Local Government - DOC

Document Sample
Local Government - DOC Powered By Docstoc
					                                                                                                          UP College of Law

                                                               Part I
              Local Governments: Creation, Merger, Abolition and Powers

                                                                                                      CONSTITUTIONAL BASIS

Art X, 1987 Constitution                                                by law enacted by Congress in the case of a province,
                                                                        city, municipality, or any other political subdivision, or by
Section 1. The territorial and political subdivisions of the            ordinance passed by the sangguniang panlalawigan or
Republic of the Philippines are the provinces, cities,                  sangguniang panlungsod concerned in the case of a
municipalities, and barangays. There shall be                           barangay located within its territorial jurisdiction, subject
autonomous regions in Muslim Mindanao and the                           to such limitations and requirements prescribed in this
Cordilleras as hereinafter provided.                                    Code.

Section 2. The territorial and political subdivisions shall             Comment: Congress has the power to create or abolish a
enjoy local autonomy.                                                   province, city, municipality, or any other political
                                                                        subdivision. The sangguniang panlalawigan or
Section 3. The Congress shall enact a local government                  sangguniang panlungsod has the power to create and
code which shall provide for a more responsive and                      abolish barangays located within its territorial
accountable local government structure instituted                       jurisdiction
through a system of decentralization with effective
mechanisms of recall, initiative, and referendum, allocate              Sec. 7. Creation and Conversion. As a general rule, the
among the different local government units their                        creation of a local government unit or its conversion
powers, responsibilities, and resources, and provide for                from one level to another level shall be based on
the qualifications, election, appointment and removal,                  verifiable indicators of viability and projected capacity to
term, salaries, powers and functions and duties of local                provide services, to wit:
officials, and all other matters relating to the
organization and operation of local units.                              (a) Income. It must be sufficient, based on acceptable
                                                                        standards, to provide for all essential government
Section 4. The President of the Philippines shall exercise              facilities and services and special functions
general supervision over local governments. Provinces                   commensurate with the size of its population, as
with respect to component cities and municipalities, and                expected of the local government unit concerned;
cities and municipalities with respect to component
barangays shall ensure that the acts of their component                 (b) Population. It shall be determined as the total
units are within the scope of their prescribed powers and               number of inhabitants within the territorial jurisdiction
functions.                                                              of the local government unit concerned; and

Section 5. Each local government unit shall have the                    (c) Land Area. It must be contiguous, unless it comprises
power to create its own sources of revenues and to levy                 two (2) or more islands or is separated by a local
taxes, fees, and charges subject to such guidelines and                 government unit independent of the others; properly
limitations as the Congress may provide, consistent with                identified by metes and bounds with technical
the basic policy of local autonomy. Such taxes, fees, and               descriptions and sufficient to provide for such basic
charges shall accrue exclusively to the local governments.              services and facilities to meet the requirements of its
Chapter 2, RA 7160 (Sec 6 – 10)
                                                                        Compliance with the foregoing indicators shall be
                                                                        attested to by the Department of Finance (DOF), the
Sec. 6. Authority to Create Local Government Units. A
                                                                        National Statistics Office (NSO), and the Lands
local government unit may be created, divided, merged,
                                                                        Management Bureau (LMB) of the Department of
abolished, or its boundaries substantially altered either
                                                                        Environment and Natural Resources (DENR).

                                                                                                                      1 D2010
Local Government

Mariano v. Comelec (242 SCRA 211)                              The law or ordinance abolishing a local government unit
Facts: Petitioners assail the Constitutionality of RA 7859     shall specify the province, city, municipality, or barangay
on the ground that it did not properly identify the land       with which the local government unit sought to be
area or territorial jurisdiction of Makati by metes and        abolished will be incorporated or merged.
Held: The petitioners in the case have not demonstrated        Comment: The Code now lays down three important
that the delineation of the land area of the proposed          indicators of viability in the creation of local government
area of Makati (without metes and bounds) will cause           units namely: income, population and land area.
confusion as to its boundaries. Congress has refrained         Sec. 10. Plebiscite Requirement. No creation, division,
from using metes and bounds description of land areas          merger, abolition, or substantial alteration of boundaries
of other local government units.                               of local government units shall take effect unless
                                                               approved by a majority of the votes cast in a plebiscite
Municipality of Jimnez v. Baz Jr. (265 SCRA 182)               called for the purpose in the political unit or units
Facts: EO 258 creating the Mun. of Sinacaban contained         directly affected. Said plebiscite shall be conducted by
a technical description of its land area. Based on said EO     the Commission on Elections (Comelec) within one
258, Sinacaban claimed portions of several barrios             hundred twenty (120) days from the date of effectivity of
previously thought to be part of the Mun. of Jimenez.          the law or ordinance effecting such action, unless said
The latter Municipality asserted jurisdiction in the           law or ordinance fixes another date.
claimed portion on the basis of an agreement entered
into in 1950 with Sinacaban, approved by the Provincial        Abbas v. COMELEC (179 SCRA 278)
Board.                                                         Held: There is no conflict between the power of the
Held: The technical description, containing the metes          President to merge administrative region with the
and bounds of a municipality’s territory staed in EO 258       Constitutional provision, requiring plebiscite in the
creating the Municipality of Sinacaban, Misamis Oriental       merger of local government units because the
is binding.                                                    requirement of the plebiscite in a merger expressly
                                                               applies only to provinces, cities, municipalities or
Sec. 8. Division and Merger. Division and merger of            barangays, not administrative regions.
existing local government units shall comply with the
same requirements herein prescribed for their creation:        City of Pasig v. COMELEC 314 SCRA 179
Provided, however, That such division shall not reduce         Facts: Karangalan Village petitioned that they be
the income, population, or land area of the local              segregated from Brgy. Manggahan and Dela Paz, Pasig.
government unit or units concerned to less than the            Plebiscite was scheduled but the Mun. of Cainta moved
minimum requirements prescribed in this Code:                  to suspend due to a pending case in RTC-Antipolo, Rizal
Provided, further, That the income classification of the       for settlement of boundary dispute.
original local government unit or units shall not fall         Held: A case involving a boundary dispute between local
below its current classification prior to such division.       government units presents a prejudicial question which
                                                               must first be decided before plebiscites for creation of
The income classification of local government units shall      proposed barangay maybe held.
be updated within six (6) months from the effectivity of
this Code to reflect the changes in their financial position
resulting from the increased revenues as provided

Sec. 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.

D2010 2
                                                                                                     UP College of Law

                                                                                        ARTICLES AND REFERENCES

Public Corporations, Chapters 1-6                              incorporators intend to obtain profits from its
(Martin)                                                       undertaking, it is quasi-public.

CHAPTER ONE: General Principles                                Classes of public corporations

                                                                   1.   Quasi-Corporations—public corporations
A corporation is an artificial being created by operation
of law, having the right of succession and the powers,                  created as agencies of the State for a narrow
attributes, and properties expressly authorized by law or               and limited purpose. They differ from other
incident to its existence. It exists only in contemplation              public corporations in that they do not possess
                                                                        the powers and liabilities of self-governing
of law.
                                                                        corporations. Instead, their powers generally
A corporation is a legal institution devised to confer upon             relate to matters of State, and not municipal
the individuals of which it is composed powers,                         concerns. Thus, although they are public in
privileges, and immunities which they would not                         nature, they cannot be strictly considered
otherwise possess, the most important of which are                      municipal corporations because of their limited
continuous legal identity or unity, and perpetual or                    number of corporate powers and low grade of
indefinite succession under the corporate name,                         corporate existence. The main purpose of their
notwithstanding successive changes by death or                          creation is to aid the State in, or to take charge
otherwise, in the corporators or members.                               of, some public or state work other than
                                                                        community government for the general welfare.
Classes of corporations                                            2.   2. Municipal corporations

    1.   Public— formed or organized for the                   CHAPTER TWO: Nature, elements, kinds and history of
         government of a portion of a State for the            municipal Corporations
         accomplishment of parts of its own public
         works. These are created by State either by           A municipal corporation is a body politic constituted by
         special or general act.                               the incorporation of the inhabitants of a city or town for
    2.   2. Private—formed for some private purpose,           the purpose of its local government. It is established by
         benefit, aim or end; organized wholly for the         law partly as an agency of the State to assist in the civil
         profit and advantage of their own members and         government of a country, but chiefly to regulate and
         cannot constitutionally be granted                    administer the local or internal affairs of the
         governmental powers. These are created by the         city/town/district which is incorporated.
         will of the incorporators with the recognizance
                                                               Courts regard these as subordinate branches of
         of the State.
                                                               government of the State exercising delegated powers
Public vs Private— Consider as criterion the relation of       (municipal administration as an instrumentality of state
the corporation to the State. If it is created by the State    administration). Municipal corporations are granted
as its own agency or instrumentality to help it carry out      charters for the better government of particular areas or
its governmental functions, then it is public. Otherwise, it   districts.
is private.
                                                               Municipal corporation vs public corporation—All
    3.   Quasi-public—private corporations that render         municipal corporations are public corporations, but not
         public service or supply public wants; while          all public corporations are municipal corporations.
         purposely organized for the gain or benefit of its    Municipal corporations refer to incorporated villages,
         members, the law requires them to discharge           towns, and cities with powers of local administration.
         functions for the public benefit (i.e. utility
         companies).                                           Elements:

Private vs Quasi public— Consider as criterion the service         1.   A legal creation or incorporation;
the corporation renders to the public. If a corporation            2.   A corporate name by which the legal entity is
performs a public sovereign power, even though its                      known and in which all corporate acts are done;

                                                                                                                 3 D2010
Local Government

    3.   Inhabitants constituting the population invested        2.   To act as an agency of the inhabitants in the
         with the political and corporate powers which                regulation and operation of municipal franchises
         are exercised through duly constituted officers              and public utilities, and the promotion and
         and agents;                                                  management of their local affairs (i.e.
    4.   Place or territory within which the local civil              maintenance of water system, ferries, wharves).
         government and corporate functions are                       In this character, they act as separate entities
         exercised.                                                   for their own purposes and not as subdivisions
                                                                      of the State (Lidasan vs COMELEC).
                                                             Dual nature : Two-fold character:
    1.   Municipal Corporation Proper—incorporated
         cities/towns/villages invested with the power of        1.   Public—Municipal corporation acts as an agent
         local legislation. These exist and are governed              of the State for the government of the territory
         by their respective charters. Its distinctive                and inhabitants within the municipal limits. It
         purpose and distinguishing feature is the power              exercises by delegation a part of the sovereignty
         of local government.                                         of the State.
    2.   Quasi-municipal corporation—same as a quasi-            2.   Private—Municipal corporation acts as a
         corporation, i.e. it operates directly as an                 business corporation with functions not strictly
         agency of the State to help in the administration            governmental or political. It sees to the
         of public functions.                                         administration of local affairs which are beyond
                                                                      the sphere of the public purposes for which its
Municipal corporation proper vs quasi municipal                       governmental powers are conferred (Villa vs
corporation— When invested with the power of local                    City of Manila, Surigao Electric Co. Inc. vs
government, the municipal corporation as an agency of                 Municipality of Surigao).
the state becomes a municipal corporation proper.
Consider as criterion the voluntary or involuntary nature    Origin and history
of the corporation; the existence or non-existence of a
charter; and whether the purpose of the corporation is       England  Municipal corporations can be traced back to
solely a governmental agency or one for self-                the “farmer commonwealths” of the Teutons, and each
government.                                                  “wick,” “ham,” “stead,” or “tun” took its name form the
                                                             winsmen who lived there.
Municipal corporation proper vs quasi corporation—
Both are agents of the state for limited and narrow          United States Early American municipal corporations
purposes but have different powers and liabilities.          were similar to English municipalities of the 18th
Municipal corporations proper are created either by the      century. Prior to the revolution, local governments in the
direct solicitation or by the free consent of the persons    nature of municipalities existed in the American colonies
composing them while quasi corporations (also called         by prescription, sovereign recognition or by virtue of
involuntary corporations) are only local organizations       special charters from the sovereign.
which, for purposes of civil administration, are invested
with some characteristics of corporate existence. They       Philippines under the Spanish Regime The basic unit of
are local subdivisions of the state, created by the          local administration was the pueblo, composed of
sovereign legislative power of its own sovereign will and    numerous barrios, and governed by the cabeza de
without any particular solicitation, consent or concurrent   barangay, an honorific title continued by the Spaniards.
action from the inhabitants (West Chicago Park               Towns were organized, under the government of a
Commissioners vs Chicago).                                   gobernadorcillo, also called capitan, who represented
                                                             the provincial governor as the arbiter of local questions,
Purposes:                                                    collected taxes, assisted the parish priest and
                                                             entertained visiting officials. He was assisted by
    1.   To serve as an agency or instrumentality of the     tenientes (deputies), alguaciles (subordinate employees)
         state in carrying out the functions of              and chiefs of police. Elections for these municipal offices
         government which the state cannot                   were held annually.
         conveniently exercise (i.e. tax collection,
         assessment of property, enforcement of police       Barangays were administered by cabezas de barangay
         regulations)                                        whose principal duties were to act as agents for the

D2010 4
                                                                                                      UP College of Law

collection of taxes. They paid no tribute on their own          corporations, giving the conditions on which they may be
account and were members of the principalia, the voting         created, and determining whether such conditions exist.
and privileged class. The position was originally
hereditary and breaks were filled by appointments, but          Certain conditions are needed in order to obtain a
eventually, the position became elective and service            municipal corporation’s incorporation as a city or a town.
compulsory.                                                     Such conditions may refer to extent of area, nature of
                                                                the territory, the character of the land and the uses to
The Maura Law constituted a municipal council of 1              which it may be devoted, the number of inhabitants, and
captain and 4 lieutenants, in charge of the active work of      the density and location of the area to be incorporated.
governing the municipality, such as administration of
public works and the details of taxation. These positions       Creation of municipal corporations
were honorary, and each of the members was required
to have special qualifications. The Governor General,           In the Philippines, there is a general municipal law
provincial council and provincial governor retained             (Chapter 57 of the Administrative Code) under which the
disciplinary jurisdiction over the council and its individual   municipalities in regularly organized provinces were
members.                                                        organized and a special municipal law (Chapter 64 of the
                                                                Administrative Code) under which municipalities in the
Philippines under the American Regime General Order            specially organized provinces were organized.
No. 43, series of 1899 first provided for the government
of municipalities. This was superseded by General Order         The legislature may, by special act organize chartered
No. 40, series of 1900, promulgated by the Military             cities in the Philippines.
Governor, supposedly to give the Filipino people the
                                                                Under the Local Government Code, a barangay may be
right to elect their municipal officers, “only slightly
                                                                created, named, and its boundaries defined by an
restricted” by certain conditions. President McKinley’s
                                                                ordinance of the Sangguniang Panlalawigan or
instructions to the 2nd Philippine Commission also
                                                                Sangguniang Panlungsod, subject to the approval of the
directed the body to devote their attention to the
                                                                majority in a plebiscite called for the purpose by the
establishment of municipal governments, giving the
                                                                COMELEC to be held in the units affected within such a
“natives of the islands” the “opportunity to manage their
                                                                period of time as may be determined by the ordinance
own local affairs to the fullest extent of which they are
                                                                creating the said barangay.
capable, and subject to the least degree of supervision
and control which a careful study of their capacities and       Under Sec 68 of the Revised Administrative Code, the
observation of the workings of native controls show to          President may by executive order define the boundaries
be consistent with the maintenance of law, order and            of any province, sub province, municipality or any
loyalty.”                                                       political subdivision, and increase or decrease the
                                                                territory comprised therein, separate any political
The Philippine Commission passed Act No. 82 on January
                                                                division other than a province into such portion as may
31, 1901, providing for the organization and government
                                                                be required, merge any of such subdivisions or portions
of municipalities and Act No. 83 on February 5, 1901, for
                                                                with another, name any new subdivision so created and
the organization of provinces. These were later modified
                                                                change the seat of government within any subdivision, to
in the Administrative Code.
                                                                such place as the public welfare may require, provided
CHAPTER THREE: Creation of Municipal Corporations               that the authorization of Congress shall first be obtained
                                                                whenever the boundary of any province or sub-province
The power to create municipal corporations is essentially       is to be defined or any province is to be divided into one
legislative, exclusive and practically unlimited. Aside from    or more sub provinces (**Note that this provision was
the legislature, the President under his martial law            later declared unconstitutional and repealed by RA No.
powers can exercise legislative powers and create               5185).
municipal corporations.
                                                                Municipality of Cardona vs Binangonan (36 Phil. 547)
In the absence of a Constitutional provision permitting it,     HELD: Sec 1 of Act No. 1748 which conferred upon the
this power cannot be delegated by the legislature to any        Governor General the power to enlarge, constrict or
inferior or subordinate tribunal or board. However, it can      otherwise change the boundary of a province, sub-
pass a general law for the incorporation of municipal           province, municipality or township does not constitute
                                                                an abdication of legislative functions with regard to this

                                                                                                                  5 D2010
Local Government

particular subject matter. It is simply transference of      In the United States, it is within the power of the
certain details with respect to provinces, municipalities    legislature, subject only to constitutional restrictions to
and townships, many of them newly created, and all of        determine the nature and extent of the territory to be
them subject to rapid change both in development and         incorporated and to prescribe the minimum or maximum
population. The proper regulation of this may require        area which may be incorporated. Aside from whatever
prompt action of such detailed character as not to permit    restriction the constitution may impose, the area
the legislative body to undertake efficiently.               incorporated must be contiguous.

Pelaez vs Gimenez (December 24, 1965)                            2.        Population
HELD: Sec. 68 of the Revised Administrative Code does
not meet the requirements for a valid delegation of          The Barrio Charter (RA 2370) specifies 500 as the
power to fix the details in the enforcement of a law. It     minimum number of inhabitants required for the
does not enunciate any policy to be carried out or           creation of a barrio, and inasmuch as municipalities are
implemented by the President. Neither does it give a         composed of barrios, there should be at least 500
standard sufficiently precise. Although the last clause of   inhabitants to comply with the requirement as to
the first sentence of Sec. 68 gives the President the        population.
power to “change the seat of the government within any
subdivision to such place as the public welfare may              3.        Charter
require,” the phrase “as the public welfare may require”
                                                             The charter usually invests the people of the place with
qualifies not the clauses preceding the one just quoted,
                                                             the power of local government, determines the form of
but only the place to which the seat of government may
                                                             government of the municipal entity and defines its rights,
be transferred.
                                                             powers and obligations. It is conferred for political
Calalang vs Williams (70 Phil 726) and People vs             purposes.
Rosenthal (68 Phil 328) upheld public interest and
                                                             The rule requiring assent of the inhabitants for
welfare as sufficient standards for a valid delegation of
                                                             incorporation of a municipal corporation to be effective
authority to execute a law. However, this doctrine must
                                                             is not applicable in the Philippines. However, under the
be construed in the relation to the specific facts and
                                                             new Constitution, the creation of a political division
issues involved in these cases, outside of which they do
                                                             should be subject to the approval of majority of the
not constitute precedents and have no bonding effect.
                                                             votes cast in the units affected.
If the validity of the delegation of power in Sec 68 were
                                                             Municipal corporations may also exist through
upheld, there would no longer be any legal impediment
                                                             prescription. Its existence will be presumed in where it is
to statutory grant of authority to the President to do
                                                             shown that the community has claimed and exercised
anything, which, in his opinion, may be required by
                                                             corporate functions, with the knowledge and
public welfare or interest. Such grant of authority would
                                                             acquiescence of the legislature, and without interruption
virtually be an abdication of power of Congress in favor
                                                             or objection for a period long enough to afford title by
of the Executive.
The power of control under Sec 10(a) Art X of the
                                                             A corporation may exist in fact although not in point of
Constitution (at the time) implies the right of the
                                                             law because of certain defects in some essential features
President to interfere in the exercise of the discretion
                                                             of its organization. It may be considered a de facto
vested by law in the officers of the executive
                                                             municipal corporation, if the following requisites are
departments, bureaus or offices, as well as to act in lieu
                                                             complied with: 1) a valid law authorizing incorporation;
of such offices. With respect to local governments, the
                                                             2) an attempt in good faith to organize under it; 3) a
fundamental law permits the President to wield no more
                                                             colorable compliance with the law, and; 4) an
authority than of checking whether said local
                                                             assumption of corporate powers.
governments or their officers perform their duties as
provided by statute.                                         Municipality of Malabang vs Benito (March 28, 1968)
                                                             HELD: In cases where a de facto municipal corporation
Essential requisites for the incorporation of Municipal
                                                             was recognized as such despite the fact that the statute
                                                             creating it was later invalidated, the decisions could fairly
    1.       Territory                                       be made to rest on the consideration that there was

D2010 6
                                                                                                     UP College of Law

some other valid law giving corporate vitality to the          A distinction should be made between the creation of
organization. In the present case, the mere fact that the      the corporation as a legal entity and the organization of
municipality of Balabagan was organized at a time when         its government. The first should precede the second. The
the statute had not been invalidated cannot make it a de       organization of the government of a municipal
facto corporation, because independently of Sec 68 of          corporation presupposes necessarily the previous
the Administrative Code, there is no other valid statute       existence of the said corporation at the time its
to give color of authority to its creation. An                 government is organized (Mejia vs Balolong, GR No L-
unconstitutional act is not a law; it is, in legal             1925, 1948).
contemplation, as inoperative as though it had never
been passed.                                                   Carreon vs Carreon (April 30, 1965)
                                                               HELD: The existence of the City of Dagupan as a
Attack against the validity of incorporation                   corporate body is incompatible with the continued
                                                               existence of the municipal government of Dapitan. Sec
The validity of incorporation and the corporate existence      86 of RA 3811 creating the City of Dagupan out of the
of a municipal corporation may not be attacked                 municipality of Dapitan can only mean that the municipal
collaterally. It may be challenged only by the State in a      officials become city officials upon approval of the city
direct proceeding such as quo warranto.                        charter. So when petitioners filed their certificates of
                                                               candidacy for the positions in the city government, they
But this rule applies only where the municipal                 filed their certificates to the same positions that they
corporation is at least a public corporation. Where it is      were holding, and could not be considered resigned
neither a corporation de facto or de jure but a nullity, its   therefrom under the old Election Code.
existence may be questioned collaterally or directly in
any action or proceeding by anyone whose rights or             The existence of a municipal corporation may be proved
interests are affected thereby, including the citizens of      by its record of incorporation or charter. In the absence
territory incorporated unless they are estopped from           of a charter, its incorporation may be shown by parol
doing so (Municipality of Malabang vs Benito).                 evidence, at least to prove a de facto existence. Its
                                                               existence may also be shown by reputation or by long
The principle of estoppel applies to an individual who         use of its corporate powers, or by legislative grants
wants to attack the validity of incorporation of a             necessarily implying a town corporation.
municipal corporation. Where an individual dealt with it
and acquiesced in the exercise of its corporate functions,     CHAPTER 4: Alteration and dissolution of Municipal
or where he has entered into a contract with the said          Corporations
corporation, he may be estopped to deny its corporate
existence.                                                     A municipal corporation cannot, without legal
                                                               authorization, exercise its powers beyond its own
A person or private corporation may likewise be                corporate limits. It is therefore necessary that it must
precluded by laches from attacking the validity of the         have its boundaries fixed, definite and certain, in order
incorporation of a municipality.                               that they may be identified and that all may know the
                                                               exact scope or section of territory and geographical
Beginning of corporate existence                               division embraced in the corporate limits and over which
                                                               the local corporation has jurisdiction. An incorporation is
The legal existence of a municipal corporation is to be
                                                               void where the boundaries of the municipal corporation
determined by the law creating it. However, where the
                                                               are not described with certainty.
law is silent as to the beginning of its corporate
existence, the rule is that this shall commence from the       With respect to disputes as to jurisdiction of municipal
moment the law or charter creating it becomes effective.       governments over areas or barangays, these shall be
                                                               heard and decided by the Sangguniang Panlalawigan of
Under the Local Government Code, when a new local
                                                               the province where the municipalities concerned are
government unit is created, its corporate existence shall
                                                               situated. Where the areas or barangays in dispute are
commence upon the qualification of its executive and a
                                                               claimed by municipalities situated in different provinces,
majority of the member s of its legislative body unless
                                                               the Sangguniang Panlalawigan involved shall jointly hear
some other time is fixed therefor by law (Sec 6).
                                                               and decide the dispute. In case no settlement is reached
                                                               within 60 days from the date was referred to the
                                                               Sangguniang Panlalawigan concerned, said dispute shall

                                                                                                                 7 D2010
Local Government

be elevated to the Regional Trial Court by the province          4.   On the title to the property of the annexed
which first took cognizance of the dispute. The case shall            territory- The annexing territory shall acquire
be decided by the said court within 1 year from the start             title to the property of the annexed territory at
of the proceedings and appeal may be taken from the                   the time of the annexation unless the annexing
decision within the time and manner prescribed by the                 statute provides otherwise. When the annexed
Rules of Court (Sec 79, Local Government Code).                       territory forms part of a municipality from which
                                                                      it is taken, the legislature may provide for the
Boundary disputes within barangays within the same city               payment of compensation for the indebtedness
or municipality shall be heard and decided by the                     incurred on account of the property taken.
Sangguniang Panlungsod or Sangguniang Bayan                           Public buildings and improvements in the
concerned for the purpose of affording the parties an                 annexed territory are not required to be paid for
opportunity to reach an amicable settlement. In case no               by the annexing territory, as they have already
amicable settlement is reached within 60 days from the                been paid for by the annexed territory.
date the dispute was referred to the Sangguniang                      However, if any indebtedness on these exists,
Panlungsod or Sangguniang Bayan, the case shall be                    the annexing territory must be required to share
heard and decided by the Regional Trial Court by the of               in the payment of said indebtedness.
the province or city where the barangays concerned are           5.   On the debts and obligations of the annexed
located within 1 year from the start of court proceedings.            territory- Those contracted prior to the
Appeal may be taken decision within the time and                      annexation shall be assumed by the annexing
manner prescribed by the Rules of Court (Sec 80, Local                territory in the absence of any provision to the
Government Code).                                                     contrary.

In the absence of any Constitutional prohibition, the        Effects of division
Congress may alter or dissolve municipal corporations
by:                                                              1.   On the legal existence of the original
                                                                      corporation- The corporate existence of the
    1.   fixing, altering, or changing the boundaries of              original municipality is extinguished.
         municipal corporations for the purpose of               2.   On the property, powers and rights of the
         enlarging or decreasing its territory;                       original corporation- Unless the law provides
    2.   dividing a municipal corporation into 2 or more              otherwise, when a municipal corporation is
         separate municipalities;                                     divided into 2 or more municipalities, each
    3.   merging or consolidating 2 or more separate                  municipality acquires title to all the property,
         municipalities into 1;                                       powers, rights and obligations falling within its
    4.   annexing one municipality to another;                        territorial limits.
    5.   repealing its charter.
                                                             Limitations on the power to dissolve municipal
Effects of annexation or consolidation                       corporations

    1.   On the legal existence of the territory annexed-        1.   by an express provision in the Constitution
         Unless otherwise provided, the annexation of                 prohibiting the legislature to dissolve municipal
         one municipal corporation to another will                    corporations;
         dissolve the annexed territory.                         2.   those provisions in the Constitution affording
    2.   On the laws and ordinances of the annexed                    protection to the rights, property and contracts
         corporations- In the absence of a provision to               of the inhabitants.
         the contrary, the annexed territory shall be
         become subject to the laws and ordinances by        Unless the Constitution has conferred such power, the
         which the annexing corporation is governed.         courts have no power to dissolve municipal corporations.
    3.   On the right of officers or employees of the        However, they can declare the act of the legislature
         annexed corporation to continue to hold their       creating a municipal corporation illegal.
         offices- Subject to what the legislature provides
         upon annexation, the officers and employees of      Municipal corporations cannot bring about their own
         the annexed territory shall terminate their         dissolution by a mere surrender of their charter. A
         official relation with their offices.               municipal corporation is not ipso facto dissolved or
                                                             destroyed by non-user of its powers in whole or in part,

D2010 8
                                                                                                     UP College of Law

or for its failure for a number of years to exercise the                         to the absolute control of the
functions if a municipality. In such cases, the municipal                        legislature.
corporation would be suspended but not civilly dead,
since its dormant functions could be revived without           In matters that relate to public or governmental powers
action on the part of the sovereignty from which in            or rights, the corporation is the agent of the State and is
theory of law, corporate life originally came.                 subject to its control.

In the absence of a statute, a municipal corporation is        Legislative control over the municipal charter
not dissolved by the mere failure to elect or appoint its
officers and agents to conduct its government. The             Unless prohibited by the Constitution, the charter, being
officers do not constitute a corporation. Rather, the          a creation of the State may be modified, amended or
inhabitants of the designated locality are the                 repealed by the legislature when it is deemed necessary
corporators.                                                   or advisable (US vs Joson, 26 Phil 1)

Vilas vs City of Manila (42 Phil 953)                          Provisions of the charter relating to public or
HELD: The juristic identity of the corporation has in no       governmental matters do not constitute a contract
wise been affected by the change of sovereignty, and in        within the impairment clause of the Constitution, so the
law, the present city is in every legal sense the successor    legislature has absolute power to amend or alter them at
of the old. As such, it is entitled to the property and        will. Provisions of the charter granting rights, powers or
property rights of the predecessor corporation and is          privileges to the municipality for its own private interest
subject to all of its liabilities. The mere change of the      may be considered as a contract, falling within the
sovereign authority governing a country does not               protection of the impairment clause.
necessarily dissolve the municipal corporation organized
                                                               Legislative control over the form of government
under the former sovereign. Only such governmental
functions as are incompatible with the present                 The legislature can change the form of government of a
sovereignty may be considered suspended.                       municipal corporation since it is a mere incident of their
                                                               creation or existence, which the legislature has absolute
Dissolution of a municipal corporation through the
                                                               and unlimited control over.
repeal of its charter or otherwise, without any provision
for reincorporation, destroys and puts an end to the           The right of local self government is not inherent in
existence of the corporation. Its territory and inhabitants    municipalities and the legislature has the absolute power
are then subject to such governmental functions as the         to deprive them of their rights to govern themselves in
State may impose subject to Constitutional limitations.        local affairs.
CHAPTER FIVE: Legislative control and Executive                In order to deprive the people of the right of local self
supervision over Municipal Corporations                        government or any power vested by law in the
                                                               municipality, it must be upon express terms of the
Limitations on legislative control
                                                               legislature (City of Manila vs Manila Electric Railroad and
    1.   Constitutional Limitations                            Light Co, 26 Phil 89).
              a. Those relating to the protection of
                                                               Legislative control over municipal officers
                  private property
              b. Those preventing the impairment of            Subject to the Constitution, the legislature has absolute
                  contractual obligations                      discretion in providing for the manner of selection and
              c. Those prescribing a uniformity of law         appointment of the officers to administer the public and
                  and prohibiting special or local             governmental affairs of the municipal corporation (i.e.
                  legislation                                  justices of the peace, policemen), but the municipality
    2.   Limitations depending on the nature of the            may not be deprived of the right to select the officers
         rights and powers exercised by the municipality       who will administer the private affairs of the municipality
              a. a) In matters that relate to private          (i.e. caretakers of municipal parks or streets). The
                  powers or rights, the corporation is the     distinction lies in the nature of their functions.
                  agent of the inhabitants, and is
                  assumes the character and relations of       Legislative control over municipal property
                  private individuals, and it is not subject

                                                                                                                  9 D2010
Local Government

Property which the municipality has acquired in its public    Norte cannot be deprived of its share in their value
or governmental capacity is under the complete control        inasmuch as said lots are patrimonial properties since
of the legislature. The State, at its pleasure, may modify    they are not being utilized for distinctly governmental
or withdraw the power of the municipality to hold and         purposes.
manage its property. It may take such property without
compensation, conditionally or unconditionally, despite       Legislative control over public utilities
protest from the citizens. It may require the municipality
to spend its funds for the acquisition and maintenance of     Unless the Constitution provides otherwise, municipal
such property and provide for any regulation for the use      regulations over the operation of a water, light or gas
and management thereof which it may deem to be for            company prevail against national or state regulations,
the public interest.                                          because these involve the exercise of the proprietary or
                                                              business functions of the municipality. However, the
Property which the municipality acquired in its private or    service and rates of the public utility may be subject to
proprietary capacity is held by it in the same character as   state regulation.
a private individual. The legislature is subject to the
constitutional restrictions when dealing with such            Legislative control over municipal contracts
property and cannot control it, except through a valid
                                                              Municipal contracts are regulated or controlled by the
exercise of police power or by taking of private property
                                                              general legislation applicable to either all municipal
upon payment of just compensation.
                                                              corporations created thereafter or existing ones. The
Clinton vs Rapids, et al (24 Iowa 465)                        legislature may prescribe the methods of making
HELD: Public streets are not the private property of the      municipal contracts or impose restrictions thereon by
city; it cannot alienate or use them for other than           requiring bonds from the persons contracting with the
legitimate purposes. And over the use of such property        municipality. It may regulate municipal employment,
acquired, dedicated under the statutes to the public use,     such as by determining the number of working hours of
the legislature, so far as regards the rights of public       laborers.
corporations, possesses an unlimited control and
                                                              Execution of municipal contracts is subject to the
therefore can divert the use of the same for some other
                                                              requirements and restrictions in Secs 606-608 of the
public purposes. In this case, the legislature can
                                                              Revised Administrative Code.
authorize the railroad company to lay its tracks on the
streets of the city.                                          Legislative control over municipal funds and revenues
Proprietors of Mt. Hope Cemetery vs City of Boston (153       The legislature has absolute control over the public
Mass 509)                                                     revenues of a municipality such as those derived from
HELD: The legislature has no power to require the city to     taxation. It may require the expenditure of these funds
transfer the cemetery to the corporation without              for public purposes, but it has no control over public
compensation, because a cemetery is within the class of       revenues over which the municipality or its creditors
property which the city owns in its private or proprietary    have already acquired a vested right. However, no such
character. Ownership of such class of property is             right arises until after an actual appropriation is made.
protected under the Constitution in that it cannot be
taken without the payment of just compensation to the         The legislature may not control the private revenues of a
city.                                                         municipal corporation because these posses the
                                                              character of trust funds equitably belonging to the
Province of Zamboanga del Norte vs City of Zamboanga          inhabitants.
(March 28, 1968)
HELD: RA No 3039 which provides that all buildings,           CHAPTER SIX: Executive and Ministerial supervision
properties and assets belonging to the former Province        over Local Governments
of Zamboanga and located within the City of
Zamboanaga are transferred to the city free of charge, is     The President shall exercise general supervision over
valid insofar as it affects lots used as the capitol site,    local governments to ensure that local affairs are
school site and its grounds, hospital and leprosarium         administered according to the law. General supervision
sites because they are truly private in nature. With          includes the power to order an investigation of the
respect to the 26 lots, the province of Zamboanga del         conduct of local government officials when necessary.
                                                              This general supervision shall be exercised primarily

D2010 10
                                                                                                    UP College of Law

through the Ministry of Local Government (now the             Local Government Unit is a political subdivision
DILG).                                                        constituted by law, possessing substantial control over
                                                              its own affairs.
There is a difference between control and supervision.
Supervision means overseeing or the power or authority        In a unitary system of government, it is an intra-
of an officer to see that his subordinate officers perform    sovereign subdivision of one sovereign nation, and is not
their duties, and to take such action as prescribed by law    intended to be imperium in imperio (empire within an
if they should fail to perform those duties. Control means    empire). The 1987 Philippine Constitution does not
the power of an officer to alter, modify, nullify or set      prescribe federalism. Autonomy does not contemplate
aside what a subordinate had done in the performance          the creation of mini-states.
of his duties and to substitute the judgment of the
former for the latter (Mondano vs Silvosa, 51 OG 3427).       A Chartered City is a political body corporate, endowed
                                                              with faculties of municipal corporations exercised
This power of general supervision does not authorize the      through its city government in conformity with law and
President to remove or suspend a local official without       its proper corporate name; may sue and be sued, enter
any ground or on grounds not authorized by law (Planas        into contracts and be contracted with.
vs Gil, 67 Phil 62).
                                                              No plebiscite is necessary when creating a national
Lacson vs Roque (49 OG 93)                                    government agency such as the Metropolitan Manila
HELD: Suspension of the Mayor of the City of Manila on        Development Authority (MMDA). Plebiscite is only
the ground of a pending charge against him for libel was      required for the creation of local government units.
illegal because it was not based on grounds provided for
in law. To be a misconduct in office, the act must be         Dual nature/Two-Fold powers of Local Governments
committed in relation to the performance of his duties.
                                                                  1.   Public, Governmental or Political – springs from
Jover vs Borra (49 OG 2765)                                            sovereignty; exercised in administering the
HELD: The act of the President when, for not valid                     powers of the State and promoting public
reasons, he relieved the Mayor of Iloilo City of his office            welfare; include legislative, judicial, public and
and designated an Acting Mayor in his stead, is illegal.               political aspects
Although the office of the mayor is appointive, Congress
fixed the term of office of the Mayor to 6 years, and this    Public character as regards the State: agent of the
implies that the said officer can continue in office until    government
the expiration of his term unless removed for cause as
                                                                  2.   Corporate, Private or Proprietary – arising from
provided by law. The President’s action in this case
                                                                       existence as legal persons, not as public
amounted to an assertion of absolute control and not
                                                                       agencies; exercised for the special benefit and
merely supervision.
                                                                       advantage of the community; include
Mondano vs Silvosa (supra)                                             ministerial, private and corporate aspects
HELD: Suspension of the Mayor of Mainit, Surigao by the
                                                              Private character as regards the State: promote local
Provincial Governor under an alleged authority of the
                                                              necessities and convenience for its own community
President pending the hearing of charges of rape and
concubinage is illegal because the charges preferred          LGU’s as agents and delegates of the National
against him were not based on grounds provided for by         government
law. The alleged act of the Mayor did not involve
misconduct in office. Neither was he convicted yet of a       Municipal Corporations (MC) derive their powers and
crime involving moral turpitude.                              rights from the legislature – they can only exercise
                                                              delegated legislative powers conferred by Congress as
Compendium on Local Autonomy and                              the national lawmaking body, therefore they cannot defy
Local Government, Chapters 1-3 (Agra)                         Congress’ will, nor modify or violate it. As agents, they
                                                              are vested with the power of subordinate legislation,
CHAPTER ONE: Nature of Local Governments                      wherein the delegate cannot be superior to the principal
                                                              or exercise higher powers.

