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I. HISTORY AND EVOLUTION OF LOCAL GOVERNMENT UNITS
A. Introduction
B. Pre-Spanish Times
b. 1 The Sumakwel Code
In 1212, after fleeing from the oppressive regime of Datu Makatunaw in
Borneo, 10 datus set up their own tribal colonies in the Visayan Islands. One of
them, Datu Sumakwel, established on the Island of Panay the Confederation of
Madiaas and its constitution, the Code of Maragtas or the Code of Sumakwel.
The Code of Sumakwel was considered among the first Filipino laws enacted
before the Pre-Hispanic times. It consisted of 10 articles, mainly focusing on
punishment for laziness.
An American historian, Paul Morrow debunks the Sumakwel Code as
nothing more than the product of Guillermo Cuino’s imagination. Cuino was the
first person to write about the Code Sumakwel in an essay in 1858 wherein he
claimed to have translated the Code from an ancient Filipino document.
However, Cuino presented no other proof other than his dubious essay.
Nevertheless, Paul Morrow laments, much of the Filipino education system to
this day still preaches the Sumakwel Code as gospel historical truth.
b. 2 The Code of Kalantiaw
Datu Kalantiaw was among the ancient Visayans who built a kingdom
with its own tribal code known as the Code of Kalantiaw, supposedly around
1150. It contains 18 articles, which consists mainly of punishment for criminal
acts ranging from the traditional ones such as homicide, theft and nonpayment
of debts to the bizarre and superstitious such as disrespect for revered trees or
killing black cats during the new moon. The Code of Kalantiaw also has
feudalistic overtones such as obligating those with the beautiful daughters to
give them up to the sons of chiefs as well as providing special punishment for
those who commit particular crimes against the tribal headmen as stated in the
Code.
Punishments for the crimes stated in the Code are cruel by today’s
standards; for example, those who sing while traveling by night are beaten for
two days while those who commit homicide and theft are condemned to death
by being drowned in the river or in boiling water.
In 1968, William Henry Scott, another American historian revealed the Code
of Kalantiaw as an outright hoax perpetuated by forger Jose Marco. Marco gave
the Philippine Library and Museum as ancient document claiming to be the
Code of Kalantiaw in 1912. The supposed Code and Marco’s claims on how he
obtained the ancient document had too many discrepancies and anomalous
reference to historical facts that could not have existed during the time of the
Code’s supposed existence. Only recently have a few historians such as Sonia M.
Zaide regarded the Code as a fraud but, as Paul Morrow says, the lie still lives
on.
C. The Spanish Era
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c. 1 Harty v. Mun of Victoria 13 Phil. 152
Facts: Monsignor Harty, an archbishop of the Roman Catholic Church
based in Manila, claims that his parish owns the plaza located in the municipality
of Victoria, Tarlac, claiming to be in peaceful possession of it for more than 60
years up to 1901. The defendant municipality replied that Victoria was
constituted into a town in 1855 and that the parish of Tarlac was established
many years afterwards; therefore the latter cannot claim title to the plaza.
Evidence seemed to show that the original owner, Casimiro Tanedo, of the land
wherein the plaza is located, donated said land to the church in general and not
to the town curate, since a permanent curate was not appointed in Victoria until
1867. However, from the moment the town was created, both the town curate
and the townspeople have enjoyed free access of the plaza. Still, Monsignor
Harty claims the parish of Tarlac owns the plaza on the grounds of 1)
prescription and 2) that the act of the curates and the gobernadorcillos of
planting fruit trees and plants on the plaza constituted private ownership.
Held: Monsignor Harty’s contentions are incorrect. Reasons:
1. It was a Philippine custom then that upon the establishment of a new
town, a large tract of land is always reserved in its center for the creation of a
plaza. Before Victoria became a town it was a mere barrio. It must be assumed
that the principal residents of Victoria wanted to have a public plaza should their
barrio be converted into a town. Therefore, even before Victoria became a town,
the land now in dispute was always intended to be a public plaza.
2. There was no sufficient proof that the late Casimiro Tanedo intended
to donate the portion of the land intended to be a public plaza to the church in
general
3. It has been fully proven that the plaza has always been used by the
people of Victoria from the moment the town was created
4. Plazas destined for public use are not subject to prescription (Art.
1936, the Old Civil Code)
5. Planting of fruit trees by the curates, etc. do not constitute an act of
private ownership but either evidence of public use or as embellishments for the
benefit of the townspeople.
c. 2 Rubi v. Provincial board of Mindoro 39 Phil. 660
Facts: Rubi and his fellow Manguianes filed an application for habeas
corpus on the ground that they were being deprived of their liberty by the
provincial officials of Mindoro. Rubi claimed they were being held against their
will at a reservation in Tigbao, Mindoro while one Dabalos was imprisoned for
having run away from the reservation. The provincial officials of Mindoro
however, countered that they were authorized under section 2145 of the
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Administrative Code of 1917 to implement measures for the advancement of the
non-Christian people of Mindoro by obliging them to live in one place in order to
educate them.
Held: The Supreme Court ruled in favor of the provincial officials of
Mindoro on the grounds that:
1. They were merely exercising the police power of the state for a lawful
purpose and through lawful means, which can validly limit the exercise of Civil
liberty. The Supreme Court cited past legislation implemented in the Philippines
which justified the placing in a reservation of the Manguianes such as:
a. Book 6, Title 3 – A compilation of laws implemented during the
Spanish forcing the Indios to leave poblaciones (communities) or reducciones in
order to instruct them to the Catholic faith and enable them to live in a civilized
manner.
b. Decree of the Governor-General of January 14, 1881- Decree ordering
the Indios to be governed by the common law and not allowing them, unless
with absolute necessity, to change their residence.
c. Letter of Instructions by President McKinley – Uncivilized tribes are
allowed to keep their tribal governments, subject to regulation by the Americans.
d. The Philippine Bill of 1902 – The Philippine Commission (which
composed ½ of the Philippine Legislature, the other being the Philippine
Assembly) was given exclusive jurisdiction over the territory inhabited by the
Moros and other non-Christian tribes of the Philippines
e. The Jones Law
2. Although the Maguianes were labeled as “non-Christian,” the intent
of the law was not to refer to any particular religions or geographical
discrimination but is predicated on the lack of civilization by them, which the
measure implemented by the provincial officials of Mindoro intended to correct.
3. The measure implemented was a valid delegation of legislative power
by the Philippine legislature as it was done in accordance with Administrative
Code of 1917
c.3 Roman Catholic Bishop of Kalibo vs Burungua
c.4 The Maura Law
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Queen Regent Maria Cristina of Spain, upon the recommendation of
Colonial Minister Antonio Maura, promulgated the Royal Decree of May 19,
1893 which provided for an autonomous local government in the Philippines.
Under the Maura Law there was constituted a Municipal Tribunal of five, the
captain and 4 lieutenants. It was given charge of the active work of governing the
municipality, such as administration of public works, etc. and the details of
taxation. In addition, each of its members was required to have special
qualifications. These positions were honorary. The term of office was 4 years. The
officers, together with 2 substitutes, were elected by 12 delegates of the
principalia. The principalia was composed of all persons who has held certain
offices (such as cabeza de barangay or former captains) or who has paid a land
tax of P50. The Governor General and the provincial governor retained
disciplinary jurisdiction over the council and its individual members, the
Provincial Board also had supervision of the municipal council (Malcolm, Gov’t.
of the Philippines Islands, pp. 69-71, Document 362, The Maura Law of 1893)
c. 5 The Treaty of Paris
The Treaty of Paris officially ended the Spanish-American War of 1898.
It was ratified by Spain and the United States on December 10, 1898. It contained
17 articles, important provisions including:
Art. 1 – Relinquishment by Spain of its claim of sovereignty and title to
Cuba. Art. 2 – Cession to the U.S. of the islands of Puerto Rico and Marianas. Art.
3 – Cession to the U.S. of the Philippines for the sum of $20 million. Art. 9 –
Allowing Spanish subjects which are natives of the Philippines to remain in the
Philippines if they so desire. The civil rights and political status of the native
inhabitants of the territories hereby ceded to the U.S. shall be determined by
Congress. Art. 11 – Relinquishment of all civil and criminal jurisdictions over all
territories ceded. Art. 12 – Provides for rules on deciding judicial proceedings
pending at the time of the ratification of the treaty.
c. 5.1 Duarte vs Dade 32 Phil 36
c. 6 Cruz vs Secretary of Environment and Natural Resources
D. The American Period
d.1 US Colony -1901 Wiliam Howard Taft was the first Governor
General
d.2 Description of American Governance (see Duarte vs Dade)
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d.3 The Jones Law
The Jones Law of 1893 was virtually an American-made constitution
providing for a complete form of semi-autonomous government in the
Philippines. It defined government functions into an executive to be appointed
by the U.S. President with the consent of the Senate, who was called the
American Governor-General in the Philippines. The legislative power was vested
in an elective bicameral/legislature – a Senate and a House of Representatives.
The judicial power was exercised by the Supreme-Court and other lower courts,
with Filipino and American justices. The Jones Law also extended the Bill of
Rights, defined Filipino citizenship and provided for other safeguards and
restrictions.
d.4 Hares-Hawes Cutting Bill of 1932 promised independence
d.5 1935 Constitution was approved
d.6 Tydings – Mcduffie Act
d.1 Commonwealth Govt under President M. Quezon
The bulk of the Jones Law comprised mainly of defining the executive,
legislative and judicial powers of the government.
E. The Japanese Occupation
e.1 Invasion on Dec 8, 1941
e.2 Gen MacArthur retreats to Corregidor
e.3 US and Filipino soldiers surrendered April 9, 1942
e.4 Topacio ngeles, 76 Phil. 12
e.1 Topacio Nueno Angeles, 76 Phil. 12
Facts: Jose Topacio Nueno and 3 other petitioners ran for and
eventually obtained seats in the Municipal Board of Manila in 1940. World War II
and the subsequent Japanese occupation however took place. After the war, 6
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new board members were appointed by the President. Nueno, et. al. claimed that
the appointment was null and void because 1) their term of office had not
expired due to the world war and 2) even if 1) were not true, they still had the
right to hold over their officers until their new successors were elected and
qualified.
Held: Nueno and his goons were incorrect. Reasons:
1) The word “term” is different from “tenure.” There
is no law which allows the extension of terms of office by reason of war. 2) As for
tenure, the same may be shortened or extended for various reasons, such as the
death of the incumbent or as otherwise provided by law. The principle of the
right to hold over may validly extend the tenure of office. However, Nueno, et.
al. cannot invoke this right because under 16 (a) of the Commonwealth Act, the
President has the discretion of appointing temporary board members until duly
elected board members can be qualified.
e.5 The Hukbalahap and Guerilla movement, 1942
e.6 Return of Gen MacArthur, October 20, 1994
e.7 Liberation of Philippines by US from Japan – July 4, 1945
F. The Post War Years
f. 1 R.A. 2264, as amended – The Local Autonomy Act
Entitled, “An Act Amending the Laws governing Local Governments
by Increasing their Autonomy and Reorganizing the Provincial Governments,”
the Act provides for, among other things: Procedure in establishing the
provincial, city, municipal and regularly organized municipal district budgets for
each fiscal year, taxation sources; appropriation of funds for the general welfare
of the public; grant of the power of eminent domain; composition of the
provincial board; qualifications of members of the provincial board, governors,
vice-governors, mayors and vice-mayor; appointment power of provincial
governor, city mayor and municipal mayor; and assignment of other powers to
the provincial board, municipal board or city councils. Any fair and reasonable
doubt as to the interpretation of the Local Autonomy Act shall be resolved in
favor of the local government and shall be presumed to exist.
f. 2 R.A. 2370 – The Barrio Charter Act
“Barrios” are units of municipalities or municipal districts in which they
are located. They are quasi-municipal corporations endowed with such powers
as herein provided in said Act for the performance of particular government
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functions to be exercised by and through their respective barrio governments in
conformity with law.
Barrios may be created or its name changed by a petition of the majority
of voters in the areas affected. They may sue and be sued and may be deal with
any real or personal property in the manner provided by law.
No barrio may be created if its population is less than 500 people or out
of chartered cities, or poblaciones of municipalities.
The Act also provides for the barrio council headed by the barrio
lieutenant. The barrio council shall meet with the qualified voters of the barrio at
least once a year in a barrio assembly to discuss, among others, election of new
officers, raising of funds and adopt measures for the welfare of the barrio. The
Act also provides for the qualifications of the barrio council members and their
powers and responsibilities, such as the taxation power and its sources.
f. 3 R.A. 3590 – Revised Barrio Charter Act
This Act is essentially the same as its predecessor, with the following
pertinent amendments;
1) A plebiscite may be called to decide on the recall of any member of the
barrio council member or approve any budgetary, supplement appropriations or
special tax ordinances.
2) Renaming the barrio lieutenant as barrio captain
3) Right of succession in case of vacancy in the barrio captain position (there is
no vice-barrio captain in both Acts).
4) The municipal mayor shall have power of supervision over barrio officials\
5) Procedure in barrio council, such as holding of meetings every month
6) Effectively of barrio ordinances (unless otherwise, after 60 days after its
passage or 15 days after its confirmation in a plebiscite)
f. 4 R.A. 5185 – The Decentralization Act of 1967
This Act further strengthens the autonomous powers of local
governments by providing for the following pertinent provisions:
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1) Provincial and city governments are empowered to undertake field
agricultural work and rural health work whenever deemed to be necessary to
assist in national programs or services.
2) Appointment of heads, assistant heads of local officers and their
subordinates 3) Suspension and removal of elective local
officials (grounds: disloyalty to RP, dishonesty, oppression and misconduct in
the office)
4) Restriction in practice of law by members of provincial, city or
municipal board 5) Succession to office of vice-governor and vice-
mayor.
6) Filling of special vacancies in local legislative bodies.
7) Filling of elective officers in newly created and newly classified
provinces, cities, municipalities or municipal districts
8) List of actions of provincial, city and municipal officials and
provincial boards declared immediately effective.
9) Certain duties and powers of local chief executives not to be subject
to direction and review of any national official
10) Release and apportionment of certain government funds
11) Creation of following positions: provincial
engineer, city public works official, provincial attorney and city legal officer
12) Creation of Joint Local Government Reform Commission (for
continuing studies on local autonomy of Local Government and prepare local
government code)
G. The Martial Law Epoch
g. 1 The Plaza Miranda Bombing (Lansang vs Garcia)
g. 2 P.D. 145
This decree amended Section 2 of R.A. 2264 or Local Autonomy Act
because the said section was ineffective in carrying out the Secretary of Finance’s
power to suspend the effectively of any local tax ordinance which in his opinion
is unjust, excessive or oppressive or contrary to national policy. Said decree
improves this situation by giving the local legislative body either 30 days to
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modify the tax ordinance or appeal the suspension order of the Secretary of 1) Operative principles of decentralization
Finance in a court of competent jurisdiction; otherwise, the tax ordinance or its
part of parts in question is considered revoked 2) Authority by Congress or any political subdivision to create,
divide, merge, abolish or alter boundaries
g. 3 B.P. 337 – The Local Government Code of 1983
3) Emphasis on general welfare and imposition of basic services and
This Code provides for the pertinent following provision: facilities on political subdivisions

1) General powers and attributes of local government units. 4) Reclassification of lands

2) Powers and restrictions of Local Government Units to: Create sources of 5) Authority of LGUs to secure and negotiate grants
revenue; eminent domain; closure of roads; suability; enter into contracts; convey
property; limited non-liability for damages. 6) Creation of Local Prequalification, Bids and Awards Committee

3) National supervision over local governments 7) Other procedural and technical changes

4) Relationship between Province-city, province-municipality; city-barangay,

municipality-barangay; city-barangay; public officials-LGUs
5) Fiscal matters; Expenditure of government funds; preparation of budget
6) Requirement and prohibitions of local gov’t. officials; vacancy and succession
7) Qualification and election of local gov’t. officials; vacancy and succession
8) Recall, suspension and removal of elective officials
9) Creation of local school boards
10) Personnel Administration
11) Settlement of municipal and barangay boundary disputes
12) Details on barangay and barangay officials; municipal and municipal
officials; city and city officials; province and province officials
II. PRIMARY LAW AND GENERAL PROVISIONS
A. Read Article X, Section 9 and Article XVIII, 1987 Constitution
a.1 Article X, Section 10 – No province, city, municipality or barangay
may be created, divided, merged abolished or its boundaries substantially
altered, except in accordance with the criteria established in the local government
code and subject to approval by a majority of the votes cast in a plebiscite in the
political units directly affected.
NOTE: Read the whole of Article X of the 1987 Constitution as well, as it refers to
local, governments in general. It contains 21 sectors. Also Prof. Ulep must have
meant Season 10 and not 5 in his outline.
a. 2 Article XVIII, Sec. 8 - Unless otherwise provided by Congress, the President
may constitute the Metropolitan Authority to be composed of the heads of all
local government units comprising the Metropolitan Manila Area.
Article XVIII, Sec. 9 – A sub-province shall continue to exist and operate until it is
converted into a regular province or its component municipalities are reverted to
the mother province.

NOTE: There’s no point in reading all other sections of Article XVIII. See for
yourself.
H. The Present
Principles of Decentralization (Purpose)
h. 1 R.A. 7160 – The Local Government Code of 1991. From the LGC of
1983, the following pertinent provisions were added: Sarcos vs Castillo 26 Scra 853

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Ferres vs Bautista 760 Scra 652
B. Read R.A. 7924(Metropolitan Manila Development Authority)
This Act states the policy of the State to treat Metro Manila as a special
development and administrative region and certain basic services affecting or
involving Metro Manila as metro wide services more efficiently and effectively
planned, supervised and coordinated by a development authority as created
herein, without prejudice to the autonomy of the affected LGU. Among its
pertinent provisions are:
1) Scope of MMDA (metro-wide) services: Development planning;
transport and traffic management; solid waste disposal and
management; Flood control; Urban renewal; zoning and land use
planning; health sanitation; Urban protection and pollution control;
pu8blic safety;
2) Creation of Metro Manila Council (MMC) consisting of all mayors
in Metro Manila
3) Powers and Functions of MMDA, mainly to formulate, coordinate,
and regulate implementation of above metro-wide services
4) Functions of MMC, mainly to approve projects of MMDA
5) Function of MMDA chairman: Execute policies of MMC and
manage operations of MMDA; appointment power; prepare budget
of MMDA; disciplinary power on subordinates; ex officio board
member (or his representative) of departments related to activities
of MMDA such as DOTC, DOH, etc.
6) Institutional linkages of MMDA: NEDA, NGOs , accredited
people’s organizations
b. 1 MMDA v. Bel-Air Assn, Inc., 328 SCRA 836
Facts: Pursuant to R.A. 7924 which created the MMDA, MMDA issued a
notice to the Bel-Air Village Assoc. (BAVA) that the former will open Neptune
Street owned by the latter in Bel-Air Village, as well as tear down a perimeter
wall owned by said village. Both actions, the MMDA said, is necessary for the
decongestion of traffic along the said areas.
BAVA petitioned the trail court and later on the Court of Appeals to
enjoin the implementation of MMDA’s proposed actions. BAVA’s petition was
granted. The MMDA thus now seeks recourse with the Supreme Court, claiming
among others that its proposed actions were in the exercise of the police power.
Held: MMDA is wrong. The reason is that R.A. 7924 did not expressly
or impliedly delegate any police power to the MMDA, most notably the power to
enact ordinances necessary for the implementation of its plans, programs and
projects aimed at the delivery of metro-wide services in Metro Manila, without
diminution of the autonomy of the LGUs concerning purely local matters (See. 2, R.A.
7924) MMDA’s proposed actions were not under the authority of any ordinance
(What’s funny is that the MMC, the governing board of the MMDA, is composed
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of the different mayors of Metro Manila, and these guys, as mayors per se, have
the power or at least, the political will to enact ordinances)
b.2 MMDA v. Garin, 456 SCRA 176, GR 130230 (2005)
Facts: The issue arose from an incident involving the respondent Dante O.
Garin, a lawyer, who was issued a traffic violation receipt (TVR) by MMDA and his
driver's license confiscated for parking illegally along Gandara Street, Binondo, Manila,
on August 1995.
Shortly before the expiration of the TVR's validity, the respondent addressed a
letter to then MMDA Chairman Prospero Oreta requesting the return of his driver's
license, and expressing his preference for his case to be filed in court. Receiving no
immediate reply, Garin filed the original complaint with application for preliminary
injunction, contending that, in the absence of any implementing rules and regulations,
Sec. 5(f) of Rep. Act No. 7924 grants the MMDA unbridled discretion to deprive erring
motorists of their licenses, pre-empting a judicial determination of the validity of the
deprivation, thereby violating the due process clause of the Constitution.
The respondent further contended that the provision violates the constitutional
prohibition against undue delegation of legislative authority, allowing as it does the
MMDA to fix and impose unspecified — and therefore unlimited — fines and other
penalties on erring motorists.  The trial court rendered the assailed decision in favor of
herein respondent.
Issue: WON MMDA, through Sec. 5(f) of Rep. Act No. 7924 could validly
exercise police power.
Held: Police Power, having been lodged primarily in the National Legislature,
cannot be exercised by any group or body of individuals not possessing legislative power.
The National Legislature, however, may delegate this power to the president and
administrative boards as well as the lawmaking bodies of municipal corporations or local
government units (LGUs). Once delegated, the agents can exercise only such legislative
powers as are conferred on them by the national lawmaking body.  
Our Congress delegated police power to the LGUs in the Local Government
Code of 1991. 15 A local government is a "political subdivision of a nation or state which
is constituted by law and has substantial control of local affairs." 16 Local government
units are the provinces, cities, municipalities and barangays, which exercise police power
through their respective legislative bodies.
Metropolitan or Metro Manila is a body composed of several local government
units. With the passage of Rep. Act No. 7924 in 1995, Metropolitan Manila was declared
as a "special development and administrative region" and the administration of "metro-
wide" basic services affecting the region placed under "a development authority" referred
to as the MMDA. Thus:
The MMDA is, as termed in the charter itself, a "development authority." It is
an agency created for the purpose of laying down policies and coordinating with the
various national government agencies, people's organizations, non-governmental
organizations and the private sector for the efficient and expeditious delivery of basic
services in the vast metropolitan area. All its functions are administrative in nature and
these are actually summed up in the charter itself
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* Section 5 of Rep. Act No. 7924 enumerates the "Functions and Powers of the Metro
Manila Development Authority." The contested clause in Sec. 5(f) states that the
petitioner shall "install and administer a single ticketing system, fix, impose and collect
fines and penalties for all kinds of violations of traffic rules and regulations, whether
moving or non-moving in nature, and confiscate and suspend or revoke drivers' licenses
in the enforcement of such traffic laws and regulations, the provisions of Rep. Act No.
4136 and P.D. No. 1605 to the contrary notwithstanding," and that "(f)or this purpose, the
Authority shall enforce all traffic laws and regulations in Metro Manila, through its traffic
operation center, and may deputize members of the PNP, traffic enforcers of local
government units, duly licensed security guards, or members of non-governmental
organizations to whom may be delegated certain authority, subject to such conditions and
requirements as the Authority may impose."
b.3 MMDA vs. Trackworks Rail Transit Advertising, Vending and
 
Facts: In 1997, the Government, through the Department of Transportation and
Communications, entered into a build-lease-transfer agreement (BLT agreement) with
Metro Rail Transit Corporation, Limited (MRTC) pursuant to Republic Act No. 6957
(Build, Operate and Transfer Law), under which MRTC undertook to build MRT3
subject to the condition that MRTC would own MRT3 for 25 years, upon the expiration
of which the ownership would transfer to the Government. In 1998, respondent
Trackworks Rail Transit Advertising, Vending & Promotions, Inc. (Trackworks) entered
into a contract for advertising services with MRTC. Trackworks thereafter installed
commercial billboards, signages and other advertising media in the different parts of the
MRT3.  In 2001, however, MMDA requested Trackworks to dismantle the billboards,
signages and other advertising media pursuant to MMDA Regulation No. 96-009,
whereby MMDA prohibited the posting, installation and display of any kind or form of
billboards, signs, posters, streamers, in any part of the road, sidewalk, center island,
posts, trees, parks and open space. After Trackworks refused the request of MMDA,
MMDA proceeded to dismantle the former’s billboards and similar forms of
advertisement.
 
Issue:  Whether or not MMDA has the power to dismantle, remove or destroy
the billboards, signages and other advertising media installed by Trackworks on the
interior and exterior structures of the MRT3.
 
Ruling: That Trackworks derived its right to install its billboards, signages and
other advertising media in the MRT3 from MRTC’s authority under the BLT agreement
to develop commercial premises in the MRT3 structure or to obtain advertising income
therefrom is no longer debatable. Under the BLT agreement, indeed, MRTC owned the
MRT3 for 25 years, upon the expiration of which MRTC would transfer ownership of the
MRT3 to the Government.
Considering that MRTC remained to be the owner of the MRT3 during the time
material to this case, and until this date, MRTC’s entering into the contract for
advertising services with Trackworks was a valid exercise of ownership by the former. In
fact, in Metropolitan Manila Development Authority v. Trackworks Rail Transit
Advertising, Vending & Promotions, Inc., this Court expressly recognized Trackworks’
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right to install the billboards, signages and other advertising media pursuant to said
contract. The latter’s right should, therefore, be respected.
It is futile for MMDA to simply invoke its legal mandate to justify the
dismantling of Trackworks’ billboards, signages and other advertising media. MMDA
simply had no power on its own to dismantle, remove, or destroy the billboards, signages
and other advertising media installed on the MRT3 structure by
Trackworks.  In Metropolitan Manila Development Authority v. Bel-Air Village
Association, Inc., Metropolitan Manila Development Authority v. Viron Transportation
Co., Inc., and Metropolitan Manila Development Authority v. Garin, the Court had the
occasion to rule that MMDA’s powers were limited to the formulation, coordination,
regulation, implementation, preparation, management, monitoring, setting of policies,
installing a system, and administration. Nothing in Republic Act No. 7924 granted
MMDA police power, let alone legislative power. 
The Court also agrees with the CA’s ruling that MMDA Regulation No. 96-009
and MMC Memorandum Circular No. 88-09 did not apply to Trackworks’ billboards,
signages and other advertising media. The prohibition against posting, installation and
display of billboards, signages and other advertising media applied only to public areas,
but MRT3, being private property pursuant to the BLT agreement between the
Government and MRTC, was not one of the areas as to which the prohibition applied.
b.4 MMDA vs Concerned Citizens pf Manila Bay
Facts: January 29, 1999, concerned residents of Manila Bay filed a complaint
before the RTC Imus, Cavite against several government agencies for the clean-up,
rehabilitation and protection of the Manila Bay/ The complaint alleged that the water
quality of Manila Bay is no longer within the allowable standards set by law (esp. PD
1152, Philippine environment Code).
DENR testified for the petitioners and reported that the samples collected from
the beaches around Manila Bay is beyond the safe level for bathing standard of the
DENR. MWSS testified also about MWSS efforts to reduce pollution along the bay.
Philippine Ports Authority presented as evidence its Memorandum Circulars on the study
on ship-generated waste treatment and disposal as its Linis Dagat project.
RTC ordered petitioners to Clean up and rehabilitate Manila Bay.
The petitioners appealed arguing that the Environment Code relate only to the
cleaning of the specific pollution incidents and do not cover cleaning in general. Raising
the concerns of lack of funds appropriated for cleaning, and asserting that the cleaning of
the bay is not a ministerial act which can be compelled by mandamus. CA sustained the
RTC stressing that RTC did not require the agencies to do tasks outside of their usual
basic functions.
Issue: (1) Whether PD 1152 relate only to the cleaning of specific pollution
incidents. (2) Whether the cleaning or rehabilitation of the Manila Bay is not ministerial
act of petitioners that can be compelled by mandamus.
Held: (1) The cleaning of the Manila bay can be compelled by mandamus.
Petitioners’ obligation to perform their duties as defined by law, on one hand, and how
they are to carry out such duties, on the other, are two different concepts. While the
implementation of the MMDA’s mandated tasks may entail a decision-making process,
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the enforcement of the law or the very act of doing what the law exacts to be done is
ministerial in nature and may be compelled by mandamus.
The MMDA’s duty in the area of solid waste disposal, as may be noted, is set
forth not only in the Environment Code (PD 1152) and RA 9003, but in its charter as
well. This duty of putting up a proper waste disposal system cannot be characterized as
discretionary, for, as earlier stated; discretion presupposes the power or right given by
law to public functionaries to act officially according to their judgment or conscience.
(2) Secs. 17 and 20 of the Environment Code include Cleaning in General
The disputed sections are quoted as follows:
Section 17. Upgrading of Water Quality.––Where the quality of water has deteriorated to a degree
where its state will adversely affect its best usage, the government agencies concerned shall take
such measures as may be necessary to upgrade the quality of such water to meet the prescribed water
quality standards.
Section 20. Clean-up Operations.––It shall be the responsibility of the polluter to contain, remove
and clean-up water pollution incidents at his own expense. In case of his failure to do so, the
government agencies concerned shall undertake containment, removal and clean-up operations and
expenses incurred in said operations shall be charged against the persons and/or entities responsible
for such pollution.
Sec. 17 does not in any way state that the government agencies concerned ought to confine
themselves to the containment, removal, and cleaning operations when a specific pollution incident
occurs. On the contrary, Sec. 17 requires them to act even in the absence of a specific pollution
incident, as long as water quality “has deteriorated to a degree where its state will adversely affect its
best usage.” This section, to stress, commands concerned government agencies, when appropriate,
“to take such measures as may be necessary to meet the prescribed water quality standards.” In fine,
the underlying duty to upgrade the quality of water is not conditional on the occurrence of any
pollution incident.
Note: The writ of mandamus lies to require the execution of a ministerial duty.
Ministerial duty is one that requires neither official discretion nor judgment.
b.5 MMDA v Viron Transport G.R. No. 170656 August 15, 2007
Facts: GMA declared Executive Order (E.O.) No. 179 operational, thereby
creating the MMDA in 2003. Due to traffic congestion, the MMDA recommended a plan
to “decongest traffic by eliminating the bus terminals now located along major Metro
Manila thoroughfares and providing more and convenient access to the mass transport
system.” The MMC gave a go signal for the project. Viron Transit, a bus company
assailed the move. They alleged that the MMDA didn’t have the power to direct
operators to abandon their terminals. In doing so they asked the court to interpret the
extent and scope of MMDA’s power under RA 7924. They also asked if the MMDA law
contravened the Public Service Act.
Another bus operator, Mencorp, prayed for a TRO for the implementation in a
trial court. In the Pre-Trial Order17 issued by the trial court, the issues were narrowed
down to whether 1) the MMDA’s power to regulate traffic in Metro Manila included the
power to direct provincial bus operators to abandon and close their duly established and
existing bus terminals in order to conduct business in a common terminal; (2) the E.O. is
consistent with the Public Service Act and the Constitution; and (3) provincial bus
operators would be deprived of their real properties without due process of law should
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they be required to use the common bus terminals. The trial court sustained the
constitutionality.
Both bus lines filed for a MFR in the trial court. It, on September 8, 2005,
reversed its Decision, this time holding that the E.O. was "an unreasonable exercise of
police power"; that the authority of the MMDA under Section (5)(e) of R.A. No. 7924
does not include the power to order the closure of Viron’s and Mencorp’s existing bus
terminals; and that the E.O. is inconsistent with the provisions of the Public Service Act.
MMDA filed a petition in the Supreme Court. Petitioners contend that there is
no justiciable controversy in the cases for declaratory relief as nothing in the body of the
E.O. mentions or orders the closure and elimination of bus terminals along the major
thoroughfares of Metro Manila. To them, Viron and Mencorp failed to produce any letter
or communication from the Executive Department apprising them of an immediate plan
to close down their bus terminals.
And petitioners maintain that the E.O. is only an administrative directive to
government agencies to coordinate with the MMDA and to make available for use
government property along EDSA and South Expressway corridors. They add that the
only relation created by the E.O. is that between the Chief Executive and the
implementing officials, but not between third persons.
Issues: 1. Is there a justiciable controversy? 2. Is the elimination of bus
terminals unconstitutional?
Held: Yes to both. Petition dismissed.
Ratio: 1. Requisites: (a) there must be a justiciable controversy; (b) the
controversy must be between persons whose interests are adverse; (c) the party seeking
declaratory relief must have a legal interest in the controversy; and (d) the issue invoked
must be ripe for judicial determination
It cannot be gainsaid that the E.O. would have an adverse effect on
respondents. The closure of their bus terminals would mean, among other things, the loss
of income from the operation and/or rentals of stalls thereat. Precisely, respondents claim
a deprivation of their constitutional right to property without due process of law.
Respondents have thus amply demonstrated a "personal and substantial interest
in the case such that [they have] sustained, or will sustain, direct injury as a result of [the
E.O.’s] enforcement." Consequently, the established rule that the constitutionality of a
law or administrative issuance can be challenged by one who will sustain a direct injury
as a result of its enforcement has been satisfied by respondents.
2. Under E.O. 125 A, the DOTC was given the objective of guiding
government and private investment in the development of the country’s intermodal
transportation and communications systems. It was also tasked to administer all laws,
rules and regulations in the field of transportation and communications.
It bears stressing that under the provisions of E.O. No. 125, as amended, it is
the DOTC, and not the MMDA, which is authorized to establish and implement a project
such as the one subject of the cases at bar. Thus, the President, although authorized to
establish or cause the implementation of the Project, must exercise the authority through
the instrumentality of the DOTC which, by law, is the primary implementing
and administrative entity in the promotion, development and regulation of networks of
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transportation, and the one so authorized to establish and implement a project such as the
Project in question.
By designating the MMDA as the implementing agency of the Project, the
President clearly overstepped the limits of the authority conferred by law, rendering E.O.
No. 179 ultra vires. There was no grant of authority to MMDA. It was delegated only to
set the policies concerning traffic in Metro Manila, and shall coordinate and regulate the
implementation of all programs and projects concerning traffic management, specifically
pertaining to enforcement, engineering and education.
In light of the administrative nature of its powers and functions, the MMDA is
devoid of authority to implement the Projectas envisioned by the E.O; hence, it could not
have been validly designated by the President to undertake the Project. MMDA’s move
didn’t satisfy police power requirements such as that (1) the interest of the public
generally, as distinguished from that of a particular class, requires its exercise; and (2) the
means employed are reasonably necessary for the accomplishment of the purpose and not
unduly oppressive upon individuals. Stated differently, the police power legislation must
be firmly grounded on public interest and welfare and a reasonable relation must exist
between the purposes and the means.
As early as Calalang v. Williams, this Court recognized that traffic congestion
is a public, not merely a private, concern. The Court therein held that public welfare
underlies the contested statute authorizing the Director of Public Works to promulgate
rules and regulations to regulate and control traffic on national roads.
Likewise, in Luque v. Villegas, this Court emphasized that public welfare lies
at the bottom of any regulatory measure designed "to relieve congestion of traffic, which
is, to say the least, a menace to public safety." As such, measures calculated to promote
the safety and convenience of the people using the thoroughfares by the regulation of
vehicular traffic present a proper subject for the exercise of police power.
Notably, the parties herein concede that traffic congestion is a public concern
that needs to be addressed immediately. Are the means employed appropriate and
reasonably necessary for the accomplishment of the purpose. Are they not duly
oppressive?
De la Cruz v. Paras- Bus terminals per se do not, however, impede or help
impede the flow of traffic. How the outright proscription against the existence of all
terminals, apart from that franchised to petitioner, can be considered as reasonably
necessary to solve the traffic problem, this Court has not been enlightened
In the subject ordinances, however, the scope of the proscription against the maintenance
of terminals is so broad that even entities which might be able to provide facilities better
than the franchised terminal are barred from operating at all.
Finally, an order for the closure of respondents’ terminals is not in line with the
provisions of the Public Service Act.
Consonant with such grant of authority, the PSC (now the ltfrb) was
empowered to "impose such conditions as to construction, equipment, maintenance,
service, or operation as the public interests and convenience may reasonably require" in
approving any franchise or privilege. The law mandates the ltfrb to require any public
service to establish, construct, maintain, and operate any reasonable extension of its
existing facilities.
b.5 Francisco vs. Fernando  Regional Government. The executive power is conferred on the Regional
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Facts: Petitioner Ernesto B. Francisco, Jr. (petitioner), as member of the
Integrated Bar of the Philippines and taxpayer, filed this original action for the issuance
of the writs of Prohibition and Mandamus. Petitioner prays for the Prohibition writ to
enjoin respondents Bayani F. Fernando, Chairman of the Metropolitan Manila
Development
Authority (MMDA) and the MMDA (respondents) from further implementing
its “wet flag scheme” (“Flag Scheme”). Petitioner contends that the Flag Scheme:
(1) has no legal basis because the MMDA’s governing body, the Metro Manila Council,
did not authorize it; (2) violates the Due Process Clause because it is a summary
punishment for jaywalking; (3) disregards the Constitutional protection against cruel,
degrading, and inhuman punishment; and (4) violates “pedestrian rights” as it exposes
pedestrians to various potential hazards.
 
