PUBLIC CORPORATION
ATTY. AGRA
AGAPITO (00:00-05:46)
Number 1, LGU do not have inherent powers, they have broad powers. While under
the constitution they enjoy local autonomy but that does not give them inherent
powers. Their powers are given to them by the Constitution or by statute.
When in doubt, the rule is in favor of local autonomy, fiscal autonomy, lower over
higher supervising unit, or lower LGU over national agencies, WHEN THERE IS
DOUBT.
When we talk about devolution of fiscal autonomy, again devolution, I will not cover
that in the exam, but for fiscal autonomy, this is liberally construed in favor of the
LGU. In the same way that local autonomy is liberally construed over LGU.
However, in so far as the three powers, this will be covered in the finals.
Once upon a time, police power was liberally construed, but in the 2016 case, it is
now strictly construed against LGU. By the way, just to explain the color coding of
my slides, RED means 2016 or earlier, BLUE means 2017, and GREEN means
2018.
Police power is a power given to all local governments. This, I would like you to
memorize! That is what I'll ask in the exam. What is the GENERAL WELFARE
CLAUSE? "It is the delegation, in statutory form, of the police power of the State to
the Local Government Units." Every word has a meaning:
1. ​Delegation as against devolution - Delegation is a power given by the State to
Local Governments.
2. ​Statutory Form - This underscores the fact that police power is not constitutional,
it is only statutory.
3. ​Power of the State - this power is a power of the State given to the delegate or
LGU.
The reason why there is this delegation because local governments exist in two
capacities: (1) ​Agents of the People & (2) ​Agents of the State​. Hence, they need
police power.
The hierarchy of rights, safety, security, right to life over economic right. And, for
ordinances and this is also applicable to Statutes, they should not be overly broad or
under inclusive.
There are two essential requisites which was conferred in valid exercise of police
power:
1. ​Lawful Subject - that means the purpose. It means it requires interference with
our life.
2. ​Lawful Method - means by which the purpose will be achieved should be
reasonable.
Examples of Lawful subject would be: (1) Traffic; (2) Anti-prostitution; (3)
Anti-drug. So, there are two additional test:
1. ​Government interest​ that will be served in the exercise of police power
2. Need ​must be compelling.
This was the test applied in the curfew case, which I discussed before to you.
Let's go the fourth bullet, there are two branches if you look at Section 16, it has two
sentences, divided into two branches. The first branch talks about what has been
given to Local Governments. What is implied to what is given? This is included to
what is given, that is the first branch. Basically, copy-paste what is in the law. When
you talk about the second branch, it is broader. it talks about, public safety, public
order, public policy, and therefore it is not specific.
So, again, when we talk about police power of the State, it is not confined to what is
given to them in the law. They can promote the general welfare even if there is no
express provision of law, ​provided ​there is no law that would be violated. Because if
it will be to served the general welfare, but there will be a law that would be violated,
LGU cannot exercise those powers against the principal law; ​Subordinate
legislations, ​wherein the actions, ordinances, resolutions, and executive orders must
not be inconsistent with the Constitution, Statutes, Case Law, and their respective
Charters.
The next set of slides, basically sums up a lot of doctrines and SC cases regarding
police power:
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1. Local Governments, actually, number 1, has been modified. Prior to the
amendment of the charter, there is no need for Local Government to be consulted
before a casino will be set up. Now under the amendment of the charter of
PAGCOR, there must be prior authorization from the LGU before a casino can be
establish within their jurisdiction.
AGUIRRE (05:47-11:33)
Local Governments CANNOT:
● prohibit the setting up of lotto outlets because that is a prerogative of the
Philippine Charity Sweepstakes Office. What a local government can do
regarding lotto outlets would be to compel the lotto outlets’ proprietors to
follow the National Building Code -- there must be a fire hydrant; there
must be a set back from the road -- these are the responsibilities of the local
government unit following the National Building Code.
● Regulate jai alai because that is a power of Congress.
● Regulate professions regulated by PRC.
● Regulate a dumpsite, obviously, in violation of environmental standards
because local governments must also follow these environmental standards.
● Issue driver’s licenses because this power is not devolved, and remains with
the LTO; same with registration of motor vehicles, which is not a devolved
power.
