Prelims Period
instrumentality.
FIRST MEETING: SEPTEMBER 03, 2021
To better understand the concept of Public
Corporation, discuss Boy Scout v. COA
COA wanted to conduct annual audit on the BSP, but the
latter claims that they are private corporation and is not
under the jurisdiction of COA. The Constitution provides
that gov. instrumentalities are subj. to COA audit.
BSP contended that there was a prd the composition of
the national executive board of BSP to the effect that
substantial government participation was trimmed. Ergo,
BSP said “hindi na kami subject sa jurisdiction ng COA”.
The question here is, because it has something to do
with being a public corporation, whether BSP is subject to
jurisdiction of COA.
BSP is still subject to Cevious SC decision. In BSP v.
NLRC, BSP was classified as a GOCC and that
conclusion was anchored on the substantial government
participation in the national executive board of BSP.
According to BSP, there was a law which amended the
charter of BSP, so it altereOA. They are still public
corporation because they are an attached agency to
DECS so national boards still has the jurisdiction over the
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then DECS Secretary, so this makes it a government
Does it fit the definition of public corporation? Yes
because 1) it was created by a law (Commonwealth Act,
Presidential Decree, RA 7278); 2) it was created for
public interest, to create patriotism among its members.
You mentioned that BSP is government
instrumentality. How do you define government
instrumentality? It is created by the government in order
to help them do their task or to dispose some of their
duties. In this case, BSP will help them promote
patriotism.
Is government instrumentality integrated within the
department framework? No, because it’s just an
attached agency.
What is the basis of definition of instrumentality? It
can be found in the administrative code. It refers to any
agency of the national government, not integrated within
the department framework vested with special functions
or jurisdiction by law endowed with some, if not all, of
corporate powers administering special funds enjoying
operational autonomy usually through the charter. This
term includes regulatory agencies, chartered institutions,
and GOCC.
Does the BSP fit the definition under the
Administrative Code? Yes because it is an attached
agency of DECS
Is there other law that justifies the characterization of
the BSP as a public corporation? Art. 44 of Civil Code
recognizes corporations, institutions, and entities for
public interest or purpose, created by law, as juridical
persons.
What is the public interest being pursued by BSP?
Can you correlate that with a Constitutional
provision? Art. II, Sec. 13, “The State recognizes the
vital role of the youth in nation-building and shall promote
and protect their physical, moral, spiritual, intellectual,
and social well-being. It shall inculcate in the youth
patriotism and nationalism, and encourage their
involvement in public and civic affairs.” – in correlation
with Art. 44 of the NCC
SC ruled that BSP is not subject to the test of
government ownership and control and economic
viability. Explain. Art. XII, Sec. 16, “The Congress shall
not, except by general law, provide for the formation,
organization, or regulation of private corporations. GOCC
may be created or established by special charters in the
interest of the common good and subject to the test of
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economic viability.” This prohibits Congress from
creating private corporations through special law.
The ponencia cited the dissenting opinion of Justice
Carpio. According to him, the Constitution, based on
that provision, only recognizes 2 classes of
corporations: Private corporations under a general
law, and GOCCs created by special charters. How
did the SC address this? There is no prohibition here to
create a corporation based on
BSP is a public corporation, an instrumentality,
Is Congress prohibited from passing a law creating a
public corporation? What the Constitution prohibits is
only the creation of private corporation, other than by a
general law e.g. Revised Corporation Code. But it does
not prevent Congress from passing laws creating public
corporations. In fact, according to the SC, there had been
many laws already creating public corporations.
BSP is not subject to the requirement of test of
economic viability. Why? No, because it is not a
GOCC. In Art. XII Sec. 16, the requirement of economic
viability only applies to GOCC. Test of economic viability
does not apply to government entity/public corporations
performing or dealing with governmental functions, to
which BSP would fall under.
Here, the BSP Charter was amended and the
substantial government participation was removed.
Did that justify BSP’s conclusion that now it is
already considered a private corporation? No. Aside
from substantial government function, we can still
consider the purpose or function of that particular agency
and the statutory designation that it has.
Did SC mention the reason and effect of removal of
government’s participation (there was still some, but
not longer substantial)? Because it is a public
corporation. It’s already a public corporation so you don’t
have to consider ownership and control. Examining the
intent of the legislators pertaining to the amended BSP
charter, it’s only meant to further promote its purpose, the
well being of the youth. It is not in any way intended to
privatize BSP.
Is Philippine National Red Cross a public
corporation? Red Cross was declared as sui generis.
Initially, SC said that it is a private corporation. But the
problem is, there is a law which according to SC
authorizes the existence of the PNRC. Under Art. XII,
Sec. 16, the creation or organization of a private
corporation cannot be done except by general law. Ergo,
SC said that the charter of PNRC is unconstitutional, yet,
there comes the motion for recon filed and at this point it
was clarified. That’s where the Sui Generis character of
the PNRC was concluded in the resolution of the motion
for recon. According to the SC, the PNRC is neither a
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political subdivision, agency or instrumentality of the
government, nor a GOCC, nor a private corporation. It is
Sui Generis. In view of the protection afforded to it by the
Geneva Conventions, and its function under the
International Humanitarian Law, among other things.
Define Private Corporation.
Distinguish Private Corporation from a Public
Corporation. In the aspect of its creation, Public
Corporation can be created through either general or
special law. Private Corporations can be created first if
there’s a will or agreement that the members would
constitute private corporation; recognized by the state, or
state gives its imprimatur to the existence of the
corporation. The agreement of parties by itself does not
create private corporation. It is the recognition by the
State that gives it its juridical existence or personality.
Is there a voluntariness in the creation of Public
Corporation? Its creation is an involuntary consequence
of the legislature.
Distinguish Public Corporation from a GOCC.
It has something to do w/ its relationship w/ the
State, right? Yes.
Before I forget, in your prescribed reference
(Rodriguez), the author cited the case of Asuncion v.
Yriarte. Can you recite that case? What are the
purposes stated in articles of incorporation? It has
something to do with a petition to compel the submission
of articles of incorporation. The thing is, what’s stated in
the articles of incorporation be the creation of a corporate
entity private corporation for that mater for the ownership
of properties in a certain barrio. Do you think the
articles of incorporation can be submitted, for
purposes of registering a private corporation? No
because if you incorporate a private corporation which
effectively creates an LGU, then it would diminish the
territory of other municipalities of other LGU. So that
cannot be done. It is an old case but somehow it is
relevant to our discussion that’s why kindly take note
of that.
Let’s go back to GOCCs. Now, let’s try to understand
GOCCs better. There are good cases, Republic v.
Heirs of Bernabe for instance. Recite. To simplify,
they’re claiming that the lot is covered by an area which
is within the Clark Airbase. Now the BCDA is trying to
recover the property. In fact the property was mortgaged
that’s why a certain bank in Bulacan was impleaded.
What happened in the proceeding? The case was
dismissed by the RTC because the Republic, according
to the trial court, was not a real party in interest. Now,
what’s the issue when the case was elevated to the
SC. WON BCDA is a GOCC. SC ruled that BCDA is not
a GOCC. It cited Manila International Airport Authority
case; BCDA invoked Shipside case ruling which BCDA
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was declared as a GOCC. However, the MIA case
changed the landscape. Also, in a more recent case, in
BCDA v. CIR, it was declared that BCDA is a government
instrumentality and not a GOCC. BCDA is neither a stock
nor non-stock corporation. Non-stock corporation is one
that has members; in this case, BCDA has no members.
In the Revised Corporation Code, it was provided that
non-stock corporation is one that has various purposes
such as charity, religion, education, etc; BCDA was not
organized for that purpose. GOCC is an entity which is
organized as stock or non-stock corporation. There’s
this law, RA 10149, a law pertaining to GOCC
governance. Is there something that was changed as
a definition of GOCC, which altered the definition
under the Administrative Code? Yes. It provided that in
stock corporation, the government must own the majority
of the capital stock, but in RA 10149, it is stated that the
government must own at least 51% of outstanding capital
stock. RA 10149 reduced the threshold. What is
outstanding capital stock? Outstanding capital stock
are those subscribed shares of a corporations. Does it
matter that the shares were paid already? No,
because it is already paid-up capital. Mas Malaki ang
capital stock; yun ang kabuohan. Yung outstanding
capital stock, yun yung meron nang bumili. Yun ang
GOCC. In order to determine, yun ang uunang
titignan “GOCC ba ito?.” Paano malalaman ngayon
kung GOCC yung entity? Tignan mo if it is either
stock or non-stock corporation. Sunod, elements.
What’s the importance of discerning if an entity is
stock or non-stock corporation (therefore a GOCC) or
not, as a lawyer? You can raise it as a defense. If client
don’t want to be the subject of audit of COA, they can
invoke that they are private corporation, beyond the
jurisdiction of COA. Later on, hindi lang sa audit ito
mahalaga.
How about the case of Alejandrino? The Case
involves PNCC which the COA issued a notice of
disallowance for the violation of PNCC for hiring private
lawyers which is violative of a certain circular and the
Office of the President Memorandum Circular which
inquires that if they would hire a private lawyer, they
should first have the written confirmation and
acquiescence of the government counsels. Regarding
COA issuance, who should give the written
conformity? Which office? The Office of the
Government Corporate Counsel. They need to secure
first the confirmation and acquiescence of the OGCC and
written concurrence of the commission. What was the
defense of Alejandrino? They’re saying that COA has
no jurisdiction over PNCC stating that they have no
original or special charter because they started out as a
private corporation. The defense of the petitioners is
that PNCC is a government acquired corporation,
why is that? Because the PNCC before was a private
corporation. However, because of debt equity
conversion, it was acquired by the State. It was the
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government who gave a letter of instruction, particularly
Pres. Marcos. Because it is a government acquired
corporation, does it mean that it is already a private
corporation? No. SC ruled that it is within the audit
jurisdiction of COA because it is a GOCC. What was the
legal justification why PNCC was a GOCC, thus,
subject to jurisdiction of COA? Because it is
government owned and under the supervision of the DTI,
therefore, the State has control and supervision over
PNCC. More than that, under the Administrative Law,
is there an Administrative Order? Yes, one which
gives definition for GOCC. GOCC is one which is created
by a special law and can be [one that is organized] under
the Corporation Code in which the Government has
direct or indirect control or ownership over the
corporation. Do you remember the percentage of
government ownership in PNCC? Yes, 90.3%
Even a government acquired asset corporation could
be considered as a GOCC, based on Admin. Order
59. Given the definition under the Admin. Code, a
GOCC is a corporation or entity which is organized
as a stock or non-stock corporation. In this example,
PNCC was previously a private corporation, but later
on, the shares were acquired by the government and
in this case 90.3% of the shareholdings belong to the
government.
Original Charter = Created by a special law
What are the requisites that we should look into to
determine whether the entity is a GOCC? 1) GOCC is
established by an original charter or through a general
corporation law; 2) GOCC is vested with functions related
to public need whether governmental or proprietary in
nature; 3) GOCC is either directly owned by the
government or by its instrumentalities or where the
Government owns majority of the outstanding capital
stock.
You can say that a GOCC is a GOCC unless it is formed
either as a stock or a non-stock corporation; and you
have to take into account the requisites. Remember that
the government must own at least a majority of the
outstanding capital stock. Definition under the
Administrative Code was already modified by RA 10149
or GOCC Governance Act; so it’s not majority of the
capital stock anymore, but the majority of the outstanding
capital stock. Yung ang titignan palagi to determine
whether it’s an instrumentality on one hand or a GOCC. If
it is a corporation and the majority of the outstanding
capital stock is not owned by the government or any of its
instrumentality then most probably it is a private
corporation.
There are 2 classes of Public Corporation. What are
they? Quasi-Public Corporation and Municipal
Corporation (LGU).
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What do you understand by Quasi-Public
Corporation? These are private corporations that render
public service, supply public wants, or pursue other
charitable objectives. While purposely organized for the
gain or benefit of its members, they are required by law
to discharge functions for the public benefit. It must be
stressed that a quasi-public corporation is a specie of
private corporation, but the qualifying factor is the type of
service the former renders to the public; if it performs
public service, then it becomes a quasi-public
corporation. (Philippine Society for the Prevention of
Cruelty to Animals v. COA)
COA wanted to conduct audit survey on the Philipine
Society, however the latter contended that they are a
private entity that is not subject to jurisdiction by
COA. What was the contention of COA in trying to
acquire jurisdiction for purposes of audit? COA said
that PH Society is subject to its auditing authority
because it is a public corporation since it was established
for public purpose/interest. COA was contending that PH
Society is a body politic because its primary purpose is to
secure the protection and welfare of animals.
How did the SC rule on this? It ruled that PH Society is
not under jurisdiction of COA because it is a quasi-public
corporation. Quasi-Public Corporation is basically a
private corporation whose services are geared towards
public service.
What are some examples of Quasi-Public
Corporations? SC cited examples: railroad, warehouse,
telegram, telephone, water supply corporations,
transportation companies, etc. You can even include
banks.
Have you encountered Quasi-Public Corporations
before in Consti 2? There’s this power that they can
do as long as there is proper authorization because
this power is primarily legislative. For example, PLDT
needs an additional tower but the spot that it prefers
is occupied by private individuals. What can PLDT
do? Eminent Domain. Quasi-Public Corporations can be
given the power of Eminent Domain. As far as how they
were organized or created, they can be considered as
private corporation; yet, these corporation have for their
purpose the delivery of public service or pursuit of a
public interest.
How about Municipal Corporations? These are
political and corporate body constituted by the
incorporation of inhabitants for the purpose of governing
particular territory.
What are the elements? 1) Legal creation or
incorporation; 2) Corporate name; 3) Inhabitants; and 4)
Territory
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Is there a constitutional provision that governs the
creation or division merger abolition or substantial
alteration of boundaries of a LGU/Municipal
Corporation? Yes. Under Art. X Sec. 10 of the
Constitution – it provides that such must be in
accordance with the Local Government Code. Further,
Sec. 10 of the LGC provides that it must be done only
upon approval by a majority of the votes cast in a
plebiscite called for the purpose in the political unit or
units directly affected.
Supposed that in a city, there are 150k inhabitants,
but only 100k casted their votes. What is the majority
of the votes cast there? 50,001. Correct. Majority of
the votes cast, not the total number of inhabitants in
a political unit.
Who can create an LGU? If it’s a province, city, or
municipality, it would be the Congress. If it’s a barangay,
it would be the Sangguniang Panlalawigan or Panlunsod.
(Sec. 6 of LGC)
Can the president create an LGU? No, because the
power to create LGUs is specifically lodged in the
legislature.
What if Congress authorized the President to create
an LGU? It would be unconstitutional. It would be a
violation of separation of powers of the state
Pelaez case: The president, pursuant to Sec. 68 of the
Revised Administrative Code, issued EOs that created
municipalities. Can the president use that as a basis to
create municipalities? No. Because the function of
creating municipalities is not an administrative function.
1st Reason – the creation of LGU is legislative in nature.
2nd Reason – since it is legislative in character, there was
in effect a delegation of legislative power. Is the
delegation in the Revised Admin. Code valid? No.
The requirements for valid delegation which it must
comply to are: 1) Completeness Test; and 2) Sufficient
Standard Test. In the Revised Admin. Code, there was
no policy to carry out and no sufficient standard to be
observed by the president. The bottomline is, the power
to create LGUs is legislative in character.
SECOND MEETING: SEPTEMBER 10,
2021
Note: The creation, division, merger, abolition, substantial
alteration of boundaries of local government units--the
power to do so is legislative in nature.
Under Section 6 of the Local Government Code, there
is an exception.
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Section 6. Authority to Create Local Government
Units. - A local government unit may be created,
divided, merged, abolished, or its boundaries
substantially altered either by law enacted by
Congress in the case of a province, city,
municipality, or any other political subdivision, or by
ordinance passed by the sangguniang panlalawigan
or sangguniang panlungsod concerned in the case
of a barangay located within its territorial
jurisdiction, subject to such limitations and
requirements prescribed in this Code.
Q. Can the President create a local government unit?
A. The creation of a local government unit is legislative in
nature. So, obviously, the President is not a legislator; is
not the legislative department.
Q. What are the three indicators of viability under
Sec. 7?
Section 7. Creation and Conversion. - As a general
rule, the creation of a local government unit or its
conversion from one level to another level shall be
based on verifiable indicators of viability and
projected capacity to provide services, to wit:
(a) Income. - It must be sufficient, based on
acceptable standards, to provide for all essential
government facilities and services and special
functions commensurate with the size of its
population, as expected of the local government unit
concerned;
(b) Population. - It shall be determined as the total
number of inhabitants within the territorial
jurisdiction of the local government unit concerned;
and
(c) Land Area. - It must be contiguous, unless it
comprises two or more islands or is separated by a
local government unit independent of the others;
properly identified by metes and bounds with
technical descriptions; and sufficient to provide for
such basic services and facilities to meet the
requirements of its populace.
Compliance with the foregoing indicators shall be
attested to by the Department of Finance (DOF), the
National Statistics Office (NSO), and the Lands
Management Bureau (LMB) of the Department of
Environment and Natural Resources (DENR).
Population requirement for province: at least 250,000
For city: 200,000 (highly urbanized city)
Q. Difference between a component city and a highly
urbanized city?
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A. SECTION. 451. Cities, Classified. - A city may
either be component or highly urbanized: Provided,
however, That the criteria established in this Code
shall not affect the classification and corporate
status of existing cities. Independent component
cities are those component cities whose charters
prohibit their voters from voting for provincial
elective officials. Independent component cities shall
be independent of the province.
Q. What is the income requirement for highly
urbanized cities?
A. (1) Income — latest annual income of not less than
Fifty Million Pesos (P50,000,000.00) based on 1991
constant prices, as certified by the city treasurer. The
annual income shall include the income accruing to the
general fund, exclusive of special funds, transfers, and
non-recurring income; and
(2) Population — which shall not be less than two
hundred thousand (200,000) inhabitants, as certified by
NSO. (Article 12 of the IRR of the LGC)
Q. In highly urbanized cities, can the inhabitants vote
for elective officials in the province?
A. No.
Q. How about component cities?
A. Yes, but it is not an absolute rule. It has something to
do with our charter. The general rule is that inhabitants of
component cities can vote for provincial elective officials,
except if the charter prohibits them from doing so.
SECTION. 451. Cities, Classified. - A city may either
be component or highly urbanized: Provided,
however, That the criteria established in this Code
shall not affect the classification and corporate
status of existing cities. Independent component
cities are those component cities whose charters
prohibit their voters from voting for provincial
elective officials. Independent component cities shall
be independent of the province.
Q. How many inhabitants for municipalities?
A. 25,000.
Q. How about barangay?
A. 2,000 for areas outside Manila. 4,000 for Metro Manila
and highly urbanized cities.
Q. How about territory for provinces?
A. Continguous land area of 2,000 square meters.
Q. How about city?
A. For component city: 100 square kilometers; For highly-
urbanized city: 100, as well.
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Q. How about municipality?
A. 50 square kilometers.
Q. How about barangay?
A. No minimum requirement for barangay.
Q. Which government agencies should attest to the
compliance to the three indicators?
A. Compliance with the foregoing indicators shall be
attested to by the Department of Finance (DOF), the
National Statistics Office (NSO) or Philippine Statistics
Authority (PSA), and the Lands Management Bureau
(LMB) of the Department of Environment and Natural
Resources (DENR).
Q. What happens to an abolished LGU?
A. Section 9. Abolition of Local Government Units. -
A local government unit may be abolished when its
income, population, or land area has been
irreversibly reduced to less than the minimum
standards prescribed for its creation under Book III
of this Code, as certified by the national agencies
mentioned in Section 7 hereof to Congress or to the
sangguniang concerned, as the case may be.
The law or ordinance abolishing a local government
unit shall specify the province, city, municipality, or
barangay with which the local government unit
sought to be abolished will be incorporated or
merged.
Tan vs. Comelec
Section 10. Plebiscite Requirement. - No creation,
division, merger, abolition, or substantial alteration
of boundaries of local government units shall take
effect unless approved by a majority of the votes
cast in a plebiscite called for the purpose in the
political unit or units directly affected. Said plebiscite
shall be conducted by the Commission on Elections
(COMELEC) within one hundred twenty (120) days
from the date of effectivity of the law or ordinance
effecting such action, unless said law or ordinance
fixes another date.
"It can be plainly seen that the aforecited
constitutional provision makes it imperative that
there be first obtained "the approval of a majority of
votes in the plebiscite in the unit or units affected"
whenever a province is created, divided or merged
and there is substantial alteration of the boundaries.
It is thus inescapable to conclude that the
boundaries of the existing province of Negros
Occidental would necessarily be substantially
altered by the division of its existing boundaries in
order that there can be created the proposed new
province of Negros del Norte. Plain and simple logic
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will demonstrate than that two political units would
be affected. The first would be the parent province of
Negros Occidental because its boundaries would be
substantially altered. The other affected entity would
be composed of those in the area subtracted from
the mother province to constitute the proposed
province of Negros del Norte."
NOTE: To determine whether a political unit is directly
affected by the creation, merger, division, abolition, or
substantial alteration of boundaries of a political unit,
according to the SC, there are three factors: territorial
alteration, political effects, economic effects.
Article X 1987 Consti, 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.
NOTE: A division or merger of existing LGUs is
recognized provided that the merger or division complies
with the criteria set forth under the Local Government
Code.
THIRD MEETING: SEPTEMBER 17, 2021
(Bagabuyo v. COMELEC)
There’s a law apportioning the lone legislative
district of CDO. The issue, as raised by Bagabuyo, is
that COMELEC cannot implement Republic Act 9371
without providing for the rules and regulations for
the conduct of plebiscite since plebiscite is an
indispensable requirement where there is a division
or conversion of a local government unit as provided
for in the following:
Article X, Sec. 10, 1987 Constitution
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.
Article VI, Sec. 5, 1987 Constitution:
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(1). The House of Representatives shall be
composed of not more than two hundred and
fifty members, unless otherwise fixed by law,
who shall be elected from legislative districts
apportioned among the provinces, cities, and
the Metropolitan Manila area in accordance
with the number of their respective
inhabitants, and on the basis of a uniform and
progressive ratio, and those who, as provided
by law, shall be elected through a party-list
system of registered national, regional, and
sectoral parties or organizations.
xxxxx
(3). Each legislative district shall comprise, as
far as practicable, contiguous, compact, and
adjacent territory. Each city with a population
of at least two hundred fifty thousand, or each
province, shall have at least one
representative.
(4). Within three years following the return of
every census, the Congress shall make a
reapportionment of legislative districts based
on the standards provided in this section.
The Court ruled that in reapportionment of legislative
districts, there is no need for a plebiscite since it
does not involve creation, division, abolition, or
merger of boundaries of a political subdivision. Since
Why is there a need for The legislature
when legislature does the acts of creating, dividing,
reapportionment of reapportion legislative
merging, or abolishing, the inhabitants should have a
legislative districts? districts is important
consent since it would ultimately affect their welfare.
since there are changes in
Key concepts by Atty. Sarangaya: the population and for
such to comply with the
Is there a plebiscite No requisite regarding requirement of equality of
requirement in Art. VI? plebiscite is found in the representation in the
aforementioned legislature.
provisions in Article VI.
Are legislative districts Legislative districts are
the same as local popular unit because they
government units? are the basis of an
What do you mean by It means that only election of a particular
“unless otherwise legislature can enact a member of the House of
fixed by law?” law. Representatives but they
If not, what are the
are not a political
differences between an
subdivision since they do
What is the importance It determines the number LGU and legislative
not carry out
of an apportionment of of representatives in the districts?
governmental and
a legislative district? legislature (population is
proprietary powers as
only a factor since it will
those of LGUs.
determine the quality of
number of
representatives).

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 Governors, in governmental functions
representation of are carried out within its
legislative districts, do not territorial boundaries.
act as chief executive
(they do not act for or on
behalf of the people
comprising the district) of
a particular unit. They
merely delineate the areas
occupied by the people
that will choose their
representatives in the
national affairs. They
don’t have a chief
executive. They merely
ensure that the district is
represented in the
legislative body so that
the voice of the district
can be heard. They do not Some clarificatory decisions as to what is meant by a
oversee the affairs of the territorial jurisdiction of a local government unit:
legislative district unlike a
political subdivision
which has a legal
personality and acts for or (Republic v. Palawan).
on behalf of the LGU and
Department of Energy, in concerted effort with Shell
has a chief executive
Philippines Exploration B.V. and Occidental
through whom
Philippines, executed a service agreement that

14
involves drilling of a natural gas in Malampaya (60%
to government; 40% to service contractors). The
Province of Palawan asserted its claim over 40% of
the National Government’s share. (i.e., Claiming 40%
of the National Government’s 60% cut from the
Service Agreement).
The Finance Secretary sought the legal opinion of
Justice Secretary. The Finance Secretary asserted
that Malampaya is outside the territorial jurisdiction
(since it is located in marine waters) of the Province
of Palawan and thus has no right of claim to the
shares of the government. They only have such
share if the marine waters are part of the territorial
jurisdiction of Palawan pursuant to:
Art. X, Sec. 7, 1987 Constitution
Section 7. Local governments 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.
15
The Court ruled that marine waters are not included
in the territorial jurisdiction of Palawan. The Court
defines territorial jurisdiction up to the extent only of
its physical location or area as identified by its
boundaries.
The Court cited their conclusion that such definition
of territorial jurisdiction is more in accord with the
Local Government Code as it identifies such by
metes and bounds.
Provisions regarding territorial jurisdiction in the
Local Government Code
Section 386 (B). The territorial jurisdiction of the
new barangay shall be properly identified by
metes and bounds or by more or less permanent
natural boundaries. The territory need not be
contiguous if it comprises two (2) or more
islands.
Section 442 (B). The territorial jurisdiction of a
newly-created municipality shall be properly
identified by metes and bounds. The requirement
on land area shall not apply where the
municipality proposed to be created is composed
of one (1) or more islands. The territory need not
be contiguous if it comprises two (2) or more
islands.
Section 292. The share in the preceding Section shall
be distributed in the following manner:
(a) Where the natural resources are located in
the province:
(1) Province - Twenty percent (20%);
(2) Component City/Municipality - Forty-
five percent (45%); and
(3) Barangay - Thirty-five percent (35%)
Provided, however, That where the natural
resources are located in two (2) or more
provinces, or in two (2) or more component
cities or municipalities or in two (2) or more
barangays, their respective shares shall be
computed on the basis of:
(1) Population - Seventy percent (70%);
and
(2) Land area - Thirty percent (30%)
xxxxx
These all show that the intention of the framers is to
limit the territorial jurisdiction of LGU to the physical
location or area as properly identified by their metes
and bounds. Therefore, such is not within the
territorial jurisdiction of Palawan.
16
Clarificatory decision what is included in “income”
(Alvarez v. Guingona).
The issue here which relates to income requirement
is that the petitioners aver that municipality of
Santiago did not meet the minimum average of the
annual income needed for such to be converted into
a city. The component which is being excluded here
as far as the petitioners are concerned is the internal
revenue allotment (IRA).
The Supreme Court ruled that IRA allotment is part of
the income of the local government unit and the
funds generated from local taxes must be part of the
income. The Court ruled that such is included in IRA
because all revenues and receipts collected or
received form part of the gross accretion of funds of
the LGU.
Furthermore, IRA cannot be classified as a special
fund because IRAs have technical definition and
meaning, all its own as used in LGC that
unequivocally makes it distinct from special funds or
transfers referred to when the LGC speaks of
“funding support from the national government, its
instrumentalities, and GOCCs.” IRAs are regular and
recurring item of income thus must be included in
the computation of average annual income and
distinct from special funds and transfers.
Three things that must be considered:
1. IRAs form part of the gross accretion of
funds of the LGU;
2. They regularly and automatically accrue to
the local treasury even without need of
further action on the part of LGU;
3. They are recurring item of income. They
cannot be classified as special fund or
transfer.
Hence, IRAs must be included in the computation of
annual income for purposes of determining whether
conversion or creation complies with the criteria set
forth under LGC particularly the income requirement.
Other clarificatory decisions of what is included in
“income”
(Mandanas v. Ochoa)
17
Court declared the unconstitutionality of the
provision in Sec. 284 of Local Government Code. The
Court ruled that all the taxes, even customs duties,
must be included in the computation of the income.
Sec. 284 of the Local Government Code reads:
Section 284. Allotment of Internal Revenue
Taxes. - Local government units shall have a
share in the national internal revenue taxes
based on the collection of the third fiscal year
preceding the current fiscal year as follows:
(a) On the first year of the effectivity of this
Code, thirty percent (30%);
(b) On the second year, thirty-five percent
(35%); and
(c) On the third year and thereafter, forty
percent (40%).
Provided, That in the event that the national
government incurs an unmanageable public
sector deficit, the President of the Philippines is
hereby authorized, upon the recommendation of
Secretary of Finance, Secretary of Interior and
Local Government and Secretary of Budget and
Management, and subject to consultation with
the presiding officers of both Houses of
Congress and the presidents of the "liga", to
make the necessary adjustments in the internal
 revenue allotment of local government units but
in no case shall the allotment be less than thirty
percent (30%) of the collection of national
internal revenue taxes of the third fiscal year DUAL PERSONALITY OF A LOCAL GOVERNMENT
preceding the current fiscal year: Provided, UNIT
further, That in the first year of the effectivity of
this Code, the local government units shall, in Dual personality of LGU:
addition to the thirty percent (30%) internal
revenue allotment which shall include the cost of - (A) Governmental – LGU acts like an
devolved functions for essential public services, agent of the state and protects its
be entitled to receive the amount equivalent to inhabitants.
the cost of devolved personal services.
- (B) Proprietary – LGU acts as a business
Therefore, the phrase, “national internal revenue corporation in which they earn revenue
taxes” must be omitted in the phrase since such (not strictly governmental or political)
phrase restricts income to national revenue taxes or
excludes / deprives LGUs of their just share in all
(TORIO v. FONTANILLA)
other national taxes that must be included in the
proportion of entitlement. So, Section 284 of the
Facts: On October 21, 1958, the Municipal Council of
Local Government Code is unconstitutional.
Malasiqui, Pangasinan, resolved to celebrate the
town fiesta and created a "Town Fiesta Executive
Article X, Section VI, 1987 Constitution: Local
Committee" thru Resolution No. 182 to undertake,
government units shall have a just share, as
manage and supervise the festivities. The Executive
determined by law, in the national taxes which
Committee created a sub-
shall be automatically released to them.
committee on "Entertainment and Stage", which
constructed two stages, one for the "zarzuela" and
Sec. 284 of LGC limits IRAs to national internal
another for "cancionan." The "zarzuela" entitled
revenue taxes, which is in contravention to the
"Midas Extravanganza" was donated by an
Constitution.
association of Malasiqui employees of the Manila

18
Railroad Company and one of the performers was
Vicente Fontanilla.
During the program people went up the "zarzuela"
stage and before the dramatic part of the play
was reached the stage collapsed, pinning underneath
Fontanilla. He was taken to the San Carlos General
Hospital where he died in the afternoon of the
following day The heirs of the deceased sued the
municipality and the councilors for damages. The
municipality invoked inter alia the principal defense
that the holding of a town fiesta was an exercise of
its governmental function from which no liability can
arise to answer for the negligence of any of its
agents. The councilors maintained that they merely
acted as agents of the municipality in carrying out
the municipal ordinance.
The trial court dismissed the complaint of a finding
that the petitioners exercised due diligence
and care of a good father of a family in selecting a
competent man to construct the stage and if
it collapsed it was due to forces beyond the control
of the committee on entertainment and
Stage.
The Court of Appeals reversed the decision stating
that petitioners were guilty of negligence
19
when they failed to take the necessary measures to
prevent the mounting of onlookers on the
stage resulting in the collapse thereof. CA ordered all
the defendants-appellees to pay jointly
and severally the heirs of Vicente Fontanilla the
sums of P12,000.00 by way of moral and actual
damages: P1,200.00 as attorney’s fees; and the
costs.
Issue: Whether or not the municipality is exercising a
governmental or proprietary function
Ruling: It held that the holding of a town fiesta
though not for profit is a proprietary function.
Thus, a municipality is liable for damages to third
persons ex contractu or ex delicto; that under
the principle of respondeat superior the principal is
liable for the negligence of its agents acting
within the scope of their assigned tasks.
As to the municipal councilors, they are personally
distinct and separate from the municipality,
hence, as a rule they are not co-responsible in an
action for damages for tort or negligence
unless they acted in bad faith or have directly
participated in the commission of the wrongful act.
Governmental / Those exercised by the
Political corporation in administering the

powers of the state and promoting
the public welfare and they
include the legislative, judicial,
public, and political
For public purpose;
Acts as an agent of the State
No liability as long as the officers
do their functions in good faith or
that they did not act maliciously.
Proprietary Exercised for the special benefit
and advantage of the community
and include those which are
ministerial, private and corporate.
It promotes conveniences for its
local community
Ex-contractu or ex-dlictu – Wrong
from a contract
20
Example of a provision which held Local Government
Unit liable in case of injuries sustained by the victim
is found on Article 2189, New Civil Code
Art. 2189. Provinces, cities and municipalities
shall be liable for damages for the death of,
or injuries suffered by, any person by reason
of the defective condition of roads, streets,
bridges, public buildings and other public
works under their control and supervision.
Is there a hard and fast rule to determine whether an
act which may deem governmental or proprietary?
There’s no hard and fast rule. You have to look into
the essence of a particular fact.
For example, in the inoculation of vaccine, the LGUs
are acting as an agent of the State since it carries out
the objective of the national government in
promoting public health and herd immunity.
[SURIGAO ELECTRIC CORPORATION v.
MUNICIPALITY OF SURIGAO]
The issue in this case as raised by Surigao Electric
Corp is whether or not municipal government of
Surigao can directly maintain and operate an electric
plant without obtaining a specific franchise for the
purpose, and without a certificate of public
convenience and necessity issued by the Public
Service Commission.
The Court held that municipal corporations may
further promote community welfare by engaging in
supplying public services without the need of a
certificate of public convenience and a special
franchise pursuant to exercise of police power.
According to Public Service Act, there are two (2)
entities that are exempted in obtaining a certificate of
public convenience and special franchise – (a)
GOCCs and (b) Government entities. Governmental
affairs do not lose their governmental character just
because they are delegated to LGUs or municipal
governments. Even if the municipal government is
performing duties for the convenience of its
inhabitants or even a proprietary function, it does not
change the character of the LGU itself as a
government entity.
FOURTH MEETING: SEPTEMBER 24,
2021
Sources of the powers of LGUs
a. 1987 Constitution – Article X, Article II, etc.
b. Local Government Code
21
c. Other laws, acts, decrees, EOs, proclamations
that are not inconsistent with the 1987 Constitution
and Local Government Code.
Classifications of powers of LGUs
1. Expressed Power – expressed provisions in the
1987 Constitution, issuances, regulations, LGC, etc.
2. Implied Powers – necessary or fairly implied,
incident to the powers expressly granted.
3. Inherent Powers – inherent to the declared
objects or purposes of the municipal corporation not
simply convenient but indispensable.
e.g., perpetual succession, to sue and be
sued, to purchase, hold, and sell property for
the benefit of the municipal corporation, to
have a common seal, to make by-laws and
ordinances for the government of municipality
4. Legislative and municipal powers – (a)
ordinance to make laws; (b) ordinance to execute
laws
5. Intramural Powers – those exercised within the
corporate limits of municipal corporation
 6. Extramural Powers – those exercised without, a. In a manner prescribed by law
like those given for the protection of water supply,
prevention of nuisance and also for police force. b. If silent, officers are clothed with discretion in
determining the method.
7. Public or Governmental – It is an agent of the
State for the government of the territory and the Rules and Ownership of Property
inhabitants within the local government limits (e.g.,
Article 423. The property of provinces, cities, and
establishment and operation of schools, adoption of
municipalities is divided into property for public use
regulations against fire and diseases, preservation of
and patrimonial property.
peace)
a. Property for Public Use – cannot be
- Without its content, we cannot sue the
alienated as such or acquired by
local government unit, unless is a contract
prescription
based on a special law allowing such.
b. Patrimonial Property – May be alienated
8. Private or Corporation – it acts in a similar
and acquired by prescription, as governed
category as a business corporation, performing
by Articles 421 and 422 of the New Civil
functions not strictly governmental or political (The
Code
government unit descends to the level of a private
entity, thus suable.) - Art. 421. All other property of the State,
which is not of the character stated in the
9. Mandatory – those the exercises of which can be
preceding article, is patrimonial property.
required of municipal corporations
(340a)
10. Discretion – those which it may perform or nor,
- Art. 422. Property of public dominion,
depending upon its judgment or discretion
when no longer intended for public use or
for public service, shall form part of the
patrimonial property of the State.
Execution of Municipal Powers

22
 Article 424. Property for public use, in the
provinces, cities, and municipalities, consist of the
provincial roads, city streets, municipal streets, the
squares, fountains, public waters, promenades, and
public works for public service paid for by said
provinces, cities, or municipalities.
Land of the public domain is outside the commerce of
man and, thus, cannot be leased, donated, sold, or be
the object of any contract, except insofar as they may be
the object of repairs or improvements and other
incidental things of similar character. Hence, they cannot
be appropriated or alienated.
Inalienability is an inherent characteristic of property of
the public dominion. This characteristic necessarily
clashes with express declaration of alienability and
disposability, in that when public land is explicitly
declared by the State to be the subject to disposition,
they cannot be land of public dominion. Necessarily, as
lands of public dominion are alienable they cannot be
acquired through prescription and cannot be registered
under Land Registration Law and be the subject of a
Torrens Title.
[PNOC Alternative Fuels Corporation v. National Grid
Corporation]
Properties owned by the State which do not have
the aforementioned characteristics of a land of
23
public dominion are patrimonial properties of the
State.49 Patrimonial properties are properties owned
by the State in its private or proprietary capacity.
Even if patrimonial property refers to land owned by
the State or any of its instrumentalities, such is still
deemed private property as it is property held by the
State in its private and proprietary capacity, and not
in its public capacity, in order to attain economic
ends. As recently explained by the Court in
Republic v. Spouses Alejandre54 the Civil Code
classifies property of private ownership into three
categories: (1) patrimonial property of the State
under Articles 421 and 422 of the Civil Code; (2)
patrimonial property of Local Government Units
under Article 424; and (3) property belonging to
private individuals under Article 425. 55
Hence, the mere fact that a parcel of land is owned
by the State or any of its instrumentalities does not
necessarily mean that such land is of public
dominion and not private property. If land owned by
the State is considered patrimonial property, then
such land assumes the nature of private property.
The Supreme Court is more inclined to uphold this
latter view. The controversy here is more along the
domains of the Law of Municipal Corporations —
State vs. Province — than along that of Civil Law.
 Moreover, this Court is not inclined to hold that
municipal property held and devoted to public
service is in the same category as ordinary private
property. The consequences are dire. As ordinary
private properties, they can be levied upon and
attached. They can even be acquired thru adverse
possession — all these to the detriment of the local
community. Lastly, the classification of properties
other than those for public use in the municipalities
as patrimonial under Art. 424 of the Civil Code — is
"... without prejudice to the provisions of special
laws." For purpose of this article, the principles,
obtaining under the Law of Municipal Corporations
can be considered as "special laws". Hence, the
classification of municipal property devoted for
distinctly governmental purposes as public should
prevail over the Civil Code classification in this
particular case.
[Province of Zamboanga Del Norte v. City of
Zamboanga]
The constitutionality of RA 3039, which provides:
“All buildings, properties and assets belonging
to the former province of Zamboanga and
located within the City of Zamboanga are
24
hereby transferred, free of charge, in favor of
the said City of Zamboanga”
The validity of the law ultimately depends on the
nature of the 50 lots and buildings thereon in
question. For, the matter involved here is the extent
of legislative control over the properties of a
municipal corporation, of which a province is one.
The principle itself is simple: If the property is
owned by the municipality (meaning municipal
corporation) in its public and governmental capacity,
the property is public and Congress has absolute
control over it. But if the property is owned in its
private or proprietary capacity, then it is patrimonial
and Congress has no absolute control. The
municipality cannot be deprived of it without due
process and payment of just compensation.
The capacity in which the property is held is,
however, dependent on the use to which it is
intended and devoted. Now, which of two norms,
i.e., that of the Civil Code or that obtaining under the
law of Municipal Corporations, must be used in
classifying the properties in question? The Civil
Code classification is embodied in its Arts. 423 and
424
Applying the above cited norm, all the properties in
question, except the two (2) lots used as High
School playgrounds, could be considered as
 patrimonial properties of the former Zamboanga
province. Even the capital site, the hospital and
leprosarium sites, and the school sites will be
considered patrimonial for they are not for public
use. They would fall under the phrase "public works
for public service" for it has been held that under the
ejusdem generis rule, such public works must be for
free and indiscriminate use by anyone, just like the
preceding enumerated properties in the first
paragraph of Art 424. The playgrounds, however,
would fit into this category.
On the other hand, applying the norm obtaining
under the principles constituting the law of Municipal
Corporations, all those of the 50 properties in
question which are devoted to public service are
deemed public; the rest remain patrimonial. Under
this norm, to be considered public, it is enough that
the property be held and, devoted for governmental
purposes like local administration, public education,
public health, etc.
[NAWASA v. Dator]
Was the LGU, through the municipal mayor, authorized
to receive the water rentals paid by the users of water?
25
The authority of a municipality to fix and collect rents for
water supplied by its waterworks system is expressly
granted by law. Section 2317 of the Revised
Administrative Code provides:
"Municipal Waterworks. — A municipal council shall
have authority to acquire, construct, and maintain
waterworks for the purpose of supplying the
inhabitants of the municipality with water; to
regulate the supply and use of water therefrom; and
to fix and collect rents for water thus supplied."
And section 2 of Republic Act No. 2264, also
provides that: "any provision of law to the contrary
notwithstanding, . . .municipalities. . . shall have
authority . . . to collect fees and charges for services
rendered by the city municipality or municipal
district."
Even without these express provisions, however, the
authority of the municipality to fix and collect fees from its
waterworks would be justified from its inherent power to
administer what it owns privately. It is now settled that
although the NAWASA may regulate and supervise the
water plants owned and operated by cities and
municipalities, the ownership thereof is vested in the
municipality and in the operation thereof the municipality
acts in its proprietary capacity. Like any private owner,
the municipality enjoys the attributes of ownership under
the New Civil Code. One such attribute is the right to use
or enjoy the property. The municipality, here concerned,
has chosen to use its waterworks system for revenue
purposes. Its undertaking to supply water at a cost to its
inhabitants, is in itself a business venture, and the fees
collected therefrom, would be the only income that said
municipality may derive from such business. If a
governmental entity, like the NAWASA, were allowed to
collect the fees that the consuming public pay for the
water supplied to them by the municipality, the latter, as
owner, would be deprived of the full enjoyment of its
property. As previously stated, ownership is nothing
without the inherent rights of possession, control and
enjoyment.
[Macasiano v. Diokno]
Issue: Whether or not an ordinance or resolution
issued by the municipal council of Paranaque
authorizing the lease and use of public streets or
thoroughfares as sites for flea markets is valid.
In resolving the question of whether the disputed
municipal ordinance authorizing the flea market on
the public streets is valid, it is necessary to examine
the laws in force during the time the said ordinance
was enacted, namely, Batas Pambansa Blg. 337,
otherwise known as Local Government Code, in
connection with established principles embodied in
26
the Civil Code an property and settled jurisprudence
on the matter.
J. Gabriel G.G. Cruz, Bayanihan, Lt. Garcia
Extension and Opena streets are local roads used for
public service and are therefore considered public
properties of respondent municipality. Properties of
the local government which are devoted to public
service are deemed public and are under the
absolute control of Congress (Province of
Zamboanga del Norte v. City of Zamboanga, L-
24440, March 28, 1968, 22 SCRA 1334). 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.
One such example of this authority given by
Congress to the local governments is the power to
close roads as provided in Section 10, Chapter II of
the Local Government Code.
However, the aforestated legal provision which gives
authority to local government units to close roads and
other similar public places should be read and
interpreted in accordance with basic principles
already established by law. These basic principles
have the effect of limiting such authority of the
province, city or municipality to close a public street
or thoroughfare. 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 in general are outside the commerce of
man and cannot be disposed of 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 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
patrimonial property of the local government unit
concerned (Article 422, Civil Code; Cebu Oxygen,
etc. et al. v. Bercilles, et al., G.R. No. L-40474,
August 29, 1975, 66 SCRA 481). It is only then that
the respondent municipality can "use or convey them
for any purpose for which other real property
belonging to the local unit concerned might be
lawfully used or conveyed" in accordance with the
last sentence of Section 10, Chapter II of Blg. 337,
known as Local Government Code.
There is no doubt that the disputed areas from which
the private respondents' market stalls are sought to
be evicted are public streets, as found by the trial
court in Civil Case No. C-12921. A public street is
property for public use hence outside the commerce
of man (Arts. 420, 424, Civil Code). Being outside the
27
commerce of man, it may not be the subject of lease
or others contract
As the stallholders pay fees to the City Government
for the right to occupy portions of the public street,
the City Government, contrary to law, has been
leasing portions of the streets to them. Such leases
or licenses are null and void for being contrary to law.
The right of the public to use the city streets may not
be bargained away through contract. The interests of
a few should not prevail over the good of the greater
number in the community whose health, peace,
safety, good order and general welfare, the
respondent city officials are under legal obligation to
protect.
The powers of a local government unit are not
absolute. They are subject to limitations laid down by
the Constitution and the laws such as our Civil Code.
Moreover, the exercise of such powers should be
subservient to paramount considerations of health
and well-being of the members of the community.
Every local government unit has the sworn obligation
to enact measures that will enhance the public
health, safety and convenience, maintain peace and
order, and promote the general prosperity of the
inhabitants of the local units. Based on this objective,
the local government should refrain from acting
towards that which might prejudice or adversely
affect the general welfare.