Issue: Whether or not the petition was valid.
Held: The Court dismissed the petition. A citizen can raise a constitutional
question only when (1) he can show that he has personally suffered some actual or
threatened injury because of the allegedly illegal conduct of the government; (2) the
injury is fairly traceable to the challenged action; and (3) a favorable action will likely
redress the injury. On the other hand, a party suing as a taxpayer must specifically show
that he has a sufficient interest in preventing the illegal expenditure of money raised by
taxation and that he will sustain a direct injury as a result of the enforcement of the
questioned statute. Petitioner meets none of the requirements under either category. 
Nor is there merit to petitioner’s claim that the Court should relax the standing
requirement because of the“transcendental importance” of the issues the
petition raises. As an exception to the standing requirement, the transcendental
importance of the issues raised relates to the merits of the petition. Thus, the party
invoking it must show, among others, the presence of a clear disregard of a constitutional
or statutory prohibition. Petitioner has not shown such clear constitutional or statutory
violation.
On the Flag Scheme’s alleged lack of legal basis, we note that
all the cities and municipalities within the MMDA’s jurisdiction, except
Valenzuela City, have each enacted anti-jaywalking ordinances or traffic
management codes with provisions for pedestrian regulation. Such fact serves as
sufficient basis for respondents’ implementation of schemes, or ways and means, to
enforce the anti-jaywalking ordinances and similar regulations. After all, the MMDA is
an administrative agency tasked with the implementation of rules and regulations enacted
by proper authorities. The absence of an anti-jaywalking ordinance in Valenzuela City
does not detract from this conclusion absent any proof that respondents implemented the
Flag Scheme in that city.
C. Read R.A. 6732 (Organic Act for ARMM [Autonomous Region in Muslim
Mindanao])
Mindanao, encompassing 13 provinces and 9 cities, through a plebiscite
for that purpose. This government shall operate within the framework of the
Governor. The legislative power is conferred in the Regional Assembly. The
Supreme Court, the Court of Appeals and the lower courts shall continue to
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exercise their power as mandated in the Constitution; however, there shall be a
Shari’ah Appellate Court which shall also be learned in Islamic law and
jurisprudence. The Shari’ah Court’s decisions shall be final and executory subject
to the original and appellate jurisdiction of the Supreme Court. Tribal Appellate
Courts for cases dealing with tribal codes shall also be established.
The Regional Government shall have fiscal autonomy or the power to
create its own sources of revenue, subject to the limitations of the Constitution
and this Organic Act. The Organic Act also provides for: Protection of ancestral
lands, ancestral domain and indigenous cultural communities; urban and rural
planning and development; power to enact laws pertaining to the national
economy and patrimony responsive to the needs of the Regional Government;
public order and security; education, science and technology and sports
development; social justice and services; and power to amend or revise the
Organic Act, either by Congress or by the Regional Assembly, the latter being
subject to approval by Congress.
c. 1 Abbas v. COMELEC, 179 SCRA 287
Facts: Datu Firdausi Abbas, et.al. challenged the constitutionality of
R.A. 6734 on the following grounds:
1) R. A. 6734 conflicts with the Tripoli Agreement (what conflicts the
case doesn’t say)
2) R. A. 6734 provides for the unconditional creation of the ARMM
and not through the mode of a plebiscite as provided in the Constitution
3) The Constitution provides that ARMM shall be approved by a
majority of votes cast in a plebiscite by all voters residing in the provinces and
cities affected, but R.A. 6734 says “by a majority or votes cast by the constituent
units in a plebiscite and only those provinces and cities where a majority of votes
cast in favor of the Organic Act shall be included in the Autonomous Region.
R.A. 6734 thus conflicts the Constitution
4) R. A. 6734 includes provinces and cities which do not have the
same cultural and historical heritage and other relevant characteristics needed
for admission to the ARMM
5) R. A. 6734 violates constitutional guarantee on freedom of exercise
of religion as some its provisions run counter to the Koran
6) The creation of an Oversight Committee to supervise the transfer of
power to the ARMM is contrary to the constitutional mandate that the creation of
the autonomous region hinges solely on the result of the plebiscite
7) R. A. 6734 says “…that only the provinces and cities voting
favorably in such plebiscite shall be included in the ARMM. The provinces and
cities which in the plebiscite do not vote for inclusion in the Autonomous Region
shall remain in the existing administrative regions: Provided however, that the
President may, by administrative determination, merge the existing regions. This
provision, Abbas claims, is contrary to the Constitutional mandate that, “No
province city, municipality or barangay may be created, divided, merged,
abolished or its boundary substantially altered, except in accordance with the
criteria established with the local government code and subject to approval by a
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majority of the votes cast in a plebiscite in the units directly affected.” (Art. 10,
Sec. 10, 1987 Constitution)
Held: Abbas is wrong. Reasons:
1) R. A. 6734 as an enactment of Congress, is superior to the Tripoli
Agreement, being a subsequent law to the Tripoli Agreement (though in my
opinion it wouldn’t matter if R. A. 6734 was prior to the Tripoli Agreement)
2) The transitory provisions of R. A. 6734 does provide for a plebiscite
(1 guess nobody reads the transitory provisions)
3) The framers of the Constitution must have intended that the
majority of votes must come from each of the constituent units and not all the votes
of the provinces and cities (I couldn’t understand how the justices arrived at this
conclusion)
4) It is not for the Court to decide on the wisdom of the law
concerning the inclusion of provinces and cities which Abbas claims should not
be included in a plebiscite
5) There is no actual controversy yet as to any violation of freedom of
religion, only a potential one
6) The creation of an Oversight Committee is merely procedural and
in fact will aid in the timely creation of the ARMM
7) The power of the President to merge administrative regions is
inherent in his power of general supervision over local governments. Besides,
administrative regions are not territorial or political regions. Examples of
administrative regions are Regions I to XII and the NCR
c. 2 Chiongbian v. Orbos, 245 SCRA 253
Facts: In 1990, President Aquino issued E. O. No. 439 wherein she
picked certain provinces and cities, some of which did not participate in the
inclusion to the ARMM, to the reorganized to new regions (e.g. Misamis
Occidental, which did not participate in the ARMM plebiscite, was transferred
from Region X to Region XI). Aquino issued said E. O. pursuant ant R. A. 6734,
which says: “…That only the provinces and cities voting favorably in suitable
plebiscites shall be included in the ARMM. The provinces and cities which
plebiscite no vote for inclusion in the Autonomous Region shall remain in the
existing administrative regions. Provided however, that the President may, by
administrative determination, merge existing regions. James Chiongbian, a
Sultan Kudarat congressman, filed a certiorari prohibition to protest the E. O.,
claiming that President Aquino had no power to reorganize administrative
regions because said provision in R. A. 6734 1) also states that provinces, cities
which in the plebiscite do not vote for inclusion in the Autonomous Region shall
remain the existing administrative regions 2) the Constitution does not expressly
provide the President the power to merge administrative regions; in fact Art. 10,
Sec. 10 of the Constitution (see II of your outline) prohibits this and 3) even
granting that the President is allowed to merge administrative regions, there is
law setting standard on how it is to be done.
Held: Chiongbian is wrong. Reasons:
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1) The sentence “…shall remain in the existing administrative regions,
is further qualify by the phrase, “Provided however that the
President may, by administration determination merge the existing
regions.”
2) Past legislation, particularly R. A. 5345 issued in 1968, authorized
the President the help of a Commission on Reorganization, to
reorganize the different example departments including
administrative regions. This shows that traditional power to
reorganize administrative regions has always been lodged in the
President
3) The standard is found in R. A. 5345 which states “to promote
simplicity, economic efficiency in the government to enable it to
pursue programs consistent with no goals for accelerated social and
economic development and to improve service transaction of the
public business.”
c.3 Kida vs Senate of the Philippines
G.R. No. 196271 October 18, 2011
Facts: On August 1, 1989 or two years after the effectivity of the 1987
Constitution, Congress acted through Republic Act (RA) No. 6734 entitled "An Act
Providing for an Organic Act for the Autonomous Region in Muslim Mindanao.” The
initially assenting provinces were Lanao del Sur,Maguindanao, Sulu and Tawi-tawi.RA
No. 6734 scheduled the first regular elections for the regional officials of the ARMM on
a date not earlier than 60 days nor later than 90 days after its ratification.
Thereafter, R.A. No. 9054 was passed to further enhance the structure of ARMM under
R.A. 6734. Along with it is the reset of the regular elections for the ARMM
regional officials to the second Monday of September 2001. RA No. 9333was
subsequently passed by Congress to reset the ARMM regional elections to the 2 ndMonday
of August 2005, and on the same date every 3 years thereafter. Unlike RA No. 6734 and
RA No. 9054, RA No. 9333 was not ratified in a plebiscite.
Pursuant to RA No. 9333, the next ARMM regional elections should have been
held on August 8, 2011. COMELEC had begun preparations for these elections and had
accepted certificates of candidacies for the various regional offices to be elected.But
onJune 30, 2011, RA No. 10153 was enacted, resetting the ARMM elections to May
2013, to coincide with the regular national and local elections of the country.With the
enactment into law of RA No. 10153, the COMELEC stopped its preparations for the
ARMM elections.
Several cases for certiorari, prohibition and mandamus originating from
different parties arose as a consequence of the passage of R.A. No. 9333 and R.A. No.
10153 questioning the validity of said laws.
On September 13, 2011, the Court issued a temporary restraining order
enjoining the implementation of RA No. 10153 and ordering the incumbent elective
officials of ARMM to continue to perform their functions should these cases not be
decided by the end of their term on September 30, 2011.
The petitioners assailing RA No. 9140, RA No. 9333 and RA No. 10153 assert
that these laws amend RA No. 9054 and thus, have to comply with the supermajority vote
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and plebiscite requirements prescribed under Sections 1 and 3, Article XVII of RA No.
9094 in order to become effective.
The petitions assailing RA No. 10153 further maintain that it is unconstitutional
for its failure to comply with the three-reading requirement of Section 26(2), Article VI
of the Constitution. Also cited as grounds are the alleged violations of the right of
suffrage of the people of ARMM, as well as the failure to adhere to the "elective and
representative" character of the executive and legislative departments of the ARMM.
Lastly, the petitioners challenged the grant to the President of the power to appoint OICs
to undertake the functions of the elective ARMM officials until the officials elected under
the May 2013 regular elections shall have assumed office. Corrolarily, they also argue
that the power of appointment also gave the President the power of control over the
ARMM, in complete violation of Section 16, Article X of the Constitution.
Issue: 1) Whether or not the 1987 Constitution mandates the synchronization
of elections 2) Whether or not the passage of RA No. 10153 violates the provisions of the
1987 Constitution
Held: Court dismissed the petition and affirmed the constitutionality of R.A.
10153 in toto. The Court agreed with respondent Office of the Solicitor General (OSG)
on its position that the Constitution mandates synchronization, citing Sections 1, 2 and 5,
Article XVIII (Transitory Provisions) of the 1987 Constitution. While the Constitution
does not expressly state that Congress has to synchronize national and local elections, the
clear intent towards this objective can be gleaned from the Transitory Provisions (Article
XVIII) of the Constitution, which show the extent to which the Constitutional
Commission, by deliberately making adjustments to the terms of the incumbent officials,
sought to attain synchronization of elections.
The objective behind setting a common termination date for all elective
officials, done among others through the shortening the terms of the twelve winning
senators with the least number of votes, is to synchronize the holding of all future
elections whether national or local to once every three years. This intention finds full
support in the discussions during the Constitutional Commission deliberations.
Furthermore, to achieve synchronization, Congressnecessarilyhas to reconcile the
schedule of the ARMMs regular elections (which should have been held in August 2011
based on RA No. 9333) with the fixed schedule of the national and local elections (fixed
by RA No. 7166 to be held in May 2013).
In Osme v. Commission on Elections, the court thus explained:
It is clear from the aforequoted provisions of the 1987 Constitution that the
terms of office of Senators, Members of the House of Representatives, the local officials,
the President and the Vice-President have been synchronized to end on the same hour,
date and year noon of June 30, 1992.
It is likewise evident from the wording of the above-mentioned Sections that
the term of synchronization is used synonymously as the phrase holding simultaneously
since this is the precise intent in terminating their Office Tenure on the same day or
occasion. This common termination date will synchronize future elections to once every
three years (Bernas, the Constitution of the Republic of the Philippines, Vol. II, p. 605).
That the election for Senators, Members of the House of Representatives and
the local officials (under Sec. 2, Art. XVIII) will have to be synchronized with the
election for President and Vice President (under Sec. 5, Art. XVIII) is likewise evident
from the x x xrecords of the proceedings in the Constitutional Commission.
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Although called regional elections, the ARMM elections should be included
among the elections to be synchronized as it is a "local" election based on the wording
and structure of the Constitution. Regional elections in the ARMM for the positions of
governor, vice-governor and regional assembly representatives fall within the
classification of "local" elections, since they pertain to the elected officials who will serve
within the limited region of ARMM. From the perspective of the Constitution,
autonomous regions are considered one of the forms of local governments, as evident
from Article X of the Constitution entitled "Local Government.” Autonomous regions are
established and discussed under Sections 15 to 21 of this Article the article wholly
devoted to Local Government.
Second issue: Congress, in passing RA No. 10153, acted strictly within its
constitutional mandate. Given an array of choices, it acted within due constitutional
bounds and with marked reasonableness in light of the necessary adjustments that
synchronization demands. Congress, therefore, cannot be accused of any evasion of a
positive duty or of a refusal to perform its duty nor is there reason to accord merit to the
petitioners claims of grave abuse of discretion.
In relation with synchronization, both autonomy and the synchronization of
national and local elections are recognized and established constitutional mandates, with
one being as compelling as the other. If their compelling force differs at all, the
difference is in their coverage; synchronization operates on and affects the whole
country, while regional autonomy as the term suggests directly carries a narrower
regional effect although its national effect cannot be discounted.
In all these, the need for interim measures is dictated by necessity; out-of-the-
way arrangements and approaches were adopted or used in order to adjust to the goal or
objective in sight in a manner that does not do violence to the Constitution and to
reasonably accepted norms. Under these limitations, the choice of measures was a
question of wisdom left to congressional discretion.
However, the holdover contained in R.A. No. 10153, for those who were
elected in executive and legislative positions in the ARMM during the 2008-2011 term as
an option that Congress could have chosen because a holdover violates Section 8, Article
X of the Constitution. In the case of the terms of local officials, their term has been fixed
clearly and unequivocally, allowing no room for any implementing legislation with
respect to the fixed term itself and no vagueness that would allow an interpretation from
this Court. Thus, the term of three years for local officials should stay at three (3) years as
fixed by the Constitution and cannot be extended by holdover by Congress.
RA No. 10153, does not in any way amend what the organic law of the ARMM (RA No.
9054) sets outs in terms of structure of governance. What RA No. 10153 in fact only does
is to “appoint officers-in-charge for the Office of the Regional Governor, Regional Vice
Governor and Members of the Regional Legislative Assembly who shall perform the
functions pertaining to the said offices until the officials duly elected in the May 2013
elections shall have qualified and assumed office. “This power is far different from
appointing elective ARMM officials for the abbreviated term ending on the assumption to
office of the officials elected in the May 2013 elections. It must be therefore emphasized
that the law must be interpreted as an interim measure to synchronize elections and must
not be interpreted otherwise.
Datu Kida, et al. v. Senate of the Philippines, et al.
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G.R. No. 196271 : February 28, 2012
Facts: These cases are motions for reconsideration assailing the SCs Decision
dated October 18, 2011, where it upheld the constitutionality of Republic Act (RA) No.
10153. Pursuant to the constitutional mandate of synchronization, RA No. 10153
postponed the regional elections in the Autonomous Region in Muslim Mindanao
(ARMM) (which were scheduled to be held on the second Monday of August 2011) to
the second Monday of May 2013 and recognized the Presidents power to appoint
officers-in-charge (OICs) to temporarily assume these positions upon the expiration of
the terms of the elected officials.
Issues: 1. Does the Constitution mandate the synchronization of ARMM
regional elections with national and local elections?  2. Does RA No. 10153 amend RA
No. 9054? If so, does RA No. 10153 have to comply with the supermajority vote and
plebiscite requirements?  3. Is the holdover provision in RA No. 9054 constitutional? 
4. Does the COMELEC have the power to call for special elections in ARMM?  5. Does
granting the President the power to appoint OICs violate the elective and representative
nature of ARMM regional legislative and executive offices?  6. Does the appointment
power granted to the President exceed the President's supervisory powers over
autonomous regions?
Held: The constitutionality of RA No. 10153 is upheld.
1. The framers of the Constitution could not have expressed their objective
more clearly there was to be a single election in 1992 for all elective officials from the
President down to the municipal officials. Significantly, the framers were even willing to
temporarily lengthen or shorten the terms of elective officials in order to meet this
objective, highlighting the importance of this constitutional mandate. That the ARMM
elections were not expressly mentioned in the Transitory Provisions of the Constitution
on synchronization cannot be interpreted to mean that the ARMM elections are not
covered by the constitutional mandate of synchronization. The ARMM had not yet been
officially organized at the time the Constitution was enacted and ratified by the people.
Keeping in mind that a constitution is not intended to provide merely for the exigencies
of a few years but is to endure through generations for as long as it remains unaltered by
the people as ultimate sovereign, a constitution should be construed in the light of what
actually is a continuing instrument to govern not only the present but also the unfolding
events of the indefinite future. Although the principles embodied in a constitution remain
fixed and unchanged from the time of its adoption, a constitution must be construed as a
dynamic process intended to stand for a great length of time, to be progressive and not
static.
2. A thorough reading of RA No. 9054 reveals that it fixes the schedule for
only the first ARMM elections; it does not provide the date for the succeeding regular
ARMM elections. In providing for the date of the regular ARMM elections, RA No. 9333
and RA No. 10153 clearly do not amend RA No. 9054 since these laws do not change or
revise any provision in RA No. 9054. In fixing the date of the ARMM elections
subsequent to the first election, RA No. 9333 and RA No. 10153 merely filled the gap
left in RA No. 9054.
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Even assuming that RA No. 10153 amends RA No. 9054, however, it is well-
settled that the supermajority vote requirement set forth in Section 1, Article XVII of RA
No. 9054 is unconstitutional for violating the principle that Congress cannot pass
irrepealable laws.
Similarly, the petitioners contention that the plebiscite requirement applies to
all amendments of RA No. 9054 for being an unreasonable enlargement of the plebiscite
requirement set forth in the Constitution is incorrect. Section 18, Article X of the
Constitution provides that the creation of the autonomous region shall be effective when
approved by majority of the votes cast by the constituent units in a plebiscite called for
the purpose. This means that only amendments to, or revisions of, the Organic Act
constitutionally-essential to the creation of autonomous regions i.e., those aspects
specifically mentioned in the Constitution which Congress must provide for in the
Organic Act require ratification through a plebiscite.
3. The petitioners are one in defending the constitutionality of Section 7(1),
Article VII of RA No. 9054, which allows the regional officials to remain in their
positions in a holdover capacity. The petitioners essentially argue that the ARMM
regional officials should be allowed to remain in their respective positions until the May
2013 elections since there is no specific provision in the Constitution which prohibits
regional elective officials from performing their duties in a holdover capacity.
The clear wording of Section 8, Article X of the Constitution expresses the
intent of the framers of the Constitution to categorically set a limitation on the period
within which all elective local officials can occupy their offices. Since elective ARMM
officials are also local officials, they are, thus, bound by the three-year term limit
prescribed by the Constitution. It, therefore, becomes irrelevant that the Constitution does
not expressly prohibit elective officials from acting in a holdover capacity. Short of
amending the Constitution, Congress has no authority to extend the three-year term limit
by inserting a holdover provision in RA No. 9054. Thus, the term of three years for local
officials should stay at three (3) years, as fixed by the Constitution, and cannot be
extended by holdover by Congress.
4. The Constitution has merely empowered the COMELEC to enforce and
administer all laws and regulations relative to the conduct of an election. Although the
legislature, under the Omnibus Election Code (Batas Pambansa Bilang [BP] 881), has
granted the COMELEC the power to postpone elections to another date, this power is
confined to the specific terms and circumstances provided for in the law. Both Section 5
and Section 6 of BP 881 address instances where elections have already been scheduled
to take place but do not occur or had to be suspended because of unexpected and
unforeseen circumstances, such as violence, fraud, terrorism, and other analogous
circumstances. In contrast, the ARMM elections were postponed by law, in furtherance
of the constitutional mandate of synchronization of national and local elections.
Obviously, this does not fall under any of the circumstances contemplated by Section 5 or
Section 6 of BP 881.
5. The President derives his power to appoint OICs in the ARMM regional government
from law, it falls under the classification of presidential appointments covered by the
second sentence of Section 16, Article VII of the Constitution; the Presidents
appointment power thus rests on clear constitutional basis.
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6. There is no incompatibility between the President's power of supervision over local
governments and autonomous regions, and the power granted to the President, within the
specific confines of RA No. 10153, to appoint OICs. The power of supervision is defined
as the power of a superior officer to see to it that lower officers perform their functions in
accordance with law. This is distinguished from the power of control or the power of an
officer to alter or modify or set aside what a subordinate officer had done in the
performance of his duties and to substitute the judgment of the former for the latter.
The petitioners apprehension regarding the President's alleged power of control
over the OICs is rooted in their belief that the President's appointment power includes the
power to remove these officials at will. In this way, the petitioners foresee that the
appointed OICs will be beholden to the President, and act as representatives of the
President and not of the people. This is incorrect. Once the President has appointed the
OICs for the offices of the Governor, Vice Governor and members of the Regional
Legislative Assembly, these same officials will remain in office until they are replaced by
the duly elected officials in the May 2013 elections. Nothing in this provision even hints
that the President has the power to recall the appointments he already made. Clearly, the
petitioners fears in this regard are more apparent than real.
MR DENIED.
D. Read R. A. 6766 (Organic Act for Cordillera Autonomous Region of 1989)
This Act provides for creation of the Cordillera Autonomous Region
(CAR) shall consist of the cities and provinces that shall vote favorable in a
plebiscite pursuant ant 10, Sec. 18 of the Constitution. Those cities and provinces
are Benguet, Ifugao, Muslim Province, Abra, Kalinga-Apayao and Baguio
The Act consists of the following pertinent articles:
1) Guiding principles and policies similar to that of Art. 2 of the 1987
Constitution
2) Vesting of legislative power in the Cordillera Assembly; executive
power Cordillera governor with a deputy governor as well;
creation of indigenous special courts whose decisions are final and
executory but subject to the original and appellate jurisdiction of
the Supreme Court
3) Creation of a Regional Commission on Appointments
4) Measures to protect and develop the ancestral lands and ancestral
domains of indigenous cultural communities as well as the national
economy and patrimony
The rest of its provisions are roughly similar to the Organic Act for
ARMM (see11-c) CAR never came to existence. Only Ifugao province
voted in favor of CAR, so the Supreme Court in Ordillo v. COMELEC
ruled that Ifugao could no constitute itself into the CAR>
d. 1 Ordillo v. COMELEC, 192 SCRA 100
Facts: CAR Regional Assembly member Alexander Ordillo raised the
question in his petition on whether the province of Ifugao, being the only
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province which voted favorably for the creation of the CAR, can alone legally
and validly constitute such region.
Held: Ordillo’s petition is meritorious. Reasons:
1) Statutory construction of Art. X, Sec. 15 of the 1987 Constitution
shows that the word “region” is to be made up of more than one
constituent unit
2) Section 2 or R. A. 6766 says “The Regional Government shall
exercise powers and functions necessary for the proper governance
and development of all provinces, cities, barangays and
municipalities within the CAR.” Therefore, Congress could not
have intended that only a single province would constitute CAR
3) It would be illogical for Ifugao to have 2 sets of officials, one for
Ifugao and one for the CAR, when Ifugao is the only member of the
CAR
d. 2 Cordillera Board Coalitions v. COMELEC, 181 SCRA 495
Facts: Pending the convening of Congress after President Aquino was
swept into power in 1986, she issued E. O. 220 which petitioner Cordillera Board
Coalitions claimed created the CAR, thus preempting the constitutional mandate
that Congress shall be the one to pass an Organic Act providing for the creation
of CAR. Petitioner also questions the constitutionality of the CAR as it runs
contrary to Article 10, Sec. 10 of the 1987 Constitution (See 11-1). Finally
petitioner claims the CAR will interfere with the local autonomy of individual
cities and provinces in general.
Held: Cordillera Board Coalition is wrong. Reasons:
1. The presumption of constitutionality of laws shall be applied in the
case. E. O. 220 was actually envisioned to consolidate and coordinate the delivery
of services of line departments and agencies of the National Government in the
areas covered by the CAR as a step preparatory to the grant of autonomy to the
Cordillera. It was not intended to preempt Congress
2. CAR is not a public corporation or a territorial or political
subdivision. It is in the same genre as an administrative region for the purpose of
coordinating the planning and implementation of program and services in the
covered areas. Thus no new territorial or political subdivision was created or
merged with another.
3. Local autonomy is administrative autonomy. In the case of CAR and
Muslim Mindanao, they are granted both administrative and political autonomy.
Petitioner has failed to show specifically how the creation of administrative
regions will interfere with local autonomy.
d. 3 E.O. 459 dated May 17, 1991
This E. O. is entitled “Devolving to the Autonomous Region”
Government of the Autonomous region in Muslim Mindanao Certain Powers of
the DECS, the Control and Supervision Over Its Offices in the Region and for
other Offices.
The E. O. aims to implement Sec. 1, Article XV of R. A. 6734 which states
that, “The Autonomous Region shall establish, maintain and support a complete
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and integrated system of quality education and adopt an educational framework
that is meaningful, relevant and responsive to the needs, aspirations and ideals
of the people in the region.”
To this end, the Regional Government is made responsible for the
regional educational framework of the ARMM, such as formulating and
implementing programs to improve education in general in the region.
E. Read R. A. 7901, dated Feb. 23, 1995 (Creating the CARAGA Administrative
Region)
This Act is entitled “An Act Creating Region 13 to be known as the
CARAGA Administrative Region, and For Other Purposes.” It consists of the
provinces of Agusan del Norte, Agusan del Sur, Surigao del Norte, Surigao del
Sur and the cities of Butuan and Surigao. The Act also transfers Sultan Kudarat
to Region 11.
F. Local Government Unit Defined
Definition: A political subdivision of the state constituted by law and
possessed a substantial control over its own affairs.
Supporting Definition: The LGU is autonomous in the sense that it is
given more power authority, responsibilities and resources remaining to be an
intra sovereign subdivision of a sovereign nation, but no intended to be an
imperium in imperia state within a state
f. 1 Alvarez v. Guingona, Jr. 252 SCRA 695
Facts: Senator Heherson Alvarez, et. al. filed a petition for prohibition
with prayer TRO and preliminary prohibitory injunction assailing R. A. 7720,
Said R. A. provides for a conversion of the municipality of Santiago, Isabela into
a City. Alvarez said the municipality of Santiago failed to meet the requirement
of Sec. 450 of the LGC that, for a municipality to become a component city, it
must have an annual income of P20M. The reason is that in the computation of
the average annual income, the Internal Revenue Allotments (IRA) should have
been deducted from the total income. Instead, the IRAs were added to the total
income.
Held: Alvarez is wrong. IRAs are the local government unit’s rightful
share to the national taxes. Section 450(c) of the LGC provides that “the average
annual income shall include the income accruing to the general fund, exclusive of
special funds, transfers, and any recurring income.” IRAs are a regular, recurring
source of income; they are not special funding transfers since Sec. 17(g) of the
LGC gives a technical description for the IRA for purposes of the LGC
G. Local Autonomy explained
1. Autonomy – either decentralization of administration or decentralization of
power (Limbona v. Mangelin)
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2. Decentralization of Administration – Occurs when the central government
delegate administrative powers to political subdivision in order to broaden the
basic government power and in the process to make local government more
responsive accountable” and “Ensure their fullest development as self-reliant
communities make them more effective partners in the pursuit of national
development and progress.” At the same time, it relieves the central government
of the bureau managing local affairs and enables it to concentrate or national
concerns (Supra)
3. Decentralization of power – An abdication of political power in favor of local
government units declared to be autonomous. In that case the local government
is free to chart its own destiny and shape its future with minimum intervention
from central government authorities. According to a constitution author (Father
Bernas) decentralization of power amounts to “self-immolation” since in that
event, the autonomous government becomes accountable not to the central
authorities but to its own constituency (Supra)
4. Local Autonomy, Philippine Concept – The national government does not
completely relinquish all its power over local governments, including
autonomous regions. Only administrative powers over local affairs are delegated
to political subdivisions. The purpose of the delegation is to make governance
more directly responsive and effective at the local levels. In turn, economic,
political and social developments at the smaller political units are expected to
propel social and economic growth and development. But to enable the country to
develop as whole the programs and policies effected locally must be integrated and
coordinate towards a common national goal. Thus, policy-setting for the entire
country still lies in the President and Congress. In Magtajas v. Pryce Properties
Corp. Inc., municipal governments are still agents of the national government
(Pimentel v. Aguirre)
5. Fiscal autonomy – Local government have the power to create their own
sources of revenue in addition to their equitable share in the national taxes
released by the national government, as well as the power to the allocate their
resources in accordance with their own priorities.
g. 1 Malonzo, et, al v. Zamora, et, al 311 SCRA 224
NOTE: Dates and peso figures are crucial to this case.
Facts: In 1994, the Sangguniang Panlungsod of Caloocan City issued
Ordinance No. 0168, authorizing Caloocan City mayor Macario Asistio Jr. to
initiate expropriation proceedings for lot 26 of the Maysilo Estate owned by the
CLT Realty Development Corp. An amount of P39, 352,047.75 was appropriated
for this purpose. CLT however countered with an interpleaded and prayer for
TRO on August 6, 1997, on the ground that Maysilo estate actually straddled
both Caloocan City and the municipality of Malabon; therefore the Caloocan City
and Malabon municipal governments should be restrained and CLT must
interplead and litigate among themselves their conflicting rights to claim such
taxes.
In the meantime, the voluntary sale of the CLT property failed to push
through so the city government field a suit for eminent domain against CLT on
March 23, 1998.
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Some months afterwards, Rey Malonzo became mayor of Caloocan
City. The expropriation of the CLT property was then declared discontinued,
thus the appropriation of P50M for the budgetary item “Expropriation of
properties” could now be reverted for use in supplement budget. Ordinance No.
0254 was then passed appropriating an amount of P39, 343,028.00 for the
immediate repair of offices and hiring of additional personnel.
Because of this, the office of the President (OP), acting on an
administrative complaint filed against Malonzo et. al., were adjudged guilty of
misconduct and meted the penalty of suspension. Malonzo’s refuted the
decision, claiming that 1) the interpleader filed by CLT was an unavoidable
discontinuance of the expropriation project; thus the amount of P39, 352,047.00
could be reverted into savings and 2) said amount was could be denominated as
“Expropriation of Properties” and classified under “Current Operating
Expenditures. The OP countered that the amount of P39, 352,047.75 was a capital
outlay that must be spent for the project it is intended for, thus under Sec. 322 of
the LGC it could not be reverted into savings for another use 2) the filling of the
interpleader could not be considered as an unavoidable discontinuance since
months after the interpleader, the Caloocan City government even filed an
expropriation case for the CLT property 3) The Sangguniang Panlungsod, at the
time of passing Ordinance No. 0254 did not adopt new or updated rules of
procedure for the current year; this was shown by the hurried passage in one day
of the said ordinance and 4) the appropriation of P50M for “Expropriation of
Properties” actually did not exist this was merely a subterfuge by Malonzo to dip
his hands into the P39, 352. 017.75 intended for the CLT property expropriation
project.
Held: Malonzo is correct. Reasons:
1) During the oral arguments and pleadings, it was clear that the
amount of
P39, 352, 017.75 and whether it was a capital outlay or continuing appropriation
was not the issue; rather the issue was the budgetary item “Expropriation of
Properties” wherein the amount of P50M was appropriated for said use but was
later discontinued, and later on, an amount of P39, 313, 028.00 from the P50M
was appropriated for office repair and other miscellaneous expenses. Malonzo’s
explanation that the P50M was not intended for the purchase of CLT property
but for expenses incidental to expropriation, such as relocation of squatters,
appraisal fee, etc. was believed by the Court. (So what happened to the P39, 352,
047.75, if Malonzo’s explanation is to be believed? Justice Kapunan and 2 others
dissented, believing the OP’s argument that there was actually no P50M existing
to fund the “Expropriation of Properties item. In fact, Malonzo used the
nonexistent P50M appropriation as a cover-up to illegally spend the P32, 352,
047.75 for repair of offices and hiring of personnel. Can you say kickback?)
2) The failure to adopt new or updated rules of procedure of the
Sangguniang Panlungsod as mandated by Sec. 50 and 52 of the LGC is not
intended to paralyze said Sanggunian from doing its job. An interpretation of
Sec. 50 and 52 of the LGC that will avoid inconvenience and absurdity must be
adopted, thus the OP’s contention is mistaken.
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g. 2 Sec. 1, Chapter 1, Title XII, E. O. 292
“Declaration of policy. The State shall ensure the autonomy of local
governments. For this purpose, it shall provide for a more responsive and
accountable local government structure instituted through a system of
decentralization. The allocation of powers and resources to loose government
units shall be promoted and inter-local government grouping, consolidation a
coordination of resources shall be encouraged. The state shall guarantee the local
government units their just share in national taxes and their equitable shares in
proceeds from the use natural resources, and afford them wider latitude for
resource generation.”
g. 3 Pimentel v. Aguirre, G. R. No. 132988, July 19, 2000
Facts: In 1997, President Ramos issued A. O. No. 372 which caught the
ire of Senator Aquilino Pimentel because of certain 2 provisions which state 1)
All government departments and agencies, including state universities and
colleges, government-owned and controlled corporation and local government
units will identify and implement measures in FY 1998 that will reduce total
expenditures for the year by at least 25% of authorized regular appropriation for
non-personal service items, along the following suggested areas… and 2)
Pending of assessment and evaluation of the Development Budget Coordinating
Committee of the emergency fiscal situation, the amount equivalent to 10% of the
Internal Revenue Allotment (IRA) to LGUs shall be withheld. Pimentel claims
that both provisions do not comply with Section 284 of LGC, which provides for
the 4 requisites before the President may interfere in local fiscal matters 1) an
unmanaged public sector deficit of the national government 2) consultations with
the presiding officers of the Senate and the House of Representatives and the
presidents of various local leagues 3) the corresponding recommendation of the
secretaries of the DOF, DILG and DBM and 4) any adjustment in the allotment
shall in no case be less than 30% of the collection of national internal revenue
taxes of the third fiscal year preceding the current one. Specially, Pimentel claims
that there was no showing that there was actually an unmanaged public sector
deficit and that there was no consultations conducted with the different leagues
of local governments.
Held: Pimentel is partly correct. Reasons:
1. The Supreme Court is prepared to believe the Solicitor General’s
assurance that the first provision above stated is merely an advisory or guiding
policy for local executives to follow, thus local autonomy is not interfered upon.
2. The second provision is violative of local fiscal autonomy because its
basic feature, the automatic release of the shares of LGUs in the national internal
revenue, is missing. This is mandated in Article 10, Sec. 6 of the Constitution.
Furthermore, Section 286 of the LGC provides that the release shall be made
directly to the LGU concerned within 5 days after every quarter of the year and
shall not be subject to any lien or holdback that may be imposed by the national
government for whatever purpose. The withholding of 10% of the IRA is
definitely a holdback.
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H. Public Corporation defined
Definition 1: Those formed or organized for the government of a portion of the
State (Act 1459, Sec.2)
Definition 2: Those corporations created by the State as its own device and
agency for the accomplishment of parts of its own public works (Eliot, Mun.
Corp. p. 1)
I. Essential Elements of a Municipal Corporation
1) A legal creation or incorporation
2. A corporate name by which the artificial personality or legal entity is
known and in which all corporation acts are done.
3) Inhabitants constituting the population who are invested with the
political and corporate powers which are executed through duly
constituted officers and agents;
4) a place or territory within which the local civil government and
corporate functions are exercised (Martin, Pub. Corp., 1971)
J. Two fold character of a municipal corporation; its significance
1) Government – the municipal corporation is an agent of the State for
the government of the territory and the inhabitants within the
municipal limits. The municipal corporation exercises by delegation a
part of the sovereignty of the State.
2) Private – the MC acts in a similar category as a business corporation,
performing functions not strictly government or political. The MC
stands for the community in the administration of local affairs w/c is
wholly beyond the sphere of the public purposes for which its
governmental powers are conferred
K. What is Federalism?
Definition: A system in which political power is divided between a
central (national) government and smaller government units.
Supporting Definition: The central government is often called the federal
government and the smaller units, states or provinces. In a true federal system,
citizens owe their loyalty directly to
the central government, even though they live in states or provinces. The central
government has direct authority over the people concerning powers granted to it
in the constitution.
III. CREATION AND ABOLITION OF MUNICIPAL CORPORATION
Sec. 6, LGC: Authority to create Local Government Units. A local
government unit may be created divided, merged, abolished or its boundaries
substantially altered either by law enacted by Congress in the case of a province,
city, municipality or any other political subdivision of by ordinance passed by
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the Sangguniang Panlalawigan or Sangguniang Panlungsod concerned in the
case of a barangay located within its territorial jurisdiction, subject to such
limitations and requirements prescribed in this Code.
A. Requisites for creation of Local Government Units
1. Income. It must be sufficient based on acceptable standards, to
provide for all essential government facilities and services and special functions
commensurate with the size of its population, as expected of the LGU concerned.
2. Population. It shall be determined as the total number of inhabitants
of the within the territorial jurisdiction of the LGU concerned.
3. Land Area. It must be contiguous unless it comprises 2 or more
islands or is separated by an LGU independent of the other properly identified
by metes and bounds with technical descriptions and sufficient to provide for
such basic services and facilities to meet the requirements of its populace.
Compliance with the foregoing indicators shall be arrested by the Department of
Finance, the NSO and the Land Management Bureau of the DENR.
B. Decided cases:
b. 1 Pelaez V. Auditor General, 15 SCRA 569
Facts: In 1964, President Macapagal issued several EOs creating 33 new
municipalities, mainly in Northern Luzon and Mindanao. The President based
his power from Sec. 68 of the Revised Penal Code of 1917. Vice President
Emmanuel Pelaez filed a petition for writ of prohibition with preliminary
injunction, against the Auditor General, restraining him from passing in audit
any expenditure of public funds in implementation of said executive order
and/or any disbursement by said municipalities.
Pelaez contends that: 1) Sec 68 of the Revised Administration Code has
been impliedly repealed by R.A 2370, the Barrio Charter Act. 2) Sec. 68 is an
undue delegation of legislative power to the President and 3) Sec. 68 can allow
the president to interfere in local government affairs.
Held: Pelaez is correct. Reasons:
1. The Barrio Charter Act states that “barrios may not be created nor
their boundaries altered or their names changed except by act of Congress of the
corresponding municipal board upon petition of the majority of voters in the
areas affected and the recommendation of the municipality or municipalities in
which the proposed barrio is situated” This implies that if the President cannot
create barrios, what more municipalities? (But I think this is not a very good
argument coz it’s implying way too much).
2. A law must be: a) Complete in itself so that there is nothing left for
the delegate to do but to implement the statute and b) Fix a standard the limits of
which are sufficiently determinable The standard set by Sec. 68 is “as the public
welfare may require” This standard, in relation to the law in question, is so broad
that is virtually unfettered.
3. The creation of Municipal Corporation is essentially legislative in
character. If the president can create municipalities, situations may arise where
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he can submit local officials to his dictation by creating a new municipality and
including therein the barrio wherein the officials preside, thus said officials’
positions would suddenly becomes vacant. The power of control by the
president over local government is denied by the 1935 Constitution
b. 2 Tan v. COMELEC 142 SCRA 727
Facts: B.P. No. 885 was passed allowing for the creation of the province
of Negros del Norte on the Island of Negros. Petitioner Patricio Tan claimed that
B.P. no 885 violated Article XI, Section 3 of the Constitution which states: “No
province, city, municipality or barrio may be created, divided, merged, abolished
or its boundary substantially altered, except in accordance with the criteria
established in the local government code, and subject to the approval by a
majority of the votes in a plebiscite in the unit or units affected”. Specifically, the
remaining areas in the province of Negros Occidental were not allowed to
participate in the plebiscite for the creation of Negros del Norte. Petitioner also
claims the proposed province of Negros del Norte failed to meet the
requirements of Sec. 197 of the LGC of 1983, specially that a future province must
have at least an area of 3,500 sq. km. Negros del Norte, Petitioner avers, is
actually only 2,856.56 sq km. Respondent claims the issue was already rendered
moot and academic as the new province of Negros del Norte was already
proclaimed. Moreover, the area of Negros del Norte is really 4,019.95 sq km,
since the waters falling under the jurisdiction and control of Negros del Norte
must be included in the total area of the province.
Held: Tan is correct. The plebiscite is declared null and void Reasons:
1) The phrase “subject to the approval by a majority of the votes
in a plebiscite in the unit or units affected” must be construed to mean that the
remaining areas in the province of Negros Occidental should have been allowed
to participate in the said plebiscite. The reason is that cities belonging to Negros
Occidental will be added to Negros del Norte, thus Negros Occidental’s land
area will be dismembered. Certainly, the people of Negros Occidental should
have been allowed to vote in the plebiscite as they are directly affected by the
diminution in land size of their province.
2) A reading of the last sentence of the first paragraph of Section
197 LGC of 1983 says. “The territory need not be contiguous if it comprises 2 or
more islands”. The use of the word ‘territory” clearly reflects that the law refers
only to the land mass and excludes the waters over which the political unit has
control. In other words, Negros del Norte failed to meet the required land area of
3,500 sq. km for it to become a province.
b. 3 Paredes v. Executive Secretary 128 SCRA 6
Facts: By virtue of B.P. Blg 56, certain barangays in the municipality of
Mayoyao, Ifugao held a plebiscite to determine whether they want to constitute
themselves into the new municipality of Aguinaldo. Governor Zosimo Paredes
et. al. however claimed that the rest of the barangays on Mayoyao should be
allowed to participate in the plebiscite by virtue of Art. XI, Sec of the 1973
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Constitution as the other barangays are also affected by the creation of the
municipality of Aguinaldo.
Held: Paredes is wrong. Presumption of constitutionality should be applied
in this case. B.P. Blg. 56 is a reflection of local autonomy on the part of the
barangay wanting to constituent themselves into a new municipality. Said
barangays should be given leeway in becoming self-reliant communities.
Moreover, the people in said barangays are the ones who will constitute the new
municipality of Aguinaldo, not the other barangays of Mayoyao excluded from
B.P. Blg. 56
b. 4 Mun. of Candijay, Bohol v. Ca 251 SCRA 182
Facts: The municipality of Candijay petitioned the RTC of Tagbilaran, Bohol,
claiming that its boundary line actually covered barrio Pagahat, since the
municipality of Alicia claims to have current territorial jurisdiction over said
barrio. The RTC awarded Pagahat to Candijay Alicia appealed to the Court of
Appeals. The CA ruled in favor of Alicia on the grounds that 1) applying the rule
of equiponderance of evidence (a principle in Civil Procedure) with Candijay as
plaintiff and Alicia as defendant in the lower court, the court must rule in favor
of the defendant. The equiponderance of evidence rule states: “Where the scale
shall stand upon equipoise and there is nothing in the evidence which shall
incline it to one side or the other, the court will find for the defendant. Under
said principle, the plaintiff must rely on the strength of his evidence and not on
the weakness of defendant’s claim. Even if the evidence of the plaintiff may be
stronger than that of the defendant, there is no preponderance of evidence on his
side if such evidence is insufficient in itself to establish his cause of action.” In
this case, both municipalities failed to satisfactorily back their claims that they
owned barrio Pagahat: and 2) if Candijay’s boundary line claim was true, then
not only would they claim Pagahat but also other certain barrios as well, which
would as a result, certainly expand Candijay’s territory far beyond than what the
law allows her, Candijay petitioned is review on certiorari with the SC, claiming
that 1) the CA misapplied the equiponderance of evidence rule and 2) the
municipality of Alicia had no juridical personality, having been created under
avoid E.O. ( E.O. No.265) since Sec. 68 of the RAC of 1917 from which the said
E.O. derived its authority, was declared unconstitutional in Pelaez v. Audition
General (See III-b 1).
Held: The Municipality of Candijay is incorrect Reasons:
1. The SC sees no need in reviewing the equiponderance rule as it was not
arrived whimsically or capriciously by the CA
2. The Municipality of Alicia was created by virtue of E.O. 265 in 1949. 16
years late when Pelaez v. Auditor General was promulgated. And yet even after,
various government acts, most notably the recognition by the 1987 Constitution
of Alicia as one of the 20 municipalities of the Third District of Bohol, indicate the
State’s recognition and acknowledgement of the existence thereof. Alicia
therefore, can claim the benefits of Sec. 442 (d) of the LGC of 1991 which states
“Municipal District organized pursuant to presidential issuances and E.O. and
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which have their respective set of municipal officials holding officials holding
office at the time of the effectivity of the code shall henceforth be considered as
regular municipalities. Sec. 442 (d) is therefore a curative law in favor of Alicia.
The objection against it being a municipal corporation should have been done
before the LGC was enacted in 1991.
b. 5 Municipality of Jimenez v. Baz, Jr. 265 SCRA 182
NOTE: Dates in this case are important because essentially Jimenez lost
on account of the slow wheels of justice
Facts: In 1949, President Quirino issued E.O. 258, creating the
municipality of Sinacaban in the Province of Misamis Occidental. In 1988 by
virtue of said E.O. Sinacaban filed a claim with the provincial Board of Misamis
Occidental against the municipality of Jimenez territorial possession of about 5
barrios. Jimenez in its reply with the provincial Board that same year and later on
with the RTC in 1990, said that Sinacaban had no juridical personality to file a
suit because it was created under a void E.O. as promulgated in Pelaez Auditor
General and 2) the disputed barrios belong to Jimenez since in 1950 the
municipalities entered into an agreement duly approved by the Provincial Board
of Misamis Occidental back then which recognized Jimenez’s jurisdiction over
the disputed barrio in 1992, the RTC ruled in favor of Sinacaban using as its basis
the curative benefits of Sec. 2 of the LGC of 1991. Angrily, Jimenez added in its
petition with the Supreme Court the RTC’s decision was null and void because it
failed to decide the case within one year mandated by the LGC of 1983 and the
Constitution.
Held: Jimenez is incorrect Reasons:
1. Sinacaban can claim the benefits of Sec.442 (d) of the LGC of 1991,
since various government acts through the years after the Pelaez case of 1965
indicate the recognition by the years after the Pelaez case 1965 indicate the
recognition by the state of the municipality of Sinacaban, most notably when the
1987 Constitution recognized Sinacaban as part of the 2 nd District of Misamis
Occidental.
2. Whatever agreement Sinacaban and Jimenez entered into 1950 must
still conform with the territorial metes and bounds set forth in E.O. 258,
otherwise the agreement in void (A relocation survey was ordered but the results
of the survey was not stated in the case)
3. Even granting that the RTC was deliberately slow, its decision is not
rendered void. The only remedy left would be to file administrative sanctions
against it.
b. 6 Mendenilla v. Onandia 5 SCRA 536
Facts: In 1954, the mayor of the municipality of Legaspi appointed
Emilio Mendenilla as Chief of Police. Then, in 1959, Congress passed R.A. 2234
converting the municipality of Legaspi into the City of Legaspi R.A. 2234
provides that the position of Chief of Police of the city of Legaspi is to be
appointed by the President. Therefore, when Jose Manuel Onandia was
appointed by the President City Chief of Police, Mendenilla assailed the legality
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of such a move, claiming that his position as chief of police was not abolished
when Legaspi was converted from a city to a municipality 2) Under R.A. 557 his
employment status as Chief of Police may not be abolished except in the manner
specified in R.A. 557 and 3) The Civil Service Law guarantees his security of
tenure.
Held: Mendenilla is incorrect Reasons:
1. The position of Chief of Police of a municipality is totally different from the
position of the Chief of Police of a city. Therefore, R.A. 2234 abolished the
position of municipality Chief of Police and replaced it with a city Chief of
police. In support of this contention, the Supreme Court cited Sec. 96, Article
XVII of the charter which provides that the City Mayor the Vice Mayor, etc. are
allowed to continue in office upon the effectivity of the charter until the
expiration of their terms in office. Nowhere does it mention the Chief of Police in
the said list of officials. Expressio unius est exclusio alterius.
2. Notwithstanding both R.A. 557 and the Civil Service Law, it is within the legal
competence of Congress to enact R.A. 2234. Congress has the plenary power to
make laws, meaning its power to make any kind of law is, in theory, unlimited.
Quiz: If the municipality of a municipal judge is converted into a city, can the
judge continue to serve in the new city? Answer: Yes. A judge is not a municipal
official. He does not derive his power or his appointment from a city charter; he
derives them from the Constitution and other Laws.
b. 7 Mathay v. CA 320 SCRA 703
NOTE: Don’t confuse CSU with CSC
Facts: During his term, Mayor Brigido Simon appointed 16 people to
positions in the Civil Service Unit (CSU) of the local government of Quezon City.
Simon’s authority to appoint was based upon P.D. 51. The Secretary of Justice
rendered an Opinion, stating that P.D. 51 was never published in the Gazette,
therefore, conformably with the Tanada v. Tuvera ruling P.D. 51 never became
law at all. The Civil Service Commission (CSC) thus ordered the revocation of all
appointments in the CSU. However, the effects of such revocation were
temporarily cushioned when the city council issued an ordinance creating the
Department of Public Order and Safety (DPOS). All present personnel of the
CSU, the said ordinance stated are to be absorbed into the DPOS.
However, the regular positions in the DPOS never got filled due to
insufficient number of said positions and lack of funds.
Simon and later on his successor, Mayor Ismael Mathay, remedied the
situation by offering the CSU personnel contractual appointment. When Mathay
refused to renew their appointments, the CSU personnel complained to the CSC.
The CSC replied by issuing resolutions ordering the CSU personnel reinstated.
Mathay now asserts that the CSC cannot order him to reinstate the said
personnel as it is. In effect, giving the appointing power he possesses, as city
Mayor to the CSC.
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Held: Mathay is correct. Reasons:
1) First of all, the law applicable is B.P. 337 or the old LGC and not the
LGC of 1991 since the material events of the case took place during the time of
the old LGC.
2) Under B.P. 337, the power to appoint rests in the local chief executive
in the case the Mayor. When the city council issued the ordinance allowing for
the absorption of CSU personnel into the DPOS, it specifically made use of the
wordings “Present Personnel” and not positions, thus the city council arrogated
upon itself the appointing power by dictating who shall occupy the DPOS
positions. Even in the local government level, the separation of powers must be
respected.
3) The reasoning in no. 2 also applies to the CSC. The CSC claims that by
virtue of the ordinance enacted by the city council, the CSU personnel became
regular employees and such they have gained the protection of the Civil Service
Law. Such reasoning is wrong because in the first place the CSU never existed at
all, thus they were never part of the Civil Service to begin with. Thus when
Simon and later on Mathay offered them contractual appointments, they were at
the mercy of the appointing power of the said mayors, as they have the option
not to renew their appointments
b. 8 Samson v. Aguirre, 315 SCRA 53
Facts: R.A. 8535 was signed into law creating the City of Novaliches out
of 15 barangays in Quezon City. Quezon City councilor Moises Samson
questioned the constitutionality of said R.A. claiming that 1) certifications as to
income, land area and population of Novaliches were not presented during the
deliberations that led to the passage of R.A. 8535 2) a certification attesting to the
fact that the mother LGU, Quezon City, would not be adversely affected by the
creation of Novaliches city in terms of income, land area and population, was
also not presented 3) a copy of the petition of concerned barangays calling or the
creation of City of Novaliches was not presented to the Quezon City Council, as
mandated by the Implementing Rules of the LGC, 1991 and 4) R.A. 8535 failed to
specify the seat of government of the proposed City of Novaliches as mandated
by Sec. 11 (a) of the LGC, 1991.
Held: Samson is wrong. Reasons:
1. The presumption of constitutionally of laws shall be applied in this
case, meaning that Samson has burden of proof to show that R.A. 8535 was
unconstitutional. Samson did not present any proof that no certifications were
presented during the deliberations. And even granting that no certifications were
indeed presented, the representatives of the DOF, NSO, DENR and even Quezon
City mayor Ismael Mathay were present during the deliberations. The official
statements attesting to the income, land area and population of Novaliches could
serve the certifications contemplated by law
2. Mathay was present during the deliberation. If Quezon City would
object to the creation of the City of Novaliches, he would be the first
representative to do so. But he didn’t.
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3. The failure to provide the QC council a petition of concerned
barangays calling for the creation of the City of Novaliches is not fatal as such
petition is meant only to inform the QC council of such creation. With the mass
media publicizing the creation of the city of Novaliches, Samson could not claim
he was not informed of the proposed creation
4. The failure of R.A.8535 to provide a seat of government for
Novaliches is not fatal. Sec. 12 of the LGC provides that a government center
shall be established by the LGU as far as practicable. Government centers can
also serve as seats of government.
5. The fact that the City of Novaliches was not included among the 17
cities and municipalities listed in the ordinance attached to the 1987 constitution
does not mean that a constitutional amendment is necessary in order for
Novaliches to become a city. The ordinance attached to the Constitution merely
apportions the seat of the House of Representatives to the different legislative
districts in the country. Nowhere, does it provide that Metro Manila shall be
forever composed of 17 cities and municipalities.
NOTE: the proposed City of Novaliches was later voted down in a
plebiscite held for that purpose
C. How are existing sub-provinces converted to provinces?
* Sec. 10 LGC: Plebiscite Requirement. No creation, division, merger,
abolition or substantial alteration of boundaries of LGUs shall take effect unless
approved by a majority of the voted cast in a plebiscite called for the purpose in
the political unit or units directly affected. Said plebiscite shall be conducted by
the COMELEC within 120 days from the date of effectivity of the law or
ordinance effecting such action, unless the law or ordinance fixes another date.
* Sec. 462 LGC: Existing Sub-provinces Existing sub-provinces are
hereby converted into regular provinces upon approval of the voters cast in a
plebiscite to be held in the said sub provinces and the original provinces directly
affected. The plebiscite shall be conducted by the COMELEC simultaneously
with the national elections following the effectivity of this code.
The new legislative district created as a result of such conversion shall
continue to be represented in Congress by the duly elected representatives of the
original districts out of which said new province or districts were created unit
their own representative shall have been elected in the next regular congressional
elections and qualified
The incumbent elected officials of the said sub-provinces converted into
regular provinces shall continue to hold office until June 30, 1992. Any vacancy
occurring in the offices occupied by said incumbent elected officials, or resulting
from expiration of resulting from expiration of their terms of office in case of
negative votes in the plebiscite results, shall be filled by appointment by the
President. The appointees shall hold office until their successors shall have been
elected in the regular local elections following the plebiscite mentioned herein
and qualified. After effectivity of such conversion, the President shall fill up the
position of governor of the newly created province through appointment if none
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has yet been appointed to the same as hereinbefore provided, and shall also
appoint a vice governor and other members of the Sanggunian Panlalawigan, all
of whom shall likewise hold office unit their successors shall have been elected in
the next local election and qualified.
All qualified appointive officials and employees in the career service of
the said sub-provinces at the time of their conversion into regular provinces shall
continue in accordance with civil service law, rules and regulation.
C 1. Grino v. COMELEC, 213 SCRA 672
Facts: Pursuant to Sec. 462, LGC, a plebiscite to determine whether the sub-
province of Guimaras (its mother province was Iloilo) wants to become a regular
province was held simultaneously with the May 11, 1992 elections. The
participants in the said plebiscite were the residents of Iloilo (except Iloilo city)
and the 3 municipalities of Guimaras. Surprisingly, the ballots issued in the said
3 municipalities did not provided any space for the election of governor, vice-
governor and the members of the Sangguniang Panlalawigan of the province of
Iloilo. LDP Iloilo governor-candidate Simplicio Grino claims that the COMELEC
erred in not allowing the said 3 municipalities to vote for the provincial officials
of Iloilo, since at the time of the plebiscite Guimaras was still a sub-province of
Iloilo. Grino says if Guimaras voted for regular “provincehood” then there
would have been no need for them at all to vote for the provincial officials of
Iloilo. But what if Guimaras votes to remain as a sub-province? Should special
election be held for the 3 municipalities so that they can vote for the provincial
official of Iloilo?
Held: Obviously, Grino’s petition was rendered moot and academic when
Guimaras voted to become regular province. Besides it’s too late to undo what
COMELEC has done. If Guimaras did vote to remain as a sub province, Grino’s
petition would have been meritorious.
D. Conversion of a component city into a highly urbanized city and
reclassification (implementing Rules and regulations, LGC).
* Art 12 Conversion of a component city into a highly urbanized city
a) Requisites for conversion. A component city shall not be converted
into a highly urbanized city unless the following requirements are present:
1. Income latest annual income of not less than P50M based on 1991
constant prices, as certified by the city treasure. The annual income shall
included the income accruing to the general fund exclusive of special funds,
transfers and non-recurring income and
2. Population, which shall not be less than 200,000 inhabitants as
certified by NSO.
b) Procedure for conversion:
1. Resolution. The interested component city shall submit to the office of
the President a resolution of its Sanggunian adopted by a majority of all it’s
members in a meeting duly called for the purpose, and approved and endorsed
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by the city mayor. Said resolution shall be accompanied by certifications as to
income and population
2. Declaration of conversion. Within 30 days from receipt of such
resolution, the President shall, after verifying that the income and population
requirements have been met, declare the component city as highly urbanized
3. Plebiscite. Within 120 days from the declaration of the President or as
specified in the declaration, the COMELEC shall conduct a plebiscite in the city
proposed to be converted. Such plebiscite shall be preceded by a comprehensive
information campaign to be conducted by the COMELEC with the assistance of
national and local government officials, media, NGO’s and other interested
parties.
c) Effect of conversion
The conversion of a component city into a highly-urbanized city shall
make it independent of the province where it is geographically located
Reclassification (See cases below and III-e)
d. 1 Ceniza v. COMELEC 95 SCRA 763
Facts: on Dec. 22 1979, the interim Batasang Pambansa enacted B.P. Blg.
51 providing for local elections on Jan 30, 1980. Its section 3, the subject of
controversy, reads as follows:
xxx Until cities are reclassified into highly urbanized and component
comes in accordance with standard established in the LGC as province for in Art
XI, Sec 4 (1) of the Constitution. Any city now existing with an annual regular
income derived from infrastructure and general funds of not less than P40M at
the time of the approval of the act shall be classified as a highly urbanized city.
All other cities shall be considered components of the provinces where they are
geographically located. xxx The registered voters may be entitled to voter in the
election of the official of the province of which that city is a component. If it’s
charter so provides. However, voters in a highly urbanized city, as hereinabove
defined shall no participate nor vote in the election of the official of the province
in which the highly urbanized city is geographical located.
Robert Ceniza et.al. filed a case as tax payers and registered voters in
the cities of Cebu ad Mandaue assailing Sec. 3 Specially, they questioned the use
of annual income of a given city as basis for classification of whether or not a
particular city is a highly urbanized city whose voters may no participate in the
election of provincial officials of the province in which the city is geographically
located. Ceniza and his fellow goons claim Sec.3 regulates the exercise of
freedom of suffrage and violates the equal protection of the law. Moreover, they
attacked R.A. 5519 the law creating the City of Mandaue, which went to effect
without the benefit of ratification by the residents of Mandaue in the plebiscite or
referendum. They particularly cited the charter’s provision denying Mandaue
the right to participate in provincial elections.
Held: Ceniza et. at. is mistaken. Reasons:
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1. The thrust of the 1973 Constitution is towards the fullest autonomy of
LGU’s Corollary to independence however, is the concomitant loss of right to
participate in provincial affairs, more particularly the selection of elective
provincial officials since these provincial officials have ceased to exercise any
government jurisdiction and authority over said city.
2. Regular annual income of a given city is substantial distinction for
classification. The revenue of a city would show whether or not it is capable of
existence and development as a relatively independent economic, social and
political unit. Thus, the equal protection of the laws in not violated.
3. Freedom of suffrage is not imperiled since the Constitution does not
give the city voter the right to participate in provincial elections for territorial
reasons
4. The city of Mandaue came into existence. In 1969, the constitutional
requirement that the creation, alteration, etc. of a city, province, etc. is subject to a
plebiscite only came into being when the 1973 Constitution was enacted and
therefore cannot be applied retroactively.
d. 2 Tobias v. Abalos 239 SCRA 106
Facts: Robert Tobias, et. al. invoking their right as taxpayers and as
residents of Mandaluyong City, assailed the constitutionality of R.A. No. 7675,
known as “An act Converting the City of Mandaluyong into a Highly urbanized
city known as the City of Mandaluyong.” They cited, among others, Art. VIll,
Sec. 49 of R.A. 7675, which provides that “As a highly urbanized city, the City of
Mandaluyong shall have its own legislative district with the first representative
to be elected in the next national elections after the passage of this Act. The
remainder of the former legislative district of San Juan/Mandaluyong shall
become the new legislative district of San Juan with its first representative to be
elected at the same region” Said provision Tobias claims is not germane to the
title of R.A. 7675 thus being contrary to the one title-one subject rule since it
creates a legislative district whereas the title expressly provides only for the
conversion of Mandaluyong into highly urbanized city. Also, Tobias, et. al.
contend that the people of san Juan should have been made to participate in the
plebiscite as the same involves a change in their legislative district.
Held: Tobias, et.al. are grossly erroneous Reasons:
1. The creation of a new legislative district is a natural logical
consequence of its conversion into a highly urbanized city.
2. The contention that the people of San Juan should have been made to
participate in the plebiscite on R.A. 7675 as the same involved a change in their
legislative district is benefit of merit. The reason is that the principle subject
involved I the plebiscite was the conversion of Mandaluyong into a highly
urbanized city. The matter of separate district representation was only ancillary
thereto. Thus the inhabitants of San Juan were properly excluded from the said
plebiscite as they have nothing to do with the changed in status of neighboring
Mandaluyong. (This argument is rather strange for me).
d.3 Miranda v. Aguirre 314 SCRA 603
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ATTY. MAURICIO ULEP
Facts: On May 5, 1994 R.A. 7720 was passed converting the municipality
of Santiago, Isabel into an independent component city. On Feb 14, 1998 R.A.
8528 was passed amending R.A. 7720 on 2 points: 1 Sec. 2 of R.A. 7720 is hereby
amended by deleting the words, “an independent” so that the municipality of
Santiago will be converted into a component city only and 2) the voters of
Santiago could now vote again for the provincial officials of the province of
Isabela. Jose Miranda, the mayor of Santiago and other petitioners assailed the
constitutionality of R.A. 8528. He says that said law lacks the provision requiring
that the plebiscite be held for its ratification. Alexander Aguirre, the Executive
Secretary and other respondents on the other hand countered that (1) Miranda et.
al. had no standing to file their petition 2) the issue is a political question and 3)
R.A. 8528 did not created divide, etc or after any boundaries of Santiago it merely
reclassified Santiago from an independent component city into a component city.
Held: Aguirre and his cohorts are gravely mistaken. Reasons:
1. Miranda had standing, he field the petition in his capacity as mayor
of Santiago.
2. The issue is justiciable, Petitioners assail the constitutionality of R.A.
8528, since it runs contrary to article X, Sec 10 of the 1987 Constitution. The court
has the power to decide the constitutionality of any law.
3. The reclassification will downgrade Santiago’s status from an
independent component city into a component city. Far reaching changes will
then take place. Its political independence will diminish. The city mayor will be
placed under the administrative supervision of the provincial governor.
Ordinance and resolution passed by the city council of Santiago will have to be
reviewed by the Provincial Board of Isabel. Taxes collected by the city would
then be shared with the province. All these changes merit the need of a plebiscite
so that the people at Santiago can air their side on the issue. Moreover, if a
plebiscite can be held for the upgrading of an LGU, should not a plebiscite be
held for its downgrading as well?
NOTE: Mendoza’s strong dissent was anchored on Art. X Sec. 10 of the
1987 Constitution. Said section refers to alteration of boundaries of Santiago were
substantially altered nor any of its income, population or land area been radically
changes Santiago was neither recreated into another LGU nor abolished, much
less its boundaries alter. (This good justice is implying the reclassification was
administrative in nature
d.3 Jadewell Parking Systems vs Lidua
Facts: Jadewell is a private parking operator duly authorized to
operate and manage the parking spaces in Baguio City, they are also able to
render a vehicle immobile by placing clamps on its wheels when it‘s illegally
parked pursuant to City Ordinance 003-2000. On May 17, 2003, Jadewell filed a
complaint with the Office of the Provincial Prosecutor of San Fernando City, La
Union against Edwin Ang ET AL. for dismantling and carrying away the clamp
(valued at 26k) attached to the left front wheel of a Mitsubishi Adventure
because the vehicle was illegally parked, a violation of the Baguio City
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Ordinance no. 003 - 2000. The information was filed with the Municipal Trial
court on October 2, 2003. The Municipal TC dismissed the complaint on the
ground that offenses are covered by the Rules on Summary Procedure and Act
3326 being alleged violations of City Ordinances. Under Section 9, the running
of the prescriptive period shall be halted on the date the case is filed in Court
and that such action prescribes in 2 months. RTC likewise dismissed the
petitioner‘s appeal on the ground of prescription.
Issue: Whether or not the prescription period for violation of city
ordinances halts when filed with the prosecutor’s office
Held: NO. Act No. 3326, as amended, is the only statute that provides
for any prescriptive period for the violation of special laws and municipal
ordinances (Violations penalized by municipal ordinances shall prescribe after
two months). Likewise, according to the 1991 Revised Rules on Summary
Procedure, the rule shall govern summary procedure with municipal trial
courts concerning criminal cases for violations of municipal or city ordinances.
Section 11 from the same rules provide that - The filing of criminal cases falling
within the scope of this Rule shall be either by complaint or by information:
Provided, however, that in Metropolitan Manila and in Chartered Cities, such
cases shall be commenced only by information, except when the offense
cannot be prosecuted de officio.
Cities in the Philippines that were created by law can either be
highly urbanized cities or component cities. An independent component city
has a charter that proscribes its voters from voting for provincial elective
officials. It stands that all cities as defined by Congress are chartered cities. In
cases as early as United States v. Pascual Pacis, the Court recognized the
validity of the Baguio Incorporation Act or Act No. 1963 of 1909, otherwise
known as the charter of Baguio City. As provided in the Revised Rules on
Summary Procedure, only the filing of an Information shall halt the
prescriptive period where the crime charged is involved in an ordinance.
Petition denied.
d.5 Bagabuyo vs Comelec
Facts: On October 10, 2006, Cagayan de Oro's then Congressman
Constantino G. Jaraula filed and sponsored House Bill No. 5859: "An Act
Providing for the Apportionment of the Lone Legislative District of the City of
Cagayan De Oro." This law eventually became Republic Act (R.A.) No. 9371. It
increased Cagayan de Oro's legislative district from one to two. On March 13,
2007, the COMELEC en Banc promulgated Resolution No. 7837 implementing
R.A. No. 9371. Petitioner Bagabuyo contends that COMELEC cannot implement
R.A. No. 9371 without providing for the rules, regulations and guidelines for
the conduct of a plebiscite which is indispensable for the division or conversion
of a local government unit and that it violates the equality of representation
doctrine.
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Issue WON a plebiscite is indispensable in dividing congressional
districts?
Held: No, the concern of Article VI, Section 5 is political representation
and the means to make a legislative district sufficiently represented so that the
people can be effectively heard. The aim of legislative apportionment is "to
equalize population and voting power among districts." Hence, emphasis is
given to the number of people represented; the uniform and progressive ratio to
be observed among the representative districts; and accessibility and
commonality of interests in terms of each district being, as far as practicable,
continuous, compact and adjacent territory. In terms of the people represented,
every city with at least 250,000 people and every province (irrespective of
population) is entitled to one representative. In this sense, legislative districts,
on the one hand, and provinces and cities, on the other, relate and interface
with each other. To ensure continued adherence to the required standards of
apportionment, Section 5(4) specifically mandates reapportionment as soon as
the given standards are met.
In contrast with the equal representation objective of Article VI,
Section 5, Article X, Section 10 expressly speaks of how local government
units may be "created, divided, merged, abolished, or its boundary
substantially altered. A pronounced distinction between Article VI, Section
5 and, Article X, Section 10 is on the requirement of a plebiscite. The
Constitution and the Local Government Code expressly require a plebiscite
to carry out any creation, division, merger, abolition or alteration of
boundary of a local government unit. In contrast, no plebiscite requirement
exists under the apportionment or reapportionment provision.
The legislative district that Article VI, Section 5 speaks of may, in a
sense, be called a political unit because it is the basis for the election of a
member of the House of Representatives and members of the local legislative
body. It is not, however, a political subdivision through which functions of
government are carried out. A district does not act for and in behalf of the
people comprising the district; it merely delineates the areas occupied by the
people who will choose a representative in their national affairs.
In the case at bar, no division of Cagayan de Oro City as a political
and corporate entity takes place or is mandated by RA 9371. Cagayan de Oro
City politically remains a single unit and its administration is not divided
along territorial lines thus it does not need a plebiscite for legislative
apportionment.
The ground that such law violates the equality of representation doctrine
likewise, cannot be sustained. The Constitution does not require
mathematical exactitude or rigid equality as a standard in gauging equality
of representation. In fact, for cities, all it asks is that "each city with a
population of at least two hundred fifty thousand shall have one
representative," while ensuring representation for every province regardless
of the size of its population. Petition Denied Note:
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Legislative apportionment (Black's Law Dictionary) - the determination of
the number of representatives which a State, county or other subdivision
may send to a legislative body. It is the allocation of seats in a legislative
body in proportion to the population; the drawing of voting district lines so
as to equalize population and voting power among the districts.
Reapportionment - the realignment or change in legislative districts brought
about by changes in population and mandated by the constitutional
requirement of equality of representation.
d.6 Albada vs Comelec
Facts: 1 May 2009, the province of Bulacan was represented in
Congress through four legislative districts. The First Legislative District
comprised of the city of Malolos[1] and the municipalities of Hagonoy,
Calumpit, Pulilan, Bulacan, and Paombong. On 1 May 2009, RA 9591 lapsed
into law, amending Malolos' City Charter, by creating a separate legislative
district for the city. At the time the legislative bills for RA 9591 were filed in
Congress in 2007, namely, House Bill No. 3162 (later converted to House Bill
No. 3693) and Senate Bill No. 1986, the population of Malolos City was
223,069. They projected that it will be 254,030 by the year 2010 using the
population growth rate of 3.78 between 1995 to 2000.
Petitioners, taxpayers, registered voters and residents of Malolos
City, filed a petition contending that RA 9591 is unconstitutional for failing
to meet the minimum population threshold of 250,000 for a city to merit
representation in Congress as provided under Section 5(3), Article VI of the
1987 Constitution and Section 3 of the Ordinance appended to the 1987
Constitution.
Issue: Is RA 9591 unconstitutional for being violative of Section 5(3),
Article VI of the 1987 Constitution and Section 3 of the Ordinance appended to
the 1987 Constitution for failing to meet the required population?
Held: YES. The Certification of Regional Director Miranda, which is
based on demographic projections, is without legal effect because Regional
Director Miranda has no basis and no authority to issue the Certification. The
Certification is also void on its face because based on its own growth rate
assumption, the population of Malolos will be less than 250,000 in the year 2010.
In addition, intercensal demographic projections cannot be made for the entire
year. In any event, a city whose population has increased to 250,000 is entitled
to have a legislative district only in the "immediately following election" after
the attainment of the 250,000 population.
The Certification of Regional Director Miranda does not state that
the demographic projections he certified have been declared official by the
NSCB. The records of this case do not also show that the Certification of
Regional Director Miranda is based on demographic projections declared
official by the NSCB. The Certification, which states that the population of
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Malolos "will be 254,030 by the year 2010," violates the requirement that
intercensal demographic projections shall be "as of the middle of every year."
In addition, there is no showing that Regional Director Miranda has been
designated by the NSO Administrator as a certifying officer for demographic
projections in Region III. In the absence of such official designation, only the
certification of the NSO Administrator can be given credence by this Court.
Motion for Reconsideration: DENIED
First. It will not do for the COMELEC to insist that the reliability
and authoritativeness of the population indicators Congress used in enacting
RA 9591 are nonjusticiable. If laws creating legislative districts are
unquestionably within the ambit of this Court's judicial review power,[5]
then there is more reason to hold justiciable subsidiary questions impacting
on their constitutionality, such as their compliance with a specific
constitutional limitation under Section 5(3), Article VI of the 1987
Constitution that only cities with at least 250,000 constituents are entitled to
representation in Congress.
Second. Under Executive Order No. 135 (EO 135), the population
indicators Congress used to measure Malolos City's compliance with the
constitutional limitation are unreliable and non-authoritative. On Miranda's
Certification, (that the "projected population of the [City] of Malolos will be
254,030 by the year 2010 using the population growth rate of 3.78[%]
between 1995 and 2000"), this fell short of EO 135's requirements that (a) for
intercensal years, the certification should bebased on a set of demographic
projections and estimates declared official by the National Statistical and
Coordination Board (NSCB); (b) certifications on intercensal population
estimates will be as of the middle of every year; and (c) certifications based
on projections or estimates must be issued by the NSO Administrator or his
designated certifying officer.
Third. Malolos City is entitled to representation in Congress only if,
before the 10 May 2010 elections, it breaches the 250,000 population mark
following the mandate in Section 3 of the Ordinance appended to the 1987
Constitution that "any city whose population may hereafter increase to more
than two hundred fifty thousand shall be entitled in the immediately
following election to at least one Member."
Fourth. Aside from failing to comply with Section 5(3), Article VI of
the Constitution on the population requirement, the creation by RA 9591 of a
legislative district for Malolos City, carving the city from the former First
Legislative District, leaves the town of Bulacan isolated from the rest of the
geographic mass of that district.This contravenes the requirement in Section
5(3), Article VI that each legislative district shall "comprise, as far as
practicable, contiguous, compact, and adjacent territory."
d.7 Aquino III and Robredo vs Comelec
johnicalia (2017-2018)
Facts: Petitioners filed by way of a Petition for Certiorari and
Prohibition under Rule 65 of the Rules of Court. It was addressed to nullify
and declared as unconstitutional, R.A. 9716 entitled ―An Act
Reapportioning the Composition of the First (1st) and Second Legislative
Districts (2nd) in the province of Camarines Sur and Thereby Creating a
New Legislative District from such Reapportionment.‖Said Act originated
from House Bill No. 4264, and it was enacted by President Macapagal-
Arroyo. Effectuating the act, it has divided the existing four districts, and
apportioned districts shall form additional district where the new first
district shall be composed of 176,383 population count.
Petitioners contend that the reapportionment runs afoul of the
explicit constitutional standard with a minimum population of 250,000 for
the creation of a legislative district under Section 5 (3), Article VI of the1987
Constitution. It was emphasized as well by the petitioners that if population
is less than that provided by the Constitution, it must be stricken-down for
non-compliance with the minimum population requirement, unless
otherwise fixed by law. Respondents have argued that the petitioners are
guilty of two fatal technical effects: first, error in choosing to assail R.A. 9716
via the Remedy of Certiorari and Prohibition under Rule 65 of the Rules of
Court. And second, petitioners have no locus standi to question the
constitutionality of R.A. 9716.
Issue: Is Republic Act No. 9716 is unconstitutional and therefore null
and void, or whether or not a population of 250,000 is an indispensable
constitutional requirement for the creation of a new legislative district in a
province?
Held: NO. There is no specific provision in the Constitution that fixes
a 250,000 minimum population that must compose a legislative district. As
already mentioned, the petitioners rely on the second sentence of Section 5(3),
Article VI of the 1987 Constitution, coupled with what they perceive to be the
intent of the framers of the Constitution to adopt a minimum population of
250,000 for each legislative district.
The second sentence of Section 5(3), Article VI of the Constitution,
succinctly provides: "Each city with a population of at least two hundred
fifty thousand, or each province, shall have at least one representative." The
provision draws a plain and clear distinction between the entitlement of a
city to a district on one hand, and the entitlement of a province to a district
on the other. For while a province is entitled to at least a representative, with
nothing mentioned about population, a city must first meet a population
minimum of 250,000 in order to be similarly entitled.
The use by the subject provision of a comma to separate the phrase
"each city with a population of at least two hundred fifty thousand" from the
phrase "or each province" point to no other conclusion than that the 250,000
minimum population is only required for a city, but not for a province.
Plainly read, Section 5(3) of the Constitution requires a 250,000 minimum
25 PUBLIC CORPORATION
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population only for a city to be entitled to a representative, but not so for a
province.
d.8 Umali vs Comelec
E. Effect fo conversion of a municipality to a city on the term of the mayor
e.1 Laceda Sr. V Limena
Facts: Limena filed a petition for disqualification and/or
declaration as an ineligible candidate against Laceda before the COMELEC,
contending that Laceda had already served as Punong Barangay for Brgy.
Panlayaan for three consecutive terms since 1994, and was thus prohibited
from running for the fourth time under Section 2 of Republic Act No. 9164
(3years for 3 terms). However, Laceda asserted that when he was elected for
his first two terms, Sorsogon was still a municipality, and that when he
served his third term, the Municipality of Sorsogon had already been
merged with the Municipality of Bacon to form a new political unit, the City
of Sorsogon, pursuant to Republic Act No. 8806.
COMELEC declared Laceda disqualified and cancelled his certificate of
candidacy. Laceda moved for reconsideration, but it was denied. Hence, this
petition on certiorari.
Issue: Is Laceda entitled to run again for the same position since the
Municipality of Sorsogon was converted into a City?
Held: NO. Section 2 of Rep. Act No. 9164, like Section 43 of the Local
Government Code from which it was taken, is primarily intended to broaden
the choices of the electorate of the candidates who will run for office, and to
infuse new blood in the political arena by disqualifying officials from running
for the same office after a term of nine years. This Court has held that for the
prohibition to apply, two requisites must concur: (1) that the official concerned
has been elected for three consecutive terms in the same local government post
and (2) that he or she has fully served three consecutive terms.
In this case, while it is true that under Rep. Act No. 8806 the
municipalities of Sorsogon and Bacon were merged and converted into a city
thereby abolishing the former and creating Sorsogon City as a new political
unit, it cannot be said that for the purpose of applying the prohibition in Section
2 of Rep. Act No. 9164, the office of Punong Barangay of Barangay Panlayaan,
Municipality of Sorsogon, would now be construed as a different local
government post as that of the office ofPunong Barangay of Barangay
Panlayaan, Sorsogon City. The territorial jurisdiction of Barangay Panlayaan,
Sorsogon City, is the same as before the conversion. Consequently, the
inhabitants of the barangay are the same. They are the same group of voters
johnicalia (2017-2018)
who elected Laceda to be their Punong Barangay for three consecutive terms
and over whom Laceda held power and authority as their Punong Barangay.
Moreover, Rep. Act No. 8806 did not interrupt Laceda's term.
F. Abolition
f.1 Sultan Usman vs Sarangani
Facts: Sultan Usman Sarangani, Soraida M. Sarangani and Hadji
Nor Hassan, in their respective capacity as former Municipal Mayor,
incumbent Mayor and Vice-Mayor of Madalum filed the instant petition for
certiorari and mandamus urging us to nullify the Order issued by the
COMELEC, for having been issued with grave abuse of discretion declaring
that Padian-Torogan as ghost precinct. Hence, should be abolished.
Issue: Did respondent COMELEC commit grave abuse of discretion in
declaring PadianTorogan as ghost precinct?
Held: No. It is a time-honored precept that factual findings of the
COMELEC based on its own assessments and duly supported by evidence, are
conclusive upon this Court, more so, in the absence of a substantiated attack on
the validity of the same. Upon review of the records, the Court finds that the
COMELEC had exerted efforts to investigate the facts and verified that there
were no public or private buildings in the said place, hence its conclusion that
there were no inhabitants. If there were no inhabitants, a fortiori, there can be
no registered voters, or the registered voters may have left the place. It is not
impossible for a certain barangay not to actually have inhabitants considering
that people migrate. A barangay may officially exist on record and the fact that
nobody resides in the place does not result in its automatic cessation as a unit of
local government.
Under the Local Government Code of 1991, the abolition of a local
government unit (LGU) may be done by Congress in the case of a province,
city, municipality, or any other political subdivision. In the case of a
barangay, except in Metropolitan Manila area and in cultural communities, it
may be done by the Sangguniang Panlalawigan or Sangguniang
Panglungsod concerned subject to the mandatory requirement of a plebiscite
conducted for the purpose in the political units affected. The findings of the
administrative agency cannot be reversed on appeal or certiorari particularly
when no significant facts and circumstances are shown to have been
overlooked or disregarded which when considered would have substantially
affected the outcome of the case. The COMELEC has broad powers to
ascertain the true results of an election by means available to it. The assailed
order having been issued pursuant to COMELEC's administrative powers
26 PUBLIC CORPORATION
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and in the absence of any finding of grave abuse of discretion in declaring a
precinct as non-existent, said order shall stand.
Judicial interference is unnecessary and uncalled for. No voter is
disenfranchised because no such voter exist. The sacred right of suffrage
guaranteed by the Constitution is not tampered when a list of fictitious
voters is excluded from an electoral exercise. Suffrage is conferred by the
Constitution only on citizens who are qualified to vote and are not otherwise
disqualified by law. On the contrary, such exclusion of non-existent voters
all the more protects the validity and credibility of the electoral process as
well as the right of suffrage because the "electoral will" would not be
rendered nugatory by the inclusion of some ghost votes. Election laws
should give effect to, rather than frustrate the will of the people.
f.2 Salva vs Makalintal
Facts: Petitioners, as officials and residents of barangay San Rafael,
Batangas, filed a class suit against the Sangguniang Panglalawigan of
Batangas, Sangguniang Pambayan of Calaca, Batangas, and COMELEC for
annulment of Ordinance No. 05 and Resolution No. 345, both enacted by the
Sangguniang Panglalawigan of Batangas, and COMELEC Resolution No.
2987. Ordinance No. 05 declared the abolition of barangay San Rafael and its
merger with barangay Dacanlao, municipality of Calaca, Batangas and
accordingly instructed the COMELEC to conduct the required plebiscite as
provided under Sections 9 and 10 of the LGC. Resolution No. 345 affirmed
the effectivity of Ordinance No. 05, thereby overriding the veto by the
governor of Batangas. Ordinance No. 05 was vetoed by the Batangas
governor for being ultra vires as it was not shown that the essential
requirements referring to the attestations or certifications of the DOF, NSO
and the LMB were obtained. The RTC denied the ex parte motion for the
issuance of a TRO and/or preliminary injunction for lack of jurisdiction.
According to the RTC, the TRO/injunction sought by petitioners is directed
only to COMELEC Resolution No. 2987. The RTC ruled that any petition or
action questioning an act, resolution or decision of the COMELEC must be
brought before the SC.
Issue: Does the respondent court have jurisdiction to enjoin
COMELEC from implementing its resolution which provided the rules and
regulations for the conduct of the plebiscite to decide on the abolition of Brgy.
San Rafael and its merger with Brgy. Dacanlao?
Held: Yes. In Filipinas, the Court has likewise affirmed that the
powers vested by the Constitution and the law on the COMELEC may either be
classified as those pertaining to its adjudicatory or quasi-judicial functions, or
those which are inherently administrative and sometimes ministerial in
character. As aptly explained by the Solicitor General, after the COMELEC
ascertained the issuance of the ordinance and resolution declaring the abolition
of barangay San Rafael, it issued COMELEC Resolution No. 2987 calling for a
johnicalia (2017-2018)
plebiscite to be held in the affected barangays, pursuant to the provisions of
Section 10 of Republic Act No. 7160. The Court agrees with the SolGen that the
issuance of Resolution No. 2987 is thus a ministerial duty of the COMELEC that
is enjoined by law and is part and parcel of its administrative functions. It
involves no exercise of discretionary authority on the part of respondent
COMELEC; let alone an exercise of its adjudicatory or quasi-judicial power to
hear and resolve controversies defining the rights and duties of party-litigants,
relative to the conduct of elections of public officers and the enforcement of the
election laws. Briefly, COMELEC Resolution No. 2987 which provides for the
rules and regulations governing the conduct of the required plebiscite, was not
issued pursuant to the COMELECs quasi-judicial functions but merely as an
incident of its inherent administrative functions over the conduct of plebiscites,
thus, the said resolution may not be deemed as a "final order" reviewable by
certiorari by this Court. Any question pertaining to the validity of said
resolution may be well taken in an ordinary civil action before the trial courts.
Even the cases cited by the public respondent in support of its contention
that the power to review or reverse COMELEC Resolution No. 2987 solely
belongs to this Court are simply not in point. Zaldivar vs. Estenzo speaks of
the power of the COMELEC to enforce and administer all laws relative to
the conduct of elections to the exclusion of the judiciary. In the present case,
petitioners are not contesting the exclusive authority of the COMELEC to
enforce and administer election laws. Luison vs. Garcia refers to this Courts
power to review administrative decisions, particularly referring to a
COMELEC resolution declaring a certain certificate of candidacy null and
void, based on Article X, Section 2 of the 1935 Constitution. In Macud vs.
COMELEC, we reiterated that when a board of canvassers rejects an election
return on the ground that it is spurious or has been tampered with, the
aggrieved party may elevate the matter to the COMELEC for appropriate
relief, and if the COMELEC sustains the action of the board, the aggrieved
party may appeal to this Court. In both Luison and Macud, the assailed
COMELEC resolutions fall within the purview of final orders, rulings and
decisions of the COMELEC reviewable by certiorari by this Court.
G. Classification of provinces, cities and municipalities
g.1 E.O. 249 New Income Classification of Provinces, Cities,
Municipalities
This act is entitled “providing for a new income classification of provinces,
cities and other municipalities” Pertinent provisions include:
Sec. 1. Classification of provinces and cities. Provinces and cities except
Manila and Quezon City, which shall be considered as special class cities, are
hereby divided into 6 main classes according to the annual average income they
actually realized during the last 4 calendar years immediately preceding as
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follows: a) First class P30M or more b) Second class P20M-P30M; c) Third class
P15M-P20M; d) Fourth class P10M-15M, e) Fifth class P5M-10-M; f) Sixth class
less than P5M
Sec. 2. Classification of Municipalities x x x according to the annual average
income they actually realized during the last 4 calendar years immediately
preceding as follows; a) First class, P15M or more b) second class, P10M-15M c)
Third class, P5M-10M d) fourth class P3M-P5M e) Fifth class, P1M-3M f) Sixth
Class, less than P1M.
Sec. 3. Period of General Reclassification of Province, Cities and
Municipalities. Upon the effectivity of this E.O. and for each period of 4
consecutive calendar years thereafter, the Secretary of Finance shall reclassify the
all provinces, cities, except Manila and Quezon City, Which shall remain as
special class cities, and municipalities, on the basis of the foregoing schedules of
the average annual income of each province, city or municipality derived during
the last 4 consecutive calendar years immediately such reclassification according
to the provisions hereof.
Sec. 4. Definition of Terms. As used this E.O.
a. Annual Income revenues and receipts realized by provinces, cities and
municipalities from regular sources of the local general and infrastructure funds
including the internal revenue and specific tax allotments provided for in PDs
144 and 436, both as amended but exclusive of non-recurring receipt, such as
other national ads, grants, financial assistance, loan proceeds, sales of fixed assets
and similar others
b. Average annual income- sum of the “annual income”- sum of the “Annual
Income” as herein defined actually obtained by a province, cities and
municipalities.
Sec. 5 Use of income classification of provinces, cities, and municipalities.
xxx as basis for: a) Fixing of maximum tax ceiling imposable by the local
government b) Determination of statutory and administrative aids, Financial
grants and other forms of assistance to local government c) Establishment of
salary scales and rates of allowances per diems, and other emoluments that local
government officials and personnel may be entitled to d) Implementation of
personnel policies on promotions, transfers, details or secondment, and related
matters at the local government levels e) formulation and execution of local
government budget policies and f) Determination of the financial capability of
local government units to undertake development programs and priority
projects
NOTE: There are 7 more sections, mainly on salaries and taxes- you
know, ways to put more money into the pocket of our bureaucrats
g.2 Herrera vs Comelec
johnicalia (2017-2018)
Facts: In view of the addition of the 2 new municipalities, San
Lorenzo and Sibunag to Guimaras, the Sangguniang Panlalawigan of
Guimaras decided to have the province subdivided into 2 provincial
districts. It passed Resolution No. 68 requesting the COMELEC to bring
about the desired division. Acting upon the said Resolution, the Provincial
Election Supervisor in Guimaras conducted 2 consultative which later issued
a Memorandum recommending the division of the Province of Guimaras
into 2 provincial districts. The Bureau of Local Government Finance of the
DOF issued Memorandum Circular No. 97-1 reclassifying several provinces
including Guimaras, which was reclassified from 5 th class to 4th class
province. In line with such reclassification, COMELEC issued Resolution
No. 2950 which allotted 8 Sangguniang Panlalawigan seats to Guimaras,
dividing it into 2 provincial districts. The division of provinces into districts
and the corresponding apportionment, by district, of the number of elective
members of the Sangguniang Panlalawigan are provided for by law. Under
Republic Act No. 6636, allotment of elective members to provinces and
municipalities must be made on the basis of its classification as a province
and/or municipality. Thus, a 4th class province shall have 8 Sangguniang
Panlalawigan members.
Issue: Is the apportionment of Guimaras into 2 districts not equitable
due to disproportionate representation?
Held: NO. Under R.A. 7166 and COMELEC Resolution No. 2313, the
basis for division into districts shall be the number of inhabitants of the
province concerned and not the number of listed or registered voters as
theorized upon by petitioners. Thus, COMELEC did not act with grave abuse of
discretion in issuing the assailed Resolution because clearly, the basis for the
districting is the number of inhabitants of the Province of Guimaras by
municipality based on the official 1995 Census of Population as certified to by
Tomas P. Africa, Administrator of the NSO.
H. Selection and Transfer of Local Government Site
(a) The law or ordinance creating or merging local government units
shall specify the seat of government from where governmental and corporate
services shall be delivered. In selecting said site, factors relating to geographical
centrality, accessibility, availability of transportation and communication
facilities, drainage and sanitation, development and economic progress, and
other relevant considerations shall be taken into account.
(b) When conditions and developments in the local government unit
concerned have significantly changed subsequent to the establishment of the seat
of government, its sanggunian may, after public hearing and by a vote of two-
thirds (2/3) of all its members, transfer the same to a site better suited to its
needs. Provided, however, That no such transfer shall be made outside the
territorial boundaries of the local government unit concerned.
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The old site, together with the improvements thereon, may be disposed of by the
sale or lease or converted to such other use as the sangguniang concerned may
deem beneficial to the local government unit concerned and its inhabitants.
(c) Local government offices and facilities shall not be transferred,
relocated, or converted to other uses unless public hearings are first conducted
for the purpose and the concurrence of the majority of all the members of the
sanggunian concerned is obtained. (Section 11, LCG)
I. Settlement of boundary disputes( Sec. 118, LGC, Sec 15-19, IRR)
* Section 118. Judicial Responsibility for settlement of Boundary
Dispute. Boundary dispute between and among LGUs shall, as much as possible.
Be settled amicably. To this end:
a. Boundary disputes involving 2 or more barangays in the same city or
municipality shall be referred for settlement to the Sangguniang Panlungsod
Sangguniang Bayan concerned.
b. Boundary disputes involving 2 or more municipalities within the
same province shall be referred for settlement to the Sangguniang Panlalawigan
concerned.
c. Boundary dispute involving municipalities or component cities of
different provinces shall be jointly referred for settlement to the Sangguniang of
the province concerned.
d. Boundary dispute involving a component city or municipality on the
one hand and a highly urbanized city on the other or 2 or more highly urbanized
cities, shall be jointly referred for settlement to the respective Sangguniang of the
parties
e. In the event the Sangguniang fails to present an amicable settlement
within 60 days from the date the dispute was referred thereto, it shall issue a
certification to that effect. Thereafter the dispute shall be formally tried by the
Sangguniang concerned which shall decide the issue within 60 days from the
date of the certification referred to above.
*Sec. 15 definition and policy. There is a boundary dispute when a
portion or a whole of the territorial area of an LGU is claimed by 2 or more
LGUs. Boundary disputes between or among LGUs shall, as much as possible, be
settled amicably.
* Sec.16 Jurisdictional Responsibility. Boundary disputes shall be
referred for settlement to the following:
a. Sangguniang Panlungsod or Sangguniang for those involving 2 or
more barangays in the same city or municipality as the case may be.
b. Sangguniang Panlalawigan for those involving 2 or more
municipalities with in the same province.
c. Jointly, to the Sanggunian of provinces concerned, for those involving
component cities or municipalities of different provinces.
johnicalia (2017-2018)
d. Jointly, to the respective Sangguniang for those involving a
component city or municipality and highly urbanized city of 2 or more highly
urbanized cities.
* Sec. 17 Procedures for settling Boundary Disputes they are 1) filing of
petition 2) contents of petition 3) documents attached to petition (e.g. provincial,
city or barangay map as the case may be technical description of the boundaries
of the LGUs concerned 4) Joint hearing 5) failure to settle amicably (a certification
shall be submitted to the effect 6) Decision 7) Appeal (To the proper RTC)
*Sec 18. Maintenance of Status Quo. Pending final resolution of the
dispute, the status of the affected area prior to the dispute shall be maintained
and continued for all purposes.
* Sec 19. Official Custodian. The DILG shall be the official custodian of
all documents on boundary disputes of LGUs.
i.1 City of Pasig v. COMELEC et.al. 314 SCRA 179
Facts: 2 petitions were raised by the City of Pasig and the municipality of
Cainta respectively. Both Questioned the priority of the suspension of the
scheduled plebiscites for the proposed creation of Barangay Karangalan and
barangay Napico (pursuant to 2 ordinances passed by both cities) Cainta had
contended that the proposed barangays involve areas included in the boundary
dispute between her and Pasig; hence the suspension of the scheduled plebiscites
is justified. Pasig however contends otherwise. Despite this, the COMELEC ruled
against Cainta and the plebiscite for the creation of barangay Napico pushed
through. The core issues now are 1) whether or not the said barangay dispute is a
prejudicial question which must be resolved before any plebiscite can be held
and 2) Whether the plebiscite already conducted ratifying the creation of
Barangay Napico has rendered the issue as to it moot and academic.
Held: Cainta is correct. Reasons
1. Pasig cannot deny that there is a pending boundary dispute between
her and Cainta Surely, whether the area in controversy shall be decided as within
the territorial jurisdiction of the Municipality of Cainta or the City of the Pasig
has material bearing to the proposed barangay Karangalan and Napico. The
importance of drawing with precise strokes the territorial boundaries of an LGU
cannot be overemphasized. The boundaries must be clear for they define the
limits of the territorial jurisdiction of an LGU. It can legitimately exercise powers
of government only within the limits of its territorial jurisdiction. Beyond these
limits, its acts are ultra vires. Needless to state, any uncertainty in the boundaries
of LGUs will sow costly conflicts in the exercise of government powers which
will ultimately the people’s welfare.
2. As was done before in Tan v. COMELEC, the plebiscite already
conducted for the creation of Barangay Napico can be annulled and set aside.
Held: SC held that the plebiscite should be held in abeyance.
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i.2 Mariano vs Comelec
Facts: 2 petitions assail certain provisions of R.A. No. 7854 as
unconstitutional. R.A. No. 7854 is entitled, ―An Act Converting the
Municipality of Makati Into a Highly Urbanized City to be known as the
City of Makati.‖ Section 2 of R.A. No. 7854 did not properly identify the land
area or territorial jurisdiction of Makati by metes and bounds, with technical
descriptions, in violation of Section 10, Article X of the Constitution, in
relation to Sections 7 and 450 of the LGC. Section 2, Article I of R.A. No. 7854
delineated the land area of the proposed city of Makati which provided that
―The Municipality of Makati shall be converted into a highly urbanized city
to be known as the City of Makati, hereinafter referred to as the City, which
shall comprise the present territory of the Municipality of Makati over which
it has jurisdiction bounded on the northeast by Pasig River and beyond by
the City of Mandaluyong and the Municipality of Pasig; on the southeast by
the municipalities of Pateros and Taguig; on the southwest by the City of
Pasay and the Municipality of Taguig; and, on the northwest, by the City of
Manila. The foregoing provision shall be without prejudice to the resolution
by the appropriate agency or forum of existing boundary disputes or cases
involving questions of territorial jurisdiction between the City of Makati and
the adjoining LGUs.‖
Issue: Did the delineation violate sections 7 and 450 of the LGC which
requires that the area of a LGU should be made by metes and bounds, with
technical descriptions?
Held: NO. Any uncertainty in the boundaries of LGUs will sow costly
conflicts in the exercise of governmental powers which ultimately will prejudice
the people's welfare which is the evil sought to be avoided by the LGC. The
Court cannot perceive how this evil can be brought about by the description
made in section 2 of R.A. No. 7854. Petitioners have not demonstrated that the
delineation of the land area of the proposed Makati will cause confusion as to
its boundaries. The said delineation did not change even by an inch the land
area previously covered by Makati as a municipality. Section 2 did not add,
subtract, divide, or multiply the established land area of Makati. In language
that cannot be any clearer, section 2 stated that the city's land area ―shall
comprise the present territory of the municipality.
The deliberations of Congress will reveal that there is a legitimate
reason why the land area of the proposed Makati was not defined by metes and
bounds, with technical descriptions. At the time of the consideration of R.A. No.
7854, the territorial dispute between the municipalities of Makati and Taguig
over Fort Bonifacio was under court litigation. Out of a becoming sense of
respect to a co-equal department of government, the legislators felt that the
dispute should be left to the courts to decide. They did not want to foreclose the
dispute by making a legislative finding of fact which could decide the issue.
This would have ensued if they defined the land area of the proposed city by its
exact metes and bounds, with technical descriptions. The Court takes judicial
notice of the fact that Congress has also refrained from using the metes and
bounds description of land areas of other LGUs with unsettled boundary
disputes.
The Court holds that the existence of a boundary dispute does not
per se present an insurmountable difficulty which will prevent Congress
from defining with reasonable certitude the territorial jurisdiction of a LGU.
Congress maintained the existing boundaries of the proposed Makati but as
an act of fairness, made them subject to the ultimate resolution by the courts.
The Court is not prepared to hold that section 2 of R.A. No. 7854 is
unconstitutional. Congress did not intend that laws creating new cities must
contain therein detailed technical descriptions similar to those appearing in
Torrens titles, as petitioners seem to imply. To require such description in
the law as a condition sine qua non for its validity would be to defeat the
very purpose which the LGC seeks to serve. The manifest intent of the Code
is to empower LGUs and to give them their rightful due. It seeks to make
LGUs more responsive to the needs of their constituents while at the same
time serving as a vital cog in national development. To invalidate R.A. No.
7854 on the mere ground that no cadastral type of description was used in
the law would serve the letter but defeat the spirit of the Code. It then
becomes a case of the master serving the slave, instead of the other way
around. This could not be the intendment of the law.
i.3 Municipality of Kadanga vs Madrona
Facts: A boundary dispute arose between the Municipality of
Kananga and the City of Ormoc. However, no amicable settlement was
reached when they submitted the issue in a joint session of the Sangguniang
Panlungsod of Ormoc City and the Sangguniang Bayan of Kananga.
Consequently, they elevated the issue to the RTC of Ormoc. Petitioner filed
a Motion to Dismiss on the following grounds:
1. The Honorable Court has no jurisdiction over the subject
matter of the claim;
2. There is no cause of action;
3. That a condition precedent for filing the complaint has not
been complied with.
RTC denied the Motion and held that it had jurisdiction over the
action under BP Blg.129. It further ruled that Section 118 of the Local
Government Code had been substantially complied with, because both
parties already had the occasion to meet and thresh out their differences. In
fact, both agreed to elevate the matter to the trial court via a Resolution.