● Regulate or tax an illegal activity such as jueteng, otherwise that would be
violating the law.
● Prohibit the operation of certain establishments -- it cannot direct these
establishments to convert to another form of business or to transfer to
another street ​under police power.
○ But if you look at that case of ​Ermita Malate​, SC said that while
that is not allowed under police power, it is allowed under eminent
domain, provided of course, that local governments follow the
strict requirements under eminent domain.
● Order the closure of a bank not performing illegal activities or for
non-payment of taxes, because this is not one of the remedies for
non-payment of taxes.
● Padlocking of establishments without due process; it is only allowed if there
is due process.
● Allowing 3 cockpits -- while the power to regulate cockpits has been
devolved to cities and municipalities, cities and municipalities must follow
the Philippine Cockfighting Law, which only allows for 1 cockpit.
● Declare a bus terminal a nuisance per se because a bus terminal is not a
nuisance per se. If ever there is going to be a demolition of a bus terminal, it
must be declared as a nuisance per accidens but there must be an application
before the courts.
● Demolition of building without court order
● Declaring a gas station a nuisance per se, again, it must be a nuisance per
accidens.
● Ban rallies because this will be an affront on one’s freedom of speech.
● Lease out a public plaza, because a public plaza is outside the commerce of
men​ ​and women.
● Wanton denial of an issuance of a mayor’s permit -- there must a plausible
valid reason why a business permit will not be issued.
● Twenty-two​, demolish a wall to allow the general public to use the property,
depriving the owner of its exclusive use -- that is not allowed under police
power. That is allowed under eminent domain.
Allowed:
● Zoning ordinance is a recognized exercise of police power.
○ When you talk about zoning, this is residential, industrial, and
commercial. It allocates the jurisdiction to specific zones.
● Demolitions without court order-- these are the following instances when
demolitions can be done without resorting to judicial action.
● Curfew, a 2017 case. ​I thought this was going to be asked in the bar exams
last year. Supreme Court said that a local government can restrict the
movement of minors, subject to certain conditions. There must be a
compelling reason; it will allow the minors to exercise their constitutional
fundamental rights. The reason why the Quezon City ordinance was upheld,
while the Navotas and Manila ordinances were declared unlawful, was
because the QC ordinance protected all the constitutional rights of the
minors -- namely, school, church, legitimate non-school non-church civic
activities, political rallies, and peaceful assemblies. While for Manila and
Navotas, it only protected a handful.
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BITOIN (11:34-17:20)
● Number 16 is a 2018 case. Can a LGU impose stricter regulations? Btw, if
you recall your admin law, that’s not allowed because that would effectively
violating the law. And that would be undue delegation of authority. But
because LGs enjoy local autonomy, and part of its mandate would be to
protect its general welfare, IT CAN IMPOSE STRICTER REGULATIONS.
Not because the power to enforce National Bldg Code has been devolved to
LGU, but because of POLICE POWER.
EMINENT DOMAIN. While the SC in 2016 said it is essentially LEGISLATIVE, it
is ALSO EXECUTIVE. As you may recall, there must be an ORDINANCE.
Ordinance authorizing the mayor to file a case. But it is the mayor who files an
expropriation case. Therefore, that partakes of an executive function. What can be
expropriated? It is either a PRIVATE PROPERTY, even a PUBLIC PROPERTY
HELD IN ITS PROPRIETARY CAPACITY. It must be for a public purpose like
socialized housing. Upon the payment of just compensation. Just a note on
SOCIALIZED HOUSING. While that is allowed, expropriation is not the 1st option
because under Sec 19 of the LGC, it says there it must follow under relevant laws
and relevant laws for socialized housing is the Urban Development Housing Act
which says that there are certain procedures. Expropriation, I think is number 3, it is
not the 1st option.
There are 2 types of taking.
1. Government must pay.
2. Government need not pay.
Of course, when the government does not pay, is a valid exercise of POLICE
POWER. But when the government must pay, that is COMPENSABLE TAKING.