[Alde v. City of Zamboanga]
In defending its case, it bears noting that the City
Government did not present any presidential
proclamation, executive order, statute, investigative
report by the LMB or an administrative action, that
clearly reserved the subject lots for public use by the
local government. Not even the Local Government
Code empowers local government units to reserve,
on their own, particular public lands for the private
domain or patrimonial property of the Government.
By statute, this power to classify public lands as
alienable and disposable and to relegate to the
private domain or patrimonial property, is reposed in
the President and the DENR Secretary, as delegated
to them by Congress, through CA 141 and
Presidential Decree (P.D.) No. 705.49 Therefore,
they cannot delegate the same to another office or
officer, such as the City Government of Zamboanga.
What has once been delegated by Congress can no
longer be further delegated or redelegated by the
original delegate to another, as expressed in the
Latin maxim - Delegata potestas non potest
delegari.
28
Other kinds of classification based on mode of
acquisition
1. Those acquired by the LGU using their own funds
in their proprietary capacity. They may be disposed
by the LGUs as they please.
2. Those acquired by the LGU in its governmental
capacity, such as those acquired by succession or
donation from the State or National Government or
from the funds received from the State. They are held
in trust by the LGUs for the State for the benefit of the
inhabitants.
[Rabuco v. Villegas]
Issue: Whether RA 3120 (law converting certain parcels
of land in the City of Manila from communal to alienable
and disposable lands of the public domain) is
constitutional
The established general rule that "regardless of the
source or classification of land in the possession of
a municipality, excepting those acquired with its own
funds in its private or corporate capacity, such
property is held in trust for the State for the benefit of
its inhabitants, whether it be for governmental or
proprietary purposes. It holds such lands subject to the
paramount power of the legislature to dispose of the
same, for after all it owes its creation to it as an agent for
the performance of a part of its public work, the
municipality being but a subdivision or instrumentality
thereof for purposes of local administration. Accordingly,
the legal situation is the same as if the State itself holds
the property and puts it to a different use"9 and stressed
that "the property, as has been previously shown, was
not acquired by the City of Manila with its own funds in its
private or proprietary capacity. That it has in its name a
registered title is not questioned, but this title should be
deemed to be held in trust for the State as the land
covered thereby was part of the territory of the City of
Manila granted by the sovereign upon its creation."
The Acts in question (Republic Act 4118 in Salas and
Republic Act 3120 in the case at bar) were intended to
implement the social justice policy of the Constitution and
the government program of land for the landless and that
they were not 'intended to expropriate the property
involved but merely to confirm its character as communal
land of the State and to make it available for disposition
by the National Government: The subdivision of the land
and conveyance of the resulting subdivision lots to the
occupants by Congressional authorization does not
operate as an exercise of the power of eminent domain
without just compensation in violation of Section 1,
subsection (2), Article III of the Constitution, but simply as
a manifestation of its right and power to deal with state
property."
29
Properties for public use are not subject to levy or
execution
[Municipality of Makati v. CA]
Issue: Whether the funds in the bank accounts of the
municipality can be garnished?
The funds deposited in the second PNB Account No. S/A
263-530850-7 are public funds of the municipal
government. In this jurisdiction, well-settled is the rule
that public funds are not subject to levy and execution,
unless otherwise provided for by statute [Republic v.
Palacio, supra.; The Commissioner of Public Highways v.
San Diego, G.R. No. L-30098, February 18, 1970, 31
SCRA 616]. More particularly, the properties of a
municipality, whether real or personal, which are
necessary for public use cannot be attached and sold at
execution sale to satisfy a money judgment against the
municipality. Municipal revenues derived from taxes,
licenses and market fees, and which are intended
primarily and exclusively for the purpose of financing the
governmental activities and functions of the municipality,
are exempt from execution [See Viuda De Tan Toco v.
The Municipal Council of Iloilo, 49 Phil. 52 (1926): The
Municipality of Paoay, Ilocos Norte v. Manaois, 86 Phil.
629 (1950); Municipality of San Miguel, Bulacan v.
Fernandez, G.R. No. 61744, June 25, 1984, 130 SCRA
56]. The foregoing rule finds application in the case at used as markets by Iloilo, Molo, and Mandurriao, to
bar. Absent a showing that the municipal council of satisfy judgment in a case filed by the widow of Tan Toco
Makati has passed an ordinance appropriating from its
public funds an amount corresponding to the balance due Summary of Rules:
under the RTC decision dated June 4, 1987, less the
1. Properties held for public uses – and generally
sum of P99,743.94 deposited in Account No. S/A 265-
everything held for governmental purposes – are not
537154-3, no levy under execution may be validly
subject to levy and sale under execution against such
effected on the public funds of petitioner deposited in
corporation. The same rules apply to funds in the
Account No. S/A 263-530850-7.
hands of a public officer and taxes due to a municipal
Nevertheless, this is not to say that private respondent corporation.
and PSB are left with no legal recourse. Where a
2. Where a municipal corporation owns in its
municipality fails or refuses, without justifiable reason, to
proprietary capacity, as distinguished from its public
effect payment of a final money judgment rendered
or governmental capacity – property not used or used
against it, the claimant may avail of the remedy of
for public purpose but for quasi-private purposes, it is
mandamus in order to compel the enactment and
the general rule that such property may be seized
approval of the necessary appropriation ordinance, and
and sold under execution against the corporation.
the corresponding disbursement of municipal funds
therefor [See Viuda De Tan Toco v. The Municipal 3. Property held for public purposes is not subject to
Council of Iloilo, supra; Baldivia v. Lota, 107 Phil. 1099 execution merely because it is temporarily used for
(1960); Yuviengco v. Gonzales, 108 Phil. 247 (1960)]. private purposes. If the public use is wholly
abandoned, such property becomes subject to
execution.
[Viuda de Tan Toco v. Municipal Council of Iloilo]

Here, the sheriff attached two auto trucks used for street
sprinkling, one police patrol automobile, the police
stations on Mabini street, and in Molo and Mandurriao
and the concrete structures, with the corresponding lots,
[Rallos v. Cebu City]
Section 26 of P.D. No. 1445 states that the COA has
jurisdiction to examine, audit and settle all debts and

30
claims of any sort due from or owing to the Government
or any of its subdivisions, agencies and instrumentalities.
Under Section 5(b), Rule II of COA's Revised Rules of
Procedure, local government units are expressly included
as among the entities within the COA's jurisdiction.
Section 2,65 Rule VIII lays down the procedure in filing
money claims against the Government. Section 4, Rule X
provides that any case brought to the COA shall be
decided within 60 days from the date it is submitted for
decision or resolution. Section 1, Rule XII allows the
aggrieved party to file a petition for certiorari before this
Court to assail any decision, order or resolution of the
COA within 30 days from receipt of a copy thereof.
This Court, in the case of University of the Philippines v.
Dizon, thus held that despite the existence of a final and
executory judgment validating the claim against an
agency or instrumentality of the Government, the
settlement of the said claim is still subject to the primary
jurisdiction of the COA. Ineluctably, the claimant has to
first seek the COA's approval of the monetary claim.
WITHDRAWAL OF PUBLIC PROPERTY FOR PUBLIC
USE
Properties devoted to public use, such as public streets,
alleys and parks are presumed to belong to the State.
Municipal corporations may not acquire the same, as
31
patrimonial property, without a grant from the National
Government, the title of which may not be divested by
prescription (Municipality of Tigbauan v. Director of
Lands, 35 Phil., 584). Hence, such corporations may not
register a public plaza (Nicolas v. Jose, 6 Phil., 598). A
local government may not even lease the same
(Municipality of Cavite v. Rojas, 30 Phil., 602). Obviously,
it may not establish title thereto, adverse to the State, by
withdrawing the plaza — and, hence, an alley — from
public use and declaring the same to be patrimonial
property of the municipality or city concerned, without
express, or, at least, clear grant of authority therefor by
Congress (Unson v. Lacson).
TYPES OF LGUs
1. De Jure – those created or recognized by
operation of law
2. Municipal corporation by prescription –
exercised their powers from time immemorial with a
charter, which is presumed to have been lost or
destroyed.
3. De Facto – where people have organized
themselves, under color of law, into ordinary
municipal bodies, and have gone on, year after year,
raising taxes, making improvements, and exercising
 their usual franchises, with their rights dependent
quite as much as on acquiescence as on the
regularity of their origin.
- Essential requisites of a de facto
corporation:
a. A valid law authorizing incorporation
b. An attempt in good faith to organize it
c. A colorable compliance with law
d. Assumption of corporate powers
[Camid v. Office of the President]
In support of his claim that Andong remains in existence,
Camid presents to this Court a Certification issued by the
Office of the Community Environment and Natural
Resources (CENRO) of the Department of Environment
and Natural Resources (DENR) certifying the total land
area of the Municipality of Andong, "created under
Executive Order No. 107 issued [last] October 1, 1964."
He also submits a Certification issued by the Provincial
Statistics Office of Marawi City concerning the population
of Andong, which is pegged at fourteen thousand fifty
nine (14,059) strong. Camid also enumerates a list of
32
governmental agencies and private groups that allegedly
recognize Andong, and notes that other municipalities
have recommended to the Speaker of the Regional
Legislative Assembly for the immediate implementation
of the revival or re-establishment of Andong.
The petition assails a Certification dated 21 November
2003, issued by the Bureau of Local Government
Supervision of the Department of Interior and Local
Government (DILG).19 The Certification enumerates
eighteen (18) municipalities certified as "existing," per
DILG records. Notably, these eighteen (18) municipalities
are among the thirty-three (33), along with Andong,
whose creations were voided by this Court in Pelaez.
These municipalities are Midaslip, Pitogo, Naga, and
Bayog in Zamboanga del Sur; Siayan and Pres. Manuel
A. Roxas in Zamboanga del Norte; Magsaysay, Sta.
Maria and New Corella in Davao; Badiangan and Mina in
Iloilo; Maguing in Lanao del Sur; Gloria in Oriental
Mindoro; Maasim in Sarangani; Kalilangan and Lantapan
in Bukidnon; and Maco in Compostela Valley.
Moreover, Camid insists on the continuing validity of
Executive Order No. 107. He argues that Pelaez has
already been modified by supervening events consisting
of subsequent laws and jurisprudence. Particularly cited
is our Decision in Municipality of San Narciso v. Hon.
Mendez,23 wherein the Court affirmed the unique status
of the municipality of San Andres in Quezon as a "de
facto municipal corporation."24 Similar to Andong, the
municipality of San Andres was created by way of
executive order, precisely the manner which the Court in
Pelaez had declared as unconstitutional. Moreover, San
Narciso cited, as Camid does, Section 442(d) of the
Local Government Code of 1991 as basis for the current
recognition of the impugned municipality.
Camid imputes grave abuse of discretion on the part of
the DILG "in not classifying [Andong] as a regular existing
municipality and in not including said municipality in its
records and official database as [an] existing regular
municipality."21 He characterizes such non-classification
as unequal treatment to the detriment of Andong,
especially in light of the current recognition given to the
eighteen (18) municipalities similarly annulled by reason
of Pelaez. As appropriate relief, Camid prays that the
Court annul the DILG Certification dated 21 November
2003; direct the DILG to classify Andong as a "regular
existing municipality;" all public respondents, to extend
full recognition and support to Andong; the Department of
Finance and the Department of Budget and
Management, to immediately release the internal
revenue allotments of Andong; and the public
respondents, particularly the DILG, to recognize the
"Interim Local Officials" of Andong.
The importance of proper factual ascertainment cannot
be gainsaid, especially in light of the legal principles
governing the recognition of de facto municipal
corporations. It has been opined that municipal
33
corporations may exist by prescription where it is shown
that the community has claimed and exercised corporate
functions, with the knowledge and acquiescence of the
legislature, and without interruption or objection for period
long enough to afford title by prescription. These
municipal corporations have exercised their powers for a
long period without objection on the part of the
government that although no charter is in existence, it is
presumed that they were duly incorporated in the first
place and that their charters had been lost. They are
especially common in England, which, as well-worth
noting, has existed as a state for over a thousand years.
The reason for the development of that rule in England is
understandable, since that country was settled long
before the Roman conquest by nomadic Celtic tribes,
which could have hardly been expected to obtain a
municipal charter in the absence of a national legal
authority.
In the United States, municipal corporations by
prescription are less common, but it has been held that
when no charter or act of incorporation of a town can be
found, it may be shown to have claimed and exercised
the powers of a town with the knowledge and assent of
the legislature, and without objection or interruption for so
long a period as to furnish evidence of a prescriptive
right.
What is clearly essential is a factual demonstration of the
continuous exercise by the municipal corporation of its
corporate powers, as well as the acquiescence thereto by
the other instrumentalities of the state. Camid does not
have the opportunity to make an initial factual
demonstration of those circumstances before this Court.
Indeed, the factual deficiencies aside, Camid's plaint
should have undergone the usual administrative gauntlet
and, once that was done, should have been filed first with
the Court of Appeals, which at least would have had the
power to make the necessary factual determinations.
Camid's seeming ignorance of the principles of
exhaustion of administrative remedies and hierarchy of
courts, as well as the concomitant prematurity of the
present petition, cannot be countenanced.
It is also difficult to capture the sense and viability of
Camid's present action. The assailed issuance is the
Certification issued by the DILG. But such Certification
does not pretend to bear the authority to create or
revalidate a municipality. Certainly, the annulment of the
Certification will really do nothing to serve Camid's
ultimate cause - the recognition of Andong. Neither does
the Certification even expressly refute the claim that
Andong still exists, as there is nothing in the document
that comments on the present status of Andong. Perhaps
the Certification is assailed before this Court if only to
present an actual issuance, rather than a long-standing
habit or pattern of action that can be annulled through the
special civil action of certiorari. Still, the relation of the
34
Certification to Camid's central argument is forlornly
strained.
These disquisitions aside, the central issue remains
whether a municipality whose creation by executive fiat
was previously voided by this Court may attain
recognition in the absence of any curative or
reimplementing statute. Apparently, the question has
never been decided before, San Narciso and its kindred
cases pertaining as they did to municipalities whose
bases of creation were dubious yet were never judicially
nullified. The effect of Section 442(d) of the Local
Government Code on municipalities such as Andong
warrants explanation. Besides, the residents of Andong
who belabor under the impression that their town still
exists, much less those who may comport themselves as
the municipality's "Interim Government," would be well
served by a rude awakening.
The Court can employ a simplistic approach in resolving
the substantive aspect of the petition, merely by pointing
out that the Municipality of Andong never existed.
Executive Order No. 107, which established Andong, was
declared "null and void ab initio" in 1965 by this Court in
Pelaez, along with thirty-three (33) other executive
orders. The phrase "ab initio" means "from the
beginning," "at first," "from the inception." Pelaez was
never reversed by this Court but rather it was expressly
affirmed in the cases of Municipality of San Joaquin v.
Siva, Municipality of Malabang v. Benito, and Municipality
of Kapalong v. Moya. No subsequent ruling by this Court
declared Pelaez as overturned or inoperative. No
subsequent legislation has been passed since 1965
creating a Municipality of Andong. Given these facts,
there is hardly any reason to elaborate why Andong does
not exist as a duly constituted municipality.
When the Court decided Municipality of San Narciso in
1995, it indicated a shift in the jurisprudential treatment of
municipalities created through presidential issuances.
The questioned municipality of San Andres, Quezon was
created on 20 August 1959 by Executive Order No. 353
issued by President Carlos P. Garcia. Executive Order
No. 353 was not one of the thirty-three issuances
annulled by Pelaez in 1965. The legal status of the
Municipality of San Andres was first challenged only in
1989, through a petition for quo warranto filed with the
Regional Trial Court of Gumaca, Quezon, which did cite
Pelaez as authority. The RTC dismissed the petition for
lack of cause of action, and the petitioners therein
elevated the matter to this Court.
In the cases where a de facto municipal corporation was
recognized as such despite the fact that the statute
creating it was later invalidated, the decisions could fairly
be made to rest on the consideration that there was
some other valid law giving corporate vitality to the
organization.
35
In dismissing the petition, the Court delved in the merits
of the petition, if only to resolve further doubt on the legal
status of San Andres. It noted a circumstance which is
not present in the case at bar that San Andres was in
existence for nearly thirty (30) years before its legality
was challenged. The Court did not declare the executive
order creating San Andres null and void. Still, acting on
the premise that the said executive order was a complete
nullity, the Court noted "peculiar circumstances" that led
to the conclusion that San Andres had attained the
unique status of a "de facto municipal corporation." It
noted that Pelaez limited its nullificatory effect only to
those executive orders specifically challenged therein,
despite the fact that the Court then could have very well
extended the decision to invalidate San Andres as well.
This statement squarely contradicts Camid's reading of
San Narciso that the creation of San Andres, just like
Andong, had been declared a complete nullity on the
same ground of unconstitutional delegation of legislative
power found in Pelaez
The holding in San Narciso was subsequently affirmed in
Municipality of Candijay v. Court of Appeals and
Municipality of Jimenez v. Baz In Candijay, the juridical
personality of the Municipality of Alicia, created in a 1949
executive order, was attacked only beginning in 1984.
Pelaez was again invoked in support of the challenge,
but the Court refused to invalidate the municipality, citing
San Narciso at length. The Court noted that the situation
of the Municipality of Alicia was strikingly similar to that in
San Narciso; hence, the town should likewise "benefit
from the effects of Section 442(d) of the Local
Government Code, and should [be] considered as a
regular, de jure municipality."
The valid existence of Municipality of Sinacaban, created
in a 1949 executive order, was among the issues raised
in Jimenez.
Here, the same factors are present so as to confer on
Sinacaban the status of at least a de facto municipal
corporation in the sense that its legal existence has been
recognized and acquiesced publicly and officially.
Sinacaban had been in existence for sixteen years when
Pelaez v. Auditor General was decided on December 24,
1965. Yet the validity of E.O. No. 258 creating it had
never been questioned. Created in 1949, it was only 40
years later that its existence was questioned and only
because it had laid claim to an area that apparently is
desired for its revenue. This fact must be underscored
because under Rule 66, '16 of the Rules of Court, a quo
warranto suit against a corporation for forfeiture of its
charter must be commenced within five (5) years from
the time the act complained of was done or committed.
On the contrary, the State and even the Municipality of
Jimenez itself have recognized Sinacaban's corporate
existence. Under Administrative Order No. 33 dated June
13, 1978 of this Court, as reiterated by '31 of the
Judiciary Reorganization Act of 1980 (B. P. Blg. 129),
36
Sinacaban is constituted part of a municipal circuit for
purposes of the establishment of Municipal Circuit Trial
Courts in the country. For its part, Jimenez had earlier
recognized Sinacaban in 1950 by entering into an
agreement with it regarding their common boundary. The
agreement was embodied in Resolution No. 77 of the
Provincial Board of Misamis Occidental.
Indeed Sinacaban has attained de jure status by virtue of
the Ordinance appended to the 1987 Constitution,
apportioning legislative districts throughout the country,
which considered Sinacaban part of the Second District
of Misamis Occidental. Moreover, following the ruling in
Municipality of San Narciso, Quezon v. Mendez, Sr.,
442(d) of the Local Government Code of 1991 must be
deemed to have cured any defect in the creation of
Sinacaban'.
From this survey of relevant jurisprudence, we can gather
the applicable rules. Pelaez and its offspring cases ruled
that the President has no power to create municipalities,
yet limited its nullificatory effects to the particular
municipalities challenged in actual cases before this
Court. However, with the promulgation of the Local
Government Code in 1991, the legal cloud was lifted over
the municipalities similarly created by executive order but
not judicially annulled. The de facto status of such
municipalities as San Andres, Alicia and Sinacaban was
recognized by this Court, and Section 442(b) of the Local
Government Code deemed curative whatever legal
defects to title these municipalities had labored under.
Is Andong similarly entitled to recognition as a de facto
municipal corporation? It is not. There are eminent
differences between Andong and municipalities such as
San Andres, Alicia and Sinacaban. Most prominent is the
fact that the executive order creating Andong was
expressly annulled by order of this Court in 1965. If we
were to affirm Andong's de facto status by reason of its
alleged continued existence despite its nullification, we
would in effect be condoning defiance of a valid order of
this Court.
It bears noting that based on Camid's own admissions,
Andong does not meet the requisites set forth by Section
442(d) of the Local Government Code. Section 442(d)
requires that in order that the municipality created by
executive order may receive recognition, they must "have
their respective set of elective municipal officials holding
office at the time of the effectivity of [the Local
Government] Code." Camid admits that Andong has
never elected its municipal officers at all. This incapacity
ties in with the fact that Andong was judicially annulled in
1965. Out of obeisance to our ruling in Pelaez, the
national government ceased to recognize the existence
of Andong, depriving it of its share of the public funds,
and refusing to conduct municipal elections for the void
municipality.
37
The failure to appropriate funds for Andong and the
absence of elections in the municipality in the last four
decades are eloquent indicia of the non-recognition by
the State of the existence of the town. The certifications
relied upon by Camid, issued by the DENR-CENRO and
the National Statistics Office, can hardly serve the
purpose of attesting to Andong's legal efficacy. In fact,
both these certifications qualify that they were issued
upon the request of Camid, "to support the restoration or
re-operation of the Municipality of Andong, Lanao del
Sur," thus obviously conceding that the municipality is at
present inoperative.
And what now of Andong and its residents? Certainly,
neither Pelaez or this decision has obliterated Andong
into a hole on the ground. 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, namely the municipalities of
Lumbatan, Butig and Tubaran. These three municipalities
subsist to this day as part of Lanao del Sur, and
presumably continue to exercise corporate powers over
the barrios which once belonged to Andong.
[Municipality of Malabang, Lanao Del Sur v. Benito]
Executive Order 386 "created no office." This is not to
say, however, that the acts done by the municipality of
Balabagan in the exercise of its corporate powers are a
nullity because the executive order "is, in legal
contemplation, as inoperative as though it had never
been passed." For the existence of Executive, Order 386
is "an operative fact which cannot justly be ignored."

38
FIFTH MEETING: OCTOBER 01, 2021
Q. Is the system of decentralization mandated by the
Constitution?
A. Article II, Sec. 25 states that "Section 25. The State
shall ensure the autonomy of local governments."
There's also Article X of the 1987 Constitution,
particularly Sections 2 and 3: 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 a system of
decentralization with effective mechanisms of recall,
initiative, and referendum, allocate among the
different local government units their powers,
responsibilities, and resources, and provide for the
qualifications, election, 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.
Q. What are the two ways of distributing the powers
of government?
39
A. Horizontal and vertical distribution of power. In the
horizontal distribution of power systems, the power is
shared among different organs of the government such
as the legislature, the executive, and the judiciary. All
three organs of the government, that is, the legislature,
the executive and the judiciary are placed at the same
level. Vertical division of power refers to sharing of power
among different levels of the government – union, state
and local government. In this division of power, the local
government will work under the union or the state
government and the state government will work under the
union government.
Instances when there are blending of powers
(wherein at least two branches of government are
involved in the exercise of a particular governmental
power):
- Making laws where Congress votes on a bill and the
President approves it
- President provides a budget and the Congress
approves it
- When the President enters into a treaty and the
Congress ratifies said treaty
- Appointment of members of the Supreme Court
Q. What is a parliamentary government?
A. A parliamentary government is a system of
governance that ensures democratic ideals. National
parliamentary governments create laws for its citizens,
while international parliamentary institutions govern
globalization. A parliamentary system or parliamentary
democracy is a system of democratic governance of a
state where the executive derives its democratic
legitimacy from its ability to command the support of the
legislature, typically a parliament, to which it is
accountable.
Q. What do you understand by a unitary form of
government?
A. In a unitary form of government, the national
government supervises the local government's affairs as
the local government derives its existence and powers
from the national government.
Under our current setup, the Constitution itself mandates
the relationship between the executive department,
particularly the President, and that of the local
government unit. The relationship is that off general
supervision. Meaning, the President has general
supervision over LGUs.
Q. How about a federal form of government?
A. In a federal form of government, the LGUs are
supreme within their own spheres such that they become
40
quasi-sovereign states. They are still subordinate to the
national or central government in some respects.
Q. What is the relevant rules of interpretation with
respect to distribution of powers in favor of LGUs?
A. The interpretation is in favor of LGUs. In case of doubt
as to whether a power is devolved, it is construed in favor
of the autonomy of the LGU or in favor of the devolution
of powers; in favor of LGUs. That is Sec. 5(a) of the LGC.
Section 5. Rules of Interpretation. - In the
interpretation of the provisions of this Code, the
following rules shall apply:
(a) Any provision on a power of a local government
unit shall be liberally interpreted in its favor, and in
case of doubt, any question thereon shall be
resolved in favor of devolution of powers and of the
lower local government unit. Any fair and reasonable
doubt as to the existence of the power shall be
interpreted in favor of the local government unit
concerned;
Pimentel vs Aguirre
Issue being raised: The two sections contained in the AO
issued by Ramos violates LGU's' local autonomy.
The Supreme Court did not completely grant the petition.
Sec. 1 was valid and Sec. 4 was invalid.
Q. What's the purpose for the issuance of the AO?
A. To address the financial crisis, particularly the peso
depreciation. They wanted to reduce the total
expenditure by 25%.
Q. What are the requisites for there to be a
adjustments in the internal revenue allotment to be
implemented by the President?
A. There are three requisites:
1. There must be an unmanaged public sector of the
national government (meaning mayroong utang na hindi
na kaya ng national government)
2. There must be consultations with the presiding officers
of the Congress and local chief executives of the LGUs
3. There must be a corresponding recommendation of
the secretaries of some government agencies (DOF,
DILG, and DBM)
Take note of Article X, Sec. 6: 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.
- Once the law is clear, there is no need to interpret it.
The word "shall" should be construed as mandatory.
41
Decentralization is the devolution of national
administration to local governments. Devolution is the act
by which the national government confers powers and
authority upon the LGUs to perform functions and
responsibilities related to the projects of the government.
There are two kinds of local autonomy:
1. Decentralization of administration
There is decentralization of administration when the
central government delegates administrative powers to
political subdivisions in order to broaden the base of
government power, it relieves the central government of
the burden of managing local affairs and enables it to
concentrate on national concerns.
2. Decentralization of power
Decentralization of power involves an abdication of
political power in the favor of local government units
declared to be autonomous. In that case, the
autonomous government is free to chart its own destiny
and shape its future with minimum intervention from
central authorities. According to a constitutional author,
decentralization of power amounts to 'self-immolation,'
since in that event, the autonomous government
becomes accountable not to the central authorities but to
its constituency."
Q. In Philippine context, what do we have?
A. We have decentralization of administration. Only
administrative powers over local affairs are delegated to
LGUs. The purpose of the delegation is to make
governance more directly responsive and effective at the
local levels. The programs and policies effected locally
must be integrated and coordinated towards a common
national goal. The relationship between the national and
local government is not severed or broken by the
delegation of power. There is no abdication of power. In
the Philippines, there is no such thing as mini-states or
sovereigns within a sovereign State.
Mandanas case
Article X, Sec. 6: 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.
Sec. 284 of the LGC: Section 284. Allotment of
Internal Revenue Taxes. - Local government units
shall have a share in the national internal revenue
taxes based on the collection of the third fiscal year
preceding the current fiscal year as follows:
(a) On the first year of the effectivity of this Code,
thirty percent (30%);
42
(b) On the second year, thirty-five percent (35%); and
(c) On the third year and thereafter, forty percent
(40%).
Provided, That in the event that the national
government incurs an unmanageable public sector
deficit, the President of the Philippines is hereby
authorized, upon the recommendation of Secretary
of Finance, Secretary of Interior and Local
Government and Secretary of Budget and
Management, and subject to consultation with the
presiding officers of both Houses of Congress and
the presidents of the "liga", to make the necessary
adjustments in the internal revenue allotment of local
government units but in no case shall the allotment
be less than thirty percent (30%) of the collection of
national internal revenue taxes of the third fiscal year
preceding the current fiscal year: Provided, further,
That in the first year of the effectivity of this Code,
the local government units shall, in addition to the
thirty percent (30%) internal revenue allotment which
shall include the cost of devolved functions for
essential public services, be entitled to receive the
amount equivalent to the cost of devolved personal
services.
Note: By limiting the computation of IRA to NIR taxes, the
LGC, in effect, deprived the LGUs of their fair share in
the national taxes (See Sec. 21 of NIR Code). That's why
the phrase was declared unconstitutional.
SC: There are distinct ways by which decentralization is
effected. Decentralization of power have been given to
regional units such as the ARMM and CAR while the
other group of LGUs enjoy decentralization of
administration.
Decentralization of power would apply to the regional
units ARMM and CAR while the LGUs enjoy
decentralization of administration. ARMM and CAR were
specifically mentioned to be enjoying decentralization of
power.
The SC further emphasized that LGUs enjoy
decentralization of power but it is not unlimited but only
involves powers enumerated in Sec. 20 Article X and the
laws passed by Congress.
(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;
43
(3) Ancestral domain and natural resources;
(4) Personal, family, and property relations;
(5) Regional urban and rural planning development;
(6) Economic, social, and tourism development;
(7) Educational policies;
(8) Preservation and development of the cultural
heritage; and
(9) Such other matters as may be authorized by law
for the promotion of the general welfare of the people
of the region.)
Q. What are the four categories of decentralization?
A.
1) Administrative decentralization or deconcentration;
2) Political decentralization or devolution;
3) fiscal decentralization;
4) policy or decision-making decentralization
1) Deconcentration is administrative in nature and
involves the transfer of functions or the delegation of
authority and responsibility from the national office to the
regional and local offices. This is also referred to as
administrative decentralization.
2) Devolution connotes the transfer of powers,
responsibilities, and resources from the central
government to the LGUs for the performance of certain
functions. It is a more liberal form of decentralization
because there is an actual transfer of powers and
responsibilities. It grants greater autonomy to the LGUs.
3) Fiscal decentralization emanates from specific
constitutional mandates that are expressed in several
provisions of the Constitution.
4) Policy-making decentralization exists if at least one
sub-national tier of government has exclusive authority to
make decisions on at least one policy issue
SIXTH MEETING: OCTOBER 08, 2021
What are the four categories of decentralization?
(Mandanas v. Ochoa)
Administrative decentralization, political decentralization,
Fiscal decentralization and Policy-making
decentralization
44
What is Administrative decentralization? Can you
give examples?
Administrative decentralization is administrative in nature
and involves the transfer of functions or the delegation of
authority and responsibility from the national office to the
regional and local offices. This is also referred to as
administrative decentralization.
Consistent with this concept, the LGC has created the
Local School Boards, the Local Health Boards and the
Local Development Councils, and has transferred some
of the authority from the agencies of the National
Government, like the Department of Education and the
Department of Health, to such bodies to better cope up
with the needs of particular localities.
What do you mean by Political decentralization?
Political decentralization connotes the transfer of powers,
responsibilities, and resources from the central
government to the LGUs for the performance of certain
functions. It is a more liberal form of decentralization
because there is an actual transfer of powers and
responsibilities. It grants greater autonomy to the LGUs.
Are political decentralization and administrative
decentralization the same?
No. When you say political, it’s actually a transfer of
power. For example, Sec. 16, the general welfare clause,
that is actually delegation of police power to the LGUs;
Sec. 19 provides for the power of eminent domain. So,
those are fundamental powers of the state in general, but
they are delegated to LGUs that’s why they said that
political decentralization is a more liberal type of
decentralization because there is an actual transfer of
powers and responsibilities. So it’s the more liberal form
because the objective is to make the LGU more self-
reliant.
How about Administrative? So, this involves delegation of
functions from a national office to a local office. For
example, we have a Department of Health which
oversees the national level, but we have the local health
boards as far as the local level. So, the
functions is devolved locally.
What do you mean by Fiscal decentralization?
Fiscal decentralization emanates from specific
constitutional mandates that are expressed in several
provisions of the Constitution.
This means that the LGUs have the power to create their
own sources of revenue in addition to their just share in
the national taxes released by the National Government.
This also includes the power to allocate their resources in
accordance to their priorities.
45
What do you mean by policy-making
decentralization?
Policy-making decentralization exists if at least one sub-
national tier of government has exclusive authority to
make decisions on at least one policy issue
LGUs have the exclusive authority to make their
decisions on at least one policy. So, meaning it can it can
meaning the local government has the power to make its
own decision with respect to a particular policy
exclusively. does not require the intervention of National
Government, it has the exclusive prerogative to make a
policy decision.
Limbona v. Mangelina
Limbona v. Mangelina is often cited in more recent cases
when we talk about the centralization of administration
vis-a-vis decentralization of power. The issue in this case
is if there is a decentralization of Power Administration
with respect to the autonomous region.
Is there a law scrutinized in this case? What is that
law?
PD 1618. Under the said law, it is stated that the
President shall have the power of general supervision
and control over autonomous region. So that means,
because the President has the power of general
supervision over autonomous regions, meaning what was
devolve here is merely administration. That was the
intent behind the issuance of the PD—Presidential
Decree 1618. Ergo, the Supreme Court said that it has
jurisdiction to rule on the matter, because if there is
decentralization of power then the supreme court does
not have jurisdiction or did not have jurisdiction, because
it goes into the wisdom already have the action of the
sangguiniang pampook says it's as if the Supreme Court
would inquire into the wisdom of the action, let's say of
Congress, right?
The internal acts, can that be validly done by the
Supreme Court? If we if generally, we're talking about
the wisdom of a particular action? by a co equal
branch of government? What do you call that? In
your political law? The Political Question Doctrine.
Although it's not explicitly mentioned here, but if you will
analyze if there is decentralization of power, of course,
the issue of supervision is not a question. The propriety
of the exercise of general supervision on the part of the
national government, when it's decentralization of power
for internal acts, specifically the wisdom in removing a
particular official of the Autonomous Region, then the
Supreme Court would respect that. But here since what
is applicable is decentralization of administration. Then
the High Court inquired into the validity of the proceeding,
which led to the remove one of the following
46
As a general rule, the Supreme Court may only resolve
justiciable questions involving conflicting rights. By way of
exception, the supreme court may exercise jurisdiction or
the generally the judicial branch of government may
exercise jurisdiction if there is grave abuse of discretion,
amounting to lack, or excessive jurisdiction on the part of
the other branches or agencies of the government. So
that is the expanded concept of judicial review.
So, it limits the political question doctrine. It serves as an
limitation for the application of the political question
doctrine. Generally, if the there is an exercise of
discretion on the part of either the executive or the
legislative, then that is traditionally covered by the
political question doctrine, but because there's this
expanded concept of judicial review, even those actions
which were done in the exercise of discretion may be
reviewed, may be the subject of the judicial review.
CSC v. Yu
What’s the definition of devolution?
the Supreme Court said that the devolution is the act
which the national government confers power and
authority upon various local government units and to
perform a specific function and respond and
responsibilities.
Now without this is this was not categorically stated in
the Supreme Court decision. But if you will analyze this,
the facts of the case know what, which among the four
categories of decentralization is involved here?
Administrative Decentralization.
Is PHO2 a devolved position? Yes. The mess started
when the governor refused to accept the predecessor of
Yu. He claimed that the absorption was not one
administratively viable. When in fact, where did the
Castillo get her salary? from the local government unit of
Basilag. So you could see the labor abuse of discretion
there. That was the ruling of the Supreme Court.
Overall, the essence of this is, you know, I just want you
to realize that here a particular position and concomitant
responsibility were devolved, the hospital including its
functions was devolved. The hospital was renationalized.
Meaning, balik sa national government. So this was
because of the Advent, or the enactment of the local
government code. So pursuant there to there was
devolution. That's why the certain functions of the DOH
were devolved to the local government level.
Here, the functions and responsibilities were devolved to
the local government unit of Basilan by virtue of the
devolution program, because of the announcement of the
local government code.
47
Pimintel v. Ochoa
Sec. 17, Local Government Code
(c) Notwithstanding the provisions of subsection (b)
hereof, public works and infrastructure projects and other
facilities, programs and services funded by the National
Government under the annual General Appropriations
Act, other special laws, pertinent executive orders, and
those wholly or partially funded from foreign sources, are
not covered under this Section, except in those cases
where the local government unit concerned is duly
designated as the implementing agency for such
projects, facilities, programs and services.
What particular provision exemplifies what general
principle? That provision that you've mentioned 17(c) that
you’ve mentioned the qualification that those covered by
the National loss, the general appropriations, executive
orders, they are not covered by the enumeration. What
does that tell you? particularly what particular general
principle in decentralization is exemplified that provision?
Notwithstanding the policy on decentralization, the
national government did not relinquish all of its powers.
So decentralization, or the concept of local autonomy,
does not imply conversion of local government units into
mini states. Even if the recipients who timidly were from
the local government units, actually, ultimately, all people
reside in local government units one way or the other.
The National Government, of course, did not relinquish
all its powers to the local government units. It reserved
ours to itself, of course, to finance, infrastructure, public
works and other projects, and programs. That's why that
provision in Section 17(c) is very important, otherwise
how will the national government implement its projects?
Sec. 17(c) in relation to that principle--that the principle of
local economy does not imply the creation of mini states.
it does not convert local government units into mini state.
Province of Batangas v. Romulo
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.
What category of decentralization is involved here?
Fiscal decentralization.
So, it is unconstitutional meaning the EO is
unconstitutional because it violated Art. X, Sec. 6
because the just share yung LGSEF is part of the IRA
and when you say just share, it must be automatically
released to the local government unit. So the imposition
of additional conditions violates the provision on
automatic release because when you say automatic it
does not require compliance with any condition does not
require any further action.
48
So the Supreme Court even cited what Webster to define
what automatic is. So according to the Supreme Court,
the imposition of an additional condition for the release of
the LGSEF violates Art. X, section 6.
Now, what particular condition in particular was
imposed here?
An oversight committee was formed to control the
distribution and release of the portion of the IRA so that
cannot be automatic, right? Because it would be subject
to the control of the Oversight Committee, how can that
be automatic?
Villafuerte Jr. v. Robredo
Section 287. Local Development Projects. - Each local
government unit shall appropriate in its annual budget no
less than twenty percent (20%) of its annual internal
revenue allotment for development projects. Copies of
the development plans of local government units shall be
furnished the Department of Interior and Local
Government.
Why was the circular merely directory?
Because it was only a reiteration of the existing provision
which can be found in the local government code. Okay,
so it nearly guidance the local government units--How to
allocate the 20%, because there is a provision in the local
government code to that effect: 287 of the local
government code. And in fact, the issuance itself did not
provide for sanctions. So even if the local government
units would not follow. Now there would be no sanctions
upon them. So, it was merely a reminder.
But there was a warning in the issuance regarding
sanctions, which are provided in the local government
code and other applicable laws. Did that negate the
advisory nature of the issuance?
No, because again, autonomy does not make these local
government units sovereign. They're not mini states.
League of Provinces of the Philippines v. DENR
The provision on the local government code says the
power to implement or to enforce small scale mining loss.
Now, because of that provision and by virtue of the
exercise of the DENR of its authority to nullify the small
scale mining permit, is there a violation of local autonomy
here, particularly on the part of the provinces?
No because the DENR secretary has the authority over
small scale mining permits pursuant to Art. XII, Sec. 2 –
SECTION 2. All lands of the public domain,
waters, minerals, coal, petroleum, and other
49
mineral oils, all forces of potential energy,
fisheries, forests or timber, wildlife, flora and
fauna, and other natural resources are owned by
the State. With the exception of agricultural lands,
all other natural resources shall not be alienated.
The exploration, development, and utilization of
natural resources shall be under the full control
and supervision of the State. The State may
directly undertake such activities, or it may enter
into co-production, joint venture, or production-
sharing agreements with Filipino citizens, or
corporations or associations at least sixty per
centum of whose capital is owned by such
citizens. Such agreements may be for a period not
exceeding twenty-five years, renewable for not
more than twenty-five years, and under such
terms and conditions as may be provided by law.
In cases of water rights for irrigation, water supply,
fisheries, or industrial uses other than the
development of water power, beneficial use may
be the measure and limit of the grant.
The State shall protect the nation’s marine wealth
in its archipelagic waters, territorial sea, and
exclusive economic zone, and reserve its use and
enjoyment exclusively to Filipino citizens.
The Congress may, by law, allow small-scale
utilization of natural resources by Filipino citizens,
as well as cooperative fish farming, with priority to
 subsistence fishermen and fishworkers in rivers,
lakes, bays, and lagoons.
The President may enter into agreements with
foreign-owned corporations involving either
technical or financial assistance for large-scale
exploration, development, and utilization of
minerals, petroleum, and other mineral oils
according to the general terms and conditions
provided by law, based on real contributions to the
economic growth and general welfare of the
country. In such agreements, the State shall
promote the development and use of local
scientific and technical resources.
The President shall notify the Congress of every
contract entered into in accordance with this
provision, within thirty days from its execution.
And under the administrative code, the DENR given the
mandate to control and supervise the exploration,
development, utilization and conservation of the country's
natural resources. For the enforcement by ultimately the
power to nullify, as exercised by the Secretary of
Environment and Natural Resources, in the exercise of
the power of control, because later on we will, we will
discuss this further, the exercise of the power of control is
not anathema to the principle of devolution or
decentralization because ultimately, even that provision
50
pertaining to small scale mining is subject to the
provisions of our national laws.
So, even if the provinces are given that power we
implement small scale mining laws that is subject to the
application of national laws. And again, we have a
constitutional provision we have a national law that
governs small scale mining and the administrative code
itself empowers the DENR to exercise control and
supervision over how our natural resources are
conserved and protect, distributed or utilized.
Now, let's go to the relationship between the national
government and particularly the Office of the President
and the local government unions. How do you
characterize it? The former may exercise general
supervision over the latter.
Is the power exercised over local government unit
the same as the power exercised over executive
departments, bureaus or offices under the executive
department? No
Who has power of control over executive offices? Such
offices are considered as the alter-ego of the president.
So therefore, he has direct control over such offices.
Is it the same power that is being exercised over the
local government unit? No.
How do you distinguish supervision vis-a-vis local autonomy; that is no longer in accordance with the
control? principle of local autonomy.

