presidents of the in an elective local office, he must also been elected to
leagues of sanggunian members of the same position for the same number of times before
component cities and municipalities shall the disqualification can apply.138
serve as ex officio members of the
sanffuniang panlalawigan concerned. The Q: When will the three-limit of local elective officials-
presidents of the liga ng mga barangay except barangay officials- apply?
and the pederasyon ng mga sangguniang A: Only when these two conditions concur:
1. The local official concerned has been elected
kabataan elected by their respective three consecutive times; and
chapters, shall serve ex officio members 2. He has fully served three consecutive terms.
of the sangguniang panlalawigan, (Borja v. COMELEC, 1998)
panlungsod or bayan.
Article X, Section 9. Legislative bodies of local SC devised scenarios to explain the
governments shall have sectoral representation application of Article X, Section 8 in Borja v.
as may be prescribed by law. COMELEC:
3. In addition, there shall be one sectoral Q: Suppose A is a vice-mayor who becomes mayor by
representative from the women, one from reason of the death of the incumbent. Six months
the workers, and one from any of the before the next election, he resigns and is twice
following sectors: urban poor, indigenous elected thereafter. Can he run again for mayor in the
next election?
cultural communities, disabled persons, or
A: Yes, because although he has already first served
any other sector as may be determined by as mayor by succession and subsequently resigned
sanggunian concerned within 90 days from office before the full term expired, he has not
prior to the holding of the next local actually served there full terms in all for the purpose of
elections as may be provided by law. The applying the term limit. Under Art. X, Section 8,
Comelec shall promulgate the rules and voluntary renunciation of office is not considered as an
regulations to effectively provide for the interruption in the continuity of his service for the full
election of such sectoral representatives. term only if the term is one “for which he was elected.”
Since A is only completing the service of the term for
which the deceased and not he was elected, A cannot
4. Date of Election
138
Borja v. COMELEC, 1998

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be considered to have completed one term. His Q: RA 7160, Section 43-c limits the term of office of
resignation constitutes an interruption of the full term. barangay official to three years. Petitioners argue that
(Borja v. COMELEC, 1998) Section 8, Article X “by excepting barangay officials
whose ‘terms shall be determined law’ from the general
Q: Suppose B is elected mayor and, during his term, provision fixing the term of ‘elective local officials’ at three
he is twice suspended for misconduct for a total of 1 years,” impliedly prohibits Congress form legislating a
year. If he is twice re-elected after that, can he run for three-year term for such officers. Thus, Section 43-C of
one more term in the next election? RA 7160 is unconstitutional. Decide.
A: Yes, because he has served only two-full terms A: The Constitution did not expressly prohibit Congress
successively. (Borja v. COMELEC, 1998) Bernas: It is from fixing any term of office of barangay officials. (David
submitted that this is not correct. Suspension does not v. COMELEC, 1997)
interrupt his term nor in fact his tenure because the
office still belongs to him during suspension. Q: How long then is the term of barangay officials?
Moreover, the Court’s solution rewards wrong doing. A: As may be determined by law. And the Local
Government Code, Section 43-c limits their term to three
Q: The case of vice-mayor C who becomes mayor by years.
succession involves a total failure of the two conditions
to concur for the purpose of applying Article X, Section 2006 Bar Question. Law fixing the terms of
8. Suppose he is twice elected after that term, is he local elective officials.
qualified to run again in the next election?
Q:State whether or not the law is constitutional.
A: Yes, because he was not elected to the office of the
mayor in the first terms but simply found himself thrust Explain briefly.
into it by operation of law. Neither had he served the “A law fixing the terms of local elective officials,
full term because he only continued the service, other than barangay officials, to 6 years.”
interrupted by the death, of the deceased mayor. Suggested Answer: The law is invalid. Under
Article X, Section 8 of the 1987 Constitution, "the
Current Rules on Term Limits: term of office of elective local officials, except
1. Lonzanida was elected Mayor to a third term. His barangay officials, which shall be determined by
election was challenged, however, and he lost and had law, shall be three years and no such official shall
to abandon his office. He could still run in the next
serve for more than three consecutive terms." The
election year because he did not serve three full
terms.139 law clearly goes against the aforesaid constitutional
2. Talaga lost when he ran for a third term. The requirement of three year terms for local officials
winner, however, lost to him in a recall election and he except for barangay officials.
served the rest of the former winner’s term. At the end
of this term he could run again because he had not 6. Rules of Succession (RA 7160, Sections 444-
served three full terms.140 46)
3. Hagedorn served as Mayor for three full terms. In Permanent Vacancies- A permanent vacancy
the first year after the end of his third term, he ran in a
recall election. Qualified? Yes, because between the
arises when an elective local officials fills higher
end of his third term and the recall election there was vacant office, refuses to assume office, fails to
an interruption thus breaking the successiveness.141 qualify, dies, is removed from office, voluntarily
4. During the third term of a Mayor of a municipality, resigns, or is permanently incapacitated to
the municipality was converted to a city. The Mayor discharge the functions of his office. If a permanent
was allowed to finish the third term. Could he run as vacancy occurs in the office of:
Mayor of the city in the next election? No. There has 1. Governor or mayor, the vice-governor or vice-
been no change in territory nor in constituency. Thus mayor concerned shall become the governor
the three term limit applies.142
5. When a municipal councilor assumed the office of
or mayor.
Vice-Mayor respondent’s assumption of office as vice- 2. Vice-governor or vice-mayor, the highest
mayor in January 2004 by operation of law, it was an ranking sanggunian member or, in case of
involuntary severance from his office as municipal permanent inability, the second highest
councilor resulting in an interruption in the service of ranking sanggunian member, and subsequent
his 2001-2004 term. He did not serve the full 2001- vacancies shall be filled automatically by the
2004 term.143 other sanggunian members according to their
6. After serving a full three year term, Alegre was ranking. Ranking in the sanggunian shall be
declared to have been invalidly elected. Should that
term be counted for purposes of the three term limit?
determined on the basis of the proportion of
Yes. The decision declaring him not elected is of no votes obtained by each winning candidate to
practical consequence because he has already the total number of registered voters in each
served.144 district in the immediately preceding election.
a) In Victoria v. Comelec, 229 SXRA 269, the SC
rejected the contention that this provision be
139 interpreted by factoring the number of the
Lonzanida v Comelec, G.R. No. 135150. July 28, 1999.
140 voters who actually voted, because the law is
Adormeo v Comelec, G.R. No. 147927. February 4, 2002.
141
Socrates v Comelec, G.R. No. 154512. November 12, 2002. 144
142
Ong v. Alegre, G.R. No. 163295, January 23, 2006; Rivera III v.
Latasa v. Comelec. G.R. No. 154829. December 10, 2003. Morales, GR 167591, May 9, 2007.
143
Montebon v COMELEC, G.R. No. 180444, April 8, 2008.

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clear and must be applied—and the courts may the expense of Reforma-LM. (Navarro v. CA,
not speculate as the probable intent of the 2001)
legislature apart form the words used in the b) The appointment to any vacancy caused by the
law. cessation from office of a member of the
b) In Menzon v. Petilla, 197 SCRA 251, it was held sangguniang barangay must be made by the
that this mode of succession for permanent mayor upon the recommendation of the
vacancies may also be observed in the case of sanggunian. The recommendation by the
temporary vacancies in the same office. sanggunian takes the place of nomination by
3. Punong barangay, the highest-ranking the political party (since members of the
sanggunian barangay member, or in case of sangguniang barangay are prohibited to have
his permanent inability, the second highest party affiliations) and is considered as a
condition sine qua non for the validity of the
ranking barangay member. [Note: A tie
appointment.
between or among the highest ranking In Farinas v. Barba, 256 SCRA 396, where
sanggunian members shall be resolved by vacancy to be filled was that of a member of
drawing of lots.] the Sangguniang Bayan who did not belong to
4. Sangguniang member, where automatic any political party, the SC held that neither the
succession provided above do not apply: filled petitioner nor the respondent was validly
by appointment by the President, through the appointed. Not the petitioner, because although
Executive Secretary in the case of the he was appointed by the Governor, he was not
recommended by the Sanggunian Bayan.
Sanggunian Panlalawigan or sanggunian
Neither the respondent, because although he
panlungsod of highly urbanized cities and was recommended by the Sanggunian Bayan,
independent component cities; by the he was not appointed by the Governor.
Governor in the case of the sangguniang 5. Vacancy in the representation of the youth and
panlungsod of component cities and the barangay in the sanggunian: filled
sangguniang bayan; and by the city or automatically by the official next in rank of the
municipality mayor in the case of sangguniang organization concerned.
barangay upon recommendation of the In Garvida v. Sales, 271 SCRA 767, the SC
sangguniang barangay concerned. pointed out that under the LGC, the member of
However, except for the sangguniang the Sangguniang Kabataan who obtained the
barangay, only the nominee of the political next highest number of votes shall succeed the
party under which the sanggunian member Chairman if the latter refuses to assume office,
fails to qualify, is convicted of a crime, voluntary
concerned had been elected and whose
resigns, dies is permanently incapacitated, is
elevation to the position next higher in rank removed from office, or has been absent
created the last vacancy in the sanggunian without leave for more than three consecutive
shall be appointed. months. Ineligibility is not one of causes
A nomination and a certificate of membership enumerated in the Local Government Code.
of the appointee from the highest official of the Thus, to avoid hiatus in the office of the
political party concerned are conditions sine Chairman, the vacancy should be filled by the
qua non, and any appointment without such members of the Sangguniang Kabataan
chosen by the incumbent SK members by
nomination and certificate shall be null and
simple majority from among themselves.
void and shall be a ground for administrative
action against the official concerned.
Other Cases on “Succession”
In case the permanent vacancy is caused by a
1. Vice-governor acting as governor cannot
sangguniang member who does not belong to
continue to preside over sangguniang
any political party, the local chief executive
panlalawigan sessions while acting as such.
shall upon the recommendation of the
(Gamboa v. Aguirre, GR 134213, 07.20.99)
sanggunian concerned, appoint a qualified
2. Under Section 444(b)(1)(xiv) of the 1991 Local
person to fill the vacancy.
Government Code, applications for leave of
a) The reason behind the right given to a political
party to nominate a replacement when a municipal officials and employees appointed
permanent vacancy occurs in the Sanggunian by the Mayor shall be acted upon by him/her,
is to maintain the party representation as willed not by the Acting Vice-Mayor. (Civil Service
by the people in the election. (In this case, with Commission v. Sebastian, GR 161733,
the elevation of Tamayo, who belonged to 10.11.2005)
Reforma-LM to the position of Vice Mayor, a 3. In case of vacancy in the Sangguniang Bayan,
vacancy occurred in the Sangguninan that the nominee of the party under which the
should be filled up with someone who belongs
member concerned was elected and whose
to the political party of Tamayo. Otherwise,
Reforma-LM’s representation in the elevation to the higher position created the last
Sanggunian would be diminished. To argue that vacancy will be appointed. The last vacancy
the vacancy created was that formerlyheld by refers to that created by the elevation of the
the 8th Sanggunian member, a Lakas-NUCD- councilor as vice-mayor. The reason behind
Kampi member, would result in the increase in the rule is to maintain party representation.
that party’s representation in the Sanggunian at

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(Navarro v. Court of Appeals, GR 141307, right to assume the powers, duties and
03.28.2001) functions of the said office on the fourth day of
4. The ranking in the sanggunian shall be absence of the local chief executive, except
determined on basis of the proportion of the the power to appoint., suspend or dismiss
votes obtained by each winning candidate to employees.)
the total number of registered voters. The law
does not provide that the number of votes who 7. Compensation (RA 7160, Section 81)
actually voted must be factored in the ranking. The compensation of local officials and personnel
(Victoria v. Comelec, GR 109005, 01.10.94) shall be determined by the sanggunian concerned,
5. The prohibition on midnight appointments only subject to the provisions of RA 6758
applies to presidential appointments. There is [Compensation and Position Classification Act of
no law that prohibits local elective officials from 1989). The elective barangay officials shall be
making appointments during the last days of entitled to receive honoraria, allowances and other
his/ her tenure. (De Rama v. Court of Appeals, emoluments as may be provided by law or
353 SCRA 94) barangay, municipal or city ordinance, but in no
6. In accordance with Section 44 of the 1991 case less than 1,000 per month for the punong
Local Government Code, the highest ranking barangay and P600.00 for the sanggunian
sangguniang barangay member, not the members.
second placer, who should become the Elective officials shall be entitled to the same leave
punong barangay in case the winning privileges as those enjoyed by appointive local
candidate is ineligible. (Bautista v. Comelec, officials, including the cumulation and commutation
GR 154796, 10.23.2003; Toral Kare v. thereof.
Comelec, GR 157526/ 157527, 04.28.2004)
8. Recall
Temporary Vacancies Recall is the termination of official relationship of an
1. When the governor, city or municipal mayor, or elective official for loss of confidence prior to the
punong barangay is temporarily incapacitated expiration of his term through the will of electorate.
to perform his duties for physical or legal 1. Initiating the process of recall through the
reasons such as, but not limited to, leave of convening of the Preparatory Recall
absence, travel abroad and suspension form Assembly (PRA) is constitutional. The
office, the vice governor, city or municipal vice Constitution empowers Congress to provide
mayor, or the highest ranking sanggunian effective means of recall. The adoption of the
barangay member shall automatically exercise PRA resolution is not the recall itself. (Garcia
the powers and perform the duties and v. Comelec, GR 111511, 10.05.93)
functions of the local chief executive 2. Loss of confidence as a ground for recall is a
concerned, except the power to appoint, political question. (Garcia v. Comelec, GR
suspend, or dismiss employees which can be 111511, 10.05.93)
exercised only if the period of temporary 3. Another resolution by the Preparatory Recall
incapacity exceeds thirty working days. (Said Assembly must be adopted to initiate the
temporary incapacity shall terminate upon recall of a vice-mayor who, before the recall
submission to the appropriate sanggunian of a election, became the mayor. (Afiado v.
written declaration that he has reported back Comelec, GR 141787, 09.18.2000)
to office. In case the temporary incapacity is 4. The Preparatory Recall Assembly is distinct
due to legal causes, the local chief executive from liga ng mga barangay. Barangay
concerned shall also submit necessary officials who participated in recall did so not
documents showing that the legal causes no as members of the liga but as PRA members.
longer exists.) (Malonzo v. Comelec, GR 127066, 03.11.97)
2. When the local chief executive is travelling 5. Notice to all members of the Preparatory
within the country but outside this territorial Recall Assembly is a mandatory requirement.
jurisdiction for a period not exceeding three (Garcia v. Comelec, GR 111511, 10.05.93)
consecutive days, he may designate in writing 6. Notice may be served by president of the liga
the officer-in-charge of the said office. Such ng mga barangay who is also a member of
authorization shall specify the powers and the Preparatory Recall Assembly. (Malonzo v.
functions that the local official shall exercise in Comelec, GR 127066, 03.11.97)
the absence of the local chief executive, 7. Service of notice may be effected under any of
except the power to appoint, suspend or the modes of service of pleadings – personal,
dismiss employees. (If the local chief executive by registered mail. (Malonzo v. Comelec, GR
fails or refuses to issue such authorization, the 127066, 03.11.97)
vice-governor, city or municipal vice-mayor, or 8. The 1-year ban (from assumption and next
the highest ranking sanggunian barangay election) refers to the holding of the recall
member, as the case may be , shall have the election, not the convening of the PRA.

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SCHOOL OF LAW
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(Claudio v. Comelec, GR 140560/ 714, mayor charged with the offense must be
05.04.2000) convicted in the criminal action.
9. The ‘regular recall election’ mentioned in the 1- 4. Commission of any offense involving moral
year proscription refers to an election where turpitude or an offense punishable by at least
the office held by the local elective official prision mayor.
sought to be recalled will be contested and 5. Abuse of authority.
filled by the electorate. (Paras v. Comelec, In failing to share with the municipalities
concerned the amount paid by the Naitonal
GR 123169, 11.04.96; Jariol v. Comelec, GR
Power Corporation for the redemption of the
127456, 03.20.97) properties acquired by the Province of Albay at
10. A party aggrieved by the issuance of Comelec a public auction held for delinquent realty taxes,
en banc resolution (calendar of activities for the Provincial Officials were held guilty of
recall election) when he/ she had sufficient abuse of authority. (Salalima v. Guingona, 257
time, must file a motion for reconsideration SCRA 55)
with Comelec en banc. (Jariol v. Comelec, 6. Unauthorized absence for 15 consecutive
GR 127456, 03.20.97) working days, except in the case of members
of the sangguniang palalawigan, panlungsod,
9. Resignation (RA 7160, Section 82) bayan and barangay.
Resignation of elective local officials shall be 7. Application for, or acquisition of, foreign
deemed effective only upon acceptance by the citizenship or residence or the status of an
following authorities: immigrant of another country.
a) The President, in case of governors, vice- 8. Such other grounds as may be provided in this
governors, and mayors and vice-mayors of Code and other laws.
highly urbanized cities and independent [An elective local official may be removed from
component cities. office on the grounds enumerated above by order
b) The governor, in the case of municipal mayors of the proper court.]
and vice-mayors, city mayors and vice-mayors
of component cities. Cases on Discipliinary Action (Agra Notes)
c) The sanggunian concerned, in case of 1. The power of the President over administrative
sanggunian members. disciplinary cases against elective local
d) The city or municipal mayor, in the case of officials is derived from his/ her power of
barangay officials. general supervision over local governments.
[Note: The resignation shall be deemed accepted if The power to discipline and ensure that the
not acted upon by the authority concerned within laws be faithfully executed must be
15 working days from receipt thereof. Irrevocable construed to authorize the President to order
resignations by sanggunian members shall be an investigation of the act or conduct of local
deemed accepted upon presentation before an officials when in his/ her opinion the good of
open session of the sanggunian concerned and the public service so requires. Thus:
duly entered in its records, except where the “Independently of any statutory provision
sanggunian members are subject to recall elections authorizing the President to conduct an
or to cases where existing laws prescribe the investigation of the nature involved in this
manner of acting upon such resignations.] proceeding, and in view of the nature and
character of the executive authority with
10. Grievance Procedure (RA 7160, Section 83) which the President of the Philippines is
The local chief executive shall establish a invested, the constitutional grant to him/ her
procedure to inquire into, act upon, resolve or settle power to exercise general supervision over
complaints and grievances presented by local all local governments and to take care that
government employees. the laws be faithfully executed must be
construed to authorize him/ her to order an
11. Discipline (RA 7160, Sections 60-68) investigation of the act or conduct of the
Grounds for Disciplinary Action: local official.(Joson v. Torres, GR 131255,
An elective local official may be disciplined, 05.20.98)
suspended, or removed from office on any of the 2. Jurisdiction over administrative disciplinary
following grounds: actions against elective local officials is
1. Disloyalty to the republic of the Philippines. lodged in two authorities: the Disciplining
2. Culpable violation of the Constitution. Authority and the Investigating Authority.
3. Dishonesty, oppression, misconduct in office, The Disciplinary Authority may constitute a
gross negligence, or dereliction of duty. Special Investigating Committee in lieu of
It was held that acts of lasciviousness cannot the Secretary of the Interior and Local
be considered misconduct in office, and may Government. With respect to a provincial
not be the basis of an order of suspension. To governor, the disciplining Authority is the
constitute a ground for disciplinary action, the President of the Philippines, whether acting

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by himself/ herself or through the Executive longer be charged administratively for