Well, simple definition of compensable taking is IF AFTER TAKING, THAT
PROPERTY CAN STILL BE USED BY THE LG OR BY SOMEONE ELSE,
THEN THE OWNER MUST BE PAID. But if you kill all the pigs, because of a
certain disease, then no one may use that pig, then no need to pay the owner because
the reason why the LG did that was to protect the general welfare. For the national
government, we call it EMINENT DOMAIN. But for LG, Fr. Bernas in his
commentary said, this is INFERIOR DOMAIN because all the requirements under
the LGC was strictly followed. When in doubt, it is strictly construed against the
condemnor or the one condemning, in this case is the LGU.
It must be founded on GENUINE PUBLIC NECESSITY. So there’s no genuine
public necessity:
1. when the owner was willing to sell or
2. when there is similar facility in the adjoining or adjacent brgy. We have a
SC case regarding that.
SC in 2 or 3 cases has said that the enabling instrument to carry expropriation is
ORDINANCE, not resolution. Why? Ofc in your answer, you can cite the distinction
between ordinance and resolution but the 1st answer should be JUST FOLLOW
THE LAW. The law says ordinance. So there’s no need to interpret because the law
is clear.
The reason itself must be in the ordinance, the PUBLIC PURPOSE. It cannot be
implied. The public purpose in 2016 case is a CONTINUING requirement. It cannot,
after 2 years become private.
Again, ordinance PRECEDES the filing of the case. There’s no ratification in this
regard because the law is clear. Where do you file an expropriation case regardless
the value of the property, because in this particular case, the cause of action is the
exercise of the power, then it is INCAPABLE OF PECUNIARY ESTIMATION.
Then it should be the RTC.
There must be a VALID AND DEFINITE OFFER, not just calling the other to a
meeting to discuss the price. There must be an offer. Are you willing to sell at this
particular price.
Eminent domain, being an ordinance, CAN BE REVIEWED BY A HIGHER LGU.
The same municipality reviewed by the province. As we have discussed before, the
province only exercises SUPERVISION over the municipality. And therefore in
reviewing an ordinance, the authority of the province is not without limit.
CHUA (17:21-23:07)
It can only determine questions of law, meaning whether or not the municipal
government followed the law, followed the procedure. The provincial government
cannot tell the municipality “you should have chosen the property of x and not of y”
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because that is not a question of law. What will be role of the courts? Can the
provincial government say that there is no genuine necessity? No because that is
question of fact. So where will you question the necessity if you are the owner? You
question it before the RTC where you file answer in the expropriation case. So the
choice of the property, how much and execution of the property will be with the
RTC.
The Department of Agrarian Reform, even if the expropriated property is agricultural
land, has no role in the expropriation case. It does not require prior approval from
this agency because there is no law that gives them that right and DAR cannot
arrogate onto themselves that authority, otherwise that will amount to control. Only
Congress can impose limitations on power of LGU.
Is fiscal autonomy constitutional? Yes basis would be Sec 2 and Sec 5. Sec 2 talks
about local autonomy. SC said that local autonomy includes both admin autonomy
and fiscal autonomy. Sec 5 says that the “other sources of revenue.” That particular
phrase according to phrase, fiscal autonomy can be implied from it. In that case, SC
for the first time defined what fiscal autonomy is. If you look at the long definition it
only talks about 2 things. One where the money or funds will come from and two
once you have the funds you have the freedom to use these funds. However, like any
other freedom, like local autonomy it is not absolute. Public funds cannot be used for
private purposes. Obviously, in order to effectively exercise local autonomy you
need fiscal autonomy you need money to perform various functions given to local
government units and at the same time you need autonomy to determine how to
prioritize the money that you have. When in doubt you rule in favor of fiscal
autonomy because local governments need money. National government cannot
impose limitations when there are no limitations imposed by law otherwise that will
amount to control.
Unlike eminent domain and unlike police power, the power to tax is a constitutional
power under Sec 5 Article X. It is both constitutional and statutory but NOT
INHERENT. It is a delegated power given to local government units by law.
Congress has control over this power. But the power to control by Congress is
qualified
1. Congress cannot take away this power
2. Congress can impose but the limitations must not be inconsistent with lcoal
autonomy.