                                                                                                               11 D2010
Local Government

MC’s have no power to impose tax on nat’l gov’t               Municipal authorities are in a better position to
instrumentalities, or otherwise retard, impede, burden        determine the evils sought to be prevented by the
or in any manner control the operations of constitutional     inclusion or incorporation of particular provisions in
law enacted by Congress to execute powers vested in the       enacting a particular statute and therefore to pass the
nat’l gov’t. Otherwise, mere creatures of the State can       appropriate ordinance to attain the object of the law.
defeat national policies.
                                                              Although the general law requires a majority vote in
Exercise of governmental functions                            enacting ordinances, sanggunian may provide for higher
                                                              requisite vote in amending specific ordinances.
As agencies of the State, MC’s enjoy sovereign immunity
from suit when engaged in governmental functions.             Corporate existence of LGU’s
However, they are subject to suit even in the
performance of these functions if their charter so            Municipality [created under E.O. 265 (1949), later
provides.                                                     declared unconstitutional] which has performed
                                                              governmental acts and been given State recognition and
Under the Real Property Tax Code, LGU’s have no choice        acknowledgment is a regular de jure municipality. [LGC
but to collect real property tax – this means it is the       of 1991 cured defect by stating that municipal districts
national government expressing itself through the             organized pursuant to E.O.’s and presidential issuances,
legislative branch that is levying the tax. The LGU’s are     which have their respective seats of office at the the of
merely constituted as agents to fix the rates.                the Code’s effectivity are to be considered regular de
                                                              jure municipalities.]
As agencies of the State for the promotion and
maintenance of local self-government, MC’s are                Attack on legal existence of a body politic:
endowed with police power in order to effectively
accomplish and carry out the declared objects of their        Quo Warranto – must be timely filed; quo warranto suit
creation.                                                     against corporation for forfeiture of charter must be
                                                              commenced within 5 years from time that act
The National Police Commission (NAPOLCOM) exercises           complained of was done or committed.
administrative control and supervision over PNP officers
and members while local chief executives exercise             Any other direct proceeding which must be brought in
operational supervision and direction. Since the latter       the name of the Republic.
are only acting as representatives of NAPOLCOM, they
are answerable to the former for their actions. However,      To change the name of a local government unit, a
unless the acts of the local executives are                   plebiscite is required to be conducted in the unit or units
countermanded by NAPOLCOM, their acts are                     directly effected. Cannot be effected by mere resolution
considered valid and binding. Although mandatory,             of sanggunian.
deputization of local executives is not automatic and self-
                                                              Since the LGC is silent, sanggunian panlalawigan has no
executory – it requires a formal act of the NAPOLCOM.
                                                              authority to change the name of its province – authority
Delegated powers of local governments (not inherent)          lies with Congress.

    1.   Police Power – inherent in the State, but not        Territorial jurisdiction of political subdivisions
         MC’s; valid delegation by Nat’l Legislature
                                                              Definition of territorial boundaries of LGU is a standard
         necessary, since the latter is the repository of
                                                              provision of the law creating them. Such provision,
         the inherent powers of the State
                                                              however, is not a grant of ownership of National Gov’t
    2.   Power to Tax – must always yield to a legislative
                                                              properties within the boundaries to the LGU. Jurisdiction
         act; however, may be exercised pursuant to the
                                                              refers to the sphere of political authority, not the area of
         direct authority conferred by the 1987
                                                              ownership. An express grant is necessary to effect
         Philippine Constitution
                                                              transfer of ownership.
    3.   Power of Eminent Domain – conferring statues
         cannot be broadened or constricted by                Council sessions must be conducted within territorial
         implication                                          jurisdiction, except for instances such as lahar having
                                                              wiped out the barangay.
As agents of the community

D2010 12
                                                                                                    UP College of Law

Punong barangay cannot alter boundaries on his/her                     chart its own destiny and shape its future with
own.                                                                   minimum intervention from central authorities;
                                                                       amounts to “self-immolation”.
Power of LGU’s to issue fishing privileges in the municipal
waters was granted for revenue purposes. Commercial           Autonomous government becomes accountable to
fishing operation within the 15-km. area of municipal         constituency, not central authorities.
waters is not prohibited provided: (a) activity is not
undertaken in water areas within7 km. from shoreline;         President of the Republic
(b) allowed only in waters 7 or more fathoms deep.
                                                              Omission of phrase “as may be provided for by law” in
CHAPTER TWO: Local Autonomy and Centralization                relation to power of general supervision over LGU’s in
                                                              1987 Constitution merely serves to underscore LGU’s
Local autonomy is not the same as decentralization.           autonomy from Congress and to break the latter’s
Local autonomy can only mean a measure of                     control over local government affairs. Basic law did not
decentralization of functions of government.                  intend to deprive legislature of all authority over
                                                              municipal corporations, particularly concerning
Decentralization – devolution of national administration      discipline.
to the local levels in which local officials remain
accountable to the central gov’t in the manner law may        Department Secretaries
                                                              Secretary of Justice – review and revoke tax ordinances
LGU is autonomous in the sense that is is given more          with regard to constitutionality or legality; cannot
powers, authority, responsibilities and resource. Power       substitute own judgment nor replace the same with
which used to be highly centralized is thereby                another version nor declare it unjust, excessive,
deconcentrated.                                               oppressive or confiscatory since they involve exercise of
                                                              judgment or discretion as to wisdom and
Two levels of decentralization:                               reasonableness; power is of supervision, not control

    1.   Decentralization of                                  Secretary of DILG – administrative supervision over local
         Administration/Administrative Autonomy –             gov’t units; need not confirm the decision of a local chief
         central government delegates administrative          executive imposing penalty of removal against
         powers to political subdivisions to achieve the      appointive officials
         ff. purposes:
        broaden local power base                             Congress
        make units more responsive and accountable
        ensure full development of local governments         Retains control of the LGU, although in significantly
         as self-reliant communities                          reduced degree under present Constitution. Basic rel’p
        break the monopoly of National Government            between national legislature and local governments has
         over managing local affairs                          not been enfeebled by the new provisions in 1987
        relieve National Government from the burden          constitution strengthening the policy of local autonomy.
         of managing local affairs
                                                              Local autonomy not self-executing
Role of the President: general supervision, only to
                                                              It is subject to the passage of a local government code,
ensure that local affairs are administered according to
                                                              local tax law, income distribution legislation and national
law. He/She has no control over their acts in the sense
                                                              representation law.
that he/she can substitute their judgments with his/her
own.                                                          Interpretations in favor of decentralization
Administrative Autonomy primarily pertains to: power          Where a law is capable of two interpretations, one in
and responsibility to deliver basic services                  favour of centralized power in Malacanang and the other
                                                              beneficial to local autonomy, scales must be weighed in
    2.   Decentralization of Power/Political Autonomy –
                                                              favour of the latter. (Should be resolved in favour of the
         involves abdication of political power in favour
                                                              greater economy of the local government.)
         of LGU’s; autonomous government is free to

                                                                                                              13 D2010
Local Government

The power to review must be guided by a liberal               Centralization and national integration
construction in favour of the supervised/lower LGU and
in consonance with the principles of local autonomy.                  Office of the President

“The value of local governments as institutions of            When Sangguniang Kabataan (SK) elections are not
democracy is measured by the degree of autonomy that          conducted in certain areas, the President may appoint SK
they enjoy.”                                                  officials in exercise of his/her residual powers and the
                                                              power to appoint other officers of the government
Fiscal autonomy                                               whose appointments are not otherwise provided.

Pursuant to fiscal autonomy granted to LGU’s, and             Ordinances enacted by local legislative bodies must not
although the LGC is silent as to the placement of idle or     be repugnant to or in conflict with existing
excess funds, the sanggunian may authorize the                Administrative Orders or local budget circulars issued by
investment, placement in time deposit or any judicious        the Dept. of Budget and Management (DBM) for gov’t
utilization of such funds as far as general funds are         employees and officials.
                                                              Classification or reclassification of public forest land is a
Incidents of decentralization                                 prerogative of the President upon recommendation of
                                                              the pertinent department head.
Under the principle of local autonomy, even though the
power to abolish an office is not expressly conferred on      Additional compensation outside the purview of R.A.
provincial governments, it is necessarily implied from the    6758 (ex. medical benefits) only allowable if approved by
power to create offices.                                      President via administrative order.

R.A. 5185, which gives mayors the power to appoint all        Sangguniang panlalawigan cannot authorize grant of
officials entirely paid out of city funds, and B.P. 337,      representation and transportation allowance to all
empowering local executives with the authority to             division chiefs (divisions only components of
appoint all officers and employees of the city were not       departments/offices) of the provincial gov;t, since it
meant to vest the city mayors per se with comprehensive       violates Admin. Order 42 (clarifying role of DBM; only
powers – rather, they underscore the transfer of the          allows grant of benefit to department heads or asst.
power of appointment over local officials and employees       department heads).
from the President to the local governments and to
highlight local autonomy.                                             Commission on Elections (COMELEC)

LGU’s enjoy full autonomy in the operation and                No local elective may be suspended during election
management of economic enterprises, such as public            period except upon prior written approval of the
markets. A sanggunian may provide for a different             COMELEC.
scheme of allocating market stalls.
                                                              Omnibus Election Code states that LGU’s must share in
LGU’s may not provide for allowances to judges assigned       expenses for the election of barangay officials, therefore
within a given locality since this would counter the spirit   COMELEC may direct compliance therewith.
of R.A. 6758, which standardizes the salaries of
government personnel.                                                 Commission on Audit (COA)

LGU cannot create its own government owned or                 Approval by COA of disbursements of local funds relates
controlled corporation to provide basic services, since       to administrative aspect of the matter of the officials’
only Congress may create such corporation by special          accountability, but does not foreclose Ombudsman’s
law. Also, it is the function of the LGu to provide such      authority to investigate and determine WON there is a
services.                                                     crime to be prosecuted for which he/she is accountable.
                                                              Compliance with COA rules and regulations does not
Department of Agriculture may opt to devolve the              necessarily mean that misappropriation of public funds
function of regulating the operation of commercial            was not committed.
fishing vessels within municipal waters, in consonance
with the spirit of local autonomy, to LGU’s.                  COA has power to compromise or release any unsettled
                                                              claim or liability whenever government interest requires.

D2010 14
                                                                                                        UP College of Law

Disposal of unserviceable property through public                It is the governor that has authority to impose preventive
auction does not need approval by COA, but those                 suspension against a respondent municipal elective
disposed of through negotiated sale does.                        official. DILG has to authority to impose such
In consonance with its constitutional mandate as
guardian of public funds, disposal of real property owned        DILG shall be the lead national government agency to
by LGU shall be subject to approval of COA regardless of         oversee/administer national government assistance to
value or cost involved and mode of divestment, even if           local government units in the implementation of
Committee on Awards determines floor price that is               devolved infrastructure programs.
disadvantageous to the LGU.
                                                                 [NOTE: a basic element that determines centralization is
In exercise of its contract review functions, COA may            that the effects of the concerns of a particular
direct the adoption of the BIR zonal valuation if it is a        department are not confined to a particular region –
more reasonable selling price as compared to the highest         rather, they can be felt on a nationwide scale]
available bid during the public auction.
                                                                         Department of Transportation and
COA may employ the services of private appraisers to                      Communications (DOTC), Telecommunications
determine the value of real property sought to be sold if                 Office (TELOF)
the amount involved is substantial and the transaction is
the subject of investigation by the Office of the                Cannot devolve its regional office functions to the LGU’s,
Ombudsman.                                                       considering the interdependence of various telecom
                                                                 systems on a nationwide scale.
        Civil Service Commission (CSC)
                                                                         Land Transportation Office (LTO)
Has the power to approve or disapprove appointments                      Civil Aeronautics Board (CAB)
set before it by inquiring into the eligibility of the person,           Department of Environment and National
but does not have the power to make appointments                          Resources (DENR)
itself or to direct the appointing authority to change
employment status of an employee, otherwise this will            Concerned with enforcement of forestry laws, rules and
amount to an arrogation of power belonging to                    regulations, and the protection, development and
appointing authority.                                            management of forest lands.

May accredit an LGU, subject to certain requirements             DENR retains power of control over activities concerning
where appointments of local officials are no longer              community-based forestry projects (notwithstanding fact
subject to CSC approval.                                         of devolution), being the national agency authorized by
                                                                 the Administrative Code of 1987 to protect and preserve
Cannot nullify a board resolution calling for a                  the environment, which is a constitutional mandate.
reorganization in the local government offices – CSC has         Therefore, its power cannot be encroached upon by LGU.
jurisdiction only insofar as the implementation of the
reorganization is concerned. Proper forum to assail                      Department of Justice (DOJ) (role of Secretary of
resolution are the regular courts (RTC’s).                                Justice discussed above)
                                                                         Department of Budget and Management (DBM)
        Department of Interior and Local Government                     Department of Finance (DOF)
                                                                 Secretary of Finance is the proper appointing authority
General supervision is exercised by the President through        for treasurers, and the proper disciplining authority to
the Secretary of Local Government.                               issue preventive suspension.
Application for authority to travel abroad by all local          Local legislative councils are bereft of authority to initiate
officials and employees (other than governors, city              administrative action against the treasurer.
mayors or highly urbanized and independent component
cities) shall be approved by the Secretary. Failure to                   Department of Public Works and Highways
obtain authority ma constitute gross negligence and                       (DPWH)
dereliction of duty.

                                                                                                                   15 D2010
Local Government

General supervision over the implementation of the             Autonomous Region of Muslim Mindanao
National Building Code, including appellate jurisdiction
over the decisions and order of the local building officials   Peculiar to the 1987 Constitution, and contemplates the
remains with the Secretary of Public Works and                 grant of political autonomy (according to Cordillera
Highways.                                                      Broad Coalition vs. COA).

Local chief executive possesses the authority to appoint       Registration of motor vehicles whose effects are not
an engineer who shall also act as local building official.     confined to a region should not be devolved to the
                                                               ARMM and should remain with the LTO.
        Department of Energy (DOE)
        Department of Agriculture (DA)                        CAB has no authority to devolve or share any of its
        Department of Agrarian Reform (DAR)                   general and specific functions with the ARMM in the
        Department of Trade and Industry (DTI)                regulation of all entities engaged in air transportation or
        Laguna Lake Development Authority (LLDA)              air commerce. However, ARMM may assist CAB in the
                                                               performance of its functions.
        Philippine Amusement and Gaming Corporation
         (PAGCOR)                                              Regional government of ARMM may not enact a Regional
        Philippine Charity Sweepstakes Office (PCSO)          Public Works Act which will absolutely dispense with
        Public Estates Authority (PEA)                        public bidding since this would be contrary to public
        Cooperative Development Authority (CDA)               policy in the prosecution of public undertakings.
        Philippine Ports Authority (PPA)
        Metropolitan Waterworks and Sewerage System           May not also enact a Regional Police Force Law.
        Construction Industry Arbitration Commission          Employee of Sothern Philippines Development Authority
         (CIAC)                                                may refuse to be transferred to the ARMM and may
                                                               claim and be entitled to separation pay. Cannot be
Local autonomy and the judicial system                         obligated to transfer because of constitutional
                                                               prohibition against involuntary servitude.
The exercise of an authority or a power by a local
government unit may be judicially inquired into and            Permanent vacancies in the Sangguniang Bayan within a
corrected only if it is capricious, whimsical, unjust or       province situated in ARMM are filled by the provincial
unreasonable, there having been a denial of due process        governor, not regional governor.
or a violation of any other applicable constitutional
guarantee.                                                     Cordillera Autonomous Region

Internal acts of the Sangguniang Pampook of Region XII,        Peculiar to the 1987 Constitution, and contemplates the
which enjoyed administrative autonomy are subject to           grant of political autonomy. (according to Cordillera
the jurisdictionof the courts.                                 Broad Coalition vs. COA)

Courts have the power to inquire into the legality of the      CHAPTER THREE: Devolution
exercise of the power of eminent domain and to
                                                               Devolution – a mandatory process premised on the
determine whether there is genuine necessity therefor.
                                                               constitutional mandate that all local government units
Courts, not the CSC, are the proper forum to assail and        possess and enjoy local autonomy
seek nullification of a resolution for reorganization in the
                                                               E.O. 503 effectively extends the period of devolution
local government offices. CSC has jurisdiction only
                                                               from 6 months as provided for in the LGC to 1 year in
insofar as the implementation of the reorganization is
                                                               order to accommodate the smooth transition and
                                                               address difficulties in the devolution process.
Provinces, cities, municipalities and barangays
                                                               Powers devolved to LGU’s
These LGU’s enjoy administrative autonomy. The 1987
                                                               Specific grant necessary – the enumeration of powers
constitution ensures the autonomy of local governments
                                                               and services under sec. 17 of the LGC is not exclusive
and political subdivisions, and limits the President’s
power to general supervision over local governments.

D2010 16
                                                                                                    UP College of Law

Power to discipline locally assigned national employees               To ensure the administrative and technical
cannot be subject to the jurisdiction of the municipal                 capabilities of the LGU’s to provide the devolved
council (ex. fire personnel are under Bureau of Fire                   basic services and facilities at the local level
Protection of DILG, fire protection not being a devolved              To ensure that the delivery of basic services is
function)                                                              not duly prejudiced or disrupted.

Devolution has a corresponding effect on local budgeting       Incidents of absorption
                                                               Re-appointment of an employee to the same position
Although regulation of cockfighting has been devolved to       held prior to the reorganization constitutes a
local governments, a municipal government cannot issue         reconsideration of any previous objection to his/her
a permit to a promoter to hold cockfights in places other      earlier appointment.
than a licensed cockpit, since this would violate the law.
                                                               CSC has no power to disapprove appointments made to
Ports which are vital to the national interest and security    those already employed but subsequently devolved.
which are linked to each other are expressly excluded          Devolved personnel do not lose their security of tenure.
from the coverage of devolution.                               Even without appointment, they shall continue to hold
                                                               the position to which they were last appointed.
Implementation of locally-funded communal irrigation
projects (CIP) shall be devolved to LGU’s. The allocation      Exceptions
for locally funded CIP’s will no longer be released to the
National Irrigation Administration (NIA) as a                  Not administratively viable – there is a duplication of
consequence of devolution. However, foreign-assisted           functions when the duties and responsibilities of national
CIP’s fall outside the coverage of devolution.                 government agency personnel are similar to those of
                                                               incumbent local government employees, and their
Licensing and regulation of activities undertaken by           offices perform the same functions.
travel agencies, tour operators and professional congress
organizers should be transferred to LGU’s.                     However, this does not apply to a national employee
                                                               who is responsible for or attached to a devolved asset
There is partial devolution in terms of the functions of       (ex. drivers of devolved agencies). The LGU and National
the Cooperative Development Authority (CDA). The               Gov’t may invoke this provision if both agree as to the
functions devolved are the promotion, organization and         duplication, but LGU may still opt to absorb the
development of cooperatives. CDA retains the powers            employee.
relating to registration of cooperatives and the issuance
of rules and regulations, policies and guidelines.             Involuntary servitude – employee may refuse to be
                                                               transferred and may claim separation pay.
General supervision over the implementation of the
National Building Code, including appellate jurisdiction       Appointment not renewed – an appointment not
over the decisions and order of the local building officials   renewed by the DBM prior to the completion of the 6-
remains with the Secretary of Public Works and                 month process cannot be re-appointed on the basis
Highways.                                                      alone of the city government affected

With regard to the compensation and position                   Devolved personnel are considered local government
classification system, the Joint Commission on Local           personnel and should be covered by the existing Position
Government Personnel Administration was abolished              Classification and Pay Plan. There shall be no diminution
and transferred to the appropriate office in the CSC.          in pay or benefits, therefore they may continue to enjoy
                                                               higher rates than their counterparts. Gradual
Absorption of personnel                                        equalization of salaries of all local government personnel
                                                               must then be achieved to eliminate (or at least minimize)
Devolution does not only involve the delegation of the         the aforesaid disparity. To achieve this, LGU’s lower than
powers to regulate but also the transfer of the necessary      special cities and first class provinces may adopt the
assets and personnel.                                          salary schedule for higher LGU’s subject to the following

                                                                                                              17 D2010
Local Government

        LGU is financially capable                          Assets transferred to LGU’s pursuant to devolution
        Salary schedule shall be uniformly applied          cannot be recovered since the transfer is mandatory.
        Schedule of the highly urbanized cities and first   However, a provincial government may continue funding
         class provinces shall not be higher than that       a general hospital until the same is officially transferred
         adopted by the national government                  to the DBM. Since devolved hospitals have become
        In implementing a new and higher salary             components of LGU’s like other devolved national
         schedule, the salary grade allocation of            government agencies, they shall be covered by COA
         positions and salary steps of personnel shall be    Circular No. 92-382.
        Adoption shall be subject to budgetary and          Memoranda of Agreement to effect devolution
         general limitations on Personal Service
                                                             To effect devolution, a MOA must be effected between a
         Expenditures (Secs. 324-325, LGC)
                                                             National Government Agency and local governments
        In case of component cities and municipalities,     concerned. The local chief executive, in order to enter
         schedule shall not be higher than that of the       into an agreement, must have the authority of the local
         province or city where they belong                  legislative council. The DILG cannot revoke such
        Adoption of higher salary schedule shall not        agreement, rule on the alleged diminution of powers,
         alter existing classification of LGU concerned      nor pass upon the merits of the contents and provisions
                                                             of the agreement.
LGU’s may grant allowances/additional compensation to
national government employees assigned in their              Oversight Committee
localities at rates authorized by law, rules and
regulations, subject to the following conditions:            The OC is the body empowered to formulate and issue
                                                             the appropriate rules and regulations necessary for the
        Annual income or finances of LGU as certified by    efficient and effective implementation of all provisions of
         the local treasurer concerned will allow such       the LGC. Opinions rendered by it shall prevail over those
         grant without exceeding the general limitations     of the DOJ.
         for personal services
        Budgetary requirements (Sec. 324 of LGC and         The DOJ is bereft of authority to review or pass upon the
         R.A. 6758) have been satisfied and provided         rulings of the OC, unless the latter itself requests.
         fully in the budget as certified by the Budget
         Officer and COA representative                      The OC, however, cannot expand nor constrict the law.
        LGU has fully implemented the devolution of         It must always remain congruent to it. A resolution
         personnel/functions in accordance with the LGC      adopted by the OC is devoid of legal force and effect
                                                             unless approved by the President and subsequently
The mandatory absorption does not preclude affected          incorporated or embodied in an executive or
LGU’s from creating equivalent positions nor conferring      administrative order.
functions different from the position previously held by
the devolved employeee provided there is no diminution       Alfiler
of pay and benefits, reduction in rank and impairment of
tenure. Assignment of devolved personnel is an               See attachments
administrative decision of the LGU.
A local chief executive may appoint one person or a
committee to investigate, hear, make findings and            See attachments
submit recommendations incidental to administrative
complaints against erring appointive local officials,
including devolved personnel.

Transfer of assets

D2010 18
                                                                                                        UP College of Law

                                                                      CREATION OF LOCAL GOVERNMENT UNITS

Tan v. Comelec                                                  first paragraph of Section 197 is meant to be
                                                                synonymous with "land area" only.
BP 885 (an Act creating a new province of Negros del
Norte) was enacted. It provides for the new province’s          Torralba v. Municipality of Sibagat
component cities, boundaries, and the conduct of a
plebiscite for its creation. A plebiscite was held, pursuant    BP 56, enacted February 1980, created the Municipality
to the requirement of said BP (“shall be conducted in the       of Sibagat, Province of Agusan del Sur. Petitioners assail
proposed new province which are the areas affected”),           its validity for being violative of Section 3, Article XI, 1973
but the plebiscite was confined only to the inhabitants of      Constitution: “No province, city, municipality, or barrio
the territory of the new province, to the exclusion of the      may be created … except in accordance with the criteria
voters from the rest of the province. (Negros Occidental        established in the Local Government Code…”; that the
– some cities and municipalities of Negross Occidental =        LGC must first be enacted to determine the criteria for
Negros del Norte)                                               the creation of any province, city, municipality, or barrio
                                                                and since no LGC [came into being only on 10 February
WON the petition questioning the constitutionality and          1983] had yet been enacted as of the date BP 56 was
validity of the plebiscite renders the case moot and            passed, the latter could not have possibly complied with
academic because the result was in favor of the creation        any criteria when the Municipality was created.
of the new province and such creation was now fait
accompli.                                                       HELD: Section 3, Article XI, 1973 Constitution does not
HELD: No.                                                       prohibit the modification of territorial and political
It is the legality of the plebiscite itself which is            subdivisions before the enactment of the LGC. It does
challenged.                                                     not say that the LGC is a condition sine qua non for the
                                                                creation of a municipality. The constitutional provision
WON the province complied with the plebiscite                   simply means that once said Code is enacted, the
requirement.                                                    creation, modification or dissolution of LGUs should
HELD: No.                                                       conform with the criteria thus laid down. The power to
Sec 3, Art XI provides that “No province, city,                 create a municipal corporation is legislative in nature. In
municipality or barrio may be created, divided, merged,         the absence of any constitutional limitation, a legislative
abolished, or its boundary substantially altered, except in     body may create any corporation it deems essential for
accordance with the criteria established in the local           the more efficient administration of government. The
government code, and subject to the approval by a               creation of the new Municipality was a valid exercise of
majority of the votes in a plebiscite in the unit or units      legislative power vested by the 1973 Constitution in the
affected”. This means that the rest of Negros Occidental        Interim Batasang Pambansa. Pursuant to BP 56, a valid
must be included in the conduct of plebiscite as the            plebiscite has been conducted among the unit/s
boundaries of the existing province of Negros Occidental        affected. The officials of the new Municipality have taken
would necessarily substantially altered by the division of      their oaths and are performing their functions. A de jure
its existing boundaries in order that there can be created      entity has been created.
the proposed new province.
                                                                Bai Sema v. Comelec
WON the new province complied with the requirements
of land area.                                                   WON RA 9054 delegating to the ARMM Regional
HELD: No.                                                       Assembly the power to create provinces, cities,
Sec 197 of the LGC provides that “a province may be             municipalities and barangays, is constitutional.
created if it has a territory of at least three thousand five
hundred square kilometers, xxx. The territory need not          WON a province (created by the ARMM Regional
be contiguous if it comprises two or more islands.” The         Assembly under MMA Act 201) is entitled to one
use of the word territory clearly, reflects that it has         representative in the House of Representatives without
reference only to the mass of land area and excludes the        need of a national law creating a legislative district for
waters over which the political unit exercises control. It      such province
can be safely concluded that the word territory in the

                                                                                                                   19 D2010
Local Government

HELD: No.                                                      to create a legislative district. Even the creation of a city
For Congress to delegate validly the power to create a         with a population of less than 250,000 involves the
province or city, it must also validly delegate at the same    power to create a legislative district because once the
time the power to create a legislative district. Congress      city's population reaches 250,000, the city automatically
cannot delegate to the ARMM Regional Assembly the              becomes entitled to one representative under Section 5
power to create legislative districts for the House of         (3), Article VI of the Constitution and Section 3 of the
Representatives.                                               Ordinance appended to the Constitution. Thus, the
                                                               power to create a province or city inherently involves the
Congress can delegate to local legislative bodies the          power to create a legislative district.
power to create local government units, subject to
reasonable standards and provided no conflict arises           Province of North Cotabato v. GRP
with any provision of the Constitution. However, under
the Local Government Code, "only x x x an Act of               On 8/5/08, the government and the MILF were
Congress" can create provinces, cities or municipalities.      scheduled to sign a Memorandum of Agreement on the
                                                               Ancestral Domain Aspect of the GRP-MILF Tripoli
Under Section 19, Article VI of RA 9054, Congress              Agreement of Peace of 2001 in Malaysia.
delegated to the ARMM Regional Assembly the power to
create provinces, cities, municipalities and barangays         The Solicitor General, who represents respondents,
within the ARMM. Congress made the delegation under            summarizes the MOA-AD by stating that the same
its plenary legislative powers because the power to            contained, among others, the commitment of the parties
create local government units is not one of the express        to pursue peace negotiations, protect and respect
legislative powers granted by the Constitution to regional     human rights, negotiate with sincerity in the resolution
legislative bodies. In the present case, the question arises   and pacific settlement of the conflict, and refrain from
whether the delegation to the ARMM Regional Assembly           the use of threat or force to attain undue advantage
of the power to create provinces, cities, municipalities       while the peace negotiations on the substantive agenda
and barangays conflicts with any provision of the              are on-going.
                                                               WON the creation of the MOA-AD violates the
There is no provision in the Constitution that conflicts       Petitioners right to information on matters of public
with the delegation to regional legislative bodies of the      concern
power to create municipalities and barangays, provided
Section 10, Article X of the Constitution is followed.         HELD:
However, the creation of provinces and cities is another
matter. Section 5 (3), Article VI of the Constitution              (a) The MOA-AD is a matter of public concern,
provides, "Each city with a population of at least two                 involving as it does the sovereignty and
hundred fifty thousand, or each province, shall have at                territorial integrity of the State, which directly
least one representative" in the House of                              affects the lives of the people at large
Representatives. Similarly, Section 3 of the Ordinance             (b) The right to information contemplates inclusion
appended to the Constitution provides, "Any province                   of negotiations leading to the consummation of
that may hereafter be created, or any city whose                       the transaction
population may hereafter increase to more than two                 (c) The right includes (1) the right of the people to
hundred fifty thousand shall be entitled in the                        demand information and (2) the duty of the
immediately following election to at least one Member x                officialdom to give information even if nobody
x x."                                                                  demands.
                                                                   (d) E.O No 3 contemplates not just the conduct of a
Clearly, a province cannot be created without a                        plebiscite to effectuate “continuing”
legislative district because it will violate Section 5 (3),            consultations, and such establishes petitioners’
Article VI of the Constitution as well as Section 3 of the             right to be consulted on the peace agenda,
Ordinance appended to the Constitution. For the same                   corollary to the Constitutional right.
reason, a city with a population of 250,000 or more                (e) Presidential Adviser on the Peace Process
cannot also be created without a legislative district. Thus,           (PAPP) Esperon committed grave abuse of
the power to create a province, or a city with a                       discretion when he failed to carry out the
population of 250,000 or more, requires also the power                 pertinent consultation.

D2010 20
                                                                                                     UP College of Law

At least three pertinent laws animate these                    HELD: Yes.
constitutional imperatives and justify the exercise of the     In Paredes v. Executive Secretary the constitutional
people’s right to be consulted on relevant matters             provision on the need for a majority of the votes cast in
relating to the peace agenda.                                  the plebiscite in the unit or units affected would be
                                                               satisfied even if "those voters who are not from the
    1.   E.O. No. 3 itself is replete with mechanics for       barangay to be separated were excluded in the
         continuing consultations on both national and         plebiscite." It cannot be argued therefore that the
         local levels and for a principal forum for            plebiscite held in the areas affected to constitute
         consensus-building. In fact, it is the duty of the    Metropolitan Manila in the referendum on February 27,
         Presidential Adviser on the Peace Process to          1975 was not a sufficient compliance with the
         conduct regular dialogues to seek relevant            constitutional provision. With the voters in such four
         information, comments, advice, and                    cities and thirteen municipalities, now composing
         recommendations from peace partners and               Metropolitan Manila, having manifested their will, the
         concerned sectors of society.                         constitutional provision relied upon by petitioners has
    2.   The Local Government Code of 1991 requires all        been satisfied. It is to be noted likewise that at the time
         national offices to conduct consultations before      of such plebiscite in February, 1975, there was no Local
         any project or program critical to the                Government Code.
         environment and human ecology including
         those that may call for the eviction of a             Article VIII, Section 2 of the Constitution expressly
         particular group of people residing in such           recognized the juridical entity known as Metropolitan
         locality, is implemented therein. The MOA-AD is       Manila. Such express constitutional affirmation of its
         one peculiar program that unequivocally and           existence in the fundamental law calls for the dismissal
         unilaterally vests ownership of a vast territory to   of these petitions, there being no legal justification for
         the Bangsamoro people, which could                    the declaration of unconstitutionality of Presidential
         pervasively and drastically result to the diaspora    Decree No. 824. Nor was it the first time that there has
         or displacement of a great number of                  been acknowledgment in law of the creation of
         inhabitants from their total environment.             Metropolitan Manila.
    3.   Republic Act No. 8371 or the Indigenous Peoples
         Rights Act of 1997 provides for clear-cut             Under PD 824: "The Commission, the General Manager
         procedure for the recognition and delineation of      and any official of the Commission shall be under the
         ancestral domain, which entails, among other          direct supervision and control of the President.
         things, the observance of the free and prior          Notwithstanding any provision in this Decree, the
         informed consent of the Indigenous Cultural           President shall have the power to revoke, amend or
         Communities/Indigenous Peoples. Notably, the          modify any ordinance, resolution or act of the
         statute does not grant the Executive                  Commission, the General and the Commissioners." It
         Department or any government agency the               may give rise to doubts as to its validity insofar as it
         power to delineate and recognize an ancestral         confers the power of control on the President. That
         domain claim by mere agreement or                     control he certainly exercises under the present
         compromise.                                           Constitution over the ministries. His power over local
                                                               governments does not go that far. It extends no further
The invocation of the doctrine of executive privilege as a     than general supervision. These doubts, however, do not
defense to the general right to information or the             suffice to nullify such a provision. Succinctly put, that
specific right to consultation is untenable. The various       construction that would save is to be preferred as against
explicit legal provisions fly in the face of executive         one that will destroy. To show fidelity to this basic
secrecy. In any event, respondents effectively waived          principle of construction is to lend substance to the
such defense after it unconditionally disclosed the official   equally basic doctrine that the constitution enters into
copies of the final draft of the MOA-AD, for judicial          and forms part of every statute. Accordingly, the
compliance and public scrutiny.                                presidential power of control over acts of the Metro
                                                               Manila Commission is limited to those that may be
Lopez v. Comelec                                               considered national in character. Where, however, the
                                                               acts of the Metro Manila Commission may be considered
WON PD 824 (enacted November 1975) creating                    as properly appertaining to local government functions,
Metropolitan Manila is valid.

                                                                                                                21 D2010
Local Government

the power of the President is confined to general
                                                                         PRESUMPTION OF CONSTITUTIONALITY

Alvarez v. Guingona

RA 7720 converted the Municipality of Santiago, Isabela       regularly and automatically accrues to the local treasury
into an independent component city. Petitioners claim         without need of any further action on the part of the
that the said municipality has not met the minimum            LGU. Thus they constitute income which the local
average annual income required under the LGC. They            government can invariably rely upon as the source of
assert that Internal Revenue Allotments are not actually      much needed funds.
income but merely transfers and/or budgetary aid from
the national government and that they fluctuate,               The filing in the Senate of a substitute bill in anticipation
increase or decrease, depending on factors like               of its receipt of the bill from the House, does not
population, land and equal sharing.                           contravene the constitutional requirement that a bill of
                                                              local application should originate in the House of
Another contention of the petitioner is that RA 7330          Representatives, for as long as the Senate does not act
originated not from Congress but from the Senate.             thereupon until it receives the House bill. Nor does the
Apparently, RA 7330 originated from HB 8817 which was         Constitution prohibit the filing in the Senate of a
filed on April 18, 1993. After the third reading, the bill    substitute bill in anticipation of its receipt of the bill from
was transmitted to the Senate on January 18, 1994.            the House, so long as action by the Senate as a body is
Meanwhile, a counterpart bill SB 1243 was filed on May        withheld pending receipt of the House bill.
19, 1993. On February 23, 1994, HB 8817 was
transmitted to the senate. The committee recommended          Every law, including RA No. 7720,has in its favor the
that HB 8817 be approved without amendment, taking            presumption of constitutionality It is a well-entrenched
into consideration that the house bill was identical to the   jurisprudential rule that on the side of every law lies the
senate bill.                                                  presumption of constitutionality. Consequently, for RA
                                                              No. 7720 to be nullified, it must be shown that there is a
HELD:RA 7720 is valid.                                        clear and unequivocal breach of the Constitution, not
Internal Revenue Allotments are items of income               merely a doubtful and equivocal one; in other words, the
because they form part of the gross accretion of funds of     grounds for nullity must be clear and beyond reasonable
the LGU. They are included in computing the average           doubt.
annual income required to become a city. The IRA’s

                                                                                          POWERS AND FUNCTIONS

             A. Governmental powers and functions             HELD: the municipality cannot be held liable for the torts
                                                              committed by its regular employee, who was then
Municipality of San Fernando v. Firme                         engaged in the discharge of governmental functions.
                                                              The test of liability of the municipality depends on
A collision occurred involving (1) a passenger jeepney        whether or not the driver, acting in behalf of the
driven by Bernardo Balagot and owned by the Estate of         municipality, is performing governmental or proprietary
Macario Nieveras, (2) a gravel and sand truck driven by       functions. The municipal corporations exist in a dual
Jose Manandeg and owned by Tanquilino Velasquez and           capacity, and their functions are twofold. In one they
(3) a dump truck of the petitioner Municipality of San        exercise the right springing from sovereignty, and while
Fernando and driven by Alfredo Bislig. Several                in the performance of the duties pertaining thereto, their
passengers of the jeepney including Laureano Baniña Sr.       acts are political and governmental. Their officers and
died as a result of the injuries they sustained and 4         agents in such capacity, though elected or appointed by
others suffered physical injuries.                            them, are nevertheless public functionaries performing a
                                                              public service, and as such they are officers, agents, and

D2010 22
                                                                                                   UP College of Law

servants of the state. In the other capacity the             The North Cemetery is a patrimonial property of the City
municipalities exercise a private, proprietary or            of Manila which was created by resolution of the
corporate right, arising from their existence as legal       Municipal Board. The City of Manila prescribes the
persons and not as public agencies. Their officers and       procedure and guidelines for the disposition of burial lots
agents in the performance of such functions act in behalf    and plots within the cemetery through Admin. Order No.
of the municipalities in their corporate or individual       5, s.1975. With said acts of dominion, the cemetery is no
capacity, and not for the state or sovereign power."         doubt within the class of property which the City of
                                                             Manila owns in its proprietary or private character.
It has already been remarked that municipal
corporations are suable because their charters grant         There is no dispute that the burial lot was leased in favor
them the competence to sue and be sued. Nevertheless,        of the private respondents. Hence, obligation arising
they are generally not liable for torts committed by them    from contracting parties. Thus, a lease contract executed
in the discharge of governmental functions and can be        by the lessor and lessee remains as the law between
held answerable only if it can be shown that they were       them. Therefore a breach of contractual provision
acting in a proprietary capacity.                            entitles the other party to damages even if no penalty of
                                                             such breach is prescribed in the contract.
The driver of the dump truck of the municipality insists
that he was on his way to the Naguilian river to get a        Hence, the breach of a contractual obligation between
load of sand and gravel for the repair of San Fernando's     the City of Manila and plaintiff, involving property which
municipal streets. In the absence of any evidence to the     is patrimonial in character entitles the latter to damages.
contrary, the regularity of the performance of official
duty is presumed. Hence, the municipality cannot be
held liable for the torts committed by its regular
employee, who was then engaged in the discharge of
governmental functions. Hence, the death of the
passenger tragic and deplorable though it may be
imposed on the municipality no duty to pay monetary

             B. Proprietary powers and functions

City of Manila v. IAC

Vicencio Sto. Domingo, deceased husband of plaintiff
Irene Domingo was buried in a lot of the North Cemetery
which lot was leased by the City of Manila to Irene from
1971 to 2021. Irene paid the full rental thereof. In
January of 1978, the cemetery authorities exhumed and
removed the remains of Vivencio from the lot which
were then placed in a bag and kept in the bodega of the
cementery. When Irene went to the cemetery for All
Souls Day, she was shocked to learn that the remains of
her husband were not anymore in the lot as the same
had been rented out to another lessee.

