Pub Cor Notes 16

REVIEW NOTES
LAWS ON PUBLIC CORPORATION
By
Atty. Hilario Justino F. Morales

Visiting Lecturer & Dean (Ret.)
SLU School of Law
Pre-Bar Lecturer, Premiere Bar Review Center
CPRS Reviews & Seminars, Lex Reviews & Seminars
Powerhaus Law Review Center, PhilJust-CSUCOL
Magnificus Juris Reviews & Seminars
Great Minds Law Review Services
Suprema Legis Reviews & Seminars
Villasis Law Center, MLQU
Lex Patriae Reviews & Seminars Center
& SLU-SOL BarCom
November, 2016
TABLE OF CONTENTS
H. General Principles. . . . . . . . . . . . . . . . . . . . . . . . . P 1
II. The Local Government Code of 1991:
Salient Features. . . . . . . . . . . . . . . . . . . . . P 3
Rules of Interpretation. . . . . . . . . . . . . . . . . . . . .. P 3
Declaration of State Policies. . . . . . . . . . . . . . . ... P 4
II. Inter-Governmental Relations. . . . . . . . . . . . . . . P 9
Power of Control and General Supervision,
Distinguished. . . . . . . . . . . . . . . . . . . . . . . . . . . . . P10
Special Local Bodies. . . . . . . . . . . . . . . . . . . . . . . P13
III. Creation, Conversion, Division, Merger and
Consolidation of LGU’s. . . . . . . . . . . . . . . . . . . . P16
IV. Powers of Local Government Units
General Welfare – Police Power. . . . . . . . . . . . . P32
Validity of Ordinances and Acts of LGU’s. . . . . P33
Power to Generate and Apply Resources. . . . . . P41
Eminent Domain. . . . . . . . . . . . . . . . . . . . . . . . . . P47
Reclassification of Lands. . . . . . . . . . . . . . . . . . . P53
Closure and Opening of Roads. . . . . . . . . . . . . . P54
Naming of LGU’s, Public Places, Streets
And Structures. . . . . . . . . . . . . . . . . . . . . P55
Settlement of Boundary Disputes. . . . . . . . . . . . P56
Authority Over Police Units. . . . . . . . . . . . . . . .. P58
Local Legislative Power. . . . . . . . . . . . . . . . . . . . P58
Corporate Powers. . . . . . . . . . . . . . . . . . . . . . . . . P63
VI. Municipal Liability. . . . . . . . . . . . . . . . . . . . . . . . P67
VII. Local Officials. . . . . . . . . . . . . . . . . . . . . . . . . . .P69
Common Qualifications. . . . . . . . . . . . . . . . . . . . P69
Disqualifications. . . . . . . . . . . . . . . . . . . . . . . . . . P73
Term of Office. . . . . . . . . . . . . . . . . . . . . . . . . . . . P76
Vacancies and Successions . . . . . . . . . . . . . . . . . P81
Recall . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. P84
Resignation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . P85
Practice of Profession . . . . . . . . . . . . . . . . . . . . .. P85
Prohibited Appointment. . . . . . . . . . . . . . . . . . .. P86
Disciplinary Action. . . . . . . . . . . . . . . . . . . . . . . . P87
VIII. Human Resource Development. . . . . . . . . . . . . . P94
IX. Local Initiative and Referendum. . . . . . . . . . . . P97
I. GENERAL PRINCIPLES
Corporation is an artificial being created by operation of law, having the right

of succession and the powers, attributes and properties expressly authorized by
law or incident to its existence.
Public Corporation is one formed and organized for the government of a portion
of the State.
Classes of Corporations
1. Public or municipal– a body politic and corporate constituted by
incorporation of inhabitants of city or town for purposes of local
government thereof or as agency of State to assists in civil government of
the country; one formed and organized for the government of a portion of
the State.
2. Private – one formed for some private purpose, benefit, aim or end.
3. Quasi-public – a private corporation that renders public service or supplies
public wants.
4. Quasi-corporation – public corporations created as agencies of State for
narrow and limited purpose.
Elements of Public Corporation
1. legal creation or incorporation;
2. corporate name;
3. inhabitants; and
4. territory
Under the Local Government Code of 1991, inhabitants and
territory, as elements of public corporation, are referred to as population
and land area, respectively.
Dual Nature of Municipal Corporation

1. Public or governmental – it acts as an agent of the State for the
government of the territory and the inhabitants within the municipal limits;
it exercises by delegation a part of the sovereignty of the State.
2. Private or proprietary – it acts in a similar category as a business
corporation, performing functions not strictly governmental or political; it
stands for the community in the administration of local affairs. It acts as a
separate entity for its own purposes and not as a subdivision of the state.
The operation of a public market is not a governmental function
but merely an activity undertaken by the city in its private proprietary
capacity. (Figueroa vs. People, 498 SCRA)
1
GENERAL PRINCIPLES /2
Criterion to determine whether corporation is public: The relationship of the

corporation to the State, i.e., if created by the State as its own agency to help the
State in carrying out its governmental functions, then it is public; otherwise, it is
private.
De Facto Municipal Corporation is a corporation that may exist in fact although
not in point of law because of certain defects in some essential features of its
organization.
Elements/Requisites of a De Facto Municipal Corporation
1. a valid law authorizing incorporation;
2. an attempt in good faith to organize under it;
3. a colorable compliance with the law; and
4. an assumption of corporate powers.
In Municipality of Jimenez vs. Baz, 265 SCRA 182, the Supreme Court
ruled that where a municipality created as such by executive order is later
impliedly recognized and its acts are accorded validity, its creation can no longer
be questioned. A municipality has been conferred the status of at least a de facto
municipal corporation where its legal existence has been recognized and
acquiesced publicly and officially.
--o0o--
V. THE LOCAL GOVERNMENT CODE OF 1991:
SALIENT FEATURES
Four Major Parts of the Local Government Code of 1991
1. Book I - General Provisions
2. Book II - Local Taxation and Fiscal Matters
3. Book III - Local Government Units
4. Book IV - Miscellaneous and Final Provisions
Effectivity: January 1, 1992
Scope of Application of Local Government Code
Applicable to:
1. all provinces
2. cities
3. municipalities
4. barangays
5. and other political subdivisions as may be created by law, and
6. to the extent provided in the Local Government Code (i.e, devolution of
powers):
a. officials
b. offices, or
c. agencies of the National Government
Aims of the LGC of 1991
The Code is meant to transform LGU’s into self-reliant communities and
active partners in nation-building by giving them more powers, authority,
responsibilities and resources.
Rules of Interpretation
1. provision on power: liberally interpreted in favor of LGU; in case of
doubt, resolved in favor of devolution of powers;
2. ordinance or revenue measure: construed strictly against LGU enacting it
and liberally in favor of taxpayer;
3. tax exemptions, incentive or relief granted by LGU: construed against
person claiming;
4. general welfare provisions: liberally interpreted to give more powers to
LGU’s in accelerating economic development and upgrading quality of
life for people in community;
5. rights and obligations existing on date of effectivity of LGC of 1991 and
arising out of contract or any other source of prestation involving LGU,
shall be governed by the original terms and conditions of said contract or
law in force at time such rights were vested; and
6. resolution of controversies arising under the LGC of 1991 where no legal
provision or jurisprudence applies, resort may be had to customs and
traditions in place where controversies take place.
3
THE LOCAL GOVERNMENT CODE OF 1991: SALIENT FEATURES /4
Declaration of State Policy over LGU’s
I. Guarantee genuine and meaningful local autonomy to local government
units or political and territorial subdivisions;
Local Autonomy – is “self governing.” It is the granting of more
powers, authority, responsibilities and resources to the lower or local
levels of a government system. The principle of local autonomy under the
1987 Constitution simply means decentralization. It does not make the
local government sovereign within the state or an “imperium in imperio.”
(Basco vs. PAGCOR, 197 SCRA 52)
Under the Philippine concept of local autonomy, the national
government has not completely relinquished all its powers over local
governments, including autonomous regions. Only administrative powers
over local officers are delegated to political subdivisions. The purpose of
delegation is to make governance more directly responsive and effective at
the local levels. Policy-setting for the entire country still lies in the
President and Congress. Municipal governments are still agents of the
national government. (Pimentel vs. Aguirre, 336 SCRA 201)
The Supreme Court, in Leynes vs. COA, 418 SCRA 180, upheld the
power of the local government units to grant allowances to judges and
leaving to their discretion the amount of allowances they may want to
grant, depending on the availability of local funds if only to ensure the
genuine and meaningful local autonomy of the local government units.
Section 3, paragraph (e) of the Local Budget Circular, by
outrightly prohibiting LGU’s from granting allowances to judges
whenever such allowances are (1) also granted by the national government
or (2) similar to the allowances granted by the national government,
violates Section 447 (a) (1) (xi) of the Local Government Code of 1991.
Likewise, it is elementary in statutory construction that an administrative
circular cannot supersede, abrogate, modify or nullify a statute. (Ibid.)
In affirming the constitutionality of the power of LGU’s to
reclassify areas through a zoning ordinance, the Court ruled: “The least we
can do to ensure genuine and meaningful local autonomy is not to force an
interpretation that negates powers explicitly granted to local governments.
To rule against the power of LGU’s to reclassify areas within their
jurisdiction will subvert the principle of local autonomy guaranteed by the
Constitution. As we have noted in earlier decisions, our national officials
should not only comply with the constitutional provisions on local
autonomy but should also appreciate the spirit and liberty upon which
these provisions are based.” (SJS vs. Atienza, 545 SCRA 92)
The State is mandated to ensure local autonomy of local
governments, and local governments are empowered to levy taxes, fees
and charges that accrue exclusively to them, subject to congressional
guidelines and limitations. (City of Davao vs. RTC Br XII, Davao City,
467 SCRA 280)
Decentralization has three (3) forms:
1. Devolution – is the transfer of power and authority from the national
government to LGU’s as the territorial and political subdivisions of the
State. The nature of power transfer is political and the approach is
territorial or areal. Under the Local Government Code, the term
“devolution refers to the act by which the national government confers
powers and authority upon the various local government units to perform
specific functions and responsibilities. (Plaza II vs. Cassion, 435 SCRA
294 and Republic v. Daclan, GR No.197115, March 23, 2015 ) It includes
the transfer to local government units of the records, equipment, and other
assets and personnel of national agencies and offices corresponding to the
devolved powers, functions and responsibilities.
2. Deconcentration – is the transfer of power, authority or responsibility, or
the discretion to plan, decide and manage from central point or local
levels, but within the central or national government itself. The nature of
transfer is administrative and the approach is sectoral.
3. Debureaucratization – is the transfer of some public functions and
responsibilities, which the government may perform, to private entities or
non-governmental organizations; it is people’s empowerment or
participation in local governance.
Decentralization of Administration (Administrative Decentralization) –the
central government delegates administrative powers to political subdivisions in
order to broaden the base of government power.
Decentralization of Power (Political Decentralization) – involves abdication of
political power in favor of LGU’s declared autonomous. (Limbonas vs. Mangelin,
170 SCRA 786)
Among the regulatory powers of National Government Agencies
(NGA’s) transferred or devolved to the LGU’s include the following:
1) the reclassification of agricultural lands – DAR to cities & municipalities
2) enforcement of environmental laws – DENR to all LGU’s
3) inspection of food products and quarantine – DOH to cities &
municipalities
4) the enforcement of the National Building Code – DPWH to cities &
municipalities
5) the processing and approval of subdivision plans - HLURB to cities and
municipalities
6) the operation of tricycles- LTFRB to cities & municipalities
Under Sections 129 and 133 of the LGC, empowering the local
government units to create sources of revenue and, in particular, to collect
registration fees and charges, the power of the Land Transportation Office to
register tricycles and to issue licenses for the drivers thereof, has not been
devolved to the local government units. What was devolved is the franchising
authority of the Land Transportation Franchising and Regulatory Board over the
operation of tricycles but not the authority of the LTO to register all motor
vehicles (including tricycles) and to issue to qualified persons the license to drive
such vehicles. (LTO vs. City of Butuan, 332 SCRA 805)
7) the establishment of cockpits and holding of cockfights - Philippine
Gamefowl Commission to cities & municipalities
The Local Government Code did not fully devolve the enforcement of the
small-scale mining law to the provincial government, as its enforcement is subject
to the supervision, control and review of the DENR, which is in charge, subject to
law and higher authority, of carrying out the State’s constitutional mandate to
control and supervise the exploration, development, utilization of the country’s
natural resources. (League of Provinces of the Philippines v. DENR,GR No.
175368, April 11, 2013) Since the DENR Secretary has power of control as
opposed to the power of supervision, he had the power to affirm with
modification the Provincial Mining Regulatory Board. (MISSMA v. South
Mindanao Gold Mining Corp., GR No. 149638, December 10, 2014)
Among the basic services and facilities devolved to LGU’s include:
For a Barangay:
1. Agricultural support services
2. Health and social services, ie, barangay health center, day care center
3. Maintenance of katarungang pambarangay
4. Maintenance of barangay roads and bridges and water supply systems
5. Infrastructure facilities, ie, multi-purpose hall, plaza, sports center
6. Information and reading center
For a municipality:
7. Agricultural extension and on-site research of the Department of
Agriculture;
8. Community-based forestry project of the DENR;
9. Health services, ie, primary health care, maternal and child care
10. Social welfare services
11. Solid waste disposal system or environmental management system and
services
12. Municipal buildings, cultural centers, public parks
13. Public markets, slaughterhouses, public cemetery
14. Sites for police and fire stations and substations and the municipal jail
15. The school building program of the DECS;
16. Social welfare services of the DSWD
For a Province:
17. Agricultural extension and on-site research services and facilities
18. Field health and hospital services and other tertiary health services of the
DOH;
19. Public works and infrastructure projects funded out of provincial funds of
the DPWH;
20. Tourism facilities and tourism promotion and development of the DOT;
21. Telecommunication services for provinces and cities of the DOTC;
22. Housing projects for provinces and cities, and
23. Other services such as investment support.
In Pimentel v. Ochoa, GR No. 195770, July 17, 2012, petitioners argued
that the P21 Billion CCTP Budget be directly allocated to the LGU’s so that it
would have enhanced the delivery of basic services and not result in the
“recentralization” of basic governmental functions. The Supreme Court, however,
affirmed DSWD’s full control over the identification of beneficiaries in the CCTP
and the manner by which the services are to be delivered or conditionalities are to
be complied with. This is not contrary to the precepts of local autonomy.
How Local Autonomy Enhances Governmental
and Corporate Powers of LGU’s
Every local government unit shall have:
1. Full autonomy in their exercise of proprietary rights and management of
economic enterprises.
2. Full authority to secure domestic or foreign grants without the approval of
the NGAs concerned, unless these are projects with national security
implications, and
3. Financial undertakings for LGUs for mutual advantage thru loans and
assistance to calamity-stricken LGU
II. Ensure accountability of LGU’s through institution of effective

mechanisms of recall, initiative and referendum;
1.
INITIATIVE is the process by which the registered voters directly propose

amendments to the constitution or to propose, enact, amend laws, national or
local, through an election called for the purpose. Local initiative is the legal
process whereby the registered voters of a local government unit may directly
propose, enact, or amend any ordinance. Initiative is a process of law-making by
the people themselves without participation of their elected representatives. (Subic
Bay Metropolitan Authority vs. COMELEC, 262 SCRA 492)
REFERENDUM is the submission of a law passed by the national or local
legislative body to the registered voters at an election called for the purpose for
their ratification or rejection.
RECALL is a method by which a local elective official may be removed
from office during his tenure or before the expiration of his term by a vote of the
people after registration of a petition signed by a required percentage of the
qualified voters. RA 9244 effectively amended Section 70 of the Local
Government Code and thus, eliminated the preparatory recall assembly as one of
the modes of initiating recall and provided for a new procedure in the conduct of
recall initiated through written petition of registered voters.
VI. Require all national agencies and offices to conduct periodic
consultation with appropriate LGU’s, NGO’s and People’s
Organizations and other concerned sectors of community before any
project or program is implemented in their respective jurisdiction.
Application of the Policy. Under the Local Government Code, two
requisites must be met before a national project that affects the environmental and
ecological balance of local communities can be implemented: (1) prior
consultation with the affected local communities and (2) prior approval of the
project by the appropriate sanggunian. Absent either of these mandatory
requirements, the project implementation is illegal. (Province of Rizal vs.
Executive Secretary, 477 SCRA 436)
The prior approval of local government units affected by the proposed
conversion of a Timber License Agreement (TLA) into an Integrated Forest
Management Agreement (IFMA) is necessary before any project or program can
be implemented by government authorities that may cause depletion of no-
renewable resources, loss of crop land, rangeland or forest cover, and extinction
of animal or plant series. (Alvarez vs. PICOP Resources, 508 SCRA 498)
When the Policy Does Not Apply. The requirement of prior consultation
applies only to national projects and/or programs which are to be implemented in
a particular local community. Although sanctioned by the national government,
the operation of lotto is neither a program nor project of the national government
but of charitable institution, the Philippine Charity Sweepstakes Office. The
projects and programs mentioned in Section 27 should be interpreted to mean
projects and programs whose environmental and ecological effects are among
those mentioned in Sections 26 and 27 of the LGC. (Lina vs. Pano, GR No.
129093, August 30, 2001)
In Paje v. Casino, GR No.207257, February 3, 2015, it was held that the
power to approve or disapprove projects within the SEEZ is one such power over
which the SBMA’s authority prevails over LGU’s autonomy. Hence there is no
need for the SBMA to secure the approval of the concerned sanggunians prior to
the implementation of the subject project. This interpretation is based on the
broad grant of powers to the SBMA over all administrative matters relating to the
SEEZ under Section 13 of 7227. Equally important, under Section14, other than
those involving defense and security, the SBMA’s decision prevails in case of
conflict between the SBMA and the LGUs in all matters concerning the SEEZ.
The Court finds that the implementation of the project is not subject to the prior
approval of the concerned sanggunians, under Section 27 of the LGC, and the
SBMA’s decision to approve the project prevails over the apparent objections of
the concerned sanggunans of the lGUs, by virtue of the clear provisions of RA
7227. Thus, there was no infirmity when the LDA was entered into between
SBMA and RP Energy despite the lack of approval of the concerned sanggunians.
--o0o--
III. INTERGOVERNMENTAL RELATIONS
1. National Government and Local Government Units

While the Constitution guarantees autonomy to local government
units, the exercise of local autonomy remains subject to the power of
control by Congress and the power of supervisions by the President. Thus
Section 4, Article X of the Constitution provides that the President of the
Philippines shall exercise general supervision over local governments.
Section 25 of the Local Government Code also provides that the
President shall exercise general supervision over local government units.
i. The President shall exercise supervisory authority directly over
provinces, highly urbanized cities and independent component
cities.
ii. The President shall exercise supervision over component cities and
municipalities, through province, and over barangays through city
and municipality.
Consistent with the principle of local autonomy, the Constitution
confines the President’s power over LGU’s to one of general supervision.
This provision has been interpreted to exclude the power of control.
(Province of Batangas vs. Romulo, 429 SCRA 736)
In administrative law, supervision means overseeing or the power
or authority of an officer to see that subordinate officers perform their
duties, and if the latter fails or neglects to fulfill them, the former may take
such action or step as prescribed by law to make them perform their
duties. Supervisory power, when contrasted with control, is the power of
mere oversight over an inferior body – it does not include any restraining
authority over such body. The heads of political subdivisions are elected
by the people. Their sovereign powers emanate from the electorate, to
whom they are directly accountable. By constitutional fiat, the heads of
political subdivisions are subject to the President’s supervision only, not
control, so long as their acts are exercised within the sphere of their
legitimate powers, and by the same token, the President may not withhold
or alter any authority or power given them by the Constitution and the law.
(Pimentel vs. Aguirre, 336 SCRA 201)
The President can only interfere in the affairs and activities of a
local government unit if he or she finds that the latter has acted contrary to
law. This is the scope of the President’s supervisory powers over local
government units. Hence, the President or any of his alter egos cannot
interfere in local affairs as long as the concerned local government unit
acts within the parameters of the law and the Constitution. Any directive
therefore by the President or any of his alter egos seeking to alter the
wisdom of a law-conforming judgment on local affairs of a local
government unit is a patent nullity because it violates the principle of local
9
INTERGOVERNMENTAL RELATIONS /10
autonomy and separation of powers of the executive and legislative

departments in governing municipal corporations. (Ibid.)
In the case of Dadole vs. Commission on Audit, GR No. 125350,
December 3, 2002, the Supreme Court also declared void Local Budget
Circular 55 for infringing on the local autonomy by dictating a uniform
amount that a local government unit can disburse as additional
allowances to judges stationed therein.
The said circular is an inappropriate way of enforcing the criterion
found in Section 458, par (a)(1)(xi) of RA 7160 and not supported by any
law. The DBM overstepped its power of supervision over local
government units by imposing a prohibition that did not correspond with
the law it sought to implement. The prohibitory nature of the circular had
no legal basis. It is also void on account of its lack of publication.
Power of Control and Power of General Supervision

Over LGU’s Distinguished
Power of Power of General
Control Supervision
1. As to
nature of legislative Executive
power
2. As to who President
exercises Congress Assisted by the
the power DILG Secretary
*Creation, conversion of *Oversee whether LGU”s
LGU’s and alteration of are performing their
its boundaries; duties in accordance
*Allocate powers, respon- with law;
sibilities and resources
*Investigate and impose
among LGU’s;
disciplinary measures
*Provide for qualifica- (suspension or removal)
tions, election, appoint- upon erring elective
3. As to what ment, removal, term,
the power local government
salaries and functions & officials.
includes duties of local officials;
*Provide for other matters *concurrent power to
relating to the organi- impose preventive sus-
zation and operation of pension upon elective
LGU’s local government
*Amendment of charters officials
of LGU’s
Other distinctions
The distinction between the two powers was enunciated in Drilon vs. Lim:
An officer in control lays down the rules in the doing of an act. If they are not
followed, he may, in his discretion, order the act undone or re-done by his
subordinates or he may even decide to do it himself. Supervision does not cover
such authority. The supervisor or superintendent merely sees to it that the rules
are followed, but he himself does not lay down such rules, nor does he have
discretion to modify or replace them. If the rules are not observed, he may order
the work done or re-done but only to conform to the prescribed rules. He may not
prescribe his own manner for doing the act. He has no judgment on this matter
except to see to it that the rules are followed.
By constitutional fiat, the heads of political subdivisions are subject to the
President’s supervision only, not control, so long as their acts are exercised within
the sphere of their legitimate powers, and by the same token, the President may
not withhold or alter any authority or power given them by the Constitution and
the law. (Pimentel vs. Aguirre, 336 SCRA 201) Also, the DBM, by issuing Local
Budget Circular 55 which dictated a uniform amount that an LGU can disburse as
additional allowance to judges stationed therein, overstepped its power of
supervision over LGU’s by imposing a prohibition that did not correspond with
law it sought to implement. (Dadole vs. COA, GR No. 125350, December 3,
2002)
Power of Supervision Over Liga. The President’s power of general
supervision, as exercised by the DILG Secretary as his alter ego, also extends to
the Liga ng mga Barangay. It is not subject to control by the Chief Executive or
his alter ego. Hence, when respondent judge appointed the DILG as interim
caretaker to manage and administer the affairs of the Liga, she effectively
removed the management from the National Liga Board and vested control of the
Liga on the DILG. The acts of the DILG went beyond the sphere of general
supervision and constituted a direct interference with the political affairs not only
of the Liga, but more importantly of the barangay as an institution. What the
DILG wielded was the power of control which even the President does not have.
(National Liga ng mga Barangay vs. Paredes, 439 SCRA 130)
General Responsibilities of the National Government towards LGU’s

a. Formulate policies and set standard and guidelines;
In Villafuerte v. Robredo, GR No. 195, December 10 2014, it was
held the memorandum circulars pertaining to the full disclosure of local
budget and finances, and bids and public offerings; to the use of the 20%
component of the annual internal revenue allotment shares; and to the
strict adherence to Section 90 of the General Appropriations Act of 2011
are constitutional and issued without grave abuse of discretion and not
violative of the principles of local and fiscal autonomy. The Constitution
strongly summoned the State to adopt and implement a policy of
disclosure of all transactions involving public interests and provide the
people with the right to access public information. It is a mechanism of

transparency and accountability of local government officials and it is in
fact incorporated under Chapter IV of the LGC.
b. Provide funding support;
c. Augment basic services assigned to LGUs;
d. Provide technical and other forms of assistance and coordinate on the
discharge of NGA functions;
e. Ensure the participation of LGUs in planning and implementing national
projects, and
f. Conduct mandatory consultations with LGUs.
Extent of the LCE’s Authority over NGA’s and their Functionaries
a. The LCE can call upon any employee stationed or assigned in his locality
to advise him on matters affecting the LGU as well as coordinate with said
officials, plans, programs and projects.
b. The LCE can enlist the attendance of the national official stationed in the
LGU on a meeting of elective and appointed officials of the LGU treating
matters in the promotion of the general welfare of the residents.
c. The LCE can also initiate proper administrative or judicial action against
national government official or employee who may have committed an
offense while stationed or assigned in the LGU.
2. Inter-Local Government Relations

Delegated power of supervision
a. The province, through the governor, shall ensure that every
component city and municipality acts within its powers. (Sec. 29,
LGC)
b. The city or municipality, through the mayor, shall ensure that
barangays act within the scope of their powers. (Sec. 32, LGC)
c. Under RA 6734, executive power in the ARMM is vested in the
Regional Governor, who has control of all the regional executive
commissions, board, bureaus and offices, and exercises general
supervision over the local government units within the
Autonomous Region. (Arimao vs. Taher, 498 SCRA 74)
Power to Review Executive Orders & Ordinances
a. The governor shall review all executive orders promulgated by the
mayor
b. The mayor shall review all executive orders promulgated by the
punong barangay. (Sec. 30, LGC)
c. Review of component city and municipal ordinances by the
Sangguniang Panlalawigan (Sec. 56, LGC)
d. Review of barangay ordinances by the Sangguniang Panlungsod or

Sangguniang Bayan. ((Sec.57, LGC)
Disciplinary Powers
As part of its delegated power of general supervision, the
Sangguniang Panlalawigan of a province exercises the quasi-judicial
function (administrative disciplinary authority) of hearing and deciding
administrative cases involving elective municipal officials, but not
independent component city officials, under their jurisdiction.
In turn, the Sangguniang Panlungsod and Sangguniang Bayan
exercise disciplinary authority over elective barangay officials within their
jurisdiction. The Governor, upon the recommendation of the Sangguniang
Panlalawigan, and the City/Municipal Mayor, upon the recommendation
of the Sangguniang Panlungsod/Bayan, may impose preventive suspension
upon local elective officials falling under their delegated administrative
jurisdiction.
3. Relations with PO’s and NGO’s