Difference between the tax and fees
1. Purpose
2. Amount
A fee in order for it to be valid imposition, the amount must be commensurate to the
cost of the regulation because if it goes beyond the cost then it becomes a tax
because the purpose now becomes money making. The reason why this power is
given to local governments is because they need to have money, they need to widen
their tax or revenue base. If you look at the LGC you have a long list of taxes for
provinces, cities, municipalities or barangays. However, this list is not exclusive.
Local governments can add to this list provided it is not oppressive, provided there is
notice and hearing, provided no other entity (government agency) is imposing the
tax. So can local government can impose income tax? It is not in the list. However it
cannot be done because it is being imposed by national government. Local
governments have a share in taxes but national government cannot have a share in
local taxes...
DE CASTRO (23:14-29:54)
... because of the phrase under the Constitution that they shall exclusively accrue to
the local government units.
Jumping to the last bullet, there's a blanket withdrawal of all tax exemption given
before. What's the wisdom behind that withdrawal? To give local governments more
money because they have more functions. However, there are certain exceptions. 1.
If your tax exemption was before the local government code, then what's the effect?
That has been withdrawn. You can now be taxed. However, if your franchise or the
grant of tax exemption was given to that government corporation or government
instrumentality, after the effectivity of the 1991 LGC, then exempt. 2. Are there
certain GOCCs whose tax exemption was given prior to the LGC, they're still
exempt today? Yes. A certain government agencies by the way. GIs, yes. GOCCs,
liable to pay taxes. However, there are two exceptions. Is a GOCC liable to pay tax?
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Yes. However, if its property, is outside the commerce of men, like ports, then
exempt. GI as you recall, exempt from paying taxes. But are they liable in certain
cases to pay local taxes? The answer yes if their property is being used by a
beneficial user - meaning by a taxable person. But it is not the GI who will be liable
to pay, normally it is the lessee - the taxable person.
Exemption is clearly non transferable.
Fourth bullet. This is relevant also for admin law. There are only 2 agencies under
the LGC and any other statute which gives national government agencies the
authority to review ordinances. Absent a law, a national government agency cannot
assume that authority. Mainly, the DOJ and the DBM insofar as appropriations
ordinances are concerned. General rule, if you want to question a tax ordinance, you
must go to DOJ before you seek judicial review. Exception the rule would be, if you
are able cite and the SC will believe you, that you don't need to exhaust. And there's
one case wherein there was a pure question of law, by the way if it is a mixed
question of law it has to go to DOJ, only if it is a pure question of law then you can
bypass the DOJ and you go to court directly. And obviously if its not a tax measure.
if its a fee ordinance, then you can go to court directly, even if it is not a pure
question of law.
The next two slides are cases regarding specific taxes, I will no longer cover this.
Your tax profs will cover this.
Internal Revenue Allotment (IRA). The IRA should now be changed. Why? Internal
Revenue allotment, once upon a time, by the way the IRA is in the LGC. And the SC
has declared that unconstitutional in 2018 because if you look at the 1987
Constitution, it says there "national taxes." And the phrase "as determined by law"
does not qualify or limit the scope of the national taxes. What the "as determined by
law" limits or qualifies is the phrase "just share." By the way for statcon, that's a
doctrine of the last qualifier. You qualify the immediately preceding words or phrase.
So our local governments from up-to this year have been deprived of their share in
customs and duties. Deprived by law, not by executive fiat. I understand the
application of this doctrine is prospective. Government will no longer pay for the
past 28 years. Can the president reduce the 40% to a percentage lower than 40% but
higher than 30%? Yes. But there are certain requirements under the LGC such as
there must be unmanageable public sector deficit, meaning government cannot pay
its debt. Can Congress put 10% of their share in what we call the unprogrammed
fund, it will not be used until such time as the national government meets its fiscal
targets? No, because the release must be automatic. Can that placement in the
unprogrammed fund be justified if it’s in the GAA? No, because that will be, one - it
violates the automatic release provision, two - the GAA cannot amend its substantive
law, if it does, you call that provision a "rider." But the more technical term -
inappropriate provision.