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Issue: WON the RTC of Ormoc City may exercise original jurisdiction
over the settlement of a boundary dispute between a municipality and an
independent component city.
Held: YES; although Section 118 of the Local Government Code finds
no application to the instant case, the general rules governing jurisdiction
should be applied. The applicable provision is found in BP Blg. 129, otherwise
known as the Judiciary Reorganization Act of 1980, as amended by Republic
Act No. 7691. Section 19(6) of this law provides:
Sec. 19. Jurisdiction in civil cases. – Regional Trial Courts shall
exercise exclusive original jurisdiction:
(6) In all cases not within the exclusive jurisdiction of any court,
tribunal, person or body exercising judicial or quasi-judicial
functions.
Since there is no law providing for the exclusive jurisdiction of any
court or agency over the settlement of boundary disputes between a
municipality and an independent component city of the same province,
respondent court committed no grave abuse of discretion in denying the
Motion to Dismiss. RTCs have general jurisdiction to adjudicate all
controversies except those expressly withheld from their plenary powers.
They have the power not only to take judicial cognizance of a case instituted
for judicial action for the first time, but also to do so to the exclusion of all
other courts at that stage. Indeed, the power is not only original, but also
exclusive.
Why is Section 118 inapplicable in the case at bar?
Under Section 118 of the Local Government Code, the settlement of
a boundary dispute between a component city or a municipality on the one
hand and a highly urbanized city on the other -- or between two or more
highly urbanized cities -- shall be jointly referred for settlement to the
respective sanggunians of the local government units involved.
Section 118 of the LGC applies to a situation in which a component
city or a municipality seeks to settle a boundary dispute with a highly
urbanized city, not with an independent component city. While Kananga is
a municipality, Ormoc is an independent component city. Clearly then, the
procedure referred to in Section 118 does not apply to them.
i.4 Municipality of Sta Fe vs Municipality of Aritao
Facts: For the Determination of Boundary Dispute involving the
barangays of Bantinan and Canabuan, the Municipality of Sta. Fe submitted
the issue before the RTC of Bayombong, Nueva Vizcaya. The trial was
almost over when the court realizing its oversight under existing law,
ordered the suspension of the proceedings and the referral of the case to the
Sangguniang Panlalawigan of Nueva Vizcaya. The Sanggunian adopted
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Resolution No. 64 which resolves to adjudicate barangays Bantinan and
Canabuan as parts of Aritao‘s territorial jurisdiction. They then endorsed
the dispute to the RTC for further proceedings.
In the RTC, respondent moved to consider Resolution 64 as final and
executory. The RTC denied the motion ruling that since there was no amicable
settlement in the Sanggunian, the latter cannot issue a decision favoring a party.
Under the law in force, the purpose of such referral was only to afford the parties
an opportunity to amicably settle with the intervention and assistance of the
Provincial Board and that in case no such settlement is reached, the court
proceedings shall be resumed. Respondent filed a motion praying for the
dismissal of the case for lack of jurisdiction since the power to try and decide
municipal boundary disputes already belonged to the Sanggunian.
The RTC granted the motion. The CA affirmed. According to the
CA, a new legislation can be given retroactive effect so long as it is curative
in nature. Thus, the LGC vesting jurisdiction to the Sanggunian was given
retroactive effect. Since the LGC of 1991 is the latest will of the people
expressed through Congress on how boundary disputes should be resolved,
the same must prevail over previous ones. It must be emphasized that the
laws on the creation of LGUs as well as settling boundary disputes are
political in character, hence, can be changed from time to time and the latest
will of the people should always prevail.
Issue: WON the CA erred in affirming the dismissal for lack of
jurisdiction on the ground that at the time of the filing of the motion to dismiss the
original jurisdiction to hear and decide, the case had been vested on the
Sangguniang Panlalawigan and no longer on the RTC..
Held: NO; This Court held that the trial court had jurisdiction to take
cognizance of the complaint when it was filed on October 16, 1980 since the
prevailing law then was Section 2167 of the Revised Administrative Code, as
amended by Sec. 1 of RA 6128. Said law granted the CFI the jurisdiction to hear
and decide cases involving municipal boundary disputes. The antecedents of
the Municipality of Sogod case reveal that it dealt with the trial court‗s
dismissal of cases filed for lack of jurisdiction because at the time of the
institution of the civil actions, the law in force was the old provision of Sec. 2167
of the RAC, which empowered the provincial boards, not the trial courts, to
hear and resolve such cases.
Since the effectivity of R.A. No. 6128, the Sangguniang Panlalawigan has
been the primary tribunal responsible in the amicable settlement of boundary
disputes between or among two or more municipalities located in the same
province.
With the LGC of 1991, however, a major change has been
introduced – that in the event the Sanggunian fails to effect a settlement, it
shall not only issue a certification to that effect but must also formally hear
and decide the case within the reglementary period. Under the LGC of 1991,
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the trial court loses its power to try, at the first instance, cases of municipal
boundary disputes.
The LGC of 1991 grants an expanded role on the Sanggunian
concerned in resolving cases of municipal boundary disputes. Aside from
having the function of bringing the contending parties together and
intervening or assisting in the amicable settlement of the case, the
Sangguniang Panlalawigan is now specifically vested with original jurisdiction
to actually hear and decide the dispute in accordance with the procedures
laid down in the law and its implementing rules and regulations. This
situation, in effect, reverts to the old rule under the RAC, prior to its
amendment by R.A. No. 6128. Moreover, only in the exercise of its appellate
jurisdiction can the proper RTC decide the case.
Considering the foregoing, the RTC correctly dismissed the case for
lack of jurisdiction. Under the rules, it was the responsibility of the court to
dismiss an action ―whenever it appears that [it] has no jurisdiction over the
subject matter.‖ Indeed, the RTC acted accordingly because at the time of the
filing of the motion to dismiss its want of jurisdiction was evident.
i.5 DILG Opinion No. 161-1994
i.6 Article 313, Revised Penal Code
i.7 Municipality of Nueva Era vs Municipality Marcos
Facts: By virtue of EO No.66, the Rancherias of Bugayong,
Cabittaoran, Garnaden, Padpadon, Padsan, Paorpatoc, Tibangran, and Uguis
were united to form the township of Nueva Era. On the other hand, the
Municipality of Marcos was created by virtue of RA 3753. Section 1 of said
Republic Act provides:
SECTION 1. The barrios of Capariaan, Biding, Escoda, Culao,
Alabaan, Ragas and Agunit in the
Municipality of Dingras, Province ofIlocos Norte, are
hereby separated from the said municipality and
constituted into a new and separate municipality to be
known as the Municipalityof Marcos, with the following
boundaries:
On the Northwest, by the barrios Biding-Rangay
boundary going down to the barrios Capariaan-
Gabon boundary consisting of foot path and feeder
road; on the Northeast, by the Burnay River which
is the common boundary of barrios Agunit and
Naglayaan; on the East, by the Ilocos Norte-Mt.
Province boundary; on the South, by the Padsan
River which is at the same time the boundary
between the municipalities of Banna and Dingras;
on the West and Southwest, by the boundary
between the municipalities of Batac and Dingras.
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The Municipality of Marcos shall have its seat of government
in the barrio of Biding.
There is no issue insofar as the first paragraph is concerned which
named only Dingras as the mother municipality of Marcos. The problem,
however, lies in the description of Marcos‘ boundaries as stated in the
second paragraph, particularly in the phrase: ―on the East, by the Ilocos
Norte-Mt. Province boundary.‖ It must be noted that the term ―Mt.
Province‖ stated in the above phrase refers to the present adjoining
provinces of Benguet, Mountain Province, Ifugao, Kalinga and Apayao,
which were then a single province.
Nueva Era was between Marcos and Ilocos Norte-Apayao
boundary such that if Marcos was to be bounded on the east by Ilocos Norte-
Apayao boundary, it would necessarily traverse a part of Nueva Era.
The Sangguniang Panlalawian of Ilocos Norte dismissed Marcos‘ claim for
lack of merit. RTC affirmed SP‘s ruling. On appeal, CA expressed the view
that Marcos adopted the wrong mode of appeal because the said case was
appealable only to the RTC. Nonetheless, they took cognizance of the issue
and reversed the ruling of SP and RTC.
Issue: WON the eastern boundary of Marcos extends over and covers
a portion of Nueva Era.
Held. NO. No part of Nueva Era‘s territory was taken for the creation
of the Municipality of Marcos. As provided in RA 3753, only those specifically
enumerated barrios in Dingras will form part of Marcos’ territory. Nueva
Era’s territory is, therefore, excluded. Under the maxim expressio unius est
exclusio alterius, the mention of one thing implies the exclusion of another thing
not mentioned. If a statute enumerates the things upon which it is to operate,
everything else must necessarily and by implication be excluded from its
operation and effect. This rule, as a guide to probable legislative intent, is based
upon the rules of logic and natural workings of the human mind. Had the
legislature intended other barangays from Nueva Era to become part of Marcos,
it could have easily done so by clear and concise language.
In relation to the procedural aspect, SC held that the CA erred in
declaring that only the RTC has appellate jurisdiction over SP‘s judgment on
settlement of boundary disputes. BP Blg. 129 or the Judiciary
Reorganization Act of 1980, as amended by R.A. No. 7902, vests in the CA
the appellate jurisdiction over all final judgments, decisions, resolutions,
orders or awards of RTCs and quasi-judicial agencies, instrumentalities,
boards or commissions, among others. CA need not treat the appeal via
petition for review filed by Marcos as a petition for certiorari to be able to
pass upon the same. B.P. Blg. 129, as amended, which is supplemented by
Rule 42 of the Rules of Civil Procedure, gives the CA the authority to
entertain appeals of such judgments and final orders rendered by the RTC
in the exercise of its appellate jurisdiction.
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i.8 Sta Lucia Realty vs City of Pasig
Facts: Sta. Lucia Realty & Development, Inc. is the registered
owners of several parcels of land located in Barrio Tatlong Kawaayan. The
City of Pasig filed a complaint against Sta. Lucia for the collection of real
estate taxes. According to Sta. Lucia, the subject property is within the
boundaries of Cainta. Sta. Lucia have been paying their real estate taxes in
Cainta like their predecessors-in-interest did although the TCTs of the
subject property indicate that the properties were in the locality of Pasig.
Cainta has already filed a petition for the settlement of boundary
dispute with Pasig before the RTC of Antipolo when this complaint for
collection of taxes was filed by Pasig. RTC ruled that the TCTs were
conclusive evidence as to ownership and location, therefore, the subject
properties were ruled to be in Pasig. CA, however, set aside the ruling of the
RTC, and said that the boundary dispute case presented a ―prejudicial
question which must be decided before Pasig can collect the realty taxes due
over the subject properties. Pasig sought to have the decision reversed in a
petition for certiorari, eventually, CA affirmed RTC‘s ruling and held that
―there can be on prejudicial question when the cases involved are both civil.
Issue: WON Sta. Lucia should continue paying its real property taxes
to Cainta, as it alleged to have always done, or to Pasig, as the location stated in
Sta. Lucia‘s TCTs.
Held: PREJUDICIAL QUESTION IS PRESENT IN THE CASE AT
BAR. While we fully agree that a certificate of title is conclusive as to its
ownership and location, this does not preclude the filing of an action for the
very purpose of attacking the statements therein. In Pioneer Insurance and
Surety Corporation v. Heirs of Vicente Coronado, we set aside the lower courts‘
ruling that the property subject of the case was not situated in the location
stated and described in the TCT, for lack of adequate basis. Our decision was in
line with the doctrine that the TCT is conclusive evidence of ownership and
location. However, we refused to simply uphold the veracity of the disputed
TCT, and instead, we remanded the case back to the trial court for the
determination of the exact location of the property seeing that it was the issue in
the complaint filed before it.
Although it is true that ―Pasig‖ is the locality stated in the TCTs of
the subject properties, both Sta. Lucia and Cainta aver that the metes and
bounds of the subject properties, as they are described in the TCTs, reveal
that they are within Cainta‘s boundaries. This only means that there may be
a conflict between the location as stated and the location as technically
described in the TCTs. Mere reliance therefore on the face of the TCTs will
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not suffice as they can only be conclusive evidence of the subject properties‘
locations if both the stated and described locations point to the same area.
In light of the foregoing, we hold that the Pasig RTC should have
held in abeyance the proceedings in this civil case, in view of the fact that the
outcome of the boundary dispute case before the Antipolo RTC will
undeniably affect both Pasig‘s and Cainta‘s rights. In fact, the only reason
Pasig had to file a tax collection case against Sta. Lucia was not that Sta.
Lucia refused to pay, but that Sta. Lucia had already paid, albeit to another
local government unit. Evidently, had the territorial boundaries of the
contending local government units herein been delineated with accuracy,
then there would be no controversy at all.
In the meantime, to avoid further animosity, Sta. Lucia is directed
to deposit the succeeding real property taxes due on the subject properties,
in an escrow account with the Land Bank of the Philippines.
i.9 Umali vs Comelec
J. Naming of LGU naming of LGUs and public places, streets and structures
* Sec 13, LGC, Art 20-23, IRR
a. The Sangguniang Panlalawigan may in consultation with the
Philippine Historical Commission (PHC), change the name of the following
within territorial jurisdiction:
1. Component cities and municipalities upon the recommendation of
the Sangguniang concerned.
2. Provincial roads, boulevards, avenue, thoroughfares and bridges
3. Public vocational or technical school and other post-secondary and
tertiary schools
4. Provincial hospitals, health centers and other health facilities
5. Any other place or building owned by the provincial government.
b. The Sangguniang of highly urbanized cities and of component cities
whose charters prohibit their voters from voting for provincial electrical officials,
hereinafter referred to in this code as independent component cities may in
consultation with the PHC change the name of the following within its territorial
jurisdiction:
1. City barangays, upon the recommendation of the Sangguniang
barangay concerned.
2-5 essentially the same as (a) nos. 2-5 above except only to those within
its territorial jurisdiction.
c. The sanggunians of component cities and municipalities may, in
consultation with its territorial.
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d. None of the foregoing LGUs institutions, places, or buildings shall be
named after a living person nor a change of name be made unless for a justifiable
reason and in any case not oftener than once every 10 years. The name of an LGU
or a public place, street or structure with historical, culture or ethic significance
shall not be changed, unless by a unanimous vote of the sanggunian concerned
and in consultation with the PHC.
e. A change in name of a public school shall be made only upon the
recommendation of the local school board concerned.
f. A change in name of public hospitals, health centers, and other health
facilities shall be made only upon the local board concerned.
g. In any change of name, the office of the president, the representative
of the legislative district concerned and the bureau of posts shall be notified.
Note: Letters (d) to (b) are the limitations in the change of name of a local
government unit institution or places or buildings.
* Art. 20-22 IRR These articles are essentially copied from sec 13 (a) (b)
and (c),LGC See for yourself
* Art.23, IRR Guidelines and limitation
a. No name of LGUs, public places, street and structures with historical,
culture or ethnic significances shall be changed, unless with unanimous vote of
the sanggunian and in consultation with the National Historical Institution
(NHI).
b. No change in the name of an LGU shall be effective unless ratified in
a plebiscite called for that purpose.
c. Naming shall be subject to the following conditions:
1. Naming after leaving person shall be not followed.
2. A chance in the name shall only be for a just able reason.
3. Any change shall not be made more than once every ten years.
4. A chance in name of a local public school shall be made upon the
recommendation of the school board.
5. A chance in name of local public hospital, health center and other
health facilities only upon the recommendation of the local school board.
6. The whole line of the street shall have only.
7. The name of the family in a particular community whose members
contributed significantly to the welfare of the Filipino people maybe used.
d. The office of the president, the representative of the legislative district
concerned, and the postal service shall be notified of any change in name of
LGUs, public places, streets and structures
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RA 1059 – June 12 1954
RA 8525 – Adopt a School Program Law
K. Rules of interpretation, (Sec 5, LGC)
*Sec. 5. Rules of Interpretation. In the interpretation of the provisions of
this Code, the following rules shall apply:
a. Any provision on a power of local government shall be liberally
interpreted its favor, and in case of doubt, any question thereof shall be reserved
in favor of devolution of powers and the lower LGU. Any and reasonable doubt
as to the existence of the power shall be interpreted in favor of LGU concerned.
b. In case of doubt, any tax ordinance or revenue measure shall be
construed strictly against the LGU enacting it, and liberally in favor of the tax
buyer. Any tax exemption, relief of incentive granted by any LGU pursuant to
the provisions of this code shall be construed strict against the person claiming it.
c. The general welfare provision of this code shall be liberally
interpreted to give more powers LGUs in accelerating economic development
and upgrading the quality of life for the people in the community.
d. Rights and obligations existing on the effective of this code and a
rising out contact or any other source of presentation involving an LGU shall be
governed by the original terms conditions of contracts or the law in force at the
time such rights were vested.
e. In the resolution of controversies arising under this code where no
legal provision of jurisprudence applies, resort may be had to the customers and
traditions of the place where the controversies took place.
k.1 Principle of devolution (See Sec 17 [4] (c) and (i) LGC}
* Sec 17, LGC. Basic Services and Facilities.
a. LGUs shall endeavor to be self-reliant and shall continue exercising
the powers and discharging the duties and functions currently vested upon
them. They shall also discharge the functions and responsibilities of national
agencies and offices devolved to them pursuant to this code. Local government
shall likewise exercise such other powers and discharge such other functions and
responsibilities as are necessary appropriate or incidental to efficient and
effective provision of the basic services and facilities enumerated herein;
[4] For a city
All the services and facilities of the municipally and province, and in
addition thereto, the following:
a. Adequate communication and transportation facilities.
b. Support for education, police and fire services and facilities
b. National agencies or offices concerned shall devolve to LGUs the
responsibility for the provision of basic service and facilities enumerated in this
section within six months from the effect of this code
As used in this code the term devolution refers to the act by which the
National Government confers power and authority upon the various LGUs to
perform specific functions and responsibilities.
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c. The devolution contemplated in this Code shall include the transfer to
LGUs of the records ,equipment, and other assets and personnel of national
agencies and offices corresponding to the develop powers, function and
responsibilities personnel of said national agencies or office shall be absorb by
the local government units to which they belong or in whose areas they are
assigned to the extend that it is administratively viable as determined by the said
oversight community Provided, That the right accorded to such personnel
pursuant to civil service law, rules of similar regulation shall not be impaired
Provided for their, That regional directors who are career service executed
officers and other officers of similar rank in the said regional offices who cannot
be absorbed by the LGU shall be retained by the National Government, without
any revolution of rank, salary or tenure.
Plaza vs Casion
Facts: Before the passage of Republic Act No. 7160, the task of
delivering basic social services was dispensed by the national government
through the Department of Social Welfare and Development (DSWD). Upon
the promulgation and implementation of the Local Government Code, some
of the functions of the DSWD were transferred to the local government
units.
Through a resolution by Sangguniang Panglungsod, Mayor Democrito D.
Plaza II signed a Memorandum of Agreement for the Devolution of the
DSWD to the City of Butuan. Latter‘s services, personnel, assets and
liabilities, and technical support systems were transferred to its city
counterpart.
By virtue of the MOA, Mayor Plaza issued Executive Order (EO)
No. 06-92 dated reconstituting the City Social Services Development Office
(CSSDO), devolving or adding thereto 19 national DSWD employees headed
by petitioner Virginia Tuazon, Social Welfare Officer V. Mayor Plaza
designated her Officer-in-Charge of the reconstituted CSSDO. Its office was
transferred from the original CSSDO building to the DSWD building.
The CSSDO was originally composed of herein respondents,
headed by Carolina M. Cassion, Social Welfare Officer IV. Aggrieved by
such development, they refused to recognize petitioner Tuazon as their new
head and to report at the DSWD building. They contended that the issuance
of EO No. 06-92 by Mayor Plaza and the designation of petitioner Tuazon as
Officer-in-charge of the CSSDO are illegal.
Despite Mayor Plaza‘s series of orders to respondents to report for
work at the DSWD building, they failed to do so. Hence, they were charged
administratively for grave misconduct and insubordination and were
suspended. But they remain obstinate, so Mayor Plaza decided issued an
order dropping respondents from the rolls.
Issue: Is Mayor Plaza empowered to issue EO No. 06-92 in order to
give effect to the devolution and have authority over the respondents?
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Held: Yes. Section 17 of the Local Government Code authorizes the
devolution of personnel, assets and liabilities, records of basic services, and
facilities of a national government agency to local government units. Under this
Code, the term ―devolution‖ refers to the act by which the national government
confers power and authority upon the various local government units to
perform specific functions and responsibilities. As a consequence of the
devolution of national agencies, Executive Order No. 503 was enacted by then
President Corazon C. Aquino to govern and ensure the efficient transfer of
responsibilities to the local government unit concerned. Section 2 (g) provides:
―The local chief executive shall be responsible for all devolved functions.
He may delegate such powers and functions to his duly authorized
representative whose position shall preferably not be lower than the rank of
a local government department head. In all cases of delegated authority, the
local chief executive shall at all times observe the principle of command
responsibility.‖ Section 2 (a) states that:
―Except as herein otherwise provided, devolved permanent personnel shall
be automatically reappointed by the local chief executive concerned
immediately upon their transfer which shall not go beyond June 30, 1992.‖
Likewise, Section 22 of CSC Memorandum Circular No. 19, Series
of 1992, specifies that:
―The positions absorbed by the local government units from the national
government agencies shall be automatically created upon transfer of their
corresponding budgetary allocation. ―Devolved permanent personnel shall
be automatically reappointed by the local chief executive concerned
immediately upon their transfer. ―However, pending the completion of the
new organizational structure and staffing pattern, the local government
executives may assign devolved personnel to divisions/sections/units
where their qualifications are best suited or appropriate.‖
It is thus clear that Mayor Plaza is empowered to issue EO No. 06-
92 in order to give effect to the devolution decreed by the Local Government
Code. As the local chief executive of Butuan City, Mayor Plaza has the
authority to reappoint devolved personnel and may designate an employee
to take charge of a department until the appointment of a regular head, as
was done by the Mayor here.
Civil Service Commission vs Dr. Agnes Yu
Facts: In 1992, the national government implemented a devolution
program pursuant to Republic Act (R.A.) No. 7160, otherwise known as the
"The Local Government Code of 1991," which affected the Department of Health
(DOH) along with other government agencies. Prior to the devolution, Dr.
Fortunata Castillo held the position of Provincial Health Officer II (PHO II)
of the Department of Health (DOH) Regional Office No. IX in Zamboanga
City and was the head of both the Basilan Provincial Health Hospital and
Public Health Services. Respondent Dr. Agnes Ouida P. Yu, on the other
hand, held the position of Provincial Health Officer I (PHO I). She was
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ATTY. MAURICIO ULEP
assigned, however, at the Integrated Provincial Health Office in Isabela,
Basilan.
Upon the implementation of the devolution program, then Basilan
Governor Gerry Salapuddin refused to accept Dr. Castillo as the incumbent
of the PHO II position that was to be devolved to the local government unit
of Basilan, prompting the DOH to retain Dr. Castillo at the Regional Office
No. IX in Zamboanga City where she would serve the remaining four years
of her public service. Meanwhile, or two years after the implementation of
the devolution program, Governor Salapuddin appointed Dr. Yu to the PHO
II position.
Through Republic Act No. 8543, The Basilan Provincial Hospital in the
Municipality of Isabela, Province of Basilan, was converted into a Tertiary Hospital
Under the Full Administrative and Technical Supervision of the Department of
Health. The hospital positions previously devolved to the local government
unit of Basilan were re-nationalized and reverted to the DOH. The Basilan
Provincial Health Hospital was later renamed the Basilan General Hospital,
and the position of PHO II was then re-classified to Chief of Hospital II.
While Dr. Yu was among the personnel reverted to the DOH with
the re-nationalization of the Basilan General Hospital, she was made to
retain her original item of PHO II instead of being given the re-classified
position of Chief of Hospital II. Subsequently, then DOH Secretary Manuel
M. Dayrit appointed Dr. Domingo Remus A. Dayrit to the position of Chief
of Hospital II.
Aggrieved, Dr. Yu filed a letter of protest before the CSC claiming
that she has a vested right to the position of Chief of Hospital II.
CSC initially ruled in favor of Dr. Yu, however upon MR it declared that the
position of PHO II was never devolved to the Provincial Government of
Basilan but was retained by the DOH. The PHO II position held by Dr. Yu
was a newly-created position; and that, therefore, she did not have a vested
right to the Chief of Hospital II position. Petitioner appealed to CA and
ruled in her favor.
Issue: Is the PHO II position previously occupied by respondent Yu a
devolved position?
Held: Yes. In pursuance of the declared policy under The Local
Government Code of 1991 (R.A. No. 7160) to provide for a more responsive and
accountable local government structure through a system of decentralization,
national agencies or offices, including the DOH, were mandated to devolve to
the local government units the responsibility for the provision of basic services
and facilities.
―Devolution" is the act by which the national government confers power
and authority upon the various local government units to perform specific
functions and responsibilities.[12] Specifically, Section 17(i) of the same Code
prescribes the manner of devolution, as follows:
(i) The devolution contemplated in this Code shall include the transfer to
local government units of the records, equipment, and other assets and
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personnel of national agencies and offices corresponding to the devolved
powers, functions and responsibilities.
Personnel of said national agencies or offices shall be absorbed by the local
government units to which they belong or in whose areas they are assigned
to the extent that it is administratively viable as determined by the said
oversight committee: Provided, further, That regional directors who are career
executive service officers and other officers of similar rank in the said
regional offices who cannot be absorbed by the local government unit shall
be retained by the national government, without any diminution of rank,
salary or tenure.
To ensure the proper implementation of the devolution process,
then President Corazon C. Aquino issued Executive Order (E.O.) No. 503,
otherwise known as the "Rules and Regulations Implementing the Transfer
of Personnel and Assets, Liabilities and Records of National Government
Agencies Whose Functions Are To Be Devolved To The Local Government
Units And For Other Related Purposes," which laid down the following
pertinent guidelines with respect to the transfer of personnel:
Section 2. Principles and Policies Governing Transfer of Personnel.
Tenure, Compensation and
Career Development. — xxx
2. The absorption of the NGA personnel by the LGU shall be
mandatory, in which case, the LGUs shall create the equivalent positions of
the affected personnel except when it is not administratively viable.
3. Absorption is not administratively viable when there is a
duplication of functions unless the LGU opts to absorb the personnel
concerned.
4. The national personnel who are not absorbed by the LGUs under
no. 3 above, shall be retained by the NGA concerned, subject to civil service
law, rules and regulations. xxx
12. Except as herein otherwise provided, devolved permanent personnel
shall be automatically reappointed by the local chief executive concerned
immediately upon their transfer which shall not go beyond June 30, 1992.
xxx
On the basis of the foregoing, it was mandatory for Governor Salapuddin to
absorb the position of PHO II, as well as its incumbent, Dr. Fortunata
Castillo. Highlighting the absence of discretion is the use of the word "shall"
both in Section 17 (i) of R.A. No. 7160 and in Section 2(a)(2) of E.O. No. 503,
which connotes a mandatory order. Its use in a statute denotes an imperative
obligation and is inconsistent with the idea of discretion. The only instance
that the LGU concerned may choose not to absorb the NGA personnel is
when absorption is not administratively viable, meaning, it would result to
duplication of functions, in which case, the NGA personnel shall be retained
by the national government. However, in the absence of the recognized
exception, devolved permanent personnel shall be automatically
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reappointed [Section 2(a)(12)] by the local chief executive concerned
immediately upon their transfer which shall not go beyond June 30, 1992.
Assailed decision was AFFIRMED.
Republic vs Daclan
k. 2 Badua v. Cordillera Bodong Administration, 94 SCRA 10
Facts: In 1996.David Quema as the owner of 2 parcels of land in Lacaga,
Lumaba, Villaviciosa, Abra mortgaged said parcels of land of 6,000 to Dra.
Erotida Valera. He was able to redeem the land of 22 years later, long after Dra.
Valera had already died. He allegedly was able to pay the redemption price of
Dra. Valera’s heir. Spouses Leonor and Rosa Badua alleged however that Dra.
Valera sold the land to her while she was still alive. However, Rosa could not
produce the deed of sale because it was allegedly in the possession of Vice-
governor Benesa.
As Quema was prevented by Rosa from cultivating the land, Quema,
instead of filling a case with the provincial courts, filed it instead with the Maeng
Tribal Court of the Cordillera Bondong Administration (CBA) In 1989, The tribal
court rule in favor of Quema when the Baduas refused to vacate the subject land,
they (the Baduas) received a warning order from the Cordillera People’s
Liberation Army. The Baduas the felid a special and extraordinary relief with the
SC, which was duly treated as a petition for certiorari and prohibition,
questioning the jurisdiction and legal personality of the Maeng Tribal Court, the
CBA and the CPLA.
Held: The petition is that the Cordillera Autonomous Region (CAR)
never came into legal existence as a consequence of the Ordillo v. COMELIC
ruling. As a result, the Maeng Tribal Court was not constituted into an advisory
or special court under R. A.6766. Instead, it is just an ordinary tribal court with
mere advisory and conciliatory power to make peace, settle and compromise.
Such courts are not considered part of Philippine judicial system. By analogy to
the pangkat or conciliatory panels created under P.D.1508, if the Badua had
failed to seasonably repudiate the Maeng Tribal Court’s decision, said decision
would have had the force and effect of a final judgment in court. As was shown,
the Baduas did file a timely petition with the SC.
IV. POWERS OF MUNICAL CORPORATION (MC)
I. Sources of Power
1. Constitution of a state
2. Statutes of a state including a) those applicable to all municipal
corporation or to the class to which the particular municipal corporation belongs
and b) special act of the legislature, as far as authorized, applicable to the
particular municipal corporation.
3. The charter
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4. Doctrine of inherent right of self-government with respect to certain
municipal matters (applicable to states which adhere to it).
II. Classification of Power
1.) Express, implied and inherent power
a. Express - those granted in express word by the special
charter or the general law under which corporation is organized.
b. Implied- those granted which arise by natural implication
from the granted of express power or by necessary inference from the purposes
or function of the corporation (e.g. an ordinance to prevent fires necessarily
carries with it the authority to chase fire trunks).
c. Inherent-those which are necessary and inseparable from
every corporation, and which come into existence as a matter of course as soon as
an MC is created they are:
1. To have perpetual succession
2. To sue and be sued, implead, grant and receive by its
corporation name and other acts as a judicial person
3. To make by laws and ordinances for the government of the
corporation.
4. To make and ordinance for the government of the
corporation.
Note: Usually these so-called inherent powers are expressly provided in MCs
charter.
2.) Legislative and executive powers
a. Legislative – authority to make laws
b. Executive – authority to enforce laws
NOTE: The test to determine what is legislative and what is
administrative is whether the ordinance is one making a new or one executing
law already in existence. The former is legislative; the latter’s executive.
3.) Intramural and extramural powers
1.) Intramural – those exercised within the corporate limits of a
municipal corporation.
2.) Extramural – those exercised without like those given for the
protection of water supply, prevention of Nuisance, and also for police purposes.
4.) Governmental and municipal powers
1.) Governmental – those exercised by the corporation in administering
the powers of the state and promoting the public welfare within. They include
those which are legislative, judicial, public and political. Specific examples are:
Administration of justice, police power; eminent domain; promotes public
education; fire prevention and safety; and all other powers to be exercised by the
MC as an agent the State, for the benefit of the public or of the exercise of which
the corporation receives consideration.
2.) Municipal – those exercised for the specified benefits and advantage
of the urban community and they include those which are ministerial,
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preemptory, private and corporate plans of which the corporation receives no
compensation.
5.) mandatory and discretionary powers
a.) Mandatory – those the exercise of which are required of
municipal corporations.
b.) Discretionary – those which the corporations may perform
or not depending upon own judgment and discretion.
III. Intent behind powers granted to LGUs
Kulayan vs Tan
IV. Consultation with LGU before National Project is implemented
Republic s Lazo
V. Kinds of Powers
A. Police Power (General Welfare Clause) and the limitations on the
exercise (Sec. 16, LGC)
1. Police Power – the power to prescribe regulations to promote health,
moral, peace, education, good order or safety and general welfare of the people.
It is the most essential insistent and illimitable of power. It is elastic and must be
responsive to various social conditions. Police power is inherent in the State but
not in municipal corporations. In order that a municipality corporation may
exercise police power, there must be a legislative grant which necessarily also
sets limits for the exercise of the power.
2. General Welfare Clause (Sec. 16, LGC) Every LGU shall exercise the
power expressly granted, those necessarily implied there from, as well as the
powers necessary, appropriated incidental for its efficient and effective
governance, and those which are essential to the promotion of general welfare.
Within their respective territorial jurisdictions, LGU’s shall ensure and support
among other things, he preservation and enrichment of culture, promote health
and safety, enhance the right people to balanced ecology, encourage and support
the development of appropriate the self-reliant scientific and technological
capabilities, improve public morals, enhance economic prosperity and social
justice, promote full employment among their residents, maintain peace and
order and preserve the comfort and convenience of their inhabitant.
3. Limitations on the exercise - a police power measure may be struck
down as invalid if it does not meet tests a.) The interest of the public generally, as
distinguish from those of a particular class, requires the exercise of the police
power and b.) The means employed are reasonably necessary for the
accomplishment of the purpose and not unduly oppressive upon individuals.
Related Laws:
RA 8369 Sections 8 and 11 ( Family Courts Law
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RA 8425 Sec 12 ( National Anti Poverty Commission)
RA 8435 Secs 90,99, 101 ( Agriculture and Fisheries Modernization Act)
RA 8975 Section 3 ( Implementation and Completion of infrastructure projects)
RA 9275 Sec 20 (Comprehensive Water Quality Management Law)
1. Definition
Binay y Domingo 201 SCRA 508
Facts: On Sept 27, 1988, the Municipality of Makati, through its Council,
approved Resolution No. 60, which provided for a burial assistance program by
the office of the mayor. Said program aims to extend financial assistance of P500
to bereaved families whose income does not exceed P2, 000. The Commission on
Audit (COA) disapproved Res. No. 60 on the grounds that the said resolution 1.)
did not have an obvious or real connection to the public safety, health, morals or
general welfare in order to be sustained as a legitimate exercise of police power;
and 2.) said resolution only benefits few individuals when it should benefit the
inhabitants of the municipality as a whole. Mayor Jejomar Binay now petitions
the SC that the Resolution be declared a valid exercise of the police power.
Held: The COA is wrong Reasons:
1. COA tried to redefine for itself the meaning of police power. Police
power is not capable of an exact definition. It is not limited to peace, order,
morals and all the crap but is broadened to deal with conditions which exists so
as to bring out of them the greatest welfare of the people by promoting public
convenience or general prosperity, and everything worthwhile for the
preservation of comfort of the inhabitants of the corporation. (wow)
2. COA is not attuned to the changing times. Public purpose is not
unconstitutional merely because it incidentally benefits a limited number of
persons. The drift is toward social welfare legislation geared towards state
policies to provide adequate social services, the promotion of the general welfare,
social justice, as well as human dignity and respect for human rights.
2. Nature of Power
De la Cruz v. Paras 123 SCRA 569
Facts: The Municipal Council of Bocaue, Bulacan passed Ordinance No.
84 which among others, state: “ Being the principal cause in the decadence of
morality and because of their other adverse effects on the community as
explained above no operator night club, cabarets and dance halls shall henceforth
be issued permits/licenses to operate within the jurisdiction of the municipality
and no license/permit shall be issued to any professional hostess, hospitality
girls and professional dance for employment in any of the aforementioned
establishments. The prohibition x x x shall include the prohibition in the renewal
thereof.”
Vicente de la Cruz and other club owners assailed this Ordinance
(among the respondents was Edgardo L. Paras, the judge who ruled against
them at the lower court and who was a former Associate Justice of the SC),
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claiming that1.) Municipality had no authority to prohibit a lawful business or
calling and 2.) the Ordinance violated their right to due process and equal
protection of the laws as they and the professional hostess, et. Al who works for
them are being deprived of their property rights without due process of law.
Held: The Court ruled in favor of de la Cruz Reasons.
1. In the guise of a police regulation, the Ordinance invaded personal or
property rights personal in the case of those individuals desirous of patronizing
their night clubs, and property in terms of the investments made and salaries to e
earned by those therein employed.
2. Under the LGC of 1983, the Sanggunian Bayan is allowed to regulate,
among others, the establishment and operation of billiard pools, theatrical
performances, circuses and other forms of entertainment…”That the Municipal
Council of Bocaue is allowed to regulate but not to altogether prohibit such
establishment is all too clear.
City of Manila vs Laguio
White Light Corp vs City of Manila
3. Requisites
Parayno vs Jovellanos
4. Test to invoke police power as the rationale for the valid passage of
ordinance
Fernando vs Scholasticas College
4. Police power and Nuisance
Iloilo Cold Storage v. Municipal Council 24 Phil 471
Facts: The Municipal Council of Iloilo granted the Iloilo Ice Cold
Storage Company (ICS) authority to construct an ice cold storage plant in the city
of Iloilo. Some time later, residents within the vicinity of said plant complained
of the smoke and fumes emitted by the smokestacks of the said plant. The
Municipal Council thus ordered the ICS to elevate the subject smokestacks;
otherwise the plant would be enforced to close down. ICS replied that the
Municipal Council has no power under the Municipal Code to declare their plant
as a nuisance. Only the counts may do so.
Held: ICS is correct Reasons:
1.) it is conceded that 39(j) of the Municipal code empowers the
Municipal Council to declare and abate nuisances, However, there is a
distinction between a nuisance per se and nuisance per accidens. The first refers
to those which are unquestionably and under all circumstances, nuisances. The
second is well obviously, the opposite of the first.
2.) The question now is whether the Municipal Council has the blanket
authority to declare anything as a nuisance. The court ruled in the negative, the
reason being that everything would be at the uncontrolled will of the local
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authorities, In order words, while the Municipal Council has the power to
declare and abate nuisance it does not have the power to declares such nuisance
as a fact and that it exists. Only the ordinary courts can determine the fact of
nuisance. The ice plant in question can be definitely said to be not nuisance per
se.
The Homeowners Association of El Deposito Barrio Corazon de Jesus, San
Juan Rizal vs Lood
Technological developers, Inc. y CA 193 SCRA 147
Facts: Technology Developers Inc. (TDI) is a domestic private
corporation engaged in the manufacture and export of charcoal briquette. It
received an order from Acting Mayor Pablo Cruz ordering he full cessation of
TDI’s plant in Guyong Sta. Maria, Bulacan. Also TDI Plant manager Armando
Meneses was ordered to appear before the said mayor and produce the following
a.) Building permit b.) Mayor’s Permit c.) Region III Pollution of Environment
and Natural Resources Anti-Pollution Permit, and other documents.
TDI was found to lack a Mayor’s Permit and the Region III-Pollution of
Environment and Natural Resources Anti-Pollution Permit. Without previous
and reasonable notice to TDI, Acting Mayor Cruz ordered the padlock of TDI’s
plant.
TDI was granted a writ of preliminary injunction against the Acting
Mayor’s order. Upon motion for reconsideration, Acting Mayor Cruz presented
evidence that TDI’s plant produce hazardous fumes which endangered the lives
of the people living nearby. Based on the evidence presented, the trial court
dissolved the writ. An appeal by TDI with the CA proves fruitless. Thus, TDI
sought relief with the SC.
Held: TDI's petition has no merit. The simple reason is that TDI failed to
secure a Mayor’s Permit and Region III-Pollution of Environment and natural
Resources Anti-Pollution Permit. The Temporary Permit it received from the
national Pollution Control Commission has already expired.
Estate of Gregoria Franciisco vs CA
AC Enterprises vs Frabelle Prop Corp
Tayaban vs People
Gancayco vs City Govt of Quezon City
Legaspi vs City of Cebu
Aquino vs Municipality of Malay, Aklan
6. Limitations of the Exercise
American Mail Line v. City of Basilan 2 SCRA 309
Facts: On Sept. 12, 1955, the City Council of Basilan City enacted
Ordinance No. 180, amending Title Iv, Ordinance No. 7, which read as follows:
“Article IV Regulation of berthing, mooring, docking and anchoring at piers or
wharves at any point within the City of Basilan and for anchoring at any open
39 PUBLIC CORPORATION
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bay, channel or any point within the territorial waters of the City of Basilan.”
Ordinance No. 180 also added a new paragraph as an amendment with read:
“Any foreign vessel engaged in otherwise trade which may anchor at any open
bay, channel or any loading point within the territorial limits of the City of the
City of Basilan for the purpose of unloading logs or passengers and other cargoes
shall pay an anchorage fee of ½ centavo (P0.50) per registered gross ton of the
vessel for the first 24 hours or part of thereof and for succeeding hours part
thereof, provided that maximum charge shall not exceed P75 per day,
irrespective of the greater tonnage of shippage.”
Several foreign shipping companies, including American Mail Lines
questioned the validity of such an ordinance with regards to the right of City of
Basilan to impose such a fee. The City of Basilan answered that heir power to
enact such an ordinance is based on a city’s exercise of its revenue raising or of
its police power. To support their contention, Basilan presented their Charter
(R.A. 288) which states: “Sec. 14 General Powers and Duties of the Council.
Except as otherwise provided by law, and subject to the conditions and
limitations thereof, the Council, the Council shall have the following legislative
powers: a.) To levy and collects taxes for general and special purposes in
accordance with law x x x c) To enact ordinances for the maintenance and
preservation of peace and good morals x x x v) fix the charges to be paid by all
watercraft at or using public wharves, docks, levees, or landing places.
Moreover, Basilan said the fees in question are for a regulatory purpose, the
reason being the island is a potential haven for smugglers and other illegal
activities (the understatement of the century). Who is correct?
Held: American Mail Line is correct Reasons:
1. First of all, the phrase, in accordance with the law in Sec. 14 a.) of the
Charter means that the City of Basilan is not given a blanket taxation power.
2. It is automatic that the power to regulates as an exercise of police
power does not include the power to impose fees for revenue purposes. Thereof,
Basilan’s claim that Ordinance No. 180 is for a regulatory purpose and not just
for revenue purpose won’t save said Ordinance from invalidity. Moreover, the
maximum charge of P75 is more than what the National Government imposes
for harbor fees.
3. Basilan’s Charter also grants Basilan the power to fix charges to be
paid by all watercraft landing at or using public wharves, docks, and levies or
landing places. Said provision does not authorize Basilan to collect anchorage
fees as can be shown by the need of Basilan to enact the amendatory ordinance.
(Huh? Excuse me?)
Zoomzat vs People
OTHER ILLUSTRATIVE CASES
US v. Pompeya 31 Phil 245
Facts: On June 1, 1914, Silvestre Pompeya was charged with violation of
municipality ordinance of Iloilo, E. O. No. 1 series of 1914 based on section 40
(m) of Municipal Cod. Said ordinance, as based from Act 1309, states. “With the
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approval of provincial governor, when a province of municipality is infested
with ladrones or outlaws the municipality council is empowered to authorize the
able-bodied male residents of the municipality between the ages of 18 to 50
years, to assist, for a period not exceeding 5 days in any one month, in
apprehending ladrones, robbers and other lawbreakers and suspicious characters
and to act as patrols for the protection of the municipality, not exceeding one day
in each week.” Violation of said ordinance is penalized by a fine not less than
P100 or 3 months imprisonment or both. Pompeya argues that the said ordinance
violates the citizen provisional right to liberty.
Held: Pompeya is just plain lazy (in other words, Pompeya is wrong).
Way back during the feudal age, lords of manors have called upon their vassals
to defend the very land they till upon. Even up to the time remote towns and
countries have made it obligatory upon their citizens to defend their territory
from felons. The ancient obligation to assist in the protection of peace and good
order of the community is still recognized in all well-organized governments in
the “posse comitatus” (power of the country). Posse comitatus is in other words
common law and Act 1309 is statutory recognition of such common-law right.
Overall, the State is simply exercising its police power.
US v. Toribio 15 Phil. 86
Facts: Act No. 1147 regulates the registration, branding and slaughter of
cattle. Its provisions state among others that 1.) no large cattle shall be slaughter or
killed for food at the municipal slaughterhouse except upon permit secured from the
municipal treasure and 2.) any person violating this Act shall be punished by line
of up to P500 or imprisonment of up to 6 months or both. Convicted under said
Act, Luis Toribio insists that he had not violated any law since. If you read the
provision quite carefully, there was no showing that the animal he slaughtered
was committed inside a municipal slaughterhouse and that thereof, any animal
he slaughters elsewhere does not require a permit from the municipal treasure.
Held Toribio is wrong. The act primarily seeks to protect large cattle of
the Philippines against them and to make easy the return and recovery of such
cattle to their proper owners when lost. Strayed or stolen therefore the act can
also be constructed as to require a permit for all slaughter of cattle whether in or
out of a municipal slaughterhouse. And if as a result, the language of the statue
is fairly susceptible of two or more constructions, that construction can be
adopted which will tell most to give effect to the manifest intent of the law maker
and promote the object for which the statue was enacted, and a construction
should be rejected which will tend most to tender abortive other provision of the
statue. Thus, Toribio’s construction of the law should not be adopted and be
replaced instead with the omniscient SC.
Another reason for the adoption of the second construction is that it is
more attuned to the exercise of the police power of the state, in order to protect
the community from the lost of service of such animals by their slaughter by
improvised owners.
Ynot vs IAC
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Solicitors Generally MMA No. 204 SCRA No. 837
Facts: On May 24, 1990 the Metropolitan Manila Authority (MMA)
issued ordinance No. 11 series of 1991 authorizing itself “to detach the license
plates of motor vehicles for traffic violation was not among the sanction imposed
by the Metro Manila Commission under PD 1605 and was permitted only under
the conditions laid down by Letter of Instruction 43 in the case of stalled vehicles
obstructing the public street. It was there also observed that even confiscation of
drivers licenses for traffic violations was not directly prescribe by the degree nor
was it allowed by the decree to be impose by the commission
Months later, several complaints again proliferated all over metro
Manila concerning the confiscation of driver’s licenses and license plates. Several
officers offered different defenses justifying the confiscation, the more popular
once being that, the confiscations were valid pursuant to ordinance no.7 series of
1988 and that the Gonong decision should be interpreted to mean that only the
confiscation of license plates are prohibited. Director General Cesar Nazareno of
the PNP even insisted that his office has never authorized the removal of license
plates of illegally parked vehicles and has in fact, event the directed full
compliance of the Gonong decision in memorandum dated February 28, 1991.
On July 2, 1991, the SC issued a resolution asking the solicitor general
and the MMA to file their comments regarding the issue. The solicitor general
involves the view that ordinance no.11 is null and void for begin unrivalled
exercise of the delegated legislative power since PD 1605 does not permit and
thus impliedly prohibits, the removal of license plates and the confiscation of
driver’s license (Expresio unuis est exclusion alterius). The MMA however,
invokes EO 392 the law providing for MMA’s creation, which vested in it among
others the responsibility of promulgating resolutions and other is issuances of
Metropolitan Wide Application, approval of a code of basic services requiring
coordination and the exercise of its role making powers. Also MMA said that the
ordinance cannot be attacked collaterally but only in a direct action challenging
its validity.
Held: The MMA is wrong. Reasons:
1) Considering the confusion over what law to follow regarding the
confiscation, with some officers even declaring that Gonong decision was wrong
the SC decided to rule on the issue squarely despite the fact that ordinance No.11
was not challenged in a direct action. Besides, the SC squarely said, said rule
concerning direct actions is not an inflexible one.
2) As to the merits, the SC admits that the power to promulgate
measures to promote the comfort and convenience of the public and to alleviate
the worsening traffic problems due in a large part to stimulation of traffic rules
(E.O. 392 and the general welfare clause LGC) is valid delegation of legislative
power. But the real issue is not the validity of the delegation of legislative power.
It is the validity of such exercise of delegated power. A municipal ordinance to
be valid
a) Must not contravene the Constitution
b) Must not be unfair or oppressive
c) Must not be partial or discriminatory
d) Must not prohibit but may regulate trade and
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e) Must be general and consistent with public policy.
Social Justice Society vs Atienza
Villanueva y Castaneda Jr. 154SCRA 142
Facts: On Nov. 7, 1961, the municipal council of San Fernando passed
Resolution no. 218 allowing some 24 market vendors to construct their stalls
along the vicinity of public market in San Fernando, Pampanga. The action was
protested in Civil Case No. 2040 in the CFE of Pampanga and a preliminary
injunction was issued to prevent construction of said stalls. While the case was
pending, the municipal council then passed Resolution no. 29 which declared the
subject area as a parking place and a public plaza, thereby impliedly repealing
Resolution no. 218. In 1968, Civil Case no. 20 was decided and held that the land
occupied by the market vendors was beyond the commerce of man and could
not be the subject of private occupancy.
The decision was apparently not enforced. The market vendors even
claim that in 1971, the municipal government allotted them specific areas for
which hey paid daily fees to municipal government. By 1982, the number of
vendors has ballooned to 200. The clamor to enforce Resolution no. 29 grew.
After an investigation by he municipal attorney, the OIC of the Office of the
Mayor Vicente Macalino, ordered the demolition of the stall. The vendors
protested (they apparently had little legal basis coz’ all they did was protest)
Held: Resolution no. 29 must be enforced. The reason is that, under the
Civil Code, public plazas are properties of public dominion to be devoted for
public use. And even assuming that here was a lease agreement actually existing
between the vendors and municipal government as the vendors claimed the
resolution could have effectively terminated the agreement. It is settled that the
police power cannot be surrendered or bargained away through the medium of a
contract. In fact, every contract affecting the public interest suffers a congenial
infirmity that it contains an implied reservation of the police power as a
postulate of existing legal order. This power can be activated at any time to
change the provision of contract, or even abrogate it entirely, for promotion and
protection the general welfare. Such act will not militate against the impairment
clause, which is subject to and limited by the police power.
B) Eminent Domain
1. Requisites for the Exercise
*Sec. 19, LGC – Eminent Domain, An LGU may, through its chief
executive, and acting pursuant to an ordinance, exercise the power of eminent
domain for public use or purpose or welfare for the benefits of the poor and
landless upon payment of just compensation pursuant to the provision of the
Constitution and pertinent laws: provided however that the power of eminent
domain may not be exercised unless a valid and definite offering has been
previously made to the owner and such offer was not accepted. Provided
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further , that the LGU may immediately take possession of the property upon
the filing of expropriation proceeding and upon making a deposit with the
proper court of at least 15% of the fair market value of the property based on the
current tax declaration of the property to be expropriated. Provided finally that
the amount to be paid for the expropriated property shall be determined by the
proper court based on the fair market value at the time of the taking of the
property.
*Art 32.IRR – Eminent Domain when exercise a) an LGU may through
its chief executive and acting pursuant to an ordinance exercise the power of
eminent domain for public use purpose welfare of the poor and landless upon
payment of just compensation, pursuant to the provision the Constitution and
pertinent laws b) The power of eminent domain may not be exercised unless a
valid and definite offer has been previously made to the owner and such offer
was not accepted.
*Art, 36 IRR – a) if the LGU fails to acquire private property for public
use purpose or welfare through purchase, LGU may expropriate said property
through a resolution of the Sangguniang authorizing its chief executive to initiate
expropriation proceeding b) The local chief executive shall cause the provincial,
city or municipal attorney concern or: in his absence , the provincial or city
prosecutor to file expropriation proceeding in the proper court in accordance
with rule of Court and other pertinent laws c) The LGU may immediately take
possession of the property upon the filing expropriation proceeding and upon
making a deposit with the proper court of at least 15% of the fair market value of
the property based on the current tax declaration of the property to be
expropriated
*Art 37, IRR – Payment. The amount to be paid for the expropriated
property shall determined by the proper court based on the fair market value at
the time of the taking of the property.
*Rule 67, 1997 Rules of Civil Procedure
This rule consists of 14 sections enumerating the procedure to be
followed in eminent domain. Briefly the rule enumerates the following section: 1)
The Complaint 2) entry of plaintiff depositing value with National or provincial
Treasure (but this section No. 2 has been repealed by P.D. No. 42) 3) defenses
and objection 4) order of condemnation 5) ascertainment of compensation 6)
proceeding by commission 7) report by commission and judgment thereupon 8)
action upon commissioner report 9) uncertain ownership/conflicting claim 10)
right of plaintiff after judgment and payment entry not delayed by appeal, effect
of reversal 12) cost, by whom paid 13) recording, payment and its effect 14)
power of guardian in such proceedings.
P.D. No.42 in a relation to Section 2 of Rule 67, effectively removes the
discretion of the counting determining the provisional volume. What is to be
deposited is an amount equivalent to the assessed value for taxation purposes.
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No hearing is required for the purpose. All that is needed is noticed to the owner
of the property sought to be condemned.
NOTE: So that you don’t have to bother reading the crappy 14 sections
enumerated in Rule 76, let’s use instead the summary given by the Court
regarding the 3 stages of every action of expropriation in NAPOCOR v. Jocson:
1) The first is concerned with the determination of the authority of the
plaintiffs to exercise the power of eminent domain ant the property of its exercise
in the context of the facts involved in the suit. It ends with an order if not of
dismissal of the action, “of condemnation declaring that the plaintiff has a lawful
right to take the property sought to be condemned, for the public use or purpose
described in the complaint, upon the payment of just compensation to be
determined as of date of the filling of the complaint.” An order of dismissal, if
this is to be ordained, would be a final one since it finally disposes of the action
and leaves the Court with nothing more to be done on the merits. So too, would
an order of condemnation be a final one, for thereafter, the Rules expressly state
in the proceedings before the Trial Court, “no objection to exercise of the right of
condemnation (or the propriety thereof) shall be filled or heard.
2) The second phase of the eminent domain action is concerned with
the determination by the Court of the “just compensation for the property sought
to be taken.” This is done by the Court with the assistance of not more than 3
commissioners. The order fixing the just compensation on the basis of the
evidence before, and findings of, the commissioners will be final too. It would
finally dispose of the second stage of the suit, and leave nothing more for the
Court to be done by the Court regarding the issue.
3) However, upon the filling of the complaint or at anytime thereafter,
the petitioner has the right to take or enter upon the possession of the property
involved upon compliance with P.D. 42 which requires the petitioner, after due
notice to the defendant, to deposit with the PNB in its main office or any of its
branches or agencies “an amount equivalent to the assessed value of the property
for purposes of taxation.” The assessed value is that indicated in the tax
declaration.
*DILG Opinion No. 10-1996
The researcher isn’t too keen in going to the DILG to get their opinions. “R”
2) Purposes of expropriation
a. In the Philippines, regular provinces are authorized to exercise the
power of eminent domain for the following purposes: the construction and
extension of roads, streets, sidewalks, bridges, ferries, levees, wharves or piers;