So, control means the power of a superior officer to alter

or modify or nullify or set aside. What does substitute
rather whant the subordinate officer has done in the Bito-Onon v. Quejano
performance of his or her duties; or to substitute the
The Liga is governed by the provisions of the local
superior officer's judgment for that of the subordinate
government code. While the respective constitutions and
officer. That's why nung kaninang ginawa nung secretary
bylaws govern the other end areas of their internal
of environment and natural resources will nullify the
organization, but the constitution and bylaws are
applications for small scale mining. Meaning nullifying the
supplementary to the provisions of the local government
actions of subordinate officers that is control. The
and shall be subject to the provisions of the Constitution
superior can substitute this judgment for that of the
and existing laws. So, even if it is not a local government
subordinate officer. But in supervision the as the name
union the President has the power to exercise the power
suggests, the superior officer merely sees to it, ensures
of general supervision over the leader.
that the subordinate is performing his or her duties. So, if
the subordinate does not perform his or her duties, then
that superior may take steps to make the subordinate
performed that duty as prescribed by law. Ganzon v. CA

Now to correlate this with local autonomy, the what power did the President then have over the local
relationship between the president or the national government unit?
government and the local government units is
What was the phrase deleted from the counterpart
characterized by the former, exercising the power of
provision in the 1935 Constitution? “As may be
general supervision. So what's the essence? if the
provided by law”
national government exercises the power of control, If it
already substitutes its judgment, if it already nullifies, if it So, what's the issue here? What did the Secretary of
already annuls, if it already repeals, if it already sets Interior and local government do?
aside, the actions or decisions of the local government
unit that is no longer in congruence with the principle of

51
Ganzon questioned the action of the Secretary of local
government, whether they have the power to suspend
suspend those who are investigated under the vintage
suspension as administrative sanction.
Does the removal of the phrase as may be provided
by law, under the counterpart provision in the 1935
constitution mean that the President is now
powerless to investigate, suspend, discipline or
remove local officials?
No, Supreme Court said nothing. It did not divest the
president of the power to investigate, suspend, basically,
or remove a local government official. The deletion of the
phrase as may be provided by law only signifies or
merely emphasizes that the principle of local autonomy. It
signifies the, the removal of the phrases may be provided
by law only means that the current constitution is
emphasizing local autonomy.
So in a way the framers of the Constitution would want
the local government unions would want to break away
from the control of the national government. So it is for a
stylistic purpose. But substantially the power of
supervision even with the removal of the phrase, as may
be provided by law is not inconsistent with the power to
impose penalties. It does not exclude the power to
conduct an investigation. They are not inconsistent
principles.
52
Just because the phrase "as may be provided by law"
was removed, doesn't mean that the President could no
longer investigate local government officials, because the
the important principle here that we should learn from
Ganzon is that supervision is not incompatible with
disciplinary authority. It doesn't mean supervision law
Hungarian national government, he could no longer
impose sanctions, it could no longer suspend, it could it
could no longer remove local government officials.
So, supervision and disciplinary authority or the power to
investigate are not inconsistent with each other. The
power to investigate, It's not anathema, it's it does not
negate the existence of supervision.
So here, the Supreme Court also clarified that the fact
that this deep, the Supreme Court in prior cases, ruled
that he or she could not suspend or remove local
government officials, does not mean that it could no
longer do so. In those cases cited by the Supreme Court,
the President was not empowered with the power with
the authority to suspend or remove because such power
is lodged elsewhere. It doesn't mean that the President
only has a limited power.
So, supervision and remove all are not incompatible
terms. The fact that the President may remove doesn't
mean that there is no local autonomy anymore. The fact
that we have this principle have local autonomy doesn't
mean that the President could no longer investigate, or
the fullest extent remove a local government official.
They are not inconsistent terms. They're not incompatible
with each other. So that's the important doctrine here.
So, to respond to that issue, the Secretary of local
government, of course, now, we call it because that
position, Secretary of Interior and local government, that
official as the alter ego of the President, May in
investigate, may exercise the power of suspension or
removal and such power is not inconsistent with the
concept of supervision. And the removal of the phrase as
may be provided by law, under the 1935 constitution
doesn't mean that the power to […] it was just intended to
emphasize greater autonomy.
So, in short, it was intended for stylistic purpose to
emphasize that the current constitution now hinges on
the principle of local autonomy but substantially the
power of supervision is not inconsistent with the exercise
of the power to investigate the power to remove the
power to suspend.
It is important to note that the President may suspend or
remove a local government official. Even if the power that
he acts he or she exercises, so the fact that the president
only exercise the power for general supervision does not
deprive him or her the power to remove or to suspend.
53
SEVENTH MEETING: OCTOBER 15,
2021
TAULE CASE
So here the Supreme Court said that the Secretary of
Interior and local government has no authority to pass
upon the validity or regularity of the election of the
officers of the FABC. To do so, would be an exercise of
the power of control.
So, that is also contrary to the rationale behind the
election of officers. Because to allow the interference of
the secretary would be to permit
the said officer to interfere in a purely democratic and
non partisan activity. So, such interference, according to
the Supreme Court is tantamount to the exercise of the
power of control. So, again, we're trying to familiarize
ourselves, if not master the distinctions between the
power of control and the power of general supervision.
NATIONAL LIGA CASE
So, according to the Supreme Court, what is the
nature of this Liga ng mga Barangay?
They have a representation in the sanggunian. So, it is
an association/federation created by law and the
members of such Liga ng mga Barangay are those who
are either appointed or elected government official.
While the Liga is strictly not a local government unit. It's
not a municipality, it's not the city, not the province. It's
not a bad guy, but it's rather a group of barangay, which
are in turn represented by their respective punong
barangays, and they have an ex officio representative in
the sangguinians. Particularly, the municipality, city and
provincial sanggunians. So according to the Supreme
Court, the liga is the vehicle through which the barangay
participates in the enactment of ordinances and in the
formulation of policies at the local government unit level,
and since it is mandated under the local government
code, there should be a Liga so the Supreme Court said
that the power of general supervision, likewise applies to
the Liga, even if it is not a local government.
So, in this case, what was the action which led the
Supreme Court to conclude that, hey, this is no
longer general supervision?
The DILG acted as an interim caretaker. So even if it
was, even if it was only for a limited period of time, and
only until a new set of officers assumed office, still It was
an exercise of the power of control, because while the
Secretary of Interior and local government was the
caretaker he empowered himself with the authority to
make decisions regarding the affairs of the Liga.
54
When an official acts as a caretaker. So, in the
meantime, he assumes the powers of the head of that
particular liga that manages the affairs so in effect, he
makes the judgment. Secretary Barbers was making all
the judgments or decisions with respect to the internal
affairs of the liga. So if that is not control, I don't know
what is no. So the Supreme Court rule, this is no longer
general supervision.
Being a caretaker, it's no longer general supervision, it's
no longer ensuring compliance with the duties and
responsibilities. It's no longer overseeing compliance with
the law, it's already in effect, arrogating unto the DILG,
the power to make decisions. So if that is the power, the
power being exercised, then it's no longer general
supervision. It's already controlled.
PROVINCE OF CAMARINES SUR CASE
What are the requisites to the exercise of judicial
review?
The requisites for the exercise of the power of judicial
review are the following: 1) There must be an actual case
or justiciable controversy before the court; 2) The
question before the court must be ripe for adjudication; 3)
The person challenging the act must be a proper party;
and 4) The issue of constitutionality must be raised at the
earliest opportunity and must be the very cause or
motivation of the case.
Just like any other constitutional question, the issue
pertaining to possible violation of an LGU's, local
autonomy must be raised at the earliest possible
opportunity, not for the first time before the Supreme
Court. So remember, just like other constitutional
challenges, or constitution, constitutional questions, the
issue pertaining to local autonomy, the issue of whether
the national government exercises already the power of
control vis-a-vis General supervision, these issues must
be raised at the earliest possible opportunity. It just so
happened that in the exercise of its judicial discretion, the
Supreme Court still found that the petitioner was not
liable to pay the disallowed funds, but the more important
thing that you should remember is that just like any other
constitutional questions, The issue pertaining to violation
of municipal Corporation's local autonomy must also be
raised at an earn at the earliest possible opportunity.
PROVINCE OF NEGROS OCCIDENTAL CASE
Are LGUs covered by the AO? Who are covered by the
AO?
No, heads of the government agencies as well as the
government owned and controlled corporations. So,
ensure no local government units are not even covered
by the AO, which required prior approval from the
president for the release of these incentives.
55
Moreover is the requirement of prior approval even
constitutional? Control we said the power to anon to
modify repeal or to set aside what the subordinate has
done. vis-avis supervision which means simply ensuring
that the subordinate is performing its duties complying
with the law. No. So that's basically it. Is the power to
exercise or to give prior approval to the release of these
benefits. tantamount to general supervision?
Is the power to approve equivalent to the exercise of the
power of control?
Yes. By definition, It is power of control. Just like when
you disapprove the work of your subordinate, you are
substituting your judgment as the head for that of the
subordinate. In short, he sets aside the decision to grant
the benefit.
DADOLE CASE
Is LBC55 consistent with the local government code?
No, because it provided a limitation which goes against
the provisions of the LGC. As long as it is allowed by the
government, by the finances of the city of two
government. It is still allowable.
(a) The sangguniang panlungsod, as the
legislative body of the city, shall enact ordinances,
approve resolutions and appropriate funds for the
general welfare of the city and its inhabitants
 pursuant to Section 16 of this Code and in the
proper exercise of the corporate powers of the city
as provided for under Section 22 of this Code, and
shall:
the principle of local autonomy would be tantamount to
the exercise of the power of control. Because if the
national government would set the limit itself then it
would be substituting its own judgment for that of the
local government unit.

(1) Approve ordinances and pass resolutions

necessary for an efficient and effective city ZABAL v. DUTERTE
government, and in this connection, shall:
Isn't it that boracay is located in a local government
(xi) When the finances of the city unit?
government allow, provide for additional
allowances and other benefits to judges, Yes.
prosecutors, public elementary and high
Why do you say that the interference of the chief
school teachers, and other national
executive the executive department does not or does
government officials stationed in or
not intrude into the local autonomy of the local
assigned to the city;
government. The local government unit having
Given that provision, So, when the budget of the local jurisdiction over Boracay? Is this a mere local issue?
government unit allows, so the local government unit has
No, it's a tourist destination. So, it caters to both local and
discretion. So consistent with local autonomy, it has
foreign tourists. So the effect of this is no longer treated
discretion to grant allowances and to specify the
just as a mere local issue because it has an effect at the
limitation to such grant as because the only limitation is if
national level.
the budget allows.
So, Proc. 475 erected a collaborative effort on the part of
So, unless it is amended, to prescribe a maximum limit,
the various agencies, departments and offices in the
the local government union has that discretion. And any
national level, the GOCCS and the affected that local
interference on the part of the national government,
government units to coordinate in making the
which is inconsistent with the local government code and
rehabilitation of Boracay, in keeping with the Brava action

56
plan. So, the local government unit is not necessarily
excluded from the rehabilitation efforts, but to say that
this is an intrusion into the local autonomy of the local
government units concern according to the Supreme
Court is not a correct view because given the the
reputation of Boracay as a prime tourist destination, it is
not a mere local issue but a nationa issue. And
remember also that given the nature of the tourist
destination and in applying the principle of local
economy, decentralization, what is decentralized it's not
power, but merely administration. So, the local
government unit is not necessarily sovereign. So the
President now, the President may interfere may
reasonably interfere in this case, because this is no
longer a mere local concern. Rather, it has already
evolved into a national concern because to allow the
further deceleration of growth, would have an effect on
our tourism industry.
GENERAL WELFARE CLAUSE
What is the basis of the General Welfare Clause?
Section 16. General Welfare. - Every local government
unit shall exercise the powers expressly granted, those
necessarily implied therefrom, as well as powers
necessary, appropriate, or incidental for its efficient and
effective governance, and those which are essential to
the promotion of the general welfare. Within their
respective territorial jurisdictions, local government units
57
shall ensure and support, among other things, the
preservation and enrichment of culture, promote health
and safety, enhance the right of the people to a balanced
ecology, encourage and support the development of
appropriate and self-reliant scientific and technological
capabilities, improve public morals, enhance economic
prosperity and social justice, promote full employment
among their residents, maintain peace and order, and
preserve the comfort and convenience of their
inhabitants.
Is there an inherent power being exercised through
the general welfare clause?
Police Power
Does this contradict the doctrine that what has been
delegated can no longer be delegated?
No, because power is primarily vested to the legislature,
and it is the first act delegated to the local government
and that delegation to the local government by the
legislative body may be exercised by the LGUs through
their own enactments of ordinances.
The general rule is that “what has been delegated cannot
be delegated” (delegatus non potest delegare) but there
are as you know, traditional exceptions.
1. Police power
 2. Basic services and facilities
3. Power to generate and apply resources
4. Power of eminent domain
5. Taxing Power
6. Reclassification of Land
7. Local legislative power
8. Closure and opening of roads
9. Corporate Powers
10. Liability of LGUs
11. Settlement of Boundary Disputes
12. Succession of Local Officials
13. Discipline of Local Officials
14. Authority over police unit
Police power as we learned it is basically legislative. Yet,
delegation of this power to local government unit is an
accepted exception to the general rule that what has
been delegated may no longer be re-delegated. So, this
is also consistent with the fundamental principle that we
discussed several weeks back what's that? that law
58
government unit are agents of the state. So, like your law
on contract is akin to a principal and an agent right. So,
the agent represents the principal.
So, from there you can easily see one of the instances
where in the local government unit acts as an agent of
the state is through the exercise of the general welfare
clause the principal meaning the state, delegate in favor
of the local government unit the power to exercise, what
is stated in your section 16.
Now, since the local government unit exercise delegated
police power as agents of the state, so, it is incumbent
upon the local government units to act in conformity to
the will of the principle. So, meaning the local
government units cannot contravene national policies.
Basically, how does the local government units
exercise this delegated power?
Through the enactment of an ordinance. Okay, so,
meaning to say ordinances enacted by local legislative
bodies cannot contradict or violate national loss. So
consistent with that basic principle that by virtue of the
general welfare clause, the local government unit acts as
an agent of the state. So, it must always up in conformity
with the will of the state, being the local government
units’ principle.
What are the two branches of the general welfare
clause?
The General Welfare Clause, which has two branches.
The first, known as 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 the municipal council by law.
The first branch retains the power to enact ordinances
and regulations to carry into effect and discharge the
powers and duties conferred upon the LGU by law, so
meaning enactment of ordinances to implement the law,
The second, known as 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.
So that all encompassing power to enact ordinances to
promote if you will summarize the general welfare of the
people. There are several items enumerated therein. But
the main idea is to enact ordinances to promote the
general welfare. So the first one would be to enact
ordinances to implement or to carry out the powers
vested by law on local government unit in the second
one, stand up ordinances to promote the general welfare
of the people, to promote the general welfare of the
59
people, morals, peace, good order or even prosperity.
Those are, those items can be summarized to mean the
general welfare of the people.
BATANGAS v. PHILIPPINE SHELL PETROLEUM
CORP.
Ruling: The Assailed Ordinance is void for being ultra
vires, for being contrary to existing law, and for lack of
evidence showing the existence of factual basis for its
enactment. And one of the issue as well here is whether
it encroaches upon the authority of the NWRB provided
under the water code, because under the water code,
water sources are placed upon control and regulation of
the National Water Resource Board. So, the Supreme
Court ruled that it encroaches. So, it's invalid because
applying the principle that It is a fundamental principle
that municipal ordinances are inferior in status 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. It is
the water code which shall prevail.
BATANGAS CATV, INC. v. CA
The ordinance violates the national policy as regards the
agency that should regulate cable television. So it should
be the National Telecommunications Commission that
shall exercise the regulatory power oversee TV. Can this
be shared? Can this be justified using the principle
of local economy or devolution so that it can be
shared with the local government unit?
No because the power that was vested to the NTC was
exclusive. So, meaning the NPC exercises regulatory
power to the exclusion of other bodies.
CRUZ v. PANDACAN HIKER'S CLUB, INC.,
Who in particular exercises the powers vested under
the general welfare clause?
The Sangguinian
What was the contention of the petitioners?
They claimed that they acted pursuant to the general
welfare clause
What is Nuisance per se?
It affects the immediate safety of persons and property,
which may be summarily abated under the undefined law
of necessity.
What can be done to a nuisance per se?
A summary abatement. For example, it is unlike a mad
dog on the loose, which may be killed on sight because
of the immediate danger it poses to the safety and lives
60
of the people; nor is it like pornographic materials,
contaminated meat and narcotic drugs which are
inherently pernicious and which may be summarily
destroyed; nor is it similar to a filthy restaurant which may
be summarily padlocked in the interest of the public
health.
How about Nuisance per accidens?
Nuisance per accidens, which "depends upon certain
conditions and circumstances, and its existence being a
question of fact, it cannot be abated without due hearing
thereon in a tribunal authorized to decide whether such a
thing does in law constitute a nuisance;"37 it may only be
so proven in a hearing conducted for that purpose and
may not be summarily abated without judicial
intervention.
So by virtue of the general welfare clause, the Punong
Barangay and Tanod, they are exclaiming, "we are
invited to do this." For the general welfare.
Is the Punong Barangay the proper official to
determine if a nuisance exists?
No.
Now, can the punong barangay exercise the powers
vested by virtue of the general welfare clause?
No. The Supreme Court declared that the power of the
police power is vested primarily with the national
legislature, which in turn is delegated to the local
government units through the enactment of ordinances.
The petitioners provided no law justifying their action.

So what then is the power vested upon a punong

barangay?

The power to implement the ordinances enacted by the

sanggunian. The lesson here is pretty straightforward
that the general welfare clause is actually a delegated
legislative power. Because the general welfare clause is
basically the delegated legislative power. Because we
learn that the police power is exercised by the legislature
the power to regulate because the legislature is the one
that enacts the laws. So by virtue of the general welfare
clause, such power is delegated by the national
legislature to the local legislative bodies. So here, a
punong barangay, if we correlate this to the other local
government units, a mayor or a governor, without an
ordinance, cannot arrogate unto itself the exercise of the
general welfare, or the powers vested pursuant to the
general welfare clause.

61
 Finals Period
PPT SCREENSHOTS LINK:
https://drive.google.com/drive/folders/1nn-
NJR6x2mo8e0wO5z2E-Mt3KIruTad5?usp=sharing
EIGHTH MEETING: OCT. 29, 2021
· Prelims Question 1. As to the manner of creation, municipal
corporations are created by law while GOCCs are created as a
stock corporation within which the government owns majority
of the shares. As to purpose, municipal corporations are
formed for the local governance over inhabitants of cities. It is
the agency of the State in assistance for the governance of its
regulations for local and internal affairs (civil government)
whereas in GOCCs, are agencies of the State for limited
purposes for state work other than community work (See
NAWASA v. MWSA). As to personality, municipal corporations
are political subdivisions of the Republic of the Philippines,
while GOCCs have personality which is separate and distinct
from the government.
· Prelims Question 2. Municipal corporations, being mere
creatures of the State, are subject to the will of Congress. This
is explained in the case of Mandanas. Their continued
existence and grant of powers are dependent on the discretion
of Congress (See Miriam v. Executors). But such concept is
somewhat limited by the provision of the Constitution
regarding local autonomy. So while Congress retains control of
62
the LGU, that control was significantly reduced under 1987
Constitution before the concept of local autonomy and
decentralization. So the prerogatives of the LGUs were
enhanced but it does not intend to deprive Congress of its
authority and prerogatives over LGUs.
· Prelims Question 3. Four categories of decentralization:
a. Political decentralization
b. Administrative decentralization
c. Fiscal decentralization
d. Policy or decision-making decentralization
The Mandanas ruling of 2018 enlightens these categories of
decentralization.
· Prelims Question 4. There is no need for a plebiscite for
reapportionment of a legislative district since such is different
from creation, division, merger, or abolition, or alteration of
boundaries of an LGU, as discussed in Bagabuyo v.
COMELEC.
· Prelims Question 5. You have to distinguish between a
patrimonial property and a property for public use. In this case,
there is no ordinance withdrawing those streets from neither
from public use nor conversion of such streets into patrimonial
property. Ergo, they are beyond the commerce of man. In
Villanueva, the Court held that even if the contract is valid, the
LGU, in exercise of the general welfare clause, is authorized to
terminate that contract making the public plaza a tiangge.
· Prelims Question 6. Palawan has no share since the project
is outside the territorial jurisdiction. Territorial jurisdiction plays
part in this case since it only includes the land mass (specific
metes and bounds) and such project is outside the jurisdiction
of Palawan.
· Prelims Question 7. The provision is constitutional under the
Drilon case since it only directs that the ordinance is
unconstitutional. The Secretary of Justice is not empowered to
replace his or her judgment for that of the local government
unit. In that case, it does not authorize the Secretary of Justice
to question the wisdom of the law. It is not within the exercise
of the power of control.
· Prelims Question 8. No, the motion for garnishment will not
prosper. Public funds are not subject to execution. So if you
win, you can file a Mandamus case to compel the city to pass
an ordinance. Also, in UP v. Dizon, money claim is to be
presented before the COA first under PD 1445. But the
principle here is that public funds owned by LGU are not
subject to execution.
· Prelims Question 9. Aling Rosing is not correct. On their
own, they cannot exercise the general welfare clause. Such
clause can only be exercised by the Sanggunian since the
GWC is a delegated power (political decentralization).
· Prelims Question 10. Yes, they should be given a chance to
participate because the conversion, in Umali v. COMELEC, of
component city to HUB, it becomes independent to the
63
province (as also stated in Art. X, Sec. 4, 1987 Constitution).
Thus, there will be a substantial alteration with regards to the
relationship as well as political and economic impact (since the
IRA will also be reduced). Therefore, the registered voters in
Nueva Ecija should be given due opportunity to participate in
the plebiscite.
GENERAL WELFARE CLAUSE (Only the highlights of
Atty. Isma is indicated here. Kindly read the links of the
cases.)
A. Ruzol v. Sandiganbayan
This is a criminal case filed against Ruzol. According to the
prosecution, Ruzol has no authority to issue permits because
the power to regulate the salvaged forest products and its
subsequent transportation lies with the DENR. Ruzol
interposes specific defenses – (a) He is exercising power
conferred by the LGC – not just the express powers but also
those that are necessarily implied; (b) He is acting upon the
implied powers to promote the general welfare of his
constituents.
The Supreme Court ruled that DENR does not have an
exclusive power to regulate because under the Local
Government Code, the power to regulate forestland resources
is also shared with the LGUs. Also, the levy of fees for the
provision of permit is only valid if there is an ordinance
providing such but in this case, there is none.
However, the prosecution has failed to prove beyond
reasonable doubt that Ruzol possessed that "criminal mind"
when he issued the subject permits. What is clear from the
records is that Ruzol, as municipal mayor, intended to regulate
and monitor salvaged forest products within General Nakar in
order to avert the occurrence of illegal logging in the area.
B. Fernando v. St. Scholastica
https://docs.google.com/document/d/
1Ibk4g316XggIrQIPcBLdJJVuKkIJifhY/edit
St. Scholastica argued that the ordinance was unconstitutional
since it violates their right to privacy since it requires the
lowering of their fence. The Supreme Court used the rational
basis test (not the other two tests of constitutionality – (1)
Strict scrutiny and (2) Intermediate review)
In the rational basis / relationship test, an ordinance must
pass the following – (A) Lawful subject and (b) Lawful
Means. As far as this test is concerned, the Court examines if
there are (1) legitimate government interest and (2) visible
connection between government interest and means
employed. In this case, the ordinance aims to improve the
aesthetic design. The Supreme Court ruled that the ordinance
is unconstitutional since it encroaches upon the College’s right
to property and privacy. Any ordinance that wants to promote
beauty cannot infringe constitutional freedoms of the
inhabitants.
C. Rimando v. Naguilian Emission Testing Center
64
https://drive.google.com/file/d/
1hkiNTGtIUmygHXmumchv-PbeKpIOm3Ll/view?
usp=sharing
The issue was also considered moot and academic since the
year (2008-2009) intended for the renewal of the business
permit had already lapsed since the case was decided just on
2012, and that on the time of promulgation, Rimando’s term
has expired.
The writ of mandamus, as ruled, cannot compel a mayor to
issue a business permit since it is discretionary in nature. Writ
of mandamus can only lie if what is compelled is an exercise
of a ministerial function.
EMINENT DOMAIN
Eminent Domain is one of the fundamental powers of the
State. By way of review, it is primarily exercised by the
legislature. Aside from the legislature, it can also be exercised
by the local government units (delegated power), quasi-public
corporations, public utilities, Office of the President (if validly
delegated by a law).
With respect to the LGUs, we have Sec. 19 of the Local
Government Code, the requisites of a valid exercise of an
eminent domain by LGUs are:
That the power of eminent domain may not be exercised
unless a valid and definite offer has been previously
made to the owner, and such offer was not accepted:
Provided, further, That the local government unit may
 immediately take possession of the property upon the
filing of the expropriation proceedings and upon making
a deposit with the proper court of at least fifteen percent
(15%) of the fair market value of the property based on
the current tax declaration of the property to be
expropriated: Provided, finally, That, the amount to be
paid for the expropriated property shall be determined by
the proper court, based on the fair market value at the
time of the taking of the property.
Based on jurisprudence, the following must be also met to
validly exercise eminent domain
a. For public purpose
b. Payment of just compensation (Art. III, Sec. 9)
c. Ordinance was enacted by the legislature to authorize
the local chief executive to exercise eminent domain
and to initiate the appropriate expropriation
proceeding on behalf of the LGU
A justiciable question is a question which may take
cognizance of.
A political question pertains to those which are to be decided
by the people in their sovereign capacity or in regard to which
full discretionary powers are vested in either the executive or
legislative branches of the government. So they are questions
which relate to the wisdom of a particular governmental act.
Therefore, the Court will not take cognizance of such.
Public purpose does not depend on the number of people to
be benefitted by the expropriation. The case of Barangay
Sindalan states that the validity of eminent domain does not
65
depend on the number of users but whether the purpose will
bring public convenience, public welfare, and other public
purpose.
With respect to just compensation, it is the full and fair
equivalent of the property to be taken. Payment of just
compensation is to be reckoned (computed) at the exact time
of the appropriation – during the actual time of the filing of
complaint since it is presumed to be the actual time of taking.
But if the taking took place before the filing of the expropriation
complaint, payment of just compensation should be reckoned
with from the time of taking.
·
Interest is collectible in case there is delay in the payment of
just compensation. Nonpayment of just compensation
partakes of a form of forbearance thus the property owners are
entitled to recover interest. The legal rate of interest is 12% if
the expropriation took place until June 30 2013 by virtue
of BSP Central Monetary Board Circular # 799 series of
2019. From July 1, 2013 onwards, it is 6% per annum.
Expropriation – procedure; Eminent Domain - power
Question: As far as the national government is concerned,
is the authority of the national government to expropriate,
as well as the purpose, wisdom, and identification of the
property political question? Or justiciable question? How
about if the expropriation proceeding is initiated by the
local government units?
- Answer: It is a political question. The Court
would not interfere if it is the national
legislature that initiated the expropriation
 proceeding (City of Manila v. Chinese
Community,
https://drive.google.com/file/d/1i1E6mpEKJ0
aVoy-j_nm5kp9qSRGwNGLz/view?
usp=sharing)
If the expropriation proceeding is initiated by the
local government units, it is a justiciable
question since such is only a delegated power
so the Courts can inquire if the exercise of
power is consistent with the delegated authority
(remember that one of the requirements of the
exercise of power of eminent domain is genuine
necessity. Such is inquired of by the courts).
Two stages in an expropriation proceeding:
1. Determination of the authority of the local
government units. Such can be appealed.
2. Determination of the just compensation. Value of the
property, value of the adjacent land, land classification,
improvements, and other significant factors. Fair
Market Value – the value which the sellers are willing to
sell and the buyers willing to buy in an arm’s length
transaction.
City of Manila v. Prieto
https://drive.google.com/file/d/
1L0tUXUssBk3JS7fCYXRXTh1vdAnGZSj-/view?
usp=sharing
66
The purpose of expropriation is to be used for Manila’s Land-
for-the-Landless program. Here, the Court held that the
exercise of the eminent domain by LGUs is not really eminent
but inferior in a sense that the exercise of such power by the
LGUs being a delegated power, must conform to the grant of
such authority by the principal so the exercise is not absolute.
The law which serves as the basis of the Court in which the
exercise of power is juxtaposed is the Urban Development
and Housing Act. The problem here is that the LGU was not
able to exhaust the list of priorities in expropriating the
property since there is a mandated list of the priorities of the
lands to be used for the expropriation project. And private
properties happened to be at the last layer but the City of
Manila failed to show that the other priorities were exhausted
first. The Court also took into consideration the status of the
prospective beneficiaries of the program since they failed to
show that such beneficiaries were really underprivileged and
homeless (RA 7279).
As per Supreme Court, the public purpose was not achieved
since the expropriation was on a piecemeal basis (piecemeal
expropriation of properties) which only benefits a small number
of people. So while the program is cognizant of the expanded
concept of public use, yet in this case, the supposed purpose
of the condemnation of the property is irrational as it is done
on a piecemeal basis.
Doctrine: The power of eminent domain, if exercised by the
local government unit, is subject to scrutiny by the Court
whether it complies with the Constitution, with the law and
whether there is a genuine necessity for the said purpose – public interest. This is the modern concept of eminent
Strict scrutiny of review
domain. As long as the public can derive a benefit from
the use of the property and not just the exclusive use of a
certain group, for instance the jurisprudence wherein a
meter road was constructed in a subdivision. The
Supreme Court held that those in the subdivision are the
only ones who will benefit.
NINTH MEETING: NOV. 12, 2021
Statutory Basis of LGUs to Exercise the Power of
Another salient feature of the provision: the general
Eminent Domain
limitation and requisites of the valid exercise of eminent
Section 19 of the Local Government Code - Who
domain. What are these requisites? a) there must be
initiates it? The Local Chief Executive, pursuant to an
private property to be expropriated b) the purpose is
Ordinance. This is very material to our discussion. Last
public use c) subject to the payment of just compensation
time we were able to touch on the initial cases in eminent
d) taking
domain so we will progress and touch on the other
crucial. Just like the exercise of eminent domain by the
When we say “taking,” do you still remember the
state itself, we must take note of the purpose. Under the
jurisprudence that compensable taking is not limited to
Constitution, it must be for public use. But of course, I
the physical appropriation or even transfer of title? As
hope you still recall the jurisprudence that provides that
long as there is impairment on the value of the property,
public use is no longer synonymous to the number or
limitation as to the use of the property, then there is
numerical count of those who are using the property to
compensable taking. Do you still remember case law in
be expropriated. It has something to do with public
line with this? For example, Heirs of Makabingkit
convenience, public welfare, anything that advances