Section 23, Article II provides that it is the policy of the State to
encourage non-governmental, community-based, or sectoral organizations
that promote the welfare of the nation.
a. Debureaucratization: Private Sector Participation In Local
Governance
Purpose: to ensure the viability of local autonomy as an alternative
strategy for sustainable development. LGUs shall encourage
private- sector participation in the delivery of basic services.
b. Role of PO’s, NGO’s in the LGU’s:
LGUs shall promote the establishment and operation of people’s
and non-governmental organizations as active partners.
c. LGUs may enter into joint venture and cooperative undertakings
with people’s and non-governmental organizations particularly in
the following:
1. delivery of certain basic services;
2. capability building and livelihood projects, and
3. developing local enterprises designed to improve
productivity and income, diversifies agriculture, spur rural
industrialization; and enhance the economic and social
well-being of the people.
Special Local Bodies where the Private Sector

may Participate in Local Governance
1. Local Development Council
– a duly constituted body which shall assist the corresponding
Sanggunian in setting the direction of economic and social development,
and coordinating development efforts in its territorial jurisdiction.
Relationship of the LDC with the Sanggunian and RDC:
-All programs and policies proposed by the Local Development Council
shall be submitted to its Sanggunian for appropriate action.
-The local development plans approved by the Sanggunian may be
integrated with those of the next higher level of the Local Development
Council.
-All approved local development plans shall be submitted to the Regional
Development Council which shall be integrated into the regional
development plan to be submitted to the National Economic Development
Authority.
-The Department of Budget and Management shall provide the Local
Development Councils the information on applicable financial resources
and budget allocations to guide their planning.
2. Prequalifications, Bids and Awards Committee (PBAC)
-Primarily responsible for the conduct of prequalification of contractors,
bidding, evaluation of bids, and the recommendation of awards concerning
local infrastructure projects.
3. Local Peace and Order Council, pursuant to EO No. 309, as amended,
Series of 1988.
4. Local School Board
Functions:
1) determine the annual supplementary budget needs for operating and
maintaining public schools;
2) serve as advisory committee on educational matters to the Sanggunian;
3) recommend changes in the names of public schools within the
territorial jurisdiction of the LGU for enactment of the Sanggunian
concerned and
4) authorize local treasurers to distribute funds pursuant to the budget
prepared in accordance with existing rules and regulations.
The DECS shall consult the Board on the appointment of division
superintendents, district supervisors, school principals, and other school
officials. However, the requirement in Section 99 of the LGC of prior
consultation with the local school board does not apply to a mere
designation of a schools division superintendent which partakes the nature
of reassignment. It only refers to appointments made by the DECS. (Osea
vs. Malaya, 375 SCRA 285)
The following shall be given priority in the annual school board

budget:
1) construction, repair and maintenance of school buildings
and other facilities of public elementary and secondary
schools;
2) establishment and maintenance of extension classes where
necessary; and
3) sports activities at the division, district, municipal and
barangay levels.
The Special Education Fund may be expended only for salaries and
personnel related benefits of teachers appointed by the local school board
in connection with the establishment and maintenance of extension class.
Extension classes are referred to mean additional classes needed to
accommodate all children of school age deserving to enter in public
schools to acquire basic education.
Likewise, the local Government Code reveals that expenses for
college scholarship grants are not among the projects for which the
proceeds of the SEF may be appropriated. While Secs. 100 c and 272 of
the LGC reproduced Sec. 1 of RA No. 5447, the granting of scholarship to
poor but deserving students was omitted in Secs. 100 c and 272 of the
LGC. (COA vs. Province of Cebu, GR No. 141386, November 29, 2001)
5. Local Health Board

Functions:
1) propose to the Sanggunian the annual budgetary allocation for
health services according to the DOH criteria;
2) serve as advisory committee on the health to the Sanggunian; and
3) create its own advisory committees to advise local health agencies
on personnel selection and discipline, budget review, operations
review, bids and awards, grievances and complaints and similar
functions according to technical and administrative standards of
the DOH.
6. People’s Law Enforcement Board (PLEB)

– a local disciplinary body for erring police officers. (RA 6975)
--o0o—
IV. CREATION, CONVERSION, DIVISION, MERGER AND
CONSOLIDATION, AND ABOLITION OF LGU’s
Creation of LGU’s
A local government unit may be created, divided, merged, abolished, or its
boundaries substantially altered by law enacted by Congress in the case of a
province, city, municipality, or other political subdivisions, or by Sanggunian
Panlalawigan (provincial) or Sangguniang Panlungsod (city) ordinance in the case
of a barangay. (Sec. 6) The nature of the power to create LGU’s is basically
legislative, hence it is conferred by the Constitution upon Congress and delegated
to the Sangguniang Panlalawigan and Sangguniang Panlungsod with respect to
the creation of barangays. The President has no power to create local government
units. (Municipality of Kapalong vs. Moya, 166 SCRA 70).
While the power to create barangays has been delegated to Sanggunian
Panlalawigan and Sangguniang Panlungsod, Congress, in order to enhance the
delivery of basic services in indigenous cultural communities, may create
barangays in such communities notwithstanding the requirements set forth by law.
[Sec. 385(a), LGC]
The creation or conversion of a local government unit to another level
shall be based on the following verifiable indicators of viability and projected
capacity to provide services:
a. Sufficient income and
b. Population and/or
c. Land Area
Compliance with the above-cited indicators shall be attested by the
Department of Finance, the National Statistics Office and the Lands Management
Bureau of the Department of Environment and Natural Resources, respectively.
Necessity of Fixing Corporate Limits

As a matter of general rule, municipal corporations cannot, without legal
authorization, exercise its powers beyond its own corporate limits. It is necessary
that it must have its boundaries fixed, definite and certain, in order that they may
be identified and that all may know the exact scope or section of territory or
geographical division embraced within the corporate limits and over which the
municipal corporation has jurisdiction.. A description of the boundaries of a
municipal corporation is said to be an essential part of its charter and necessary to
corporate existence. An incorporation is void where the boundaries of the
municipal corporation are not described with certainty (2 Mc Quillin, Mun. Corp.
3rd Ed. 256).
Any uncertainty in the boundaries of local government units will sow
costly conflicts in the exercise of governmental powers which ultimately will
prejudice the people’s welfare. (Pasig City vs. COMELEC, 314 SCRA 179)
16
CREATION, CONVERSION, DIVISION, MERGER,
CONSOLIDATION AND ABOLITION OF LGU’s /17
The requirement that the territory of newly created local government units
be identified by metes and bounds is intended to provide the means by which the
area of the local government unit may be reasonably ascertained, i.e., as a tool in
the establishment of the local government unit. (Mariano vs. COMELEC, 242
SCRA 211)
Creation of Barangays
Role of Barangays. As basic political unit, the barangay serves as the
primary planning and implementing unit of government policies, plans, programs,
projects and activities in the community, and as a forum wherein the collective
views of the people may be expressed, crystallized and considered, and where
disputes my be amicably settled. (Sec. 384, LGC)
Who Creates Barangays. A barangay may be created, divided, merged,
abolished or its boundary substantially altered by law or by an ordinance of the
Sangguniang Panlalawigan or Sangguniang Panlungsod. Where a barangay is
created by an ordinance of the Sangguniang Panlalawigan, the recommendation of
the Sangguniang Bayan concerned shall be necessary. Congress, in order to
enhance the delivery of basic services in indigenous cultural communities, may
create barangays in such communities notwithstanding the requirements set forth
by law. [Sec. 385(a), LGC] Under RA 9054, the Regional Legislative Assembly
of the Autonomous Region of Muslim Mindanao is now empowered to create
barangays within its territorial jurisdiction.
Substantive Requisites. 1) Population - at least 2,000 inhabitants
except in cities and municipalities within Metro Manila and other metropolitan
political subdivisions or in highly urbanized cities where such territory shall have
a certified population of at least 5,000 inhabitants; 2) Income – no minimum
income requirement; and 3) Land Area – no minimum requirement, but it must
be contiguous. The same need not be contiguous if the barangay is comprised of
two or more islands. In Herrera vs. COMELEC, 318 SCRA 336, the Supreme
Court said that “contiguous” and/or “adjacent” means “adjoining, nearby,
abutting, having a common border, connected, and/or touching along boundaries
often for considerable distances.”
The creation of the new barangay shall not however reduce the population
of the original barangay to less than the minimum requirement prescribed in the
Code. (Sec. 386, LGC)
A case involving a boundary dispute between local government units
presents a prejudicial question which must first be decided before plebiscites for
the creation of the proposed barangays may be held. (Pasig City vs. COMELEC,
314 SCRA 179)
Creation of Municipalities
Role of Municipalities. The municipality consisting of a group of
barangays, serves primarily as a general purpose government for the coordination
and delivery of basic, regular and direct services and effective governance of the
inhabitants within its territorial jurisdiction. Sec. 440, LGC)
Who Creates Municipality. A municipality may be created, divided,
merged, abolished or its boundary substantially altered only by an act of
Congress, subject to the criteria established in the Code. (Sec 441, LGC)
Likewise, under RA 9054, the Regional Legislative Assembly of the Autonomous
Region of Muslim Mindanao is now conferred with the power to create
municipalities within its territorial jurisdiction.
The President has no power to create local government units.
(Municipality of Kapalong vs. Moya, 166 SCRA 70). However, in Municipality of
San Narciso vs. Mendez, 239 SCRA 11, the validity of the creation of the
Municipality of San Andres by the President through an executive order pursuant
to Sections 68 and 2630 of the Revised Administrative Code was upheld by the
Supreme Court. Even if Executive Order No. 353 creating the Municipality of San
Andres is a complete nullity for being the result of an unconstitutional delegation
of legislative power, the peculiar circumstances obtaining in the case hardly could
offer a choice other than to consider the Municipality to have at least attained the
status of a de facto municipal corporation.
FIRST, on technical grounds:
(a) Suit not brought by the proper party. When the inquiry is
focused on the legal existence of a body politic, the action is
reserved to the State in a proceeding for quo warranto. It must
be brought in the name of the Republic of the Philippines and
commenced by the Solicitor General. While the quo warranto
filed by the Municipality of San Narciso has so named only the
officials of the Municipality of San Andres as respondents, it is
virtually however, a denunciation of the authority of the
Municipality or Municipal district of San Andres to exist and to
act in that capacity; and
(b) Prescription. It was only after almost thirty (30) years that
petitioner San Narciso finally decided to challenge the legality
of EO 353. In the meantime, the Municipal District and later
the Municipality of San Andres began and continued to
exercise the power and authority of a duly created local
government unit. Section 16, Rule 66 of the Rules of Court
which sets a five-year limitation for filing a quo warranto
action if its purpose is to bring about the “forfeiture of charter”
of a corporation, that period to be counted from the time the act
complained of was done or committed.
SECOND, certain governmental acts pointed to the State’s recognition of

the municipality:
(a) Executive Order No. 174 classified it as a fifth class municipality;
(b) pursuant to the Judiciary Act, the municipality was included in
the establishment of Municipal Circuit Courts;
(c) under the ordinance appended to the Constitution apportioning the
seats in the House of Representatives, the municipality was
included in the third district of the Province of Quezon.
(d) Section 442 (d) of the Local Government Code provides that
municipal districts created by executive orders shall be considered
as regular municipalities. Congress exercised its power to create
political subdivisions when it incorporated Section 442 (d) in the
Local Government Code. This is a curative law which is
retrospective and aimed at giving validity to acts that were invalid
under existing law.
Likewise, in Municipality of Jimenez vs. Baz, 265 SCRA 182, the

Supreme Court ruled that where a municipality created as such by executive order
is later impliedly recognized and its acts are accorded validity, its creation can no
longer be questioned. A municipality has been conferred the status of at least a de
facto municipal corporation where its legal existence has been recognized and
acquiesced publicly and officially.
However, in Camid vs. Office of the President, 448 SCRA 711, the
Supreme Court ruled that Section 442 (d) of the Local Government Code does not
serve to affirm or reconstitute the judicially dissolved municipalities such as
Andong in Lanao del Sur which had been previously created by presidential
issuances or executive orders. The provision affirms the legal personalities only of
those municipalities such as San Andres of Quezon which may have been created
using the same infirm legal basis, yet were fortunate enough not to have been
judicially annulled. On the other hand, the municipalities challenged in actual
cases before the Supreme Court and subsequently judicially dissolved in cases
such as Pelaez, San Joaquin and Malabang, remain inexistent unless recreated
through specific legislative enactments, as done with the eighteen (18)
municipalities certified by the DILG. These municipalities derived their legal
personality not from presidential issuances or executive orders which originally
created them or from Section 442(d) but from the respective legislative status
which were enacted to revive them. The legal effect of the nullification of Andong
in Pelaez was to revert the constituent barrios of the voided town back into their
original municipalities.
Substantive Requisites. 1) Average annual income of at least two

million five hundred thousand pesos for the last two consecutive years based on
the 1991 constant prices; 2) a population of at least twenty-five thousand
inhabitants; and 3) a contiguous territory 50 square kilometers. The creation of
the new municipality must not however reduce the income, population and land
area of the original municipality to less than the minimum requirement prescribed
in the Code. (Sec. 442, LGC)
Municipalities existing as of the date of the effectivity of the LGC shall
continue to exist and operate as such. Existing municipal districts organized
pursuant to presidential issuances or executive orders and which have their
respective elective set of elective municipal officials holding office at the time of
the effectivity of the LGC shall henceforth be considered as regular
municipalities. [Sec. 442 (d), LGC]
Creation of Component Cities
Role of Cities. The city, consisting of a group of barangays, serves
primarily as a general purpose government for the coordination and delivery of
basic, regular and direct services and effective governance of the inhabitants
within its territorial jurisdiction. (Sec. 448, LGC)
Who Creates Cities. A city may be created, divided, merged or
abolished, or its boundary substantially altered only by an act of Congress subject
to the criteria provided in the Code. Sec. 449, LGC) Thus, in Sema vs.
COMELEC, GR No. 177597, July 16, 2008, the power of the Regional Legislative
Assembly of the Autonomous Region of Muslim Mindanao under RA 9054, to
create cities within its territorial jurisdiction has been declared unconstitutional by
the Supreme Court.
Substantive Requisites. 1) Income – locally generated average annual
income of at least one hundred million pesos for the last two consecutive years (as
amended by RA 9009); and 2) Land Area – contiguous territory of at least one
hundred square kilometers; or 3) Population of at least one hundred fifty
thousand inhabitants. The creation of the city shall not however reduce the land
area, population and income of the original unit or units at the time of said
creation to less than the minimum requirements prescribed in the Code. [Sec.
452(a), LGC]
The territorial boundary of a local government unit must be defined with
precision, because any uncertainty in the boundaries of local government units
will sow costly conflicts in the exercise of governmental powers which will
prejudice the people. In enacting RA 7854, Congress did not define the territory
of Makati by metes and bounds and simply provided that the territory shall
comprise of the present territory of the Municipality of Makati. With existing
boundary dispute with Taguig under court litigation, Congress felt that the
resolution of the said boundary dispute be left to the courts to decide. (Mariano
vs. COMELEC, 242 SCRA 211)
Inasmuch as RA 9009 amended Section 450 of the Local Government

Code, the ruling of the Supreme Court in Alvarez vs. Guingona, 252 SCRA 695,
that the Internal Revenue Allotments (IRAs) shall be included in the computation
of the average annual income of the municipality for purposes of determining
whether the municipality may be validly converted into a city, is deemed
superseded by the amendatory law.
Modes of Creating Cities. Section 10, Article X of the Constitution
allows the merger of local government units to create a province, city,
municipality or barangay in accordance with the criteria established by the LGC.
Section 450(a) of the LGC which provides that a municipality or a cluster of
barangays may be converted into a component city is not a criterion but simply
one of the modes by which a city may be created. The creation of an entirely new
local government unit through a division or merger of existing local government
units is recognized under the Constitution, provided that such merger or division
shall comply with the requirements prescribed by the Code. Thus, a city may be
created by merging two municipalities even if one of the said municipalities
already qualifies to be upgraded to a component city. (Cawaling vs. COMELEC,
GR Nos. 146319 & 146342, October 26, 2001)
In League of Cities of the Philippines vs. COMELEC, GR No. 176951,
November 18, 2008) sixteen municipalities filed, through their respective
sponsors, individual cityhood bills which contained a common provision
exempting all of them from the P100 million minimum income requirement in RA
9009 which earlier amended the pertinent provision of the Local Government
Code . The cityhood bills lapsed into law (Cityhood Laws) on various dates from
March to July 2007 without the President’s signature. The League of Cities of the
Philippines filed a petition to declare the Cityhood Laws unconstitutional. The
Court initially ruled that the Cityhood Laws violate Sections 6 and 10 of Article X
of the Constitution, and are thus unconstitutional.
First, applying the P100 million income requirement to the present case is
a prospective, not retroactive application, because RA 9009 took effect in 2001
while the cityhood bills became law more than five years later.
Second, the Constitution requires that Congress shall prescribe all the
criteria for the creation of a city in the local Government Code and not in any
other law, including the Cityhood Laws.
Third, The Cityhood Laws violate Section 6, Article 10 of the
Constitution because they prevent a fair and just distribution of the national taxes
to the local government units.
Fourth, The criteria prescribed in Section 450 of the Local Government
Code, as amended by RA 9009, for converting a municipality into a city are clear,
plain and unambiguous, needing no resort to any statutory construction.
Fifth, even if the exemption in the Cityhood Laws were written in Section
450 of the local Government Code, the exemption would still be unconstitutional
for violation of the equal protection clause. To be valid, the classification in the
present case, must be based on substantial distinctions, rationally related to the
purpose o the law which is to prevent fiscally non-viable municipalities from
converting into cities. There is no substantial distinction between municipalities
with pending cityhood bills in the 11th Congress and municipalities that did not
have pending bills. The mere pendency of a cityhood bill in the 11 th congress is
not a material difference to distinguish one municipality from another for the
purpose of income requirement.
However, in December 21 2009, the Court abandoned and set aside the
Decision of November 18, 2008 subject of reconsideration and declared the
following:
(1) Congress intended the subject cityhood laws to be exempted from the
income requirement of PhP100M prescribed by RA 9009;
(2) The cityhood laws merely carry out the intent the intent of RA 9009,
now Sec. 450 of the of the LGC, to exempt respondent LGU’s from
the PhP100M income requirement;
(3) The exemption accorded the 16 municipalities is based on the fact that
each had pending cityhood bills long before the enactment of RA 9009
that substantially distinguish them from other municipalities aiming
for cityhood; and
(4) The operative fact doctrine provides another reason for upholding the
constitutionality of the cityhood laws in question. Under the doctrine,
an unconstitutional law is void, but its effects, prior to its judicial
declaration of nullity, may be left undisturbed as a matter of equity and
fair play.
Conversion of a Component City into a Highly Urbanized City
If a component city shall have met the minimum requirements for a highly
urbanized city, it shall be the duty of the President to declare the city as highly
urbanized city upon: (1) proper application and (2) upon ratification in a
plebiscite by the majority of registered voters therein. (Sec. 453, LGC)
Substantive Requisites. (1) A minimum population of two hundred
thousand inhabitants and (2) the latest annual income must be at least fifty
million pesos.
Creation of Provinces
Role of Provinces. A province, composed of cluster of municipalities, or
municipalities and component cities, and as a political and corporate unit of
government, serves as a dynamic mechanism for developmental processes and
effective governance of local government units within its territorial jurisdiction.
(Sec. 459, LGC)
Who Creates Provinces. A province may be created, divided, merged or
abolished, or its boundary substantially altered, only by an act of Congress,
subject to the satisfaction of the criteria set forth by the LGC. Thus, in Sema vs.
COMELEC, GR No. 177597, July 16, 2008, under RA 9054, the power of the
Regional Legislative Assembly of the Autonomous Region of Muslim Mindanao
to create provinces and cities within its territorial jurisdiction has also been
declared unconstitutional by the Supreme Court. The Court voided the creation of
the Province of Sharif Kabunsuan under MMA 201 enacted by the ARMM
Regional Legislative Assembly. Under RA 9054, or the Expanded Organic Act
for Muslim Mindanao, the Regional Legislative Assembly (RLA) has been
delegated the power to create barangays, municipalities and provinces. While
there is no constitutional prohibition for the ARMM RLA to create municipalities
and barangays within its territorial jurisdiction, this is not so in the case of the
creation of provinces and cities. The Court ruled that “… Section 19 of Article VI
of RA 9054, insofar as it grants to the ARMM Regional Legislative Assembly the
power to create provinces and cities, is void for being contrary to Section 5 of
Article VI of the Constitution and Section 20 of Article X of the Constitution, as
well as Section 3 of the Ordinance appended to the Constitution. The ARMM
Regional Legislative Assembly cannot create a province without a legislative
district because the Constitution mandates that every province shall have a
legislative district. Moreover, ARMM Regional Legislative Assembly cannot
enact a law creating a national office like the office of a district representative of
Congress because legislative power of the ARMM Regional Legislative
Assembly operates only within its territorial jurisdiction as provided in Section 20
of Article X of the Constitution…” (Ibid.)
Substantive Requirements. (1) Average annual income of at least
twenty million pesos; and (2) contiguous territory of at least two thousand square
kilometers, or (3) a population of not less than two hundred fifty inhabitants. The
creation of the new province shall not however reduce the land area, population
and income of the original unit or units at the time of the said creation to less than
the minimum requirements prescribed by the LGC. (Sec. 461, LGC)
BP 885, which created the Province of Negros del Norte was declared
unconstitutional because it did not comply with the land area criterion prescribed
under the LGC. The use of the word “territory” in Section 17 of the Local
Government Code refers only to the physical mass of land area, not to the waters
comprising a political entity. It excludes the waters over which the political unit
exercises control. (Tan vs. COMELEC, 142 SCRA 727
Likewise, in Navarro vs. Ermita, GR No. 180050, February 10, 2010,
declared the law creating the Province of Dinagat Islands unconstitutional, and the
election of officials thereof null and void. The provision of Article 9 (2) of the
Rules and regulations Implementing the Local Government Code of 1991 stating
“ The land area requirement shall not apply where the proposed province is
composed of one (1) or more islands” is declared null and void. While RA 9355
creating the province complied with the income requirement specified in the
Local Government Code, it failed to comply with either the territorial or the
population requirement for the creation of a province. It has an approximate land
area only of 802.12 square kilometers, more or less, including Hibuson Island and
approximately 47 islets, and failed to comply with the land area requirement of
2,000 square kilometers. Also, the NSO certified that Dinagat Islands had a total
population only of 120,813, which was still below the minimum requirement of
250,000 inhabitants. Moreover, there was a failure to prove that with the
population count of 371,000, the population of the original unit (mother unit of
Surigao del Norte) would not be reduced to less than the minimum requirement
prescribed by law at the time of the creation of the new province. NOTE: The
above February 10, 2010 Decision was reversed and set aside by the Supreme
Court (April 12, 2011) and ruled that the exemption in Article 9(2) of the LGC-
IRR is valid and should be deemed incorporated in the basic law, the LGC, as
Congress shows the clear legislative intent to incorporate it in the LGC. The IRR
was formulated by the Oversight Committee consisting of members of both the
Executive and Legislative Departments, pursuant to Section 533 of the LGC. The
IRR was formulated amounting not only to an executive construction, entitled to
great weight and respect from the Court, but to legislative construction as well.
Status of Sub-provinces
Existing sub-provinces are converted into regular provinces upon the
approval by a majority votes cast in a plebiscite to be held in the said sub-
province and the original province directly affected. (Sec. 462, LGC)
Summary of Substantive Requirements in the Creation of LGU’s

LGU Minimum Minimum Minimum
Created Income Population Land Area
2,000 but
Barangay No minimum 5,000 for Metro No minimum
Requirement Manila & highly Requirement
urbanized cities
Municipality PhP 2.5 M and 25,000, and 50 sq. kms.
Component PhP 100 M and 150,000 or 100 sq. kms.
City (locally generated)
Highly No minimum
Urbanized PhP 50 M and 200,000 Requirement
City
Province PhP 20 M and 250,000 or 2,000 sq. kms.
Division and Merger of LGU’s