Secretary. The Secretary of the Interior and misconduct during previous term. (Garcia v.
Local Government is the Investigating Mojica, GR 139043, 09.10.99) An
Authority, who may act himself/ herself or administrative case has become moot and
constitute and Investigating Committee. The academic as a result of the expiration of
Secretary of the Department, however, is not term of office of an elective local official
the exclusive Investigating Authority. In lieu during which the act complained of was
of the Department Secretary, the Disciplining allegedly committed. Proceedings against
Authority may designate a Special respondent are therefore barred by his/ her
Investigating Committee. The power of the re-election. (Malinao v. Reyes, GR 117618,
President over administrative disciplinary 03.29.96; Reyes v. Comelec, GR 120905,
cases against elective local officials is 03.07.96)
derived from his/ her power of general 8. Under the 1991 Local Government Code, the
supervision over local governments. The disqualification to run for any elective local
power of the Department to investigate position is for two years after service of
administrative complaints is based on the sentence, not 5 years under the Omnibus
alter-ego principle or the doctrine of qualified Election Code since the LGC is the later
political agency. (Joson v. Torres, GR enactment. (Magno v. Comelec, GR
131255,05.20.98) 147904, 10.04.2002)
3. An ‘administrative offense’ means every act or
conduct or omission which amounts to, or 12. Cases on Offenses (Agra Notes)
constitutes, any of the grounds for 1. There are no unlawful disbursements of public
disciplinary action. (Salalima v. Guingona, funds when disbursements are made
GR 117589-92,05.22.96) pursuant to a reenacted budget. Money can
4. The 1991 Local Government Code is the be paid out of the local treasury since there is
applicable law insofar as disciplinary action a valid appropriation. There is no undue injury
against an elective local official is since there was non unlawful expenditure.
concerned. The Code prevails over the However, only the annual appropriations for
Administrative Code since the latter is of salaries and wages, statutory and contractual
general application and the former was obligations, and essential operating expenses
enacted much later than the latter. (Calingin are deemed reenacted. There is criminal
v. Court of Appeals, GR 154616, liability in delay in submission of the budget
07.12.2004) proposal provided the requirements under
5. When a mayor is adjudged to be disqualified, a Section 318 of the Code are not met. The
permanent vacancy was created for failure mayor must first receive the necessary
of the elected mayor to qualify for the office. financial documents from other city officials in
In such eventuality, the duly elected vice order to be able to prepare the budget.
mayor shall succeed as provided by law. (Villanueva v. Ople, GR 165125, 11.18.2005)
The second placer cannot be declared as
mayor. (Toral Kare v. Comelec, GR 157526/ 2. A mayor who continues to perform the
157527, 04.28.2004) functions of the office despite the fact that he/
6. Any vote cast in favor of a candidate, whose she is under preventive suspension usurps
disqualification has already been declared the authority of the Office of the Mayor and is
final regardless of the ground, shall be liable for violation of Section 13 of the Anti-
considered stray. The application of this rule Graft and Corrupt Practices Act. Section 13 of
is not only limited to disqualification by R.A. No. 3019 covers two types of offenses:
conviction in a final judgment. Section 40 of (1) any offense involving fraud on the
the 1991 Local Government Code government; and (2) any offense involving
enumerates other grounds. The public funds or property. The first type
disqualification of a candidate is not only by involves any fraud whether public funds are
conviction in a final judgment. (Toral Kare v. involved or not. “Fraud upon government”
Comelec, GR 157526/ 157527, 04.28.2004) means “any instance or act of trickery or
7. A reelected local official may not be held deceit against the government.” It cannot be
administratively accountable for misconduct read restrictively so as to be equivalent to
committed during his/ her prior term of malversation of funds. Honest belief that he is
office. The re-election of a public official no longer under preventive suspension
extinguishes only the administrative, but not cannot serve as defense when he refused to
the criminal, liability incurred during the leave his position despite having received the
previous term of office. (Valencia v. memorandum from the Department of Interior
Sandiganbayan, GR 141336, 06.29.2004) A and Local Government and only vacating the
local official who was re-elected can no office after being forced out by the Philippine

I sweat, I bleed, I soar… 64


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ATENEO DE MANILA UNIVERSITY
SCHOOL OF LAW
Atty. ARIS S. MANGUERA

National Police. (Miranda v. Sandiganbayan, pecuniary interest in any business, contract,


GR 154098, 07.27.2005) or transaction may violate Section 3(h) of the
3. By allowing a dismissed employee whose Anti-Graft and Corrupt Practices Act. The first
dismissal was affirmed by the Civil Service mode is if in connection with his/ her
Commission to continue working and receive pecuniary interest in any business, contract
his/ her salary, the mayor accorded or transaction, the public officer intervenes or
unwarranted benefits to a party. Therefore he/ takes part in his/ her official capacity. The
she is liable for violating Section 3(e) of the second mode is when he/ she is prohibited
Anti-Graft and Corrupt Practices Act. At the from having such interest by the Constitution
time of the commission of the crime, the or any law. A mayor relative to the issuance of
municipal mayor, he/ she was mandated to a license to operate a cockpit which he/ she
abide by Article I of Section 444(b)(x) of 1991 owns cannot be held liable under the first
Local Government Code which directs mode since he/ she could not have
executive officials and employees of the intervened or taken part in his/ her official
municipality to faithfully discharge their duties capacity in the issuance of a cockpit license
and functions as provided by law. because he was not a member of the
Considering such duty, the mayor had to Sangguniang Bayan. Under the 1991 Local
enforce decisions or final resolutions, orders Government Code, the grant of a license is a
or rulings of the Civil Service Commission. legislative act of the sanggunian. However,
(Velasco v. Sandiganbayan, GR160991, the mayor could be liable under the second
02.28.2005) mode. Further, Section 89 of the 1991 Local
Government Code proscribes such pecuniary
4. Under Section 3(h) of R.A. 3019, the person interest. The penalty must be that one
liable is any public officer who directly or provided under the Code, not under the Anti-
indirectly has financial or pecuniary interest in Graft Law since the Code specifically refers
any business, contract or transaction in to interests in cockpits while the latter refers
connection with which he intervenes or takes in general to pecuniary interest. (Teves v.
part in his official capacity, or in which he is Sandiganbayan, GR 154182, 12.17.2004)
prohibited by the Constitution or by any law
from having any interest. The essential 6. An illegally dismissed government employee
elements of the violation of said provision are who is later ordered reinstated is entitled to
as follows: 1) The accused is a public officer; backwages and other monetary benefits from
2) he has a direct or indirect financial or the time of his/ her illegal dismissal up to his/
pecuniary interest in any business, contract her reinstatement. This is only fair and just
or transaction; 3) he either: a) intervenes or because an employee who is reinstated after
takes part in his official capacity in connection having been illegally dismissed is considered
with such interest, or b) is prohibited from as not having left his/ her office and should
having such interest by the Constitution or by be given the corresponding compensation at
law. In other words, there are two modes by the time of his/ her reinstatement. When there
which a public officer who has a direct or is no malice or bad faith that attended the
indirect financial or pecuniary interest in any illegal dismissal and refusal to reinstate on
business, contract, or transaction may violate the part of the municipal officials, they cannot
Section 3(h) of R.A. 3019. The first mode is be held personally accountable for the back
when the public officer intervenes or takes salaries. The municipal government should
part in his official capacity in connection with disburse funds to answer for the claims
his financial or pecuniary interest in any resulting from dismissal. (Civil Service
business, contract or transaction. The second Commission v. Gentallan, GR 152833,
mode is when he is prohibited from having 05.09.2005)
such an interest by the Constitution or by law.[ 7. ‘Moral Turpitude’ is an act of baseness,
Thus, a mayor violated the aforestated vileness, or depravity in the private duties
provision via the first mode when he/she which a person owes his/ her fellow men (and
intervened in his/her official capacity in women) or to the society in general, contrary
connection with his/her financial or pecuniary to the accepted and customary rule of right
interest in the transaction regarding the and duty between man and woman or
supply and delivery of mixed gravel and sand conduct contrary to justice, honesty, modesty,
to the constituent barangays. It was the or good morals. One such act is the crime of
mayor’s company that supplied the materials. fencing. (Dela Torre v. Comelec GR 121592,
(Domingo v. Sandiganbayan, GR 149175, 07.05.96)
10.25.2005) 8. A local chief executive is not duty-bound to
5. There are two modes by which a public officer approve and sign a voucher when there is no
who has a direct or indirect financial or appropriations ordinance and when there is

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no certification of availability of funds for the her. (Yabut v. Office of the Ombudsman, GR
intended purpose. For not signing the 111304, 07.17.94)
voucher, bad faith cannot be imputed against 12. A city mayor cannot be held liable under
him/ her. (Llorente v. Sandiganbayan, Section 3(g) of the Anti-Graft and Corrupt
GR122166, 03.11.98) Practices Act for entering into a contract
9. When the validity of subsequent appointments which is grossly and manifestly
to the position of Assistant City Assessor has disadvantageous to the government when the
not been challenged, the city mayor who contract which is subject of the complaint has
appointed a person to serve in said position been rescinded before the report of the
had every right to assume in good faith that Commission on Audit came out and before
the one who held the position prior to the the complaint was filed with the Ombudsman.
appointments no longer held the same. Thus, (Duterte v. Sandiganbayan, GR 130191,
the city mayor is not liable for violation of 04.27.98)
Sections 3(a) and 3(e) of the Anti-Graft and 13. Partial restitution of cash shortage is an
Corrupt Practices Act. Section 3(a) requires a implied admission of misappropriation of
deliberate intent on the part of the public missing funds by the municipal treasurer in
official concerned to violate those rules and case where he/ she offers no competent and
regulations duly promulgated by competent credible evidence to prove that the missing
authority, or to commit an offense in funds were actually cash advances of
connection with official duties. On the other employees in the municipality. (Doldol v.
hand, Section 3(e) poses the standard of People of the Philippines, GR 164481,
manifest partiality, evident bad faith, or gross 09.20.2005)
inexcusable negligence before liability can be
had on that paragraph. Manifest partiality has
been characterized as a clear, notorious or 13. Cases on Procedure (Agra Notes)
plain inclination or predilection to favor one 1. An erring elective local officials has rights akin
side rather than the other. Evident bad faith to the constitutional rights of an accused.
connotes a manifest deliberate intent on the These are essentially part of procedural due
part of the accused to do wrong or cause process. The local elective official has the (1)
damage. Gross inexcusable negligence has right to appear and defend himself/ herself in
been defined as negligence characterized by person or by counsel; (2) the right to confront
the want of even slight care, acting or and cross-examine the witnesses against
omitting to act in a situation where there is a him/ her; and (3) the right to compulsory
duty to act, not inadvertently but wilfully and attendance of witness and the production of
intentionally with a conscious indifference to documentary evidence. Thus, the official’s
consequences in so far as other persons may right to a formal investigation was not
be affected. (Reyes v. Atienza, GR 152243, satisfied when the complaint against him/ her
09.23.2005) decided on the basis of position papers. The
provisions for administrative disciplinary
10. The approval by the Commission on Audit actions elective local officials are markedly
(COA) of disbursements of local funds by a different from appointive officials. The rules
local executive relates to the administrative on the removal and suspension of elective
aspect of the matter of the officials local officials are more stringent. The
accountability. It does not foreclose the procedure of requiring position papers in lieu
Ombudsman’s authority to investigate and of a hearing in administrative cases is
determine whether there is a crime to be expressly allowed with respect to appointive
prosecuted for which he/ she is accountable. officials but not to those elected. An elective
Compliance with COA rules and regulations official, elected by popular vote, is directly
does not necessarily mean that no responsible to the community that elected
misappropriation of public funds was him/ her. The official has a definite term of
committed. Evidence in this regard must still office fixed by law which is relatively of short
be adduced. (Aguinaldo v. Sandiganbayan, duration. Suspension and removal from office
GR 124471, 11.28.96) definitely affects and shortens this term of
11. Public officials, more especially an elected office. When an elective official is suspended
one, should not be onion-skinned. Thus, a or removed, the people are deprived of the
vice-mayor who beat up a motorist despite services of the official they had elected.
the provocation by the latter, is guilty of (Joson v. Torres, GR 131255, 05.20.98)
misconduct. The period where an official was 2. The essence of procedural due process is
placed under preventive suspension cannot embodied in the basic requirement of notice
be credited to the penalty imposed on him/ and a real opportunity to be heard. In
administrative proceedings, procedural due

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process simply means the opportunity to imposition of preventive suspension by the


explain one’s side or the opportunity to seek governor was unjustified and politically
a reconsideration of the action or ruling motivated, should seek relief first from the
complained of. Procedural due process has Secretary of the Interior and Local
been recognized to include the following: (1) Government, not from the courts. (Espiritu v.
the right to actual or constructive notice of the Melgar, GR 100874, 02.13.92)
institution of proceedings which may affect a 7. The 1991 Local Government Code does not
respondent’s legal rights; (2) a real preclude the filing of an appeal of a decision
opportunity to be heard personally or with the of a sangguniang panlungsod involving an
assistance of counsel, to present witnesses elective barangay official. Section 68 of the
and evidence in one’s favor, and to defend Code specifically allows a party to appeal to
one’s rights; (3) a tribunal vested with the Office of the President. The decision is
competent jurisdiction and so constituted as immediately executory but the respondent
to afford a person charged administratively a may nevertheless appeal the adverse
reasonable guarantee of honesty as well as decision to the Office of the President or to
impartiality; and (4) a finding by said tribunal the Sangguniang Panlalawigan, as the case
which is supported by substantial evidence may be. (Mendoza v. Laxina, GR 146875,
submitted for consideration during the 07.14.2003)
hearing or contained in the records or made 8. Under Section 61 of the 1991 Local
known to the parties affected. Kinship alone Government Code, a complaint against any
does not establish bias and partiality. Bias elective official of a municipality shall be filed
and partiality cannot be presumed. In before the sangguniang panlalawigan whose
administrative proceedings, no less than decision may be appealed to the Office of the
substantial proof is required. Mere allegation President. When appeal to the Office of the
is not equivalent to proof. Mere suspicion of President is available, resort to filing a
partiality is not enough. There should be petition for certiorari, prohibition and
hard evidence to prove it, as well as manifest mandamus with the Court of Appeals under
showing of bias and partiality stemming from Rule 65, 14 was inapt. The availability of the
an extrajudicial source or some other basis. right of appeal precludes recourse to the
(Casimiro v. Tandog, GR 146137, special civil action for certiorari. (Balindong v.
06.08.2005) Dacalos, GR 158874, 11.10. 2004)
3. An administrative complaint against an erring 9. No notice of the session where a decision of
elective official must be verified and filed with the sanggunian is to be promulgated on the
the proper government office. A complaint administrative case is required to be given to
against an elective provincial or city must be the petitioner. The deliberation of the
filed with the Office of the President. A sanggunian is an internal matter. In order to
complaint against an elective municipal render a decision in administrative cases
official must be filed with the Sangguniang involving elective local officials, the decision
Panlalawigan while that of a barangay official of the sanggunian must be writing stating
must be filed before the Sangguniang clearly and distinctly the facts and the
Panlungsod or Sangguniang Bayan. reasons for the decision. Thus, the voting
(Mendoza v. Laxina, GR 146875, following the deliberation of the members of
07.14.2003) the sanggunian did not constitute the decision
4. The lack of verification in a letter-complaint unless this was embodied in an opinion
may be waived, the defect being not fatal. prepared by one of them and concurred in by
Verification is a formal, not jurisdictional the others. Until the members have signed
requites. (Joson v. Torres GR 131255, the opinion and the decision is promulgated,
05.20.98) they are free to change their votes. (Malinao
5. Decisions of the Office of the President are v. Reyes, GR 117618, 03.29.96)
final and executory. No motion for 10. The filing of motion for reconsideration before
reconsideration is allowed by law but the the supervising local government concerning
parties may appeal the decision to the Court a disciplinary case involving an elective
of Appeals. The appeal, however, does not official of the supervised unit prevents the
stay the execution of the decision. The decision of the former from becoming final.
Secretary of the Interior and Local Thus, there is thus no decision finding the
Government may validly move for its official guilty to speak of which would
immediate execution. (Calingin v. Court of disqualify said official. (Lingating v. Comelec,
Appeals, GR 154616, 07.12.2004) GR 153475, 11.13.2002)
6. Direct recourse to the courts without 11. Under the 1991 Local Government Code, an
exhausting administrative remedies is not elective local official must be citizen of the
permitted. Thus, a mayor who claims that the Philippines. One who claims that a local

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official is not has the burden of proving his/ decision, was deemed not to have been
her claim. In administrative cases and repealed by RA 7160 did not expressly repeal
petitions for disqualification, the quantum of the administrative order, and implied repeals
are frowned upon. (Berces v. Executive
proof required is substantial evidence.
Secretary, 241 SCRA 539)
(Matugas v. Comelec, GR 151944, b) The decision of the sanggunian panlalawigan in
01.20.2004) administrative cases involving elective officials
12. The Office of the President is authorized to may be in writing stating clearly and distinctly
stay the execution of a decision against a the facts and the reasons for the decision, and
municipal mayor issued by the Sangguniang must be signed by the requisite majority of the
Panalawigan pending appeal. Reviewing sanggunian. (Malinao v. Reyes, 256 SCRA
officials are not deprived of their authority to 616)
order a stay an appealed decision. 3. A valid complaint against elective barangay
Supervising officials are given such officials, shall be filed before the sangguniang
discretion. (Berces v. Guingona, 241 SCRA panglungsod os sagguniang bayan concerned,
539) whose decision shall be final and executor.

14. Complaints 15. Preventive Suspension (Agra Notes)


1. A verified complaint against provincial, highly 1. Nature. Preventive suspension is merely a
urbanized city or independent component city preventive measure, a preliminary step in an
elective official, shall be filed before the Office administrative investigation.
of the President. Purpose. The purpose of the suspension
a) It may be noted that the Constitution places order is to prevent the accused from using his
local governments under the supervision of the position and the powers and prerogatives of
Executive. Likewise, the Constitution allows his office to influence potential witnesses or
Congress to include in the Local Government tamper with records which may be vital in the
Code provisions for removal of local officials, prosecution of the case against him. If after
which suggest that Congress may exercise such investigation, the charge is established
removal powers. So, the Local Government
and the person investigated is found guilty of
Code has done and delegated its exercise to
the President. Note also that legally, acts warranting his suspension or removal,
supervision is not incompatible with disciplinary then he is suspended, removed or dismissed.
authority. (Ganzon v. CA, 200 SCRA 271) This is the penalty. Not being a penalty, the
b) Under Administrative Order No. 23, the period within which one is under preventive
President has delegated the power to suspension is not considered part of the
investigate complaints to the Secretary of actual penalty of suspension. Thus, service of
Interior and Local Government. This is valid the preventive suspension cannot be credited
delegation because what is delegated is only
as service of penalty. (Quimbo v. Gervacio,
the power to investigate, not the power to
discipline. Besides, the power of the Secretary GR 155620,08.09.2005)
of Interior and Local Government to investigare 2. Pre-requisites. A preventive suspension may
is based on the alter ego principle. (Joson v. be imposed by the Disciplinary Authority at
Torres, 290 SCRA 279) any time (a) after the issues are joined i.e.
c) The respondent has the right to formal respondent has filed an answer; (b) when the
investigation under Administrative Order No. 23 evidence of guilt is strong; and (c) given the
which includes the right to appear and defend gravity of the offenses, there is great
himself in person or by counsel, the right right
probability that the respondent, who
to confront the witnesses against him and the
right to compulsory process for the attendance continues to hold office, could influence the
of witnesses and the production of documents. witnesses or pose a threat to the safety and
Thus, in this case, where the Secretary denied integrity of the records and other evidence.
the petitioners motion for a formal investigation These are the pre-requisites. However, the
and decided the case on the basis of position failure of respondent to file his/ her answer
papers, the right f the petitioner was violated despite several opportunities given him/ her is
(Joson v. Torres) In Salalima v. Guingona, 257 construed as a waiver of his/ her right to
SCRA 55, the SC said that the administrative
present evidence in his/ her behalf. In this
investigation can proceed even during the
pendency of an appeal of audit findings to the situation, a preventive suspension may be
Commission on Audit. imposed even if an answer has not been
2. A verified complaint against elective municipal filed. (Joson v. Torres, GR 131255, 05.20.98)
officials, shall be filed before the sangguinian
panlalawigan, whose decision may be 3. Section 63 of the Local Government Code
appealed to the Office of the President. which provides for a 60 day maximum period
a) Administrative Order No. 18 dated February 12,
for preventive suspension for a single office
1987, which provides that on appeal from the
decision of the Sangguniang Panlalawigan, the does not govern preventive suspensions
President may stay execution of the appealed imposed by the Ombudsman, which is a

