CONSTITUTIONAL LAW: “And whatever you ask in prayer, you will receive,if you have faith.

” Matthew 21:22
In UNION, There is STRENGTH So it reached the SC. Of course, to have a jurisdiction over
POLITICAL LAW REVIEW: ALLIED POLITICAL LAW - LOCAL BSP, COA argued that BSP is an instrumentality of the
GOVERNMENT LAWS government despite the changes introduced by RA 7278.
DISCUSSED BY ATTY. DB LARGO What was the ruling of the court?
2015 - 2016
I am introducing the case of BSP vs. Commission on Audit.
JULY 18, 2015
As you can see in the book, I discussed there the 2 tests to
determine whether a corporation is classified as public or
Let’s talk about Loca Government Law. To start the
private. I took that discussion from the writings of the
discussion, l’d like to show you a problem. I assume that you
authorities of municipal corporation law in the US and I
have, this is based on an actual case, you have come to the
mentioned about the 1st test which is the purpose test.
class prepared.
Basically the purpose test provides that a corporation is
considered a public corporation if its purpose is public,
Problem
obviously.
The Boy Scouts of the Philippines (BSP) was
That’s why if you look at the ruling of the court in BSP vs.
created by C.A. No. 111 “to promote …the ability of boys
COA, I think the purpose test was applied. I don’t know if this
to do useful things for themselves and others,…and to
is a correct legal thinking on the part of the SC. One of the
inculcate in them patriotism, civic consciousness and
reasons given by the SC in saying that the BSP is a public
responsibility, courage, self-reliance, discipline, and
corporation is that its title itself declares that it is a public
kindred values, and moral values, using the method
corporation. As senior students you know that that is not
which are in common use by boy scouts.” BSP is not
supposedly controlling. But it was applied by the SC. CA 111
anymore a GOCC. The National Executive Board of
states, “An Act Creating a Public Corporation to be known as
BSP no longer consists of several Cabinet Secretaries,
Boy Scout of the Philippines”. Therefore, this is a public
except the Secretary of Education, under R.A. No. 7278.
corporation.
COA asserts jurisdiction over BSP contending that it is
still a government agency.
[Sir: Murag wrong na nga thinking on the part of the SC. I
don’t think the nomenclature or the name given to the law
Is BSP still an “instrumentality” of the government
settles the issue whether it is a public corporation or not. But
and perforce under COA’s jurisdiction?
you know that that is one of the reasons given by the SC.]
The BSP was created by CA No. 111 sometime in 1938. It The other one, already, is its purpose. If you have read the
has the purpose as mentioned in the slide. It had been case, there was a mention, indeed, of purpose of BSP which
amended twice and the last one was sometime in 1990s by is to promote good citizenship and according to the SC, that
RA 7278. is for public purpose.
What were the significant changes/amendments introduced
Dissent of J. Carpio
by RA 7278 to CA No. 111?
Answer: Effectively the President and several other cabinet
Indeed, the BSP performs functions which may
members were no longer considered part of the governing
be classified as public in character, in the sense that it
board. The only governing government representative there
promotes “virtues of citizenship and patriotism and the
is the Secretary of Education. Not only that, the President
general improvement of the moral spirit and fiber of our
was strip already of the authority to appoint as well as to
youth." However, this fact alone does not automatically
supervise except that he is still considered as the Chief
make the BSP a GOCC …
Scout, the President of the Phils., and the National President
of the BSP is no other than Vice Pres Binay, and therefore
 Authorities are of the view that the purpose
had been there for more than 2 decades already. Despite
alone of the corporation cannot be taken as a
the past decisions of the SC characterizing BSP as GOCC,
safe guide, for the fact is that almost all
or at least a government corporation, it had never been
corporations are nowadays created to promote
subjected to COA audit for one reason or another. So, in
the interest, good, or convenience of the public.
1999, COA issued a resolution declaring its policy towards
BSP that it will now be subjected to audit.  The true criterion, therefore, to determine
whether a corporation is public or private is found
Of course Binay questioned the resolution of COA saying a in the totality of the relation of the corporation
lot of changes has already been introduced by the law and to the State. If the corporation is created by the
basically, there is no more government participation, except, State as the latter’s own agency or
for the Secretary of Education who remains a member of the instrumentality to help in carrying out its
council/governing board. governmental functions, then that corporation is
considered public; otherwise, it is private.

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CONSTITUTIONAL LAW: “And whatever you ask in prayer, you will receive,if you have faith.” Matthew 21:22
If you have read the dissent of Justice Carpio, he agreed that
ok, purpose test is a valid test to determine whether a
corporation is public or private. It’s a valid test. But that
should not be the only test that will be applied. He said,
“ indeed, the BSP performs functions which may be
classified as public in character...However, this fact alone
does not automatically make the BSP a GOCC.”
He continued, Authorities are of the view that the purpose
alone of the corporation cannot be taken as a safe guide,
for the fact is that almost all corporations are nowadays
created to promote the interest, good, or convenience of the
public.
You notice, Justice Carpio even mentioned, as examples,
schools, hospitals, diba that is for public purpose or at least
for some noble purpose. Because if we go by the logic of the
majority then schools, universities, hospitals, medical
centers will be considered public corporation.
He said, “The true criterion, therefore, to determine whether
a corporation is public or private is found in the totality of
the relation of the corporation to the State.” This is the
relation test that I mentioned in the book.
So what are you saying Sir? You are showing us the dissent
and at the same time the majority opinion?
Answer: Wala lang. Maybe the examiner will ask you to say,
argue in favor of the opposition that the BSP is a public
corporation. Suwat daun ka. Argue against the proposition
that BSP is a public corporation. At least kabalo na daun ka,
you have something to write in your notebook.
In fact, the most important aspect of the dissent is the
invocation by Justice Carpio of earlier cases. One of which is
Philippine Society for the Prevention of Cruelty to Animals v.
Commission on Audit [2007]. I did not assign it because it
was just mentioned in the dissent of Carpio. It said that,
“ Applying the above test, provinces, chartered cities,
and barangays can best exemplify public corporations.”
If you have read the book, authors in the US even declared
that if you are, Judge Drilon for example, pronounce, that if
you are talking about the perfect municipal/public
corporation, that has to be a local government unit or
municipal corporation. The title of our subject is public
corporation law, actually, in the curriculum.....
Applying the above test, provinces,
chartered cities, and barangays can best exemplify
public corporations. They are created by the State as
its own device and agency for the accomplishment of
parts of its own public works. (citing Philippine Society
for the Prevention of Cruelty to Animals v. Commission
on Audit [2007])
Medicals centers will be considered public corporation. We
said the true criterion therefore is to determine the totality of
the corporation to the state. This is the Relation Test.
So what are you saying sir? You are showing us the majority
and at the same time the dissent? Wala lang. Maybe the
examiner will ask you “Are you in favor of the proposition that
the BSP is a public corporation?” or “Are you against the
proposition that it is a public corporation?” At least you have
something to write in your notebook.
In fact, the most important aspect of the dissent is the
invocation of Justice Carpio of earlier cases. One of which is
the Philippine Society for the Prevention of cruelty to
animals vs Com of Audit, I did not assign it because it was
just mentioned in the dissent of Carpio. That’s why he said
noh: “Applying the above test, provinces, chartered cities
and barangays can best exemplify public corporations.” If
you have read the book, authors in the US even declared
that if you are (Judge Dilon for example pronounced) that if
you are talking about imperfect Municipal Corporation or
perfect public corporation that has to be a local government
unit or a municipal corporation.
The title of our subject is Public Corporation actually, but if
you go by pronouncements of experts on the matter, when
you are talking about true public corporations, you are
talking about municipal corporations. That’s why the study of
public corporation is the study of local government.
Special kinds of Corporations
1. Corporation De Facto
- when we are talking about de facto
municipal corporation, there is a:
a. corporation by prescription
- if for a certain period of time it can be
seen that somehow the predecessors
of the group of individuals
representing themselves as belonging
to a corporation had been under a
charter or law in the past, and they
have been exercising such corporate
powers for a long period of time, then
it may be considered a corporation by
prescription.
- This is recognized also in Philippine
law, not just in the US.
b. corporation by estoppel
- if a certain group of individuals would
represent itself to others, we are not
talking here of the government
already but to other individuals, in the
process for example, the group of
individuals entered into a contract with
the other persons or entities thereby
for example making commitments
establishing obligations when the
other party for example wants to
enforce the provisions of the contract
and this group will now claim that you
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CONSTITUTIONAL LAW: “And whatever you ask in prayer, you will receive,if you have faith.” Matthew 21:22
cant actually sue us as a group
because there is no such the as a
“blank” corporation because we are
not actually a corporation. But by that
conduct of misrepresenting
themselves as belonging to the
corporation, will bar that group from
claiming as not a corporation. (This
came out in the Bar Exam so Take
Note)
Then focusing now on public corporation, there are two kinds
as you know;
1. Quasi-public corporation
- they are private corporation but its purpose
however as required either by franchise (like
in public utilities) or directly by law, the are
required to render public service
- because they are required to render public
service either by contract, franchise or law,
then they can be effectively called quasi
public corporations
2. Municipal Corporation (the real public corporation)
Distinction between a PUBLIC Corporation and a PRIVATE
Corporation (Asked in the Bar Exams)
1. As to the purpose
Public Corp – for the public benefit; to
benefit the public in general
Private Corp – there is a private gain which
is for profit
2. As to is creation
Public Corp – created by law
Private Corp – created pursuant to law
PUBLIC CORPORATION is created BY law, statue, or
Republic Act creating a local government
PRIVATE CORPORATION cannot be created by law
because the constitution prohibits the creation of a private
corporation by law. But it is created PURSUANT to a law
because of the existence of the general law, which is the
Corporation Code of the Philippines.
As to consequence of its creation:
PUBLIC CORPORATION is INVOLUNTARILY constituted
(comment ni Sir: involuntary in the sense that it is created
because there is no direct participation by the people. That is
true only in SOME jurisdiction where PLEBISCITE was not a
requirement. Plebiscite is NOT supposedly a requirement.
Why ask for the consent of the inhabitants for the enactment
of a law or for a law to be effective. So we decided to be
more democratic regardless of the evils it may bring in the
society. So we said, okay. so the creation of the LGU must
have a PLEBISCITE AS AN INDISPENSABLE
REQUIREMENT. So the idea that it is INVOLUNTARY may
not be proper anymore. In the book of Rofus Rodriguez (?)
he quoted it from an author in the US. i made a research
further in the US that plebiscite is optional. But in the
Philippines it is a requirement.)
So correction ni sir instead of INVOLUNTARILY
CONSTITUTED:
- NO DIRECT PARTICIPATION BY THE PEOPLE (although
theoretically there is because of the plebiscite requirement)
PRIVATE CORPORATION is established PURSUANT to a
contract (Articles of Incorporation)
PUBLIC CORPORATION there is a consent in the form of
plebiscite but NO CONTRACT
CONCEPT OF LOCAL GOVERNMENT as pertaining to
municipal corporation
- political subdivisions of the state
- but in our Constitutions LGU are not just political
subdivisions but also TERRITORIAL subdivision
(Sec 1, Art X)
- political subdivision: City of Cebu
- territorial subdivision: Cebu City
ELEMENTS OF MUNICIPAL CORPORATIONS
1. Legal creation or incorporation:
- law creating LGU passed by Congress; barangays may be
created by LGU
- NOTE on barangays in municipalities within metro manila...
GR:
Barangays may be created by local government units.
XN:
1. Barangays of municipalities within Metro Manila, and;
2. Barangays within the indigenous cultural communities.
Two kinds of barangays that are mandated to be created by
law
Most barangays in municipalities may be created locally
through ordinances passed by Sangguniang Panlalawigan.
Barangays in cities may be created by the Sangguniang
Panlungsod itself.
There is no prohibition for Congress to directly create a
barangay even if said barangay does not fall among
barangays that should be created by law.
EX: RA 9905. An Act Creating A Barangay To Be Known as
Barangay Banawa-Englis in the City of Cebu.
That's the legal creation or incorporation.
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CONSTITUTIONAL LAW: “And whatever you ask in prayer, you will receive,if you have faith.” Matthew 21:22
II. Corporate Name
Municipal corporations, being juridical entities, therefore
have personalities. If you have a personality, you can do
acts with legal effects.
EX: Enter into contracts
III. Inhabitants
Municipal corporations are to be created for inhabitants
IV. Territory
Dual nature and function of local government units
1. Governmental
2. Proprietary
Governmental functions
It's also called public or political.
This involves administration of the powers of the State and
the promotion of public welfare.
Proprietary functions
Exercise for the special benefit and advantage of the
community.
Not really indispensable to the very bonds of society
EX: fiesta celebration
An LGU may chose not to have fiesta. But it adds benefit.
The dual nature and function of local government units are
inherent in every local government units. You might think
that the local government units enjoy the dual functions
because of Section 15 of the local government code:
Section 15. Political and Corporate Nature of Local
Government Units. - Every local government unit
created or recognized under this Code is a body politic
and corporate endowed with powers to be exercised by
it in conformity with law. As such, it shall exercise
powers as a political subdivision of the national
government and as a corporate entity representing the
inhabitants of its territory. (RA 7160)
With or without Section 15, all LGUs are understood to
possess political and corporate powers. Section 15 is merely
a recognition of that fact.
If an LGU exercises governmental functions, it is
representing the national government therefore as an agent
of national government. This is relevant if you talk about
accountability of the LGU because if it serves as agent of the
national government, then it becomes accountable to the
national government. .
And we have accountability mechanisms
GOVERNMENTAL FUNCTION exercised by LGU
So basically, if an LGU exercises governmental function,
it is representing the national government and therefore
an agent of the national government.
this is relevant to the accountability of the LGU, because
if it serves as agent of the national government, then it
becomes accountable to the national government.
We have accountability mechanisms. Office of the
President can discipline officials of highly urbanized
cities and provinces, that is one way of making our LGU
accountable to the national government in the area of
discipline.
Example of governmental functions: police power,
taxation, usually delegated powers of the State..
CORPORATE FUNCTION exercised by LGU
If it exercise corporate function, not accountable to the
national government but can be accountable to the
inhabitants.
If the mayor declares that there would be no fiesta,
what cause of action do you have against the mayor?
Abuse of authority involving of function that are not
governmental? That is yet to be tested in court but for
me, since this pertains exercise of corporate function
then the mayor should be held accountable to the
inhabitants. It can be done through recall, no legal
ground except is only lost of trust and confidence. (game
of numbers,game of “bills” joke)
Examples of proprietary functions: establishment of
slaughterhouses or markets, maintenance of parks,
cemeteries and fiesta celebrations as confirmed by
cases.
IMPORTANCE OF DISTINGUISHING GOVERNMENTAL
FROM PROPRIETARY FUNCTIONS:
 garnishment of funds
 liability for contract
 control of Congress over LGU.
 liability for damages
o San Fernando La Union vs Firme- applied the
distinction between governmental and
proprietary functions for purposes of
distinguishing liability of LGU for the negligence
of regular employees. IF governmental, no
liability. Only if proprietary function capacity
does it involve liability of LGU;
o but Sec 24 of the LGC is trying to confuse this
doctrine because nothing in the Code that
qualifies.
Section 24. Liability for
Damages. - Local government
units and their officials are not
exempt from liability for death or
injury to persons or damage to
property.
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CONSTITUTIONAL LAW: “And whatever you ask in prayer, you will receive,if you have faith.” Matthew 21:22
-- refers to death or injury caused by their
regular employees. No qualification is made if
governmental and proprietary.
o When asked in 1994 Bar exam, UP law center
offered two alternatives. Once, Section 24, not
exempt. The other answer, doctrine in San
Fernando vs Firme)
Problem:
A community of people in the northern part of Cebu had
always wanted to have their local government unit. They
lobbied in Congress for the enactment of a law for the
creation of a new municipality to be called "Buenavista 2".
Although lacking in population requirement, they were able
to convince the Congress to pass a law creating the
municipality. Local officials were elected and acted as such,
one at a time though. Buenavista 2 had then entered into
contracts with various persons.
Ang question ani class kay what are the legal concerns or
aspects of this problem?
What are the issues here?
(Answer by Nathan inaudible)
Sir: Yes, assuming that it's a legal requirement. It's a given
noh. Why is that important to consider whether the local
government is a de facto or de jure government?
(Response inaudible)
Sir: in particular, what are the acts here that are affected if
there is a finding that the corporation is a de facto municipal
corporation?
(Response inaudible)
Sir: And of course, finally you should also be concerned by
the salaries received by the local government officials if it'd
be declared later on, for example, as being invalidly created.
Whether or not they should return the salaries they had
received, etc.
But of course, definitely, the validity of the contracts, the
effects of the contracts, whether or not they should be
honored in case the supposed municipal corporation will be
declared as invalidly created.
So this brings to the discussion about De Jure and De Facto
municipal corporations. I think I've mentioned about the
distinction about the two in the book, including the basis for
the doctrine of De Facto Corporation. Let me then go straight
to the cases discussing this.
First the elements. We go back to the elements of De Facto
Corporation
* A valid law authorizing the corporation.
since the law creating the municipal corporation
will be declared unconstitutional, then we refer to any
other law. That's the pronouncement
in Malabang vs. Benito. There should another law
that can be made as the basis for the incorporation of a
local government unit. So let's say Republic Act 101092
was enacted creating a particular municipality, and will
be declared unconstitutional, then there is no valid law
creating it.
But at least, the threshold according to the
Supreme Court, is that there must be however be a law
authorizing it. So there may not be a law creating it,
precisely because it was declared unconstitutional, but
there should be a law authorizing its creation. And our
on the matter is of course the Local Government Code
of 1991. It authorizes the creation of a local government
unit.
* There's an attempt in good faith to organize it.
It can be seen by the fact that there is an elected
set of public officials.
* There is colorable compliance with law.
There was a law but declared unconstitutional. So
there is colorable compliance with law, and there is
likewise exercise of corporate powers. Assumption of
corporate powers.
Let me go over some basic cases about De Facto
corporation.
First is Municipality of Jimenez vs Baz in 1996. This involves
the creation of the municipality of Sinacaban which was
created through an executive order. In 1965, you remember
Pelaez vs Auditor General, which refers to then Vice
President Emmanuel Pelaez. He filed a petition seeking for
the declaration of unconstitutionality of 33 executive orders.