The division and merger of local government units shall comply with the
same requirements for their creation. The income, population or land area shall
not be reduced to less than the minimum requirements. Likewise, the income
classification of the original local government unit or units shall not fall below its
current income classification prior to such division. (Sec. 8, LGC)
Autonomous Regions. The Philippine Constitution mandates the creation

of autonomous regions in Muslim Mindanao and in the Cordilleras consisting of
provinces, cities, municipalities, and geographical areas sharing common and
distinctive historical and cultural heritage, and economic and social structures,
and other relevant characteristics. Within the framework of the Constitution and
the national sovereignty as well as territorial integrity of the Republic of the
Philippines. (Sec. 15, Art. X, PC)
RA 6734, the organic act establishing the Autonomous Regional
Government of Muslim Mindanao was held valid by the Supreme Court. (Datu
Firdausi Abbas vs. COMELEC, 179 SCRA 287) However, the sole Province of
Ifugao which, in the plebiscite, alone voted in favor of RA 6766, cannot validly
constitute the Autonomous Region of the Cordilleras. (Ordillo vs. COMELEC,
192 SCRA 100)
Special Metropolitan Political Subdivisions. The Congress may, by
law, create special metropolitan political subdivisions, but the component cities
and municipalities shall retain their basic autonomy and shall be entitled to their
own local executives and legislative assemblies. The jurisdiction of the
metropolitan authority that will be thereby created shall be limited to basic
services requiring coordination. (Sec. 11, Art. X, PC)
With the passage of RA 7924 in 1995, Metropolitan Manila was declared
as a “special development and administrative region” and the administration of
“metrowide basic services affecting the region was placed under a “development
authority” referred to as the Metropolitan Manila Development Authority
(MMDA), whose functions were without prejudice to the autonomy of the
affected local government units. The law does not grant police nor legislative
powers to MMDA, even the Metro Manila Council, the governing board of the
MMDA has not been delegated any legislative power. Clearly, MMDA is not a
political unit. There is no grant of authority to enact ordinances and regulations
for the general welfare of the inhabitants of the metropolis. MMDA cannot open
for public use a private road in a private subdivision. (MMDA vs. Bel-Air Village
Association, Inc. GR No.135962, March 27, 2000).
In MMDA vs. Garin, the Supreme Court reiterated that RA 7924 does not
grant MMDA with police power, let alone legislative power and that all its
functions are administrative in nature. Accordingly, without any ordinance
enacted by the component cities and municipalities, it cannot confiscate driver’s
license for violation of traffic rules. However, if the MMDA acts pursuant to an
enacted law by a national agency providing well-defined guidelines for
implementation, the MMDA is not precluded from enforcing such; in fact it is
duty bound to do so. The power to enforce the provisions of the Building Code,
which the MMDA insisted, was lodged in the DPWH not in MMDA. There is
also no evidence showing that MMDA had been delegated by the DPWH to
implement the Building Code.
Likewise, in MMDA v. Tackworks Rail Transit Advertising, Vending and
Promotions Inc.,GR No.179554, December 16, 2009, it was ruled that the MMDA
cannot validly dismantle commercial billboards, signages and other advertising
media put up under a contract between the railroad company and MHL-T
advertising agency along MRT3 structure.
Beginning of Corporate Existence
When a new local government unit is created, its corporate existence shall
commence upon the election and qualification of its chief executive and a
majority of the members of the sanggunian, unless some other date is fixed
therefor by law or ordinance creating it. (Sec. 14, LGC)
Abolition of LGUs
A local government unit may be abolished when its income, population or
land area has been irreversibly reduced to less than the minimum standards
prescribed for its creation under the Local Government Code, as certified by the
national agencies to Congress or to the Sanggunian concerned. Likewise, the law
or, ordinance abolishing a local government unit shall specify the province, city,
municipality, or barangay with which the local government unit sought to be
abolished will be incorporated or merged. (Sec. 9, LGC)
General Effects of Annexation/Consolidation of LGUs
On the legal existence of the territory annexed. – Unless otherwise
provided for by law, the annexation of one municipal corporation to another will
dissolve the annexed territory. It shall become part of the annexing corporation
and will fall under the jurisdiction of the latter.
On the laws and ordinances of the annexed corporation. - In the
absence of any provision of law to the contrary, when a territory is annexed to a
municipal corporation, it shall become subject to all the laws and ordinances by
which the annexing corporation is governed.
On the title to the property of the annexed territory. - When a
municipal corporation is annexed to another, the annexing territory shall acquire
title to the property of the annexed territory at the time of annexation without
compensation unless the annexing statute provides otherwise. Where the annexed
territory, however, forms part of a municipality from which it is taken, the
legislature may provide for the payment of compensation for the indebtedness
incurred on account of the property taken. With regard to public buildings and
improvements located in the annexed territory, the annexing territory is not
required to pay for said buildings or improvements as they have already been
paid for by the annexed territory. It would be otherwise if there exists an
indebtedness on said buildings in which case, the annexing state may be required
to share in the payment of said indebtedness.
On the right of officers or employees of the annexed or consolidated
territory to continue to hold their offices. – Subject to what the legislature may
provide upon annexation, the officers and employees of the annexed or
consolidated territory shall terminate their official relation with their offices.
On the debts and obligations of the annexed territory. - It has been
stated that debts and obligations of a municipal corporation contracted before its
annexation to another territory shall be assumed by the annexing territory in the
absence of any provision to the contrary. The same rule applies of consolidation
where the consolidating municipal corporation is held responsible for the
indebtedness and obligations incurred by the territories which are consolidated.
General Effects of Division of LGUs
On the legal existence of the original corporation. – The division of
municipal corporation extinguishes the corporate existence of the original
municipality.
On the property, powers and rights of the original corporation. –
Unless the law provides otherwise, when a municipal corporation is divided into
two or more municipalities, each municipality acquires title to all the property,
powers, rights and obligations falling within its territorial limits. Personal
properties of the original corporation shall be equally divided between or among
the newly created units, while real properties shall be acquired by the unit where
it is situated.
Plebiscite Requirement
Substantial alteration of boundaries. Section 10 of the LGC provides
that the creation, division and merger, abolition or substantial alteration of the
boundaries of local government units must be approved by a majority of votes
cast in a plebiscite in the political unit or units directly affected. As the phrase
implies, “substantial alteration of boundaries” involves and necessarily entails a
change in the geographical configuration of a local government unit or units.
However, the phrase “boundaries” should not be limited to the mere physical one,
referring to the metes and bounds of the LGU, but also to its political boundaries.
It also connotes a modification of the demarcation lines between political
subdivisions, where the LGU’s exercise of corporate powers ends and that of the
other begins. And as a qualifier, the alteration must be “substantial” for it to be
within the ambit of the constitutional provision. (Umali v. COMELEC, GR No.
203974, April 22, 2014)
When Conducted. Section 10 of the LGC provides that the creation,

division and merger, abolition or substantial alteration of the boundaries of local
government units must be approved by a majority of votes cast in a plebiscite in
the political unit or units directly affected. Such plebiscite shall be conducted by
the COMELEC within 120 days from the date of the effectivity of the law, not
from its approval The word “approval” could only mean “effectivity” as used and
contemplated in Section of the Code. The completion of the publication of the law
(September 1, 2000) should be the reckoning point in determining the 120-day
period within which to conduct the plebiscite, not from the date of its approval
(August 16, 2000) when the law had not yet been published. Since publication is
indispensable for the effectivity of a law (Tanada vs. Tuvera, 146 SCRA 446)), a
plebiscite can be scheduled only after the law creating a city took effect.
(Cawaling vs. COMELEC, supra)
Sections 5 and 6 of BP 881, the Omnibus Election Code, provide the

COMELEC the power to set elections to another date. In Cagas v. COMELEC,
GR No. 209185, October 25, 2013, the Supreme Court upheld the COMELEC’s
broad power or authority to fix other dates for a plebiscite, as in special elections,
to enable the people to exercise their rights of suffrage. The COMELEC thus has
residual power to conduct a plebiscite even beyond the deadline prescribed by
law. In election law, the right of suffrage should prevail over mere scheduling
mishaps in holding elections or plebiscites.
Which Unit Shall Participate. General Rule: voters in the political unit
or units directly affected. Section 10, LGC) In case the creation is by reason of
division of a political unit, the plebiscite for the creation of a new province or
municipality shall include the participation of the residents of the mother province
or mother municipality in order to conform to the constitutional requirement.
(Padilla vs. COMELEC, 214 SCRA 735)
When the law says “the plebiscite shall be conducted in the areas affected”
this means that residents of the political entity who stand to be economically
dislocated by the segregation of a portion thereof must have the right to
participate in the said plebiscite… Logically, those to be included in such
plebiscite would be the people living in the area of the proposed new province and
those living in the parent province. Thus, BP 885, creating the Province of Negros
del Norte is declared unconstitutional because it excluded the voters of the mother
province from participating in the plebiscite. (Tan vs. COMELEC, 142 SCRA
727)
Conversion of municipality into a component city. In the conversion of a
municipality into a component city, however, only the registered voters of the
municipality sought to be converted into a component city, shall participate in the
plebiscite.
Upgrading of a component city into a highly urbanized city. In Umali v.

COMELEC, GR No. 203974, April 22, 2014, the Supreme Court treats the phrase
“by the qualified voters therein” in Section 453 of the Local Government Code, so
that the same will not clash with the explicit provision of Section 10, Article X
that the voters in the “political units directly affected” shall participate in the
plebiscite, to mean the qualified voters not only in the city proposed to be
converted to an HUC but also the voters of the political units directly affected by
such conversion in order to harmonize Sec. 453 with Section 10, Article X of the
Constitution.
In any event, any vote of disapproval cast by those directly
affected by the conversion is a valid exercise of their right to suffrage, and our
democratic processes are designed to uphold the decision of the majority,
regardless of the motive behind the vote. It is unfathomable how the province can
be deprived of the opportunity to exercise the right to suffrage in a matter that
is potentially deleterious to its economic viability and could diminish the rights
of its constituents. To limit the plebiscite to the only voters of the areas to be
partitioned and seceded from the province is as absurd and illogical as allowing
only the secessionists to vote for the secession that they demanded against the
wishes of the majority and to nullify the basic principle of the majority rule.
Economic impact of conversion. A component city’s conversion into an
HUC and its resultant autonomy from the province is a threat to the latter’s
economic viability. The income criterion for a component city to be converted
into an HUC is higher than the income requirement for the creation of a province.
The ensuing reduction in income upon separation would clearly leave a crippling
effect on the province’s operations as there would be less funding to finance
infrastructure projects and to defray overhead costs. Moreover, the quality of
services being offered by the province may suffer because of looming austerity
measures.
Political impact of conversion. Duties, privileges and obligations will
attach if it is converted into an HUC. This includes the right to be outside the
general supervision of the province and be under the direct supervision of the
President. An HUC is not subject to provincial oversight because the complex and
varied problems in an HUC due to a bigger population and greater economic
activity require greater autonomy. The provincial government stands to lose the
power to ensure that the local government officials act within the scope of its
prescribed powers and functions, to review the executive orders issued by the city
mayor, and to approve resolutions and ordinances enacted by the city council. The
appeal process for administrative case decisions against barangay officials of the
city will also be modified accordingly. Likewise, the registered voters of the city
will no longer be entitled to vote for and be voted upon as provincial officials.
In cutting the umbilical cord between city and province, the city will be
separated from the territorial jurisdiction of the province. The provincial
government will no longer be responsible for delivering basic services for the city
resident’s benefit. Ordinances and resolutions passed by the provincial council
will no longer cover the city. Projects queued by the provincial government to be
executed in the city will also be suspended if not scrapped to prevent the LGU
from performing functions outside the bounds of its territorial jurisdiction, and
from expending its limited resources for ventures that do not cater to its
constituents.
Necessity of Plebiscite
RA 8528 changing the status of Santiago from an independent component
city to a component city is unconstitutional for its failure to provide that said
conversion should be submitted to the people of Isabela in a proper plebiscite, as
required by Section 10, Article X of the 1987 Constitution. A close analysis of the
said constitutional, provisions will reveal that the creation, division, merger,
abolition or substantial alteration of boundaries of local government units involve
a common denominator – material change in the political and economic rights of
the local government units directly affected as well as the people therein.
(Miranda vs. Aguirre, GR No. 133064, September 16, 1999)
The Constitution imposes two conditions: (i) the creation, division,
merger, abolition or substantial alteration of boundary of local government unit
must meet the criteria fixed by the Local Government Code on income,
population and land area; and (ii) the law must be approved by the people “by
majority of the votes cast in a plebiscite in the political units directly affected.”
(id)
The requirements of income, population and land area in Sections 7, 8 and
9 of the Local Government Code are imposed to help assure the economic
viability of the local government unit concerned. They were not imposed to
determine the necessity of a plebiscite of the people. (id)
The changes that will result from downgrading the city of Santiago from
an independent component city are many and cannot be characterized as
insubstantial. For one, the independence of the city as a political unit will be
diminished. The city mayor will be placed under the administrative supervision of
the provincial governor. The resolutions and ordinances of the city council of
Santiago will have to be reviewed by the Provincial Board of Isabela. Taxes that
will be collected by the city will now have to be shared with the province. (id)
Reiterating the necessity of a plebiscite, the Supreme Court in Latasa vs.
COMELEC, 417 SCRA 601, ruled that substantial differences do exist between a
municipality and a city. For one, there is material change in the political and
economic rights of the local government unit when it converted from a
municipality to a city and undoubtedly, these changes affect the people as well. It
is precisely for this reason why Section 10 of Article X of the Constitution

mandates that no province, city, municipality, or barangay may be created,
divided, merged, abolished, or its boundary substantially altered without approval
by majority of votes cast in a plebiscite in the political units directly affected.
Prejudicial Question
A case involving a boundary dispute between local government units
presents a prejudicial question which must first be decided before plebiscites for
the creation of the proposed barangays may be held. Merely because a plebiscite
has already been held in regard to a propose barangay does not necessarily render
a pending petition for settlement of boundary dispute involving said barangay
moot and academic. (Pasig City vs. COMELEC, 314 SCRA 179)
Attack Against Invalidity of Incorporation

A quo warranto suit against a corporation for forfeiture for of its charter is
reserved to the State must be commenced within the reglementary period of 5
years from the act complained of was done or committed. (Municipality of
Jimenez vs. Baz, 265 SCRA 182).
--o0o--
V. POWERS OF LOCAL GOVERNMENT UNITS
Classifications
1. Express, implied and inherent
2. Public or governmental, private or proprietary
3. Intramural or extramural; and
4. Mandatory and directory; ministerial and discretionary
I. Governmental Powers of LGU’s

A. General Welfare - Sec. 16, LGC – Police Power .
The GENERAL WELFARE CLAUSE is the statutory grant of police
power to local government units. It has two branches: (1) the general legislative
power – authorizes the municipal council to enact ordinances and make
regulations not repugnant to law, as may be necessary to carry into effect and
discharge the powers and duties conferred upon by the municipal council by law;
and (2) the police power proper – authorizes the municipality to enact ordinances
as may be necessary and proper for the health and safety, prosperity, morals,
peace, good order, comfort and convenience of the municipality and its
inhabitants, and for the protection of their property.
Essential Requisites in the Valid

Exercise of Police Power by LGU’s
A local government unit is considered to have properly exercised its police
powers only when the following requisites are met – (1) the interests of the public
generally, as distinguished from those of a particular class, require the
interference of the State, and (2) the means employed are reasonably necessary
for the attainment of the object sought to be accomplished and not unduly
oppressive upon individuals. In short, there must be concurrence of a lawful
subject and lawful method. (SJS vs. Atienza, 545 SCRA 92) The first requirement
refers to the equal protection clause and the second, to the due process clause
of the Constitution.
Thus, a municipality failed to comply with the due process clause when it
passed a resolution recommending the closure or transfer of a gasoline filling
station maintaining that the same was lees than 100 meters away from the nearest
public school and church when the records do not show that it even attempted to
measure the distance, and that such distance was crucial in determining whether
there was an actual violation of the zoning ordinance. (Parayno vs. Jovellanos,
495 SCRA 85)
The following are limitations on the exercise of powers under the general
welfare clause:
1. Express grant by law (e.g., Secs. 16, 391, 447, 458 and 468, LGC)
2. Exercisable only within the territorial limits of the local government unit,
except for protection of water supply.
32
POWERS OF LOCAL GOVERNMENT UNITS /33
3. Equal protection clause. (The interests of the public in general, as

distinguished from those of a particular class, require the exercise of the
power.
4. Due process clause. (The means employed are reasonably necessary for
the accomplishment of the purpose and not unduly oppressive on
individuals.)
5. Must not be contrary to the Constitution and the laws.
The following are the requisites for the validity of a municipal ordinance:
1. must not contravene the Constitution and any statute;
2. must not be unfair or oppressive;
3. must not be partial or discriminatory;
4. must nor prohibit, but may regulate trade which is not illegal per se;
5. must not be unreasonable; and
6. must be general in application and consistent with public policy. (Solicitor
General vs. MMA, 204 SCRA 837; Magtajas vs. Pryce Properties, GR No.
111097, July 20, 1994 and Tatel vs. Municipality of Virac, 207 SCRA 157)
7. must not only be within the corporate powers of the city or municipality to
enact but must also be passed according to the procedure prescribed by
law. (Langcao vs. City of Cebu, 440 SCRA 279 and City of Manila vs.
Laguio, 455 SCRA 308))
VALIDITY OF ORDINANCES AND ACTS OF LGU’s

Appropriation Ordinance for the Poor
An ordinance extending burial assistance of P500 to a bereaved family
whose gross income does not exceed P2,000 a month, has been upheld by the
Supreme Court as a valid exercise of police power. This power is organic and
flexible. The care for the poor is generally recognized as a public duty. The
support for the poor has long been an accepted exercise of police power in the
promotion of common good. The police power of a municipal corporation is
broad and xxx commensurate with, xxx the duty to provide for the real needs of
the people in their health, safety, comfort, and convenience as consistently as may
be with private rights. It extends to all the great public needs and in a broad sense
includes all legislation and almost every function of the municipal government.
(Binay vs. Domingo 201 SCRA 508.)
Prohibiting Legalized Gambling
An ordinance prohibiting the issuance of a business permit to any
establishment allowing its premises to be used for the operation of a casino and
prohibiting the operation of a casino was declared by the Supreme Court
unconstitutional. The ordinance contravenes PD 1869, which authorizes the
PAGCOR to operate casino. PD 1869, which has the force and effect of a law,
should not be deemed to have been repealed by the LGC. Implied repeal are not
likely presumed. (Magtajas vs. Pryce Properties Corp. 234 SCRA 255)
Zoning Ordinance
The Supreme Court upheld the validity of a zoning ordinance reclassifying
an area as commercial despite contractual stipulation limiting the use of the parcel
of land to residential purposes which is annotated in the title thereof. The Local
Autonomy Act empowers a municipal council to adopt zoning and subdivision
ordinances or regulation. The exercise of this power need not be done through an
ordinance. A restriction in the contract cannot prevail over the zoning resolution,
because the enactment of the resolution is a valid exercise of police power. The
area where the two lots are located has become industrial and commercial.
Traffic, noise and pollution are not conducive to health, safety or welfare of the
resident. It would now be hazardous to health and comfort to use the lot for
residential purposes, since a highway crosses the subdivision. (Ortigas & CO vs.
Feati Bank 94 SCRA 533)
In United BF Homeowners’ Association, Inc. vs. The City Mayor of
Paranaque City, 515 SCRA 1, it was held that Ordinance NO. 97-08 providing for
the reclassification of certain portions of BF Homes Paranaque form residential to
commercial zone is reasonable and not discriminating or oppressive. It is also
constitutional because it does not impair the contracts between the developer of
BF Homes Paranaque and the lot buyers. The constitutional guaranty of non-
impairment of contracts is limited by the exercise of police power of the State, in
the interest of public health, safety, morals and general welfare. Like in Ortigas,
supra, the Court held that contractual restrictions on the use of property could not
prevail over the reasonable exercise of police power through zoning ordinances.
Likewise, the Supreme Court upheld the validity of Ordinance No. 13
series of 1952 which prohibited the construction of warehouses that store
inflammable materials within 200 meters from any block of houses. Herein
petitioner constructed a warehouse which stored copra and abaca within 200
meters of a residential neighborhood. The municipal council passed an ordinance
declaring the warehouse of petitioner a nuisance and directing him to transfer it.
Petitioner contended that the ordinance violated due process. The ordinance is a
valid exercise of police power. Its purpose is to avoid the loss of life and property
in case of fire. (Tatel vs. Municipality of Virac, 207 SCRA 157)
The enactment of a zoning ordinance which reclassified the area where the
oil depot is situated from industrial to commercial and that the continued
operation of the businesses of oil companies in their present location will no
longer be permitted, is a legitimate exercise of police power. Its purpose is to
promote sound urban planning ensuring health, public safety and general welfare
of residents of Manila. The Sanggunian was impelled to take measures to protect
the residents of Manila from catastrophic devastation in case of terrorist attack of
the Pandacan oil terminals. Based on the hierarchy of constitutionally protected
rights, the right to life enjoys precedence over the right to property. The reason is
obvious: life is irreplaceable, property is not. When the state or LGU’s exercise of
police power clashes with a few individual’s right to property, the former should
prevail. Both law and jurisprudence support the constitutionality and validity of
the ordinance. Without a doubt, there is no impediments into its enforcement and
implementation. Any delay is unfair to the inhabitants of the City of Manila and
its leaders who have categorically expressed their desire for the relocation of the
terminals. Their power to chart and control their own destiny and preserve their
lives and safety should not be curtailed by the intervenor’s warnings of doomsday
scenarios and threats of economic disorder if the ordinance is enforced. (SJS vs.
Atienza, 545 SCRA 92)
Franchising, Registration and Licensing of Tricycle Units
An ordinance requiring tricycle owners to register their unit with, and their
drivers to obtain license from, the City Government was likewise declared
unconstitutional by the Supreme Court. The authority to register tricycles and to
issue licenses for the drivers thereof remains with the Land Transportation Office
and has not been devolved to the local government units. What was devolved is
the franchising authority of the Land Transportation Franchising and Regulatory
Board over the operation of tricycles but not the authority of the LTO to register
all motor vehicles (including tricycles) and to issue to qualified persons the
license to drive such vehicles. (LTO vs. City of Butuan, 332 SCRA 805)
Admission Fee to Movie Houses
It was held that the ordinance penalizing persons charging full payment
for admission of children ages 7 to 12 in movie houses was an invalid exercise of
police powers for being unreasonable and oppressive to theater owners and not
justified by public interest. While a reduction in the price will mean savings for
parents, it is the theater owners who are made to bear the cost of those savings. A
ticket is a property right. The owner has the right to sell it at such price as he can
obtain. (Balacuit vs. CFI of Agusan del Norte, 163 SCRA 182)
Moratorium of Fishing
The Supreme Court also upheld the constitutionality of two ordinances
banning the shipment of all live fishes and lobsters for five years, as well as the
catching, gathering, possessing, buying, selling and shipment of live marine coral
dwelling organisms. One of the devolved powers of LGU’s is the enforcement of
fishery laws in municipal waters. This includes the enactment of ordinances to
carry out such fishery laws. While Section 4 of the Fisheries Decree requires all
ordinances and resolutions affecting fishing and fisheries be approved by the
Secretary of Environment and Natural Resources, Executive Order 967
transferred the Bureau of Fisheries and Aquatic Resources to the Department of
Agriculture. The requirement has been dispensed with. The local government
units have the power to enact ordinances to enhance the right of the people to a
balanced ecology and to protect the environment. (Tano vs. Socrates, 278 SCRA
144)
Imposition of Conditions to Business Permit

In the case of Acebedo Optical Co. Inc. vs. The Hon. Court Of Appeals,
GR No. 100152, March 31, 2000, the Supreme Court held that the imposition of
special conditions on the business permit is ultra vires. Police power is
essentially regulatory in nature and the power to issue licenses and permits, if
exercised for a regulatory and revenue-raising purpose, is within the ambit of this
power. While the City Mayor can issue or grant licenses and business permits
and impose conditions or restrictions thereto, such conditions must not amount to
a confiscation of the business. A business permit is issued primarily to regulate
the conduct of business and the city mayor cannot, through the issuance of such
permit, regulate the practice of profession, like that of optometry. Such function is
within the exclusive domain of the administrative agency specifically empowered
by law to supervise the profession, i.e., Professional Regulations Commissions
and the Board of Examiners in Optometry.
Issuance and Revocation of Permits and Licenses
The ordinance imposing licenses and requiring permits for any business
establishments for the purpose of regulation enacted by the municipal council of
Makati falls within the purview of the first branch of the general welfare clause.
Moreover, the ordinance of the municipality imposing annual business tax is part
of the power of taxation vested upon local government units under Section 8 of
BP 337. (Rural Bank of Makati vs. Municipality of Makati, 443 SCRA 602)
While the power of the mayor to issue licenses and permits necessarily
includes the corollary power to suspend, revoke or even refuse to issue the same.
However, the power to suspend or revoke these licenses and permits is expressly
premised on the violation of the conditions of those licenses and permits.
Similarly, the power to refuse to issue licenses and permits is premised on non-
compliance with the pre-requisites for the issuance of such licenses and permits.
The mayor must observe due process in exercising these powers, which means
that the mayor must give the applicant or licensee notice and opportunity to be
heard. (Lim vs. CA, 387 SCRA 149)
Likewise, even as the mayor has the power to inspect and investigate
private commercial establishments for any violation of the conditions of their
licenses and permits, he has no power to order a police raid on these
establishments in the guise of inspecting or investigating these commercial
establishments. Finally, a mayor has no authority to close down a business
establishment without due process of law – there is no provision in the Local
Government Code or the Revised Charter of the City of Manila expressly or
impliedly granting the mayor authority to close down private commercial
establishments without notice and hearing, and even if there is, such provision
would be void. The regulatory powers granted to municipal corporations must
always be exercised in accordance with law, with utmost observance of the right
of people to due process and equal protection of the law. Such power cannot be
exercised whimsically, arbitrarily or despotically. (Id.)
The Supreme Court has declared unconstitutional an ordinance revoking
all permits and licenses previously issued to operators of night clubs, cabarets,
dance halls and prohibiting the issuance of new permits and licenses for such kind
of business in the municipality. The Local Government Code authorizes the local
government units to exercise police power yet this power does not include the
power to prohibit the establishment of businesses which are not per se illegal.
LGU’s can only regulate but cannot prohibit, the ordinance is ultra vires and
unconstitutional. (Dela Cruz vs. Paras, 123 SCRA 569)
In City of Manila vs. Laguio, 455 SCRA 308, the Supreme Court declared
unconstitutional an ordinance which forbids running of nightclubs, sauna parlors,
massage parlors, karaoke bars and similar business establishments, and instructs
its owners/operators to wind up business operations as it amounts to a closure of
the establishment, a permanent deprivation of property and is practically
confiscatory. An ordinance which permanently restricts the use of property that it
cannot be used for any reasonable purpose goes beyond regulation and must be
recognized as a taking of property without just compensation. Private property
which is not noxious nor intended for noxious purposes may not, by zoning, be
destroyed without just compensation.
Nature of the power to issue/revoke permits and licenses. The Local
Government Code is unequivocal that the municipal mayor has the power to issue
licenses and permits and suspend or revoke the same for any violation of the
conditions upon which licenses or permits had been issued. The limits in the
exercise of such power can be contained in the law or ordinance. A mayor cannot
be compelled by mandamus to issue a business permit since the exercise of the
same is a delegated police power, hence discretionary in nature. (Rimando v.
Naguilian Emission Testing Center, Inc. GR No. 198860, July 23, 2012) Section
444 (b) (3), whereby the power of the Mayor to issue licenses and permits is
circumscribed, is a manifestation of the delegated power of municipal
corporation. Necessarily, the exercise thereof cannot be deemed ministerial. As to
the question of whether the power is validly exercised, the matter is within the
province of certiorari, but certainly, not mandamus. (Robles Arrastre, Inc. vs.
Villaflor, 499 SCRA 434)
Foodstuffs
Petitioner questioned the validity of ordinance No. 142, which prohibited
selling perishable foodstuffs outside the public markets; Ordinance No. 145,
which required all perishable foodstuffs to be inspected by the City Health
Officer; and Ordinance No. 150, which prohibited anyone other than the city to
operate a public market. The Supreme Court ruled that Ordinance No. 142 is a
regulatory ordinance. Ordinance No. 145 is intended to promote general welfare.
Ordinance No. 150 was enacted by the city to prohibit the operation of public
markets by anyone other than the city. The claim of petitioner that her market is
not public, because it is privately owned is unmeritorious. The test of public
market is its dedication to service of the general public and not its ownership.
(Javellana vs. Kintanar, 119 SCRA 627)
Massage Parlors
The City of Manila passed an ordinance prohibiting the operator of a
barbershop from conducting the business of massaging customers in any adjacent
room of the barbershop or in a room in the same building where the barbershop is
located. Petitioner claimed that the ordinance deprived them of their means of
livelihood without due process. The Supreme Court ruled that the ordinance is
valid. It is a police power measure. The objectives behind its enactment are to
impose the license fees for engaging in the operation of massage clinics, a
business entirely different from that of barbershops, and to prevent immorality
which might arise from the construction of separate rooms for the massage of
customers. (Velasco vs. Villegas. 120 SCRA 968)
Grant of Franchises to Operate CATV System
There is no law specifically authorizing the local government units to grant
franchises to operate CATV system. What ever authority the LGU’s had before,
the same had been withdrawn by PD 1512 terminating all franchises, permits or
certificates for operation of CATV system previously granted by the local
government units. EO 205 and EO 436, both of which are general laws that
mandate that regulation of CATV operators shall be exercised by the National
Telecommunications Commission including the power to fix the subscribers rates
by CATV operators. Hence, Res. No. 210 approved by Batangas City, granting
petitioner a permit to construct, install and operate a CATV system in Batangas
City, and approving increase of subscribers rates, is defective as it contravenes
EO 205 and EO 436. An LGU cannot enact and ordinance or approve a resolution
in violation of a general law. It is a fundamental principle that municipal
ordinances are inferior in stature and subordinate to the laws of the State. An
ordinance in conflict with a state law of general character and statewide
application is universally held to be invalid. Under a general grant of power,
municipal corporations cannot adopt ordinances which infringe the spirit of a state
law or repugnant to the general policy of the State. It must be consistent with the
general law. (Batangas CATV vs. CA, 439 SCRA 326)
Disposition of Public Land
The City of Baguio enacted an ordinance declaring all public lands
occupied by squatters as city government housing project to be sold to them.
Petitioners challenged the validity of the Ordinance. The ordinance is a patent
nullity. No disposition of public land can be made by the City of Baguio without
prior Legislative authority. The law has given the Director of Lands the exclusive
power of disposition of public land. (Baguio Citizens Action, Inc. vs. City
Council, 121 SCRA 368)
Closure of Banks
A rural bank not engaged in any illegal or immoral activities does not
warrant its outright closure by the municipal government for its failure to pay
annual business tax. The order of closure violated the bank’s right to due process.
The violation of a municipal ordinance does not empower a municipal mayor to
avail of extrajudicial remedies. The appropriate remedies to enforce payment of

delinquent taxes or fees are provided for in Section 62 of the Local Tax Code.
(Rural Bank of Makati vs. Municipality of Makati, 443 SCRA 602)
Burial Lots
In City Government of Quezon City, vs. Ericta, 122 SCRA 759, the Quezon
City ordinance which required commercial cemetery owners to reserve 6% of
burial lots for paupers in the City was held to be an invalid exercise of police
power, but was instead an exercise of the power of eminent domain which would
make the City liable to pay the owners just compensation Municipal corporations
cannot adopt ordinances which infringe the spirit of a state law or repugnant to the
general policy of the State. It must be consistent with the general law. (Batangas
CATV vs. CA, 439 SCRA 326)
Cockfighting License
It is the Sangguniang Bayan concerned alone which has the power to
authorize and license the establishment, operation and maintenance of cockpits,
and regulate cockfighting and commercial breeding of gamecocks within its
territorial jurisdiction. But its discretion is limited by PD 449, the Cockfighting
Law of 1974, in that it cannot authorize more than one cockpit per city or
municipality, unless such cities or municipalities have population of over
100,000, in which case two cockpits may be established. Cockfighting is a valid
matter of police regulation, as it is a form of gambling essentially antagonistic to
the aims of enhancing national productivity and self-reliance – limitation on the
number of cockpits in a given municipality is a reasonably necessary means for
the accomplishment of the purpose of controlling cockfighting, for clearly more
cockpits equals more cockfight. A municipal ordinance must not contravene the
Constitution and any statute. Ordinance No. 7 contravenes the Cockfighting Law
in allowing three cockpits in a city. (Tan vs. Perena, 452 SCRA 53)
Lease of Stall in Public Market