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constitutionally created office and an elective local official (at any time after the
independent from the Executive branch of issues are joined), it would be enough that (a)
government. The Ombudsman’s power of there is reasonable ground to believe that the
preventive suspension is governed by respondent has committed that act or acts
Republic Act No. 6770 otherwise known as complained of, (b) the evidence of culpability
“The Ombudsman Act of 1989”. Under the is strong, (c) the gravity of the offense so
Act, the preventive suspension shall continue warrants, or (d) the continuance in office of
until the case is terminated by the Office of the respondent could influence the witnesses
the Ombudsman but not more than six or pose a threat to the safety and integrity of
months. (Miranda v. Sandiganbayan, GR the records and other evidence. (Hagad v.
154098, 07.27.2005) Gozo-dadole, GR 108072, 12.12.95)
4. Under the 1991 Local Government Code, a
single preventive suspension of local elective Who may impose preventive suspension.
officials should not go beyond 60 days. Thus, Preventive suspension may be imposed by the
the Sandiganbayan cannot preventively President, the governor, or the mayor [as the case
suspend a mayor for 90 days. (Rios v. may be] at any tome after the issues are joined,
Sandiganbayan, GR 129913, 09.26.97) when the evidence of guilt is strong, and given the
5. A municipal official placed under preventive gravity of the offense, there is great probability that
suspension by a sangguniang panlalawigan the continuance in office of the respondent could
must file a motion for reconsideration before influence the witnesses or pose a threat to the
the said sanggunian before filing a petition for safety and integrity of the records and other
certiorari with the Court of Appeals. Such evidence; provided that any single preventive
motion is a condition sine qua non before suspension shall not extend beyond 60 days, and
filing a petition for certiorari under Rule 65 of in the event several administrative cases are filed
the 1997 Rules of Civil Procedure, as against the respondent, he cannot be suspended
amended. (Flores v. Sangguniang for more than 90 days within a single year on the
Panlalawigan of Pampanga, GR 159022, same ground or grounds existing and known at the
02.23.2005) time of the first suspension.
6. There is nothing improper in placing an officer 1. The authority to preventively suspend is
in preventive suspension before charges exercised concurrently by the Ombudsman,
against him/ her are heard and before he/she pursuant to RA 6770; the same law authorizes
is given an opportunity to prove his/her a preventive suspension of six months. (Hagad
innocence. This is allowed so that such v. Gozo-Dadole, 1995)
officer may not hamper the normal course of The preventive suspension of an elective local
the investigation through the use of his/ her official (in this case the Mayor of San
influence and authority. (Espiritu v. Melgar, Fernando, Romblon) by the Sandignabayan
GR 100874, 02.13.92) on a charge of violation of RA 3019, shall
7. The Ombudsman pursuant to Republic Act No. likewise be only for a period of 60 days, not 90
6770 and the President are both authorized days, consistent with Section 63, RA 7160,
to place under preventive suspension erring which provides that “any single preventive
local officials of highly-urbanized cities, suspension of local elective officials shall not
independent cities and provinces. The extend beyond 60 days.” (Rios v.
Ombudsman may impose a longer period of Sandiganbayan, 1997)
preventive suspension than the President 2. Upon expiration of the preventive suspension,
may. In order to justify the preventive the respondent shall be deemed reinstated in
suspension of a public official under Section office without prejudice to the continuation of
24 of Republic Act No. 6770, the evidence of the proceedings against him, which shall be
guilt should be strong, and (a) the charge terminated within 120 days from the time he
against the officer or employee should involve was formally notified of the case against him.
dishonesty, oppression or grave misconduct 3. Any abuse of the exercise of the power of
or neglect in the performance of duty; (b) the preventive suspension shall be penalized as
charges should warrant removal from the abuse of authority.
service; or (c) the respondent’s continued
stay in office would prejudice the case filed 16. Penalty (Agra Notes)
against him/her. The Ombudsman can 1. Under Section 60 of the 1991 Local
impose the 6-month preventive suspension Government Code, the penalty of dismissal
on all public officials, whether elective or from service upon an erring local official may
appointive, who are under investigation. On be declared only by a court of law. Thus,
the other hand, in imposing the shorter period Article 124(b), Rule XIX of the Rules and
of sixty (60) days of preventive suspension Regulations Implementing the Local
under the 1991 Local Government Code on Government Code, which grants the

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disciplinary authority the power to remove 17. Administrative Appeal


elective local officials, is a nullity. (Pablico v. Decision may, within 30 days from receipt thereof,
Villapando, GR 147870, 07.31.2002) be appealed to:
2. A sanggunian panlalawigan may cause the 1. The sangguniang panlalawigan, in the case of
removal of a municipal mayor who did not decision of component cities’ sangguniang
appeal to the Office of the President within panlungsod and sangguniang bayan;
the reglemantary period the decision removal 2. The Office of the President, in the case of
him/ her from office. If a public official is not decision of the sangguniang panlalawigan and
removed before his/ her term of office the sangguniang panglungsod of highly
expires, he/ she can no longer be removed if urbanized cities and independent component
he/she thereafter re-elected for another term. cities. Decision of the Office of the President
Therefore, a decision removing an elective shall be final and executory.
local official, which has become final before a) In Malinao v. Reyes, 255 SCRA 616, the SC
the election, constitutes a disqualification. ruled that certiorari will not lie because there is
(Reyes v. Comelec, GR 120905, 03.07.96) still adequate remedy available in the ordinary
3. The President may suspend an erring course of law, i.e., appeal of the decision of the
provincial elected official who committed Sangguniang Panlalawigan to the Office of the
several administrative offenses for an President.
aggregate period exceeding 6 months b) That there is appeal to the Office of the
provided that each administrative offense, the President is reiterated in Mendoza v. Laxina,
period of suspension does not exceed the 6- 2003, although in this case, because the issue
month limit. (Salalima v. Guingona, GR raised was purely legal, resort to court was
117589-92, 05.22.96) upheld. The phrases, “final and executory” and
4. Dishonesty, oppression, misconduct in office, “final or executory” in Sections 67 and 68 of the
Local Government Code, simply mean that
gross negligence, or an offense punishable administrative appeal will not prevent the
by at least prison mayor constitute grounds enforcement of the decision. While the
for removal upon order of the proper court. administrative decision is immediately
(Castillo-Co v. Barbers GR 129952, 06.16.98) executory, the local elective official may
nevertheless appeal the adverse decision to
The penalty of suspension imposed upon the the Office of the President or the Sanggunian
respondent shall not exceed his unexpired term, or Panlalawigan, as the case may be. After all, if
a period of 6 months for every administrative exonerated on appeal, he will be paid his salary
an such other emoluments denied him during
offense, nor shall said penalty be a bar to the the pendency of the appeal.
candidacy of the respondent as long as he meets
the qualifications required for the office. 18. Execution Pending Appeal
1. In Pablico v. Villapando, 2002, it was held that An appeal shall not prevent a decision from being
by virtue of Section 60 of the LGC, which executed; the respondent shall be considered as
provides that “an elective local official may be having been placed under preventive suspension
removed from office on grounds enumerated during the pendency of the appeal. But in Berces
above by order of the proper court,” the v. Executive Secretary, 241 SCRA 530, the SC
penalty of dismissal form the service may be pointed out the Administrative Order No. 18
imposed upon an erring local elective official authorizes the Office of the President to stay the
only by a court of law. The provision of the execution of a decision pending appeal.
Implementing Rules and Regulations granting Administrative Order No. 18 was not repealed by
the disciplining authority the power to remove the Local government Code.
an elective local official administratively are
invalid. 19. Jurisdiction of Sandiganbayan
2. Note that under Section 40 of the Local
1. For an offense to fall under the exclusive
Government Code, the penalty of removal
original jurisdiction of the Sandiganbayan, the
form office as a result of an administrative
following requisites must concur:
case shall be a bar to the candidacy of the
(1) the offense committed is a violation of
respondent for any elective local office.
(a) R.A. 3019, as amended (the Anti-Graft
3. In Salalima v. Guingona, 257 SCRA 55, the SC
and Corrupt Practices Act),
upheld the imposition of the administrative
(b) R.A. 1379 (the law on ill-gotten
penalty of suspension of not more than 6
wealth), (c) Chapter II, Section 2, Title VII,
months for each offense, provided that the
Book II of the Revised Penal Code (the
successive serves of the sentence should not
law on bribery),
exceed the unexpired portion of the term of the
(d) Executive Order Nos. 1, 2, 14 and 14-
petitioners. The suspension did not amount to
A, issued in 1986 (sequestration cases),
removal from office.
or

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(e) other offenses or felonies whether Government Code of 1991 must have
simple or complexed with other crimes; committed the offense charged in relation to
(2) the offender committing the offenses in the office. For an offense to be committed in
items (a), (b), (c) and (e) is a public official or relation to the office, the relation between the
employee holding any of the positions crime and the office must be direct and not
enumerated in paragraph A of Section 4; and accidental, in that in the legal sense, the
(3) the offense committed is in relation to the offense can not exist without the office. As an
office. exception to this rule, the Court held that
Thus, for the Sandiganbayan to have although public office is not an element of an
exclusive jurisdiction, it is essential that the offense charged, as long as the offense
facts showing the intimate relation between charged in the information is intimately
the office of the offender, a mayor who holds connected with the office and is alleged to
a salary grade level 27, and the discharge of have been perpetrated while the accused
official duties be alleged in the information. was in the performance, though improper or
The jurisdiction of a court is determined by irregular, of his/ her official functions, there
the allegations in the complaint or being no personal motive to commit the crime
information, and not by the evidence and had the accused would not have
presented by the parties at the trial. It does committed it had he not held the aforesaid
not thus suffice to merely allege in the office, the accused is held to have been
information that the crime charged was indicted for “an offense committed in relation”
committed by the offender in relation to his to his office. However, even if public office is
office or that he took advantage of his not an essential element of the offense of
position as these are conclusions of law. The obstruction of justice under Section 1(b) of
specific factual allegations in the information P.D. 1829 but could have been committed
that would indicate the close intimacy had said mayor not held the office of the
between the discharge of the offender’s mayor, said official is subject to the
official duties and the commission of the jurisdiction of the Sandiganbayan. The mayor
offense charged, in order to qualify the crime in the course of his/ her duty as Mayor, who is
as having been committed in relation to public tasked to exercise general and operational
office are controlling. (Adaza v. control and supervision over the local police
Sandiganbayan, GR 154886, 07.28.2005) forces, used his/ her influence, authority and
2. For purposes of acquisition of jurisdiction by office to call and command members of the
the Sandiganbayan, the requirement imposed municipal police. (Rodriguez v.
by Republic Act No. 8249 that the offense be Sandiganbayan, GR 141710, 03.03.2004)
“committed in relation” to the offender’s office 4. The Sandiganbayan has original jurisdiction
is entirely distinct from the concept of “taking over a member of the Sangguniang
advantage of one’s position” as provided Panlungsod, who was charged with violation
under Articles 171 (Falsification by public of Section 3(e) of the Anti-Graft and Corrupt
officer, employee or notary or ecclesiastic Practices Act. Violation of Republic Act No.
minister) and 172 (Falsification by private 3019 committed by officials in the executive
individuals and use of falsified documents) of branch with Salary Grade 27 or higher, and
the Revised Penal Code. The offender under the officials specifically enumerated in (a) to
Article 172 must be a private individual or (g) of Section 4 a.(1) of P.D. No. 1606, as
maybe a public officer, employee or notary amended by Section 2 of Rep. Act No. 7975,
public who does not “take advantage of his regardless of their salary grades, such as
official position.”. Under Article 171, an provincial and city elective officials, likewise
essential element of the crime is that the act fall within the original jurisdiction of the
of falsification must be committed by a public Sandiganbayan. (Inding v. Sandiganbayan,
officer, employee or notary who “takes GR 143047, 07.14.2004)
advantage of his official position.” The
offender “takes advantage of his official 20. Effect of Re-election
position” in falsifying a document when: The re-election of a local official bars the
(1) he has the duty to make or to prepare or continuation of the administrative case against him,
otherwise intervene in the preparation of the inasmuch as the re-election of the official is
document; or tantamount to condonation by the people of
(2) he has the official custody of the whatever past misdeeds he may have committed.
document which he falsifies. (Adaza v. (Malinao v. Reyes, 255 SCRA 616)
Sandiganbayan, GR 154886, 07.28.2005) In Lingating v. Comelec, 2002, the respondent
3. For purposes of vesting jurisdiction with the Mayor, having been found guilty of the administrative
Sandiganbayan, the local elective official who charges and ordered removed from office, had
holds a position of Grade 27 under the Local seasonably filed a motion for reconsideration with

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the Sanggunian Panlalawigan, and no action on his barangay may be appointed by the punong
motion was taken, then the decision of the barangay.]
Sanggunian Panlalawigan never became final. After
the respondent was re-elected, he may no longer be 3. Administrative Discipline
removed from office for the administrative offense. Investigation and adjudication of administrative
complaints against appointive local officials and
D. Appointive Local Officials employees as well as their suspension and
removal shall be in accordance with the civil
1. Responsibility for human resources and service law and rules and other pertinent laws.
development a) Preventive Suspension. The local chief
The local chief executive shall be responsible for executive may preventively suspend for a
human resources and development in his unit and period not exceeding 60 days any subordinate
shall take all personnel actions in accordance with official or employee under his authority
the Constitution, pertinent laws, including such pending investigation if the charge against
policies, guidelines and standards as the Civil such official or employee involves dishonesty,
Service Commission may establish; Provided that oppression or grave misconduct or neglect in
the local chief executive may employ emergency or the performance of duty, or if there is reason to
casual employees or laborer paid on a daily wage believe that the respondent is guilty of the
or piecework basis and hired through job orders for charges which would warrant his removal from
local projects authorized by the sanggunian the service.
concerned, without need of approval or attestation b) Disciplinary Jurisdiction. Except as otherwise
by the Civil Service Commission, as long as the provided by law, the local chief executive may
said employment shall not exceed 6 months. impose the penalty of removal from service,
a) In De Rama v. CA, 2001, it was held that the demotion in rank, suspension for not more
constitutional prohibition on so-called midnight than 1 year without pay, fine in an amount not
appointments specifically those made within exceeding 6 months’ salary, or reprimand. If
two months immediately prior to the next the penalty imposed is suspension without pay
presidential elections, applies only to the for not more than 30 days, his decision shall
President or to Acting President. There is no
law that prohibits local elective officials from be final; if the penalty imposed is heavier, the
making appointments during the last days of decision shall be appealable to the CSC which
their tenure absent fraud on their part, when shall decide the appeal within 30 days from
such appointments are not tainted by receipt thereof.
irregularities or anomalies which breach laws However, it is not the City Mayor, but the City
and regulations governing appointments. Treasurer who exercises disciplinary authority
over a City Revenue Officer. As head of the
b) The Provincial Governor is without authority to
Office of the Treasurer, and Revenue Officer
designate the petitioner as Assistant Provincial
being an officer under him, the former may
Treasurers from a list of recommendees of the
validly investigate the said Revenue Officer and
Provincial Governor. (Dimaandal v. COA, 291
place him under preventive suspension.
SCRA 322)
(Garcia v. Pajaro, 2002)
2. Officials common to all Municipalities, Cities
VII. Autonomous Regions
and Provinces (RA 7160, Section 469-490)
1. Secretary to the Sanggunian
2. Treasurer
3. Assessor NOTE: As of this writing, only one autonomous
4. Accountant region, that of Muslim Mindanao, has been
5. Budget Officer established. (The Organic Act for the autonomous
6. Planning and Development Coordinator region of the Cordilleras failed to obtain the
7. Engineer necessary number of votes because only one
8. Health Officer province approved the Organic Act. An autonomous
9. Civil Registrar region must have at least two provinces. It is
10. Administrator however, still possible for an Organic Act for the
11. Legal Officer Cordilleras to be approved at some future date.)
12. Agriculturist
13. Social Welfare and Development Officer Article X Section 15. There shall be created autonomous
14. Environment and Natural Resources Officer regions in Muslim Mindanao and in the Cordilleras consisting
15. Architect of provinces, cities, municipalities, and geographical areas
16. Information Officer sharing common and distinctive historical and cultural heritage,
17. Cooperatives Officer economic and social structures, and other relevant
18. Population Officer characteristics within the framework of this Constitution and
19. Veterinarian the national sovereignty as well as territorial integrity of the
20. General Services Officer Republic of the Philippines.
[Note: In the barangay, the mandated appointed
officials are the Barangay Secretary and the
Barangay Treasurer, although other officials of the

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A. Reasons Behind the Creation of Autonomous D. Enactment of Organic Acts; Creation of


Regions Autonomous Region

Section 18. The Congress shall enact an organic act for each
autonomous region with the assistance and participation of the
1. The creation of a situation which will allow regional consultative commission composed of representatives
each culture to flourish unhampered by the appointed by the President from a list of nominees from multi-
dominance of other cultures and thereby to sectoral bodies. The organic act shall define the basic
contribute more effectively to national structure of government for the region consisting of the
progress. executive department and legislative assembly, both of which
shall be elective and representative of the constituent political
units. The organic acts shall likewise provide for special courts
2. To furnish possible solution to the regional with personal, family, and property law jurisdiction consistent
conflicts that have arisen partly from cultural with the provisions of this Constitution and national laws.
diversity.145 The creation of the autonomous region shall be effective when
approved by majority of the votes cast by the constituent units
Q: Is an autonomous region an independent nation in a plebiscite called for the purpose, provided that only
within the nation? provinces, cities, and geographic areas voting favorably in
A: No, an autonomous region is organized “within such plebiscite shall be included in the autonomous region.
the framework of this Constitution and the national
sovereignty.”146 Section 19. The first Congress elected under this Constitution
shall, within eighteen months from the time of organization of
both Houses, pass the organic acts for the autonomous
regions in Muslim Mindanao and the Cordilleras.
B. President’s General Supervision

1. Enactment of Organic Acts


Section 16. The President shall exercise general supervision
over autonomous regions to ensure that laws are faithfully
executed. As preliminary step towards the establishment of
the autonomous regions, Congress is commanded
to formulate an Organic Act for each of the two.
The Constitution commands the Congress to enact
C. Powers Not Given to Autonomous Regions
an Organic Act which will be the fundamental law of
the regions.

Section 17. All powers, functions, and responsibilities not Q: What law will be the charter of the autonomous
granted by this Constitution or by law to the autonomous regions?
regions shall be vested in the National Government. A: Their charter will be the Organic Act which will
be passed by Congress in the manner and
Some of the powers which are NOT given to according to the substantive specifications contained
autonomous regions: in Section 18.

Q: If the first Congress fails to pass the Organic Act


1. Jurisdiction over national defense and within 18 months, will it no longer be able to pass
security; such Act later?
2. Foreign relations and foreign trade; A: Yes. The failure of Congress to act cannot be
3. Customs and tariff, quarantine allowed to frustrate the clear intent of the electorate.
The relatively short period is prescribed in order to
4. Currency, monetary affairs, foreign
emphasize the urgency of creating autonomous
exchange, banking and quasi-banking, regions.
external borrowing;
5. Posts and communications; Q: The legality of RA 6734, the Organic Act of
6. Air and sea transport Mindanao, is challenged and the plebiscite called in
7. Immigration and deportation; 13 provinces of Mindanao for the ratification of the
8. Citizenship and naturalization; Organic Act is challenged for being illegal in that
9. General auditing. aspects of the Organic Act violate the Tripoli
Agreement which is a valid international agreement.
Decide.
A: Even if the Tripoli Agreement were an
international agreement, the fact would not affect the
validity of the Organic Act. International agreements
as internal law are on the same legal level as
statutes and whichever as between the two,
145
Bernas Primer at 433 (2006 ed.) international agreement or statute, comes later
146
Bernas Primer at 434 (2006 ed.) supersedes the other. (Abbas v. Comelec, 1989)

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Administration created under EO 220 as well as the


Nature of Organic Act. The Organic Act itself in indigenous and special courts for the indigenous
legal category is a statute. However, it is more than cultural communities of the Cordillera region do not
an ordinary statute because it enjoys affirmation by a exist. “Such tribal courts are not a part of the
plebiscite. Hence, its provision cannot be amended Philippine Judicial system. They do not posses
by ordinary statute. (Pandi v. CA, 2002) judicial power. Like the pangkats or conciliation
panels created by PD 1508 in the barangays, they
are advisory and conciliatory bodies whose principal
objective is to bring together parties to a dispute and
2. Creation of Autonomous Region persuade them to make peace, settle, and
compromise” (Spouses Badua v. Cordillera Bodong
The enactment of the Organic Act does not yet Administration, 1991)
create the autonomous region. The creation of the
autonomous regions takes place only when the
Organic Act is ratified “by a majority of the votes D. Enumerated Powers of Autonomous Region
cast by the constituent units in a plebiscite called
for the purpose.”

Q:For the effective creation of the automous region Section 20. Within its territorial jurisdiction and subject to the
is it required that the total votes cast in all the units provisions of this Constitution and national laws, the organic
where the plebiscite is called must yield a majority of act of autonomous regions shall provide for legislative powers
affirmative votes? over:
A: No. It is enough for the creation of the (1) Administrative organization;
autonomous region that some “provinces, cities, and (2) Creation of sources of revenues;
geographic areas” vote favorably. In other words, as (3) Ancestral domain and natural resources;
an examination of the constitutional text shows, for (4) Personal, family, and property relations;
effective ratification it is not necessary to achieve a (5) Regional urban and rural planning development;
“double majority.” (Abbas v. Comelec, 1989) (6) Economic, social, and tourism development;
(7) Educational policies;
(8) Preservation and development of the cultural heritage; and
What areas become part of the Autonomous (9) Such other matters as may be authorized by law for the
Region? Only those areas which vote in favor of promotion of the general welfare of the people of the region.
the Organic Act. And since the Constitution speaks
of “provinces,” an autonomous region has to Q: Legislation passed by the autonomous regions can
consist of more than one province. come into conflict with the Constitution. How are such
conflicts to be resolved?
Q: What happens to the political subdivisions which A: The Constitution should always prevail. (For instance,
do not vote favorably? the full gamut of religious freedom must be recognized
A: They remain in the administrative region to which even in an area where a principal basis for the autonomy
they belong. (Abbas v. Comelec, 1989) is religious homogeneity.)