This is important because at that time, there were several
other executive orders, which created municipalities
nationwide.
But there were only 33 questioned executive orders. As you
know, judgment is binding only to litigants/parties to the case.
So those municipalities that were created but were not made
parties to the case continued to exist despite the invalidation
made in the case of Pelaez vs. Auditor General.
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CONSTITUTIONAL LAW: “And whatever you ask in prayer, you will receive,if you have faith.” Matthew 21:22
One of these executive orders was E.O. 258, creating the
municipality of Sinacaban. That explains why it continued to
exist in 1949, the year wherein the Pelaez case was
promulgated, until 1990, the year when the validity of its
existence was questioned. The Supreme Court stated that
xxx Sinacaban attained a status of at least a de facto
municipal corporation because its existence had not been
questioned for more than 40 years xxx
Probably the court interchanged the concept of a de facto
municipal corporation with that of a corporation by
prescription because it mentioned of the period of 40 years.
One of the requisites for a de facto municipal corporation is
the long use of corporate powers.
As you have already learned, the municipality of Sinacaban
was mentioned in the ordinance appended to the 1987
Constitution. That appendix was the original apportionment
of legislative districts under the 1987 Constitution and we
reapportioned it after. In fact, the mandate under the 1987
Constitution is that it should be done every 3 years after the
return of the census by the NSO. The effect of mentioning
that the municipality was created via executive order would
not be just that it is a de facto municipal corporation because
of the period of time but also that it in fact obtained a de
jure status.
If you remember as I mentioned in the book, this is the
situation, if the local government unit is defectively created,
the state has two options:
1. It can in fact question the continued existence of
that LGU in a quo warranto proceeding, not by
an individual but by the State. So it is a direct
action of quo warranto by the State
But why the State? Because the
creation of a municipal corporation is at
the discretion of the State and as a
corporation, it is an entity that exists in
contemplation of law. So the real party
in interest that should question the
continued existence of a municipal
corporation is the State. If it continues to
exist as such, it will be exercising
powers that are likewise granted by law.
Precisely, it is the State that has
personality to question a defectively
created municipal corporation.
The only exception that an individual may
question a defectively created municipal
corporation is when the latter cannot even be
characterized as a de facto municipal
corporation but a total nullity. So the
requirement in the mode of challenging a
defectively created municipal corporation
through a direct action reserved to the State is
applicable only when the municipal corporation
is at least de facto. So that is the very first option
of the State.
2. The other option is to recognize, affirm, cure,
ratify the defect or validate, which is usually the
option taken by most states. Usually, this can be
done through legislative enactment. An example
of this curative law is Sec442 (d) of the Local
Government Code. This was mentioned in the
case of Municipality of Candijay vs. Court of
Appeals in 1995.
Section 442, Local Government Code -
(d) Municipalities existing as of the date of
the effectivity of this Code shall continue to
exist and operate as such. Existing
municipal districts organized pursuant to
presidential issuances or executive orders
and which have their respective set of
elective municipal officials holding office at
the time of the effectivity of this Code (You
will notice that this is a condition before
Sec442(d) can be applied) shall henceforth
be considered as regular municipalities.
This section cured all the defects. The framers
of the LGC were aware that not all executive
orders were declared null and void in Pelaez. So
they decided to merely validate it since these
defective municipalities have long been in
existence. So this is the other option.
This brings us to the case of Sultan Osop Camid vs. Office of
the President. The difference here is that the municipality of
Andong, created in 1964 was among those declared
invalidly created in the Pelaez case. In the previous cases of
Sinacaban and Candijay, wala sila gideclare as invalidly
created, different as in this case nga expressly declared as
invalid. But despite such declaration, it allegedly continued
to exist and to exercise powers. As was already mentioned,
there is a condition before Section 442 (d) of the Local
Government Code can operate. You will notice that such
condition is factual that there must be a set of elective
municipal officials holding office at the time of effectivity of
this Code.
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CONSTITUTIONAL LAW: “And whatever you ask in prayer, you will receive,if you have faith.” Matthew 21:22
It’s important to note that Section 442d has a factual
condition because as what’s observed in Sultan Osop
Camid Case, there was no evidence or proof established
showing that Andong continued to exist and that there was
set of officials at the time of the effectivity of the Code, not
because they need not present evidence but because Court
cannot take or admit factual proofs at the appellate level. Sc
is not a trier of facts. You cannot present a witness in the sc.
Wlay trial diha. So certificates that were submitted by Sultan
Osop Camid purportedly showing the existence of set of
public officals, the court cannot admit that because wa mana
ni agi ug requirement on admissibility of evidence since you
know the cour can accept pieces of evidence that had
complied with admissibility and relevancy. Wla na
authenticate for example. Unsaon pagka admitted in
evidence. So ruling of the court: Section 442d does not
sanction the recognition of just any municipality but only
those that can prove continue exercise of corporate
powers can be covered.
Relevant questions in the bar so far:
o Doctrine of operative fact: (2004 bar exam)
o This involves a municipality called Madako
with 80 barangays. 30 in the eastern part
and 50 in the other side because it was
divided by a river. So the 30 barangays
wanted to separate from the 50, the other
side, because they thought they have been
neglected in the projects by the municipality.
It was to be called Municipality of Masigla.
So question was: Suppose that one year
after Masigla was constituted as a
municipality, the law creating it is voided
because of defects, would it invalidate the
acts of the municipality and/or its officers?
Doctrine of operative fact is the modern view already of the
effects of the declaration of unconstitutionality as a law. Sc
had applied many times the modern view. Opposite is the
traditional view where the declaration of unconstitutionality of
law would mean that law if void from the very beginning –
void ab initio and therefore that law cannot create an office,
cannot confer a right, cannot impose a duty. But we have
applied already the modern view many times so I think that’s
already the approach, the operative fact doctrine.
Continuation on Doctrine of Operative Fact
Ako pay mangutana ana class, duha akong question. Siguro
number one, then second question. Now would you consider
municipality of Manabac a de facto municipal corporation?
Suggested Answer: Yes sir because it does not exercise
corporate powers.
Sir: Yes, valid exercise but maybe not because of the de
facto municipal corporation doctrine but because of
operative fact doctrine , acts are still valid, what I’m saying is
the same result because these two concepts are different.
De facto municipal corporation is a different concept and
operative fact doctrine is a different concept. But the de facto
municipal corporation doctrine is largely based on the
operative fact doctrine. Case is Municipality of Malabang v
Benito. So bar questions on the matter 2011.
Doctrine of Operative Fact, De Facto Municipal Corporations
and Municipal Corporation by Estoppel.
Local Autonomy and other related concepts
So as you know, Local Autonomy has been repeated many
times in the Consitution and even in the bar exam. The idea
is it is guaranteed. The local governments shall enjoy local
autonomy. So if I posted the following questions, what would
be your answers?
1. What is local autonomy? How is it implemented?
If you talk about local autonomy, you are talking about
decentralization.
2. Then what is decentralization?
3.
There are what we call operative principles in
decentralization, so let’s be specific as to this.
So if we talk about the definition of local autonomy, it
simply assures the broadening of the base of
governance in local levels. So what it does, therefore, is
that what used to be powers that were exercise by
national government have been transferred/delegated to
local government units. So that local government units
would be more effective and accountable. That is still
vague. So to be able to understand how decentralization
really operates, when you read the operative principles
of decentralization. And then in particular if you want to
know what have been delegated or rather we use the
term devolved, what have been devolved to local
government units have been those functions, powers
and privileges mentioned in Section 17 of the Local
Government Code. So if you talk about local autonomy,
you go to decentralization. And when you talk about
decentralization, you go to the operative principles of
decentralization and then in particular, decentralization
is implemented through the process or act of devolution
so you go to section 17.
IN particular, because decentralization is implemented
through the process or act of devolution then you go to Sec.
17. For example, matters of ecology or ecological balance,
that used to be the primary concern, if not the exclusive
concern, of a central government that if e look at the
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CONSTITUTIONAL LAW: “And whatever you ask in prayer, you will receive,if you have faith.” Matthew 21:22
operative principles of decentralization and as clearly
enumerated in Section 17 of the Code, may partnership na
ang national government and local governments even in
regard to ecological concerns. Now is this translate din a
more specific rule? Later on, we will review the rule that
requires prior consultation and approval of projects,
implemented by the national government to the local level.
The national government projects that are to be
implemented in the local level which national projects will
affect ecology. The Lina case.
The national government can only implement that project
only if there is prior consultation and approval by the
sangguian. That is one way of making sure of the
participation of local government units even in matters of
ecology. So if there is one way of granting LGUs local
autonomy. I hope you read the case of Limbona vs.
Mangelin. Two years ago. That case defined two kinds of
decentralization. One is decentralization of administration
and the other is decentralization of power. If you are asked
the question “What is local autonomy?” note that that
question is a general question. Later on, if you have read the
book I have mentioned there that in Pimentel vs. Aguirre in
2000, affirmed in Pimentel vs. Ochoa in 2012, affirmed that
the kinds of decentralization in the Philippines is not
decentralization of power but decentralization of
administration. This is quite confusing because in the Broad
Coalition case in 1989, the SC mentioned that it is political
autonomy that is granted to the autonomous region but in
Pimentel vs. Aguirre in 2000, it mentioned of decentralization
of administration including Autonomous Regions. Under the
Philippine concept of local autonomy, the national
government has not completely relinquished all its powers
over local governments including Autonomous Regions.
Only administrative powers over local affairs are delegated
to political subdivisions. Policy-setting in the country still lies
with the President and the Congress.
That explains why I have to ask the question what kind of
decentralization has been granted to provinces, cities,
municipalities, barangays, and autonomous regions.
Pimentel vs. Aguirre says that it applies to all so no
application of power because decentralization of power
means there is application of power. So even in the
autonomous regions, we have one so far because the
Cordillera failed because only the Ifugao approved it,
Pimentel said it’s still decentralization of administration. In
broad coalition vs. COA, I think the statement made by the
SC was too sweeping to say that political autonomy was
granted to the autonomous regions. Since political autonomy
was granted, does it mean that there was therefore
application of political power in favor of autonomous regions?
I am trying to confuse you because confusion is the mother
of wisdom. Naa ba na nga saying? :D
I haven’t found a source which reconciled this issue. In fact,
my book there is not conclusive. I mentioned about Pimentel
vs. Aguirre in one page, then quoted Broad Coalition in
another. So maybe this can be resolved by trying to
distinguish between the idea of application of political power
and granting political autonomy.
Ang Broad Coalition niingun “Political Autonomy” is granted,
is this the same with the concept of “Decentralization of
Power”?
This brings us to the issue of BBL. Remember the case of
Province of North Cotabato. SC said that the Bangsamoro
Juridical Entity created in the MOA was actually an
Associated State. It’s a state that has the capacity to enter
into Foreign Relations into other states, only that it has
delegated this power to the central government. Obviously, it
could not have state expressly that the BJE can exercise its
foreign relations power directly with other states.
There was also an argument that the BJE should not be
considered as an Associated State. In relation to our topic
Sec.1, Art X of the 1987 Constitution states:
“Sec.1 The territorial and political subdivisions of the
Republic of the Philippines are the provinces, cities,
municipalities, and barangays. There shall be autonomous
regions in Muslim Mindanao and the Cordilleras as
hereinafter provided.”
So there is no other entity other than ARMM and the
Cordilleras. That’s why when you read the BBL, they are
trying to establish the concept of Bangsamoro to that
paradigm by SC established in the North Cotabato case. It
says it will be “replacing” the ARMM. We’ll, in my opinion,
that’s the only way it can be constitutional. It has to fit the
political structure as identified in the Constitution. It cannot
be any other entity aside the ARMM and the Cordilleras.
Definitely dili pwede Cordilleras, so ang ARMM nalang jud.
Question lang here is whether it truly fits the framework.
Going back to Broad Coalition vs. COA, I don’t think it
mentioned “abdication of political power”. So it’s still the rule
that there is still ONLY DECENTRALIZATION OF
ADMINISTRATIVE POWERS. That’s been confirmed by
Pimentel vs. Aguirre.
But the better approach is this: There’s a difference in the
level of decentralization of powers between that in
Province/City/Municipality/Barangay and that in the ARMM. I
think there is a degree of abdication in ARMM but not totally.
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CONSTITUTIONAL LAW: “And whatever you ask in prayer, you will receive,if you have faith.” Matthew 21:22
Reasons:
1. Sec. 16, Art. X says “The President shall exercise general
supervision over autonomous regions to ensure that laws
are faithfully executed”. So president has supervisory power
over autonomous, just like provinces, cities, etc.
2. Sec. 18, Art X on the “Organic Act”.
Section 18. The Congress shall enact an organic act for
each autonomous region with the assistance and
participation of the regional consultative commission
composed of representatives appointed by the President
from a list of nominees from multi-sectoral bodies xxx”
This organic act provision shows our hesitation actually to
grant FULL political autonomy to our autonomous regions.
But naa gihapon grant of political autonomy because it
enumerated certain areas that will be contained in the
organic act. This enumeration is found in Sec. 20, Art X.
Section 20. Within its territorial jurisdiction and subject to
the provisions of this Constitution and national laws, the
organic act of autonomous regions shall provide for
legislative powers over:
1. Administrative organization;
2. Creation of sources of revenues;
3. Ancestral domain and natural resources;
4. Personal, family, and property relations;
5. Regional urban and rural planning development;
6. Economic, social, and tourism development;
7. Educational policies;
8. Preservation and development of the cultural
heritage; and
9. Such other matters as may be authorized by law for
the promotion of the general welfare of the people of
the region.
Tanawa ang part nga “subject to the provisions of this
Constution and national laws”. Masabtan ra nga dapat
Constitution, pero National Laws pajud? Unsa man jud ni,
political autonomy FULL or HALF-FULL? (This is like a
reservation clause nga ang political autonomy kay subject to
national law gihapon, so murag half-full rang political
autonomy?
Section 20, Article X, 1987 Constitution
Section 20. Within its territorial jurisdiction and subject to the provisions of
this Constitution and national laws, the organic act of autonomous regions
shall provide for legislative power over:
(1) Administrative organizations;
(2) Creation of sources of revenues;
(3) Ancestral domain and natural resources;
(4) Personal, family, and property relations;
(5) Regional urban and rural planning development;
(6) Economic, social and tourism development;
(7) Educational policies;
(8) Preservation and development of the cultural heritage; and
(9) Such other matters as may be authorized by law for the promotion of
the general welfare of the people of the region.
So this is what actually confuses the idea of granting
political autonomy. Because of course, it has to be in
accordance with the Constitution. But it says that it has to be
in accordance with national laws. And then it enumerated the
areas under which the Organic Act should operate. There is
a grant of political power in the area of policy setting.
Therefore, in the areas of ancestral domain, personal and
family relations, regional urban and rural planning
development, educational policies, etc., we have abdicated
in a way, political power. But as I’ve said, I don’t think there’s
full abdication or total abdication because of the reservation
clause found in the first paragraph of Section 20, Article X of
the Constitution.
This will continue to be problematic especially with the
creation of the Bangsamoro Basic Law (BBL). I don’t know if
it will be passed by Congress and will be approved by PNoy
next year. Only then can it be questioned in court. If it will
be questioned now, then obviously the petition will fail
because it is premature. As you know, you cannot question a
pending bill. So perhaps the decision on that will be in 2016.
By then, you will all graduate. Nagreveiw na mo para Bar. Ah,
di na apil sa coverage. Kung di man gani apil sa coverage
ang decision, basin ganahan ang examiner nga mangayo
lang ug opinion.
In sum, I think it is still accurate to stick to the opinion of
the Court in Pimentel vs. Aguirre (2000) that it’s only
decentralization of administration that is granted to
local government units. Except that in autonomous
regions, we have not really abdicated but have granted
political autonomy. But you have to be specific. It might
require a memorization of these areas in Section 20 but at
least you can tell the examiner that in the case of
autonomous regions, they are granted political autonomy
only on the following areas. So you list them down. And add
the requirement that these are consistent with the
Constitution and national laws. Kung kana imong tubag,
impressive na kau na. Kung sweeping lang ka. Kung only
decentralization of administration on the autonomous
regions, murag di kau siya perfect na pronouncement. But
kung mu zero-in jud ka sa Section 20, it would be more
impressive.
So ang answer therefore is that puro sila
decentralization of administration but in the case of
autonomous regions, we have granted a bit of political
autonomy in specific areas only. So sweeping ra kung
muingon ka ug grant of political autonomy kay di man tanan.
Tan-awa, di ba ang Revised Penal Code, wala man na sa
ilang Organic Act – criminal law, penal law, di ba? But on the
area of family law, there is a grant of political autonomy in
the sense that policy setting with regards such area would
be for the autonomous region to develop.
In one Bar Exam, the question was carefully crafted
because I think the examiner knows the characteristics of
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CONSTITUTIONAL LAW: “And whatever you ask in prayer, you will receive,if you have faith.” Matthew 21:22
local autonomy. It is not a fixed concept. That’s why
Limbona vs. Mangelin (1989), when it mentioned of the two
kinds of decentralization, mentioned of local autonomy in
general. So when you’re asked what is local autonomy, you
have to mention the two kinds of decentralization and at the
end of your answer you say that in the Philippines, we refer
to decentralization of administration only as pronounced by
the Supreme Court, if you cannot recall Pimentel vs. Aguirre
or Pimentel vs. Ochoa. But in that exam, the question was
“What is local autonomy under the 1987 Constitution?,” so
aware siya na before the 1987 Constitution we had local
autonomy but of a different concept and extent. It’s a
developing concept in other words. In fact, if you have
read the book, a lot of cases pronounced that local
autonomy is not a self-executing concept. You cannot
therefore apply it to test the validity of a law. You cannot say
that a particular law is unconstitutional because it violates
the concept of local autonomy granted by the Constitution.
So local autonomy to the extent defined by Congress – that
should be your way of thinking. In fact, in every question on
the matter, your first approached should not be the general
concept on local autonomy but to inquire whether or not
there is a specific provision of law which is applicable to the
controversy before you apply the concept. Perhaps you have
discovered in your readings that you can make use of local
autonomy in interpreting some provisions of the law. But you
cannot test the validity of the law on the basis of an abstract
or general precept as local autonomy. We have an example.
Let’s take the 4Ps case (Pimentel vs. Executive Secretary
(2012)).