It was within the ambit of the Sanggunian’s authority in the exercise of
police power to regulate the enjoyment of the privilege to lease the market stalls.
The enactment of the ordinance was a valid exercise of such governmental
authority to regulate the possession and use of the public market and its facilities.
The lease and occupation of a stall in a public market is not a right but a purely
statutory privilege governed by laws and ordinances. The operation of a market
stall by virtues of a license is always subject to the police power of the city
government. This power could be exercised anytime to change the provisions of
the contracts or even abrogate them entirely, for the protection of general welfare.
Such an act did not violate the non-impairment clause which is anyway subject to
and limited by the paramount police power. (Lucero vs. City Government of
Pasig, 508 SCRA 23)
Operation of Common Terminal

The subject ordinances prohibit the operation of all bus and jeepney
terminals within Lucena, including those already existing, and allow the operation
of only one common terminal located outside the city proper, franchise for which
was granted to Lucena Grand Central Terminal Inc. The assailed ordinances are
characterized by overbreadth – they go beyond what is reasonably necessary to
solve the traffic problem. Bus terminals per se do not impede or help impede the
flow of traffic. In the subject ordinances, the scope of 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. The operation of bus terminals is a legitimate business which, by itself, cannot
be said to be injurious to the rights of property, health or comfort of the
community. Unless a thing is a nuisance per se, however, it may not be abated via
and ordinance, without judicial proceedings. Also, such ordinances were declared
unconstitutional as invalid exercise of police power, an undue taking of private
property and a violation of the constitutional prohibition against monopolies. The
compulsory use of the terminal was held to be oppressive because it would
subject its users to fees, rentals and charges. (Lucena Grand Terminal vs. JAL,
452 SCRA 174
Abatement of Nuisance
While a Sanggunian is empowered under the Local Government Code to
enact ordinances declaring, preventing or abating noise and other forms of
nuisances, it cannot declare a particular thing as a nuisance per se and order its
condemnation. It does not have the power to find as a fact, that a particular thing
is a nuisance with such thing is not a nuisance per se; nor it can authorize the
extrajudicial condemnation and destruction of that as a nuisance which in its
nature, situation or use is not such. These things must be determined and resolved
in the ordinary courts of law. If a thing be in fact a nuisance due to the manner of
its operation, that question cannot be determined by a mere resolution of a
Sanggunian. (AC Enterprises, Inc. vs. Frabelle Corp., 506 SCRA 625)
In Parayno vs. Jovellanos, 495 SCRA 85, it was held that a gas station
business could not be considered a nuisance which a municipality could
summarily abate in the guise of exercising police power. The abatement of
nuisance without judicial proceedings is possible only if it is a nuisance per se. A
gas station is not a nuisance per se or one affecting the immediate safety of
persons and property, hence it cannot be closed down or transferred summarily to
another location. A local government is considered to have properly exercised its
police powers only when the following requisites are met: (1) the interests of the
public generally, as distinguished from those of a particular class, require the
interference of the State and (2) the means employed are reasonably necessary for
the attainment of the object sought to be accomplished and not unduly oppressive.
The first requirement refers to the equal protection clause and the second, to the
due process clause. Respondent municipality failed to comply with due process
clause when it passed Res. No. 50. While it maintained that the gasoline filling
station of petitioner was less than 100 meters from the nearest public school and
church, the records do not show that it even attempted to measure the distance,
notwithstanding that such distance was crucial in determining whether there was
actual violation of Section 44. The different local offices that respondent
municipality tapped to conduct an investigation never conducted such
measurement either.
B. Power to Generate and Apply Resources - Sec. 18, LGC

(Power of Taxation)
All LGU’s are empowered to create their own sources of revenues and to
levy taxes, fees and charges subject to the provisions on local taxation consistent
with the basic policy of local autonomy. The power to tax is no longer vested
exclusively on Congress. Local legislative bodies are now given direct authority
to levy taxes, fees and other charges, pursuant to Section 5, Article X of the
Philippine Constitution. (NPC vs. City of Cabanatuan, 401 SCRA 259) The
Sanggunian concerned through an ordinance has the power to impose a tax, fee or
charge. The procedural requirements of public hearing and publication must be
observed for purposes of compliance with the requirements of due process.
Only guidelines and limitations that may be established by Congress can
define and limit such power of local governments. (Philippine Petroleum Corp.
vs. Municipality of Pililia, Rizal, 198 SCRA 82) See Section 133 of the LGC for
common limitations. The Constitutional mandate that every local government
units shall enjoy local autonomy, does not mean that the exercise of power by
local government units is beyond regulation of Congress. Thus, while each local
government unit is granted the power to create its own sources of revenue,
Congress, in the light of its broad power to tax, has the discretion to determine the
extent of the taxing powers of local government units consistent with the policy of
autonomy. (PHILRECA vs. Secretary of DILG, 403 SCRA 558)
Under existing law, local government units, in addition to having
administrative autonomy in the exercise of their functions, enjoy fiscal autonomy
as well. Fiscal autonomy means that local governments have the power to create
their own sources of revenue in addition to their equitable share in the national
taxes released by the national government, as well as the power to allocate their
resources in accordance with their own priorities. (Pimentel vs. Aguirre, 336
SCRA 201)
Under Section 133(o) of the LGC, local governments have no power to
impose tax, fees or charges on the National Government, its agencies and
instrumentalities, and local government units. However, indicative of legislative
intent to carry out the constitutional mandate of vesting broad powers to local
government units, the Local Government Code effectively withdrawn tax
exemption or incentives theretofore enjoyed by certain entities. (MERALCO vs.
Province of Laguna, 306 SCRA 750) The limited and restrictive nature of the tax
exemption privileges under the LGC is consistent with the State policy to ensure
autonomy of local government units. Hence, Cebu City has the power to collect
taxes from the MCIAA. (Mactan Cebu International Airport Authority vs.
Marcos, GR No. 120082, September 11, 1996)) But in MIAA vs. CA, GR
No.155650, July 20, 2006, 495 SCRA 51, the Supreme Court declared that no
taxes, fees, or charges of any kind may be imposed by any local government unit
against the National Government, its agencies, or instrumentalities and that their
properties shall not be subject to levy, encumbrance, or sale. This would include
real estate taxes on properties intended for public use and for some public service.
One of the most significant provisions of the Local Government Code is
the removal of the blanket exclusion of instrumentalities and agencies of the
national government from the coverage of local taxation. Section 193 of the LGC
provides for withdrawal of tax exemption privileges by certain entities, including
GOCC’s, except local water districts, cooperatives duly registered under RA
6938, non-stock and non-profit hospitals and educational institutions. Although
as a general rule, LGU’s cannot impose taxes, fees or charges of any kind on the
National Government, its agencies and instrumentalities, this rule now admits an
exception, i.e., when specific provisions of the LGC authorized the LGU’s to
impose taxes, fees or charges on the aforementioned entities.
(NPC vs. City of Cabanatuan, 401 SCRA 259)
Section 133 of the LGC, was not intended to be so absolute a prohibition
on the power of LGU’s to tax the National Government, its agencies and
instrumentalities. The exemptions from real property taxes are enumerated in
Section 234, which specifically states that only properties owned “ by the
Republic of the Philippines or any of its political subdivisions” is exempted from
payment of the tax. Clearly, instrumentalities or GOCC’s do not fall within the
exception under Section 234. The express withdrawal of all tax exemptions
accorded to all persons natural or juridical, as stated in Section 193 of the LGC
applies, without impediment to the GSIS. (City of Davao vs. RTC Br XII, Davao
City 467 SCRA 280)
Section 193 of the LGC is indicative of the legislative intent to vest broad
taxing powers upon local government units and to limit exceptions from local
taxation to entities specifically provided therein. There is reasonable classification
under the LGC to justify the different tax treatment between electric cooperatives
covered by PD 269 as amended, and electric cooperatives under RA 6938.
Sections 193 and 234 of the LGC permit reasonable classification as these
exceptions are not limited to existing conditions and apply equally to all members
of the same class. (PHILRECA vs. Secretary of DILG, 403 SCRA 558)
The grant of taxing powers of local government units by the Constitution
and the Local Government Code does not affect the power of Congress to grant
exceptions to certain persons, pursuant to a declared national policy. The legal
effect of the constitutional grant to local government means that in interpreting
statutory provisions on municipal taxing powers, doubts must be resolved in favor

of municipal corporations. Tax exemptions must be interpreted in strictissimi juris
against the taxpayer and liberally in favor of the taxing authority. (PLDT vs. City
of Davao, 363 SCRA 522)
Main sources of revenues of LGU’s

A. Under the Constitution
1. Taxes, fees and charges. (Sec. 5, Art. X)
2. Share in the national taxes – Internal Revenue Allotment (Sec. 6, Art. X)
3. Share in the proceeds of the utilization and development of the national
wealth within their areas. (Sec. 7, Art. X)
Section 4 of the Administrative Order 372 which directs the

withholding of 10% of the local government’s Internal Revenue
Allotments pending the assessment and evaluation by the Development
Budget Coordinating Committee, although temporary, was held by the
Supreme Court unconstitutional. A basic feature of local fiscal autonomy
is the automatic release of the shares of LGUs in the National internal
revenue. This is mandated by no less than the Constitution.
The Local Government Code specifies further that the release shall
be made directly to the LGU concerned within five (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.” Such
withholding by virtue of an administrative fiat clearly contravenes the
Constitution and the law. (Pimentel vs. Aguirre, 336 SCRA 201) To allow
the President to withhold the IRA share of LGU’s would contravene the
declared policy on local autonomy. Devolution includes transfer of
resources, including IRA share.
Likewise, in Batangas vs. Romulo, 429 SCRA 736, its was held
that under the same constitutional provision, the legislature like the
executive, is mandated to ensure that the just share of the local
government in the national taxes are automatically released and that it is
barred from withholding the release of the IRA through the General
Appropriations Act, the same being an inappropriate provision.
As the Constitution lays upon the executive the duty to
automatically release the just share of the local governments in the
national taxes, so it enjoins the legislature not to pass laws that might
prevent the executive from performing this duty. Since Article X, Section
6 of the Constitution only just share of local governments is qualified by
the words “as determined by law” and not the release thereof, the plain
implication is that Congress is not authorized by the Constitution to
hinders or impede the automatic release of the IRA. (ACORD vs. Zamora,
459 SCRA 578) In Lucman vs. Malawi, 511SCRA 268, it was held that
the right to demand for the funds belongs to the local government itself
through the authorization of their Sanggunian.
B. Under the Local Government Code

1. Floating of Bonds
2. Grants/Aids
Fundamental Principles on Local Taxation

1. Taxation shall be uniform in each local government unit;
2. Taxes, fees, charges and other impositions shall:
a. be equitable and based as far as practicable on the taxpayer’s
ability to pay;
b. be levied and collected only for public purposes;
c. not be unjust, excessive, oppressive, or confiscatory; and
d. not be contrary to law, public policy, national economic policy, or
in restraint of trade.
3. The collection of taxes, fees, charges and other impositions shall in no
case be let to any private persons;
4. The revenue collected pursuant to the provisions of the LGC shall inure
solely to the benefit of, and be subject to disposition by, the local
government unit levying the tax, fee, charge or other imposition unless
otherwise specifically provided herein; and
5. Each local government unit shall, as far as practicable, evolve a
progressive system of taxation.
Public hearings are conducted by legislative bodies to allow interested

parties to ventilate their views on a proposed law or ordinance, but these views
are not binding on the legislative bodies – parties who participate in public
hearings to give their opinions on a proposed ordinance should not expect that
their views would be patronized by their lawmakers. (Hagonoy Market Vendors
Association vs. Municipality of Hagonoy, Bulacan, 376 SCRA376)
Failure of the City of Manila to follow the procedure in enactment of tax
measures as mandated by Section 188 of the Local Government Code, in that
they failed to publish Tax Ordinance No. 7988 for three consecutive days in a
newspaper of general circulation renders the same null and void. If an order or
law sought to be amended is invalid, then it does not legally exist, there should be
no occasion or need to amend it. (Coca-cola Bottlers Philippines, Inc. vs. City of
Manila, 493 SCRA 279)
Where the Secretary of Justice reviews, pursuant to law, a tax measure

enacted by the local government unit to determine if the officials performed their
functions in accordance with law, that is, with the prescribed procedure for the
enactment of tax ordinances and the grant of powers under the Local Government
Code, the same is an act of mere supervision, not control. While the Secretary of
Justice is authorized to review the constitutionality or legality of a tax ordinance
and if warranted, to revoke it on either or both grounds, he cannot substitute his
own judgment for that of the local government. (Drilon vs. Lim, 235 SCRA 135)
An appeal of a tax ordinance or revenue measures should be made to the
Secretary of Justice within 30 days from effectivity of the ordinance. Failure of a
taxpayer to interpose the requisite appeal to the Secretary of Justice is fatal to its
complaint of refund. (Jardine Davies Insurance Brokers, Inc. vs. Aliposa, 398
SCRA 176) And even during the pendency of such appeal, the effectivity of the
assailed ordinance shall not be suspended. (Hagonoy Market Vendors Association
vs. Municipality of Hagonoy, Bulacan, 376 SCRA376)
The time frame fixed by law for parties to avail of their legal remedies
before competent courts is not a “mere technicality” that can be easily brushed
aside – the periods stated in Sec. 187 of the LGC are mandatory. (Id.)
Sec. 6c.04of the Municipal Revenue Code and Sec. 191 of the LGC
limiting the percentage of increase that can be imposed apply to tax rates, not
rentals. (Id.)
A memorandum issued by the Secretary of Justice directing the Chief
State Counsel to refrain from acting on or accepting appeals filed under Sec. 187
of the Local Government Code and to “inform the appellants to file their appeal
directly with the court” amounted to an abdication by the Secretary of Justice of
his jurisdiction over the appeal such that any subsequent action before the RTC
cannot be anything but an original action whereby the function of the trial court
cannot be limited to reviewing the evidence adduced before the Secretary of
Justice. (City of Olongapo vs. Stallholders, 343 SCRA 705)
Shares of LGU’s in the Proceeds of National Taxes
The share of the LGU in Internal Revenue Taxes is 40%. The 40%
Internal revenue Allotment is allocated to LGU’s as follows: for provinces and
cities – 23%; for municipalities – 34%; for barangays –20%. No less than 20% of
the Internal Revenue Allotment is allotted for development project by the local
unit from the IRA.
Shares in National Wealth

Forty (40%) of the gross collection from mining taxes, royalties, forestry
and fishery charges, and from each share in any joint effort in utilizing and
developing the national wealth within the LGU’s jurisdiction and shall be
remitted without need for further action to the local treasurer on a quarterly basis
within five (5) days after the end of every quarter.
LGU’s shall receive 1% of the gross sale or receipts of the preceding

calendar year and 40% of taxes, fees or charges that GOCCs would have paid if
not tax exempt, whichever is higher.
How National Wealth is Distributed

If the national wealth is located in one province, the province shall receive
20%, the component city/municipality shall receive 45% and the barangays 35%.
If the national wealth is located in two or more LGU’s, distribution shall
be based on the following: Population – 70% and Land Area –30%.
If the national wealth is located in Highly Urbanized City or Independent
Component City, the HUC or ICC shall receive 65% and the barangays shall
receive 35%.
Fundamental Principles of Local Fiscal Administration

Among the fundamental principles governing the financial affairs,
transactions and operations of the LGU’s are:
1. No money shall be paid out of the local treasury except in pursuance of an
appropriation ordinance or law;
2. Local government funds and monies shall be spent solely for public
purposes;
Section 335 of RA 7160 is clear and specific that no public money
shall be appropriated or applied for private purposes. This is in
consonance with the fundamental principle in local fiscal administration
that local government funds and monies shall be spent solely for public
purposes. The use of LGU funds for the widening and improvement of
privately-owned sidewalks is unlawful and it directly contravenes Section
335 of RA 7160. Only the construction, improvement, repair and
maintenance of infrastructure facilities owned by the LGU may be
bankrolled with local government funds. (Albon vs. Fernando, 494 SCRA
141, GR No. 148357, June 30, 2006)
3. Local revenue is generated only from the sources expressly authorized by
law or ordinance, and collection thereof shall at all times be acknowledged
properly;
4. All monies officially received by a local government officer in any
capacity or on any occasion shall be accounted for as local funds, unless
otherwise provided by law;
5. Trust funds in the local treasury shall not be paid out except in fulfillment
of the purpose for which the trust was created or the funds received.
NOTE: Pursuant to Section 16 and in the proper exercise of the corporate
powers of local government units as provided for under Section 22, the
Sangguniang Panlalawigan/Panlungsod/Bayan shall approve ordinances and pass
resolutions for an efficient and effective local government, in this connection shall
adopt measures to protect the inhabitants of the province/city/municipality from
harmful effects of man - made or natural disasters and calamities, and to provide
relief services and assistance for victims during and in the aftermath of said
disasters and calamities and their return to productive livelihood following said
events. (Sections 648,458 and 447 (a)(1)(iv), LGC)
C. Eminent Domain (Sec. 19, LGC)

Nature. The right of eminent domain is usually understood to be an
ultimate right of the sovereign power to appropriate any private property within
its territorial sovereignty for a public purpose upon payment of just compensation.
It is the Government’s right to expropriate, in the nature of compulsory sale to the
State, private property for public use. Eminent domain is a fundamental State
power that is inseparable from sovereignty. (The City of Cebu vs. Dedamo, 380
SCRA)
The power of eminent domain is inherently possessed by the State. It is
lodged in the legislative branch of the government which has the authority to
delegate the exercise thereof. By delegation, the power may also be possessed by
the President, administrative bodies, local government units, and even to private
enterprises performing public services, subject only to Constitutional limitations.
Indeed, local government units themselves have no inherent power of eminent
domain and can exercise it only when expressly authorized by the legislature.
Section 19 of the LGC prescribes the delegation by Congress of the power of
eminent domain and lays down the parameters for its exercise. Thus, strictly
speaking, the power of eminent domain delegated to an LGU is in reality not
eminent but “inferior” since it must conform to the limits imposed by the
delegation and thus partakes only of a share in eminent domain. The national
legislature is still the principal of the LGUs and the latter cannot go against the
principal’s will or modify the same. (Beluso vs. Municipality of Panay, Capiz, 498
SCRA 113)
An expropriation suit does not involve the recovery of sum of money. It
deals with the exercise by the government of its authority and right to take
property for public use. (Bardillon vs. Brgy. Masili of Calamba, Laguna, 402
SCRA 440)
Purposes and Limitations. The taking of private property by local
government units shall be for public use, or purpose, or welfare, for the benefit of
the poor and the landless. The exercise by LGU’s of the power of eminent
domain is not absolute and is subject to the usual constitutional limitations such as
necessity, private property, taking, public use, just compensation and due process
of law and equal protection of the law. (Barangay Sindalan vs. CA, GR No.
150640, March 22, 2007)
Coverage. Only private properties, whether real or personal, including

franchise of a corporation, can be the subject of expropriation. (Republic vs.
PLDT, 26 SCRA 620) Private property already devoted to public use can still be a
subject of expropriation by Congress but not by LGUs. (City of Manila vs.
Chinese Community, 40 Phil 349)
Corollary to the expanded notion of public use, expropriation is not
anymore confined to vast tracts of land and landed estates. (Province of
Camarines Sur vs. CA, 222 SCRA 173) It is therefore of no moment that the land
sought to be expropriated in this case is less than half a hectare only. (Pulido vs.
CA, 122 SCRA 63) A property that is intended for the construction of a place of
religious worship and a school for its members may still be expropriated. (Jesus is
Lord Christian School Foundation vs. Municipality of Pasig MM, 466 SCRA 235)
Taking. There is taking when the expropriator enters into a a private

property permanently and not momentary and exercised under color of authority
which may either be actual or beneficial deprivation of property. (NPC vs. CA,
254 SCRA 577) The taking of private property is not absolute. Government may
not capriciously or arbitrarily choose which private property should be
expropriated. (Langcao vs. City of Cebu, 440 SCRA 279)
Where the property is taken by the Government for public use without first
acquiring title thereto either through expropriation or negotiated sale, the owner’s
action to recover the land or value thereof does not prescribe. (Republic of the
Philippines v. CA, 454 SCRA 516)
Where the landowner did not act to question the lack of expropriation
proceedings for a very long period of time and even negotiated with the PNR as to
how much it should be paid as just compensation, said landowner is deemed to
have waived its right and is estopped from questioning the power of the PNR to
expropriate or the public use for which the power is exercised. Recovery of
possession of the property by the landowner can no longer be allowed on the
grounds of estoppel and, of public policy which imposes upon the public utility
the obligation to continue its services to the public. The non-filing of the case of
expropriation will not necessarily lead to the return of the property to the
landowner. What is left to the landowner is the right of compensation. It is settled
that the non-payment of just compensation does not entitle the private landowners
to recover possession of their expropriated lot. (Forform Development
Corporation v. PNR, GR No. 124795, December 10, 2008)
In Eusebio v. Luis, GR No. 162474, October 13, 2009, it was ruled thatin
taking respondent’s property without the benefit of expropriation proceedings and
without payment of just compensation, the City of Pasig clearly acted in utter
disregard of respondent’s proprietary rights. Such conduct cannot be
countenanced by the Court. For said illegal taking, the City of Pasig should
definitely be held liable for damages. Also, in MIAA v. Rodriguez, 483 SCRA
619, the award of exemplary damages and attorney’s fees was upheld by the
Court where, for more than 20 years, the MIAA occupied the subject lot without
the benefit of expropriation proceedings and without the MIAA exerting efforts to
ascertain ownership of the lot and negotiating with any of the owners of the
property. In the Court’s mind, these are wanton and irresponsible acts which
should be suppressed and corrected.
Genuine Necessity. The right to take private property for public purposes
necessarily originates from “necessity” and the taking must be limited to such
necessity. The foundation of the right to exercise eminent domain is genuine
necessity and that necessity must be of public character and must also be shown to
exist. (Masikip vs. City of Pasig, 479 SCRA 391) The ascertainment of the
necessity must precede or accompany and not follow, the taking of the land. (City
of Manila vs. Chinese Community, 40 Phil 349) As a rule, the determination of
whether there is genuine necessity for the exercise of the power of eminent
domain is a justiciable question, including the exercise by LGUs. However, when
the power is exercised by the legislature, the question of necessity is essentially a
political question. (Municipality of Meycauayan vs. IAC, 157 SCRA 640 and
Manapat vs. CA, 536 SCRA 32) There is a failure to establish that there is genuine
necessity when the basis for passing the ordinance authorizing the expropriation
indicates that the intended beneficiary is a private non-profit organization, and not
residents of the locality – the purpose thereof is clearly not public. (Masikip,
supra.) Where property is expropriated for the purpose of constructing a road, the
expropriator is not mandated to comply with the essential requisites for an
easement of right of way made under the New Civil Code – case law has it that in
the absence of legislative restriction, the grantee of the power of eminent domain
may determine the location and route of the land to be taken unless such
determination is capricious and wantonly injurious. (Jesus is Lord Christian
School Foundation vs. Municipality of Pasig MM, 466 SCRA 235) The testimony
that although there were other ways through which can enter the vicinity, no
vehicle, however, especially fire trucks, could enter the area except through the
property sought to be expropriated is more than sufficient to establish that there is
genuine necessity for the construction of a road in the area – absolute necessity is
not required, only reasonable and practical necessity will suffice. (Ibid.)
Public use, purpose, welfare; not for private use. In this jurisdiction,
“public use” is defined as “whatever is beneficially employed for the
community.” Expropriation is justified so long as it is for the public good and
there is genuine necessity of public character. That only a few could actually
benefit from the expropriation of the property does not diminish its public use
character. It is simply not possible to provide all at once land and shelter for all
who need them. (Sumulong vs. Guerrero, 154 SCRA 461)
In Heirs of Ardona v. Reyes, 125 SCRA 220) the Court said that public use
is a broad and flexible term influence by ever changing conditions of society. It
includes anything that benefits the public, whether direct or indirect. This is
known as the beneficiality test abandoning the antiquated rule that public use only
addresses itself to matters directly benefiting the public. (Manosca v. CA, 252
SCRA 412)
The expropriation of property intended for the establishment of a pilot
development center and housing project of the Province of Camarines Sur was
held valid in consonance with the public purpose requirement of the Constitution.
Likewise, local government units can expropriate agricultural lands without prior
authority from the Department of Agrarian Reform as the determination of the
public use of the property subject for expropriation is considered an expression of
legislative policy. (Province of Camarines Sur vs. CA, 222 SCRA 173)
Conversely, expropriation can not be exercised for private use or purpose.
Where the property sought to be expropriated was allegedly intended to benefit
the residents of Sitio or Purok Paraiso but it would actually benefit the owners of
a subdivision and incidental benefit to homeowners within the sitio, the same
involves expropriation of private property for the benefit of private individual
which is clearly proscribed by the constitution. In this case, the owners of the
subdivision will be able to circumvent the commitment to provide road access to
the subdivision and relieved from spending their funds for a right of way. Public
funds can be used only for a public purpose. This proposed condemnation,
government funds would be employed for the benefit of a private individual
without any legal mooring. (Barangay Sindalan vs. CA, supra.)
The taking of private property, consequent to the Government’s exercise
of its power of eminent domain, is always subject to the condition that the
property be devoted to the specific public purpose or intent for which it was take.
Corollary, if this particular purpose or intent is not initiated or at all pursued, and
is peremptorily abandoned, then the former owners, if they so desire, may seek
reversion to the property, subject to the return of the amount of just compensation
received. Otherwise, the private property owner would be denied due process of
law, and the judgment would violate the property owner’s right to justice,
fairness, and equity. (MCIA v. Lozada, GR No. 176625, February 25, 2010)
Just Compensation. The government must pay the owner thereof just
compensation as consideration therefore. Just compensation means the fair market
value of the property or the equivalent for the value of the property at the time of
its taking. Anything beyond, that is more anything short of that is less, than just
compensation.
When eminent domain is exercised by a local government unit, the amount
to be paid for the expropriated property shall be determined by the proper court,
based on the fair market value of the property at the time of actual taking. While
Section 4 of Rule 67 of the Rules of Court provides that just compensation shall
be determined at the time of filing of the complaint for expropriation, such law
cannot prevail over Section 19 of RA 7160 which is a substantive law. (The City
of Cebu vs. Dedamo, 380 SCRA) It was also held that the value of the property
shall be ascertained as of the date it was actually taken, because it is as of that

time that the real measure of the owner’s loss may be fairly adjudged.
(Nepomuceno vs. City of Surigao, GR No. 146091, July 28, 2008) Once the value
of the property is fixed by the court, the amount shall earn interest at the legal rate
until full payment is effected. (Ibid.)
In Iloilo v. Besana, GR No. 168967, February 12, 2010, just compensation
is to be ascertained as of the time of taking, which usually coincides with the
commencement of the expropriation proceedings. When the taking of the property
sought to be expropriated coincides with the commencement of expropriation, or
takes place subsequent to the filing of the complaint for imminent domain, just
compensation should be determined as of the date of filing of the complaint.
Where the owner is not promptly paid or there was unnecessary delay in
the payment of just compensation, pecuniary loss entitles him to adequate actual
or compensatory damages, in which case should be the legal interest at 6% per
annum on the value of the land at the time of taking, from said point up to full
payment by MIAA. (MIAA v. Rodriguez, supra)
Jurisdiction. An expropriation suit falls within the jurisdiction of the