HELD: The City of Manila is a political body corporate and
as such endowed with the faculties of municipal
corporations to be exercised by and through its city
government in conformity with law, and its proper
corporate name. It may sue and be sued and contract
and be contracted with. Its powers are two fold in
character, public, governmental or political on one hand,
and corporate private and proprietary on the other hand.

                                                                                                             23 D2010
Local Government

                                                             Part II
         Decentralization; Local Autonomy; Powers of Municipal Corporations


Public Corporations, Chapters IV – VII                             Sec. 11. Selection and Transfer of Local Government
(Martin)                                                           Site, Offices and Facilities

                                                                   The law or ordinance creating or merging local
         Chapters IV – VI, see above
                                                                   government units shall specify the seat of government
CHAPTER SEVEN: Powers of municipal corprorations                   from where governmental and corporate services shall
                                                                   be delivered.
Sources of Powers of Municipal Corporations:
                                                                   Factors relevant in selection of seat of government:
    1.    Constitution                                             geographical centrality, accessibility, availability of
    2.    Statutes of the State                                    transportation and communication facilities, drainage
    3.    Charter                                                  and sanitation, development and economic progress,
    4.    In some states which adhere to it, the doctrine          and other relevant considerations.
          of the inherent right of self-government, with
          respect to certain municipal matters                     Transfer of seat of government:

Classification of municipal powers                                              •    When conditions and developments in
                                                                                     the LGU concerned have significantly
    1.    Express Powers – are those granted in express                              changed
          word by the special charter or the general law                        •    Public hearing and two-thirds vote of
          under which the corporation is organized                                   all the members of the Sanggunian
    2.    Implied Powers – are those powers which arise                         •    No transfer shall be made outside the
          by natural implication from the grant of express                           territorial boundaries of the LGU.
          powers or by necessary inference from the                             •    The old site and improvements thereon
          purposes or functions of the corporation                                   may be disposed of by sale or lease or
    3.    Inherent Powers – are those which are                                      converted to such other use as the
          necessary and inseparable from every                                       Sanggunian concerned may deem
          corporation, and which come into existence as a                            beneficial to the LGU concerned and its
          matter of course as soon as a municipality is                              inhabitants.
          created. They are the common-law powers of a
          corporation                                              Transfer, relocation, and conversion to other uses of
    4.    Legislative Power – is the authority to make             local government offices and facilities:
          laws. This power is generally vested in the
                                                                                •    Public hearings conducted for the
          common council.
    5.    Executive Power – is the authority to enforce
                                                                                          i. Concurrence of the majority of
          laws, or appoint the agents charged with the
                                                                                              all the members of the
          duty of such enforcement; generally vested in
          the mayor and the heads of the designated
          departments and other officers created by law.           Sec. 12. Government Centers.
Chapter II Book I , LGC (Sec 6 – 24)                               Government center - where offices, agencies, or
                                                                   branches of the National Government, LGUs, or
         Sec 6 – 10, see above

D2010 24
                                                                                                     UP College of Law

government-owned or controlled corporations may be                     Public vocational or technical schools and other
located.                                                                post-secondary and tertiary schools
                                                                       Provincial hospitals, health centers, and other
LGUs, in designating such a center, shall take into                     health facilities
account the existing facilities of national and local                  Any other public place or building owned by the
agencies and offices which may serve as the government                  provincial government.
                                                                The Sanggunians of highly urbanized cities and
The National Government, LGU, or government-owned               independent component cities (i.e., component cities
or controlled corporation concerned shall bear the              whose charters prohibit their voters from voting for
expenses for the construction of its buildings and              provincial elective officials) may change the names of the
facilities in the government center.                            following:
Sec. 13. Naming of Local Government Units and Public                   City barangays, upon the recommendation of
Places, Streets and Structures.                                         the sangguniang barangay concerned
                                                                       City roads, avenues, boulevards, thoroughfares,
        By the Sanggunian
                                                                        and bridges
        Of LGUs, public places, streets, and structures
                                                                       Public elementary, secondary and vocational or
         within their territorial jurisdiction (see below for
                                                                        technical schools, community colleges and non-
         detailed list)
                                                                        chartered colleges
        In consultation with PHC
                                                                       City hospitals, health centers and other health
              o In changes of name of public schools,
                   upon recommendation of the local
                                                                       Any other public place or building owned by the
                   school board
                                                                        city government.
              o In changes of names of publc hospitals,
                   health centers, and other health             The Sanggunians of component cities and municipalities
                   facilities, upon recommendation of the
                                                                may change the names of the following:
                   local health board
        With notice to the Office of the President, the               City and municipal barangays, upon
         representative of the legislative district                     recommendation of the sangguniang barangay
         concerned, and the Bureau of Posts                             concerned
        Ratified in a plebiscite conducted for the                    City, municipal and barangay roads, avenues,
         purpose in the political unit directly affected                boulevards, thoroughfares, and bridges
                                                                       City and municipal public elementary, secondary
                                                                        and vocational or technical schools, post-
                                                                        secondary and other tertiary schools
        Cannot be named after a living person
                                                                       City and municipal hospitals, health centers and
        Justifiable reason
                                                                        other health facilities
        Not oftener than once in ten years
                                                                       Any other public place or building owned by the
        The name of a LGU or a public place, street or
                                                                        municipal government.
         structure with historical, cultural, or ethnic
         significance shall not be changed, unless by a         Sec. 14. Beginning of Corporate Existence.
         unanimous vote of the Sanggunian concerned
         and in consultation with the PHC.                      An LGU’s corporate existence commences upon the
                                                                election and qualification of its chief executive and a
The Sangguniang Panlalawigan may change the names of            majority of the members of its Sanggunian, UNLESS some
the following:                                                  other time is fixed therefor by the law or ordinance
                                                                creating it.
        Component cities and municipalities, upon the
         recommendation of the Sanggunian concerned             Sec. 15. Political and Corporate Nature of Local
         (i.e., Sanggunian of the component city and            Government Units.
        Provincial roads, avenues, boulevards,                 Every LGU is a body politic and corporate endowed with
         thoroughfares, and bridges                             powers to be exercised by it in conformity with law.

                                                                                                               25 D2010
Local Government

As such, LGUs exercise powers…                                       Health and social welfare services which include
                                                                      maintenance of barangay health center and
        as a political subdivision of the National                   day-care center
         Government                                                  Services and facilities related to general hygiene
        as a corporate entity representing the                       and sanitation, beautification, and solid waste
         inhabitants of its territory                                 collection
                                                                     Maintenance of katarungang pambarangay
Sec. 16. General Welfare.
                                                                     Maintenance of barangay roads and bridges and
Every LGU shall exercise powers…                                      water supply systems
                                                                     Infrastructure facilities such as multi-purpose
        expressly granted                                            hall, multipurpose pavement, plaza, sports
        necessarily implied therefrom                                center, and other similar facilities
        necessary, appropriate, or incidental for its               Information and reading center
         efficient and effective governance                          Satellite or public market, where viable
        essential to the promotion of the general
                                                              For Municipalities

LGUs shall ensure and support, among other things, the               Extension and on-site research services and
preservation and enrichment of culture, promote health                facilities related to agriculture and fishery
and safety, enhance the right of the people to a balanced             activities which include dispersal of livestock
ecology, encourage and support the development of                     and poultry, fingerlings, and other seedling
appropriate and self-reliant scientific and technological             materials for aquaculture; palay, corn, and
capabilities, improve public morals, enhance economic                 vegetable seed farms; medicinal plant gardens;
prosperity and social justice, promote full employment                fruit tree, coconut, and other kinds of seedling
among their residents, maintain peace and order, and                  nurseries; demonstration farms; quality control
preserve the comfort and convenience of their                         of copra and improvement and development of
inhabitants.                                                          local distribution channels, preferably through
                                                                      cooperatives inter-barangay irrigation systems;
Sec. 17. Basic Services and Facilities.                               water and soil resources utilization and
                                                                      conservation projects; and enforcement of
LGUs shall…                                                           fishery laws in municipal waters including the
                                                                      conservation of mangroves
        endeavor to be self-reliant and continue                    Pursuant to national policies and subject to
         exercising the powers and discharging the                    supervision, control and review of the DENR,
         duties and functions currently vested upon                   implementation of community-based forestry
         them                                                         projects which include integrated social forestry
        discharge the functions and responsibilities of              programs and similar projects; management and
         national agencies and offices devolved to them               control of communal forest with an area not
         pursuant to the LGC                                          exceeding fifty (50) square kilometers;
        exercise such other powers and discharge such                establishment of tree parks, greenbelts, and
         other functions and responsibilities as are                  similar forest development projects
         necessary, appropriate, or incidental to efficient          Subject to the provisions of Title Five, Book I of
         and effective provision of the basic services and            the LGC, health services which include the
         facilities                                                   implementation of programs and projects on
                                                                      primary health care, maternal and child care,
Basic services and facilities (not an exclusive list)                 and communicable and non-communicable
                                                                      disease control services; access to secondary
For Barangays
                                                                      and tertiary health services; purchase of
        Agricultural support services which include                  medicines, medical supplies, and equipment
         planting materials distribution system and                   needed to carry out the services herein
         operation of farm produce collection and buying              enumerated
         stations                                                    Social welfare services which include programs
                                                                      and projects on child and youth welfare, family

D2010 26
                                                                                                    UP College of Law

        and community welfare, women's welfare,                       cooperatives, and other collective organizations,
        welfare of the elderly and disabled persons;                  as well as the transfer of appropriate technology
        community-based rehabilitation programs for                  Industrial research and development services,
        vagrants, beggars, street children, scavengers,               as well as the transfer of appropriate technology
        juvenile delinquents, and victims of drug abuse;             Pursuant to national policies and subject to
        livelihood and other pro-poor projects; nutrition             supervision, control and review of the DENR,
        services; and family planning services                        enforcement of forestry laws limited to
       Information services which include investments                community-based forestry projects, pollution
        and job placement information systems, tax and                control law, small-scale mining law, and other
        marketing information systems, and                            laws on the protection of the environment; and
        maintenance of a public library                               mini-hydro electric projects for local purposes
       Solid waste disposal system or environmental                 Subject to the provisions of Title Five, Book I of
        management system and services or facilities                  this Code, health services which include
        related to general hygiene and sanitation                     hospitals and other tertiary health services
       Municipal buildings, cultural centers, public                Social welfare services which include programs
        parks including freedom parks, playgrounds, and               and projects on rebel returnees and evacuees;
        other sports facilities and equipment, and other              relief operations and, population development
        similar facilities                                            services
       Infrastructure facilities intended primarily to              Provincial buildings, provincial jails, freedom
        service the needs of the residents of the                     parks and other public assembly areas, and
        municipality and which are funded out of                      other similar facilities
        municipal funds including, but not limited to,               Infrastructure facilities intended to service the
        municipal roads and bridges; school buildings                 needs of the residents of the province and
        and other facilities for public elementary and                which are funded out of provincial funds
        secondary schools; clinics, health centers and                including, but not limited to, provincial roads
        other health facilities necessary to carry out                and bridges; inter-municipal waterworks,
        health services; communal irrigation, small                   drainage and sewerage, flood control, and
        water impounding projects and other similar                   irrigation systems; reclamation projects; and
        projects; fish ports; artesian wells, spring                  similar facilities
        development, rainwater collectors and water                  Programs and projects for low-cost housing and
        supply systems; seawalls, dikes, drainage and                 other mass dwellings, except those funded by
        sewerage, and flood control; traffic signals and              the Social Security System (SSS), Government
        road signs and similar facilities                             Service Insurance System (GSIS), and the Home
       Public markets, slaughterhouses and other                     Development Mutual Fund (HDMF): Provided,
        municipal enterprises                                         That national funds for these programs and
       Public cemetery                                               projects shall be equitably allocated among the
       Tourism facilities and other tourist attractions,             regions in proportion to the ratio of the
        including the acquisition of equipment,                       homeless to the population
        regulation and supervision of business                       Investment support services, including access to
        concessions, and security services for such                   credit financing
        facilities                                                   Upgrading and modernization of tax information
       Sites for police and fire stations and substations            and collection services through the use of
        and the municipal jail                                        computer hardware and software and other
For Provinces                                                        Inter-municipal telecommunications services,
                                                                      subject to national policy guidelines
       Agricultural extension and on-site research
                                                                     Tourism development and promotion programs
        services and facilities which include the
        prevention and control of plant and animal           For Cities
        pests and disease; dairy farms, livestock
        markets, animal breeding stations, and artificial            All the services and facilities of the municipality
        insemination centers; and assistance in the                   and province
        organization of farmers' and fishermen's

                                                                                                               27 D2010
Local Government

        Adequate communication and transportation                       of rank, salary or tenure
        Support for education, police and fire services                Regional offices of national agencies or offices
         and facilities                                                  whose functions are devolved to LGUs shall be
        Public works and infrastructure projects and                    phased out within one year from the approval
         other facilities, programs and services funded by               of the LGC.
         the National Government under the annual                       National agencies and offices may establish such
         General Appropriations Act, other special laws,                 field units as may be necessary for monitoring
         pertinent executive orders, and those wholly or                 purposes and providing technical assistance to
         partially funded from foreign sources, are not                  LGUs.
         covered under this section, except in those                    The properties, equipment, and other assets of
         cases where the local government unit                           these regional offices shall be distributed to the
         concerned is duly designated as the                             LGUs in the region in accordance with the rules
         implementing agency for such projects,                          and regulations issued by the Oversight
         facilities, programs, and services.                             Committee.

The designs, plans, specifications, testing of materials,       The National Government or the next higher level of
and the procurement of equipment and materials from             local government unit may provide or augment the basic
both foreign and local sources necessary for the                services and facilities assigned to a lower level of local
provision of the foregoing services and facilities shall be     government unit when:
undertaken by the LGU concerned, based on national
policies, standards and guidelines.                                     Services or facilities are not made available
                                                                        If made available, they are inadequate to meet
Devolution                                                               the requirements of its inhabitants

        Act by which the National Government confers           Funding of basic services and facilities
         power and authority upon the various local
         government units to perform specific functions                 From the share of local government units in the
         and responsibilities                                            proceeds of national taxes and other local
        National agencies or offices shall devolve to                   revenues and funding support from the National
         local government units the responsibility for the               Government, its instrumentalities and
         provision of basic services and facilities within               government-owned or controlled corporations
         six (6) months after the effectivity of the LGC.                which are tasked by law to establish and
              o Includes the transfer to LGUs of the                     maintain such services or facilities
                   records, equipment, and other assets                 To ensure the active participation of the private
                   and personnel of national agencies and                sector in local governance, LGUs may, by
                   offices corresponding to the devolved                 ordinance, sell, lease, encumber, or otherwise
                   powers, functions, and responsibilities.              dispose of public economic enterprises owned
              o Personnel of said national agencies or                   by them in their proprietary capacity
                   offices shall be absorbed by the LGUs                Costs may also be charged for the delivery of
                   to which they belong or in whose areas                basic services or facilities enumerated in this
                   they are assigned to the extent that it is            Section.
                   administratively viable as determined                Any fund or resource available for the use of
                   by the Oversight Committee                            local government units shall be first allocated
              o The rights accorded to personnel                         for the provision of basic services or facilities
                   pursuant to civil service law, rules and              before applying the same for other purposes,
                   regulations shall not be impaired                     unless otherwise provided in the LGC
        Regional directors who are career executive
         service officers and other officers of similar rank    Sec. 18. Power to Generate and Apply Resources.
         in the said regional offices who cannot be
         absorbed by the LGU shall be retained by the           LGUs’ proprietary powers:
         National Government, without any diminution
                                                                        to establish an organization that shall be
                                                                         responsible for the efficient and effective

D2010 28
                                                                                                   UP College of Law

        implementation of their development plans,           fair market value at the time of the taking of the
        program objectives and priorities                    property.
       to create their own sources of revenue and to
        levy taxes, fees, and charges which shall accrue     Sec. 20. Reclassification of Lands.
        exclusively for their use and disposition and
        which shall be retained by them                              City or municipality
       to have a just share in national taxes which shall           Through an ordinance passed by the Sanggunian
        be automatically and directly released to them               After public hearing for the purpose
        without need of any further action                           In the following cases:
       to have an equitable share in the proceeds from                    o when the land ceases to be
        the utilization and development of the national                         economically feasible and sound for
        wealth and resources within their respective                            agricultural purposes as determined by
        territorial jurisdictions including sharing the                         DA
        same with the inhabitants by way of direct                         o where the land shall have substantially
        benefits                                                                greater economic value for residential,
       to acquire, develop, lease, encumber, alienate,                         commercial, or industrial purposes, as
        or otherwise dispose of real or personal                                determined by the Sanggunian
        property held by them in their proprietary                              concerned:
        capacity and to apply their resources and assets             Limited to the following percentages of the total
        for productive, developmental, or welfare                     agricultural land area at the time of the passage
        purposes, in the exercise or furtherance of their             of the ordinance
        governmental or proprietary powers and                             o Highly urbanized and independent
        functions and thereby ensure their                                      component cities - 15%
        development into self-reliant communities and                      o Component cities and first to the third
        active participants in the attainment of national                       class municipalities - 10%
        goals.                                                             o Fourth to sixth class municipalities - 5%
                                                                     BUT President upon recommendation of NEDA
Sec. 19. Eminent Domain.                                              may authorize a city or municipality to reclassify
                                                                      lands in excess of the abovementioned limits
LGUs’ exercise of power of eminent domain, requisites:                when public interest so requires
                                                                     Agricultural lands distributed to agrarian reform
       Through the chief executive                                   beneficiaries under R.A. No. 6657 (CARL) shall
       Pursuant to an ordinance                                      not be affected. Conversion of such lands into
       For public use, or purpose, or welfare for the                other purposes shall be governed by Section 65
        benefits of the poor and the landless                         of CARL.
       Upon payment of just compensation
       Pursuant to the provisions of the Constitution       Sec. 65, CARL
        and pertinent laws
       Valid and definite offer made to the owner that      Conversion of Lands
        was not accepted
                                                             After the lapse of five (5) years from its award, when the
LGU may immediately take possession of the property          land ceases to be economically feasible and sound for
upon                                                         agricultural purposes, or the locality has become
                                                             urbanized and the land will have a greater economic
       Filing of the expropriation proceedings              value for residential, commercial or industrial purposes,
       Deposit with the proper court of at least 15% of     the DAR, upon application of the beneficiary or the
        the FMV of the property based on the current         landowner, with due notice to the affected parties, and
        tax declaration of the property to be                subject to existing laws, may authorize the
        expropriated                                         reclassification or conversion of the land and its
                                                             disposition: Provided, That the beneficiary shall have
The amount to be paid for the expropriated property          fully paid his obligation.
shall be determined by the proper court, based on the
                                                             LGUs shall continue to prepare their respective
                                                             comprehensive land use plans enacted through zoning

                                                                                                             29 D2010
Local Government

ordinances which shall be the primary and dominant                   For the establishment of shopping malls,
bases for the future use of land resources. Requirements              Sunday, flea or night markets, or shopping areas
for food production, human settlements, and industrial                where goods, merchandise, foodstuffs,
expansion shall be taken into consideration in the                    commodities, or articles of commerce may be
preparation of such plans.                                            sold and dispensed to the general public
                                                                     Any local street, road, thoroughfare, or any
When approval by a national agency (e.g., DA) is required             other public place
for reclassification, such approval shall not be                     By a duly enacted ordinance
unreasonably withheld. Failure to act on a proper and
complete application for reclassification within three (3)    Sec. 22. Corporate Powers.
months from receipt of the same shall be deemed as
approval thereof.                                             LGUs’ corporate powers:

Sec. 21. Closure and Opening of Roads.                               To have continuous succession in its corporate
Requisites                                                           To sue and be sued
                                                                     To have and use a corporate seal
       Pursuant to an ordinance
                                                                     To acquire and convey real or personal property
       With provisions for the maintenance of public
                                                                     To enter into contracts
                                                                     To exercise such other powers as are granted to
In cases of permanent closure:                                        corporations, subject to the limitations provided
                                                                      in this Code and other laws
       Ordinance must be approved by at least two-
        thirds of all the members of the Sanggunian           Corporate seals
       An adequate substitute for the public facility
                                                                     LGUs may continue using, modify, or change
        that is subject to closure must be provided
                                                                      their existing corporate seals
        when necessary
                                                                     Newly established LGUs or those without
       BUT no freedom park shall be closed
                                                                      corporate seals may create their own corporate
        permanently without provision for its transfer
                                                                      seals which shall be registered with the DILG
        or relocation to a new site (adequate substitute
                                                                     Any change of corporate seal shall also be
        always necessary)
                                                                      registered with DILG.
             o A property permanently withdrawn
                  from public use may be used or              Contracts
                  conveyed for any purpose for which
                  other real property belonging to the               Unless otherwise provided in the LGC, no
                  LGU concerned may be lawfully used or               contract may be entered into by the local chief
                  conveyed                                            executive in behalf of the LGU without prior
                                                                      authorization by the Sanggunian concerned.
Temporary closures                                                   A legible copy of the contract shall be posted at
                                                                      a conspicuous place in the provincial capitol or
       During an actual emergency, or fiesta
                                                                      the city, municipal or barangay hall.
        celebrations, public rallies, agricultural or
        industrial fairs, or an undertaking of public         Fiscal autonomy
        works and highways, telecommunications, and
        waterworks projects                                          LGUs shall enjoy full autonomy in the exercise of
       Any national or local road, alley, park, or square            their proprietary functions and in the
       Duration shall be specified by the local chief                management of their economic enterprises,
        executive concerned in a written order                        subject to the limitations provided in the LGC
       No national or local road, alley, park, or square             and other applicable laws.
        shall be temporarily closed for athletic, cultural,
        or civic activities not officially sponsored,         Sec. 23. Authority to Negotiate and Secure Grants.
        recognized, or approved by the LGU

D2010 30
                                                                                                    UP College of Law

Local chief executives may negotiate and secure financial    First: attached to the main trunk of municipal authority;
grants or donations in kind from local and foreign           relates to ordinances and regulations necessary to carry
assistance agencies                                          into effect and discharge the powers and duties
                                                             conferred upon the municipal council by law.
        upon authority of the Sanggunian,
        in support of the basic services or facilities      Second: much more independent of the specific
         enumerated under Sec. 17                            functions of the council which are enumerated by law;
        without necessity of securing clearance or          authorizes ordinances that seem to be necessary and
         approval therefor from any department, agency,      proper to provide for the health and safety, promote the
         or office of the National Government of from        prosperity, improve the morals, peace, good order,
         any higher LGU                                      comfort and convenience of the municipality and the
              o BUT projects with national security          inhabitants, and for the protection of property.
                   implications shall be approved by the
                   national agency concerned                 General Rule: Ordinances passed by virtue of the implied
              o When the national agency fails to act        power of the general welfare clause must be:
                   on the request for approval within
                                                                     Reasonable
                   thirty (30) days from receipt thereof,
                   the same shall be deemed approved                 Consonant with the general powers and
                                                                      purposes of the corporation
        report of nature, amount, and terms to both
         Houses of Congress and the President within                 Not inconsistent with the laws or policy of the
         thirty (30) days upon signing of such grant                  State
         agreement or deed of donation                       The powers of the municipal corporations are to be
                                                             construed strictissimi juris, and any doubt or ambiguity
Sec. 24. Liability for Damages.
                                                             must be construed against the municipality.
LGUs and their officials are not exempt from liability for
                                                             Exercise of police power may be judicially inquired into
death or injury to persons or damage to property.
                                                             and corrected only if it is capricious, whimsical, unjust or
Compendium on Local Government,                              unreasonable, there having been a denial or due process
Chapters 5 – 6 (Agra)                                        or a violation of any other applicable constitutional
CHAPTER FIVE: Police Power, Power of Eminent                 Zoning
Domain, General Powers and Authority
                                                             A zoning ordinance or regulation is a valid exercise of
    A. Police power, general welfare clause                  police power and has the effect of nullifying or
                                                             superseding contractual obligations. The rule of non-
Police power is inherent in the State, but not in
                                                             impairment of contracts is not absolute – it must be
municipal corporations. There must be a valid delegation
                                                             reconciled with the legitimate exercise of police power.
of such power by the National Legislature (which is the
                                                             Laws and reservation of essential attributes of sovereign
repository of inherent powers of the State) in order for
                                                             power are read into contracts agreed upon by parties
the MC to exercise such power. MC’s exercise such
                                                             and they form part of, and are read into, every contract,
power under the general welfare clause. The power is
                                                             unless clearly excluded in cases where exclusion is
broad and is said to be commensurate with but not
exceeding the duty to provide for the real needs of the
people in their health, safety, comfort and convenience,     Police power cannot be surrendered or bargained away
and consistently as may be with private rights. Police       through the medium of a (lease) contract earlier
power is said to be the most essential, insistent, and       executed. Police power may be activated anytime.
illimitable of powers, and in a sense, the greatest and
most powerful attribute of government. To secure the         Financial assistance
general welfare of the State and the fundamental aim of
government, the rights of the individual may be              LGU may use unappropriated available public funds for
subordinated.                                                extending financial assistance to qualified (indigent)
                                                             bereaved families. Public purpose is not unconstitutional
Two Branches of the General Welfare Clause

                                                                                                              31 D2010
Local Government

merely because it incidentally benefits a limited number       ordinance invalid for being unnecessary considering
of persons. (However, may not be applied to heirs of           there are other available lots.
deceased local government officials as financial
assistance.)                                                   Role of national government agencies

Improper exercise of police power                              The approval of the national government is not required
                                                               for local governments to exercise its power of eminent
The prohibition of establishment of legitimate                 domain.
enterprises (such as night clubs and cabarets) is not valid.
Under B.P. 337, local governments are only empowered           Stages in actions for expropriation
to regulate their operations.
                                                               First: Determination of authority of plaintiff to exercise
Confiscation of products                                       such power, and the propriety of its exercise in the
                                                               context of the facts involved. Ends with an order (if not
A city mayor has no authority to cause the                     dismissal) of condemnation declaring the lawful right of
seizure/confiscation of meat products in contravention         plaintiff to take the property. Such order is a final order.
of a city ordinance, as it is a violation of due process
requirements.                                                  Second: Determination by the court of the just
                                                               compensation as of the date of the filing of the
    B.   Power of eminent domain                               complaint, with the assistance of not more than three
                                                               commissioners. Such order fixing the just compensation
As exercised by LGU’s, it is only a delegated power. The       shall be final as well.
statutes conferring such power cannot be broadened or
constricted by implication. As a right, it is founded on       Public purpose or use
genuine necessity, and the necessity must be of public
character and for the public good. Therefore, LGU’s may        Under the new concept, public use means public
not capriciously choose what private property should be        advantage, convenience or benefit which tends to
taken.                                                         contribute to the general welfare and prosperity of the
                                                               whole community.
Courts have the power to inquire into the legality of the
exercise of the rights and to determine whether there is       Right to take property
genuine necessity therefore.
                                                               Only after the deposit of just compensation.
Requisites for the Valid Exercise of Eminent Domain:
                                                               Complaint for eminent domain
        Ordinance must be passed authorizing the local
         chief executive to subject a certain property to      A complaint which failed to mention the existence of a
         expropriation                                         valid and definite offer, and that such offer was not
                                                               accepted but alleges that repeated negotiations were
        Public use, purpose or welfare of poor and
                                                               made but failed is sufficient to show cause of action.
        Payment of just compensation                              C.   General powers and authority
        Valid and definite offer to pay property, which
         was not accepted                                      Restraint of Trade – Sangguniang Panlalawigan cannot
                                                               totally ban the buying and selling of all kinds of liquor
A municipal ordinance authorizing the mayor to file            since this is tantamount to restraint of trade. Granting it
expropriation proceedings must be approved by the              may be done, it must be expressly provided for by the
provincial board.                                              law. However, in order to promote general welfare the
                                                               State may interfere with personal liberty, property,
Role of higher/supervising local government
                                                               business and occupations. Thus, a person may be
Sangguniang panlalawigan has the power to declare a            subjected to certain kinds of restraints and burdens in
municipal ordinance providing for the exercise of              order to secure the general welfare of the State.
eminent domain invalid on the SOLE GROUND that it is
                                                               Compulsory Processes – the contempt power of the
beyond the power of the sangguniang bayan or the
                                                               national legislature is sui generis, as its exercise is a
mayor to issue. Therefore, the SP cannot declare the

D2010 32
                                                                                                      UP College of Law

matter of self-preservation (it asserts its authority as one    LGC only provides for the imposition of a fine. Forfeiture
of the three independent and coordinate branches of the         of salary likewise cannot be validly prescribed.
gov’t, independent of the judicial branch and punishes
contempt) and local legislative bodies cannot correctly         Sangguniang barangay cannot enact an ordinance
claim to possess it for the same reasons the national           identical to an ordinance of the city of municipality but
legislature does. As the contempt power and subpoena            with a lesser penalty, since the former is inconsistent
power partake of a judicial nature, they cannot be              with the latter.
implied in the grant of legislative power. If there is no
express statutory basis, it would run afoul of the doctrine     Contracting Loans – LGU cannot contract external or
of the doctrine of separation of powers. This must be           foreign loans since LGC only provides for guarantee by
considered an exception to Sec. 4 of B.P. 337, which            the President of local or domestic loans.
provides for liberal rules of interpretation in favour of
                                                                Conduct of Legislative Inquiry – municipal mayor cannot
local autonomy.
                                                                require that all heads of departments and EE’s obtain his
LGU’s cannot proclaim religious or local holidays – such        clearance and permission before appearing before any
power rests within the President                                governmental entity.

Reclassificaton of Land – the authority of the Sanggunian       Scholarship Grants – scholarship fund may only be
is limited to the reclassification of agricultural lands. The   applied to schools within its jurisdiction.
power of cities and municipalities to reclassify
                                                                Legislative Voting Requirement – local legislative council
agricultural land into commercial, industrial and
                                                                cannot provide for more than majority vote for the
residential status is only for the purpose of assessment
                                                                passage of appropriations ordinances, since LGC requires
and real property taxation.
                                                                only simple majority. However, sanggunian may provide
Reclassification – power lodged with the LGU; act of            for different vote requirement for other certain
allocating lands to different activities or classes of land     ordinances.
uses, evolved and enacted through local planning and
                                                                Change of Name of Government Center – prior
zoning processes. DAR approval is not necessary.
                                                                consultation with Philippines Historical Commission
Land Conversion – power lodged with DAR; actual                 required
change in land use and takes into account tenants and
                                                                Requiring Performance Reports – may not be req’d by
farmworkers, if any, and ascertainment of disturbance
                                                                sangguniang panlalawigan because it may cause work
compensation. HOWEVER, such power to issue
                                                                disruption, and such function is essentially executive, not
conversion clearance and/or approve/disapprove
applications can only be exercised on or after June 15,
1988, the date of the effectivity of the Comprehensive          Regulation of Property – public property is outside the
Agrarian Reform Law (CARL).                                     commerce of man, therefore cannot be the subject of
                                                                lease or contract, and constructions thereon can be
Role of DAR – the power of DAR to approve or
                                                                summarily abated by the LGU. The power to regulate
disapprove conversions is limited to the applications for
                                                                public property is with the LGU.
reclassification submitted by land owners or tenant
beneficiaries. DAR’s authority to convert agricultural          Public Plaza
land should be exercised in conjunction with the
devolved powers of the LGU’s to reclassify such land.           Public Streets – road lots in a private subdivision are
However, once a landholding has been acquired at                private property, hence local governments must first
redistributed to qualified beneficiaries pursuant to CARL,      acquire them by donation, purchase or expropriation if
it is excluded from the authority to LGU’s to reclassify.       they wish to utilize them
Nothing in the LGC shall be construed to repeal, modify
or amend the CARL.                                              Land reclaimed by the PEA for and on behalf of the State
                                                                is no longer part of the public domain and public use.
Prescribing penal provisions
                                                                An LGU must comply with the legal conditions imposed
Sangguniang barangay cannot provide for the [enalty of          on a donation.
imprisonment for violations of barangay ordinances –

                                                                                                                33 D2010
Local Government

Public Markets                                                Logging Activities – DENR’s powers cannot be
                                                              encroached upon by the LGU
                                                              Quarrying Activities – provincial governor’s authority to
Disposal of Real Property is Proper When:                     grant and issue quarry permits extends only to public
        Public bidding is conducted
        Price offered by vendee is higher than the           Fishing, Fishery Privileges
         appraised value
        Deed of sale is signed by the local chief            Maintaining Dumpsites – must not endanger
         executive, with the authority of the sanggunian      environment, health, safety and welfare of residents
        Certification is issued that said lot is no longer
         needed for public use as duly verified by the        Littering – fine may be validly imposed
                                                              Power to Enter into Contracts
Transfer of Property to Local Governments – lots covered
                                                              Contracts entered into by local chief executives have the
by a Certificate of Land Ownership Award (CLOA) issued
                                                              force of law between parties and should be complied
pursuant to CARL can only be transferred or acquired
through the DAR in order to be reallocated to another
beneficiary. The term “government” does not                   A chief executive acting pursuant to a resolution already
contemplate its political subdivisions.                       adopted by the council in signing the deed of sale to
                                                              qualified buyers determined after public bidding was
Use of Land – a municipality may change the use of a
                                                              exercising a purely ministerial duty incidental to his
piece of land if there are no such express restrictions in
the contract to sell/contract of sale; it may also enter
into a joint venture agreement with a private entity          Council/Sanggunian authorization is a condition sine qua
embodied in a MOA signed by the local chief executive, a      non for the validity of a contract entered into by a local
representative of the private entity and ratified by the      chief executive. Authorization may take the form of a
sanggunian; HOWEVER, a chapel may not be                      resolution.
constructed on land owned by the gov’t based on the
separation of church and state                                Traffic Regulation – temporary street closures may be
                                                              done through an ordinance
As a LESSOR – LGU may file an action for illegal detention
and demand eviction for violation of lease contract and       Issuance of Permits – the issuance, revocation or
non-payment of rentals                                        cancellation of permits is a discretionary act subject to
                                                              strict implementation as to its scope
Abatement of Public Nuisance – Local government
officials cannot seek cover under the general welfare         Authority to issue – business permits are subject to the
clause authorizing the abatement of nuisances without         regulatory powers of the city mayor
judicial proceedings. This tenet applies to a nuisance per
se, which affects the immediate safety of persons and         Rejection of application – a mayor may refuse the
property, and may be summarily abated under the               granting of a permit only if there are valid reasons
undefined law of necessity. If it be a nuisance per           embodied in an appropriate ordinance or national law; in
accidens, it may be proven in a hearing conducted for         the absence of such law or ordinance, the mayor may
that purpose. It is not per se a nuisance warranting its      not validly refuse to grant the permit to a legitimate
abatement without judicial intervention. While the            enterprise due to the principle of free enterprise and
Sangguniang Bayan may provide for the abatement of a          competition; also, issuance may not be withheld based
nuisance, it cannot declare a particular thing as a           on none-payment of taxes and imposts
nuisance per se and order its condemnation. It can only
be so adjudged by judicial determination.                     Cancellation of permit – may not be revoked if operator
                                                              was not informed of a specific violation of the LGC, as it
Land Use Planning                                             will be violative of due process

D2010 34
                                                                                                     UP College of Law

Franchises – power to issue National Franchises lies with      unit must participate, not merely those that form part of
the National Government, devolution is only with respect       the new unit
to regulatory powers within the jurisdictions concerned.
However, the grant of franchises for the establishment,                Applies only to new LGU’s created for the first
construction, operation and maintenance of public                       time under the 1987 Constitution – therefore no
markets and bus/jeepney terminals are within the                        plebiscite is necessary in the case of a municipal
concern of the sanggunians. Although the municipality                   corporation which has attained de facto status
has the authority to grant franchises, the authority to                 at the time the 1987 Constitution took effect.
collect franchise tax is under the power of the province               In case of a negative vote, sub-province shall
and not the municipality.                                               continue to be part of the original province, to
                                                                        be represented by officials of the original
Coal Corporations – power of regulation lies with the                   province.
DOE                                                                    There is no law authorizing the holding of
                                                                        special elections for the first set of barangay
Casinos, Gambling – power of LGU’s to suppress                          officials of newly-created barangays, therefore,
gambling refers only to illegal gambling                                such election cannot be conducted together
                                                                        with the SK elections.
                                                               Abolition of LGU’s – enactment of an ordinance by
Padlocking of Premises
                                                               sangguniang panlalawigan or panlungsod concerned and
Local Infrastructure Projects – authority of LGU’s to          the conduct of a plebiscite required
undertake reclamation projects is limited to those
                                                               Principle of non-user – only applies to private
funded out of local funds; projects funded by the
                                                               corporation law; does not apply to municipal
National Gov’t are lodged with the PEA; regular courts
are prohibited from issuing writs to stop any person,
entity, government official or LGU from proceeding with        Conversion of LGU’s – bills of local application must
or continuing the execution or implementation of amn           originate from the House of Representatives and initiate
infrastructure project approved by the President through       the legislative process which would culminate in the
the Executive Secretary (P.D. 3-A).                            enactment of a Statute. A technical description similar to
                                                               those in Torrens titles is not a condition sine qua non (it
Creation of LGU’s – the power to create political
                                                               would defeat the purpose of the LGC). What is required
subdivisions is a function of the legislature (ex.
                                                               is a reasonable ascertainment of the area.
conversion of municipal districts into regular
municipalities)                                                Reapportionment of Legislative Districts – may be made
                                                               by a special law, such as the enactment by special law of
Internal Revenue Allotments (IRA) is included in
                                                               a charter of a new city. Congress may increase its own
computation of average annual income (part of general
                                                               composition through legislative enactment.
income of gov’t units)
                                                               Settling Boundary Disputes
Population requirement of 5,000 for the creation of a
barangay within a highly urbanized city is mandatory (but              Between barangays – referred to sangguniang
does not apply to those already existing)                               bayan or panlungsod concerned; Office of the
                                                                        President has no jurisdiction
Registered voters of highly urbanized cities shall be
                                                                       Between adjacent municipalities within a
prohibited from voting in elections at the provincial level,
                                                                        province – elevated to sangguniang
unless reclassification occurs after ratification of 1987
Constitution, but before effectivity of LGC of 1991.
                                                                       Between independent component city and a
Plebiscite - to be conducted in the “political units                    municipality, or highly urbanized cities and
directly affected”, (1) meaning residents of the political              municipalities – jointly referred to respective
entity who would be economically dislocated by the                      sanggunians
separation have a right to vote, and (2) referring to the
plurality of political units which would participate; whole    Barangay Clearances – barangays are only authorized to
                                                               issue clearances for business and impose reasonable

                                                                                                                 35 D2010
Local Government

fees, but are not allowed to issue business permits or        Ultra Vires Acts of Private Organizations – local chief
licenses. Barangay clearance cannot be denied on              executives may file a complaint against such
grounds other than those specified in the appropriate         organizations with the appropriate national government
ordinance.                                                    unit pursuant to a resolution adopted by the sanggunians

Warrants of Arrest – mayors are no longer authorized to       Additional Insurance Benefits – council by way of
issue such warrants                                           ordinance may not increase insurance benefits of
                                                              municipalities officials and EE’s since this would
Election Activities – COMELEC has exclusive jurisdiction      unreasonable add up to the tax burden of the
over cases involving the enforcement of the Election          inhabitants, resulting in the violation of the principle
Code; the transfer of officers and employees within the       forbidding the appropriation of public funds for private
election period is prohibited, except for the purpose of      purposes
coping with emergencies and efficiency in the
government service                                            Imposition of Curfew – may be exercised pursuant to
                                                              police power, but not by the local chief executive alone.
Abolition of an Office – express power to create local        Sanggunian enact an ordinance – determine the
offices (absent any contrary provision), impliedly carries    necessity, reasonableness, condition and procedures.
with it the power to abolish said office in GOOD FAITH.
                                                              Inter-Local Gov’t Cooperation – local government may
Relocation of Homeless – responsibility of both LGU and       group themselves and procure equipment from domestic
National Housing Authority                                    and foreign sources for purposes commonly beneficial to
                                                              them, provided national policies, standards and
Inclusion in Special Economic Zones – R.A. 7227 provides      guidelines are followed.
that the creation of the Subic Special Economic Zone is
subject to the concurrence of concerned municipalities        Incorporation of Stock Corporations – only natural
and cities by resolution. However, the Subic Authority        persons can become incorporators of such corporations;
shall prevail in conflicts concerning matters affecting the   prohibition extends to its local officials being agents of
zone.                                                         the province (principal).