PROBLEM
In 2007, the DSWD embarked on a poverty reduction
strategy with the poorest of the poor as target beneficiaries
of the 4Ps – Pantawid Pamilyang Pilipino Program. This
government intervention scheme provides cash grant to
extreme poor households to allow members of the family to
meet human development goals. The DSWD also
institutionalize a coordinated inter-agency network among
the DOH, DILG and NAPC. The only role of the LGU is to
identify the beneficiaries of the program. The local officials
do not implement the distribution of cash incentives to the
beneficiaries. The LGUs questioned the implementation of
the program.
This government intervention scheme provides cash grants
to extreme poor households to allow them to meet certain
human development goals. The DSWD also institutionalized
a coordinated inter-agency network among DOH, DILG, and
the NAPC. The only role of the LGU is to identify the
beneficiaries of the program, but the local officials do not
implement the distribution of cash incentives to the
beneficiaries. Mao ni naka awai kai ganahan man ang mga
local officials nga mokopot sa kwarta nya mag distribute nya
pa picture dayon (pamolitika jud). Pimentel, the father of
Philippine Local Autonomy, questioned the scheme as to
why can’t local government units implement the program
directly because as it happened the program was actually
implemented by the National Government of the local level
with such participation of the LGU limited to just identifying
the beneficiaries. Violation lage daw of Local Autonomy,
therefore, unconstitutional. What was the ruling of the Court?
In your outline this is the case of Pimentel vs. Ochoa.
SC said that it would depend whether or not congress
identified the LGU as an implementing agency in the
implementation of national programs. Otherwise, if congress
did not allow such participation, the National government
can implement the programs directly. Thus, it is the decision
of congress whether or not to include the LGU.
To yield and resort power and governance to the LGU as to
preclude any and all to shift the tide of monopolistic power
which would amount to a decentralization of power. Indeed,
a complete relinquishment of central government powers on
the matter of providing basic facilities and services cannot be
implied as the local government code itself weighs against it.
The national government, therefore, is not precluded from
extending a direct hand in the formulation and
implementation of National government programs, especially
when it is implemented locally in coordination with the LGUs.
(Coordination sa LGU kai sila man mo identify sa
beneficiaries pero the actual handing out of cash can be
done by the DSWD except if congress has decided that the
LGU would be the implementing agency.o)
Types of funds:
 Funds coming from the general appropriations act;
 Funds coming from foreign sources.
Certainly, to yield unreserved power of governance to the
local government unit as to preclude any and all involvement
by the national government in programs implemented in the
local level would be to shift the tide of monopolistic power to
the other extreme, which would amount to a decentralization
of power explicated in Limbona v. Mangelin21 as beyond our
constitutional concept of autonomy,… Indeed, a complete
relinquishment of central government powers on the matter
of providing basic facilities and services cannot be implied as
the Local Government Code itself weighs against it. The
national government is, thus, not precluded from taking a
direct hand in the formulation and implementation of national
development programs especially where it is implemented
locally in coordination with the LGUs concerned. (Pimentel
v. Ochoa)
Coordination kay mao man ang mu.identify. But the handling
over of the cash—pwede ra directly by the DSWD. Exception
of course—if congress has decided that the LGU would be
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CONSTITUTIONAL LAW: “And whatever you ask in prayer, you will receive,if you have faith.” Matthew 21:22
the implementing agency which was not the case in Pimentel
v. Ochoa.
In Imbong v. Ochoa, it is the RH Law (Basta ang mga LGU
ganahan jud ni sila mu.apil ug distribute. In this case, dili na
cash ila i.distribute—contraceptives.)
Relevant Issue: Whether or not it is a violation of local
autonomy if LGUs are not given direct hand in the
distribution of controceptives-- again, Congress decided that
it should be the National government on the basis of the law.
Problem: Ordinance no. 08-2009 in General Santos City
provides for an early retirement of sickly employees. Niya
may mga retirement law man ta available in general sa mga
government officials, kani siya kay special ordinance gyud.
Unsa tung provision sa retired employees? Age: 60 yrs.
Kanindot ana early retirement for sickly employees. The
purpose of the law was of course was to entice those
employees who were unproductive because of health
reasons to avail of this incentive by way of early retirement
package. Although SC actually classified it as not really
retirement but more of a separation pay (or something like
that, that was how it was interpreted by the court). But this
is not the kind of separation pay similar to your separation
pay in labor law that it is meant to be the subsidy or
wherewithal--di ni siya kay di mani siya na i.employ sa lain. It
is just a pay for severance or something. It was questioned
as invalid.
Issue: Whether or not the city of General Santos can do
this? This not a question whether who can do this-- whether
central authority or local authority. The question here was
simply whether a LGU can do this?
Who can give to me the specific rule of interpretation that is
applicable in this case? Specific rules of interpretation
(chapter 5, page 34-35 sa book ni sir): Sec. 5, LGC of 1991.
(c) The general welfare provisions in this Code shall be
liberally interpreted to give more powers to local
government units in accelerating economic
development and upgrading the quality of life for the
people in the community;
Sir: You think that this is for the General Welfare? Yes, sir.
Sir: and if the question is, whether or not the LGU can
exercise this kind of power—that should be liberally
interpreted in favor of the LGU, right? We go back to (a).
Sir: there is another one, which is— Sec. 5, LGC of 1991
(a) Any provision on a power of a local government unit
shall be liberally interpreted in its favor, and in case
of doubt, any question thereon shall be resolved in
favor of devolution of powers and of the lower local
government unit. Any fair and reasonable doubt
as to the existence of the power shall be
interpreted in favor of the local government unit
concerned;
Any fair and reasonable doubt as to the existence of a power
it should be in favor of the LGU concerned-- This is important
class, because there are instances where the National
Authority is upheld (sir mentoned in the book daw about the
tension between the national authority and local authority).
The conclusion/the rule of thumb is that, if the question is--
whether between the local government unit and the national
government and the law is not clear on the matter, as to
which authority can exercise a particular power, you go by
the general rule: if there is no statutory or constitutional
provision granting such power to the LGU, that power should
be exercised by the Central Authority. (Zoomzat v. Pp)
But of course, if the law is clear, then you resolve-- whehter it
is infavor of central authority or local authority. But if there is
doubt, and the question is between national authority and
local authority, which should exercise—National Authority
should.
Certainly, to yield unreserved power of governance to the
local government unit as to preclude any and all involvement
by the national government in programs implemented in the
local level would be to shift the tide of monopolistic power to
the other extreme, which would amount to a decentralization
of power explicated in Limbona v. Mangelin21 as beyond our
constitutional concept of autonomy,… Indeed, a complete
relinquishment of central government powers on the matter
of providing basic facilities and services cannot be implied as
the Local Government Code itself weighs against it. The
national government is, thus, not precluded from taking a
direct hand in the formulation and implementation of national
development programs especially where it is implemented
locally in coordination with the LGUs concerned. (Pimentel
v. Ochoa)
Coordination kay mao man ang mu.identify. But the handling
over of the cash—pwede ra directly by the DSWD. Exception
of course—if congress has decided that the LGU would be
the implementing agency which was not the case in Pimentel
v. Ochoa.
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CONSTITUTIONAL LAW: “And whatever you ask in prayer, you will receive,if you have faith.” Matthew 21:22
In Imbong v. Ochoa, it is the RH Law (Basta ang mga LGU
ganahan jud ni sila mu.apil ug distribute. In this case, dili na
cash ila i.distribute—contraceptives.)
Relevant Issue: Whether or not it is a violation of local
autonomy if LGUs are not given direct hand in the
distribution of controceptives-- again, Congress decided that
it should be the National government on the basis of the law.
Problem: Ordinance no. 08-2009 in General Santos City
provides for an early retirement of sickly employees. Niya
may mga retirement law man ta available in general sa mga
government officials, kani siya kay special ordinance gyud.
Unsa tung provision sa retired employees? Age: 60 yrs.
Kanindot ana early retirement for sickly employees. The
purpose of the law was of course was to entice those
employees who were unproductive because of health
reasons to avail of this incentive by way of early retirement
package. Although SC actually classified it as not really
retirement but more of a separation pay (or something like
that, that was how it was interpreted by the court). But this
is not the kind of separation pay similar to your separation
pay in labor law that it is meant to be the subsidy or
wherewithal--di ni siya kay di mani siya na i.employ sa lain. It
is just a pay for severance or something. It was questioned
as invalid.
Issue: Whether or not the city of General Santos can do
this? This not a question whether who can do this-- whether
central authority or local authority. The question here was
simply whether a LGU can do this?
Who can give to me the specific rule of interpretation that is
applicable in this case? Specific rules of interpretation
(chapter 5, page 34-35 sa book ni sir): Sec. 5, LGC of 1991.
(c) The general welfare provisions in this Code shall be
liberally interpreted to give more powers to local
government units in accelerating economic
development and upgrading the quality of life for the
people in the community;
Sir: You think that this is for the General Welfare? Yes, sir.
Sir: and if the question is, whether or not the LGU can
exercise this kind of power—that should be liberally
interpreted in favor of the LGU, right? We go back to (a).
Sir: there is another one, which is— Sec. 5, LGC of 1991
(b) Any provision on a power of a local government unit
shall be liberally interpreted in its favor, and in case
of doubt, any question thereon shall be resolved in
favor of devolution of powers and of the lower local
government unit. Any fair and reasonable doubt
as to the existence of the power shall be
interpreted in favor of the local government unit
concerned;
Any fair and reasonable doubt as to the existence of a power
it should be in favor of the LGU concerned-- This is important
class, because there are instances where the National
Authority is upheld (sir mentoned in the book daw about the
tension between the national authority and local authority).
The conclusion/the rule of thumb is that, if the question is--
whether between the local government unit and the national
government and the law is not clear on the matter, as to
which authority can exercise a particular power, you go by
the general rule: if there is no statutory or constitutional
provision granting such power to the LGU, that power should
be exerised by the Central Authority. (Zoomzat v. Pp)
But of course, if the law is clear, then you resolve-- whehter it
is infavor of central authority or local authority. But if there is
doubt, and the question is between national authority and
local authority, which should exercise—National Authority
should.
INDEPENDENT COMPONENT CITY-
(Question-slide?)
I think you know what I’m talking about. I’m talking about the
Highly Urbanized Cities that had been classified as such after
the effectivity of the 1987 Constituting but before the
effectivity of the LGC, you know that even if they are HUC, the
inhabitants could still participate in provincial election. The
Vested Right Theory is the basis for the rule.
Special Metropolitan Political Subdivision – I am not
aware of any, so far, but take note, it still require creation by
congress and plebiscite. It is treated as any political
subdivision.
(DBL slide)
MMDA vs. Bel-Air Village
G.R. No, 135962, March 27, 2000
 MMDA is not a local government unit. It is not
even a metropolitan political subdivision
because there was no plebiscite held after
the law that created it was enacted and the
President exercises not just supervision
but control over it.
 MMDA has purely administrative function
 Because MMDA is not a political subdivision, it
cannot exercise political power like police
power.
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CONSTITUTIONAL LAW: “And whatever you ask in prayer, you will receive,if you have faith.” Matthew 21:22
MMDA vs. Bel-Air Village Ruling:
MMDA is not a political subdivision. Because the issue was
when MMDA ordered the removal of a gate in a private
subdivision to solve traffic congestion, it was questioned that
the power is pertaining to MMDA because it is not a political
subdivision. Indeed it’s not because (1) there is no plebiscite
upon the creation of the MMDA and (2) under the law creating
it, the President exercises power of control and not
supervision. So it was not intended to be a political
subdivision.
Is it a Special Metropolitan Political Subdivision?
SC: not even, because again there was no plebiscite.
(DBL slide)
Loose Federation of LGUs
 LGUs may group themselves, consolidate or
coordinate their efforts, services, and
resources for purposes commonly beneficial
to them in accordance with law. (Sec. 13, Art.
X, Constitution)

 How? 1. Through Ordinances,
2. Upon approval by the Sanggunian
concerned, after lawful hearing,
contribute funds and assets
through MOA (Sec. 33, LGC)
Not yet asked in the bar. But if the examiner would come from
Visayas, probably, the third Cebu-Mactan bridge will come to
his mind.
Because what we are trying to achieve now, instead of PPP
and or involving the national government in the project, going
through DENR and other multi-layered processes, Cebu City
and Cordova will I think avail of the Sec. 33 of the LGC where
you only need Ordinances, approval by the Sanggunian
concern, after lawful hearing and Memorandum of Agreement
as to how funds and assets will be contributed. That way, the
project would be simpler.
(DBL slide)
May this federation or consolidation of local government units
enter into contracts? If yes, how may the federation or
consolidation of LGUs enter into contracts? Under what
name?
Legal question: will it have a personality of its own (the loose
federation)? (loose federation is just my term; it’s when LGUs
contribute funds and assets for purposes beneficial to them)
NO. They will not become a new entity, so when they enter
into contracts, the member LGUs will still be named there.
(DBL side)
Loose Federation, cont’d…
 The resultant consolidation would not be a
new corporate body, and therefore, it does
not have a personality. It cannot act as if it is
a “person” who n act with juridical effects.
 What are consolidated are not corporate
personalities but only “efforts, services, and
resources” for purposes commonly beneficial
to them.
(DBL slide)
CREATION, CONVERSION, DIIVISION, MERGER,
ABOLITON, SUBSTANTIAL CHNGE OF BOUNDARY
A. Regular Political Subdivisions
B. Autonomous Regions
C. Special Metropolitan Political Subdivisions
D. Beginning of Corporate Existence
JULY 25, 2015
Problem
Seventy-five (75) laws creating 75 cities, out of municipalities
were passed in 2007. In each of these laws, a provision is
provides which states: “This Act shall be exempt from the
provisions of RA 9009.” RA 9009 increased the income
requirement for the creation of a city to P100M locally generated
income. When a petition was filed seeking for the declaration of
unconstitutionality of these laws, the 75 municipalities argued as
follows:
1. The League of Cities case already settled the issue in favor of
the newly-created cities.
2. The newly-created cities are legitimate under the Doctrine of
Operative Fact.
Decide.
1st Question:
That’s a good observation class, because, indeed I never
mentioned in the problem WON the 75 laws, of course
before they became law, they were bills, are still pending
upon the effectivity of RA 9009. That’s what makes truly the
ruling of the court distinct. If you can remember, i mentioned
about that the way to evaluate the ruling of the court in
league of cities is to consider it as pro hac vice, that this is
just applicable to this because it so happen that RA 9009
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CONSTITUTIONAL LAW: “And whatever you ask in prayer, you will receive,if you have faith.” Matthew 21:22
came as supervening event because the bills were already
pending when RA 9009 took effect. And of course, the
legislative intent, although not found in RA 9009, it became
manifest later on in the individual Cityhood Laws. It was the
reasoning of the court, the last League of Cities case. The
idea is not away to conclude if the problem is not definite on
a particular fact. Is that clear? Did you get it? Is that the way
you presented your answer? In fact it is possible that some
are pending, some are not. If the fact of pendency is not
present in the case, it would make the laws null and void.
That’s how we are to study League of Cities case. Dali ra
kau.
2nd Question:
Argument 2 is not tenable. It’s neither here nor there. It’s
disengaged from reality (according to Sir ^_^).
Sir summarizes student’s answer: in fact the court in august
2010 league of cities case said that if you apply the
Doctrine of operative fact, then youre admitting that the law
is unconstitutional. And the Doctrine of Operative fact murag
weird noh pagka-invoke in august 2010 case because the
doctrine of operative fact is not meant to declare a law
constitutional when otherwise it is unconstitutional. Because
necessarily, doctrine of operative fact is applied when the
law is declared unconstitutional but you have to recognize of
course the effects of the law before it was declared
unconstitutional. In fact the SC affirmed that this is highly
exceptional and it is applicable only by reason of fairness
and fair play, the general rule really is to declare the law
unconstitutional and to consider that as having no effect, it
creates no office, confers no right and imposes no duties,
traditionally. That’s your traditional view. Then by reason of
equity and fairness, the court may apply the doctrine of
operative fact. But it has nothing to do whether the law can
be confirmed as constitutional or not.
So we’re still on creation of local government units and as
you know, LGU will have to be created by law and the law is
specific that it is a law to be enacted by congress under
section 6. Or a barangay may be created by an ordinance
but of courses it does not prohibit the creation of ordinance
by law. But there are barangays that can only be created by
a law and not by an ordinance – Barangays in Metropolitan
Manila, because there’s no sanguniang panlalawigan and for
express provision of the law, those barangays in indigenous
cultural communities – so that’s the creation.
...because it will be affected. There is reduction in territory,
income, population.
problem: Confident that Municipality of Consolacion can
qualify as a new city under existing laws, its official ask you
whether the whle province of cebu will participate in the
plebiscite that will be conducted assuming that tey ucceed in
persuading congress to pass a law converting Consolacion
into a city. What will be your advice?
Answer: Umali case
(Student answers)
it depends on the kind of city it will be converted to because
if converted to...
ICC/HUC: ENTIRE province of Cebu should participate. It
will be affected in terms of territory, income, population.
COMPONENT CITY: Nothing that entire province of cebu
will lose because it will still be under the supervision of the
province. Plebiscite is in CONSOLACION itself.
Sir asks: How do you make this case an ICC?
Student: it depends on the law creating it, if the it states that
the inhabitants of that city cant vote or be voted for...
Who should vote or participate in the plebiscite?
The entire municipality of Madako meaning all 80 barangays,
not just the 30 western barangays.
Tan v. COMELEC
The entire municipality would have to participate because it
will be affected. Reduction in population, in territory, and in
income as well.
PROBLEM
Confident that Municipality of Consolacion can qualify as
a new city under existing laws, its officials ask you
whether the whole Province of Cebu will participate in the
plebiscite that will be conducted (assuming that they
succeed in persuading Congress to pass a law converting
Consolacion into a city.) What will be your advice?
In what way will the entire province of Cebu be affected?
This is a case of an independent component city or a
highly-urbanized city
How do you make this an independent component city for
example? Because we want know whether the city that is
newly created city is an independent component city or a
component city.