Q: Can constituent units which vote negatively in the Q: Legislation passed by the autonomous regions can
first plebiscite under this Constitution join the come into conflict with national laws. How are such
autonomous region at some future time? conflicts to be resolved?
A: It is submitted that they may through a A: There is no easy answer as to which would prevail.
subsequent plebiscite.147 The matter necessitates the serious weighing of the
values. It may even involve adjustment of national laws in
Q: May the Province of Ifugao, which was the only order to accommodate the constitutional desire for local
province which voted for a Cordillera Autonomous autonomy in its various aspects. (And indeed conflict will
Region, constitute the Cordillera Autonomous almost naturally have to be expected because national
Region? laws are generally a reflection of the nationally
A: No, the Constitution says that an autonomous predominant culture. But, although Section 20 says that
region shall consists of provinces, cities and local legislative power should be subject to national laws,
municipalities, and therefore, not just on province. national laws themselves are subject to the Constitution
(Ordillo v. Comelec, 1990) one of those state policies is to ensure the autonomy of
local governments.)
Q: Can a tribal court of the Cordillera Bodong Conflicts can also arise in the application of local laws.
Administration render a valid executor decision in a This can be particularly crucial in the case of personal
land dispute? and property laws for those belonging to autonomous
A: No. In the January 30, 1990 plebiscite, the regions but acting outside the autonomous territory and
creation of the Cordillera Autonomous Region was also for those who do not belong to autonomous regions
rejected by all the provinces and city of Cordillera but are acting within autonomous territory. Thus, conflict
region except Ifugao province, hence the Cordillera of law principles could develop could develop within our
Autonomous Region did not come to be. Hence, no one national municipal law.
autonomous region was created. As a logical
consequence of that, the Cordillera Bodong Q: Is the enumeration in Section 20 exhaustive of what
the Organic Act may give to the autonomous regions?
147
Bernas Primer at 436 (2006 ed.)

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A: No. See Section 17. The enumeration in Section 20 is No project or program shall be implemented by
intended as a political signal that indeed the Constitution government authorities unless the consultations
takes the matter of regional autonomy seriously. mentioned in Sections 2(c) and 26 are complied
with, and prior approval of the sanggunian
E. Peace and Order, Defense and National Security
concerned is obtained; Provided, that occupants in
areas where such projects are to be implemented
Section 21. The preservation of peace and order within the shall not be evicted unless appropriate relocation
regions shall be the responsibility of the local police agencies
sites have been provided.
which shall be organized, maintained, supervised, and utilized
in accordance with applicable laws. The defense and security
of the regions shall be the responsibility of the National B. Philippine National Police
Government.
The extent of operational supervision and control of
Section 21 makes a distinction between the local chief executives over the police force, fire
problem of internal peace and order and the protection unit and jail management personnel
problem of national defense and security. The assigned in their respective jurisdictions shall be
former, understood as the problem of ordinary governed by the provisions of RA 6975, otherwise
criminality which should normally be the concern of known as the “DILG Act of 1990.”
police authorities, is the responsibility of the local
police agencies. C. Inter-governmental Relations
1. The province, through the governor, shall
However, the organization, maintenance, and
ensure that every component city and
supervision of police agencies may in certain
municipality within its territorial jurisdiction acts
circumstances be beyond the capabilities of local
within the scope of its prescribed powers and
governments. In such instances, the President, as
functions. Highly urbanized cities and
Commander-in-Chief may order the armed forces
independent component cities shall be
into the autonomous region to perform whatever
independent of the province.
may be necessary. Except as otherwise provided under the
Constitution and special statutes, the governor
As to national defense and security, that is, as to shall review all executive orders promulgated
dealing with threats to the stability, integrity, and by the component city or municipal mayor
survival of the nation, this clearly is the primary within his jurisdiction. The city or municipal
responsibility of the national government. mayor shall review all executive orders
promulgated by the punong barangay within his
jurisdiction. If the governor or the city or
VIII. Inter-Governmental Relations148 municipal mayor fails to act on said executive
orders within 30 days from submission, the
A. National Government same shall be deemed consistent with law and
therefore valid.
2. In the absence of the legal officer, the
1. Power of General Supervision
municipal government may secure the opinion
The President shall exercise general supervision of the provincial legal officer, and in the
over local government units to ensure that their
absence of the latter, that of the provincial
acts are within the scope of their prescribed powers prosecutor on any legal question affecting the
and functions. The President shall exercise
municipality.
supervisory authority directly over provinces, highly 3. The city or municipality, through the city or
urbanized cities and independent component cities;
municipal mayor, shall exercise general
through the province with respect to component supervision over component barangays to
cities and municipalities; and through the city and
ensure that said barangays acts within the
municipality with respect to the barangays. scope of their prescribed powers and
functions.
2. Enactment of Organic Acts 4. Local government units may, through
National agencies and offices with project appropriate ordinances, group themselves,
implementation functions shall coordinate with one consolidate or coordinate their efforts, services
another and with the local government units and resources for purposes commonly
concerned in the discharge of these functions. beneficial to them. In support of such
They shall ensure the participation of local undertakings, the local government units may,
government units both in the planning and the upon approval by the sanggunian after a
implementation of said national projects. public hearing conducted for the purpose,
contribute funds, real estate, equipment, and
3. Enactment of Organic Acts other kinds of property and appoint or assign
personnel under such terms and conditions as
148
Antonio Nachura, Outline on Political Law, 603 (2006)

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may be agreed upon by th participating local Sinacaban). The power of the Sangguniang
units. Panlalawigan to settle boundary disputes is
limited to implementing the law creating the
municipality; and any alteration of
D. People’s and Non-Governmental Organizations
boundaries not in accordance with the law
1. Local government units shall promote the would exceed this authority.
establishment and operation or people’s and c) Involving municipalities or component
non-governmental organizations to become cities in different provinces: jointly referred
active partners in the pursuit of local to the sanggunians of the provinces
autonomy. concerned.
2. Local government units may enter into joint d) Involving a component city or municipality
ventures and such other cooperative on one hand and a highly urbanized city
arrangements with people’s and non- on the other, or two or more highly
governmental organizations to engage in the urbanized cities: jointly referred to the
delivery o certain basic services, etc. respective sanggunians of the parties.
3. A local government unit may, through its local 2. In the event the sanggunian fails to effect a
chief executive and with the concurrence of settlement within 60 days from the date the
the sanggunian concerned, provide dispute was referred to it, it shall issue a
assistance, financial or otherwise, to such certification to this effect. The dispute shall
people’s and non-governmental organizations then be formally tried by the sanggunian
for economic, socially-oriented, environmental concerned which shall decide the issue within
or cultural projects to be implemented within its 60 days from the date of certification.
territorial jurisdiction. 3. Within the time and manner prescribed by the
Rules of Court, any party may elevate the
E. Mandated Local Agencies decision of the sanggunian concerned to the
1. The Local School Board (Sections 98-101) proper RTC having jurisdiction over the area in
The SC held that the Special Education Fund dispute which shall decide the appeal within 1
(SEF) may be used for the payment of salaries year form the filing thereof.
and personnel-related benefits of the teachers Inasmuch as Section 118 of the Local
appointed by the province in connection with the Government Code does not provide for the office
establishment and maintenance of extension or the agency vested with the jurisdiction over the
classes and operation and maintenance of public settlement of boundary disputes between a
schools. However, the fund may not be used to municipality and an independent component city
defray expenses for college scholarship grants. in the same province, under BP 129, as amended
The grant of government scholarship to poor but by RA 7691, it should be the RTC in the province
deserving students was omitted in Sections that can adjudicate the controversy. After all, RTC
100(c) and 272 of the Local Government. (COA of has general jurisdiction to adjudicate all
Cebu v. Province of Cebu, 2001) controversies, except only those withheld from its
2. The Local Health Board (Section 102-105) plenary powers. (Municipality of Kananga v.
3. The Local Development Council (Sections Madrona, 2003)
106-115) 4. The importance of drawing with precise
4. The Local Peace and Order Council (Section strokes the territorial boundaries of a local unit
116) of government cannot be overemphasized.
The boundaries must be clear for they define
F. Settlement of Boundary Disputes the limits of the territorial jurisdiction of the
local government unit. It can legitimately
1. Boundary disputes between and among local exercise powers of government only within the
government units shall, as much as possible, limits of its territorial jurisdiction. Beyond these
be settled amicably. limits, its acts are ultra vires. Needless to
The rules on settlement of disputes are: state, any uncertainty in the boundaries of
a) Involving two or more barangays in the local government units will sow costly conflicts
same city or municipality: referred to the in the exercise of government power which
sangguniang panlungsod or sagguniang ultimately will prejudice the people’s welfare.
bayan. (Mariano v. Comelec)
b) Involving two or more municipalities in the
same province: referred to the sanggunian BAR QUESTION (2005): Boundary Dispute
panlalawigan. Resolution; LGU; RTC’s Jurisdiction –
The SC declared that the RTC was correct
Q:There was a boundary dispute between Duenas,
when it ordered a relocation survey to
determine to which municipality the barangay a municipality, and Passi, an independent
belonged. The agreement between the component city, both of the same province. State
municipalities of Jimenez and Sinacaban how the two local government units should settle
which was approved by the Sanggunian their boundary dispute. (5%)
Panlalawigan is invalid as it would effectively
amend EO 258 (creating the municipality of

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SCHOOL OF LAW
Atty. ARIS S. MANGUERA

Suggested Answer: Boundary disputes between number of signatures has been obtained.
local government units should, as much as Failure to obtain the required number of
possible, be settled amicably. After efforts at signatures defeats the proposition.
settlement fail, then the dispute may be brought to g) If the required number is obtained, the
the appropriate Regional Trial Court in the said Comelec shall set a date for the initiative
province. Since the Local Government Code is during which the proposition is submitted to
silent as to what body has exclusive jurisdiction the registered voters in the local government
over the settlement of boundary disputes between unit for their approval within 60 days [in case
a municipality and an independent component city of provinces], 45 days [in case of
of the same province, the Regional Trial Courts municipalities], and 30 days [in case of
have general jurisdiction to adjudicate the said barangays] from the date of certification by the
controversy. (Mun. of Kananga v. Madrona, G.R. Comelec. The initiative shall be held on the
No. 141375, April 30, 2003) date set, after which the results thereof shall
be certified and proclaimed by the Comelec.
h) If the proposition is approved by a majority of
IX. Local Initiative and Referendum the votes cast, it shall take effect 15 days after
certification by the Comelec as if affirmative
A. Local Initiative action had been taken thereon by the
sangguninan and local chief executive
concerned.
1. Definition of Local Initiative
It is the legal process whereby the registered 3. Limitations
voters of a local government unit may directly On Local Initiative:
propose, enact or amend any ordinance. It may be i. The power of local initiative shall not be
exercised by all registered votes or the provinces, exercised more than once a year.
cities, municipalities and barangays. ii. Initiative shall extend only to subjects or
matters which are within the legal powers
2. Procedure of the sanggunian to enact.
a) Not less than 2,000 registered voters in the iii. If at any time before the initiative is held,
region: 1,000 registered voters in case of the sanggunian concerned adopts in toto
provinces and cities; 100 voters in case of the proposition presented and the local
municipalities, and 50 in case of barangays, chief executive approves the same, the
may file a petition with the sanggunian initiative shall be cancelled. However,
concerned proposing the adoption, enactment, those against such action may, if they so
repeal or amendment of an ordinance. 9RA desire, apply for initiative in the manner
6735, Section 13) herein provided.
b) If no favorable action is taken by the
sanggunian concerned within 30 days form On the Sanggunian
presentation, the proponents, through their Any proposition or ordinance approved through
duty authorized and registered an initiative and referendum shall not be
representatives, may invoke their power of repealed, modified or amended by the
initiative, giving notice thereof to the sanggunian within 6 months from the date of
sanggunian concerned. approval thereof, and may be amended,
c) The prposition shall be numbered serially, modified or repealed within 3 years thereafter by
starting from numeral I. Two or more a vote of ¾ of all its members. In case of
propositions may be submitted in an initiative. barangays, the period shall be 18 months after
The Comelec or its designated representative the approval thereof.
shall extend assistance in the formulation of
the proposition. B. Local Referendum
d) Proponents shall have 90 days [in case of
provinces and cities], 60 days [in case of 1. Definition of Local Referendum. The legal
municipalities], and 30 days [in case of process whereby the registered voters of the
barangays] from notice mentioned in (b) to local government units may approve, amend
collect the required number of signatures. or reject any ordinance enacted by the
e) The petition shall be signed before the election sanggunian.
registrar or his designated representative, and 2. The local referendum shall be held under the
in the presence of a representative of the control and direction of the Comelec within 60
proponent and a representative of the days [in case of provinces], 45 days [in case of
sanggunian concerned in a public placein the municipalities] and 30 days [in case of
local government unit. barangays]. The Comelec shall certify and
f) Upon the lapse of the period, the Comelec proclaim the results of the said referendum.
shall certify as to whether or not the required

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C. Authority of Courts

Nothing in the foregoing shall preclude the proper


courts from declaring null and void any proposition
approved pursuant hereto for violation of the
Constitution or want of capacity of the sanggunian
concerned to enact said measure.

(Read Case Digests in Pages 452-502 of Jack’s


Compendium (2006))

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a. By the Constitution
b. By valid statutory enactments (e.g. Office
Article XI of the Insurance Commissioner)
ACCOUNTABILITY OF PUBLIC c. By authority of law150
OFFICERS B. Public Officer

A person who holds a public office.151


I. STATEMENT OF POLICY (Section 1)
II. IMPEACHMENT (Sections 2 & 3) C. Public Office as Public Trust
III. SANDIGANBAYAN (Section 4)
IV. OMBUDSMAN (Section 5,6,8-14) Q: What is meant by “public office is a public trust”?
V. SPECIAL PROSECUTOR (Section 7) A: The basic idea of government in the Philippines is that
VI. ILL-GOTTEN WEALTH (Section 15) of a representative government the officers being mere
VII. RESTRICTION ON LOANS(Section 16) agents and not rulers of the people… where every officer
accepts office pursuant to the provisions of law and holds
VIII.TRANSPARENCY RULE (Section 17) the office as a trust for the people whom he represents.
IX. ALLEGIANCE TO THE STATE AND THE (Justice Malcom in Cornejo v. Gabriel, 41 Phil 188,
CONSTITUTION (Section 18) 1920)152

Q: What does the command to lead modest lives entail?


I. Statement of Policy A: Even if the public officer is independently wealthy, he
should not live in a manner that flaunts wealth. 153
Section 1. Public office is a public trust. Public officers and
employees must, at all times, be accountable to the people, II. Impeachment
serve them with utmost responsibility, integrity, loyalty, and
efficiency; act with patriotism and justice, and lead modest
lives. Section 2. The President, the Vice-President, the Members of
the Supreme Court, the Members of the Constitutional
A. Public Office Commissions, and the Ombudsman may be removed from
office on impeachment for, and conviction of, culpable violation
of the Constitution, treason, bribery, graft and corruption, other
1. Definition high crimes, or betrayal of public trust. All other public officers
The right, authority or duty, created and conferred and employees may be removed from office as provided by
by law, by which for a given period, either fixed by law, but not by impeachment.
law or enduring at the pleasure of the creating
power, an individual is invested with some Section 3. (1) The House of Representatives shall have the
sovereign power of government to be exercised by exclusive power to initiate all cases of impeachment.
him for the benefit of the public. (Fernandez v. Sto. (2) A verified complaint for impeachment may be filed by any
Tomas, 1995) Member of the House of Representatives or by any citizen
upon a resolution or endorsement by any Member thereof,
which shall be included in the Order of Business within ten
2. Elements session days, and referred to the proper Committee within
1. Created by law or by authority of law; three session days thereafter. The Committee, after hearing,
2. Possess a delegation of a portion of the and by a majority vote of all its Members, shall submit its
sovereign powers of government, to be report to the House within sixty session days from such
exercised for the benefit of the public; referral, together with the corresponding resolution. The
3. Powers conferred and duties imposed resolution shall be calendared for consideration by the House
must be defined, directly or impliedly, by within ten session days from receipt thereof.
(3) A vote of at least one-third of all the Members of the House
the legislature or by legislative authority;
shall be necessary either to affirm a favorable resolution with
4. Duties must be performed independently the Articles of Impeachment of the Committee, or override its
and without the control of a superior contrary resolution. The vote of each Member shall be
power other than the law, unless they be recorded.
those of an inferior or subordinate office (4) In case the verified complaint or resolution of impeachment
created or authorized by the legislature, is filed by at least one-third of all the Members of the House,
and by it placed under the general control the same shall constitute the Articles of Impeachment, and trial
of a superior office or body; and by the Senate shall forthwith proceed.
(5) No impeachment proceedings shall be initiated against the
5. Must have permanence of continuity.149 same official more than once within a period of one year.

3. Creation 150
Antonio Nachura, Outline on Political Law, 423 (2006)
Public officers are created: 151
Antonio Nachura, Outline on Political Law, 423 (2006)
152
Bernas Primer at 440 (2006 ed.)
149 153
Antonio Nachura, Outline on Political Law, 423 (2006) Bernas Primer at 440 (2006 ed.)

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(6) The Senate shall have the sole power to try and decide all effect of either is to remove him from office, and thus
cases of impeachment. When sitting for that purpose, the circumvent the provision on removal by impeachment
Senators shall be on oath or affirmation. When the President of thus violating his security of tenure (In Re: First
the Philippines is on trial, the Chief Justice of the Supreme Indorsement from Hon. Raul Gonzalez, A.M. No. 88-4-
Court shall preside, but shall not vote. No person shall be 5433)
convicted without the concurrence of two-thirds of all the
Members of the Senate. An impeachable officer who is a member of the Philippine
(7) Judgment in cases of impeachment shall not extend further bar cannot be disbarred first without being impeached.
than removal from office and disqualification to hold any office (Jarque v. Desierto, 250 SCRA 11)156
under the Republic of the Philippines, but the party convicted
shall nevertheless be liable and subject to prosecution, trial, D. Grounds
and punishment, according to law.
(8) The Congress shall promulgate its rules on impeachment to 1. Culpable Violation of the Constitution
effectively carry out the purpose of this section. 2. Treason, Bribery and Graft and Corruption
3. Other High Crimes or
4. Betrayal of Public Trust
A. Definition of Impeachment Note: The enumeration is exclusive.

A national inquest into the conduct of public men.154 Culpable Violation of the Constitution
Culpable violation of the Constitution is wrongful,
To “impeach” simply means to formally charge intentional or willful disregard or flouting of the
with a violation of public trust. fundamental law. Obviously, the act must be
deliberate and motivated by bad faith to constitute
NATURE: Impeachment is a political process. a ground for impeachment. Mere mistakes in the
Thus, the decision to impeach lies exclusively on proper construction of the Constitution, on which
Congress. (J. Carpio in Gutierrez v. HR-CAJ) students of law may sincerely differ, cannot be
Within the limitations set forth in the Constitution, considered a valid ground for impeachment.157
impeachment is inarguably a political act
exercised by the Legislature, a political body Treason
elected by and directly accountable to the people. Treason is committed by any person who, owing
(J. Sereno in Gutierrez v. HR-CAJ) Impeachment allegiance to the Government of the Philippines,
proceedings are political processes that the levies war against it or adheres to its enemies,
Constitution places within the exclusive domain of giving them aid and comfort. (RPC, Article 114)
the legislature. (J. Brion in Gutierrez v. HR-CAJ)
Bribery
B. Purpose of Impeachment Bribery is committed by any public officer who shall
agree to perform an ac, whether or not constituting
The purpose of impeachment is not to punish but crime, or refrain from doing an act which he is
only to remove an officer who does not deserve to officially required to do in connection with the
hold office.155 performance of his official duties, in consideration
for any offer, promise, gift or present received by
C. Impeachable Officers him personally or through the mediation of another,
or who shall accept gifts offered to him by reason
1. President of his office. 9RPC, Arts. 210-211)
2. Vice-President
3. Chief Justice and Associate Justice of the Other High Crimes
Supreme Court According to the special committee of the House of
4. Chairmen and members of the Constitutional Representatives that investigated the impeachment
Commissions charges against President Quirino, are supposed to
5. Ombudsman refer to those offenses “which, like treason and
bribery, are of so serious and enormous a nature
Note: The list of officers subject to impeachment in as to strike at the very life or the orderly workings
Section 2 as worded is exclusive. of the government.” This rather ambiguous
definition, assuming it is correct, would probably
Members of the Supreme Court
The Supreme Court said that the Special Prosecutor
exclude such offenses as rape and murder which,
cannot conduct an investigation into alleged misconduct although as serious as treason and bribery, will not
of a Supreme Court justice, with the end view of filing a necessarily strike at the orderly workings, let alone
criminal information against him with the Sandiganbayan. life of the government.158
A Supreme Court Justice cannot be charged in a criminal
case or a disbarment proceeding, because the ultimate 156
Antonio Nachura, Outline on Political Law, 345 (2006)
154 157
Antonio Nachura, Outline on Political Law, 345 (2006) Cruz, Philippine Political Law, p.335
155 158
Bernas Primer at 442 (2006 ed.) Cruz, Philippine Political Law, p.335

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FRATERNAL ORDER OF UTOPIA
ATENEO DE MANILA UNIVERSITY
SCHOOL OF LAW
Atty. ARIS S. MANGUERA