Assistance to Sectors – public purpose is not                 CHAPTER SIX: Inter-Local Government Relations
unconstitutional merely because it incidentally benefits a
limited number of persons                                     Local Separation of Powers

Creation of Fishery Resources Management Council by           Doctrine of Separation of Powers and System of Checks-
way of Ordinance                                              and-Balance apply to local governments.

Appointment to Local Offices – punong barangays may           It is the duty of public officers to enforce ordinances not
appoint purok leaders, provided the appropriate               otherwise repealed by the council nor annulled by the
ordinance has been enacted and the council thereafter         courts.
approves the appointment.
                                                              Local chief executive (LCE) may validly enter into a
Projects, Countrywide Development Fund – sanggunian           contract only with council authorization. Prior
is authorized to compel a congressman to seek its prior       authorization is not the same as pre-approval of
approval before the implementation of any projects, as        contracts. Local councils do not possess the authority to
the LGC provides that national projects must be               pre-approve contracts after prior authorization has been
approved by the sanggunian prior to their                     given. Prior authorization also does not mean prior
implementation. However, an appropriations ordinance          authorization for the payment of obligations.
is not required to facilitate the release of funds from the
Countrywide Development Fund of Representatives of            LCE cannot require that all requests for appropriations
Congress. Legislation, however, must be enacted               be endorsed by him before they can be enacted.
specifying the infrastructure and priority projects.
                                                              Designation of members of the Personnel Selection
Issuance of Bonds – any security issued or guaranteed by      Board as determined by the sanggunian by resolution
the gov’t or any of its political subdivisions is exempt      must be approved by the LCE (merely ministerial).
from registration; exempt securities

D2010 36
                                                                                                     UP College of Law

Mayor has no administrative supervision over                   invalid for being beyond the power conferred upon its
sanggunian EE’s; authority to approve applications for         respective sanggunians, is equivalent to a disapproval of
LOA’s of sanggunian members and appointive EE’s rests          the subject ordinance or resolution.
with the vice LCE.
                                                               When a province sells delinquent properties at a public
Signature of governor required in the resolution adopted       auction, it was not only acting on its behalf but also on
by sangguniang panlalawigan approving or disapproving          behalf of the municipalities concerned. Therefore when
the ordinance or resolution enacted by sangguniang             the province buys such lot (no other bidder), the
pankungsod/bayan.                                              municipalities may be considered co-owners thereof to
                                                               the extent of their respective shares in the real property
While authority to regulate traffic and use of streets         taxes and penalties thereon.
rests with the sanggunian, the execution of an ordinance
relating to it is the responsibility of the LCE.               The exercise of the power to tax by a (component) city
                                                               also granted to a province deprives the province from
The authority of the LCE of the higher supervising unit to     imposing a similar tax – thus exclusive power is granted
impose preventive suspension is purely ministerial, since      to the city to collect and levy the subject tax, fees and
the disciplinary authority over erring local legislative       charges.
officials of the supervised unite is the sanggunian of the
higher unit.                                                   Real property assessments made by city or municipal
                                                               assessors are not subject to approval by the provincial
Sanggunian is in the best position to determine rates of       assessor – the latter merely exercises technical
mayor’s permit fees to be levied are just, reasonable,         supervision.
and not confiscatory.
                                                               A municipality is entitled to a share in the proceeds from
Additional functions maybe given the vice mayor only as        the real property tax and lease rentals of subject
may be provided by law or ordinance, otherwise he may          property collected by the province.
validly refuse.
                                                               The power to levy tax on sand and gravel exclusively
LCE is mandated by law to represent the LGU, no                belongs to the province although a component city or
sanggunian authorization necessary.                            municipality has a share in the proceeds if the said tax.
Power of appointment of the vice-mayor is limited to           If franchise tax is imposed by the province, a component
officials and EE’s of the sanggunian, as well as EE’s of the   city of municipality has no share.
office of the vice mayor.
                                                               City/municipality and barangay
Authority to discipline municipal sanggunian members
and EE’s lies with the vice LCE, since he had                  The power to regulate facilities rests upon the unit which
administrative supervision over EE’s, being the one with       owns the same.
the power to appoint the same.
                                                               In interpreting ambiguous provisions of the LGC,
Barangay Audit Reports to be transmitted to the vice           resolution is in favour of the lower LGU.
mayor, not the LCE, for information and appropriate
action.                                                        Authority to enter into contracts involving barangay
                                                               roads within a municipality rests with the barangay
Mayor is administrator when drawing checks in the              affected, not the municipality. The municipality only
settlement of obligations.                                     exercises regulatory powers over municipal roads.

Barangay kagawads perform tasks assigned pursuant to a         Barangay ordinances are subject to review by the city or
valid resolution, and may be required to submit monthly        municipal councils and not the other way around.
accomplishment forms.
                                                               A municipal mayor does not have authority to control
Province and component city/municipality                       the disbursement of barangay funds and internal
                                                               revenue allotments, nor withhold the share of the
Declaration by the sangguniang panlalawigan that a             barangay from the internal revenue allotment on the
particular city or municipal ordinance or resolution is        basis of an election protest. He/She also does not have

                                                                                                                37 D2010
Local Government

the authority to control barangay projects. Such             Confirmation from the sangguniang bayan is not
prerogatives belong to the punong barangay.                  required.

A city/municipality possesses the POWER to SUPERVISE         Services of the municipal engineer may be secured by a
over component barangays. Such power, however, does          barangay in the implementation of barangay
not permit infringement upon the legislative powers of       infrastructure projects after prior representation has
the lower LGU to the extent of dictating changes on the      been made to the LCE concerned.
policies or decisions. The higher sanggunian must be
guided by liberality of construction and fundamental         Sangguniang bayan may suspend all barangay officials,
principles of local autonomy. This power does not            which authorizes the mayor to appoint temporary
include the power to restrain, nor does it mean that the     replacements, provided such appointees possess all the
sangguniang bayan may invalidate any ordinance               necessary qualifications and none of the disqualifications
enacted by the sangguniang barangay. It may only point       provided by law.
out the defect.
                                                             Where there is no law which authorizes the holding of
Approval of vouchers is merely ministerial on the part of    special elections to fill-in the positions created by the
the mayor after the mayor after the treasurer (1) has        incorporation of new barangays, the mayor may fill up
certified the availability of funds and (2) an appropriate   the vacancies, there being permanent vacancies. If there
ordinance has been enacted and was subsequently              are no permanent vacancies, neither the mayor nor the
approved by him/her. The mayor may not require a             punong barangay have the authority to appoint officials.
punong barangay to personally present the barangay
payroll.                                                     Past and present administrations

Only a city and a municipality may issue business permits    The newly-elected LCE must abide by the contractual
and licenses. Barangay has no such power.                    obligations made by the former administration since the
                                                             party-in-interest is the LGU. However, an authority to
The new sharing scheme provided for by the LGC does          negotiate loans granted by the local legislative council to
not take place automatically. An ordinance must be           the past LCE does not extend to the newly-elected
enacted by the sangguniang bayan or panlungsod               official.
concerned in order to install it.
                                                             The previous LCE, not the succeeding one, has the
Appointment of the barangay treasurer only needs the         authority to observe and evaluate the performance of
concurrence of the sangguniang bayan concerned.              the employee concerned, where the act complained of
                                                             was done during the previous administration.

                                               LOCAL GOVERNMENT UNITS VIS A VIS NATIONAL GOVERNMENT

             A. Power of general Supervision                 or modifies or sets aside a tax ordinance, he is not
                                                             permitted to substitute his own judgment for the
Drilon v. Lim                                                judgment of the local government that enacted the
Section 187 LGC authorizes the Secretary of Justice to
review the constitutionality or legality of the tax          The acts of Secretary Drilon in setting aside the Manila
ordinance and, if warranted, to revoke it on either or       Revenue Code, was of mere supervision, not control:
both of these grounds. Pursuant to this, Secretary of
Justice Drilon declared Ordinance No. 7794 (Manila                   he did not replace the MRC with his own
Revenue Code), null and void for non-compliance with                  version.
the prescribed procedure in the enactment of tax                     He did not pronounce the ordinance unwise or
ordinances and for containing certain provisions contrary             unreasonable as a basis for its annulment.
to law and public policy.                                            He did not say that in his judgment it was a bad
HELD: Section 187 of LGC is valid.
Under this provision, when the Secretary of Justice alters

D2010 38
                                                                                                      UP College of Law

All he did in reviewing the said measure was determine if          6.   must be general and consistent with public
the petitioners were performing their functions in                      policy.
accordance with law, that is, with the prescribed
procedure for the enactment of tax ordinances and the          PD 1605 does not allow either the removal of license
grant of powers to the city government under the LGC.          plates or the confiscation of driver's licenses for traffic
                                                               violations committed in Metropolitan Manila. There is
On the other hand, an officer in control lays down the         nothing in the following provisions of the decree
rules in the doing of an act. If they are not followed, he     authorizing the Metropolitan Manila Commission to
may, in his discretion, order the act undone or re-done        impose such sanctions. In fact, the provisions prohibit
by his subordinate or he may even decide to do it              the imposition of such sanctions in Metropolitan Manila.
                                                               That the municipal enactment must not violate existing
Supervision does not cover such authority. The                 law explains itself. Local political subdivisions are able to
supervisor or superintendent merely sees to it that the        legislate only by virtue of a valid delegation of legislative
rules are followed, but he himself does not lay down           power from the national legislature (except only that the
such rules, nor does he have the discretion to modify or       power to create their own sources of revenue and to levy
replace them. If the rules are not observed, he may order      taxes is conferred by the Constitution itself). They are
the work done or re-done but only to conform to the            mere agents vested with the power of subordinate
prescribed rules. He may not prescribe his own manner          legislation. As delegates of the Congress, the LGU cannot
for the doing of the act. He has no judgment on this           contravene but must obey at all times the will of their
matter except to see to it that the rules are followed.        principal.

All he is permitted to do is ascertain the constitutionality   The enactments in question, which are merely local in
or legality of the tax measure, without the right to           origin, cannot prevail against the PD 1605, which has the
declare that, in his opinion, it is unjust, excessive,         force and effect of a statute. The measures do not
oppressive or confiscatory. He has no discretion on this       merely add to the requirement of PD 1605 but, worse,
matter.                                                        impose sanctions the decree does not allow and in fact,
                                                               prohibits. In so doing, the ordinances disregard and
Solicitor General v. Metropolitan Manila                       violate and in effect partially repeal the law. Nowhere is
Authority                                                      the removal of license plates directly imposed by the
                                                               decree or at least allowed by it to be imposed by the
SC ruled that the confiscation of license plates by the        Commission.
MMC was not among the powers conferred upon it by its
charter (PD 1605). It was also “observed” by the SC that       Ganzon v. CA
confiscation of the driver’s licenses was not directly
prescribed or allowed by PD 1605. SC received several          The petitions of Mayor Ganzon originated from a series
letters-complaint that people’s licenses were                  of administrative complaints, ten in number, filed against
confiscated. MMA issued Ordinance No. 11 authorizing           him by various city officials sometime in 1988, on various
itself "to detach the license plate or tow and impound         charges, among them, abuse of authority, oppression,
attended or unattended or abandoned motor vehicles             grave misconduct, disgraceful and immoral conduct,
illegally parked or obstructing the flow of traffic in Metro   intimidation, culpable violation of the Constitution, and
Manila."                                                       arbitrary detention. He was placed in preventive
                                                               suspension for 3 times by the respondent Secretary of
HELD: Ordinance null and void for being an invalid             Local Government on different occasions based on
exercise of delegated legislative power.                       different administrative complaints filed against him.

Test for a valid municipal ordinance:                          Mayor Ganzon assailed the power of the respondent to
                                                               suspend him alleging that the 1987 Constitution no
    1.   must not contravene the Constitution or any           longer allows the President, as the 1935 and 1973
         statute;                                              Constitutions did, to exercise the power of suspension
    2.   must not be unfair or oppressive;                     and/or removal over local officials.
    3.   must not be partial or discriminatory;
    4.   must not prohibit but may regulate trade;             HELD: The Sec of Local Government, as the alter ego of
    5.   must not be unreasonable; and                         the President, has the power to suspend local officials.

                                                                                                                 39 D2010
Local Government

Autonomy does not contemplate making mini-states out           means, and no more, to assist prosecutors in firming up a
of local government units, as in the federal governments       case, if any, against an erring local official. Under the
of the USA. Autonomy, in the constitutional sense, is          Local Government Code, it can not exceed sixty days,
subject to the guiding star, though not control, of the        which is to say that it need not be exactly sixty days long
legislature, albeit the legislative responsibility under the   if a shorter period is otherwise sufficient, and which is
Constitution - and as the "supervision clause" itself          also to say that it ought to be lifted if prosecutors have
suggest - is to wean local government units from over          achieved their purpose in a shorter span.
dependence on the central government.
                                                               Mactan Cebu International Airport
It is noteworthy that under the Charter, "local                Authority v. Marcos et al
autonomy" is not instantly self-executing, but subject to,
among other things, the passage of a local government          The Officer of the Treasurer of Cebu City demanded
code, a local tax law, income distribution legislation, and    payment for realty taxes on parcels of land belonging to
a national representation law, and measures designed           petitioner MCIAA. Petitioner objected invoking its tax
to realize autonomy at the local level. It is also             exemption. It also asserted that it is an instrumentality of
noteworthy that in spite of autonomy, the Constitution         the government performing governmental functions,
places the local government under the general                  citing section 133 of the LGC which puts limitations on
supervision of the Executive. It is noteworthy finally, that   the taxing powers of LGUs. The city refused insisting that
the Charter allows Congress to include in the local            petitioner is a GOCC performing proprietary functions
government code provisions for removal of local officials,     whose tax exemption was withdrawn by Sections 193
which suggest that Congress may exercise removal               and 234 of the LGC.
powers, and as the existing Local Government Code has
done, delegate its exercise to the President.                  HELD: There can be no question that under Section 14 RA
                                                               6958 the petitioner is exempt from the payment of realty
Autonomy, however, is not meant to end the relation of         taxes imposed by the National Government or any of its
partnership and interdependence between the central            political subdivisions, agencies, and instrumentalities.
administration and local government units, or otherwise,       Nevertheless, since taxation is the rule and exemption is
to usher in a regime of federalism. The Charter has not        the exception, the exemption may thus be withdrawn at
taken such a radical step. Local governments, under the        the pleasure of the taxing authority. Tax exemptions or
Constitution, are subject to regulation, however limited,      incentives granted to or presently enjoyed by natural or
and for no other purpose than precisely, albeit                juridical persons, including government-owned and
paradoxically, to enhance self-government.                     controlled corporations, Section 193 of the LGC
                                                               prescribes the general rule, viz., they are withdrawn
However, the Court held that the successive suspensions        upon the effectivity of the LGC, except upon the
were excessive and not proper. What bothers the Court,         effectivity of the LGC, except those granted to local
and what indeed looms very large, is the fact that since       water districts, cooperatives duly registered under R.A.
the Mayor is facing ten administrative charges, the
                                                               No. 6938, non stock and non-profit hospitals and
Mayor is in fact facing the possibility of 600 days of         educational institutions, and unless otherwise provided
suspension, in the event that all ten cases yield prima
                                                               in the LGC.
facie findings. The Court is not of course tolerating
misfeasance in public office (assuming that Ganzon is          The terms "Republic of the Philippines" and "National
guilty of misfeasance) but it is certainly another question    Government" are not interchangeable. The former is
to make him serve 600 days of suspension, which is             boarder and synonymous with "Government of the
effectively, to suspend him out of office.                     Republic of the Philippines" which the Administrative
                                                               Code of the 1987 defines as the "corporate
The plain truth is that this Court has been ill at ease with
                                                               governmental entity though which the functions of the
suspensions, for the above reasons, and so also, because       government are exercised through at the Philippines,
it is out of the ordinary to have a vacancy in local           including, saves as the contrary appears from the
government. The sole objective of a suspension, as we          context, the various arms through which political
have held, is simply "to prevent the accused from
                                                               authority is made effective in the Philippines, whether
hampering the normal cause of the investigation with his       pertaining to the autonomous reason, the provincial,
influence and authority over possible witnesses" or to         city, municipal or barangay subdivision or other forms of
keep him off "the records and other evidence." It is a         local government." These autonomous regions,

D2010 40
                                                                                                    UP College of Law

provincial, city, municipal or barangay subdivisions" are     make them more effective partners in the pursuit of
the political subdivision. On the other hand, "National       national development and social progress." At the same
Government" refers "to the entire machinery of the            time, it relieves the central government of the burden of
central government, as distinguished from the different       managing local affairs and enables it to concentrate on
forms of local Governments." The National Government          national concerns. The President exercises "general
then is composed of the three great departments the           supervision" over them, but only to "ensure that local
executive, the legislative and the judicial. An "agency" of   affairs are administered according to law." He has no
the Government refers to "any of the various units of the     control over their acts in the sense that he can substitute
Government, including a department, bureau, office            their judgments with his own.
instrumentality, or government-owned or controlled
corporation, or a local government or a distinct unit         Decentralization of power, on the other hand, involves
therein;" while an "instrumentality" refers to "any           an abdication of political power in the favor of local
agency of the National Government, not integrated             governments units declared to be autonomous. In that
within the department framework, vested with special          case, the autonomous government is free to chart its
functions or jurisdiction by law, endowed with some if        own destiny and shape its future with minimum
not all corporate powers, administering special funds,        intervention from central authorities. According to a
and enjoying operational autonomy; usually through a          constitutional author, decentralization of power amounts
charter. This term includes regulatory agencies,              to "self-immolation," since in that event, the
chartered institutions and government-owned and               autonomous government becomes accountable not to
controlled corporations".                                     the central authorities but to its constituency.

MCIAA is not an agency or instrumentality of the              But the question of whether or not the grant of
government but only a GOCC, thus, LGUs may tax them.          autonomy to Muslim Mindanao under the 1987
                                                              Constitution involves, truly, an effort to decentralize
             B. Decentralization, local autonomy              power rather than mere administration is a question
                                                              foreign to this petition, since what is involved herein is a
Limbona v. Mangelin                                           local government unit constituted prior to the ratification
                                                              of the present Constitution. Hence, the Court will not
Petitioner Speaker Alimbusat Limbona was the speaker          resolve that controversy now, in this case, since no
of the regional legislative assembly of central Mindanao.     controversy in fact exists. We will resolve it at the proper
He was invited to attend a conference and hence he            time and in the proper case. Under the 1987
advised acting secretary Alimbuyao to inform the              Constitution, local government units enjoy autonomy in
assemblyman that there will be no session on such that        these two senses
he will be away.
                                                              An autonomous government that enjoys autonomy of
The Assembly held session in defiance of petitioner's         the latter category is subject alone to the decree of the
advice. After declaring the presence of a quorum, all         organic act creating it and accepted principles on the
present voted that the seat of the speaker be declared        effects and limits of "autonomy." On the other hand, an
vacant. The petitioner then went to court praying that        autonomous government of the former class is, as we
judgment be rendered declaring the proceedings held by        noted, under the supervision of the national government
respondents during the session and his ouster as null and     acting through the President (and the Department of
void.                                                         Local Government). If the Sangguniang Pampook (of
                                                              Region XII), then, is autonomous in the latter sense, its
The respondents assails the jurisdiction of the Court to      acts are, debatably, beyond the domain of this Court in
rule upon the issue.                                          perhaps the same way that the internal acts, say, of the
                                                              Congress of the Philippines are beyond our jurisdiction.
HELD: Autonomy is either decentralization of
                                                              But if it is autonomous in the former category only, it
administration or decentralization of power. There is
                                                              comes unarguably under our jurisdiction.
decentralization of administration when the central
government delegates administrative powers to political       An examination of the very Presidential Decree creating
subdivisions in order to broaden the base of government       the autonomous governments of Mindanao persuades us
power and in the process to make local governments            that they were never meant to exercise autonomy in the
"more responsive and accountable," and "ensure their          second sense, that is, in which the central government
fullest development as self-reliant communities and

                                                                                                               41 D2010
Local Government

commits an act of self-immolation. Presidential Decree         those budgets. They are not formulated in the inner
No. 1618, in the first place, mandates that "[t]he             sanctums of an all-knowing DBM and unilaterally
President shall have the power of general supervision          imposed on local governments whether or not they are
and control over Autonomous Regions." 33 the second            relevant to local needs and resources. It is for this reason
place, the Sangguniang Pampook, their legislative arm, is      that there should be a genuine interplay, a balancing of
made to discharge chiefly administrative services.             viewpoints, and a harmonization of proposals from both
                                                               the local and national officials. It is for this reason that
Hence, we assume jurisdiction. And if we can make an           the nomination and appointment process involves a
inquiry in the validity of the expulsion in question, with     sharing of power between the two levels of government.
more reason can we review the petitioner's removal as
Speaker.                                                       Ganzon v. CA (supra)
The expulsion of the petitioner has no force and effect.       See above
In the first place, there is no showing that the
Sanggunian had conducted an investigation, and whether         Cordillera Broad Coalition v. COA
or not the petitioner had been heard in his defense,
assuming that there was an investigation, or otherwise         EO 220, issued by the President in the exercise of her
given the opportunity to do so. In the second place, the       legislative powers under Art. XVIII, sec. 6 of the
resolution appears strongly to be a bare act of vendetta       Constitution, created the Cordillera Administrative
by the other Assemblymen against the petitioner arising        Region (CAR). Petitioners argue that the creation of CAR
from what the former perceive to be abduracy on the            contravened the constitutional guarantee of local
part of the latter. While it is within the discretion of the   autonomy for provinces and cities composing it.
members of the Sanggunian to punish their erring
colleagues, their acts are nonetheless subject to the          HELD: It must be clarified that the constitutional
moderating hand of this Court in the event that such           guarantee of local autonomy in the Constitution refers to
discretion is exercised with grave abuse.                      the administrative autonomy of local government units
                                                               or, cast in more technical language, the decentralization
San Juan v. Civil Service Commission                           of government authority. Local autonomy is not unique
                                                               to the 1987 Constitution, it being guaranteed also under
Petitioner governor San Juan recommended Santos to             the 1973 Constitution. And while there was no express
the position of Provincial Budget Officer for Rizal            guarantee under the 1935 Constitution, the Congress
Province. However, in defiance to such                         enacted the Local Autonomy Act (R.A. No. 2264) and the
recommendation, DBM Regional Officer Galvez                    Decentralization Act (R.A. No. 5185), which ushered the
appointed Almajosa instead. The governor protested.            irreversible march towards further enlargement of local
The DBM issued a memo ruling that petitioner’s protest         autonomy in the country.
is not meritorious as the DBM validly exercised its
prerogative in filling-up the contested position since         On the other hand, the creation of autonomous regions
none of the petitioner's nominees met the prescribed           in Muslim Mindanao and the Cordilleras, which is
requirements.                                                  peculiar to the 1987 Constitution, contemplates the
                                                               grant of political autonomy and not just administrative
HELD: When the Civil Service Commission interpreted the        autonomy to these regions. Thus, the provision in the
recommending power of the Provincial Governor as               Constitution for an autonomous regional government
purely directory, it went against the letter and spirit of     with a basic structure consisting of an executive
the constitutional provisions on local autonomy. If the        department and a legislative assembly and special courts
DBM Secretary jealously hoards the entirety of                 with personal, family and property law jurisdiction in
budgetary powers and ignores the right of local                each of the autonomous regions.
governments to develop self-reliance and resoluteness in
the handling of their own funds, the goal of meaningful         CAR is a mere transitory coordinating agency that would
local autonomy is frustrated and set back.                     prepare the stage for political autonomy for the
                                                               Cordilleras. It fills in the resulting gap in the process of
Provincial and municipal budgets are prepared at the           transforming a group of adjacent territorial and political
local level and after completion are forwarded to the          subdivisions already enjoying local or administrative
national officials for review. They are prepared by the
local officials who must work within the constraints of

D2010 42
                                                                                                       UP College of Law

autonomy into an autonomous region vested with                  the power to destroy. The power to grant still includes
political autonomy.                                             the power to withhold or recall. True, there are certain
                                                                notable innovations in the Constitution, like the direct
Magtajas v. Pryce Properties                                    conferment on the local government units of the power
Corporation                                                     to tax, which cannot now be withdrawn by mere statute.
                                                                By and large, however, the national legislature is still the
In 1992, representatives from PPC made representations          principal of the local government units, which cannot
with the Pagcor on the possibility of setting up a casino       defy its will or modify or violate it.
in Pryce Plaza Hotel in Cagayan de Oro City. On
November 1992, the parties executed a contract of lease         Casino gambling is authorized by P.D. 1869. This decree
involving the ballroom of the hotel which would be              has the status of a statute that cannot be amended or
converted into a casino.                                        nullified by a mere ordinance. Hence, it was not
                                                                competent for the Sangguniang Panlungsod of Cagayan
Sangguniang Panglungsod of CDO passed several                   de Oro City to enact Ordinance No. 3353 prohibiting the
ordinances prohibiting the establishment of gambling            use of buildings for the operation of a casino and
casinos. PPC and PAGCOR assail the authority to pass            Ordinance No. 3375-93 prohibiting the operation of
such ordinances.                                                casinos. For all their praiseworthy motives, these
                                                                ordinances are contrary to P.D. 1869 and the public
HELD: Ordinances should not contravene a statute. The           policy announced therein and are therefore ultra vires
rational for this requirement is obvious. Municipal             and void.
governments are only agents of the national
government. Local councils exercise only delegated              Taule v. Santos
legislative powers conferred on them by Congress as the
national lawmaking body. The delegate cannot be                 On June 18,1989, the Federation of Associations of
superior to the principal or exercise powers higher than        Barangay Councils (FABC) of Catanduanes, composed of
those of the latter. It is a heresy to suggest that the local   eleven (11) members convened with six members in
government units can undo the acts of Congress, from            attendance for the purpose of holding the election of its
which they have derived their power in the first place,         officers. The election proceeded with petitioner Ruperto
and negate by mere ordinance the mandate of the                 Taule declared as president. The governor protested to
statute.                                                        the Secretary of DILG the election of officers on the
                                                                ground of irregularities. Taule assailed the power of the
Municipal corporations owe their origin to, and derive          Secretary of DILG to decide FABC election contests.
their powers and rights wholly from the legislature. It
breathes into them the breath of life, without which they       HELD: The Secretary of Local Government is not vested
cannot exist. As it creates, so it may destroy. As it may       with jurisdiction to entertain any protest involving the
destroy, it may abridge and control. Unless there is some       election of officers of the FABC. There is no question that
constitutional limitation on the right, the legislature         he is vested with the power to promulgate rules and
might, by a single act, and if we can suppose it capable of     regulations as set forth in Section 222 of the LGC and the
so great a folly and so great a wrong, sweep from               Administrative Code. There is neither a statutory nor
existence all of the municipal corporations in the State,       constitutional provision expressly or even by necessary
and the corporation could not prevent it. We know of no         implication conferring upon the Secretary of Local
limitation on the right so far as to the corporation            Government the power to assume jurisdiction over an
themselves are concerned. They are, so to phrase it, the        election protect involving officers of the katipunan ng
mere tenants at will of the legislature.                        mga barangay. Presidential power over local
                                                                governments is limited by the Constitution to the
This basic relationship between the national legislature        exercise of general supervision "to ensure that local
and the local government units has not been enfeebled           affairs are administered according to law." The general
by the new provisions in the Constitution strengthening         supervision is exercised by the President through the
the policy of local autonomy. Without meaning to                Secretary of Local Government.
detract from that policy, we here confirm that Congress
retains control of the local government units although in       In administrative law, supervision means overseeing or
significantly reduced degree now than under our                 the power or authority of an officer to see that the
previous Constitutions. The power to create still includes      subordinate officers perform their duties. If the latter

                                                                                                                 43 D2010
Local Government

fails or neglects to fulfill them the former may take such     P400,000 for the implementation of the program.
action or step as prescribed by law to make them               However, Commission on Audit disapproved said
perform their duties. Control, on the other hand, means        resolution and disbursement of funds. The reasons it
the power of an officer to alter or modify or nullify or set   gave were: 1)the resolution has no connection to alleged
aside what a subordinate officer had done in the               public safety, general welfare, safety, etc. of the
performance of his duties and to substitute the judgment       inhabitants of Makati; 2)it will only benefit a few
of the former for that of the latter. The fundamental law      individuals. Public funds should only be used for public
permits the Chief Executive to wield no more authority         purposes. The issue is WON Res. No. 60, reenacted as
than that of checking whether said local government or         Res. No. 243, is a valid exercise of the police power under
the officers thereof perform their duties as provided by       the general welfare clause.
statutory enactments. Hence, the President cannot
interfere with local governments so long as the same or        HELD: Yes. Police power is a governmental function, an
its officers act within the scope of their authority.          inherent attribute of sovereignty – inherent in the state
Supervisory power, when contrasted with control, is the        but not in municipal corporations. Before a municipal
power of mere oversight over an inferior body; it does         corporation may exercise such power, there must be a
not include any restraining authority over such body.          valid delegation of such power by the legislature.
                                                               Municipal corporations exercise police power under the
Construing the constitutional limitation on the power of       general welfare clause. Under Sec. 7 of BP 337, “every
general supervision of the President over local                local government unit shall exercise the powers
governments, We hold that Secretary has no authority to        expressly granted, those necessarily implied therefrom,
pass upon the validity or regularity of the election of the    as well as necessary and proper for governance such as
officers of the katipunan. To allow the Secretary to do so     to promote health and safety, enhance prosperity,
will give him more power than the law or the                   improve morals, and maintain peace and order in the
Constitution grants. It will in effect give him control over   LGU, and preserve the comfort and convenience of the
local government officials for it will permit him to           inhabitants therein.” Police power is the power to
interfere in a purely democratic and non-partisan activity     prescribe regulations to promote the health, morals,
aimed at strengthening the barangay as the basic               peace, education, good order or safety and general
component of local governments so that the ultimate            welfare of the people. It is the most essential, insistent,
goal of fullest autonomy may be achieved. In fact, his         and illimitable of powers. The police power of a
order that the new elections to be conducted be                municipal corporation is broad, and has been said to be
presided by the Regional Director is a clear and direct        commensurate with, but not to exceed, the duty to
interference by the Department with the political affairs      provide for the real needs of the people in their health,
of the barangays which is not permitted by the limitation      safety, comfort, and convenience as consistently as may
of presidential power to general supervision over local        be with private rights. It extends to all the great public
governments.                                                   needs, and, in a broad sense includes all legislation and
                                                               almost every function of the municipal government.
Indeed, it is the policy of the state to ensure the            Thus, it is inadvisable to frame any definition which shall
autonomy of local governments. To deny the Secretary           absolutely indicate the limits of police power. Public
of Local Government the power to review the regularity         purpose is not unconstitutional merely because it
of the elections of officers of the katipunan would be to      incidentally benefits a limited number of persons. The
enhance the avowed state policy of promoting the               care for the poor is generally recognized as a public duty.
autonomy of local governments. The RTCs have the               The support for the poor has long been an accepted
exclusive original jurisdiction to hear the protest.           exercise of police power in the promotion of the
                                                               common good. There is no violation of the equal
Binay v. Domingo                                               protection clause in classifying paupers as subject of
                                                               legislation because the classification is reasonable.
Petitioner Municipality of Makati, through its Council,        Precious to the hearts of our legislators, down to our
approved Resolution No. 60. This resolution aims to            local councilors, is the welfare of the paupers. Thus,
extend P500 burial assistance to poor, bereaved families,      statutes have been passed giving rights and benefits to
the funds to be taken out of the unappropriated                the disabled, emancipating the tenant-farmer from the
available funds in the municipal treasury. The Metro           bondage of the soil, housing the urban poor, etc.
Manila Commission approved Res. No. 60. Thereafter,
the Municipal secretary certified a disbursement of

D2010 44
                                                                                                    UP College of Law

Res. No. 60 of Makati is a paragon of the continuing           compensation of a certain area from a private cemetery
program of our government towards social justice.              to benefit paupers who are charges of the municipal
                                                               corporation. Instead of building a public cemetery for
City Government of Quezon City v. Ericta                       this purpose, the city passes the burden to private
Sec. 9 0f Ordinance No. 6118 requires that every
memorial park cemetery shall set aside at least 6% of its      The said expropriation without compensation is not
total area for charity burial. For several years, this was     covered by the Q.C. Charter which empowers the city
not enforced. However, the Q.C. Council passed a               council to prohibit the burial of the dead within the
resolution instructing the City Engineer to stop selling the   center of population of the city and to provide for their
memorial park lots owned by those who failed to donate         burial in a proper place subject to the provisions of
the required 6% space for paupers’ burial. Respondent          general law regulating burial grounds and cemeteries.
Himlayang Pilipino filed with the CFI a petition for           When the Local Government Code, B.P. Blg. 337 states
declaratory relief, prohibition and mandamus with              that a Sangguniang panlungsod may "provide for the
preliminary injunction seeking to annul Sec. 9 of the said     burial of the dead in such place and in such manner as
ordinance, claiming that it is contrary to the Constitution,   prescribed by law or ordinance" it simply authorizes the
the Q.C. Charter, the Local Autonomy Act, and the              city to provide its own city owned land or to buy or
Revised Admin. Code. The Court declared said section           expropriate private properties to construct public
null and void. Petitioners argue that the taking of the        cemeteries. Moreover, the questioned ordinance was
respondent's property is a valid and reasonable exercise       passed after Himlayang Pilipino, Inc. had incorporated,
of police power and that the land is taken for a public use    received necessary permits and commenced operating.
as it is intended for the burial ground of paupers. They       The sequestration of 6% of the cemetery cannot be
further argue that the Quezon City Council is authorized       considered as having been impliedly acknowledged by
under its charter, in the exercise of local police power.      the private respondent when it accepted the permits to
On the other hand, respondent Himlayang Pilipino, Inc.         commence operations.
contends that the taking or confiscation of property is
obvious because the questioned ordinance permanently           Villanueva v. Castaneda
restricts the use of the property such that it cannot be
used for any reasonable purpose and deprives the owner         The Municipal Council of San Fernando adopted Res. No.
of all beneficial use of his property. Is Section 9 of the     218 authorizing 24 members of the Fernandino United
ordinance in question a valid exercise of the police           Merchants and Traders Association to construct
power?                                                         permanent stalls and sell in the vicinity of the public
                                                               market of San Fernando, Pampanga along Mercado
HELD: NO, it is not a mere police regulation but an            Street. The action was protested and the CFI held that
outright confiscation. It deprives a person of his private     the land occupied by the petitioners/stallholders, being
property without due process of law, nay, even without         public in nature, was beyond the commerce of man and
compensation. An examination of the Q.C. Charter does          could not be the subject of private occupancy. The
not reveal any provision that would justify the ordinance      decision, however, was not enforced for the petitioners
in question except the provision granting police power to      were not evicted from the place and were even assigned
the City. The power to regulate neither includes the           space allotments for which they paid daily fees to the
power to prohibit nor the power to confiscate. The             municipal government. Thereafter, the Association of
ordinance not only confiscates but also prohibits the          Concerned Citizens and Consumers of San Fernando filed
operation of a memorial park cemetery. Police power is         a petition for the immediate implementation of Res. No.
usually exercised in the form of mere regulation or            29 to restore the property “to its original and customary
restriction in the use of liberty or property for the          use as a public plaza.” Respondent Macalino, as officer-
promotion of the general welfare. It does not involve the      in-charge of the office of the mayor of San Fernando,
taking or confiscation of property with the exception of a     issued a resolution directing the municipal treasurer and
few cases not obtaining here. There is no reasonable           engineer to demolish the stalls. Petitioners, claiming
relation between the setting aside of at least 6% of the       that the area in question was leased to them by the
total area of an private cemeteries for charity burial         municipal government, filed a case for prohibition with
grounds of deceased paupers and the promotion of               the CFI which was denied. Do the
health, morals, good order, safety, or the general welfare     petitioners/stallholders have a right to the said land?
of the people. The ordinance is actually a taking without

                                                                                                               45 D2010
Local Government

HELD: NO, the place in question is a public plaza which is    occupants thereof, among them appellants Gonzales and
beyond the commerce of man and cannot be the subject          Josue, started filling it. Each of the appellants
of lease or any other contractual undertaking. In Muyot       constructed a mixed residential and commercial building
vs. de la Fuente, it was held that the City of Manila could   on Lot 2.
not lease a portion of a public sidewalk, being likewise
beyond the commerce of man. In Espiritu vs. Municipal         Thereafter, then President Magsaysay issued
Council of Pozorrubio, the Supreme Court held: The            Proclamation No. 144, entitled "Reserving for Street
town plaza cannot be used for the construction of             Widening and Parking Space Purposes Certain Parcels of
market stalls or residences, and such structures              the Public Domain Situated in the Municipality of
constitute a nuisance subject to abatement according to       Malabon, Province of Rizal, Island of Luzon." Lots 1 and 2
law. Town plazas are properties of public dominion, to be     were specifically withdrawn from sale or settlement and
devoted to public use and to be made available to the         reserved for the purposes stated in the Proclamation.
public in general. They are outside the commerce of           The Municipal Council of Malabon then passed
man and cannot be disposed of or even leased by the           Resolutions authorizing the filing of ejectment cases
municipality to private parties.                              against appellants so that Proclamation No, 144 could be
                                                              implemented. Separate complaints were also filed
The occupation of stallholders (now almost 200) has           against appellants for the recovery of the portions of Lot
caused health, safety and sanitation problems. It has         2 they were occupying.
deprived the stallholders in the public market of much
business and has denied to the people the proper use of       Appellants disputed the right of the Government to
the public plaza. These problems are covered by police        recover the lots for these reasons: 1) they already filed
power as delegated to the municipality under the              sales applications with the Bureau of Lands; 2) they had a
general welfare clause. This authorizes the municipal         municipal permit to construct a building as well as a
council to enact such ordinances, not repugnant to law,       business license duly issued by the Office of the Mayor of
necessary to discharge the powers and duties conferred        Malabon; and (3) the lot occupied by them was not
upon it by law and such as shall seem necessary and           needed by the Municipality of Malabon in the widening
proper to provide for the health and safety, promote the      of F. Sevilla Boulevard and the setting aside of lots for
prosperity, improve the morals, peace, good order,            parking does not redound to the public benefit. The Trial
comfort, and convenience of the municipality and the          Court ordered the appellants to reconvey the lots to the
inhabitants thereof, and for the protection of property       government. Is Proc. No. 144 lawful and valid?
therein. This authority was validly exercised through the
adoption of a resolution by the municipal council of San      HELD: Yes! Proc. No. 144 was issued by the President in
Fernando.                                                     response to several resolutions passed by the Municipal
                                                              Council of Malabon, Rizal, to address the increasing
Even assuming a valid lease of the property in dispute,       vehicular traffic along F. Sevilla Blvd. The Municipal
the resolution should have effectively terminated the         Council had proposed to widen the road and reserve an
agreement for it is settled that the police power cannot      area for parking space to ease up traffic problems. The
be surrendered or bargained away through the medium           public has much to gain from the proposed road
of a contract. In fact, every contract affecting the public   widening and from establishment of a municipal parking
interest suffers a congenital infirmity in that it contains   area. Traffic congestion constitutes a threat to the
an implied reservation of the police power as a postulate     health, welfare, safety and convenience of the people
of the existing legal order. This power can be activated at   and it can only be substantially relieved by widening
any time to change the provisions of the contract, or         streets and providing adequate parking areas. Under the
even abrogate it entirely, for the promotion or               Land Transportation and Traffic Code, parking in
protection of the general welfare. Such an act will not       designated areas along public streets or highways is
violate the impairment clause, which is subject to and        allowed which clearly indicates that provision for parking
limited by the paramount police power.                        spaces serves a useful purpose.