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TN: what matters is the political and substantial alteration
and not physical alteration
Distinction the case of Miranda vs Aguirre and the case of
Umali vs COMELEC
Miranda vs Aguirre (1999)
Downgrading of a city, from an independent component
city to an ordinary component city
Plebiscite requirement: only Santiago City or the
component city affected should participate
Umali vs COMELEC (2014)
Upgrading from being a component city to highly
urbanized city
Plebiscite requirement: the entire province should
participate
Maybe ang entire province ganahan sila governor X jud ang
ilang governor. But if Santiago City for example is pushing
for someone else, unya mujoin na ang Santiago City as part
of the province, it would make a difference to the results. Di
ba it's possible.
I remember what happened here before, when there was a
survey between Governor Davide, 2010 noh, and Pablo
John. Sa province, slim kaayo ang gap nila, ang difference,
gamay lang ang labaw ni Davide. Pero in a survey
conducted, gi-ask hypothetically ang Cebu City residents if
you were to vote for your governor, assuming Cebu City
would be allowed to do so, who would be your governor?
Hala, if you count the votes of the Cebu City residents kay
mu-widen na man jud ang gap, di na siya close. So sure
win for Davide. That's why there was supposedly a plan
although it wasn't initiated, that Cebu City would be
downgraded to a component city just for the 2010 election.
It's possible.
For those who favor 1 political candidate and such
preference would be affected by the inclusion of a new
component city, then it is a legitimate concern also on there
part. (inaudible) if there is really genuine and sound wisdom
in this reasoning that "directly affected" should refer to
reduction of territory, population..
As you know, the law cannot take in a factor that is not sure
to happen. Alright that is your Miranda vs. Aguirre.
Plebiscite here is required. Take note, the plebiscite is on the
component city concerned, but in the case of Umali vs.
COMELEC, while conversion to a highly urbanized city is not
specifically provided in Section 10, because when you
convert to a highly urbanized city, you're not actually
creating a new city. As you have learned, a conversion of a
component city to a highly urbanized city, you don't need a
law, you only need the conversion process. Unlike where
you create a new city out of a municipality you need a law.
But component city to HUC, you need only the process of
conversion. No law, but you need a declaration of
conversion by the office of the president. Indeed, it is not
even included in section 10.
Umali v. COMELEC (April, 2014)
While conversion to an HUC is not explicitly provided in
Sec. 10, Art X of the Constitution, x x x the conversion of a
component city into an HUC is substantial alteration of
boundaries. As the phrase implies, “substantial alteration of
boundaries” involves and necessarily entails a change in the
geographical configuration of a local government unit ot
units. The phrase “boundaries” should not be limited to the
mere physical one, referring to the metes and bounds of the
LGU, but also to its political boundaries.
Indeed it is not included in Section 10, Article 10 kay creation,
conversion, kanang conversion diha di mana creation of a
new highly urbanized city, rather kay conversion of a
municipality into a city, division and merger. Supreme Court
said “xxx this falls under substantial alteration of boundaries
and the word ‘boundaries’ should not be limited to the mere
physical one referring to the metes and bounds of the LGU
but also to its political boundaries. Aie di man gyud na
physical kay wala mana actually gi-change. It’s a political
alteration of boundaries. So that is an update of what you
have learned two years ago.
The COMELEC can postpone the holding of a Plebescite
(and election) to another date
The COMELEC has “exclusive charge of the
enforcement and administration of all laws relative to the
conduct of elections for the purpose of ensuring free, orderly
and honest elections.” The text and intent of Section 2 (1) of
Article IX (C) is to give COMELEC “all the necessary and
incidental powers for it to achieve the objective of holding
free, orderly, honest, peaceful and credible elections.”
(Cagas v. COMELEC, G.R. No. 209185, October 25, 2013)
Also in the case of Cagas vs. Comelec, what is important
here is that the Comelec can legitimately postpone the
holding of a plebescite. By way of analogy in the sense that
the Comelec can also postpone elections to another date.
The Comelec is empowered to do that under Section 2(1),
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CONSTITUTIONAL LAW: “And whatever you ask in prayer, you will receive,if you have faith.” Matthew 21:22
Article IX-C of the 1987 Constitution. It’s part of their
necessary powers.
Sec. 2, Art. IX-C, 1987 Constitution. The
Commission on Elections shall exercise the
following powers and functions:
(1) Enforce and administer all laws and regulations
relative to the conduct of an election, plebescite, initiative,
referendum and recall.
Problematic man gud ni siya class kay when a law is passed
creating a local government unit, it will schedule a plebescite.
So in fact, the concern here was how can the Comelec move
the schedule of the plebescite since it is already provided for
by law? So Supreme Court affirmed the general power of the
Comelec over election matters.
Criteria for Creation & Conversion:
1. Income (c/o Dept. of Finance)
2. Population (c/o NSO)
3. Land Area (c/o DENR) (Section
7,LGC)
NOTE: the criteria call for “questions of facts.” Findings
of facts by administrative agencies are binding and
conclusive upon courts unless there is grave abuse of
discretion or clear mistake of facts. Hence, findings of
facts by the DOF, NSO and DENR deserve great
respect, if not finality, and also enjoy presumption of
regularity being acts of government agencies.
And you remember the criteria for the creation and/or
conversion of a local government unit, which are income,
population and land area. These criteria have to be certified
as haviing been complied with by various administrative
agencies.
Just a caveat, as can be gleaned from what the Supreme
Court said in the first Navarro vs. Ermita case because in
that case Dinagat Islands could not comply with the land
area requirement so they tried to comply with the population
requirement instead but they knew that they could not also
comply with the same. For one reason or another, they were
able to conduct a census but it was not by the entire office of
the NSO, they just asked someone from NSO, a district
officer or a low-ranking official, to certify compliance wirh the
population requirement. The Supreme Court said that this is
not the requirement of the law. The requirement of the law
said that it should be by NSO so it could not be a certification
from a subdivision of NSO, like a regional office for example.
Suggesting therefor that it should be something that comes
from the Head Office or from the entire agency itself.
Division, merger. Through supreme court, this falls under
substantial alteration of boundaries and the phrase, word
‘boundaries’ should not be limited to the mere physical one
referring to the metes and bounds of the LGUs buit also to its
political boundaries. (Update)
Case of Calgas vs COMELEC
-if COMELEC can legitimately postpone the holding of a
plebiscite, by applying by analogy, is COMELEC also
empowered to postpone the holding of an election to another
date? Empowered under Sec. 2(1) Article 9 © of the
constitution, it is part of the necessary incidental powers.
This is problematic because when a law is passed creating a
local government unit, it will schedule a plebiscite. How can
the COMELEC move the schedule of plebiscite if it is already
provided for by law? So SC affirmed the general power of
the COMELEC over election matters.
You remember of course the criteria for the creation and/or
conversion of LGUs:
Income population and land area.
-you may notice that these land area should be certified as
having been complied with by various administrative
agencies. Just a caveat, as can be gleaned from what the
SC said in the first Navarro v Ermita case, Dinagat Island
could not comply with the land area so they tried to comply
with the population requirement instead. But for one reason
or another they were able to conduct a census but it was
said by the entire office but they just asked someone, a
low-ranking official of NSO to certify compliance of the
population requirement but the SC said this is not the
requirement of the law which should be by the NSO. So it
could not just be a certification of a subdivision of NSO
(Regional Office for example) meaning it should come from
the head office or the entire agency itself.
… it is still to be tested if that is what the SC was really trying
to say in that case. And then your administrative law comes
in that findings of fact are conclusive generally because of
their competence and expertise and exception would be: (1)
grave abuse of discretion amounting to lack or excess of
jurisdiction, (2) mistake in facts, (3) error in law.
As for the specific criteria, you don’t have to comply with
all 3. ONE IS CONSTANT – INCOME but EXCEPT in case
of MUNICIPALITY WHERE ALL 3 CRITERIAS HAVE TO
BE COMPLIED WITH. So for municipalities, income,
population AND land area. Component cities for example:
income and population OR land area. Province in Aquino III
vs COMELEC, income plus population or land area.
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Question about area here, in the lgc of 1991, a municipality
may be created with less than 50 sq km if it is an island – so
its an exception to the rule on creating municipality. Under
the code, you don’t see such exception in regard to the
province and the code requires that there be at least 2000 sq
km. May IRR of LGC of 1991 provide for a similar exception?
YES, Navarro vs Ermita 2011.
In fact, there’s no right or reason to also apply the exception
to the province but indeed, that’s the latest ruling of the court
on the matter. The exception now covers also the case of
provinces if the province is an island. So the rule now would
be to comply with the area requirement unless it is an island.
Should it be contiguous? General rule is yes of course. We
have two exceptions which is:
1. if it consists of two or more islands (it’s impossible
to have contiguous territory if it’s two or more
islands); and
2. separated by chartered cities which do not
contribute to the income of the province.(So it’s
alright to have a part of the province in the west then
to the east)
Take note of the two cases of Navarro vs. Ermita. In 2010,
it was declared illegal because implementing rules cannot
expand the law that it seeks to implement. Then it was
reversed in 2011.
For purposes of determining compliance with the income
requirement for the conversion of an LGU, what constitutes
annual income of an LGU?
Someone answered: you mentioned in your book sir that "As
for income, it is defined in the Local Government Code to be
all revenues and receipts collected or received forming the
gross accretions of funds of the Local Government Unit.
Department of Finance order no. 35-93 correctly
encapsulizes the full import of the above disquisition when it
defined ANNUAL INCOM to be "revenues and receipts
realized by provinces, cities, and municipalities from regular
sources of the Local General Fund including the internal
revenue allotment and other shares provided for in Sections
284, 290, and 291 of the Code, but exclusive of
non-recurring receipts, such as other national aids, grants,
financial assitance, loan proceeds, sales of fixed assets, and
similar others." (page 48 sa book ni sir)
If you look at the definition of a province, you will notice that
the court is specific as to its definition. A province consists of
clusters of municipalities and/or component cities. If you
disregard the basic definition of a province i.e. that it consists
of clusters of municipalities and/or component cities, then
that is how the reasoning of the Court will make sense. But
then again, can you disregard the definition? That is in the
Code. Otherwise, as what Justice Carpio mentioned in his
dissent, it is possible to have a province that is at the same
time a municipality because if it’s an island then you can call
it a province even if it has a land area of 50 sq. km. only.
And because it is an island, you cannot anymore add
another municipality. So it’s just one municipality in one
province. In fact, there is no rhyme and reason to apply the
exception to a province. Indeed, that is the latest ruling of the
court on the matter. The exception now covers the case of
a province. The rule now would be to apply the land area
requirement unless it is an island.
So that’s the case of Navarro vs. Ermita where the 2010
decision declared that the exception under Article 9(2) of the
IRR of the LGC of 1991 as invalid because the implementing
rules cannot expand the law that it seeks to implement. Then
it was reversed in 2011 where the Supreme Court said –
There appears neither rhyme nor reason why this
exemption should apply to cities and municipalities,
but not to provinces. In fact, considering the physical
configuration of the Philippine archipelago, there is a
greater likelihood that islands or group of islands
would form part of the land area of a newly-created
province than in most cities or municipalities.
Should it be contiguous? General rule, yes of course.
We have two exceptions under Section 7 of the LGC–
1. If it consists of two or more islands;
2. If separated by chartered cities or cities which
do not contribute to the income of the province.
So it’s alright to have a part of the province in the west and
also a part of the same province in the east.
QUESTION: For purposes of determining compliance with
the income requirement for the creation and/or conversion of
a local government unit (LGU), what constitutes “annual
income” of the LGU?
From the book of DBL, pgs. 48-49 –
Under the LGC, “income” refers to all the revenue and
receipts forming part of the collected or received forming the
gross accretions of funds of the local government unit.
Under DOF Order No. 35-93, “annual income” refers to
revenues and receipts realized by provinces, cities and
municipalities from regular sources of the Local General
Fund including the internal revenue allotment (IRA) and
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other shares…xxxx…but exclusive of non-recurring receipts
xxxx…
The Internal Revenue Allotments (IRAs) are items of
income because they form part of the gross accretion of
the funds of the local government unit. The IRAs
regularly and automatically accrue to the local treasury
without need of any further action on the part of the local
government unit. Thus, they constitute income, which the
local government can invariably rely upon as the source of
much needed funds (Alvarez vs. Guingona).
Note should be taken, however in the case of conversion
of a municipality into a city or a cluster of barangays to
be formed into a new component city because RA 9009,
enacted on June 30, 2001 and amending Section 450 of the
Code, IRAs are no longer included in the computation of
the annual income for purposes of complying with the
income requirement, which was also increased to P100
Million from the original P20 Million.
The IRA is recurring kai it is regular mao ge include xa sa
concept of annual income in Alvarez vs Guingona. But that
is the general rule. We change the definition of annual
income under RA 9009 when it involves the creation of a City
out of a municipality or a cluster of barangays,
If we create a new province today. The province is not
covered by RA 9009. So where the Act says “locally
generated income”---that is applicable only to a city.
When you create a province today, for me Alvarez is still a
good case, that is why you still have to include the IRA.
Student ask question: di ma dongog
Sir: akong understanding anan IRA kay katong collected by
the BIR. so those that form part of the national taxes
collected by bir, didto kohaon ang IRA.
Kai ni ingon ang constitution, the 3 sources of funds of LGU:
-taxes, charges, and fees imposed by LGU
- share in national taxes
-share in utilization of national wealth within their
jurisdiction
The sources of revenue for LGU
 Taxes fees, and charges
 Internal revenue allotment
 Equitable share in the proceeds of utilization and
development of the national wealth within their areas
(example: royalties sa mining)
Mariano vs Comelec
Makati then was still a municipality but it was converted
into a Highly Urbanized City. The law creating the
municipality of Makati already provided for the metes
and bounds but when it was converted the law creating
the HUC did not provide for technical description of the
city. It only made mention that the city shall have the
same lot area already embodied in the law creating the
municipality. Was it sufficient considering that section 7
says it should be properly identified by metes and
bounds requiring, therefore, technical description.
Ruling: the spirit of the requirement is to avoid confusion
in jurisdiction. The statement that the city shall have the
same lot area as already provided in the law creating the
municipality will still serve the purpose of preventing
confusion. So it is sufficient.
But you should add that Congress could not have
provided the technical description of the city because at
that time, there was a territorial dispute between Makati
and Taguig, and any technical description by law would
only pre-empt the pending dispute.
The purpose will still be serve. It will therefore, still prevent
confusion, correct? But of course you add the fact that
congress could not have also provided for the technical
description because at that time, there waas still a ongoing
territorial dispute between Makati and Taguid, and any
technicl description by law will only pre-empt the peding
dispute between Makati and Taguig.
Then we go to the discussion onn challenging—the
existence of a local government unit and again noh, this is
basic, please try to remember this:
 A challenge of the LGU’s existence via quo
warranto is a direst action and by the state only
(reserve to the state) but this rule is appicable
only when the LGU is at least a de facto
municipal corporation. If it is a total nullity then,
according to Malabang v. Benito, it can be
questioned also collaterally even by a private
individual.
Problem
In preparation for the 2016 local and national elections,
the COMELEC conducted investigations in order to
ascertain the veracity of reports of “ghost precincts”. Based
on the investigations it conducted, COMELEC discovered
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CONSTITUTIONAL LAW: “And whatever you ask in prayer, you will receive,if you have faith.” Matthew 21:22
that there are no inhabitants in Barangay Diwata in
Municipality of Lazi, Siquijor. Consequently, the COMELEC
removed Barangay Diwata among the list of precincts in the
Municipality of Lazi, Siquijor for purposes of the 2016
elections. Is the act of the COMELEC valid?
A: No, Sir. It’s not valid because the act of Comelec is
tantamount to the abolition of the barangay. Under the
Omnibus Election Code, a barangay must have at least one
voting precinct. So the act of the Comelec in removing
Barangay Diwata from among the list of precincts is
tantamount to derecognizing it which will amount to the
abilition of the barangay which cannot be done by the
Comelec. There must be a subsequent law or ordinance
passed to abolish a local government unit if it is found to be
non-compliant with the requirement.
Q: What will be the law or ordinance consists of? What
should be found in the law or ordinance that abolishes an
LGU? Apart from knowing that there should be a law or
ordinance, you should know also what is in the law or
ordinance.
A: I think it should specify the name of the LGU to be
abolished. It has to specify where the inhabitants will be
merged so it must specify to what LGU the remaining people
would be attached to. ( The ordinance must specify to which
territory the barangay abolished will be part of.)
Atty: You know when you abolish a local government unit,
naa pa biya ang physical territory.
Q: And then? What else?
A: A plebiscite must be held.
Relevant provisions: Section 9 and 10 of RA 7160
Section 9. Abolition of Local Government Units. - A
local government unit may be abolished when its
income, population, or land area has been
irreversibly reduced to less than the minimum
standards prescribed for its creation under Book III
of this Code, as certified by the national agencies
mentioned in Section 7 hereof to Congress or to the
sangguniang concerned, as the case may be.
The law or ordinance abolishing a local
government unit shall specify the province, city,
municipality, or barangay with which the local
government unit sought to be abolished will be
incorporated or merged.
Section 10. Plebiscite Requirement. - No creation,
division, merger, abolition, or substantial alteration
of boundaries of local government units shall take
effect unless approved by a majority of the votes
cast in a plebiscite called for the purpose in the
political unit or units directly affected. Said plebiscite
shall be conducted by the Commission on Elections
(COMELEC) within one hundred twenty (120) days
from the date of effectivity of the law or ordinance
effecting such action, unless said law or ordinance
fixes another date.
Atty: While in this case a simple delisting of a precint is
equivalent to an abolition of an LGU without complying with
this process.
(slide)
Problem
In preparation for the 2016 local and
national election, the Comelec conducted
investigations in order to ascertain the
veracity of reports of “ghost precints”. Based
on the investigation it conducted, Comelec
discovered that there are no inhabitants in
Barangay Diwata in Municipality of Lazi,
Siquijor. Consequently, the Comelec
removed Barangay Diwata among the list of
precincts in the Mnicipality of Lazi, Siquijor
for purposes of the 2016 elections. Is the act
of Comelec valid?
No. Under the law, it’s required that a barangay must have at
least one voting precinct. So, the act of Comelec in removing
Brgy. Diwata among the listed precincts is tantamount to
derecognizing it or abolition of the LGU without complying
with the requirements. There must be a law passed to effect
the abolition of the LGU which must; (1) state the name of
the LGU to be abolished; (2) specify to what LGU the
inhabitants or territory of the abolished LGU will belong.