Graft and Corruption 6. Transmittal of Articles of Impeachment. In


Graft and corruption is to be understood in the light case the verified complaint or resolution of
of the prohibited acts enumerated in the Anti-Grant impeachment is filed by at least one-third of all
and Corrupt Practices Act, which was in force at the Members of the House, the same shall
the time of the adoption of the Constitution.159 constitute the Articles of Impeachment, and
trial by the Senate shall forthwith proceed.
Betrayal of Public Trust
The 1987 Constitution has added “betrayal of Congress shall promulgate its rules on
public trust,” which means any form of violation of impeachment to effectively carry out the purpose.
the oath of office even if such violation may not be (Section 3(8))
criminally punishable offense.160 (See 15th Congress Rules of Procedure in
This is a catch-all to cover all manner of offenses Impeachment Proceedings)
unbecoming a public functionary but not
punishable by the criminal statutes, like The determination of sufficiency of form and
“inexcusable negligence of duty, tyrannical abuse substance of an impeachment complaint is an
of authority, breach of official duty by malfeasance exponent of the express constitutional grant of rule-
or misfeasance, cronyism, favoritism, obstruction of making powers of the House of Representatives
justice.161 which committed such determinative function to
public respondent. In the discharge of that power
E. Procedure and in the exercise of its discretion, the House has
formulated determinable standards as to the form
and substance of an impeachment complaint.
1. Filing of the Verified Complaint. A verified
Prudential considerations behoove the Court to
complaint for impeachment is filed by either:
respect the compliance by the House of its duty to
(a) a Member of the House of
effectively carry out the constitutional purpose,
Representatives; or (b) any citizen upon a
absent any contravention of the minimum
resolution of endorsement by any Member
constitutional guidelines. (Gutierrez v. HR-COJ)
thereof.162
F. Impeachment PROCEEDING v. Impeachment
2. Inclusion in the Order of Business. After
CASE
filing, the complaint shall be included in the
Order of Business within ten session days.
Impeachment Impeachment
3. Referral to the Committee. During the House PROCEEDING163 CASE
Session when the complaint is calendared to Comlexus of acts Impeachment case
be taken up, the Speaker of the House shall refers to the legal
refer the complaint for impeachment to the controversy that is to
proper committee within three session days. be decided by the
Senate.
4. Committee Report. The Committee, after Initiated by a filing of a Initiated by filing of
hearing, and by a majority vote of all its verified complaint the Articles of
Members shall submit its report to the House Impeachment
within sixty (60) session days from the referral, A verified complaint for May be initiated
together with the corresponding resolution. impeachment may be filed exclusively by the
The resolution shall be calendared for by any Member of the House of
consideration by the House within ten session House of Representatives
Representatives
or by any citizen upon a
days from receipt thereof.
resolution or endorsement
by any Member thereof
5. House Plenary Vote. A vote of a least one- Initiated in the House of Initiated in the Senate
third of all the Members of the House shall be Representatives
necessary either to affirm a favorable
resolution with the Articles of Impeachment of 163
J. Abad in Gutierrez v. HR-COJ: The initiation of the
the Committee, or override its contrary impeachment proceeding in the House is intended to be a
resolution. preliminary step for the determination of the sufficiency of the
allegations against the impeachable public official. It is akin to
159
Cruz, Philippine Political Law, p.336 a preliminary investigation in a criminal case where probable
160
Bernas Primer at 442 (2006 ed.) cause is determined against the accused. If there is probable
161 cause to indict the impeachable public official, then the Articles
Cruz, Philippine Political Law, p.336 of Impeachment is transmitted to the Senate. In a criminal
162
The verified complaint is filed with the Office of the Secretary case, a criminal complaint or information is then filed in court
General of the House of Representatives. (15 th Congress Rules of against the accused.
Procedure in Impeachment Proceedings, Rule II, Section 3)

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FRATERNAL ORDER OF UTOPIA
ATENEO DE MANILA UNIVERSITY
SCHOOL OF LAW
Atty. ARIS S. MANGUERA

(3) On August 11, 2010, during its plenary session,


the House of Representatives simultaneously
G. One-Year Bar Rule referred both complaints to House Committee on
Justice.
1. The One-Year Bar Rule
(4) On September 1, 2010 the House Committee
“No impeachment proceedings shall be
on Justice found the first and second complaints
initiated against the same official more than sufficient in form.
once within a period of one year.”

2. Purposes ISSUE: Petitioner reckons the start of the one-year


(1) to prevent undue or too frequent harassment; bar from the filing of the first impeachment
(2) to allow the legislature to do its principal task of complaint against her on July 22, 2010 or four days
legislation.” before the opening on July 26, 2010 of the 15th
Congress. She posits that within one year from
3. Meaning of “Initiated” July 22, 2010, no second impeachment complaint
may be accepted and referred to the House
Committee on Justice.
The proceeding is initiated or begins, when a
verified complaint (with accompanying
resolution or indorsement) is FILED and HELD: J. Carpio-Morales (Ponente). The filing and
REFERRED to the Committee on Justice for the referral of the impeachment complaint to the
action. This is the initiating step which triggers the proper committee “initiated” the impeachment
series of steps that follow. (Fransisco v. HR, 2003) proceedings and triggered the operation of the
one-year bar rule.
In Fransico v. House of Representatives, the SC
said that considering that the first impeachment J. Brion, Dissenting Opinion: The initiation phase
complaint was filed by former President Estrada ends when the Justice Committee determines and
against Chief Justice Davide along with seven the House of Representatives approves the
associate justices on June 02, 2003 and referred to
sufficiency of the impeachment complaint in form
the House Committee on Justice on August 05,
2003, the second impeachment complaint filed by and substance. The finding of the validity of the
some Rep. Teodoro et. al., against the Chief Justice impeachment complaint in form and substance
on October 23, 2003, violates the constitutional completes the initiation phase of the impeachment
prohibition against the initiation of impeachment proceedings and bars the filing of another
proceedings against the same impeachable officer impeachment complaint for a period of one year
within a one-year period. therefrom. The appropriate point that serves both
the “undue harassment” and “interference in
4. Reckoning Point of One-Year Bar lawmaking” purposes of Section 3(5), Article XI of
the Constitution is when the impeachment
Gutierrez v. HR Committee on Justice complaint is determined to be valid.
G.R. No. 193459
February 15, 2011
March 8, 2011
Issue: Petitioner argues that heaping two or more
charges in one complaint will confuse her in
FACTS:
preparing her defense; expose her to the grave
(1) On July 22, 2010 a verified impeachment
dangers of the highly political nature of the
complaint (First Complaint) against petitioner
impeachment process; constitute a whimsical
Ombudsman Ma. Merceditas N. Gutierrez for
disregard of certain rules; impair her performance
betrayal of public trust and culpable violation of the
of official functions as well as that of the House;
Constitution was filed. On August 3, 2010, another
and prevent public respondent from completing its
verified impeachment complaint (Second
report within the deadline.
Complaint) against Ombudsman Gutierrez also for
betrayal of public trust and culpable violation of the
Constitution was filed. Held: The “one offense, one complaint” rule in
ordinary rules of criminal procedure cannot work to
(2) On August 10, 2010, upon the instruction of bar multiple complaints in impeachment
House Majority Leader Neptali Gonzales II, proceedings, as the Constitution allows indictment
Chairperson of the Committee on Rules, the two for multiple impeachment offenses.
impeachment complaints were included in the
Order of Business for the following day, August 11, H. Trial
2010.
The Senate shall have the sole power to try and
decide all cases of impeachment. When sitting for

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FRATERNAL ORDER OF UTOPIA
ATENEO DE MANILA UNIVERSITY
SCHOOL OF LAW
Atty. ARIS S. MANGUERA

that purpose, the Senators shall be on oath or of Justice of the Court of Appeals. It sits in three [3]
affirmation. When the President of the Philippines divisions of three members of each.
is on trial, the Chief Justice of the Supreme Court
shall preside, but shall not vote. A decision of B. Nature of Sandiganbayan
conviction must be concurred in by at least two-
thirds of all the members of the Senate. Sandiganbayan is NOT a constitutional court. It is
a statutory court; that is, it is created not only by
I. Penalty the Constitution but by statute, although its creation
is mandated by the Constitution.166
The penalty which may be imposed “shall not
extend further than removal from office and C. Jurisdiction of Sandiganbayan
disqualification to hold any office under the
Republic.”164 Original Jurisdiction
This penalty is beyond the reach of the President’s  Violations of RA 3019 (AGCPA) as
power of executive clemency, but does not place amended; RA 1379; and Chapter II, Section 2,
the officer beyond liability to criminal prosecution. Titile VII, Book II of the RPV where one or
(When criminally prosecuted, therefore, for the more of the accused are officials occupying
offense which warranted his conviction on the following positions in the government,
impeachment, the officer cannot plead the defense whether in a permanent, acting or interim
of double jeopardy.)165 capacity at the time of the commission of the
offense:
J. Effect of Conviction a. Officials of the Executive branch with the
position of Regional Director or higher, or
with Salary Grade Level 27 (G27)
Removal from office and disqualification to hold according to RA 6758.
any office under the Republic of the Philippines. b. Members of Congress and officials thereof
But the party convicted shall be liable and subject with G27 an up;
to prosecution, trial and punishment according to c. Members of the Judiciary without
law. prejudice to the Constitution;
d. Chairmen and members of the
K. Judicial Review Constitutional Commissions without
prejudice to the Constitutions; and
The Court cannot review the sufficiency of the e. All other national and local officials with
substance of the impeachment complaints. The G27 or higher.
sufficiency of the substance will delve into the
merits of the impeachment complaints over which  Other offenses or felonies whether simple
this Court has no jurisdiction. The Court can only or complexed with other crimes committed by
rule on whether there is a gross violation of the the public officials and employees mentioned
Constitution in filing the impeachment complaint, in in Subsection a in relation to their office;
particular, whether the complaint was filed in  Civil and criminal cases filed pursuant to
violation of the one-year ban. The Court cannot and in connection with EO nos. 1, 2, 14, and
review the decision of the Committee on Justice to 14-A issued in 1986.
impeach. (J. Carpio in Gutierrez v. HR-COJ)
Exclusive Original Jurisdiction over petitions for
the issuance of the writs of mandamus,
prohibitions, certiorari, habeas corpus, injunction
III. Sandiganbayan and other ancillary writs and processes in aid of its
appellate jurisdiction; Provided, that jurisdiction
over these petitions shall not be exclusive of the
Section 4. The present anti-graft court known as the
Supreme Court;
Sandiganbayan shall continue to function and exercise its
jurisdiction as now or hereafter may be provided by law.
Exclusive Appellate Jurisdiction over final
judgments, resolutions or orders of regional trial
A. Composition of Sandiganbayan courts whether in the exercise of their own original
jurisdiction or of their appellate jurisdiction. (RA
Under PD 1606, it is composed of a Presiding 8249)
Justice and Eight Associate Justices, with the rank

164
Bernas Primer at 442 (2006 ed.)
165 166
Bernas Primer at 442 (2006 ed.) Bernas Primer at 443 (2006 ed.)

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Service, Sacrifice, Excellence
FRATERNAL ORDER OF UTOPIA
ATENEO DE MANILA UNIVERSITY
SCHOOL OF LAW
Atty. ARIS S. MANGUERA

The following requisites must concur in order that a


case may fall under the exclusive jurisdiction of the Binay v. Sandiganbayan, 1999: The Supreme
Sandiganbayan: Court discussed the ramifications of Section 7, RA
1. The offense committed is a violation of RA 8249, as follows:
1379, Chapter II, Section , Title VII, Book II of 1. If trial of the cases pending before whatever
the Revised Penal Code, Executive Orders court has already begun as of the approval of
Nos. 1, 2 14 and 14-A, issued in 1986, or other RA 8249, the law does not apply;
offenses or felonies whether simple or 2. If trial of cases pending before whatever court
complexed with other crimes; has not begun as of the approval of RA 8249,
2. The offender committing the offenses (violating then the law applies, and the rules are:
RA 3019, RA 1379, the RPC provisions, and i. If the Sandiganbayan has jurisdiction
other offenses, is a public official or employee over a case pending before it, then it
holding any of the positions enumerated in par. retains jurisdiction;
A, Section 4, RA 8249; and ii. If the Sandiganbayan has no
3. The offense committed is in relation to the jurisdiction over a cased pending
office. (Lacson v. Executive Secretary, 1999) before it, the case shall be referred to
the regular courts;
Private individuals. “In case private individuals iii. If the Sandiganbayan has jurisdiction
are charged as co-principals, accomplices or over a case pending before a regular
accessories with the public officers or employees, court, the latter loses jurisdiction and
they shall be tried jointly with said public officers the same shall be referred to the
and employees. (Section 4, PD 1606)” Sandiganbayan;
“Private persons may be charged together with iv. If a regular court has jurisdiction over
public officers to avoid repeated and unnecessary a case pending before it, then said
presentation of witnesses and exhibits against court retains jurisdiction.
conspirators in different venues, especially of the
issues involved are the same. It follows therefore D. Decisions/Review
that if a private person may be tried jointly with
public officers, he may also be convicted jointly The unanimous vote of all the three members shall
with them, as in the case of the present be required for the pronouncement of judgment by
petitioners.” (Balmadrid v. The Honorable a division. Decisions of the Sandiganbayan shall be
Sandiganbayan, 1991) reviewable by the Supreme Court on a petition for
certiorari.
Macalino v. Sandiganbaya, 2002: It was held that a. It is now settled that Section 13, RA 3019,
because the Philippine National Construction makes it mandatory for the
Company (PNCC0 has no illegal charter, petitioner, Snadiganbayan to suspend any public
an officer of PNCC, is not a public officer. That officer against whom a valid information
being so, the Sandiganbayan has no jurisdiction charging violation of that law, or any
over him. The only instance when the offense involving fraud upon the
Sandiganbayan may exercise jurisdiction over a government or public funds or property is
private individual is when the complaint charges filed. (Bolastig v. Sandiganbayan, 235
him either as a co-principal, accomplice or SCRA 103)
accessory of a public officer who has been charged b. The appellate jurisdiction of the Supreme
within the jurisdiction of the Sandiganbayan. Court over decisions and final orders of
the Sandiganbayan is limited to questions
Determination of Jurisdiction. Whether or not the of law. (Republic v. Sandiganbayan, 2002)
Sandiganbayan or the RTC has jurisdiction over
the case shall be determined by the allegations in IV. Ombudsman
the information specifically on whether or not the
acts complained of were committed in relation to
the official functions of the accused. It is required Section 5. There is hereby created the independent Office of
that the charge be set forth with particularity as will the Ombudsman, composed of the Ombudsman to be known
as Tanodbayan, one overall Deputy and at least one Deputy
reasonably indicate that the exact offense which
each for Luzon, Visayas, and Mindanao. A separate Deputy for
the accused is alleged to have committed is one in the military establishment may likewise be appointed.
relation to his office. Thus, the mere allegation in
the information that the offense was committed by Section 6. The officials and employees of the Office of the
the accused public officer “in relation to his office” Ombudsman, other than the Deputies, shall be appointed by
is a conclusion of law, not a factual averment that the Ombudsman, according to the Civil Service Law.
would show the close intimacy between the offense
charged and the discharge of the accused’s official Section 8. The Ombudsman and his Deputies shall be natural-
duties. (Lacson v. Executive Secretary) born citizens of the Philippines, and at the time of their

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Service, Sacrifice, Excellence
FRATERNAL ORDER OF UTOPIA
ATENEO DE MANILA UNIVERSITY
SCHOOL OF LAW
Atty. ARIS S. MANGUERA

appointment, at least forty years old, of recognized probity and (6) Publicize matters covered by its investigation
independence, and members of the Philippine Bar, and must when circumstances so warrant and with due
not have been candidates for any elective office in the prudence.
immediately preceding election. The Ombudsman must have, (7) Determine the causes of inefficiency, red tape,
for ten years or more, been a judge or engaged in the practice mismanagement, fraud, and corruption in the
of law in the Philippines. Government and make recommendations for their
During their tenure, they shall be subject to the same elimination and the observance of high standards of
disqualifications and prohibitions as provided for in Section 2 ethics and efficiency.
of Article 1X-A of this Constitution. (8) Promulgate its rules of procedure and exercise
such other powers or perform such functions or
Section 9. The Ombudsman and his Deputies shall be duties as may be provided by law.
appointed by the President from a list of at least six nominees Section 14. The Office of the Ombudsman shall enjoy fiscal
prepared by the Judicial and Bar Council, and from a list of autonomy. Its approved annual appropriations shall be
three nominees for every vacancy thereafter. Such automatically and regularly released.
appointments shall require no confirmation. All vacancies shall
be filled within three months after they occur. A. Composition
Section 10. The Ombudsman and his Deputies shall have the  An Ombudsman to be known as the
rank of Chairman and Members, respectively, of the Tanodbayan.
Constitutional Commissions, and they shall receive the same  One over-all Deputy
salary which shall not be decreased during their term of office.
Section 11. The Ombudsman and his Deputies shall serve for  At least one Deputy each for Luzon,
a term of seven years without reappointment. They shall not be Visayas and Mindanao
qualified to run for any office in the election immediately  A separate Deputy for the military
succeeding their cessation from office. establishment may likewise be appointed

Section 12. The Ombudsman and his Deputies, as protectors [Read Uy. v. Sandiganbayan, G.R. No. 105965-70,
of the people, shall act promptly on complaints filed in any 354 SCRA 651]
form or manner against public officials or employees of the
Government, or any subdivision, agency or instrumentality
thereof, including government-owned or controlled
B. Qualifications
corporations, and shall, in appropriate cases, notify the The Ombudsman and his Deputies must be:
complainants of the action taken and the result thereof. 1. Natural Born Citizens of the Philippines
2. At least 40 years of age
Section 13. The Office of the Ombudsman shall have the 3. Of recognized probity and independence
following powers, functions, and duties: 4. Members of the Philippine Bar
5. Must not have been candidates for any
(1) Investigate on its own, or on complaint by any elective office in the immediately preceding
person, any act or omission of any public official, election.
employee, office or agency, when such act or The Ombudsman must have been a judge or
omission appears to be illegal, unjust, improper, or engaged in the practice of law for ten years or
inefficient. more.
(2) Direct, upon complaint or at its own instance, any
public official or employee of the Government, or any
subdivision, agency or instrumentality thereof, as
C. Appointment
well as of any government-owned or controlled
corporation with original charter, to perform and By the President from a list of at least six nominees
expedite any act or duty required by law, or to stop, prepared by the Judicial and Bar Council, and from
prevent, and correct any abuse or impropriety in the a list of at least three nominees for every vacancy
performance of duties.
(3) Direct the officer concerned to take appropriate
thereafter. All vacancies to be filled in three
action against a public official or employee at fault, months.
and recommend his removal, suspension, demotion, a. Term of Office: Seen years without
fine, censure, or prosecution, and ensure reappointment
compliance therewith. b. Rank and Salary: The Ombudsman and
(4) Direct the officer concerned, in any appropriate his Deputies shall have the rank of
case, and subject to such limitations as may be Chairman and Members, respectively, of
provided by law, to furnish it with copies of the Constitutional Commissions, and they
documents relating to contracts or transactions
entered into by his office involving the disbursement
shall receive the same salary which shall
or use of public funds or properties, and report any not be decreased during his term of office.
irregularity to the Commission on Audit for c. Fiscal Autonomy: The Office of the
appropriate action. Ombudsman shall enjoy fiscal autonomy.
(5) Request any government agency for assistance
and information necessary in the discharge of its D. Disqualifications/Inhibitions
responsibilities, and to examine, if necessary,
pertinent records and documents.

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ATENEO DE MANILA UNIVERSITY
SCHOOL OF LAW
Atty. ARIS S. MANGUERA

During their tenure:


 Shall not hold other office or employment 2. The jurisdiction of the Ombudsman over
disciplinary cases involving public school teachers
 Shall not engage in the practice of any
has been modified by Section 9 of R.A. 4670,
profession or in the active management
otherwise known as the Magna Carta for Public
of control of any business which in any
School Teachers, which says that such cases must
way may be affected by the functions of
first go to a committee appointed by the Secretary of
his office;
Education.168
 Shall not be financially interested, directly
It is erroneous, thus, for respondents to contend that
or indirectly, in any contract with, or in any
R.A. No. 4670 confers an exclusive disciplinary
franchise or privilege granted by the
authority on the DECS over public school teachers
Government, or any of its subdivisions,
and prescribes an exclusive procedure in
etc,;
administrative investigations involving them. R.A.
 Shall not be qualified to run for any office No. 4670 was approved on June 18, 1966. On the
in the election immediately succeeding other hand, the 1987 Constitution was ratified by the
their cessation from office. people in a plebiscite in 1987 while R.A. No. 6770
was enacted on November 17, 1989. It is basic that
E. Jurisdiction the 1987 Constitution should not be restricted in its
meaning by a law of earlier enactment. The 1987
How is the jurisdiction of the Ombudsman over Constitution and R.A. No. 6770 were quite explicit in
a person determined? For purposes of conferring authority on the Ombudsman to act on
determining the scope of the jurisdiction of the complaints against all public officials and
Ombudsman, a public officer is one to whom some employees, with the exception of officials who may
of the sovereign functions of the government has be removed only by impeachment or over members
been delegated. of Congress and the Judiciary.
(The National Centennial Commission performs
executive power which “is generally defined as the 3. The Ombudsman Act authorizes the
power to enforce and administer laws. It is the Ombudsman to impose penalties in administrative
power of carrying the laws into practical operation cases.169 Section 21 of RA 6770 vests in the
and enforcing their due observance.” The executive Ombudsman “disciplinary authority over all
function, therefore, concerns the implementation of elective and appointive officials of the
the policies as set forth by law. Laurel v. Desierto, Government,” except impeachable officers,
2002) members of Congress, and the Judiciary. And
under Section 25 of RA 6770, the Ombudsman may
Q: Charged with murder, the Governor challenges impose in administrative proceedings the “penalty
the authority of the office of the Ombudsman to ranging from suspension without pay for one
conduct the investigation. He argues that the year to dismissal with forfeiture of benefits or a fine
authority of the Ombudsman is limited to “crimes ranging from five thousand pesos (P5,000.00) to
related to or connected with an official’s discharge twice the amount malversed, illegally taken or lost,
of his public functions.” Decide. or both at the discretion of the Ombudsman x x
A: The Ombudsman has authority. Section 12 says x.” Clearly, under RA 6770 the Ombudsman has the
that he may “investigate… any act or omission of power to impose directly administrative penalty on
any public official… when such act or omission public officials or employees.170
appears to be illegal, unjust, improper or Note, however, that according to the Local
inefficient. Murder is illegal. And since it was Government Code, elective officials may be
allegedly committed by a public official it comes dismissed only by the proper court. “Where the
within the jurisdiction of the Ombudsman. (Deloso disciplining authority is given only the power to
v. Domingo, 1990) suspend and not the power to remove, it should not
be permitted to manipulate the law by usurping the
F. Powers and Duties power to remove.”171
(See Section 12 and 13 of Article XI)
Over the years the scope of the powers of the 4. The Special Prosecutor may not file an
Ombudsman under Section 12 has been clarified information without authority from the Ombudsman.
thus settling various disputed issues: Republic Act No. 6770, by conferring upon the
Ombudsman the power to prosecute, likewise grants
1. The ombudsman can investigate only officers of 168
Ombudsman v. Estandarte, GR 168670, April 13, 2007.
government owned corporations with original 169
Ombudsman v. CA, November 22, 2006; Ombudsman v. Lucero,
charter. PAL, even when still owned by the
November 24, 2006.
government, did not have original charter.167 170
Ombudsman v. CA, G.R. No. 168079, July 17, 2007.
171
Sangguniang Barangay v. Punong Barangay, G.R. No. 170626,
167
Khan, Jr v Ombudsman, G.R. No. 125296, July 20. 2006. March 3, 2008.