67
Sangkay v. NTC, wherein what was involved is yong lupa
ni Sangkay na nadaan ng project ng excavation. The
heirs want to sell the property and they discovered a
portion of it was part of that project. So they sued for just
compensation. Hindi naman talaga naoccupy walang tao
ng NTC don, walang transfer of title but the Supreme
Court held that there was compensable taking. Why?
Because the the use and the value of that property was
changed. That still applies here. You do not set aside the
things you learned in Consti 1 (lol).
Take note: unlike Article 3, Section 9 of the 1987
Constitution, as far as the LGC is concerned, there must
be a valid and definite offer made to the owner and such
offer was not accepted. If there is an offer and it is
accepted, there would be a contract and a sale between
the LGU and the private person. If there is no acceptance
of the offer, there is refusal. Remember, the State or its
political subdivisions exercise the power of eminent
domain as an involuntary means to appropriate the
property. Sapilitan yan. Kaya nagfifile ng kaso ang
estado or LGU.
68
Question: Upon filing of complaint for expropriation, may
the counsel for the LGU will already want to enter the
premises, what is the remedy? The remedy is upon filing
of the complaint, there must be a deposit amounting to at
least 15% of the fair market value of the property based
on the current tax declaration. Usually, ‘yong amount dito
ay mas maliit (yung nasa tax declaration) kesa don sa
talagang fair market value even if you consult the
valuation of the BIR, for example. Upon giving of this
15%, then the LGU may enter and take immediate
possession of the property. The amount, of course, of
just compensation will be later on determined by the
court.
Two Stages of Expropriation Proceeding: First,
determination as to the use of the property. Is it for public
use? The court will determine that. It will also determine
the genuine necessity, as a requisite for the
expropriation. You won’t see these in expropriation as far
as the national government is concerned. Any
determination at that stage also becomes final, if not
appealed. Second stage, determination of just
compensation. Under the ROC, Commissioners will be
appointed to determine the amount of just compensation
but ultimately it will be the court that will decide. Again,
any determination during this stage, when not appealed,
becomes final.
Why do I say that as far as the necessity is concerned
when the national government is involved, it is no longer
an issue? Because if it is the legislature, or the national
government, that initiates the expropriation proceeding,
then the issue concerning the public purpose and
necessity is already a political question. As it was held in
the Chinese Community Case in 1919, the Supreme
Court said that it cannot take cognizance of these issues.
It has no jurisdiction to determine the purpose.
Remember: eminent domain as an exercise of power, it
is an exercise of a political power. So, having said that,
the juridical cannot interfere with the exercise of a co-
equal’s exercise of political power. Discretionary yan on
the part of the legislature. In fact, there are existing laws
concerning the right of way projects and national
69
infrastructure projects. You won’t see any provisions
there regarding the determination of public purpose of
genuine necessity. What you will see is how much the
deposit is and the determination of just compensation.
Nothing on determination of public purpose because it is
a political question.
How about municipal corporations? As far as the right of
expropriation as exercised by municipal corporations, it is
NOT inherent in an LGU. So the issue pertaining to the
authority of the LGU to exercise eminent domain as well
as the public purpose, even the nature of the property,
these are ALL justiciable issues cognizable by the court.
BUT if it is the national government, again those are
political questions and NOT justiciable. This is the main
difference. The local government unit is only a political
subdivision of the state and by itself, it is not sovereign.
They are mere agents of the state.
So, what are the requisites for a valid exercise of the
power of eminent domain for local government
units? a) there must be an ordinance enacted by the
local legislative council authorizing the local chief
executive in behalf of the local government unit to
exercise the power of eminent domain or pursue
expropriation proceedings over a particular private
property b) the power of eminent domain is exercise for
the purpose of public use or welfare, or the benefit of the
poor and the landless c) there must be payment of just
compensation as required under Section 9 of Article 3 of
the Constitution and other laws d) a valid and definite
offer, which was not accepted because it would not make
sense if the offer was accepted and the LGU filed a case.
So, you still remember RA 7279, the Supreme Court said
that the requirement of the law was not followed.
Remember that pertinent laws are part of the limitation to
an LGU’s exercise to the power of eminent domain. In
the case, merong kukunin for the urban housing and
development projects. Yung private properties are at the
bottom of the list and not to mention, there is also a
provision that private properties may be used for these
projects if the other properties listed above are exhausted
first. The Supreme Court held that this provision in 7279
70
was not held. We deal with BOTH the Constitution and
pertinent laws. Again, the exercise of eminent domain is
subject to the laws passed by Congress because it is a
delegated power.
Now in the case Sugitan (?), in relation to the case of
Paranaque, the property was expropriated by virtue of a
resolution NOT an ordinance. What is the difference? In
Municipality of Paranaque v. VM Realty Corp., the
Supreme Court distinguished between a resolution and
an ordinance. Just like Sangguinians, both the House
and the Senate can issue resolutions and they have the
same purpose: a mere declaration of the sentiments of
the law-making body. Remember noong si CJ Sereno ay
na-quo warranto, sina Senator Drilon and Pangilinan
proposed that the Senate should issue a resolution
stating that the action is contrary to the Constitution but
Senator Lacson pointed out that this is not in accordance
with the Constitution, to which Senator Drilon said that is
just an expression to the sense of the Senate.
For example, si Miss Baranda ay sumali sa isang beauty
pageant at nanalo sa kanilang bayan. So ‘yong
Sangguniang Bayan ng San Pablo magiissue ng
resolution greeting Miss Baranda. That is an expression
of a sentiment. Is it a law? No. Maliban na lang kung
magkaordinansa na magkaroon ng “Baranda Day.”
These ordinances are of course subject to the provisions
of statutory laws passed by Congress to national policies.
An ordinance is general and permanent. A resolution is
merely temporary in nature. And of course, under the
power of the Sanggunians to promulgate ordinances,
there are three readings but a resolution, as long as there
is a majority vote, then there is already a resolution.
Three reading rule does not apply to a resolution. In Sps.
Antonio, the Supreme Court held that the resolution is not
accessible through certiorari. In remedial law, a petition
for certiorari addressed to the judicial or quasi judicial
acts either lower courts or administrative bodies. A
legislative and policy-making body expressing its
sentiments is not assabile under a petition for certiorari.
In this case, there was a resolution expressing the
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sentiment that an expropriation proceeding should be
had. That was it. A mere sentiment and it cannot be
assailed via certiorari. There is also such a thing as
petition for prohibition which again, is not applicable here
because ultimately itong resolution is NOT an ordinance
but a mere expression of sentiment and not yet an
exercise of the power of eminent domain. Eminent
domain can only be exercised through an ordinance and
not a resolution. There can be no unjust exercise of
power subject to a petition for prohibition because what
are you assilaing if the sanggunian is just stating its
sentiments? It is not yet official.
Remember that an expropriation proceeding is initiated
by way of complaint. The property owner will have the
opportunity to answer. Now, there, the property owner
can specify his or her defenses: no genuine necessity, no
ordinance, etc.
In Cordova, the Supreme Court clarified that no hearing
is required for the issuance of a writ of possession. It will
only determine the sufficiency in form and substance of
the complaint and the required provisional deposit. So
once these requirements are satisfied, then the writ may
be issued already. Once the 15% is deposited, good to
go. Again, requirements for the issuance of writ of
possession are a) sufficiency in form and substance of
the complaint b) the required propbision deposit (the
court will still determine the amount of just compensation)
Suppose there is no proper authorization, wala raw
resolution and fesne, where do you reckon taking? Here
the SC said that even if there is no ordinance or
resolution (again, this is not proper) taking is not
reckoned from the enactment of an ordinance or
resolution. It takes place if the owner is actually deprived
or dispossessed of his property or if there is material
impairment of the property or if he is deprived of the
ordinary use of his property. So hindi sa enactment ng
resolution kundi sa actual taking. That is when taking is
reckoned. Why is this important? For the payment of just
compensation. Ang basis kasi fair market value AT THE
TIME OF THE TAKING. Interest also needs to be
computed. How much is the interest rate now? Until June
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30, 2013, the interest is 12%. Since July 1, 2013, the
interest is now 6%. So ngayon, at present, it is now 6%
for loans and forbearance of money. Just compensation
constitutes as forbearance of money. The reckoning point
is either the filing of te complaint because that is
presumed to be the time property is taken or if taking
happens earlier, then from the time of taking, whichever
is earlier.
Taxing Power
Now, you can say that the general welfare clause and
eminent domain are delegated by Congress to LGUs, but
here, the power of local government units to exercise the
power of taxation is an express constitutional grant. We
talk of Article 10, Section 5 of the 1987 Constitution,
granting LGU’s the power to exercise the power of
taxation and generate their own sources of revenue, to
levy taxes. This power is subject to such guidelines and
limitations as Congress may provide consistent with the
policy of local autonomy. This will be relevant later.
Here, we speak of limitation imposed by Congress and
the basic policy of local autonomy. In Philippine Heart
Center, they were assessed for real property tax by the
LGU of QC. The Supreme Court said that meron naman
talagang power to levy real property tax but the problem
was whether or not the property of the Philippine Heart
Center was subject to real property tax. It was assessed.
Take note of Section 133 (also note 130), here, it is a
limitation. Not subject to the taxing powers of the LGUs.
MIAA Case elucidated on the rationale behind the
provision. The power to tax was merely delegated to
LGUs prior to the 1987 Constitution. While the
Constitution now provides taxation as one of the powers
of the local government units, it is still subject to
guidelines and limitations that Congress may provide. At
the end of the day, being a mere agent of the state, the
LGU when it exercises this power, it is still subject to the
limitations Congress may provide. So itong 1330 of the
LGC, tandaan niyo yan. An exemption from the taxing
power of the LGU.
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When local government units invoke its power to tax a
national government instrumentality, such assertion is
construed strictly against the local government because
of the general principle in taxation that tax is never
presumed and there must be clear language in the law
imposing the tax. Any doubt whether or a entity is taxable
is resolved against taxation. It is applied with greater
force when the local government seeks to tax national
government instrumentalities.
If it is a private person, the tax exemption is strictly
construed against the tax payer. Pero baliktad pag ang
itatax mo ay national government. It is liberally construed
in favor of the national government instrumentality.
Section 133 of the LGC states that unless otherwise
provided in the Code, LGUs cannot tax national
government instrumentalities.
Section 130. Fundamental Principles. - The following
fundamental principles shall govern the exercise of the
taxing and other revenue-raising powers of local
government units:

(a) Taxation shall be uniform in each local government
unit;
(b) Taxes, fees, charges and other impositions shall:
(1) be equitable and based as far as practicable on the
taxpayer's ability to pay;
(2) be levied and collected only for public purposes;
(3) not be unjust, excessive, oppressive, or confiscatory;
(4) not be contrary to law, public policy, national
economic policy, or in the restraint of trade;
(c) The collection of local taxes, fees, charges and other
impositions shall in no case be let to any private person;
(d) The revenue collected pursuant to the provisions of
this Code shall inure solely to the benefit of, and be
subject to the disposition by, the local government unit
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levying the tax, fee, charge or other imposition unless
otherwise specifically provided herein; and,
(e) Each local government unit shall, as far as
practicable, evolve a progressive system of taxation.
Section 133. Common Limitations on the Taxing
Powers of Local Government Units. - Unless otherwise
provided herein, the exercise of the taxing powers of
provinces, cities, municipalities, and barangays shall not
extend to the levy of the following:
(a) Income tax, except when levied on banks and other
financial institutions;
(b) Documentary stamp tax;
(c) Taxes on estates, inheritance, gifts, legacies and
other acquisitions mortis causa, except as otherwise
provided herein;
(d) Customs duties, registration fees of vessel and
wharfage on wharves, tonnage dues, and all other kinds
of customs fees, charges and dues except wharfage on
wharves constructed and maintained by the local
government unit concerned;
(e) Taxes, fees, and charges and other impositions upon
goods carried into or out of, or passing through, the
territorial jurisdictions of local government units in the
guise of charges for wharfage, tolls for bridges or
otherwise, or other taxes, fees, or charges in any form
whatsoever upon such goods or merchandise;
(f) Taxes, fees or charges on agricultural and aquatic
products when sold by marginal farmers or fishermen;
(g) Taxes on business enterprises certified to by the
Board of Investments as pioneer or non-pioneer for a
period of six (6) and four (4) years, respectively from the
date of registration;
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(h) Excise taxes on articles enumerated under the
national Internal Revenue Code, as amended, and taxes,
fees or charges on petroleum products;
(i) Percentage or value-added tax (VAT) on sales, barters
or exchanges or similar transactions on goods or
services except as otherwise provided herein;
(j) Taxes on the gross receipts of transportation
contractors and persons engaged in the transportation of
passengers or freight by hire and common carriers by air,
land or water, except as provided in this Code;
(k) Taxes on premiums paid by way or reinsurance or
retrocession;
(l) Taxes, fees or charges for the registration of motor
vehicles and for the issuance of all kinds of licenses or
permits for the driving thereof, except tricycles;
(m) Taxes, fees, or other charges on Philippine products
actually exported, except as otherwise provided herein;

(n) Taxes, fees, or charges, on Countryside and
Barangay Business Enterprises and cooperatives duly
registered under R.A. No. 6810 and Republic Act
Numbered Sixty-nine hundred thirty-eight (R.A. No. 6938)
otherwise known as the "Cooperative Code of the
Philippines" respectively; and
(o) Taxes, fees or charges of any kind on the National
Government, its agencies and instrumentalities, and local
government units.
Philippine Heart Center v. Local Government of
Quezon City
There is also an explicit provision exempting the national
government from real property tax. Now the question is
whether PHC is a government instrumentality. An
instrumentality is an agency of the national government
not integrated within the department framework vested
with special functions jurisdiction by law endowed in
some if not all corporate powers, administering special
funds, and enjoying operational autonomy usually
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through a charter. So the SC held that although not
integrated in the department framework, THC is under
the supervision of the DOH and carries out government
policies in pursuit of its objectives. It functions less
commercially and more in line with public use and
welfare. It is also vested with corporate powers as in
accordance with the Administrative Code. It bears
essential characteristics of a government instrumentality
with corporate powers. This is also explicit in our new law
pertaining to the classification of government
instrumentalities. Thus, it is exempt from real property
taxes. In fact, the properties of the PHC are considered
the property of public dominion vis a vis patrimonial
property and beyond the commerce of man.
It was also raised that there are properties of PHC that
are subject to real property tax because according to the
LGC, the beneficial use of these properties is adjoined by
private entities. Yet the Supreme Court held that tama,
when the beneficial use of a real property owned by the
public is joined with a taxable person, then it is subject to
real property tax. This is important so take note of it.
Kung aabot sa kasuhan, there must be proof that the
beneficial use of the properties is enjoined or is given to
the taxable persons mentioned. The LGU must prove that
it gave such beneficial use to the taxable entity. This is a
limitation on the power of the LGU to impose real
property taxes. Memorize Article 133, Atty. is inclined to
give parameters and problems regarding this in the
exam.
So 133 (o) in relation to the power to impose real
property tax. Remember: it has a practical use. Pagka
property ng gobyerno, exempt from real property tax
except when enjoyment or beneficial use is given to a
taxable entity, then it becomes subject to real property
tax.
In the PHC case, there was no proof that there was
notice served to the taxable persons.
Batangas City v. Pilipinas Shell Petroleum
Corporation
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This case has something to do with tax on petroleum. But
before we go to this, again, each case teaches us
important principles. The Supreme Court clarified that the
power to tax of the LGUs is subject to limitations set forth
by the Constitution (consistent with local autonomy and
subject to the guidelines of Congress; remember these
two). In this case, what was being assessed was a tax on
petroleum. Take note 133(h) as far as excise taxes are
enumerated, they are separated by a comma. This
means that they are not limited to excise taxes, since
there is a comma. “, and taxes, fees, or petroleum
products” so there are two kinds of taxes that cannot be
imposed: excise taxes and taxes, fees, or charges on
petroleum, and limitations set forth by the LGC.
So as far as imposition of business taxes are concerned,
empowered and LGUs diyan. But take note that the
provision under Article 143 cannot prevail over 133 (the
enumeration of the limitations on the power of taxation).
LGUs are empowered to impose business taxes but if it
touches these, then the explicit exceptions, then the LGU
is not allowed to tax. Bakit? Kasi national government
lang ang pwede. So this prevails, Section 133, over 143.
Manufacturers of any product of commerce. Hindi ba
product of commerce and petroleum? And yet the
Supreme Court said that 133 prevails over 143. This is
because it is a specific provision, withholding from the
LGUs the power to impose tax on petroleum products.
On the other hand, 143 defines the general power of the
LGU to tax businesses. Statutory construction: specific
provisions prevail over general provisions regardless of
their position in the law.
Demaala v. Commission on Audit
This case pertains to an assessment for a special
educational fund. The Commission of Audit here said you
are not collecting enough. It is under collection. This case
teaches us that the power to tax is an attribute of
sovereignty so provinces, cities, municipalities, and
barangays are mere territorial and political subdivisions
of the state. So LGUs do not have the inherent power to
tax as prescribed by law. So the exercise of the power to
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tax is scrutinized if it is in compliance with the provisions
of law. It is subject to the provision of local autonomy.
Kaya may tinatawag tayo na fiscal autonomy. Now, the
subject of this case is the additional levy on real property
for a special educational fund. So there is a specific
provision in the LGC pertaining to this. So 1% of the
assessed value of a property goes to this special
education fund or SEF. In fact, this is not just a creation
of the LGC. Even before the LGC there was an older law
RA 5447 regarding the imposition of this additional levy.
The question here is whether or not the discretion is
limited to the imposition or does it also include the
amount or the rate. The respondents (COA) position was
that the option granted to the LGU is limited to the matter
of whether it shall collect and the fixed rate under Section
235 is not subject to the discretion of the LGU. On the
other hand, the petitioner contended that their discretion
is not only limited as to whether they will collect but also
the rate at which they will collect the additional levy. Take
note that the provision is permissive. Going back to the
provision itself, according to the Supreme Court the
language of the provision is permissive in nature. There
is no limiting qualifier to the articulated rate of 1%. Hindi
ibig sabihin na nagiimpose ng additional levy na bound
na ang LGU sa 1%. So how do we resolve this? Is there
really an option on the part of the LGU to impose a
different rate? According to the Supreme Court, this must
be reconciled with the policy on local fiscal autonomy.
Take note na hindi lang batas na pinasa ng Congress
ang limitation. It must also conform with the basic policy
of local autonomy. The city MAY levy. Hence,
emphasizes the permissive nature of the provision. So
the only limitation is that the rates of taxes that the city
may levy cannot exceed more than 50%, except the rate
of professional and amusement taxes. The other
provision would be Section 186.
Cagayan Electric Power and Light Co., Inc. v. City of
Cagayan de Oro
The question here is the tax imposed on the lease of the
posts is allowable. ‘Yong income tuwing nililease ‘yong
mga poste. According to CEPALCO, this is an imposition
of income tax which is prohibited under 133(a) of the
LGC. The Supreme Court held that it is a tax on
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business. The act of leasing posts, towers, poles are a
business activity according to the Supreme Court. So,
remember again, LGUs can impose business taxes. Sabi
ng CEPALCO, eh meron kaming charter at sabi don sa
charter instead of the usual taxes we will just be paying a
franchise tax of 3% and yet the tax exception was
removed by virtue of the LGC. So, under the LGC, pwede
na magimpose ng franchise tax and there is a specific
provision on the withdrawal of tax exemption privileges.
What can we learn from this case? The power to tax as
far as LGUs are concerned, are circumscribed and
limited by law. Mostly by the provisions of the LGC. Ano
‘yong guiding principle natin? What are the parameters?
We go to two provisions: 130 and 133. Madali tandaan.
Uniformity in taxation. Nadiscuss na ‘to sa Constitutional
Law 2.
Characteristics of Taxation
What do we mean by “uniformity”? When we say
uniformity, it means that persons or products which are
similarly situated must be taxed at the same rate. So we
also have to consult the equal protection clause here. For
instance, tax exemptions and privileges granted to those
inside the special economic zone in Subic vis-a-vis the
lack thereof as far as those outside the said zone. The
Supreme Court said that there is a valid distinction here
because there is a reason why they created a special
economic zone in Clark to facilitate the conversion of the
military bases into ecoconimczones and to encourage
others to invest in businesses there.
What about the imposition on taxes, fees, and
charges? It says here that it must be equitable. The
burden of taxation must fall on those persons based on
their ability to pay.
What about for “Only for public purposes”? There is a
case on Consti 2 regarding a certain imposition by virtue
of an LOI issued by President Marcos for a certain
percentage of a sale of fertilizer to go to a crony
company. The Supreme Court held that it is not for a
public purpose, assuming that it is an exercise of the
power to tax. Again, the principle applies. For example
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the LGU imposes a tax only for it to go to a private
company, that is not for a public purpose.
It must not be unjust, oppressive, or confiscatory.
Why? Remember the principles of Holmes and Marshall:
the power to tax does not include the power to destroy as
long as the court sits vis-a-vis the power to tax includes
the power to destroy. Both are correct. Do you still
remember why they are both correct? If it is only for a
revenue purpose, it cannot destroy or be confiscatory. So
for instance the LGU imposes an 80% tax on its gross
receipts. Or a 50% franchise tax or 80% real property tax
on the real property value. Kulang na lang damputin na
lang nila yong property because it is already confiscatory
and for a revenue purpose. It cannot destroy. When can
the power to tax destroy? If it is exercised as an adjunct
or implement of police power. So it may impose such a
rate as to discourage noxious activities during for
instance videoke bars or cockpits. They are allowed to
exist but they are subject to regulation and taxes, fees, or
charges.
Must not be contrary to law, public policy, national
economic policy, and restraint of trade. Of course you
have the LGC, NLRC, now the TRAIN LAW. Or interest
rate of trade.
The collection cannot be delegated to a private
person. Hindi pwede magoutsource ng ibang tao tas
magcocollect sila via GCash. Although as far as our
national taxes are concerned, there are accredited
facilities like GCash and PayMaya but these are
regulated. As far as LGUs are concerned, the collection
CANNOT be delegated, entrusted, or assigned to any
private person.
Pwede bang yong tax ng LGU makinabang yong
kapitbahay na LGU? Of course not, based on this
provision.
Remember VAT Law? Tolentino v. Sec. of Finance? As
regards to the progressive system of taxation. The
interpretation of the Supreme Court here is that it is
merely directory. It does not really prohibit the imposition
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of a regressive tax. What is a progressive tax? As the tax
base increases, the tax rate also increases. Itong VAT
Law, iisa lang yong rate niya kahit na novel. 12%.
According to the Supreme Court itong progressive
system of taxation, is merely directory and does not
prohibit the imposition of regressive taxes. It only means
that as far as practicable, progressive taxes should be
preferred.
Excise taxes refer to VAT on sales or other similar
transactions as provided for by law.
If any items falls in one of these categories, the LGU
cannot impose a tax fee or charge. So remember 130
and 133. The parameters of local taxation. Memorize and
do not forget.
Pelizloy Realty Corporation v. The Province of
Benguet
This case involves a resort. What is the interpretation of
the percentage taxes on amusement? Ang business ni
Pelizloy ay resort. Merong function halls at spa. Specific
interpretations na ito ng parameters. See 133 again.
Kagaya niyo rin tao lang ak tumitingin rin ng buhay ng iba
sa Facebook. Makikita don madaming tao sa Boracay.
Inline with this, in Section 133(i), percentage tax. Article
140 allows in the imposition of amusement tax. The
amusement tax is a percentage tax but it is clearly
allowed under the LGC. it can be imposed on proprietors
or lessees or operators of theaters, etc. See
enumeration. Ie. For cinemas 30% ang tax kaya pag
hindi kumikita yong movie inaalis nila.
Ngayon, ito bang resort ay subject sa amusement tax?
The Supreme Court said no. Ejusdem generis. “Other
places of similar nature” is a general word or phrase.
How do we interpret sino magffall sa others? Examine
the words enumerated before it (theater, circus,
amusement places, where one seeks admission to
entertain oneself by seeing or viewing the show or
performances). Pag ba nasa swimming pool ka o nasa
dagat, yon ba ang pakay niyo? Why do you go to
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resorts? I hope you don’t go to resorts to view. Why am I
saying this? Because again, resorts ARE NOT
amusement places for purposes of amusement tax.
Unlike in boxing fights, MMA, you are there to view so
those are subject to amusement tax. The Supreme Court
even went so far as to define “show” “performance” to
emphasize that you do not go to a resort to be visually
engaged. That is not your main purpose.
City of Manila v. Judge Colet
Section 133(j) has something to do with tax on garage,
car rentals, airlines, and similar business imposed by the
City of Manila. It was struck down and elevated to the
Supreme Court. Here, the Supreme Court said that 133(j)
proscribes the LGU from imposing any tax on gross
receipts. So in this case, the City of Manila imposed a 2%
tax. The Supreme Court said na hindi ‘yun pwede. City of
Manila argued that it has the power to impose a business
tax, similar to the case earlier. But 133 prevails over 143.
In case of doubt, any tax or revenue measure must be
construed against the LGU and liberally in favor of the
taxpayer.But any tax exemption must be construed
against the taxpayer and in favor of the government.
Palma Development Corporation v. Municipality of
Malangas, Zamboanga del Sur
Here, it has something to do with the use of roads and
133. It is irrelevant if the fees imposed are actually borne
from the survey lands because any form of imposition on
goods passing through the territorial jurisdiction of the
municipality is prohibited by Section 133. ‘Yung mga
nakikita niyo na hinahakot na mga goods na sakaya ng
truck tapos hihintuin, should they pay taxes? 133(e). Kasi
dito nakalagay if the purpose is for surveillance. But it
doesn't matter according to the SC as long as it has
something to do with taxes, fee, or charge, imposed on
the passage of goods through the territorial jurisdiction of
an LGU. Eh paano sasabihin ng LGU, there would be
unjust enrichment. So, by allowing them to pass our
jurisdiction without them paying us, they are unjustly
benefitted. Eh nasisira nila yong tulay o kalsada. The
Supreme Court did NOT agree. No unjust enrichment
here because the LGU is mandated to provide
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infrastructure. How can there be unjust enrichment? A
person who passes through and uses the facility has a
legal right to do so and that should not result in
enrichment in favor of the individual.
University of the Philippines v. City Treasurer of
Quezon City
UP Technohub.The question here is whether or not UP is
a government instrumentality. Pursuant to UP v. Dizon,
the funds of UP are public funds and cannot be the
subject of garnishment due to the purpose for which UP
was created. UP is a government instrumentality. Now,
the City Treasurer in this case claims na ginagamit yong
place ng Ayala. We learned earlier that when the
property owned by the state or its instrumentality is being
beneficially used by a taxable person, then it is the
subject of real property tax. BUT TAKE NOTE: There is
RA 9500. Ano ibig sabihin nito? When UP was assessed
for real estate taxes, this was already in effect and in fact
yong mga gumagamit na Ayala Lands etc. Before the
enactment of RA 9500, there is a need to determine who
is beneficially using the property but AFTER the passage,
it appears that UP is an exception to this rule because
the SC held that after the passage of the law there is a
need to determine whether UP’s property is used for
education purposes or in support thereof before the
property is subject to property tax. So it doesn't matter
now who uses it as long as the development of the land
is for educational purposes or at the very least, in support
of educational purposes because the law itself told UP to
lease the land for the purpose of developing a prestigious
and dynamic science and technology park. So it was not
the nature of the person using the land but rather the
purpose for which a property was leased and the SC said
that because the purpose of the lease is to develop a
dynamic science and technology park then it serves an
educational purpose. Take note that the LGC provides
that an imposition cannot be made against the
government except when the land is being used by a
taxable person BUT if there is a law that modifies this,
then that is a different matter. Remember RA 9500 was
passed AFTER the LGC. So it constitutes a modification.
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Eh paano ang property ng UST? As far as UST’s
premises are concerned, lands directly used for
educational, charitable, and religious purposes are
exempt from tax.
Light Rain Transit Authority v. Quezon City
There was a claim that the property being used by LRTA
are patrimonial in nature. Ang pinagusapandito
instrumentality ba ang LRTA? We have to determine
whether it is a GOCC or instrumentality. The SC said it is
not a GOCC but an instrumentality. We learned that a
GOCC has capital stock divided into shares, shares
authorized to distribute to the holders. They have capital
but not capital stock or shares. It is not divided into
shares of stock. Wala din silang voting shares. So LRTA
is NOT a stock corporation and it cannot be a GOCC or
non-stock corporation because it has no members or
officers and is not organized for these purposes
(religious, charitable, etc). If it is not a GOCC, what is it?
It is a government instrumentality vested with corporate
powers because under an EO it can exercise corporate
powers and performs governmental functions and enjoys
operational autonomy. Remember the definition of a
government instrumentality earlier. So having said that,
the properties being used by LRTA are properties of
public dominion and beyond the commerce of man and
exempt from real property taxes.
Tiangco already discussed as to petroleum so was
skipped.
Mactan-Cebu International Airport Authority v. City of
Lapu-Lapu
So again the issue here was whether or not it was an
instrumentality of the government. Again, it was decided
that it was an instrumentality and not a GOCC. Hence,
the property is exempt from real estate tax.
Now, take note of the fundamental principles under
Section 305, with respect to the principles governing local
government units. What is important here is like funds
from the national treasury, funds in the local treasury
cannot be spent without a law or ordinance. Local
governments and money is solely spent for public
85
purposes. Hopefully, this is complied with. Local
government revenue is only generated from sources
expressly authorized by law or ordinance. Collection shall
be acknowledged properly kaya nagiissue ng receipts
and in fact, they are subject to audit. Please take note of
these.
Section 305. Fundamental Principles. - The financial
affairs, transactions, and operations of local government
units shall be governed by the following fundamental
principles:
(a) No money shall be paid out of the local treasury
except in pursuance of an appropriations ordinance or
law;
(b) Local government funds and monies shall be spent
solely for public purposes;
(c) Local revenue is generated only from sources
expressly authorized by law or ordinance, and collection
thereof shall at all times be acknowledged properly;