the construction of the public buildings including schoolhouses; and the making
of necessary improvements in connection therewith; the establishment of parks,
playground, plazas, market places, artesian wells or systems for the supply of
water, and the establishment of cemeteries, crematories, drainage system,
cesspools, or sewage systems.
42 PUBLIC CORPORATION
ATTY. MAURICIO ULEP
b. Municipalities in regular provinces are authorized to exercise the
power of eminent domain for any of the following purposes: the construction or
extension of roads, streets, sidewalks, bridges, ferries, levees, wharves or piers;
the construction buildings, including schoolhouses, and the making of
improvements on parks, playground, plazas, marketplaces, artesian wells, or
system for the supply of Water, and the establishment of cemeteries, crematories,
drainage system, cesspools, or sewage systems.
3) Illustrative cases:
1. National Power Corporation v. Jocson 206 SCRA 520
Facts: The NAPOCOR is a GOCC created and existing by virtue of RA
No. 6395, as amended, for the purpose of undertaking the development of
hydraulic power, the production of power from any source, particularly by
constructing, operating and maintaining power plants, auxiliary plants, dams,
reservoirs, pipes, mains, transmission lines, power station and other works for
the purpose of developing hydraulic power from any river, creek, lake, spring
and waterfall in the Philippines and supplying such power to the inhabitants
thereof. In order to carry out these purposes, it is authorized to carry out the
power of eminent domain.
On March 30, 1990, NAPOCOR filled 7 cases of eminent domain against
7 private citizens before the RTC of Bacolod city for the acquisition of a right of
way easement over portion of the parcels of land described in the complaint for
its Negros Panay Interconnection Project, particularly the Bacolod Tamonton
Transmission Line. The complaints uniformly a allege that petitioner urgently
needs position of the affected land to enable it to construct its tower and
transmission line in a manner that’s is compatible with the greatest good while at
the same time causing the least private injury, the purpose for which the lands
are principally developed will not be injured by the transmission lines as it will
only acquire a right of easement thereon , and it had negotiated with the offered
to pay defendants for the portion affected by the Bacolod Tamonton
Transmission Line, but the parties failed to reach an agreement despite long and
repeated negotiations, and be pray that, among others, that the RTC fix the
provisional value of the portion of the parcels of land sought to be expropriated
pursuant to Sec.2, Rule 67 of the Rules of the Court.
On June 25, 1990, the RTC, after finding the existence of public interest
which may be serve by the expropriation, fixed the provisional values of the 7
subject areas and directed the NAPOCOR to deposit the amounts with the PNB
in escrow of the benefits of the defendants pending decision on the merits. The
market values mentioned in the Order are the same values appearing in the fax
declarations of the properties and the notices of Assessment issued by the Assessor.
In compliance with said Order. NAPOCOR deposited the sum of P23,
180,828.00 with the PNB.
Two of the defendants however, filled motions for reconsideration. The
first one – filled by Jesus, Fernando, Michael and Ma. Cristina Gonzaga (the
Gonzaga Four) – alleged that the provisional value of the property involved
therein has been set much to low, the reason being that the expropriation of their
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areas “would render the remaining portion practically at a loss considering that
the presence of the transmission lines will pose a danger to the inhabitants in the
area as well as destroy the marketability of the remaining potion after
expropriation. Moreover, the subject areas are located near several posh
subdivisions. “The second one – filled by Louis Gonzaga, et, al. – sought for a re-
evaluation of the areas owned by them as said areas were contiguous to the
Gonzaga Four and were thus affected by the same condition.
The RTC granted their motion and the NAPOCOR, in compliance,
deposited the additional amount of P22,866,860,00 with the PNB.
On July 18, 1990 the RTC Judge Enrique Jocson issued another Order
increasing the amounts to be received as compensation on the part of the
Gonzaga Four, Louis Gonzaga and 3 other defendants’ amounts. NAPOCOR in a
response filled a complaint of grave abuse of discretion against the said judge,
saying the increases he ordered are excessive and unconscionable. Nevertheless,
due to the urgent need to complete the interconnection project as soon as
possible, NAPOCOR deposited the order additional amounts. Still despite doing
so, NAPOCOR claimed the Judge stubbornly refused to issue the writ of
possession.
Did the Judge act with grave abuse of discretion?
Held: Yes. Reasons:
1. The Judge ignore P.D.No.42 ( see the info titled “ Rule 67,Rules of
Court”, page 27 of this reviewer).He fixed the provisional values of the subject
properties at their market values and daily opportunity profits, something which
should not be done. The values should be fixed at an amount equivalent to the
assessed value for taxation purpose.
2. More importantly, when the Judge, although erroneously, fixed the
provisional values of the subject property and NAPOCOR in turn deposited the
said amounts, the said Judge last plenary control over the order fixing the
amount of the deposit and has no power to annul, amend or modify it matters of
substance pending the course of the condemnation proceedings. The reason for
this is that a contrary ruling would defeat the very purpose of the law which is to
provide for a speedy and summary procedure whereby the peaceable possession
of the property subject of the expropriation proceedings “may be secured
without the delays incident to prolonged and vexatious litigation touching the
ownership and value of such lands, which should not be permitted to delay the
progress of the work.”
3. The Judge also, in effect, gave the defendants the final authority to
determine just compensation when in fact; the determination of just
compensation in expropriation proceedings is a judicial function. Moreover, he
did not even appoint the 3 commissioners as mandated by Sec. 5 of Rule 67 of
Court in order to ascertain and report to him the just compensation sought to be
taken. He even ruled that the writ of possession shall be issued only after the
defendants have received the amounts, which should not be the ease. All these
show the gross ignore of the Judge and his orders and rulings must be reversed.
2. City Government of QC v. Ericta 129 SCRA 759
43 PUBLIC CORPORATION
ATTY. MAURICIO ULEP
Facts: The Quezon City Council passed Ordinance No.6118 S-94 entitled
“ Ordinance regulating the establishment, maintenance and operation of private
memorial type cemetery or burial ground within the jurisdiction of Q.C and
providing penalties for he violation thereof. “Said ordinance provides, among
others: “Sec.9 .At least 6% o f the total area of the memorial park cemetery shall
be seta side for a charity burial of deceased persons who are paupers and have
been residents of Q.C for at least 5 years prior to their death, to be determined by
competent City Authorities. The area so designated shall immediately be
developed and should be open for operation not later than 6 months from the
date of approval of the application.”
For 7 years, the ordinance was not enforced by city authorities, but
when the Q.C Council decided to enforce it by passing a resolution to that effect,
Himlayang Pilipino, Inc. responded by filling a petition for declaratory relief,
prohibition and mandamus with preliminary injunction with the CFI in Q.C
praying that the ordinance be declared null and void. Said petition was granted.
The question now raised is: Is the said ordinance a valid exercise of the police
power?
Held: No. Reasons:
1. The Charter of Q.C grants Q.C. the power to tax, fix the license fee
and regulate such other Business, trade and occupation as may be established or
practiced in the City. The power to regulate however, does not include the power
to prohibit. A portion, the power to regulate does not include the power to
confiscate. The ordinance not only confiscates but also prohibits the operation of
a memorial park cemetery because under Sec. 13 of said ordinance, violation of
its provisions is punishable by fine, imprisonment and/or that the permit to
operate and maintain a private cemetery shall be revoked or cancelled. Sec.9 is
not mere police regulation but an outright confiscation of private property
without due process of law may, even without compensation.
2. When the Local Government Code of 1983 provided that a
Sangguniang Panlungsod may provide, for the burial of the dead in such manner
as prescribed by law or ordinance it simply authorized the city to provide its
owned city owned land or to buy of expropriate private properties to construct
public cemeteries. Expropriation however, requires payment of just
compensation. Thus, Himlayang Pilipino Inc. cannot be said to have impliedly
acknowledge sequestration of 6 % of its property without just compensation
when it accepted the permits to operate from the city government.
3. Heirs of Juancho Ardona v.Reyes 125 SCRA 221
Facts: The Philippine Tourism Authority (PTA) filed 4 complaints with
the CFI of Cebu City for the expropriation of some 282 hectares of rolling land
situated in Barangays Malubog and Babag, Cebu City, under PTA’s express
authority, as mandated in its Charter, “ to acquire by purchase, by negotiation or
by condemnation proceedings any private land within and without the tourist
zones “ for the development into integrated resort and sport complexes of
selected and well- defined geographic areas with potential tourism value.
The defendants, numbering 40, filed motions to dismiss on the ground that
the taking was not for Public use, specifically that the there is no constitutional
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provision authorizing the taking of private property for tourism purposes.
Moreover, the defendants claimed that the land they own subject of the
expropriation is actually covered by certificate of land transfer (CLT) and
emancipation patents
Thereby making the lands expropriated within the coverage of the land
reform area under P.D No.2The defendants argue that the agrarian reform
program occupies a higher level in the order of priorities than other state policies
like those relating to the health and physical well-being of the people.
Held : The Ardona’s forty’s petition should be dismissed. Reasons:
1. The concept of public use is not limited to traditional purposes like
the construction of roads, bridges, parks and the like. Public use is not use by the
public.” It also mean, public well-fare and such a concept are broad, and
inclusive. The values it represents are spiritual, as well as physical, aesthetic as
well as monetary. It is within the power of the legislature to determine that the
community should be beautiful as well as healthy, spacious, as well as clean,
well balanced as well as carefully patrolled.
Once the object is within the authority of Congress, the right to realize it through
the exercise of Eminent Domain is clear. As a general rule then, as long as the
taking is public, the power of eminent domain comes into pay.
2. The fact that private concessionaires such as private firms, food
outlets, etc. will lease the subject areas will not diminish the public character of
the expropriation ( In other words, the place is open to anybody for as long as
she or he can pay).
3. The records show that the only 2 of the 40 defendants have CLT’s or
emancipation patents. And those CLT’s in their possession covers only less than
1 hectare of the 282 hectares intended fore expropriation. Moreover, the less-than
10-hectare portion of land is not even part of the resort and sports complex
proper but is part of the 32 hectare resettlement are for all persons affected by the
expropriation. Certainly, the human settlement needs of the many beneficiaries
of the 32 hectare
Resettlement area should prevail over the property rights of two of their
compatriots. (This last sentence did not sit well which Justice Makasiar and 2
others dissenters because the two persons who had CLT’s were conveniently
ignored).
4. City of Manila v. Chinese Community 40 Phil. 349
Facts: On Dec. 11.1916, the City of Manila presented a petition in the
CFI of Manila praying that for the purpose of constructing a public
improvement, namely the extension of Rizal Avenue, Manila, it is necessary for
the City of Manila to acquire ownership in fee simple of certain parcels of land
situated in the district of Binondo of said city within Block 83 of said district. The
proposed extension of Rizal Avenue however will take a part of the Chinese
cemetery, a public cemetery at that the Chinese Community of Manila thus
contended that 1) the City of Manila cannot appropriate the cemetery or a
portion thereof as said cemetery is public property, only private property may be
44 PUBLIC CORPORATION
ATTY. MAURICIO ULEP
expropriated and 2) there is no necessity for the improvement as a whole in the
first place. Is the Chinese Community correct?
Held: The Chinese community is correct as to its contention Reasons:
1. First of all, the matter regarding the extent of the court’s authority in
expropriation cases must settled. An examination of Sec.243 in Act No.190 (the
predecessor of today’s Rule 67 of the Rules of Court) reveals, “if the Court shall
find upon trial that the right to expropriate the land exists, it shall then appoint
commissioners.” The City of Manila contends that since expropriation is
exclusively a Legislative function, the authority of the courts then is limited to
determining the following a whether a law granting the expropriation exists and
b) the value of the land in question. This contention is partly meritorious. There
is no question that the court has authority to fix the values of the land question.
As to the authority of determining whether a law granting the expropriation
exists, a distinction must be made between a) laws granting special purpose and
b) laws grating a general authority. If the law in question grants expropriation of
a particular parcel of land and for a specific public purpose, then the Court’s
would he without jurisdiction to inquire into the purpose of that legislation,
regardless on whether or not the land in question is private or public. But if the
Legislature should grant general authority to a municipal corporation then to
expropriate private lands, for public purpose, the courts then would have
Authority then to make inquiry and to hear proof, upon an issue properly
presented concerning whether Or not the land in question was private and
whether the purpose was in fact, public. In the instant case, since the City of
Manila was given a general grant of authority to expropriate private lands under
its Charter, the Court has authority to inquire on whether the exercise of such
expropriation by the City of Manila is indeed public- in other words, the Court
may inquire into the necessity of the expropriation.
2. As mentioned above public property may be expropriated provided a
special grant of Authority for a particular parcel of land was passed by the
Legislature. The City of Manila was not granted such a special authority.
Therefore, the Chinese Cemetery or a portion thereof may not be expropriated.
3. It is axiomatic that the taking of private property for public use is not
justified unless there is a genuine public necessity for the taking. In the present
case, even if granting that a necessity exists for The opening of the street in
question, the record contain no proof of the necessity of opening the same
through the cemetery. The records show that adjoining and adjacent lands and
have been offered to the city free of charge, which will answer every purpose of
the city.
5. National Power Corporation v. CA 254 SCRA 577
Facts: In 1978, NAPOCOR took possession of a 21,995 sq. m. land which
is a portion of Lot 1 Of the subdivision plan (LRC) Psd_116169 situated in
Marawi City, owned by Macapanton Mangondato, Under the mistaken belief
that it forms part of the public land reserved for use by NAPOCOR of
Hydroelectric power purposes under Proclamation No. 1354 of the President of
the Philippines dated Dec.3, 1974. NAPOCOR alleged that the subject land was
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until then possessed and administered by Marawi City so that in exchange for
the city’s waiver and quitclaim of any right over the property, NAPACOR had
paid the city a :financial assistance : of P40 sq. m.
In 1979, when NAPOCOR started building its Agus 1 (Hydroelectric
plant) project, Mangondato demanded compensation from NAPOCOR.
NAPOCOR refused to compensate insisting that the property is public land and
that it has already paid “financial assistance “to Marawi City in exchange for the
rights over the property.
Mangondato claimed that the subject land is his duly registered
property covered by a TCT in his name that he was not privy to agreement
between Marawi City and NAPOCOR and that any Payment made to said city
cannot be considered as payment to him.
More than a decade later, NAPOCOR acceded to the fact that the
property belongs to Mangondato. On August 14, 1990, NAPOCOR‘s National
power Board (hereafter Power Board) passed a resolution resolving to pay
Mangondato the base price of P40 per sq.m for only a 12,132 sq.m portion Of the
subject property (P 485,280,001) plus 12% interest per annum from 1978 (P698,
808.00) pending A determination by NAPOCOR’s regional legal council on
whether P100.00 is the fair market value of Property.
Pursuant to the aforementioned resolution, Mangondato paid P1, 184.088.00.
On May 17, 1991, the power Board passed a resolution resolving to pay
Mangondato P100 per sq.m excluding the 12 % interest per annum.
In a letter, Mangondato disagrees with the power board’s new resolution. He
said that this property was worth even more than p300 per sq.m but he was
willing to settle for P300 per sq.m greedy bastard).
On May 25,192, NAPOCOR authorized its president to negotiate with
Mangondato for the payment of P100 for the land plus 12 % per annum from
1978 less the payments already made 10 Mangodato and to Marawi City on the
portion of his land.
On July 7, 1992, the greedy bastard replied by filling a civil case seeking
to recover possession of he property described in the complaint as Lot of the
subdivision plan against NAPOCOR, the payment of a P15, 000 monthly rent
until the surrender of the property, and the issuance of a TRO and a writ of
preliminary mandatory injunction to restrain NAPOCOR from proceeding with
any construction and/or improvements on Mangondato’s land or from
committing any act of dispossession.
On July 27, 1992, NAPOCOR countered by filling a complaint for
eminent domain against Mangondato. The lower court then ordered, after duly
appointing 2 commissioners, that NAPOCOR deposit the amount of P10,
997,500.00 with the PNB, provisionally fixing the value of the land at P500 per sq.
m., P100 lower than the assessed value of the land appearing in its tax
declaration for 1992 which was P100.
In its decision, the lower court denied the recovery of possession by
Mangondato but ordered NAPOCOR to pay the former a monthly rent of P
15,000 from 1978 to 1992 with 12 % interest per annum and condemning the
property in favor of NAPOCOR effective July 1992 upon payment of P1000 per
sq.m. or P21,995,000.00 as just compensation.
45 PUBLIC CORPORATION
ATTY. MAURICIO ULEP
NAPACOR contested the decision. In its assignment of errors,
NAPOCOR said that the lower court erred in affirming that the just
compensation for the property is its value in 1992, when the complaint was filed,
and not its value in 1978, when he property was taken by petition, ergo, the court
erred in fixing the value of just compensation at P1, 000 per sq.m instead of P40
per sq.m
Held: NAPOCOR is wrong. Reasons:
1. The general rule in determining just compensation in eminent
domain is the value of the property as of the date of the filling of the complaint
Sec.4 rule 67, Rules of Court. Normally, the time of taking coincides with the
filling of the complaint for just compensation. However, if the time of taking
does not coincides with the time of the filling, the rule is that the value of the
property should be computed from the time the property as taken into
possession from the time he was deprived thereof while the value itself it’s
determined at the time of the filling of the complaint.
2. The taking for the purpose of determining the value of the property,
is determined when the following elements concur.
a) The expropriator must enter a private property.
b) The entrance into private property must be for more than a momentary
period.
c) The entry into the property should be under warrant or color of legal
authority.
d) The property must be devoted to a public use or otherwise
informally appropriated or injuriously affected.
e) The utilization of the property for public use must be in such a
way as to oust the owner and deprive him of all beneficial enjoyment of the
property.
In NAPOCOR’s case, element no.3 was not present when NAPOCOR
took possession of the subject property in 1978 since NAPOCOR falsely believed
that the subject property was public land reserved for its own use under
Proclamation No. 1354. Only in 1992, when it initiated expropriation
proceedings, did it obtain color of legal authority. The provisional value of the
same would then be assessed as of 1992.
6. Province of Camarines Sur v. CA 222 SCRA 173
Facts: On Dec. 22, 1988, the Sangguniang Panlalawigan of the Province
of Camarines Sur passed Resolution No.129,S-88, authorizing, the Provincial
governor to purchase or expropriate property contiguous to the provincial
capitol site, in order to establish a pilot farm for non-food and non- traditional
agricultural crops and a housing project for provincial government employees.
Pursuant to the resolution, the Province of Camarines Sur, through
Governor Luis Villafuerte filed two separate cases of expropriation against
Ernesto and Efren San Joaquin, with the RTC of Pill, Camarines Sur. Forthwith,
and the said province filed a motion for the issuance of the write of possession.
The San Joaquins failed to appear at the hearing of the motion.
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The San Joaquins filed a motion to dismiss on the ground of inadequacy
of the price offered for their property. The court denied the motion to dismiss
and authorized the Province to take possession of the said property upon the
deposit with the Clerk of Court of the amount P5, 714.00, the amount
provisionally fixed by the trial court to answer for damages that the San Joaquins
may suffer in the event that the expropriation cases do not prosper.
The trial court ruled in favor of the Province. On appeal, the CA ruled
in favor of the San Joaquins, stating among others that the trial court suspend the
expropriation proceedings until after the province shall have submitted toe
requisite approval of the Department of Agrarian Reform to convert the
classification of the property of the private respondents from agricultural to
non- agricultural land (this is in deference to the Solicitor General’s view that the
Province must first secure the approval of the Department of Agrarian Reform
( DAR) regarding the plan to expropriate the lands of the San Joaquins for use
as a housing project.
The province now defends its expropriation of the subject lands,
claiming its authority from Sections 4 and 7 of the Local Government Code of
1983, and that the expropriation was for a public purpose.
Held: The Province of Camarines Sur is correct. Reasons:
1. Public use now means public advantage, convenience or benefit,
which tends to contribute to the general welfare and the prosperity of the whole
community, like are sort community or a housing complex. In the cage, the
expropriation here is for public purpose. The establishment of a pilot center
would inure to the direct benefit and advantage of the people of the Province.
Once operational, the center would make available to the community invaluable
information and technology on agriculture, fishery and the cottage industry.
Ultimately, the livelihood of fisherman, farmers, and craftsmen’s would be
enhanced. The housing project also satisfies the public purpose requirement of
the Constitution.
2. As to the issue whether the approval of the DAR (for the purpose of
realizing the housing project intent of the expropriation) is needed before
expropriation proceedings can continue, the Court simply ruled that the same is
not needed, simply because the L:GC of 1983 nor any other laws does not require
the same.
7. Moday v. CA 268 SCRA 586
Facts: On July 23,, 1989, the Sangguniang Bayan of Bumawan in Agusan
del Sur passed Resolution No. 43-89 authorizing the Municipal Mayor to initiate
the expropriation of a one (1) hectare portion of Lot No. 6138 –Pls-4 along the
National Highway owned by Percival Moday for the site of the Bunawan
Farmers Center and other Government Sports Facilities.
Said Resolution was approved by then Municipal Mayor Anuncio
Bustillo and transmitted to the Sangguniang Panlalawigan. The Sangguniang
Panlalawigan however disapproved the resolution on the ground that the
“expropriation was unnecessary considering that there are still available lots in
Bunawan for the establishment of government center.”
46 PUBLIC CORPORATION
ATTY. MAURICIO ULEP
Undaunted, the Municipality of Bunawan nevertheless filed a petition
for Eminent Domain against Moday. After depositing the necessary amount in
accordance with Rule 67 of the Rules of Court with the municipal treasurer, the
Municipality filed a Motion to Take or Enter Upon the Possession of the Subject
Matter.
Despite Moday’s opposition and after the hearing of the merits, the RTC
ruled in favor of the Municipality, saying that among others, that since the
Sangguniang Panlalawigan failed to declare the Municipality’s resolution as
invalid, the same should be deemed effective. (Wow, the RTC has 2 different
meanings for ‘invalid’ and ‘disapproval’). An appeal to the CA also proved
fruitless. In the meantime, the Municipality created 3 buildings on the subject
property.
Upon petition by Moday, the SC issued a TRO to prevent the
Municipality from using the buildings it already constructed as well as
constructing future buildings. Moday, in his petition to the SC, also adds that
since the Sangguniang Panlalawigan disapproved the resolution, the same is
void and thus the Municipality could not insist in pushing through with the
expropriation.
Held: Moday is wrong. Reasons:
1) The Municipality’s power to exercise the right of eminent domain is
not disputed. Sec. 9 of the LGHC of 1983 states, “LGUs may, through its head,
and acting pursuant to a resolution of its Sanggunian, exercise the right of
eminent domain and institute condemnation proceedings for public use or
purpose”.
2) A reading of Sec. 153, LGC of 1983 states, “If the Sangguniang
Panlalawigan (SP) shall find that any municipal ordinance, resolution or
executive order is beyond the power conferred upon the Sangguniang bayan (SB)
or the Mayor, it shall declare such ordinance, resolution or Executive Order
invalid in whole or in part xxx. The effect of such action shall be to annul the
ordinance, resolution or Executive Order in question in whole or in part. The
action of the SP shall be final”. Said section gives the condition “if such
resolution is beyond the power conferred upon by the Sangguniang Bayan or
Mayor xxx”. Obviously, it is well within the power of the Municipality to
exercise the right of eminent domain and thus, the SB has the capacity to
promulgate a resolution pursuant to the exercise of such a right. The SP
therefore, was without authority to disapprove said resolution.
3. Finally, Moday claimed the expropriation against his property was
motivated by political revenge since he did not support Mayor Bustillo’s
candidacy in the previous elections. If that were true, then Moday’s petition
would have been meritorious since the taking of private property for public use
must be genuine. The SC simply ruled that there was no evidence to support
such claim. Besides, the records do not show that there was indeed another
available property for the same purpose.
C) Power of Taxation (Five requisites for the exercise, publication
requirements and public hearing)
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Five requisites for the exercise:
1. Municipal revenue obtainable by taxation shall be derived from
such sources only as are expressly authorized by law.
2. Taxation shall be just and uniform in each municipality.
3. It shall not be in the power of the municipal council to impose tax
in any form, whatever upon goods and merchandize carried into
the municipality, or out of the same, and any attempt to impose an
import or export tax upon such goods in the guise of an
unreasonable charge for wharfage, use of bridges or otherwise,
shall be void.
Note: Compare this with Sec 133 (e) of LGC 1991, “Unless otherwise provided
herein, the exercise of the taxing powers of provinces, cities, municipalities and
barangays shall not extend to the levy of the following xxx (e) taxes, fees and
charges and other impositions upon goods carried into or out of, or passing
through, the territorial jurisdictions of LGUs in the guise of charges of wharfage,
tolls for bridges or otherwise, or other taxes, fees or charges in any form
whatsoever upon such goods or merchandise.”
4. In no case shall the collection of municipal taxes be left to any
person.
5. Except as allowed by law, municipal funds shall be devoted
exclusively to local public purpose.
Publication Requirements:
1. Two modes of apprising the public of a new ordinance according to
Sec. 43 Local Tax Code (based on the Allied Thread v. City
of Manila case)
a. By means of publication in a newspaper of general
circulation, or
b. By means of posting of copies thereof in the local
legislative hall or premises and 2 other conspicuous places
within the territorial jurisdiction of the local government.
2. Publication of Tax Ordinances and Revenue Measures (Sec. 188,
LGC of 1991)
3. Within 10 days after their approval, certified true copies of all
provincial, city and municipal ordinances of revenue
measures shall be published in full for 3 consecutive days
in a newspaper of local circulation. Provided, however, that
in provinces, cities and municipalities where there are no
newspapers of local circulation, the same may be posted in
at least 2 conspicuous and accessible places.
Public Hearing:
1. Procedure for Approval and Effectivity of Tax Ordinances and
revenue Measures; Mandatory Public Hearings (sec 187, LGC of 1991)
- The procedure for the approval of local tax ordinances and
revenue measures shall be in accordance with the provisions of this Code:
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Provided that any question on the constitutionality or legality of tax ordinances
or revenue measures may be raised on appeal within 30 days from the effectivity
thereof to the Secretary of Justice who shall render a decision within 60 days
from the date of the receipt of the appeal. Provided, however, that such appeal
do not have the effect of suspending the effectivity of ordinance and the accrual
and payment of the tax, fee or charge therein. Provided, finally, that within 30
days after the receipt of the decision or the lapse of the 60-day period without the
Secretary of Justice acting upon the appeal, the aggrieved party may file
appropriate proceedings with a court of competent jurisdiction.
2.Power to Levy Other Taxes, Fees and Charges ( Sec. 186, LGC of
1991)
Local governments may exercise the power to levy taxes, fees or charges
on any base or subject not otherwise enumerated herein or taxed under the
provisions of the National Internal Revenue Code (NLRC), as amended, or other
applicable laws. Provided, that the taxes, fees or charges shall not be unjust,
excessive, confiscatory or contrary to declared national policy; Provided further,
that the ordinance levying such taxes, fees or charges shall not be enacted
without any prior public hearing conducted for the purpose.
1.a Allied Thread Co. v. City Mayor of Manila 133 SCRA 338
Facts: Allied Thread Co is engaged in the business of manufacturing of
sewing thread and yarn under duly registered trademark and labels. It operates
its factories and maintains an office in Pasig, Rizal. In order to sell its products in
Manila and other parts of the Philippines, Allied Thread Co engaged the services
of a sales broker, Ker and Company Ltd, the latter deriving commission for every
sale made for its principal.
On June 12, 1974, the Municipal Board of the City of Manila enacted
Ordinance No. 7516 imposing on manufacturers, importer, porters or producers,
doing business in the city of Manila, business taxes based on gross sales recorded
on a graduated basis. A s used by the Ordinance, “graduated basis” meant that
“60% of all sales recorded in the principal offices of all businesses are located in
the City of Manila, the same shall be taxable as well by said City. As for the
branches of businesses, all sales recorded by it shall be taxable by the City of
Manila provided they are also located in the said City.”
The Mayor of Manila approved said Ordinance on June 15, 1974. In less
than two months, however, the ordinance underwent a series of amendments.
The last amendment was approved by the Mayor on July 29, 2974.
Having affected by the aforementioned Ordinance, being manufacturers
and sales brokers, Allied Thread Co filed a petition for declaratory relief
contending that Ordinance 7516 is not valid or enforceable as the same is
contrary to Sec 52 of PD 426, as clarified by Local Tax Regulation No 1-71. To
quote said Regulation: “A local tax ordinance shall go into effect on the 15 th day
after approved by the local chief executive in accordance with Sec 41 of the Code.
In view hereof and considering the provisions of Art 54 of the Code regarding
the accrual of taxes a local tax ordinance intended to take effect on July 1, 1974
should be enacted by the local chief executive not later than June 15, 1974.”
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Otherwise stated, Allied Thread Co asserts that due to the series of amendments
in the Ordinance 7516, the same Ordinance fell short of the deadline set forth by
Sec 54 of PD 426 that “for an ordinance intended to take effect on July 1, 1974, it
must be enacted on or before June 15, 1954.” As mentioned earlier, the last
amendment of the ordinance was approved on July 29, 1974.
Allied Thread also contended that the questioned Ordinance did not
comply with the necessary publication requirement in a newspaper of general
circulation as mandated by Sec43 of the Local Tax Code. Moreover, Allied
Thread claimed that it should not be covered by the said Ordinance as amended;
because it does not operate or maintain a branch office in Manila and that its
principal office and factory are located in Pasig, Rizal.
Held: Allied Thread is wrong. Reasons:
1. Ordinance No 7516 was approved by the City Mayor in June 15, 1974.
Therefore, he made the deadline (barely). The subsequent amendments did not
in any way invalidate nor move the date of its effectivity. To hold otherwise
would limit the power of the defunct Municipal Board of Manila to amend an
existing ordinance as exigencies require.
2. The Court is persuaded that there was substantial compliance of the
law on publication. The City of Manila complied with the second mode of notice.
3. Allied Thread does its business through its agent, Ker and Company.
The power to levy an excise tax upon the performance of an act or the engaging
of an occupation does not depend on the domicile of the person subject to the
excise nor upon the physical location of the property and in connection with the
act or occupation taxed but depend upon the place in which the act is performed
or occupation engaged in – in this case, upon the place where the respected sales
transactions is perfected and consummated.
1.b Reyes v. CA 320 SCRA 486
Facts: The Sangguniang Bayan of San Juan, Metro Manila implemented
5 tax ordinances. Antonio Reyes and 2 others (the Reyes Three) filed an appeal
with the Department of Justice alleging the constitutionality of these tax
ordinances allegedly because they were promulgated without previous public
hearings thereby constituting deprivation of property without due process of
law. Secretary of Justice Franklin Drilon however, dismissed the appeal for being
filed out of time since the last of the 5 ordinances took effect on Oct 29, 2992
while the Reyes Three filed their appeal only on May 21, 1993, way past the 30-
day period from the effectivity thereof for appeal as allowed by Sec 187 of the
LGC of 1993. The CA also ruled in favor of Franklin Drilon.
Undaunted, the Reyes Three, in a petition for review with the SC, claim
that notwithstanding the 30-day period imposed by the law for appeal, an
ordinance enacted without the requisite of public hearing is unconstitutional and
thus void from the beginning ( in other words, an action to declare anything
unconstitutional does not prescribe since it is reduction as absurdum). Also the
Reyes Three ask if constitutionality of Sec. 187 can be raised for the first time on
appeal. (see ‘Public Hearing’ of this reviewer).
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Held: The Reyes Three are wrong: Reasons:
1. There is a reason why protests over tax ordinances are required to be
done within certain time frames. A municipal tax ordinance empowers an LGU
to impose taxes. The power to tax is one of the most effective instruments to raise
needed revenues to finance and support the myriad activities of LGUs for the
delivery of basic services essential to the promotion of the general welfare and
enhancement of peace, progress and prosperity of the people. Consequently, any
delay in tax measures would be to the detriment of the public.
2. While it is true that the public hearings are required to be conducted
prior to the enactment of a tax ordinance, the Reyes Three did not show any
proof that the Sangguniang Bayan of San Juan failed to conduct the required
public hearings. The reason is that the lack of a public hearing is a negative
allegation essential to a petitioner cause of action. Hence, as the Reyes Three are
the ones asserting the lack of a public hearing, they have the burden of proof.
Since the Reyes Three failed to rebut the presumption of validity in favor of the
subject ordinances and to discharge the burden of proving that no public
hearings were conducted prior to the enacted thereof, the Court is constrained to
uphold their constitutionality or legality. This is true despite the fact that the
Sanggunian has the control of records or the better means of proof regarding the
alleged, and the Reyes Three are not relieved from the burden of proving their
averments.
3. On the validity of Sec. 187 of LGC of 1991, the Court stresses that the
constitutionality of an act of Congress will not be passed upon by the Court
unless at the first opportunity that question is properly raised and presented in
an appropriate case, and is necessary for the determination of the case,
particularly where the issue of constitutionality is the very lis mota presented.
The constitutionality of a statutory provision should not be entertained by the
Court where it was not specifically raised below, insisted upon and adequately
argued. The Court finds no real necessity in tackling the constitutionality of Sec.
187 of LGC of 1991.
2. Limitations on municipal taxing power
* Sec. 133, LGC of 1991. Common Limitations on the Taxing Power of
LGUs. Unless otherwise provided herein, the exercise of the taxing powers of
provinces, cities, municipalities, and barangays shall not extend to the levy of the
following:
a. Income tax, except when levied on banks and other financial
institutions
b. Documentary stamp tax
c. Taxes on estates, inheritance, gifts, legacies and other acquisitions
mortis causa, except as otherwise provided therein
d. Customs duties, registration of fees of vehicles and wharfages on
wharves, tonnage dues and all other kinds of custom fees, charges and dues
except wharfage of wharves constructed and maintained by the LGU concerned.
e. Taxes, fees, and charges and other impositions upon goods carried
into, or out of, or passing through the territorial jurisdictions of LGUs in the
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guise of charges for wharfage, tolls for bridges ort otherwise, or other taxes, fees
in any form whatsoever upon such goods and merchandise
f. Taxes, fees or charges on agricultural and aquatic products when sold
by marginal farmers or fishermen
g. Taxes on business enterprises certified by the BOI as pioneer or non-
pioneer for a period of 6 or 4 years, respectively from the date of the registration.
h. Excise taxes on articles enumerated under the NIRC, as amended,
and taxes, fees or charges on petroleum products.
i. Percentage on VAT sales, barters or exchanges or similar transactions
on goods and services except as otherwise provided herein
j. Tax on gross receipts of transportation contractors and persons
engaged in the transportation of passengers or freight by hire and common
carriers by air, land or water, except as provided in this Code
k. Taxes paid on premiums by way of reinsurance or retrocession
l. Taxes, fees or charges for the registration of motor vehicles and for the
issuance of all kinds of licenses or permits for the driving thereof, except
tricycles.
m. Taxes, fees or other charges actually exported, except as otherwise
provided herein
n. Taxes, fees or charges on Countryside and Barangay Business
Enterprise and Cooperatives duly registered under R.A. 6180 and R.A. 6938
otherwise known as the Cooperative Code of the Philippines respectively
o. Taxes, fees or charges of any kind on the National Government, its
agencies and instrumentalities, and LGUs
*The Basic Rule of Municipal Taxing Power
Under the now prevailing Constitution, where there is neither a grant
nor a prohibition by statute, the tax power must be deemed to exist although
Congress may provide statutory limitations and guidelines. The basic rationale
for the current rule is to safeguard the viability and self-sufficiency of local
government units by directly granting them general and broad tax powers.
Nevertheless, the fundamental law did not intend the delegation to be absolute
and unconditional; the constitutional objective obviously is to ensure that, while
the local government units are being strengthened and made more autonomous,
the legislature must still see to it that a) the taxpayer will not be overburdened or
saddled with multiple and unreasonable impositions; b) each local government
unit will have its fair share of available resources; c) the resources of the national
government will not be unduly disturbed; and d) local taxation will be fair,
uniform, and just (MERALCO v. Province of Laguna)
2.a Pepsi Cola Bottling Co. v. City of Butuan 24 SCRA 789
Facts: Pepsi Cola seeks to recover the taxes paid by it to the City of
Butuan and collected by the letter. Pursuant to its Municipal Ordinance No. 110,
as amended by Municipal Ordinance No. 122, both series of 1960, which Pepsi
assail as null and void and to prevent the enforcement thereof.
Pepsi maintains that the disputed ordinance is null and void because (1)
it partakes of the nature of an important tax; (2) it amounts to double taxation; (3)
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ATTY. MAURICIO ULEP
it is excessive, oppressive and confiscatory; (4) it is highly unjust and
discriminatory; and (5) section 2 of Republic Act No. 2264, upon the authority of
which it was enacted, is an unconstitutional delegation of legislative powers.
Said Ordinance, as amended, imposes as a tax on any person, association, etc., of
P0.10 per case of 24 bottles of Pepsi-Cola and Pepsi paid under protest the
amount of P4,926.63 from August 16 to December 31, 1960 and the amount of
P9,250.40 from January 1 to July 30, 1961.
Held: Pepsi’s contentions are partly tenable. Reasons:
(1) The Second and last objections are manifestly devoid of merit.
Indeed, independently of whether or not the tax in question, when considered in
relation to the sales tax prescribed by Acts of Congress, amounts to double
taxation, on which the Court need not and does not express any opinion-double
taxation, in general, is not forbidden by the Constitution. The Philippines has not
adopted, as part thereof, the injunction against double taxation found in the
Constitution of the United States. Then, again, the general principle against ,
delegation of legislative powers, in consequence of the theory of separation of
powers is subject to one well-established exception, namely; legislative powers
may be delegated to local government to which said theory does not apply in
respect of matters of local concern.
(2) The third objection is, likewise, untenable. The tax of “P0.10 per
case of 24 bottles,” of soft drinks of carbonated drinks in the production and sale
of which plaintiff is engaged or less than P0.0042 per bottle is manifestly too
small to be excessive, oppressive, or confiscatory.
(3) The first and the fourth objection merit, however, serious
consideration. As amended by Ordinance no. 122, the tax is imposed only upon
”any agent and/or consignee of any person, association, partnership, company
or corporation engaged in selling… soft drinks or carbonated drinks.” As defined
in section 3-A of Ordinance no. 122, a consignee of agent shall mean any person,
association, partnership, company or corporation who acts in the place of
another by authority from him or one entrusted with the business of another or
to whom is consigned or shipped no less than 1,000 cases of hard liquors or soft
drinks every month for resale, either retail or wholesale.”
As a consequence, merchants engaged in the sale of soft drinks of
carbonated drinks, are not subjected to the tax, unless they are agents and/or
consignee of another dealer, who, in the very nature of things, must be one
engaged in the business outside the City. The intention to limit the application of
the ordinance to soft drinks and carbonated drinks brought into city from
outside thereof becomes apparent. Viewed from this angle, the tax partakes of
the nature of an import duty, which is beyond defendant’s authority to impose
by express provision of law.
The tax in question would still be invalid, as discriminatory, and hence,
violative of the uniformity required by the Constitution and the law thereof,
since only sales by “agents of consignee” of outside dealers would be subject to
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tax. Sales by local dealers, not acting for or on behalf of other merchants,
regardless of the volume of their sales, and even if the same exceeded those
made by said agents or consignee of producers or merchants established outside
the City of Butuan, would be exempt from the disputed tax.
2. b Province of Bulacan v. CA 299 SCRA 442
Facts: on June 26, 1992, the Sangguniang Panlalawigan of Bulacan
passed Provincial Ordinance No. 3, known as “an Ordinance Enacting the
Revenue Code of the Bulacan Province.” Which was to take effect on July 1, 1992.
Section 21 of the ordinance provides as follows: Sec. 21. Imposition of Tax. There
is hereby levied and collected a tax of 10% of the fair market value in the locality
per cubic meter of ordinary stones, sand, gravel, earth and other quarry
resources, such. But not limited to marble, granite, volcanic cinders, basalt, tuff
and rock phosphate. Extracted from public lands or from bed of seas, lakes,
rivers, streams, creeks and other public waters within its territorial jurisdiction.”
Pursuant thereto, the Provincial Treasurer of Bulacan, in a letter dated
November 11, 1993, assessed private respondent Republic Cement corporation
(hereafter Republic Cement) O2,524,692.13 for extracting limestone, shale and
silica from several parcels of private land in the province during the third quarter
of 1992 until the second quarter of 1993. Believing that the province, on the basis
of above-said ordinance, had no authority to impose taxes o quarry resources
extracted from private lands, Republic Cement formally contested the same on
December 23, 1993. The same was however, denied by the Provincial Treasurer
on January 17, 1994. Republic Cement consequently filed a petition for
declaratory relief with the Regional Trial Court of Bulacan on February 14, 1994.
The province filed a motion to dismiss Republic Cement’s petition, which was
granted by the trial court on May 13, 1993, which ruled that declaratory relief
was improper, allegedly because a breach of the ordinance had been committed
by Republic Cement.
On July 11, 1994, Republic Cement filed a petition for certiorari with the
Supreme Court seeking to reverse the trial court’s dismissal of their petition. The
Court, in a resolution dated July 27, 1994, referred the same to the Court of
Appeals.
In the interim, the Province of Bulacan issued a warrant of levy against
Republic Cement, allegedly because of its unpaid tax liabilities. Negotiations
between Republic Cement and the province resulted in an agreement and modus
vivendi on December 12, 1994, whereby Republic Cement Agreed to pay under
protest P1,262,364.00, 50% of the tax assessed by petitioner, in exchange for the
lifting of the warrant of levy. Furthermore, Republic Cement and the Province
Agreed to limit the issue for resolution by the Court of Appeals to the question as
to whether or not the provincial government could pursuant to Section 21of
Provincial Ordinance No. 3.
The CA ruled that the Province had no authority to issue Ordinance No.
3, hence this appeals to the SC.
Held: The decision of the CA must be sustained. Reasons:
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ATTY. MAURICIO ULEP
(1) Ordinance No. 3 is based on Sec. 158 of the LGC of 1991
which states: “The province may levy and collect not more than ten percent
(10%) of fair market value in the locality per cubic meter of ordinary stones,
sand, gravel, earth and other quarry resources, as defined under the National
Internal Revenue Code, as amended, extracted from private lands. Need we say
more?
(2) It is true that under Sec. 133 (h), the exercise of the taxing
powers of provinces, cities, municipalities and barangays shall not extend to the
levy of exercise taxes on articles enumerated under the National Internal
Revenue Code (NIRC). Section 151 of the NIRC, by the way levies excise taxes on
all quarry resources, regardless of origin, whether extracted from public or
private land. Thus an LGU may not ordinarily impose taxes on stones, sand,
earth and other quarry resources, as the same are already taxed under the
National Internal Revenue Code, However an LGU can still impose a tax on
stones, sand, gravel, earth and other quarry resources extracted from public land
because it is expressly empowered to do so under the LGU. But again it only says
“Public” The Province of Bulacan cannot tax Republic Cement because it’s
extracting minerals from “private” lands. Don’t forget, public versus private.
3. Other Illustrative Cases:
3. a Basco v. PAGCOR 197 SCRA 52
Facts: Atty. Humberto Basco, the Chairman on the committee of Laws
of the City Council of Manila, and 3 other lawyers, (the Basco Four) filed a
petition seeking to annul the Phil. Amusement and Gaming Corporation
(PAGCOR) because among others. 1) It waived the Manila City government’s
right to impose taxes and license fees, which is recognized by law and 2) for the
same reason stated in the immediately preceding paragraph, the law has
intruded into the local government’s right to impose local taxes and license fees
in contravention of the constitutionally enshrined principle of the local
autonomy.
Held: The Basco four contentions are all unmeritorious Reasons:
1) Any petitioner assailing the constitionality of the law must realize
that said law is armed with the presumption of constitionality. With this in mind,
the petitioner has the burden of proof to show that the law he wishes to assail is
unconstitutional.
2) The Basco Four assailed Sec. 13 par. 2 of P.D 1869 which states that
LGUs cannot impose on PAGCOR taxes on any kind (except for the 5% franchise
tax) Said provision, they claim is a violation of local autonomy it waives the City
of Manilas right to impose taxes and license fees. The court answered that.
a) The City of Manila being a Mere municipal corporation has no
inherent right to impose taxes. Thus, the Charter or statute must
plainly show am intent to confer that power or the municipality
cannot assume it. Its power to tax therefore must always yield to
a legislative act which is superior having been passed upon by
the state itself which has the inherent power to tax.
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b) The charter of the City of Manila is subject to control by
congress. It should be stressed that “municipal corporation are
mere creatures of Congress” which has the power to “create and
abolish municipal corporation” due to its legislative powers”
Congress, therefore, has the power of control over Local. And if
Congress can grant the City of Manila the power to tax certain
matters, it can also provide for exemption or even take back the
power.
c) The City of Manila’s power to impose licenses fees on gambling
has long been revoked. As early as 1975, the power of local
government to regulate gambling thru the grant of “franchise,
licenses or permits” was withdrawn by P.D. No. 771 and was
vested exclusively on the National Government.
PAGCOR is a government owned or controlled corporation with an
original charter, PD 1869. All its stocks are owned by the National Government:
it has dual role, to operate and to regulate gambling casinos. The latter role is
governmental, which places it in the category of an agency or instrumentality of
the Government. Being an instrumentality of the Government, PAGCOR should
be and actually is exempt from local taxes. Otherwise, its operation might be
burdened, impeded or subjected to control by a mere Local Government.
(3) The states have no power by taxation or otherwise, to retard,
impede, burden or in any manner control the operation of constitutional laws
enacted by Congress to carry into execution the powers vested in the federal
government. This doctrine emanates from the “supremacy” of the National
Government over local governments. Otherwise, mere creatures of the state can
defeat National policies thru extermination of what local authorities may
perceive to be undesirable activities or enterprise using the power to tax as “a
tool for regulation.”
(4) The Basco Four cannot also invoke Article X, sec 5 of the 1987
Constitution which says, “Each local government unit shall have the power to
create its own source of revenue and to levy taxes, fees, and other charges subject
to such guidelines and limitation as the congress may provide, consistent with
the basic policy on local autonomy. Such taxes, fees and charges shall exclusively
to the local government.” The power of local government to “impose taxes and
fees” is always subject to “limitations” which Congress may provide by law.
3. b Mactan Cebu Int’l Airport v. Marcos
Facts: Mactan Cebu International Airport Authority (MCIAA) was
created by virtue of Republic Act No. 6958 mandated to “principally undertake
to economical, efficient and effective control, management and supervision of the
Mactan International Airport in the province of Cebu and the Lahug Airport in
Cebu City,… and such other Airports as may be established in the province of
Cebu. It is also mandated to a) encourage, promote and develop international
and domestic air traffic in the Central Visayas and Mindanao regions as a means
of making the regions centers of international trade and tourism, and
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accelerating the development of the means of transportation and communication
in the country; and b) upgrade the service and facilities of the airports and to
formulate internationally acceptable standards of accommodation and service.
Since the time of its creation, petitioner MCIAA enjoyed the privilege of
exemption from payment of realty taxes imposed by the National Government or
any of its political subdivisions, agencies and instrumentalities in accordance
with Section 14 of its charter.
However, on Oct. 11, 1994, the city of Cebu claimed started demanding
payment on parcels of land belonging to MCIAA. The city of Cebu claimed that
MCIAA cannot rely on Sec. 14 of its charter because- as MCIAA is a GOCC- its
tax exemption privilege has been withdrawn by Sections 193 and 234 of the LGC
as follows; “Sec. 193. Withdrawal of Tax Exemption Privilege. Unless otherwise
provided in this code, tax exemptions or incentive granted to, or presently
enjoyed by all persons whether natural or juridical, including government-
owned or controlled corporations, except local water districts, cooperatives duly
registered under RA No. 6938, non-stock, and non-profit hospitals and
educational institutions, are hereby withdrawn upon the effectivity of this Code
x x x Sec. 234.
Exemptions from Real Property taxes. x x x except as provided herein,
any exemption from payment of real property tax previously granted to, or
presently enjoyed by all persons, whether natural or juridical, including
government – owned or controlled corporation, are herby withdrawn upon the
effectivity of this code.
For its defense, MCIAA relies on Sec. 133 (o) of the LGC which says “unless
otherwise provided herein (in this Code), the exercise of the taxing powers of
provinces, cities, municipalities, and barangays shall not extend to the levy of the
following x x x (o) Taxes, fees or charges of any kind on the National
Government, its agencies and instrumentalities, and LGUs. MCIAA relies on the
ruling of Basco v. PAGCOR, which stated that local governments have no power
to tax instrumentalities of the National Government and that PAGCOR, it is
performing both proprietary and government functions. MCIAA claims that like
PAGCOR, it is performing a governmental function as well (read the first
paragraph above again), thus, it should be exempt from taxation by the City of
Cebu.
Held: MCIAA is wrong. Reasons:
1) Basco v. PAGCOR was decided before the enactment of the LGC of
1991. It thus finds no application in this case because the arguments here rely
heavily on said LGC.
2) Then there is the curious Sec 234 which states, “Exemptions from
Real Property Tax. The following are exempted from payment of the real
property tax: a) Real property owned by the Republic of the Philippines or any of
its political subdivisions except when the beneficial use thereof had been
granted, for reconsideration or otherwise, to a taxable person x x x except as
provided herein, any exemption from payment of real property tax previously
granted to, or presently enjoyed by all persons, whether natural or juridical,
including government-owned or controlled corporations, are hereby withdrawn
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upon the effectivity of this code. “Can MCIAA claim that is parcels of land are
basically owned by the Republic of the Philippines in Cebu thus lands are
exempt from real property tax? The court answered no, because under MCIAA’s
charter, all lands owned by existing airports belonging to the Republic of the
Philippines in Cebu are transferred to the MCIAA, meaning, there was an
absolute conveyance of ownership to MCIAA. The Republic of the Philippines is
no longer the owner of the lands in question, thus MCIAA is not spared from
real property taxes.
3) While MCIAA is correct in invoking Sec 133 (o) above which
disallows LGUs to tax the National Government, its agencies and
instrumentalities, and LGUs, Sec 133 (o) is also qualified by the phrase, “unless
otherwise provided herein.” (in this code). The tax imposed upon MCIAA
concerns real property taxes. Thus MCIAA is also subject to Sec 234 and for
reasons mentioned in no.2). MCIAA is not spared from property taxes.
4) The ultimate fact remains that Sec 193 of the LGC of 1991 has
repealed the tax exemption privilege enjoyed by MCIAA as stated in Sec. 14 of its
charter. This policy is consistent with the State’s policy to ensure genuine and
meaningful autonomy to LGUs.
NOTE: the “Republic of the Philippines” is not the same as “National
Government” (Wow!). To better understand this situation, let’s have a rundown
of some boring definitions:
a) Republic of the Philippines – synonymous with
“Government of the Republic of the Philippines”; the
corporate government entity through which the function
of government are exercised throughout the Philippines,
including, save as the contrary appears from the context,
the various arms through which political authority is
made effective in the Philippines, whether pertaining to
the autonomous regions, the provincial city, municipal or
barangay subdivisions or other forms of local government.
b) National Government – the entire machinery of the central
government (executive, legislative and juridical) as
opposed to the forms of local governments.
c) Agency – any of the various units of the Government,
including a department, bureau, office instrumentality, or
GOCC or a local government or a distinct unit therein
d) Instrumentality – any agency of the National Government,
not integrated within the department framework, vested
with special functions or jurisdiction by law, endowed
with some if not all corporate powers, administering
special funds, and enjoying operational autonomy; usually
though a charter e.g. regulatory agencies, chartered
institutions and GOCCs
3. c MERALCO v Province of Laguna 306 SCRA 750
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Facts: On various dates. Certain municipalities of the Province of
Laguna, including, Biñan, Sta. Rosa, San Pedro, Luisiana, Canluan and Cabuyao,
by virtue of existing laws then effect, issued resolution through their respective
municipal councils granting franchise in favor of petitioner Manila Electric
Company (“MERALCO”) for the supply of electric light, heat and power within
their concerned areas. On 19 January 1983, MERALCO was likewise granted a
franchise by the National Electrification Administration to operate an electric
light and power service in the Municipality of Calamba, Laguna.
On 12 September 1991, Republic Act No. 7160, otherwise known as the
“Local Government, Code of 1991,” was enacted to take effect on 01 January
1992, enjoying local government units expressed therein own sources of revenue
and to levy taxes, fees and charges, subject to the limitations expressed therein,
consistent with the basic policy of local autonomy. Pursuant to the provisions of
the Code, respondent province enacted Laguna Provincial Ordinance No. 01-92,
effective 01 January 1993, imposing a tax on business enjoying a franchise.
On the basis of the above ordinance, respondent Provincial Treasurer
sent a demand letter to MERALCO for the corresponding tax payment.
MERALCO, however, contented that the imposition of a franchise tax under
Section 2.09 of Laguna Provincial Ordinance No. 01-92, insofar as it concerned
MERALCO, contravened the provisions of Section 1 of P.D. 551 which read:
“Any provision of law or local ordinance to the contrary notwithstanding, the
franchise tax payable by all grantees of franchises to generate, distribute and sell
electric current for light, heat and power shall be two per cent (2%) of their gross
receipt received from the sale of electric current and from transactions incident to
the generation, distribution and sale of electric current. Such franchise tax x x x
shall any provision of the Local Tax Code or any other law to the contrary
notwithstanding, be in lieu of all taxes and assessments of whatever nature
imposed by any national or local authority on earnings, receipt, income and
privilege of generation, distribution and sale of electric current. (Note the
italicized sentence)
MERALCO now contents that 1) the phrase “shall be in lieu of all taxes
x x x in sec 1 of P.D. 551 prevents the province of Laguna from imposing
franchise taxes on it 2) whether the ordinance is violative of the non-impairment
clause and 3) whether the LGC of 1991 has repealed, modified or amended P.D.
551.
Held: All contentions by MERALCO are incorrect. Reasons:
1) Indicative of the legislative intent to carry out the
Constitutional mandate of vesting broad tax powers to local government units,
the Local Government Code has effectively withdrawn under Section 193
thereof, tax exemptions or incentives therefore enjoyed by certain entities. This is
also supported by Section 137 which states, “Notwithstanding any exemption
granted by any law or other special law, the province may impose a tax on
business enjoying a franchise x x x and also by Sec. 534, the repealing clause,
which declares. “All general and special laws, acts, city charters, decrees,
executive orders, proclamation and administrative regulation, or part or parts
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thereof which are inconsistent with any of the provisions of this Code are hereby
repealed or modified accordingly.”
2) In the recent case of the City Government of San Pablo,
etc., et al. vs. Hon. Beinvenido V. Reyes, et. Al., the Court has held the phrase “in
lieu of all taxes” has to give way to the peremptory language of the Local
Government Code specifically providing for the withdrawal of such exemptions,
privileged, and that “upon the effectivity of the Local Government Code all
exemptions except only as provided therein can no longer be invoked by
MERALCO to disclaim liability for the local tax.”
3) While the court has, not too infrequently, referred to tax
exemptions contained in special franchises as being in the nature of contracts and
a part of the inducement for carrying on the franchise, these exemptions,
nevertheless, are far from being strictly contractual in nature. Contractual tax
exemptions, in the real sense of the term and where the non-impairment clause
of the Constitution can rightly, be invoked, are those agreed to by the taxing
authority in contracts, such as those contained in special government bonds or
debentures, lawfully entered into by them under enabling laws in which the