Republic v. Gonzalez                                          Appellants, however, allege that the resulting benefits, if
                                                              any, will be confined to people who have cars, hence
The Republic of the Philippines is the owner of 2 parcels     there would be lacking the essential feature of property
of land in Tañong Malabon, Metro Manila (Lots 1 and 2).       reserved for public use or benefit. This conception is
The said property was formerly a deep swamp until the         flawed since the number of users is not the yardstick in

D2010 46
                                                                                                   UP College of Law

determining whether property is properly reserved for         residential building owned by Mr. Tepoot is adjacent to
public use or public benefit. To constitute public use, the   the funeral parlor, said residential building is being
public in general should have equal or common rights to       rented by a certain Mr. Asiaten who actually devotes it to
use the land or facility involved on the same terms,          his laundry business with machinery thereon.
however limited in number the people who can actually
avail themselves of it at a given time. There is nothing in   On appeal, the CA reversed the lower court by annulling
Proc. No. 144 which excludes non-car-owners from using        the building permit issued to the petitioner. It disagreed
a widened street or a parking area should they in fact        with the lower court's determination that Tepoot's
happen to be driving cars; the opportunity to avail of the    building was commercial and ruled that although it was
use thereof remains open to the public.                       used by Tepoot's lessee for a laundry business, it was a
                                                              residential lot as reflected in the tax declaration, thus
Prior to the issuance of Proc. No. 144, appellants had        paving the way for the application of Ordinance No. 363.
applied for sales applications with the Bureau of Lands
over the said lots. By doing so, they are deemed to have      HELD: Petitioner’s operation of a funeral home
admitted ownership by the National Government since           constitutes permissible use within the district in Davao
the said application can only be filed in respect of public   City. The testimony of City Councilor Vergara shows that
land, not private land. These applications were either        Mr. Tepoot's building was used for a dual purpose both
not yet approved or were already rejected by the Bureau       as a dwelling and as a place where a laundry business is
of Lands at the time the proclamation was issued. Thus,       conducted. But while its commercial aspect has been
no private rights had accrued and become vested in            established by the presence of laundry paraphernalia, its
appellants. The lots remained public lands and were           use as a residence, other than being declared for
subject to the free disposition and control of the            taxation purposes as such, was not fully substantiated.
Government. While appellants had secured municipal
permits for the construction of buildings on the lands in     The reversal by the CA of the TC’s decision was based on
dispute, the Court held that the disposition and              Tepoot's building being declared for taxation purposes as
management of lands of the public domain were directly        residential. However, a tax declaration is not conclusive
under the executive control of the Director of Lands, and     of the nature of the property for zoning purposes. A
not of local government officials. Thus, the Malabon          property may be declared by its owner as residential for
Municipal Mayor exceeded his authority in allowing the        real estate taxation purposes but it may well be within a
use of lands of the public domain to appellants.              commercial zone. A discrepancy may thus exist in the
                                                              determination of the nature of property for real estate
Patalinhug v. CA                                              taxation purposes vis-a-vis the determination of a
                                                              property for zoning purposes. A tax declaration only
The Sangguniang Panlungsod of Davao City enacted              enables the assessor to identify the same for assessment
Ordinance No. 363 otherwise known as the "Expanded            levels. In fact, a tax declaration does not bind a
Zoning Ordinance of Davao City" which required that           provincial/city assessor, for under Sec. 22 of the Real
funeral parlors shall be built not less than 50 meters        Estate Tax Code, appraisal and assessment are based on
from any residential structures, churches, and other          the actual use irrespective of "any previous assessment
institutional buildings. A building permit was issued in      or taxpayer's valuation thereon," which is based on a
favor of petitioner for the construction of a funeral         taxpayer's declaration. In fact, a piece of land declared
parlor. Thereafter, petitioner commenced its                  by a taxpayer as residential may be assessed by the
construction. Acting on the complaint of several              provincial or city assessor as commercial because its
residents of Brgy. Agdao, Davao City that the                 actual use is commercial.
construction of petitioner's funeral parlor violated
                                                              The finding that Mr. Tepoot's building is commercial is
Ordinance No. 363, since it was allegedly situated within
                                                              strengthened by the fact that the Sangguniang
a 50-meter radius from the Iglesia ni Kristo Chapel and
                                                              Panlungsod has declared the questioned area as
several residences (the nearest residential structure,
                                                              commercial. Consequently, even if Tepoot's building was
owned by Mr. Tepoot is only 8 inches to the south).
                                                              declared for taxation purposes as residential, once a local
Private respondents filed a case for the declaration of
                                                              government has reclassified an area as commercial, that
nullity of the building permit. The court dismissed the
                                                              determination for zoning purposes must prevail. While
complaint finding that: 1) the residential building and
                                                              the commercial character of the questioned vicinity has
Iglesia ni Kristo chapel are 63.25 meters and 55.95 m
                                                              been declared thru the ordinance, private respondents
respectively from the funeral parlor; 2) Although the

                                                                                                              47 D2010
Local Government

have failed to present convincing arguments to                forms of assistance to the local government unit. Such
substantiate their claim that Cabaguio Avenue, where          assistance shall be extended at no extra cost to the local
the funeral parlor was constructed, was still a residential   government unit concerned.
zone. Unquestionably, the operation of a funeral parlor
constitutes a "commercial purpose." The declaration of        (d) National agencies and offices including government-
the said area as a commercial zone thru a municipal           owned or controlled corporations with field units or
ordinance is an exercise of police power to promote the       branches in a province, city, or municipality shall furnish
good order and general welfare of the people in the           the local chief executive concerned, for his information
locality. Corollary thereto, the state, in order to promote   and guidance, monthly reports including duly certified
the general welfare, may interfere with personal liberty,     budgetary allocations and expenditures.
with property, and with business and occupations. Thus,
persons may be subjected to certain kinds of restraints       Sec. 26. Duty of National Government Agencies in the
and burdens in order to secure the general welfare of the     Maintenance of Ecological Balance. It shall be the duty
state and to this fundamental aim of government, the          of every national agency or government-owned or
rights of the individual may be subordinated. The             controlled corporation authorizing or involved in the
ordinance which regulates the location of funeral homes       planning and implementation of any project or program
has been adopted as part of comprehensive zoning plans        that may cause pollution, climatic change, depletion of
for the orderly development of the area covered               non-renewable resources, loss of cropland, rangeland, or
thereunder.                                                   forest cover, and extinction of animal or plant species, to
                                                              consult with the local government units, non-
             C.   Intergovernmental relations                 governmental organizations, and other sectors
                                                              concerned and explain the goals and objectives of the
Book I, Chapters 3 and 4, LGC (sec 25 –                       project or program, its impact upon the people and the
36)                                                           community in terms of environmental or ecological
                                                              balance, and the measures that will be undertaken to
CHAPTER THREE: Intergovernmental Relations                    prevent or minimize the adverse effects thereof.

Article One. National Government and Local                    Sec. 27. Prior Consultations Required. No project or
Government Units                                              program shall be implemented by government
                                                              authorities unless the consultations mentioned in
Sec. 25. National Supervision over Local Government           Sections 2 (c) and 26 hereof are complied with, and prior
Units. (a) Consistent with the basic policy on local          approval of the sanggunian concerned is obtained:
autonomy, the President shall exercise general                Provided, That occupants in areas where such projects
supervision over local government units to ensure that        are to be implemented shall not be evicted unless
their acts are within the scope of their prescribed powers    appropriate relocation sites have been provided, in
and functions.                                                accordance with the provisions of the Constitution.

The President shall exercise supervisory authority            Article Two. Relations with the Philippine National
directly over provinces, highly urbanized cities, and         Police
independent component cities through the province with
respect to component cities and municipalities; and           Sec. 28. Powers of Local Chief Executives over the Units
through the city and municipality with respect to             of the Philippine National Police. The extent of
barangays.                                                    operational supervision and control of local chief
                                                              executives over the police force, fire protection unit, and
(b) National agencies and offices with project                jail management personnel assigned in their respective
implementation functions shall coordinate with one            jurisdictions shall be governed by the provisions of
another and with the local government units concerned         Republic Act Numbered Sixty-nine hundred seventy-five
in the discharge of these functions. They shall ensure the    (R.A. No. 6975), otherwise known as "The Department of
participation of local government units both in the           the Interior and Local Government Act of 1990", and the
planning and implementation of said national projects.        rules and regulations issued pursuant thereto.

(c) The President may, upon request of the local              Article Three. Inter-Local Government Relations
government unit concerned, direct the appropriate
national agency to provide financial, technical, or other

D2010 48
                                                                                                    UP College of Law

Sec. 29. Provincial Relations with Component Cities and        Sec. 33. Cooperative Undertakings Among Local
Municipalities. The province, through the governor, shall      Government Units. Local government units may,
ensure that every component city and municipality              through appropriate ordinances, group themselves,
within its territorial jurisdiction acts within the scope of   consolidate, or coordinate their efforts, services, and
its prescribed powers and functions. Highly urbanized          resources for purposes commonly beneficial to them. In
cities and independent component cities shall be               support of such undertakings, the local government units
independent of the province.                                   involved may, upon approval by the sanggunian
                                                               concerned after a public hearing conducted for the
Sec. 30. Review of Executive Orders. (a) Except as             purpose, contribute funds, real estate, equipment, and
otherwise provided under the Constitution and special          other kinds of property and appoint or assign personnel
statutes, the governor shall review all executive orders       under such terms and conditions as may be agreed upon
promulgated by the component city or municipal mayor           by the participating local units through Memoranda of
within his jurisdiction. The city or municipal mayor shall     Agreement.
review all executive orders promulgated by the punong
barangay within his jurisdiction. Copies of such orders        CHAPTER FOUR: Relations with People's and Non-
shall be forwarded to the governor or the city or              governmental Organizations
municipal mayor, as the case may be, within three (3)
days from their issuance. In all instances of review, the      Sec. 34. Role of People's and Non-governmental
local chief executive concerned shall ensure that such         Organizations. Local government units shall promote the
executive orders are within the powers granted by law          establishment and operation of people's and non-
and in conformity with provincial, city, or municipal          governmental organizations to become active partners in
ordinances.                                                    the pursuit of local autonomy.

(b) If the governor or the city or municipal mayor fails       Sec. 35. Linkages with People's and Non-governmental
to act on said executive orders within thirty (30) days        Organizations. Local government units may enter into
after their submission, the same shall be deemed               joint ventures and such other cooperative arrangements
consistent with law and therefore valid.                       with people's and non-governmental organizations to
                                                               engage in the delivery of certain basic services,
Sec. 31. Submission of Municipal Questions to the              capability-building and livelihood projects, and to
Provincial Legal Officer or Prosecutor. In the absence of      develop local enterprises designed to improve
a municipal legal officer, the municipal government may        productivity and income, diversity agriculture, spur rural
secure the opinion of the provincial legal officer, and in     industrialization, promote ecological balance, and
the absence of the latter, that of the provincial              enhance the economic and social well-being of the
prosecutor on any legal question affecting the                 people.
                                                               Sec. 36. Assistance to People's and Non-governmental
Sec. 32. City and Municipal Supervision over Their             Organizations. A local government unit may through its
Respective Barangays. The city or municipality, through        local chief executive and with the concurrence of the
the city or municipal mayor concerned, shall exercise          sanggunian concerned, provide assistance, financial or
general supervision over component barangays to ensure         otherwise, to such people's and non-governmental
that said barangays act within the scope of their              organizations for economic, socially-oriented,
prescribed powers and functions.                               environmental, or cultural projects to be implemented
                                                               within its territorial jurisdiction.

                                                POWERS OF MUNICIPAL CORPORATIONS/LOCAL GOVERNMENTS

Municipal Corporations, Chapters VIII                                       I.       Police Power
and IX (Martin)
                                                               Nature of the Power
CHAPTER EIGHT: Powers of municipal corporations                Is inherent in the State but not in municipal corporations.
                                                               In order that a municipal corporation may exercise police

                                                                                                               49 D2010
Local Government

power, there must be a legislative grant which              Exercise of Powers Beyond Boundary
necessarily also sets the limits for the exercise of the
power.                                                      Ordinarily, the powers of a municipal corporation can be
                                                            exercised only within its own territorial limits which are
The grant of authority to the sangguniang of the            contiguous. However, statutes sometimes authorize it to
particular local government unit is what is known as the    exercise police powers beyond its territorial boundaries,
General Welfare Clause                                      especially for the preservation of public health (i.e., City
                                                            of Manila which is empowered by statute to extend its
In Barangays, the GWC is found in Section 91 (a) of the     ordinances over the Bay of Manila, three miles beyond
LGC                                                         the city limits and over any vessel floating within that
In Municipalities, the GWC is found in Section 149 (a) of
the LGC                                                     Power of Municipal Corporations to Legislate on the
                                                            Same Subject Covered by Law
For Provinces, the GWC is found in Section 208 (a) of the
LGC                                                         A municipal corporation, under the authority of its
                                                            charter, may adopt ordinances upon subjects already
2 Branches of the General Welfare Clause                    covered by general law as long as the ordinance is not
                                                            repugnant to nor in conflict with the latter.
General Legislative Power – the power to enact
ordinances as may be necessary to carry into effect and     The reason for the above principle is that municipal
discharge the responsibilities conferred upon it by law     authorities are in a better position to determine the evils
                                                            sought to be prevented by the legislature in enacting a
Power Power Proper – the authority to enact such
                                                            particular statute and, therefore, to pass the appropriate
ordinances as shall be necessary and proper to promote
                                                            ordinance to attain the main object of the law
health and safety, enhance the prosperity and general
welfare, improve the morals and maintain peace and          Effect of conviction or acquittal under either Statute or
order in the particular local government unit and           Ordinance Punishing the Same Act
preserve the comfort and convenience of the inhabitants
therein                                                     The Constitution expressly provides, that if an act is
                                                            punished by a law and an ordinance, conviction or
Requisites for the Exercise of Police Power                 acquittal under either shall constitute a bar to another
                                                            prosecution for the same act. Hence, where it appears
First – that the interest of the public generally as
                                                            that a person has already been prosecuted and convicted
distinguished from those of a particular class require
                                                            or acquitted of an act made punishable by an ordinance
such interference, and
                                                            he can invoke the defense of double jeopardy, should the
Second – that the means is reasonably necessary for the     government prosecute him further under the statute
accomplishment of the purpose and not unduly                punishing the same act.
oppressive upon individuals
                                                                          II.      Power of Eminent Domain
Liberal Interpretation of the General Welfare Clause
                                                            Nature of the Power
A restrictive view of the general welfare clause is not
                                                            A municipal corporation can only exercise the right of
                                                            eminent domain when the same has been conferred
The view that the scope of the police power, and            upon it by the legislature, expressly or by necessary
therefore of the general welfare clause, has been fixed     implication, since the municipal corporation has no more
by traditional delineations is not quite accurate. Police   right than any other corporation to condemn property.
power has not received a full and complete definition; it
                                                            But although there is no inherent power in a municipal
is elastic and must be responsive to various social
                                                            corporation to acquire property thru condemnation
conditions; it is not confined within the narrow
                                                            proceedings, in nearly all jurisdictions the legislature has
circumscription of precedents resting on past conditions;
                                                            conferred the power of eminent domain on cities, towns,
it must follow the legal progress of a democratic way of
                                                            and villages either by express provision or in a general
                                                            statute or in the municipal charter.

D2010 50
                                                                                                        UP College of Law

Who may exercise the right                                                    form whatever upon goods and
                                                                              merchandise carried into the municipality,
The right of eminent domain may be exercised either                           or out of the same, and any attempt of an
directly by the legislature or through the medium of                          unreasonable charge for wharfage, use of
corporate bodies, or of individual enterprises, by virtue                     bridges or otherwise, shall be void (case of
of a delegation of the power. The legislature, unless                         Laoag Producers vs. Mun. of Laoag, says this
limited by constitutional restriction, is entirely free to use                has already been impliedly repealed by the
its discretion in the selection of agents to exercise the                     Local Autonomy Act)
power                                                                4.       In no case shall collection of municipal taxes
                                                                              be left to any person
Purposes of Expropriation                                            5.       Except as allowed by law, municipal funds,
                                                                              shall be devoted exclusively to local public
The power may only be exercised for public purposes (for
examples see Section 2106[f] and Section 2245 of the
Revised Administrative Code)                                     Power to License
Power of Eminent Domain as exercised by Municipal                Where only the power to license is given to municipal
Corporation must be strictly construed                           corporations, the presumption is that it is regulatory,
                                                                 rather than for raising of revenue. The terms in which a
Whether the power is directly exercised by the
                                                                 municipality is empowered to grant license are expected
legislature or immediately thru municipal corporations or
                                                                 to indicate with sufficient precision whether the power
other public agencies, the purpose or use for which the
                                                                 could be exercised for revenue-raising purposes or
property authorized to be appropriated must be
                                                                 merely for regulation
specified. The power cannot be enlarged by doubtful
construction.                                                    Distinction between the Power to License and the Power
                                                                 to Tax
The power of eminent domain, being in derogation of
private property rights, is justified only by a clear public     Power to License is a police measure; the power to Tax is
necessity of an urgent public policy. The power must be          a revenue measure
strictly construed against the municipal corporation. The
purpose and procedure prescribed for its exercise must           Distinction between a license tax and a general tax
be strictly followed in all substantial matters. This rule of
strict construction is mandatory and should within               A license tax is not a tax upon property, but it is a burden
reasonable limits, be inflexibly adhered to and applied.         imposed for the right to exercise a franchise or a
                                                                 privilege which could be withheld or forbidden
              III.     Power of Taxation                         altogether. The sum charged is merely used as the mode
                                                                 of computing the amount to be paid for the exercise of
Nature of the Power as exercised by Municipal                    the privilege.
                                                                 Kinds of Municipal License
The power to tax, although inherent in sovereignty, is not
possessed by municipal corporations by the mere fact                 1.   Licenses for the regulation of useful occupations
that they are creations of the State. The Power must be                   or enterprises
expressly conferred upon them, either in their charters              2.   Licenses for the regulation or restriction of non-
or in a general law.                                                      useful occupations or enterprises
                                                                     3.   Licenses for revenue only
Requisites of Municipal Taxation
                                                                 Effectivity of Tax Ordinance
    1.        Municipal revenue obtainable by taxation
              shall be derived from such sources only as         A tax ordinance shall go into effect on the 15th day after
              are expressly authorized by law                    its passage, unless the ordinance shall provide otherwise:
    2.        Taxation shall be just and in each                 Provided, however, that the Secretary of Finance shall
              municipality uniform                               have the authority to suspend the effectivity of any
    3.        It shall not be within the power of the            ordinance within one hundred and twenty days after its
              municipal council to impose a tax in any           passage, if, in his opinion, the tax or fee therein levied or

                                                                                                                   51 D2010
Local Government

imposed is unjust, excessive, oppressive, or confiscatory,   The legislature can neither compel nor authorize a
and when the said secretary exercises this authority the     municipal corporation to spend any of its funds for a
effectivity of such ordinance shall be suspended.            private purpose, and consequently, since practically
                                                             every undertaking of a municipality does or may require
Condonation of Taxes                                         the expenditures of money, a municipal corporation
                                                             cannot, even with the express legislative sanction,
Municipal council has no right to condone taxes already      embark in any private enterprise or assume any
accrued. This power has been withheld from municipal         functions which are not in a legal sense public.
councils to prevent abuse
                                                                 II.       Power to Borrow Money
Under the law, it is the provincial treasurer who can
condone municipal taxes (Reyes vs. Cornista, 49 OG 931)      Nature of the Power
Special Assessment; Its distinguishing Features              The power to borrow does not belong to a municipal
                                                             corporation as an incident of its creation. It exists only
Like general taxes, special assessments are enforced in      when conferred by express constitutional or legislative
proportionate contributions, but instead of being            grant or by force of legislative vestment of power,
imposed at regularly recurring periods to provide            coupled with the imposition of duties which are
continuous revenue, special assessments are levied only      incapable of exercise and performance without the
occasionally as required. They are imposed not upon the      borrowing of money
general body of citizens, but upon a limited class of
persons who are interested in local government, and also     Limitation on the Power to Borrow
are specially benefited in a local improvement to the
extend of the assessment. They are imposed and               A limit to municipal indebtedness may be fixed either by
collected as an equivalent, actual or presumed, of the       statute or Constitution beyond which no obligation could
benefits and are required to pay for the cost of the         be incurred by the municipality
                                                             The purpose of limiting municipal indebtedness is to
Distinction between a Tax and Special Assessment             protect persons residing in municipalities from the abuse
                                                             of their creditors and the consequent operation of
    1.   SA can be levied only on land                       burdensome if not ruinous taxes
    2.   SA cannot be made a personal liability of the
         person assessed                                         III.      Power to Issue Municipal Bonds
    3.   SA is based wholly on benefits
    4.   SA is exceptional both as to time and locality      Subject to Judicial Examination. There are cases holding
                                                             that the power to issue bonds is inherent in the
CHAPTER NINE: Powers of municipal corporations               municipal corporation. Upon examination, however,
                                                             most of the cases will be found as sustaining the implied
    I.       Power to Appropriate and Spend Money            rather than the inherent power of a municipality to issue
Nature of the Power
                                                             The power to issue negotiable paper will be implied from
Unless expressly authorized by its charter or statute, a     the express power to borrow money
municipal corporation cannot appropriate or give away
the public money of the municipality as pure donations           IV.       Power to Contract
to any person, corporation, or private institution, under
the control of the city and having no connection with it     Nature and Extent of Power

In the Philippines, the power of municipal corporations      The rules that municipal corporations may exercise those
to appropriate and spend money is among the many             powers which are expressly granted, or those essential to
powers expressly authorized in their charters                the carrying out of declared objects and the purposes of
                                                             the corporation, is applicable with respect to the power
Limitation on the Power to Appropriate and Spend             of the municipality to bind itself by contract

D2010 52
                                                                                                    UP College of Law

This power, however, is not to be construed as                exercise a like power over their properties of a public
authorizing the making of contracts of all description, but   nature in violation of the trust in which such properties
only such as are necessary and usually fit and proper, to     are held.
enable the corporation to secure or carry into effect the
purposes for which it was created                             Power to Mortgage

Nature of the Duty of Municipal Authorities in the            Where property not charged with a trust or public use is
Execution of Contracts                                        held by the corporation without legislative restriction as
                                                              to its sale, it may mortgage it to secure any debt or
The duty of the officers of the municipal corporation in      obligation that it has the power to create or enter into.
the letting of municipal contracts is not merely              The power to mortgage, if not expressly given or denies,
ministerial but of a judicial and discretionary nature. In    can be considered an incident of the power to hold and
the absence of fraud or palpable abuse of discretion,         dispose of property, and to make contracts
courts have no power to control their action
                                                                  VI.      Power to Sue and Be Sued
Requisites Necessary for the Validity of Municipal
Contracts                                                     Nature of the Power

    a.       First, that the Corporation has the express,     The power to sue and be sued is an essential attribute of
             implied, or inherent power to enter into the     Municipal Corporation. A municipality, like any other
             particular contract                              complete corporation or person, may appeal to the court
    b.       Second, that the contract is entered into by     for the vindication of its right; and for any wrong done by
             the proper department, board, committee,         it, it may be sued by the injured party. The power to sue
             officer or agent                                 and be sued by the injured party includes the right to
                                                              settle or compromise claims of the municipality.
    V.        Power to Acquire, Hold, and Dispose of
              Property                                        Municipality may file suit in behalf of the inhabitants

Nature of Power                                               In many instances, a municipal corporation may bring a
                                                              representative action in behalf of its inhabitants to
While the power to acquire property for public purposes       protect, preserve, or establish a common right.
is deemed inherent in municipal corporations or one
necessarily implied from other express powers of              Venue of Action
municipal corporations, in the Philippines, this power is
                                                              An action against a municipal corporation is inherently
expressly authorized in the corporate charters
                                                              local. In the absence of any statutory provision to the
Municipal Property, Classified                                contrary, it must be brought in the place or province in
                                                              which the municipality is situated.
In the Philippines, properties of provinces, cities, and
municipalities are divided into property for public use       The reasons for this are: That the municipal corporation
and patrimonial property                                      remain statutory in some place, and therefore, must be
                                                              sued where they are found; that the welfare of the
Grants of Land in favor of municipal corporations by the      municipal bodies and of their citizens require that their
State; Requisites                                             officers should be permitted to remain at home and
                                                              discharge their public duties instead of being called
Two requisites are necessary in order to presume a grant      elsewhere to attend litigation.
of land to municipal corporations, namely, that the land
is one which the municipality itself can exclusively own;     The venue of action in the place of the municipality
and that the land is used to meet public necessity            applies whether the cause of action arises from the
                                                              proprietary or governmental conduct of the municipality.
Municipality may alienate its property
                                                              Compendium on Local Autonomy and
Municipal Corporations possess the incidental or implied      Local Government, Chapter 5 (Agra)
power to alienate or dispose of their real or personal
properties of a private nature. Conversely, they cannot       See above

                                                                                                               53 D2010
Local Government

Book I, Chapter 2, LGC (Sec 6 – 24)                             dangerous buildings. Respondent City Engineer and
                                                                Building Official can, therefore, validly issue the
See above                                                       questioned condemnation and demolition orders. This is
                                                                also true with the Mayor who can approve or deny the
    A. Police Power                                             condemnation orders as provided in Section 276 of the
                                                                Compilation of Ordinances of the City of Manila.There
Binay v. Domingo (supra)                                        was no grave abuse of discretion on the part of the
                                                                respondent City Engineer because the orders were made
See above                                                       only after thorough ocular inspections were conducted
                                                                by the City's Building Inspectors. The respondent
Chua Huat v. CA                                                 Mayor's act of approving the condemnation orders was
                                                                likewise done in accordance with law. Also, the protest
Manuel Uy and Sons, Inc. requested del Rosario, the City        made by petitioners was submitted 3 months after the
Engineer and Building Official of Manila, to condemn the        notices of condemnation were issued, and clearly
dilapidated structures located in Paco, Manila, all             beyond the seven days prescribed for doing so.
occupied by petitioners. The said official issued notices
of condemnation to petitioners. The condemnation                Tatel v. Municipality of Virac
orders stated that the subject buildings were found to be
in dangerous condition and therefore condemned,                 Due to the complaints received from the residents of
subject to the confirmation of the Mayor as required by         barrio Sta. Elena against the disturbance caused by the
Section 276 of the Compilation of Ordinances of the City        operation of the abaca bailing machine inside
of Manila. It was stated that the notice was not an order       petitioner’s warehouse which emitted obnoxious odor
to demolish as the findings of the City Engineer are still      and dust, a committee was appointed by the municipal
subject to the approval of the Mayor. The orders were           council of Virac to investigate the matter. The
based on inspection reports made by the Office of the           committee noted that the warehouse was near
City Engineer which showed that the buildings suffered          residential houses and that the inflammable materials
from structural deterioration of as much as 80%. The            inside created danger to the lives and properties of the
Mayor confirmed the condemnation orders.                        people. Resolution 29 was passed by the Municipal
                                                                Council declaring the warehouse as a public nuisance
Petitioners protested against the notices of                    within the purview of Article 694 of the CC. The
condemnation. Later, the City Engineer issued a                 petitioner’s MR was denied.
demolition order to the petitioners. The petitioners filed
a Petition for Prohibition, with PI or TRO against the City     Petitioner filed a petition for prohibition with preliminary
Mayor, City Engineer, Building Officer and Manuel Uy            injunction with the CFI enjoining them from enforcing
and Sons Inc.                                                   Resolution 29 of the Council. The municipal officials
                                                                contend that the warehouse was constructed in violation
The Court issued the TRO and required respondents to            of Ordinance No. 13, prohibiting the construction of
comment. Respondents prayed that the petition be                warehouses near a block of houses either in the
dismissed claiming that: (1) the power to condemn               poblacion or barrios without maintaining the necessary
buildings and structures in the City of Manila falls within     distance of 200 meters from said block of houses to
the exclusive domain of the City Engineer pursuant to           avoid loss of lives and properties by accidental fire.
Sections 275 and 276 of its Compilation of Ordinances           Petitioner contends that said ordinance is
(also Revised Ordinances 1600); and (2) the power to            unconstitutional, contrary to the due process and equal
condemn and remove buildings and structures is an               protection clause of the Constitution and null and void
exercise of the police power granted the City of Manila         for not having been passed in accordance with law. The
to promote public safety.                                       court ruled in favor of the municipal council and held
                                                                that the ordinance was a legitimate and valid exercise of
HELD: The power to condemn buildings and structures in
                                                                police power by the municipal council.
the City of Manila falls within the exclusive jurisdiction of
the City Engineer, who is at the same time the Building         HELD: Ordinance No. 13 was passed by the Municipal
Officials. The Compilation of Ordinances of the City of         Council of Virac in the exercise of its police power.
Manila and the National Building Code, also provide the         Municipal corporations are agencies of the State for the
authority of the Building Officials, with respect to            promotion and maintenance of local self-government

D2010 54
                                                                                                    UP College of Law

and as such are endowed with the police powers in order        merely a time, place and manner (TPM) regulation that
to effectively accomplish and carry out the declared           was content-neutral. Since the content of the speech was
objects of their creation. Its authority emanates from the     not relevant, it held that it does not impose any prior
general welfare clause under the Administrative Code.          restraint. The overbreadth argument of petitioners was
                                                               also dispensed with by the Court by saying that BP 880
For an ordinance to be valid, it must not only be within       only “regulates the exercise of the right to peaceful
the corporate powers of the municipality to enact but          assembly and petition only to the extent needed to avoid
must also be passed according to the procedure                 a clear and present danger of the substantive evils
prescribed by law, and must be in consonance with              Congress has the right to prevent…As to the delegation
certain well established and basic principles of a             of powers to the mayor, the law provides a precise and
substantive nature. These principles require that a            sufficient standard – the clear and present danger test
municipal ordinance (1) must not contravene the                stated in Sec. 6(a) [of BP 880]. The reference to
Constitution or any statute (2) must not be unfair or          “imminent and grave danger of a substantive evil” in Sec.
oppressive (3) must not be partial or discriminatory (4)       6(c) substantially means the same thing and is not an
must not prohibit but may regulate trade (5) must be           inconsistent standard.” However, the “CPR serves no
general and consistent with public policy, and (6) must        valid purpose if it means the same thing as maximum
not be unreasonable. Ordinance No. 13, meets these             tolerance and is illegal if it means something else… For
criteria. The purpose of the ordinance is to avoid loss of     this reason, the so-called calibrated preemptive response
life and property in case of accidental fire which is one of   policy has no place in our legal firmament and must be
the primordial and basic obligation of any government.         struck down as a darkness that shrouds freedom. It
Its purpose is well within the objectives of sound             merely confuses our people and is used by some police
government. No undue restraint is placed upon the              agents to justify abuses.”
petitioner or for anybody to engage in trade but merely a
prohibition from storing inflammable products in the               B. Power of Taxation: Local Taxes and Real
warehouse because of the danger of fire to the lives and              Property Tax
properties of the people residing in the vicinity. As to the
contention, that warehouses similarly situated as that of      Sec 5 -7, Art X, 1987 Constitution
the petitioner were not prosecuted, the mere fact that
the municipal authorities have not proceeded against           Section 5. Each local government unit shall have the
other warehouses in the municipality allegedly violating       power to create its own sources of revenues and to levy
Ordinance 13 is no reason to claim that the ordinance is       taxes, fees, and charges subject to such guidelines and
discriminatory. A distinction must be made between the         limitations as the Congress may provide, consistent with
law itself and the manner in which said law is                 the basic policy of local autonomy. Such taxes, fees, and
implemented by the agencies in charge with its                 charges shall accrue exclusively to the local governments.
administration/enforcement. There is no valid reason for
the petitioner to complain, in the absence of proof that       Section 6. Local government units shall have a just share,
the other bodegas mentioned by him are operating in            as determined by law, in the national taxes which shall
violation of the ordinance and that the complaints have        be automatically released to them.
been lodged against the bodegas concerned without the
                                                               Section 7. Local governments shall be entitled to an
municipal authorities doing anything about it.
                                                               equitable share in the proceeds of the utilization and
Bayan v. Ermita                                                development of the national wealth within their
                                                               respective areas, in the manner provided by law,
Petitioners attacked the constitutionality of the Public       including sharing the same with the inhabitants by way
Assembly Act (BP 880) and the Calibrated Preemptive            of direct benefits.
Response (CPR) policy by the Arroyo administration—
                                                               Sec 128 – 283, LGC
which enforced a “no permit, no rally” policy and
authorized the preemptive dispersal of rallies deemed
                                                               See attachments
unlawful by the executive branch. Petitioners based their
arguments primarily on the ground of freedom of
                                                                   i.       Local Taxation
expression. The Court upheld the constitutionality of BP
880. It found out that the procedure prescribed in the         Basco v. PAGCOR
statute does not impose an absolute ban on rallies, but

                                                                                                              55 D2010
Local Government

PAGCOR, a government owned and controlled                         53 of the same decree. The manufacture and the export
corporation, is exempted by its charter from payment of           of cement do not fall under the said provision for it is not
all kinds of taxes except for 5% franchise tax. Petitioners       a mineral product. Exemptions are construed strictly
assail the grant of such exemption on the ground that it          against the taxpayer.
infringes on the right of the City of Manila to impose
local fees and taxes. The issue is whether or not PAGCOR          Tuzon and Mapagu v. CA
which is exempted by its charter from payment of all
kinds of taxes except for the 5% franchise tax is subject         The issue in this case is the liability of petitioners (Mayor
to the local fees and taxes imposed by the City of Manila.        Tuzon and Mapagu) for damages for refusing to issue to
Ruling: yes. The taxing power of local government units           petitioner Jurado a mayor's permit and license to
must always yield to an act of Congress. Local                    operate his palay-threshing business for failure to comply
government has no inherent power of tax but merely                with the “1% donation”. The Sangguniang Bayan of
derives such power from Congress. In fact, local                  Camalaniugan, Cagayan adopted a resolution “soliciting
government units have no power to tax instrumentalities           1% donation from the thresher operators…to help
of the National Government. Under its charter, PAGCOR             finance the continuation of the construction of the
is empowered to operate and regulate gambling casinos.            Sports and Nutrition Center Building”. Although the
With its regulatory power, it becomes an instrumentality          validity of the resolution was not in issue, the SC
of the National Government and hence, entitled to                 observed that: it “seems to make the donation obligatory
exemption from local taxes.                                       and a condition precedent to the issuance of the mayor's
                                                                  permit. This goes against the nature of a donation, which
Philippine Petroleum Corp v.                                      is an act of liberality and is never obligatory…If, on the
Municipality of Pililia Rizal                                     other hand, it is to be considered a tax ordinance, then it
                                                                  must be shown in view of the challenge raised by the
Philippine Petroleum Corporation is a business enterprise         private respondents to have been enacted in accordance
engaged in the manufacture of lubricated oil basestock            with the requirements of the Local Tax Code.” Petitioners
which is a petroleum product, with its refinery plant             acted within the scope of their authority and in
situated at Malaya, Pililla, Rizal. The municipality of Pililia   consonance with their honest interpretation of the
enacted a municipal tax ordinance which covers the                resolution in question. It was not for them to rule on its
business of petitioner. Petitioner questions the                  validity. In the absence of a judicial decision declaring it
imposition in view of several provincial circulars directing      invalid, its legality would have to be presumed. As
the municipality officers to refrain from collecting the          executive officials of the municipality, they had the duty
said taxes. The validity of the ordinance is undisputed for       to enforce it as long as it had not been repealed by the
it is an exercise of the constitutional power of LGUs to          Sangguniang Bayan or annulled by the courts.
levy taxes. To allow the continuous effectivity of the
prohibition set forth in the circulars would be                       ii.       Franchises
tantamount to restricting their power to tax by mere
administrative issuances. Administrative regulations              PLDT v. City of Davao
must be in harmony with the provisions of the law. It is
an ancient rule that exemptions from taxation are                 PLDT assails the franchise tax being imposed by the City
construed in strictissimi juris against the taxpayer and          of Davao. Its argument is based on its franchise in
liberally in favor of the taxing authority.                       relation to RA 7925 particularly the provision on the
                                                                  equality of treatment in the telecommunications
Floro Cement Corp. v. Gorospe                                     industry. It argues that because Smart and Globe are
                                                                  exempt from the franchise tax, it follows that it must
The municipality of Lugait, province of Misamis Oriental,         likewise be exempt from the tax being collected by the
seeks to collect from Floro Cement manufacturers and              City of Davao because the grant of tax exemption to
exporter's taxes. Floro Cement says that it is exempted           Smart and Globe ipso facto extended the same
by virtue of PD 463 which prevents LGUs from levying              exemption to it. In approving R.A. No. 7925, Congress did
taxes on mineral products. Ruling: the Court has                  not intend it to operate as a blanket tax exemption to all
consistently held that it is not a mineral product but            telecommunications entities. Applying the rule of strict
rather a manufactured product. The exemption                      construction of laws granting tax exemptions and the
mentioned in P.D. No. 463 refers only to machineries,             rule that doubts should be resolved in favor of municipal
equipment, tools for production, etc., as provided in Sec.        corporations in interpreting statutory provisions on