RTC since it is incapable of pecuniary estimation. (Barangay San Roque, Talisay,
Cebu vs. Heirs of Francisco Pastor, 334 SCRA 127 and Bardillon vs. Brgy. Masili
of Calamba, Laguna, supra)
The additional limitations on the exercise of the power of eminent domain
by local government units are, as follows:
1. Exercised only by the local chief executive, acting pursuant to a valid
ordinance;
Expropriation is the procedure or action for carrying out that right
of eminent domain. The right extends to property partly or entirely
personal and the procedure is substantially the same.
An LGU shall file a complaint for expropriation on the strength of
an ordinance and not a mere resolution passed by the Sanggunian.
(Municipality of Paranaque vs. VM Realty Corp., 292 SCRA 676; Heirs of
Suguitan vs. City of Mandaluyong, 328 SCRA 137 and Antonio vs.
Geronimo, 476 SCRA 340) The legislative acts of the Sangguniang
Panlungsod in the exercise of its law-making authority are denominated
ordinances. (Langcao vs. City of Cebu, 400 SCRA 279
The promulgation of the ordinance authorizing the local chief
executive to exercise the power must be promulgated prior to the filing of
the complaint for eminent domain with the proper court, and not after the
court shall have determined the amount of just compensation to which the
defendant is entitled. (Heirs of Suguitan, supra)
Sec. 9 of RA 7279, otherwise known as the Urban Development

and Housing Act of 1992, provides for priorities in the acquisition of land
for socialized housing. Private lands rank last in the order of priority for
purposes of socialized housing. Expropriation proceedings are to be
resorted to only when the other modes of acquisition have been exhausted.
Compliance with these conditions must be deemed mandatory because
these are the only safeguards in securing the right of owners of private
property to due process when their property is expropriated for public use.
(Filstream International Inc. vs. CA, 284 SCRA 716 and Langcao vs. City
of Cebu, 440 SCRA 279))
Expropriation as a mode of acquiring lands for socialized housing

under RA 7279 is subject to two conditions:
1) it shall be resorted to only when the other modes of acquisition have
been exhausted; and
2) parcels of land owned by small property owners are exempt from such
acquisition. (City of Mandaluyong vs. Aguilar, 350 SCRA 487)
RA 7279 expressly exempted “small property owners” from

expropriation of their lands for urban land reform. The two elements
defining “small property owners” are:
1) those owners of real property whose property consists of residential
lands with an area of not more than 300 square meters in highly
urbanized cities and 800 square meters in other urban areas, and
2) they do not own real property other than the same.
2. For public use or purpose or welfare, for the benefit of the poor and the
landless;
The power of eminent domain must not be exercised arbitrarily
even if purposed for resolving a critical problem such as squatting.
(Antonio vs. Geronimo, 476 SCRA 340)
3. Only after a valid and definite offer had been made to, and not accepted
by, the owner.
The purpose of the requirement of a valid and definite offer to be
first made to the owner is to encourage settlements and voluntary
acquisition of property needed for public purposes in order to avoid the
expense and delay of a court action. It permits the land owner to receive
full compensation, and the entity acquiring the property, immediate use
and enjoyment of the property. A single bona fide offer that is rejected by
the owner will suffice. (Jesus is Lord Christian School Foundation vs.
Municipality of Pasig MM, 466 SCRA 235)
A letter offered to prove that municipality’s desire or intent to

acquire a property for a right of way does not prove that the LGU made
definite and valid offer to acquire the property for public use as an access
road before filing the complaint for expropriation. In the absence of
competent evidence that indeed, the municipality made a definite and
valid offer to all co-owners of the property, the declaration in an ordinance
that the property owners were notified of the intent to purchase the same
for public use as a municipal road is not in compliance with Section 19 of
the LGC. (Ibid.)
There are two phases of an expropriation proceedings:

1. the determination of the authority of the plaintiff local government unit to
exercise the power of eminent domain and the propriety of its exercise, or
a determination that the property is to be acquired for a public purpose,
which ends either by an order of dismissal or condemnation. Either order
will be a final order that may be appealed by the aggrieved party. (City of
Iloilo vs. Besana, GR No. 168967, February 12, 2010); and
2. the determination by the court of just compensation for the property
sought to be taken. It ends with an order fixing the amount to be paid to
the landowner. Both orders, being final, are appealable. (Ibid., Barangay
San Roque, supra)
In expropriation proceedings involving local government units, the
requisites for authorizing immediate entry are as follows: (1) the filing of
complaint for expropriation sufficient in form and substance, and (2) deposit of
the amount equivalent to 15% of the fair market value of the property to be
expropriated based on its current tax declaration. Hearing is still to be held to
determine whether or not petitioner indeed complied with the requirements
provided in RA 7279. (City of Iloilo vs. Legaspi, 444 SCRA 269)
The issuance of the writ of possession becomes a ministerial matter for the
expropriation court once the two foregoing requisites are established. (Bardillon
vs. Brgy. Masili of Calamba, Laguna, 402 SCRA 440) The determination of
whether the taking of the property is for a public purpose is not a condition
precedent before the court may issue a writ of possession. (Francia vs.
Municipality of Meycauayan, GR No. 170432,March 24, 2008)
D. Reclassification of lands – Sec. 20

A city or municipality may, through an ordinance passed after conducting
public hearings for the purpose, authorize the reclassification of agricultural lands
and provide for the manner of their utilization and disposition:
1. when the land ceases to be economically feasible and sound for
agricultural purposes as determined by the Department of Agriculture,
or
2. where the land shall have substantially greater economic value for
residential, commercial or industrial purposes, as determined by the
sanggunian; provided that such reclassification shall be limited to the
following percentage of the total agricultural land area at the time of
the passage of the ordinance:
a. for highly urbanized cities and independent component cities: 15%
b. for component cities and 1st to 3rd class municipalities: 10% and
c. for 4th to 6th class municipalities: 5%; provided that agricultural
land distributed to land reform beneficiaries shall not be affected
by such reclassification.
E. Closure and Opening of Roads

A local government unit may, pursuant to an ordinance, permanently or
temporarily close or open any local road, alley, park, or square falling within its
jurisdiction, provided that in case of permanent closure, such ordinance must be
approved by at least 2/3 of all the members of the sanggunian, and when
necessary, an adequate substitute for the public facility shall be provided.
Temporary closure may be made during an actual emergency, fiesta celebrations,
public rallies, etc.
Additional limitations in case of permanent closure:

1. adequate provision for the maintenance of public safety must be made;
and
2. the property may be used or conveyed for any purpose for which other
real property may be lawfully used or conveyed, but no freedom park
shall be closed permanently without provision for its transfer or
relocation to a new site.
Properties of the local government which are devoted to public service are
deemed public and are under the absolute control of Congress. Hence local
governments have no authority whatsoever to control or regulate the use of public
properties unless specific authority is vested upon them by Congress. Article 424
of the Civil Code lays down the basic principle that properties of public dominion
devoted to public use and made available to the public are outside the commerce
of man and cannot be disposed o or leased by the local government unit to private
persons.
Aside from the requirement of due process which should be complied with
before closing a road, street or park, the closure should be for the sole purpose of
withdrawing the road or other public property from public use when the
circumstances show that such property is no longer intended or necessary for
public use or public service. When it is already withdrawn from public use, the
property then becomes a patrimonial property of the local government concerned.
(Article 422; Cebu Oxygen vs Bercilles, 66 SCRA 481) It is only then that a
municipality can use or convey them for any purposes for which other real
property belonging to the local government unit concerned might be lawfully used
or conveyed. Thus, the roads and street which are available to the public in
general and ordinarily used for vehicular traffic are still considered public
property devoted to public use. In such case, the municipality is bereft of any
authority to close them for the establishment of a flea market. (Macasiano vs.
Diokno 212 SCRA 464)
F. Naming of LGU’s, Public Places, Streets & Structures

The Sangguniang Panlalawigan, Sangguniang Panlungsod and
Sangguniang Bayan, in consultation with the National Historical Commission,
may now change the name of the following within their respective territorial
jurisdiction: component cities and municipalities, and barangays, roads avenues,
boulevards thoroughfares and bridges, public schools, hospitals, health centers,
and any other public place or building. (Sec. 13 LGC). The same section of the
Code provides the following guidelines in the naming of the foregoing local
government units, institutions, places, or buildings, to wit:
2. They shall not be named after a living person, nor may a change of
name be made unless for a justifiable reason;
3. Such change of name be made not oftener than once every ten years;
4. Those with historical, cultural or ethnic significance shall not be
changed unless by unanimous vote of the sanggunian concerned and
in consultation with the NHI;
5. A change of name of a public school shall be made only upon the
recommendation of the local school board concerned;
6. A change of name of public hospitals, health centers, and other health
facilities shall be made only upon the recommendation of the local
health board concerned;
7. A change of name of any local government unit shall be effective
only upon ratification in a plebiscite conducted for the purpose in the
political unit directly affected;
8. In any change of name, the Office of the President, the representative
of the legislative district concerned, and the Philippine Postal
Corporation.
The National Historical Commission issued the following additional
guidelines:
1. Honorific titles like “Don” or “Father” or “Jr.” or “Sr.” should be
deleted in naming or renaming of streets and/or plazas for practical,
aesthetic and historico-literary reasons;
2. A genuine, indigenous, non-hispanized spelling should be used at all

times with reference to the naming or renaming of streets and /or
plazas the spelling of which does not conform to official Pilipino
orthography;
3. The Filipino terminology, should be encouraged in naming or
renaming of streets and/or plazas;
4. Street names with indigenous names should be retained. However,
those with no historical significance should be replaced; and
5. Streets bearing the names of religious personalities identified with
national movement will be retained or to be recommended for street
names.
G. Settlement of Boundary Disputes

Section 118 of the Code spells out the policy that boundary disputes
between and among local government units shall, as much as possible, be settled
amicably.
Nature of the Power
The power of the provincial boards to settle boundary disputes is of an
administrative nature – involving, as it does, the adoption of means and ways to
carry into effect the law creating said municipalities. It is a power to fix a
common boundary, order to avoid or settle conflicts of jurisdiction between
adjoining municipalities. The agreement between the municipalities of Jimenez
and Sinacaban (embodied in a resolution of a provincial board declaring certain
barrios part of one or another municipality) is invalid as it would effectively
amend EO No. 258 creating the Municipality of Sinacaban. It is contrary to
the technical description of the territory of a municipality as per EO 258, and
therefore not binding. The power of the Sangguniang Panlalawigan to settle
boundary disputes is limited to implementing the law creating the municipality
and, any alteration of boundaries not in accordance with the law is not
implementation but amendment of the law, which would exceed their authority.
(Jimenez vs. Baz, 265 SCRA 182)
Jurisdiction
The Local Government Code confers jurisdiction in settling boundary
disputes to the following:
1. Sangguniang Panlunsod or Sangguniang Bayan – those involving
two or more barangays in the same city or municipality;
2. Sangguniang Panlalawigan – those involving two or more
municipalities within the same province;
3. Joint Sanggunians of the provinces concerned – those involving
municipalities or component cities of different provinces; and
4. Joint Sanggunians of the parties – those involving a component

city or municipality on the one hand and a highly urbanized city
on the other, or two or more highly urbanized cities.
Boundary disputes involving municipalities or component cities of
different provinces shall be jointly referred for settlement to the Sanggunians of
the provinces concerned. (Section 118©, LGC) The RTC cannot exercise
appellate jurisdiction over the case since there was no petition that was filed and
decided by the Sanggunian panlalawigans of Davao Oriental and Surigao del Sur.
Neither can the RTC assume original jurisdiction over the boundary dispute since
the LGC allocates such power to the sanggunian panlalawigans of Davao Oriental
and Surigao del Sur. (Calanza vs. PICOP, GR No. 146622, April 24, 2009)
When LGC is Silent on Jurisdiction. Section 118(d) 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 an independent component city. While
Kanaga is a municipality, Ormoc is an independent component city. Clearly then,
the procedure referred to in Section 118(d) does not apply to them. Since there is
no legal provision specifically governing jurisdiction over boundary disputes
between a municipality and an independent component city of the same province,
the general rule governing jurisdiction should be used. The applicable
provision is found in Section 19 (6) of BP 129, the Judiciary Reorganization Act
of 1980, as amended by RA 7691, which provides the Regional Trial Court shall
exercise exclusive original jurisdiction in cases not within the exclusive
jurisdiction of any court, tribunal, person or body exercising judicial or quasi-
judicial functions. (Municipality of Kanaga vs. Madrona, 402 SCRA 330)
Procedure
(1) Amicable settlement - Boundary disputes between and among local
government units shall, as much as possible, be settled amicably.
(2) Formal Hearing - In the event that the sanggunian fails to effect an
amicable settlement within 60 days from the date the dispute was referred to it, it
shall issue a certification to that effect. The dispute shall then be formally tried by
the sanggunian concerned which shall decide the issue within 60 days from the
date of certification.
In case no settlement of boundary dispute between municipalities is made,
the dispute should be elevated to the RTC of the province. Failure of the court to
decide within the period prescribed by law does not divest it of its jurisdiction to
decide the case but only makes the judge thereof liable for possible administrative
sanction. The Supreme Court declared that the RTC was correct when it ordered a
relocation survey to determine to which municipality the barangays belonged.
(Jimenez vs. Baz, 265 SCRA 182)
(3) Appeal - within the time and manner prescribed by the Rules of Court,
any party may elevate the decision to the sanggunian concerned to the proper
Regional Trial Court having jurisdiction over the area in dispute which shall
decide the appeal within 1 year from the filing thereof.
In Municipality of Sta. Fe vs. Municipality of Aritao, GR No.140474,
September 21, 2007, it was held that it is only in the exercise of its appellate
jurisdiction can the proper RTC decide the case, on appeal, should any party
aggrieved by the decision of the Sangguniang Panlalawigan elevate the same.
H. Authority Over Police Units

Section 6 of Art. XVI of the Constitution mandates the State to establish
and maintain one police force which shall be national in scope and civilian in
character, to be administered and controlled by a national police commission.
Under RA 6975, local government units exercise the following authority over the
PNP within their territorial jurisdiction:
(1) Through the Local Chief Executive, except barangay, the power to
appoint the Municipal/City Chief of Police or Provincial Director;
(2) Through the Local Chief Executive, except barangay, the
operational control and supervision over the PNP; and
(3) Through the People’s Law Enforcement Board, a local special
body, exercises concurrent disciplinary jurisdiction over erring
PNP personnel.
LOCAL LEGISLATIVE POWER

Local legislative power shall be exercised by:
(1) Sangguniang Panlalawigan for the province
(2) Sangguniang Panlungsod for the city
(3) Sangguniang Bayan for the municipality, and
(4) Sangguniang Barangay for the barangay
Two categories of power conferred to the Sanggunian by the Local Government
Code:
(1) Legislative Power – the power to propose, enact, amend and repeal
ordinances
(2) Quasi-judicial Power – except sangguniang barangay, the power to:
(a) to settle boundary disputes, and
(b) the power to investigate and impose disciplinary actions to the
elective officials upon the next lower level of local government
units.
There is no provision in the Constitution or in the Local Government Code
granting local legislative bodies the power to subpoena a witness and the power
to cite them for contempt, either pursuant to its legislative power or quasi-judicial
power. (Negros Oriental II Electric Cooperative, Inc. vs. Sangguniang
Panlungsod of Dumaguete, 156 SCRA 421)
Products of legislative action
(1) Ordinance – the legislative acts of the sanggunian in the exercise of its
law-making authority are denominated ordinances. They prescribe a
permanent rule of conduct; with force and effect of laws and requires
approval by the local chief executive
(2) Resolution – an expression of sentiments of the members of the
sanggunian; they are of temporary character and does not have the
force and effect of a law
Presiding Officer
The vice-governor, the vice-mayor, and the punong barangay shall be the
presiding officer of the sanggunian but shall vote only in case of tie. In case of
inability of the presiding officer, the members shall elect a temporary presiding
officer from among themselves.
Being the acting governor, the Vice-governor cannot simultaneously
exercise the duties of the latter, since the nature of the duties of the Provincial
Governor calls for a full-time occupant to discharge them. The creation of a
temporary vacancy in the office of the Governor creates a corresponding vacancy
in the office of the Vice - governor whenever the latter acts as Governor by virtue
of such temporary vacancy. This event constitutes an “inability” on the part of the
regular presiding officer (Vice-governor) to preside over the SP sessions, which
thus calls for the operation of the remedy set in Sec. 49(b) of the Local
Government Code – the election of a temporary presiding officer from among
themselves. The continuity of the Acting Governor’s (Vice-governor) powers as
presiding officer of the SP is suspended so long as he is in such capacity.
(Gamboa vs. Aguirre, GR No. 134213, July 20, 1999)
A temporary presiding officer who merely steps into the shoes of the
presiding officer could not have greater power than that possessed by the latter
who can vote only in case of tie. Thus, while acting as presiding officer, a Board
Member may not, at the same time be allowed to exercise the rights of a regular
board member, including that of voting even when there is no tie to break.
(Zamora vs. Caballero, 420 SCRA 384)
Sessions
The minimum number of sessions shall be once a week for the
sanggunang panlalawigan, sangguniang panlungsod and sangguniang bayan, and
twice a month for the sangguniang barangay. On the first day of session
immediately following the election of its members, the sanggunian shall by
resolution, fix the day, time and place of its regular sessions.
A special session may be called by the local chief executive or a majority
of the sanggunian members. Unless concurred in by two-thirds vote of the
members present, no matter may be reconsidered at the special session except
those stated in the notice. A majority of all the members of the sanggunian shall
constitute a quorom.
Quorom
A majority of all members of the Sanggunian who have been elected and
qualified shall constitute a quorum to transact official business. (Section 53, LGC)
“Quorom” is defined as that number of members of a body which, when
legally assembled in their proper places, will enable the body to transact its proper
business or that number which makes a lawful body and gives it power to pass
upon a law or ordinance or do any valid act. (Zamora vs. Caballero, 419 SCRA
384) “Majority” when required to constitute a quorum, means the number
greater than half or more than half of any total. (Id.)
The entire membership, including the presiding officer and ex-officio
members, must be taken into account in computing the quorum of the
sangguniang panlalawigan, for while the Constitution merely states that “majority
of each House shall constitute a quorum” Section 53 of the local Government
Code is more exacting as it requires that the “majority of all members of the
Sanggunian who have been elected and qualified” shall constitute a quorum. (Id.)
Making and approval of ordinances

On the first regular session following the election of its members and
within 90 days thereafter, the sanggunian concerned shall adopt or update its
existing rules of procedure which shall provide for the following:
(1) organization of the sanggunian, election of its officers and creation
of standing committees;
(2) the order and calendar of business for each session;
(3) the legislative process;
(4) the parliamentary procedures;
(5) discipline of members, and other rules as the sanggunian may
adopt.
The Local Government Code requires is the “on its first regular session
xxx the Sanggunian concerned shall adopt or update its existing rules or
procedures.” (Section 50, LGC) and by resolution, fix the day, time and place of
its regular sessions (Section 52, LGC). The law does not require the completion of
the updating or adoption of the internal rules of procedure before the sanggunian
could act on any other matter like the enactment of ordinance. It simply requires
that the matter of adopting or updating the internal rules of procedure be taken up
during the first day of session. There is nothing in the language thereof that
restricts the matters to be taken up during the first regular session merely to the
adoption of updating of the house rules. If it were the intent of Congress to limit
the business of the local council to such matters, then it would have done so in
clear and unequivocal terms. But as it is, there is no such intent. (Malonzo vs.
Zamora, 311SCRA 224) An ordinance may be enacted in one session day because
the Local Government Code does not prohibit the same, unlike in Congress where
a bill must undergo three readings on separate days. (Ibid.)
An ordinance shall be approved by the local chief executive by affixing
his signature in each and every page thereof. The governor or mayor may veto
any item in the following cases:
(1) Appropriations ordinance
(2) Ordinance adopting a local development plan and public investment
program
(3) Ordinance directing the payment of money or creating liability.
The grounds for veto are:
(1) the ordinance is ultra vires, or
(2) that it is prejudicial to public welfare.
How a vetoed ordinance can become a law
(1) The sanggunian may override the veto by two-thirds vote of all its
members.
(2) Failure of the Local Chief Executive to communicate the veto to the
sanggunian within 15 days in the case of a province and 10 days in the
case of city or municipality. The ordinance shall be deemed approved as if
he signed it.
Ordinances enacted by the Sangguniang barangay shall, upon approval by

a majority of all its members, be signed by the punong barangay. The latter has no
veto power.
In De los Reyes vs. Sandiganbayan 281 SCRA 631, where a municipal
mayor was charged with falsification of a public document for approving
purportedly appropriating money to pay for the terminal leave of two municipal
employees when actually no such resolution was actually passed, he argued that
his signature in the resolution was merely ministerial. His contention was
unmeritorious because the grant of the veto power accords the mayor to sustain a
resolution or to veto it.
Review of Ordinances
The sangguniang panlalawigan shall review ordinances and resolution of
cities and municipalities to determine if they are within their power. (Sec. 56) The
sangguniang panlungsod or bayan shall review sangguniang barangay ordinances
to determine if they are lawful. (Sec. 57)
The sanggunian concerned shall review the ordinance within 30 days from
receipt thereof. If no action is taken within 30 days, the ordinance is presumed
consistent with the law, and therefore valid and deemed approved.
The Sangguniang Panlalawigan was without authority to review and
disapprove a Sangguniang Bayan resolution authorizing the mayor to expropriate
a lot for a farm center and government sports facilities on the ground that the
expropriation was unnecessary since there were still available lots for the purpose.
The municipality has the power to exercise the power of eminent domain pursuant
to the Local Government Code. The resolution is valid and can be used as
authority to petition for the condemnation of the property of petitioners. (Moday
vs. CA, 268 SCRA 586)
RA 7942 does not give MMDA the authority to review land use plans and
zoning ordinances of cities and municipalities. This is only found in its
implementing rules which made a reference to EO 72. EO 72 expressly refers to
comprehensive land use plans (CLUPs) only. Ordinance No. 8027 is admittedly
not a CLUP nor intended to be one. Instead it is a very specific ordinance which
reclassified the land use of a defined area in order to prevent the massive effects
of a possible terrorist attack. It is Ordinance No. 8119 which was explicitly
formulated as the “Manila (CLUP) and Zoning Ordinance of 2006” CLUPs are
the ordinances which should be submitted to the MMDA for integration in its
metropolitan physical framework plan and approved by the HLURB to ensure that
they conform with national guidelines and policies. (SJS vs. Atienza, 545 SCRA
92)
Enforcement of disapproved
ordinances/resolutions
Any attempt to enforce an ordinance or resolution approving the local
development plan and public investment program, after the disapproval thereof,
shall be sufficient ground for the suspension or dismissal of the official or
employee concerned.
Effectivity of Ordinances
a. Unless otherwise stated in the ordinance approving the local development
plan and public investment program, it shall take effect after 10 days from
posting at the provincial capitol or city, municipal or barangay hall and
two other conspicuous places.
b. Ordinances with penal sanctions shall be posted at the provincial capitol,
or city, municipal or barangay hall for a minimum of three consecutive
weeks, and shall be published in a newspaper of general circulation where
available, within the territorial jurisdiction of the local government
concerned, except in the case of barangay ordinance. Unless otherwise
provided therein, said ordinances shall take effect on the day following its
publication, or at the end of the period of posting, whichever occurs later.
In the absence of such newspaper, the ordinance shall be posted in all

municipalities and cities of the province where the sanggunian of origin is
situated.
c. In highly urbanized and independent component cities, in addition to
posting, the main features of the ordinance shall be published in a local
newspaper of general circulation. In the absence of such newspaper, it
shall be published in any newspaper of general circulation.
Enforcement of Local Ordinances

The Local Government Code imposes upon the city mayor the duty “to
enforce all laws and ordinances relative to the governance of the city.” As the
chief executive of the city, he has the duty to enforce ordinances as long as they
have not been repealed by the Sanggunian or annulled by the courts. He has no
other choice. It is his ministerial duty to do so. (Social Justice Society vs. Atienza,
517 SCRA 657)
In City Engineer of Baguio vs. Baniqued, GR 150270, November 26, 2008,
it was held that the issuance of notice of demolition by the City Mayor is never a
judicial, ministerial or rule-making function. It is strictly an act of law
enforcement and implementation.
II. Corporate Powers – Section 22, LGC