GALLO (29:54-38:26)
Di nyo yun naalala from first year? Naalala naman okay. It was asked in the bar -
what are the constitutional sources of revenues of local governments? Basically Sec
5 and Sec 6. For national taxes, it must be just. For share in the utilization of
national wealth, it must be equitable. Right now the current share is 40%. The other
sources are given only by statute and also limited by statute. For example, local
governments can only borrow from government financial institutions. Local
governments cannot borrow from lets say BDO or BPI. However for grants, it can
from a foreign source or from anybody.
LOCAL LEGISLATION.
It is ​delegated​.
It is a ​state power​. It is not a devolved power.
It is ​subordinate​. For rules, again for admin law, for rules and ordinances, they must
not be inconsistent with laws, charters, case law.
Denominated​ because they must follow the procedure.
Derivative​ because ultimately, their power comes from the people.
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And there are two modes by which laws, ordinances can be enacted and resolutions
issued.
1.​ ​Either through the council or
2.​ ​through the people’s initiative, and or referendum.
There are two presumptions, both rebuttable. They are presumed to be valid, legal
and constitutional. And two they are presumed to have been enacted or issued based
on the procedure under the Local Government Code and the Implementing Rules and
Regulations. The Vice-Mayor cannot enact an ordinance on his or her own, or even a
councilor. They must do so in a session. Their quorum is including those who are
absent. So quorum will be all elected and qualified. The vote requirement is majority,
however in the Local Government Code there are certain exceptions, sometimes 3/4,
sometimes 2/3. In one instance, in the amendment of a zoning ordinance, one local
government unit required a higher vote. And Supreme Court said local government
units know best, the principle of subsidiarity meaning local governments are in the
best position to address local problems. Can a local government unit conduct 3
readings in one day? Unlike for Congress they cannot because under the
Constitution, there must be 3 separate session days, but for local governments there
is no such requirement. And therefore, if it’s not prohibited, therefore allowed.
That’s one of the instances wherein the Supreme Court said that local governments
have residual powers. Requirement before an enactment of an ordinance. Does it
require notice and hearing? No. It is only required when so required by law. Example
would be a tax ordinance. For a fee ordinance, it is not required.
CONTRACTS. What is the role of council? It must, prior to the mayor or governor
signing the contract, there must be prior authorization. Absent such prior
authorization, that ordinance is, unenforceable. Because at a future time, the
Sanggunian can give its authorization in 2 ways.
1. ​express: enactment of an ordinance or issuance of a resolution post signing
of the contract or
2.​ ​through implied authorization.
•​ ​There are two elements for implied ratification.
1.​ ​Acquiescence or no objection on the part of the council
2.​ ​The people already benefitted from the contract.
Related to the curfew case, if you look at the Local Government Code, there are only
two forms of penalties expressly mentioned: fine and/or imprisonment. For
baranggays by the way, they are only allowed to impose a fine of P1,000. In the
curfew case, even if it only allows local governments to regulate and it even
prohibits under the law, it prohibits the imposition of penalties, penalties here
include fine, imprisonment, loss of property, right of privilege and reprimand. So
even if local governments are only allowed to regulate and cannot impose other
penalties, that restriction does not cover ​community based programs ​such as
community service and admonition. Admonition is different from reprimand.
Although the effect might be the same. If you’re a local government unit, don’t use
the term reprimand because that is not allowed, unless there is a law that allows it.
Use the term reprimand (i think he meant admonition tho?), and justify it using this
curfew case.
ORDINANCES AND RESOLUTIONS. Ordinances are like laws, but of a local
application, obviously. Resolutions are not laws. They simply express a sentiment or
the official position of that local government. Every time there is an
•​ ​appropriation of money, that must be an ordinance.
•​ ​Tax - ordinance
•​ ​Eminent Domain - ordinance
•​ ​Citation for a student - resolution.