government, acting in its private capacity, sheds its cloak of authority and
waives its governmental immunity. Truly, tax exemptions of this kind may not
be revoked without impairing the obligations of contracts. These contractual tax
exemptions, however, are not to be confused with tax exemptions granted under
franchise. A franchise partakes the nature of a grant which is beyond the
purview of the non-impairment clause of the Constitution. Indeed, Article XII,
section 11, of the 1987 Constitution, like its precursor provisions in the 1935 and
the 1973 Constitutions, is explicit that no franchise for the operation of a public
utility shall be granted except under the condition that such privilege shall be
subject to amended, alternation or repeal by Congress as and when the common
good so requires.
3. d Municipality of San Fernando v. Sta. Romana 149 SCRA 27
Facts: The Municipality of San Fernando, La Union which was
undertaking a cement road construction around its Supermarket and other
municipal projects, needed sufficient gravel and sand from their source, the
Municipality of Luna, La Union but its trucks sent to the latter municipality to
haul said road construction materials were allegedly charged unreasonable fees
per truck load.
Said fees charged by Luna were based on Section 1 of Ordinance No. 1
enacted by it which reads, “There shall be collected from any person, partnership
or corporation engaged in any business, occupation or calling or enjoying any
privilege hereunder enumerated the following municipal license and/or fees x x
x“
On March 18, 1968, the Municipality of San Fernando represent by its
incumbent Municipal Mayor Lorenzo L. Dacanay filed a complaint for injunction
with Writ of preliminary Injunction at the Court of First Instance of La Union
against the Municipality of Luna and its officials and authorized agents, praying
that the Municipality of Luna be immediately enjoined from preventing San
Fernando’s its from obtaining road construction from Luna, La Union and from
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levying unreasonable and after trial to make the injunction permanent. The lower
court granted said petition.
The main issue in this case is whether the Municipality of Luna has the
authority to pass Ordinance No.1 and impose the license fees in question.
Held: The answer is No, but for a surprising reason. The reason is
that this issue in the case at is governed by President Decree No. 231, enacting a
Local Tax Code (for Provinces, Cities, municipalities and Barrios) which took
effect on July 1, 1973. The Code provides:
“SEC 10. Sand and gravel fee. The province may levy and collect a fee of not
exceeding twenty-five centavos per cubic meter of ordinary stones, sand, gravel
earth and other materials selected from lakes, rivers, streams, creeks and other
public waters within the jurisdiction of the province.
“SEC 22. Specific limitations on power. Except as otherwise provided in this
Code, the municipality shall not levy the following:
(a) Taxes, fees and charges that the province or city is authorized to levy in
this Code x x x”
Section 10 of aforesaid decree was later amended by Presidential Decree
No. 426 dated March 1974, and now reads: Sand and gravel tax. The province
may levy and collect a tax of not exceeding seventy-five centavos per cubic meter
of ordinary stones, sand, gravel earth and other materials extracted from public
and private lands of the government or from the beds of seas, lakes, streams,
creeks, and other public waters within the jurisdiction of the province. The
municipality where the materials extracted shall share in the proceeds of the tax
herein authorized at a rate of not more than thirty per cent thereof as may be
determined by the Provincial Board. The permit to extract the materials shall be
issued by the Direction of Mines or his duly authorized representative and the
extraction thereof shall be governed by regulations issued by the Director of
Mines.
Under the above-quoted provisions of the Local Tax Code, there is no
question that the authority impose the license fees in dispute, properly belongs to
the province concerned and not to the Municipality of Luna which is specifically
prohibited under Section 22 of same Code “from levying fees and charges that
the province or city is authorized to levy in this Code. “On the other hand,
Municipality of San Fernando cannot extract sand and gravel from the
Municipality of Luna without the corresponding taxes or fees that may be
imposed by the province of La Union.
NOTE: This is a lousy case. The LGC wasn’t even used as legal basis in
the decision, but then was an old case. What if we decide this case using the LGC
of 1991? Was San Fernando forming a governmental or proprietary function in
constructing roads? In either case, based on these of facts alone, can the
municipality of Luna tax the municipality of San Fernando?
3. e Compania General de Tabacos v. City of Manila 8 SCRA 367
Facts: Compania General Tabacos de Filipinas (Tabacalera for short)
filed this action in the court of First Instance of Manila to recover from
appellants, City of Manila and its Treasurer, Marcelino Sarmiento also
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hereinafter referred to as the city the sum of P15, 280.00 allegedly overpaid by it
as on its wholesale and retail sales of liquor for the period from the third quarter
of 1954 to the second quarter of 1957, inclusive, under Ordinances Nos. 3634,
3301, and 3816.
Tabacalera’s action for refund is based on the theory tat, in connection
with its liquor sales, it could pay the license fees prescribe by Ordinance No. 2258
but not the municipal sales taxes imposed Ordinances Nos. 3634, 3301, and 3816;
and since it already paid the license fees aforesaid, the sales paid by the
amounting ton sum of P 15,208.00 under the three ordinance mentioned
heretofore is overpayment made by mistake and therefore refundable.
The city, on the other hand, contends that for permit issued to it
granting proper authority to conduct or engage in the sale of alcoholic beverages
or liquors” Tabacalera is subject to pay the license prescribed by Ordinance No.
3358, aside from the sales taxes imposed by Ordinances Nos. 3634, and 3816 that
even assuming that Tabacalera is not subject to the payment of the sales taxes
prescribed by the said three ordinances as regards its liquor sales, it is not
entitled to the refund for the following reasons: 1) the said amount was paid by
the plaintiff voluntarily and without protest: 2) If at all the alleged overpayment
was made by mistake, such mistake was one of law and impose from the plaintiff
neglect of duty; 3) The said amount had been added by the plaintiff to the selling
price of the liquor sold by it and passed to the consumers; 4) The said amount
had been already expended by the defendant City for public improvement and
essential services of the City government, the benefits of which are enjoyed and
being enjoyed by the plaintiff.
Held: Tabacalera’s contentions are untenable. What is collected under
Ordinance No. 3358 is a license fee for the privilege of engaging in the sale of
liquor a calling in which it is obviously not anyone or anybody may freely
engage, considering that the sale of liquor indiscriminately may endanger public
health and morals. On the other hand, what the three ordinances mentioned
herefore impose is a tax for revenue purposes based on the sales made of the
same article or merchandise. It is already settled on this connection that both a
license fee and a tax may be imposed on the same business or occupation for
selling the same article, this not being in violation of the rule against double
taxation. This is precisely the case with the ordinances involved in the case at bar.
3. f Ty v. Trampe 250 SCRA 500
Facts: On 06 January 1994, the Municipal Assessor of Pasig sent a notice
of assessment concerning certain real properties owned by Alejandro B Ty
located in Pasig, Metro Manila. A similar notice for the same reason was also sent
to MVR Picture Tube. Inc. located in Pasig, Metro Manila. In a dated 18 March
1994, petitioners Ty and MVR Picture Tube Inc. (Ty and Company) through
counsel “requested the Municipal Assessor to consider the subject assessments.”
Not satisfied, Ty and Company on 29 March 1994 filed with the RTC of the
National Capital Judicial Region, Branch 163, presided over by Judge Aurelio
Trampe, a Petition for Prohibition with prayer for a restraining order or writ of
preliminary injunction to declare null and void the new tax assessment and to
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enjoin the collection of real estate taxes based on said assessments. The judge
denied said petition.
Ty and Company now contends that 1)the Court gravely erred in
holding that Presidential decree No. 921, including its implementing rules and
regulations, were expressly repealed by R.A 7160 the Court erred in not
declaring the confiscatory and oppressive nature of the assessments as illegal ab
initio and unconstitutional constituting a deprivation of property without due
process of law and the Court erred in declaring that Ty and company failed to
exhaust administrative remedies provided the law by not paying tax although
under protest instead (Sec. 252, LGC). To put it in words justice Panganiban, who
loves to ask a question before writing his decisions, are the increased real state
taxes imposed by and collected by the Municipality of Pasig, effective from the
year 1994, legal? (With all due respect to the good Justice, the real question is:
Does the municipal, provincial city assessor [as the case may be]. Acting alone,
have the authority to prepare the Schedule of Values real property as mandated
by R.A. 7160, or is the schedule of Values prepared by a group of assessors as
mandated by P.D. 921? Obviously, we have 2 conflicting laws here).
Held: Ty and Company’s petition is meritorious. Reasons:
1) To resolve Ty and Company’s first contention, we have to
examine certain 3 laws. The first is R.A. 15 of P.D. 464, the Real Property Tax
Code which states, “Preparation of Schedules of Value before any general
revision of property assessments is made as provided in this Code, there shall be
prepared for the province or a schedule of Market Value for the different classes
of real property therein situated in such form and detail as shall be prescribed by
the Secretary of Finance.”
The second is Section 9 of P.D. 921 which states, “Preparation of
Schedule of Value for Real Property within the Metropolitan Area. The Schedule
of Value that will serve as the basis for the appraisal and assessment for taxation
purposes of real properties located within the Metropolitan Area.
Shall be prepared jointly by the City Assessors of the Districts created
under Section one hereof, with the City Assessors of Manila acting as Chairman,
in accordance with the pertinent provisions of Presidential Decree No. 464, as
amended, otherwise known as the Real Property Tax Code, and the
implementing rules and regulations thereof issued by the Secretary of Finance.”
The second is Section 9 of P.D. 921 which states. “Preparation of
Schedule of Values that will serve as the basis for the appraisal and assessment
for taxation purposes of real properties located within the Metropolitan Area
shall be prepared jointly by the City Assessors of the Districts created under
Section one hereof, with the City Assessor of Manila acting as Chairman, in
accordance with the pertinent provisions of Presidential Decree No. 464, as
amended, otherwise known as the Real Property Tax Code, and the
implementing rules and regulations thereof issued by the Secretary of Finance.
Also, we have Section 1, same P.D., which states, “Division of Metropolitan
Manila into Local Treasury and Assessment Districts. For purposes of effective
fiscal management, Metropolitan Manila is hereby divided into the following
Local Treasury and Assessment Districts:
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First District Manila
Second District Quezon City, Pasig, Marikina, Mandaluyong and San
Juan
Third District Caloocan City, Malabon, Navotas and Valenzuela
Fourth District Pasay City, Makati, Parañaque, Muntinlupa, Las
Piñas, Pateros and Taguig
Manila, Quezon City, Caloocan City and Pasay City shall be the respective
Centers of the aforesaid Treasury and Assessment Districts.
The third is Sec. 212 of the LGC, 1991 which states, “Preparation of
Schedule of Fair Market Values. Before any general revision of property
assessment is made pursuant to the provisions of this Title, there shall be
prepared a schedule of fair market values by the provincial, city and the
municipal assessors of the municipalities within the Metropolitan Manila Area
for the different classes of real property situated in their respective local
government units for enactment by ordinance of the sanggunian concerned x x
x.”
The question now is, who will prepared the schedule of Fair Market
Values: the guys under P.D. 921 of the guys under LGC of 1991? It should be
noted that the LGC did not expressly repeal P.D. 921. Did the former impliedly
repeal the latter then? The court answered no. I t is a basic rule of statutory
construction that repeals by implication are not favored. An implied repeal will
not be allowed unless it is convincingly and unambiguously demonstrated that
the two laws are so clearly repugnant and patently inconsistent that they cannot
co-exist. This is based on the rationale that the will of the legislature cannot be
overturned by judicial function of construction and interpretation. Courts cannot
take the place of Congress in repealing statutes. Their function is to try to
harmonize, as much as possible, seeming conflicts in the laws and resolve doubts
in favor of their validity and co-existence.
It is obvious that harmony in these provisions is not only possible, but
in fact desirable, necessary and consistent with the legislative intent and policy.
By reading together and harmonizing these two provisions, we arrive at the
following steps in the preparation of the said schedule, as follows:
a) The assessors in each municipality or city in the Metropolitan
Manila area shall prepare his/her proposed schedule of values, in
accordance with Sec. 212 R.A. 7160.
b) Then, the Local Treasury and Assessment District shall meet per
Sec. 9 P.D. 921. In the instant case, that district shall be composed of
the assessors in Quezon City, Pasig , Marikina, Mandaluyong and
San Juan, pursuant to Sec. 1 of said P.D. In this meeting, the
different assessors shall compare their individual assessments,
discuss and thereafter jointly agree and produce a schedule of
values for their districts, taking into account the preamble of said
P.D. that they should evolve “a progressive revenue raising
program that will not unduly burden the taxpayers.”
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c) The schedule jointly agreed upon by the assessors shall they be
published in a newspaper of general circulation and submitted to
the sanggunian concerned for enactment by ordinance, per Sec. 212,
R.A. 7160.
2) Although as a rule, administrative remedies must first be exhausted
before resort to judicial action can prosper, there is a well-settled
exception in cases where the controversy does not involve question of
fact but of la. Ty and company are not merely questioning the amounts
of increase in the tax, they are questioning the very authority and power
of the assessor, acting solely and increase in the tax, they are
questioning the very authority and power of the assessor, acting solely
and independently, to impose the assessment and of the treasurer to
collect the tax. Therefore, there is no reason for Ty and company to
exhaust the administrative remedies provided for in the LGC, namely
Sec 226 (appeal to the Local Board of Assessment Appeals) and Sec. 252
(Payment under protest).
3) Finally the court will not pass upon the constitutionality of the law if
the controversy can be settled on other grounds, like in this case, by
harmonizing the conflicting provisions of P.D. 921 and the LGC.
D) Power to Open and Close Roads (Sec. 21, LGC, Art. 43-45, IRR)
* Sec. 21. Closure and Opening of Roads
(a) An LGU may, pursuant to an ordinance permanently or temporarily
close or open any local road, alley, park or square falling within its jurisdiction:
provided however, that in the case of permanent closure, such ordinance must be
approved by at least 2/3 of all members of the sanggunian, and when necessary,
an adequate substitute for the public facility that is subject to closure provided.
(b) No such way or place or any part thereof shall be permanently
closed “without making provisions for the maintenance of public safety
therein. A property thus permanently withdrawn from public use may be
used or conveyed for any purpose for which other real property belonging
to the LGU concerned may be lawfully used or conveyed . Provided
however, That no freedom park shall be closed permanently without
provision for its transfer or relocation to a new site.
(c) Any national or local road, alley, park or square may be temporarily
closed during an actual emergency, or fiesta celebrations, public rallies,
agricultural or industrial fairs, or an undertaking of public works and
highways, telecommunications and waterworks projects, the duration of
which shall be specified by the local chief executive concerned in a written
order. Provided however, that no national or local road, alley, park or
square shall be temporarily closed for athletic, cultural or civic activities not
officially sponsored, recognized or approved by the LGU concerned.
(d) Any city, municipality or barangay may by a duly enacted
ordinance, temporarily close and regulate the use of an any local street road
thoroughfare or any other public place where shopping malls, Sunday, flea
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or night markets or shopping areas may be established and where goods,
merchandise, foodstuffs, commodities, or articles of commerce may be sold
and dispensed to the general public.
* Art 43. Authority to Close or Open. An LGU may, through an
ordinance permanently or temporarily close or open any road, alley, park or
square within its jurisdictions.
* Art 44. Permanent Closure.
(a) No permanent closure of any local road, street,
alley, park or square shall be effected unless
there exists a compelling reason or sufficient
justification therefore such as, but not limited
to change in land use, establishment of
infrastructure facilities, projects or such other
justifiable reasons as public welfare may
require.
(b) When necessary, an adequate substitute for the
public facility that is subject to closure shall be
provided. No freedom park shall be closed
permanently without provision for its transfer
or relocation to a new site
(c) No such way or place or any part thereof shall
be permanently closed without making
provisions for the maintenance of a public
system therein
(d) A property permanently withdrawn from
public use may be used or conveyed for any
purpose for which other real property
belonging to property may be lawfully used or
conveyed.
(e) (The ordinance authorizing permanent closure
must be approved by at least 2/3 of all
members of the Sanggunian. Public hearings
shall first be conducted before any ordinance
authorizing permanent closure of any local
roads, alley, park or square is enacted. Notices
of such hearings and copies of the proposed
ordinance shall be posted for a minimum of 3
consecutive weeks in conspicuous places in the
provincial capitol, or in the city, municipal, or
barangay hall of LGU and within the vicinity
of the street or park proposed to be closed.
* Art. 45. Temporary Closure. Any national of local road, alley, park, or
square may be temporarily closed during actual emergency or fiesta celebrations,
public rallies, agricultural or industrial fairs, or undertakings of pubic works and
high ways, telecommunications and waterworks projects, the duration of which
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shall be specified by the local chief executive concerned in a written order as
follows:
(1) During fiestas for a period not exceeding 9 days
(2) During agricultural or industrial fairs or expositions, for a period as
may be determined to be necessary and reasonable
(3) When public works projects or activities are being undertaken, for a
period as may be determined necessary for the safety, security, health or welfare
of the public or when such closure is necessary to facilitate completion of the
projects or activities
(4) An LGU may temporarily close and regulate the use of any local
street, road, thoroughfare, or public place where shopping malls, Sunday market,
flea or night market, or shopping areas may be established and where goods,
merchandise, foodstuff, commodities, or articles of commerce may be sold and
dispensed to the general public
(5) No national or local road, alley, park, or square shall be temporarily
closed for athletic, cultural, or civic activities not officially sponsored, recognized
or approved by the LGU.
Factors to consider in vacating a street
a) Topography of the property surrounding the street in the
light of ingress and egress to other streets
b) Relationship of the street in the road system throughout the
subdivision
c) Problem posed by the ‘dead end’ of the street
d) Width of the street
e) Cost of rebuilding and maintaining the street as contrasted
to its ultimate value to all of the property in the vicinity
f) Inconvenience of those visiting the subdivision
g) Whether the closing of the street would cut off any property
owners from access to a street.
d.1 Favis v. City of Baguio 27 SCRA 1060
Facts: This case took place in Baguio City.
On April 30, 1957, Antonio Favis bought a parcel of land from the
Assumption Convent, Inc. This land is surrounded by the following areas (go get
a pen and paper and draw a map of this land to better understand this case):
1. Lot 2-E-3-B-3-B-1 – this lot is owned by Assumption and is located
southwest of Favis’ land; this lot was donated to the City because it was the site
for a proposed road. This donated road is Favis’ only means of ingress and
egress to Lapu-lapu Street, a public street.
2. Lapu-lapu Street – this street is a portion of the Baguio Market
Subdivision, a big tract of land registered in the name of the City. Lapu-lapu
street is connected at one end to two lots: a) Lot 2-E-3-B-3-B-1; and b) a lot
owned by Olmina Fernandez. Generally, Lapu-lapu Street is 8 m. in width, but at
its connecting point with Lot 2-E-3-B-3-B-1, it’s only 2.5 m. in width.
3. Lot 25 – this lot is located in the northern portion of Baguio Market
Subdivision and is right beside Fernandez’s lot. The shell Oil Company leased
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this lot in 1947 for its use as a service station. 10 years later, Shell leased Lot 25
again and a portion of Lapu-lapu Street as well, reducing the latter’s width to
only 5 meters. The City approved the renewal of the lease thru Resolution No.
132-61.
Favis protested the lease because it reduced the width of Lapu-lapu
Street, thus (1) his entrance and exit to and from his property has become very
difficult; (2) it became impossible for his big trucks and trailers to turn around;
(3) it made the area around it very dangerous in case of fire; and (4) it has caused
perpetual danger, annoyance, irreparable loss and damage not only to the public
in general but especially to Favis himself. In response, the City approved
Resolution 215-61, converting the remaining 5 m.-width portion of Lapu-lapu
street into an alley (lousy resolution…). Unsatisfied with the City’s response,
Favis Commenced suit to annul the lease contract for the reasons mentioned
above and also because of the following: 1) the power to close streets should be
effected thru an ordinance and not thru a resolution; 2) the City failed to give
notice to owners of contiguous properties whose rights might be affected; and 3)
the city council of Baguio and municipal bodies in general, have no inherent
right to vacate or withdraw a street from public use, either in whole or in part,
thus there must be a specific grant by the legislative body to the city or
municipality concerned.
Held: Favis contentions are unmeritorious. Reasons:
1) The embattled resolutions are just as good as ordinances. The
objection is only of forms, not of substance.
2) Notice is not needed because the City Charter requires notice only
when the ordinance in question also calls for an assessment regarding a project
to be implemented. In this case, no assessment was called for and was in fact, not
necessary.
3) While Favis is correct that municipal bodies have no inherent right to
close a public street, still the City Charter does authorize Baguio City to close
public roads in its discretion absent a plain case of abuse, or fraud or collision.
Faithfulness in public trust is presumed. Public interest is served thru 1) savings
from cost of road maintenance; and 2) gaining by the City of some income thru
leasing.
4) Favis’ private rights were not invaded. Lapu-lapu street does not
abut his parcel of land. The general rule is that one whose property does not abut
on the closed section of a street has no right to compensation for the closing or
vacation of the street, if he still has reasonable access to the general system of
streets. The circumstances in some cases may be such as to give a right to
damages to a property owner, even though his property does not abut on the
closed section. But to warrant recovery in any such case the property owner must
show that the situation is such that he has sustained special damages differing in
from those sustained by kind, and not merely in degree, the public generally.
2. Other illustrative cases:
d.1. Cabrera v. CA 195 SCRA 314
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Facts: On Sept. 19, 1969, the Provincial Board of Catanduanes passed
Resolution 158 authorizing the closure of the old road leading to the Capitol City
of Catanduanes. A new road was built which traversed the land of Remedios
Bagadiong and several others similarly affected. Bagadiong and friends were
given portions of the old road as compensation for the properties they lost as a
result of the construction of the new road.
One man, Bruno Cabrera, did not like the idea of the old road being
gone. He filed a complaint for “Restoration of Public Road and/or Abatement of
Nuisance, Annulment of Resolutions and Documents with Damages” alleging
that the old road in question was a public road owned by the Province of
Catanduanes in its governmental capacity and was thus beyond the commerce of
man. It stands to reason then, that said road cannot be the subject of private
contracts, such as barter or exchange. Moreover, Cabrera insists, control over
public roads lies with Congress, not with the Provincial Board.
Held: Cabrera is wrong. Reasons:
1) Resolution 158 states, in black and white ink, that it is for the closure
of a public road and not for a contract of barter or exchange. RA 5185 Sec 11 (a)
(An Ant Granting Further Local Autonomy to Local Governments), in relation to
Sec. 2246 of the revised Administration Code, is the pertinent law from which
Resolution 158 derives its authority.
2) The barter or exchange is legal ‘coz it’s in accordance with Sec. 412 of
the Civil Code, which states: “Property of public dominion, when no longer
intended for public use or for public service, shall form part of the patrimonial
property of the State.”
Note: The power to open or close roads is expressly provided for in Art.
43, IRR of the LGC, 1991.
d.2.Dacanay v. Asistio 208 SCRA 404
Facts: Way back in January 5, 1979, the Metropolitan Manila
Commission (MMC) enacted MMC Ordinance 79-02, which allowed certain city
and municipal public streets and roads to be sites for many vendors applied for
licenses to conduct such activities in said streets.
On Dec. 20, 1987, the RTC of Caloocan City ruled that the streets were of
public dominion and ordered the demolition of said stalls. But Mayor Martinez,
who had advocated the demolition of the said stalls, has been replaced by Mayor
Asistio. Mayor Asistio did not carry out the order of the RTC, for humanitarian
reasons. Francisco Dacanay, a concerned citizen and a resident along Heroes del
’96 street, filed a petition for mandamus to compel the Mayor, thru the City
Engineer, to remove the said stalls. Will the petition prosper?
Held: Yes, for the plain and simple reason that public roads cannot be
the object of leases and thus cannot be bargain away thru contracts. Public roads
should serve the purpose for which they were built: for public use as arteries of
travel for vehicles and pedestrians.
d.3. Macasiano v. Diokno 212 SCRA 464
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Facts: On June 13, 1990, the municipality of Paranaque passed
Ordinance no. 90, series of 1990, which authorized the closure of 5 streets located
at Baclaran, Paranaque for the establishment there of a flea market. On July 20,
1990, the Metropolitan Manila Authority approved the said ordinance but subject
to the following conditions:
1. That the afore-named streets are not used for vehicular traffic, and
that the majority of the residents do not oppose the establishment of the flea
market/vending areas thereon;
2. That the 2 meter middle road to be used for flea market/vending
area shall be marked distinctly, and that the 2 meters on both sides of the road
shall be used by pedestrians;
3. That the time during which the vending area is to be used shall be
clearly designated;
4. That the use of the vending areas shall be temporary and shall be
closed once the reclaimed areas are developed and donated by the Public Estate
Authority.
Palanyag Kilusang Bayan for Service, a service cooperative, then
entered into a contract with Paranaque for the construction and operation of
market stalls in the said streets.
Some months later, Brg. Gen. Levy Macasiano, PNP Superintendent of
the Metropolitan Traffic Command, entered the picture. He wrote Palanyag a
letter demanding the latter to discontinue the flea market, otherwise the market
stalls would be dismantled. Macasiano’s beef was that Ordinance No. 90which
authorized the lease and use of public thoroughfares as site for flea markets is
not valid because it is on legal basis. Was he correct?
Held: Yes. Reasons:
1) The Municipality of Paranaque did not follow Sec. 10, Chapter 11,
LGC 1983, to the letter. Its states that: “Closure of roads. A local Government unit
may likewise, through its head acting pursuant to resolution of its sanggunian
and in accordance with existing law and the provisions of this Code, states any
barangay, municipal, city or provincial road, street, alley, park or square. No
such way or any part of thereof shall be close without indemnifying any person
prejudiced thereby. A property thus withdrawn form public use may be used or
conveyed for any purpose for which other real property belonging to the local
unit concerned might be lawfully used or conveyed.”
Note the italicized phrase “and in accordance with existing law and the
provisions of this Code. ”The power to close roads by LGUs is still subject to
existing law. In this light, Art. 424 of the Civil Code is relevant. It essentially says
that if public property is withdrawn from public use, the property becomes
patrimonial property of the LGU concerned and may thus be subject to ordinary
contracts. This is all assuming if the public are still open to vehicular traffic and
are thus still devoted to public use.
2) Following the argument of the # 1 above, it goes to show that
Paranaque did not follow condition as imposed by the MMA for Ordinance 90 tie
be valid. The legality of Ordinance 90, under the circumstances, cannot be
sustained.
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d.4. Sangalang v. IAC 176 SCRA 719
Facts: As far back in 1977, Makati, Metro Manila has always been
plagued by traffic. For this reason, during that time, Mayor Nemesio Yabut of
Makati ordered that studies be made on ways on how to alleviate the traffic
problem, particularly in the areas along the public streets adjacent to Bel-Air
Village. The studies revealed that the subdivision plan of Bel-Air was approved
by the Court of First. Distance of Rizal on the condition, among others, that its
major thoroughfares connecting to public streets and highways shall be opened
to public traffic. Accordingly, it was deemed necessary by the Municipality of
Makati in the interest of the general public to open to traffic Amapola, Mercedes,
Zodiac, Jupiter, Neptune, Orbit and Pasco de Roxas streets. As a result, the gates
owned by BAVA at Jupiter and Orbit were ordered demolished.
Mayor Yabut justified the opening of the streets on the following
grounds:
1) Some time ago, Ayala Corporation donated Jupiter and Orbit Streets
to Bel-Air on the condition that, under certain reasonable conditions and
restrictions, the general public shall always be open to the general public. These
conditions were evidenced by a deed of donation executed between Ayala and
Bel-Air.
2) The opening of the streets was justified by public necessity and the
exercise of the police power.
3) Bel-Air Village Association’s (BAVA) articles of incorporation
recognized Jupiter Street as a mere boundary to the southwest – thus it cannot be
said to be for the exclusive benefit of Bel-Air residents.
4) BAVA cannot hide behind the non-impairment clause on the ground
that is constitutionally guaranteed. The reason is that it is not absolute, since it
has to be reconciled with the legitimate exercise of police power.
BAVA, on the other hand, contended:
1) Rufino Santos, president of BAVA, never agreed to the opening of
the said streets
2) BAVA has always kept the streets voluntarily open anyway
Moreover, BAVA claims the demolition of the gates abovementioned
was a deprivation of property without process of law or expropriation without
just compensation.
Who is correct: the Mayor or BAVA?
Held: The Mayor is correct, for the reasons mentioned above. Also, the
demolition of the gates is justified under Art. 436 of the Civil Code.
“When any property is condemned or seized by competent authority in
the interest of health, safety or security, the owner thereof shall not be entitled to
compensation, unless he can show that such condemnation or seizure is
unjustified.”
In this case, BAVA has the burden of showing that the seizure of the
gates is unjustified because police power can be exercised without provision for
just compensation. The Court is of the opinion that the Mayor did not act
unreasonably nor was the opening of the gates unjustified. In fact, the gates
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could even be considered public nuisances, of which summary abatement, as
decreed under Art. 701 of the Civil Code, may be carried out by the Mayor.
d.5.Cebu Oxygen v. Bercilles 66 SCRA 481
Facts: The subject of the dispute is a portion of M. Borces Street,
Mabolo, Cebu City (10 years from now, would this name really matter?).
One day, on Sept. 23, 1968, the City Council of Cebu passed a resolution
declaring the abovementioned street to be abandoned. Subsequently, the council
passed another resolution authorizing the Acting City Mayor to sell the street
(which was actually a parcel of land) thru a public bidding. Cebu Oxygen and
Acetylene Co. Inc. then bought the said parcel of land.
However, when Cebu Oxygen tried to have its land registered, the
Assistant Provincial Fiscal of Cebu filed a motion to dismiss the application on
the ground that it is a public road intended for public use and thus was outside
the commerce of man. The question now is whether the City of Cebu is
empowered to close a city road or street.
Held: Yes, for the simple reason that the City Charter of Cebu
authorizes the same (Note that today, LGUs may close roads or streets under the
authority of the LGU of 1991, charter of no charter).
d.6.Pilapil v. CA 216 SCRA 33
Facts: This case spanned for a period of 6 years only to reach an
unexpected, tragic conclusion for the spouses Colomida.
Spouses Pilapil own a parcel of land in Bahak, Poblacion, Liloan, Cebu.
Spouses Colomida, on the other hand, bought a parcel of land located also in
Bahak. Now this land owned by the Colomidas has for its ingress and egress to
the National Road a camino vecinal (barrio road). However, this camino vecinal
transverses the property of the Pilapil, which was the root of all their problems.
The Pilapil denied the existence of the camino vecinal. Socrates Pilapil,
the husband, presented himself as witness (which was lousy) as well as Engineer
Epifanio Jordan, Municipal Planning and Development Coordinator of Liloan.
The engineer said that while that zoning map of Poblacion, Liloan made
reference to a camino vecinal, said reference was but a mere proposal of its
existence to the Sangguniang Bayan of Liloan.
The Colomidas, on the other hand, relied on old-timers as witnesses –
witnesses such as Florentino Pepito, who attested to the existence of the Camino
vecinal and its availability to the general public since practically time
immemorial.
The trial court ruled in favor of the Colomidas because the zoning map
used as evidence by the Pilapil did not specifically indicate that the amino
vecinal was indeed merely “proposed” since other roads and streets were
classified as such. The CA upheld that trial court, basically because it said that
findings of facts by the trial court, as a general rule, should be undisturbed.
Would the SC uphold the CA ruling?
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Held: No. In its infinite wisdom, the SC said that it didn’t matter what
opinion the Colomidas or the engineer gave regarding the existence of the
camino vecinal. What really mattered is the zoning plan (the Urban Land Use
Plan) as finally approved by the Sangguniang Bayan of the Municipality of
Liloan. The zoning plan showed that the camino vecinal was declared closed.
CLOSED! It’s so crystal clear, can’t you see? And it’s beyond dispute that the
abandonment, closure or establishment of the camino vecinal is the sole
prerogative of the Municipality of Liloan under the LGU of 1983. The SC rebuked
the parties for not having resorted to a pre-trial conference which would have
prevented the dragging of a trivial case for six years.
E) Corporate Powers (Sec. 22, LGC, Art. 46, IRR)
* Sec. 22, LGC, Corporate Powers. A) Every LGU, as a corporate, shall
have the following powers:
1. To have continuous succession in its corporate name;
2. To sue and be sued;
3. To have and use a corporate seal;
4. To acquire and convey real or personal property
5. To enter into contracts; and
6. To exercise such other powers as are granted to corporations, subject
to the limitations provided in this Code and other laws.
b) LGUs may continue using, modify, or change their existing
corporate seals. Provided, that newly established LGUs or those without
corporate seals may create their own corporate seals which shall be registered
with the DILG. Provided further, that may change of corporate seal shall also be
registered as provided herein.
c) Unless otherwise provided in this Code, no contract may be
entered into by the local chief executive in behalf of the LGU without prior
authorization by the sanggunian concerned. A legible copy of such contrast shall
be posted at a conspicuous place in the province capitol or the city, municipal or
barangay hall.
d) LGUs shall enjoy full local autonomy to the exercise of their
proprietary functions and in the management of their economic enterprises,
subject to the limitations provided in this Code and other applicable laws.
*Article 46, IRR. Note: It’s exactly the same as Sec. 22, LGC.
*Municipality Liability
A. General Rule
Municipal liabilities arise from various sources in the conduct
of municipal affairs, both governmental and proprietary. Broadly, claims against
municipalities include all obligations upon all municipal contracts and upon all
outstanding bonds, notes, and warrants issued by them. Strictly, however, these
claims are demands for payments for articles, furnished or services rendered to a
municipality in the conduct of its affairs, or demands asserting the tort liability of
the municipality.
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B. Exceptions
1. As provided by law
a) Article 2189, New Civil Code – “Provinces, cities
and municipalities shall be liable for damages for the death of or injuries suffered
by any person by reason of the defective conditions of roads, streets, bridges,
public buildings, and other public works their control and supervision.”
Cases:
e.1. City of Manila v. Teotico 22, SCRA 267
Facts: On Jan. 27, 1958, at about 8 p.m., Genaro Teotico was at the corner
of the Old Luneta and P. Burgos Avenue, Manila, waiting for a jeepney to take
him downtown. After 5 minutes, he managed to hail a jeepney that came along
to a stop. As he stepped down from the curb to board the jeepney, and took a
few steps he fell inside an uncovered and unlighted manhole on P. Burgos
Avenue. Teotico sustained a lacerated wound in his left eyelid, conclusion on his
left thigh, the upper left thigh… oh my goodness, every injury imaginable! (Use
Atty. Ulep’s tone of voice). Teotico was hospitalized and the anti-tetanus
injections administered to him caused allergic eruptions which required further
medical treatment. Teotico filed an action for damages (actual and moral
damages) against the City of Manila. The City denied liability contending that
Sec. 4 of the City Charter (RA 409) should prevail over Art. 2189 of the Civil
Code because the former is a special law intended exclusively for the City of
Manila, whereas the Civil Code is a general law applicable to the entire
Philippines.
Held: Sec. 4 of RA 409 refers to liability arising from negligence in
general regardless of the object thereof whereas Art. 2189 governs liability due to
defective streets in particular. Since the presentation action is based upon the
detective condition of a road, said Art. 2189 is decisive. Under Art. 2189, it is not
necessary for the liability therein established to attach that the defective roads or
streets belong to the province, city or municipality from which responsibility is
exacted. What said Article requires is that the province, city or municipality has
either control or supervision over said street or road. Even if P. Burgos were,
therefore, a national highway, this circumstance would not necessarily detract
from its “control of supervision” by the City of Manila, under RA 409. The City
of Manila is therefore liable to Teotico for damages.
e.2. Jimenez v. City of Manila 150 SCRA 510
Facts: Bernardino Jimenez was the unlucky said who fell in an
uncovered opening o the ground located within the premises of the Sta. Ana
public market. At that time, the market was flooded with ankle-deep rainwater
which prevented the opening form being seen. Jimenez, for his part, went to that
market to buy bagoong despite the rains. He sustained an injury due to a rusty 4-
inch nail which pierced his left leg.
Jimenez sued the Asiatic Integrated Corporation (AIC) and the City of
Manila for his misfortune. The Sta. Ana Market at that time was under the
administration of the AIC by virtue of a management and Operating Contract it
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had with the City of Manila. The trial court held the AIC responsible but
absolved the City of Manila. Is the City of Manila indeed not liable?
Held: The City of Manila is liable. Reasons:
1) Again, Art. 2189 comes into play, since the injury took place in a
public building.
2) Also, Art. 2189 requires that the LGU must retain supervision and
control over the public work in question for it to be held liable. The evidence
showed that the Management and Operating Contract explicitly stated that the
City of Manila retained supervision and control over the Sta. Ana Market. Also,
in a letter to Finance Secretary Cesar Virata, Mayor Raymond Bagatsing admitted
this fact of supervision and control. Moreover, Sec. 30(g) of the Local Tax Code
says that public markets shall be under the immediate supervision,
administration and control of the City Treasurer.
3) Jimenez could not be held for negligence. A customer in a store has
every right to presume that the owner will comply with his duty to keep his
premises safe for customers. The owner of the market, on the other hand, was
proven to have been negligent in not providing a cover for the said opening. The
negligence of the City of Manila is the proximate cause of the injury suffered.
NOTE: It is not necessary for the LGU to have ownership over the
public work in question; mere control and supervision is sufficient.
e.3. Guilatco v. City of Dagupan 171 SCRA 382
Facts: Florentina Guilatco, a court interpreter, was about to board a
tricycle at a sidewalk located at Perez Boulevard when she accidentally fell into a
manhole located in said side walk, causing her right leg to be fractured. She was
hospitalized and also as a result, suffered loss of income and moral damages.
Guilatco sued the City of Dagupan. The City replied that Perez
Boulevard, where the deadly manhole was located, is a national road not under
the control and supervision of Dagupan. It is submitted that it is actually the
Ministry of Public Highways that has control and supervision thru the Highway
Engineer, who by mere coincidence, is also the City Engineer of Dagupan (malas
naman namin, City Engineer).
Is the City of Dagupan liable?
Held: Yes, Reasons:
1) We again apply Art. 2189. But the bigger question is , does the City
of Dagupan have control and supervision over Perez Boulevard in order for it to
be held liable? The answer is yes. Why? Read on.
2) The City of Dagupan argued that the supervision and control over
Perez Boulevard belongs more to his function as ex-officio Highway Engineer,
thus the Ministry of Public Highways should be held liable. However, the court
gave this arguments: “Alfredo G. Tangco, in his official capacity as City Engineer
of Dagupan, as Ex-Officio Highway Engineer, as Ex-Officio City Engineer of the
Bureau of Public Works, and, last but not the least, as Building Official for
Dagupan City, receives the following monthly compensation: P1,810.66 from
Dagupan City, P200.00 from the Ministry of Public Highways, P100.00 from the
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Bureau of Public Works and P500.00 by virtue of P>D 1096, respectively. This
function of supervision over streets, public buildings, and other public works
pertaining to the City Engineer is coursed through Maintenance Foeman and a
Maintenance Engineer. Although these last two officials are employees of the
National Government, they are detailed with the City of Dagupan and hence
receive instruction and supervision from the city through the City Engineer.
There is , therefore, no doubt that the City Engineer exercises control or
supervision over the public works in question. Hence, the liability of the city to
the petitioner under article 2198 of the City Code is clear.” (Duh? What kind of
explanation is that? Personally, I can’t understand it, but if the SC says the City
of Dagupan is liable, then we must trust the wisdom of the omniscience SC).
e.4. Dumlao v. CA 114 SCRA 247
Facts: These events took place in Dagupan City.
On Feb. 28, 1964, about 11:30 p.m., the spouses Elizalde were driving a
jeep thru Telomes Bridge when suddenly; they came upon a huge hole about 1
meter in diameter and 8 feet deep at the south end of the bridge. The Elizaldes
managed to avoid the boulders but instead slammed into a truck owned by
Hermanos de Yap and driven by Dulcesimo Ducoy. The truck came from the
opposite direction on the wrong lane. The Elizaldes died as a result of the
incident. The heirs of the Elizaldes included in defendants in its complaint the
City of Davao and Samuel Dumlao, the City Engineer. Specifically, Dumlao was
sued in his personal capacity.
Dumlao argued that he cannot be held liable is his personal capacity. Is
he correct?
Held: Yes.
1) The allegations in the complaint clearly state that he was being sued
in his official capacity as City Engineer.
2) There was no showing that there was bad faith or malice which
would warrant Dumlao personally liable in connection with the discharge of his
duties.
3) The best that could be imputed to him is an act of culpable neglect,
inefficiency and gross negligence in the performance of his official duties.
b) Article 2180, Civil Code “The obligation imposed by Article
2176 is demandable was only for one’s own acts or omission, but also for those of
persons for whom one is responsible.
“The father and, in case of his death or incapacity, the mother,
are responsible for the damages caused by the minor children who live in their
company.
“The owners and managers of an establishment or enterprise
are likewise responsible for damages caused by their employees in the service of
the branches in which the latter are employed or on the occasion of their
functions.
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“Employers shall be liable for the damages caused by their
employees and household helpers acting within the scope of their assigned tasks,
even though the former are not engaged in any business or industry.
“The State is responsible in like manner when it acts thru a
special agent but not when the damage has been caused by the official to whom
the task done properly pertains, in which caused what is provided in Article 2176
shall be applicable.
“Lastly, teachers or head of establishments of arts and trades
shall be liable for damages caused by their pupils and students or apprentices, so
long as they remain in their custody.
“The responsibility treated of in this article cease when the
persons herein mentioned proved that they observed all the diligence of a good
father of a family to prevent damages.
e.5. Palafox v. Province of Ilocos Norte 102 Phil. 1186
Facts: Palafox filed a suit to recover damages from the provincial
government for the death of his son caused by the negligence of a regular
chauffer of the provincial government. The accident occurred while the chauffer
was working at the highway construction. The questions now are: 1) May the
province be held liable? 2) Does the doctrine of respondent superior apply?
Held: The answers to both questions are given below (obviously):
1) To attach liability to the State for the negligence of its officer or
employee, the latter must be not upon whom properly devolved the duty of
driving the truck on that occasion. This principle applies both to the national and
municipal governments. The province is liable.
2) The doctrine of respondeat superior or corporate liability for the
negligence or tort of its officers, applies only where the government is engaged
in proprietary or business functions. When engaged in government functions, as
the construction and maintenance of roads, the doctrine does not apply. The
reason for the exemption is the government does not undertake to guarantee to
any person the fidelity of the officers or agents whom it employs, since that
would involve in all its operations endless embarrassments, difficulties and
losses subversive of the public interest.
2. Liability for torts if engaged in proprietary function
Cases:
1. Torio v. Fontanilla 85S CRA 599
Facts: The Municipal Council of Malasiqui, Pangasinan passed a
resolution celebrating a town fiesta for 3 days on January, 1959. The resolution
created on Executive Committee which would oversee the operations of the town
fiesta. The Executive Committee in turn had a sub-committee in charge of
building 2 stages, one of which was for a zarzuela program.
Vicente Fontanilla was one of the actors of the zarzuela. While the
zarzuela was going on the stage where the play was set collapsed. Fontanilla,
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who has at the rear of the stage, was pinned underneath and died the following
day.
The family and heirs of Fontanilla filed a complaint against the
Municipality of Malasiqui, the Municipal Council and the individual members of
the Municipal Council. Can they be held liable?
Held: The Municipality of Malasiqui is liable and the individual
members of the Municipal Council are not liable. Reasons:
1) The basic rule to be first followed is that a municipal corporation
cannot be held liable for an injury caused in the course of performance of a
governmental function. With respect to proprietary functions, the settled rule is
that a municipal corporation can be held liable upon contracts and in torts.
2) The next question to be answered is that whether the fiesta above-
quota was performed by the municipality in the exercise of its governmental or
proprietary function. According to 2282 of the revised Administrative Code,
municipalities are authorized to hold fiesta, but it is not their duty to conduct
such. Thus, the fiesta is proprietary in nature. The same analogy can be applied
to the maintenance of parks, which is a private undertaking, as opposed to the
maintenance of public schools and jails, which are for the public service. (The key
word then is duty.)
3) Under the doctrine of respondent superior (see first paragraph of
Art. 2180), the municipality can be held liable for the death of Fontanilla if a) the
municipality was performing a proprietary function at that time and b)
negligence can be attributed to the municipality’s officers, employees or agents
performing the proprietary function. The evidence proved that the committee
overseeing the construction of the stage failed to build a strong enough to insure
the safety of zarzuela participants. Fontanilla was entitled to ensure that he
would be exposed to danger on that occasion.
4) Finally, the municipal council is not responsible. The Municipality
stands on the same footing as an ordinary private corporation with the municipal
council acting as its board of directors. It is an elementary principle that a
corporation has a personality, separate and distinct from its officers, directors, or
persons composing it and the latter are not as a rule co-responsible in an action
for damages for tort or negligence culpa aquillana committed by the
corporation’s employees of agents unless there is a showing of bad faith or gross
or wanton negligence on their part. To make an officer of a corporation liable for
the negligence of the corporation there must have been upon his part such a
breach of duty as contributed to or helped to bring about, the injury; that is to
say, he must be a participant in the wrongful act.
2. Municipality of San Fernando, La Union v. Firing 195 SCRA 692
Facts: Laurence Banino, Sr., along with several other passengers in a
jeepney they were riding in, died after collision involving said jeepney, a
privately owned graved and sand trucks and a dump truck owned by the
Municipality of San Fernando, La Union, driven by Alfredo Bislig, a regular
employee of said municipality. The heirs included in its complaint the
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municipality and the dump trucks driver. The municipality invokes non-
suability of the State. Is it correct?
Held: Yes.
1) The general rule is that the State may not be sued except when it
gives consent to be sued. Consent takes the form of express of implied consent.
Express consent may be embodied in a general law or a special law. The
standing consent of the State to be sued in case of money claims involving
liability arising from contracts is found in Act No. 3083. A special law may be
passed to enable a person to sue the government for an alleged quasi – delict.
Consent is implied when the government enters into business contracts,
thereby descending to the level of the other contracting party, and also when the
State files a complaint thus opening itself to a counterclaim.
Municipal corporations for example, like provinces and cities, are agencies of
the State when they are engaged in governmental functions and therefore should enjoy
the sovereign immunity from suit. Nevertheless, they are subject to suit even in the
performance of such functions because their charter provided that they can sue and be
sued.
2. A distinction should first be made between suability and liability.
“Suability depends on the consent of the state to be sued, liability on the
applicable law and the established facts. The circumstance that a State is suable
does not necessarily mean that it is liable; on the other hand, it can never be held
allowing itself to be sued. When the state does waive its sovereign immunity, it is
only giving the plaintiff the chance to prove, if it can, that the defendant is
liable.”
3. About the issue of whether or not the municipality is liable for the
torts committed by its employee, the test of liability of the municipality depends
on whether or not the driver, acting in behalf of the municipality is performing
governmental of propriety functions. As emphasized in the case of Torio vs.
Fontanilla, the distinction of powers becomes important for purposes of
determining the liability of the municipality for the acts of its agents which result
in an injury to third persons.
It has already been remarked that municipal corporations are suable
because their charters grant them the competence to sue and be sued.
Nevertheless, they are generally not liable for torts committed by them in the
discharge of governmental functions and can be held answerable only if it can be
shown that they were acting in a propriety capacity. In permitting such entities
to be sued, the State merely gives the claimant the right to show that the
defendant is not acting in its governmental capacity when the injury was
committed or that the case comes under exceptions recognized by law. Failing
this, the claimant cannot recover.
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4. In the case at bar, the driver of the dump truck of the municipality
insists that “he was on his way to Naguilian River to get a load of sand and
gravel for the repair of San Fernando’s municipal streets.”
In the absence of any evidence to the contrary, the regularity of the
performance of official duty is presumed pursuant to Section 3 (m) of Rule 131 of
the Revised Rules of Court, Hence, We rule that the driver of the dump truck
was performing duties or tasks pertaining to his office.
3. Read RA 7678 – DIGITEL Franchise
The title states: Republic Act no. 7678, February 17, 1994: An Act
granting the Digital Telecommunications Philippines, Incorporated, a franchise
to install, operates and maintains telecommunications systems throughout the
Philippines and for other purposes.
Section 13 states: “Warranty in Favor of the National and Local
Government. The grantee shall hold the national, provincial, city and municipal
governments harmless from all claims, accounts, demands or actions arising out
of accidents or injuries, whether to property or to persons, caused by the
installation and operation of the telecommunications systems of the grantee.”
* Liability for Contract
Municipal corporations are liable on contracts entered into in their
behalf by their authorized agents acting within the scope of their authority,
provided that the municipal corporations are authorized to enter into said
contracts by their charter.
* Section 24, LGC. Liability for damages
LGU’s and their officials are not exempt from liability for death or
injury or damage to property.
4. City of Manila v. JAC 179 SCRA 423
Facts: The City of Manila leased a lot of the North Cemetery to Irene
Sto. Domingo. The period of the lease is from June 6, 1971 to June 6, 2001.
Irene’s husband died and was buried in said lot on June 6, 1971. The
authorities of the North cemetery however, ordered the lot exhumed on January
25, 1978, according to their interpretation in good faith of AO No. 5, 1975, which
provided for a uniform procedure and guidelines in the processing of documents
pertaining to and for the use and disposition of burial lots and plots within the
North Cemetery, etc.
Naturally, Irene and her family were shocked, Adding to their dismay
was that the remains of her husband was callously dumped in a warehouse of a
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cemetery were thousands of other sacks of bones were kept. The risk, according
to her, of claiming the wrong set of bones was high. Irene filed a claim for
damages against the city. Will the suit prosper?
Held: Yes, reasons:
1. In connection with its powers as a municipal corporation, the City
of Manila may acquire property in its public or governmental
capacity, and private or propriety capacity. The NCC divides such
properties into property for public use as provincial roads, city
streets, municipal streets, the squares, fountains, public waters,
promenades, and public works for public service paid for by said
provisions, cities or municipalities, all other property is patrimonial
without prejudice to the provisions of special laws.
2. In the absence of special law, the North Cemetery is a patrimonial
property of the City of Manila, which was created by resolution of
the Municipal Board of August 27, 1903 and January 7, 1904. With
its acts of dominion, there is therefore no doubt that the North
Cemetery is within the class of property which the City of Manila
owns in its propriety of private character. Furthermore, there is no
dispute that the burial was leased in favor of the Sto. Domingo.
Hence, obligations arising from contracts have the force of law
between them. Therefore, a breach of contractual provision entitles
the other party to damages even of no penalty for such breach is
prescribed in the contract.
3. It should also be noted that the Charter of Manila states that it may
sue and be sued. By virtue if this and the doctrine of respondent
superior, the City is liable for the negligent acts of its agents in
failing to verify the duration of the lease above- quoted. The agents’
reliance in AO No.5 is unavailing because said AO covers only new
leases.
* Doctrine of Implied Municipal Liability (Contra personal liability)
To hold a municipal corporation for benefits received under an implied
contract:
a. It is necessary to show that the implied contract be
within the contractual powers of the corporation
and that the officers who entered into contract
were fully authorized.
b. It must be further shown that the benefits were
voluntarily accepted under such circumstances as
will indicate that payment was intended by the
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parties or that justice and equity would require the
payment of compensation.
1. Inciong v. Domingo 211 SCRA 139
Facts: This case basically concerns the implied liability of a municipal
corporation in paying the fees of an attorney it hired. But first, the useless facts.
The Philippines Sugar Commission (PHILSUCOM) owned a sugar
refinery at Barangay Caloocan, Balayan, Batangas. However, PHILSUCOM failed
to pay the real state taxes due on said sugar refinery. So the Provincial Treasurer
of Batangas scheduled for the sale of the sugar refinery thru a public auction.
PHILSUCOM, however, was granted a restraining order maintaining
the status quo. In the meantime, Barangay Caloocan, thru Atty. Ceferino Inciong,
intervened in the case as it had 10% property tax share to be collected form
PHILSUCOM. To make the long story short, Atty. Inciong eked out a
compromise agreement for both warring parties so everybody went home happy
except for Atty. Inciong.
It seemed that the request of the Barangay Captain of Caloocan for
petitioner’s legal assistance was not taken up nor approved by the Sangguniang
Barangay nor was there any showing that it was approved by the Solicitor
General and concurred in by COA as required under COA Circular No. 86 – 255,
dated April 2, 1986.
Also it seemed that the hiring of petitioner by the Punong Barangay did
not carry with it the approval of the Sangguniang Barangay as required under
Section 91 (1-1) of the B.P. 377, nor was there any appropriation therefore; the
hiring was not approved by the Solicitor General and concurred in by COA.
In other words, Barangay Caloocan doesn’t want to pay Atty. Inciong. Is
that correct?
Held: Our companero must be paid. Reasons:
1. We don’t want to see a kindred spirit get unpaid or else we
lawyers will have to go on strike.
2. As correctly stated by the Office of the Solicitor General,
the position of respondent Chairman of the COA disallowing payment of
attorney’s fees to petitioner Atty. Ceferino Inciong is not proper in the light of the
following considerations:
a. The employment by Barangay Caloocan of petitioner as its
counsel, even if allegedly unauthorized by the
Sangguniang Barangay, is binding on Barangay Caloocan
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as it took no prompt measure to repudiate petitioner’s
employment.
b. The decision of the RTC directing Barangay Caloocan to
pay attorney’s fees to petitioner has become final and
executory and is binding upon Barangay Caloocan.
c. COA Circular No. 86 – 255 cannot diminish the
substantive right of petitioner to recover attorney’s fees
under the final and executory decision dated August 9,
1989 of the Regional Trial Court.
3. The respondent COA Chairman states that PHILSUCOM
paid the amount of 7,199,887. 51 pesos to the Municipal Treasurer under the
Amnesty Compromise Agreement. Out of this amount, the Municipal Treasurer
allocated to Barangay Caloocan as its share the amount of 719,988.75 pesos. This
allocation is erroneous because pursuant to Republic Act No. 5447, Barangay
Caloocan should only share from the basic tax which is 50% of what
PHILSUCOM paid because the other half should go to the Special Education
Fund. Under the said Republic Act No. 5447, the rightful share of Barangay
Caloocan should be 359,944.38 pesos only.
The Chairman prayed that in the event the Court orders the payment of
attorney’s fees to petitioner this amount of 359,944.38 pesos should be made the
basis therefore. The Court replied in a booming voice, “WHEREFORE, the
petition is GRANTED and respondent is ordered to direct the payment of
attorney’ fees to petitioner Atty. Ceferino Inciong in an amount equivalent to
10% of 359,994.38 pesos.”
2. Province of Cebu v. JAC 147 SCRA 447
Facts: Again, this case concerns the implied liability of a municipal
corporation in paying the fees of an attorney hired – but the attorney ended up
with only a pittance.
There was a time when Cebu City almost became the owner of
practically the whole of the Province of Cebu. This happened in Feb. 4. 1964
when the Vice – Governor and the Provincial Board of Cebu, taking advantage of
Governor Rene Espina’s absence (he was away on an official business trip
[ows?]} donated 210 lots or 380 hectares of provincial patrimonial land to Cebu