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ATENEO DE MANILA UNIVERSITY
SCHOOL OF LAW
Atty. ARIS S. MANGUERA

to the Ombudsman the power to authorize the filing principle of the separation of powers. (Camanag v.
of informations. A delegated authority to prosecute Guerrero, 1997)
was also given to the Deputy Ombudsman, but no
such delegation exists to the Special Prosecutor. Q: RA 6770 empowers the Office of the
Nor is there an implied delegation. The Special Ombudsman to conduct preliminary investigations
Prosecutor prosecutes only when authorized by the and to directly undertake criminal prosecutions.
Ombudsman.172 Does it not directly contravene Article XI, Section 7
by diminishing the authority and power lodged in
5. The Ombudsman has been conferred rule the Office of the Special Prosecutor?
making power to govern procedures under it. 173 One A: In Acop v. Office of the Ombudsman, 1995, the
who is answering an administrative complaint filed Court upheld not only the power of Congress to so
before the Ombudsman may not appeal to the place the Office of the Special Prosecutor under
procedural rules under the Civil Service the Ombudsman, but also the power of Congress
Commission.174 to remove some of the powers granted to the Office
of Special Prosecutor. . (Camanag v. Guerrero,
6. The power to investigate or conduct a preliminary 1997)
investigation on any Ombudsman case may be
exercised by an investigator or prosecutor of the Q: Are the powers of Ombudsman delegable?
Office of the Ombudsman, or by any Provincial or A: The power to investigate or conduct a
City Prosecutor or their assistance, either in their preliminary investigation on any Ombudsman case
regular capacities or as deputized Ombudsman may be exercised by an investigator or prosecutor
prosecutors.175 of the Office of the Ombudsman, or by any
Provincial or City Prosecutor or their assistance,
7. A preventive suspension will only last ninety (90) either in their regular capacities or as deputized
days, not the entire duration of the criminal case like Ombudsman prosecutors. (Honasan II v. Panel of
petitioners seem to think. Indeed, it would be Investigators of the DOJ, 2004)
constitutionally proscribed if the suspension were to
be of an indefinite duration or for an unreasonable “In any form or manner” It was held that the fact
length of time. The Court has thus laid down the that the Ombudsman may start an investigation on
rule that preventive suspension may not exceed the the basis of any anonymous letter does not violate
maximum period of ninety (90) days, in consonance the equal protection clause. For purposes of
with Presidential Decree No. 807, now Section 52 of initiating preliminary investigation before the Office
the Administrative Code of 1987.176 of the Ombudsman, a complaint “in any form or
manner” is sufficient. (Garcia v. Miro, 2003)177
Q: RA 6770 empowers the Office of the
Ombudsman to conduct preliminary investigations Power of Contempt. The Ombudsman is also
and to directly undertake criminal prosecutions. granted by law the power to cite for contempt, and
What is the constitutional basis for this power? this power may be exercised by the Ombudsman
A: Article XI, Section 13(8) means that the while conducting preliminary investigation because
Ombudsman may be validly empowered with preliminary investigation is an exercise of quasi-
prosecutorial functions by the legislature, and this judicial functions. (Lastimosa v. Vasquez, 243
the latter did when it passed RA 6770. (Camanag v. SCRA 497)178
Guerrero, 1997)
Can the Court be compelled to review the
Q: RA 6770 empowers the Office of the exercise of discernment in prosecuting or
Ombudsman to conduct preliminary investigations dismissing a case before the Ombudsman? It
and to directly undertake criminal prosecutions. has been consistently held that it is not for the
Does it not violate the principle of separation of Court to review the Ombudsman’s paramount
powers since the power to conduct preliminary discretion in prosecuting or dismissing a complaint
investigation is exclusive to the executive branch? filed before his office. The rule is based not only
A: If it is authorized by the Constitution it cannot be upon the respect for the investigatory and
logically argued that such power or the exercise prosecutor powers granted by the Constitution to
thereof is unconstitutional or violative of the the Office of the Ombudsman but upon practicality
as well. (Otherwise, the functions of the courts will
172 be grievously hampered by innumerable petitions
Perez v. Sandigabayan, G.R. No. 166062, September 26, 2006.
173
assailing the dismissal of investigatory proceedings
Buencamino v. CA, GR 175895,April 4, 2007. conducted by the Office of the Ombudsman with
174
Medina v. COA, G.R. No. 176478, February 4, 2008. regard to complaints filed before it. (Olairez v.
175
Honasan II v. Panel of Investigators of the DOJ, G.R. No. Sandiganbayan, 2003)
159747, April 13, 2004.
177
176
Villasenor v Sandiganbayan G.R. No. 180700, March 4, 2008 Antonio Nachura, Outline on Political Law, 351 (2006)
178
Antonio Nachura, Outline on Political Law, 351 (2006)

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There is, however, one important exception to this with other similarly authorized government
rule, and that is, when grave abuse of discretion on agencies such as the PCGG and judges of
the part of the Ombudsman in either prosecuting or municipal trial courts and municipal circuit trial
dismissing a case before it is evident. In this event, courts. The power to conduct preliminary
the act of the Ombudsman can justifiably be investigation on charges against public employees
assailed.179 and officials is likewise concurrently shared with
the Department of Justice. Despite the passage of
Ombudsman has no authority to directly the Local Government Code in 1991, the
dismiss a public officer from government Ombudsman retains concurrent jurisdiction with the
service. Under Section 13(3) of Article XI, the Office of the President and the local Sanggunians
Ombudsman can only recommend to the officer to investigate complaints against local elective
concerned the removal of a public officer or officials. [Emphasis supplied].180 (Ombudsman v.
employee found to be administratively liable.
(Taplador v. Office of the Ombudsman, 2002) Be 180
that as it may, the refusal, without just cause, of J. Corona, (Separate Opinion in Biraogo v. PTC
any officer to comply with such an order of the [2010])The Constitution has granted to the Ombudsman the
power to investigate other public officials and employees, such
Ombudsman to penalize erring officer or employee
power is not absolute and exclusive. Congress has the power
is a ground for disciplinary action. Thus, there is a to further define the powers of the Ombudsman and, impliedly,
strong indication that the Ombudsman’s to authorize other offices to conduct such investigation over
recommendation is not merely advisory in nature their respective officials and personnel.
but actually mandatory within the bounds of law. The Constitution has vested in Congress alone the power to
This, should not be interpreted as usurpation of the grant to any office concurrent jurisdiction with the Ombudsman
Ombudsman of the authority of the head of office to conduct preliminary investigation of cases of graft and
or any officer concerned. It has long been settled corruption.
that the power of the Ombudsman to investigate
In a myriad of cases, the SC has recognized the concurrent
and prosecute any illegal act or omission of any jurisdiction of other bodies vis-à-vis the Ombudsman to
public official is not an exclusive authority, but a conduct preliminary investigation of complaints of graft and
shared or concurrent authority in respect of the corruption as authorized by law, meaning, for any other
offense charged. (Ledesma v. CA, 2005) person or agency to be able to conduct such
investigations, there must be a law authorizing him or it to
F. Power to Investigate do so.

In Ombudsman v. Estandarte, the Court recognized the


The power to investigate, including preliminary concurrent jurisdiction of the Division School Superintendent
investigation, belongs to the Ombudsman and not vis-à-vis the Ombudsman to conduct preliminary investigation
to the Special Prosecutor. (Acop v. Ombudsman, of complaints of graft and corruption committed by public
1995) school teachers. Such concurrent jurisdiction of the Division
School Superintendent was granted by law, specifically RA
4670 or the Magna Carta for Public School Teachers.
Uy v. Sandiganbayan, 2001: It was held that
under Sections 11 and 15, RA 6670, the Likewise, in Ombudsman v. Medrano the Court held that by
Ombudsman s clothed with the authority to conduct virtue of RA 4670 the Department of Education Investigating
preliminary investigation and to prosecute all Committee has concurrent jurisdiction with the Ombudsman to
criminal cases involving public officers and conduct a preliminary investigation of complaints against
employees, not only those within the jurisdiction of public school teachers.
the Sandiganbayan, but those within the
jurisdiction of regular courts as well. The clause Even the Sangguniang Panlungsod has concurrent jurisdiction
with the Ombudsman to look into complaints against the
“any illegal act or omission of any public official” is
punong barangay. Such concurrent authority is found in RA
broad enough to embrace any crime committed by 7160 or the Local Government Code
a public officer or employee. The Department of Justice is another agency with jurisdiction
concurrent with the Ombudsman to conduct preliminary
Ombudsman’s Power to Investigate, Not investigation of public officials and employees. Its concurrent
Exclusive. While the Ombudsman’s power to jurisdiction is based on the 1987 Administrative Code.
investigate is primary, it is not exclusive and, under
the Ombudsman Act of 1989, he may delegate it to Certainly, there is a law, the Administrative Code, which
authorized the Office of the President to exercise jurisdiction
others and take it back any time he wants to. (Acop
concurrent with the Ombudsman to conduct preliminary
v. Ombudsman, 1995) investigation of graft and corruption cases. However, the scope
and focus of its preliminary investigation are restricted. Under
This power of investigation granted to the the principle that the power to appoint includes the power to
Ombudsman by the 1987 Constitution and The remove, each President has had his or her own version of a
Ombudsman Act is not exclusive but is shared presidential committee to investigate graft and corruption, the
last being President Gloria Macapagal Arroyo’s Presidential
Anti-Graft Commission (PAGC) under E.O. No. 268. The
179
Antonio Nachura, Outline on Political Law, 353 (2006) PAGC exercised concurrent authority with the Ombudsman to

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Galicia G.R. No. 167711, October 10, 2008, 568 SECOND ALTERNATIVE ANSWER: Article XI,
SCRA 327 cited by Ponente J. Mendoza in Biraogo Section 1 of the 1987 Constitution provides that
v. PTC, Dec. 7, 2010) public officers must at all times be accountable to
the people. Section 22 of the Ombudsman Act
provides that the Office of the Ombudsman has the
The Ombudsman can also investigate criminal power to investigate any serious misconduct
offenses committed by public officers which have allegedly committed by officials removable by
no relation to their office. (Vasquez v. Alino, 271 impeachment for the purpose of filing a verified
SCRA 67) complaint for impeachment if warranted. The
Ombudsman can entertain the complaint for this
Q: May the military deputy investigate civilian purpose.
police?
A: Because the power of the Ombudsman is broad Q: May the Ombudsman act on a complaint filed by
and because the Deputy Ombudsman acts under disgruntled party litigants against the Supreme
the direction of the Ombudsman, the power of the Court alleging certain named members of the Court
Military Deputy to investigate members of the as having committed acts that appear to be illegal,
civilian police has also been affirmed. (Acop v. unjust, improper or inefficient? Would it violate the
Ombudsman, 1995) principle of separation of powers if he takes
cognizance?
Bar Question (2003) Suggested Answer by Abelardo Domondon:
Ombudsman; Power to Investigate Yes, it is the duty of the Ombudsman to investigate
A group of losing litigants in a case decided by the “on complaint by any person, any act or omission
Supreme Court filed a complaint before the of any public official, employee, office or agency
Ombudsman charging the Justices with knowingly when such act or omission appears to be illegal,
and deliberately rendering an unjust decision in unjust, improper or inefficient.” (Article XI, Section
utter violation of the penal laws of the land. Can the 13(1))
Ombudsman validly take cognizance of the case?
Explain. G. Power to Suspend
SUGGESTED ANSWER: No, the Ombudsman
cannot entertain the complaint. As stated in the Preventive Suspension. The power to investigate
case of In re: Laureta. 148 SCRA 382 [1987], also includes the power to impose preventive
pursuant to the principle of separation of powers, suspension. (Buenaseda v. Flavier, 1993)
the correctness of the decisions of the Supreme
Court as final arbiter of all justiciable disputes is Suspension under the Ombudsman Act vis-à-
conclusive upon all other departments of the vis the Local Government Code:
government; the Ombudsman has no power to In order to justify the preventive suspension of a
review the decisions of the Supreme Court by public official under Section 24 of RA 6770, the
entertaining a complaint against the Justices of the evidence of guilt should be strong, and:
Supreme Court for knowingly rendering an unjust a. The charge against the officer or employee
decision. should involve dishonesty, oppression or grave
misconduct or neglect in the performance of
investigate complaints of graft and corruption against duty;
presidential appointees who are not impeachable officers and b. That the charges should warrant removal form
non-presidential appointees in conspiracy with the latter. It is in the service; or
this light that DOH v. Camposano, should be understood. At c. The respondent’s continued stay in office
that time, the PCAGC (now defunct) had no investigatory
would prejudice the case filed against him.
power over non-presidential appointees; hence the President
created an ad-hoc committee to investigate both the principal The Ombudsman can impose the 6-month
respondent who was a presidential appointee and her co- preventive suspension to all public officials,
conspirators who were non-presidential appointees. The PAGC whether elective or appointive, who are under
(now also defunct), however, was authorized to investigate investigation.
both presidential appointees and non-presidential appointees
who were in conspiracy with each other. On the other hand, in imposing the shorter period
of sixty (60) days of preventive suspension
However, although pursuant to his power of control the
prescribed in the Local Government Code of 1991
President may supplant and directly exercise the investigatory
functions of departments and agencies within the executive on an elective local official (at any time after issues
department, his power of control under the Constitution and are joined), it would be enough that:
the Administrative Code is confined only to the executive a. There is reasonable ground to believe that the
department. respondent has committed the act or acts
complained or;
(Read also the Dissenting Opinion of J. Carpio in Biraogo v. b. The evidence of culpability is strong;
PTC, Dec. 7, 2010) c. The gravity of the offense so warrants; or

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d. The continuance in office of the respondent with the Ombudsman. Immediately after taking
could influence the witnesses or pose a threat cognizance of the case and the affidavits submitted
to the safety and integrity of the records and to him, the Ombudsman ordered the preventive
other evidence. (Jose Miranda v. suspension of X pending preliminary investigation.
Sandiganbayan, 2005) X questioned the suspension order, contending
that the Ombudsman can only suspend
Bar Question (2004) preventively subordinate employees in his own
Ombudsman: Power to Suspend; Preventive office. Is X correct? Explain.
Suspension SUGGESTED ANSWER: No, X is not correct. As
Director WOW failed the lifestyle check conducted held in Buenaseda vs. Flavier, 226 SCRA 645.
by the Ombudsman's Office because WOWs assets under Section 24 of Republic Act No. 6770, the
were grossly disproportionate to his salary and Ombudsman can place under preventive
allowances. Moreover, some assets were not suspension any officer under his disciplinary
included in his Statement of Assets and Liabilities. authority pending an investigation. The moment a
He was charged of graft and corrupt practices and complaint is filed with the Ombudsman, the
pending the completion of investigations, he was respondent is under his authority. Congress
suspended from office for six months. intended to empower the Ombudsman to suspend
all officers, even if they are employed in other
Q: Aggrieved, WOW petitioned the Court of Appeals offices in the Government. The words
to annul the preventive suspension order on the "subordinate" and "in his bureau" do not appear in
ground that the Ombudsman could only recommend the grant of such power to the Ombudsman.
but not impose the suspension. Moreover, according
to WOW, the suspension was imposed without any H. Power of Ombudsman Over His Office
notice or hearing, in violation of due process. Is the
petitioner's contention meritorious? Discuss briefly. Under the Constitution, the Office of the
(5%) Ombudsman is an independent body. As a
SUGGESTED ANSWER: The contention of Director guaranty of this independence, the Ombudsman
WOW is not meritorious. The suspension meted out has the power to appoint all officials and
to him is preventive and not punitive. Section 24 of employees of the Office of the Ombudsman, except
Republic Act No. 6770 grants the Ombudsman the his deputies. This power necessarily includes the
power to impose preventive suspension up to six power of setting, prescribing and administering the
months. Preventive suspension maybe imposed standards for the officials and personnel of the
without any notice or hearing. It is merely a Office.
preliminary step in an administrative investigation To further ensure its independence, the
and is not the final determination of the guilt of the Ombudsman has been vested with the power of
officer concerned. (Garcia v. Mojica, 314 SCRA 207 administrative control and supervision of the Office.
[1999]). This includes the authority to organize such
directorates for administration and allied services
Q: For his part, the Ombudsman moved to dismiss as may be necessary for the effective discharge of
WOWs petition. According to the Ombudsman the the functions of the Office, as well as to prescribe
evidence of guilt of WOW is strong, and petitioner and approve its position structure and staffing
failed to exhaust administrative remedies. WOW pattern. Necessarily, it also includes the authority to
admitted he filed no motion for reconsideration, but determine and establish the qualifications, duties,
only because the order suspending him was functions and responsibilities of the various
immediately executory. Should the motion to dismiss directorates and allied services of the Office. This
be granted or not? Discuss briefly. (5%) must be so if the constitutional intent to establish
SUGGESTED ANSWER: The motion to dismiss an independent Office of the Ombudsman is to
should be denied. Since the suspension of Director remain meaningful and significant. The Civil
WOW was immediately executory, he would have Service Commission has no power over this.181
suffered irreparable injury had he tried to exhaust
administrative remedies before filing a petition in I. Claim of Confidentiality
court (University of the Philippines Board of Regents
v. Rasul, 200 SCRA 685 [19910Besides, the
question involved is purely legal. (Azarcon v. Even the claim of confidentiality will not prevent the
Bunagan, 399 SCRA 365 [2003]). Ombudsman from demanding the production of
documents needed for the investigation.182
Bar Question (1996) In Almonte v. Vasquez, 1995, the Court said that
Ombudsman; Power to Suspend; Preventive where the claim of confidentiality does not rest on
Suspension
An administrative complaint for violation of the Anti- 181
Ombudsman v. CSC, G.R. No. 162215, July 30, 2007.
Graft and Corrupt Practices Act against X was filed 182
Bernas Primer at 446 (2006 ed.)

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the need to protect military, diplomatic or other Does the right of the government to recover the
national security secrets but on general public illegally acquired wealth prescribe? (3%)
interest in preserving confidentiality, the courts have
declined to find in the Constitution an absolute
SUGGESTED ANSWER:
privilege even for the President.183
a) A violation of Section 3(b) and (c) of the Anti-
Moreover, even in cases where matters are really Graft and Corrupt Practices Act prescribes. As held
confidential, inspection can be done in camera.184 in Presidential Ad-Hoc Fact-Finding Committee on
Behest Loans v. Desierto, 317 SCRA 272 (1999),
V. Special Prosecutor Article XI, Section 15 of the Constitution does not
apply to criminal cases for violation of the Anti-Graft
and Corrupt Practices Act
Section 7. The existing Tanodbayan shall hereafter be known (b) Article XI, Section 15 of the Constitution
as the Office of the Special Prosecutor. It shall continue to provides that the right of the State to recover
function and exercise its powers as now or hereafter may be properties unlawfully acquired by public officials or
provided by law, except those conferred on the Office of the
employees, or from them or from their nominees or
Ombudsman created under this Constitution.
transferees, shall not be bared by prescription.
This provision applies only to civil actions for
recovery of ill-gotten wealth and not to criminal VII. Restriction on Financial Accomodations
cases. Thus, prosecution of offenses arising from,
relating, or incident to, or involving ill-gotten wealth Section 16. No loan, guaranty, or other form of financial
in the said provision may be barred by prescription. accommodation for any business purpose may be granted,
(Presidential Ad-hoc Fact Finding Committee on directly or indirectly, by any government-owned or controlled
Behest Loans v. Deseirto, 1999) bank or financial institution to the President, the Vice-
President, the Members of the Cabinet, the Congress, the
Supreme Court, and the Constitutional Commissions, the
VI. Ill-gotten Wealth Ombudsman, or to any firm or entity in which they have
controlling interest, during their tenure.