(d) 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;
(e) 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;
(f) Every officer of the local government unit whose duties
permit or require the possession or custody of local funds
shall be properly bonded, and such officer shall be
accountable and responsible for said funds and for the
safekeeping thereof in conformity with the provisions of
law;
(g) Local governments shall formulate sound financial
plans, and local budgets shall be based on functions,
activities, and projects, in terms of expected results;
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(h) Local budget plans and goals shall, as far as
practicable, be harmonized with national development
plans, goals, and strategies in order to optimize the
utilization of resources and to avoid duplication in the use
of fiscal and physical resources;
(i) Local budgets shall operationalize approved local
development plans;
(j) Local government units shall ensure that their
respective budgets incorporate the requirements of their
component units and provide for equitable allocation of
resources among these component units;
(k) National planning shall be based on local planning to
ensure that the needs and aspirations of the people as
articulated by the local government units in their
respective local development plans are considered in the
formulation of budgets of national line agencies or
offices;
(l) Fiscal responsibility shall be shared by all those
exercising authority over the financial affairs,
transactions, and operations of the local government
units; and
(m) The local government unit shall endeavor to have a
balanced budget in each fiscal year of operation.
TENTH MEETING: NOV. 19, 2021
CLOSURE AND OPENING OF ROADS
Sec. 21 of LGC = Closure or opening is permanent or
temporary, there must be an ordinance; it cannot be a
resolution.
Note the distinctions between an ordinance and a
resolution. [Alin dun ang batas? It’s the ordinance.
Resolution is a mere expression or sentiment of
legislative body.] [Ordinance is permanent. Resolution is
temporary.]
When closure is permanent, the ordinance must be
approved by at least 2/3 of all the members of the
sanggunian. When necessary, an adequate substitute for
the public facility that is subject to closure is provided.
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As regards the permanent closure, there must be a
provision for the maintenance of public safety. No such
way, place or any part thereof shall be permanently
closed without making provisions for the maintenance of
public safety. Hindi pwedeng isara and kalsada and yet
maje-jeopardize ang kapakanan ng publiko.
A property may be withdrawn from public use. [What will
be its effects based on our previous topics? Such
properties will be patrimonial properties, therefore, it
becomes a valid object of contract or within the
commerce of man. It may now be transferred to private
persons.] [Sa Bombers sa UST, may times na sarado
yung street dahil sa fiesta. Bakit nila sinasara yung
daan? Sabi ng LGU, pwede naman daw yung temporary
closure during emergencies, fiesta, public cultural or
industrial fares, or undertaking of public works. The
duration for temporary closure shall be specified by the
local chief executive concerned. Any written order. But
the proviso is this: If National or Local Road etc. shall be
temporarily closed, kelangan nila ng sponsorship,
recognition, or approval ng LGU. For example, sa
Palarong Pambansa wherein may parada kaya gusto nila
ipasarado temporarily yung kalsada, there must be
official sponsorship, recognition, or approval of LGU
concerned.]
Iba to sa Macasiano case ha. Dito, temporary closure of
local streets for flea markets, etc. provided there’s an
ordinance. Pwede yan. Now, let’s discuss specific cases:
New Sun Valley Homeowners’ Association v.
Sangguniang Barangay
There’s a barangay resolution directing the opening of
streets in a subdivision to vehicular and pedestrian
traffic.
The homeowners’ association filed a case claiming that
the opening of the street would cause grave injustice
and irreparable injury, because they’re expecting kaya
nga kami bumili ng bahay dito sa subdivision dahil
tingin namin hindi kami maiistorbo dito. May privacy. So
by opening these certain streets to vehicular and
pedestrian traffic, there would be prejudice or violation
of their privacy.
Macasiano v. Diokno
Here, the SC said that the petitioners’ recourse in
questioning the resolution should’ve been with the
mayor of the city, as stated in the LGC. Dapat may
exhaustion of administrative remedies. In Administrative
Law, this is a basic doctrine. Simply put, there can be
no resort to the jurisdiction of courts without exhausting
remedies available within the administrative jurisdiction.
Administrative remedy must first be resorted to before
filing a case in court. This is a necessary condition
because if there is a violation of the doctrine of
exhaustion of administrative remedies then your
complaint will be dismissed. If there are available
administrative remedies, a party should not resort to the
filing of the case in court.
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The petitioners were asking for injunctive relief –
meaning to enjoin or stop the opening of these streets.
The burden of proof is on the part of the party seeking
the injunctive relief, which the petitioners here failed to
do because the streets here in the subdivision were
already turned over to the city government. [In fact later
on, we’ll discuss another case wherein there are laws
mandating the mandatory donation of streets/roads in a
subdivision] So, having been donated to the LGU, these
roads are now public, hence, beyond the commerce of
men. Because the petitioners were invoking private right
e.g. privacy, peace of mind, peaceful neighborhood, it’s
also beyond the private private planes or rights of the
petitioners. Again, the roads here are public.
The municipality in the service cooperative entered into
an agreement for the operation of management of flea
market in Paranaque.
Take note, the contract is based on a purported
authority of the LGU to regulate the use of the streets
for flea markets. So the Metropolitan Traffic Command
(predecessor of the MMDA. Unlike its predecessor,
MMDA has no police power that’s why wala na kayong
nakikitang MMDA ordinance) ordered the destruction
and confiscation of stalls along the streets. Because the
stalls are eye sores, its destruction and confiscation
were ordered.
 The municipality filed a case. Since the streets here
were subject to the contract of fleas, the issue is
whether the contract/agreement was valid.
The ruling of the SC was this: Lumang LGC pa noon,
yet the provision entails a similar principle. In the
provision then, it is provided that “subject to the
provisions of existing laws” so it was reconciled with 424
of the NCC which states that streets are properties of
public dominion hence beyond the commerce of men.
Same is true in the case of Dacanay v. Asistio
Dacanay v. Asistio
Again, same MMC was being invoked. By virtue of such
ordinance, the mayor opened a flea market and there
were certain vendors who entered into a contract of
lease.
The OIC mayor then ordered the demolition of the stalls.
Ito yung classic case ng “legal na budol” noh haha dahil
syempre LGU and nagpapa-upa kaya feeling mo ok ka
eh diba. Secured yung kontrata niyo yet makikita mo
magbabayad ka ng upa tapos biglang gigibain.
Recently in City of Manila, nakita niyo pinapaalis yung
mga nagbebenta doon sa ilalim ng underpass. Similar
principle, tho I (Atty. Isma) don’t know if there’s a lease
involved. But probably they were just selling there
themselves, so the LGU dismantled everything.
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Going back, so a case was filed to stop the demolition.
The disputed areas, just like in Makasiano, are public
streets hence beyond the commerce of men. As well as
in Roxas, dito naman, a portion of a property was an
integral part of a public plaza so even the old civil code
contains a similar principle. The portion of the land
occupied is beyond the commerce of men.
William Kwong Management Inc. v. Diamond
Homeowners & Residents Association
Now ito, this is important. Sino dito yung mga nakatira
sa subdivision? Why did I ask? Kasi diba may mga nag-
iimplement ng “No sticker, no ID, no entry”. When you
enter an exclusive subdivision, they’re very strict. They
would ask you to leave your ID, [although there’s an
issuance now that the requirement for you to leave your
Driver’s License is not allowed – but sometimes I (Atty.
Isma) have no choice because I have no other ID in my
wallet].
Can the Homeowner’s Association validly implement
this policy?
Si Kwong, has businesses inside the subdivision. So it
would affect his business because it would be
cumbersome for his customers who will be entering the
premises. So he assailed the policy of the Homeowners’
Association, and asked for the issuance of Cease and
Desist order, and even applied for TRO. Ang argument
 niya: “You don’t have the right to regulate the use of the
streets because these are public roads. These were
donated to the City of Angeles in 1974.
So it’s not disputed that the subdivision roads were
donated to the City of Angeles. Therefore, they are
public property for public use. Sec. 31 of PD 957 as
amended by 1216 was in force during Marcos Regime.
The law makes it mandatory for registered owner or
developer of subdivision or condominium project, upon
the completion of the project, to donate roads, alleys,
sidewalks, and playgrounds to the city or municipality.
Nonetheless, under the Magna Carta for Homeowners
Association, this is a more recent law, it gives the
homeowners associations the right to regulate the
access and passage through the subdivision or village
roads. It doesn’t distinguish whether the road has been
donated to the LGU. Nonetheless, at the time of the
issuance of the policy, RA 9904 was not yet in effect.
The policy was implemented in 2006, while RA 9904
was in 2010. As a general rule, laws cannot be applied
retroactively; there’s no retroactivity clause there. What
should be scrutinized are the provisions applicable at
the time the policy was implemented or issued.
There is no doubt that the LGU may regulate the use of
public roads. Nonetheless, homeowners’ associations,
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by virtue of Sec. 31 of PD 957, the HLURB Resolutions,
even case laws, recognize the rights of the
homeowners’ associations to regulate the use of the
roads as well within the subdivision. PD 957 which was
still effective at the time of the issuance of the policy, for
its purpose which is to provide the remedy to address
the prevalent situation at that time. Because prior to the
PD, developers would develop, then after the project is
done, wala na napabayaan na yung mga kalsada sa
loob ng subdivision. This law was intended to empower
the homeowners’ associations to maintain leased roads,
alleys, sidewalks.
The SC concluded that the donation of roads to the
LGU, as mandated by law, cannot be interpreted in
such a way to disempower the homeowners’
association. In order to protect the interest of the
residents, the law equally empowers the homeowner’s
association to regulate the use of roads, the passage of
vehicles and persons through their roads.
So sa mga nagrereklamo sa ID policy ng subdivisions,
yan ang sabi ng SC. Medyo bago pa yan; 2019.
Primicias v. Fugoso
This has something to do with the right to use the roads
and streets for demonstrations.
 This provision, according to the SC, could be
susceptible to 2 constructions regarding the issuance of
permit. Is the mayor given a carte blanche authority to
grant or refuse a permit for the holding of an assembly,
or is the mayor bound to grant the permit but subject to
reasonable discretion to specify/determine the streets or
public places to be used for the purpose? The SC
applied the 2nd construction. This is in keeping with the
freedom of assembly under the Constitution, and also
based on the ruling of the SC.
Similar to that provision in the revised ordinance, here in
this case of Willis Cox, the US SC clarified that the
provision does not give the board or licensing authority
an unfettered discretion to refuse or grant the license.
Consistent with the right to assembly and freedom to
speech and the press, the licensing authority must grant
but subject to the licensing authority’s discretion to
determine the time, place, and manner. [Meron ba
kayong naaalala sa time, place, and manner? Anong
klaseng regulation bay an, content based or content
neutral? The ruling in Bayan v. Ermita upheld the
constitutionality of BP 880, but not the calibrated
preemptive response. Dahil nung mga time na yun,
noong presidential proclamation ni GMA, pinagbu-
bubomba ng tubig yung mga nagra-rally. So that case
upheld the constitutionality of BP 880, it’s a content
neutral regulation eh, but not the calibrated preemptive
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response kasi the acceptable policy is maximum
tolerance.]
To adopt the 1st construction would give the mayor an
unfettered and unlimited discretion [e.g. hindi feel ng
mayor yung mukha ng nag-aapply, pwede niya i-deny].
More importantly, LGU are only empowered to regulate
the use of the streets. Here, citing Kwong Sing, the
term “regulate” was defined. LGU can control, govern,
restrict, but it is not synonymous with suppress or
prohibit.
So take note, kung gusto niyo na hindi na kelangan ng
permit, doon na lang kayo sa freedom park. Take note
of the application requirements, the use of the public
thoroughfare.
If matagal ang gamit ng kalsada, the mayor may
designate the routes of vehicular traffic to another
direction.
Cebu Oxygen & Acetylene Co v. Bercilles
Here, the petitioners bought an abandoned property at
an auction. The zealous prosecutor filed a Motion to
Dismiss the petition for registration on the ground that
the property sought to be registered was a public road
intended for public use so it’s beyond the commerce of
men, hence, cannot be registered. Ni-oppose ang
 registration kasi malamang original registration to so
kelangan ng petition.
The revised charter of Cebu City empowers the City of
Cebu to close a city road or street so that was what
happened. The property which was subsequently
acquired by Cebu Oxygen was withdrawn from public
use, hence, it became patrimonial property under Art.
422. Property of public dominion, when no longer
intended for public use or public service, shall form part
of the patrimonial property of the State.
Cabrera v. CA
There was a Deed of Exchange. Under it, certain
individuals will be given portions of the closed road in
exchange for their own respective properties, because
the properties would be used as a new concrete road
leading to the Capitol Building.
Now, the petitioner filed a case for the restoration of
public road. According to him, yung kalsadang nasa
tapat niya ay public road. So the Deed of Exchange
executed between the province and the property owners
was invalid because the subject of the contract was a
public road.
There is actually a law authorizing the provincial board
to order the closure of roads similar to Section 21 that
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we have now, that is now the uniform basis of the
closure of roads.
Again, by virtue of the closure, patrimonial property na
siya. Take note, distinction here between Macasiano,
Cabrera, Cebu Oxygen, look at the context of the
situation of the facts. There must be a resolution closing
and withdrawing the public road from public use. They
must make sure whether by virtue of the action of the
LGU, the public road was converted into a patrimonial
property. Not just entered into a contract under the
guise of regulation, just like in Macasiano, because that
was what the situation was all about. Sa Macasiano,
sinarado lang yung kalsada by virtue of an ordinance
authorizing the regulation or use of public roads. Here in
Cabrera, the property involved was converted into
patrimonial property; there was a withdrawal from public
use. It may now become a subject of a contract. Take
note that patrimonial property of the LGU is just like a
property owned by a private person; it’s within the
commerce of men. So, the cases of Cebu Oxygen and
Favis cited by the SC in this case both involve cities,
yet the SC said that there’s no sense in limiting the
applicability of the doctrines in this case to cities. The
doctrine likewise applies to provinces.
Pilapil v. CA
The private respondents wanted to fence the Camino
Vecinal. The Pilapils threaten the private respondents.
 In effect, the private respondents, because of their
efforts to maintain and even to fence, they are
interfering or closing the Camino Vecinal.
The SC said that the Camino Vecinal is a municipal
road; a property for public use. In relation to this, the
establishment, closure, or the abandonment of a public
road from municipal road is a prerogative of an LGU.
Take note of these powers of LGU: (a) to prepare and
adopt a land use map; (b) to promulgate a zoning
ordinance which may consider, among other things, the
municipal roads to be constructed, maintained,
improved, or repaired; and (c) close any municipal
roads. These things are within the exclusive prerogative
of the LGU. No private party can interfere with the
exercise of these prerogatives.
LEGISLATIVE POWERS
Sec. 48. Local Legislative Power – Local legislative
power shall be exercised by the sangguniang
panlalawigan for the province; the sangguniang
panlungsod for the city; the sangguniang bayan for the
municipality; and the sangguniang barangay for the
barangay.
As we’ve already learned in the study of General
Welfare Clause, local legislative powers shall be
exercised by the respective sanggunians. For
provinces, Sangguniang Panlalawigan (Bukal{?} or
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board members), for cities, Sangguniang Panlungsod,
for municipalities, Sangguniang Bayan, for barangays,
Sangguniang Barangay. [Kaya yung chairperson and
tanod, they cannot exercise legislative powers on their
own, like in the Pandacan case].
Sec. 49. Presiding Officer –
a) The vice-governor shall be the presiding officer of the
sangguniang panlalawigan; the city vice-mayor, of the
sanggunian panlungsod; the municipal vice-mayor, of the
sangguniang bayan; and the punong barangay, of the
sangguniang barangay. The presiding officer shall vote
only to break a tie.
b) In the event of the inability of the regular presiding
officer to preside at a sanggunian session, the members
present and constituting a quorum shall elect from among
themselves a temporary presiding officer. He shall certify
within ten (10) days from the passage of ordinances
enacted and resolutions adopted by the sanggunian in
the session over which he temporarily presided.
Ito hindi in-adopt in a national level; ang nagpe-preside
as far as provinces are concerned, Vice Governor. Dito
satin yung president, wala. This could’ve been a better
paradigm na yung Vice President will be the Senate
President – but it’s not in our Constitution. For
Sangguniang Panlungsod, the City Vice Mayor. For the
Sangguniang Bayan, the Municipal Vice-Mayor. Walang
 Vice ang Punong Barangay so siya rin ang nagpe-
preside sa Sangguniang Barangay. The presiding
officer shall vote only to break a tie. What if the
presiding officer is unable to preside? They shall elect
the members of the Sanggunian present as long as they
have a forum can elect a temporary presiding officer.
The temporary presiding officer shall certify within 10
days from the passage of the ordinances enacted and
resolutions adopted by the sanggunian in the session
over which he temporarily presided. So he’ll be the one
certifying ordinances.
Sec. 50. Internal Rules of Procedure –
a) 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;
b) The rules of procedure shall provide for the following:
1) The organization of the sanggunian and the election
of its officers as well as the creation of standing
committees which shall include, but shall not be limited
to, the committees on appropriations, women, and
family, huma rights, youth and sports development,
environmental protection, and cooperatives; the general
jurisdiction of each committee; and the election of the
chairman and members of each committee;
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2) The order and calendar of business for each session;
3) The legislative process;
4) The parliamentary procedures which include the
conduct of members during sessions;
5) The discipline of members for disorderly behavior
and absences without justifiable cause for 4 consecutive
sessions, for which they may be censured,
reprimanded, or excluded from the session, suspended
for not more than 60 days, or expelled: Provided, that
the penalty of suspension or expulsion shall require the
concurrence of at least two-thirds 2/3 vote of all the
sanggunian members: Provided, further, that a member
convicted by final judgment to imprisonment of at least 1
year for any crime involving moral turpitude shall be
automatically expelled from the sanggunian; and
6) Such other rules as the sanggunian may adopt
Take note of the internal rules of procedure. Take note
as to when the internal rules shall be adopted; so first
session following the election and within 90 days
thereafter – they should adopt their rules of procedure.
Take note of what should the rules of procedure
provide.
Sec. 51. Full Disclosure of Financial and Business
Interests of Sanggunian Members –
a) Every sanggunian member shall, upon assumption to
office, make a full disclosure of his business and financial
interests, or professional relationship or any relation by
affinity or consanguinity within the 4 th civil degree, which
he may have with any person, firm, or entity affected by
any ordinance or resolution under consideration by the
sanggunian of which he is a member, which relationship
may result in conflict of interest. Such relationship shall
include:
1) Ownership of stock or capital, or investment, in the
entity or firm to which the ordinance or resolution may
apply; and
2) Contracts or agreements with any person or entity
which the ordinance or resolution under consideration
may affect. In the absence of a specific constitutional or
statutory provision applicable to this situation, “conflict
of interest” refers in general to one where it may be
reasonably deduced that a member of a sanggunian
may not act in the public interest due to some private,
pecuniary, or other personal considerations that may
tend to affect his judgment to the prejudice of the
service or the public.
b) The disclosure required under this Act shall be made
in writing and submitted to the secretary of the
sanggunian or the secretary of the committee of which he
is a member. The disclosure shall, in all cases, form part
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of the record of the proceedings and shall be made in the
following manner:
1) Disclosure shall be made before the member
participates in the deliberations on the ordinance or
resolution under consideration: Provided, that if the
member did not participate during the deliberations, the
disclosure shall be made before voting on the ordinance
or resolution on second and third readings; and
2) Disclosure shall be made when a member takes a
position or makes a privilege speech on a matter that
may affect the business interest, financial connection, or
professional relationship described herein.
Check niyo din regarding full disclosure of financial
and business interest, baka tanungin kayo sa mga
barangay at lalawigan niyo. Pwede po ba mag-enter
sa ganitong transaction si konsehal, or si Board
Member? Take note, upon assumption of office, every
sanggunian shall make a full disclosure of his business
and financial interest or professional relationships.
[Baka siya pala yung may-ari ng security agency.
Tapos magbi-bid sila doon sa munisipyo. Conflict of
interest yun, and should be avoided.] Correlate this
also with the relevant provisions of RA 6713. This
must be done by every member of the sanggunian; to
make a full disclosure of his business and financial
interests or professional relationship or any relation by
affinity or consanguinity within 4th civil degree…
 Take note of the types of relationships e.g. ownership
of stock or stockholder, contracts or agreements with
any person…
Sec. 52. Sessions –
a) On the first day of the session immediately following
the election of its members, the sanggunian shall, by
resolution, fix the day, time, and place of its regular
sessions. The minimum numbers of regular sessions
shall be once a week for the sangguniang panlalawigan,
sangguniang panlungsod, and sanggunian bayan, and
twice a month for the sangguniang barangay.
b) When public interest so demands, special sessions
may be called by the local chief executive or by a
majority of the members of the sanggunian
c) All sanggunian sessions shall be open to the public
unless a closed-door session is ordered by an affirmative
vote of a majority of the members present, there being a
quorum, in the public interest or for reasons of security,
decency, or morality. No two (2) sessions, regular or
special, may be held in a single day.
d) In the case of special sessions of the sanggunian, a
written notice to the members shall be served personally
at the member’s usual place of residence at least 24
hours before the special session is held. Unless
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otherwise concurred in by 2/3 vote of the sanggunian
members present, there being a quorum, no other
matters may be considered at a special session except
those stated in the notice.
e) Each sanggunian shall keep a journal and record of its
proceedings which may be published upon resolution of
the sanggunian concerned.
Who can call special sessions? The local chief
executive or by a majority of the members of the
sanggunian. E.g. kelangan mag-decide kung
tatanggalin na yung face shield. That’s within the
interest of the public so it needs to be decided, so either
the mayor or governor may call a special session, or on
their own volition, majority of the members of the
sanggunian; they may convene for the purpose of
determining “kailangan pa ba natin ng face shield?”
Anyone can watch sanggunian sessions, unless closed
door session is ordered by majority of the members
present, provided that there’s a quorum.
No two sessions, regular or special, may be held in a
single day.
How written notice is served on the members in case of
a special session? Usual place of residence at least 24
hours before the special session. General rule is only
 those stated in the notice shall be touched during the
special session, unless there is a 2/3 vote of the
sanggunian members present then other matters may
be discussed and considered.
Similar to our national legislature, the sanggunians are
also mandated to keep a journal and record of the
proceedings, and they may opt to publish upon
resolution (it’s not mandatory that the journals of
proceedings be published).
Sec. 53. Quorum –
a) A majority of all the members of the sanggunian who
have been elected and qualified shall constitute a
quorum to transact official business. Should a question of
quorum be raised during a session, the presiding officer
shall immediately proceed to call the roll of the members
and thereafter announce the results.
b) Where there is no quorum, the presiding officer may
declare a recess until such time as a quorum is
constituted, or a majority of the members present may
adjourn from day to day and may compel the immediate
attendance of any member absent without justifiable
cause by designating a member of the sanggunian to be
assisted by a member or members of the police force
assigned in the territorial jurisdiction of the LGU
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concerned, to arrest the absent member and present him
at the session.
c) If there is still no quorum despite the enforcement of
the immediately preceding subsection, no business shall
be transacted. The presiding officer, upon proper motion
duly approved by the members present, shall then
declare the session adjourned for lack of quorum.
What constitutes a quorum? Not just the majority of the
members present, but majority of all the members of the
sanggunian who have been elected and qualified.
What if may gusto ka i-sabotage na botohan like “Nako
ipapasa na nila yung ordinansa, ayoko pa naman yung
ordinansa na yun. Ayaw ng partido namin yun. Ayaw ng
minority non! Let us question the quorum!”, what should
be done by the presiding officer? Magpa-roll call ka. [So
kahit dito, abante ang mga lawyer kasi alam nila ang
remedy.]
What if there is no quorum, what is the remedy? The
presiding officer may declare a recess until such time as
a quorum is constituted, or a majority of the members
present may adjourn from day to day and may compel
the immediate attendance of any member absent
without justifiable cause; to be assisted by a member/s
of the police force, to arrest the absent member and
 present him at the session. [So vote wisely, na dapat
itong mga mae-elect ay di na kelangan pa i-compel para
umattend para makabuo ng quorum]
If after the aforesaid, the absent member is still not
present - if nagtago na talaga yung member ng
sanggunian at ayaw niya talaga mag-partake sa
quorum, then no business shall be transacted. The
presiding officer, upon proper motion duly approved by
the members present, shall then declare the session
adjourned for lack of quorum.
Sec. 54 Approval of Ordinances –
a) Every ordinance enacted by the sangguniang
panlalawigan, sangguniang panlungsod, or sangguniang
bayan shall be presented to the provincial governor or
city or municipal mayor, as the case may be. If the local
chief executive concerned approves the same, he shall
affix his signature on each and every page thereof;
otherwise, he shall veto it and return the same with his
objections to the sanggunian, which may proceed to
reconsider the same. The sanggunian concerned may
override the veto of the local chief executive by 2/3 vote
of all its members, thereby making the ordinance or
resolution effective for all legal intents and purposes.
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b) The veto shall be communicated by the local chief
executive concerned to the sanggunian within 15 days in
the case of a province, and 10 days in the case of a city
or a municipality; otherwise, the ordinance shall be
deemed approved as if he had signed it.
c) Ordinances enacted by the sangguniang barangay
shall, upon approval by the majority of all its members,
be signed by the punong barangay.
Sec. 55. Veto Power of the Local Chief Executive
a) the local chief executive may veto any ordinance of the
sangguniang panlalawigan, sangguniang panlungsod, or
sangguniang bayan on the ground that it is ultra vires or
prejudicial to the public welfare, stating his reasons
therefor in writing.
b) The local chief executive, except the punong
barangay, shall have the power to veto any particular
item or items of an appropriations ordinance, an
ordinance or resolution adopting a local development
plan and public investment program, or an ordinance
directing the payment of money or creating liability. In
such a case, the veto shall not affect the item or items
which are not objected to. The vetoed item or items shall
not take effect unless the sanggunian overrides the veto
in the manner herein provided; otherwise, the item or
items in the appropriations ordinance of the previous year
corresponding to those vetoed, if any, shall be deemed
reenacted.
c) The local chief executive may veto an ordinance or
resolution only once. The sanggunian may override the
veto of the local chief executive concerned by 2/3 vote of
all its members, thereby making the ordinance effective
even without the approval of the local chief executive
concerned.
This is how local ordinances are approved: Sec. 54 of
the LGC
Every ordinance enacted by the sangguniang
panlalawigan, sangguniang panlungsod, or
sangguniang bayan shall be presented to the provincial
governor or city or municipal mayor, as the case may
be. Just like parang sa presidente rin. Ordinances are
subject to the approval of the local chief executive. The
local chief executive should affix his/her signature on
each and every page of the ordinance.
Note that the ordinance may also be vetoed. The local
chief executive also has a veto power. How to override
the veto? Through 2/3 vote of all the members (and not
just all of those present) of sanggunian. Once it is
overridden, the ordinance or shall be effective even if
previously vetoed.
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When should the local chief executive communicate the
veto? Within 15 days in case of a province; and 10 days
in case of a city or municipality.
There is no pocket veto. If the local chief executive fails
to approve, sign, or act, the ordinance is deemed
approved.
When is the ordinance deemed enacted? Upon
approval of the majority of all its members. We don’t just
consider all of those present; we consider ALL THE
MEMBERS.
What are the reasons for the veto? Ultra vires;
prejudicial to the public welfare, stating his reasons in
writing.
May item veto ba? Yes; the local chief executive, except
the punong barangay – the punong barangay doesn’t
have any item veto.
What are the subject of an item veto? Appropriations
Ordinance, and ordinance or resolution adopting a local
development plan, public investment program,
ordinance directing they payment of money or creating
a liability. These are the items which may be the subject
of an item veto. Item veto means the other parts of the
ordinance may still be adopted/approved, except certain
items in an appropriations ordinance, etc.
 Just like the concept as far as the statutes is concerned,
the vetoed item shall not affect those which were not
affected by the veto.
The vetoed items may also be the subject of the
override power of the sanggunian. Again, 2/3 vote of all
the members of the sanggunian to override.
What happens especially for appropriations ordinance
[budget ng local government]? For those items, the
provisions of the appropriations ordinance during the
previous year shall be deemed reenacted. Kung ano
yung counterpart provision from the previous ordinance
shall be deemed reenacted.
How many times can the veto power be exercised?
Only once. The local chief executive cannot veto an
overridden ordinance.
Sec. 56. Review of Component City and Municipal
Ordinances or Resolutions by the Sangguniang
Panlalawigan
a) Within 3 days after approval, the secretary to the
sangguniang panlungsod or sangguniang bayan shall
forward to the sangguniang panlalawigan for review,
copies of approved ordinances and the resolutions
approving the local development plans and public
100
investment programs formulated by the local
development councils.
b) Within 30 days after the receipt of copies of such
ordinances and resolutions, the sangguniang
panlalawigan shall examine the documents or transmit
them to the provincial attorney, or if there be none, to the
provincial prosecutor for prompt examination. The
provincial attorney or provincial prosecutor shall, within a
period of 10 days from receipt of the documents, inform
the sangguniang panlalawigan in writing of his comments
or recommendations, which may be considered by the
sangguniang panlalawigan in making its decision.
c) If the sangguniang panlalawigan finds that such an
ordinance or resolution is beyond the power conferred
upon the sangguniang panlungsod or sangguniang
bayan concerned, it shall declare such ordinance or
resolution invalid in whole or in part. The sangguniang
panlalawigan shall enter its action in the minutes and
shall advise the corresponding city or municipal
authorities of the action it has taken
d) If no action has been taken by the sangguniang
panlalawigan within 30 days after submission of such an
ordinance or resolution, the same shall be presumed
consistent with law and therefore valid.
 Ordinances and resolutions are also subject to review.
Sec. 56 refers to component cities and municipal
ordinances. They are subject to the review powers of
the sangguniang panlalawigan.
Sanggunians have the power to declare the ordinance
or resolution valid or invalid. If no action within 30 days
after submission of the O or R, the same shall be
presumed valid. Eto yung tinatawag na exhaustion of
administrative remedies.
Sec. 57. Review of Barangay Ordinances by the
Sangguniang Panlungsod or Sangguniang Bayan
a) Within 10 days after its enactment, the sangguniang
barangay shall furnish copies of all barangay ordinances
to the sangguniang panlungsod or sangguniang bayan
concerned for review as to whether the ordinance is
consistent with law and city or municipal ordinances.
b) If the sangguniang pnalungsod or sangguniang bayan,
as the case may be, fails to take action on barangay
ordinances within 30 days from receipt thereof, the same
shall be deemed approved.
c) If the sangguniang panlungsod or sangguniang bayan,
as the case may be, finds the barangay ordinances
inconsistent with law or city or municipal ordinances, the
sanggunian concerned shall, within 30 days from receipt
101
thereof, return the same with its comments and
recommendations to the sangguniang barangay
concerned for adjustment, amendment, or modification;
in which case, the effectivity of the barangay ordinance is
suspended until such time as the revision called for is
effected.
Yung barangay ordinances, sangguniang panlungsod or
pambayan ang magrereview. Similar procedure.
Sangguniang barangay shall forward the documents to
sangguniang panlungsod or sangguniang bayan.
30 day period din to make an action, otherwise, the
barangay ordinance shall be deemed approved.
Itong sangguniang bayan, if they find the ordinance
inconsistent with the law or the city or municipal
ordinances, they have 30 days to return the documents
to the sangguniang barangay for adjustments,
amendment, or modification. This has the effect of
suspending the effectivity of the ordinance until such
time that the revision is implemented.
Dito lang sa review ng barangay ordinances, walang
requirement for the referral to a municipal authority or
city prosecutor. Unlike review of ordinances passed by
component cities and municipalities.
Sec. 58. Enforcement of Disapproved Ordinances or
Resolutions –
Any attempt to enforce any ordinance or any 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.
What happens if a local official enforces a proposed
ordinance which was disapproved? This may be the
subject of a disciplinary action; either suspension or
dismissal.
Sec. 59. Effectivity of Ordinances or Resolutions –
a) Unless otherwise stated in the ordinance or the
resolution approving the local development plan and
public investment program, the same shall take effect
after 10 days from the date a copy thereof is posted in a
bulletin board at the entrance of the provincial capitol or
city, municipal, or barangay hall, as the case may be, and
in at least 2 other conspicuous places in the LGU
concerned.
b) The secretary to the sanggunian concerned shall
cause the posting of an ordinance or resolution in the
bulletin board at the entrance of the provincial capitol and
the city, municipal, or barangay hall in at least 2
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conspicuous places in the LGU concerned not later than
5 days after approval thereof.
The text of the ordinance or resolution shall be
disseminated and posted in Filipino or English and in the
language understood by the majority of the people in the
LGU concerned, and the secretary to the sanggunian
shall record such fact in a book kept for the purpose,
stating the dates of approval and posting.
c) The gist of all ordinances with penal sanctions shall be
published in a newspaper of general circulation within the
province where the local legislative body concerned
belongs. In the absence of any newspaper of general
circulation within the province, posting of such
ordinances shall be made in all municipalities and cities
of the province where the sanggunian of origin is
situated.
d) In the case of HUC and independent component cities,
the main features of the ordinance or resolution duly
enacted or adopted shall, in addition to being posted, be
published once in a local newspaper of general
circulation within the city: Provided, that in the absence
thereof the ordinance or resolution shall be published in
any newspaper of general circulation.
 The general rule is that it is the ordinance or resolution
that will provide the period or date of effectivity. If there
is no period stated, the ordinance or resolution shall
take effect after 10 days from the posting in a bulletin
board at the entrance of the provincial capitol and the
city, municipal, or barangay hall IN AT LEAST 2
CONSPICUOUS PLACES in the LGU concerned. So
hindi sa CR or what; dapat in conspicuous places,
nakikita ng lahat.
What’s the duty of the secretary of the sanggunian? To
cause the posting of an ordinance or resolution in the
bulletin board at the entrance of the provincial capitol
and the city, municipal, or barangay hall in at least 2
conspicuous places in the LGU concerned not later than
5 days after approval thereof. Secretary ang may duty
to ensure that the O or R is posted congruent to the
posting requirements.
Take note of the language requirement in (b).
For ordinances with penal sanctions, there is a
publication requirement in a newspaper of general
circulation. In the absence of newspaper of any general
circulation, it should be posted in all municipalities and
cities of the province where the sanggunian of origin is
situated.
How about HUC and independent component cities?
Take note walang review dito. Kung babalikan yung
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review provisions, there is no review power on the part
of the sangguniang panlalawigan. This is because the
province ceases to have the power of supervision over
these LGUs na HUC and independent component cities.
Kaya kapag may conversion into a HUC, the residents
of the province is allowed to vote in the plebiscite.
As far as publication requirement for ordinances passed
by the sanggunians of HUC and ICC, the main features
of the ordinance or resolution shall, in addition to the
posting requirement (the entrance of 2 conspicuous
places), be published once in a local newspaper of
general circulation within the city. In the absence of
local newspaper of general circulation, the ordinance or
resolution shall be published in any newspaper of
general circulation.
Test of A Valid Ordinance
1) It must not contravene the Constitution or any statute;
2) It must not be unfair or oppressive;
3) It must not be partial or discriminatory;
4) It must not prohibit, but may regulate trade;
5) It must be general and consistent with public policy;
and
6) It must not be unreasonable.
Ordinances which are not in harmony with the
Constitution or any statute shall be invalid.
Equal protection clause guarantees not discrimination in
the application of laws. It shall not prohibit but regulate
trade. Hindi pwede ipagbawal ang pagbebenta ng
longganisa kasi nagbebenta ng longganisa yung
kaaway mo, but you may regulate e.g. how longganisa
is manufactured; LGUs may impose taxes on
longganisa vendors, and by doing so, regulate the
conduct of business of the longganisa vendor.
Ordinance must be reasonable; it must pass the test of
reasonableness.
Citing CEPALCO case: Ordinances, just like national
laws or statutes, are entitled to presumption of validity
or constitutionality. This is because the courts will defer
to the wisdom of the legislative department; that the
latter enacted a law in accordance with the Constitution,
other laws, etc. In the absence of clear ground to
declare the invalidity of an ordinance, the presumption
applies.
How do you know when to set aside the presumption?
There are 2 factors: if the invalidity or unreasonableness
appears on the place of the ordinance, or is established
by proper evidence.
104
The party who alleges the unconstitutionality or
invalidity of an ordinance carries the burden to show,
substantiate, or present evidence why the ordinance is
invalid.
But of course now we have the expanded power of
judicial review that's why in your National laws is subject
to the power of the SC to determine whether there is
grave abuse of discretion in the exercise of the power to
enact the law. In the absence of a clear ground to
declare the invalidity of a law or ordinance, then this
presumption applies. Now, how do you know when to
set aside the presumption? There are two factors:
- If the invalidity or unreasonableness appears on the
place of the ordinance, or is established by proper
evidence. Paano ba natin nasabi na excessive? Kasi
500 pesos for every post. Eh dito naka8M ata yung
CEPALCO sa dami ng posted. So kada poste, 500. So
here, the SC said that CEPALCO had the burden to
substantiate its claim of unreasonableness. So it's
always the burden of the one who alleges invalidity so
for example, you are the lawyer for a company which
assails the validity and constitutionality of an ordinance,
then it is incumbent upon that party upon you as the
lawyer, drafting the pleading, to show and to
substantiate and even to present evidence why the
ordinance is invalid for being oppressive, unreasonable,
for being a violation of the Constitution. It's always the
burden of the one alleging. There are no details
 regarding the alleged unreasonableness. So simply put,
because of the lack of evidence, the allegation of
unreasonableness was struck down. It was not
sustained by the SC. So the ordinance was presumed
constitutional.
Itong ordinansa na to, pinagbawalan lahat ng hotel, and
similar establishment to operate because of immorality,
because these places according to the city government,
became the haven of immorality. So tatlo yan eh, there
are 3 cases. One, it pertains to an ordinance regarding
the imposition of permits, registration fees, and of
course the logging of entries pertaining to those who are
checking in. That ordinance was upheld as
constitutional. Then this other case, quite like pertaining
to prohibition on short time rates, here comes this case,
this time an ordinance directing the prohibition of
motels, and similar establishments on the ground of
immorality. So it infringes the due process clause.
Bakit? Diba may dalawang aspect, substantive and
procedural. Now as far as the substantive aspect, the
court would look into the reasonableness of the
regulation. And here, the city of Manila was legislating
morality. Sabi ng court, it's unreasonable. There are
two ways, 2 requisites for valid exercise of police
power:
105
1. interest of the public as distinguished from a few
private individuals
2. The means employed must not be unduly restrictive
of the rights of individuals. Reasonably necessary for
the accomplishment of the purpose and not unduly
restrictive of the right of individuals.
To summarize, lawful subject and lawful means. The
means employed here, among other things, what will
strike you is the means employed. You want to legislate
morality. Yet according to the SC, motels can be used
even for the most wholesome of purpose. According to
the Sc, lewd activities can be done in the most holy and
innocent places. On the other hand, what if mag-asawa
ang gagamit ng motel? Gusto nila na pumunta doon or
consenting adults? It's a legitimate exercise of their
freedom. It violates due process that way. It violates
substantive due process. Not to mention that it is also
confiscatory because these businesses were required to
wind up within 3 months. You have to remember that
business is a property right and when a regulation
becomes confiscatory, it becomes unlawful taking of
property as well. According to the SC, the ordinance
also violates the equal protection clause because the
courts knew there are no substantial distinctions
between motels, inns, or other similar establishments.
There is no such thing as substantial distinction. Bakit
 sila lang ang napaginitan? And also, the ordinance
violated the LGC because the LGC merely empowers
the LGUs to regulate and not prohibit businesses.
Motels are not really illegal. May kama, tv, pagkain. Pag
ginamit mo sa tama, it's not illegal. In fact, nung pre-
pandemic, some would go to some of the places there
for the bar. Dun natutulog. Hindi afford yung hotel, they
would go to apartelles. It's a place for rest. If it is a
legitimate business, the Local Government Unit is only
empowered by the LGC to regulate. That's why tests of
a valid ordinance, one of the requisites there, it must not
prohibit, but may regulate trade.
Meralco Case
Of whether the ordinance was enacted within the
corporate powers of the LGU.Whether the same was
passed pursuant to the procedure laid down by law. On
the other hand, the substantive test primarily assesses
the reasonableness and fairness of the ordinance and
significantly its compliance with the Const. and existing
statutes. Sa formal test, titignan diyan is it within the
power of the LGU? Pag substantive, is it reasonable
and consistent with the Const. and existing law. Sabi
dito, the ordinance failed to meet the requirements of a
valid ordinance. So under the formal test, is it within the
power of the LGU to enact this ordinance? The SC said,
NO, this is ultra vires. Sa substantive test naman, the
106
ordinance deviates from the express provision of the
law, particularly the LGC. Because here, Muntinlupa
when it enacted the ordinance, had no power or
authority to impose franchise tax. So municipalities
according to the SC and citing the relevant provision of
the LGC, municipalities have no power to impose
franchise tax. The ordinance is incompatible with the
law and it is null and void.
City of Pasig
Has the same ruling, same kind of tax, same discussion
of tax.
Villanueva v. City of Iloilo
Pertains to the tenement tax. Now according to the
petitioner, the ordinance is ultra vires. Yung inaassail ni
petitioner, according to the charter of the City of Iloilo,
the Local Government Unit was not empowered to
impose a tax on tenement houses. So according to the
LGU, what was imposed here was real estate tax. The
SC said, this is not a real estate tax because a real
estate tax is a direct tax on the ownership of lands and
buildings. Based on the assessed value of the land. So
according to the SC, the tax here is not one imposed on
the land on which the tenement houses are erected. So
 this is not a real estate tax. Nonetheless the SC said,
that the tax in question is not oppressive. Just because
it fixes a penalty clause. Accdg. to SC citing Punzalan, ACAAC vs. Azcuna
because here in Punzalan, the SC overruled the
Pertains to a municipal ordinance prohibiting the entry
pronouncement of the lower court declaring illegal an
of any entity, association, corporation, or organization
ordinance imposing an occupation tax on persons and
inside the sanctuaries, construction of any structures,
imposing a penalty of fine and imprisonment for
permanent or temporary except if authorized by the
violation. So hindi porke may penalty clause ang isang
LGU. So here, naissuehan yung petal ng order of
ordinance ay oppressive na ito. Not to mention, the SC
demolition. The order is based on an ordinance. Now,
said that there is no double taxation here. There is
there are questions regarding the regularity of the
nothing in the law that prohibits the exaction of license
enactment of the ordinance. So the regularity of the
fees or taxes with respect to the same occupation on
enactment of the ordinance was questioned kasi wala
the part of the State and the LGU.Kasi dito, what was
daw public consultation, no publication in a newspaper
imposed is a license tax vis a vis real property tax. SC
of gen circ., not approved by the sangguniang
said a license tax it can be imposed upon a business
panlalawigan. Hence this ordinance should not be
although the land or property in connection therewith is
implemented. Do you still remember the review
subject already to a property tax. Those are two
process? So here the SC sustained the conclusion of
separate taxes - tax on the property and tax on the
the court of appeals. C and D in Sec. 56 which were
business. There can be no double taxation there. It also
mentioned in the CA's ruling which was later on upheld
does not violate the principle of uniformity in taxation -
by the SC. D should be read in conjunction with C
taxes should be uniform and equal, meaning taxes are
because here accdg. to provisions, if no action has
imposed upon all property of the same class or
been taken by the sanggunian within 30 days after
character. Hindi pwedeng itax ng same rate ang
submission of an ordinance or resolution, then it shall
magkaibang bagay. There would be discrimination
be presumed consistent with the law. Sa C, so if the
there. So here, the SC said tenement houses constitute
sanggunian panlalawigan finds an ordinance or
a distinct class of property. It goes without saying if it is
resolution to be enacted beyond the power of the
a distinct property, it is entitled to its own tax. Kaya
sangguniang panlungsod or bayan concerned, it shall
walang violation of principle of uniformity.
declare such ordinance in whole or in part. So what is
the action required of the Sangguniang panlalawigan

107
 based on the provision? So according to the SC, the
action that must be done or entered into the minutes of
the sangguniang panlalawigan, remember there is a
requirement here for the entry into the minutes of the
action according to the SC citing the findings of the CA,
it must be the declaration of the sangguniang
panlalawigan that the ordinance is invalid. So citing
statutory construction, the SC harmonized those
provisions. Now, more importantly, a party who invokes
irregularities in the requirements or enactment of the
ordinance, must show proof. Again, this is consistent
with the presumption of validity of an ordinance,
presumption of regularity in the performance of official
functions. Here, although si Azcuna, and the LGU also
failed to present proof of compliance, there was only
oral testimony. There was no documentary proof. But in
this case, because there is that presumption and the
party alleging irregularity failed to present evidence,
then the presumption will prevail because if this is a
disputable presumption, the one who disputes must
show proof to overcome the presumption. And here, the
allegations are simply like that, bare allegations. It did
not overcome the presumption of regularity of the
ordinance, particularly compliance with the procedure.
Here, the SC cited another case citing another case
pertaining to presumptive validity of an ordinance
despite lack of controverting evidence on the part of the
local government to show public hearings or even
compliance with other objections to the procedure for
108
the enactment. If the oppositor equally failed to present
controverting evidence to demonstrate the local
government's non-compliance with the said public
hearing, and the fact that the local governments non-
compliance was a negative allegation essential to the
oppositor's cause of action. And also here, the
presumption of regularity in the performance of official
functions, that is also a presumption under the law.
Smart Case
Pertains to an ordinance regarding imposition of permits
and license. Now here, Smart was the subject of
assessment for the payment of license fees because
Smart allegedly had arrears. There was a closure notice
on the tower. Smart protested due to lack of due
process, issuance of the assessment of closure and
notice as well as validity of the ordinance. The protest
was denied, so of course there was a case filed. When
it reached the SC, it clarified that fees are not taxes.
Ano ba ang purpose ng tax? In order for you to have an
overview of what the purpose of tax is, it is to raise
revenue vis a vis fees which are mainly for regulatory
purposes. So the test is this accdg. to the SC: if the
purpose is for raising revenue, then it is a tax. If it is for
regulatory purpose and the revenue purpose is merely
incidental, it is a fee. Sabi ng SC, the fees imposed
under the ordinance are not taxes because what is
 intended here under the ordinance was to regulate and
the business of Smart is included in the ordinance.
Telephone wires, it includes the telecommunications
tower. Now here, the presumption of regularity. Smart
did not present any evidence substantiating the claim
that the fee imposed is unjust, excessive, oppressive
and confiscatory. Similarly, if this is not overcome by
contrary proof, the presumption prevails.
some efforts to be exerted, remember that being a
police power measure, being a regulatory measure, the
LGU may impose certain restraints on our property
rights, businesses. That's a given. It is not oppressive,
partial or discriminatory.

The requirement requiring receipts in duplicate in

English and Spanish, kasi dito the owner is Chinese.
Nirerequire na magkaroon ng resibo in English and
Spanish because you know, unless you are Chinoy, we
cannot exactly know what do those Chinese characters
mean. So the objective of the ordinance is to prevent
fraud for the patrons to understand the contents of the
receipts. The ordinance according to the SC is not
discriminatory or unreasonable because it applies to all
public laundries whether they belong to any nationality.
It's not partial or discriminatory. It is also not oppressive.
It need not be expensive according to the SC. So, to
yung explanation ng SC, it need not be expensive, it
may entail some cost in reprinting but it shouldn't be
expensive. In fact it cannot be difficult because in a
laundry shop, with the familiarity of people in the shop in
English and Spanish, so there would be no difficulty in
implementing the duplication. Some people in the
laundry shops would understand. And even if there are