There must also be a plebiscite held. The delisting of the
Barangay Diwata in the list of the precincts is equivalent to
abolition of the LGU.
(slide)
Under the LGC of 1991, the abolition of a
local government unit (LGU) may be done
by Congress in the case of a province, city,
municipality, or any other political
subdivision. In the case of barangay, except
in Metropolitan Manila area and in cultural
communities, it may be done by the
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CONSTITUTIONAL LAW: “And whatever you ask in prayer, you will receive,if you have faith.” Matthew 21:22
Sangguniang Panlalawigan or Sangguniang
Panglunsod concerned subject to the
mandatory requirement of plebiscite
conducted for the purpose in the political
units affected. (Sarangani vs. Comelec,
2000)
Section 9, R.A. 7160: x x x, The law or
ordinance abolishing a local government
unit shall specify the province, city,,
mmunicipality, or barangay with which
the local government unit sought to be
abolished will be incorporated or
merged.
Section 10, R.A. 7160: Plebiscite
Requirement. No creation, division,
merger, abolition, or substantial
alteration of boundaries of local
government units shall take effect unless
approved by a majority of the votes cast
in a plebiscite called for the purpose in
the political unit or units affected. Said
plebiscite shall be conducted by
COMELEC within 120 days from the date
of effectivity of the law or ordinance
affecting such action unless such law or
ordinance fixes another date.
Question left by Atty. before dismissal:
(slide)
Questions:
 What will happen to the properties
owned by the abolished LGU?
 What will happen to the obligations
incurred by the abolished LGU?
 Will the officers of the abolished LGU
continue to exercise their function?
JULY 31, 2015
We start this afternoon with an important secular with the SC.
It is Admin Circular 10-2000. This is important because this
imposed a certain policy on the part of the govt. in regard to
the execution of money judgment against the
government/state for purposes of our discussion, against
LGU.
As stated there, judges are enjoined to observe outmost
caution in the issuance of writ of execution to satisfy money
judgment against the government agencies and LGUs. The
circular does not mean that the court will not issue, of course,
writ of execution. It simply means that the court should first
conduct a hearing to determine really the need to issue the
writ of execution. You learn in your Remedial Law that there
are motions that are not litiguous or non-litiguous motions
where once filed the judge may not even call the parties or
even conduct a hearing if it is determined that there are no
other issues to be discussed.
One of the common examples of motion that are
non-litiguous is motion for the issuance of a Writ of
Execution. Non-litiguous in a sense that if the record will
show that truly the decision has become final and executory,
then it is ministerial on the part of the court to issue a Writ of
Execution. Many times we file for ex parte motion for the
issuance of the Writ of Execution, it can be justified on the
ground that the records will show that issuance of the writ is
ministerial on the part of the court.
Judges, moreover, when the LGU is the judgment-debtor,
must conduct hearing in this regard. This is a new
development. The idea being, as much as possible they
should spare public funds from, not really wasting in the
sense that it will be awarded to judgment creditor, but you
know public funds are essentially for public purposes. That’s
the idea. YOU HAVE TO TAKE NOTE OF THAT.
Liability for Damages
Art. 34. NCC : Subsidiary liability of LGU for liability of local
police force in refusal or failure to render aid or protection to
any person in case of danger to life or property.
Art. 2189 NCC : Liability of LGUs for defective condition of
roads and other public works under LGU’s control and
supervision which results to (a) death and (b) injuries to
person.
Art. 24 LGC : LGUs not exempt from liability for death, injury
to persons or damage to property.
You know of course the idea of subsidiary liability. There
must be first a finding that writ of execution has been served
upon the police personnel concerned and then the sheriff will
make a return that the police concerned, may be defendant
in a case, is truly insolvent. Hence, the sheriff cannot collect.
So upon motion, you can make the LGU liable by reason of
Art. 34 by showing of course that the police is really insolvent.
In most cases, it is better to go after the agency that has the
money.
Art. 2189 has been asked many times in the bar exam. I’m
sure this is very easy to understand. In most cases, the LGU
will invoked certain defenses and the most common defense
is the public road, street, bridge, building or any public work
for that matter is owned by the National Government or
someone else. I don’t know why it has been asked many
times in the bar. It is very fundamental. YOU SHOULDN’T
COMMIT A MISTAKE IN DEALING WITH FUNDAMENTAL
QUESTIONS.
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CONSTITUTIONAL LAW: “And whatever you ask in prayer, you will receive,if you have faith.” Matthew 21:22
Sir: Very easy question nya mawrong pa jud ka. Dili na nako
checkan na imu papel oi. Diba? The reason we do review, so
that you can take down notes.
Back to the Discussion:
Ownership is NOT of course a defense because the Civil
Code is very specific - control and supervision.
In the case of City of Manila vs. Teotico, the defense was
that:
1. The road pertains or belong to the National Government;
and
2. The charter of the City of Manila provided for exemption
from any liability; the charter of Manila stated that it shall not
be liable for any damages arising out from the negligence of
any of its employees.
On the 1st defense, you know that what is required is only
control and supervision and practically all roads that traverse
LGU is under control and supervision of the LGU by virtue of
the specific provision in the LG Code which gives the power
to regulate defects in these roads. So the building official
concerned, so the city engineer, so practically for as long as
the road is within the particular jurisdiction, so practically it is
within control and supervision.
On the 2nd defense, you remember what was the ruling of the
court? Can that be a valid defense that there is a provision in
the charter of a LGU that it is exempt from any liability?
The court said because the defense was city of manila
charter of course existed prior to the LGC of 1991, so the
defense of the city of manila was it doesn’t matter, the
charter of city of manila is a special law, the civil code of the
phils is a general law. Is that statement correct? It’s correct
that the city charter of manila is a special law while the civil
code is a general law. But is it conclusive in determining
whether or not the charter of city of manila prevails over the
civil code? The answer is no, because you have the you look
at the provision, while the charter of city of manila is a
special law, the provision exempting it from any liability
arising out of negligence of its employees is a general
provision. Because it is applicable to all acts of employees
that will result to liability for damages, that includes defective
roads, quasi delict or all acts that would give rise to liability
for damages. But Art 2189, while contained in a general law
which is the civil code of the phils, is specific as to the
subject matter. It is specific because it mentions of defective
conditions of roads and other public works and in relation to
death or injuries to persons. According to SC, you don’t
judge a law on the basis of where it is placed or contain, it is
what the very nature of the provision itself.
We have the cases of City of Manila vs ____, case of
Jimenez;
The market is managed by a private corporation, so it is not
a defense even if it was managed by a private corporation
because there was a provision in the contract that gave the
city engineer (or was it the building official?) supervision
power over the public market. So that was still under the
supervision of the local govt unit.
BAR QUESTION
…for the repair of the road along Fuente St….
So this is based on the case of San Fernando La Union vs
Rermi.
So we settled already the issue that there seems to be a
conflict between section 24 of the LGC and the doctrine in
San Fernando la Union vs Fermi. Do you remember the
doctrine here? There seems to be, under this doctrine, still a
need to distinguish between a governmental or a proprietary
function, although section 24 of the code, there is no such
qualification required or distinction. Now I already advised
you that when given similar problem, I think it will be more
impressive if you discuss San Fernando La Union vs Fermi
and you mention also section 24 that there is no such
distinction.
I already advised you that if given a similar problem I think it
would be more impressive if you discuss San Fernando La
Union vs. Firme and you mention also Section 24 that there
is no such distinction between governmental and proprietary.
This one of course is governmental.
Problem:
The Sangguniang Panlungsod (SP) of Bogo City ordered the
construction of a wooden stage for a play during its fiesta
celebration. The stage, however, collapsed causing serious
physical injuries to the participants of the play. The
participants sued Bogo City and all its SP members for
Damagers. May the suit prosper? If yes, who should be held
liable?
As to if the suit will prosper, I think you already know that
immunity from suit is not an available defense. But who
should be held liable?
You have the case of Torio vs. Fontanilla.
First, you apply the doctrine in San Fernando La Union case
in that it is proprietary; thus, there is liability even under
Section 24. Second, as to who should be liable, remember
that municipal corporations are corporations so that they
enjoy a distinct and separate personality. This is the same
concept in your Corporation Law, wherein the officers and
the stockholders or directors are not necessarily liable for the
acts of the corporation or vice versa. In relation to that, we
have also to talk about the liability of LGU in relation to illegal
dismissal cases. As a rule, for as long as the act is official as
it is within the bounds of law or in conformity with the
requirements of the law, the officer performing the act should
not have any liability at all. It is only when there is malice or
bad faith that the officer may held liable. So, illegality, for
example, of dismissal would give rise to liability in the form of
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CONSTITUTIONAL LAW: “And whatever you ask in prayer, you will receive,if you have faith.” Matthew 21:22
damages and back wages only to the LGU and the official
who caused the dismissal should not be held liable,
generally, unless there is malic or bad faith.
What are, therefore, the two kinds of illegal dismissal? There
is the illegal dismissal that does not comply with the
procedural requirements or probably the dismissal is too
harsh a penalty. It is illegal but there is no malice or bad faith.
But if the illegality of the dismissal is tainted with malice or
bad faith in the sense that the dismissal actually was
motivated by a political consideration.
This was discussed in Rama vs. CA (1987): the governor,
vice-governor, members of the Sangguniang Panglalawigan,
provincial auditor, provincial treasurer and provincial
engineer where ordered to pay jointly and severally in their
individual and personal capacity damages to some 200
employees of the province of Cebu who were eased out from
their positions because of their party affiliations.
In Salcedo vs. CA (1978), the municipal mayor was held
personally liable for the back salaries of the Chief of Police
he had dismissed, not only because the dismissal was
arbitrary but also because the mayor refused to reinstate him
in defiance of an order of the Commissioner of Civil Service
to reinstate.
In Nemenzo vs. Sabillano (1968), the municipal mayor was
held personally liable for dismissing a police corporal who
possessed the necessary civil service eligibility, the
dismissal being done without justifiable cause and without
administrative investigation.
And all of these were confirmed in the case of Land Bank vs.
Cacayuran (April 17, 2013). This was the case about
effects of non-compliance of the requisites of contracts. You
have four requisites:
 Non-compliance of the following requirements is VOID
and NON-RATIFIABLE: (A) within the power of LGU and
(C) appropriation and certificate of availability of funds.
 Non-compliance of the following requirements is ______:
(B) prior authorization of the sanggunian (remember the
case of Quisumbing – it can be ordinance or resolution)
and (D) _______________
“While the subject loans cannot bind the Municipality for
being ultra vires, the officers who authorized the passage of
the Subject Resolutions are personally liable. Case law
states that public officials can be held personally
accountable for acts claimed to have been performed in
connection with official duties where they have acted
ultra vires.”
No public bidding, for example, is an act ultra vires.
LAND BANK OF THE PHILIPPINES vs. EDUARDO M.
CACAYURAN G.R. No. 191667 April 17, 2013
Generally, an ultra vires act is one committed outside the
object for which a corporation is created as defined by the
law of its organization and therefore beyond the powers
conferred upon it by law.43 There are two (2) types of ultra
vires acts. As held in Middletown Policemen's Benevolent
Association v. Township of Middletown:44
There is a distinction between an act utterly beyond
the jurisdiction of a municipal corporation and the
irregular exercise of a basic power under the
legislative grant in matters not in themselves
jurisdictional. The former are ultra vires in the
primary sense and void; the latter, ultra vires only in
a secondary sense which does not preclude
ratification or the application of the doctrine of
estoppel in the interest of equity and essential
justice. (Emphasis and underscoring supplied)
In other words, an act which is outside of the municipality’s
jurisdiction is considered as a void ultra vires act, while an
act attended only by an irregularity but remains within the
municipality’s power is considered as an ultra vires act
subject to ratification and/or validation. To the former
belongs municipal contracts which (a) are entered into
beyond the express, implied or inherent powers of the local
government unit; and (b) do not comply with the substantive
requirements of law e.g., when expenditure of public funds is
to be made, there must be an actual appropriation and
certificate of availability of funds; while to the latter belongs
those which (a) are entered into by the improper department,
board, officer of agent; and (b)do not comply with the formal
requirements of a written contract e.g., the Statute of
Frauds.45
Requisites for Validity of Contracts entered into by LGU’s
A. The local government unit must have the power to enter
into the particular contract;
B. Pursuant to Section 22(c) of the Local Government Code,
there must be a prior authorization by the Sanggunian
concerned, and a legible copy of the contract shall be posted
at a conspicuous place in the provincial capitol or the city,
municipal, or barangay hall;
C. In accordance with Secs. 46 and 47, Chapter 8, Subtitle B,
Book V, 1987 Admin. Code, if the contract involves the
expenditure of public funds, there should be an actual
appropriation and a certificate of availability of funds by the
treasurer of the local government unit (Except in the case of
a contract for supplies to be carried in stock)
D. The contract must conform with the formal requisites of
written contracts prescribed by law;
Effects of Non-Compliance of Requisites of Public Contracts
A and C - Void. Not ratifiable
B and D - Voidable. Subject to ratification
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CONSTITUTIONAL LAW: “And whatever you ask in prayer, you will receive,if you have faith.” Matthew 21:22
Prior authorization of the Sanggunian
QUISUMBING v. GARCIA G.R. No. 175527 Dec 8, 2008
The foregoing inexorably confirms the indispensability of
the sanggunians authorization in the execution of contracts
which bind the local government unit to new obligations.
Note should be taken of the fact that R.A. No. 7160 does not
expressly state the form that the authorization by the
sanggunian has to take. Such authorization may be done by
resolution enacted in the same manner prescribed by
ordinances, except that the resolution need not go through a
third reading for final consideration unless the majority of all
the members of the sanggunian decides otherwise.…..
The question of whether a sanggunian authorization
separate from the appropriation ordinance is required should
be resolved depending on the particular circumstances of
the case. Resort to the appropriation ordinance is necessary
in order to determine if there is a provision therein which
specifically covers the expense to be incurred or the contract
to be entered into. Should the appropriation ordinance, for
instance, already contain in sufficient detail the project and
cost of a capital outlay such that all that the local chief
executive needs to do after undergoing the requisite public
bidding is to execute the contract, no further authorization is
required, the appropriation ordinance already being
sufficient.
On the other hand, should the appropriation ordinance
describe the projects in generic terms such as infrastructure
projects, inter-municipal waterworks, drainage and
sewerage, flood control, and irrigation systems projects,
reclamation projects or roads and bridges, there is an
obvious need for a covering contract for every specific
project that in turn requires approval by the sanggunian.
Specific sanggunian approval may also be required for the
purchase of goods and services which are neither specified
in the appropriation ordinance nor encompassed within the
regular personal services and maintenance operating
expenses.
Another important doctrine in LBP v. Cacayuran is the
affirmation of the rule that public officials can be held
personally accountable for acts claimed to have been
performed in connection with official duties were they have
acted ultra vires. ex. No public bidding
Nevertheless, while the Subject Loans cannot bind the
Municipality for being ultra vires, the officers who authorized
the passage of the Subject Resolutions are personally liable.
Case law states that public officials can be held personally
accountable for acts claimed to have been performed in
connection with official duties where they have acted ultra
vires,55 as in this case.
There is a particular case where municipal liability was held
even if there was malice on the part of government officials.
If there is malice, bad faith, ultra vires - personal liability.
That means the municipal corporation should not be liable.
The State sanctions acts that are within the bound of law or
in conformity with law, otherwise the acts with are in bad
faith, with malice, or ultra vires cannot be imputed with the
State.
SOLANO LAGANAPAN vs.Mayor ELPIDIO ASEDILLO
G.R. No. L-28353 September 30, 1987
We, likewise, find no merit in the contention of the
respondent Municipality of Kalayaan, Laguna that Mayor
Elpidio Asedillo alone should be held liable for the back
salaries of the petitioner, because the records show that the
action was instituted against Mayor Asedillo, not personally,
but in his capacity as Municipal Mayor of Kalayaan, Laguna,
and he appeared and defended the action in such capacity.
Furthermore, it is of record that, after the summary dismissal
of the petitioner by respondent Mayor Asedillo on 16
February 1967, the Municipal Council of Kalayaan instead of
opposing or at least protesting the petitioner's summary
dismissal from his position, even abolished the appropriation
for the salary of the Chief of Police of Kalayaan, Laguna, We
consider this act of the Municipal Council of Kalayaan as an
approval or confirmation of the act of respondent Mayor in
summarily dismissing the petitioner, as to make said
municipality equally liable, as held by the trial court, as
respondent Mayor for the reinstatement of petitioner and for
the payment of his back salaries.
Institutionalized malice ni kung buot hunahunaon. Because
the malicious conduct of the mayor was affirmed by the
Sanggunian. Instead of opposing or questioning the
summary dismissal of the Chief of Police, the municipal
council approved the act of the mayor. Of course they were
trying to cover up the illegality of the dismissal. they thought
that that would legalized the illegal act of the mayor. Instead,
the municipality was held liable.
I am not so convinced that this is a good reasoning of the
Court because whether it is institutionalized or not, then you
just hold the councilors liable aside from the mayor. Or all
others involved. But not the local government unit. Because
the fund should always be for public use.
When it comes to qualifications, the important issues in
qualifications for local elective officials would be about
citizenship, the requirement of being a registered voter, and
the requirement of residency.
For example, 2005 Bar
In the May 8, 1995 elections for local officials hose terms
were to commence on June 30, 1995, Ricky filed on March
20, 1995 his certificate of candidacy for the Office of
Governor of Laguna. H won, but his qualifications as an
elected official was questioned. It is admitted that he is a
repatriated Filipino citizen and a resident of the Province of
Laguna. To be qualified for the office to which a local official
has been elected, when at the latest should he be:
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CONSTITUTIONAL LAW: “And whatever you ask in prayer, you will receive,if you have faith.” Matthew 21:22
(a) a Filipino citizen
(b) a resident of the locality? Explain (5%)
Answer:
(a) Filipino citizenship qualification should be complied with
at the time of taking of oath and assumption of office.
Frivaldo case: The qualifications in the LGC refer to that of
“elective” officials (and not of “candidates”) as
indicated in the heading of Section 39 of LGC, hence,
these qualifications need to be possessed by the official not
at the time he filed his certificate of candidacy but at the
time he takes his oath of office and assumes his post.