Section 15. The right of the State to recover properties


unlawfully acquired by public officials or employees, from them
or from their nominees or transferees, shall not be barred by VIII. Transparency Rule
prescription, laches, or estoppel.

Section 17. A public officer or employee shall, upon


This provision applies only to civil actions for assumption of office and as often thereafter as may be
recovery of ill-gotten wealth and not to criminal required by law, submit a declaration under oath of his assets,
cases. Thus, prosecution of offenses arising from, liabilities, and net worth. In the case of the President, the Vice-
relating, or incident to, or involving ill-gotten wealth President, the Members of the Cabinet, the Congress, the
in the said provision may be barred by prescription. Supreme Court, the Constitutional Commissions and other
(Presidential Ad-hoc Fact Finding Committee on constitutional offices, and officers of the armed forces with
Behest Loans v. Desierto, 1999) general or flag rank, the declaration shall be disclosed to the
public in the manner provided by law.
Q: Does Section 15 prevent the prescription of the
crime?
A: No. The right to prosecute criminally can
prescribe.185 IX. Allegiance to the State and the Constitution

Bar Question (2002) Section 18. Public officers and employees owe the State and
Graft and Corruption; Prescription of Crime this Constitution allegiance at all times and any public officer or
Suppose a public officer has committed a violation employee who seeks to change his citizenship or acquire the
of Section 3 (b) and (c) of the AntiGraft and Corrupt status of an immigrant of another country during his tenure
Practices Act {RA No, 3019), as amended, by shall be dealt with by law.
receiving monetary and other material
considerations for contracts entered into by him in
behalf of the government and in connection with Q: Miguel is a holder of a “green card” entitling him
other transactions, as a result of which he has to be a resident of the United States permanently.
amassed illegally acquired wealth. (a) Does the In his application for the card he put down his
criminal offense committed prescribe? (2%) (b) intention to reside in the United States
“permanently”. He actually immigrated to the
United States in 1984 and thereby assumed
183
Bernas Primer at 447 (2006 ed.) allegiance to the United States. He however
184
Bernas Primer at 447 (2006 ed.) returned to the Philippines in 1987 to run for mayor
185 of a municipality. Is Article XI, Section 18 applicable
Bernas Primer at 451 (2006 ed.)

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to him? Does he have the necessary residence


requirement?
A: Article XI, Section 18 is not applicable because
it has reference to “incumbents.” What is applicable
is Section 68 of the Omnibus Election Code which
bars “a permanent resident of or an immigrant to a
foreign country” unless he waives his status as a
permanent resident of the foreign country. The
mere filing of a certificate of candidacy is not the
required waiver. It must be by a special act done
before filing a certificate of candidacy. (Caasi v. CA,
1990)

X. Notes and Comments by Domondon on Article XI

1. Croniyism which involves unduly favoring a


crony to the prejudice of public interest is a
form of violation of the oath of office which
constitute betrayal of the public trust.
2. An administrative officer given by statute the
rank of Justice is not a member of the
Judiciary, but of the Executive Department. He
may therefore be investigated by the
Ombudsman. The Supreme Court does not
have jurisdiction to investigate because it
would be violative of the concept of separation
of powers. (Noblejas v. Tehankee, 1968)

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Filipino enterprises against unfair foreign competition and


trade practices.
In the pursuit of these goals, all sectors of the economy and all
Article XII regions of the country shall be given optimum opportunity to
NATIONAL ECONOMY AND develop. Private enterprises, including corporations,
cooperatives, and similar collective organizations, shall be
PATRIMONY encouraged to broaden the base of their ownership.

I. GOALS OF NATIONAL ECONOMY (Section A. Threefold goal of the national economy


1) 1. More equitable distribution of wealth;
II. NATURAL RESOURCES/REGALIAN 2. Increase of wealth for the benefit of the
DOCTRINE (Sections 2) people;
III. LANDS OF PUBLIC DOMAIN (Section 3) 3. Increased productivity.
IV. CITIZENSHIP REQUIREMENT
V. FOREST LANDS AND PARKS (Section 4) B. National Policy on Industrialization and
VI. ANCESTRAL LANDS AND ANCESTRAL Agricultural Development
DOMAIN (Section 5)
VII. STEWARDSHIP CONCEPT; TRANSFER What is envisioned is not necessarily agriculturally
OF LANDS(Section 6,7, and 8) related industrialization but rather industrialization
VIII.INDEPENDENT ECONOMIC AND that is a result of releasing through agrarian reform
PLANNING AGENCY (Section 17) capital locked up in land. Therefore, this does not
IX. FILIPINIZATION OF AREAS OF mean a hard-bound rule that agricultural
INVESTEMENTS (Section 18) development must have priority over
X. PUBLIC UTILITIES (Section 11) industrialization. What is envisioned is a flexible
and rational relationship between the two as
XI. PREFERNTIAL USE OF FILIPINO LABOR
dictated by the common good.186
(Section 12)
XII. TRADE POLICY (Section 13) C. Meaning of the Phrase “UNFAIR FOREIGN
XIII. SUSTAINED DEVELOPMENT OF COMPETITION AND TRADE PRACTICES”
HUMAN RESOURCE; PRACTICE OF
PROFESSION (Section 14) The phrase is not to be understood in a limited
XIV. COOPERATIVES (Section 15) legal and technical sense but in the sense of
XV. GOCCS (Section 16) anything that is harmful to Philippine enterprises. At
XVI. TEMPORARY STATE TAKE-OVER the same time, however, the intention is not to
(Section 17) protect local inefficiency. Nor is the intention to
XVII. NATIONALIZATION OF INDUSTRIES protect local industries from foreign competition at
(Section 18) the expense of the consuming public.187
XVIII. MONOPOLIES (Section 19)
D. De-classification of forests reserves
XIX. CENTRAL MONETARY AUTHORITY
(Section 20)
The law on forest reserves was amended by
XX. FOREIGN LOANS (Section 21)
Prsidential Decree No. 643 dated 17 May 1974.
XXI. PENAL SANCTIONS (Section 22) Whereas under previous law the concurrence of
the National Assembly was needed to withdraw
I. Goals of National Economy forest reserves found to be more valuable for their
mineral contents than for the purpose for which the
Section 1. The goals of the national economy are a more reservation was made and convert the same into
equitable distribution of opportunities, income, and wealth; a non-forest reserves, legislative concurrence is no
sustained increase in the amount of goods and services longer needed. All that is required is a
produced by the nation for the benefit of the people; and an recommendation from the DENR Secretary
expanding productivity as the key to raising the quality of life
for all, especially the under-privileged.
indicating which forest reservations are to be
withdrawn.188
The State shall promote industrialization and full employment
based on sound agricultural development and agrarian reform,
through industries that make full and efficient use of human 186
Bernas Primer at 453 (2006 ed.)
and natural resources, and which are competitive in both 187
domestic and foreign markets. However, the State shall protect Bernas Primer at 454 (2006 ed.)
188
Apex Mining v. Soutneast Mindanao Gold, G.R. No. 152613 &
No. 152628, June 23, 2006.

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An unclassified forested area may not be acquired B. Consequence of the Regalian Doctrine in Section
by continuous possession since it is inalienable.189 2

II. Natural Resources/Regalian Doctrine Any person claiming ownership of a portion of the
public domain must be able to show title from the
state according to any of the recognized modes of
Section 2. All lands of the public domain , waters, acquisition of title. (Lee Hong Kok v. David, 48
minerals, coal, petroleum, and other mineral oils, all forces of
SCRA 372)
potential energy, fisheries, forests or timber, wildlife, flora and
fauna, and other natural resources are owned by the
State. With the exception of agricultural lands, all other Q: When the regalia doctrine was introduced into
natural resources shall not be alienated. The exploration, the Philippines by colonizers, did the colonizers
development, and utilization of natural resources shall be strip the natives of their ownership of lands?
under the full control and supervision of the State. The State A: No. “When as far back as testimony or memory
may directly undertake such activities, or it may enter into co- goes, the land has been held by individuals under
production, joint venture, or production-sharing agreements a claim of private ownership, it will be presumed
with Filipino citizens, or corporations or associations at least that to have been held in the same way from before
sixty per centum of whose capital is owned by such citizens. the Spanish conquest, and never to have been
Such agreements may be for a period not exceeding twenty-
public land.” (Carino v. Insular Government, 1909)
five years, renewable for not more than twenty-five years, and
under such terms and conditions as may be provided by law.
In cases of water rights for irrigation, water supply fisheries, or C. Imperium and Dominium
industrial uses other than the development of water power,
beneficial use may be the measure and limit of the grant. In public law, there exists the well-known distinction
The State shall protect the nation's marine wealth in its
between government authority possessed by the
archipelagic waters, territorial sea, and exclusive economic
zone, and reserve its use and enjoyment exclusively to Filipino State which is appropriately embraced in
citizens. sovereignty, and its capacity to own or acquire
The Congress may, by law, allow small-scale utilization of property. The former comes under the heading of
natural resources by Filipino citizens, as well as cooperative imperium, and the latter of dominium. The use of
fish farming, with priority to subsistence fishermen and fish- the term dominium is appropriate with reference to
workers in rivers, lakes, bays, and lagoons. lands held by the State in its proprietary character.
The President may enter into agreements with foreign-owned In such capacity, it may provide for the exploitation
corporations involving either technical or financial assistance
and use of lands and other natural resources,
for large-scale exploration, development, and utilization of
minerals, petroleum, and other mineral oils according to the including their disposition, except as limited by the
general terms and conditions provided by law, based on real Constitution.191
contributions to the economic growth and general welfare of
the country. In such agreements, the State shall promote the D. Limits Imposed by Section 2 on the Jura Regalia
development and use of local scientific and technical of the State.
resources.
The President shall notify the Congress of every contract
entered into in accordance with this provision, within thirty 1. Only agricultural lands of the public domain may
days from its execution. be alienated.
2. The exploration, development, and utilization of
all natural resources shall be under the full
control and supervision of the State either by
A. Regalian Doctrine [Jura Regalia] directly undertaking such exploration,
development, and utilization or through co-
“The universal feudal theory that all lands were production, joint venture, or production-sharing
held from the Crown” (Carino v. Insular agreements with qualified persons or
Government, 1909) corporations.
3. All agreements with the qualified private sector
(Recognized in the 1935, 1973 and 1987 may be for only a period not exceeding twenty-
Constitutions; As adopted in a republican system, five years, renewable for another twenty-five
the medieval concept of jura regalia has been years. (The twenty-five year limit is not
stripped of regalia overtones: ownership is vested applicable to “water rights for irrigation, water
in the State, not in the head of the State. (Lee supply, fisheries, or industrial uses other than
Hong Kok v. David, 48 SCRA 372)190 the development of water power,” for which
“beneficial use may be the measure and the
limit of the grant.”)
4. The use and enjoyment of marine wealth of the
189
Republic v. Naguiat, G.R. No. 134209. January 24, archipelagic waters, territorial sea, and
2006. 191
Antonio Nachura, Outline on Political Law, 357 (2006)
190
Antonio Nachura, Outline on Political Law, 356 (2006)

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

192
Bernas Primer at 457 (2006 ed.)

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Chavez v. NHA, G.R. No. 164527, August 15, importantly, it cannot attain its avowed purposes
2007. and goals since it can only transfer patrimonial
Reclaimed land is public land. Before it can be lands to qualified beneficiaries and prospective
registed as private property is must be classified as buyers to raise funds for the SMDRP.
alienable.193 Once classified it becomes alienable.
A presidential proclamation is a sufficient From the foregoing considerations, we find that the
instrument for classifying reclaimed land. Thus 79-hectare reclaimed land has been declared
when President Aquino issued MO 415 conveying alienable and disposable land of the public domain;
the land covered by the Smokey Mountain and in the hands of NHA, it has been reclassified
Dumpsite to the National Housing Authority as well as patrimonial property.194
as the area to be reclaimed across R-10, the
coneyance implicitly carried with it the declaration G. Exploration, Development and Utilization of
that said lands are alienable and disposable. Inalienable Resources.
Otherwise, the NHA could not effectively use them “The exploration, development, and utilization of natural
in its housing and resettlement project. President resources shall be under the full control and supervision
Ramos made similar conveyances to the NHA. of the State. The State may directly undertake such
activities, or it may enter into co-production, joint venture,
or production-sharing agreements with Filipino citizens, or
RA 6957 as amended by RA 7718 provides ample
corporations or associations at least sixty per centum of
authority for the classification of reclaimed land. whose capital is owned by such citizens…”
The fact that RA 6957 as modified by RA 7718
declared that t reclaimed lands that shall serve as Q: Section 2 speaks of “co-production, joint
payment to the project proponent already implies venture, or production sharing agreements” as
that the the land has been classified. This modes of exploration, development, and utilization
conclusion is necessary for how else can the land of inalienable lands. Does this effectively exclude
be used as the enabling component for the Project the lease system?
if such classification is not deemed made. A: Yes, with respect to mineral and forest lands.
(Agricultural lands may be subject of lease)195
We ruled in PEA that “alienable lands of public
domain must be transferred to qualified private Q: Who are qualified to take part in the exploration,
parties, or to government entities not tasked to development and utilization of natural resources?
dispose of public lands, before these lands can A: Filipino citizens and corporations or associations
become private or patrimonial lands (emphasis at least sixty percent of whose capital is owned by
supplied).” To lands reclaimed by PEA or through a Filipino citizens. (Note however, that as to marine
contract with a private person or entity, such wealth, only Filipino citizens are qualified. This is
reclaimed lands still remain alienable lands of also true of natural resources in rivers, bays, lakes
public domain which can be transferred only to and lagoons, but with allowance for
Filipino citizens but not to a private corporation. cooperatives.)196
This is because PEA under PD 1084 and EO 525 is
tasked to hold and dispose of alienable lands of Q: If natural resources, except agricultural land,
public domain and it is only when it is transferred to cannot be alienated, how may they be explored,
Filipino citizens that it becomes patrimonial developed, or utilized?
property. A: (1) Direct undertaking of activities by the State
or
On the other hand, the NHA is a government (2) Co-production, joint venture, or production-
agency not tasked to dispose of public lands under sharing agreements with the State and all “under
its charter—The Revised Administrative Code of the full control and supervision of the State.”
1987. The NHA is an “end-user agency”
authorized by law to administer and dispose of Q: May the State enter into service contracts with
reclaimed lands. The moment titles over reclaimed foreign owned corporations?
lands based on the special patents are transferred A: Yes, but subject to the strict limitations in the last
to the NHA by the Register of Deeds, they are two paragraphs of Section 2. Financial and e
automatically converted to patrimonial properties of technical agreements are a form of service
the State which can be sold to Filipino citizens and contract. Such service contacts may be entered
private corporations, 60% of which are owned by into only with respect to minerals, petroleum, and
Filipinos. The reason is obvious: if the reclaimed other mineral oils. The grant of such service
land is not converted to patrimonial land once contracts is subject to several safeguards, among
transferred to NHA, then it would be useless to them: (1) that the service contract be crafted in
transfer it to the NHA since it cannot legally transfer
or alienate lands of public domain. More 194
Chavez v. NHA, G.R. No. 164527, August 15, 2007.
195
Bernas Primer at 457 (2006 ed.)
193 196
Republic v. Enciso, G.R. 160145, November 11, 2005. Bernas Primer at 459 (2006 ed.)

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accordance with a general law setting standard of them: (1) that the service contract be crafted in
uniform terms, conditions and requirements; (2) the accordance with a general law setting standard or
President be the signatory for the government; and uniform terms, conditions and requirements; (2) the
(3) the President report the executed agreement to President be the signatory for the government; and
Congress within thirty days. (La Bugal B’laan Tribal (3) the President report the executed agreement to
Assoc., 2004, Reconsideration, 2005) Congress within thirty days.197
Foreign contractors may provide not just capital,
Q: When technical and financial assistance techonology and technical know-how but also
agreement is entered into under Section 2, can it managerial expertise to the extent needed for the
include some management role for the foreign creation and operation of the large-scale
corporation? mining/extractive enterprise. But the government,
A: Yes. While the Constitution mentions only through its agencies (DENR, MGB) must actively
financial and technical assistance they necessarily exercises full control and supervision over the
include the managerial expertise needed in the entire enterprise.198
creation and operation of the large-scale
mining/extractive enterprise, but the government III. Lands of Public Domain
through its agencies (DENR/MGB) must actively
exercises full control and supervision over the
entire enterprise. (La Bugal B’laan Tribal Assoc., Section 3. Lands of the public domain are classified into
2004, Reconsideration, 2005) agricultural, forest or timber, mineral lands and national parks.
Agricultural lands of the public domain may be further
classified by law according to the uses to which they may be
devoted. Alienable lands of the public domain shall be limited
to agricultural lands. Private corporations or associations may
H. Marine Wealth not hold such alienable lands of the public domain except by
lease, for a period not exceeding twenty-five years, renewable
for not more than twenty-five years, and not to exceed one
Article XII, Section 2: “…The State shall protect the thousand hectares in area. Citizens of the Philippines may
nation's marine wealth in its archipelagic waters, lease not more than five hundred hectares, or acquire not
territorial sea, and exclusive economic zone, and more than twelve hectares thereof, by purchase, homestead,
reserve its use and enjoyment exclusively to or grant.
Filipino citizens. xxx” Taking into account the requirements of conservation, ecology,
and development, and subject to the requirements of agrarian
reform, the Congress shall determine, by law, the size of lands
Article XII, Section 2: “The Congress may, by law, of the public domain which may be acquired, developed, held,
allow small-scale utilization of natural resources by or leased and the conditions therefor.
Filipino citizens, as well as cooperative fish
farming, with priority to subsistence fishermen and
fish- workers in rivers, lakes, bays, and lagoons. “ Classification of Public Lands. The classification
of public lands is a function of the executive branch
Marginal Fisherman: A marginal fisherman is of government, specifically the Director of Lands,
defined as an individual engaged in fishing by now the Director of the Land Management Bureau.
existing price levels, is barely sufficient to yield a The decision of the Director, when approved by the
profit or cover the cost of gathering the fish while a Secretary of the Department of Environment and
“subsistence” fisherman is one whose catch yields Natural Resources, as to questions of fact, is
but the irreducible minimum to his livelihood. conclusive upon the courts. (Republic v. Imperial,
Section 131 of the Local Government Code defines 1999)
a “marginal farmer or fisherman” as one engaged The prerogative of classifying public lands pertains
in subsistence farming or fishing, which shall be to administrative agencies which have been
limited to the sale, barter or exchange of specially tasked by statutes to do so and the courts
agricultural or marine products produced by himself will not interfere on matters which are addressed to
and his immediate family. The preferential right the sound discretion of government and/or quasi-
granted to them is not absolute. (Tano v. Socrates, judicial agencies entrusted with the regulation of
1997) activities coming under their special technical
knowledge and training.199
F. Financial and Technical Agreements Q: Who may change the classification of public
lands, e.g., from inalienable to alienable, and how
The 1987 Constitution did not completely do away is the classification done?
with service contracts; but now their scope has
been limited and are now called financial and 197
La Bugal B’laan Tribal Assoc. DENR, G.R. No. 127882,
technical agreements and hey may be entered into December 1, 2004. (On Reconsideration) and February 1, 2005.
with foreign corporations. The grant of such service 198
Id.
contracts is subject to several safeguards, among 199
Republic v. Mendoza, GR 153727. March 28, 2007.