109
 ELEVENTH MEETING: November 27,
2021
TOPIC: Initiative and Referendum
The legislative power shall be vested in the Congress of
the Philippines which shall consist of a Senate and a
House of Representatives, except to the extent
reserved to the people by the provision on initiative
and referendum (Sec. 1, Art. VI, 1987 Constitution)
Now, it's not just limited to statutes or national laws. Now,
even local laws or ordinances. There is such a thing as
local initiative, and referendum. So, the registered voters
may directly propose, enact or amend any ordinance. So
aside from the local government code, there's also 6735.
Now who may exercise the power of local initiative?
So, the answer is all registered voters, not residents, but
registered voters. (Sec. 121)
· Section 121. Who May Exercise. - The power of
local initiative and referendum may be exercised by
all registered voters of the provinces, cities,
municipalities, and barangays.
So, not less than 1000 registered voters, in case of
provinces and cities; 100 In case of municipalities; and
50 in case of barangays. may file a petition with the local
110
legislative body, proposing the adoption enactment,
repeal or amendment of any law, ordinance or resolution.
So, hindi lang adoption, it may cover repeal, it may also
cover amendment.
So, if no favorable action is made by the local legislative
body within 30 days from its presentation, the proponent
through their duly authorized and registered
representative may invoke their power of initiative by
giving notice to the local legislative body. So binibigyan
muna ng pagkakataon ang mga local legislative body
yung sangguinian, to adopt, to enact, to repeal or to
amend any law, ordinance or resolution.
So, note that two or more propositions may be submitted
in an initiative. So the proponent shall have 90 days in
case of provinces and cities; 60 days in case of
municipalities; and 30 days in case of barangays from
notice to collect the required number of signatures. So,
the petition shall be signed before the election registrar or
it's designated representative in the presence of a
representative of the proponent and representative of the
regional assemblies and local legislative bodies
concerned in a public place in the local government unit.
Now, if the required number of signatures is obtained, the
Comelec shall then set a date for the initiative or approval
of the proposition within 60 days from the date of
certification by the Comelec in case of provinces and
cities; 45 days in case of municipalities; and in 30 days in
case of barangays. (Sec. 122)
When do these Local propositions become effective?
They become effective 15 days after certification that
presupposes that the proposition was approved by a
majority of the votes cast. Now, if it fails to obtain the said
number of votes, meaning the majority of the votes cast
the proposition is considered defeated. (Sec. 123)
So, yung certification of the Comelec takes the place of
the affirmative action on an ordinance by the sangguinian
and the local chief executive. You still remember last
meeting, we discussed the legislative process right?
Now, what are the limitations on the power of local
initiative? (Sec. 124) the first one is that the power of
local initiative shall not be exercised more than once a
year.
Secondly, initiatives shall extend only to subjects or
matters which are within the legal powers of the
sanggunian to enact is very important. Later on, in the
case of MARMETO so, we'll be able to tackle this more.
So, ibigsabihin, hindi pwedeng ultra vires yung ipo-
propose na ordinace through the process of local
initiative. If at any time before the initiative is held, the
Sangguniang concerned adopts in toto the proposition
presented and the local chief executive approves the
111
same, the initiative shall be cancelled. So, the action of
the sanggunian would render the initiative moot because
there'd be no purpose for the conduct of an initiative.
If at the end of the day, the local legislative body would
enact the very same proposition, the very same
ordinance. However, those against such action may, if
they so desire, apply for initiative in the manner
herein provide (Sec. 124(c)). So ibigsabihin, remember,
hindi lang siya for enactment, the process of initiative is
also being initiated also to repeal an existing ordinance
that may be done. So kahit na na-enact na yung same
measure, if those who are against the Proposition would
want to have the ordinance repealed, they may resort to
this process of local initiative as well.
Now what do you mean by a referendum? (Sec. 126)
Now, local referendum is the process whereby the
registered voters of the local government units may
approve, ammend or reject any ordinance enacted by the
sangguinian. So, ang pinagkaiba nito sa initiative, sa
initiative, the proposal really comes from the registered
voters whereas local referendum there is already an
ordinance, but the same is subject to approval,
amendment or rejection of the registered voters.
So, the local referendum shall be held under the control
and direction of the Comelec within 60 days in case of
provinces and cities; 45 days in case of municipalities
and 30 days in case of barangays. And the Comelec
shall certify and proclaim the results of the said
referendum. But of course, the validity whether the
ordinance is ultra vires, null and void, unconstitutional, it
would still be subject to judicial review as stated in
Section 127 of the local government.
Okay, remember in your Art. VIII, Sec. 5 of the
Constitution or the constitutionality of an ordinance.
That's included; that may be assailed. For instance,
nagkaroon ng initiative banning riding in tandem involving
a male person, so only a female person can be a
passenger in motorcycles aside from the rider.
So, [do] you still remember that Mandaluyong ordinance
is obviously a violation of the Equal Protection Clause.
So, bakit yung lalaki yung pinagbabawalan niyong
umangkas. So, let's suppose a similar ordinance is
proposed in Manila. So, the validity of the ordinance may
be assailed before the courts. An ordinance enacted by
way of initiative or referendum is not immune from judicial
review.
Case: Marmeto v. COMELEC
Speaking of which, in MARMETO, regarding the resort to
local initiative, merong pinoprose na ordinance regarding
the creation of a body, to a separate body aside from the
local legislative body, for the purpose of implementing
livelihood programs and projects at m,ay pondo pa. So,
dito diniscuss yung kapangyarihan ng Comelec. Now to
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determine whether the ordinance being proposed is
within the powers of the local government unit, and
whether whether it transgresses any limitation as
provided under the local government code. This also
tackles the issue as to whether lack of budget would
defeat the exercise of the power of initiative. So here's
the Supreme Court said Sabi ng Supreme Court, before
we go to the issues, the specific point that we should
learn. Remember that we are a republican democracy.
What do you mean by Republican democracy? Article
Two are the fundamental principles and state policies.
The Philippines is a Democratic and Republican state.
What do you mean by Republican state? It is a
representative democracy as opposed to direct
democracy. For example, in Greece where the people
themselves, exercise the power of sovereignty by
participating directly. That would be impractical here in
the Philippines, we exercise representative democracy
just like what will happen in May again. The people will
again choose their leaders. But by way of exception, the
people reserve for themselves the power to exercise
direct democracy through the process of initiative and
referendum.
And in fact, that power was extended to local laws. And
the power of course, is subject to limitations set forth by
by law, right? So here, in Marmeto, the Supreme Court
recognized that. Kaya nakalagay, "Direct Democracy."
That's why we'll be able to say that the Philippine is a
representative democracy, yet, to a certain extent, we
can also exercise direct democracy. We can participate
directly. That's why we have 6735. That's why we have
these provisions under the local government code. So
being a representative democracy is not absolute
because at the end of the day, the people reserve from
themselves or for themselves, the power to exercise their
sovereignty, through the process of initiative and
referendum.
Do you remember the distinctions between original
legislative power and derivative legislative power?
So, original legislative power that is the exercise of
lawmaking power by the people themselves as the true
sovereign--original democracy, original legislative power,
rather, as opposed to derivative legislative power,
dinelegate lang ng taumbayan ang legislative power. So,
legislative bodies such as Congress, and now even our
local legislative bodies, the sangguinians. So you should
always remember that. It's a basic concept.
So which commission is mandated to enforce the
provisions of RA 6735 and a local government code?
Comelec. So, the Comelec also has the power to review
whether the propositions in an initiative petition are within
the power of the concerned sangguinian to enact.
So, for instance, we've learned know that municipalities
cannot impose franchise tax right? and then here comes
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a municipality, for example, Pateros was not yet a city,
municipality of Pateros. You know, the people there a file
that initiative petition for the enactment of franchise tax.
Of course, the Comelec has the power to declare that the
proposition is not within the power of the sanggunian to
enact. So pwede oasadahan ng Comelec. The Comelec
has that power.
So, here, the Supreme Court said that the propositions in
Marmeto's initiative petition are beyond the powers of the
Sangguniang Panlungsod to enact. Because the
creation--yung separate body na pinopropose dun was
actually or the proposal there was for that separate body
to exercise legislative powers. Kasi ang dapat
nagpropropose ng livelihood program na yan ay yung
local legislative bodies. So, according to the Supreme
Court, the creation of a separate local legislative body is
ultra vires.
And the functions of the sector council overlaps with the
functions of the Local Development Council. Under the
local government code, the creation of a local
development council is mandated, composed of NGOs,
peoples organizations. So yung kanilang functions, nag-
ooverlap. And of course as regards the transparency in
the funds, yung pag-gastos ay subject sa monitoring
itong organization ni Marmeto.
So, that is not how local government funds are handled.
And the Supreme Court even cited a provision in the
local government code--Yung fiscal fundamental
principles concerning fiscal matters, that the funds
appropriated by the local government unit, particularly the
sanggunian, must be spent for the public purpose for
which was intended the transparency safeguards which
were transgressed by this proposal.
Kasi imagine that the disbursements, the monitoring of
the spending with respect to these livelihood projects
would be monitored not by the local government unit, but
by the organization of Marmerto. And also in Marmeto,
the Supreme Court said that the lack of budget cannot
defeat the exercise by the people of their power to
initiative.
Kaya ito yung iniinvoke ng mga gustomng gamitin ang
power of initiative to bring back the franchise of ABS
CBN. Magandang debate yun kasi diba under Article VI,
diba the franchise of ABS or other public utilities for that
matter, that partakes of the nature of a private bill right
and according to the Constitution, private bills exclusively
originate from the House of Representatives. Now, may
mga nag propropose na initiative to bring back the
franchise Now they have to reconcile it with this provision
in the Constitution. Now, you those who are arguing in
favor of the power of initiative would argue that the the
power of initiative meaning the power of the people is
more paramount than that limitation in articles VI of the
constitution. But of course, we all know that as a general
rule, we are still a Republican democracy.
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The extent to which direct democracy can be exercised is
circumscribed or limited by law as stated in the
Constitution itself.
So, because it is not a self executing provision of the
Constitution, it requires an enabling law. So, dun palang
diba? and there are others who are saying it would be
impractical the devil Animam bond over that, but I would
tend to agree by citing Marmeto, as an authority, even by
way of analogy, because this applies to a local initiative
whereas, you know, a franchise issue is not a local
initiative, it is a national initiative. Yet the doctrine in
Marmeto, may be (my position is that you may apply by
analogy).
TOPIC: Ultra Vires
Ultra Vires simply means that an act or an ordinance or
any action on the part of the local government unit that
violates the Constitution or existing laws are not within
the powers given to the local government unit. By law,
those acts are ultra vires. So dalawang klase--it could be
a violation, a direct violation of the Constitution or the
laws OR it is beyond or not within the powers given to the
local government unit by law or its charter. Now in that
sense, either way, an act on the part of the local
government unit is ultra vires.
CASE: MERALCO v. City of Muntinlupa
The imposition of franchise tax by a municipality is ultra
vires because municipalities are not empowered by the
local government code to levy or assess franchise tax.
So when an act or an ordinance is ultra vires, it is null
and void.
CASE: CITY OF BATANGAS V. PHILIPPINE SHELL
PETROLEUM CORPORATION
City of Batangas, you still remember the power to
regulate the use of groundwater. When we were studying
the general welfare clause, the Supreme Court said here
that it is an arrogation of the power to regulate the use of
groundwater of the National Water Resources Board. Not
so this is a violation of the water code, hence the
ordinance is ultra vires because it violates a national law.
Again, this can be easily correlated with what we've
learned that because the local legislative bodies are
mere delegates, mere agents of the national government,
the national legislature, so the local government units,
the local legislative bodies, the Sangguinians cannot
enact ordinance that would violate national laws.
CASE: REPUBLIC V. PROVINCIAL GOVERNMENT OF
PALAWAN
Now, this is very important: the extent up to where a
local government unit may assert its jurisdiction and
may exercise its powers? it is only limited to its
territorial jurisdiction. Republic vs Provincial Government
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of Palawan, regarding Malampaya? So when we say
well, in that case, we learned that when we talk about the
territorial jurisdiction of the local government unit, it only
pertains to the landmass right now. Here the Supreme
Court emphasized that the local government units may
only exercise their powers within their respective
territorial jurisdiction beyond the limits of their territorial
jurisdiction, the act is already ultra vires.
Are you aware of the situation between now they actually
know Pateros, Makati and Taguig with respect to BGC.
Now which LGU has territorial jurisdiction over BGC?
Why we should also study by heart how to resolve
boundary issues, boundary disputes between or among
local government units? Why? kasi hanggang saan
pwede i-assert ng local government unit ang jurisdiction
niya--Within that metes and bounds of its territory only.
Now in this case [PALAWAN CASE], may share ba ang
local government unit sa kita sa malampaya? sa oil
exploration, sa mga dealings at nangyayari doon? This
was reiterated in municipality of Isabel, Leyte vs.
Municipality of Merida, Leyte.
Again a local government unit can legitimately
exercise governmental powers only within its
territorial jurisdiction so outside it's ultra vires.
CASE: VILLANUEVA V. CITY OF ILOILO
Now, [VILLANUEVA v. CITY OF ILOILO], here if you will
remember the Supreme Court said hindi ultra vires ang
pag-impose ng tenement tax. It partakes the nature of a
tax on business. It is not a real property tax according to
the Supreme Court. It is rather a tax on business. So, by
leasing these teniments, the local government unit may
impose such tax.
CASE: SAMAHAN NG MGA PROGRESIBONG
KABATAAN V. QUEZON CITY
Now, still remember [SPARK case]. I hope you studied
this in your constitutional law two. Still remember this?
This is important time and this very interesting this has
something to do among others with the right to travel.
Why? Ito yung you curfew ordinances.So, nag-impose ng
curfew ordinances ang Quezon City, Navotas and
Manila, based on pronouncement of the President. So,
dito diniscuss "is the curfew ordinance a violation of the
right to travel with minors?"
So, here for our purpose, we will discuss certain features
of the ordinances particularly of the Manila and Navotas
ordinances. Yung sa QC na-approve. Yung sa Manila
and Navotas, hindi na-approve, because particularly with
respect to the Manila ordinance, nag-impose ng penalty
of fines and imprisonment. If you will read, etong batas ni
Kiko, It does not sanction--there is no penalty of fine and
imprisonment. Intervention yung nandun.
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So the ordinance contradicts the provision of RA9344.
We also mentioned that an ordinance that contradicts the
constitution, that violates the Constitution is also ultra
vires. Not to mention unconstitutional, Right?
So, still remember the strict scrutiny test? I'm sure
you do, right. It's very important. So para madaling
tandaan, dapat may compelling state interest and the
regulation, governmental regulation does not unduly
restrict the rights of individuals. Meaning the means
through which the governmental interest, this compelling
state interest, should be achieved, it must be that which
would cause the least disturbance or limitation on the
rights of individuals.
Here, The Manila and Navotas ordinances, according to
the Supreme Court do not adequately protect
constitutional liberties of minors. So some of the
responses na sinabi, particularly with respect to the
Navotas ordinance, the ordinance does not provide for
any situation wherein the minors can participate in rallies,
in the exercise of their freedom of speech, they're
allowed to go outside now in during curfew hours during
Christmas Eve and Christmas, but not during traditional
religious activities among other things.
So, nacu-curtail na it. Hindi na it yung "least" na means,
which is least restrictive of the rights of individuals. So,
again, we talk about the strict scrutiny test specially when
it applies to a fundamental freedom, the right to travel,
which is a fundamental right now, the according to the
Supreme Court, again, there must be a compelling state
interest and the means employed to achieve that interest
must be the least restrictive.
CASE: HOMEOWNERS ASSOCIATION OF THE
PHILIPPINES, INC. V. MUNICIPAL BOARD OF THE
CITY OF MANILA
executive may exercise in power, but also that a normal
chief executive cannot declare martial law nor suspend
the privilege of the end of habeas corpus KULAYAN v.
TAN decided in 2012. So, that act on the part of the local
chief executive is ultra vires.

Home Owners Association, this pertains to an ordinance

regulating the lease of or the amount of rentals in the city
of Manila during a state of emergency. But the
constitutionality of this ordinance was assailed, because
there was no more emergency. So according to Supreme Topic: Corporate Powers
Court, a law or ordinance affecting the rights of
individuals, as a means to tide over a critical condition, to Section 22. Corporate Powers. -
be valid and legal must be for a definite period of time.
The length of which must be reasonable in relation to the a) Every local government unit, as a corporation,
nature and duration of the crisis it seeks to overcome or shall have the following powers:
surmount. So, kung hindi alam kung kelan matatapos
a. To have continuous succession in its
yung emergency, then that would be, it's not just ultra
corporate name;
vires but also unconstitutional.
b. To sue and be sued;
CASE: KULAYAN V. TAN
c. To have and use a corporate seal;
[KULAYAN CASE] Eto naman, si local chief executive
nag-feeling presidente. Sino lang ba ang pwedeng mag- d. To acquire and convey real or personal
exercices on calling out powers? it's only the president. property;
This is a power that belongs exclusively to the President.
So no other public official, not even a local chief e. To enter into contracts; and

117
 f. To exercise such other powers as are
granted to corporations, subject to the
limitations provided in this Code and
other laws.
b) Local government units may continue using,
modify, or change their existing corporate seals:
Provided, That newly established local government
units or those without corporate seals may create
their own corporate seals which shall be registered
with the Department of the Interior and Local
Government: Provided, further, That any change of
corporate seal shall also be registered as provided
hereon.
c) Unless otherwise provided in this Code, no
contract may be entered into by the local chief
executive in behalf of the local government unit
without prior authorization by the sanggunian
concerned. A legible copy of such contract shall be
posted at a conspicuous place in the provincial capitol
or the city, municipal or barangay hall.
d) Local government units shall enjoy full autonomy
in the exercise of their proprietary functions and in the
limitations provided in this Code and other applicable
laws,
So Sec. 22, sets forth the corporate powers of a local
government unit. So, it has continuous succession in
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its corporate name. That's why every after term, the
local government unit still exists. it's still the same doesn't
change with the transition from one administration to
another. Now because it has a continuous succession in
its corporate name.
So, unless it is changed by law, of course, yung
corporate name ng local government unit. So unless
there's another change is the name of the city of Manila
stays as as the city of Manila regardless kung si mayor
Isko ang naka po dyan or whoever. And here, this is
explicit, now and we will clarify this. Now this very
important, the local government unit may sue and be
sued.
It is very explicit that the local government unit may sue
and can be sued, but it is erroneous to say that in every
instance, there is already consent to be sued. And third
corporate power, to have and use the corporate seal-- to
acquire and convey real or personal property. So
ibigsabhin pala, lahat pwede ibenta? again, with respect
to properties of public dominion, at the risk of being
repetitious, properties of public Dominion [are] beyond
the commerce of man.
So, you know what this entails right? So ano lang ang
cover nito? Patrimonial properties lang and the local
government units may also enter into contracts. And to
exercise such other powers as are grand lead to
corporations, subject to the limitations provided in this
code or in other laws.
Now, regarding seals, just take note of this: So, nasa
kapangyarihan ng local government unit to even change
their seal.
So, just a note saan riniregister ang corporate seal ng
mga local government unit? Sa DILG
Again, with respect to contracts, it must be entered into
by the local chief executive AND it must be with prior
authorization of the sanggunian. So, remember that if
there is no ordinance authorizing the local chief executive
to enter into the contract, so what is that? ultra vires. The
contract is consered ultra vires.
So here goes without saying: full autonomy because of
the principle of local autonomy. Now, what we'll discuss
what we're discussing right now are corporated powers it
must be distinguished from governmental powers. Now,
note that governmental powers pertain to the exercise of
such powers in administering the powers of the state and
promoting public welfare. So when the local government
unit exercises, governmental powers, it acts as an agent
of the national government, now in the discharge of the
powers of the state and the promotion of the public
welfare. Whereas, corporate powers, yung tinatawag na
proprietary powers or acts, they are exercised for the
special benefit and advantage of the community. So, with
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respect to governmental powers, consent is very
important. When asked for corporate powers, various
implied consent. Because again, when local government
unit performs a proprietary act, it descends into the level
of a provate individual
How about officers or agent of the LGUs? Again, you
must distinguish. With respect to governmental powers,
officers or agents acting within official duties are not
liable unless they act and willfully and maliciously so
same principle as state immunity-- Kailangan may bad
faith. Kailangan may malice, Unlike corporate powers,
The officers and agents are liable for negligence or torts
while within the scope of their employment.
Now for governmental powers, yung tinatawag na
Respondeat superior, does not apply.
· So Respondeat superior simply means that the
employer or the superior would be responsible for the
actions of the subordinate when the options are
performed within the scope of their employment.
Whereas, for corporate powers, Respondeat superior,
is applicable.
CASE: FAVIS V. MUNICIPALITY OF SABANGAN,
BONTOC, MOUNTAIN PROVINCE
In [FAVIS CASE], this has something to do with pipes
Favis sued for collection against the local government
unit. But there's a violation of the law, law on bidding.
Pano yun na-deliver na yung pipes. So, are you familiar
with the doctrine of estoppel? The Supreme Court said
estoppel is not applicable, specially here, when the
Contra violates the law and public policy. So, even if
there was already delivery, Supreme Court said, no, the
doctrine of estoppel is not applicable.
Now, So ano ba ang estoppel? There are actually three
kinds of estoppel.Estoppel by deed, Estoppel in Pais and
then what we call laches. So, simply put when the
representations of one party led the other to believe that
such representation is the position of the other party and
then the party who was led to believe that representation
acted based on that representation, then yung
nagrepresent is already bound by such representation.
Dito, pumasok sa kontrata, nag-deliver tuloy yung other
party because of the contract, because they believe the
contract was valid. But there was a law which was
violated. the law on bidding. So, the Supreme Court said
even if there was already delivery, there was already
benefit derived from the performance of the obligation.
Why? because there is a public policy involved here: "If
estoppel would be allowed to apply?" if estoppel
would be allowed to apply even to contracts which
contravene the law or is against public policy, then it
would empower the local government unit to perform an
action or this will authorize the local government unit, to
perform an action which would otherwise be a violation,
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which would otherwise be illegal. So, what can not be
done directly can also not be done indirectly. So, that's a
principle in law. What cannot be done directly, it cannot
be done indirectly.
As far as municipal corporations as far as a contract, it
will not validate a contract which is not within its power to
amend therein or which is or it would not authorize an
otherwise an authorized condition. Even if there was
already a benefit derived from the performance of the
contract.
CASE: PROVINCE OF CEBU V. INTERMEDIATE
APPELLATE COURT
[PROVINCE OF CEBU v. IAC] Now this has something
to do with fees. So there was a donation on the part of
the province of Cebu in favor of the city of Cebu. The vice
governor and three other board members entered into a
deed of donation with the city of Cebu. The governor
assailed the validity of the donation. The province
engaged the services of attorney Pablo Garcia.
Doctrine of Implied Municipal Liability
· So, according to this case, the doctrine of implied
municipal liability has been applied to cases where
money or other property of a party's received under
such circumstances that the general law, independent
 of Express contract implies an obligation upon the
municipality to do justice with respect to the same.
Ano ipinagkaiba nito sa estoppel? because etong
doctrine of implied contract, this is founded on equitable
considerations. So, look here the principle of liability rests
upon the theory that the obligation imposed by law to pay
does not originate in the unlawful contract but arises from
considerations outside it.
The measure of record there is the benefit received by
the municipal corporation. So, dito, Hindi pwede i-set up
ni province yung pagiging ultra vires nung kontrata nila ni
attorney. So, here the Supreme Court said that the
province was estopped. Why? Because here, they are
questioning the authority of the attorney, but here, there
is a presumption in law. That the lawyer is acting under
authority of the litigant.
So, even in your practice in the future, when you enter
your appearance, there is already a presumption that you
are authorized to do so on behalf of the client that you
purportedly represent. As in this case, now, during the
time that attorney Garcia made representations, he was
presumed authorized. He was presumed authorized by
the province and the province did not even repudiate the
representations of attorney Garcia. Then later on, noong
hindi siya nabayaran, nag-file siya ng notice of Lien sa
korete, on attorneys fees, pertaining to his attorneys fees,
biglang ire-repudate ng local government unit.
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So, under the circumstances because there was
presumption of authority, and that presumption was not
negated, then there was valid representation. The action
on the part of Attorney Garcia was not per se unlawful.
Unlike in FAVIS, there was a there was a blatant violation
pertaining to the law on bidding.
So in that case, hindi pwedeng i-apply ang estoppel,
especially if what is involved is a blatant violation of the
law or something which is contrary to public policy. Here,
the actions of the lawyer were not even question before
the lower court. And because of the, representations of
the lawyer, the local government unit was benefited.
Hence, the supreme court applied the doctrine of implied
municipal liability.
So, there is an implied contract because the local
government unit benefited from the action of the lawyer
and the contract is not per se illegal because
representing someone in court representing the local
government unit in a case it's not illegal. Unlike not
following building rules whenever it's applicable then that
is illegal. So, we cannot apply estoppel there. So,
doctrine of implied municipal liability as held in province
of Cebu versus intermediate appellate court
So, the two circles the two cases are not the same. In
FAVIS, the contract was illegally. In PROVINCE OF
CEBU the engagement of or the representations of
attorney Garcia was not illegal or were not in the gun. So,
there was an implied contract and there's an implied
municipal liability to the extent that the local government
unit was benefited by the actions of the lawyer
CASE: MENDOZA V. DE LEON
Now, more on the qualification law pertaining to
governmental acts and proprietary acts of the local
government unit. [MENDOZA v. DE LEON] So the
municipality, according to the Supreme Court, is not
liable for the acts of its officers or agents in the
performance of its governmental functions. The fact that
the governmental functions are performed by the
municipal government does not strip it of being
governmental in character.
So it doesn't negate the governmental nature of the act if
it is performed by the delegate. So, same principle, as in
your concepts in state immunity, a governmental act. The
actions of the officers or agents would not make the
municipality liable.
But if proprietary in nature, yung actions nung officers or
agent, so, such officer is deemed the agent or servant of
the city, but were the act is not in relation to a private or
corporate interest of the municipality but for the benefit of
the public at large, then such acts by the agents and
servants are deemed to be acts by the public or the
officers and for the public benefit.
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So, remember the respondeat superior. The superior or
employer must answer simply for the negligence of
his agent or servant. Remeber this applies to the
exercise of propriety and corporate powers. Do you
still remeMber TORIO v. FONTANILLA, yung yung bario
fiesta na may nagiba na stage, may namatay. Now that,
according to the Supreme Court is a proprietary act, the
holding of a barrio fiesta. That's why the local
government unit can be held civilly liable.
But take note, to create such liability, it is
fundamentally necessary that the act done which is
injurious to others must be within the scope of the
corporate powers as prescribed by the charter or
positive enactment, must not be ultra vires. If the act
is wholly outside the scope of the corporate powers, then
the municipal corporation can in no event be liable to an
action for damages. So, just so happened that the
municipal officer or employee became negligent, but
being performed is within the scope of the powers of the
local government unit, such as the case then the local
government unit may be held civilly liable. If the action is
outside the scope of the powers of the local government
unit and there is negligence then it's just the officer who
should be held liable or the employee who should be held
liable.
CASE: MUNICIPALITY BOARD OF CEBU CITY V.
COURT OF TAX APPEALS
[MUNICIPALITY BOARD OF CEBU] This something to
do with the claim for exemption, which were which was
reverse. The city of Cebu denied the claim for claims for
exemption but the Board of Assessment Appeals
reversed. So, the Supreme Court said that the city of
Cebu may file the appeal because it has the capacity to
sue and be sued in accordance with its charter.
CASE: VIUDA DE TAN TOCO V. THE MUNICIPAL
COUNCIL OF ILOILO
[TAN TOCO CASE] Viuda de Tan Toco with respect to
execution of judgments and properties of the local
government units. Remember, if the property is for public
use, it is exempt from execution, from garnishment. It
cannot be levied on execution. But if the property is being
held by the municipality, by the municipal corporation, or
quasi private purposes then it may be the subject of
execution. But the mere fact that corporate property held
for public use is being temporarily used for private
purposes does not make it subject to execution.
CASE: CITY OF MANILA V. INTERMEDIATE
APPELLATE COURT
Now, in the case of [CITY OF MANILA v. IAC] again the
Supreme Court emphasized that the city of Manila is a
political body corporate. It may sue and be sued. It may
123
enter into a contract. It also emphasize the dual
personality of a local government unit. Again it may
exercise both governmental and private body or
corporate powers.
CASE: RABUCO V. VILLEGAS
Now, in [RABUCO v. VILLEGAS] I hope you still
remember a Rabuco has something to do with the
attempted on the part of the city may or to demolish
houses now in an area which was declared communal
property. So, here the Supreme Court emphasize that if
the property was not acquired by the local government
unit using its own funds, then it follows that the property
is just being held by the local government unit in trust for
the state. So, it doesn't matter if the property is being
used for governmental or proprietary purposes. So, if it is
shown that the local government unit acquired the
property using its own funds, then the local government
unit may claim that it is its own property, but in this case
of Rabuco, such was not the case. So, in the absence of
proof that the property was acquired by the local
government union, using its own funds, then the city of
Manila was deem to be holding such property in trust for
the state.
CASE: ALFONSO V. PASAY CITY
Now, in [ALFONSO v. PASAY CITY], this involves a
property covered by a torens title but, the action of the
municipal government encroached the property to be
used as a park without payment of just compensation. So
because it was already covered by a Torens title in favor
of Alfonso, it can no longer be acquired through
presciption.
So, the only relief there is, because restoration, meaning
to return, to convey, the property is no longer process
possible; because it was already being used for road
purposes, then the only remedy left for the for the private
owner is the payment of just compensation. At medyo
matagal na nga. Matagal na ang 1960s and 1925 banner
adpa nagkaroon ng payment.
CASE: MUNICIPALITY OF PAOAY, ILOCOS NORTE V.
MANAOIS
[MUNICIPALIT OF PAOAY] have something to do with
fishing the local government unit, the municipality of
Paoay, lost in a case did not satisfy the judgment, So, the
winning party resorted to the execution of fishery. Yet,
under the law, at least the law prevailing and the time of
the case, the fishery was only held by the local
government unit for benefit or on behalf of the state. So,
the state only granted the local government unit of paoay,
the use of the fishery. It did not have absolute ownership
over the fisherie, hence, it was not subject to execution.
So what I reproduced here, sub portion of the decision
pertaining to the observation of the Supreme Court. Eh
kasi naman hindi niyo sinatisfy yung judgment. Hindi
124
sana tayo aabot sa ganito. Had municipality of Paoay
satisfied the judgment of the court. Syempre the winning
party would look for properties would find ways to satisfy
the judgment. As such, they requested for the court to
serve a writ of execution to the municipality. Although the
supreme court said no, hindi pwede, but naiintindihan
namin kayo. So, here the Supreme Court said it has the
policy of protecting the properties of the municipality for
public use, but by all means, if the property is not subject
to public use then execute. Meaning, you may levy the
said property to satisfy your judgment. You may attach
the property and sell it on execution to satisfy the
judgement.
CASE: OLONGAPO ELECTRIC LIGHT & POWER
CORPORATION V. NATIONAL POWER
CORPORATION
[OLONGAPO ELECTRIC CASE] Eto kasi, una, kausap ni
Olongapo, NAPOCOR, then later on si local government
unit na nakikipag usap sa NAPOCOR to operate power
distribution entity because the supreme court said a
municipal corporation is not prevented from constructing
and operating a competing plant. Although a franchise
had been granted to a private company for a similar
public utility, as long as the franchise is not expensive.
Remember under the Constitution, there can there is no
such thing as an exclusive franchise. If you read the case
of [TAWANG MULTI PURPOSE COOPERAVITE v. LA
TRINIDAD WATER DISTRICT] And also there's a similar
case [PLDT v. CITY OF DAVAO] Pertaining to the
operation naman of a telephone company. So the
Supreme Court said that the local government unit
cannot be barred from allowing another player to operate
a telephone company, to promote the general welfare of
the people.

125

TWELFTH MEETING: DECEMBER 4,
2021
December 4, 2021 Meeting
Section 118. Jurisdictional Responsibility for Settlement
of Boundary Dispute. - Boundary disputes between and
among local government units shall, as much as
possible, be settled amicably. To this end:
(a) Boundary disputes involving two (2) or more
barangays in the same city or municipality shall be
referred for settlement to the sangguniang panlungsod
or sangguniang bayan concerned.
(b) Boundary disputes involving two (2) or more
municipalities within the same province shall be referred
for settlement to the sangguniang panlalawigan
concerned.
(c) Boundary disputes involving municipalities or
component cities of different provinces shall be jointly
referred for settlement to the sanggunians of the
province concerned.
(d) Boundary disputes involving a component city or
municipality on the one hand and a highly urbanized city
126
on the other, or two (2) or more highly urbanized cities,
shall be jointly referred for settlement to the respective
sanggunians of the parties.
(e) In the event the sanggunian fails to effect an
amicable settlement within sixty (60) days from the date
the dispute was referred thereto, it shall issue a
certification to that effect. Thereafter, the dispute shall
be formally tried by the sanggunian concerned which
shall decide the issue within sixty (60) days from the
date of the certification referred to above.
QUESTION (Q): Paano kung may boundary [sic]
dispute ang mga local government units?
ATTY. ISMAEL SARANGAYA, JR. (ISJ): Boundary
disputes involving two or more barangays in the same
city or municipality shall be referred for settlement to the
sangguniang panlungsod or bayan concerned.
Kapag dalawang barangay, so for instance, Barangay
mga number sa Manila. Kunwari lang, Brgy. [sic] 23 at
Brgy. [sic] 24 ng Manila. So, irerefer sila sa
Sangguniang Panlungsod ng Maynila.
ISJ: Boundary disputes involving [sic] two or more
municipalities shall be referred for settlement to the
Sangguniang Panlalawigan concerned. So, if the
municipalities are within the same province, then the
Sanggunian of that province.
 If the municipalities are in the jurisdiction of two different
provinces, then those Sangguinians would be at fault.
For municipalities or component cities of different
provinces, there is a joint referral for settlement to the
Sanggunian of the provinces concerned.
Q: How about [sic] on boundary disputes involving a
component city or a municipality on one hand and highly
urbanized city on the other? Or two highly urbanized
cities? [sic].
ISJ: They shall be jointly referred for settlement to the
respective Sanggunians of the parties. So, its not the
province but the Sanggunians of the parties.
DISCUSSION (DISC): So, in the event the sanggunian
fails to effect an amicable settlement within sixty (60)
days from the date the dispute was referred thereto,
there is a certification to that effect. Meaning, there was
no amicable settlement. The Sanggunians will issue the
certification.
Now, what happens if there is no amicable settlement,
then the dispute shall be formally tried by the
Sanggunian concerned. So, there’s a period for that.
127
So, the decision must be made within sixty (60) days
from the date of the certification.
Q: Pwede po bang umapela?
ISJ: Shhyempre. *tawa si Heather* So within the time
and manner prescribed by the Rules of Court – so you
will have to correlate this with Rule 40 (i.e. Appeal From
Municipal Trial Courts to the Regional Trial Courts.) of
the Rules of Court. But it may probably be too early/new
for you at this particular juncture but just brush up dahil
mayroon tayong tinatawag na Ordinary Appeal at
Record on Appeal.
Q: So, Rule 40. Paano po ba mag appeal?
ISJ: So, ang gagawin niyo po diyan, may notice of
appeal na ififile kayo doon sa Sanggunian na nag issue
nung ruling. So kapag ganoon, susunod sa rules on
Ordinary Appeal with the Regional Trial Court. So just
read Rule 40 of the Rules of Court.
DISC: Now, any party may elevate the concern
following the Rules of Court to the Regional Trial Court
having jurisdiction over the area in dispute.
Q: So, within what period should the trial court decide
the appeal?
 ISJ: Within one (1) year from the filing of the case. So, if
is by way of ordinary appeal by notice of appeal, it must
be reckoned from the filling of notice of appeal.
DISC: So, pending final resolution of the disputed area,
prior to the dispute shall be maintained and continue for
all legal purposes. So, under Article 18 of the IRR,
pending resolution of the dispute, the status quo should
be maintained. But there is this approach later on
wherein the taxes na pinagtatalunan kanino dapat
bayaran yung buwis, the Supreme Court said the
amount must be placed in an escrow. So parang, there
is this approach which seems not in keeping with the
IRR. So, because kapag status quo, yung manner na di
pa na reresolve, status quo yung mamaintain mo but
yun yung ruling ng Supreme Court and we will touch
that in a bit.
Now, for the IRR, please read Article 17 of the IRR of
the Local Government Code because nandoon yung
mga documentary requirements at [sic] yung specifics
ng procedure.
Q: So, how does the party concerned file the case?
ISJ: The Sanggunian concerned may initiate the action
by filing a petition before the Sanggunian concerned.
DISC: So, the contents of the petition, the documents
that must accompany the petition: the duly
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authenticated copy of the law or statute creating the
LGU; the provincial, city, municipal or barangay map
duly certified by the LMB; the technical description of
the boundaries of the LGUs concerned; the written
certification of the provincial, city or municipal assessor
as to the territorial jurisdiction over the disputed area;
written declaration or sworn statements of the people
residing in the disputed area; and such other documents
or information as may be required by the Sanggunian
hearing the dispute.
Kaya mahalaga yung eelect natin na mga member sa
Sanggunian whether board members yan or councilors,
they must have a working knowledge of the Local
Government Code.
Now, what happens next, the adverse party will file an
answer within fifteen (15) working days from receipt of
the documents. Then, there will be a hearing within five
(5) working days after receipt of the answer. So, the
Sanggunian shall hear the case and allow the party to
present their respective pieces of evidence.
So, for two or more Sanggunians, there will be a joint
hearing. They will sit en banc or designate their
respective representatives. So, where representatives
are designated, there must be equal number of
representatives for each Sanggunian. They shall elect
among themselves a Presiding Officer and a Secretary.
 So, in case of disagreement, syempre may away patalo,
the selection shall be by drawing lots.
So, if there is failure to settle within the allotted time
frame – within sixty (60) days from the date of referral of
the dispute – shall issue certification to that effect and
copies thereof shall be furnished to the parties
concerned. So, within 60 days from the date of the
certification, the dispute shall be formally tried and
decided by the Sanggunian concerned. So, copies of
the decision shall – within 15 days from promulgation –
be furnished to the parties concerned: DILG; local
assessor; COMELEC; and other NGAs concerned.
So, again what we have mentioned earlier, yung appeal.
There is an additional statement here: Decisions on
boundary disputes promulgated jointly by two (2) or
more sangguniang panlalawigans shall be heard by the
Regional Trial Court of the province which first took
cognizance of the dispute. For example, dalawang
probinsya, pwedeng sa RTC ng magkabilang panig
[sic]; kung sinong mauna ng mag take ng jurisdiction.
In the case of SN Aboitiz Power -Magat, Inc. vs.
Municipality of Alfonso Lista, here this involves dispute
between Alfonso Lista and the Municipality of Ramon in
Isabela – two provinces, Ifugao and Isabela. Here,
according to the Supreme Court, the territorial claim of
the municipality cannot be resolved in an action for
nullification of title nor in an action to amend title. So,
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there must be a proper case filled *choppy yung net:
unsure* properly referred to the Sanggunian concerned.
Here, there are two municipalities in two different
provinces so the provinces of Isabela and Ifugao should
take cognizance of the dispute. It cannot be resolved in
an action for nullification of title or in an action to amend
title.
In Municipality of Pateros vs. CA [sic], concerning Fort
Bonifacio, during the time the dispute between Makati
and Pateros, Makati was then [sic] a municipality and
since there was no Sangguniang Panlalawigan that can
take cognizance of the boundary dispute – the
provisions of Section 118 (b), (c), or (d) could not be
applied. Moreover [sic], yung dating Metro Manila
Authority also cannot take cognizance of the dispute
because it was not a province, it had no sangguniang
panlalawigan. So, the LGC was silent as to the
governing body in charge of boundary disputes covering
municipalities located in Metro Manila.
But subsequently, Makati became a highly urbanized
city. So, the parties should follow Section 118 (d) of the
Local Government Code and should opt to act amicably
settle the dispute. Then this became imperative
because after all, attempt have been made earlier to
settle the dispute under the aegis of the Local
Government Code. Then, in the event that there is no
amicable settlement, then a certification should have
been issued and the dispute should be formally tried by
 the Sanggunian concerned within 60 days from the
issuance of the certification.
So, this problem – according to the Supreme Court –
would have been resolved had Congress enacted a law
to properly define the territorial jurisdiction of the LGUs
(i.e. Makati and Pateros).
So, remember, while the Sanggunian may resolve the
dispute but ultimately, Congress by virtue of *nag lag
internet* the territorial boundaries of the local
government units concerned.
In the Municipality of Sta. Fe vs. Municipality of Aritao,
the [sic] Supreme Court highlighted the power of the
Sangguniang Panlalawigan as the primary tribunal
responsible. So, to reiterate, if [sic] there is no
settlement then a certification will be issued and then
the matter will be formally tried and decided. So, having
said that, the immediate resort to the jurisdiction of the
RTC would be improper.
Q: What happens when immediately the RTC when it is
first cognizable by the concerned Sanggunian?
ISJ: There is failure to exhaust administrative remedies.
DISC: So, in this particular case (Municipality of Sta. Fe
vs. Municipality of Aritao), the Supreme Court said that
130
the RTC correctly dismissed the case for lack of
jurisdiction because the matter must be first referred to
the appropriate Sanggunian.
In Municipality of Kananga vs. Madrona [sic], what’s
involved here ay isang municipality at independent
component city. Kung mapapansin niyo, under Section
118 of the Local Government Code, there is no mention
of independent component city. So, because that is the
situation - a municipality vs. an independent component
city – then Section 118 would not apply.
Q: So, what will happen then? Can the dispute be
immediately filed with the RTC?
ISJ: The answer is yes. Why? Because of the provisions
of Batas Pambansa Blg. 129 that you will encounter
later on. Although, there had been [sic] amendments
already as regards to the jurisdiction of the RTC and
first level courts. Nonetheless, you will encounter this
when you study Civil Procedure as regards to
jurisdiction of courts.
DISC: So, remember, RTCs, they have exclusive
original jurisdiction in all cases not within the exclusive
jurisdiction of any court, tribunal, person or body –
judicial or quasi-judicial functions. So, there is no law
governing the matter pertaining to the settlement of
 boundaries between a municipality and an independent
component city. So, yung jurisdiction dito is lodged with
the RTC in [sic] exercise of its general jurisdiction. In
fact, according to the Supreme Court, it is an exclusive
jurisdiction. It cannot be shared with other courts or
tribunal. So, please remember this case: Municipality of
Kananga vs. Madrona.
So again, boundary dispute, nag aaway Cainta at Pasig
(Municipality of Cainta, Rizal vs. Spouses Braña and
City of Pasig). Saan dapat mag bayad ng real estate
tax? Matagal na nagbabayad yung spouses sa Cainta
but from what appears sa technical description of the
TCTs, mukhang yung properties are located in Pasig.
So, since the matter is already being tried by the courts,
it would be the best judgment [sic] to vest the [sic]
tribunal to determine which one should have jurisdiction.
Yet, of course since the payment of real estate tax is
mandatory then the obligation should continue. But
again, that begs the question: where to pay the real
estate tax, Pasig or Cainta?
So, according to the Supreme Court, it would be more
prudent to avoid any further animosity between the two
local government units. So, Spouses Braña were
ordered to deposit the succeeding payment of real
estate taxes due on the properties - in an account with
the Land Bank of the Philippines - in escrow for the city
of Pasig/Municipality [sic] of Cainta. Meaning kung
sinong manalo, later on because its in escrow, pwedeng
131
iwithdraw yun ng winning party. Being held in escrow.
So, kung sinong manalo, siya ang magkakamit ng
payment ng real estate tax.
But, as you know, again, I would like to highlight Article
18 as well as that last sentence in Section 119 of the
Local Government Code that the status quo must be
maintained. So, if we will follow those provisions then
payment should have been made to Cainta since that
was the status quo. Yet, here the Supreme Court is the
ultimate interpreter of our laws. So it is rather not clear
whether this is just an ad hoc basis but at least on this
particular dispute, the Supreme Court ordered the
payment of the real estate tax to a bank in an escrow
account.
In Municipality of [sic] Bakun vs. Municipality of [sic]
Sugpon, this has something to do with the technicalities
of appeal under Rule 40. So, sabi ng Municipality of [sic]
Bakun, di naman tama yung ginawa mong pag appeal
sabi niya sa Municipality of [sic] Sugpon because the
Notice of Appeal was filled by an improper party. It was
filed before the joint Sanggunian which rendered the
Resolution. It was just filed with one of the provinces –
sa province of Benguet. Eh dalawang provinces yan
and then the proper party to appeal the joint resolution
should have been the Municipality of Sugpon and
Bakun was not served a copy of the Notice of Appeal
and there was also no evidence of payment of docket
fees. So, in short, the requirements of Rule 40 of the
 Revised Rules of Court were not followed according to
Bakun.
But the Supreme Court said that the appeal should be
given due course because (1) the notice of appeal was
valid on its face; then the issue pertaining to the filling of
the notice of appeal – kasi yung notice of appeal, you
will learn, it is filed with the court or tribunal which
rendered the judgment. Hindi doon sa korte kung saan
mo iaangat because the procedure would be for the
court or tribunal which rendered the judgment to elevate
the records later on to the appellate court or tribunal.
So, in this case, if its an ordinary appeal, then the notice
of appeal should have been filed with the tribunal which
rendered the judgment of the petition or resolution. But
in this case, this is an ad hoc committee. The two
Sanggunians of the two provinces defunct na kasi they
have done their jobs. So, according to the Supreme
Court, dahil defunct na yan, it was already procedurally
sufficient for the appealing party to file the notice of
appeal with province of Benguet.
Paano po yon, mukhang hindi na furnishan yung
Municipality of Bakun? Pero nasabi naman na
nafurnishan naman sila ng records and documents and
they were able to even file a motion to dismiss the
appeal. So, if you will play that decision ultimately, the
Supreme Court itemized why the rule should be relaxed.
So, we have a doctrine in Remedial Law that rules of
132
procedure are mere tools designed to facilitate the
attainment of justice. So, the doctrine of liberality in the
interpretation of procedural rules so yun yung iapply dito
specially since this involves boundary disputes. So, this
is imbued with public interest.
Here, in [sic] Barangay Sangalang vs. Barangay
Maguihan, you are wondering whether barangays are
fighting for their own boundaries then the answer would
be yes. Kahit mga barangays nag aaway. Syempre
maraming perks na mas malaki teritoryo mo, mas
marami kang masasakupan.
So, here, the Supreme Court said that the parties did
not really satisfy the documentary requirements
required under the IRR. Now, the Supreme Court was
left with no option but to weigh which between the two
parties presented the weightier evidence. So, dito, ang
magandang desisyon dito pertains to the probative
value of the documents from the Tax Assessor’s Office
vis-à-vis the Land Management Bureau.
The Supreme Court said that the documents coming
from the Land Management Bureau should be given
credence vis-à-vis documents coming from the Tax
Assessor’s Office.
Q: Why?
 ISJ: Because the Land Management Bureau is the
principal government agency tasked with the survey
plans. Hence, the documents coming from the Land
Management Bureau should be given more weight.
DISC: So as between a geodetic engineer and a tax
assessor, the conclusion that findings of the geodetic
engineer would bear more weight than that of a tax
assessor. So, the job of provincial and municipal
assessor would be to assess taxes and not survey of
lands.
In Calanza vs. PICOP [sic], this again highlights the
importance of knowing where to refer the dispute.
Because here, the Supreme Court said that the RTC
cannot exercise appellate jurisdiction over the case
since there was no petition that was filed and decided
by the Sangguniang Panlalawigan of the two provinces
involved.
So, again the Sanggunians were applicable. Yung
Kananga case [sic] is an exceptional case because the
situation there was different. Generally, if there is a
Sanggunian, refer the matter to the Sanggunian first. A
direct resort to the RTC in matters involving boundary
disputes would be improper. Madidismiss lang ang kaso
for lack of jurisdiction and if you know your Local
Government Code (???), parties then that is a proper
motion, motion to dismiss based on lack of jurisdiction
over the subject matter.
133
Cainta nanaman (Municipality of Cainta vs City of
Pasig). So, again, dahil pertains to the same case.
Mayroon silang pending case sa RTC Antipolo, so any
evidence pertaining to the territorial jurisdiction of Cainta
must be properly raised before the trial court. Without
the adjudication of the court where the dispute is
pending, these documents cannot automatically effect a
modification or amendment of the TCTs for purposes of
tax compliance. If there is a dispute, then the
adjudication/the decision of the appropriate court must
be awaited first. Hindi lang base sa claim na ito
mayroon kaming mga map dapat sa amin bayaran yung
tax. Dapat antayin muna yung resolusyon ng korte.
So, under the IRR, the status of the affected area prior
to the dispute shall be maintained – yung maintenance
ng status quo. So, kung saan nagbabayad ng tax for the
longest time, dapat doon muna dahil yun ang status
quo. But again, in the earlier case [sic], there the
Supreme Court made a directive pay the real estate tax
to an escrow account.
Now, mayroon po bang forum shopping or litis
pendencia or bar by pending litigation, ma eencounter
niyo to when you study Civil Procedure. This is a
concept which is usually discussed in your Civil
Procedure because this is somewhat relevant.
Q: So, will a tax collection case be barred by the
pendency of boundary dispute?
 ISJ: So, according to the Supreme Court, hindi. Kasi, for
your advance info, there are requisites to determine
whether there is forum shopping or litis pendencia or
barred by pending litigation: (1) identity of the parties or
atleast such parties represent the same interests in both
actions; (2) identity of rights asserted and relief prayed
for, the relief being found on the same facts; and (3) the
identity on the two preceding particulars should be such
that any judgment which may be rendered on the other
action will, regardless of which party is successful,
amount to res adjudicata in the action under
consideration or barred to prior judgment.