Local government units shall enjoy full autonomy in the exercise of their
proprietary functions and in the management of their economic enterprises,
subject to limitations provided in the Local Government Code and other
applicable laws. The corporate powers of local government units are:
(1) To have continuous succession in its corporate name.
(2) To sue and be sued.
a. Who Initiates Suit. The rule is that a suit is commenced by the local
chief executive. In City of Caloocan vs. CA, 489 SCRA 45, it was
held that the mayor has the authority to file suits for the recovery
of funds and property on behalf of the city even without prior
authorization from the sanggunian. This conclusion is strengthened
by the fact that nowhere in the enumerated powers and duties of
the sanggunian can one find the requirement of such prior
authorization in favor of the mayor for the purpose of filing suits
on behalf of the city
b. Who Represents the Unit. The local government unit must be
represented by the Legal Officer or the Provincial Prosecutor and
not by a private lawyer. (Municipality of Pililla, Rizal vs. CA, 233
SCRA 484) The rational of the prohibition is to relieve the LGU of
the burden of hiring a private attorney. Likewise, the interest of the
municipality would be best protected if a government lawyer
handles its litigations. It is also expected that the municipal
attorney and fiscal would be faithful and dedicated to the LGU’s
interests. Furthermore, civil service employees, such as a
government lawyer could be held accountable for any misconduct
or dereliction of duty. (Province of Cebu vs. IAC, 147 SCRA 447).
c. The legality of the representation of an unauthorized counsel may
be raised at any stage of the proceedings. The fact that the fiscal
would collaborate with private counsel does not legalize his
representation of the municipality. However, the Municipal
Attorney may validly adopt the work already performed in good
faith by a private lawyer, provided that no injustice is committed
against the adverse party and that no compensation has been paid
to the private counsel. (Ramos vs. CA, 269 SCRA 34)
c. By way of exception, local government units may be represented
by a private attorney only:
(1) when the provincial fiscal is disqualified from representing
the municipality. (Province of Cebu vs. IAC, 147 SCRA
447)
(2) when the jurisdiction of a case involving the municipality
lies with t he Supreme Court Mancenido vs. CA, 330
SCRA 419)
(3) when the municipality is a party adverse to the provincial
government or to some other municipality in the same
province (Id.)
(4) when in a case involving the municipality, the provincial
prosecutor, his spouse, or his child is involved as a creditor,
heir, legatee, or otherwise. (Id.)
d. In resolving whether a local government official may secure the
services of private counsel in an action filed against him in his
official capacity, the nature of the action and the relief sought are
to be considered, as where the complaint contained other
allegations and prayer for moral damages, which, if due from the
defendants, must be satisfied by them in their private capacity.
(Id.)
e. A trial court cannot issue a writ of execution ordering a
municipality to pay damages because public funds are not subject
to levy. They are held in trust for the accomplishment of the
purposes for which municipal corporations are created.
(Municipality of Makati vs. CA, 190 SCRA 206)
f. Where an ordinance has already been enacted appropriating money

for payment under a construction contract, garnishment should not
be quashed. (Pasay City Government vs. CFI, 132 SCRA 156)
(3) To have and use a corporate seal.
Local government units may continue using, modify or change
their corporate seal; any change shall be registered with the
Department of Interior and Local Government.
(4) To acquire and convey real or personal property

a. LGU’s may acquire real or personal, tangible or intangible
property, in any manner allowed by law such as sale, donation etc.
b. A local government unit may alienate only patrimonial property
upon proper authority. The Revised Administrative Code requires
the approval of the President for the conveyance of title to real
property. If such approval was not obtained, the conveyance was
void. (City of Naga vs. CA, 172 SCRA 13)
c. Public streets, thoroughfares and town plazas are properties of
public dominion, outside the commerce of man, and may not be
subject to lease or other contracts, and cannot be disposed of to
private persons. (Macasiano vs. Diokno, 212 SCRA 464)
d. PD 957, as amended by PD 1216, mandates that open spaces in a

subdivision shall be donated to the local government unit where
the subdivision is located. The decree does not prohibit the
imposition of conditions on the donation provided that the same
are not contrary to law, morals, good custom, public order or
policy, although it prohibits any construction to be made on the
minimum area required for an open space in a subdivision.
Considering that the area donated is less than the area required to
be allocated for an open space, there is no excess area on which to
construct the sports complex demanded by the subdivision owner
as a condition for the donation. Thus, the condition for the
donation is contrary to law and should be deemed not imposed. But
the donation cannot be revoked for failure to comply with the
condition. Otherwise, the subdivision owner would be able to
evade its obligation to donate the open space. (City of Angeles vs.
CA, 261 SCRA 90)
e. The reconveyance of property of public domain is subject to strict
legal requirements, foremost among the requirements being that
the public property sought to be reconveyed be alienable.
(Figuracion vs. Libi, 539 SCRA 50)
(5) Power to enter into contracts

Requisites of a valid municipal contract:
i) The local government unit has the express or implied power to
enter into the particular contract.
ii) The contract is entered into by the local chief executive on behalf
of the local government unit with prior authorization by the
sanggunian concerned.
There is nothing in the powers and functions of the city
treasurer that gives the city treasurer authority to sign contracts for
the city government. (Mallari vs. Alsol, 484 SCRA 148)
iii) The contract must comply with certain substantive requirements,
i.e., when expenditure of public funds is to be made, there must be
an actual appropriation by the Sanggunian and a certificate of
availability of funds by the local treasurer.
Where the cost of a construction contract was beyond the
appropriated amount as certified by the city treasurer, the contract
was void from the very beginning. (Osmena vs. COA, 230 SCRA
585)
iv) The contract must comply with the formal requirements of written
contract, e.g., Statute of Frauds.
Ultra viries contracts
When a contract is entered into without compliance with
the first and third requisites (above), the same is ultra viries and is
null and void. Such contract cannot be ratified or validated.
Ratification of defective municipal contracts is possible only when
there is non-compliance with the second and/or the fourth
requirements above. Ratification may either be express or implied.
Authority to negotiate and secure grants
The local chief executive, may upon authority of the
sanggunian, negotiate and secure financial grants or donations in
kind, in support of the basic services and facilities enumerated in
Section 17 of the LGC, from local and foreign assistance agencies
without necessity of securing clearance or approval from any
department, agency, or office of the national government or from
any higher local government unit; Provided, that projects financed
by such grants or assistance with national security implications
shall be approved by the national agency concerned.
(6) To exercise such other powers as are granted to corporations,
subject to the limitations provided in the Code and other laws.
--o0o--
VI. MUNICIPAL LIABILITY
General Rule: Local government units and their officials are not exempt from
liability for death or injury to persons or damage to property. (Sec. 24, LGC)
1. Specific provisions of the Civil Code making LGU’s liable:
a). Art. 2189 : The local government unit is liable in damages or
injuries suffered by reason of the defective condition of roads,
streets, bridges, public buildings and other public works.
The City of Manila was held liable for damages when a
person fell into an open manhole in the streets of the city. City of
Manila vs. Teotico, 22 SCRA 267)
Despite a management and operating contract with Asiatic
Corporation over the Sta. Ana Public Market, the City of Manila is
still solidarily liable fort injuries sustained by an individual who
stepped on rusted nail while the market was flooded. (Jimenez vs.
City of Manila, 150 SCRA 510)
The liability of the city for injuries due to defective roads
attaches even if the road does not belong to the local government
unit, as long as the City exercises control or supervision over said
road. (Guilatco vs. City of Dagupan, 171 SCRA 382 and
Municipality of San Juan, MetroManila vs. CA, 466 SCRA 78))
b) Art. 2180, par. 6: The State is responsible when it acts through a
special agent. (Merritt vs. Government of the Philippines, 34 Phil
311)
c) Art. 34: The local government unit is subsidiarily liable for
damages suffered by a person by reason of the failure or refusal of
a member of the police force to render aid and protection in case of
danger to life and property.
2. Liability for Tort: Under Sec. 24 of RA 7160, local government units
and their officials are not exempt from liability for death or injury to
persons or damage to property.
a) If local government is engaged in governmental functions, it is not
liable.
In Municipality of San Fernando vs. Firme, 195 SCRA 692,
it was held that the municipality cannot be held liable for torts
committed by a regular employee, even if the dump truck used
belonged to the municipality, inasmuch as the employee was
discharging government functions, i.e., road construction. This
ruling was reiterated in Jayme vs. Apostol, GR 165060, November
27, 2008, where it upheld the trial court’s ruling that the
municipality of Koronadal, the true and lawful employer of Lozano
may not be sued because it is an agency of the State engaged in
governmental functions and, hence, immune from suit.
67
MUNICIPAL LIABILITY /68
b) If engaged in proprietary functions, local government unit is liable.
In Torio vs. Fontanilla 85 SCRA 599, The Municipality of
Malasiqui was held liable for the death of a member of the zarzuela
group when the staged collapsed, under the principle of respondeat
superior. The holding of a town fiesta managed by the Municipal
Council is a proprietary function.
In City of Manila vs. IAC, 179 SCRA 428) the North
Cemetery is a property which the City of Manila owns in its
proprietary capacity. The maintenance of the cemetery is a
proprietary function. Hence, for breach of contract, the City of
Manila is liable for damages. The City of Manila is liable for
tortuous act committed by its agents who failed to verify the
duration of the contract of lease.
c) Personal liability of local officials.
Where public officers act maliciously and wantonly and
injure individuals rather than discharge a public duty, they are
personally liable. Thus, the Provincial Governor and the members
of the Provincial Board were held liable for damages in their
personal capacity arising form the illegal act of dismissing
employees in bad faith. (Rama vs. CA, 148 SCRA 496)
3. Liability for violation of Law
The Municipality of Bunawan, Agusan del Sur, through the Mayor,
was held in contempt and fined P1,000.00 with a warning, because of the
refusal to abide by a Temporary Restraining Order issued by the Court.
(Moday vs. CA, 243 SCRA 152)
But, no liability, whether criminal or administrative, may be
imputed to a mayor who, in entering into a contract, merely complied with
the mandate of resolutions passed by the Sangguniang Bayan.
(Constantino vs. Desierto, 288 SCRA 654))
4. Liability for Contracts
General Rule: A municipal corporation is liable on a contract it
enters into provided the contract is intra viries. If the contract is ultra
viries, the local government unit is not liable.
Doctrine of Implied Municipal Liability. A municipality may
become obligated upon an implied contract to pay the reasonable value of
the benefits accepted or appropriated by it as to which it has the general
power to contract. Thus, in Province of Cebu vs. IAC, 147 SCRA 447, it
was held that the Province of Cebu cannot set up the plea that the contract
was ultra viries and still retain benefits thereunder. Having regarded the
contract as valid for purposes of reaping benefits, the local government
unit is estopped to question its validity for the purpose of denying
answerability.
--oo0oo--
VII. LOCAL OFFICIALS
Qualifications prescribed by law are continuing requirements and must be
possessed for the duration of the officer’s active tenure. Once any of the required
qualifications is lost, his title to the office may be seasonably challenged. Loss of
any of the qualifications during incumbency will be a ground for disqualification
and termination. (Frivaldo vs. COMELEC, 174 SCRA 245 and Labo vs.
COMELEC, 176 SCRA 1)
Common Qualifications For Local Elective Officials
i. Filipino citizen – either natural born or naturalized
For local elective officials the Local Government Code requires
that they must be citizens of the Philippines – either natural born or
naturalized. The law, however, is silent as to when must the required
citizenship be possessed by a candidate.
Repatriation. In Altarejos vs. COMELEC, 441 SCRA 655, the
Supreme Court’s reiterated its ruling in Frivaldo, 257 SCRA 727, that
repatriation under PD 725 retroacts to the date of filing of one’s
application for repatriation. Accordingly, petitioner’s repatriation under
RA 8171, which repealed PD 725, retroacted to the date he filed his
application in 1997 and was, therefore, qualified to run for mayoralty
position in the government in May 2004 elections.
Section 5, Par. 2 of RA 9225 – Citizenship Retention and
Reacquisition Act of 2003 provides that those seeking elective public
office shall meet the qualifications required by the Constitution and
existing laws and, at the time of filing of certificate of candidacy, make a
personal and sworn renunciation of any and all foreign citizenship before
any public officer authorized to administer oath.
Mere filing of certificate of candidacy cannot operate as an
effective renunciation of foreign citizenship. The law mandates that a
candidate with dual citizenship must make a personal and sworn statement
of any and all foreign citizenship before any public officer authorized to
administer oath. Absent an evidence that will show that Lopez complied
with the provision of RA 9225, he is disqualified to run for Barangay
Chairman of Barangay Bagacay. For the renunciation to be valid, it must
be contained in an affidavit duly executed before an officer of law who is
authorized to administer an oath. The affiant-candidate must state in clear
and unequivocal terms that he is renouncing all foreign citizenship for it to
be effective. For failure to prove that he abandoned his allegiance to the
United States, he is disqualified to from running for an elective position in
the Philippines.(Lopez vs. COMELEC, GR No.182701, July 23, 2008)
An oath of Allegiance to the Republic of the Philippines made by a
candidate before the Los Angeles Philippine Consul General does not
69
LOCAL OFFICIALS /70
substantially comply with the requirement of a personal and sworn
renunciation of foreign citizenship because these are distinct requirements
to be complied with for different purposes. The oath of allegiance is a
requirement in reacquisition of Philippine citizenship by natural born-
citizens who are already naturalized citizens of a foreign country as
required by Section 3 of RA 9225, further there is nothing in the said oath
that expressly makes a renunciation of the foreign citizenship. Section 5(2)
of RA 9225 categorically requires persons seeking elective public office
who either retained their Philippine citizenship before a public officer
authorized to administer an oath simultaneous with or before filing of the
certificate of candidacy. Similarly the certificate of candidacy merely
provides for an oath of allegiance but there is no express renunciation of
foreign citizenship. The same oath of allegiance in the certificate of
candidacy is merely a general requirement for all those who wish to run as
candidates in Philippine elections, while the renunciation of foreign
citizenship is an additional requisite only for those who have retained or
reacquired Philippine citizenship under R 9225 who seek elective posts,
considering their special circumstance of having more than one
citizenship. (Jacot vs. Dal, GR No. 179848, November 27, 2008)
In Sobejana-Condon v. COMELEC, GR No. 198742, August 10,
2012, Court reiterated its ruling in Lopez and Jacot that Filipinos
reacquiring or retaining their Philippine citizenship under RA 9225 must
explicitly renounce their foreign citizenship if they wish to run for elective
posts in the Philippines.
Dual Citizenship Due to Conflicting Laws. The phrase “dual
citizenship” as a disqualification in Section 40 (d) of RA 7160 must be
understood as referring to “dual allegiance.” Consequently, persons with
mere dual citizenship do not fall under this disqualification. Unlike those
with dual allegiance who must, therefore, be subject to strict process with
respect to the termination of their status, for candidates with dual
citizenship, it should suffice if, upon filing of their certificate of
candidacy, they elect Philippine citizenship to terminate their status as
persons with dual citizenship considering that their condition is the
unavoidable consequence of conflicting laws of different states. (Mercado,
v. Manzano, GR No. 135083, May 26, 1999)
Again, in Cordora v. COMELEC, GR No. 176947, February 19,
2009, for those whose dual citizenship is brought about by conflicting
laws on citizenship of different states, they need not comply with the twin
requirements of swearing an oath of allegiance and executing a
renunciation of foreign citizenship because he is a natural-born Filipino
citizen who did not subsequently become a naturalized citizen of another
country. It is sufficed, if upon the filing of certificate of candidacy, he
elects Philippine citizenship to terminate his status as person with dual
LOCAL OFFICIALS /71
citizenship considering that his condition is the unavoidable consequence
of conflicting laws of different states.
ii. Residence therein for at least one year immediately before the election
The term “residence” as used in the election law, imports not only
an intention to reside in a fixed place but also personal presence in that
place, coupled with conduct indicative of such intention. “Domicile”
denotes a fixed permanent residence to which when absent for business or
pleasure, or for like reasons, one intends to return. (Papandayan, Jr. vs.
COMELEC, 382 SCRA 133)
The term ‘residence” is to be understood not in its common
acceptation as referring to “dwelling” or “habitation,” but rather to
“domicile” or legal residence, that is, the place where a party actually or
constructively has his permanent home, where he, no matter where he may
be found at a given time, eventually intends to return and remains (animus
manendi) A domicile of origin is acquired by every person at birth. It is
usually the place where the child’s parents reside until the same is
abandoned by acquisition of new domicile (domicile of origin). (Coquilla
vs. COMELEC, 385 SCRA 607)
For purposes of the election laws, the requirement of residence is
synonymous with domicile, meaning that a parson must not only intend to
reside in a particular place but must also have personal presence in such
place coupled with conduct indicative of such intention. A candidate is not
required to have a house in a community to establish his residence or
domicile in a particular place. It is sufficient that he should live there even
if it be in a rented house or in the house of a friend or relative. To insist
that the candidate own the house where he lives would make property a
qualification for public office.
The rationale of requiring candidates to have a minimum period of
residence in the area in which they seek to be elected is to prevent the
possibility of a stranger or newcomer unacquainted with the conditions
and needs of a community and not identified with the latter from seeking
an elective office to serve that community. (Torayno vs. COMELEC, 337
SCRA 574)
The residence requirement is rooted in the desire that officials of
districts or localities be acquainted not only with the metes and bounds of
their constituencies but, more important, with the constituents themselves,
and a very legalistic, academic and technical approach to the resident
requirement does not satisfy this simple, practical and common sense
rationale for the residence requirement. (Ibid.)
Hence, in Torayno, the Supreme Court upheld the residency
qualification of Governor Emano, inasmuch as he has proven that he,
together with his family had actually resided in a house he bought in 1973
in Cagayan de Oro City; had actually held office there during his three
LOCAL OFFICIALS /72
terms as provincial governor of Misamis Oriental, the provincial capitol

being located therein; and had registered as voter in the city during the
period required by law – he could not be deemed “a stranger or
newcomer” when he ran and was voted as city mayor. Petitioners
put much emphasis on the fact that Cagayan de Oro City is a highly
urbanized city whose voters cannot participate in the provincial elections.
Such political subdivisions and voting restrictions, however, are simply
for the purpose of parity representation. The classification of an area as a
highly urbanized or independent component city, for that matter, does not
completely isolate its residents, politics, commerce and other businesses
from the entire province, and vice versa; especially when the city is
located at the very heart of the province itself. (Ibid.)
Repatriation and Residency. In Coquilla vs. COMELEC, 385
SCRA 607, it was held that once a Filipino loses his citizenship or
becomes a citizen of another country, he also loses his domicile of origin
or residence in the Philippines. Should he reacquire his citizenship, it
would carry with it the reacquisition of his residency in the Philippines.
However, the period of his reacquired residency shall be counted from the
date he reacquired his Philippine citizenship or actually took his oath of
allegiance as a repatriated Filipino citizen.
Property Ownership and Residency. In Dumpit-Michelena vs.

Boado, 475 SCRA 290, the Supreme Court ruled that property ownership
in not indicia of the right to vote or be voted for an office. A beach house
is at most a place of temporary relaxation. It can hardly be considered a
place of residence. Further, domicile is not easily lost. To successfully
effect a change of domicile, there must be concurrence of the following
requirements: (1) an actual removal or an actual change of domicile; (2)
a bona fide intention of abandoning the former place of residence and
establishing a new one; and (3) acts which corresponds with the purpose.
Without clear and positive proofs of the concurrence of those 3
requirements, the domicile of origin continues. To effect change, there
must be animus manendi coupled with animus revertendi. The intent to
remain in the new domicile of choice must be for indefinite period of time,
the change of residence must be voluntary, and the residence at the place
chosen for the new domicile must be actual. The Supreme Court agreed
with the Second Division of the COMELEC that Dumpit-Michelena
failed to establish that she has abandoned her former domicile.
iii. Ability to read and write Filipino or any other local dialect
iv. Registered voter of the local government unit, or of the district where he
intends to be elected in the case of the members of the sanggunian
LOCAL OFFICIALS /73
v. Age Qualification
a) Candidates in provinces and highly urbanized cities – at
least 23 years old
b) Candidates for mayor and vice mayor of component cities
or municipalities – at least 21 years old
c) Candidates for Sanggunian member in component cities
and municipalities – at least 18 years old
d) Barangay officials – at least 18 years old
e) Sanggunian Kabataan – at least 15 to 17 years old
The required age qualification must be possessed by any candidate,
national or local, on the day of election.
Disqualifications Under the Local Government Code – Sec. 40
a. Those sentenced by final judgment for an offense involving moral
turpitude or an offense punishable by imprisonment for at least one year,
within two years after service of sentence.
Moral turpitude is an act of baseness, vileness, or depravity in the
private duties which a man owes his fellowmen, or to society in general,
contrary to accepted and customary right and duty between man and
woman or conduct contrary to justice, honesty, modesty or good faith. In
Dela Torre vs. COMELEC, 258 SCRA 483, it was held that violation of
the Anti-Fencing Law involves moral turpitude.
The Supreme Court made no pronouncement in Lim vs. People,
340 SCRA 497 which reiterated the ruling in Vaca vs. CA, 298 SCRA 565,
that with the deletion of the prison sentence for violation of BP 22, the
offense no longer involves moral turpitude.
In People vs. Tuanda, 181 SCRA 692, the Supreme Court did not
make a distinction whether the offender is a lawyer or a non-lawyer, nor
did it declare that such offense constitutes moral turpitude when
committed by a member of the Bar but not so when committed by a non-
member. (Villaber vs. COMELEC, 369 SCRA 126)
Direct bribery is a crime involving moral turpitude. The Local
Government Code is a codified set of laws that specifically applies to local
government units. Section 40 thereof specifically and definitely provides
for disqualifications of candidates for elective local positions. It is
applicable to them only. On the other hand, Section 12 of the Omnibus
Election Code speaks of disqualifications of candidates for any public
office. It deals with the election of all public officers. Thus, Section 40 of
the Local Government Code insofar as it governs the disqualifications of
candidates for local positions, assumes the nature of a special law which
ought to prevail. (Magno vs. COMELEC 390 SCRA 495)
LOCAL OFFICIALS /74
In Moreno vs. COMELEC, GR No. 168550, August 10, 2006, the

Supreme Court ruled that those who have not served their sentence by
reason of the grant of probation are not disqualified from running for local
elective office because the two year period of ineligibility does not even
begin to run. The grant of probation merely suspends the execution of the
sentence.
A sentence of prision mayor by final judgment is a ground for
disqualification under Section 40 of the LGC and under Section 12 of the
Omnibus Election Code. (Jalosjos v. COMELEC, GR. No.193237,
October 9, 2012)
While Section 40 (a) allows a prior convict to run for a local
elective office after the lapse of two (2) years from the time he serves his
sentence, the said provision should not be deemed to cover cases wherein
the law imposes a penalty, either as principal or accessory, which has the
effect of disqualifying the convict to run for elective office.
b. Those removed from office as a result of an administrative case.
An elective local official who was removed from office prior to
January 1, 1992 is not disqualified from running for elective local office.
(Grego vs. COMELEC, 274 SCRA 481)
c. Those convicted by final judgment for violating his oath of allegiance to
the Republic.
d. Those with dual citizenship.
The phrase “dual citizenship” in RA 7160, Sec. 40(d) and RA
7854, Sec. 20 must be understood as referring to “dual allegiance.”
Consequently, persons with mere dual citizenship do not fall under this
disqualification. For candidates with dual citizenship, it should suffice if,
upon the filing of their certificates of candidacy, they elect Philippine
citizenship to terminate their status as persons with dual citizenship
considering that their condition is the unavoidable consequence of
conflicting laws of different states. (Mercado vs. Manzano, 307 SCRA
630)
However, if dual citizenship is acquired voluntarily pursuant to RA
9225, The Dual Citizenship Law, the same can be a ground for
disqualification to the right of suffrage.
e. Fugitives from justice in criminal or non-political cases.
The term includes not only those who flee after conviction to avoid
punishment, but likewise who, after being charged, flee to avoid
prosecution. (Marquez vs. COMELEC, 243 SCRA 538)
f. Permanent residents in foreign country or those who have the right to
reside abroad and continue to avail of it.
LOCAL OFFICIALS /75
A Filipino citizens’ immigration to a foreign country constitutes an

abandonment of his domicile and residence in the Philippines. In other
words, the acquisition of a permanent residency status is a foreign country
constitutes a renunciation of the status as a resident of the Philippines.
(Caasi vs. CA, 191 SCRA 229)
The act of a person surrendering her greencard to the Immigration
and Naturalization Service of the US Embassy is clear indication of her
intention to abandon her US residency. (Gayo vs. Verceles, 452 SCRA
504)
When the evidence of the alleged lack of residence qualification is
weak or inconclusive and it clearly appears that the purpose of the law
would not be thwarted by upholding the right to the office, the will of the
electorate should be respected. In this case, considering the purpose of the
residency requirement, i.e., to ensure that the person elected is familiar
with the needs and problems of his constituency, there can be no doubt
that private respondent is qualified. (Gayo vs. Verceles, citing Perez)
g. The insane or feeble-minded.
Date of Election
Unless otherwise provided by law, the elections for local officials, except
for barangay officials, shall be held every three (3) years on the second Monday
of May.
Manner of Election
a. The governor, vice governor, mayor, vice mayor, and punong barangay
shall be elected at large in their respective units by qualified voters
therein. Sangguniang Kabataan chairman for each barangay shall be
elected by the registered voters of the katipunan ng barangay. (Sec. 41.)
b. For provinces and cities with two or more legislative districts, the elective
member of the sanggunian shall be elected by legislative districts.
Provinces, cities and municipalities in Metropolitan Manila with only one
legislative district shall be divided into two districts by the COMELEC.
[Sec. 3 (a) and (b), RA 7166; Sec. 1, RA 7887]
c. Regular elective members of the Sanggunian of cities and municipalities
shall be elected at large. (Sec. 1, RA 7887)
d. Sangguniang barangay members shall be elected at large.
e. The president of the league of sanggunian members of component cities
and municipalities shall be ex officio member of the sangguniang
panlalawigan.
f. The president of the liga ng mga barangay and the pederasyon ng mga
sangguniang kabataan shall be ex officio member of the sanggunian.
LOCAL OFFICIALS /76
g. There shall be a sectoral representative from the women, workers, urban
poor, indigenous cultural communities, disabled persons, or any other
sector determined by the sanggunian. (Sec. 41)
Term of Office
The term of office of elective local officials, except barangay officials,
which shall be determined by law, shall be three years and no such official shall
serve for more than three consecutive terms. Voluntary renunciation of the office
for any length of time shall not be considered as an interruption in the continuity
of his service for the full term for which he was elected. (Section 8, Art. X, PC)
Under Section 2 of RA 9164. the term of office all barangay and
sangguniang kabataan officials shall be three years. The counting of the three
consecutive terms shall be reckoned from the 1994 barangay elections. Thus,
Laceda who has served as Punong Barangay of Panlayaan for three consecutive
terms, was disqualified from running for the fourth time as punong barangay.
(Laceda, Sr. vs. Limena, GR 182867, November 25, 2008) In this case, while it is
true that under RA 8806, the municipalities of Sorsogon and Bacon were merged
and converted into a city thereby abolishing the former and creating Sorsogon
City as new political unit, it cannot be said that for the purpose of applying the
prohibition in Section 2 of RA 9164, the Office of the Punong barangay of
Barangay Panlayaan, Municipality of Sorsogon, would now be construed as a
different local government post as that of the office of Punong Barangay of
Barangay Panlayaan, Sorsogon City, is the same as before conversion.
Consequently, the inhabitants of the barangay are the same. They are the same
group of voters 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, RA 8806 did not interrupt Laceda’s term.
In COMELEC v. CRUZ, GR No. 186616, November 20, 2009, the
Supreme Court upheld the constitutionality of RA 9164, stating that the authority
of Congress to legislate relates not only to the fixing of the term of office of
barangay officials, but also to the application of the three-term limit. Also, it was
ruled that RA 9164 did not violate the constitutional prohibition on ex post facto
law and the one subject-one title rule.
Three consecutive term limit rule