Frivaldo Doctrines:
1. The citizenship qualification under Section 39 of the
LGC was for “elective” officials, not for “candidates”
2. Effect and legal consequences of repatriation
retroacts to the date of the filing of the application
As in the case of Frivaldo, at the time of filing of
certificate of candidacy he was already considered a
Filipino citizen because of the retroactivity principle.
Citizenship- natural-born or otherwise, including
“naturalized” Filipino citizen
Take note, there is a requirement of natural-born citizenship.
So local elective officials don’t have to be natural-born
Filipinos. That's your Frivaldo.
On the matter of residency, which you had already
discussed with Judge 5, just a review, what's the idea of
residency? What do we mean by residence?
You know of course that every time we speak of residence in
election law, we refer to the concept of domicile. So
residence is synonymous with domicile. That's what you
have learned.
Why do we say that residence is synonymous with domicile?
They don’t mean the same actually. If you speak of
residence, it can be permanent or temporary. And the
concept of domicile is what is actually referred to as
permanent residence.
In your Romualdez case, the basic definition is that it is a
permanent residence if in that place, whenever you are
absent, you have the intention to return. That's the easy
definition of permanent residence. The place where
whenever you are absent, you have the intent to return -
Animus Revertendi.
Usually in the bar exam, you will be given facts and you will
have to characterize whether the facts would establish
permanent residence or domicile, or not. You need to
distinguish between temporary and permanent residence or
domicile. Your physical stay in a particular place is
temporary if of course, the undertaking, activity, endeavor or
purpose of your physical presence in that place is also
temporary. Common examples would be:
 Exercise of profession
 Business
 Schooling
 Practice of vocation
If you can fairly recall, an activity is temporary if it has a
definite beginning and a definite end. In schooling, the
definite beginning would be enrollment and the definite end
would be graduation. Business? Definite beginning is the
opening up and the end is the closing down of that business.
Upon perusal of possible activities of individuals, in relation
to the determination of residence, I noticed that there is only
one kind of activity or endeavor that will definitely be
considered permanent. And that is the establishment of a
family. Till death do us part jud diay na. Our idea is that the
establishment of a family, establishment of a conjugal
dwelling, would be considered permanent. This is where of
course these animus2x things will be relevant.
We have Animus Manendi, Animus Revertendi, and Animus
Non-revertendi.
So if you are in place where you have to establish that that is
your new domicile, it makes you abandon therefore your
original domicile. Remember, a person can only have one
domicile. The idea is it's one after the other. You cannot
have two domiciles at the same time. When you acquire the
new one, necessarily you have to abandon the old one.
But a person can of course, have multiple residences. You
can have several temporary residence but you can only have
one permanent residence. This is where your animus2x
elements would be relevant.
If you want to establish a new domicile, and therefore you
have abandoned the old one, then you need to establish
three things.
1. You have to establish your physical presence in the
new domicile. Romualdez vs Marcos
2. You have to show that you have Animus Manendi in
the new domicile.
a.intention to live permanently. And as I have
said, the facts that would establish this
would be anything that has something to do
with family.
3. You have to establish your Animus non-revertendi to
the old domicile.
But if you want to establish that you have not abandoned
your domicile, you have to establish only two things.
1. Your Animus Manendi in that place.
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CONSTITUTIONAL LAW: “And whatever you ask in prayer, you will receive,if you have faith.” Matthew 21:22
2. If the other party is alleging that you have already
abandoned the place, then you have to establish
your Animus Revertendi. Your intention to return to
that place.
So in the Faypon case, remember pang-bar exam jud ni sila.
Faypon, important principle, if you are out of your domicile,
or you are temporarily absent, because of the following
causes: studies, business, vocation, this of course would not
constitute abandonment of the domicile of origin. (olrayt)
Some Important Rulings:
Faypon Case: out of domicile of origin to pursue studies,
engage in business, or practice vocation, not sufficient to
constitute abandonment of domicile of origin.
Coquilla Case: naturalization in foreign country results in
abandonment.
Caasi Case: becoming a permanent immigrant (“greencard
holder”) in the US constitutes abandonment of residency.
S. Jalosjos vs. Comelec (June 25, 2013): A temporary stay
in a stranger’s house cannot amount to residence.
Approval of voter registration does not presuppose six
month residency in the place prior to registration.
Kani silang tanan kay bar exam najud ni. In Faypon case,
the important principle here is that if you are out of your
domicile, meaning you are temporarily absent because of
the following purposes, i.e. studies, business or vocation,
this will not constitute abandonment of domicile of origin.
Your naturalization in a foreign country results in the
abandonment of your residence. That is still correct even
with your RA no. 9225. Naturalization in a foreign country by
a natural born filipino, now, under RA no. 9225 will not result
in the renunciation of philippine citizenship because it says
“retention.” For those who has already renounced citizenship
before RA no. 9225, they are deemed to have reacquired.
To summarize: Effects of RA no. 9225 –
a) those natural-born filipinos who have already
renounced before RA no. 9225 because they
have been naturalized abroad, they are
deemed to have reacquired their citizenship
by virtue of RA no. 9225.
b) For those natural-born filipinos who are to be
naturalized after the effectivity of RA no.
9225, they are deemed to have retained their
citizenship. During naman RA no. 9225.
Mao bitaw ang title niya kay Reacquisition and
Retention Act. Reacquisition for those who
have lost and Retention for those who will be
supposedly losing their citizenship.
That has not changed the doctrine that naturalization results
in the abandonment of domicile. Basin nya maglibog ka nga
“naa naman unta RA no. 9225.” Citizenship to, this one is
domicile. And I’m sure this will be revisited but as it stands
now, acquisition of citizenship is different from acquisition of
domicile. Two different acts are required.
Apart from naturalization, becoming an immigrant or
permanent resident abroad also results in the abandonment
of residence. That is your Caasi case.
DISQUALIFICATIONS (Section 40, LGC)
a) Those sentenced by final judgment for an offense
involving moral turpitude or for an offense
punishable by one(1) year or more of imprisonment,
within two (2) years after serving sentence.
In the first paragraph for disqualification, there are two
grounds mentioned there.
1. “Those who have been sentenced with final judgment for
an offense involving moral turpitude..”
This is regardless of the penalty imposed.
2. “..or for an offense punishable by one(1) year or more of
imprisonment..”
The second ground in this paragraph will have
something to do with the penalty imposed,
regardless of the nature, whether it involves moral
turpitue or not. If the offense is punishable by one
year or more of imprisonment then that is also a
disqualification.
Also remember that the disqualification is not perpetual
under Sec.40 (a) because the disqualified official will regain
qualification after two (2) years from service of sentence. In
other words, this disqualification is good only within two
years after service. So after two years, maregain niya ang
qualification balik.
You know na the idea of moral turpitude1 diba? So typical
questions here would be is it required for the act to be
malum in se for it to be one involving moral turpitude? What
if it is punished by special law? And therefore malum
prohibitum? Is it not an offense that involves moral turpitude?
That latter statement is not controlling because it is the
nature of the offense that controls. An example would be BP
blg. 22 which is a special penal law, however it involves
moral turpitude. While it might be malum prohibitum, the way
BP blg. 22 is committed is that there is issuance of a bank
check with the knowledge that there is insufficiency of funds.
That makes it an act involving moral turpitude.
1
Defined as everything which is done contrary to justice, modesty or good
morals; an act of baseness, vileness or depravity in the private and social
duties which a man owes his fellowmen, or to society in general.
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CONSTITUTIONAL LAW: “And whatever you ask in prayer, you will receive,if you have faith.” Matthew 21:22
You might also be interested in the latest ruling of the court
involving Governor Singson on whether possession of
prohibited drugs would constitute a ground for
disqualification of local official. In different cases decided by
the Supreme court, it held that violation of BP blg. 22
involves moral turpitude. So is the violation of the
Anti-Fencing Law. Possession of prohibited drugs is a crime
NOT involving moral turpitude. Singson was prosecuted in
Hong Kong for trafficking of drugs, he pleaded guilty,
however, to the lesser offense of possession so that he can
serve for lesser time and then he can return back to the
Philippines.
Trafficking would have had a heavier penalty. Therefore, he
was convicted in Hong Kong. His qualifications were
questioned because of such conviction. When that issue
reached the Supreme Court two months ago, the court
stated that possession of prohibited drugs is not an offense
involving moral turpitude. It reasoned out that the
possession of the drugs became prohibited or illegal due to
the fact that we passed a law prohibiting it, where we could
have also passed a law permitting it. Just like in other
jurisdictions wherein the possession and consumption of
drugs, the latter being still prohibited in the Philippines, e.g.
cannabis, is legitimate there. So supreme court said that
what makes the act punishable is simply because it is
prohibited by law. But this does not mean that possession of
prohibited drugs is not bad, only that it is a crime not
involving moral turpitude.
.. new in the local government code of 1991, this did not
exist before. So truly, those who have been removed from
office as a result of administrative case before January 1,
1992 will not be disqualified. Only those removed from office
beginning January 1, 1992 will be considered disqualified
under second paragraph of Section 14(or 40?). it does not
matter whether it is elective or appointive office.
Then you have no.3, DUAL CITIZENSHIP
Dual Citizenship vs Dual Allegiance
Dual citizenship usually results involuntarily while dual
allegiance voluntary which requires overt act showing loyalty
to two jurisdictions or states.
The Constitution declares as enimical to the national interest
dual allegiance, not dual citizenship.
So there’s a good reason why the court judicially legislated
that mere dual citizenship will not result in a ground for
disqualification.
Makiling v COMELEC
This involved Mr. Arnado who was then naturalized in the
US and then when he retired, he joined politics. He sought
repatriation. He executed a sworn statement renouncing
American citizenship three times before different officials
allowed to administer oaths. However, three times Arnado
would be coming to the Philippines using US passport, this
was after the renunciation.
This is relevant because by using his US passport after
renouncing his American citizenship, has recvanted the
same oath of renunciation he took. Sec. 40 (d) applies to this
situation, so this is Dual allegiance. He is disqualified from
holding a public office and also from becoming a candidate.
His category is that his dual citizenship was acquired by
overt act in applying for a US passport.
Did not apply the Mercado case which said that in any case
Manzano’s filing of the certificate of candidacy can be
considered as renunciation of any other allegiance. The
difference here is because Manzano acquired dual
citizenship by birth unlike the case of Arnado wherein he
acquired citizenship by positive act through naturalization.
This is distinct for those distinct to those dual citizens by
virtue of birth who are not required by law to take an oath of
renunciation as mere filing of certificate of candidacy is
deemed an implied renunciation of citizenship to another
(foreign) state.
Section 40. provisions on disqualifications (paragraphs
2,3,4)
2. Removal from office as a result of administrative case
 Only given prospective application because this is
new in the lgc of 1991. This did not exist before. So
truly, those who had been removed from office as a
result of administrative case before January 1, 1992
will not be disqualified. Only those removed from
office beginning January 1, 1992 will be considered
disqualified under 2nd paragraph of this section.
 It does not matter whether elective or appointive
office.
3. Dual Citizenship
 Distinction between dual citizenship and dual
allegiance
o Dual citizenship usually results involuntarily
 Dual allegiance results voluntarily
because it requires overt act
showing loyalty to 2 jurisdiction or
states.
o State declares inimical to the interest of the
State dual allegiance and not dual
citizenship.
 So there’s a good reason why court in mentioning
that dual citizenship in paragraph 4 of section 40
should be interpreted as dual allegiance. So mere
citizenship will not result in a ground for
disqualification.
 Maquiling vs Comelec (July 2014) – involves
Arnado who was then naturalized in the united
states. Upon retirement, he enetered into politics
and had himself repatriated. In fact, he executed a
sworn statement renouncing American citizenship
3x before different officials allowed to administer
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CONSTITUTIONAL LAW: “And whatever you ask in prayer, you will receive,if you have faith.” Matthew 21:22
oath. However, 3 times also he would be coming to
the Philippines using U.S. passports. So ni avail xa
repatriation under RA 9225. And then ky required sa
latter law, renounce xa sa American Citizenship. But
after the renunciation, he used American passport.
Why is that fact relevant? SC: “Arnado, by using his
US passport after renouncing his American
citizenship, has recanted the same Oath of
Renunciation he took. Section 40(d) of the Local
Government Code applies to his situation (sir: so
dual citizenship ni xa na case). He is disqualified
not only from holding the public office but even from
becoming a candidate in the May 2010 elections.
Arnado’s category of dual citizenship is that by
which foreign citizenship is acquired through a
positive act of applying for naturalization. “
o Why did the SC not apply the doctrine in
Mercado vs Manzano that in any case,
Manzano’s filing of certificate of candidacy
can be considered as renunciation of any
other allegiance. Unsa ang kalahian?
 tn: you cannot avail of ra 9225 if you
are not a natural born Filipino who
is naturalized abroad. If mag
parepatriate ka under existing laws,
you reacquire your original status
as natural born (natural born ka dn
naturalize ka dn pa repatriate ka,
you reacqurie your original status
as natural born Filipino again).
Abandoned na ang old doctrine di
ka ma restored because you
performed an act to acquire it.
 Ang difference is: Manzano was
considered to have acquired dual
citizenship by birth. Unlike in
Arnado where he acquired
citizenship by his own act, nag pa
naturalize xa to American citizen.
“This is distinct from those
considered dual citizens by virtue of
birth, who are not required by law to
take the oath of renunciation as the
mere filing of the certificate of
candidacy already carries with it an
implied renunciation of foreign
citizenship (sir: that’s your Manzano
case). Dual citizens by
naturalization, on the other hand,
are required to take not only the
Oath of Allegiance to the Republic
of the Philippines but also to
personally renounce foreign
citizenship in order to qualify as a
candidate for public office.”
(Maquiling vs Comelec)
Those who acquired citizenship by birth are not required by
law to take oath of renunciation as the mere filing of the
certificate of candidacy already carries with it an implied
renunciation of foreign citizenship. That’s your Manzano
case.
Dual citizens by naturalization, on the other hand, are
required to take not only the oath of allegiance to the
Republic of the Philippines but to personally renounce
foreign citizenship in order to qualify.
(Question of student inaudible)
Answer of sir: Ahhh dili gihapon siya ma apply ang
reasoning sa court because the renunciation is under RA
9225 na requirement na mu renounce ka sa foreign
citizenship para ka maka avail sa ra 9225. Diba nagpa
naturalize siya under CA 63, are you familiar with this?
Naturalization in a foreign country results in loss of
citizenship. So at that time na nagpa naturalize siya, there
was a consequent loss of citizenship. Diba ni avail siya sa
RA 9225 para ma deemed reacquired iyang Philippine
citizenship unya naa ang requirement na mu take siya ug
renunciation. Although under the old law kung di ka mag RA
9225, magpa repatriate ka. In repatriation, there is no
declaration of renunciation of foreign citizenship. You only
need to make a statement under oath and then make also a
statement that you support the Republic of the Philippines
and the constitution and then record the oath and statement
in the nearest civil registry.
Even if gigamit gihapon ni Manzano, for example, ang
American passport several times then came the act of filing
of certificate of candidacy, under oath baya na siya, it’s
under oath and you declare that you are a citizen of the
Philippines and you support the Constitution and the
Philippine government. In a way it’s a declaration that you
are running for public office and that you have no other
allegiance. That’s the ruling of the court when you file your
certificate of candidacy. Although I cannot give a definitive
conclusion because that might also be determinative of the
fact that Manzano showed loyalty not only to the Philippines
because sa Manzano gi enumerate man sa SC na tan-awa
si Manzano na beginning age 9 or 7, he was already here in
the Philippines and then after that he had been participating
in electoral practices, been studying in local schools, been
paying taxes. All of these taken as a whole would mean that
he is showing allegiance to the Philippines and not to the
United States. Now you add the fact na what if gagamit siya
sa iyang American passport several times. You can probably
argue that the filing of the certificate of candidacy later will
probably be considered still as renunciation of allegiance in
another State.
Ron’s query regarding the bar exam question about a
woman running for public office but married to a foreigner
and the foreigner’s country’s law states that upon marriage,
the wife would acquire the citizenship of the husband.
Sir: The Constitution stated that citizens who married aliens
will retain their citizenship unless by their act or omission,
they are deemed to have been, under the law, renounced
their citizenship. I think the other question there is what did
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CONSTITUTIONAL LAW: “And whatever you ask in prayer, you will receive,if you have faith.” Matthew 21:22
the Filipina wife do upon acquisition of citizenship of the
husband. Two scenarios man na: Under the law of the
husband, automatic. Pwede man sad na to be able to fully
acquire the citizenship of the husband, the wife will have to
renounce Philippine citizenship. So, we need to know
because if automatic siya, then she’s a dual citizen because
she hasn’t lost her Philippine citizenship unless there’s an
act of renunciation under the law.
Student: The issue there really sir was that the wife wanted
to run for public office and whether she is disqualified
because there was dual allegiance. So, does the Manzano
case limit its doctrine to those who acquired dual citizenship
by reason of birth or does it also apply to those cases by
operation of law?
Sir: There’s a difference of course from the acquisition of
citizenship by birth because birth, it’s involuntary and the act
of marrying is voluntary. You can say, by analogy, that the
act of marrying which made her acquire the citizenship of the
husband is similar to going through the process of
naturalization.
Atty. L: I think the ruling of the court here speaks of dual
citizenship by birth. Ang distinction lang is ang first by birth,
the other one by act of marrying, which is voluntary. So the
act of marrying is in a way similar to going thru naturalization.
So the rule on naturalization will apply by analogy.
Remember, upon filing the certificate, what is renounced is
FOREIGN ALLEGIANCE. We cannot say that he renounced
the foreign citizenship. In Calilong vs. Datumanong, ila rang
court makadetermine if nawaive ba ang citizenship. Ang iya
ra allegiance, which is material to the qualification
requirement to run, ang ato madetermine if na renounce
naba.
Question ning judge Singco noh? LOL
Student: Going back to the issue on “the act of using your
foreign passport after you have filed you COC, assuming
you are dual citizen by birth”, the case said that such act will
result to having your renounciation deemed recanted. It
would seem that if you were a dual citizen by birth, and you
renounced your dual allegiance by the filing of COC, it would
seem that the act of using your foreign passport will also
recant your IMPLIED renounciation made thru the filing of
COC?