LIM (38:27-44:13)
Why is it important to make a distinction? Later on I’ll show that. But again,
ordinances. Why use the term more or less permanently? Bakit hindi nalang
permanent? Because as we recall in first year, there are no irrepealable laws. There’s
also no irrepealable ordinances. They can be amended by the same sanggunian or by
the next sangguinian. But resolutions are inherently temporary. General rule,
ordinances must go through 3 readings. Resolutions, general rule 2 readings. Not all
instruments issued by a sangguian are subject to the veto authority or review
authority of the higher LGU. Only ordinances and 2 resolutions adopting the local
development plan and the public investment program must, can be vetoed by the
mayor, can be reviewed by the higher supervising units. Why is it important to
distinguish? 1. If it is an expropriation resolution, unlawful. 2. If it is a resolution and
it is not a resolution adopting the local development plan or public investment
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program, then no need to be approved by the mayor and no need to be reviewed by
the supervising local government unit.
For ordinances and resolutions they must pass the 2 tests of the formal requirements
and the substantive requirements. What are the tests of a valid ordinance, then
couched in the negative? Not violate the law, not unreasonable, not discriminatory.
General rule, follow the operative fact rule until such time that an ordinance has been
declared invalid, then it becomes operative. Except in one case, this case pertaining
to the grant of a franchise by the province for cable TV operations. Supreme court
said that from day 1, because cable TV operations remains with the National
Telecommunications Commission, it is not a devolved authority, and therefore, from
day 1 this act is void and therefore, it does not create any rights.
Veto is a power exercised by the mayor or governor not the punong barangay
because the punong barangay is the presiding officer of the sanguinan. Review is a
power exercised by the higher local government unit. And the law allows it. Look at
the grounds, for veto, it can be a question of law or a question of fact, ultra vires, or
prejudicial to the general welfare. Review? There’s only one. It’s a question of law,
ultra vires. How come for veto you allow a question of fact. Because that does not
amount to control, because its just saying local government unit. Unlike in review
wherein the province only exercises supervision over the lower, then it cannot
amount to control, hence the power is only limited to question of law, which is ultra
vires or beyond the powers of that local government unit to undertake.
This last topic we were not able to cover but it will be part of the exams. When you
talk about accountability, its accountability on the part of the local government unit,
you call it corporate accountability. And accountability on the part of the officials,
whether they’re elective or appointive officials. Local officials must faithfully
discharge their functions and accountable public officers. Can the mayor be at the
same time the head of a GOCC under a law? Supreme court said NO, even if there is
a law, that provision is unconstitutional. Because 1.) under the local government
code, under the Constitution rather, an elective official can only hold on to one
position, unless the Constitution allows him or her to hold another position. And 2.)
if it’s related to his function or her function under ex officio capacity.
Once upon a time, the power to discipline, let’s say even a province can discipline a
municipal mayor. Once upon a time that was questioned that power under the 1991
Local Government Code. Because there was a claim before that when you give the
province the authority to disciple a lower official that amounts to control. Supreme
Court said NO, that is still part of supervision. Because the power to supervise is to
make sure that the subordinate or the supervised is following the law.
NUFUAR (44:14-50:00)
The power to discipline cannot be delegated, but the power to investigate can be
delegated. And this is also relevant for admin law. So, the DILG can investigate but
it has no power to discipline because the power to discipline remains with the higher
LGU or the President insofar as City or Provincial officials are concerned.
Once upon a time, the rule on reelection, it cures or it amounts to condonation of
administrative case, but that doctrine has now been abandoned. The last time that
was applied was in the case of former Mayor Junjun Binay. So now the rule is even
if you are reelected, that doesn’t amount to forgiveness or condonation of whatever
case whether criminal or administrative.
What happens if the mayor dies? Vice-mayor becomes the Mayor. Now you have a
vacancy in the vice-mayor position. You have the senior councilor who will become
the vice-mayor. Now there’s a vacancy in the council. The political party from which
there’s a vacancy can now recommend and that the recommendee and the higher
authority, let’s say the Province, could do the selection process.
When the mayor goes abroad, the vice-mayor automatically assumes the position.
Because if the mayor goes to another town, he can be absent for 3 days and that
mayor can appoint an officer in charge who is not the vice-mayor, but on the 4​th day
the vice-mayor assumes the position of acting mayor.
Term of office. As under the Constitution, what’s the term of office of local
government officials as determined by Congress? It’s 3 years. And what’s the term
limit? 3 consecutive terms. Therefore, you must be able to determine whether it is a
term or not a term. So if you took a vacation or the municipality was converted into a
city or you were suspended or placed under preventive suspension or if you resign-
that is not an interruption of your term, that is still 1 term. But in the case of the
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mayor dying, vice-mayor becoming the mayor, the vice-mayor is the luckiest person.