City. When Governor Espina finally heard of the donation, he filed a case to
declare the donation void for being illegal and immoral. The defendants in the
case were Cebu City, City mayor Sergio Osmena and the dumb provincial
officials responsible for the donation.
Governor Espina hired Atty. Pablo Garcia, a private lawyer, as his
counsel. Atty. Garcia toiled for 8 years on the case, but for some reason, he was
no longer counsel when the parties settled for a compromise agreement.
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Nevertheless, Atty. Garcia claims he is entitled to fees worth 30% of the worth of
the properties or 36 million pesos (a staggering amount, considering that the
amount was based on the peso - dollar rates of 1979).
The province of Cebu City however refused to give him even one
centavo. They said Sec. 1683 of the RAC and Sec. 3 of the Local Autonomy Law is
clear that only the provincial fiscal and municipal attorney can represent a
province or municipality in its lawsuits. More importantly, if the province of
Cebu were to hire a private lawyers (such as when the provincial fiscal is
disqualified) the Provincial Board must pass a resolution to allow such a move.
The Trial court awarded attorney’s fees based on quantum merit. On
appeal, the IAC awarded 5% worth of properties. The questions now are 1.
Should the province pay Atty. Garcia and 2? If so how much is Atty. Garcia
entitled to?
Held: The province must pay Atty. Garcia but he is entitled only to
quantum merit. Reasons:
1. Ibi quid generaliter conceditur; inest haee exception, si non
aliquid sit contra jus fasque. (Where anything is granted
generally, this exception is implied; that nothing shall be
contrary to law and right). This simply means that every
rule, no matter how strict or harsh, must have an exception.
Here, equity comes into play. To deny Atty. Garcia
compensation for his professional services would amount
to a deprivation of property without due process of law.
2. The argument that the hiring of private lawyers by a
province must first gain the approval of the Provincial
Board is absurd. First of all, the service of the Provincial
Fiscal has already been engaged by the Provincial Board.
More importantly, it’s so stupid for the Provincial Board to
pass a resolution grant the hiring of a private lawyer who
would litigate against them. The Provincial Board may just
not pass such a resolution. The legal maxim which we can
use as a basis for this situation is “Nemo tenetur ad
impossibile” (The law obliges no one to perform an
impossibility)
3. Until the contrary is clearly shown, an attorney is
presumed to be acting under authority of the litigant whom
he purports to represent. His authority to appear for and
represent petitioner in litigation, not having been
questioned in the lower court, it will be presumed on
appeal that counsel was properly authorized to file the
complaint and appear for his client. Even where an
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attorney is employed by an unauthorized person to
represent a client, the latter will be bound where it has
knowledge of the fact that it is being represented by an
attorney in a particular litigation and takes no prompt
measure to repudiate the assumed authority. Such
acquiescence in the employment of an attorney as occurred
in this case is tantamount to ratification. The act of the
successor provincial board and provincial officials in
allowing Atty. Pablo P. Garcia to continue as counsel and
in joining him in the suit led the counsel to believe his
services were still necessary.
4. Atty. Garcia is entitled only to quantum merit. He simply
was not counsel when the compromise agreement was
made. He gets only 30,000 pesos,
* Instances where the municipal mayor was held liable for back salaries of, or
damages to dismissed municipal employees, to the exclusion of the municipality
Salcedo vs. Court of Appeals – the municipal mayor was held liable for the
back salaries of the Chief of Police he had dismissed, not only because the
dismissal was arbitrary but also because the mayor refuse to reinstate him in
defiance of an order of the Commissioner of Civil Service to reinstate.
Nemenzo vs. Sabillano – the municipal mayor was held personally
liable for dismissing a police corporal who possessed the necessary civil service
eligibility, the dismissal being done without justifiable cause and without any
administrative investigation.
Rama vs. Court of Appeals- the governor, vice – governor, member of the
Sangguniang Panlalawigan, provincial auditor, provincial treasurer and
provincial engineer were ordered to pay jointly and severally in their individual
and personal capacity damages to some 200 employees of the province of Cebu
who were eased out from their positions because of their party affiliations.
* Instance where the municipality was also held liable along with municipal
mayor
3. Laganapan v. Asedillo 154 SCRA 377
Facts: Solano Laganapan was appointed Chief of Police. However, he
was summarily dismissed from his position by respondent Mayor Elpidio
Asedillo of Kalayaan, Laguna on the ground that his appointment was
provisional and that he has no civil service eligibility. Respondent Epifanio
Ragotero was appointed acting chief of police of Kalayaan, Laguna on the same
day in place of the petitioner.
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Subsequently, the Municipal Council of Kalayaan, Laguna abolished the
appropriation for the salary of the chief of police of Kalayaan, Laguna.
Laganapan thus filed a complaint against Mayor Asedillo and the Municipality
of Kalayaan for reinstatement and payment of back wages. May Laganapan be
reinstated? Is the Municipality also liable?
Held: The municipality is liable but Laganapan cannot be reinstated.
Reasons:
1. Laganapan was summarily dismissed without any
semblance of compliance with due process. No charges were filed, no notice or
hearing was made, no nothing. The Court finds no merit in the mayor’s
contention that, since the appointments extended to Laganapan as chief of police
of Kalayaan, Laguna, were all provisional in nature, and not permanent, his
services could be terminated with or without cause at the pleasure of the
appointing officer. While it may be true that Laganapan was holding a
provisional appointment at the time of his dismissal, he was not a temporary
official who could be dismissed at any time. His provisional appointment could
only be terminated thirty (30) days after receipt by the appointing officer of a list
of eligible form the Civil Services Commission. Here no such certification was
received by Mayor Asedillo thirty (30) days prior to his dismissal of Laganapan.
Furthermore, it is of record that, after the summary dismissal of
Laganapan by Asedillo, the Municipal Council of Kalayaan instead of opposing
or at least protesting Laganapan’s summary dismissal of his position, even
abolished the appropriation for the salary of the Chief of Police of Kalayaan –
Laguna. The Court considers this act of the Municipal Council as an approval or
confirmation of the act of respondent Mayor in summarily dismissing
Laganapan, as to make said municipality equally liable as the mayor for the
reinstatement of Laganapan and for the payment of his back salaries.
Finally it should be noted that Asedillo was sued not personally, but in
his capacity as mayor.
2. Laganapan cannot be reinstated. PD 482, recently enacted
at that time, calls for the appointment of a permanent Chief of Police (known as
Station Commander), in certain provinces including Laguna. His reinstatement is
not feasible. The Mayor and the municipality are instead liable for payment of
back salaries.
4. Salcedo v. CA 81 SCRA 408
Facts: Arsenio Salcedo was appointed Chief of Police of Candelaria,
Quezon. Records show that Salcedo then held civil service eligibility, having
passed the U.S. Civil Service Examination for Messenger and Skilled laborer in
1928. Considering his eligibility appropriate to the position of Chief of Police, the
Commissioner of Civil Service validated the same and attested the appointment
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of Salcedo as permanent. Since then Salcedo has discharged the functions of his
office
An administrative complaint for misconduct and serious irregularities
was later filed against Salcedo. It seemed however that the mayor of Candelaria,
Venancio Dia wanted him kicked out right away so he terminated the services of
the poor guy. The basis of the termination was erroneous and illegal, since
Salcedo didn’t possess the appropriate eligibility for the position of Chief of
Police (his civil service eligibility arose form a U.S based test, remember?)
Salcedo appealed to the Commissioner of Civil Service. Although the
Commissioner found him guilty of conduct unbecoming of a police officer, he
was nevertheless reinstated and was given a fine and a warning instead.
The Mayor however really hated the guy. He refused to have Salcedo
reinstated. The CA agrees with the mayor.
The lone issue in this instant action is whether the respondent mayor
can legally terminate Salcedo’s services notwithstanding the attestation of the
latter’s appointment as permanent by the Commissioner of Civil Service.
Held: The mayor cannot terminate Salcedo’s services. The reason is that
even though he did not take the required examination either under the Old or
New Civil Service Law, that wasn't his fault. His claim to eligibility came from
the U. S. Civil Service Examination he took in 1928 when the Philippines was still
a U.S Colony. Salcedo cannot be required to take the examination again after his
eligibility had already been declared permanent by the Commission.
The respondent mayor persistently ignored the order of reinstatement
given by the Commissioner of Civil Service. He defied the directive of a superior
body with final authority on the matter which is the mayor's duty to comply. For
acting arbitrarily and without legal justification in terminating the services of
petitioner and refusing to reinstate him as Chief of Police, the mayor must be
held personally liable for the back salaries of Salcedo, except for the time Salcedo
was suspended.
Legislative Powers
* Requisites of a valid ordinance
1. Must not contravene the constitution or statute
2. Must not be oppressive
3. Must not impartial, fair and general
4. Must not prohibit, but may regulate trade
5. Must not contravene common right
6. Must be consistent with public
7. Must not be unreasonable
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NOTE: See also Solicitor General V. MMA, p. 25 of this reviewer
 Distinction between an Ordinance and a Resolution
An ordinance prescribes a permanent rule of conduct government;
whereas a resolution is of temporary character only
*Article 107, IRR. Ordinances and Resolutions. The following rules shall govern
the enactment of ordinances and resolutions:
1. Legislative actions in a general and permanent character shall be
enacted in the form of ordinances, while those temporary characters
shall be passed in the form of resolutions. Matters relating to propriety
functions and to private concerns shall be enacted in a resolution.
2. Proposed ordinances and resolutions shall begin writing and shall
contain an assigned number, a title or caption, an enacting or ordaining
clause and the date of its proposed effectivity. In addition, every
proposed ordinance shall be accompanied by a brief explanatory note
contain the justification for its approval. It shall be signed by the author
or authors and submitted to the secretary to the sanggunian who shall
report the same to the sanggunian at the next meeting.
3. A resolution shall be enacted in the same manner prescribed for an
ordinance, except that it need not go through a third reading for its final
consideration unless decided otherwise by a majority of the sanggunian
members.
4. No ordinance or resolution shall be considered on second reading in
any regular meeting unless it has been reported out by the proper
committee to which it was referred or certified as urgent by the local
chief executive.
5. Any legislative matter duly certified by the local chief executive as
urgent whether or not it is included in the calendar of business, may be
presented and considered by the body at the same meeting without
need of suspending the rules.
6. The secretary to the sanggunian of the province, city or municipality
shall prepare copies of the proposed ordinance or resolution in the form
it was passed on second reading and shall distribute to each sanggunian
member a copy thereof, except that a measure certified by the local chief
execute as urgent may be submitted for final voting immediately after
debate or amendment during the second reading.
7. No ordinance or resolution passed by the sanggunian in a regular or
special session duly called for the purpose shall be valid unless
approved by majority of the members present, there being a quorum.
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Any ordinance or resolution authorizing or directing the payment of
money or creating liability, shall require the affirmative vote of all the
sanggunian members for its passage.
8. Upon passage of all ordinances and resolution directing the payment of
money or creating liability, and at the request of any members, of any
resolution or motion, the sanggunian shall record the ayes and nays.
Each approved ordinance or resolution shall be stamped with the seal of
the sanggunian and recorded in a book kept for the purpose.
*Article 108 – 144, IRR, LGC
As we go along this reviewer, we'll ferret out the cream from the crap –
which articles deserve to be read again and again and which should be
considered stinker, articles of such jaw - dropping ineptitude that the hapless
law student has no recourse but to shake her head and mutter, “What the hell
they were thinking?.” But then, this is just probably the author talking lazy, so go
read the codal instead.
1. Mascunana v. Provincial Board of Negros Occidental 79 SCRA 339
Facts: The case doesn’t really teach mush -if anything at all – about the
coordinates and resolution but anyway...
Angel Mascunana and Angeles Veldeflor lived near a piece of land
which was the subject of controversy of this case. The two claimed that this piece
of land was actually part of the extension of Burgos Street. On this piece of land
were squatters and their houses. One of the squatters was an influential
councilor named Leon Treyes.
The two requested the municipal mayor of Talisay, Negros Occidental
that the land in question be cleared of squatters so that the public can make use
of that portion of Burgos Street.
A debate resulted on whether the land had been used as street or has it
been withdrawn form public. The municipal council of Talisay made an ocular
inspection of the place and declared that there was no reason for opening it to
vehicular traffic (note that Treyes is a member of the municipal council). The
municipal council thus passed Resolution no. 59 ordering the said land closed.
The provincial board of Negros Occidental approved Res. No. 59 thru its res.
NO. 1035
Mascunana and Veldeflor filed a complaint with the VCFI of Negros
Occidental questioning the validity of the two resolutions. They wanted the
street opened because it was a property of public dominion and if the same was
not possible, then they should have been indemnified for damages under Sec.
2246 of the RAC since their properties were adjacent near the questioned land.
The CFI however dismissed their complaint summarily in a minute resolution.
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The reason, the CFI explained, is that the issue concerns a resolution passed by a
municipal corporation and therefore does not need to be resolved thru an action
for declaratory relief. Section 1, Rule 64 of the Rules of Court, the pertinent rule
to be followed in this case, refers only to an ordinance and not a resolution.
Should the CFI pass on the merits of the case of Mascunana and
Veldeflor?
Held: Yes. A trial court's order dismissing a complaint or petitions is
appealable like a final judgment. Also, Mascunana, et. al.'s action is not an action
for declaratory relief but an ordinary action for the enforcement of Sec. 2246 of
the RAC. The issue on whether the complaint involved an ordinance or a
resolution is irrelevant.
2. Magtajas v. Pryce Properties July 20, 1994
Facts: This case is interesting because local autonomy was defeated
unwittingly perhaps by the same statute granting it. The LGC of 1991.
PAGCOR, drunk with the success because it was able to open casinos in
several cites, announce plans of opening one in Cagayan de Oro City. The
reaction of the Sangguniang Panlungsod of said city was swift: it passed 2
ordinances preventing the operation of casinos in its territory. Mayor Pablo
Magtajas, one of the petitioners, said the ordinances were valid because 1. the
Sangguniang Panlungsod have the power to enact ordinances to prevent,
suppress and impose appropriate penalties for gambling and other prohibited
games of chance (Art. 468, LGC, 1991); 2. the ordinance were an expression of the
police power under the General Welfare Clause; and 3. the LGC of 1991 modified
the charter of the PAGCOR as the LGC of 1991 was a later enactment of
Congress. Is Magtajas correct?
Held: No. Reasons:
1. Art. 48 of the LGC clearly refers only to prohibit gambling and other
games of chance. Casinos are not prohibited because they are expressly
allowed by P.D. 1869. the law creating PAGCOR.
2. The ordinances in question cannot contravene PD 1839. It must be
remembered that a municipal ordinance to be valid, must among others
not contravene the constitution or any statute. The reason is that
municipal governments are mere agents of the state.
3. The repealing clause of LGC of 1991 did not expressly repeal PD 1869.
Implied repeal, on the other hand are not lightly presumed in the
absence of a clear and unmistakable showing of such intention. There
was no sufficient indication of an implied repeal of PD 1869. In fact,
later enactments after the LGC of 1991 recognize the existence of PD
1869. The rule in legal hermeneutics is that statues should not be pit
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against each other but instead, every effort by the courts must be made
to harmonize them. As a becoming respect to a co - equal (idiotic?)
branch of government.
V. INTERGOVERNMENTAL RELATIONS OF PUBLIC CORPORATIONS
(ART. 59, 64, IRR)
Article 59, IRR... General supervision of the province over component cites and
municipalities.
a. The province, thru its governor, shall exercise supervisory authority over
component cities and municipalities within its territorial jurisdiction to ensure
that they act within the scope of their prescribed powers and function. Highly
urbanize cites and independent component cities shall be independent of the
province.
b. The scope of the supervision by the province over component cites and
municipalities shall include but not limited to the following:
1. The governor shall review executive order issued by the mayor of the
component city or municipality, subject to the concurrence of the
sangguniang panlalawigan, except as otherwise provided under the
Constitution and special statutes. If the governor and the sangguniang
panlalawigan failed to act on said executive order within 30 days form
receipt thereof, the same shall be deemed consistent with law and
therefore valid.
2. The sangguniang panlalawigan shall review all approved city or
municipal ordinance and resolution approving the development plans
and public investment programs formulated by the city or municipal
development councils.
3. The SP shall review the ordinances authorizing annual or supplemental
appropriations of component cities and municipalities in the same
manner and within the same period prescribe for the review of other
ordinances of the LGU.
4. The governor shall visit component cities and municipalities of the
province at least once every 6 months to fully understand their
problems and conditions, listen and give appropriate counsel to local
officials and inhabitants, inform the officials and inhabitants of
component cites and municipalities of general laws and ordinances
which especially concern them and conduct visits and inspections to the
end that the governance of the province shall improve the quality of life
of the inhabitants.
5. The governor shall coordinate plans of the province in coordination
with mayors of cites and municipalities as well as NGO's concerned to:
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a. Formulate peace and order plan of the province in coordination with
mayors of component cities and municipalities and the National Police
Commission.
b. Adopt adequate measure to safeguard and conserve land, mineral,
marine, forest and other resources of the province, in coordination with
mayors of component cities and municipalities.
c. Coordinate efforts of component cites and municipalities in the
national or regional palaro or sports development activities; and
d Call conventions, seminars, conferences or meetings of any elective
and appointed officials of the province and component cities and
municipalities.
6. The proceeds of the basic real property tax, including interest thereon
and proceeds form the use, leas or disposition, sale or redemption of
property acquired at a public auction shall be shared by the province,
municipality and barangay in the manner prescribed in Rule XXXI of
these Rules.
7. The province shall share its collections form the tax on sand, gravel and
other quantity resources within its component city and municipality
and the barangay where said resources are extracted.
* Article 62, IRR. Role of people's organizations, non – governmental organizations
and the private sector
LGU's shall promote the establishment and operation of people's
organizations, NGOs and the private sector to make them active partners in the
pursuit of local autonomy. For this purposes, people's organization, NGO's and
the private sector shall be directly involved in the following plans, programs,
projects and activities of LGUs:
a. Local special bodies;
b. Delivery of basic services and facilities
c. Joint ventures and cooperative programs and undertakings
d. Financial and other forms of assistance
e. Preferential treatment for organizations and cooperatives of
marginalized fishermen
f. Preferential treatment for cooperatives development and
g. Financing, cooperative, maintenance, operation, and management
of infrastructure projects
* 1. Between the national government and the local governments: 2. With PNP: 3. With
component cites and municipalities: 4. With People's and Non – Governmental
Organizations (Sec. 25-36, LGC)
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Sec. 25. National supervision over local governments
a. Consistent with the basic policy on local autonomy, the President
shall exercise general supervision over LGU's to ensure that their acts are within
the scope of their prescribed powers and functions.
The President shall exercise supervisory authority directly over
provinces, highly urbanized cities and independent component cities, thru the
province with respect to component cities and municipalities and the city and
municipalities with respect to barangays.
b. National Agencies and offices with the project implementation
functions shall coordinate with one another and with the LGU's concerned in the
discharge of these functions. They shall ensure the participation of LGU's both in
the planning and implementation of the said projects.
c. The President may, upon request of the LGU concerned, direct the
appropriate national agency provide financial, technical or other forms of
assistance to the LGU. Such assistance shall be extended at extra cost to the LGU
concerned
d. National agencies and offices including government – owned or
controlled corporations with field under or branches in a province, city or
municipality shall furnish the local chief executive concerned, for information
and guidance, monthly reports including duly certified budgetary allocations
and expenditures.
Sec. 26. Duty of national government agencies in the maintenance of ecological balance
(just go and read the code or JGRC)
Sec. 27. Prior consultations required (JGRC)
Sec. 28. Powers of local chief executives over the units of the Philippine National Police
The extent of operational management and control of local chief
executives over the police force, fire protection unit, and jail management
personnel assigned in their respective jurisdictions shall be governed by the
provisions of RA 6975, otherwise known as the “DILG Act of 1990”, the rules and
regulations issued are pursuant thereto.
Sec. 29. Provincial relations with component cites and municipalities
The province, thru the governor, shall ensure that every component
cities and municipality within its territorial jurisdiction acts within the scope of
its prescribed powers and functions. Highly urbanized cities and independent
component cities shall be independent of the province.
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Sec. 30. Review of executive orders
a. Except as otherwise provided under the Constitutions and special
statues, the governor shall review executive orders promulgated by the
component city or municipal mayor within his jurisdiction. The city municipal
mayor shall review all EO's promulgated by the punong barangay within his
jurisdiction. Copies of such orders shall be forward to the governor or the city or
municipal mayor, as the case may be, within 3 days from their issuance. In all
instances of review, the local chief executive concerned shall ensure that such
EO's are within the powers granted by law and in conformity with provincial,
city or municipal ordinances.
b. If the governor or city or municipal mayor fails to act on said EO's
within 30 days of submission, the same shall be deemed consistent with law and
therefore valid.
Sec 31. Submission of municipal question to the provincial legal officer or prosecutor
In the absence of municipal legal officer, the municipal government
may secure the opinion of the provincial legal officer and in the absence of the
latter, that of the provincial prosecutor on any legal question affecting the
municipality
Sec 32. City and municipal supervision over their respective barangays
The city or municipality, thru the city or municipal mayor concerned
shall exercise general supervision after component barangay to ensure that said
barangays act within the scope of their prescribed powers and functions.
Sec 33. Cooperative undertakings among LGU's
LGUs' may, thru appropriate ordinances, group themselves,
consolidate, or coordinate their efforts, services and resources for purposes
commonly beneficial to them. In support of such undertakings, the LGU's
involved may, upon approval by the sanggunian concerned after a public
hearing for the purpose, contribute lands, real estate, equipment, and other king
of property and appoint or assign personnel under such terms and conditions as
may be agreed upon by the participating local units thru Memoranda of
Agreement.
Sec. 34. Role of people's and non – governmental organizations
LGU's shall promote the establishment and operation of people's and
non – governmental organization to become active partners in the pursuit of
local autonomy.
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Sec. 35. Linkages with people's and non – governmental organizations
LGU's may enter into joint ventures and such other cooperative
agreements with people's and non – governmental organizations to engage in the
delivery of basic services, capability – building and livelihood projects, and top
develop local enterprises designed to improve productivity and income,
diversity, agriculture, spur industrialization, promote ecological balance and
enhance the economic and social well – being of the people.
Sec 36. Assistance to people's and non – governmental organizations
An LGU may thru its local chief executive and with the concurrence of
the sanggunian concerned, provide assistance, financial or otherwise to such
people's and non – governmental organizations for economic , socially –
oriented, environmental, or cultural projects to be implemented within its
jurisdiction.
REQUIREMENTS AND PROHIBITIONS APPLICABLE TO ALL LOCAL
OFFICIALS AND EMPLOYEES (Sec 90, 94, 94, Art 177, 179, IRR)
Section 90. Practice of Profession
a. All governors, city and municipal mayors are prohibited from
practicing their profession or engaging in any occupation other than the exercise
of their functions as local chief executives.
b. Sanggunian officials may practice their professions, engage in any
occupation, or teach in schools except during session hours. Provided, that
sanggunian members who are also members of the Bar shall not:
1. Appear as counsel before any court in any civil case wherein and LGU
or any office, agency or instrumentality of the government is the
adverse party
2. Appear as counsel in any criminal case wherein an official or employee
of the national or local government is accused of an offense committed
in relation to his office
3. Collect any fee for their appearance in administrative proceedings
involving the LGU of which he is an official
4. Use property and personnel of the Government except when the
sanggunian member concerned is defending the interest of the
Government.
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c. Doctors of medicine may practice their profession even during official
hours of work only on occasion of emergency. Provided, that the official
do not derive any monetary income profession.
Section 94. Appointment of elective and appointive local officials: candidates who lost in
an election
a. No elective or appointive local official shall be eligible for appointment or
designation in any capacity to any public office or position during his tenure
Unless otherwise allowed by law or primary functions of his position,
no elective or appointive local official shall hold any other office or employment
in the Government or any subdivision or agency, or instrumentality thereof,
including government – owned or controlled corporation (GOCC) or their
subsidiaries;
b. Except for losing candidates in barangay elections, no candidate who lost in
any elections shall within 1 year after such election be appointed to any office in
the Government or any GOCC or in any of the subsidiaries
Section 95. Additional or double compensation
No elective or appointive local official or employee shall receive
additional, double or indirect compensation unless specifically authorized by
law, nor accept, without the consent of Congress, any present, emoluments,
office, or title of any kind form any foreign government. Pensions or gratuities
shall not be considered additional or double or indirect compensation.
Article 177. IRR. Practice of profession. Same as Section 90, LGC
Article 179. IRR Prohibited business and pecuniary interest.
a. It shall be unlawful for any local government official or employee
whether directly or indirectly, to:
1. Engage in any business transaction with the LGU in which he is an
official or employee or over which he has the power of supervision or
with any of its authorized boards, officials, agents or attorneys where
money is to be paid, or property or any other thing of value is to be
transferred, directly or indirectly, out of the resources of the LGU to
such person or firm;
2. Hold such interests in any cockpit or other games licensed by LGU
3. Purchase any real estate or other property forfeited in favor of an LGU
for unpaid taxes or assessment or by virtues of a legal process at the
instance of the said LGU
4. Be a surety for any person contracting or doing business with an LGU
for which a surety is acquired; and
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5. Possess or use any public property of an LGU for private purposes
b., All other prohibitions governing the conduct of national public officers
relating to prohibited business and pecuniary interest so provided in RA 6713,
otherwise known as the Code of Conduct and Ethical Standards of Public
officials and Employees, and other rules and regulations shall also be applicable
to local government officials and employees.
Read SC Circular No. 12 dated June 30, 1988
Circulars passed by the SC and administrative agencies are a bit more
difficult to research. They're probably not that important anyway – probably.
1. Javellana v. DILG 212 SCRA 475
Facts: Attorney Edwin Javellana was a city councilor of Bago City,
Negros Occidental. He was accused of engaging in the practice of law without
securing authority form the Regional Director of the Department of Local
Government. He also filed a case against the City Engineer, obviously a fellow
city official. Javellana contends that the 2 ordinances and Sec. 90 of the LGC of
1991 which served as the basis of the charges against him were unconstitutional
because, according to Article VIII Section 5 of the 1987 Constitution, only the
Supreme Court may promulgate rules and regulations for the practice of law. He
also attacked the said laws for being discriminatory for they ganged upon
lawyers and doctors when other similar professions like teachers and morticians
were not affected.
Held: Javellana is wrong. Reasons:
1. His contention that Section 90 of the LGC of 1991 and DLG
Memorandum Circular No. 90-81 violate Article VII, Section 5 of the Constitution
is completely off tangent. Neither the statute nor the circular trenches upon the
Supreme Court's power and authority to prescribe rules on the practice of law.
The LGC and DLG Memorandum Circular No. 90- 81 simply prescribes rules of
conduct for public officials to avoid conflict of interest between the discharge of
their public duties and the private practice of their profession, in those instances
where the law allows it.
2. Section 90 of the LGC does not discriminate against the lawyers and
doctors. It applies to all provincial and municipal officials in the professions or
engaged in any occupation. Section 90 explicitly provides that sanggunian
members “may practice their professions, engage in any occupation or teach in
school except during session hours”. If there are some prohibitions that apply
particularly to lawyers, it is because of all the professions, the practice of law is
more likely than other to relate to or affect the area of public service
2. Villegas v. Legazpi 113 SCRA 39
Facts: Raul Villegas was an Assemblyman of the Batasang Pambansa
form the province of Cebu. Estanislao Fernandez was also an Assemblyman
(from where, the case doesn't say, but that's not important). Both were accused of
violating Sec. 11 Article VIII of the 1973 Charter which states that: “No member
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of the National Assembly shall appear as counsel before any court inferior to a
court without appellate jurisdiction. The records show they appeared as counsel
for cases which were exercised by the CFIs in their original jurisdiction. Did they
violate the constitutional prohibition?
Held: Yes. Stated positively, the constitutional provision allows
Assemblyman to appear only when the court handling their case exercise
appellate jurisdiction. Only Appellate jurisdiction is permitted because the office
of the Assemblyman carry so much influence and prestige that they might
unduly influence upon the administration of justice.
3. Noriega v. Sison 125 SCRA 293
Facts: The name of the guy here is Emmanuel Sison. We place
emphasize on the name here coz the complainant Hermino Noriega made such a
big deal out of it Noriega claimed that Sison, an attorney who works as a
Hearing Officer for the SEC, held himself out to the public as “Atty. Manuel
Sison” and under such a gross misrepresentation of his name handled a case for
a close family friend. Noriega said that Sison violated the prohibition on
government employees’ form practicing their professions. Sison replied that the
SEC, thru associate commissioner, authorized him to allow as counsel for such
and that he did it for free.
Held: Sison's appearance as counsel as cited was an isolated case, the
same therefore did not constitute practice of law since he did not receive
pecuniary benefit (Note that this case took place before the advent of the
Cayetano v Monsod ruling). The case against him seemed more like an
instrument of harassment Noriega since the latter once lost to Sison in a SEC
case. There is simply no evidence that the interchanges his name for a fraudulent
purpose (the guy's entitled to use a nickname like everybody else, right?) nor this
pleading which revealed his name to be “Manuel Sison” be tainted with
deception since it was a mistake of Sison's part and he consistently tried to
correct the same by pointing it out in court.
ELECTIVE OFFICIALS
A. Qualification and Election
1. Frivaldo v. COMELEC 257 SCRA 727
Facts: The dissenting opinion by Justice Davide here is both prophetic
and ironic because he spoke that sovereignty cannot be fragmentized because
such fragment cannot be treated as a whole. Davide was talking about the rule
that the popular will of the people (of Sorsogon) in electing Juan Frivaldo as
governor should not be frustrated since he garnered the most votes. Yet
Frivaldo won under a cloud of doubt because he may not have legally
reacquired his citizenship in time for the elections. To allow Frivaldo as
governor just because the popular will of the electorate should not be frustrated
– but setting aside the rule of law in the process – would be anarchy. Davide
said (How ironic that it was Davide himself who swore in GMA as President
during EDSA II)
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The majority opinion however, fortunately or otherwise, is the
prevailing rule, Frivaldo filed his certificate of candidacy for governor on March
20, 1995. Raul Lee, the eventual second placer, filed a petition with the
COMELEC to disqualify Frivaldo because he was not yet a Filipino citizen at the
time. The COMELEC ruled in favor of Lee but since Frivaldo moved for
reconsideration, his candidacy continued. Frivaldo eventually topped the
elections but on June 30, 1995, the COMELEC acting on Lee's petition,
proclaimed Lee as governor.
A week later, Frivaldo filed a petition claiming that on June 30, 1995
(day of Lee's proclamation), he took his oath of allegiance as a Filipino citizen
after his August 17, 1994 petition for repatriation has been granted. The
COMELEC thus proclaimed Frivaldo as winner.
Lee contends: 1. that Frivaldo's disqualification due to his lack of
citizenship is a continuing condition and rendered him ineligible to run for
governor; and 2. the alleged repatriation of Frivaldo cannot be retroactive.
Held: Lee is wrong (or maybe, wronged). Reasons:
1. Under Sec. 39 of the LGC of 1991, there is no showing that a candidate
for an electoral position must be a Filipino citizen at any particular date and time.
Admittedly, there was the objection that since a candidate must have been a
registered voter beforehand, he must have therefore possessed Filipino
citizenship in order to become a registered voter. The Court gave an explanation
– that the qualification of citizenship for a registered voter and that for a
candidate are separate. The registration requirement of a candidate moreover, is
for the purpose of registering him as a voter in the area or requirement of a
candidate moreover, is only for the purpose of registering him as a voter in the
area or territory he seeks to govern. He does not actually have to vote (Ang layo!
The issue is citizenship, not voting. The issue of being a registered voter was
merely raised to bolster the claim that the qualification of citizenship is a
continuing one and thus cannot be acquired at a later time. The Court is saying,
“Run now, acquire citizenship later,” which is lousy. Is this the way we treat our
precious citizenship?)
2. The alleged repatriation of Frivaldo can be retroactive. PD 725 declares
that repatriation creates a “new right” in order to cure a defect in the existing
naturalization law. In Frivaldo's cause he was stateless at the time he took his
Filipino oath of allegiance since in his comment, he has long renounced his
American citizenship (a self serving statement). Moreover since he ran for
governor several times prior to 1995, he necessarily must have taken the Filipino
oath of allegiance several times as well, which is another indication of
renunciation of his American citizenship (Davide countered that it is the US, not
Frivaldo, who decides who is and who is not her nationals, a principle in
international law). Therefore, to prevent prejudice to Frivaldo by letting him
remain stateless for a substantial period of time while in the meantime being
deprived of his rights, it is clear then that PD 725 was intended to be retroactive.
In short, Frivaldo's repatriation retracted to Aug 17, 1994, the day he filed his
application for such and not just on June 30, 1995.
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2. Salomon v. NEA 169 SCRA 507
Facts: Natividad Salomon was a Director for the La Union Electric
Corporation (LULECO). Because she was also a Barangay Captain of Natividad,
Naguilan, La Union, the Minister of Local Government of La Union appointed
her as a member of the sangguniang Panlalawigan of La Union. The National
Electrification Administration, however, disqualified her from further acting as
LULECO director by authority of Sec. 21 of PD 269 which says, “Elective officers
of the government, except barrio captain and councilors, shall be ineligible to
become officers and/or directors of any (electric cooperative).” (Section 21 PD
No. 269). The legal provision is also incorporated in section 3, Article IV of the
LULECO's by – laws which runs: “No persons shall be eligible to become or to
remain a board member of the cooperative who holds an elective office in the
government above the level of a barangay captain.”
Salomon simply argued that she is not an elective officer but an
appointive officer as the facts above show. Is she therefore exempt form the
prohibition?
Held: No, the spirit of the law would be undermined – that incumbents of
elective offices be prevented form exerting political influence and pressure on the
management of the cooperative. The spirit of the law is as much a part of what is
was written (wow).
B. Vacancies and succession
1. Permanent Vacancies
* Sec 44. Permanent vacancies in the office of the governor, vice – governor,
mayor and vice mayor.
a. If a permanent vacancy occurs in the office of the governor or mayor,
the vice governor or vice mayor concerned shall become the governor or mayor.
If a permanent vacancy occurs on the office of the governor, vice – governor,
mayor, or vice – mayor as the case may be. Subsequent vacancies in the said
office shall be filled automatically by other sangguniang members according to
their ranking as defined therein.
b. If a permanent vacancy occurred in the office of the punong
barangay, the highest ranking sangguniang barangay member or, in the case of
his permanent inability, the second highest ranking sanggunian member shall
become the punong barangay.
c. A tie between or among the highest ranking sangguniang members
shall be resolved by the drawing of lots
d. The successors as defined herein shall serve only the unexpired
portions of their predecessors.
For purposes of this chapter, a permanent vacancy arises when an
elective local official fills a higher vacant office, refuses to assume office, fails to
qualify, dies, is removed from office, voluntarily resigns, or is otherwise
permanently incapacitated to discharge the functions of his office.
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For purposes of succession as provided in this chapter, ranking in the
sanggunian shall be determined on the basis of the proportion of votes obtained
by each winning candidate to the total number of registered voters in each
district in the immediately preceding local election.
* Sec 45. Permanent vacancies in the sanggunian
a. Permanent vacancies in the sanggunian where automatic successions
provided above do not apply shall be filled by appointment in the manner
provided:
1. The President, thru the Executive Secretary, in the case of the
Sangguniang Panlalawigan and the Sanggunian Panlungsod of highly
urbanized cites and independent component cities;
2. The governor, in case of the sangguniang panlungsod of component
cites and the sangguniang bayan
3. The city or municipal mayor, in case of the sangguniang barangay,
upon recommendation of the sangguniang bayan concerned
b. Except for the sangguniang barangay, only the nominee of the political party
under which the sangguniang member concerned had been elected and whose
elevation to the position next higher in rank created the last vacancy in the
sanggunian shall be appointed in the same manner herein provided. The
appointee shall come form the same political party as that of the sangguniang
member who caused the vacancy and shall serve the unexpired term of the
vacant office. In the appointment herein mentioned a nomination and a
certificate of membership of the appointee from the highest official of the
political party concerned are conditions sine qua non and any appointment
without such nomination shall be null and void and shall be a ground for
administrative action against the official thereof.
c. In case the permanent vacancy in the representation of the youth and barangay
in the sanggunian, said vacancy shall be filled automatically by the official next
in rank by the organization concerned
2. Temporary Vacancies
* Section 46 Temporary vacancies in the office of the local chief executive
a. When the governor city or municipal mayor or punong barangay is
temporarily incapacitated to perform his duties for physical or legal reasons such
as but not limited to, leave of absence, travel abroad, suspension from office, the
vice-governor, city or municipal vice-mayor or the highest ranking sangguniang
barangay member shall automatically exercise the powers and perform the
duties of the local chief executive concerned except the power to appoint,
suspend, or dismiss employees which can only be exercised if the period of the
temporary incapacity exceeds for 30 working days
b. Said temporary incapacity shall terminate upon submission to the
appropriate sanggunian of a written declaration by the local chief executive
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concerned that he has to return back to office. In cases where the temporary
incapacity is due to legal causes the local chief executive concerned shall also
submit necessary documents that said legal causes no longer exist.
c. When the incumbent local chief executive is traveling within the
country but outside his territorial jurisdiction for period not exceeding 3
consecutive days, he may designate in writing an officer-in-charge of the said
office. Such authorization shall specifies the powers and functions that the local
official concerned shall exercise in the absence of the local chief executive except
the power to appoint, suspend, or dismiss employees
d. In the event, however, that the local chief executive concerned fails or
refuses to issue such authorization, the vice-governor, the city or municipal vice-
mayor, or the highest ranking sangguniang barangay member, as the case may
be, shall have the right to assume powers, duties and function of the said office
on the 4th day of absence of the said local chief executive, subject to the limitation
provided in subsection (C) hereof.
e. Except as provided above the local chief executive in no case
authorized any local official to assume the powers, duties and functions, other
than the vice-governor, the city or municipal vice-mayor, the highest
sangguniang barangay member, as the case may be.
3. Resignation
* Article 82 IRR. Resignation
a. Resignation of elective local officials shall be deemed effective only
upon acceptance of the following authorities:
1. By the President, in the case of governor and vice-governor,
mayors and vice-mayors of highly urbanized cities,
independent component cities and municipalities within the
Metro Manila and other metropolitan political subdivisions as
may be created by law.
2. By the governor, in case of municipal mayor, municipal vice-
mayors, mayors and vice-mayors of component cities
3. By the sanggunian concerned, in the case of sanggunian
members: and
4. By the city or the municipal mayor, in the case of barangay
officials
b. The DILG shall be furnished copies of the letters of the resignation
letters of elective local officials together with the action taken by the
authorities concerned
c. The resignation shall be deemed accepted if not acted upon by the
authority concerned within 15 days from receipt thereof
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d. Irrevocable resignations by sanggunian members shall be deemed
accepted upon presentation before an open session of the sanggunian concerned
and duly entered in its records. This provision shall not apply to sanggunian
members who are subject to recall elections or to cases where existing laws
prescribed of acting upon such resignations.
1. Panis v. Civil Service Commission 229 SCRA 589
Facts: The Cebu City Medical Center (CCMC) is a government hospital
of Cebu City. One day, a new office in said hospital was created by virtue by a
valid reorganization – the Assistant Chief of Hospital for Administration. Two
candidates for the appointive position cropped up. Jaime Panis and Bella
Veloso, Panis loved to crow about his seniority status and thought he would be
chosen for the position. However, the city mayor appointed Veloso, Panis now
claims that the appointment of Veloso was made in violation of law, existing
civil service rules and established jurisprudence because the seniority and next
in rank rules were disregarded.
Held: Panis is wrong. First, even if granting that Veloso was originally
an outsider as she came from the private sector, it will not prohibit her
employment as long as she has her civil service eligibility. Second, the next rank
rule applies only in cases of promotion. The position being fought was newly
created. Assuming however, that said position could only be filled up through
promotion, still the next in rank rule is not mandatory – it nearly gives
preferential treatment. Ultimately, the power to appoint lies within the
discretion of the local chief executive vested with the power, provided that
appointee possesses the minimum requirements provided by law.
2. Menson v. Petilla 197 SCRA 251
Facts: For a time, the province of Leyte had not proclaimed any
governor. So on February 16, 1988, the secretary of local government appointed
vice-governor Leopoldo Petilla as acting governor of the province of Leyte.
Now the position of vice-guy was vacant. The secretary of local
government thus appointed Aurelio Menson, a senior member of sangguniang
panlalawigan as vice-governor.
Everything would have been fine except for one thing: the LGC of 1983
does not provide for succession of the office of the vice-governor (even the LGC
of 1991 as well). Still, Menzon did serve for more than a year as vice-governor.
On July 7, 1989, after some serious debate on the legality of Menson's
appointment, the sangguniang panlalawigan issued a resolution holding invalid
the appointment of Menson as vice-governor. Their reasoning: legally speaking,
there is no vacancy in the office of the vice-governor cause no law recognizes its
existence. And granting that such vacancy legally exists, the law does not
authorize secretary of local government to have an appointment thereto. As a
result, poor Menson was not paid emoluments attached to his office as vice-
governor.
Was there really a vacancy? Is Menson entitled to the emoluments?
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Held: 1. Menson was appointed precisely to avoid such scenario.
Besides, the law on public officers is clear on the matter. There is no vacancy
whenever the office is occupied by a legally qualified incumbent. In a scenario
there is a vacancy when there is no person lawfully authorized to assume and
exercise at present the duties of the office.
Applying the definition of vacancy in this case, it can be readily seen
that the office of the vice-governor was left vacant when the duly elected vice-
governor Leopoldo Petilla was appointed acting governor. In the eyes of the law,
the office to which he was elected was left barren of a legally qualified person to
exercise the duties of the vice-governor
2. It may be noted under commonwealth act no. 588 and the revised
administrative code of 1987, the President is empowered to make temporary
appointments in certain public offices, in case of any vacancy that may occur.
Admittedly, both laws deal only with the filling of vacancies in appointive
positions. However, in the absence of any contrary provision in the local
government code and in the best interest of public service, the SC saw no-cogent
reason why the procedure thus outlined by the two laws may not be similarly
applied in the present case. Petilla et. al. contend that the provincial board is the
correct appointing power. This argument has no merit. As between the President
who has supervision over local government as provided by law and the
members of the board who are junior to the vice-governor, the SC has no
problem ruling in favor of the president, until the law provides otherwise.
3. In view of the foregoing, Menson's right to be paid the salary
attached to the office of the vice-governor is indubitable. And, even granting that
the President, acting through the secretary of local government, possesses no
power to appoint the petitioner, at the very least, the petitioner is de facto officer
entitled to compensation.
4. The SC explained that the vacancy must always be filled, in this wise:
“A vacancy creates an anomalous situation and finds no approbation under the
law for it deprives the constituents of the right of the representation and
governance in their own local government. In a republican form of government,
the majority rules through their chosen few, and if one of them is incapacitated
or absent, etc, the management of governmental affairs, may be hampered.
Necessarily, there will be a consequent delay in the delivery of basic services to
the people of Leyte if the governor or the vice-governor is missing”
3. Sangguniang Bayan of San Andres, Catanduanes v. CA 284 SCRA
276
Facts: Augusto Antonio was a barangay captain of Sapang Palay, San
Andres, Catanduanes in March 1989. This guy later became president of the
Association of Barangay Councils or ABC. Thanks to the LGC of 1983, his
position also entitles him to be a member of the sangguniang bayan of the
Municipality of San Andres.
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Meanwhile, the election for president of the Federation of the
Association of Barangay Councils (ABC) was for the municipality. FABC was
for the province was declared void for lack of quorum so the provincial council
was forced to reorganize. As a result, the DILG secretary, in recognition of
Antonio as a power hungry politician, designated him as a temporary member
of the Sangguniang Panlalawigan. Nenito Aquino, the ABC vice-president took
his place. Antonio however, never questioned Aquino as his replacement.
Antonio tendered his resignation from the sangguniang bayan (but not as ABC
president) and would later on serve the sangguniang panlalawigan for 2 years.
Some time afterwards, the election for president of FABC above quoted,
which was once declared void, was reversed by the SC. Also, was found to
unqualified for membership in the Sangguniang Panlalawigan so he got
promptly kicked-out.
A year passed. Then Antonio heard that Aquino resigned from the
presidency of the ABC. Antonio now wants his old job back as ABC president.
The Sangguniang Bayan refused to take him back, saying he resigned from the
Sangguniang Bayan a long time ago. Antonio replied that the third requirement
for his valid resignation – acceptance by the president or his alter ego was
missing. Moreover, if his resignation was valid he did not resign as ABC
president – and said position still carries with it the benefit of being an ex-officio
member of the Sangguniang Bayan. The Sangguniang Bayan countered that he
either did one of two things – resignation or abandonment of his old post.
Held: Antonio did not effectively resign but he did abandon his post.
Reasons:
1. Resignation as the “Act of giving up or the act of an officer by
which he declines his office and renounces the further right to use it. It is an
expression of the incumbent in some form expressed or implied or the intention
to surrender renounce and relinquish the office and the acceptance by
competent and lawful authority.” To constitute a complete and operative
resignation from public office, there must be: a. an intention to relinquish a part
of the term; b. an act of relinquishment; and c. an acceptance by the proper
authority. The last one is required by reason of Article 238 of the Revised Penal
Code.
Antonio did not effectively resign because the third element is missing.
While it is true that the LGC is silent as to who shall accept the resignation of a
Sanggunian Bayan member, jurisprudence has held that in the absence of
statutory provisions as to whom resignations shall be submitted, the appointing
person or body shall receive the resignation. The president or his alter ego is the
appointing person in this case and there was no evidence that either of them
have received Antonio's resignation.
2. Antonio however, abandoned his post. Abandonment of an office has
been defined as the voluntary relinquishment of an office by the holder with the
intention of terminating his possession and control thereof. The following
clearly manifest the intention of private respondent to abandon his position: 1.
his failure to perform his function as member of the Sangguniang Bayan. 2. his
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failure to collect the corresponding remuneration for the position, 3. his failure
to object to the appointment of Aquino as his replacement in the Sangguniang
Bayan, 4. his prolonged failure to initiate any act to re assume his post in the
Sangguniang Bayan after the Supreme Court had nullified his designation to
the Sangguniang Panlalawigan.
On the other hand, the following, the following overt acts demonstrate
that he had affected his intention 1. his letter of resignation from the
Sangguniang Bayan, 2. his assumption of office as member of said Sanggunian
Panlalawigan 3. his faithful discharge of his duties and functions as member of
said Sanggunian and 4. his receipt of the remuneration for such post.
While it was true that Antonio was designated as member of the
Sanggunian Panlalawigan – meaning his appointment there was merely to
discharge duties in addition to his regular responsibilities as a Sanggunian
Bayan Members – still his express and implied acts clearly indicate hi
abandonment of the latter.
3. Lastly, Antonio, who remained ABC president, claims the legal right
to be a member of the Sangguniang Bayan by virtue of Section 146 of BP Blg
337. However, his right thereto is not self – executory, for the law itself requires
another positive act an appointment by the President or the secretary of local
government per EO 342. What Antonio could have done in order to be able to re
assume his post after Aquino's resignation was to seek a reappointment form
the President of the secretary of local government. By large, Antonio cannot
claim an absolute right to the office which. By his own actuations, he is deemed
to have relinquished.
4. Gamboa Jr. v. Aguirre Jr. 310 SCRA 867
Facts: In the 1995 elections, we have the following winners from Negros
Occidental: Rafael Coscolluela as governor; Romeo Gamboa as vice governor;
and Marcelo Aguirre and Juan Araneta as Sangguniang Panlalawigan (SP). Now,
under the LGC of 1991, the vice governor shall also be the officer of the SP. Keep
this in mind later on.
The governor went away on an official trip abroad. Before he left, he
designated vice governor as acting governor. So the vice governor became acting
governor. But when vice governor Gamboa, who was now acting governor as
well, tried to preside over SP sessions, some SP members resented and even filed
a case in court to prohibit him from doing so. The court even declared Gamboa
as “temporarily legally incapacitated to preside over the sessions of the SP
during the period that he is the acting governor.” Was the trial court correct?
Held: Yes, if you'll look at the composition of the SP, no presence of the
governor. can be found. Since Gamboa became acting governor., he technically
had given up his SP membership notwithstanding him being still vice governor.
since the LGC of 1991 is clear that the composition of the SP should not have
even the slightest hint of governor's presence – not even his smell. What the law
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enumerates, the law necessarily excludes. An acting give smells like a governor.
For all other purposes however, Gamboa still remains as vice governor.
In such case, since the vice governor. cannot preside, the SP members
present and constituting a quorum shall elect a temporary presiding officer form
among themselves (Sec 49b, LGC)
C. Recall(See 69-75, LGC and Art 154 – 162, IRR)
* Sec 69, LGC. By whom exercised. The power of recall for loss of
confidence shall be exercised by regular voters of an LGU to which the local
elective official subject to such recall belongs.
* Sec 70 Initiation of the recall process
a. Recall may be initiated by a preparatory recall assembly or by the
registered voters of the LGU to which the local elective official to such recall
belongs.
b. There shall be a preparatory recall assembly in every province, city,
district and municipality which shall be composed of the following:
1. Provincial level. All the mayors, vice – mayors and sanggunian
members of the municipalities and component cities
2. City level: all punong barangay and sangguniang barangay
members in the city
3. Legislative district level. In case where sangguniang
panlalawigan members are elected by district, all elective municipal
officers in the district and in cases where sangguniang panlungsod
members are elected by district, all elective barangay officials in the
district and
4. Municipal level. All punong barangay and sangguniang
barangay members in the municipality.
c. A majority of all the preparatory recall assembly members may
convene in session in a public place initiate a recall proceeding against any
elective official in the LGU concerned. Recall of city, provincial and municipal
officials shall be validly initiated through a resolution adopted by a majority of
all the preparatory recall assembly concerned during its session called for the
purpose.
d. recall of any elective provincial, city, or municipal or barangay
official may also be validly initiated on petition of at least 25% of the total
number of registered voters in the LGU concerned during the election which the
local official sought to be recalled was elected.
1. A written petition for recall duly signed before the election registrar
or his rep and in the absence of rep of the petitioner and a rep of the official
sought to be recalled and in a public lace in the province, city or municipality or
barangay as the case maybe, shall be filed with the COMELEC thru its office of
the LGU concerned. The COMELEC or its duly authorized rep shall cause the
publication of the petition in a public and conspicuous place for a period of not
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less than 10 days nor more than 20 days for the purpose of ratifying the
authenticity and genuineness of the petition and the required percentage of
voters.
2. Upon the lapse of the aforesaid period, the COMELEC or its duly
authorize rep shall announce the acceptance of candidates to the position and
thereafter prepare a list of candidates which shall include the name of the
official sought to be recalled.
*Sec 71 Election on recall. Upon filing of a valid resolution or petition for recall
with the appropriate local office of the COMELEC, the Commission or its duly
recognized rep shall set the date of the election on recall, which shall be not later
than 30 days after the filing of the resolution or petition for recall in the case of
the barangay, city, or municipal officials and 45 days in the case of provincial
officials. The official officials sought to be recalled shall automatically be
considered as a duly registered candidate or candidates to pertinent positions and
like other candidates, shall be entitled to be voted upon.
*Sec 72 effectivity of recall. The recall of an elective local official shall be effective
only upon the secretion and proclamation of a successor in the person of the
candidate receiving the highest number of votes cast during the election on
recall. Should the official sought to be recalled receive the highest number of
votes, confidence in him is thereby affirmed and he shall continue in office.
*Sec 73 Prohibition form resignation. The elective local official sought to be recalled
shall not be allowed to resign while the recall process is in progress.
*Sec 74 Limitations on recall
a. An elective local official may be the subject of a recall election only once
during the term of his office or loss of confidence.
b. No recall shall take place within 1 year from the date of the official's
assumption to office of 1 year immediately preceding a regular local election.
* Sec 75. Expenses incidental to recall elections. All expenses incidental to recall
elections shall be borne by the COMELEC. For this purpose, there shall be
included in the annual General Appropriation Act a Contingency fund at the
disposal of the COMELEC for the conduct of recall elections.
* Art 154 – 162, IRR. Exactly the same as above, but with addition of “Who may
be recalled” (see below)
1. Requisites
If there's such a thing as requisites of a recall, it's probably found buried
in Section 69 and 70 of the LGC of 1991. The requisites probably are:
a. Initiation, either thru direct action by the people or thru a
preparatory recall assembly; and
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b. Election
2. Who may be recalled
 Art 155. IRR Who may be recalled. Any elective provincial, city, municipal
or barangay official may be recalled for loss of confidence in the manner
prescribed in this rule provided that no recall may be instituted against said
elective local official who have been the subject of a previous recall election
held during the same term of office.