So, tandan niyo na yung concept na yan na litis

pendencia or forum shopping. So mayroon bang forum
shopping dito or litis pendencia? The answer is no
because sab inga that Uniwide was not a party to the
boundary dispute.

Dahil ang parties doon yung dalawang local government

units, Cainta and Pasig and the causes of action there,
the rights being invoked are different. Because in the
boundary dispute, ang iniinvoke dito, yung karapatan ng
local government units whereas in the second case, this
is collection of taxes. So, any judgment there would not
amount to res judicata, it would not be barred to prior
judgment. So, the tax collection case should still
proceed despite the pendency of the boundary dispute
case before RTC Antipolo. There is no forum shopping
or litis pendencia there.

134
THIRTEENTH MEETING: DEC. 10, 2021
VACANCIES AND SUCCESSION
Sec. 44 to 47
Section 44. Permanent Vacancies in the Offices of
the Governor, Vice-Governor, Mayor, and Vice-Mayor.
- For purposes of this Chapter, a permanent vacancy
If a permanent vacancy occurs in the office of the
governor or mayor, the vice-governor or vice-mayor
concerned shall become the governor or mayor. If a
permanent vacancy occurs in the offices of the governor,
vice-governor, mayor, or vice-mayor, the highest ranking
sanggunian member or, in case of his permanent
inability, the second highest ranking sanggunian
member, shall become the governor, vice-governor,
mayor or vice-mayor, as the case may be. Subsequent
vacancies in the said office shall be filled automatically
by the other sanggunian members according to their
ranking as defined herein.
(b) If a permanent vacancy occurs in the office of the
punong barangay, the highest ranking sanggunian
barangay member or, in case of his permanent inability,
the second highest ranking sanggunian member, shall
become the punong barangay.
135
(c) A tie between or among the highest ranking
sanggunian members shall be resolved by the drawing of
lots.
(d) The successors as defined herein shall serve only the
unexpired terms of their predecessors.
arises when an elective local official fills a higher vacant
office, refuses to assume office, fails to qualify, dies, is
removed from office, voluntarily resigns, or is otherwise
permanently incapacitated to discharge the functions of
his office.
For purposes of succession as provided in the Chapter,
ranking in the sanggunian shall be determined on the
basis of the proportion of votes obtained by each winning
candidate to the total number of registered voters in each
district in the immediately preceding local election.
Atty. Sarangaya: In case of permanent vacancy, inability
of the officials, this talks about who will occupy the
position. The subsequent vacancies shall be
automatically filled in accordance with the rankings.
As far as the punong barangay is concerned, it is the
highest ranking sanggunian barangay member.
If there is a tie, meaning the same ranking, there will be
draw lots. The successor shall only serve the unexpired
terms of the predecessors.
When does a permanent vacancy arise?
There is a permanent vacancy when an elective local
official fills a higher vacant office; when the elective local
office refuses to assume office, fails to qualify or is
removed from office, voluntarily resigns, or is otherwise
permanently incapacitated to discharge the functions of
his office.
Section 45. Permanent Vacancies in the Sanggunian.
- certificate of membership of the appointee from the
(a) Permanent vacancies in the sanggunian where
automatic succession provided above do not apply shall
be filled by appointment in the following manner:
(1) The President, through the Executive Secretary, in
the case of the sangguniang panlalawigan and the
sangguniang panlungsod of highly urbanized cities and
independent component cities;
(2) The governor, in the case of the sangguniang
panlungsod of component cities and the sangguniang
bayan;
136
(3) The city or municipal mayor, in the case of
sangguniang barangay, upon recommendation of the
sangguniang barangay concerned.
(b) Except for the sangguniang barangay, only the
nominee of the political party under which the
sanggunian member concerned had been elected and
whose elevation to the position next higher in rank
created the last vacancy in the sanggunian shall be
appointed in the manner hereinabove provided. The
appointee shall come from the same political party as
that of the sanggunian member who caused the vacancy
and shall serve the unexpired term of the vacant office. In
the appointment herein mentioned, a nomination and a
highest official of the political party concerned are
conditions sine qua non, and any appointment without
such nomination and certification shall be null and void
ab initio and shall be a ground for administrative action
against the official responsible therefore.
(c) In case or permanent vacancy is caused by a
sanggunian member who does not belong to any political
party, the local chief executive shall, upon
recommendation of the sanggunian concerned, appoint a
qualified person to fill the vacancy.
(d) In case of vacancy in the representation of the youth
and the barangay in the sanggunian, said vacancy shall
be filled automatically by the official next in rank of the
organization concerned.
Note: If the automatic succession does not apply, it shall
be filled by appointment. (Please take note of Sec. 45(b)
as it may be a source of questions)
Section 46. Temporary Vacancy in the Office of the
Local Chief Executive. -
(a) When the governor, city or municipal mayor, or
punong barangay is temporarily incapacitated to perform
his duties for physical or legal reasons such as, but not
limited to, leave of absence, travel abroad, and
suspension from office, the vice-governor, city or
municipal vice-mayor, or the highest ranking
sangguniang barangay member shall automatically
exercise the powers and perform the duties and
functions of the local chief executive concerned, except
the power to appoint, suspend, or dismiss employees
which can only be exercised if the period of temporary
incapacity exceeds thirty (30) working days.
(b) Said temporary incapacity shall terminate upon
submission to the appropriate sanggunian of a written
declaration by the local chief executive concerned that
he has reported back to office. In cases where the
137
temporary incapacity is due to legal causes, the local
chief executive concerned shall also submit necessary
documents showing that said legal causes no longer
exist.
(c) When the incumbent local chief executive is traveling
within the country but outside his territorial jurisdiction for
a period not exceeding three (3) consecutive days, he
may designate in writing the officer-in-charge of the said
office. Such authorization shall specify the powers and
functions that the local official concerned shall exercise in
the absence of the local chief executive except the power
to appoint, suspend, or dismiss employees.
Atty Sarangaya: It appears that the local chief executive
has the prerogative to designate an official who would
assume the official other than the voe gov, vice mayor, or
highest-ranking member of the Sangguniang
pambarangay.
You can connect subsection C with subsection E.
It appears that under subsection C, subsection C does
not mention with particularity the vice governor, the vice
mayor, the highest member of the Sangguniang
barangay as the officer in charge. If the absence is within
the three days, meaning there are two conditions:
traveling within the country, but outside the territorial
jurisdiction, it appears that the local chief executive has
the prerogative to choose any official.
(d) In the event, however, that the local chief executive
concerned fails or refuses to issue such authorization,
the vice-governor, the city or municipal vice-mayor, or
the highest ranking sangguniang barangay member, as
the case may be, shall have the right to assume the
powers, duties, and functions of the said office on the
fourth (4th) day of absence of the said local chief
executive, subject to the limitations provided in
subsection (c) hereof.
(e) Except as provided above, the local chief executive
shall in no case authorize any local official to assume the
powers, duties, and functions of the office, other than the
vice-governor, the city or municipal vice-mayor, or the
highest ranking sangguniang barangay member, as the
case may be.
Note: Subsection C could be an exception to subsection
E.
Section 47. Approval of Leaves of Absence. -
(a) Leaves of absence of local elective officials shall be
approved as follows:
138
(1) Leaves of absence of the governor and the mayor of
a highly urbanized city or an independent component city
shall be approved by the President or his duly authorized
representative;
(2) Leaves of absence of vice-governor or a city or
municipal vice-mayor shall be approved by the local chief
executive concerned: Provided, That the leaves of
absence of the members of the sanggunian and its
employees shall be approved by the vice-governor or city
or municipal vice-mayor concerned;
(3) Leaves of absence of the component city or municipal
mayor shall be approved by the governor; and
(4) Leaves of absence of a punong barangay shall be
approved by the city or municipal mayor: Provided, That
leaves of absence of sangguniang barangay members
shall be approved by the punong barangay.
(b) Whenever the application for leave of absence
hereinabove specified is not acted upon within five (5)
working days after receipt thereof, the application for
leave of absence shall be deemed approved.
Section 82. Resignation of Elective Local Officials. -
(a) Resignations by elective local officials shall be
deemed effective only upon acceptance by the following
authorities:
(1) The President, in the case of governors, vice-
governors, and mayors and vice-mayors of highly
urbanized cities and independent component cities;
(2) The governor, in the case of municipal mayors,
municipal vice-mayors, city mayors and city vice-mayors
of component cities;
(3) The sanggunian concerned, in the case of
sanggunian members; and
(4) The city or municipal mayor, in the case of barangay
officials.
(b) Copies of the resignation letters of elective local
officials, together with the action taken by the aforesaid
authorities, shall be furnished the Department of the
Interior and Local Government.
(c) The resignation shall be deemed accepted if not
acted upon by the authority concerned within fifteen (15)
days from receipt thereof.
(d) Irrevocable resignations by sanggunian members
shall be deemed accepted upon presentation before an
139
open session of the sanggunian concerned and duly
entered in its records: Provided, however, That this
subsection does not apply to sanggunian members who
are subject to recall elections or to cases where existing
laws prescribed the manner of acting upon such
resignations.
DAMASEN VS. TUMAMAO
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 the party
representation as willed by the people in the election.
Since the permanent vacancy in the Sanggunian
occurred because of the elevation of the LDP member
Alonzo to vice-mayor, it follows that the person to
succeed her should also belong to the LDP so as to
preserve party representation. Thus, the Supreme Court
did not countenance Damasen's insistence in clinging to
an appointment when he is in fact not a bona fide
member of the LDP.
While the revocation of the nomination given to Damasen
came after the fact of his appointment, this Court cannot
rule in his favor, because the very first requirement of
Sec. 45 (b) is that the appointee must come from the
politically party as that of the Sanggunian member who
caused the vacancy. To stress, Damasen is not a bona
fide member of the LDP.
In addition, appointing Damasen would not serve the will
of the electorate. He himself admits that he was
previously a member of the Lakas-CMD, and that he ran
for the position of Mayor under the said party in the May
2004 Elections. Likewise, he did not resign from the said
party when he joined LDP, and even admitted that his
joining the LDP was because of party ideals, but because
he just wanted to.
How can the will of the electorate be best served, given
the foregoing admissions of Damasen? If this Court were
to grant herein petition, it would effectively diminish the
party representation of the LDP in the Sangguinan, as
Damasen would still be considered a member of the
Lakas-CMD, not having resigned therefrom, a scenario
that defeats the purpose of the law, and that ultimately
runs contrary the ratio of Navarro.
NAVARRO VS. COURT OF APPEALS
The "last vacancy" in the Sanggunian refers to that
created by the elevation of the member formerly
occupying the next higher in rank which in turn also had
become vacant by any of the causes already
enumerated. The term "last vacancy" is thus used in Sec.
45(b) to differentiate it from the other vacancy previously
140
created The term by no means refers to the vacancy in
the No. 8 position which occurred with the election of
Rolando Lalas to the seventh position in the Sanggunian.
Such construction will result in absurdity.
FARINAS VS. BARBA
Since the vacancy in this case was created by a
Sangguniang member who did not belong to any political
party, the specific provision involved is par. (c) of Sec. 45
of the Local Government Code.
But who is the "local chief executive" referred? And which
is the "Sangguniang concerned"?
With respect to the first, petitioners look to Sec. 45(a) for
the answer and say that it is the governor, with respect to
vacancies in the Sangguniang Panlungsod of component
cities and Sangguniang Bayan, or the mayor with respect
to vacancies in the Sangguniang Barangay.
Reference to Secs. 50 and 63 provisions is appropriate
not for the reason advacncced by petitioners, i.e., that the
power to appoint implies the power to remove, but
because implicit in these provisions is a policy to vest in
the President, governor, and the mayor in descending
order the exercise of an executive power whether to point
in order to fill vacancies in local officials.
For then there would never be any occasion when the
mayor, under this provision, can appoint a replacement
for a member of the Sangguniang Bayan who for one
reason or another ceases from office for reason other
than the expiration of his term. And why should a
vacancy in the Sangguniang Panlalawigan be filled by a
different authority (the governor, according to this view)
simply because the vacancy was created by a member
who does not belong to a political party when, according
to Sec. 45(a)(1), a vacancy created by a member who
belongs to a political party must be filled by appointment
by the President of the Philippines?
With reference to the phrase "sanggunian concerned" in
Sec. 45(c), petitioners say it means, with respect to a
vacancy in the Sangguniang Bayan, the Sangguniang
Panlalawigan.
Their reason is that under Sec. 61 of the Code, the power
to investigate complaints against elective municipal
officials is vested in the Sangguniang Panlalawigan. This
interpretation is inconsistent with the fact that in filling
vacancies in the Sangguniang Barangay it is the
Sangguniang Barangay which under Sec. 45(a)(3)
recommends the appointee, not the Sangguniang
Panlungsod or the Sangguniang Bayan, which would be
the case if petitioners' view were to prevail.
141
We think that the phrase "sanggunian concerned" in Sec.
45(c) should more properly be understood as referring to
the Sanggunian in which the vacancy is created. This is
in keeping with the policy implicit in Sec. 45(a)(3). In
other words, with the exception of the Sangguniang
Barangay pars. (a) and (b) must be read as providing for
the filling of vacancies in the various Sanggunians when
these vacancies are created as a result of the cessation
from office (other than expiration of term) of members
who belong to political parties.
On the other hand, Sec. 45 (c) must be understood as
providing for the filling of vacancies created by members
who do not belong to any political party.
There is only one rule governing appointments to the
Sanggunian Barangay. Any vacancy therein caused by
the cessation from office of a member must be made by
the mayor upon the recommendation of that Sanggunian.
The reason is that members of the Sangguniang
Barangay are not allowed to have party affiliations.
These provisions are in pari materia with Sec. 45. To be
sure the President of the Philippines can not be referred
to as "local chief executive" in Sec. 45(c) but it is
apparent that the phrase is a misnomer and that the
choice of this phrase was simply dictated by the need to
avoid, for stylistic reasons, interminably repeating the
officials on whom the power to appoint is conferred.
Perhaps "authorities concerned" would have been a
more accurate generic phrase to use.
For that matter, to follow private respondents'
interpretation would be to run into a similar, if not greater,
difficulty. For Sec. 45(a)(3) vests the power to fill
vacancies in the Sangguniang Barangay in the mayor but
the local chief executive of a barangay is not the mayor.
It is the punong barangay. Yet "local chief executive"
cannot be applied to the punong barangay without
rendering Sec. 45(a)(3) meaningless.
LA CARLOTA CITY VS. ROJO
Petitioners allege that respondent's appointment as
Sangguniang Panlungsod Secretary is void. Petitioners
maintain that respondent's irrevocable resignation as a
Sangguniang Panlungsod member was not deemed
accepted when it was presented on 17 March 2004
during the scheduled regular session of the Sangguniang
Panlungsod of La Carlota City, Negros Occidental for
lack of quorum.
Consequently, respondent was still an incumbent regular
Sangguniang Panlungsod member when then Vice
Mayor Jalandoon appointed him as Sangguniang
Panlungsod Secretary on 18 March 2004, which
contravenes Section 7, Article IX-B of the Constitution.
142
Petitioners insist that the vice-mayor, as presiding officer
of the Sangguniang Panlungsod, should not be counted
in determining whether a quorum exists. Excluding the
vicemayor, there were only six (6) out of the twelve (12)
members of the Sangguniang Panlungsod who were
present on 17 March 2004.
Since the required majority of seven (7) was not reached
to constitute a quorum, then no business could have
validly been transacted on that day including the
acceptance of respondent's irrevocable resignation.
RA 7160 clearly states that the Sangguniang Panlungsod
"shall be composed of the city vice-mayor as presiding
officer, the regular sanggunian members, the president of
the city chapter of the liga ng mga barangay, the
president of the panlungsod na pederasyon ng mga
sangguniang kabataan, and the sectoral representatives,
as members." Black's Law Dictionary defines "composed
of" as "formed of” or "consisting of."
As the presiding officer, the vice-mayor can vote only to
break a tie. In effect, the presiding officer votes when it
matters the most, that is, to break a deadlock in the
votes.
Clearly, the vice-mayor, as presiding officer, is a
"member" of the Sangguniang Panlungsod considering
that he is mandated under Section 49 of RA 7160 to vote
to break a tie. To construe otherwise would create an
anomalous and absurd situation where the presiding
officer who votes to break a tie during a Sanggunian
session is not considered a "member" of the Sanggunian.
The Senate deliberations on Senate Bill No. 155 (Local
Government Code) show the intent of the Legislature to
treat the vice-mayor not only as the presiding officer of
the Sangguniang Panlungsod but also as a member of
the Sangguniang Panlungsod.
In the 2004 case of Zamora v. Governor Caballero, the
Court interpreted Section 53 of RA 7160 to mean that the
entire membership must be taken into account in
computing the
quorum of the sangguniang panlalawigan.
SANGGUNIANG BAYAN OF SAN ANDRES,
CATANDUANES VS. COURT OF APPEALS
The petitioner submits that the resignation of private
respondent was valid and effective despite the absence
of an express acceptance by the President of the
Philippines. The letter of resignation was submitted to the
secretary of the DILG, an alter ego of the President, the
appointing authority. The acceptance of respondent's
resignation may be inferred from the fact that the DILG
143
secretary himself appointed him a member of the
Sangguniang Panlalawigan of Catanduanes.
In Ortiz v. COMELEC, we defined resignation as the "act
of giving up or the act of an officer by which he declines
his office and renounces the further right to use it. It is an
expression of the incumbent in some form, express or
implied, of the intention to surrender, renounce, and
relinquish the office and the acceptance by competence
and lawful authority."
To constitute a complete and operative resignation from
public office, there must be: (a) an intention to relinquish
a part of the term; (b) an act of relinquishment; and (c) an
acceptance by the proper authority. The last one is
required by reason of Article 238 of the Revised Penal
Code.
The records are bereft of any evidence that private
respondent's resignation was accepted by the proper
authority. From the time that he was elected as punong
barangay up to the time he resigned as a member of
Sangguniang Bayan, the governing law was B.P. 337 or
the Local Government Code of 1983.
While said law was silent as to who specifically should
accept the resignation of an appointive member of the
Sangguniang Bayan, Sec. 6 of Rule XIX of its
implementing rules states that the" [r]esignation of
sanggunian members shall be acted upon by the
sanggunian concerned, and a copy of the action taken
shall be furnished the official responsible for appointing a
replacement and the Ministry of Local Government.
The position shall be deemed vacated only upon
acceptance of the resignation."
It is not disputed that private respondent's resignation
letter was addressed only to the municipal mayor of San
Andres, Catanduanes. It is indicated thereon that copies
were furnished the provincial governor, the municipal
treasurer and the DILG. Neither the mayor not the
officers who had been furnished copies of said letter
expressly acted on it.
On hindsight, and assuming arguendo that the aforecited
Sec. 6 of Rule XIX is valid and applicable, the mayor
should have referred or endorsed the latter to the
Sangguniang Bayan for proper action. In any event, there
is no evidence that the resignation was accepted by any
government functionary or office.
While we agree with reposondent court that the
resignation was not valid absent any acceptance thereof
by the proper authority, we nonetheless hold that Private
Respondent Antonio has effectively relinquished his
membership in the Sangguniang Bayan due to his
voluntary abandonment of said post.
144
Abandonment of an office has been defined as the
voluntary relinquishment of an office by the holder, with
the intention of terminating his possession and control
thereof.
Indeed, abandonment of office is a species of
resignation; while resignation in general is a formal
relinquishment, abandonment is a voluntary
relinquishment through nonuser. 33 Nonuser refers to a
neglect to use a privilege or a right (Cyclopedic Law
Dictionary, 3rd ed.) or to exercise an easement or an
office (Black's Law Dictionary, 6th ed.).
Abandonment springs from and is accompanied by
deliberation and freedom of choice. Its concomitant effect
is that the former holder of an office can no longer legally
repossess it even by forcible reoccupancy.
Clear intention to abandon should be manifested by the
officer concerned. Such intention may be express or
inferred from his own conduct. Thus, the failure to
perform the duties pertaining to the office must be with
the officer's actual or imputed intention to abandon and
relinquish the office. Abandonment of an office is not
wholly a matter of intention; it results from a complete
abandonment of duties of such a continuance that the
law will infer a relinquish. Therefore, there are two
essential elements of abandonment: first, an intention to
abandon and, second, an overt or "external" act by which
the intention is carried into effect.
The following clearly manifest the intention of private
respondent to abandon his position: (1) his failure to
perform his function as member of the Sangguniang
Bayan, (2) his failure to collect the corresponding
remuneration for the position, (3) his failure to object to
the appointment of Aquino as his replacement in the
Sangguniang Bayan, (4) his prolonged failure to initiate
any act to reassume his post in the Sangguniang Bayan
after the Supreme Court had nullified his designation to
the Sangguniang Panlalawigan.
DISCIPLINE
Section 60. Grounds for Disciplinary Actions. - An
elective local official may be disciplined, suspended, or
removed from office on any of the following 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 any offense involving moral turpitude
or an offense punishable by at least prision mayor;
145
(e) Abuse of authority;
(f) Unauthorized absence for fifteen (15) consecutive
working days, except in the case of members of the
sangguniang panlalawigan, sangguniang panlungsod,
sangguniang bayan, and sangguniang barangay;
(g) Application for, or acquisition of, foreign citizenship or
residence or the status of an immigrant of another
country; and
(h) Such other grounds as may be provided in this Code
and other laws.
An elective local official may be removed from office on
the grounds enumerated above by order of the proper
court.
Section 61. Form and Filing of Administrative
Complaints. - A verified complaint against any erring
local elective official shall be prepared as follows:
(a) A complaint against any elective official of a province,
a highly urbanized city, an independent component city
or component city shall be filed before the Office of the
President;
(b) A complaint against any elective official of a
municipality shall be filed before the sangguniang
panlalawigan whose decision may be appealed to the
Office of the President; and
(c) A complaint against any elective barangay official
shall be filed before the sangguniang panlungsod or
sangguniang bayan concerned whose decision shall be
final and executory.
Section 62. Notice of hearing. -
(a) Within seven (7) days after the administrative
complaint is filed, the Office of the President or the
sanggunian concerned, as the case may be, shall require
the respondent to submit his verified answer within
fifteen (15) days from receipt thereof, and commence the
investigation of the case within ten (10) days after receipt
of such answer of the respondent.
(b) When the respondent is an elective official of a
province or highly urbanized city, such hearing and
investigation shall be conducted in the place where he
renders or holds office. For all other local elective
officials, the venue shall be the place where the
sanggunian concerned is located.
(c) However, no investigation shall be held within ninety
(90) days immediately prior to any local election, and no
146
preventive suspension shall be imposed within the said
period. If preventive suspension has been imposed prior
to the 90-day period immediately preceding local
election, it shall be deemed automatically lifted upon the
start of aforesaid period.
Section 63. Preventive Suspension. -
(a) Preventive suspension may be imposed:
(1) By the President, if the respondent is an elective
official of a province, a highly urbanized or an
independent component city;
(2) By the governor, if the respondent is an elective
official of a component city or municipality; or
(3) By the mayor, if the respondent is an elective official
of the barangay.
(b) Preventive suspension may be imposed at any time
after the issues are joined, when the evidence of guilt
is strong, and given the gravity of the offense, there
is great probability that the continuance in office of
the respondent could influence the witnesses or
pose a threat to the safety and integrity of the
records and other evidence: Provided, That, any single
preventive suspension of local elective officials shall not
extend beyond sixty (60) days: Provided, further, That in
the event that several administrative cases are filed
against an elective official, he cannot be preventively
suspended for more than ninety (90) days within a single
year on the same ground or grounds existing and known
at the time of the first suspension.
(c) Upon expiration of the preventive suspension, the
suspended elective official shall be deemed reinstated in
office without prejudice to the continuation of the
proceedings against him, which shall be terminated
within one hundred twenty (120) days from the time he
was formally notified of the case against him. However, if
the delay in the proceedings of the case is due to his
fault, neglect, or request, other than the appeal duly filed,
the duration of such delay shall not be counted in
computing the time of termination of the case.
charges would warrant removal from the service; or (c)
the respondent's continued stay in office may prejudice
the case filed against him.
The preventive suspension shall continue until the case
is terminated by the Office of the Ombudsman but not
more than six months, without pay, except when the
delay in the disposition of the case by the Office of the
Ombudsman is due to the fault, negligence or petition of
the respondent, in which case the period of such delay
shall not be counted in computing the period of
suspension herein provided.
DIfference between preventive suspension under RA
6770 and under the LGC

(d) Any abuse of the exercise of the power of preventive RA 6770 LGC
suspension shall be penalized as abuse of authority.
1. The evidence of
Preventive Suspension under RA 6770 guilt is strong
2. That any of the ff
are present
Section 24. Preventive Suspension. - The
a. The charge
Ombudsman or his Deputy may preventively suspend against the
any officer or employee under his authority pending an officer or
investigation, if in his judgement the evidence of guilt is employee
strong, and (a) the charge against such officer or should
employee involves dishonesty, oppression or grave involve
misconduct or neglect in the performance of duty; (b) the dishonesty,
1. There is reasonable
ground to believe
that the respondent
has committed the
act or acts
complained of
2. The evidence of
culpability is strong
3. The gravity of the
offense so warrants
4. The continuance in

147
 oppression office of the
or grave respondent could Section 65. Rights of Respondent. - The respondent
misconduct influence the shall be accorded full opportunity to appear and defend
or neglect in witnesses or pose a himself in person or by counsel, to confront and cross-
the threat to the safety examine the witnesses against him, and to require the
performance and integrity of the attendance of witnesses and the production of
of duty records and other
documentary process of subpoena or subpoena duces
b. The charges evidence
should Maximum period: 60 days tecum.
warrant
removal from Section 66. Form and Notice of Decision. -
office
c. The (a) The investigation of the case shall be terminated
respondent’s within ninety (90) days from the start thereof. Within thirty
continued
(30) days after the end of the investigation, the Office of
stay in office
would the President or the sanggunian concerned shall render
prejudice the a decision in writing stating clearly and distinctly the facts
case filed and the reasons for such decision. Copies of said
against him decision shall immediately be furnished the respondent
Maximum period: 6 and all interested parties.
months
(b) The penalty of suspension shall not exceed the
unexpired term of the respondent or a period of six (6)
Section 64. Salary of Respondent Pending months for every administrative offense, nor shall said
Suspension. - The respondent official preventively penalty be a bar to the candidacy of the respondent so
suspended from office shall receive no salary or suspended as long as he meets the qualifications
compensation during such suspension; but upon required for the office.
subsequent exoneration and reinstatement, he shall be
paid full salary or compensation including such
emoluments accruing during such suspension.

148
(c) The penalty of removal from office as a result of an
administrative investigation shall be considered a bar to
the candidacy of the respondent for any elective position.
Section 67. Administrative Appeals. - Decisions in
administrative cases may, within thirty (30) days from
receipt thereof, be appealed to the following:
(a) The sangguniang panlalawigan, in the case of
decisions of the sangguniang panlungsod of component
cities and the sangguniang bayan; and
(b) The Office of the President, in the case of decisions
of the sangguniang panlalawigan and the sangguniang
panlungsod of highly urbanized cities and independent
component cities.
Decisions of the Office of the President shall be final and
executory.
Section 68. Execution Pending Appeal. - An appeal
shall not prevent a decision from becoming final or
executory. The respondent shall be considered as having
been placed under preventive suspension during the
pendency of an appeal in the event he wins such appeal.
In the event the appeal results in an exoneration, he shall
be paid his salary and such other emoluments during the
pendency of the appeal.
149
MIRANDA VS. SANDIGANBAYAN
Administrative complaints commenced under the
Ombudsman Law are distinct from those initiated under
the Local Government Code. Respondents point out that
the shorter period of suspension under the Local
Government Code is intended to limit the period of
suspension that may be imposed by a mayor, a governor,
or the President, who may be motivated by partisan
political considerations.
In contrast the Ombudsman, who can impose a longer
period of preventive suspension, is not likely to be
similarly motivated because it is a constitutional body.
The distinction is valid but not decisive, in our view, of
whether there has been grave abuse of discretion in a
specific case of preventive suspension.
Political color could taint the exercise of the power to
suspend local officials by the mayor, governor, or
President's office. In contrast the Ombudsman,
considering the constitutional origin of his Office, always
ought to be insulated from the vagaries of politics, as
respondents would have us believe.
Section 13, RA 3019 Graft and Corrupt Practices Act
Section 13. Suspension and loss of benefits. Any
public officer against whom any criminal prosecution
under a valid information under this Act or under the
provisions of the Revised Penal Code on bribery is
pending in court, shall be suspended from office. Should
he be convicted by final judgment, he shall lose all
retirement or gratuity benefits under any law, but if he is
acquitted, he shall be entitled to reinstatement and to the
salaries and benefits which he failed to receive during
suspension, unless in the meantime administrative
proceedings have been filed against him.
BUNYE VS. ESCAREAL
Section 13 of R.A. No. 3019, as amended, unequivocally
provides that the accused public officials "shall be
suspended from office" while the criminal prosecution is
pending in court.
In Gonzaga vs. Sandiganbayan, 201 SCRA 417, 422,
426, this Court ruled that such preventive suspension is
mandatory; there are no ifs and buts about it.
SEGOVIA VS. SANDIGANBAYAN
With the aforequoted jurisrudential authority as the basis,
it is evident that upon a proper determination of the
validity of the information, it becomes mandatory for the
court to immediately issue the suspension order.
The rule on the matter is specific and categorical. It
leaves no room for interpretation. It is not within the
150
courts discretion to hold in abeyance the suspension of
the accused officer on the pretext that the order denying
the motion to quash is pending review before the
appellate courts.
Its discretion lies only during the pre-suspension hearing
where it is required to ascertain whether or not (1) the
accused had been afforded due preliminary investigation
prior to the filling of the information against him, (2) the
acts for which he was charged constitute a violation of
the provisions of Republic Act. No. 3019 or of the
provisions of title 7, Book Il of the revised Penal Code, or
(3) the information against him can be quashed, under
any of the grounds provided in Section 2, Rules 117 of
the Rules of Court. (People vs. Albana, etc., at al. Supra,
fn.)
Once the information is found to be sufficient in form and
substance, then the court must issue the order of
suspension as a matter of course. There are no ifs and
buts about it. This is because a preventive suspension is
not penalty. It is not imposed as a result of judicial
proceedings. In fact, if acquitted, the official concerned
shall be entitled to reinstatement and to the salaries and
benefits which he failed to receive during suspension.
In view of this latter provisions, the accused elective
public officer does not stand to be prejudiced by the
immediate enforcement of the suspension order in the
event that the information is subsequently declared null
and void on appeal and the case dismissed as against
him.
Taking into consideration the public policy involved in
preventively suspending a public officer charged under a
valid information, the protection of public interest will
definitely have to prevail over the private interest of the
accused. (Bayot vs. Sandiganbayan, et al., G.R. Nos.
6177661861, March 23, 1984, 128 SCRA 383)
OMBUDSMAN VS. RODRIGUEZ
The Ombudsman has concurrent jurisdiction with the
sangguniang bayan over administrative cases against
elective barangay officials occupying positions below
salary grade 27, such as private respondent in this case.
In administrative cases involving the concurrent
jurisdiction of two or more disciplining authorities, the
body in which the complaint is filed first, and which opts
to take cognizance of the case, acquires jurisdiction to
the exclusion of other tribunals exercising concurrent
jurisdiction. In this case, since the complaint was filed
first in the Ombudsman, and the Ombudsman opted to
assume jurisdiction over the complaint, the
Ombudsman's exercise of jurisdiction is to the exclusion
of the sangguniang bayan exercising concurrent
jurisdiction.
151
HAGAD VS. GOZO-DADOLE
There is nothing in the Local Government Code to
indicate that it has repealed, whether expressly or
impliedly, the pertinent provisions of the Ombudsman
Act. The two statutes on the specific matter in question
are not so inconsistent, let alone irreconcilable, as to
compel us to only uphold one and strike down the other.
Well settled is the rule that repeals of laws by implication
are not favored, and that courts must generally assume
their congruent application.
The two laws must be absolutely incompatible, and a
clear finding thereof must surface, before the inference of
implied repeal may be drawn. The rule is expressed in
the maxim, interpretare et concordare legibus est
optimus interpretendi, i e, every statute must be so
interpreted and brought into accord with other laws as to
form a uniform system of jurisprudence.
The fundament is that the legislature should be
presumed to have known the existing laws on the subject
and not to have enacted conflicting statutes. Hence, all
doubts must be resolved against any implied repeal, and
all efforts should be exerted in order to harmonize and
give effect to all laws on the subject.
SANGGUNIANG BARANGAY OF BRGY. DON
MARIANO MARCOS VS. MARTINEZ
The pivotal issue, in this case, is WON the Sangguniang
Bayan may remove Martinez, an elective local official,
from office. The pertinent legal provisions and cases
decided by this Court firmly establish that the
Sangguniang Bayan is not empowered to do so.
Sec. 60 of the LGC conferred upon the courts the power
to remove elective local officials from office.
Congress clearly meant that the removal of an elective
local official be done only after a trial before the
appropriate court, where court rules of procedure and
evidence can ensure impartiality and fairness and protect
against political maneuverings. Elevating the removal of
an elective local official from office from an administrative
case to a court case may be justified by the fact that such
removal not only punishes the official concerned but also,
in effect, deprives the electorate of the services of the
official for whom they voted.
As the law stands, Section 61 of the Local Government
Code provides for the procedure for the filing of an
administrative case against an erring elective barangay
official before the Sangguniang Panlungsod or
Sangguniang Bayan. However, the Sangguniang
Panlungsod or Sangguniang Bayan cannot order the
152
removal of an erring elective barangay official from office,
as the courts are exclusively vested with this power
under Section 60 of the Local Government Code.
Thus, if the acts allegedly committed by the barangay
official are of a grave nature and, if found guilty, would
merit the penalty of removal from office, the case should
be filed with the regional trial court. Once the court
assumes jurisdiction, it retains jurisdiction over the case
even if it would be subsequently apparent during the trial
that a penalty less than removal from office is
appropriate.
On the other hand, the most extreme penalty that the
Sangguniang Panlungsod or Sangguniang Bayan may
impose on the erring elective barangay official is
suspension; if it deems that the removal of the official
from service is warranted, then it can resolve that the
proper charges be filed in court.
PABLICO VS. VILLAPANDO
It is beyond cavil, therefore, 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 Code
of 1991.
The law on suspension or 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. Where 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.
DON VS. LACSA
The pertinent provision of R.A. 7160, otherwise known as
the Local Government Code, reads:
Sec. 61(c)- A complaint against any elective barangay
official shall be filed before the sangguniang panlungsod
or Sangguniang Bayan concerned whose decision shall
be final and executory." (Emphasis and underscoring
supplied).
153
The "final and executory" phrase used in the
immediately-quoted provision was construed in Mendoza
v. Laxina, Sr. to be "immediately executory," albeit the
respondent may appeal the adverse decision to the
proper office.
The LGC does not preclude the taking of an appeal. On
the contrary, it specifically allows a party to appeal to the
Office of the President. The [phrase] "final and executory"
x x x in Sections 67 and 68, respectively, of the Local
Government Code, are not, as erroneously ruled by the
trial court, indicative of the appropriate mode of relief
from the decision of the Sanggunian concerned.
These phrases simply mean 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.
CONDONATION DOCTRINE
CARPIO-MORALES VS COURT OF APPEALS
Generally speaking, condonation has been defined as
"[a] victim's express or implied forgiveness of an offense,
(especially] by treating the offender as if there had been
no offense."