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A: The classification of public lands is the exclusive lands under the amended Joint Venture
prerogative of the President upon recommendation Agreement, and PEA may simply turn around
of the pertinent department head. (CA No. 141) and transfer several hundreds of hectares to a
single private corporation in one transaction.
Q: Does the classification of land change (Chavez v. PEA, 2003)
automatically when the nature of the land
changes? Q: When does land of the public domain become
A: No. A positive act of the executive is needed. private land?
Anyone who claims that the classification has been A: When it is acquired from the government either
changed must be able to show the positive act of by purchase of by grant. (As held in Oh Cho v.
the President indicating such positive act. The Director of Lands, 75 Phil 980, “all lands that were
classification is descriptive of its legal nature and not acquired from the Government, either by
not of what the land actually looks like. Hence, for purchase or by grant, belong to the public domain.
instance, that a former forest has been denuded An exception to the rule would be any land that
does not by the fact meant that it has ceased to be should have been in the possession of an occupant
forest land. (Director of Lands v. Judge Aquino, and of his predecessors-in-interest since time
1990) immemorial, for such possession would justify the
presumption that the land had never been part of
Q: Can a land have a mixed classification, e.g., the public domain or that it had been private
partly mineral, partly agricultural? property even before the Spanish conquest.”)
A: No. “The Court feels that the rights over the land
are indivisible and that the land itself cannot be half Q: Can prescription transform public land into private
agricultural and half mineral.(Republic v. CA) land?
Alienable lands of the public domain shall be A: Yes, if it is alienable land. (“Open, exclusive and
undisputed possession of alienable public land for the
limited to agricultural lands. It was determined
period prescribed by law creates the legal fiction whereby
that the lands subject of the decree of the Court of the land, upon completion of the requisite period ipso jure
First Instance were not alienable lands of the public and without need of judicial or other sanction, ceases to
domain, being part of the reservation for provincial be public land and becomes private property. Such open,
park purposes and thus part of the forest zone. continuous, exclusive and notorious occupation of the
Forest land cannot be owned by private persons; disputed properties for more than 30 years must,
its is not registrable, and possession thereof, no however, be conclusively established. This quantum of
matter how lengthy, cannot convert it into private proof is necessary to avoid erroneous validation of
actually fictitious claims or possession over the property
land, unless the land is reclassified and considered
in dispute. (San Miguel Corporation v. CA, 1990)
disposable and alienable.
Q: In computing the thirty-year period for acquisitive
Foreshore land is that part of the land which is prescription under Section 49(9) of the Public Land Law,
between the high and low water, and left dry can the period before the land (e.g. forest land) is
by the flux and reflux of the tides. It is part of converted into alienable public land be included?
the alienable land of the public domain and A: NO. The thirty-year period only begins to toll only from
may be disposed of only by lease and not the time the land is converted into alienable land.
(Almeda v. CA, 1991)
otherwise. (Republic v. Imperial, 1999)
Q: Do mining claims acquired, registered, perfected, and
Private corporations or associations may not patentable under the Old Mining Law mature to private
hold such alienable lands of the public domain ownership that would entitle the claimant to the ownership
except by lease. In Director of Lands v. IAC and thereof?
Acme Plywood &Veneer Co., 146 SCRA 509, the A: “Mere location does not mean absolute ownership
Supreme Court declared that the 1973 Constitution over the affected land or the mining claim. It merely
cannot impair vested rights. Where the land was segregates the located land or area form the public
domain by barring other would-be locators from locating
acquired in 1962 when corporation were allowed to
the same and appropriating for themselves the minerals
acquire lands not exceeding 1,024 hectares, the found therein. To rule otherwise would imply that location
same may be registered in 1982, despite the is all that is needed to acquire and maintain rights over a
constitutional prohibition against corporations located mining claim. This, we cannot approve or
acquiring lands of the public domain. This is the sanction because it is contrary to the intention of the
controlling doctrine today. lawmaker that the locator should faithfully and
consistently comply with the requirements for annual work
The 1987 Constitution prohibits private and improvements in the located mining claims.” (Director
of Lands v. Kalahi Investments, 1989)
corporations from acquiring alienable lands of
the public domain. Amari being a private
Q: May aliens lease land of the public domain?
corporation, is barred from such acquisition.
A: No, because that would enjoy enjoyment of the
The Public Estates Authority (PEA) is not an
natural resources of the public domain.
end user agency with respect to the reclaimed

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Q: May an alien lease a private land? Section 5. The State, subject to the provisions of this
A: Yes. A lease to an alien for a reasonable period Constitution and national development policies and programs,
is valid. So is an option giving an alien the right to shall protect the rights of indigenous cultural communities to
buy the real property on condition he is granted their ancestral lands to ensure their economic, social, and
cultural well-being.
Philippine citizenship.
The Congress may provide for the applicability of customary
laws governing property rights or relations in determining the
IV. Citizenship Requirement ownership and extent of ancestral domain.
Co-production, joint venture Filipino citizens or
or production sharing
agreements [for exploration, Corporations or associations
development and utilization of at least 60% of whose capital
natural resources] is Filipino owned. (Art. XII, VII. Stewardship Concept; Transfer of Lands
Section 2)

Note:Agreements shall not Section 6. The use of property bears a social function, and all
exceed a period of 25 years, economic agents shall contribute to the common good.
renewable for anther 25 Individuals and private groups, including corporations,
years. cooperatives, and similar collective organizations, shall have
Use and enjoyment of the Exclusively for Filipino the right to own, establish, and operate economic enterprises,
nation’s marine wealth in its Citizens (Art. XII, Section 2) subject to the duty of the State to promote distributive justice
archipelagic waters, territorial and to intervene when the common good so demands.
sea and exclusive economic
zone {PD 1599]; UN Section 7. Save in cases of hereditary succession, no private
Convention on the Law of the lands shall be transferred or conveyed except to individuals,
Sea (ratified by RP in August, corporations, or associations qualified to acquire or hold lands
1983)] of the public domain.
Alienable lands of the public Only for Filipino citizens may
domain [which shall be acquire not more than 12 Section 8. Notwithstanding the provisions of Section 7 of this
limited to agricultural lands]: hectares by purchase, Article, a natural-born citizen of the Philippines who has lost
homestead or grant; or lease his Philippine citizenship may be a transferee of private lands,
not more than 500 hectares. subject to limitations provided by law.

Private corporations may


lease not more than 1,000 A. Stewardship Concept
hectares for 25 years,
renewable for another 25
years.
See Section 6.
Certain areas of investment Reserved for Filipino citizens
[as Congress shall provide or corporations 60% of whose B. Private Lands
when the national interest so capital is Filipino owned, 1. Rule and Exceptions
dictates] although Congress may
prescribe a higher percentage
of Filipino ownership (Art. XII, RULE: No private lands shall be transferred or
See Annex 1:”Sixth Regular Section 10) conveyed except to individuals, corporations, or
Foreign Investment Negative associations qualified to acquire or hold lands of
List,” Lists A and B) the public domain.
Franchise, certificate or any Only to citizens of the EXCEPTIONS:
other form of authorization for Philippines or corporations at
the operation of a public least 60% of whose capital is
utility. Filipino owned. (Art. XII, 1. Hereditary Succession (This does not apply to
Section 11) testamentary dispositions, Ramirez v. Vda. De
Ramirez, 111 SCRA 740)
2. A natural born citizen of the Philippines who
V. Forest Lands and Parks has lost his Philippine citizenship may be a
transferee of private lands (Section 8, Article
XII)
Section 4. The Congress shall, as soon as possible,
determine, by law, the specific limits of forest lands and
national parks, marking clearly their boundaries on the ground. 3. Americans hold valid title to private lands as
Thereafter, such forest lands and national parks shall be against private persons
conserved and may not be increased nor diminished, except
by law. The Congress shall provide for such period as it may
determine, measures to prohibit logging in endangered forests
and watershed areas.

VI. Ancestral Lands and Ancestral Domain

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No private lands shall be transferred or escheat proceedings [as a consequence of the


conveyed except to individuals, corporations, violation of the Constitution], or through an action
or associations qualified to acquire or hold for reversion [as expressly authorized under the
lands of the public domain. Public Land Act with respect to lands which
Any sale or transfer in violation of the prohibition is formerly formed part of the public domain].
null and void. In Ong Ching Po v. CA, 239 SCRA
341, it was held that even if the petitioner proves 2. Remedies to Recover Private Land from
that the Deed of Sale in his favor is in existence Disqualified Alien
and duly executed, nonetheless, being an alien, 1. Escheat Proceedings
petitioner is disqualified from acquiring and owning 2. Action for Reversion under the Public Land Act
real property. 3. An action for recovery filed by the former
Filipino owner (unless the land is sold to an
Frenzel v. Catito, 2003: The Supreme Court American citizen prior to July 3, 1974 and the
said that inasmuch as the petitioner is an alien, American citizen obtained title thereto.
he is disqualified form acquiring and owning
lands in the Philippines. The sale of three Action for reversion under the Public Land Act.
parcels of lands was null and void. Neither can The Director of Lands has the authority and the
the petitioner recover the money he had spent specific duty to conduct investigations of alleged
for the purchase thereof. Equity, as a rule will fraud in obtaining free patents and the
follow the law, and will not permit to be done corresponding titles to alienable public lands, and ,
indirectly that which, because of public policy, if facts disclosed in the investigation warrant, to file
cannot be done directly. the corresponding court action for reversion of the
land to the State. (Republic v. CA, 172 SCRA 1)
An action to recover the property sold filed by The action of the State for reversion to the public
the former owner will lie. (The pari delicto rule domain of land fraudulently granted to private
has been abandoned as early as PBC v. Lui She, individuals is imprescriptible. (Baguio v. Republic,
21 SCRA 52, where the Supreme Court declared 1999)
that a lease for 99 years, with a 50-year oprtion to But it is the State alone which may institute
purchase the property if and when Wong Heng reversion proceedings against public lands
would be naturalized, is a virtual surrender of all allegedly acquired through fraud and
rights incident to ownership, and therefore, invlaid.) misrepresentation pursuant to Section 101 of the
Public Land Act. Private parties are without legal
Land sold to an alien which was later transferred to standing at all to question the validity of the
a Filipino citizen—or where the alien later becomes respondent’s title (Urquiga v. CA, 1999)
a Filipino citizen—can no longer be recovered by Thus, in Tankiko v. Cezar, 1999, it was held that
the vendor, because there is no longer any public where the property in dispute is still part of the
policy involved. (Republic v. IAC, 175 SCRA 398; public domain, only the State can file suit for
Halili v. CA, 1997; Lee v. Director of Lands, 2001) reconveyance of such public land. Respondents,
who are merely applicants for sales patent thereon,
A natural born citizen of the Philippines who are not proper parties to file an action for
has lost his Philippine citizenship may be a reconveyance.
transferee of private lands, subject to
limitations provided by law. The State can be put in estoppels by the
Thus, even if private respondents were already mistakes or errors of its officials or agents.
Canadians when they applied for registration of the Estoppel against the State is not favored; it
properties in question, there could be no legal may be invoked only in rare and unusual
impediment for the registration thereof, considering circumstances as it would operate to defeat
that it is undisputed that they were formerly natural- the effective operation of a policy adopted to
born citizens. (Republic v. CA, 235 SCRA 657) protect the public. However, the State may not
RA 8179 provides that natural-born Filipino citizen be allowed to deal dishonorably or capriciously
may acquire to a maximum area of private land to with its citizens.
5,000 square meters for urban land and 3 hectares In Republic v. CA, 1999 because for nearly 20
for rural land. Furthermore, such land may now be years starting from the issuance of the titles I
used for business and for other purposes. n1996 to the filing of the complaint in 1985, the
State failed to correct and recover the alleged
Americans hold valid title to private lands as increase in the land area of the titles issued,
against private persons. the prolonged inaction strongly militates
A previous owner may no longer recover the land against its cause, tantamount to laches, which
from an American buyer who succeeded in means the “failure or neglect, for an
obtaining title over the land. Only the State has the unreasonable and unexpected length of time,
superior right to the land, through the institution of to do that which by exercising due diligence

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

X. Public Utilities
VIII. Independent Economic and Planning Agency
Section 11. No franchise, certificate, or any other form of
Section 9. The Congress may establish an independent authorization for the operation of a public utility shall be
economic and planning agency headed by the President, granted except to citizens of the Philippines or to corporations
which shall, after consultations with the appropriate public or associations organized under the laws of the Philippines, at
agencies, various private sectors, and local government units, least sixty per centum of whose capital is owned by such
recommend to Congress, and implement continuing integrated citizens; nor shall such franchise, certificate, or authorization
and coordinated programs and policies for national be exclusive in character or for a longer period than fifty years.
development. Neither shall any such franchise or right be granted except
Until the Congress provides otherwise, the National Economic under the condition that it shall be subject to amendment,
and Development Authority shall function as the independent alteration, or repeal by the Congress when the common good
planning agency of the government. so requires. The State shall encourage equity participation in
public utilities by the general public. The participation of foreign
investors in the governing body of any public utility enterprise
shall be limited to their proportionate share in its capital, and
all the executive and managing officers of such corporation or
association must be citizens of the Philippines.
IX. Filipinization of Areas of Investments
A franchise, certificate or authorization shall not be
Section 10. The Congress shall, upon recommendation of the exclusive nor for a period more than 50 years, and
economic and planning agency, when the national interest shall be subject to amendment, alteration or repeal
dictates, reserve to citizens of the Philippines or to by Congress. All executive and managing officers
corporations or associations at least sixty per centum of whose
must Filipino citizens. In Pilipino Telephone
capital is owned by such citizens, or such higher percentage
as Congress may prescribe, certain areas of investments. The Corporation v. NRC, 2003, it was held that a
franchise to operate a public utility is not an
200
J.G. Summit v. C.A., G.R. No. 124293. January 31, 2005 exclusive private property of the franchisee. No
201
J.G. Summit v. C.A., G.R. No. 124293. January 31, 2005
franchisee can demand or acquire exclusivitly in
202 the operation of a public utility. Thus, a franchisee
Muller v. Muller, G.R. No. 149615, August 29, 2006.

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cannot complain of seizure or taking of property may choose to serve at its discretion. It has no
because of the issuance of another franchise to a legal obligation to render the services sought by
competitor. each and every client.

See Albano v. Reyes, 175 SCRA 264, where the TELEBAP v. COMELEC, 289 SCRA 337: All
Supreme Court said that Congress does not have broadcasting, whether by radio or television
the exclusive power to issue such authorization. stations, is licensed by the Government. Radio and
Administrative bodies, e.g. LTFRB, ERB, etc., may television companies do not own the airwaves and
be empowered to do so. frequencies; they are merely given temporary
In Philippine Airlines v. Civil Aeronautics Board, privilege of using them. A franchise is a privilege
1997 where it was held that Section 10, RA 776, subject to amendment, and the provision of BP 881
reveals the clear intent of Congress to delegate the granting free airtime to the COMELEC is an
authority to regulate the issuance of a license to amendment of the franchise of radio and television
operate domestic air transport services. stations.
In United Broadcasting Networks v. National
Telecommunications Commission, 2003: the JG Summit Holdings v. CA, 2003: A joint venture
Supreme Court acknowledged that there is a trend falls within the purview of an “association” pursuant
towards delegating the legislative power to to Section 11 of Article XII; thus a joint venture
authorize the operation of certain public utilities to which would engage in the business of operating a
administrative agencies and dispensing with the public utility, such as a shipyard must comply with
requirement of a congressional franchise. However, the 60%-40% Filipino-foreign capitalization
in this case, it was held that in view of the clear requirement.
requirement for a legislative franchise under PD
576-A, the authorization of a certificate of public
convenience by the NTC for the petitioner to XI. Preferential Use of Filipino Labor
operate television Channel 25 does not dispense
with the need for a franchise.
Section 12. The State shall promote the preferential use of
Tatad v. Garcia: The Constitution, in no uncertain Filipino labor, domestic materials and locally produced goods,
terms, requires a franchise for the operation of and adopt measures that help make them competitive.
public utilities. However, it does not require a
franchise before one can own the facilities needed
to operate a public utility so long as it does not
operate them to serve the public. What private
XII. Trade Policy
respondent, in this case, owns are rail tracks,
rolling stocks like coaches, rail stations, terminals
and power plant, not public utility. What constitute a Section 13. The State shall pursue a trade policy that serves
public utility is not their ownership but their use to the general welfare and utilizes all forms and arrangements of
the public. exchange on the basis of equality and reciprocity.
Bagatsing v. Committee on Privatization: The
Court held that Petron is not a public utility; hence
there is no merit to petitioner’s contention that the
sale of the block of shares to Aramco violated
Article XII, Section 11 of the Constitution. A public
utility is one organized “for hire or compensation” to XIII. Sustained Development of Human Resource;
serve the public, which is given the right to demand Practice of Profession
its service. Petron is not engaged in oil refining for
hire or compensation to process the oil of other
Section 14. The sustained development of a reservoir of
parties. national talents consisting of Filipino scientists, entrepreneurs,
professionals, managers, high-level technical manpower and
JG Summit Holdings v. CA, 2003: A public utility skilled workers and craftsmen in all fields shall be promoted by
is a business or service engaged in regularly the State. The State shall encourage appropriate technology
supplying the public with some commodity or and regulate its transfer for the national benefit.
service of public consequence, such as electricity, The practice of all professions in the Philippines shall be
gas, water, transportation, telephone or telegraph limited to Filipino citizens, save in cases prescribed by law.
service. To constitute a public utility, the facility
must be necessary for the maintenance of life and
occupation of the residents. As the name indicates,
“public utility” implies public use and service to the
XIV. Cooperatives
public. A shipyard is not a public utility. Its nature
dictates that it serves but a limited clientele whom it

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Section 15. The Congress shall create an agency to promote Section 19. The State shall regulate or prohibit monopolies
the viability and growth of cooperatives as instruments for when the public interest so requires. No combinations in
social justice and economic development. restraint of trade or unfair competition shall be allowed.

In Cooperative Development Authority v. Dolefil Monopoly. A monopoly is “a privilege or peculiar


Agrarian Reforms Beneficiaries Cooperative, 2002, advantage vested in one more persons or
the Supreme Court said that, after ascertaining the companies, consisting in the exclusive right (or
clear legislative intent of RA 6939, it now rules that power) to carry on a particular business or trade,
the Cooperative Development Authority (CDA) is manufacture a particular article, or control the sale
devoid of any quasi-judicial authority to adjudicate of a particular commodity.” Clearly, monopolies are
intra-cooperative disputes and, more particularly, not per se prohibited by the Constitution but may
disputes related to the election of officers and be permitted to exist to aid the government in
directors of cooperatives. It may however, conduct carrying on an enterprise or to aid in the
hearings and inquiries in the exercise of its performance of various services and functions in
administrative functions. the interest of the public. However, because
monopolies are subject to abuses that can inflict
XV. GOCCs severe prejudice to the public, they are subjected
to a higher of State regulation than an ordinary
business undertaking (Agan Jr. v. PIATCO)
Section 16. The Congress shall not, except by general law, The Constitution does not absolutely prohibit
provide for the formation, organization, or regulation of private monopolies. Thus for example, an award for
corporations. Government-owned or controlled corporations stevedoring and arrastre services to only one
may be created or established by special charters in the
corporation is valid. (Philippine Authority v.
interest of the common good and subject to the test of
economic viability. Mendoza)

Be that as it may, in Tatad v. Sec., 1997, the


Supreme Court declared that Article XII, Section 19
is anti-trust in history and spirit; it espouses
XVI. Temporary State Take-Over competition. The desirability of competition is the
reason for the prohibition against restraint of trade,
the reason for the interdiction of unfair competition,
Section 17. In times of national emergency, when the public and the reason for the prohibition in unmitigated
interest so requires, the State may, during the emergency and
monopolies. A market controlled by one player
under reasonable terms prescribed by it, temporarily take over
or direct the operation of any privately-owned public utility or (monopoly) or dominated by a handful of players
business affected with public interest. (oligopoly) is hardly the marker where honest-to-
goodness competition will prevail. In this case, it
cannot be denied that our downstream oil industry
Takeover of Public Utilities. The power given to is operated and controlled by oligopoly, foreign
the President to take over the operation of public oligopoly at that. So, of only to help the may who
utilities does not stand alone. It is activated only if are poor from further suffering as a result of
Congress grants emergency powers to the unmitigated increase in the prices of oil products
President under Article VI, Section 23.203 due to deregulation, it is a must that RA 8180 be
repealed completely.

XVII. Nationalization of Industries In Tanada v. Angara, 272 SCRA 18, the Supreme
Court said that the WTO does not violate Article II
Section 19, nor Sections 19 and 12 of Article XII,
Section 18. The State may, in the interest of national welfare because these sections should be read and
or defense, establish and operate vital industries and, upon understood in relation to Sections 1 and 13 of
payment of just compensation, transfer to public ownership
utilities and other private enterprises to be operated by the
Article XII, which require the pursuit of trade policy
Government. that “serves the general welfare and utilizes all
forms and arrangements of exchange on the basis
of equality and reciprocity.”
In Association of Philippine Coconut Desiccators v.
Philippine Coconut Authority, 1998, the Supreme
XVIII. Nationalization of Industries Court declared that although the Constitution
enshrines free enterprise as a policy, it
nevertheless reserves to the Government the
power to intervene whenever necessary for the
203
Obiter in David v. Ermita, G.R. No. 171409, May 3, promotion of the general welfare, as reflected in
2006. Sections 6 ad 19 of Article XII.

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Monopolies in restraint of trade. Contracts


requiring exclusivity are not per se void. Each
contract must be viewed vis-à-vis all the
circumstances surrounding such agreement in
deciding whether a restrictive practice should be
prohibited as imposing an unreasonable restraint
on competition.204

XIX. Central Monetary Authority

Section 20. The Congress shall establish an independent


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

XX. Foreign Loans

Section 21. Foreign loans may only be incurred in accordance


with law and the regulation of the monetary authority.
Information on foreign loans obtained or guaranteed by the
Government shall be made available to the public.

XXI. Penal Sanctions

Section 22. Acts which circumvent or negate any of the


provisions of this Article shall be considered inimical to the
national interest and subject to criminal and civil sanctions, as
may be provided by law.

204
Avon v. Luna, G. R. No. 153674, December 20,
2006.

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