You know why? Because when he/she becomes the mayor, that is not a term as
mayor because that vice-mayor was not elected as mayor. That will also not be
considered a term as vice-mayor. Why? Because that vice-mayor, according to the
Supreme Court, did not fully serve the term. So there are the two requirements for a
term to be considered a term. You must have been elected to that position and you
must have fully served that elected office. So if you won, if you became the mayor
by operation of law, the vice-mayor or mayor die, or you won in a recon election
now there’s a gap, you won in an election protest and therefore you will not fully
serve the term or you won in a correction of manifest errors although this is no
longer relevant in an automated system then there’s a gap or you were not elected in
that position- then that is not considered a term.
Public accountability. You can be penalized if you violate any of these laws. Here
are some examples. Can a mayor who was placed under preventive suspension
continue performing in the office? Of course not. That would be usurpation. Can you
pay an employee who has been dismissed? That would be giving unwarranted
benefits. If you committed fencing, knowingly selling a stolen property, that is a
crime involving moral turpitude. By the way, illegal dismissal, who’s liable? The
Corporation or the Mayor? It depends on the facts. If it was purely the Mayor’s act,
whimsical, capricious, no basis, the Mayor is personally liable.
SISON (50:01-55:50)
But if the council participated, confirmed the actions of the mayor and withdrew the
salary of that dismissed employee, then the LOCGOV is the one liable. So, if and
when you become mayors, or govs, make sure your council is with you. (Hahaha)
Former VM Yabut, Case # 12, he went down Makati Ave because there was traffic.
Meron siyang sinuntok na foreigner because he was pissed. SC said, officials you
should not be onion skinned. In Tagalog, balat sibuyas. (Haha) Local officials, if a
case is filed against you, you have rights, constitutional rights of the accused. If you
are heard by the provincial, what is the quantum of proof? Admin law! Substantial
evidence.
Can you file the case with the courts directly? No. You must exhaust! Unless you are
able to justify non-exhaustion.
Only the courts can remove. Even the Ombudsman. Even the Provincial Government
cannot remove a mayor. Because under Section 16 of the LGC, it is very clear that
only the Courts can! So what is the maximum penalty the higher local government
can impose? Suspension. Or reprimand. Only the Courts can remove.
So if you want the mayor to be removed or be ousted from office, do not go to the
higher local government! Go to the Ombudsman. Or initiate recall.
Preventive suspension is not a penalty. It is a protective admin measure. Why is a
mayor placed under this? So he or she will not influence or harass the witnesses. Or
that he or she will not destroy evidence.
Who can place under preventive suspension? Ombudsman or the higher supervising
local government unit. That is important because the requirements under the same.
Let me highlight one requirement. If you want a mayor to be placed under preventive
suspension by the governor, there must be joinder of issues. A responsive pleading
must be filed. Meaning there must be an answer. Without an answer, the mayor
cannot be put under preventive suspension. Unless, and this is the case that happened
in Nueva Ecija. Despite repeated demands, no answer has been filed. The SC said
then you cannot place under preventive suspension. Joinder of issues is a
requirement under higher LGUs. But joinder of issues is not a requirement before the
ombudsman to place in suspension. So even if you file the complaint today with the
Omb, you can be placed under prev sus. Depending on who’s liable, it is either the
juridical person or the natural person (mayor), it depends on the liability. So when
you declare an ordinance invalid under declaratory relief, it’s not a case against the
mayor, it is a case against the locgov. For illegal dismissal, it depends if the council
participated. If it is misfeasance, malfeasance, nonfeasance, then that’s against the
person.
And depending on the liability, the cases. So to your left will be the cases against the
national official. And to your right will be the cases against the LGUs. Btw! If you
want to question an ordinance, you do not file a certiorari. You file a declaratory
relief. Or the other option is you lobby to the higher local gov unit. So that the higher
LGU will declare void or ultra vires the ordinance enacted by the supervising LGU.
That ends LocGov.