The three-term limit rule for elective local officials, a disqualification rule,
is found in Section 8, Article X of the Philippine Constitution, which provides:
Section 8. The term of office of elective local officials,
except barangay officials, which shall be determined by law, shall
be three years and no such official shall serve for more than three
consecutive terms. Voluntary renunciation of the office for any
length of time shall not be considered as an interruption in the
continuity of his service for the full terms for which he was
elected.
LOCAL OFFICIALS /77
and is reiterated in Section 43(b) of the Local Government Code of 1991, thus:
Section 43. Term of Office. - (b) No local elective official
shall serve for more than three (3) consecutive terms in the same
position. Voluntary renunciation of the office for any length of
time shall not be considered as an interruption in the continuity of
service for the full term for which the elective official concerned
was elected.
Rationale. The three-term limit is an exception to the people’s freedom
to choose those who will govern them in order to avoid the evil of a single person
accumulating excessive power over a particular territorial jurisdiction as a result
of a prolonged stay in the same office. (Latasa vs. COMELEC, 417 SCRA 574) It
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.
(Laceda, Sr vs. Limena, supra)
Involuntary interruption is claimed to result from any of these events and
causes: succession or assumption of office by operation of law, preventive
suspension, declaration of the defeated candidate as the winner in an election
contest, declaration of the proclaimed candidate as the losing party in an election
contest, proclamation of a non-candidate as the winner in a recall election,
removal of the official by operation of law and other analogous causes. Whether
the foregoing causes as considered or not considered as having been
“involuntarily interrupted or broken” largely depend on the following requisites
and jurisprudence:
Requisites
For the prohibition or disqualification to apply, two requisites must
concur: (1) the official concerned has been elected for three consecutive terms in
the same local government post and (2) that he has fully served three consecutive
terms. (Borja vs. COMELEC, 295 SCRA 157; See also Latasa vs. COMELEC,
417 SCRA 574; Ong vs. Alegre, 479 SCRA 473 and Laceda Sr. vs. Limena, supra)
Assumption of Office by Operation of Law. This contemplates a
situation wherein an elective local official fills by succession a higher local
government post permanently left vacant due to any of the following
contingencies, i.e., when the supposed incumbent 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. The term limit for elective local officials must be taken to refer to the right
to be elected as well as the right to serve in the same elective position.
Consequently, it is not enough that an individual has served three consecutive in
an elective local office, he must also have been elected to the same position for
the same number of times before the disqualification can apply. There was, the
LOCAL OFFICIALS /78
court ruled, no violation of the three term limit, for Capco was not elected to the
office of the mayor in the first term but simply found himself thrust into it by
operation of law when a permanent vacancy occurred in that office. (Borja vs.
COMELEC, 295 SCRA 157 reiterated in Adormeo vs. COMELEC GR No.147927,
February 4, 2002)
Conversion of a Municipality to a New Component City. Latasa was
elected and served as mayor of the Municipality of Digos, Davao del Sur for
terms 1992-1995, 1995-1998 and 1998-2001. During his third tem, Digos was
converted into a component city, with the corresponding cityhood law providing
the holdover of elective officials. While a new component city which was
converted from a municipality acquires a new corporate existence separate and
distinct from that of the municipality, this does not mean however, that for the
purpose of applying the constitutional provision on term limits, the office of the
municipal mayor would now be construed as a different local government post as
that of the office of the city mayor. While petitioner Latasa did involuntarily
relinquish his office as a municipal mayor since the said office has been deemed
abolished due to conversion, the very instant he vacated his office as municipal
mayor, he also assumed office as city mayor. He never ceased acting as chief
executive of the local government unit. The conversion of a municipality into a
city does not constitute an interruption of the incumbent official’s continuity of
service. Accordingly, the municipal mayor is barred from running for city mayor
under the three-term limit rule. (Latasa vs. COMELEC, 417 SCRA 574)
This prohibition also applies to the office of a punong barangay of a
municipality merged with another municipality to create a city as a new political
unit. The territorial jurisdiction of such barangay is the same as before conversion
and the inhabitants of the barangay are the same. The voters who voted for the
punong barangay are the same group of voters. The prohibition applies to prevent
him from running as punong barangay for the fourth time, there being no break in
the continuity of the terms. (Laceda vs. Limena, GR No. 182867. November25,
2008)
Eligibility in a Recall Election. Section 43 of RA 7160 provides that no

local elective official shall serve for more than three (3) consecutive terms in the
same position. Voluntary renunciation of the office for any length of time shall
not be considered as an interruption in the continuity of service for the full term
for which the elective official was elected. After three consecutive terms, an
elective local official cannot seek immediate reelection for a fourth term. The
prohibited election refers to the next regular election for the same office following
the end of the third consecutive term. Any subsequent election, like a recall
election, is no longer covered by the prohibition for two reasons. First, a
subsequent election is no longer an immediate reelection after three consecutive
terms. Second, the intervening period constitutes an involuntary interruption in
the continuity of service. (Socrates vs. COMELEC, 2002, 391 SCRA 457)
LOCAL OFFICIALS /79
The Court also ruled:

xxx After Hagedorn ceased to be mayor on June 30, 2001,
he became a private citizen until the recall election of September
24, 2002 when he won by 3,018 votes over his closest opponent
Socrates. From June 30, 2001, until the recall election on
September 24, 2002, the Mayor of Puerto rincesa was Socrates.
During the same period, Hagedorn was simply a private citizen.
This period is clearly an interruption in the continuity of
Hagedorn’s service as mayor, not because of his voluntary
renunciation, but because of legal prohibition.
A necessary consequence of the interruption of service is
the start of a new term following the interruption. An official
elected in recall election serves the unexpired term of the recalled
official. This unexpired term is in itself one term for purposes
of counting the three-term limit. A local official who serves a
recall term should know that the recall term is in itself one term
although less than three years. This is the inherent limitation he
takes by running and winning in the recall election. (Ibid.)
Period of Preventive Suspension. In Aldovino Jr. v. COMELEC
December 23, 2009, the Court espoused the doctrine that the period during which
a local elected official is under preventive suspension cannot be considered as an
interruption of the continuity of his service. Strict adherence to the intent of the
three-term limit rule demands that preventive suspension should not be considered
as interruption that allows an elective official’s stay in office beyond three terms.
A preventive suspension cannot simply be a term interruption because the
suspended official continues to stay in office although he is barred from
exercising the functions and prerogatives of the office within the suspension
period. The best indicator of the suspended official’s continuity in office is the
absence of a permanent replacement and the lack of the authority to appoint one
since no vacancy exists.
Involuntary Severance from Office. Voluntary renunciation of a term of

office does not cancel the renounced term in the computation of the three term
limit; conversely, involuntary severance from the office for any length of time
short of the full term provided by law amounts to an interruption of continuity of
service. Thus, in Lonzanida vs. COMELEC, 311 SACRA 602, the Court ruled that
the two conditions which must concur for the three-term limit to apply were
absent. Lonzanida cannot be considered as having been duly elected to the post in
the May 1995 elections since his assumption of office as mayor cannot be deemed
to have been by reason of a valid election but by reason of avoid proclamation.
And as a corollary point, , he did not fully serve the 1995-1998 mayoral term
having been ordered to vacate his post before the expiration of the term, a
situation which amounts to an involuntary relinquishment of office.
LOCAL OFFICIALS /80
But in Ong vs. Alegre, 479 SCRA 473, the Supreme Court held that Ong’s
assumption as mayor of San Vicente, Camarines Sur from July 1, 1998 to June
30, 2001, constitutes “service of full term” and should be counted as full term
served in contemplation of the three – term limit prescribed by the Constitution
While Ong’s opponent “won” in an election protest in the 1998 mayoralty race,
and therefore was the legally elected mayor, that disposition was without
practical and legal use and values, having been promulgated after the term of the
contested office has expired. Ong’s contention that he was only a presumptive
winner in the 1998 mayoralty derby as his proclamation was under protest did not
make him less than a duly elected mayor. His proclamation by the Municipal
Board of Canvassers as duly elected mayor in 1998 mayoralty election coupled by
his assumption of office and his continuous exercise of the functions thereof from
the start to finish of the term, should be legally be taken as service for a full term
in contemplation of the three-term rule. This case equally applies to Morales
because he was the mayor of Mabalacat, Pampanga continuously for the entire
period without any break notwithstanding the decision in the electoral protest case
ousting him as mayor. Such circumstance does not constitute an interruption in
serving the full term, hence he is disqualified. (Rivera III vs. COMELEC, GR No.
167591, May 6, 2007)
SFP was elected and served three consecutive term as municipal
councilor. During his second term, he succeeded as vice-mayor due to the
retirement of the incumbent vice-mayor. His assumption as vice-mayor was
considered an involuntary severance from his office as municipal councilor
resulting an interruption in his second term of service. If the official runs again for
the same position he held prior to his assumption of the higher office, then his
succession to said position is by operation of law and is considered as an
involuntary severance from office, hence qualified to run again as municipal
councilor. (Montebon vs. COMELEC, 551 SCRA 50)
Voluntary Severance from Office. Punong Barangay who had already

completed two consecutive terms of office and ran for a third term in the
Barangay elections of 2002, and while serving his third term as Punong Barangay,
he subsequently ran and won and assumed the position of a Sangguniang Bayan
member, has effectively abandoned the position of a Punong Barangay and he
intended to forego of it. Abandonment, like resignation, is voluntary. When he
voluntarily relinquished his office as a Punong Barangay, there is voluntary
renunciation of said office. Such circumstance does not constitute an interruption
in serving the full term, hence he is disqualified. (Bolos vs. COMELEC, GR No.
184082, March 17, 2009)
Interruption of Service. In Abundo v. COMELEC, GR No. 291716,
January 8, 2013, the Court held that the two-year period during which Abundo’s
opponent was serving as mayor should be considered as an interruption, which
effectively removed Abundo’s case from the ambit of the three-term limit rule.
Pending the favorable resolution of his election protest, Abundo was relegated to
LOCAL OFFICIALS /81
being an ordinary constituent since his opponent, as presumptive victor in the

2004 elections, was occupying the mayoralty seat. For two years, Abundo was a
private citizen warming his heels while awaiting the outcome of his protest. An
elected official who was belatedly declared as winner and assumed office for only
a short period of term is declared eligible by the Court, because he was deprived
of his right and opportunity to serve his constituents and that an injustice may be
committed against the people of Viga by depriving them of their right to choose
their leaders.
Vacancies and Succession

I. Permanent Vacancy
This type of vacancy arises when the local elective official 1) dies
2) permanently incapacitated to discharge the functions of his office 3)
fills a higher vacant office 4) refuses to assume office 5) fails to qualify
6) removed from office 7) voluntarily resigns
1. Governor and Mayor - succession by the
a. Vice Governor and Vice Mayor
Where the office is vacated by an ineligible candidate
whose Certificate of Candidacy was invalid at the time of filing,
the eligible candidate who garnered the highest number of votes
must assume the office. The ineligible candidate who was
proclaimed and who already assumed office is a de facto officer by
virtue of the ineligibility. (Jalosjos v. COMELEC, 193314, June
25, 2013)
The rule on succession in Section 44 of the LGC cannot
apply in instances when a de facto officer is ousted from office and
the de jure officer takes over. The ouster of a de facto officer
cannot create a permanent vacancy as contemplated in the LGC.
There is no vacancy to speak of as the de jure officer, the rightful
winner in the elections, has the legal right to assume the position.
(Ibid.)
b. Sanggunian members according to ranking

2. Punong Barangay – succession by the
a. Highest ranking sangguniang member
b. Second Highest ranking sangguniang barangay member
3. Ranking in the sanggunian shall be determined on the basis of the
proportion of the votes obtained to the number of registered voters in each
district, and not merely on the number of voters who actually voted.
(Victoria vs. COMELEC, 229 SCRA 269).
4. Ties will be resolved by drawing of lots. (Sec.44)
LOCAL OFFICIALS /82
5. Sanggunian
a. Provinces, highly urbanized cities and independent component
cities – appointment by the President
b. Component city and municipality – appointment by governor
c. Under paragraph (a) of Section 45 of the Local Government Code,
it is the Provincial Governor who fills any permanent vacancy in
the Sangguniang Bayan by appointment. (Farinas vs. Barba, 256
SCRA 396))
The “last vacancy” in the Sanggunian refers to that created
by the elevation of the members formerly occupying the next
higher rank which in turn also had become vacant by any of the
causes enumerated, and the term “last vacancy” is thus used in
Section 45(b) of the Local Government Code, to differentiate it
from the other vacancy previously created. In Navarro vs. CA, 355
SCRA 672, with the elevation of Tamayo who belonged to
Reforma Party, to the position of Vice-Mayor, a vacancy occurred
in the Sanggunian that should be filled up with someone who
belongs to the political party of Tamayo. To argue that the vacancy
created was that formerly held by the 8 th Sanggunian member, a
Lakas Party Member, would result in the increase in that party’s
representation in the Sanggunian at the expense of Reforma Party.
Thus, the appointment of Navarro to fill up the vacancy in
the Sanggunian is valid. The reason behind the right given to a
political party to nominate a replacement where a permanent
vacancy occurs in the Sanggunian is to maintain party
representation as willed by the people in the election. Otherwise,
Reforma Party’s representation in the Sanggunian would be
diminished.
d. Sangguniang barangay – appointment by mayor
e. Except for the sangguniang barangay, the appointee shall come
from the political party of the member who caused the vacancy.
(Farinas vs. Barba, 256 SCRA 396))
f. If the member does not belong to any party, the appointee shall be
recommended by the sanggunian. (Ibid.)
Neither petitioner nor respondent is entitled to the vacant
seat in the Sangguniang Bayan. While petitioner was appointed by
the provincial governor, he was not recommended by the
Sangguniang Bayan. Such recommendation is a condition sine qua
non for the validity of the appointment. Although respondent was
recommended by the Sangguniang Bayan, it was the municipal
mayor and not the provincial governor who appointed him. (Ibid.)
LOCAL OFFICIALS /83
g. The appointee for the sangguniang barangay shall be

recommended by the sangguniang barangay.
h. Vacancy in the representation of the youth and the barangay in the
sanggunian shall be filled by the official next in rank of the
organization. (Sec. 45)
II. Temporary vacancy

This vacancy arises when an elected official is temporarily
incapacitated to perform their duties due to legal or physical reasons such
as physical sickness, leave of absence, travel abroad or suspension from
office.
1. When the governor, mayor or punong barangay is temporarily
incapacitated to perform his duties, the vice governor, vice mayor, or
ranking sangguniang barangay member shall exercise his powers except
the power to appoint, suspend or dismiss employees, which can only be
exercised after 30 working days.
Since the Local Government Code is silent on the mode of
succession in case of temporary vacancy in the position of vice governor,
because of the exigencies of public service, the President, through her alter
ego, the Secretary of Local Government, may extend a temporary
appointment to remedy the situation. The President is authorized by law to
make temporary appointments to vacant appointive positions. In the
absence of a contrary provision, there is no reason why this cannot be
applied to this case. The appointment of petitioner is in accordance with
the intention of the LGC, which provides that in case of permanent
vacancy in the office of the vice governor, the member of the Sangguniang
Panlalawigan who obtained the highest number of votes shall assume
office. The contention the it’s the SP who should make the appointment
has no merit. As between the President, who has supervision over local
governments, and the members of the SP, who are junior to the vice
governor, the former should prevail. Even if the President has no power to
appoint petitioner, at the very least he is a de facto officer and is entitled to
compensation. (Menzon vs. Petilla, 197 SCRA 251)
2. When the local chief executive is traveling within the Philippines, but
outside of his jurisdiction for not more than 3 consecutive days, he may
designate an officer-in-charge. The authorization shall specify the powers
of the officer-in-charge except the power to appoint, suspend or dismiss
employees.
3. If the local chief executive does not issue the authorization, the vice
governor, vice mayor, or highest ranking sangguniang barangay member
shall assume his powers on the fourth day of his absence. (Sec. 46)
LOCAL OFFICIALS /84
A Vice-governor who is concurrently an acting governor is actually a

quasi-governor. For the purpose of exercising his legislative prerogatives and
powers, he is deemed a non-member of the Sangguniang Panlalawigan for the
time being. (Gamboa v. Aguirre, GR No. 134213, July 20, 1999)
Powers of Vice Governor
In Atienza vs. Villarosa, 458 SCRA 385, it was held that the Vice
Governor, as presiding officer of the Sangguniang Panlalawigan, has
administrative control of the funds of the said body and it is he who has the
authority to approve disbursement vouchers for expenditures appropriated for the
operation of the Sangguniang Panlalawigan. The power of the Vice Governor to
approve disbursement vouchers necessarily includes the authority to approve
purchase orders covering the same applying the doctrine of necessary implication.
In the same case, the Supreme Court also ruled that the Provincial Governor has
no authority to appoint officials and employees of the Sangguniang Panlalawigan.
The union of executive and legislative has been disbanded under the Local
Government Code.
Compensation
The compensation of local officials and personnel shall be determined by
the Sanggunian concerned and may be based upon the pertinent provisions of RA
6758. Increase in compensation of elective local officials shall take effect after
expiration of the term of those approving the increase. Elective officials shall be
entitled to the same leave privileges as those enjoyed by appointive local officials,
including the cumulation and commutation thereof. (Sec. 81)
Recall
Initiation. RA 9244 effectively amended Section 70 of the LGC and thus,
eliminated the preparatory recall assembly as one of the modes of initiating recall
and provided a new procedure in the conduct of recall initiated through the
written petition of registered voters according to the following schedule:
-25% - where the voting population of LGU does not exceed 20,000;
-at least 20% but not less than 5,000 - for LGU’s with at least 20,000 but
not more than 75,000 voting population;
-at least 15% but not less than 15,000 for LGU’s with at least 75,00 but
not more than 300,000 voting population; AND
-at least 10% but not less than 45,000 for LGU’s with over 300,000 voting
population.
In Angobung vs. Paras, 269 SCRA 245, it was held that only a petition
signed and filed by at least 25% of the total number of registered voter, and not
only by the respondent, may validly initiate recall proceedings.
Recall Election. The official sought to be recalled is automatically a
candidate. (Sec. 71)
LOCAL OFFICIALS /85
Effectivity of Recall. Recall shall be effective upon the election and

proclamation of successor receiving the highest number of votes. (Sec. 72)
Prohibition against resignation. The official sought to be recalled
cannot resign while the recall process is in progress. (Sec. 73)
Limitations. An official may be subject of recall only once during his
term. No recall shall take place within one year from assumption of office or one
year before the regular local election. (Sec. 74) The phrase “regular election”
should be construed as referring to an election where the office held by the local
elective official sought to be recalled will be contested. (Paras vs. COMELEC,
264 SCRA 49)
Another limitation is the prohibition to conduct recall election within one
year from the date of assumption of office of the official concerned. The purpose
of this limitation is to provide a reasonable basis for judging the performance of
an elective local official. As long as the election is held outside the one year
period from assumption from office of the local official sought to be recalled, the
preliminary proceedings to initiate recall can be held even before the end of the
first year in office of said local official. (Claudio vs. COMELEC, 331 SCRA 388)
Resignation
Acceptance by Proper Authority. Resignation of elective local officials
shall be deemed effective only upon acceptance by the following authorities:
a. The President, in case of governors, vice-governors, and mayors and vice-
mayors of highly urbanized cities and independent component cities.
b. The governor, in case of municipal mayors and vice-mayors, city mayors
and vice-mayors of component cities.
c. Sanggunian concerned, in case of sanggunian members
d. The city or municipal mayor, in case of barangay officials.
Effectivity. Resignation takes effect upon acceptance. It is deemed

accepted if not acted upon within 15 working days. Irrevocable resignation by
sanggunian members takes effect upon presentation before an open session. (Sec.
82)
Practice of Profession
1. Governors or mayors are prohibited from practicing their profession or
engaging in any occupation.
2. Sanggunian members may practice their profession, engage in any
occupation, or teach except during session hours.
VGR, a lawyer and a Punong Barangay and Chairman of the
Lupong Tagapamayapa, presided over the conciliation proceedings in an
ejectment case. The parties to the case were not able to amicably settle
their dispute. Then one of the parties sought his legal assistance and
LOCAL OFFICIALS /86
handled her case. In the course thereof, he prepared and signed pleadings
including the answer with counter claim, pre-trial brief, position paper and
notice of appeal. He is sued for violation of Rule 6.03 of the Code of
Professional Responsibility. The Court held that the Rule applies only to a
lawyer who has left the government service in connection “with any
matter in which he intervened while in said service.” Accordingly, as
Punong Barangay, he was not forbidden to practice his profession.
However, he should have procured prior permission or authorization from
the head of his Department (DILG Secretary), as required by civil service
rules and regulations, particularly Section 12, Rule XVIII of the Revised
Civil Service Rules. In acting as a counsel for a party without first
securing the required written permission, he not only engaged in the
unauthorized practice of law but also violated civil service rules which is a
breach of rule 1.01 of the Code of professional Responsibility. (Catu vs.
Rellosa, AC No. 5738, February 19, 2008)
3. Sanggunian members who are lawyers shall not:
a. Appear as counsel in any civil case where the local government is
the adverse party.
The complaint for illegal dismissal filed against the city
engineer is in effect a complaint against the city, who was the real
employer of the dismissed employees. A judgment against the city
engineer would actually be a judgment against the city. By serving
as counsel of the dismissed employees, petitioner, a city councilor
violated the provision against representing interests adverse to the
city. (Javellana vs. DILG, 212 SCRA 475)
b. Appear as counsel in a criminal case where the accused is an
officer of the national or local government accused of an offense
committed in relation to his office.
c. Collect a fee for appearance in administrative proceedings

involving the local government unit of which he is an official.
d. Use property and personnel of the government except when the
sanggunian member is defending the interest of the government.
4. Physicians may practice their profession even during office hours only on
emergencies and without monetary compensation. (Sec. 90)
Prohibited Appointment
1. No elective or appointive local official shall be eligible for appointment or
designation to any public office during his tenure.(Flores vs.Drilon,
223SCRA 568)
LOCAL OFFICIALS /87
2. Unless otherwise allowed by law or by the primary function of his office,
no elective or appointive local official shall hold any other office.
Example: Governor and Mayor as Chairman of local special bodies
3. Except for losing candidates in barangay elections, no candidate who lost
in any election should be appointed to any office within one year after
election. (Sec. 94)
Disclosure of Business and Financial Interests

Every sanggunian member, upon assumption of office shall make a full
disclosure of his business and financial interests. He shall also disclose any
business, financial or professional relationship or any relationship within the
fourth degree which he may have with anyone affected by any ordinance or
resolution of the sanggunian which involves a conflict of interests.
Such relationship includes:
i. Investment in the entity to which the ordinance may apply
ii. Contracts with any person to which the ordinance may apply.
Conflict of interests refers to a situation where a sanggunian member may
not act in the public interest due to personal consideration that may affect his
judgment to the prejudice of the public. (Sec. 51)
Disciplinary Action for Local Elective Officials

1. Grounds
a. Disloyalty to the Republic of the Philippines.
b. Culpable violation of the Constitution.
c. Dishonesty, oppression, misconduct in office, gross negligence, or
dereliction of duty.
d. Commission of an offense involving moral turpitude or punishable
by at least prision mayor.
e. Abuse of authority.
f. Unauthorized absence for 15 consecutive working days, except
sanggunian members.
g. Application for, or acquisition of, citizenship or residence or
immigrant status of another country.
h. Other grounds in this Code and other laws.
For disorderly behavior and absence without justifiable cause for

four consecutive sessions, a member of the Sanggunian may be censured,
reprimanded, excluded from the session, suspended for not more than 60
days, or expelled. Suspension or expulsion shall require concurrence of at
least two-thirds of all sanggunian members. A member sentenced by final
judgment to imprisonment for at least one year for a crime involving
moral turpitude shall be automatically expelled. (Sec.50)
LOCAL OFFICIALS /88
In the performance of his duties, the Mayor should act within the
confines of the law and not resort to the commission of a felony – a public
officer is proscribed from resorting to criminal acts in the enforcement of
the law and ordinances. (Maderazo vs. People, 503 SCRA 234)
2. Filing of complaints – Jurisdiction (Political Disciplinary Authority)
a. Elective provincial or city officials – Office of the President
b. Elective municipal official – sangguniang panlalawigan, whose
decision may be appealed to the President
c. Elective barangay official – sangguniang panlungsod or bayan,
whose decision shall be final. (Sec. 61)
3. No investigation shall be held and no preventive suspension shall be
imposed within 90 days before any local election. (Sec. 62)
4. Preventive suspension
a. Political Disciplinary Authority
i. Official of province, highly urbanized city or independent
component city – President
ii. Official of component city or municipality – Governor with
recommendation of the Sanggunian Panlalawigan
iii. Barangay official – Mayor with recommendation of the
Sanggunian Bayan/Panlungsod
b. Grounds
i. Strong evidence of guilt.
ii. Probability that continuance in office can influence or
endanger safety of records.
c. Duration
i. Single suspension – 60 days
ii. Several suspension – 90 days within a year
In criminal cases, a 90-day preventive suspension imposed
by the Sandiganbayan on a local elective official instead of the
maximum 60 days provided by Section 63 of the Local
Government Code is not flawed where the same was based on
Section 13 of RA 3019, malversation of public funds being an
offense involving fraud against government funds and is clearly
included among crimes contemplated under that section. The Anti-
Graft and Corrupt Practices Act implicitly recognizes that the
power of preventive suspension lies in which the criminal charged
is filed. The provision pendent lite applies to all persons indicted
upon a valid information under the Act, whether they be appointive
or elective officials. It applies to a Municipal mayor, a Governor, a
Congressman. It is mandatory for the court to place under
preventive suspension a public officer accused before it. (Nicart vs.
Sandiganbayan, 495 SCRA 73)
LOCAL OFFICIALS /89
5. Right to Due Process.