Atty. L: Yes. As I have said a while ago, the IMPLIED
renounciation made thru the filing of COC will also be
deemed effectively withdrawn/recanted if you use your
foreign passport after supposedly renouncing your
allegiance impliedly. That’s a logical analysis. But this is still
to be decided by the supreme court.
We still have to confirm that with a Supreme Court decision.
*Question (inaudible)
DBL: Are you suggesting that this is an unreasonable
burden on the right to travel? As you know, as you are
undergoing the process of taking an oath of allegiance to the
Republic, there are corresponding obligations and
responsibilities, one of which is to make sure that you are not
performing any act inconsistent with your oath – saying that
you now only have one allegiance. So you have to control
yourself not to use your foreign passport. Although you’re
not barred really from using your foreign passport but the
consequence is that di na pud ka maqualified. Wa man ka
restrain nga makatravel. Makatravel man japon ka using
your foreign passport pero as I’ve said there are
consequences.
Another disqualification:
FUGITIVE FROM JUSTICE
Rodriguez vs. COMELEC (1996)
“Fugitive from justice” includes not only those who flee from
conviction to avoid punishment but likewise who, after being
charged, flee to avoid prosecution. The definition thus
indicates that the intent to evade is a compelling factor that
animates one’s flight from a particular jurisdiction. And
obviously, there can only be an intent to evade prosecution
or punishment when there is knowledge by the fleeing
subject of already instituted indictment, or of a promulgated
judgment of conviction.
Two possibilities here –
1. Fleeing to evade the effects of conviction; or
2. Fleeing to avoid prosecution
What is controlling is the intent to evade. That is the
compelling factor that animates one’s flight from a particular
jurisdiction. So the idea there is that there is already a
pending criminal case in court. That’s the only way that you
can argue that the purpose of fleeing is really for the purpose
of evading. But if it’s still with the Prosecutor’s Office and
before indictment in court, it’s still in the investigatory stage,
meaning there’s still no prosecution in other words.
Three-term limit rule
What are the important things to be considered?
When the public official stepped down from office – you
have to know whether it’s voluntary or involuntary. If the
stepping down, for example, is by virtue of an Order of the
Comelec, that’s not voluntary but involuntary renunciation
and can interrupt the consecutiveness of the three terms.
Even for one day.
Mao bitaw kanang mga politiko na three-termers na, nagtan
aw na karon. Nya pending pa ang case sa Comelec sa
election protest. Our advice is padalia ang Comelec. Kung
next year naa nay decision, kuhaa daun, make it final and
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CONSTITUTIONAL LAW: “And whatever you ask in prayer, you will receive,if you have faith.” Matthew 21:22
executor. And then step down. Kay kung mahurot na ang
term before the order is issued, counted man na sa imoa.
Remember the case of Ong vs. Alegre? Kani ra ang medjo
complicated. Naserve na niya ang three terms. Sa ika-third
term, naa nay resolution ang Comelec about sa election
protest filed during the middle term. So during the middle
term, wa pay decision ang Comelec regarding the election
protest. Nigawas ang result pag third term nya nahurot na
nya ang third term. Nya nifile siya ug Certificate of
Candidacy for the fourth term. Iyang argument is that I lost
the in the election protest case during my middle term so
therefore that middle term should not be counted against me
because I was not the duly elected mayor. What did the SC
said? The 2nd term was counted against him. What was the
reasoning of the Court? There’s no question that he has fully
served. So what if he has fully served? Di man siya ang duly
elected? Because kana diay pagcount sa term class, di diae
mumatter if de jure or de facto officer ka. So whether a de
facto or de jure officer, you are serving the term. You have to
clarify that basin ug ilaron ka sa examiner ba sa argument
nga “since I lost that election in that particular term and I
have fully served, I only served in a de facto capacity thus it
should not be counted against me. Hui, nindot kaau na
paminawon if wa ka kabasa sa reasoning sa Court.
Nevertheless, as pronounced by the SC, whether you’ve
served that term in a de facto or de jure officer, you are
considered to have fully served the term and therefore it
will be counted against you.
Latasa vs comelec case wherein there was a conversion of a
municipality into a City. However, it had the same inhabitants,
same territorial jurisdiction. A different interpretation would
violate the very spirit of the law providing for only 3
consecutive terms. So disqualified.
Voluntary renunciation- It will not interrupt the
consecutiveness, therefore, it is still counted.
FROM PREVIOUS YEAR
3-TERM LIMIT RULE
The “Three Term Limit Rule”
Elements:
1) That the official concerned has been elected for
three consecutive terms in the same local
government post and
2) That he has fully served three consecutive terms.
The problems revolve around whether there was interruption.
It can be either voluntary or involuntary. If ordered for
example by COMELEC or any other governmental entity,
then such interruption is considered INVOLUNTARY. This
interrupts the running of the “consecutiveness”. Otherwise, if
the interruption was voluntary, either through resignation or
abandonment, through the transfer to a different position for
example, it would be considered considered as voluntary
resignation and will not interrupt the consecutiveness of the
service of the term.
Another important rule is the effect of SUSPENSION. This is
an on-going question even amongst those who are already
practicing law. The case of Aldovino involved PREVENTIVE
SUSPENSION. Preventive Suspension does not interrupt
the consecutiveness, it does not interrupt the term. If one is
preventively suspended, he is merely prevented from
exercising the functions, but the officer still holds the office.
There is no interruption of the term.
What if suspension was imposed as a PENALTY? This
happened to Gov. Gwen (Garcia) who was penalized with
suspension months before the expiration of her third term.
Will she be allowed to run for a 4th term? Is there an
interruption to the consecutiveness if suspension was
imposed as a penalty?
My (Atty. Daryl Bretch Largo’s) humble opinion is
this—under the Code, when one is suspended, the
suspension being a penalty, a temporary vacancy is created.
The one who occupies the position of the suspended official
will merely be Acting (in an acting capacity).
For me, there is no distinction between mere preventive
suspension, and suspension as a penalty. The reasoning of
the Supreme Court in Aldovino was that preventive
suspension merely barred the official from discharging his
functions. Is this not the same idea when one is suspended?
I don’t think there is removal from office, otherwise, if the
penalty of suspension really causes removal, meaning you
are taken out of your post, it should create a permanent
vacancy.
You can also argue otherwise, that it would no longer
constitute a penalty if the official is not removed, that is
possible. When you step down as a result of an order of the
penalty of suspension, you can argue that you are removed
from your office within the period of suspension therefore
effectively interrupting the term. I have yet to see a definitive
ruling of the Court in that regard. This is a “wait and see”
situation. But going back, insofar as preventive suspension
is concerned it does not interrupt the term.
The following are the bar questions relating to this that came
out:
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CONSTITUTIONAL LAW: “And whatever you ask in prayer, you will receive,if you have faith.” Matthew 21:22
2008 Bar
Abdul ran and won in the May 2001, 2004, and
2007 elections for Vice-Governor of Tawi-Tawi. After being
proclaimed Vice-Governor in 2004 elections, his opponent,
Khalil, filed an election protest before the Commission on
Elections. Ruling with finality on the protest, the COMELEC
declared Khalil as duly elected Vice-Governor though the
decision was promulgated only in 2007, when Abdul had
wholly served 2004-2007 term and was in fact already on his
2007-2010 term as Vice-Governor.
a) Abdul now consults you if he can still run for
Vice-Governor of Tawi-Tawi in the forthcoming May
2010 elections on the premise that he could not be
considered as having served a Vice-Governor from
2004-2007 because he was not duly elected to the
post, as he assumed office merely as a presumptive
winner and that presumption was later overturned
when the COMELEC decided with finality that he
had lost in the May 2004 elections. What will be your
advice?
2011 Bar
Adela served as mayor of Kasim for 2
consecutive terms. On her third term, COMELEC ousted her
in an election protest that Gudi, her opponent, filed against
her. Two years later, Gudi faced recall proceedings and
Adela ran in the recall election against him. Adela won and
served as Mayor for Gudi’s remaining term. Can Adela run
again for Mayor in the next succeeding election without
violating the 3 term limit?
Let me go straight to another update—take note of Ong vs.
Alegre. One person. Three terms. The middle term was
disputed. The final resolution of the COMELEC was that the
person elected during the middle term was not the winner
but such decision was released only after the third term.
Was there an interruption? According to the Court, there was
no interruption. The term was fully served but it was served
in a de facto capacity. Thus, whether the official was de facto
or de jure, for as long as the term was fully served, the full
service of the term is counted.
2011 Bar
Alfredo was elected municipal mayor for 3
consecutive terms. During his third term, the municipality
became a city. Alfredo ran for city mayor during the next
immediately succeeding election. Voltaire sought his
disqualification citing the 3 term limit for elective officials. Will
Voltaire’s action prosper?
ANSWER: Lataza vs. COMELEC (asked in the 2005
Bar)—Alfredo is DISQUALIFIED. An interpretation allowing
a fourth term in the new city would effectively allow him to
serve for 18 years. The reasoning of the Supreme Court was
that even if it was a new city, the mayor would still be serving
the same territory (same territorial jurisdiction) and the same
inhabitants. The spirit behind the three-consecutive-limit rule
is really to prevent service of more than 9 consecutive years.
A contrary ruling would be a circumvention allowing the
service of 18 years.
Disqualified even if it’s a new city because the official will be
serving the same territorial jurisdiction and same inhabitants
and besides it will circumvent the spirit of the 3 term limit
rule.
Types of voluntary renunciation
*Resignation
*Abandonment of office
Rule on succession
Problem:
Mayor X dies, so the vice mayor Y succeeds. Councilor A
becomes the vice-mayor
1. Who caused the vacancy?
-A caused the vacancy when he assumed the office of the
vice mayor.
2. Determine whether or not A is a member of a political
party
- If yes, then the political party would have to comply with the
requirements.
(The appointee shall come from the same political party as
the one who caused the vacancy. The appointee must have
a nomination and a certificate of membership that he is a
bona fide member from the highest ranking official of the
political party concerned. ---when you say highest, dili na
local or regional ha)
Kong independent ang ni cause sa vacancy so dili na mo
apply ang requirements. So it will be by appointment from
any member of the political party
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CONSTITUTIONAL LAW: “And whatever you ask in prayer, you will receive,if you have faith.” Matthew 21:22
If the one who caused the vacancy was an independent
candidate? (the previous procedure is not applicable)
 By appointment from any and not necessarily from a
member from that political party.
2008 Bar
On August 8, 2008, the Governor of Bohol died
and Vice-Governor Cesar became the Governor by
operation of law. Accordingly, Benito, the highest ranking
member of the Sangguniang Panlalawigan was elevated to
the position of Vice-Governor. By the elevation of Benito to
the office of the Vice-Govenor, a vacancy in the
Sangguniang Panglalawigan was created. How should the
vacancy be filled?
A: It depends. It depends on whether Benito is a member of
a political party or not and then, you go on discussing the
requirements if he is a member of a political party.
Problem
X, Y and Z were the candidates for Mayor in
Municipality of ABC. Y had earlier filed a petition for the
cancellation of X’s certificate of candidacy on the ground that
X failed to comply with the 6-month residency requirement.
During the election, and while the disqualification case was
still pending, X received the highest number of votes
followed by Y. Thereafter, the Comelec dsiqualified X. W, the
elected Vice-Mayor, insisted that he should become the
Mayor. Should W be allowed to assume the office of the
Mayor?
Sir: Class, are you familiar of the doctrine called Rejection of
the Second Placer Rule?
 So, we reject the second placer. What’s the idea? It
is because the people have made a decision NOT to
elect the second placer—the second placer is not
the winner. So, the second placer. In the event,
therefore, that the elected candidate (fiirst placer)
will be disqualified and the second placer cannot
assume the position of the elected (first placer) thus,
the rejection of the second placer rule. But there is
a CAVEAT, as to when the rejection of the second
placer rule will apply. This is where you need to
remember the different grounds for disqualification
and methods by which we initiate a disqualification
proceeding which are found under:
1. Section 78 of the Omnibus Election Code
 Is really not a petition for disqualification
but a petition for CANCELLATION of
you certificate of COC on the ground of
MISREPRESENTAION;
 deals with eligibility
matters/requirements.
2. Section 68 of the the Omnibus Election Code
 ground for disqualification on the basis of
certain acts in violation of election
laws—terrorism, fraud, vote-buying, etc/
election offenses.
The SC distinguishes the two mentioned above of the
narrow scope now of the application of the Rejection Of The
Second Placer Rule. The Rejection Of The Second Placer
Rule applies only to Sec. 68 and not to Sec. 78 because,
such rule presupposes that there is a first placer that’s why
we reject a second placer. And were the ground for
disqualification is eligibility, in the COC for example
citizenship, residency and other eligibility requirements (is
the grounds) then, the COC is void—as if you have not filed
a certificate of candidacy. And because you have not filed a
certificate of candidacy, because the COC is considered
void for misrepresentation, then you are NOT a candidate.
And because you are not a candidate-- votes should not
have been counted in your favor and you should not have
been proclaimed in the first place and so, you are not a first
placer. Why therefore, in this case, should be allowed to
assume office instead? Why not W? Because what
happened there was—the ouster of a de facto officer cannot
create a permanent vacancy as contemplated in the LGC.
Svetlana Jalosjos v. Comelec (June 25, 2013)
The rule on succession in Section 44 of the Local
Government Code cannot apply in instances when a de
facto officer is ousted from office and the de jure officer takes
over. The ouster of the de facto officer cannot create a
permanent vacancy as contemplated in the Local
Government Code. There is no vacancy to speak of as the
de jure officer, the rightful winner in the elections, has the
legal right to assume the position.
The ouster of a de facto officer cannot create a permanent
vacancy as contemplated in the LGC. There is no vacancy to
speak of as de the jure officer, the supposed second placer,
but not the second placer. So Y is a de jure officer, the
rightful winner in the election, has the legal right to assume
the position. So all votes in favor of X in that election
considered not counted. So there was no first placer. So Y
was the winner and not X.
So you have to be careful what is the ground for the
disqualification. Was it Section 68? Or Section 78?
Stevlana Jalosjos vs Comelec (June 25, 2013)
The rule on succession is Section 44 of the Local
Government Code cannot apply in instances when a de
facto officer is ousted from office and the de jure officer takes
over. The ouster of a de facto officer cannot create a
permanent vacancy as contemplated in the Local
Government Code. There is no vacancy to speak of as the
de jure officer, the rightful winner in the elections, has the
legal right to assume the position.
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CONSTITUTIONAL LAW: “And whatever you ask in prayer, you will receive,if you have faith.” Matthew 21:22
That is also in Election Law.
PROBLEM
Mayor X of Cebu City went to the United States for one
month. Vice-Mayor Y acted as Mayor in the meantime.
A: What powers may and may not be exercised by Y?
Can Y solemnize marriage?
B: While Y is acting as Mayor of Cebu City, may the SP
elect a new Presiding Officer?
A: (Recall codals) What are the powers of an acting mayor?
You distinguish this from an OIC.
So the acting Mayor can actually exercise all the powers and
functions of the Mayor, except 3 powers. The power to
appoint, suspend and remove(dismiss). Dali ra kaayo na
memorize-on. About personnel mana. Unless the temporary
capacity exceeds 30 days.
 In case of temporary incapacity, the Vice or
the Highest Ranking Sanggunian member
(HRS) shall automatically exercise the
powers and functions of the Local Chief
Executive (LCE).
 All powers and functions of the LCE can be
exercised by the Vice or HRS, except the
power to appoint, suspend, or dismiss
employees, unless the temporary capacity
exceeds 30 days.
Pp vs Bustamante (Mentioned in the book)
Bustamante was sued for usurping the power of the Mayor
when he was acting as Vice-Mayor, he solemnized marriage.
Supreme Court said okay, it’s the function of the Mayor, its
not one of those that the acting Mayor is prohibited from
doing.
Q: May the SP elect a new Presiding Officer? (BAR)
A: Yes. This is taken from the case of Gamboa VS Aguirre
(2009)
A Vice-Governor who acts Governor effectively creates a
temporary vacancy in the position of Presiding Officer of
the SP, entitling therefore the SP to select an acting
Presiding Officer during the period that the Vice-Governor
acts as Governor.
Officer in Charge (OIC)
Q: What are the powers and functions of Officer in Charge?
A: The power as distinguished from acting is limited to the
designation. So if you are an OIC, you have been
designated. If you’re acting, you have not been designated.
You act by operation of law not assume by operation of law.
So if you have been designated, meaning there is no
temporary vacancy.
Q: A situation where OIC Mayor may be designated?
A: When the mayor is out of his territorial jurisdiction within 3
days. Pwede siya mu designate ug OIC. And in the
designation, mao na ang limitation sa function sa OIC.
Although under the same Code, kinsa ang ma designate
niya as OIC? Ang Vice ra sad gihapon. Di siya maka
designate ug another official. Ang Vice ra jud gihapon.
In the case of a Punong Barangay/Barangay Captain wala
man siyay Vice so ang iyang Highest Ranking Sangguniang
Brgy member. So while limited ang function, ang designating
officer designating cannot choose anyone else. Only the
Vice or the Highest Ranking Sanggunian.
PROBLEM
Mayor X of Cebu City went to Manila for three days to attend
a two-day seminar.
A. Will Y, the VM, act as Mayor during X’s absence?
B. Who shall perform the powers and functions of the
Mayor of Cebu City during X’s absence and what
are the scope and limitations to such powers and
functions?
Which brings me to the topic about Officer in Charge.
Pero kung one day lang ka out of the country, temporary
vacancy dayon ha. Kanang 3 days, kung within the
Philippines lang, outside of the territorial jurisdiction of the
LCE.
The Officer in Charge (OIC)
 To be designated by the LCE when he is “travelling
within the country but outside his territorial
jurisdiction” for a period not exceeding three (3)
days
 The OIC [Vice or HRS of Brgy] shall perform the
powers and functions as may be delegated to
him by the LCE except the powers to appoint,
suspend or dismiss employees.
 If the LCE has not designated an OIC, the Vice or
the HRS has the right to assume the office of the
LCE on the 4th day.
When it comes to disciplinary action, remember the
jurisdiction of the Ombudsman.
Q: What are the disciplining bodies under the Code?
A: Remember if a local government official commits
misconduct then he may be administratively prosecuted
either under the LGC or under the Ombudsman Act.