D2010 56
                                                                                                     UP College of Law

municipal taxing powers, R.A. 7925 cannot be considered        considered real property for taxation purposes because
as having amended petitioner's franchise so as to entitle      they are installed at a specific location with a character
it to exemption from the imposition of local franchise         of permanency. The LBAA also pointed out that the
taxes.                                                         owner of the barges–FELS, a private corporation–is the
                                                               one being taxed, not NPC. A mere agreement making
City Government of QC v. Bayantel                              NPC responsible for the payment of all real estate taxes
                                                               and assessments will not justify the exemption of FELS;
Bayantel claims exemption from real property taxes             such a privilege can only be granted to NPC and cannot
being imposed by Quezon City. It anchors its claim on its      be extended to FELS.
legislative franchise. According to the court, the
franchise distinguishes between two (2) sets of                Fels appealed to the CBAA. The CBAA reversed and ruled
properties, be they real or personal, owned by the             that the power barges belong to NPC; since they are
franchisee, namely, (a) those actually, directly and           actually, directly and exclusively used by it, the power
exclusively used in its radio or telecommunications            barges are covered by the exemptions under Section
business, and (b) those properties which are not so used.      234(c) of R.A. No. 7160. As to the other jurisdictional
The power to impose realty taxes by the LGUs only              issue, the CBAA ruled that prescription did not preclude
covers the second category. Bayantel’s franchise being         the NPC from pursuing its claim for tax exemption in
national in character, the "exemption" thus granted in its     accordance with Section 206 of R.A. No. 7160. Upon MR,
charter applies to all its real or personal properties found   the CBAA reversed itself.
anywhere within the Philippine archipelago. Although
the enactment of the LGC withdrew Bayantel’s                   WON the petitioner may be assessed real property taxes
exemption, the amendatory law of Bayantel’s franchise
                                                               Held: Yes
reenacted the exemption.
                                                               The CBAA and LBAA maintain that power barges are real
FELS Energy v. Province of Batangas                            property and are thus subject to real property tax. Tax
                                                               assessments by tax examiners are presumed correct and
                                                               made in good faith, with the taxpayer having the burden
NPC entered into a lease contract with Polar Energy, Inc.
                                                               of proving otherwise. Factual findings of administrative
over 3x30 MW diesel engine power barges moored at
                                                               bodies, which have acquired expertise in their field, are
Balayan Bay in Calaca, Batangas. The contract (Energy
                                                               generally binding and conclusive upon the Court.
Conversion Agreement) was for a period of 5 years.
Article 10 states that NPC shall be responsible for the        Power barges are categorized as immovable property by
payment of taxes; other than (i) taxes imposed or              destination (Article 415(9) NCC), being in the nature of
calculated on the basis of the net income of POLAR and         machinery and other implements intended by the owner
Personal Income Taxes of its employees and (ii)                for an industry or work which may be carried on in a
construction permit fees, environmental permit fees and        building or on a piece of land and which tend directly to
other similar fees and charges. Polar Energy then              meet the needs of said industry or work.
assigned its rights under the Agreement to Fels despite
NPC’s initial opposition.                                      Petitioners maintain that the power barges are exempt
                                                               from real estate tax under Section 234 (c) of R.A. No.
FELS received an assessment of real property taxes on          7160 because they are actually, directly and exclusively
the power barges from the Provincial Assessor of               used by petitioner NPC, a government- owned and
Batangas City. FELS referred the matter to NPC,                controlled corporation engaged in the supply,
reminding it of its obligation under the Agreement to pay      generation, and transmission of electric power.
all real estate taxes.
                                                               SC affirms the findings of the LBAA and CBAA that the
FELS gave NPC the full power and authority to represent        owner of the taxable properties is petitioner FELS, which
it in any conference regarding the real property               is the entity being taxed by the local government.
assessment of the Provincial Assessor.
                                                               As stipulated under Section 2.11, Article 2 of the
NPC filed a petition with the LBAA. The LBAA ordered           Agreement:
Fels to pay the real estate taxes. The LBAA ruled that the
power plant facilities, while they may be classified as        Ownership of power barges. POLAR shall own the Power
movable or personal property, are nevertheless                 Barges and all the fixtures, fittings, machinery and

                                                                                                                57 D2010
Local Government

equipment on the Site used in connection with the             meaningful local autonomy to empower them to achieve
Power Barges which have been supplied by it at its own        their fullest development as self-reliant communities and
cost. POLAR shall operate, manage and maintain the            make them effective partners in the attainment of
Power Barges for the purpose of converting Fuel of            national goals.
NAPOCOR into electricity.
                                                              The power to tax is the most potent instrument to raise
FELS cannot escape liability from the payment of realty       the needed revenues to finance and support myriad
taxes by invoking its exemption in Section 234 (c) of R.A.    activities of the local government units for the delivery of
No. 7160. Indeed, the law states that the machinery           basic services essential to the promotion of the general
must be actually, directly and exclusively used by the        welfare and the enhancement of peace, progress, and
government owned or controlled corporation;                   prosperity of the people.
nevertheless, petitioner FELS still cannot find solace in
this provision because Section 5.5, Article 5 of the          Digitel v. Province of Pangasinan
Agreement provides:
                                                              Section 137 LGC withdrew any exemption from the
Operation. POLAR undertakes that until the end of the         payment of franchise tax by authorizing the LGUs to
Lease Period, subject to the supply of the necessary Fuel     impose a franchise tax on businesses at a rate not
pursuant to Article 6 and to the other provisions hereof,     exceeding 50% of 1% of the gross annual receipts of the
it will operate the Power Barges to convert such Fuel into    business.
electricity in accordance with Part A of Article 7.
                                                              Section 232 also authorizes the imposition of an ad
It is a basic rule that obligations arising from a contract   valorem tax on real property by the LGUs within the
have the force of law between the parties. Not being          Metropolitan Manila Area wherein the land, building,
contrary to law, morals, good customs, public order or        machinery and other improvement not thereinafter
public policy, the parties to the contract are bound by its   specifically exempted.
terms and conditions.
                                                              Digitel was granted, under Provincial Ordinance No. 18-
Applying the rule of strict construction of laws granting     92, a provincial franchise to install, maintain and operate
tax exemptions, and the rule that doubts should be            a telecommunications system within Pangasinan.
resolved in favor of provincial corporations, we hold that
FELS is considered a taxable entity.                          Under the Sec 6 of the provincial franchise, the grantee is
                                                              required to pay franchise and real property taxes.
The mere undertaking of petitioner NPC under Section
10.1 of the Agreement, that it shall be responsible for       The Sangguniang Panlalawigan also enacted Provincial
the payment of all real estate taxes and assessments,         Tax Ordinance 1 (Real Property Tax Ordinance of 1992).
does not justify the exemption. The privilege granted to
petitioner NPC cannot be extended to FELS. The                Section 4 expanded the application of Sec. 6 of the
covenant is between FELS and NPC and does not bind a          provincial franchise of Digitel to include machineries and
third person not privy thereto, in this case, the Province    other improvements, not thereinafter exempted,.
of Batangas.
                                                              Provincial Tax Ordinance No 4 was then enacted.
It must be pointed out that the protracted and circuitous     Sections 4, 5 and 6 positively imposed a franchise tax on
litigation has seriously resulted in the local government’s   businesses enjoying a franchise within the province of
deprivation of revenues. The power to tax is an incident      Pangasinan.
of sovereignty and is unlimited in its magnitude,
                                                              Digitel was granted by RA 7678 a legislative franchise.
acknowledging in its very nature no perimeter so that
security against its abuse is to be found only in the         Under Section 5 of its legislative franchise, DIGITEL
responsibility of the legislature which imposes the tax on    became liable for the payment of a franchise tax “as may
the constituency who are to pay for it. The right of local    be prescribed by law of all gross receipts of the
government units to collect taxes due must always be          telephone or other telecommunications businesses
upheld to avoid severe tax erosion. This consideration is     transacted under it by the grantee,” as well as real
consistent with the State policy to guarantee the             property tax “on its real estate, and buildings “exclusive
autonomy of local governments and the objective of the
                                                              of this franchise.”
Local Government Code that they enjoy genuine and

D2010 58
                                                                                                     UP College of Law

Province of Pangasinan found that Digitel had a franchise      used in the statute pertains merely to an exemption from
tax deficiency for the years of 1992, 1993 and 1994.           regulatory or reporting requirements of the DOTC or the
                                                               NTC and not to the grantee’s tax liability. Congress did
In the interregnum, on 16 March 1995, Congress passed          not intend Section 23 to operate as a blanket tax
RA 7925 (The Public Telecommunications Policy Act of           exemption to all telcos. PLDT’s theory will leave the
the Philippines).                                              Government with the burden of having to keep track of
                                                               all granted telecommunications franchises, lest some
Section 23 (Equality of Treatment in the                       companies be treated unequally. It is different if
Telecommunications Industry), provided for the ipso            Congress enacts a law specifically granting uniform
facto application to any previously granted                    advantages, favor, privilege, exemption, or immunity to
telecommunications franchises of any advantage, favor,         all telecommunications entities.
privilege, exemption or immunity granted under existing
franchises, or those still to be granted, to be accorded       R.A. No. 7925 is a legislative enactment designed to set
immediately and unconditionally to earlier grantees.           the national policy on telecommunications and provide
                                                               the structures to implement it to keep up with the
Digitel opposed Pangasinan’s claim on the ground that:         technological advances in the industry and the needs of
                                                               the public. The thrust of the law is to promote gradually
prior to the approval of its legislative franchise, its
                                                               the deregulation of the entry, pricing, and operations of
operation of a telecommunications system was done
                                                               all public telecommunications entities and thus promote
under a Facilities Management Agreement it had
                                                               a level playing field in the telecommunications industry.
previously executed with the DOTC. Thus, all revenues
                                                               There is nothing in the language of §23 nor in the
generated from the operation of the facilities inured to
                                                               proceedings of both the House of Representatives and
the DOTC and all the fees received by petitioner DIGITEL
                                                               the Senate in enacting R.A. No. 7925 which shows that it
were purely for services rendered.
                                                               contemplates the grant of tax exemptions to all
under its legislative franchise, the payment of a franchise    telecommunications entities, including those whose
tax to the BIR would be “in lieu of all taxes” on said         exemptions had been withdrawn by the LGC.
franchise or the earnings therefrom.
                                                               In view of the passage of RA 7716 abolishing the
The Province of Pangasinan filed a Complaint for               franchise tax imposed on telecommunications companies
Mandamus, Collection of Sum of Money and Damages               effective 1 January 1996 and in its place is imposed a
before Branch 68 of the RTC of Lingayen, Pangasinan.           10% VAT, the “in-lieu-of-all-taxes” clause/provision in
The trial court decided the Province.                          the legislative franchises of Globe, Smart and Bell, among
                                                               others, has now become functus officio, made
Digitel maintains that its legislative franchise being an      inoperative for lack of a franchise tax. Therefore, from 1
earlier enactment, by virtue of Section 23 of Republic Act     January 1996, Digitel ceased to be liable for national
No. 7925, the ipso facto, immediate and unconditional          franchise tax and in its stead is imposed a 10% VAT in
application to it of the tax exemption found in the            accordance with Section 108 of the Tax Code.
franchises of Globe, Smart and Bell.
                                                               WON Digitel is exempt from payment of real estate tax
WON Digitel is exempt from the payment of provincial           under its legislative franchise.
franchise tax in view of Section 23 of RA 7925 in relation
to the exemptions enjoyed by other telephone                   Held: Yes
companies?                                                     SECTION 5. Tax Provisions. – The grantee shall be liable
                                                               to pay the same taxes on its real estate, buildings, and
Held: No                                                       personal property exclusive of this franchise as other
Prior to the enactment of its legislative franchise, Digitel   persons or corporations are now or hereafter may be
did not enjoy and exemption from the payment of                required by law to pay x x x.
franchise and real property taxes. In fact the provincial
franchise made Digitel liable for the payment of such          SC qualifies that such exemption solely applies to those
taxes.                                                         real properties actually, directly and exclusively used by
                                                               the grantee in its franchise.
In the case of PLDT v. City of Davao, SC already clarified
the confusion brought about by the effect of Section 23        The present issue actually boils down to a dispute
of Republic Act No. 7925 – that the word “exemption” as        between the inherent taxing power of Congress and the

                                                                                                                59 D2010
Local Government

delegated authority to tax of the local government borne        WON the Ministry of Finance could legally promulgate
by the 1987 Constitution.                                      Regulations prescribing a rate of penalty on delinquent
                                                               taxes other than that provided for under PD 464, also
In the PLDT v. City of Davao, SC sustained the power of        known as the Real Property Tax Code.
Congress to grant exemptions over and above the power
of the local government’s delegated taxing authority           Held: No
notwithstanding the source of such power.                      The subject Regulations must be struck down for being
                                                               repugnant to Section 66 of P.D. No. 464 or the Real
Had Congress intended to tax each and every real               Property Tax Code, which is the law prevailing at the
property of Digitel, regardless of whether or not it is used   time material to this case.
in the business or operation of its franchise, it would not
have incorporated a qualifying phrase, which such              Under Section 66 of P.D. No. 464, the maximum penalty
manifestation admittedly is.                                   for delinquency in the payment of real property tax shall
                                                               in no case exceed 24% of the delinquent tax
The fact that Republic Act No. 7678 was a later piece of
legislation can be taken to mean that Congress, knowing        Section 4(c) of the challenged Joint Assessment
fully well that the Local Government Code had already          Regulations No. 1-85 and Local Treasury Regulations No.
withdrawn exemptions from real property taxes, chose           2-85 issued by respondent Secretary of Finance provides
to restore such immunity even to a limited degree.             that “the penalty of two percent (2%) per month of
                                                               delinquency or twenty-four percent (24%) per annum as
Said exemption, however, merely applies from the time          the case may be, shall continue to be imposed on the
of the effectivity of petitioner DIGITEL’s legislative         unpaid tax from the time the delinquency was incurred
franchise and not a moment sooner.                             up to the time that the delinquency is paid for in full.”
    iii.     Real Property Taxation and Special                The penalty imposed under the assailed Regulations has
             Education Fund Tax                                no limit inasmuch as the 24% penalty per annum shall be
                                                               continuously imposed on the unpaid tax until it is paid
Sec of Finance v. Ilarde                                       for in full unlike that imposed under Section 66 of the
                                                               Real Property Tax Code where the total penalty is limited
Cipriano P. Cabaluna, Jr., was the Regional Director of        only to twenty-four percent of the delinquent tax.
Regional Office No. VI of the DOF. He co-owns with his
wife certain properties in Jaro, Iloilo City. Private          The Court harbors doubts on the veracity of petitioner’s
respondent failed to pay the land taxes for the years          contention that the Regulations at issue are sanctioned
1986 to 1992. A breakdown of the computation of the            by E.O. No. 73.
delinquent taxes showed that more than 24% of the
delinquent taxes were charged and collected from               The underlying principle behind E.O. No. 73, is to
private respondent by way of penalties.                        advance the date of effectivity of the application of the
                                                               Real Property Tax Values of 1984 from 01 January 1988,
Cabaluna paid his land taxes and the receipts were             the original date it was intended by E.O. No. 1019 to take
issued to him by the City Treasurer’s Office with the          effect for purposes stated therein, to 01 January 1987.
notation “paid under protest.” After Cabaluna’s
retirement, he filed a formal protest with the City            E.O. No. 73 did not, in any way, alter the structure of the
Treasurer of Iloilo wherein he contends that the               real property tax assessments as provided for in P.D. No.
computation was erroneous since the rate of penalty            464 or the Real Property Tax Code.
exceed 24% in contravention of Section 66 of P.D. No.
464 (Real Property Tax Code).                                  E.O. No. 73 did not touch at all on the topic of
                                                               amendment of rates of delinquent taxes or the
Section 66 of P.D. No. 464 fixed the maximum penalty for       amendment of rates of penalty on delinquent taxes.
delinquency in the payment of real estate taxes at 24%
of the delinquent tax. The Assistant City Treasurer            E.O. No. 73, particularly in Section 2 thereof, has merely
Rizalina Tulio turned down the protest, citing Sec. 4(c) of    designated the Minister of Finance to promulgate the
Joint Assessment Regulations No. 1-85 and Local                rules and regulations towards the implementation of
Treasury Regulations No. 2-85 of the DOF.                      E.O. No. 73, particularly on the application of the Real

D2010 60
                                                                                                      UP College of Law

Property Values as of 31 December 1984, which is the            Section 39. Rates Of Levy—The provincial, city or
general purpose for enacting said executive order.              municipal board or council shall fix a uniform rate of real
                                                                property tax applicable to their respective localities.
PD 464 in general and Section 66 in particular, remained
to be good law. To accept petitioner’s premise would be         Benguet Corp contends that LGUs are without any
tantamount to saying that EO 73 has repealed or                 authority to levy realty taxes on mines per PD 463 and
amended PD 464.                                                 the Local Tax Code.

Repeal of laws should be made clear and expressed.              WON it is the LGUs and not the National Government
Repeals by implication are not favored for a law cannot         which levy realty taxes
be deemed repealed unless it is clearly manifest that the
legislature so intended it. The failure to add a specific       Held: No, it is the national government
repealing clause indicates that the intent was not to           While the local government units are changed with fixing
repeal any existing law, unless an irreconcilable               the rate of real property taxes, it does not necessarily
inconsistency and repugnancy exist in the terms of the          follow from that authority the determination of the
new and old laws. SC found no such inconsistency or             imposition of the tax. LGUs have no alternative but to
repugnancy between EO 73 and Section 66 of PD 464.              collect taxes as mandated by Section 38 ( Incidence of
                                                                Real Property Tax) of the Real Property Tax Code. It is
A regulation which is in itself invalid for being contrary to   clear that is the national government that levies real
law cannot be validated by any act of endorsement of            property tax. When LGUs are required to fix the rates,
any official, much less, by a subordinate of the official       they are merely constituted as agents of the national
who issued such regulation. Estoppel, certainly, cannot         government in the enforcement of the Real Property Tax
make an invalid regulation valid.                               Code. There is even no delegation of power to speak of
                                                                because the national government has already imposed
The penalties imposed by respondents City Treasurer             realty tax in Section 38, leaving only the enforcement to
and Assistant City Treasurer of Iloilo City on the property     be done by the local governments.
of private respondent are valid only up to 24% of the
delinquent taxes. The excess penalties paid should, in          Realty tax has always been imposed by the law-making
view of that, be refunded by the latter.                        body. It is enforced throughout the Philippines and not
                                                                merely in a particular municipality or city but the
However, from 01 January 1992 onwards, the proper               proceeds of the tax accrue to the province, city,
basis for the computation of the real property tax              municipality and barrio where the municipality is
payable, including penalties or interests, if applicable,       situated. (Section 68 of PD 464) IN contrast, a local tax is
must be Rep. Act No. 7160 inasmuch as Section 534 had           imposed by the municipality or city council pursuant to
expressly repealed P.D. No. 464 or the Real Property Tax        the Local Tax Code.
Code. Section 5(d) of Rep. Act No. 7160 provides that
rights and obligations existing on the date of effectivity      The provisions of the Local Tax Code and PD 463 alleged
of the new Code and arising out of contracts or any             by the corporation regarding the absence of power to
source of prestation involving a local government unit          levy realty taxes by LGUs on mines are mere limitations
shall be governed by the original terms and conditions of       on the taxing power of the LGUs and are not pertinent to
the said contracts or the law in force at the time such         the issue in the case at bar. It cannot affect the
contracts were vested.                                          imposition of real property tax by the national
Benguet Corp v. CBAA
                                                                National Development Co. v. Cebu City
Benguet Corporation has bunkhouses used by its rank-
and-file employees for residential purposes. The                National Development Company (NDC) is a GOCC
Provincial Assessor of Benguet assessed real property tax       authorized to engage in commercial, industrial, mining,
on these bunkhouses. According to him, the tax                  agricultural and other enterprises necessary or
exemption of bunkhouses under PD 745 was already                contributory to economic development or important to
withdrawn by PD 1955. The main contention if Benguet            public interest. It also operates subsidiary corporations
Corp is that the realty taxes are local taxes because these     one of which is National Warehousing Corporation
taxes are levied by LGUs per Section 39 of PD 464.              (NWC).

                                                                                                                 61 D2010
Local Government

In 1939, the President issued Proclamation No. 430            assessed real estate tax as such improvement does not
reserving Block no. 4, Reclamation Area No. 4, of Cebu        appear to belong to the Republic.
City for warehousing purposes under the administration
of NWC. In 1940, a warehouse with a floor area of 1,940       Province of Tarlac v. Judge Alcantara
square meters more or less, was constructed thereon. In
1947, EO 93 dissolved NWC with NDC taking over its            Tarlac Enterprises Inc .is the owner of a parcel of land in
assets and functions. In 1948, Cebu City assessed and         Mabini, Tarlac, an ice drop factory in said land,
collected from NDC real estate taxes on the land and the      machinery shed and other machinery. These properties
warehouse thereon. By the first quarter of 1970, a            were declared for purposes of taxation in the Provincial
substantial amount of the taxes were paid under protest.      Assessor’s Office. The Provincial Treasurer found that
NDC asked for a full refund contending that the land and      real estate taxes for the years 1974 until 1992 including
the warehouse belonged to the Republic and therefore          penalties were not yet paid. Therefore, the Provincial
exempt from taxation.                                         Treasurer filed a complaint praying that the company pay
                                                              the said sum as well as damages. The court rendered the
WON the NDC is exempt from real estate taxes                  decision dismissing the complaint. It ruled that P.D. No.
                                                              551 expressly exempts private respondent from paying
Held: Yes                                                     the real property taxes demanded, it being a grantee of a
To come within the ambit of the exemption provided in         franchise to generate, distribute and sell electric current
Art. 3, par. (a), of the Assessment Law, it is important to   for light. The court held that in lieu of said taxes, private
establish that the property is owned by the government        respondent had been required to pay 2% franchise tax in
or its unincorporated agency, and once government             line with the intent of the law to give assistance to
ownership is determined, the nature of the use of the         operators such as the private respondent to enable the
property, whether for proprietary or sovereign purposes,      consumers to enjoy cheaper rates.
becomes immaterial. What appears to have been ceded
to NWC (later transferred to NDC), in the case before Us,     WON Tarlac Enterprises, Inc. is exempt from the
is merely the administration of the property while the        payment of real property tax under Sec. 40 (g) of P.D. No.
government retains ownership of what has been                 464 in relation to P.D. No. 551, as amended.
declared reserved for warehousing purposes under
Proclamation No. 430.                                         Held: No
                                                              The phrase "in lieu of all taxes and assessments of
A reserved land is defined as “a public land has been         whatever nature" in the second paragraph of Sec. 1 of
withheld or kept back from sale or disposition”. The          P.D. No. 551 does not expressly exempts private
government does not part with its title by reserving          respondent from paying real property taxes. Said proviso
them, but gives notice to the world that it desires them      is modified and delimited by the phrase "on earnings,
for a certain purpose.Absolute disposition of land is not     receipts. income and privilege of generation, distribution
implied from reservation; it merely means “a withdrawal       and sale" which specifies the kinds of taxes and
of a specified portion of the pubic domain from disposal      assessments which shall not be collected in view of the
under the land laws and the appropriation for the time        imposition of the franchise tax. Said enumerated items
being to some particular use or purpose of the general        upon which taxes shall not be imposed, have no relation
government.”As its title remains with the Republic, the       at all to, and are entirely different from real properties
reserved land is clearly covered by the tax exemption         subject to tax.
                                                              If the intention of the law is to exempt electric franchise
However, as regards the warehouse constructed on a            grantees from paying real property tax and to make the
public reservation, a different rule should apply because     2% franchise tax the only imposable tax, then said
"[t]he exemption of public property from taxation does        enumerated items would not have been added when PD
not extend to improvements on the public lands made by        852 was enacted to amend P.D. No. 551. The legislative
pre-emptioners, homesteaders and other claimants, or          authority would have simply stopped after the phrase
occupants, at their own expense, and these are taxable        "national or local authority" by putting therein a period.
by the state . . ." Consequently, the warehouse               On the contrary, it went on to enumerate what should
constructed on the reserved land by NWC (now under            not be subject to tax thereby delimiting the extent of the
administration by NDC), indeed, should properly be            exemption.

D2010 62
                                                                                                   UP College of Law

It bears emphasis that P.D. No. 551 as amended by P.D.       departments and agencies, including state universities
No. 852 deals with franchise tax and tariff on fuel oils     and colleges, GOCCs and LGUs will identify and
and the "earnings, receipts, income and privilege of         implement measures in FY 1998 that will replace total
generation, distribution and sale of electric current" are   expenditures by at least 25% of authorized regular
the items exempted from taxation by the imposition of        appropriations for non-personal services items. Section 4
said tax or tariff duty. On the other hand, the collection   also provided that pending assessment by the
complaint filed by petitioner specified only taxes due on    Development Budget Coordinating Committee of the
real properties. While P.D. No. 551 was intended to give     emerging fiscal situation, the amount equivalent to 10%
"assistance to the franchise holders by reducing some of     of the IRA to LGUs shall be withheld. President Estrada
their tax and tariff obligations," to construe said decree   issued AO 43, amending Section 4 by reducing to 5% the
as having granted such franchise holders exemption from      IRA to be withheld.
payment of real property tax would unduly extend the
ambit of exemptions beyond the purview of the law.           WON Section 1 of AO 372, insofar as it "directs" LGUs to
                                                             reduce their expenditures by 25% is valid
P.D. No. 551 is not as all-encompassing as said provision
of the Local Autonomy Act for it enumerates the items        Held: Yes
which are not taxable by virtue of the payment of            Section 1 of AO 372, insofar as it “directs” LGUs to
franchise tax.                                               reduce expenditures by at least 25% is a valid exercise of
                                                             the President’s power of general supervision over LGUs
It has always been the rule that "exemptions from            as it is advisory only. “Supervisory power, when
taxation are construed in strictissimi juris against the     contrasted with control, is the power of mere oversight
taxpayer and liberally in favor of the taxing authority"     over an inferior body; it does not include any restraining
primarily because "taxes are the lifeblood of government     authority over such body.” (Taule vs. Santos) Under
and their prompt and certain availability is an imperious    existing law, LGU, in addition to having administrative
need." Thus, to be exempted from payment of taxes, it is     autonomy, enjoy fiscal autonomy as well. Fiscal
the taxpayer's duty to justify the exemption "by words       autonomy means that local governments have the power
too plain to be mistaken and too categorical to be           to create their own sources of revenue in addition to
misinterpreted. Private respondent has utterly failed to     their equitable share in the national taxes released by
discharge this duty.                                         the national government, as well as the power to
                                                             allocate their resources in accordance with their own
    iv.      Shares of LGUs in National Taxes                priorities. It extends to the preparation of their budgets,
                                                             and local officials in turn have to work within the
1987 Constitution                                            constraints thereof.

Section 6. Local government units shall have a just share,   Local fiscal autonomy does not however rule out any
as determined by law, in the national taxes which shall      manner of national government intervention by way of
be automatically released to them.                           supervision, in order to ensure that local programs, fiscal
                                                             and otherwise, are consistent with national goals.
Section 7. Local governments shall be entitled to an         However, under the Constitution, the formulation and
equitable share in the proceeds of the utilization and       the implementation of such policies and programs are
development of the national wealth within their              subject to "consultations with the appropriate public
respective areas, in the manner provided by law,             agencies, various private sectors, and local government
including sharing the same with the inhabitants by way       units." The President cannot do so unilaterally.
of direct benefits.
                                                             WON withholding a part of LGUs IRA is valid
Sec 284-294, LGC
                                                             Held: No
See attachments                                              Section 4 is invalid because it interferes with local
                                                             autonomy, particularly local fiscal autonomy. Local
Pimentel v. Aguirre                                          autonomy signified “a more responsive and accountable
                                                             local government structure instituted through a system
President Ramos issued Administrative Order 372              of decentralization. A basic feature of local fiscal
(Adoption of Economic Measures in Government for             autonomy is the automatic release of the share of LGUs
Fiscal Year 1998). Section 1 provided that all government    in the national internal revenue. This is mandated by the

                                                                                                             63 D2010
Local Government

Constitution. Section 4 orders the withholding of 10% of     Held: No (Tan Gin entitled to just compensation but
IRA “pending he assessment and evaluation by the             not to damages)
Development Budget Coordinating Committee of the             It is not disputed that the quonset building, which is
emerging fiscal situation.” Such withholding contravenes     being used for the storage of copra, is located outside
the Constitution and the law. Although temporary, it Is      the zone for warehouses. It is referred to in Ordinance as
equivalent to a holdback, which means “something held        a non-conforming structure, which should be relocated.
back or withheld, often temporarily.” Hence, the             In the event that an immediate relocation of the building
“temporary” nature of the retention does not matter.         can not be accomplished, Sec 16 of the Ordinance
Any retention is prohibited.                                 provides: “A certificate of non-conformance for all non-
                                                             conforming uses shall be applied for by the owner or
    C.   Abatement of Nuisance                               agent of the property involved within 12mo from the
                                                             approval of this Ordinance, otherwise the non-
Estate of Francisco v. CA                                    conforming use may be condemned or removed at the
                                                             owner's expense.”
A quonset was constructed by the American Liberation
Forces in 1944. It was purchased in 1946 by Gregoria         Even granting that petitioner failed to apply for a
Francisco. It stands on a lot owned by the PPA and faces     Certificate of Non-conformance, the provision should not
the municipal wharf. By virtue of Proclamation No. 83        be interpreted as authorizing the summary removal of a
issued by President Elpidio Quirino, said land was           non-conforming building by the municipal government.
declared for the exclusive use of port facilities. The PPA   For if it does, it must be struck down for being in
issued to Tan Gin San, spouse of Gregoria Francisco, a       contravention of the requirements of due process, as
permit to occupy the lot where the building stands for a     originally held by the CA. The enforcement and
period of one (1) year, to expire on 31 December 1989.       administration of the provisions of the Ordinance resides
Tan Gin used the quonset for the storage of copra.           with the Zoning Administrator , who may call upon the
                                                             City Fiscal to institute the necessary legal proceedings to
On May 1989, the Mayor notified Tan Gin San to remove        enforce the provisions of the Ordinance. Violation of a
or relocate its Quonset building citing Ordinance No. 147,   municipal ordinance does not empower municipal mayor
noting its antiquated and dilapidated structure; and         to avail of extra-judicial remedies. . On the contrary, the
stressing the "clean-up campaign on illegal squatters and    Local Government Code imposes upon him the duty "to
unsanitary surroundings along Strong Boulevard."             cause to be instituted judicial proceedings in connection
Likewise, according to the Mayor, the building was           with the violation of ordinances".
outside the warehouse zone; hence it was a non-
confirming structure. The notifications remained             Respondents can not seek cover under the general
unheeded; thus, the Mayor ordered the demolition on          welfare clause authorizing the abatement of nuisances
24 May 1989. Petitioner sought a Writ of Prohibition         without judicial proceedings. That tenet applies to a
with Injunction and Damages before the RTC of Basilan,       nuisance per se or one which affects the immediate
which denied the petition and upheld the power of the        safety of persons and property and may be summarily
Mayor to order the demolition without judicial authority     abated under the undefined law of necessity.
pursuant to Ordinance 147.
                                                             The storage of copra in the quonset building is a
 On 6 September 1989, petitioner's quonset building was      legitimate business. By its nature, it can not be said to be
completely demolished. The CA reversed the RTC and           injurious to rights of property, of health or of comfort of
ruled that the mayor was not vested with power to order      the community. If it be a nuisance per accidens it may be
summarily without any judicial proceeding to demolish        so proven in a hearing conducted for that purpose. It is
the Quonset building which was not a nuisance per se.        not per se a nuisance warranting its summary abatement
Upon reconsideration, however, the CA reversed itself        without judicial intervention.
and ruled that the deficiency was remedied when
petitioner filed a petition for prohibition and injunction   While the Sangguniang Bayan may provide for the
and was heard on oral argument.                              abatement of a nuisance (Local Government Code, Sec.
                                                             149 [ee]), it can not declare a particular thing as a
WON it was proper for the Mayor to summarily, without        nuisance per se and order its condemnation. The
judicial process, order the demolition of the non-           nuisance can only be so adjudged by judicial
conforming structure.                                        determination.

D2010 64
                                                                                                    UP College of Law

Petitioner was in lawful possession of the lot and            set aside the order which granted a writ of preliminary
quonset building by virtue of a permit from the PPA           mandatory injunction and dissolved the writ issued.
when demolition was effected. It was not squatting on
public land. It was entitled to an impartial hearing          WON the Mayor validly issued the closure order?
before a tribunal authorized to decide whether the
quonset building did constitute a nuisance in law. There      Held: YES
was no compelling necessity for precipitate action.           The following circumstances militate against the
                                                              maintenance of the writ of preliminary injunction sought
The public officials of Isabela, Basilan, transcended their   by petitioner:
authority in abating summarily petitioner's quonset
building. They had deprived petitioner of its property        1. No mayor's permit had been secured. The mayor of a
without due process of law.                                   town has as much responsibility to protect its inhabitants
                                                              from pollution, and by virtue of his police power, he may
Technology Developers Inc. v. CA                              deny the application for a permit to operate a business
                                                              or otherwise close the same unless appropriate
Petitioner received a letter from acting mayor Pablo N.       measures are taken to control and/or avoid injury to the
Cruz, ordering the full cessation of the operation of the     health of the residents of the community from the
petitioner's plant located at Guyong, Sta. Maria, Bulacan.    emissions in the operation of the business.
The letter requested Plant Manager Armando Manese to
                                                              2. The Acting Mayor called the attention of petitioner to
bring with him to the office of the mayor the following:
                                                              the pollution emitted by the fumes of its plant whose
a) Building permit; b) Mayor's permit; c) Region III-
                                                              offensive odor "not only pollute the air in the locality but
Pollution of Environment and Natural Resources Anti-
                                                              also affect the health of the residents in the area," so
Pollution Permit; and of other document.
                                                              that petitioner was ordered to stop its operation until
Petitioner undertook to comply with respondent's              further orders.
request for the production of the required documents.
                                                              3. This action of the Acting Mayor was in response to the
Petitioner commenced to secure "Region III-DENR Anti-
                                                              complaint of the residents of Barangay Guyong, Sta.
Pollution Permit," although among the permits
                                                              Maria, Bulacan, directed to the Provincial Governor
previously secured prior to the operation of petitioner's
                                                              through channels.
plant was a "Temporary Permit to Operate Air Pollution
Installation" issued by the then National Pollution           4. The closure order of the Acting Mayor was issued only
Control Commission. Petitioner's attention having been        after an investigation was made by Marivic Guina who in
called to its lack of mayor's permit, it sent its             her report observed that the fumes emitted by the plant
representatives to the office of the mayor to secure the      goes directly to the surrounding houses and that no
same but were not entertained.                                proper air pollution device has been installed.
Without previous and reasonable notice upon petitioner,       5. Petitioner failed to produce a building permit from
respondent ordered the Municipality's station                 the municipality of Sta. Maria, but instead presented a
commander to padlock the premises of petitioner's             building permit issued by an official of Makati on March
plant, thus effectively causing the stoppage of its           6, 1987.
operation. Petitioner instituted an action for certiorari,
prohibition, mandamus with preliminary injunction             6. While petitioner was able to present a temporary
against private respondent. The judge found that              permit to operate by the then National Pollution Control
petitioner is entitled to the issuance of a writ of           Commission on December 15, 1987, the permit was good
preliminary injunction upon posting of a bond worth           only up to May 25, 1988. Petitioner had not exerted any
P50,000. During the MR, the Provincial Prosecutor             effort to extend or validate its permit much less to install
presented his evidence prepared by Marivic Guina, “Due        any device to control the pollution and prevent any
to the manufacturing process and nature of raw                hazard to the health of the residents of the community.
materials used, the fumes coming from the factory may
contain particulate matters which are hazardous to the        Court takes note of the plea of petitioner focusing on its
health of the people. As such, the company should cease       huge investment in this dollar-earning industry. It must
operating until such a time that the proper air pollution     be stressed however, that concomitant with the need to
device is installed and operational." The lower court then    promote investment and contribute to the growth of the

                                                                                                               65 D2010
Local Government

economy is the equally essential imperative of protecting       There should be no quarrel over permit fees for fishpens,
the health, nay the very lives of the people, from the          fishcages and other aqua-culture structures in the
deleterious effect of the pollution of the environment.         Laguna de Bay area. Section 3 of Executive Order No. 927
                                                                provides for the proper sharing of fees collected.
Laguna Lake Development Authority v.
CA                                                              In view of the foregoing, this Court holds that Section
                                                                149 of RA 7160, otherwise known as the Local
Issue: Which agency of the Government - the LLDA or             Government Code of 1991, has not repealed the
the towns and municipalities comprising the region -            provisions of the charter of the LLDA, Republic Act No.
should exercise jurisdiction over the Laguna Lake and its       4850, as amended. Thus, the Authority has the exclusive
environs insofar as the issuance of permits for fishery         jurisdiction to issue permits for the enjoyment of fishery
privileges is concerned?                                        privileges in Laguna de Bay to the exclusion of
                                                                municipalities situated therein and the authority to
Held: LLDA                                                      exercise such powers as are by its charter vested on it.
Section 4 (k) of RA 4850, the provisions of PD 813, and
Section 2 of EO 927, specifically provide that the LLDA             D. Power of Eminent Domain
shall have exclusive jurisdiction to issue permits for the
use or all surface water for any projects or activities in or   Rule 67 Expropriation, Rules of Court
affecting the said region, including navigation,
construction, and operation of fishpens, fish enclosures,       Section 1. The complaint. The right of eminent domain
fish corrals and the like. On the other hand, RA 7160 has       shall be exercised by the filing of a verified complaint
granted to the municipalities the exclusive authority to        which shall state with certainty the right and purpose of
grant fishery privileges in municipal waters. The               expropriation, describe the real or personal property
Sangguniang Bayan may grant fishery privileges to erect         sought to be expropriated, and join as defendants all
fish corrals, oyster, mussels or other aquatic beds or          persons owning or claiming to own, or occupying, any
bangus fry area within a definite zone of the municipal         part thereof or interest therein, showing, so far as
waters.                                                         practicable, the separate interest of each defendant. If
                                                                the title to any property sought to be expropriated
The provisions of RA7160 do not necessarily repeal the          appears to be in the Republic of the Philippines, although
laws creating the LLDA and granting the latter water            occupied by private individuals, or if the title is otherwise
rights authority over Laguna de Bay and the lake region.        obscure or doubtful so that the plaintiff cannot with
                                                                accuracy or certainty specify who are the real owners,
The Local Government Code of 1991 does not contain              averment to that effect shall be made in the complaint.
any express provision which categorically expressly             (1a)
repeal the charter of the Authority. It has to be conceded
that there was no intent on the part of the legislature to      Sec. 2. Entry of plaintiff upon depositing value with
repeal Republic Act No. 4850 and its amendments. The            authorized government depositary. Upon the filing of the
repeal of laws should be made clear and expressed.              complaint or at any time thereafter and after due notice
                                                                to the defendant, the plaintiff shall have the right to take
Where there is a conflict between a general law and a           or enter upon the possession of the real property
special statute, the special statute should prevail since it    involved if he deposits with the authorized government
evinces the legislative intent more clearly that the            depositary an amount equivalent to the assessed value
general statute. The special law is to be taken as an           of the property for purposes of taxation to be held by
exception to the general law in the absence of special          such bank subject to the orders of the court. Such
circumstances forcing a contrary conclusion.                    deposit shall be in money, unless in lieu thereof the court
                                                                authorizes the deposit of a certificate of deposit of a
Considering the reasons behind the establishment of the         government bank of the Republic of the Philippines
Authority, which are enviromental protection,                   payable on demand to the authorized government
navigational safety, and sustainable development, there         depositary.
is every indication that the legislative intent is for the
Authority to proceed with its mission.                          If personal property is involved, its value shall be
                                                                provisionally ascertained and the amount to be
                                                                deposited shall be promptly fixed by the court.