3. Grounds for recalls
Loss of confidence, which is a political question
4. When recall may not be held
See Section 74, LGC of 1991
5. Procedure for recall
See Section 70, supra
6. Effectivity of recall
See Section 72, supra
1. Garcia v. COMELEC 227 SCRA 100
Facts: Enrique Garcia was elected Governor of Bataan in the 1992
elections. Some mayors, vice mayors and Sangguniang Bayan members of the 12
municipalities of Bataan however convened and constitute themselves into a
Preparatory Recall Assembly to initiate the recall of Garcia. The PRA's first
resolution calling for the recall of Garcia was however shot down by the SC
because it was found that the backers of the PRA sent only selective notices to
local officials most likely sympathetic to their cause. The PRA thus cured this
defect in their second resolution. Scared, Garcia now assails the constitutionality
of Section 70 of the LGC of 1991, which allows a preparatory recall assembly to
initiate a recall of an elective official. Garcia says that it’s highly possible that the
dominant political party in government can use a recall as a tool in ousting their
incumbent opponents; 2) the RPA is not reflective of the people’s will; 3) the right
to initiate recall rests with the people itself.
Held: Garcia is wrong reasons:
1) All powers are subject to abuse anyway. To deny power because it
can be abused by the grantee is to render government powerless and no people
need a toothless government. This is the reason behind the presumption that
public officials are actually performing their duties in good faith.
2) The PRA is merely a step in the recall process. The recall it self still
has to be submitted to the people for affirmation thru an election. The PRA is not
the recall itself, thus it cannot be said to be reflective of the people’s will.
3) The PRA is also initiation of recall by the people themselves, although
done indirectly through their representatives. The reason for using PRA as a
mode for initiating recall is because admittedly, initiating recall thru direct action
by the people is difficult and expensive.
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4) Davide’s dissent: the power to initiate recall includes the power not
to initiate. The power to initiate becomes meaningless if another body is
authorized to do it for the electorate. It’s not hard to see that in reality, it’s far
easy get majority of the PRA to initiate a recall proceeding. In effect a small
group can easily negate the power of the vast electorate to initiate recall
(therefore, the good justice is doubtful of the republican system of the
government). What congress should have done is to reduce the minimum 25%
requirement down to 15 or 20% (which is good idea).
2. Evardone v. COMELEC 204 SCRA 464
Facts: The guys here calling for a recall of an elective official failed
because they initiated the recall a bit too late.
Felipe Evardone won as mayor of municipality of Sulat, Eastern Samar
in the 1988 election. 2 years later, Alexander Apelado and friends filed a petition
for the recall of Evardone. The COMELEC approved the signing of the said
petition for recall.
There was some ballyhoo regarding a TRO issued by the SC retraining
Apelado and friends from proceeding of the signing of the petition, but that’s not
important. What Everdone complaining about is that the COMELEC cannot
formulate rules and regulations governing the procedure of recall elections
because according to the 1987 Constitution, Congress is supposed to pass a new
local government code which would provide for the procedure in recall elections.
Since such a code wasn’t passed at the time, the initiation for recall must fail
because there’s no procedure in existence to follow anyway.
Held: The initiation of recall must fail, but for a different reason.
1) Its true tat the LGC of 1991 has yet to be passed. However, the LGC
of 1983 (BP 337) was still in force in hat time as can be shown in the proceedings
of the 1986 Constitutional Commission where the effectiveness of BP 337 was
expressly recognized. BP 337 authorizes the COMELEC to supervise and control
recall elections and promulgate the necessary rules and regulations.
2) However, the SC promulgated this decision in 1991. The 1992
elections was only 7 months away, BP 337 disallows the holding of recall
elections one year immediately preceding a regular local election.
3. Paras v. COMELEC 264 SCRA 49
Facts: Pati SK elections ba naman pinatulan ng recall.
Danilo Paras won as Punong Barangay in the 1994 barangay elections of
Pula, Cabanatuan City. A petition for his recall as Punong Barangay was filed by
the registered voters of the barangay. Paras managed to delay the holding of the
recall elections 3 times (note that the term of a Punong Barangay is for 3 years
only). The third attempt at a recall election was slated for January 13, 1996. Paras
gleefully noted that the recall action was barred by representation as no recall
shall take place. 1 year immediately preceding a regular election as managed by
SEC.74(b), LGC of 1991.
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Held: A Sangguniang Kabataan (SK) election is not a regular local
election, at least within the contest of Section 74 because said Section 74, when
taken together as a whole, is intended for elective positions with minimum terms
of 4 years. Para’s interpretation of the statute is too literal and absurd. The spirit,
rather than the letter of the law, determines it’s contents.
However Para’s delaying tactics worked. The next regular elections
concerning the barangay office concerned is merely 7 moths away. Recall is no
longer possible by virtue of same election 74(b). Para’s still merges as the winner
(Moral lesson: Wag mo ng patulan ang SK elections 3 taon lang naman natiis yan
eh).
4. Mercado v. Board of Elections Supervisors of Ibaan, Batangas 243
SCRA 422
Facts: Jose Mercado was proclaimed SK chairman of Barangay Mabalor,
Ibaan Batangas during the 1992 elections. His rival, Crisanto Pangilinan, filed a
protest with the Board of Elections Supervisors (BES) on the ground that some
votes, were invalidated by the Board of Election Tellers (BET) Chairman without
insulting his fellow members. Pangilinan won in the recount
Mercado assailed in the authority of the BES act on the protest filed by
his rival. He said the ground created by Pangilinan was in the nature of an
election protest properly cognizable by the Metropolitan or Municipal Trial
Court (as mandated by Section 252 of the Omnibus Election Code) and not by
some never heard BES, a body created by the COMELEC thru its Resolution No.
2499.
The RTC dismissed Mercado’s complaint saying that Resolution No.
2499 of the COMELEC did not vest in the RTC jurisdiction to try SK elections.
Mercado then argued at the SC that Res. No. 2499 was null and void in the first
place because SK elections are governed by the Omnibus Election Code and not
by some numb resolution passed without legal basis by the COMELEC.
Held: Mercado is mistaken. Reasons:
1) The SK election is not an election involving elective barangay officials
within the context of the Omnibus Election Code and the Constitution. The
position of SK chairman is not include as one of the elective members of the
Sangguniang Barangay (which consist of the punong barangay and 7 regular
sangguniang barangay members). An SK chairman is at best merely an ex-officer
member of Sangguniang Barangay. Therefore, SK elections are not governed by
the Omnibus Election Code.
2) Article 203 of the IRR of the LGC 1991 states that SK elections shall be
governed by the rules promulgated by the COMELEC. Therefore, the BES, as a
creation of COMELEC Res. No. 2499, has legal authority to take cognizance of
the SK election protest.
5. Claudio v. COMELEC 311 SCRA 388
Facts: Jovito Claudio won as mayor of Pasay City in the 1998 elections.
In May, 1999, less than a year later, several barangay chairs gathered to discuss
the filing of a petition for recall against Mayor Claudio and the Convening of the
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PRA. It took only less than 2 weeks for the members of the PRA to obtain a
majority vote for the passing of a resolution calling for said recall.
Claudio however complained that what his opponents did was contrary
to section 74 of the LGC 1991, because of the word “recall” in said section should
be interpreted not only to mean a recall election alone, but is also intended to
include the convening of the PRA and the filling by it of a recall resolution. If
Claudio’s interpretation is correct, then his enemies may have indeed violated
the statutory prohibition that “no recall shall take place within 1 year from the
date of the official’s assumption to office” since the PRA did indeed convene less
than a year from Claudio’s assumption into office.
Claudio also argued that the phrase “regular local election” in said
Section 74(b) includes the election period for that regular election and not only
the date of such election.
Held: Claudio is wrong. Reasons:
1) The word recall in Section 74(b) refers to the recall election and not
the preliminary proceedings to recall. Section 74 speaks of limitations on “recall”
which, according to section 69, is a power which exercised by the registered
voters of an LGU. Since the voters do not exercise such right except in an
election, it is clear that the initiation of recall proceedings is not prohibited within
the 1 year period provided.
2) Another reason why the initiation of recall proceedings is not
prohibited within the 1 year period provided in 74(b) is that to hold the
otherwise would be to unduly restrict the constitutional right of speech and of
assembly of its members. Indeed, it would be wrong to assume that such
assemblies will always eventuate in a recall election. To the contrary, they may
result in the expression of confidence in incumbent.
3) The election period is not included in the phrase “regular local
election.” Claudio’s interpretation would severely limit the period during which
a recall election may be held. Such an interpretation must be rejected because it
would devitalize the right of recall which is designed to make LGU’s more
responsive and accountable
D. Local Initiative and Referendum (Sec. 120-127, Art. 133-153, IRR)
*Sec. 120, LGC. Local initiatives defined. Local initiative is the legal
process whereby the registered voters of an LGU may directly propose, enact, or
amend any ordinance.
*Sec. 121. Who may exercise. The power of local initiative and the
referendum may be exercised by all registered voters of the provinces, cities,
municipalities and barangays.
*Sec. 122. Procedure in local initiative.
a) Not less than 1,000 registered voters in case of provinces and cities,
100 in case of municipalities, and 50 in case of barangays, may file a petition with
the sanggunian concerned proposing the adoption, enactment, repeal or
amendment of an ordinance.
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b) If no favorable action is taken thereon by the sanggunian concerned
within 30 days from its presentation, the proponents, thru their duly authorized
representatives, may invoke their power of initiative giving notice thereof to the
sanggunian concerned.
c) The proposition shall be numbered serially from Roman numeral I.
The COMELEC or its designated representative shall extend assistance in the
formulation of the proposition.
d) 2 or more propositions may be submitted in an initiative.
e) Proponents shall have 90 days in the case of provinces and cities, 60
days in the case of municipalities, and 30 days in the case of barangays, from
notice mentioned in subsection (b) hereof to collect the required number of
signatures.
f) The petition shall be singed before the election registrar, or his
designated rep. in the presence of the representative of the proponent and a rep.
of sanggunian concerned, in a public place in the LGU, as the case may be.
Stations for collecting signatures must be established in as many places as may
be warranted.
g) Upon the lapse of the period herein provided, the COMELEC, thru its
office in the LGU concerned for their approve within 60 days from the date of
certification by the COMELEC, as provided in subsection (g) hereof, 45 days in
the case of municipalities, and 30 days in the case of barangays. The initiative
shall then be heard on the date set, after which the result thereof shall be
certified and proclaimed by the COMELEC.
*Sec. 123. Effectively of local propositions. If the proposition is
approved by a majority of a vote cast, it shall take effect 15 days after
certification by the COMELEC as if affirmative action thereon had been position
is considered defeated.
*Sec. 124. Limitations of local initiative.
a) The power of local initiative shall not be exercised more than once a
year.
b) Initiative shall extend only to subjects or matters which are within the
legal powers of the sanggunian to enact.
c) If at any time before the initiative is held, the sanggunian concerned
adopts in to the proposition presented and the local chief executive approves the
same, the initiative shall be canceled. However, those against such action may, if
they so desire, apply for initiative in the manner herein provided.
*Sec. 125. Limitations upon sanggunian. Any proposition or ordinance
adopted thru the system of initiative and referendum as herein provided shall
not be repealed, modified, or amended by the sanggunian concerned within 6
months from the date approval thereof and may be amended, modified, or
repealed within 3 years thereafter by a vote of ¾ of its members: Provided, that
in case of barangays, the period shall be 18 moths after the approval thereof.
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*Sec. 126. Local referendum defined. Local referendum is the legal
process whereby the registered voters of the LGUs may approve, amend or reject
any ordinance enacted by the sanggunian.
The local referendum shall be held under the direction and control of
the COMELEC within the 60 days in case of provinces and cities, 45 days in case
of municipalities and 30 days in the case of barangays.
The COMELEC shall certify and proclaim the results of the said
referendum.
*Sec. 127. Authority of courts. Nothing in this chapter shall prevent or
preclude the power courts from declaring null and void any proposition
approved pursuant to this Chapter for the violation of the Constitution or want
of capacity of the sanggunian concerned to enact the said measure.
NOTE: Articles 133-153, IRR are roughly the same Section 120-127
above. However, we should take note of Art. 145, IRR, which basically states the
number of signature required.
1) In a province or city – at least 10% of the registered voters therein,
with each legislative district represented by at least 3 % of the registered voters
therein.
2) In a municipality – at least 10% of registered voters therein, with each
barangay represented by at least 3% of registered voters therein.
3) In a barangay – 10% of registered voters therein.
1. Garcia v. COMELEC 237 SCRA 279
Facts: The Sangguniang Bayan (SB) ng Morong, Bataan passed
Resolution No. 10 wherein agreed to the inclusion of the municipality of Morong
as part of the Subic Special Economic Zone in accordance with RA 7227
Enrique Garcia (who’s this guy? His name keeps popping out of
nowhere) and friends filed a petition with the SB to annul the said resolution.
When their petition went unheeded, Garcia resorted to the power of initiative
under the LGC of 1991. The COMELEC however denied the petition for local
initiative on the ground that under the LGC of 1991m the subject of local
initiative refers only to an ordinance and not a solution. Is the COMELEC
correct?
Held: No. and the SC made COMELEC pay by dumping tons of legal
basis providing that resolutions can also be the subject of local initiatives thus
making the case as written unnecessarily long. Some reasons are:
1) Sec. 32 of Article VI of the Constitution says that initiative and
referendum is a system wherein the people can directly propose and enact laws
or approve or reject any act or law. The word “act” makes it clear that resolutions
are also included initiatives.
2) RA 6735 defines 3 system of initiative, one of them being initiative on
local legislation which included, among others, resolution.
3) In the LGC itself, Section 124 says, “Initiatives shall extend only to
subjects or matters which are within the legal powers of the Sanggunian to
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enact.” Definitely, the scopes of Sanggunian’s powers include resolutions which
make them covered under initiatives.
E. Disciplinary Action (Art. 124, IRR)
*Article 124. Grounds for Disciplinary Action.
a) An elective local official may be censured, reprimanded, suspended
or removed from office after due notice and hearing on the following grounds:
1) Disloyalty to the republic of the Philippines.
2) Culpable violation of the Constitution.
3) Dishonesty, oppression, misconduct in office, gross
negligence or dereliction of duty.
4) Commission of any offense including moral amplitude or an
offense punishable by at least prison mayor which is from 6 years and 1 day to 12
years imprisonment.
5) Abuse Authority
6) Unauthorized absence of 15 consecutive working days, in
the case of the local chief executive and 4 consecutive sessions in the case of
members of the sanggunian panlalawigan, sanggunian panlungsod,
sangguniang bayan and sangguniang barangay.
7) Application for, or acquisition of, foreign citizenship or
residence or the status of an immigrant of another country; and
8) such other grounds as may be provided by the Code, RA
6713, RAC of 1987, RPC and all other applicable general and special laws.
b) An elective local official may be removed from office on the grounds
enumerated in paragraph a, of this article by order of the proper court, or the
disciplinary authority whichever first acquires jurisdiction to the exclusion if the
other.
1. Grounds for Suspension and Removal (Sec. 60, LGC)
*Sec. 60 Grounds for disciplinary action. (Same as Article 124, IRR
above).
1. Espiritu v. Melgar 206 SCRA 256
Facts: A certain Ramir Garing filed a complaint against Mayor Nelson
Melgar of Naujan, Oriental Mindoro, charging him with grave misconduct,
abuse of authority, oppression, culpable violation if the Constitution (no kidding,
Garing practically threw the revised penal code at him). Garing claimed the
mayor punched and kick him willfully unlawfully and feloniously (you know,
the usual “I’m innocent, believe me” way of introducing a complaint) while the
latter was delivering a public speech. After evaluating the complaint, Governor
Benjamin Espiritu had the mayor preventively suspended for 60 days. Upon
petition by the mayor, the RTC of Oriental Mindoro issued a writ of preliminary
injunction preventing the governor’s order of suspension. Was the injunction
proper?
Held: No, Reasons:
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1) The provincial governor of Oriental Mindoro is authorized by the law
to preventively suspend the municipal mayor of Naujan at anytime after the
issues had been joined and any of the following grounds were shown to exist:
a. When there is reasonable ground to believe that the
respondent has committed the act or acts complained of.
b. When the evidence of the culpability is strong.
c. When the gravity of the offense so warrants; or
d. When the continuance in office of the respondent could
influences the witnesses or pose a threat to the safety and
integrity if the records and other evidence. (LGC of 1893).
2) As a general rule, the office or body that is invested with the power of
removal or suspension should be the sole judge of the necessity and the
sufficiency of the cause. So, unless a flagrant abuse of the exercise of that power
is shown, public policy and a becoming regard for the principle of separations of
powers demand that the action of said officer or body should be left undisturbed.
2. Llamas v. Orbos 202 SCRA 844
Facts: Mariano Un Ocampo III was the incumbent governor of the
province of Tarlac in 1989. he was charged by the vise governor Rodolfo Llamas
of violating RA 3019, the Anti-Graft and Corrupt Practices Act Specifically, he
was charged with executing a loan agreement with a non-stock and a non-profit
organization headed by the governor himself as chairman wherein said
agreement was grossly inimical to the interest of the Provincial Government
(because the loan, among others, did not provide for interest and security). The
Department of Local Government Secretary Oscar Orbos, after reviewing the
governor’s case, slapped a 90 days suspension (not preventive suspension) on
the hapless governor. Thereafter, the vise governor took over as acting governor.
The governor filed a motion for reconsideration. However the DLG
secretary, in the spirit of Christmas perhaps, filed a resolution granting executive
clemency to the governor by reducing his sentence to that portion had already
served.
The vise governors now question the legality of issuing executive
clemency or pardon to the administrative case when the same should apply only
to criminal cases.
Held: Llamas is incorrect. The 1987 Constitution makes no distinction as
to criminal or administrative cases. The phrase “after conviction of final
judgment” does not make explicit reference to criminal cases fact, the
Constitution does not allow pardon in impeachment cases. That the Constitution
does not make a same exemption to the administrative cases shows that
executive clemency can be granted in administrative cases.
Section 43 of PD 807 also recognizes executive clemency in
administrative cases “in meritorious case by commutation or removal”
Padilla’s Dissent: the spirit and intent of pardons is to afford relief from
the enforcement of the criminal which imposes penalty and which appears
unduly harsh. To grant pardons to release private obligations prevent or destroy
civil rights is plain abuse.
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3. Aguinaldo v. Santos 212 SCRA 768
Facts: Rodolfo Aguinaldo was elected governor of Cagayan in 1988.
Two years later, after due no hearing, the Department of Local Government
Secretary Luis Santos found Aguinaldo’s guilty of disloyalty to the Republic and
of culpable violation of the Constitution. Santos ordered Aguinaldo’s removal
from of Pending criminal charges of disloyalty to the republic, under Art. 137,
RPC were also lodged against him:
Aguinaldo questioned the legality of his removal with the SC. In the
meantime, Aguinaldo filed certificate of candidacy for governor again. 3
disqualification cases were filed against him on the ground he was removed
from office. Still, he was allowed to run and won a landslide victory.
Held: Since Aguinaldo was re-elected as governor, the pending
administration case against regarding his removal from office was rendered
moot and academic. The reason is that the electorate clearly forgiven him for the
administrative misconduct he committed during the last term. This is the rule
along with the theory that each term is separate from other terms, and that the
reelection to office operates as a condonation of the officer’s misconduct to the
extent of cutting of the right to remove him therefore.
The foregoing rule, however, finds no application to criminal cases
pending against petitioner for acts he may have committed during the failed
coup.
NOTE: Under the qualified agency doctrine, alter egos of the President
have the power to discipline, suspend or remove elective officials under the
grounds provided by law.
4. Yulo v. CSC 219 SCRA 470
Facts: Back in November 24, 1986, Officer-In-Charged Apolonio
Elasigue of the municipality of Calamba, Laguna terminated the services of
Teofilio Mamplata and 43 other employees of said municipality. The basis
municipality for the termination was reorganization and the approval of a new
starting pattern.
At first, the later-Agency Review Committee created under the Freedom
Constitution reviewed the case of the said employees.
The Merits System Protection Board (MSFB) of the CSC handled the
case of the 43 employees. Pending the disposition of the case however, Elasigue
last in the mayoralty race to Jesus Miguel Yulo.
Yulo was just as unsympathetic as Elasigue regarding the plight of the
dismissed employees. However, the MSFB found no sufficient evidence to prove
the guilt of the dismissed employees (the charges against them were
“questionable integrity” as insinuated by Yulo) and ordered the reinstatement of
some 28 of them (which was reduced further to 21 due to the death and/or
reemployment of some of them) and payment of their back wages. The CSC
affirmed the MSFB’s decision.
Yulo now tried a different tack: that the termination of employment of
the said employees was justified under a transitory provision of the Freedom
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Constitution which states, “All elective and appointive officials under the 1973
Constitution shall continue to office until otherwise provided by the
proclamation or executive order or upon the designation or appointment and
qualification of their successors, if such appointment is made within the period
of 1 year from February 25, 1986.”
Held: The argument is devoid of merit. On his narration of facts, Yulo
himself admitted that private respondent’s services were terminated pursuant to
the reorganization and approval of the new staffing pattern of Calamba on
November 3, 1986. Yulo’s argument to the effect that respondents were separated
from the service by virtue of the Freedom Constitution or Executive Order No. 17
is palpably an afterthought. It may be reiterated here that the main reason why
the then inter-Agency Review Committee refused to take cognizance of the
instant case was because Mamplata et al were not removed pursuant to
Executive Order No. 17, such declaration by the said Committee destroys
whatever argument Yulo tried to build using the Freedom Constitution as a
basis.
More importantly, it is undeniable that private respondent’s
employment with the municipality was a lawfully terminated. On this score
alone, the dismissed employees ought to and must be reinstated. Illegal removal
of career civil service employees in violation of their Constitutional right to
security of tenure will not be condoned under the guise of reorganization.
5. Grego v. COMELEC 274 SCRA 461
Facts: Back in October 31, 1981, Humberto Basco was removed from his
position as Deputy Sheriff by the SC itself after a finding of serious misconduct
in an administrative case filed against him. The dispositive portion of the
decision is important in this case so its given special mention: “Wherefore,
finding the respondent Deputy Sheriff Humberto Basco of the City Court of
Manila guilty of all retirement benefits and with prejudice to reinstatement to
any position in the national or local government, including its agencies and
instrumentalities or government-owned or controlled corporations.”
But this guy doesn’t give up in the face of adversity. He ran for
councilor 3 times – in 1988, 1992 and 1995 – in the City of Manila and won each
time. His second and third campaigns as councilor was however mired by
disqualification lawsuits from left and right as his sins from 1981 came back to
haunt him.
Particularly, his third campaign for councilor ran into some serious
legal obstacle. One of them come from Sec. 40(b) of the LGC of 1991 which states
that persons running for any elective office are disqualified if they were
previously removed from office as a result if an administrative case. Another was
that his proclamation as councilor for the third time was allegedly void because
his disqualification case was still pending. Lastly, it seemed that the SC decision
from 1981 forever barred him from seeking public office. Will Humberto
“Lucky” Basco overcome the odds and win?
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Held: Yes, Reasons:
1) The LGC of 1991 cannot be applied retroactively, since no provision
allows for it. Basco misgivings happened way back in 1981 long before the
inception of the LGC.
2) The suspension of the proclamation of a winning candidate on the
ground of a pending disqualification case lies within the discretion of the
COMELEC according to its evaluation of the evidence (Section 6, RA 6646). The
findings of facts and conclusions of the COMELEC, absence of a showing of
grave, abuse of discretion, must be generally respected and even given finality.
Besides, absent and any determination of irregularity in the election returns, it is
a mandatory ministerial duty of the Board of Canvassers to count the votes and
declare the result.
3) The 1981 SC decision uses the word “reinstatement” (see above).
Rules and regulations issued by the Civil Service Commission defined
reinstatement as the reappointment of a person who was previously separated
from the service x x x. Obviously, Basco is not seeking to get reappointed but to
get elected and re-elected. He is not therefore barred from seeking public office.
2. Procedure (Sec. 84, LGC)
*Sec. 84. Administrative discipline. Investigation and adjudication of
administrative complaints against appointive local officials and employees as
well as their suspension and removal shall be in accordance in the civil service
law and rules and order pertinent laws. Te result of such administrative
investigations shall be reported to the CSC.
3. Preventive Suspension (Section 63-64, 85-87, LGC, Art. 127,
IRR) Read also section 42, PD 807 (now Sec. 52, RAC of 1987)
*Section 63. Preventive Suspension.
a) Preventive Suspension may be imposed:
1) By the president, if the respondent Is an elective official of a
province, highly urbanized or independent component city.
2) By the governor, if the respondent is an elective official of a
component city or municipality.
3) By the mayor, if the respondent is an elective official of a
barangay.
b) preventive suspension may be imposed at any time after the issues
are joined, when the evidence of guilt is strong, and given the gravity of the
offense, there is great probability that the continuance in the office of the
respondent could influence the witnesses or pose a threat to the safety and
integrity of the records and other evidence: provided, that any single preventive
suspension of local elective officials shall not extend beyond 60 days: provided
further, that in the event that several administrative cases are filed against and
elective official, he cannot be preventively suspended for more than 90 days
within the single year on the same ground or grounds existing and known at the
time of the first suspension.
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c) Upon expiration of the preventive suspension, the suspended elected
official shall be deemed reinstated in office without prejudice to the continuation
of the proceedings against him, which shall be terminated within 120 days from
the time he as formally notified of the case against him. However, if the delay in
the proceedings of the case is due to his fault, neglect, or request, other than the
appeal duly filed, the duration of such delay shall not be counted in computing
the time of termination of the case.
d) Any abuse of the exercise of the power of preventive suspension shall
be penalized as abuse of authority.
*Sec. 64. Salary of respondent pending suspension. The respondent
official preventively suspended from office shall receive salary or compensation
including such emoluments accruing during such suspension.
*Sec. 85. Preventive suspension of appointive local officials and
employees.
a) the local chief executives may preventively suspend for a period not
exceeding 60 days any subordinate official or employee under his authority
pending investigation if the charged against such officials or employee involves
dishonesty, oppression or grave misconduct or neglect in the performance of
duty, or if there is reason to believe that the respondent is guilty of the charges
which would warrant his removal from the service.
b) Upon expiration of the preventive suspension, the suspended official
or employee shall be automatically reinstated in office without prejudice to the
continuation of the administrative proceedings against him until its termination.
If the delay in the proceeding of the case is due to the fault, negligence or request
of the respondent, the time of the delay shall not be counted in the computing of
the period of the suspension herein provided.
*Sec.86. Administrative investigation. In any LGU, administrative
investigation may be conducted by a person or committee duly authorized by the
local chief executive. Said person or employee shall conduct hearings on the
cases brought against appointive local officials and employees and submit their
findings and recommendations in the local chief executive concerned within 15
days from the conclusion of the hearings. The administrative cases herein
mentioned shall be decided within 90 days from the time the respondent is
formally notified by the charges.
*Sec. 87. Disciplinary charges. Except other wise provided by the law,
the local chide executive may impose the penalty of removal from service,
demotion in tank, suspension for not more than 1 year without any fine in an
amount not exceeding 6 months salary, of reprimand and other wise disciplined
subordinate officials and employees under his jurisdiction. If the penalty
imposed is suspension without pay for not more than 30 days, the decision shall
be appealable to the CSC, which shall decide the case within 30 days from receipt
thereof.
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*Article 127, IRR. Exactly the same as Sec. 63, LGC
*Sec 52, RAC of 1987. Lifting of preventive suspension pending
administrative investigation (Book V, Subtitle A on CSC, chapter 6). When the
administrative case against the officer or employee under preventive suspension
is not finally decided by the disciplining authority within the period of 90 days
after the date of suspension of the respondent who is not a presidential
appointee, the respondent shall be automatically reinstated in the service:
provided, that when the delay in disposition of the case is due to the fault,
negligent or the petition of the respondent, the period of delay shall not be
counted in computing the period of suspension herein provided.
Kinds of preventive suspension (with regards to civil service employees
who are charged with offense punishable with suspension or removal) (revised
administrative code of 1987)
1) Preventive suspension, pending investigation.
2) Preventive suspension pending appeal, if the penalty
imposed by the disciplining authority suspension or dismissal.
I. Garcia v. Mojica 314 SCRA 207
Facts: On May 7, 1988, Cebu city mayor Alvin Garcia signed a contract
with F.E. Zuellig for the supply of asphalt to the city, 4 days later national
elections were held and Mayor Garcia won reelection contract, in the other hand,
took effect on September 1998.
On march, 1999, news reports came out that the said purchase of
asphalt was anomalous investigation but the special prosecution officer of the
office of the Ombudsman revealed that (1) the contract for supply of asphalt to
Cebu city was designed to favor F.E. Zuellig, (2) the amount quoted on the
contract was too expensive compared for the amount for which asphalt may be
bought from local suppliers such as Shell and Petron, particularly considering
that the amount was fixed in dollars and was payable in pesos, thus exposing the
city government to the risk attendance to a fluctuating exchange rate, and (3) the
interest of the city under the administrative cases be filed against Mayo Garcia.
The deputy Ombudsman handled Garcia’s case and recommended 6
moths preventive suspension against the latter – the maximum imposable under
RA 6770, the Ombudsman Law. Garcia now raises the following issues:
1. What is the effect of the reelection of the petitioner on the
investigation of acts done before his reelection? Did the Ombudsman for Visayas
gravely abuse his discretion in conducting the investigation of petitioner and
ordering his preventive suspension?
2. Assuming that the ombudsman properly took cognizance of the case,
what law should apply to the investigation being conducted by him, the LGC
R.A 7160 of the ombudsman law (R.A 6770)? Was the procedure in the law
properly observed?
3. Assuming further that the ombudsman has jurisdiction, is the
preventive suspension of the petitioner based on “strong evidence” as required
by law?
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Held: The answers are:
1. Garcia cannot anymore be held administratively liable for an act
committed during a previous term. The meeting of minds to the contract,
especially with regards to the stipulation deemed prejudicial to the city has
already occurred during the mayor’s previous term. It hardly matters that the
benefits of the contract are to be delivered during Garcia’s current term.
However, the ombudsman did not commit the grave abuse of
discretion. It was Garcia’s misfortune that the office of the ombudsman, as
empowered by the constitution, decided to investigate his case on its own
initiative (Article XI, Sec. 13 1987 Constitution). The ombudsman derives his
authority to assume jurisdiction over Garcia’s case under the constitution and
RA 6670, the ombudsman law. And the power of the ombudsman to
preventively suspend an official subject to its administrative investigation is
expressly provided by RA 6670 as well.
2. Either law can apply to Garcia’s case but since the ombudsman
decided, its own initiative, to investigate Garcia, RA 6670 must prevail. There is
no violation of the LGC of 1991 because RA 6670 is a special law distinct from
that of the LGC and therefore, administrative complaints filed under RA 6670
must be treated under its provisions and not with that of the LGC.
3. The news reports describing in detail Garcia’s misdeeds constituted
strong evidence to preventively suspend Garcia. However, the actual
documentary evidence was obtained after the mayor had already been
preventively suspended. Considering that the purpose of preventing suspension
is to enable the investigating authority to gather documents without intervention
from petitioner, it can now be said that the purpose in preventively suspending
Garcia has already been achieved since actual documentary evidence has already
been discovered. The order preventively suspending Garcia is deemed too harsh
and should be shortened to the period he has already served.
NOTE: duration of preventive suspension under the following laws:
1) LGC of 1991 – maximum of 60 days
2) RA 6670 (Ombudsman Law) – maximum of 6 moths
3) RA 3019 (Anti-Graft and Corrupt Practices Act) – maximum of 90
days.
The LGC of 1991 applies to elective officials and employees but, of
applicable, a special law independent and distinct from the LGC can be applied
to them instead. The 1987 Revised Administrative Code applies to appointive
officials and employees.
2. Gonzaga v. Sandiganbayan 201 SCRA 417
Facts: Corazon Gonzaga, a public school principal of Malabon
Municipal High School, was charged with malversation of public funds before
the Sandiganbayan. The Sandiganbayan preventively suspended Gonzaga under
RA 3019, but her suspension was decreed as indefinite.
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Held: Preventive suspension of indefinite duration is rejected by the
Constitution as it raises, at the very least, questions of denial of due process and
equal protection of the law, in other words, preventive suspension is justifiable
for as long as its continuance is for a reasonable length of time, secondly,
preventive suspension is not a penalty, a person under preventive suspension,
especially in a criminal action, remains entitled to the Constitutional
presumption of innocence as his culpability must still be established, thirdly, the
rule is that every law has in its favor the presumption of validity, and that to
declare a law unconstitutional, the basis for such a declaration must be clearly
established.
The rule is that a person charged under RA3019 or PD 807 serve a
maximum of 90 days preventive suspension only.
3. Garcia v. CA 306 SCRA 287
Facts: this area is an offshoot from the 1991 case of Manila Public School
Teachers v. Laguio. In that case, many teachers were fired because of their
participation in a strike which was declared by the SC to be illegal. However,
Nicanor Margallo and 3 other teachers were able to survive the carnage of
dismissals. These survivors however, although they are not participating in the
strike, did not report during the same.
The DECS secretary preventively suspended the survivors for 90 days.
Later in they were found guilty as charged and their penalties ranged from
dismissal to 6 moths suspension. The survivors appealed with the Merit System
and Protection Board (MSPB) and later on, with the CSC, and managed to get
lighter penalties of reprimands instead (in effect they were exonerated of the
graver charges filed against them).
The survivors now want to obtain the salaries during the period for
which they were preventively suspended. Since they were also preventively
suspended pending appeal of their cases and were later declared exonerated,
they claim to be entitled to back salaries for that period of time as well. Should
they?
Held: The survivors are not entitled to back salaries for the period they
were preventively suspended pending investigation. However, they are entitled
to back salaries for the period they were preventively suspended pending
appeal. Reasons:
1) Actually, it is possible to obtain one’s back salaries for the period she
was preventively suspended pending investigation. However, 2 requisites must
concur to make this possible:
a) The employee must be found innocent of the charges which
cause his suspension; and
b) The suspension is unjustified.
Here, the second element is lacking, the reason being that the
preventive suspension of civil service employees charge with dishonesty,
oppression or grave misconduct, or neglect of duty is authorized by the CSC. It
cannot, therefore, be considered “unjustified,” even if later the charges are
dismissed so as to justify the payment of salaries to the employee concerned. It is
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one of those sacrifices which holding the public office requires for the public
good. For this reason, it is limited to 90 days unless the delay in the conclusion of
the investigation is due to the employee concerned. After that period, even if the
investigation is finished, the law provides that the employee shall be
automatically reinstated.
2) An employee is entitled to back salaries during the preventive
suspension pending appeal. It must be remembered that preventive suspension
pending investigation is not a penalty but only a means of enabling the
disciplining authority to conduct an unhampered investigation. On the other
hand, preventive suspension pending appeal is actually punitive although it is in
effect subsequently considered illegal if respondent is exonerated and the
administrative decision finding him guilty is reversed. Hence, he should be
reinstated with full pay for the period of the suspension.
Thus, S 47 (4) (Book V, Chapter 6, RAC 1987) states that respondent
shall be considered as under preventive suspension during the pungency of the
appeal in the event he wins. On the other hand, if his conviction is affirmed, if he
is not exonerated, the period of his suspension becomes part of the final penalty
of suspension or dismissal.
It is precisely because the respondents are penalized before his sentence
is confirmed that he should be paid as salaries in the event he is exonerated. It
would be unjust to deprive him of his pay as the result of the immediate
execution of the decision against him and continue to do so even after it is shown
that he is innocent of the charges for which he was suspended. Indeed to sustain
the government’s theory would be to make the administrative decision not only
executor but final executor. The fact is that S.47 (2) and (4) are similar to the
execution of judgment pending appeal under Rule 39, S.5 of the Rules of Court
Rule 39 S.5 provides that in the event the executed judgment is reversed, there
shall be restitution or reparation of damages of equity and justice may require.
4. Right of the Respondent (Art. 129, IRR)
*Art. 129. Right of respondent, IRR. The respondent shall be accorded
full opportunity to appear and defend himself in person or by counsel, to
confront and cross-examine the witnesses against him, and to require the
attendance of witnesses and the production of documentary evidence in his favor
thru the compulsory process of subpoena or subpoena duce’s locum.
5. Administrative Investigation and Appeals (Art. 131, IRR)
*Art. 130. Investigation and decision.
a) The investigation of the case shall be terminated within 90 days from
the start thereof. Unreasonable failure to complete the investigation after same
period of 90 days by the person or persons assigned to investigate shall be a
ground for disciplinary action.
b) Within 30 days after the end of the investigation, the Office of the
president or the Sanggunian concerned shall render a decision stating clearly and
distinctly the facts and reasons for such decisions. Copies of decision shall be
immediately furnished the respondent and all interested parties. In case of
failure of the Sanggunian concerned to render a decision on the resolution
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recommended on the investigation within 30 days after the end of the
investigation, the recommended resolution shall be considered the decision.
c) The penalty of suspension shall not exceed the unexpired term of the
respondent or a period of 6 months for every administrative offense, nor shall
said penalty be a bar to the candidacy of the respondent so suspended as long as
he meets the qualifications required for the office.
d) The penalty of removal from office shall be considered a bar to the
candidacy of the respondent for any elective position.
*Art. 131. Administrative appeals, IRR. Decisions in administrative
cases may, within 30 days from receipt thereof, may be appealed to the
following:
1) The Sangguniang Panlalawigan, in the case of decisions of
the Sangguniang Panlungsod of component cities and the Sangguniang bayan,
and
2) The office of the president, in case of decisions of
Sangguniang Panlalawigan, Sangguniang Panlungsod of highly urbanized cities
and independent component cities, and the sangguniang bayan of municipalities
within MMA.
Decisions of the office of the president shall be final executory.
1. Joson v. Tones 290 SCRA 179
Facts: This is a long boring case. It explains in sordid detail what
happens during an administrative investigation AO 24 dated Dec. 17, 1992
figured prominently in this case its entirety if you want to know more about AO
24 (as if you would)
One fine morning in September 12, 1996, the SP of Nueva Ecija was
about to start their routine session when Governor Eduardo Joson barged into
their session hall. Armed goons accompanied the governor. The governor
threatened the SP members because they refused to support governor’s plan to
obtain a loan of 150M from the PNB.
The SP members did not take the governor’s threat sitting down. They
filed a complaint with the office of the president (OP), charging the governor
with the grave misconduct and abuse of authority.
Governor Joson was requested to file an answer. Instead, the governor
asked for 3 extensions of 30 days to file his answer. When 3 months pass and
Joson, instead of filing his answer, filed instead Motion to Dismiss, Executive
Secretary slapped him with a 60 day preventive suspension.
Governor Joson then filed a motion to conduct formal investigation as
mandated by the LGC and AO 23. The DILG, the department investigating his
case, denied the governor’s motion. Proceedings before the DILG thus continued
without the benefit of a formal investigation.
The case was resolved using position papers submitted by both parties.
In its resolution, the DILG found the governor guilty as charged and imposed a 6
months suspension without pay on him.
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Joson now claims he cannot be denied of his right to a formal
investigation granted under AO 21, thus the resolution finding him guilty should
be declared null and void. Is he correct?
Held: Yes, rejection of Joson’s right to a formal investigation is denial of
procedural due process Sec. __ of AO 23 states that only the parties to the case
have the right to decide whether they desire a formal investigation. AO 23 does
not give the investigating authority (which is the DILG Secretary by specific
mandate of AO 23) the discretion to determine whether a formal investigation
should be conducted. The rights of the respondent must be respected (Art. 129,
IRR).
Another reason why Joson’s right to a formal investigation cannot be
denied is because he is an elective official. The rules on the removal and
suspension of elective local officials are more stringent because the official has
only a limited term of office. Suspension and removal will shorten this term of
office, thus the official must be accorded his rights under the law in order that
the people who elected him into office will not be unduly deprived of his
services. The procedure of requiring position papers in lieu of a hearing in
administrative cases is expressly allowed with respect to appointive officials but
not to those elected.
2. Lupo v. Administrative Action Board 190 SCRA 69
Facts: Fructuso Arroyo, the OIC/CDO, Message Center and former
CDO of Telecom filed a complaint for dishonesty thru falsification (multiple) of
official documents against Maria Lupo, who committed said transgression in her
capacity as Chief of Personnel if Telecom, Region V. the telecom investigator
conducted an informal fact-finding inquiry. He came out with a memorandum
recommending that Lupo be sternly warned and that a repeat of such offense
will merit her graver penalties.
The Secretary of the Department of Transportation and Communication
however, examined the memorandum. Based on said memorandum, the
secretary filed a resolution slipping6 Lupo with 1 year suspension and
suspending her from promotion for a period of 1 year.
Lupo appealed to the CSC. The CSC thru its Merit System Board
ordered the case to be remanded back to the telecom office for further
investigation after which the administrative action board (AAB) was to hear the
merits of the case thru a trial.
The AAB however proceeded with the trial of the case without waiting
for the investigation to commence.
Lupo now complains she was not accorded procedural due process
because no formal charge has been filed against her and that the investigation
conducted by the telecom investigation was not a formal investigation but a mere
fact-fact finding inquiry.
Held: Lupo is correct. Complaints against employees belonging to the
CSC system is governed by PD 807 says that a formal complaint that should first
be filed after which the respondent must be given the option to submit her self to
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a formal investigation if her answer to the complaint is found to be
unsatisfactory. Here, not only was Lupo is given a chance to submit her self to a
formal investigation, the DOTC secretary immediately slapped her with a 1 year
suspension based only a mere informal inquiry. Also, the AAB started hearing
her case without the benefit of a formal investigation.
The cardinal primary rights of due to process in administrative hearings
must always be observed. Lupo must not be denied her right to a formal and full
blown administrative proceeding.
F. Read RA 6770 – the Ombudsman Act of 1989
Read the case of Garcia v. Mojica (see p. 69) preferably in it’s
entirely, in order to best see how the Ombudsman Act was applied in an actual
case
G. 1 Read AO No. 23, December 17, 1992
Read the case Joson v. Torres, (see p. 71) preferably in its
entirely, in order to best see how AO 23 was applied in an actual case.
G. 2 Read AO No. 121, March 10, 1992
VII. KATARUNGAN PAMBARANGAY LAW
Read sections 399 to 420, LGC. (Not e: the following information on the KBL and
the League of Local Government Units were lifted from the Political Law
Reviewer by Nachura).
A. The Barangay
1. Chief Officials and Officers
a) There shall be in each barangay a PB; 7 SB members, the SK
chairman, a barangay secretary and a barangay treasurer. There shall also be in
every barangay a lupong tagapamayapa. The SB may from community brigades
and create such other positions or officers as may be deemed necessary to carry
out the purposes of barangay government.
1) For purposes of the RPC, the PB, SB members,
lupong tagapamayapa in each barangay shall be deemed as persons in authority
in the jurisdiction, while other barangay officials and members who may be
designated by law or ordinance and charged with the maintenance of public
order, protection and security of life and property, or the maintenance of a
desirable and balanced environment, and any barangay member who come to
the all of persons authority, shall be deemed agents persons in authority in Milo
v. Salonga, 152 SCRA 113, the barangay chairman is a public officer who may be
charged with arbitrary detention. In People v. Monton (1998), it was held that the
barangay chairman is entitled to posses and carry firearm within the territorial
jurisdiction of the barangay (Sec. 88(3), B.P. 337). He may not be therefore
prosecuted for illegal possession of firearms.
2. The Barangay Assembly
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There shall be a barangay assembly composed of all person who are
actual residents of the barangay for at least 6 months 15 years of age over citizens
of the Philippines and duly registered in the list of barangay assembly members.
It shall meet at least twice a year to hear and discuss a semestral report of the SB
concerning its activities and finances as well as problems affecting the barangay.
a) Powers of the barangay assembly. Read Sec. 398, R.A 7160
3. Katarungang Pambarangay
a) Lupong Tagapamayapa. There is here by created in each
barangay a LT composed of the PB as chairman and 10 to 20 members. The lupon
shall be constituted every 3 years.
1) Powers of the Lupon (i) exercise administrative
supervision over the conciliation panels; (ii) meet regularly once a month to
provide a forum for exchange of ideas among its members and the members to
share with one another their observations and experiences in effecting speedy
resolution of disputes and; (iii) exercise such other powers and perform such
other duties as may be prescribed by law or ordinance.
b) Pangkat ng Tagapagkasundo. There shall constituted for
each, dispute brought before the lupon a conciliation panel to be known as the
pangkat ng tagapagkasundo, consisting 3 members who shall be chosen by the
parties to the dispute from the list of members of the lupon. Should the parties
fail to agree on the pangkat membership, the same shall be determined by lots
drawn by the lupon chairman.
c) Subject matter of amicable settlement; procedure,
conciliation, arbitration, effects of settlement and arbitration award.
4. Sangguniang Kabataan
a) Creation; composition. There shall be every barangay a SK
to be composed of chairman 7 members, a secretary and a treasurer. An official
who during his term of office shall have passed the age of 21 shall be allowed to
serve the remaining position for the term for which he was elected.
1) Powers and functions. Read Sec. 426 RA 7160
b) Katipunan ng mga Kabataan: Shall be composed of citizens
of the Philippines actually residing in the barangay for at least 6 months, who are
15 but not more than 21 years of age, who are duly registered in the list of the SK
or in the official barangay list in the custody of the barangay secretary. He shall
meet once every 3 months or at the call of the SK chairman, or upon written
petition of at least 1/20 of its members.
c) Pederasyon ng mga SK. There shall be an organization of all
the pederasyon ng mga SK
i) In municipalities, the pambansang pederasyon
ii) in cities, panlungsod na pederasyon
iii) In provinces, panlalawigang pederasyon
iv) In special metropolitan political subdivisions,
pangmetropolitang pederasyon;
v) On the national level; pambansang pederasyon
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B. The Municipality. Read Sec. 440-447 RA 7160
C. The City. Read Sec. 448-548 RA 7160
D. The Province. Read Sec. 459- 468, RA 7160
1. Uy v. Contreras 237 SCRA 167
Facts: Felicidad Uy and Susanna Atayde got involved in a catfight
(nagsasabunutan) involving a dispute over a sublease. Atayde and her employee,
Winnie Javier sustained minor injuries as a result. Atayde later filed 2 criminal
cases for minor injuries against Uy with the MTC.
Uy sought to dismiss the 2 criminal cases on the ground that since the
complaint involved a crime where the penalty is at best arresto menor, the same
should have been first filed with the Lupong Tagapamayapa of the proper
barangay (which should have actually been Katarungang Barangay). The MTC
judge however denied the motion to dismiss. Was the denial proper?
Held: No, Uy managed to seasonably file her motion to dismiss based
upon a valid ground. She cannot therefore be said to have waived her right to
avail of the KB to resolve their dispute.
2. Felizardo v. CA 233 SCRA 220
Facts: Nemesio Jose as owner-lessor of a house and lot located in Bajac-
bajac, Quezon City filed an ejectment case against lessee Quintin Felizardo in the
MTC of Olongapo city.
Felizardo, in his answer, claimed that Jose’s allegations were false and
were only meant to evade the requirements of PD 1508 for barangay conciliation.
The MTC ruled that it could act on the complaint field by Jose and later on
rendered a decision in favor of Jose. Felizardo thus filed a petition for certiorari
questioning the jurisdiction of the MTC.
Held: When MTC ruled that it could act on the complaint for ejectment
filed by the private respondent even without prior barangay conciliation
proceedings, it committed a mere error of judgment and not of jurisdiction. The
SC has held in many cases that while the referral of a case to the lupong
tagapamayapa is a condition precedent for the filing of a complaint in court, non-
compliance therewith cannot affect the jurisdiction which the court has already
acquired over the subject matter and over the person of the defendant.
3. Diu v. CA 251 SCRA 472
Facts: Patricia Pagba owed spouses Diu a debt worth P7,862.55 incurred
in 1988. The spouses Diu brought the matter to the barangay chairman for
resolution; however Pagba twice failed to appear. The barangay chairman thus
gave the go signal for Diu’s to file their case with the MTC.
The MTC ruled in favor of Pagba. The RTC reversed deciding the case
on the merits. The CA however ruled once more for Pagba agreeing with the
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latter that there was no substantial compliance with the procedure outlined in
Katarungang Barangay Law because of the failure by the barangay chairman to
constitute a pangkat to resolve the parties’ differences.
Was the CA correct in its contention?
Held: No. Even though there was a failure to constitute a pangkat
should the barangay chairman, by himself fail to resolve the parties differences
still is not denied that the parties met the office of the barangay chairman for
possible settlement. The efforts of the barangay chairman, however proved futile
as no agreement was reached. Although no pangkat was formed, the SC believes
that there was substantial compliance with the law. From the foregoing facts, it is
undeniable that there was substantial compliance with presidential decree No.
1508 which does not require strict technical compliance with its procedural
requirements. Under the factual antecedents, it cannot be said that the failure of
the parties to appear before the pangkat caused any prejudice to the case for
private respondents considering that they already refused conciliation before the
barangay chairman.
To indulge the Pagbas in their stratagem will not only result in a
circuitous procedure but will necessarily entail undue and further delay injustice.
This is inevitable if this court should dismiss the complaint and require the
parties to meet before the pangkat, only to bring the case all over again through
the hierarchy of courts and ultimately back to us for decision on the merits.
Obviously, this is the game plan of the Pagbas. For, when the Pagbas appealed to
respondent court, they did not at all assail the propriety or correctness of
judgment of the RTC holding them liable to petitioners for the sum of money
involved. Such primary substantive issue, therefore, has been laid to rest, but
private respondents would wish to keep the case alive merely on a conjured
procedural issue invoking their supposed right to confrontation before the
pangkat.
LIGA NG MGA BARANGAY
A. Liga ng mga Barangay - Organization of all barangays for the
primary purpose of determining the representation of the liga in the
sanggunians, and for ventilating, articulating and crystallizing issues affecting
barangay government administration and securing, thru proper and legal means,
solutions thereto. Read Sec. 491-495.
B. League of Municipalities. Organized for the primary purpose of ventilating,
articulating and crystallizing issues affecting municipal government
administration, and securing, thru proper and legal means, solutions thereto.
Read Sec. 496-498
C. League of Cities. Read Sec. 499-501
D. League of provinces. Read Sec. 502-203
E. League and federation of Local Elective Officials. Read Sec. 508-510
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I. Galarosa v. Valencia 227 SCRA 728
Facts: Basically the main issue here is only how to properly interpret
Section 494 of the LGC 1991, which says:
“Ex officio membership in sanggunians. The duly elected presidents of
the liga ng mga barangay at the municipal, city and provincial levels, including
the component cities and municipalities of metropolitan manila, shall serve as ex-
officio members of the sangguniang barangay, sangguniang panlungsod,
sangguniang panlalawigan, respectively. They shall serve as such only during
their term of office as presidents of the liga chapters which in no case shall be
beyond the term of office of the SC”
Raul Galarosa is a president of the Katipunang Bayan of the
municipality of Sorsogon. Like the LGC of 1991, the (old) LGC of 1983 or BP 337
grants Galarosa the right to serve as ex-officio member of the sangguniang
bayan. However, when the new LGC of 1991 finally took effect, Rodolfo Lasay
filed a case against Galarosa in his capacity as taxpayer questioning the right of
Galarosa to remain as an ex-officio member of the sangguniang bayan. Lasay
claimed that the new LGC of 1991 provided for the liga ng mga barangay, which,
although admittedly was structurally and functionally the same as katipunan ng
mga barangay, nevertheless abolished the katipunan ng mga barangay, thereby a
new set of officers have to be appointed by the President of the Philippines. Is
Lasay correct?
Held: Yes. The LGC of 1991 does not explicitly provide that upon his
effectivity the katipunan ng mga barangay under B.P Blg. 337 automatically
became the liga ng mga barangay under the LGC and then the president of the
ABC automatically became the president of the liga whose term as ex-officio
member of the first sangguniang bayan un the 1987 constitution is coterminous
with that of the other regular members if the SB on until 30 June, 1992 pursuant
to section 494 of the LGC in relation to section 2 Article XVIII of the 1987
constitution 20 and section 5 of RA No. 6636. absent such explicitness and
considering (1) that the opening clause of section 491 is expressed in the 1991 and
(2) that section 494 speaks of “duly elected presidents of the liga” thereby clearly
implying as election after the organization of the liga, the conclusion to be drawn
is that the legislature never intended that section 494 would apply to the
incumbent presidents of the katipunang bayan.
There is, however, no law which prohibits Galarosa from holding over
as a member of the sangguniang bayan. On the contrary, aforementioned IRR,
prepared and issued by the Oversight Committee upon specific mandate of
section 533 of the LGC, expressly recognizes and grants that hold-over authority
to ABC presidents. The hold-over rule must be applied, because to the rule other
wise would lead to a vacancy in the office, causing an interruption in the public
service.
2. Alquisola Sr. v. Ocol 343 SCRA 273
Facts: Ramon Arquizola won the position of punong barangay of
barangay Tubod, Iligan City. He then terminated the services of the barangay
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treasurer, barangay secretary utility workers who were appointed under the
term of a previous punong barangay. The barangay treasurer and his similarly
situated friendly friends pointed out that section 389 of the LGC requires that the
approval by a majority of the sangguniang barangay members is needed before
the punong barangay can exercise his power of replacing them.
Held: It should be noted that the barangay officials who were dismissed
are not provided with a definite of office under the LGC. The reason is that they
were merely appointed to their posts by punong barangay. However, since the
punong barangay who appointed the respondents has already stepped down
from office, they are now at the mercy of the new punong barangay who also
possess the power of appointment. The power of appointment is discretionary
and thus implies that the power to remove is also inherent in the former, since by
necessity, the new punong barangay may choose to remove the incumbent
appointive barangay officials in order to make way for his choice of new
barangay officials.
It would be absurd to give section 389 an interpretation which would
render impotent the power of a newly elected punong barangay to choose his
barangay officials. Once the punong barangay has already appointed his choice
officials however, section 389 should then be applied in the sense that said
officials cannot be removed by the punong barangay who appointed them
without the approval of the sanggunian barangay.
VIII. LOCAL SPECIAL BODIES (ART. 181-188, IRR)
*Article 181 names the different local special bodies. The rest of the articles
describe the compositions and functions of each local special body. Only Article
181 will be reproduced here.
*Article 181. Local special bodies. There shall be organized in the LGU concerned
the following local special bodies (every LGU, from the province down, shall
have this local special bodies the PLEB however shall be governed by RA 6975)
(a) Local Development Council
(b) Local Prequalification, Bids and Awards Committee
(c) Local Scholl Boards
(d) Local Health Board
(e) Local Peace and Order Council
(f) People Law Enforcement Boards
a) LDC (sec. 106, LGC). Each LGU shall have comprehensive multi-
sector development plan to be instituted by its development council and
approved by its sanggunian. For the purpose, the development council at the
provincial, city, municipal or barangay level shall assist the responding
sanggunian in setting the direction of economic and social development, and
coordinating development efforts within its territorial jurisdiction.
a.1) EO 463, May 17, 1991
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- Entitled “Establishing the relationship between the Regional
Planning and Development Board of the Autonomous Regional Government (of
Muslim Mindanao) and the national economic and development authority
(NEDA) board”
- Sec. 1. The ARG shall be guided by the synchronized
planning, programming and budgeting system (SPPBS) namely: The Medium –
term Philippine development plan (MTPDP), the medium term technical
assistance program (MTTAP) and the regional development investment program
(RDIP) in its planning, programming, and budgeting activities.
- Sec. 2. The regional planning and development
board of the autonomous regional government shall prepare: a) Regional
Development Plan (RDP) consistent with the national development policies,
goals, objectives and priorities embodied in the Medium-Term Philippine
Development Plan (MTPDP); and b) Regional Development Investment Program
(RDIP) and regional technical assistance program which shall be included in the
Medium Term Public Investment Program (MTPIP) and the Medium Term
Technical Assistance Program (MTTAP).
The RDP, RDIP and supporting technical assistance
programs shall be submitted directly to the office of the president for review and
evaluation of their consistency with the MTPDP and the MTPIP/MTTAP.
- Sec. 5. The Local Development Council (provincial,
city/municipal) shall be maintained the strengthened in order to ensure
continuity in the development planning process. The ARG may choose to
reorganize the LDC through regional legislation.
a. 2) RA 7640, December 9, 1962
a) RA 7640, December 9, 1962
b) Local PABC (sec. 37, LGC) – There shall is hereby created a local
prequalification, bids and awards committee in every province, city and
municipality, which shall be primarily responsible for the conduct of
prequalification of contractors, bidding, evaluation of bids, and the
recommendation of awards concerning local infrastructure projects x x x.
c) Local School Boards (sec. 98, LGC) – Creation, composition and
function. (The LSBs do the following: 1) determine, in accordance with the
criteria set by the DECS, the annual supplementary needs for the operation and
maintenance of public high schools in the LGU concerned; in other words, the
annual school budget; 2) authorize the LGU treasurer to disburse funds pursuant
to budget; 3) serve as advisory committee on educational matters; 4)
recommended changer in name of public schools within its assigned territorial
jurisdiction; 5) act as an consultant on appointment of division superintendent,
district supervisor, school officials, etc.)
c. 1) LOI 1462, May 31, 1985
Eh?
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d) Local Health Board (sec. 102, LGC) – Creation and Composition. (The
LHB do the following: 1) Consistent with DOH rules, propose to sanggunian
concerned; 2) serve as advisory committee to sanggunian on local appropriations
for public health purposes; 3) consistent with DOH standards, create committees
which shall advise local health agencies on matters such as personnel selection
and promotion, etc.
d. 1) sec. 21, EO292
- Entitled “INSTITUTING THE “ADMINISTRATIVE CODE
OF 1987”
-Sec. 21, Chapter 5, Sec. IX on Health basically states that DOH
shall review and for the establishment, operation and
maintenance of health agencies funded by local governments.
e) Local Peace and Order Councils (Section 116, LGC) – Basically, the
local peace and order councils will have the same composition and functions as
prescribed in EO 309. EO09, on the other hand is entitled “REORGANIZING
THE PEACE AND ORDER COUNCIL”
- Sec. 2. Responsibility of the National Peace and Order Council. The
peace and Order Council the national level shall be responsible for the following
functions:
a) To prepare and recommended for the approval of the
President, proposals, measures, thrusts and strategies that would
effectively respond to peace and order problems.
b) To coordinate and monitor peace and order plans, projects
and operation of Civilian Volunteer Self-Defense Organizations
such as other counter-insurgency programs and activities.
c) To perform such other duties and functions as the
President may direct.
- Sec. 3. Duties and Functions of Sub-National Councils. The
Regional, Provincial and City/Municipal Peace and Order Council shall have the
following duties and functions:
a) Formulate plans and recommended such measures which
will improve or enhance peace and order and public safety in their
respective areas of responsibility.
b) To monitor the implementation of peace and order
programs projects at the provincial, city or municipal levels and the
operation of Civilian Volunteer Self-Defense Organizations and
such as other counter-insurgency programs and activities.
c) Make periodic assessments of the prevailing peace and
order situation in their respective areas of responsibility and submit
a report thereon with recommendations to the Chairman of the
National Peace and Order Council.
d) Perform all other functions assigned by law, the
President, or the National Peace and Order Council.
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f) People’s Law Enforcement Board Second, nowhere in the PNP’s enabling act does it grant the PLEB
f.1. Section 43, RA 6975 – Some features: jurisdiction to try any of the PNP’s members.
- Is created only by the sangguniang Lastly, internal disciplinary matters within the PNP are best solved
panlungsod/bayan and found only in cities and municipalities. by the members of the PNP themselves as they are the best position to
- Composed of 1 sanggunian member (any), 1 barangay understand the standard of conduct within its organization. It is doubtful that a
captain (any), 3 respected members of the community, at least 1 who is member civilian body can better police the ranks of policemen.
of the Bar, or if in absence thereof, any college graduate or principal of central
elementary school
- There must be 1 PLEB for every municipality and 1 in every
legislative district of the city
- Procedure in PLEB shall be summary in nature
- PLEB decisions are final and executory
- The National Police Commission shall establish rules
regarding the graduated penalties which may be imposed by the PLEB.