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CONSTITUTIONAL LAW: “And whatever you ask in prayer, you will receive,if you have faith.” Matthew 21:22
When it comes to disciplinary actions, remember, jurisdiction
of Ombudsman, what are the disciplining bodies under the
code? Remember if a local government official commits
misconduct, then he may be administratively prosecuted
either under the Local Government Code or under the
Ombudsman Act. Meaning, if under the ombudsman act, the
graft and corrupt practices and other laws relevant to
ombudsman jurisdiction, it’s a choice on the part of the
complainant. Pwede ari niya sa LGC, Sec. 60. If adto siya sa
Ombudsman, then the applicable laws covered by the
Ombudsman jurisdiction. But this is concurrent. So, the first
tribunal that opts to take cognizance of the case will acquire
jurisdiction to the exclusion of the other tribunal. So, if you
belong to the administration party, usually, you go by the
LGC. Example: mike rama- he was filed a case in the Office
of the President dayon, not in the Ombudsman, ky dili na
siya sa LP. What is the distinction? The grounds more or
less can be covered by the Ombudsman, like abusive
conduct, (grounds under 760- I don’t know if this is referring
to Ombudsman act or LGC), anti-graft and corrupt practices
act, RA 3019. These can still be covered. So, it is really a
choice. It’s not really a legal consideration, its politics.
(slide)
Concurrent Jurisdiction with
Ombudsman
In administrative cases involving the
concurrent jurisdiction of two or more
disciplining authorities, the body where the
complaint is filed first, and which opts to take
cognizance of the case, acquires jurisdiction to
the exclusion of other tribunals exercising
concurrent jurisdiction.
Under RA 7160, the Sangguniang
Panlungsod or Sangguniang Bayan has
disciplinary authority over any elective barangay
official. Since the complaint against te petitioner
was initially filed with the Ombudsman, the
Ombudsman’s exercise of jurisdiction is to the
exclusion of the sangguniang bayan whose
exercise of jurisdiction is concurrent.
(Alejandro vs. Office of the Ombudsman, G.R.
No. 173121, April 3, 2013)
Preventive suspension
Ombudsman – longer preventive suspension of 6 months
LGC – 60 days, or maximum of 90 days in case of multiple
administrative cases
Aguinaldo Doctrine or Doctrine of Condonation
(slide)
2011 Bar
Governor Paloma was administratively charged
with abuse of author before the Office of the
President. Pending hearing, he ran for re-election
and won a second term. He then moved to dismiss
the charge against him based on this supervening
event. Should the motion be granted?
Aguinaldo Doctrine
-pertains to administrative misconduct committed in a prior
term, wherein such (officer?) is reelected, and such
re-election is considered to be a condonation of the prior
misconduct. Consequently, the public officer cannot be
disqualified or removed from office on the ground of the prior
misconduct.
Three-fold Liability Rule
-Civil, administrative and criminal Liability
Under this rule, a single act can lead to different kinds of
liabilities such as criminal, civil and administrative. So even if
a person is considered not criminally liable, he can still be
held administratively or civilly liable.
Argument: A dismissal of the Administrative case should
result to the dismissal of the criminal case. The fact that in
the administrative proceeding, the proof required is simply
substantial evidence, and in a criminal case, it requires proof
beyond reasonable doubt, then there’s no point in
proceeding with the criminal case if even in the
administrative case, the cause of action already failed.
This argument fails because in each liability, there are
different causes of action. It is not merely because of the
different proof requirement in each case. The latter
argument would only be true or sufficient if it is the criminal
case that was dismissed, the administrative case cannot
necessarily be dismissed because the criminal case requires
higher proof than the administrative case. But if it is the other
way around, I can also argue that the case with higher
threshold was already dismissed, so it necessarily follows
that the case with lower threshold be also dismissed.
Therefore, the safer answer would be: there are different
causes of action in each case.
Why different causes of action?
Each is grounded on different laws because a cause of
action necessarily pertains to a violation of a law. Different
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CONSTITUTIONAL LAW: “And whatever you ask in prayer, you will receive,if you have faith.” Matthew 21:22
laws, either administrative; ombudsman act, LGC, etc.,
criminal; revised penal code, SPLs, etc., civil; civil code.
(slide from previous batch)
The famous (or infamous) “Aguinaldo
Doctrine”
 A public official cannot be removed from
office for administrative misconduct
committed during a prior term, since his
re-election to the office operates as a
condonation of the officer’s previous
misconduct to the extent of cutting off his right
to remove him therefor.
 It applies only to administrative case for
misconduct, so the official may still be held
criminally or civilly liable for the same act.
(Cf: “Three-fold Liability Rule”)
AUGUST 1, 2015
So our next topic is about Recall. Can you recall the rules?
(very funny sir)
2011 Bar
A was the duly elected Mayor of Tunawi in the local
elections of 2004. He got 51% of all the votes cast. 14
months later, B, who also ran for mayor, filed with the
Local Election Registrar, a petition for recall against A. The
COMELEC approved the petition and set a date for its
signing by other qualified voters in order to garner at least
25% of the total registered voters or total number of those
who actually voted during the local election 2005,
whichever is lower. A attacked the COMELEC resolution
for being invalid. Do you agree with A?
Ok sad ni nga question. Gitawag si Jeff.
Jeff: The resolution is invalid. The petition should already
have the signature of the qualified voters before the petition
should be filed. In that case, when the COMELEC approved
the petition and set the date for its signing of other qualified
voters, it presupposes that the number of votes required was
still not available.
Sir: What else? Kumplete ni pagkahimua nga problem. Kung
mutan-aw ka ba, there’s nothing wrong with this. Actually
you only need to know the procedure in a recall as provided
for under RA 9244. That’s one. What else?
Jeff: The required period as to when a recall election can be
made has not been followed.
Sir referring to the problem: kanang whichever is lower naa
na sa law? 25% of the total number of registered voters or
total number of those who actually voted whichever is lower,
naa na sa law?
Answer: only the 25% of the total number of registered voter
(not sureee kay dili gyud madunggan ang tingog maboang
ko )
Sir: duha na imung na observe, unsa pa?
Student: the reason for the recall is loss of confidence,
however the petition did not state that.
Sir: that’s not the reason but the ground – loss of confidence.
The reason for saying that there is loss of confidence should
be stated in the petition. Where will the petition be filed by
the way? Because this was filed with the local election
registrar.
Student: with the comelec.
Sir: with the comelec. What’s the role of the local election
registrar in recall?
Sir: it is before whom the petition shall be signed by the
representatives of the petitioners. It’s not that you file it with
the local election registrar and the comelec will affirm. You
file it with the comelec and the comelec will check whether
the requirement, the signature, authentication and all are
complied with.
Sir: there’s no mention also of notice to the subject of recall,
no publication also.
It’s just a matter of knowing how, not require much analysis
but a lot of times you are asked with those kind of questions
that’s why it’s important that you master the rules.
Prohibitions in Recall Proceedings:
 No resignation during recall process;
 Recall election should only be once during the term
of the official (note of “election”, not “proceeding”)
 No recall election shall take place within 1 year from
date of official’s assumption to office or 1 year
immediately preceding a regular election (day of
election and that election affecting the office of the
official concerned)
Take note that what is prohibited is not the preparatory
activities for recall but the election itself. The recall election
should take place in the middle term. Therefore, you can
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CONSTITUTIONAL LAW: “And whatever you ask in prayer, you will receive,if you have faith.” Matthew 21:22
initiate the petition with the COMELEC before the first year
of the term ends. Let’s say 2010. So, noon of June 30, 2010
up to noon of June 30, 2011 is the prohibited period. The
petition can be filed within the period, for example, sometime
in May 2011. But the recall election itself may be held only
during the middle term.
Before, the local elections were not synchronized so it
happened that less than one year immediately preceding the
Barangay elections, the mayor was recalled. The mayor
argued that it cannot be done since it is one year
immediately preceding the barangay election. But the SC
said that when we say “regular election” that should pertain
to the election for the same office, which in that case is the
Office of the Mayor.
But now I think they are trying to synchronize the elections
for local government officials. That can be done for barangay
officials because the term of office of barangay officials is
fixed by law. Only the term of office of all other local
government officials are fixed in the Constitution. Thus, the
Congress can change the term of office of barangay officials
any time. Especially so that hold-over is permitted in the
case of barangay officials. The law also allows it.
Human Resources and Development
 Who may appoint local officials and employees?
To give true meaning to local autonomy, appointing
power has now been devolved to the local chief
executive. So that is for all positions except the position
of provincial, municipal and city treasurers as they are to
be appointed by the Secretary of Finance upon the
recommendation of the local chief executive concerned.
For barangay treasurer, the requirement is punong
barangay to appoint but it should have the concurrence
of the sanggunian.
Except the position of provincial, municipal. and city
treasurers they are to be appointed by the Secretary of
Finance upon the recommendation of the local chief
executive concern.
For barangay treasurer, the requirement is for the punong
barangay to appoint but it should have the concurrence of
the sanggunian. So generally, devolved na ang appointing
power with those exceptions mentioned.
What law governs the appointments of local officials and
employees?
Civil Service Law and other pertinent laws. So that means,
appointment by appointing authority would require the
attestation of the Civil Service Commission.
What is the meaning of 'attestation'?
In Administrative Law, the only role of the Civil Service
Commission is to attest and it cannot review the competence
or fitness of the appointed employee or official. By
attestation we mean the CSC will determine whether under
the law the one appointed is eligible in accordance with the
eligibility requirements of the law.
Otherwise if not qualified, the attestation is negative.
So if Civil Service Law applies to appointment by local chief
executives, will attestation be required?
GR: Yes
XPN: Casual employees and those employees that are hired
for emergency purposes and pursuant to job orders. Job
orders must not exceed six (6) months.
How will the resignation of the vice mayor and a member of
sanggunian be effected?
FORM OF RESIGNATION
If you are the Vice Mayor how do you tender or make
effective your resignation?
-- Vice Mayor of independent component city, highly
urbanized city, component city or municipality.. you qualify
2
Resignation by elective local officials shall be deemed
effective only upon acceptance by the following
1. The President
- Case of governors, vice-governors, and mayors
and vice-mayors of highly urbanized cities and
independent component cities;
2. The governor
- Case of municipal mayors, municipal vice-mayors,
city mayors and city vice0mayors of component
cities
3. The sanggunian concerned
- Case of sanggunian members
If member of a Sanggunian?
A letter of resignation addressed to the Sanggunian, to the
plenary or concession, deemed rendered effective the
moment it is recorded.
GROUNDS for PREVENTIVE SUSPENSION of Appointive
Local Official
-specific, so not all under investigation may be preventively
suspended.
 Dishonesty
 Oppression
 Neglect
 Disciplining authority has reason to believe that this
act would merit penalty of removal
*not sure if the above enumerated is exclusive.
2
Not mentioned in the discussion but indicated in Atty Largo’s
book. Page 239.
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CONSTITUTIONAL LAW: “And whatever you ask in prayer, you will receive,if you have faith.” Matthew 21:22
*3Other Grounds for Disciplinary actions are as
follows
o Disloyalty to the Republic of the Philippines;
o Culpable violation of the Constitution;
o Dishonesty, oppression, misconduct in office,
gross negligence, or dereliction of duty;
o Commission of any offense involving moral
turpitude or an offense punishable by at least
prision mayor;
o Abuse of authority;
o Unauthorized absence for 15 consecutive
working days, except in the case of members
of the sangguniang panlalawigan,
sangguniang panlungsod, sangguniang
bayan and sangguniang barangay
o Application for, or acquisition of, foreign
citizenship or residence or the status of an
immigrant of another country;
o Such other grounds as may be provided in the
LGC of 1991 and other laws. An elective
local official may be removed from office on
the grounds enumerated above by order of
the proper court.
In Labor law, the ground is when the offense of the
employee involves threat to property of the employer of
another employee or to the life or limb of another person
DISTINCTION of Preventive Suspension of Appointive
Local Official and
the Preventive Suspension of Elective Local Official
Requisites of Preventive Suspension of Elective/Elected
Local Official (Joson III Case)
 Issues have already been joined (not found in that of
Appointive Local Official)
 Evidence of guilt is strong
 Danger that the continued performance of the
function will threaten evidences or witnesses
There is danger that the continued performance of the
function will threaten the evidence or witnesses.
Lahi ang preventive suspension sa appointive and elective
local officials.
Who among the following local elective officials can practice
his profession?
a. Mayor X is a doctor.
b. Vice Mayor Y engineer.
c. Councilor Z who is a lawyer.
d. (not mentioned)
Can a Mayor practice profession? It's a fulltime job. No
practice of profession or occupation for that matter. The
3
Not mentioned in the discussion but indicated in Atty Largo;s
book. Page 221.
demands of the functions of the local chief executive should
bar him from practicing a profession or any occupation.
Except in the case of a local chief executive who is a Doctor.
Doctor of medicine, but subject to certain conditions. In case
if emergency and where the local chief executive who is a
doctor does not receive remuneration for that.
Vice mayor who is and engineer, can such vice mayor
exercise a profession? D man siya local chief executive, d
ba?
Councilor Z who is a lawyer? Of course, but you have to take
note of the exceptions where the lawyer councilor may be
barred from practicing law, if there is conflict of interest.
Problem
The Sangguniang Panlungsod (SP) of Politika City is
composed of X, the Vice-Mayor/Prresiding Officer, 10
regular members (Councilors A-J), 2 ex officio members
(Liga ng mga Baranggay and SK Presidents).
A. What is the quorom of the SP of Politika City?
B. If Councilor A is on leave and Councilor B is
outside the country, whar is the quorom of the
SP of Politika City?
C. How many votes are required in order to
suspend Councilor C for disorderly behavior?
Quorom
La Carlota City vs. Rojo (2012):
“the entire membership must be taken into accounrt in
computing the quorom of the sangguniang panlalawigan, for
while the constitution merely states that ‘majority of each
House shall constitute a quorom,’ Section 53 of the LGC is
more exacting as it requires that the ‘majority of all
members of sanggunian. . . elected and qualified’ shall
constitute a quorom. The trial court should this have based
its determination of the existence of a quorom on the total
number of members of the Sanggunian without regard to the
filing of a leave of absence by Board Member Sotto.” (citing
Zamora vs. Caballero, 2004)
Going back to the problem –
A. For purposes of quorom, we include the Vice-Mayor
as presiding officer. That is the interpretation of the
Court citing Zamora vs. Caballero. Also, if you look
at the composition of the Sanggunian, it does
include the Vice-Mayor as the Presiding Officer.
B. If Councilor A is on leave or another councilor is
outside the country, the quorom of the sanggunian
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CONSTITUTIONAL LAW: “And whatever you ask in prayer, you will receive,if you have faith.” Matthew 21:22
in that case requires the determination of whether
we apply the same principle in the Avelino vs.
Cuenco case where one senator was outside the
country, the base for computing the quorom out of
the 24 senators will now be reduced to 23 because
one senator is outside the jurisdiction of the Senate
with regards to compulsory processes. Since our
compulsory processes cannot reach the Senator
who is outside the country, it does not make sense
to include him in the determination of quorom in the
Senate.
where one of your Senator is outside the country, the base of
your quorum is now 23 because one of them is outside the
jurisdiction of Senate is outside the compulsory process of
the court. Our court process cannot reach the senator
outside the country so it does not make sense to include him
in the determination of the Senate. We don’t apply that. Why?
Lacarlota City Case – distinction is unlike in Congress, it
says majority of each house. Whereas in the Code, it says
majority of “all the members of the Sangguinain, elected and
qualified”. So fixed ky ingon xa na majority of all members
regardless of where these members are. So with that
distinction, ingon ang sc we don’t apply the principle in
Avelino vs Cuenco because the Constitution uses the
phrase “majority of each house in determining the quorum.”
In the case of Sanggunian, “determined by all the members”.
But of course, the next question, how many votes are
required to suspend counselor c for disorderly behavior, then
of course how many votes required? 2/3 votes of all the
members so we get 2/3 of 13?
We can make use of concurring opinion of Justice Brion that
the Vice Mayor as presiding officer is a member of the
Sanggunian for the purposes of quorum only. For all other
purposes like discipline where there is a specific requirement
where it says “2/3 of all the members”, we don’t include the
Vice Mayor there to get 2/3 of the 10 counselors and 2
members ex oficio of the liga.
Of course that’s not from the majority opinion because it was
not necessary to determine the case of La Cralota. But of
course, Brion’s opinion is significant discussion for purposes
of determining whether presiding officer is considered
member for all purposes. For him, that’s just for quorum
determination.
Section 457: Sangguian Panlungsod as a legislative body
shall be composed of the City Vice Mayor as presiding
officer. Meaning kung ingon ka quorum – quorum of body.
Then if ingon nga the Sangguinan Panlungsod shall be
composed of … the city Vice Mayor shall be composed
of… then mau ni xa ang composition. But when you say,
who are the members? The regular sanggunian members
and the liga ex official members are the members. So you
have 2 compositions there: 1. The vice mayor as presiding
officer and all others as members, so daw accdg to brion, 2/3
of all members, then 2/3 of all presiding officer. But of course,
that’s Brion, we are still to wait for the confirmation of the SC
when that really is the issue in the particular case.
Local Legislations:
 Basic questions in the bar would be about
distinctions between ordinance and resolution
 Veto we discussed that already
 Can Punong Barangay exercise veto power? May a
local chief executive exercise veto power?
o Local chief executive can veto on grounds of
ultra vires and prejudicial to public welfare.
o All local chief executive has veto power
EXCEPT the Punong Barangay. The latter
does not have veto power since in LGC of
1991, it omitted Punong Barangay from
officials having veto power.
o Item veto is allowed. Those items which are
not vetoed shall be effective and those
items not vetoed unless over ridden by
required number of votes by Sangguinan
shall not take effect.
o Exercise of veto power by lce may be
exercised only once.
 Then we go to Sections 113 and 114 of IRR for
effectivity of ordinance because this is more
expansive than what you see in the code. In the
code, it is so general. Only thing you will see is
ordinances that carry penalties will have to be
published. But irr more detailed in requirement of
publication.
Initiative and Referendum
 “just a reading matter there class”
FERNANDEZ, CALAM, BARING, SACARES, PABUAYA,
GENERALE, DIONALDO, DIN, ALBANO, YAP,
FERNANDEZ, OBESO, EMBOY, MORALES, YNTIG,
DIONEN, YANO, MALIGMAT
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