D2010 66
                                                                                                    UP College of Law

After such deposit is made the court shall order the          After the rendition of such an order, the plaintiff shall
sheriff or other proper officer to forthwith place the        not be permitted to dismiss or discontinue the
plaintiff in possession of the property involved and          proceeding except on such terms as the court deems just
promptly submit a report thereof to the court with            and equitable. (4a)
service of copies to the parties. (2a)
                                                              Sec. 5. Ascertainment of compensation. Upon the
Sec. 3. Defenses and objections. If a defendant has no        rendition of the order of expropriation, the court shall
objection or defense to the action or the taking of his       appoint not more than three (3) competent and
property, he may file and serve a notice of appearance        disinterested persons as commissioners to ascertain and
and a manifestation to that effect, specifically              report to the court the just compensation for the
designating or identifying the property in which he claims    property sought to be taken. The order of appointment
to be interested, within the time stated in the summons.      shall designate the time and place of the first session of
Thereafter, he shall be entitled to notice of all             the hearing to be held by the commissioners and specify
proceedings affecting the same.                               the time within which their report shall be submitted to
                                                              the court.
If a defendant has any objection to the filing of or the
allegations in the complaint, or any objection or defense     Copies of the order shall be served on the parties.
to the taking of his property, he shall serve his answer      Objections to the appointment of any of the
within the time stated in the summons. The answer shall       commissioners shall be filed with the court within ten
specifically designate or identify the property in which he   (10) days from service, and shall be resolved within thirty
claims to have an interest, state the nature and extent of    (30) days after all the commissioners shall have received
the interest claimed, and adduce all his objections and       copies of the objections. (5a)
defenses to the taking of his property. No counterclaim,
cross-claim or third-party complaint shall be alleged or      Sec. 6. Proceedings by commissioners. Before entering
allowed in the answer or any subsequent pleading.             upon the performance of their duties, the commissioners
                                                              shall take and subscribe an oath that they will faithfully
A defendant waives all defenses and objections not so         perform their duties as commissioners, which oath shall
alleged but the court, in the interest of justice, may        be filed in court with the other proceedings in the case.
permit amendments to the answer to be made not later          Evidence may be introduced by either party before the
than ten (10) days from the filing thereof. However, at       commissioners who are authorized to administer oaths
the trial of the issue of just compensation, whether or       on hearings before them, and the commissioners shall,
not a defendant has previously appeared or answered,          unless the parties consent to the contrary, after due
he may present evidence as to the amount of the               notice to the parties to attend, view and examine the
compensation to be paid for his property, and he may          property sought to be expropriated and its surroundings,
share in the distribution of the award. (n)                   and may measure the same, after which either party
                                                              may, by himself or counsel, argue the case. The
Sec. 4. Order of expropriation. If the objections to and      commissioners shall assess the consequential damages
the defenses against the right of the plaintiff to            to the property not taken and deduct from such
expropriate the property are overruled, or when no party      consequential damages the consequential benefits to be
appears to defend as required by this Rule, the court         derived by the owner from the public use or purpose of
may issue an order of expropriation declaring that the        the property taken, the operation of its franchise by the
plaintiff has a lawful right to take the property sought to   corporation or the carrying on of the business of the
be expropriated, for the public use or purpose described      corporation or person taking the property. But in no case
in the complaint, upon the payment of just                    shall the consequential benefits assessed exceed the
compensation to be determined as of the date of the           consequential damages assessed, or the owner be
taking of the property or the filing of the complaint,        deprived of the actual value of his property so taken. (6a)
whichever came first.
                                                              Sec. 7. Report by commissioners and judgment
A final order sustaining the right to expropriate the         thereupon. The court may order the commissioners to
property may be appealed by any party aggrieved               report when any particular portion of the real estate
thereby. Such appeal, however, shall not prevent the          shall have been passed upon by them, and may render
court from determining the just compensation to be            judgment upon such partial report, and direct the
paid.                                                         commissioners to proceed with their work as to

                                                                                                              67 D2010
Local Government

subsequent portions of the property sought to be               appropriate it for the public use or purpose defined in
expropriated, and may from time to time so deal with           the judgment, or to retain it should he have taken
such property. The commissioners shall make a full and         immediate possession thereof under the provisions of
accurate report to the court of all their proceedings, and     section 2 hereof. If the defendant and his counsel absent
such proceedings shall not be effectual until the court        themselves from the court, or decline to receive the
shall have accepted their report and rendered judgment         amount tendered, the same shall be ordered to be
in accordance with their recommendations. Except as            deposited in court and such deposit shall have the same
otherwise expressly ordered by the court, such report          effect as actual payment thereof to the defendant or the
shall be filed within sixty (60) days from the date the        person ultimately adjudged entitled thereto. (10a)
commissioners were notified of their appointment,
which time may be extended in the discretion of the            Sec. 11. Entry not delayed by appeal; effect of reversal.
court. Upon the filing of such report, the clerk of the        The right of the plaintiff to enter upon the property of
court shall serve copies thereof on all interested parties,    the defendant and appropriate the same for public use
with notice that they are allowed ten (10) days within         or purpose shall not be delayed by an appeal from the
which to file objections to the findings of the report, if     judgment. But if the appellate court determines that
they so desire. (7a)                                           plaintiff has no right of expropriation, judgment shall be
                                                               rendered ordering the Regional Trial Court to forthwith
Sec. 8. Action upon commissioners’ report. Upon the            enforce the restoration to the defendant of the
expiration of the period of ten (10) days referred to in       possession of the property, and to determine the
the preceding section, or even before the expiration of        damages which the defendant sustained and may
such period but after all the interested parties have filed    recover by reason of the possession taken by the
their objections to the report or their statement of           plaintiff. (11a)
agreement therewith, the court may, after hearing,
accept the report and render judgment in accordance            Sec. 12. Costs, by whom paid. The fees of the
therewith; or, for cause shown, it may recommit the            commissioners shall be taxed as a part of the costs of the
same to the commissioners for further report of facts; or      proceedings. All costs, except those of rival claimants
it may set aside the report and appoint new                    litigating their claims, shall be paid by the plaintiff, unless
commissioners; or it may accept the report in part and         an appeal is taken by the owner of the property and the
reject it in part; and it may make such order or render        judgment is affirmed, in which event the costs of the
such judgment as shall secure to the plaintiff the             appeal shall be paid by the owner. (12a)
property essential to the exercise of his right of
expropriation, and to the defendant just compensation          Sec. 13. Recording judgment, and its effect. The
for the property so taken. (8a)                                judgment entered in expropriation proceedings shall
                                                               state definitely, by an adequate description, the
Sec. 9. Uncertain ownership; conflicting claims. If the        particular property or interest therein expropriated, and
ownership of the property taken is uncertain, or there         the nature of the public use or purpose for which it is
are conflicting claims to any part thereof, the court may      expropriated. When real estate is expropriated, a
order any sum or sums awarded as compensation for the          certified copy of such judgment shall be recorded in the
property to be paid to the court for the benefit of the        registry of deeds of the place in which the property is
person adjudged in the same proceeding to be entitled          situated, and its effect shall be to vest in the plaintiff the
thereto. But the judgment shall require the payment of         title to the real estate so described for such public use or
the sum or sums awarded to either the defendant or the         purpose. (13a)
court before the plaintiff can enter upon the property, or
retain it for the public use or purpose if entry has already   Sec. 14. Power of guardian in such proceedings. The
been made. (9a)                                                guardian or guardian ad litem of a minor or of a person
                                                               judicially declared to be incompetent may, with the
Sec. 10. Rights of plaintiff after judgment and payment.       approval of the court first had, do and perform on behalf
Upon payment by the plaintiff to the defendant of the          of his ward any act, matter, or thing respecting the
compensation fixed by the judgment, with legal interest        expropriation for public use or purpose of property
thereon from the taking of the possession of the               belonging to such minor or person judicially declared to
property, or after tender to him of the amount so fixed        be incompetent, which such minor or person judicially
and payment of the costs, the plaintiff shall have the         declared to be incompetent could do in such proceedings
right to enter upon the property expropriated and to           if he were of age or competent. (14a)

D2010 68
                                                                                                   UP College of Law

Sec 19, LGC                                                   Thus, the Sangguniang Panlalawigan was without the
                                                              authority to disapprove Municipal Resolution for the
Sec. 19. Eminent Domain. A local government unit may,         Municipality of Bunawan clearly has the power to
through its chief executive and acting pursuant to an         exercise the right of eminent domain and its
ordinance, exercise the power of eminent domain for           Sangguniang Bayan the capacity to promulgate said
public use, or purpose, or welfare for the benefits of the    resolution. The resolution is, therefore, valid and binding
poor and the landless, upon payment of just                   and could be used as lawful authority to petition for the
compensation, pursuant to the provisions of the               condemnation of petitioners' property.
Constitution and pertinent laws: Provided, however, That
the power of eminent domain may not be exercised              Province of Camarines Sur v. CA
unless a valid and definite offer has been previously
made to the owner, and such offer was not accepted:           The Province of Camarines Sur authorized its governor by
Provided, further, That the local government unit may         resolution to expropriate a piece of land contiguous to
immediately take possession of the property upon the          the provincial capitol site in order to establish a pilot
filing of the expropriation proceedings and upon making       farm for non-food and non-traditional agricultural crops
a deposit with the proper court of at least fifteen percent   and a housing project for provincial government
(15%) of the fair market value of the property based on       employees.
the current tax declaration of the property to be
expropriated: Provided, finally, That, the amount to be       The governor filed expropriation cases in the RTC and
paid for the expropriated property shall be determined        then filed motions for the issuance of writs of
by the proper court, based on the fair market value at        possessions.
the time of the taking of the property.
                                                              The owners, San Joaquins, moved to dismiss the
                                                              complaints for inadequacy of the price offered for the
Moday v. CA
The Sangguniang Bayan of the Municipality of Bunawan          The RTC granted the writs of possession. The San
passed a resolution authorizing its municpal mayor to         Joaquins appealed to the CA which set aside the order
initiate expropriation proceedings against he property of     allowing CamSur to take possession. It ordered the RTC
Percival Moday for a farmers center and government            to suspend further proceedings until after CamSur shall
sports facilities. The resolution was approved by the         have obtained the requisite approval of the Dept. of
mayor and transmitted to the Sangguniang Panlalawigan         Agrarian Reform to convert the classification of the land
for approval. The latter disapproved it and returned it       from agricultural to non-agricultural.
with comment to the Municipality stating that
expropriation was unnecessary because there are still         WON a local government unit needs the approval of the
available lots in Bunawan for the purpose.                    DAR to reclassify land before it can expropriate it

The municipality filed a motion to take possession of the     Held: No.
land and this was granted by the RTC.                         A reading of previous jurisprudence shows that the
                                                              power of eminent domain is superior to the power to
The petitioner attacks the validity of the resolution         distribute lands under the land reform program.
because it was not approved by the province.
                                                              The local government units power of expropriation is a
WON a municipality’s resolution authorizing its mayor to      delegated power. In delegating the power, the legislature
expropriate was rendered invalid by its disapproval by        may retain certain control or impose certain restraints on
the province                                                  the exercise thereof by the local governments. While
                                                              such delegated power may be a limited authority, it is
Held: No.
                                                              complete within its limits. Moreover, the limitations on
The law, as expressed in Section 153 of B.P. Blg. 337,
                                                              the exercise of the delegated power must be clearly
grants the Sangguniang Panlalawigan the power to
                                                              expressed, either in the law conferring the power or in
declare a municipal resolution invalid on the sole ground
                                                              other legislations.
that it is beyond the power of the Sangguniang Bayan or
the Mayor to issue.                                           The Local Government Code does not intimate in the
                                                              least that local government units must first secure the

                                                                                                              69 D2010
Local Government

approval of the Department of Land Reform for the              real property and the value of said property is
conversion of lands from agricultural to non-agricultural      determinative of jurisdiction. And the property involved
use, before they can institute the necessary                   in this case is P1,740 or less than P20,000. Therefore, it
expropriation proceedings. Likewise, there is no               ruled, jurisdiction is with the MTC.
provision in the Comprehensive Agrarian Reform Law
which expressly subjects the expropriation of agricultural     Which court has jurisdiction over actions for eminent
lands by local government units to the control of the          domain?
Department of Agrarian Reform.
                                                               Held: RTC.
Statutes conferring the power of eminent domain to             Actions for eminent domain are incapable of pecuniary
political subdivisions cannot be broadened or constricted      estimation and thus jurisdiction properly lies with the
by implication.                                                RTC.

To sustain the Court of Appeals would mean that the            In determining whether an action is one the subject
local government units can no longer expropriate               matter of which is not capable of pecuniary estimation,
agricultural lands needed for the construction of roads,       the criterion is of first ascertaining the nature of the
bridges, schools, hospitals, etc, without first applying for   principal action or remedy sought. If it is primarily for the
conversion of the use of the lands with the Department         recovery of a sum of money, the claim is considered
of Agrarian Reform, because all of these projects would        capable of pecuniary estimation.
naturally involve a change in the land use. In effect, it
would then be the Department of Agrarian Reform to             However, where the basic issue is something other than
scrutinize whether the expropriation is for a public           the right to recover a sum of money, or where the
purpose or public use.                                         money claim is purely incidental to, or a consequence of,
                                                               the principal relief sought, such actions are cases where
Ordinarily, it is the legislative branch of the local          the subject of the litigation may not be estimated in
government unit that shall determine whether the use of        terms of money, and are cognizable exclusively by RTC.
the property sought to be expropriated shall be public,
the same being an expression of legislative policy.            The rationale of the rule is plainly that the second class
                                                               of cases, besides the determination of damages,
There is also an ancient rule that restrictive statutes, no    demands an inquiry into other factors which the law has
matter how broad their terms are, do not embrace the           deemed to be more within the competence of RTC.
sovereign unless the sovereign is specially mentioned as
subject thereto.                                               Actions for eminent domain involve two phases.

The orders of the CA nullifying the trial court's order        The first is concerned with the determination of
allowing the Province of Camarines Sur to take
                                                                       the authority of the plaintiff to exercise the
possession of private respondents' property and
                                                                        power of eminent domain
requiring the Province of Camarines Sur to obtain the
                                                                       and the propriety of its exercise in the context
approval of the Department of Agrarian Reform to
                                                                        of the facts involved in the suit.
convert or reclassify private respondents' property from
agricultural to non-agricultural use are set aside.            It ends with an order, if not of dismissal of the action, ‘of
                                                               condemnation declaring that the plaintiff has a lawful
Barangay San Roque v. Heirs of Pastor
                                                               right to take the property sought to be condemned, for
                                                               the public use or purpose described in the complaint,
Barangay San Roque filed an expropriation suit with the
                                                               upon the payment of just compensation to be
Municipal Trial Court against the properties of the
                                                               determined as of the date of the filing of the complaint.’
respondents. It was dismissed by the MTC for lack of
jurisdiction. The lower court reasoned that an action for      The second phase of the eminent domain action is
eminent domain is incapable of pecuniary estimation and        concerned with the determination by the court of ‘the
jurisdiction should, therefore, lie with the RTC.              just compensation for the property sought to be taken.’
The case was then filed with the RTC but it was again          This is done by the Court with the assistance of not more
dismissed for lack of jurisdiction. The RTC was of the         than three (3) commissioners. The order fixing the just
view that an action for eminent domain involved title to       compensation on the basis of the evidence before, and

D2010 70
                                                                                                      UP College of Law

findings of, the commissioners would be final, too. It         Thus, the following essential requisites must concur
would finally dispose of the second stage of the suit, and     before an LGU can exercise the power of eminent
leave nothing more to be done by the Court regarding           domain:
the issue.
                                                                             1.   An ordinance is enacted by the local
It should be stressed that the primary consideration in an                        legislative council authorizing the local
expropriation suit is whether the government or any of                            chief executive, in behalf of the LGU, to
its instrumentalities has complied with the requisites for                        exercise the power of eminent domain
the taking of private property. Hence, the courts                                 or pursue expropriation proceedings
determine:                                                                        over a particular private property.
                                                                             2.    The power of eminent domain is
        the authority of the government entity,                                  exercised for public use, purpose or
         the necessity of the expropriation,                                     welfare, or for the benefit of the poor
        and the observance of due process.                                       and the landless.
                                                                             3.   There is payment of just compensation,
In the main, the subject of an expropriation suit is the                          as required under Section 9, Article III
government’s exercise of eminent domain, a matter that                            of the Constitution, and other
is incapable of pecuniary estimation.                                             pertinent laws.
                                                                             4.   A valid and definite offer has been
True, the value of the property to be expropriated is
                                                                                  previously made to the owner of the
estimated in monetary terms, for the court is duty-bound
                                                                                  property sought to be expropriated,
to determine the just compensation for it. This, however,
                                                                                  but said offer was not accepted.
is merely incidental to the expropriation suit. Indeed,
that amount is determined only after the court is              The terms "resolution" and "ordinance" are not
satisfied with the propriety of the expropriation.             synonymous. A municipal ordinance is different from a
                                                               resolution. An ordinance is a law, but a resolution is
Municipality of Paranaque v. VM Realty                         merely a declaration of the sentiment or opinion of a
Corp                                                           lawmaking body on a specific matter. An ordinance
                                                               possesses a general and permanent character, but a
The Municipality of Paranaque filed a complaint for            resolution is temporary in nature. Additionally, the two
expropriation against V.M. Realty Corporation over two         are enacted differently. A third reading is necessary for
parcels of land for the purpose of providing socialized        an ordinance, but not for a resolution, unless decided
housing. It authorized its mayor to file the complaint by a    otherwise by a majority of all the Sanggunian members.
                                                               WON res judicata may apply
Later, the Municipality passed an Ordinance for the same
purpose. It is claimed that by res judicata, the               HELD: All the requisites for the application of res judicata
municipality is barred from filing another expropriation       are present in this case. Be that as it may, the principle of
proceeding.                                                    res judicata, which finds application in generally all cases
                                                               and proceedings, cannot bar the right of the State or its
WON authorization by a resolution is sufficient for            agent to expropriate private property. The very nature of
compliance with the requisites under the LGC                   eminent domain, as an inherent power of the State,
                                                               dictates that the right to exercise the power be absolute
Held: No.                                                      and unfettered even by a prior judgment or res judicata.
The power of eminent domain is lodged in the legislative       The scope of eminent domain is plenary and, like police
branch of government, which may delegate the exercise          power, can "reach every form of property which the
thereof to LGUs, other public entities and public utilities.   State might need for public use." "All separate interests
An LGU may therefore exercise the power to expropriate         of individuals in property are held of the government
private property only when authorized by Congress and          under this tacit agreement or implied reservation.
subject to the latter's control and restraints, imposed        Notwithstanding the grant to individuals, the eminent
"through the law conferring the power or in other              domain, the highest and most exact idea of property,
legislations." And Section 19 of the LGC requires              remains in the government, or in the aggregate body of
authorization by ordinance.                                    the people in their sovereign capacity; and they have the

                                                                                                                 71 D2010
Local Government

right to resume the possession of the property whenever                     to this rule. This case should similarly be
the public interest requires it." 47 Thus, the State or its                 treated with liberality. Here an
authorized agent cannot be forever barred from                              examination of the City’s “Comment and
exercising said right by reason alone of previous non-                      Opposition” to the Motion to Dismiss leave
compliance with any legal requirement.                                      no room for doubt that petitioner had
                                                                            indeed made a “valid and definite offer.
Our ruling that petitioner cannot exercise its delegated             3.      Also, attached to the complaint and made
power of eminent domain through a mere resolution will                      an integral part of it is the Ordinance
not bar it from reinstituting similar proceedings, once the                 authorizing the Mayor to expropriate the
said legal requirement and, for that matter, all others are                 property. The rule is that a motion to
properly complied with.                                                     dismiss hypothetically admits the truth of
                                                                            the facts alleged in the complaint. And the
However, while the principle of res judicata does not                       Ordinance staes that the city government
denigrate the right of the State to exercise eminent                        has made valid and definite offer.
domain, it does apply to specific issues decided in a
previous case.                                                (The court did not decide whether or not “negotiations”
                                                              is compliance with the requirement.)
City of Cebu v. CA
                                                              Francia v. Municipality of Meycauyan
The City of Cebu authorized its mayor by both resolution
and city ordinance to expropriate the property of Merlita     The Municipality of Meycauayan filed a complaint for
Cardeno. Cardeno filed a motion to dismiss asseverating       expropriation against the petitioners to obtain property
that the allegations in the City’s complaint do no show       located at a highway junction to be used as a public
compliance with the condition precedent of a valid and        terminal. The Municipality deposited the fifteen percent
definite offer. The allegation states, “that repeated         of the fair market value of the property based on the
negotiations had been made with the defendant to have         current tax declaration and the RTC granted it the writ of
the aforementioned property purchased by the plaintiff        possession.
through negotiated sale without resorting to
expropriation, but said negotiations failed.”                 The petitioner claims that the RTC committed grave
                                                              abuse of discretion in issuing the writ without first
She argues that, “by definition, negotiations run the         conducting a hearing to determine the existence of a
whole range of acts preparatory to concluding an              public purpose.
agreement, from the preliminary correspondence; the
fixing of the terms of the agreement; the price; the mode     WON determination of public purpose is a prerequisite
of payment; obligations of the parties may conceive as        to the issuance of a writ of possession
necessary to their agreement." Thus, "negotiations" by
itself may pertain to any of the foregoing and does not       Held: No.
automatically mean the making of "a valid and definite        The Local Government Code states that “local
offer."                                                       government unit may immediately take possession of the
                                                              property upon the filing of the expropriation proceedings
WON the City has complied with the condition precedent        and upon making a deposit with the proper court of at
of a valid and definite offer                                 least fifteen percent (15%) of the fair market value of the
                                                              property based on the current tax declaration of the
Held: Yes.                                                    property to be expropriated”.
       1.     The ambiguity in the complaint is not a         The requisites before a local government unit may enter
              ground for a motion to dismiss but rather a     into the possession of the property are only that (1) a
              bill of particulars.                            complaint for expropriation must have been filed
       2.     The RTC and CA should not have strictly         sufficient in form and substance in the proper court and
              applied the rule that in a motion to            (2) a deposit of 15% of the property’s fair market value
              dismiss, no evidence may be allowed and         based on its current tax declaration must have been
              the issue should only be determined in the      made.
              light of allegations of the complaint.
              Jurisprudence has established exceptions

D2010 72
                                                                                                  UP College of Law

The law does not make the determination of a public         Filstream is the property owner of parcels of lands
purpose a condition precedent to the issuance of a writ     located in Antonio Rivera St., Tondo II Manila. It filed an
of possession.                                              ejectment suit against the occupants (private
                                                            respondents) on the grounds of termination of lease and
Heirs of Ardona v. Reyes                                    non-payment of rentals. The ejectment suit became final
                                                            and executory after the CA affirmed the decision of the
The Philippine Tourism Authority filed 4 complaints with    RTC.
the CFI Cebu City for the expropriation of some 282
hectares of rolling land situated in barangays Malubog      During the pendency of the ejectment proceedings
and Babag, Cebu City for the development into               private respondents filed a complaint for Annulment of
integrated sport complexes of selected and well-defined     Deed of Exchange against Filstream. The City of Manila
geographic areas with potential tourism value. The          came into the picture when it approved Ordinance No.
defendants (now petitioners) have the common                7813 authorizing Mayor Alfredo Lim to initiate
allegation that the taking is not impressed with public     acquisition through legal means of certain parcels of
use under the Constitution, that there is no specific       land. Subsequently, the City of Manila approved
provision authorizing the taking for tourism purposes.      Ordinance No. 7855 declaring the expropriation of
Also, they are claiming that the lands are under the land   certain parcels of land situated along Antonio River
reform program thus it is the Court of Agrarian Relations   which formed part of the properties of Filstream. The
and not the CFI that has jurisdiction. The Court issued     said properties were sold and distributed to qualified
writs of possession authorizing the PTA to take             tenants pursuant to the Land Use Development Program
immediate possession upon deposit with the Philippine       of the City of Manila. The City of Manila then filed a
National Bank an amount equivalent to 10% of the value      complaint for eminent domain seeking to expropriate
of the properties.                                          lands in Antonio Rivera St. the Court issued a Writ of
                                                            Possession. Filstream is claiming that Ordinance No. 7813
HELD: Expropriation is valid.                               is a void enactment for it was approved without a public
The State’s power of eminent domain extends to the          hearing and violative of the constitutional guarantee
expropriation of land for tourism purposes although this    against impairment of obligations and contracts, the
specific objective is not expressed in the Constitution.    price was too low.
The policy objectives of the framers can be expressed
only in general terms. The programs to achieve these        HELD: Expropriation is not valid.
objectives vary from time to time and according to place.   The City of Manila did not comply with RA 7279, Secs. 9
The concept of public use is not limited to traditional     and 10. The City of Manila has the power to expropriate
purposes; it does not strictly mean use by the public.      private property in the pursuit of its urban land reform
Expropriation of several barangays for provocation of       and housing program which must be done pursuant to
tourism and construction of sports and hotel complex        the provisions of the Constitution and pertinent laws.
constitutes expropriation for public use. Also, the         There are limitations with respect to the order of priority
government is authorized to take immediate possession,      in acquiring private lands and in resorting to
control and disposition of the property notwithstanding     expropriation proceedings as a means to acquire the
the issues pending in court upon deposit with the PNB of    same. Private lands rank last in the order of priority for
an amount equivalent to 10% of the value of the             purposes of socialized housing. In the same vein,
property.                                                   expropriation proceedings are to be resorted to only
                                                            when the other modes of acquisition have been
Defendants (now petitioners) failed to show that area       exhausted.
being expropriated is land reform area. In fact, only
8,970 square meters (less than 1hec.-just 2 property        Also, Petitioner takes exception to the resolutions of
owners) of 283 hectares is part of the Operation Land       respondent CA which ordered the dismissal of its Petition
Transfer. This 8,970 sq. m. is not even within the sports   for Certiorari for non-compliance with Sec 2(a) of Rule 6
complex proper but forms part of the 32 hectares            of the Revised Internal Rules of the CA by failing to
resettlement area where the petitioners would be            attach to its petition other pertinent documents and
provided with proper housing, schools, etc.                 papers and for attaching copies of pleadings which are
                                                            blurred and unreadable. Petitioner argues that the
Filstream International Inc. v. CA                          respondent court erred in giving more premium to form
                                                            rather than substance. A strict adherence to the

                                                                                                            73 D2010
Local Government

technical and procedural rules in this case would defeat        appealed Resolution certified by the Dept. of Justice but
rather than meet the ends of justice as it would result in      failed to do so on account of typhoon Loleng.
the violation of the substantial rights of the petitioner. At   Nonetheless, the Court held that the petition should be
stake in the appeal is the exercise of their properties         dismissed as the appeal of the petitioner with the Sec. of
rights over the disputed premises which have been               Justice was already time-barred. Sec. 187 of the 1991
expropriated and have in fact been ordered condemned            LGC states that an appeal of a tax ordinance or revenue
in favor of the City of Manila. In effect, the dismissal of     measure should be made to the Sec. of Justice within 30
their appeal in the expropriation proceedings based on          days from the effectivity of the assailed ordinance shall
those grounds is tantamount to a deprivation of property        not be suspended. In the case at bar, Mun. Ord, No. 28
without due process of law as it would automatically            took effect in Oct. 1996. Petitioner filed its appeal only in
validate the expropriation proceedings                          Dec. 1997. The periods stated in Sec. 187 LGC are
                                                                mandatory. Being a revenue measure, the collection of
Hagonoy Market Vendors Association v.                           which is of paramount importance thus it is essential that
Mun of Hagonoy Bulacan                                          the validity of revenue measures is not left uncertain for
                                                                a considerable length of time.
On Oct. 1, 1996, the Sanguniang Bayan of Hagonoy,
Bulacan enacted an ordinance, Kautusan Blg. 28 which            Petitioners cannot gripe that there was practically no
increased the stall rentals of market vendors in Hagonoy.       public hearing conducted as its objections to the
Art.3 provided that it shall take effect upon approval. The     proposed measure were not considered by the
subject ordinance was posted from Nov. 4-25, 1996. In           Sanguniang Bayan. Public hearings are conducted by
the last week of Nov. 1997, the petitioner’s members            legislative bodies to allow interested parties to ventilate
were personally given copies of the approved Ordinance          their views on a proposed law or ordinance. However,
and were informed that it shall be enforced in Jan. 1998.       the views are not binding on the legislative body and it is
On Dec. 8, 1997, the petitioner’s President filed an            not compelled by law to adopt the same.
appeal with the Secretary of Justice assailing the
                                                                Also, even on the substantive points raised, the petition
constitutionality of the tax ordinance.
                                                                must fail. Sec. 6c.04 of the 1993 Mun. Rev. Code & Sec
Petitioner claimed it was unaware of the posting of the         191 of the LGC limiting the percentage of increase that
ordinance. Respondent opposed the appeal. It                    can be imposed apply to tax rates, not rentals. Neither
contended that the ordinance took effect on October 6,          can it be said that the rates were not uniformly imposed.
1996 and that the ordinance, as approved, was posted as         The ordinance covered 3 public markets. However, it
required by law. Hence, it was pointed out that                 excluded Bagong Munisipyo from the increase since it is
petitioner’s appeal, made over a year later, was already        only a makeshift, dilapidated place intended for transient
time-barred.                                                    peddlers.

The Secretary of Justice dismissed the appeal on the            RP v. CA
ground that it was filed out of time – beyond the 30 days
from the effectivity of the Ordinance on Oct. 1, 1996 as        Notes:
prescribed under Sec.187 of the 1991 LGC. After its
motion for reconsideration was denied, petitioner               Lot to be expropriated for the broadcast operation and
appealed to the CA, claiming the Sec. erred and should          use of VP. Deposited amount provisionally fixed. 9 years
have overlooked the technicality and ruled on its petition      after Court ordered condemnation and payment of just
on the merits. CA dismissed its petition for being formally     compensation.
deficient as it was not accompanied by certified true
                                                                NG failed to pay.
copies of the assailed Resolutions of the Sec. of Justice.
                                                                Santos  (1) pay current zonal value or (2) return
HELD: Ordinance is valid & petition should be dismissed
                                                                expropriated property
for being time-barred.
The petitioner insists that it had good reasons for its         HELD: no right to recover
failure to comply with the rule and the CA erred in
refusing to accept its explanation. This Court agrees with      On Sept. 19, 1969, petitioner instituted expropriation
the petitioner. It is clear from the records that the           proceedings before RTC Bulacan covering a total of
petitioner exerted due diligence to get the copies of its       554,980 sq.m. of contiguous land situated along

D2010 74
                                                                                                     UP College of Law

MacArthur Highway to be utilized for the continued             In determining the public use, 2 approaches are used –
broadcast operation and use of radio trasnsmitter              actual use by the public and public benefit/ advantage.
facilities for the Voice of the Philippines project.           Respondents question the public nature of the utilization
Petitioner made a deposit of P517,558.80, the sum              since its present use differs from the original use
provisionally fixed as being the reasonable value of the       contemplated in the 1979 decision. This is of no moment,
property. On Feb. 26, 1979 or nine years after the             the property has assumed a public character upon its
institution of the expropriation proceedings, the trial        expropriation. Petitioner is well within its rights to alter
courts issued an order condemning the properties of the        and decide the use of that property.
defendants and ordering the plaintiff to pay the
defendants just compensation. It would appear that the         The constitutional limitation of the just compensation is
National Government failed to pay the respondents the          considered to be the sum equivalent to the market value
just compensation pursuant to the foregoing decision.          of the property fixed at the time of the actual taking by
The respondents then filed a manifestation with a              the government. However, between the actual taking of
motion seeking payment for the expropriated property.          the property and the actual payment, legal interests may
In response, the court issued a writ of execution for the      accrue in order to place the owner in a position as good
implementation thereof. Meanwhile, Pres. Estrada               as but not better than the position he was in before the
issued Proc. No. 22 transferring 20 hec. of the                taking occurred.
expropriated land to the Bulacan State University.
Despite the court’s order, the Santos heirs remained               E.   Reclassification of Lands
unpaid and no action was on their case until petitioner
                                                               CARP Act
filed its manifestation and motion to permit the deposit
in court of the amount P4,664,000 by way of just
compensation. The Santos heirs submitted a counter-            See attachments
motion to adjust the compensation from P6/sq.m. as
                                                               Sec 9 and 11, RA 8435
previously fixed to its current zonal value of
P5,000/sq.m. or to cause the return of the expropriated
                                                               SECTION 9. Delineation of Strategic Agriculture and
property. The RTC Bulacan ruled in favor of the Santos
                                                               Fisheries Development Zones. - The Department, in
heirs declaring its previous decision to be unenforceable
                                                               consultation with the Department of Agrarian Reform,
on the ground of prescription in accordance with Sec. 6,
                                                               the Department of Trade and Industry, the Department
Rule 39 of the 1964/1997 ROC which states that a final
                                                               of Environment and Natural Resources, Department of
and executory judgment or order may be executed on
                                                               Science and Technology, the concerned LGUs, the
motion within 5 years from the date of its entry.
                                                               organized farmers and fisherfolk groups, the private
HELD: Expropriation is valid; private respondents have no      sector and communities shall, without prejudice to the
right to recover the property. The right of eminent            development of identified economic zones and free
domain is the ultimate right of the sovereign power to         ports, establish and delineate, based on sound resource
appropriate any property within its territorial sovereignty    accounting, the SAFDZ within one (1) year from the
for a public purpose. Expropriation proceedings are not        effectivity of this Act.
adversarial for the condemning authority is not required
                                                               All irrigated lands, irrigable lands already covered by
to assert any conflicting interest in the property. Thus, by
                                                               irrigation projects with firm funding commitments, and
filing the action, the condemnor in effect merely serves
                                                               lands with existing or having the potential for growing
notice that it is taking title and possession of the
                                                               high-value crops so delineated and included within the
property and the defendant asserts title/ interest in the
                                                               SAFDZ shall not be converted for a period of five (5)
property not to prove a right of possession but to prove a
                                                               years from the effectivity of this Act: Provided, however,
right to compensation for the taking. Petitioner has
                                                               That not more than five percent (5%) of the said lands
occupied and has exercised dominion over the property
                                                               located within the SAFDZ may be converted upon
pursuant to the judgment. The exercise of such rights
                                                               compliance with existing laws, rules, regulations,
vested to it as the condemnee has amounted to atleast a
                                                               executive orders and issuances, and administrative
partial compliance of the 1979 decision thereby
                                                               orders relating to land use conversion: Provided, further,
preempting any claim of bar by prescription on grounds
                                                               That thereafter: 1) a review of the SAFDZ, specifically on
of non-execution.
                                                               the productivity of the areas, improvement of the quality
                                                               of life of farmers and fisherfolk, and efficiency and

                                                                                                                75 D2010
Local Government

effectiveness of the support services shall be conducted      In addition, the DAR may impose the following penalties,
by the Department and the Department of Agrarian              after determining, in an administrative proceedings, that
Reform, in coordination with the Congressional Oversight      violation of this law has been committed:
Committee on Agricultural and Fisheries Modernization;
2) conversion may be allowed; if at all, on a case-to-case    a) Cancellation or withdrawal of the authorization for
basis subject to existing laws, rules, regulations,           land use conversion; and
executive orders and issuances, and administrative
orders governing land use conversion; and, 3) in case of      b) Blacklisting, or automatic disapproval of pending and
conversion, the land owner will pay the Department the        subsequent conversion applications that they may file
amount equivalent to the government's investment cost         with the DAR.
including inflation.
                                                              Fortich v. Corono
SECTION 10. Preparation of Land Use and Zoning
Ordinance. - Within one (1) year from the finalization of     This concerns the motion for reconsideration of the
the SAFDZ, in every city and municipality, all cities and     court’s resolution dated Nov. 17, 1998 and motion to
municipalities shall have prepared their respective land      refer the case to the Court en banc. In the previous case,
use and zoning ordinance incorporating the SAFDZ,             the Court voted 2-2 on the separate MRs, as a result of
where applicable. Thereafter, all land use plans and          which the decision was affirmed. The Court noted in a
zoning ordinances shall be updated every four (4) years       resolution dated Jan. 27, 1999 that the movants have no
or as often as may be deemed necessary upon the               legal personality to seek redress before the Court as their
recommendation of the Housing and Land Use                    motion to intervene was already denied and that the
Regulatory Board and must be completed within the first       motion to refer the case to the Court en banc is akin to a
year of the term of the mayor. If the cities/municipalities   second MR which is prohibited. In this motion, both
fail to comply with the preparation of zoning and land        respondents and intervenors prayed the case be referred
use plans, the DILG shall impose the penalty as provided      to the court en banc inasmuch as their earlier MR was
for under Republic Act No. 7160.                              resolved by a vote of 2-2, the required number to carry a
                                                              decision under the Constitution, 3votes, was not met.
SECTION 11. Penalty for Agricultural Inactivity and
Premature Conversion. - Any person or juridical entity        HELD: The issues presented before the Court by the
who knowingly or deliberately causes any irrigated            movants are matters of no extraordinary import to merit
agricultural lands seven (7) hectares or larger, whether      the attention of the Court en banc. Specifically the issue
contiguous or not, within the protected areas for             of whether or not the power of the local government
agricultural development, as specified under Section 6 in     units to reclassify lands is subject to the approval of DAR
relation to Section 9 of this Act, to lie idle and            is no longer novel, this having been decided in Province
unproductive for a period exceeding one (1) year, unless      of Camarines Sur v. CA wherein the Court held that local
due to force majeure, shall be subject to an idle land tax    government units need not obtain approval of the DAR
of Three Thousand Pesos (P3,000.00) per hectare per           to convert lands from agricultural to non-agricultural use.
year. In addition, the violator shall be required to put
                                                              Intervenors insist that they are the real parties in interest
back such lands to productive agricultural use. Should
                                                              inasmuch as they have already been issued certificates of
the continued agricultural inactivity, unless due to force
                                                              land ownership award and that while they are seasonal
majeure, exceed a period of two (2) years, the land shall
                                                              farmers, they have been identified by DAR as qualified
be subject to escheat proceedings.
                                                              beneficiaries of property. The issuance of CLOA to them
Any person found guilty of premature or illegal               does not grant them the requisite standing in view of the
conversion shall be penalized with imprisonment of two        nullity of the Win-Win Resolution. No legal rights can
(2) to six (6) years, or a fine equivalent to one hundred     emanate from a resolution that is null and void. The
percent (100%) of the government's investment cost, or        same is void and has no legal effect considering that the
both, at the discretion of the court, and an accessory        March 29, 1996 decision of the Office of the President
penalty of forfeiture of the land and any improvement         had already become final and executory even prior to the
thereon.                                                      filing of the MR which became the basis of the said Win-
                                                              Win Resolution.