The respondent has the right to appear and defend in person or by
counsel, to confront the witnesses against him, and to compulsory process
to require the attendance of witnesses and production of evidence in his
favor. (Sec. 65)
In Joson vs. Torres, 290 SCRA 279, the Supreme Court ruled that
the denial of the motion of the Governor for formal investigation is
erroneous. His right to formal investigation is spelled out in
Administrative Order No. 23. He has the right to appear and defend
himself in person or by counsel, the right to confront the witnesses and the
right to compulsory attendance of witness and the production of
documentary evidence. The right of the Governor to formal investigation
was not satisfied when the complaint was decided on the basis of position
papers.
6. Decision
To render a decision in administrative cases involving elective
officials, the decision of the Sanggunian must be in “writing and stating
clearly and distinctly the facts and the reasons for such decisions.
(Malinao vs. Reyes, 255 SCRA 616) The so-called “decision’ of a member
of a Sanggunian cannot be regarded as decision of the Sanggunian for lack
of signatures of the requisite majority. (Ibid.)
7. Penalty and Power to Remove

a. The penalty of suspension shall not exceed the unexpired term of
the respondent, or a period of 6 months for every administrative
offense, nor bar his candidacy as long as he meets the
qualifications required for the office.
b. Removal from office shall bar candidacy of the respondent for any
elective office. (Sec. 66)
The Office of the President is without any power to remove
elected officials since such power is exclusively vested in the
proper courts as expressly provided for in the last paragraph of
Section 60 of the Local Government Code. (Salalima vs.
Guingona, 257 SCRA 55)
Likewise, in Pablico vs. Villapando, 385 SCRA 601, it was
held that the power to remove erring elective local officials from
service is lodged exclusively with the courts. Hence, Article 124
(b), Rule XIX of the rules and regulations implementing the Local
Government Code insofar as it vests power on the “disciplining
authority” to remove from office erring elective local officials, is
void for being repugnant to the last paragraph of Section 60 of the
Local Government. Such grant to the “disciplining authority” of
LOCAL OFFICIALS /90
the power to remove elective local officials is clearly beyond the

authority of the Oversight Committee that prepared the rules and
regulations. No such regulation may alter, amend or contravene a
provision of law, such as the Local Government Code.
The law on suspension and removal of elective public
officials must be strictly construed and applied, and the authority
in whom such power of suspension or removal is vested must
exercise it with utmost good faith, for what is involved is not just
an ordinary public official but one chosen by the people through
the exercise of their constitutional right of suffrage. Their will
must not be put to naught by the caprice or partisanship of the
disciplining authority. When the disciplining authority is given
only the power to suspend and not the power to remove, it should
not be permitted to manipulate the law by usurping the power to
remove. (Ibid.)
The removal from office of local elective officials must not
be tainted with partisan politics and used to defeat the will of the
voting public. Congress itself saw it fit to vest that power in a more
impartial tribunal, the court. Furthermore, the local government
units are not deprived of the right to discipline local elective
officials; rather, they are prevented from imposing the extreme
penalty of dismissal. (Sangguniang Barangay of Barangay Don
Mariano Marcos, Bayombong, NV vs. Punong Barangay Martinez,
GR 170626, March 3, 2008)
8. Administrative Appeal
a. Period – 30 days
b. Appellate authority:
i. Sangguniang panlungsod of component cities and
sangguniang bayan – sangguniang panlalawigan
ii. Sangguniang panlalawigan and sangguniang panlungsod of
highly urbanized cities and independent component cities –
President
iii. President – final (Sec. 67)
c. Execution
The decision shall be executory pending appeal and the
respondent shall be considered as under preventive suspension
should he win the appeal. In the event that the appeal results in
exoneration, he shall be paid his salary and such other emoluments
during the pendency of the appeal.(Sec. 68)
LOCAL OFFICIALS /91
The decisions of the Office of the President under the Local

Government Code are immediately executory even pending appeal
because the pertinent laws under which the decisions were
rendered mandated them so. In sum, the decisions of the Office of
the President are final and executory. No motion for
reconsideration is allowed by law but the parties may appeal the
decision to the Court of Appeals. The appeal, however, does not
stay the execution of the decision, Thus, the DILG Secretary may
validly move for its immediate execution. (Calingin vs CA, 434
SCRA 173)
The phrase “final and executory” in Sections 61c, 67 and
68, respectively, simply means that the administrative appeals will
not prevent the enforcement of the decisions. The decision is
immediately executory but the respondent may nevertheless appeal
the adverse decision to the Office of the President or to the
Sangguniang Panlalawigan, as the case may be. (Don vs. Lacsa,
GR 170810, August 7, 2007)
9. Concurrent Jurisdiction of the Ombudsman
Under RA 6770, the Ombudsman Act of 1989, the Office of the
Ombudsman has disciplinary authority over all elective and appointive
officials of the government and its subdivisions, instrumentalities and
agencies including members of the cabinet, local governments,
government - owned and controlled corporations and their subsidiaries,
except those who may be removed only by impeachment. On the other
hand, RA 7160, the Local Government Code, the Sangguniang
Panlungsod and Sangguniang Bayan have disciplinary authority over
elective barangay official. Thus, the Office of the Ombudsman has
concurrent jurisdiction with the local government units over administrative
cases against elective local officials. (Laxina vs. Office of the Ombudsman,
471 SCRA 542)
Power to Impose Preventive Suspension. RA 6770 empowers the
Ombudsman to impose a preventive suspension of a longer period of not
more than six (6) months. All appeals from the decisions of the
Ombudsman in administrative disciplinary cases may be taken to the
Court of Appeals under Rule 43 of the 1997 Rules of Civil Procedure.
Order of One-Year Suspension Not Final and Executory. A
decision of the Office of the Ombudsman finding respondent provincial
governor administratively liable for misconduct and imposing upon him a
penalty of one (1) year suspension without pay – is not among those listed
in the Ombudsman Act of 1989 as final and unappealable, hence
immediately executory. There is no general legal principle which
mandates that all decisions of quasi-judicial agencies are immediately
LOCAL OFFICIALS /92
executory. Sec. 68 of the Local Government Code only applies to

administrative decisions rendered by the Office of the President or
appropriate Sanggunian against elective local government officials.
Similarly, the provision in the Administrative Code of 1987 mandating the
execution pending review applies specifically to administrative decisions
of the Civil Service Commission involving members of the civil service.
There is no basis in law for the proposition that the provisions of the
Administrative Code of 1987 and the Local Government Code on
execution pending review should be applied suppletorily to the provisions
of the Ombudsman Act as there is nothing in the Ombudsman Act which
provides for such suppletory application. (Gov. Lapid vs. CA, 334 SCRA
738) NOTE: The Rules of Procedure of the Ombudsman has since been
amended to include provisions on execution pending appeal.
Decisions Considered Final and Unappeallable. Any order,
directive or decision of the Office of the Ombudsman imposing the
penalty of public censure, or reprimand, or suspension of not more than
one month’s salary shall be final and unappeallable. The only effect of the
Fabian ruling is the designation of the Court of Appeals as the proper
forum and of Rule 43 of the Rules of Court as the proper mode of appeal;
all other matters provided for in Section 27 of RA 6770, including the
finality and the non-finality of decisions, are not affected and still stand.
(Barata vs. Abalos, GR No. 142888, June 6, 2001,Herrera vs. Bohol, GR
No. 155320, February 5, 2004)
10. Effect of Reelection

The Doctrine of Condonation of Misconduct of Public Officers
Committed During a Previous Term is of American origin introduced in
the Philippines in Pascual v. Hon. Provincial Board of Nueva Ecija, 106
Phil 446 (1959). Known as the Doctrine of Condonation, it expresses that
an elective public official who has been reelected to his position cannot be
removed administratively for acts committed during his previous term
because, by reelecting the public officer into office, the electorate has been
deemed to have condoned or forgiven his acts during the previous term
and the public officer becomes immune from removal by way of
administrative charges.
A Provincial Governor cannot be removed for administrative
misconduct committed during a prior term, since his reelection to office
operates as a condonation of the officer’s previous misconduct to the
extent of cutting off the right to remove him therefor. The foregoing rule,
however, finds no application to criminal cases against petitioner.
(Aguinaldo vs. Santos 212 SCRA 768)
LOCAL OFFICIALS /93
A reelected local official may not be held administratively
accountable for misconduct committed during his prior term of office. The
rationale for this holding is that when the electorate put him back into
office, it is presumed that it did so with full knowledge of his life and
character, including his past misconduct. If, armed with such knowledge,
it still reelects him, then such reelection is considered a condonation of his
past misdeed. (Mayor Alvin B. Garcia vs. Hon. Arturo C. Mojica, 314
SCRA 211, GR No139043, September 10, 1999)
The reelection of a local official bars the continuation of the
administrative case against him and the case is deemed dismissed under
the Doctrine of Condonation. Any disciplinary proceedings against a
respondent is abated if in the meantime he is reelected, because his
reelection results in a condonation of whatever misconduct he might have
committed during his previous term.(Malinao, supra)
Although Reyes brought an action to question his removal in an
administrative case, the TRO he brought in lapsed, with the result that the
decision was served on the petitioner and it thereafter became final,
because the petitioner failed to appeal to the Office of the President. He
was thus validly removed from office and pursuant to Section 40 (b) of the
Local Government Code, he was disqualified from running for reelection.
(Reyes v. COMELEC, 254 SCRA 524)
The Philippine rule on condonation is very simple. This situation is
of two kinds: (1) The public official has been re-elected to the same office
and he is sought to be removed or suspended for acts committed during his
present term, and (2) The public official is being removed or suspended
for acts committed during his present term but during the pendency of the
proceedings or during the pendency of the appeal, an election is held and
the public official is re-elected into the same office. (Miguel U. Silos, The
need to Re-examine the Doctrine of Condonation for Misconduct
Committed During a Previous Term”, Ateneo Law Journal, Vol.54:1085)
With the advent of the 1973 Constitution, the approach in dealing
with public officers underwent a significant change. The new charter
introduced an entire article on accountability of public officers which
positively recognized, acknowledged and declared that “public office is a
public trust.” Accordingly, “public officers and employees shall serve with
the highest degree of responsibility, integrity, loyalty and efficiency, and
shall remain accountable to the people.” Hence, the Court in Morales v.
Court of Appeals and Binay Jr. GR Nos.2007105, November 10, 2015,
effectively abandoned the doctrine which is wholly within the prerogative
of the Court with a clarification that such abandonment should be
prospective in application for the reason that judicial decisions applying or
interpreting the laws or the Constitution, until reversed, shall form part of
the legal system of the Philippines.
---oo0oo---
VIII. HUMAN RESOURCES AND DEVELOPMENT
A. Casual Employees
The local chief executive may employ casual employees without
approval of the Civil Service Commission for not more than 6 months.
(Sec. 77)
B. Prohibited Interests
1. It is prohibited for any local government official to directly or
indirectly:
a. Engage in any business transaction with the local
government unit of which he is an official or over which he
has supervision, whereby money is to be paid or property is
to be transferred out of the resources of the local
government unit to him.
b. Hold interest in any cockpit or game licensed by the local
government unit.
The Local Government Code which specifically
prohibits local government officials from possessing
pecuniary interest in a cockpit licensed by the local
government unit and, which in itself, prescribes the
punishment for violation thereof, is paramount to the Anti-
Graft Law which penalizes possession of prohibited interest
in a general manner. (Teves, vs. Sandiganbayan, 447 SCRA
309)
Absent any evidence that the mayor divested
himself of his ownership over the cockpit, his ownership
thereof is rightly to be presumed because a thing once
proved to exist continues as long as is usual with things of
that nature. (Ibid.)
c. Purchase property forfeited to the local government unit for
unpaid taxes or by virtue of a legal process at the instance
of the local government unit.
d. Be a surety for any person contracting with the local
government unit.
e. Use any public property of the local government unit for
private purpose. (Sec. 89)
2. It is unlawful for any public official and his relatives within the
fourth civil degree of consanguinity or affinity to enter into any
contract for the construction, acquisition, operation or maintenance
of any project or procurement of materials or equipment with the
local government. (Sec. 520)
94
HUMAN RESOURCES AND DEVELOPMENT /95
C. Appointments and Limitations

Midnight Appointment. The constitutional prohibition on the so-
called “midnight appointments,” specifically those made within two
months immediately prior to the next presidential elections, applies only to
the President or Acting President. There is no law that prohibits local
elective officials for making appointments during the last days of their
tenure absent fraud on their part, when such appointments are not tainted
by irregularities or anomalies which breach laws and regulations
governing appointment. (De Rama vs. CA, 353 SCRA 650)
However, Memorandum Circular No. 9 s. 2003 issued by the Civil
Service Commission pursuant to CSC Resolution No. 030918 dated
August 28, 2003, states that all appointments of whatever nature or status
issued within 45 days before any national or local elections shall be
disapproved, subject to the exception pursuant to Section 262 (g) of the
Omnibus Election Code. The CSC MC further states that all appointments
issued by elective appointing officials after elections up to June 30 shall be
disapproved except if the appointee is fully qualified for the position and
had undergone regular screening processes before the Election Ban as
shown in the Personnel Selection Board (PSB) report or minutes of
meeting.
CSC Memorandum Order No. 19, S. of 1992, provides that heads
of departments appointed by the local chief executive must have the
concurrence of the majority of all the members of the Sanggunian
concerned. (Lameyra vs. Pangilinan. 322 SCRA 117)
The Lo cal Government Code explicitly vests on the Punong
Barangay, upon approval by a majority of all members of the Sangguniang
Barangay, the power to appoint or replace the barangay treasurer, the
barangay secretary, and other appointive officials. The power to appoint is
to be exercised conjointly by the punong barangay and a majority of all
the members of the sangguniang barangay. Without such conjoint action,
neither appointment nor a replacement can be effectual. Applying the rule
that the power to appoint includes the power to remove, the questioned
dismissal from the office of the barangay officials by the punong barangay
without the concurrence of the majority of all the members of the
Sangguniang Barangay cannot be legally justified. (Alquisola vs. Ocol, GR
No. 132413, August 27, 1999)
Appointment of Devolved Personnel. Since Section 17 of the
LGC authorizes the devolution of personnel, assets, liabilities, records of
basic services and facilities of a national government agency to local
government units, the City Mayor 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. (Plaza vs. Cassion, 435 SCRA
294)
HUMAN RESOURCES AND DEVELOPMENT /96
Appointment of Assistant Provincial Treasurer. The Provincial
Governor is without authority to designate the petitioner as Assistant
Provincial Treasurer for Administration, because under Section 471 of the
Local Government Code, it is the Secretary of Finance who has the power
to appoint Assistant Provincial Treasurer from a list of recommendation of
the Provincial Governor. (Dimaandal vs. COA, 291 SCRA 322)
Prohibition on Nepotism. No person shall be appointed in the
career service if he is related within the fourth degree of consaguinity or
affinity to the appointing or recommending authority. (Sec. 79) However,
merely having the same family name, or middle name with the appointing
authority, does not nepotism make. Besides, the law does not absolutely
prohibit persons from being appointed to an office the appointing authority
of which is a relative so long as such relation, by consanguinity or affinity,
is not within the prohibited third degree. (Municipality of Butig, Lanao del
Sur vs. Court of Appeals, 477 SCRA 115)
Administrative Discipline for Appointive Officials
Generally, the power to appoint includes the power to remove –
employees removed by a municipal mayor without having to secure the
concurrence of the Sangguniang Bayan may be similarly terminated by him
without the need to secure the concurrence of the Sangguniang Bayan.
(Municipality of Libertad, Negros Oriental vs. Penaflor, 453 SCRA 883)
Investigation and adjudication of administrative complaints against
appointive local officials and employees including their suspension and removal
shall be in accordance with the civil service law and rules and other pertinent
laws.
a. Preventive suspension
The Local Chief Executive may preventively suspend for a period
not exceeding 60 days any subordinate official or employee under his
authority pending investigation if the charge against such official 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
service.
b. Disciplinary jurisdiction
Except as otherwise provided by law, the Local Chief Executive
may impose the penalty of removal from service, demotion in rank,
suspension for not more than one year without pay, fine in an amount not
exceeding 6 months’ salary, or reprimand. If the penalty imposed is
suspension without pay for more than 30 days, his decision shall be final;
if the penalty imposed is heavier, the decision shall be appealable to the
Civil Service Commission which shall decide the appeal within 30 days
from receipt thereof.
--o0o--
IX. LOCAL INITIATIVE AND REFERENDUM
Who may exercise

The power of initiative and referendum may be exercised by all registered
voters of the provinces, cities, municipalities, and barangays.
Distinction Between Initiative and Referendum

Initiative is the power of the registered voters to propose amendments to
the Constitution or to propose and enact legislations through an election called for
the purpose. Local initiative is the legal process whereby the registered voters of a
local government unit may directly propose, enact, or amend any ordinance.
Initiative is a process of law-making by the people themselves without
participation of their elected representatives, while referendum consists of the
electorate approving or rejecting what has been enacted by a legislative body.
(Subic Bay Metropolitan Authority vs. Commission on Elections, 262 SCRA 492)
A. Initiative
1. Procedure
a. Number of signatures of voters
i. At least 1,000 in provinces and cities
ii. At least 100 I municipalities
iii. At least 50 in barangays
b. Period to collect signatures
i. 90 days in provinces
ii. 60 days in municipalities
iii. 30 days in barangays
2. Limitations on Initiatives
a. The power of initiative shall not be exercised more than
once a year
b. It shall extend only to matters within the power of the
sanggunian to enact
In delineating the scope of an initiative or
referendum, Section 32, Article VI of the Constitution
includes any act of a local legislative body. The
Constitution includes not only ordinances but resolutions as
appropriate subjects of a local initiative. Section 3(6) of RA
6735 expressly includes resolutions as subjects of initiative
on local legislations. Section 124 of the Local Government
Code includes all matters within the legal powers of the
Sanggunian to enact in the scope of initiative, which
includes resolutions. (Garcia vs. COMELEC, 237 SCRA
279)
97
LOCAL INITIATIVE AND REFERENDUM /98
c. If the sanggunian adopts the proposition, the initiative shall
be cancelled. (Sec. 124)
3. Limitations on Sanggunian
Any proposition or ordinance approved through initiative
or referendum shall not be repealed, modified or amended by the
sanggunian concerned within six (6) months from the date of
approval thereof, and any be amended, modified or repealed by the
sanggunian within three (3) years by three-fourths vote of all
members, provided that in case of barangays, the period shall be 18
months after the approval thereof. (se. 125)
B. Referendum
The local referendum shall be held under the control and direction
of the COMELEC within sixty (60) days in case of provinces and cities,
forty-five days in case of municipalities and thirty days (30) days in case
of barangays.
--oo0oo—
APPENDIX
CONSTITUTIONAL PROVISIONS
ON LOCAL GOVERNMENTS
ARTICLE II
DECLARATION OF PRINCIPLES AND STATE POLICIES
Section 25. The State shall ensure the autonomy of local government
units.
ARTICLE X
LOCAL GOVERNMENT
GENERAL PROVISIONS
Section 1. The territorial and political subdivisions of the Republic of
the Philippines are the provinces, cities, municipalities, and barangays. There
shall be autonomous regions in Muslim Mindanao and the Cordilleras as
hereinafter provided.
Section 2. The territorial and political subdivisions shall enjoy local
autonomy.
Section 3. The Congress shall enact a local government code which
shall provide for a more responsive and accountable local government structure
instituted through the system of decentralization with effective mechanism of
recall, initiative, and referendum, allocate among the different local government
units their powers, responsibilities, and resources, and provide for the
qualifications, elections, appointment and removal, term salaries, powers and
functions and duties of local officials, and all other matters relating to the
organization and operation of the local units.
Section 4. The President of the Philippines shall exercise general
supervision over local governments. Provinces with respect to component cities
and municipalities, and cities and municipalities with respect to component
barangays shall ensure that the acts of their component units are within the scope
of their prescribed powers and functions.
Section 5. Each local government unit shall have the power to create
its own resources of revenues and to levy taxes, fees, and charges subject to such
guidelines and limitations as the Congress may provide, consistent with the basic
policy of local autonomy. Such taxes, fees, and charges shall accrue exclusively
to the local governments.
Section 6. Local government units shall have a just share, as
determined by law, in the national taxes which shall be automatically released to
them.
Section 7. Local government units shall be entitled to an equitable
share in the proceeds of the utilization and development of the national wealth
within their respective areas, in the manner provided by law, including sharing the
same with the inhabitants by way of direct benefits.
Section 8. The term of office of elective local officials, except
barangay officials, which shall be determined by law, shall be three years and no
such official shall serve for more than three consecutive terms. Voluntary
renunciation of the office for any length of time shall not be considered as an
interruption in the continuity of his service for the full term for which he was
elected.
Section 9. Legislative bodies of local governments shall have sectoral
representation as may be provided by law.
Section 10. No province, city, municipality, or barangay 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 approval by a majority of the votes cast in a plebiscite in the political
units directly affected.
Section 11. The Congress may, by law, create special metropolitan
political subdivisions, subject to a plebiscite as set forth in Section 10 hereof. The
component cities and municipalities shall retain their basic autonomy and shall be
entitled to their own local executives and legislative assemblies. The jurisdiction
of the metropolitan authority that will thereby be created shall be limited to basic
services requiring coordination.
Section 12. Cities that are highly urbanized, as determined by law, and
component cities whose charters prohibit their voters from voting for provincial
elective officials, shall be independent of the province. The voters of component
cities within a province, whose charters contain no such prohibition shall not be
deprived of their right to vote for elective provincial officials.
Section 13. Local government units may group themselves, consolidate
or coordinate their efforts, services, and resources for purposes commonly
beneficial to them in accordance with law.
Section 14. The President shall provide for regional development
councils or other similar bodies composed of local government officials, regional
heads of departments and other government offices, and representatives from non-
governmental organizations within the regions for purposes of administrative
decentralization to strengthen the autonomy of the units therein and to accelerate
the economic and social growth and development of the nits in the region.
AUTONOMOUS REGIONS
Section 15. There shall be created autonomous regions in Muslim
Mindanao and in the Cordilleras consisting of provinces, cities, municipalities,
and geographical areas sharing common and distinctive historical and cultural
heritage, economic and social structures, and other relevant characteristics within
the framework of this Constitution and the national sovereignty as well as
territorial integrity of the Republic of the Philippines.
Section 16. The President shall exercise general supervision over
autonomous regions to ensure that laws are faithfully executed.
Section 17. All powers, functions, and responsibilities not granted by
this Constitution or by law to the autonomous regions shall be vested in the
National Government.
Section 18. The Congress shall enact an organic act for each
autonomous region with the assistance and participation of the regional
consultative commission composed of representatives appointed by the President
from a list of nominees from multisectoral bodies. The organic act shall define the
basic structure of government for the region consisting of the executive
department and legislative assembly, both of which shall be elective and
representative of the constituent political units. The organic acts shall likewise
provide for special courts with personal, family, and property law jurisdiction
consistent with the provisions of this Constitution and national laws.
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, provided that only provinces, cities, and geographic areas voting
favorably in such plebiscite shall be included in the autonomous region.
Section 19. The first Congress elected under this Constitution shall,
within eighteen months from the time of organization of both Houses, pass the
organic acts for the autonomous regions in Muslim Mindanao and the Cordilleras.
Section 20. Within its territorial jurisdiction and subject to the
provisions of this Constitution and national laws, the organic act of autonomous
regions shall provide for legislative powers over:
(1) Administrative organization
(2) Creation of sources of revenues;
(3) Ancestral domains and natural resources;
(4) Personal, family, and property relations;
(5) Regional urban and rural planning development;
(6) Economic, social, and tourism development;
(7) Educational policies;
(8) Preservation and development of the cultural heritage; and
(9) Such other matters as may be authorized by law for the promotion of
the general welfare of the people of the region.
Section 21. The preservation of peace and order within the regions
shall be the responsibility of the local police agencies which shall be organized,
maintained, supervised, and utilized in accordance with applicable laws. The
defense and security of the regions shall be the responsibility of the National
Government.

Pub Cor Notes 16

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Pub Cor Notes 16

Uploaded by

Copyright:

Available Formats

REVIEW NOTES

LAWS ON PUBLIC CORPORATION

Atty. Hilario Justino F. Morales

Corporation is an artificial being created by operation of law, having the right

Dual Nature of Municipal Corporation

Criterion to determine whether corporation is public: The relationship of the

II. Ensure accountability of LGU’s through institution of effective

INITIATIVE is the process by which the registered voters directly propose

1. National Government and Local Government Units

autonomy and separation of powers of the executive and legislative

Power of Control and Power of General Supervision

General Responsibilities of the National Government towards LGU’s

people with the right to access public information. It is a mechanism of

2. Inter-Local Government Relations

d. Review of barangay ordinances by the Sangguniang Panlungsod or

3. Relations with PO’s and NGO’s

Special Local Bodies where the Private Sector

The following shall be given priority in the annual school board

5. Local Health Board

6. People’s Law Enforcement Board (PLEB)

Necessity of Fixing Corporate Limits

SECOND, certain governmental acts pointed to the State’s recognition of

Likewise, in Municipality of Jimenez vs. Baz, 265 SCRA 182, the

Substantive Requisites. 1) Average annual income of at least two

Inasmuch as RA 9009 amended Section 450 of the Local Government

Summary of Substantive Requirements in the Creation of LGU’s

Division and Merger of LGU’s

Autonomous Regions. The Philippine Constitution mandates the creation

When Conducted. Section 10 of the LGC provides that the creation,

Sections 5 and 6 of BP 881, the Omnibus Election Code, provide the

Upgrading of a component city into a highly urbanized city. In Umali v.

is precisely for this reason why Section 10 of Article X of the Constitution

Attack Against Invalidity of Incorporation

I. Governmental Powers of LGU’s

Essential Requisites in the Valid

3. Equal protection clause. (The interests of the public in general, as

VALIDITY OF ORDINANCES AND ACTS OF LGU’s

Imposition of Conditions to Business Permit

avail of extrajudicial remedies. The appropriate remedies to enforce payment of

Lease of Stall in Public Market

Operation of Common Terminal

B. Power to Generate and Apply Resources - Sec. 18, LGC

statutory provisions on municipal taxing powers, doubts must be resolved in favor

Main sources of revenues of LGU’s

Section 4 of the Administrative Order 372 which directs the

B. Under the Local Government Code

Fundamental Principles on Local Taxation

Public hearings are conducted by legislative bodies to allow interested

Where the Secretary of Justice reviews, pursuant to law, a tax measure

Shares in National Wealth

LGU’s shall receive 1% of the gross sale or receipts of the preceding

How National Wealth is Distributed

Fundamental Principles of Local Fiscal Administration

C. Eminent Domain (Sec. 19, LGC)

Coverage. Only private properties, whether real or personal, including

Taking. There is taking when the expropriator enters into a a private

shall be ascertained as of the date it was actually taken, because it is as of that

Jurisdiction. An expropriation suit falls within the jurisdiction of the

Sec. 9 of RA 7279, otherwise known as the Urban Development

Expropriation as a mode of acquiring lands for socialized housing

RA 7279 expressly exempted “small property owners” from

A letter offered to prove that municipality’s desire or intent to

There are two phases of an expropriation proceedings:

D. Reclassification of lands – Sec. 20