The condonation doctrine - which connotes this same
sense of complete extinguishment of liability as will be
herein elaborated upon - is not based on statutory law. It
is a jurisprudential creation that originated from the 1959
case of Pascual v. Hon. Provincial Board of Nueva Ecija,
(Pascual), which was therefore decided under the 1935
Constitution.
For another, condonation depended on whether or not
the public officer was a successor in the same office for
which he has been administratively charged. The
"ownsuccessor theory," which is recognized in numerous
States as an exception to condonation doctrine, is
premised on the idea that each term of a re-elected
incumbent is not taken as separate and distinct, but
rather, regarded as one continuous term of office.
Thus, infractions committed in a previous term are
grounds for removal because a re-elected incumbent has
no prior term to speak of (see Attorney-General v. Tufts;
State v. Welsh; Hawkins v. Common Council of Grand
Rapids; Territory v. Sanches; and Tibbs v. City of
Atlanta).
Overall, the foregoing data clearly contravenes the
preliminary conclusion in Pascual that there is a "weight
of authority" in the US on the condonation doctrine. In
fact, without any cogent exegesis to show that Pascual
154
had accounted for the numerous factors relevant to the
debate on condonation, an outright adoption of the
doctrine in this jurisdiction would not have been proper.
At any rate, these US cases are only of persuasive value
in the process of this Court's decision-making. "[They)
are not relied upon as precedents, but as guides of
interpretation." Therefore, the ultimate analysis is on
whether or not the condonation doctrine, as espoused in
Pascual, and carried over in numerous cases after, can
be held up against prevailing legal norms. Note that the
doctrine of stare decisis does not preclude this Court
from revisiting existing doctrine.
As adjudged in the case of Belgica, the stare decisis rule
should not operate when there are powerful
countervailing considerations against its application. In
other words, stare decisis becomes an intractable rule
only when circumstances exist to preclude reversal of
standing precedent.
As the Ombudsman correctly points out, jurisprudence,
after all, is not a rigid, atemporal abstraction; it is an
organic creature that develops and devolves along with
the society within which it thrives. In the words of a recent
US Supreme Court Decision, "[w]hat we can decide, we
can undecide."
Pascual's ratio decidendi may be dissected into three (3)
parts:
First, the penalty of removal may not be extended
beyond the term in which the public officer was elected
for each term is separate and distinct:
Offenses committed, or acts done, during previous term
are generally held not to furnish cause for removal and
this is especially true where the constitution provides that
the penalty in proceedings for removal shall not extend
beyond the removal from office, and disqualification from
holding office for the term for which the officer was
elected or appointed. (67 C.J.S. p. 248, citing Rice vs.
State, 161 S.W. 2d. 401; Montgomery vs. Nowell, 40
S.W. 2d. 418; People ex rel. Bagshaw vs. Thompson,
130 P. 2d. 237; Board of Com'rs of Kingfisher County vs.
Shutter, 281 P. 222; State vs. Blake, 280 P. 388; In re
Fudula, 147 A. 67; State vs. Ward, 43 S.W. 2d. 217).
The underlying theory is that each term is separate from
other terms xxx.
Second, an elective official's re-election serves as a
condonation of previous misconduct, thereby cutting the
right to remove him therefor; and
[T]hat the 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. (43 Am. Jur.
155
p. 45, citing Atty. Gen. vs. Hasty, 184 Ala. 121, 63 So.
559, 50 L.R.A. (NS) 553.)
Third, courts may not deprive the electorate, who are
assumed to have known the life and character of
candidates, of their right to elect officers.
Notable cases that followed the Pascual ruling are
Lizares v. Hechanova, Insco v. Sanchez, et al.,
Aguinaldo v. Santos, Salalima v. Guingona, Mayor
Garcia v. Mojica, and Salumbides, Jr. v. Office of the
Ombudsman.
The Court, citing Civil Service Commission v. Sojor, also
clarified that the condonation doctrine would not apply to
appointive officials since, as to them, there is no
sovereign will to disenfranchise.
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, found in Article XIII.
Section 1 thereof positively recognized, acknowledged,
and declared that "[p]ublic office is a public trust."
Accordingly, "[p]ublic officers and employees shall serve
with the highest degree of responsibility, integrity, loyalty
and efficiency, and shall remain accountable to the
people."
After the turbulent decades of Martial Law rule, the
Filipino people have framed and adopted the 1987
Constitution, which sets forth in the Declaration of
Principles and State Policies in Article II that "[t]he State
shall maintain honesty and integrity in the public service
and take positive and effective measures against graft
and corruption."
Learning how unbridled power could corrupt public
servants under the regime of a dictator, the Framers put
primacy on the integrity of the public service by declaring
it as a constitutional principle and a State policy. More
significantly, the 1987 Constitution strengthened and
solidified what has been first proclaimed in the 1973
Constitution by commanding public officers to be
accountable to the people at all times.
For local elective officials like Binay, Jr., the grounds to
discipline, suspend or remove an elective local official
from office are stated in Section 60 of Republic Act No.
7160,[292] otherwise known as the "Local Government
Code of 1991" (LGC), which was approved on October
10 1991, and took effect on January 1, 1992.
Related to this provision is Section 40 (b) of the LGC
which states that those removed from office as a result of
an administrative case shall be disqualified from running
for any elective local position.
156
In the same sense, Section 52 (a) of the RRACCS
provides that the penalty of dismissal from service carries
the accessory penalty of perpetual disqualification from
holding public office.
In contrast, Section 66 (b) of the LGC states that the
penalty of suspension shall not exceed the unexpired
term of the elective local official nor constitute a bar to his
candidacy for as long as he meets the qualifications
required for the office. Note, however, that the provision
only pertains to the duration of the penalty and its effect
on the official's candidacy.
Nothing therein states that the administrative liability
therefor is extinguished by the fact of re-election.
Reading the 1987 Constitution together with the above-
cited legal provisions now leads this Court to the
conclusion that the doctrine of condonation is actually
bereft of legal bases.
To begin with, the concept of public office is a public trust
and the corollary requirement of accountability to the
people at all times, as mandated under the 1987
Constitution, is plainly inconsistent with the idea that an
elective local official's administrative liability for a
misconduct committed during a prior term can be wiped
off by the fact that he was elected to a second term of
office, or even another elective post.
Election is not a mode of condoning an administrative
offense, and there is simply no constitutional or statutory
basis in our jurisdiction to support the notion that an
official elected for a different term is fully absolved of any
administrative liability arising from an offense done during
a prior term.
In this jurisdiction, liability arising from administrative
offenses may be condoned by the President in light of
Section 19, Article VII of the 1987 Constitution which was
interpreted in Llamas v. Orbos[293] to apply to
administrative offenses.
Note: Condonation doctrine must be applied
prospectively.
Relatedly it should be clarified that there is no truth in
Pascual's postulation that the courts would be depriving
the electorate of their right to elect their officers if
condonation were not to be sanctioned.
In political law, election pertains to the process by which
a particular constituency chooses an individual to hold a
public office. In this jurisdiction, there is, again, no legal
basis to conclude that election automatically implies
condonation. Neither is there any legal basis to say that
157
every democratic and republican state has an inherent
regime of condonation.
If condonation of an elective official's administrative
liability would perhaps, be allowed in this jurisdiction,
then the same should have been provided by law under
our governing legal mechanisms. May it be at the time of
Pascual or at present, by no means has it been shown
that such a law, whether in a constitutional or statutory
provision, exists. Therefore, inferring from this manifest
absence, it cannot be said that the electorate's will has
been abdicated.
Equally infirm is Pascual's proposition that the electorate,
when re-electing a local official, are assumed to have
done so with knowledge of his life and character, and that
they disregarded or forgave his faults or misconduct, if he
had been guilty of any. Suffice it to state that no such
presumption exists in any statute or procedural rule.
Besides, it is contrary to human experience that the
electorate would have full knowledge of a public official's
misdeeds.
The Ombudsman correctly points out the reality that most
corrupt acts by public officers are shrouded in secrecy,
and concealed from the public. Misconduct committed by
an elective official is easily covered up, and is almost
always unknown to the electorate when they cast their
votes. At a conceptual level, condonation presupposes
that the condoner has actual knowledge of what is to be
condoned. Thus, there could be no condonation of an act
that is unknown.
HERRERA VS. VILLACRUSIS
In Crebello v. Ombudsman, it was underscored that the
prospective application of Carpio-Morales should be
reckoned from April 12, 2016 because that was the date
on which this Court had acted upon and denied with
finality the motion for clarification/motion for partial
reconsideration thereon.
Verily, we hold that petitioner can no longer avail of the
condonation doctrine because although the complaint
below was instituted on January 9, 2015, he got
reelected only on May 9, 2016, well within the
prospective application of Carpio-Morales.
CHING VS. BONACHITA-RICABLANCA
While it is settled that the doctrine of condonation is
applied prospectively, there is diversity of views with
regard to the reckoning point of the Court's limited
application of the condonation doctrine.
As aptly pointed out by Senior Associate Justice Estela
M. Perlas-Bernabe in her Concurring Opinion, there are
three misguided views as to when condonation should be
158
reckoned. The first view, as contained in the
Ombudsman's Office Circular No. 17 dated May 11,
2016, considers condonation doctrine inapplicable to all
administrative cases that are open and pending as of
April 12, 2016.
A second view suggests the date of filing of the complaint
as the reckoning point. As aforementioned, in Vergara,
the condonation doctrine was applied because the case
was "instituted prior to" April 12, 2016; while in Dator v.
Carpio Morales, the condonation doctrine was held to be
no longer applicable because the case was instituted
after such date even though the misconduct was
committed in 2014.
A third view considers the date of the commission of the
misconduct as the reckoning point.
The proper interpretation is that the condonation is
manifested through re-election, and therefore, the
defense of condonation is no longer available if the re-
election happens after April 12, 2016. To reiterate,
Black's Law Dictionary, as cited in Carpio Morales,
defines condonation as "[a] victim's express or implied
forgiveness of an offense, (especially] by treating the
offender as if there had been no offense."
Considering that the electorate's act of forgiving a public
officer for a misconduct is done through re-election, the
abandonment of the condonation doctrine should mean
that re-elections conducted after April 12, 2016 should no
longer have the effect of condoning the public officer's
misconduct. Simply put, albeit by judicial fiat only, it is the
act of re-election which triggers the legal effect of and, to
an extent, vests the right to rely on the defense of
condonation.
In this case, since Ricablanca was re-elected during the
2013 Elections (specifically on May 13, 2013), the
doctrine of condonation applies to her. In sum, for so long
as the elective official had already been re-elected prior
to April 12, 2016, he or she may avail of the doctrine of
condonation as a valid defense to the administrative
complaint against him/her, as in this case.
Condonation Doctrine will still apply even if Ricablanca
was not elected by exactly, identically, and exclusively
the same body politic.
In previous cases (Giron, Almario-Templonuevo, and
Vergara (all decided by the Court in Division), he Court
fell short in categorically setting the parameters or
elements of the words "same body politic."
For certain, the Court did not rule that the doctrine of
condonation cannot be applied to a public officer who
was not subsequently elected by exactly, identically, and
exclusively the same body politic. Obviously, the Court
159
did not expound on these material points due to the fact
that the aforesaid cases involve a scenario where the
electorate involved belongs to exactly, identically, and
exclusively the same political geographical unit.
The issue before the Court is whether or not the doctrine
of condonation can be applied to a public official
(Ricablanca) elected to an office (Sangguniang Bayan
Member) by the electorate (Municipality of Sagay) which
includes the whole body politic (Barangay Poblacion,
Municipality of Sagay) she has served in her previous
term (as Barangay Kagawad).
The answer to the above-mentioned issue is in the
affirmative.
Nowhere in the ratio decidendi behind the condonation
doctrine that it requires that there should be a
geographical and numerical exactness of body politic or
that the body politic in the previous term should be
exactly, identically, and exclusively the same with that
who elected the public official to a new term.
What is clear in the rationale behind the condonation
doctrine is that primary consideration is given to the right
of the electorate to elect officers and for the courts not to
overrule the will of the people, and that a public officer
should never be removed for acts done prior to his
present term of office.

Note: April 12, 2016 onwards, no more condonation
doctrine.
Does the condonation doctrine apply to recall elections?
signifying that the pivotal consideration in the application
of the doctrine is the electorate's act of electing again an
erring public official. Thus, the Court applies by analogy
the well-established legal maxim "ubi lex non distinguit,
nec nos distinguere debemus."

- Yes. It applies even to recall elections. It doesn't matter When the law, a case law in this instance, does not
if it's a regular or recall election. When the law does not distinguish, neither should we distinguish. Accordingly,
distinguish, the Court should not also distinguish. that the manner of re-election was through a regular or
recall elections is beside the point for the doctrine of
MADREA VS. BAYRON condonation to apply. There should be no distinction as
to the manner of re-election in the application of the said
Notwithstanding that the Court had already declared that doctrine where none is indicated.
the abandonment of the condonation doctrine is to be
applied prospectively from 12 April 2016, the OMB
asserts that the doctrine still does not apply to Lucilo
because the administrative case against him was already
pending before its office prior to the finality of Carpio-
Morales. Pursuant to its Office Circular No. 17 dated 11
May 2016, the OMB maintains that it could still resolve
the case and has in fact decided the same on 18
November 2016.

The condonation doctrine covers re-election through

regular and recall elections.

It is noteworthy that the rationale behind the doctrine of

condonation speaks of "reelection to public office" without
specifying the type of elections conducted, thereby,

160
FOURTEENTH MEETING: DEC 17, 2021
TOPIC: RECALL
Let's discuss Recall. please be familiar, if not, if you can
memorize sections 69-75 of the local government code.
The power of recall for loss of confidence; so this is the
sole ground for a recall.
If people in the LGU are no longer confident about the
leadership of the LGU officials, then they could initiate a
recall. Later on, we will learn that initiation is different
from the filing and then the (recall) election also. The
recall process has different stages.
How is the recall process initiated?
As you know there are 2 ways. First is through the
preparatory recall assembly. Second is through
the efforts of the registered voters of the local
government unit.
1) Through the preparatory recall assembly
(RESOLUTION)
So where is the composition of the preparatory
recall assembly in every province, city, district
and municipality:
a) For the provincial level, it will be
composed of the mayors, vicemayors and
161
sangguniang members of the municipalities
and component cities. so if you will notice
those who comprise those who comprise
the preparatory recall assembly are those
local elective officials who belong to LGUs
which are lower than the level involved
b) At the city level, it will be the punong
barangay and the sangguniang barangay
members in the city.
c) For legislative district level, because
there are certain positions in a legislative
district level, for example councilors and
board members... So in case of
sangguniang panlalawigan members are
elected by district, then all elective
municipal officials in the district and in
cases where sangguniang panlunsod
members are elected by district, all
barangay officials in the district.
d) And as far is the municipal level is
concerned, then all punong barangays and
Sangguniang barangay members in the
municipality
*So under subsection c majority of all the preparatory
recall assembly members may convene in a session in
a public place and initiate recall proceedings against
any elected official in the local government unit
concerned.
*so how is a recall process validly initiated?
It would be through a resolution adopted by a majority
of all members of the preparatory recall assembly
concerned during its session called for that purpose.
2) through the efforts of the registered voters of
the local government unit (PETITION)
Ang taong bayan syempre pwede din. So there
must be at least 25% of the total number of
registered voters in the local government unit
concerned. If you read your cases, there is a
clarification here and we will discuss that later on.
*A written petition through the local
registrar or his representative
* In the presence of a representative of
the petitioner
*representative of the official sought to
be recalled
* In a public place in province, city,
municipality or barangay as the case may
be
*Shall be filed with the COMELEC (kaya
young mga kasong nabasa nio, panay "vs.
COMELEC" dahil sa COMELEC finafile yan
in case of petition
162
Again. There are 2 ways, through a resolution or a
petition. A resolution that is passed by the preparatory
recall assembly members or through a petition supported
by at least 25% of the registered voters of the local
government unit concerned.
There is a publication requirement not less than 10
days nor more than 20 days. And what is the purpose
of the publication requirement? for the purpose of
verifying the authenticity/ genuineness of the petition
and the required percentage of voters. so mahalaga
yan ha. kaya natin iniisa isa young codal provisions.
hinihimay natin mabuti. because you are studying the
law, you have to know the law before we even jump to
the doctrine set forth by jurisprudence.
Upon the lapse of this period, the COMELEC or its duly
authorized representative accepted the acceptance of
candidates to the position and thereafter prepared the list
of candidates which shall include the name of the official
sought to be recalled. so, election din yan. may mga
tatakbo, may kandidato.
Election on recall… So when will this happen? not later
than 30 days after the filing of the resolution or
petition for recall with the COMELEC or its duly
authorized representative. In case of barangay, city,
or municipal officials. for provincial officials, 45 days.
So yung opisyales na pinaparecall automatic kandidato.
and of course, there are other candidates to be
considered.
So as far as the effectivity of the recall, it shall be
effective only upon the election and proclamation of
a successor in the person of the candidate receiving
the highest number of votes cast during the election
on recall. so kung nanalo yung isang kandidato other
than the official sought to be recalled, then yun yung
recall. pag nanalo yung pinarerecall na opisyales, then it
means na confident pa sa kanya ang mga botante, so
that official shall remain in office.
we don't have this on the national level by the way, we
only have this on the local level. Now this is very
important, later on we will tackle supreme court decisions
pertaining to the limitations of recall.
now, pwede bang maiparecall yung isang opisyales,
dalawang beses or tatlong beses? isang beses lang.
And take note, one year from the date of the officials
assumption of office, or one year immediately
preceding a regular local election, no recall election
should take place. that is very important. so lumalabas
na on the second year lamang pwedeng iparecall ang
isang local government official
We included the case of Go vs. Bayron, does this sound
familiar to you? bakit? because ci-nite yan sa Marmeto
163
regarding initiative. Remember lack of budgetary
allocation, according to the Supreme Court in Marmeto,
cannot defeat the exercise of the power of initiative. when
the Marmeto ruling relied heavily on this, Go vs. Bayron
although this has something to do with recall. it's not an
initiative on an ordinance but rather an exercise of the
power of recall. So here, naghahanap or nagdadahilan
ang COMELEC na there is no line item appropriation on
the recall but according to the Supreme Court, since
there is a specific item there pertaining to the exercise of
the powers of recall, plebiscite... There's that item there
in the General Appropriations Act (GAA) on the capital
expenditure for the exercise of these powers or the
conduct of elections. so the Supreme Court said that the
funds appropriated are enough and should the budget be
insufficient, the chairperson of the COMELEC can
exercise his authority to augment such line item
appropriation from the COMELEC's existing savings. so i
hope that you still remember this in relation to the case of
Marmeto vs. COMELEC. In Marmeto, the Doctrine there
is that the lack of budgetary allocation cannot defeat the
exercise of the right to initiative or the power of initiative.
Also in Madreo vs. Bayron, do you still remember this
as far as condonation doctrine? What have you learned
last week? When is the reckoning point again? April 12,
2016. And what particular event should be taken into
account? the reelection. That was clarified last time in a
very recent supreme court decision, in a 2020 case. Now,
why am I opening this up? So as far as those cases
where the condonation doctrine still applies, You have to
take into account the recall is covered by the
condonation doctrine. So kapagka na elect or na-
reelect ang isang opisyales through a recall election,
then that amounts to a forgiveness of a past
administrative offense because the law does not
distinguish as to the kind of election, neither should
we, nor should the court.
Now in Garcia vs. COMELEC, the Supreme Court
provided a definition. what is recall anyway? Recall is a
mode of removal of a public officer by the people
before the end of his term of office. Again, as mga
makakapagsabi kung merong probisyon sa constitution
na nagsasaad that national elective officials are subject
to recall elections then i will give you, i will gcash to you
Php 5000 pesos as a reward. Edi sana ginawa na natin,
as kasagsagan ng COVID ang daming galit, edi ang dami
nang narecall. Available lang ito in relation to local
elective officials. Of Course as mentioned earlier, under
the explicit provision of the local government code, the
only ground here available is loss of confidence. since we
are in a representative democracy according to the
Supreme court here in Garcia, it is a fundamental right of
the people in a representative democracy. now your
guess is just as good as mine. how this was made
available to local officials but not to national officials.
There are 2 groups to blame, the members of the
164
constitutional commission who drafted the 1987
constitution and of course, the authors of the local
government code. Here in Garcia, the Supreme Court
also laid down the legislative history of the recall
provisions empowering a preparatory recall assembly.
because the question here is, is this exclusively vested in
the people? Why is there such a thing as preparatory
recall assembly? What is the reason why a preparatory
recall assembly empowered to initiate the process of
recall is included in the provisions of the local
government code? So there are 2 principal reasons.
First is to diminish the difficulty of initiating recall
through the direct action of the people; and Second
to cut down on its expenses. kasi isipin ninyo, mas
mahirap ang mag initiate ng recall na mangangalap ka ng
25%, kesa yung magtipon tipon ang mga local officials
who would constitute the preparatory recall assembly.
Hence, this was included as a mode of initiating the recall
process. Now, in this same case, the supreme court
clarified that there is nothing in the constitution that
will remotely suggest that the people have the sole
and exclusive right to decide on whether to initiate a
recall proceeding. in fact the constitution is silent as to
the mode, let alone the exclusive mode of initiating recall
elections. Having said that, then congress is given the
prerogative to determine what are these modes and
of course, as you have learned in your political law, the
courts cannot supplant the judgment of the legislature in
that regard, by virtue of the principle of separation of
powers not to mention the doctrine of political question.
So pano to? baka pwedeng mapolitika because
remember there may be times that the preparatory recall
assembly are dominated by the majority party. but
according to the supreme court, the composition of the
preparatory recall assembly does not depend on or is
not even apportioned to political parties. So there is
no significance, or no significance is given to the
political affiliation of its members. Secondly, the
preparatory recall assembly, the provincial level, includes
all the elective officials in the province concerned. So
considering their numbers, the greater probability is
that no political party can control its majority. kasi sa
probinsya ilang munisipyo ang nakapaloob jan. and
there's a chance that for every municipality, there is a
different political party that dominates that particular local
government unit. because there is this contention that the
provision on preparatory recall assembly would violate
the equal protection clause and the petitioner here is
questioning the wisdom of having a political recall
assembly because it may be used for political ends. but
this is the response of the Supreme Court. So the fear
that a preparatory recall assembly may be dominated by
a political party, and that it may be used for political
persuasions or for persecution for that matter, according
to the supreme court, that is not a ground to declare a
law unconstitutional. The mere possibility of abuse
cannot however infirm per se, be the reason for the
declaration of nullity or for the declaration of
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unconstitutionality of a particular law. as in fact, any
power may be the subject of abuse. so there are
safeguards in place and as you learned, the
constitution does not prescribe a particular mode in
the recall process. keep that in mind. That’s why the
Supreme Court laid down some safeguards. so there
must be a Notice to all the members of the recall
assembly, That is a condition sine qua non to the
validity of its proceedings. And then a qualified
majority of all the preparatory recall assembly
members must convene in session, in a public place.
And ofcourse, the recall resolution must be adopted
by the said majority during a session called for that
purpose. kaya natin hinahighlight. These safeguards are
very important. because there will be abuse, the dangers
of political alliances prevailing would definitely be there if
these safeguards are not met.
Now here what is in question is the provision, sec 74 of
the Local Government code. This has something to do
with the limitations. So in the case of Claudio vs.
COMELEC, ano ba yung tinatawag na recall don? it
pertains to the election itself. kasi dapat mo bang isama
doon... kasi yung limitation diba, one year after the
assumption of office and one year immediately preceding
the date of the regular elections. So here what is meant
by the recall, it means the election and not the entire
process. because if you were to consider the entire
process, then you would have to consider the initiation
because that is part of the process. but recall, for
purposes of paragraph (b) of sec 74 pertaining to the
time limitation, it has something to do or refers to the
election itself. You don’t reckon it from the initiation
process. the bar would only be applicable to that
recall election only … If it would refer to the entire
process then you have to include even the initiation,
either yung pag covene ng preparatory recall assembly
or yung pangangalap ng signature, you would have to
include that but for purposes of interpreting the
interpretation, under 74 b of the LGC, recall refers to the
election. According to the SC in Claudio, there are 2
LIMITATIONS in paragraph b.
1) No recall shall take place within one year
from the date of assumption of office of the
official concerned
2) and that no recall shall take place within 1
year immediately preceding a regular
election
So here, to construe the term recall as including the
convening of the PRA or even the gathering of signatures
or the filing of the petition even if it was initiated by 25
percent of the registered voters, then according to SC, it
would unduly restrict the constitutional right of speech
and of assembly of its members. Because it takes time to
build this up. There are a lot of observations taking place
and this is basically developed or shaped by public
opinion. Syempre sa loob ng isang taon oobserbahan
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ninyo yung government official kung may ginagawa ba o
kung masaya pa ang taong bayan sa kanya. To include
the convening of the PRA in the 1-year ban, that will
unduly restrict the people in the exercise of their
constitutional rights. Para bang hindi kami pwedeng mag
usap usap or magdebate kung kailangan na namin
magpasa ng resolusyon? Now here in Claudio, the
petitioner contended that the date set by the COMELEC
for the recall election is within the second period of
prohibition in paragraph (b), yung "should not be held
within 1 year immediately preceding the date of the
regular election.” So again this was struck down because
the law is unambiguous in providing that no recall shall
take place within 1 year preceding a regular local election
so hindi kasama ang campaign period. if the intention is
to cover or to include the campaign period then the law
should have expressly mentioned it. You will study this in
your election law, that there is a distinction between
election period and campaign period. So the election
period commences 90 days before the day of the election
and ends 30 days thereafter. so to construe the second
limitation so as to mean the election period would
emasculate the vital rights of the people. because again,
remember, the recall process is an exercise of a
sovereign right by the people. It is part of our republican
democracy. And the way it develops,if you will observe, is
also an exercise of fundamental rights; freedom of
speech, freedom of expression. These are political rights.
Is an SK election to be considered in the limitation? The iparecall kung may kaaway man kayong local elective
second limitation in Sec 74 (b). According to the SC, in official.
Paras vs. COMELEC, to include the SK election in
phrase "regular local election" will unduly TOPIC: TERM LIMITS
circumscribe the novel provision of the LGC on
Sec 43, take note of this. This is the crucial provision
recall. And if the SK election which is set every 3 years
here. itong item (b). No local elective official shall
from May 1996, if this SK election will be included within
serve for more than 3 consecutive terms in the same
the purview of the phrase "regular local election" then no
position. Voluntary renunciation of the office for any
recall election will ever take place. It would render the
length of time shall not be considered as an
provision of the LGC illusory, inutile.
interruption in the continuity of service or the full
With regard to the petition of the regular voters, can the term for which the official concerned was elected.
COMELEC entertain a petition with less percentage or
So our discussion will revolve around the question of
less number of registered voters? the Supreme Court
“interruption” of the continuity of the service for the full
said no. But take note that before the filing, what is
term. Because if there is interruption, then the local
required to be in the petition are the names of the
government official concerned may run for another 3
people comprising the 25% because under the law,
terms but if there is no interruption, tuloy-tuloy, then there
the signing of the petition is required to be
can no longer be the 4th term. Pag nainterrupt meaning
undertaken before the election registrar or his
pwede syang tumakbo pa ng tatlong sunod.
representative and in the presence of a
Nagkakaroon ng issue jan sa pang 4th na term. Is there a
representative of the official sought to be recalled
4th term? You have to take into account the factors,
and in a public place in the LGU concerned. so kahit
specifically the question: "is there an interruption?" based
hindi pa pirmado young petition but the names of at least
on a particular event because if there is an interruption
25% of the total number of registered voters, must be
then the more likelihood that the new term will not be
there or indicated there in the petition.
considered a 4th term and hence, that the local official
Any questions... so within 1 year from the date of the will not be barred from running for another term. So
regular local elections, so pwede pa bang magparecall? there's a similar provision under RA 9164 as far as the
5 months away na lang... So hindi na kayo pwedeng barangay elective officials are concerned.

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Now here are the rules. Abundo made things easy for
us. ABUNDO IS THE KEY. Because it summarized all
prior decisions concerning term limits. what constitutes
an interruption, what is not an interruption. So here it is…
1. when a permanent vacancy occurs in an
elective position, and the official merely assumed
the position pursuant to the rules on succession
under the LGC. Cannot be treated one full term
and hence cannot be counted in the application of
any term limit. So if the official runs again for
the same position he held prior to his
assumption of the higher office, then his
succession to the said position is by operation
of law and is considered an involuntary
severance or interruption. Remember voluntary
renunciation does not be considered an
interruption. That is what the provision provides.
so kapag nag resign ka, hindi yon interruption. But
here permanent vacancy is considered as an
interruption
2. An elective official who has served for 3
consecutive terms and who did not seek the
elective position for what could be his 4th term
but later on won in a recall election, had an
interruption because there is an interim. During
that window, that one year he did not run, he
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became a private citizen. <Adormeo and
Socrates cases>
3. Latasa, this is also very important. in an
abolition of an elective local office due to the
conversion of a municipality to a city. so it is
not an interruption.
4. Preventive suspension, it is not a term
interrupting event as held in Aldovino. Although
he is barred from exercising the functions of his
office during this period.
5. Now, when a candidate is proclaimed as
winner for an elective position and assumes
office, his term is interrupted when he loses in an
election protest and is ousted from office, does
this enable him from serving what would otherwise
be the unexpired portion of his term of office had
the protest been dismissed. So this is an
interruption pag natalo sya sa protest. but if
the decision became final after the official
served the whole term for the office, then the
loss in the election protest does not constitute
an interruption since he has managed to serve
the term from start to finish. it does not
constitute an interruption despite the fact that a
local elective official was defeated, he was able to
serve the full term < Ong and Rivera cases>
Speaking of which, Aldovino with respect to preventive
suspension. take note of the definition of "term". so
"term" means the time during which the officer may
claim to hold office as of right and fixes the interval
after which the several incumbents shall succeed
one another. so this is stated in the negative "no official
shall serve for more than 3 consecutive terms". so it is an
inflexible rule. in your statutory construction when a
provision is couched in the negative, then it is a clear
command, mandatory, and inflexible. As in fact the
Supreme Court held in Naval, the application of the 3
term limit is inflexible and the deliberations of the
constitutional commission were cited there, in that
case. As discussed in Aldovino, the provisions express
initiative to prevent any circumvention of the
limitation through voluntary severance of ties with
the public office. It shall not be considered as an
interruption if there is a voluntary renunciation. But
voluntary renunciation is at least textually, not the only
actual interruption of service and in fact it states that it
does not affect the continuity of the service of the full
term, for purposes of the 3 term limit rule. so yung
voluntary renunciation, it is not exclusive. it's not an
exclusive event that does not interrupt the continuity of
service. but of course the use of voluntary renunciation is
very important. the use of the term voluntary
renunciation. what do we mean by "renunciation"? it
means abandonment; "voluntary '' means that there is
free will. In other words, it is a loss of title to office by
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conscious choice. So in the context of the 3-term limit
rule, such loss of title is not considered an interruption
because it is presumed to be purposely sought to avoid
the application of the term limitation.
So what should constitute interruption? it must involve
involuntary loss of title to office. So the elective
official must have involuntarily left his office for a
length of time, however short. it doesn't have to be for
a full term as long as there is an involuntary event so to
speak which would leave the public official with no other
choice but to leave his public office then that constitutes
interruption. Why is this important? because preventive
suspension does not involve a voluntary act. As we've
learned earlier in Abundo, while preventive suspension is
not voluntary, it is not a renunciation, it is not a term
interrupting event. So what is the point in Aldovino?
yoong voluntary renunciation doon sa provision is only
one instance of a condition where there is no interruption.
it is not an exclusive ground or exclusive condition that
would not warrant an interruption in the continuity of
service because again preventive suspension is not a
term interrupting event. So what is the rationale?
because if preventive suspension will be considered an
interruption, then what would the local elective officials
do? "file-an nio ko ng kaso para ma-preventive
suspension ako pero yung kasinungalingan lang para
pwede along tumakbo ulit. madidismiss naman ulit yon
e". So it would constitute a more potent circumvention of
the provision on interruption or the limitation. So if this
condition or event will be allowed as a term interrupting
event then it would open the floodgates for local officials
to concoct cases where there would be preventive
suspension even if the case is without merit if only to
extend their terms and to occupy elective positions
perpetually. That's the reason.
6. Naval. this has something to do with
reapportionment of legislative districts. Board
member of the second district of Camarines Sur
so he ran and then nagkaroon ng
reapportionment. 8 out of 10 municipalities were
taken and form part of the third district. Here
comes the fourth term. According to Naval,
nagkaaroon ng reapportionment kaya hindi mag
apply ang three term limit rule. So there the
Supreme Court discussed the application of the
three term limit rule citing the discussions and the
deliberations of the Constitutional Commission.
One side advocated perpetual limitation, meaning
di ka na pwedeng maelect ulit after the 3 terms
then here comes the other side asserting "no
kapag nakapagpahinga na, pwede na bumalik".
because what's the reason? Remember, even now
we suffer from local elective officials, its as if they
own the positions. baka nababasa niyo din sa
social media, may mga taga pasig ba dito? diba.
for the longest time ang mga kalsada may letter E,
170
mga makikita mo sa paligid may letter E.
hanggang sa may bagong umupo, nagustuhan ng
tao. eto natalo sa election, gustong bumalik ni
letter E. Nababash at para bang nagdadahilan na
nahack daw ang kanyang facebook... so what's
the point? there are local officials who wants to
hold the position almost perpetually because
power yan. but at the same time, you need local
official with experience. so there is a balancing act
of properly allocating the opportunity, giving equal
opportunity to others and at the same time, not
wasting the wisdom and experience of older, more
seasoned public servants. kaya ang nasa
constitution and even as carried or adopted in the
LGC, that an interruption would be sufficient. there
is no perpetual bar. But even if there is diverse
opinion or there was a diverse opinion, what is
clear is that the 3-term limit is an inflexible rule.
and as applied in Naval, even if there was
reapportionment, the 3-term limit rule was still
applicable. ayan oh "notwithstanding their
conflicting preferences, what is clear is that the 3-
term limit rule is mandatory; it is an inflexible rule".
so the ineligibility to run of this Naval, of the
petitioner... <sorry, nawala ata connection sa net
for 15 secs from 1:11:12 to 1:11:27> could still be
represented but with another eligible person.
 7. Here in Halili, this applied to the ruling in Latasa
regarding the conversion of municipality into a
city. so there is no interruption here. The local
official here, the mayor here never ceased from
acting or discharging his duties and
responsibilities as chief executive of Mabalacat.
Despite the conversion from municipality into a city
so there is no interruption. again conversion from
municipality into a city… Latasa, not an
interruption.
8. In Albania, this has to be clear. there are 2
conditions that must concur for the application
of the 3-term limit rule:
a) that the official concerned has been
elected for 3 consecutive terms in the
same government post and...
this is more important...
b)) that he or she has fully served 3
consecutive terms
In Albania, what is involved here is a petition for
correction of manifest error. so was there a
interruption here? according to the supreme court,
there was no full term of 3 years. dahil nga nung
2007 elections, natalo sya tapos nagfile sya ng
petition for correction of manifest error tapos
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naproclaim sya dahil may manifest error nga. so
etong terminong ito, from 2007 to 2010, he did not
serve the full term. Here since he initially lost and
subsequently won in the petition, there was no
service of term from 2007-2010. He had not been
elected for 3 consecutive terms so to speak. So
the limitation did not apply in this case.
In Tallado, again here the application of the 2
conditions, here the second requisite is not
satisfied because of the intervening dismissals
from the service which truly prevented the
governor from serving fully the 3rd consecutive
term... if there is no full service of the term, then
the limitation does not apply. The 3-term limit does
not bar the candidate from running again.
TOPIC: AUTONOMOUS REGIONS
You have to read Art 10 Sec 15- 31 of the 1987
Constitution. Section 15 mandates the creation of
autonomous regions of Muslim Mindanao and the
Cordilleras.
Now what's important here is Section 16 and you
already know this fully well what constitutes general
supervision vis-a-vis control . So as far as the
president is concerned, he also exercises general
supervision over autonomous regions to ensure that
laws are faithfully executed. All powers, functions and
responsibilities not granted by the constitution or by law
to autonomous regions shall be vested in the National
government. This is proof that there is no total
abdication, there is no full surrender of powers to
autonomous regions. it is by no means absolute
surrender of powers. Now this is important also, there is
one case that this was discussed, the enactment of an
organic act. And what is important here is the
participation of the Regional Consultative
commission composed of representatives appointed
by the President from a list of nominees of multi
sectoral bodies. very important.
So what should the organic act contain? the basic
structure of government for the region consisting of
the executive department and legislative assembly. It
should also provide for special courts. Kaya yung
11054 binasa ninyo, may makikita kayong ganyan. And
the creation of the Autonomous region shall be effective
with approved majority of the votes cast by the
constituent units in a plebiscite called for the purpose,
provided that only provinces, cities and geographical
areas voting favorably in such plebiscite shall be included
in the autonomous region. very important.
This one, you just read this. This is also important. You
know there is a case where this was cited. you still
remember the Province of North Cotabato in your first
year, yan ay kung nabasa niyo yung full decision, where
you are required to read again the case of the Province
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of North Cotabato with respect to this. Yung BJE ba can
you equate that as or consider that as an autonomous
region under the contemplation of Art 10 of the
constitution, sec 15-21? This one please read for your
additional information. In Mandanas, your favorite
case, remember decentralization of power vs.
decentralization of administration, you still remember
the difference? Now here is Mandanas where the
supreme court said that there is decentralization of
power in so far as the ARMM and the CAR are
concerned. whereas the other governmental units
enjoy the decentralization of administration.
Nonetheless, the Supreme Court said that there is no
total abdication of power even to autonomous regions.
For instance in Sema. For those who seriously read
cases, you should have read Sema because this is your
assignment as far as your reapportionment of legislative
districts are concerned. Sema here talked about the
power of the legislative assembly to create local
government units. Can the ARMM create provinces and
cities? The Supreme Court said that the provision
here, Sec 19 Art 6 of RA 9054 insofar as it granted
ARMM the power to create provinces and cities is
unconstitutional. This provision is unconstitutional
because under the 1987 constitution, provinces and
cities can only be created by law passed by
congress. why? because it entails the creation of a
legislative district and only a law passed by congress
can create a legislative district pursuant to Art 6 Sec
5 of the 1987 Constitution in relation to the pertinent
portion of the ordinance appended to the
constitution. so it only shows that the powers devolved
to autonomous regions are by no means a total
abdication of powers. The constitution still reserves the
ultimate say, so there is no total abdication or surrender
of powers because the existence of this autonomous
regions must still work within the framework of our
existing constitution.
Now in Pimentel vs. Aguire, I think I emphasized this
point when we were tackling decentralization of power
vis-a-vis decentralization of administration so the
Supreme Court here mentioned that the national
government has not completely relinquished all its
powers over local government units including
autonomous regions. but it did not explicitly state that
ARMM and CAR, our autonomous regions, enjoy
decentralization of powers. so it gives us an impression
that autonomous regions likewise enjoy decentralization
of administration. So the 2 concepts are different right?
So it should be made clear that as far as local
government units, decentralization of administration
particularly provinces, cities, municipalities, and
barangay. Autonomous regions are also local
government units, as discussed in one case, yet they
enjoy decentralization of powers, as discussed here in
Mandanas. Now the Province of North Cotabato, the
Supreme Court resolved the question whether the BJE
173
(Bangsamoro Juridical Entity) as contemplated in this
MOA-AD can be considered as a local government unit
or will the constitution justify the existence of that BJE.
The answer is no. As you've presumably learned in your
first year, Section 20 enumerates the powers that may
be exercised by an autonomous region and the MOA-
AD exceeds those enumerated in Sec 20, Art 10 of
the 1987 Constitution. Bakit kamo, ‘coz here the BJE is
free to enter any economic cooperation and trade
relations with foreign countries. no local government
can do that. why? it is only the president who can do
that. No other existing constitutional framework. and
here, the Supreme Court also discussed the principle of
internal vs. external self-determination. If you still
remember, in relation to Art 2 Sec 22, the State
recognizes and promotes the rights of indigenous cultural
communities within the framework of national community
and development. Remember an associative state is a
state, and there is only one state and that is the Republic
of the Philippines. Now, the proponents of the MOA-AD
argued along the lines of self-determination but there are
2 kinds of self-determination, internal and external self-
determination. Internal self-determination is the right
of indigenous peoples to pursue their social,
economic, political development within the
framework of an existing state. That is not the case
as far as external self-determination is concerned
because that justifies a unilateral right to secession.
So it violates this. Art 2 Sec 22 of the 1987 Constitution
as far as our fundamental principles and state policies
are concerned. So Hindi sya autonomous region lang. it
is a state within a state, it is considered as an associative
state, as explicitly referred to under the MOA-AD. So the
principle of association, it is a middle ground between
independence and integration. so as if talaga, etong BJE
ay para bagang hihiwalay na.
Now in Abas Kida, it was clarified that an autonomous
region is a form of local government dahil nandon
nga sya sa article 10, entitled 'local government'. It
has something to do with the application of the
synchronized elections because according to the
petitioner, since an autonomous region is not a local
government unit, it should not be covered by the
synchronization of elections, young regional elections nila
sa ARMM. The SC clarified that an autonomous region
is a form of local government so hndi dapat sya itreat
differently.
Now in the case of Cordillera Broad Coalition vs. COA,
what is being assailed here is EO 220. The question here
is: "did it create an autonomous region?" because as
mentioned earlier. Let's go back there. Section 18
prescribes the way by which an autonomous region may
be created. There must be an organic act and
participation & assistance coming from this regional
consultative commission. Whereas, this one, it is an
executive order. But as clarified by the Supreme Court, it
did not create an autonomous region, it merely
174
provides for transitory measures in anticipation of
the enactment of an organic act, and the creation of
an autonomous region. As already emphasized with
you this is the way, as mentioned in Article 10 Sec 18. So
this EO is only meant to provide measures to address the
urgent needs of the cordilleras. it does not pretend to
create an autonomous region according to the supreme
court, and the fact that the transitory nature of the CAR is
involved, does not necessarily mean that this is an
interim autonomous region. so because as clarified, the
EO did not supplant the existing government structure.
because remember under the constitution there must be
an executive and legislative branch there, there should
be special courts there. but the EO did not supplant the
existing local government structure in the cordilleras. so
the real purpose of the EO is for administrative
coordination.For the president and the appropriate
national departments and agencies to make available
sources of funds for priority development programs and
projects recommended by the CAR. kasi syempre hindi
naman pwedeng habang hinihintay yung organic act ay
walang development dun sa CAR. and etong CAR is not
a public corporation according to the supreme court, it did
not have a separate juridical personality, unlike
provinces, cities and municipalities. And etong CAR may
be considered more than anything else, as a regional
coordinating agency of the national government , similar
to the regional development councils which the President
may create under the constitution. Okay so in short, yung
EO 220 did not create an autonomous region, contrary to
the assertion of the Cordillera broad coalition. That is why
I underscored earlier that there is a way by which an
organic act is enacted. In fact there must be a plebiscite
there, there must be participation coming from the
regional consultative commission, and there is a required
composition of that commission and there are also
provisions that the organic act must contain. That's why
Sec 18 Art 10 of the Constitution is also very important.

= END= GOODLUCK EVERYONE!

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