f.2. Fianza v. PLEB 243 SCRA 165

Facts: Several policemen filed two separate complaints against two of
their superiors with the People’s Law Enforcement Board. In the first complaint,
they alleged that their transfer from the Baguio City Police Station to other
stations and their being dropped from the rolls wore irregularly and illegally
made. The orders issued by Supt. Camilo S. Dugayen, apparently upon the
direction of Supt. Florencio D. Fianza, here petitioner, were, according to
respondent policemen, instigated by or made in retaliation to the raids they
conducted on jueteng operations in Baguio. The policemen claim that Supt.
Dugayen, their Station Commander, twice castigated them for conducting said
raids and ordered the release of the cash and paraphernalia seized, as well as
persona accosted, as a consequence of the raids.
In the second complaint, the respondent policemen contend that Supt.
July Cordoviz was guilty of grave threats against them in connection with the
issue regarding the first case, although Supt. Cordoviz was not under the
command of Supt. Fianza.
Fianza contended, through counsel that cases of this nature are not
within the competence and jurisdiction of public respondent PLEB since it
involves an internal organizational matter of the PNP.
The respondent policemen answered, however, that although they
are policemen, they do not cease to become citizens of the Philippines despite the
uniform they wear. The PLEB ruled that they have jurisdiction over the case.
The National Police Commission affirmed the PLEB’s stand. Are the PLEB and
NAPOLCOM correct?

Held: No. First, the complaint is not a citizen’s complaint because, as

defined under the PLEB rules, a citizen’s complaint is one filed by a private
citizen against a member of the PNP for the redress of injury, damage or
disturbance cause by the latter’s illegal or irregular acts. Statutory construction
will tell you that words of a statute are to be given their plain, literal meaning.
While the policemen are indeed citizens, that cannot be certainly be said to be
private citizens in their ordinary meaning.

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