                                                              Roxas and Co v. IAC

D2010 76
                                                                                                     UP College of Law

Pres. Cory promulgated Proc. No. 131 instituting CARP        Upon the receipt of Notice of Acquisition, petitioner
and EO No. 229 providing for mechanisms necessary to         corporation had no idea which portions of its estate were
implement CARP. Later when Congress formally                 subject to compulsory acquisition.
convened, it passed RA 6657 or the Comprehensive
Agrarian Reform Law. Petitioner Roxas is the property        Court has no jurisdiction to rule on the reclassification of
owner of Haciendas Palico, Banilad and Caylaway. Before      land from agricultural to non-agricultural. DAR’s failure
CARL took effect, petitioner voluntarily offered to sell     to observe due process does not ipso facto give the
Hacienda Caylaway pursuant to EO 229. The other two          Court the power to adjudicate over petitioner’s
were placed under compulsory acquisition by                  application for conversion of its haciendas from
respondent DAR in accordance with CARL.                      agricultural to non. The agency charged with the
                                                             mandate of approving applications for conversion is DAR.
Petitioner instituted a case with DAR Adjudication Bd. To
cancel the CLOAs issued alleging that the place where            F.   Closure and Opening of Roads
the haciendas are located was declared a tourist zone
and that the land is not suitable for agricultural           Sec 21, LGC
production. DARAB held that the case involved the
prejudicial question of whether the property was subject     Sec. 21. Closure and Opening of Roads. (a) A local
to agrarian reform and should be submitted to the Office     government unit may, pursuant to an ordinance,
of the Sec. of Agrarian Reform. Petitioner then filed a      permanently or temporarily close or open any local road,
case with the CA questioning the expropriation of the        alley, park, or square falling within its jurisdiction:
properties under CARL and the denial of due process in       Provided, however, That in case of permanent closure,
the acquisition of the land. CA dismissed the petition on    such ordinance must be approved by at least two-thirds
the ground of failure to exhaust administrative remedies.    (2/3) of all the members of the sanggunian, and when
                                                             necessary, an adequate substitute for the public facility
HELD: This Court can take cognizance of petitioner’s         that is subject to closure is provided.
petition despite his failure to exhaust administrative
remedies since his action falls under the exception to the   (b) No such way or place or any part thereof shall be
doctrine of exhaustion of remedies since there is no         permanently closed without making provisions for the
other plain, speedy and adequate remedy. The CLOAs to        maintenance of public safety therein. A property thus
the farmers were issued without just compensation to         permanently withdrawn from public use may be used or
the petitioner. The transfer of possession/ ownership to     conveyed for any purpose for which other real property
the government is conditioned upon the receipt of the        belonging to the local government unit concerned may
landowner of the corresponding payment/ deposit by           be lawfully used or conveyed: Provided, however, That
the DAR. Until then, the title should remain with the        no freedom park shall be closed permanently without
landowner. The law provides that the deposit must be         provision for its transfer or relocation to a new site.
made only in cash or LBP bonds. Resp. DAR’s opening of
                                                             (c) Any national or local road, alley, park, or square may
a trust account deposit in petitioner’s name with the
                                                             be temporarily closed during an actual emergency, or
Land Bank of the Phil. does not constitute payment
                                                             fiesta celebrations, public rallies, agricultural or industrial
under the law.
                                                             fairs, or an undertaking of public works and highways,
The acquisition proceedings over the 3 haciendas are         telecommunications, and waterworks projects, the
invalid. (1) There was improper service of Notice of         duration of which shall be specified by the local chief
Acquisition – Sec. 16 of CARL requires that the said         executive concerned in a written order: Provided,
notice be sent to the landowner by personal delivery or      however, That no national or local road, alley, park, or
registered mail. The Revised Rules of Proc. of DARAB         square shall be temporarily closed for athletic, cultural,
states that notices and pleadings are served on private      or civic activities not officially sponsored, recognized, or
corporations through its president, manager, secretary,      approved by the local government unit concerned.
cashier, agent or any of its directors or partners. Jaime
                                                             (d) Any city, municipality, or barangay may, by a duly
Pimentel to whom the Notice was served was neither of
                                                             enacted ordinance, temporarily close and regulate the
those. (2) Parcels of land were not properly identified
                                                             use of any local street, road, thoroughfare, or any other
before they were taken by DAR – under the law, a
                                                             public place where shopping malls, Sunday, flea or night
landowner may retain not more than 5 hec. the right to
                                                             markets, or shopping areas may be established and
choose the retained land pertains to the landowner.
                                                             where goods, merchandise, foodstuffs, commodities, or

                                                                                                                77 D2010
Local Government

articles of commerce may be sold and dispensed to the         the greater convenience the new road has been giving
general public.                                               the public.

Cabrera v. CA                                                 MMDA v. Bel Air Village Association Inc.

The Provincial Board of Catanduanes adopted Resolution        MMDA is a government agency tasked with the delivery
No. 158 which provided for the closure of an old road         of basic services in Metro Manila, while BAVA is a non-
leading to the new Capitol Bldng. and giving the owners       stock non-profit corporation whose members are home
of the properties traversed by the new road equal area        owners in Bel-Air Village, a private subdivision in Makati
from the old road adjacent to the respective remaining        City. BAVA is the registered owner of Neptune Street, a
portion of their property. Pursuant thereto, Deeds of         road inside Bel-Air Village. On 26 Dec 1995 BAVA
Exchange were executed under which the Province of            received from MMDA Chairman Prospero Oreta a notice
Catanduanes conveyed to the private respondents               requesting it to open Neptune Street to public vehicular
portions of the closed road.                                  traffic starting 2 Jan 1996. BAVA was also informed that
                                                              the perimeter wall separating the subdivision from
In 1978, part of the northern end of the old road fronting    adjacent Kalayaan Avenue would be demolished. On 2
the petitioner’s house was planted with vegetables by         Jan 1996, BAVA instituted a petition before the RTC
one of the private respondents. Another private               Makati City Br 136 for the issuance of a TRO and
respondent converted a part of the old road into a            preliminary injunction enjoining the opening of said
piggery farm. Learning about Res. 158, petitioner filed a     street and the demolition of the wall. The TRO was
complaint for Restoration of Public Road and/or               issued the following day. But on 23 Jan 1996, after due
Abatement of Nuisance, Annulment of Resolutions and           hearing, it denied the preliminary injunction. BAVA
Documents for Damages. Petitioner alleges that the land       appealed. CA conducted an ocular inspection of Neptune
fronting his house was a public road owned by the             Street and on 13 Feb 1996 it issued a writ of preliminary
Province of Catanduanes in its governmental function          injunction. It later on granted the petition (making the
and therefore beyond the commerce of man. He                  writ permanent), reasoning that MMDA had no authority
contends that Res. No. 158 and the deeds of exchange          to order the opening of a private subdivision road nor to
were invalid as so too was the closure of the northern        demolish the subdivision’s perimeter wall. MR was
portion of the said road.                                     denied.

HELD: Closure is valid.                                       WON MMDA has the authority to open Neptune Street
The closure of a provincial road is within the powers of      to public traffic without an ordinance enacted by Makati
the Provincial Bd. It is the authority competent to           City
determine whether or not a certain property is still
necessary to public use. Such power to vacate a street is     HELD: No
discretionary and such will not ordinarily be controlled or   MMDA is not a local government which is a political
interfered with by the courts absent a plain case of abuse    subdivision of a nation or state which is constituted by
or fraud. The Board has the duty of maintaining such          law and has substantial control of local affairs. MMDA’s
roads for the comfort and convenience of the inhabitants      charter RA 7924 limited MMDA’s function to the delivery
of the province. This authority is inferable from the grant   of seven basic services, one of which is transport and
by the national legislature of the funds to the Province      traffic management. It is limited to the following acts:
for the construction of roads.                                formulation, coordination, regulation, implementation,
                                                              preparation, management, monitoring, setting of
Petitioner is not entitled to damages. The general rule is    policies, installation of a system and administration.
that one whose property does not abut on the closed           There is no syllable in RA 7924 that grants the MMDA
section of a street has no right of compensation for the      police power, let alone legislative power. All its functions
closing or vacation of the street. To warrant recovery,       are administrative in nature. MMDA is not the same
the property owner must show that the situation is such       entity as its predecessor, the Metro Manila Commission
that he has sustained special damages differing in kind       because the charter of MMC (PD 824) shows that MMC
and not merely in degree from those sustained by the          possessed greater powers which were not bestowed on
public generally. The construction of the new road was        MMDA. Unlike MMC, MMDA has no power to enact
undertaken under the general welfare clause. Whatever         ordinances for the welfare of the community. It is the
inconvenience petitioner suffered pales in significance to    LGUs, acting through their respective legislative councils,

D2010 78
                                                                                                      UP College of Law

that possess legislative and police power. In this case, the   confirmed by the fact that both ordinances as well as the
Sangguniang Panlungsod of Makati City did not pass any         BAVA Articles of Incorporation treat Jupiter Street as the
ordinance or resolution ordering the opening of Neptune        boundary line – making it clear that Jupiter Street was
Street; hence, its proposed opening by MMDA is illegal.        intended for use by both commercial and residential
                                                               blocks from the very beginning.
Sangalang v. IAC
                                                               WON the MMC Ordinance, raised by Ayala Corporation
Buyers of lots in Bel-Air Village, owned and operated by       as an affirmative defense, was a legitimate exercise of
Makati Development Corporation (later on merged with           police power
Ayala Corporation) were required to comply with certain
deed restrictions, one of which is that the lots shall be      HELD: Yes
used only for residential purposes. On 4 Apr 1975 the          The National Government itself, through the MMC, had
municipal council of Makati enacted Ordinance 81               reclassified Jupiter Street into a high density commercial
(zonification of Makati), wherein Bel-Air Village was          zone pursuant to its Ordinance 81-01. Hence, the
classified as a Class A Residential Zone, with its boundary    petitioners have no cause of action on the strength alone
extending to the center line of Jupiter Street. A              of the deed restrictions. This is not to say that restrictive
subsequent Ordinance 81-01 of the Metro Manila                 easements are invalid or ineffective. As far as Bel-Air
Commission however showed that Bel-Air Village was             Village is concerned, they are valid and enforceable. But
simply bound by Jupiter Street, and the area on the other      they are, like all contracts, subject to the overriding
side was classified as a High Intensity Commercial Zone.       demands, needs, and interests of the greater number as
Due to the reclassification, commercial establishments         the State may determine in the legitimate exercise of
appeared along Jupiter Street, in violation of the deed        police power. The sanctity of contract cannot be raised
restrictions. The Office of the Mayor of Makati wrote the      as a deterrent to police power, which is designed
Bel-Air Village Association, Inc. (BAVA), directing that, in   precisely to promote health, safety, peace, and enhance
the interest of public welfare, certain streets should be      the common good, at the expense of contractual rights,
opened to ease traffic congestion. The Makati municipal        whenever necessary. Absent any showing of
officials allegedly opened, destroyed and removed the          capriciousness or arbitrariness on the part of MMC, the
gates forcibly, and opened the entire length of Jupiter        ordinance reclassifying Jupiter Street should be upheld.
Street to public traffic. Ayala Corporation donated the
entire Jupiter Street to BAVA, but even before 1978 the
                                                               Macasiano v. Diokno
Makati Police and the security force of BAVA were
already the ones regulating the traffic along Jupiter          On 13 Jun 1990, the Municipality of Parañaque passed
Street after the gates were opened in 1977. Residents of       Ordinance 86 (Series of 1990) which authorized the
Jupiter Street (the Sangalang spouses, Gaston spouses,         closure of J. Gabriel, G.G. Cruz, Bayanihan, Lt Garcia
and Briones spouses) and the Bel-Air Village Association,      Extension and Opena Streets in Baclaran and the
Inc. (BAVA) filed separate actions against Ayala               establishment of a flea market thereon. This ordinance
Corporation and the lot owners who allowed their lots to       was approved by the municipal council pursuant to the
be used for commercial purposes. Three of the five trial       Metro Manila Commission Ordinance 2 (Series of 1979)
courts in the five petitions ruled in favor of the             authorizing and regulating the use of certain city and/or
petitioners, while two were dismissed on procedural and        municipal streets, roads and open spaces within Metro
substantive grounds. On appeal, the Court of Appeals           Manila as sites for flea market and/or vending areas
dismissed all five petitions, on the ground that the           under certain terms and conditions. The municipal
ordinances, both being valid as a legitimate exercise of       council on 20 Jun 1990 issued a resolution authorizing
police power, allowed the use of Jupiter Street for            Parañaque Mayor Walfrido Ferrer to enter into contract
commercial purposes.                                           with any service cooperative for the establishment,
                                                               operation, maintenance and management of flea
WON there was a violation of the deed restrictions             markets and/or vending areas. On 8 Aug 1990, Palanyag
                                                               Kilusang Bayan for Service (Palanyag), a service
HELD: No                                                       cooperative was made a flea market operator subject to
There was no violation of the deed restrictions as Jupiter     municipality dues for such operation. On 13 Sep 1990,
Street, which was the common boundary for the                  Brig Gen Levy Macasiano (PNP Superintendent of the
commercial and residential zones, was never exclusively        Metropolitan Traffic Command) ordered the destruction
for residential or commercial purposes only. This is           and confiscation of stalls along G.G. Cruz and J Gabriel

                                                                                                                 79 D2010
Local Government

Streets. B/Gen Macasiano on 16 Oct 1990 gave notice to         the streets along Baclaran are congested with people,
Palanyag that it had 10 days to discontinue the flea           houses and traffic brought about by the proliferation of
market; otherwise the market stalls would be                   vendors occupying the streets. Thus, allowing the flea
dismantled. The Municipality and Palanyag filed with RTC       market would be contrary to the local government’s
Makati Br 62 (Judge Roberto Diokno presiding) a petition       sworn obligation to enact measures that will enhance the
for prohibition and mandamus with damages and a                public health and safety of the municipality’s inhabitants.
prayer for preliminary injunction. RTC issued a TRO
against Macasiano pending the hearing, and later on                G. Corporate Powers
upheld the validity of the ordinance.
                                                               Sec. 22. Corporate Powers. (a) Every local government
WON an ordinance or resolution issued by the municipal         unit, as a corporation, shall have the following powers:
council of Parañaque authorizing the lease and use of
public streets or thoroughfares as sites for flea markets is   (1) To have continuous succession in its corporate
valid                                                          name;

HELD: No                                                       (2) To sue and be sued;
Said streets which were closed off are local roads used
                                                               (3) To have and use a corporate seal;
for public service and are therefore considered public
properties of the municipality. Properties of the local        (4) To acquire and convey real or personal property;
government which are devoted to public service are
deemed public and under the absolute control of                (5) To enter into contracts; and
Congress. Local governments have no authority to
control or regulate the use of public properties unless        (6) To exercise such other powers as are granted to
specific authority is vested upon them by Congress. Sec        corporations, subject to the limitations provided in this
10, Loc Gov Code (BP 337, which was the applicable law         Code and other laws.
at the time)empowers the local governments to close
roads, but this provision should be read and interpreted       (b) Local government units may continue using, modify,
in accordance with basic principles already established        or change their existing corporate seals: Provided, That
by law:                                                        newly established local government units or those
                                                               without corporate seals may create their own corporate
1. Art 424, CC: Properties of public dominion devoted to       seals which shall be registered with the Department of
public use and made available to the public in general         the Interior and Local Government: Provided, further,
are outside the commerce of man and cannot be                  That any change of corporate seal shall also be registered
disposed of or leased by the LGU to private persons.           as provided herein.

2. To withdraw a property from public use, the                  (c) Unless otherwise provided in this Code, no contract
requirement of due process should be complied with,            may be entered into by the local chief executive in behalf
and circumstances should show that the property is no          of the local government unit without prior authorization
longer intended or necessary for public use or public          by the sanggunian concerned. A legible copy of such
service. (When the property is withdrawn from public           contract shall be posted at a conspicuous place in the
use, it becomes patrimonial property of the LGU.)              provincial capitol or the city, municipal or barangay hall.

The Municipality has not shown that it has complied with        (d) Local government units shall enjoy full autonomy in
the conditions precedent set by the Metropolitan Manila        the exercise of their proprietary functions and in the
Authority for the latter to approve of such ordinance.         management of their economic enterprises, subject to
(Conditions are that the streets are not used for              the limitations provided in this Code and other applicable
vehicular traffic and that majority of the residents are       laws.
not opposed to the establishment of a flea
market/vending area, and that there is a time schedule in          H. Liability for damages
during which the flea market would operate.)
                                                               Sec. 24. Liability for Damages. Local government units
Furthermore, the powers of a LGU should be subservient         and their officials are not exempt from liability for death
to paramount considerations of health and well-being of        or injury to persons or damage to property.
the members of the community. It is of public notice that

D2010 80
                                                              UP College of Law

    I.   Authority to negotiate and secure grants;
         receive donations; float bonds; build-operate-

Sec. 23. Authority to Negotiate and Secure Grants.
Local chief executives may, upon authority of the
sanggunian, negotiate and secure financial grants or
donations in kind, in support of the basic services or
facilities enumerated under Section 17 hereof, from local
and foreign assistance agencies without necessity of
securing clearance or approval therefor from any
department, agency, or office of the National
Government of from any higher local government unit:
Provided, That projects financed by such grants or
assistance with national security implications shall be
approved by the national agency concerned: Provided,
further, That when such national agency fails to act on
the request for approval within thirty (30) days from
receipt thereof, the same shall be deemed approved.

The local chief executive shall, within thirty (30) days
upon signing of such grant agreement or deed of
donation, report the nature, amount, and terms of such
assistance to both Houses of Congress and the President.

    J.   Mayor’s power over the police: Operational
         control; suspension

RA 8551

See attachments

Sec 28, LGC

Sec. 28. Powers of Local Chief Executives over the Units
of the Philippine National Police. The extent of
operational supervision and control of local chief
executives over the police force, fire protection unit, and
jail management personnel assigned in their respective
jurisdictions shall be governed by the provisions of
Republic Act Numbered Sixty-nine hundred seventy-five
(R.A. No. 6975), otherwise known as "The Department of
the Interior and Local Government Act of 1990", and the
rules and regulations issued pursuant thereto.

                                                                      81 D2010
Local Government

                                                            Part III
               Elective Officials, Vacancies, Succession, Disciplinary Actions

                                                                                                       ELECTIVE OFFICIALS

Sec 39 – 75, LGC                                                    The residence requirement is rooted in the desire that
                                                                   officials of districts or localities be acquainted with the
Qualifications of elective officials (Sec. 39)                     needs, difficulties, and other matters vital to the
                                                                   common welfare of the constituents. The actual, physical
    1.   citizen of the Philippines                                and personal presence is substantial enough to show his
    2.   registered voter in the barangay, municipality,           intention to fulfill the duties of mayor and for the voters
         city, or province or district (only in the case of a      to evaluate his qualifications for the mayorship. A very
         member of the sangguniang panlalawigan,                   legalistic, academic and technical approach to the
         sangguniang panlungsod, or sangguniang bayan)             residence requirement does not satisfy the rationale for
         where he intends to be elected                            the said requirement (Torayno v. COMELEC [2000]).
    3.   a resident therein for at least one (1) year
         immediately preceding the day of the election             Disqualifications of elective officials (Sec. 40)
    4.   able to read and write Filipino or any other local
         language or dialect.                                          1.   Those sentenced by final judgment for an
    5.   Age requirements for candidates, as of election                    offense involving moral turpitude or for an
         day:                                                               offense punishable by one (1) year or more of
              a. governor, vice-governor, or member of                      imprisonment, within two (2) years after serving
                   the sangguniang panlalawigan, or                         sentence
                   mayor, vice-mayor or member of the                  2.   Those removed from office as a result of an
                   sangguniang panlungsod of highly                         administrative case
                   urbanized cities - at least 23 years old            3.   Those convicted by final judgment for violating
              b. mayor or vice-mayor of independent                         the oath of allegiance to the Republic
                   component cities, component cities, or              4.   Those with dual citizenship
                   municipalities - at least 21 years old              5.   Fugitives from justice in criminal or non-political
              c. punong barangay , member of the                            cases here or abroad
                   sangguniang panlungsod, sangguniang                 6.   Permanent residents in a foreign country or
                   bayan, or sangguniang barangay - at                      those who have acquired the right to reside
                   least 18 years old                                       abroad and continue to avail of the same right
              d. sangguniang kabataan - at least 15                         after the effectivity of this Code; and
                   years old but not more than 21 years                7.   The insane or feeble-minded.
                   old                                                 8.   Other grounds for disqualification:
                                                                                 a. Vote-buying, upon determination in a
Certificates of candidacy to be taken at face value                                  summary administrative proceeding.
                                                                                     (Nolasco v. COMELEC [1997]).
 COMELEC may not deny due course or cancel a                                     b. Previously-elected official. Any elective
certificate without proper proceedings. To receive and                               official who has resigned from his
acknowledge receipt of the certificates of candidacy is a                            office, which he previously occupied
ministerial duty of COMELEC. The COMELEC does not                                    but has caused to become vacant due
have discretion to give or not to give due course to the                             to his resignation (by accepting an
certificate. It may not look into matters not appearing on                           appointive office or for whatever
their face (Cipriano v. COMELEC [2004]).                                             reason), is disqualified from running in
                                                                                     a special election (from RA 8295, “An
Rationale of residency requirement                                                   act providing for the proclamation of a

D2010 82
                                                                                                              UP College of Law

                   lone candidate for any elective office in               Official                            How elected
                   a special election, and for other             Governor, vice-governor,              At large, by all the
                   purposes”).                                   mayor, vice-mayor, punong             qualified voters in their
              c.   Politically-motivated acts. Any person        barangay                              respective units
                   who, directly or indirectly, coerces,         Sangguniang kabataan                  By the registered voters of
                   bribes, threatens, harasses, intimidates      chairman                              the katipunan ng
                   or actually causes, inflicts or produces                                            kabataan
                   any violence, injury, punishment,
                                                                 Members of the                        By the qualified voters in
                   torture, damage, loss or disadvantage
                                                                 sangguniang panlalawigan,             their district
                   to any person or persons aspiring to
                                                                 panlungsod, bayan
                   become a candidate or that of the
                                                                 Members of the                        At large
                   immediate member of his family, his
                                                                 sangguniang barangay
                   honor or property that is meant to
                   eliminate all other potential candidate,
                   where evidence of guilt is strong (also
                                                                 Other members of the various sanggunian
                   from RA 8295).
                                                                      1.   The presidents of the leagues of sanggunian
Term of Office (Sec. 43)
                                                                           members of component cities and
    1.        For all elective officials except barangay                   municipalities shall serve as ex officio members
              officials: 3 years, starting from noon of June               of the sangguniang panlalawigan concerned.
              30, 1992 or such date as may be provided                2.   The presidents of the "liga ng mga barangay and
              for by law.                                                  the pederasyon ng mga sangguniang kabataan"
              a. all local officials first elected during the              elected by their respective chapters shall serve
                   local elections immediately following                   as ex officio members of the sangguniang
                   the ratification of the 1987                            panlalawigan, sangguniang panlungsod, and
                   Constitution shall serve until noon of                  sangguniang bayan
                   June 30, 1992                                      3.   There shall be one (1) sectoral representative
    2.        For barangay officials and members of the                    from the women, one (1) from the workers, and
              sangguniang kabataan: 3 years, which shall                   one (1) from any of the following sectors: the
              begin after the regular election of barangay                 urban poor, indigenous cultural communities,
              officials on the second Monday of May                        disabled persons, or any other sector as may be
              1994.                                                        determined by the sanggunian concerned within
    3.        No local elective official shall serve for more              ninety (90) days prior to the holding of the next
              than 3 consecutive terms in the same                         local elections as may be provided for by law.
                                                                 Vacancies and Succession of Elective OFficials
    4.        Voluntary renunciation of the office for any
              length of time shall not be considered as an       Permanent Vacancies (Sec. 44)
              interruption in the continuity of service
                                                                 Arises when an elective local official:
See also Sec. 8, Art. X, 1987 Constitution: The term of
office of elective local officials, except barangay officials,        1.   fills a higher vacant office
which shall be determined by law, shall be three years                2.   refuses to assume office
and no such official shall serve for more than three                  3.   fails to qualify
consecutive terms. Voluntary renunciation of the office               4.   dies
for any length of time shall not be considered as an                  5.   is removed from office
interruption in the continuity of his service for the full            6.   voluntarily resigns
term for which he was elected.

Elections (Sec. 41, 42)                                          1
                                                                  Sec. 424, LGC: “Katipunan ng Kabataan. – The katipunan ng
                                                                 kabataan shall be composed of all citizens of the Philippines actually
Unless otherwise provided by law, the elections for local        residing in the barangay for at least 6 months, who are 15 but not more
                                                                 than 21 years of age, and who are duly registered in the list of the
officials shall be held every 3 years on the second
                                                                 sangguniang kabataan or in the official barangay list in the custody of
Monday of May.                                                   the barangay secretary.”

                                                                                                                           83 D2010
Local Government

    7.   is otherwise permanently incapacitated to                                        concerned
         discharge the functions of his office

Filling of vacancy by automatic succession (Sec. 44)
                                                            General Rule: the appointee shall come from the same
    Permanent Vacancy                 Successor             political party as that of the sanggunian member who
1. Office of the governor,    Vice-governor, vice-mayor     caused the vacancy and shall serve the unexpired term of
mayor                                                       the vacant office. To ensure this, a nomination and a
2. Offices of governor &      - Highest-ranking             certificate of membership of the appointee from the
vice-governor, or mayor &     sanggunian member, or in      highest official of the political party concerned are
vice-mayor                    case of his permanent         conditions sine qua non.
                              - The second highest-         Effects if nomination and certificate are absent:
                              ranking sanggunian
                              member                            a.   any appointment without such shall be null and
3. Office of the punong       -           Highest-ranking            void ab initio
barangay                      sanggunian member, or in          b.   ground for administrative action against the
                              case of his permanent                  official responsible therefor
                                                            Exceptions: In case the permanent vacancy is caused by a
                              - The second highest-
                                                            sanggunian member who does not belong to any political
                              ranking         sanggunian
                                                            party, the local chief executive shall, upon
                                                            recommendation of the sanggunian concerned, appoint
                                                            any qualified person to fill the vacancy
For purposes of succession, ranking in the sanggunian
                                                            In case of vacancy in the representation of the youth and
shall be determined on the basis of the proportion of       the barangay in the sanggunian, said vacancy shall be
votes obtained by each winning candidate to the total       filled automatically by the official next in rank of the
number of registered voters in each district in the
                                                            organization concerned.
immediately preceding local election.
                                                            Temporary Vacancy in the Office of the Local Chief
A tie between or among the highest ranking sanggunian
                                                            Executive (Sec. 46)
members shall be resolved by the drawing of lots
                                                            Arises when the local chief executive (governor, mayor,
The successors as defined herein shall serve only the
                                                            or punong barangay):
unexpired terms of their predecessors.
                                                                1.       is on leave of absence
Filling of vacancy by appointment (Sec. 45)                     2.       is on travel abroad
                                                                3.       is suspended from office
Resorted to when automatic succession provided in Sec.
                                                                4.       is otherwise temporarily incapacitated to
44 does not apply
                                                                         perform his duties for physical or legal
    Permanent Vacancy              Appointing Power                      reasons
1. Sangguniang                President, through the
                                                            General rule: the vice-governor, city/municipal vice-
panlalawigan;                 Executive Secretary
                                                            mayor, or the highest ranking sangguniang barangay
sangguniang panlungsod
                                                            member shall automatically exercise the powers, and
of highly urbanized cities
                                                            perform the duties and functions, of the local chief
and independent
component cities
2. Sangguniang                Governor                      Exception: The power to appoint/suspend/dismiss
panlungsod of component                                     employees, which can be exercised only if the period of
cities; sangguniang bayan                                   temporary incapacity exceeds 30 working days.
3. Sangguniang barangay       City or municipal mayor,
                              upon recommendation of        General rule: The local chief executive cannot authorize
                              the sangguniang barangay      any local official to assume the powers/duties/functions

D2010 84
                                                                                                   UP College of Law

of his office, other than the vice-governor, city/municipal             LOA of                  To be approved by
vicemayor, or highest ranking sangguniang barangay            1. Governor; mayor of a       The President or his duly
member.                                                       highly urbanized city or an   authorized representative
                                                              independent component
Exception: If the local chief executive is traveling within   city
the country but outside his territorial jurisdiction for a    2. Vice-governor; city /      Local chief executive
period not exceeding 3 consecutive days, he may               municipal vice-mayor          concerned
designate in writing the officer-in-charge. The               3. Members of the             Vice-governor or vice-
authorization shall specify the powers and functions that     sanggunian and its            mayor concerned
the officer-in-charge shall exercise, which does not          employees
include the power to appoint/suspend/dismiss EEs.             4. Mayor or component         Governor
                                                              city / municipality
Exception to the exception: If the local chief executive
fails/refuses to issue the authorization, the vice-           5. Punong barangay            City / municipal mayor
governor, city/municipal vice-mayor, or highest ranking       6. Sangguniang barangay       Punong barangay
sangguniang barangay member has right to assume the           members
powers/duties/functions of the office on the 4th day of
                                                              Whenever the application for leave of absence
The temporary incapacity shall terminate upon                 hereinabove specified is not acted upon within five (5)
submission to the appropriate sanggunian of a written         working days after receipt thereof, the application for
declaration by the local chief executive concerned that       leave of absence shall be deemed approved.
he has reported back to office. In cases where the
                                                              Local Legislation
temporary incapacity is due to legal causes, the local
chief executive concerned shall also submit necessary         Where local legislative power vests (Sec. 48)
documents showing that said legal causes no longer
exist.                                                            1.       sangguniang panlalawigan for the province
                                                                  2.       sangguniang panlungsod for the city
Acting governor cannot simultaneously act as vice-                3.       sangguniang bayan for the municipality
governor. A vice-governor who is concurrently an acting           4.       sangguniang barangay for the barangay
governor is actually a quasi-governor. Being the acting
governor, the vice cannot continue to simultaneously          Presided over by the vice-governor, vice-mayor, or
exercise the duties of the latter office, since the nature    punong barangay. And because the presider is not a
of the duties of the governor for a full-time occupant to     member of the Sanggunian, he can vote only in case of a
discharge them. Hence, there is an “inability” on the part    tie (Perez v. Dela Cruz [1969]).
of the regular presiding officer (vice-governor) to preside
during the sanggunian sessions, which calls for the           Should the vice-governor, vice-mayor or punong
election of a temporary presiding officer (Gamboa v.          barangay be unable to preside, the members present
Aguirre [1999]).                                              and constituting a quorum shall elect from among
                                                              themselves a temporary presiding officer.
The governor has the power to fill vacancy in the
Sangguniang Bayan caused by a member not belonging            The temporary presiding officer shall certify, within 10
to any political party. It is the same manner as where the    days from the passage of ordinances enacted and
member belonged to a political party. Where there is no       resolutions adopted, such ordinances and resolutions in
political party to make the nomination, the Sanggunian,       the session over which he temporarily
where the vacancy occurs, must be considered authority
for making the recommendation. The appointing                 See also Sec. 20, Art. X, 1987 Constitution. “Within its
authority is limited to the appointment of those              territorial jurisdiction and subject to the provisions of
recommended to the governor. The recommendation is            this Constitution and national laws, the organic act of
a condition sine qua non for the validity of the              autonomous regions shall provide for legislative powers
appointment (Fariñas v. Barba [1996]).                        over:

Leaves of Absence (Sec. 47)                                       1.   Administrative organization;
                                                                  2.   Creation of sources of revenues;

                                                                                                              85 D2010
Local Government

    3.   Ancestral domain and natural resources;            the roll of the members and thereafter announce the
    4.   Personal, family, and property relations;          results
    5.   Regional urban and rural planning development;
    6.   Economic, social, and tourism development;         Where there is no quorum, the presiding officer may
    7.   Educational policies;                              declare a recess until such time as a quorum is
    8.   Preservation and development of the cultural       constituted, or a majority of the members present may
         heritage; and                                      adjourn from day to day
    9.   Such other matters as may be authorized by law
         for the promotion of the general welfare of the    Majority of the members present may compel the
         people of the region.”                             immediate attendance of any member absent without
                                                            justifiable cause by designating a member of the
Internal Rules of Procedure (Sec. 50)                       sanggunian to be assisted by the police force assigned in
                                                            the territorial jurisdiction of the LGU concerned, to arrest
Every sanggunian must adopt or update its existing rules    the absent member and present him at the session
of procedure, on the first regular session following the
election of its members and within 90 days thereafter       If there is still no quorum despite this, no business shall
                                                            be transacted. The presiding officer, upon proper motion
The rules of procedure shall provide for the following:     duly approved by the members present, shall then
                                                            declare the session adjourned for lack of quorum
    1.   The organization of the sanggunian and the
         election of its officers                           Sessions (Sec. 52)
    2.   the creation of standing committees (eg.,
         committees on appropriations, women and            Regular Sessions. The sanggunian shall, by resolution, fix
         family, human rights, youth and sports             the day, time, and place of its regular sessions on the
         development, environmental protection,             first session day immediately after the election of its
         cooperatives, etc.), their general jurisdiction,   members.
         their chairpersons, and their members
    3.   The order and calendar of business for each        The minimum numbers of regular sessions shall be:
                                                                    once a week for the sangguniang panlalawigan,
    4.   The legislative process
                                                                     sangguniang panlungsod, and sangguniang
    5.   The parliamentary procedures which include the
         conduct of members during sessions
                                                                    twice a month for the sangguniang barangay
    6.   The discipline of members for disorderly
         behavior and absences without justifiable cause     Special Sessions. Special sessions may be called by the
         for four (4) consecutive sessions,                 local chief executive or by a majority of the members of
              a. the penalty of suspension or expulsion     the sanggunian whenever public interest so demands.
                   shall require the concurrence of at
                   least two-thirds (2/3) vote of all the   In the case of special sessions, a written notice to the
                   sanggunian members                       members shall be served personally at the member's
              b. a member convicted by final judgment       usual place of residence at least 24 hours before the
                   to imprisonment of at least one (1)      special session is held. And unless otherwise concurred
                   year for any crime involving moral       in by two-thirds (2/3) vote of the sanggunian members
                   turpitude shall be automatically         present, there being a quorum, no other matters may be
                   expelled from the sanggunian; and        considered at a special session except those stated in the
    7.   Such other rules as the sanggunian may adopt       notice.

Quorum (Sec. 53)                                            General rule: all sessions shall be open to the public
A majority of all the members of the sanggunian who         Exception: unless a closed-door session is ordered by an
have been elected and qualified shall constitute a          affirmative vote of majority of the members present,
quorum to transact official business                        there being a quorum
 Should a question of quorum be raised during a session,    Reasons for closed-door session: public interest, reasons
the presiding officer shall immediately proceed to call     of security, decency, or morality.

D2010 86
                                                                                                     UP College of Law

No two (2) sessions, regular or special, may be held in a               business interest, financial connection, or
single day.                                                             professional relationship described herein

 Each sanggunian shall keep a journal and record of its        Approval and Vetoing of Ordinances (Sec. 54, 55)
proceedings, which may be published upon resolution of
the sanggunian concerned.                                          1.   Ordinances enacted by the sangguniang
                                                                        panlalawigan, panlungsod, or bayan:
Full disclosure of conflict of interest of members (Sec. 51)                a. Every ordinance enacted by the
                                                                                sangguniang panlalawigan, panlungsod,
Conflict of interest refers in general to one where it may                      or bayan shall be presented to the local
be reasonably deduced that a member of a sanggunian                             chief executive (i.e., the governor or
may not act in the public interest due to some private,                         mayor).
pecuniary, or other personal considerations that may                        b. If the local chief executive approves the
tend to affect his judgment to the prejudice of the                             same, he shall affix his signature on
service or the public.                                                          each and every page thereof.
                                                                            c. Otherwise, he shall veto it within 15
Every sanggunian member shall, upon assumption to                               days (in case of a province) or 10 days
office, make a full disclosure of:                                              (in case of a city or municipality) and
                                                                                return the same with his written
        his business and financial interests
                                                                                objections to the sanggunian, which
        professional relationship, or
                                                                                may proceed to reconsider the same.
        any relation by affinity or consanguinity within                              i. Grounds for vetoing: the
         the fourth civil degree                                                          ordinance is ultra vires, or
                                                                                          prejudicial to the public
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                                ii. Item-vetoing: the local chief
                                                                                          executive shall have the
may result in conflict of interest.
                                                                                          power to veto any particular
Such relationship shall include:                                                          item or items of
                                                                                               1. an appropriations
        Ownership of stock or capital, or investment, in                                           ordinance
         the entity or firm to which the ordinance or                                          2. an ordinance or
         resolution may apply                                                                       resolution adopting a
        Contracts or agreements with any person or                                                 local development
         entity which the ordinance or resolution under                                             plan and public
         consideration may affect                                                                   investment program,
The disclosure required under this Act shall be made in                                        3. an ordinance
writing and submitted to the secretary of the sanggunian                                            directing the
or the secretary of the committee of which he is a                                                  payment of money or
member.                                                                                             creating liability

The disclosure shall form part of the record of the            In such a case, the veto shall not affect the item or items
proceedings and shall be made:                                 which are not objected to. The vetoed item or items shall
                                                               not take effect unless the sanggunian overrides the veto;
        before the member participates in the                 otherwise, any item/s in the appropriations ordinance of
         deliberations on the ordinance or resolution          the previous year corresponding to those vetoed shall be
         under consideration                                   deemed reenacted.
        before voting on the ordinance or resolution on
         second and third readings, if the member did                                iii. The local chief executive may
         not participate during the deliberations                                         veto an ordinance or
        when a member takes a position or makes a                                        resolution only once.
         privilege speech on a matter that may affect the

                                                                                                               87 D2010
Local Government

            d.   The sanggunian concerned may                                      deemed approved as if he had signed
                 override the veto of the local chief                              it.
                 executive by two-thirds (2/3) vote of all            2.   Ordinances enacted by the sangguniang
                 its members, thereby making the                           barangay
                 ordinance or resolution effective for all                     a. Must be signed by the punong
                 legal intents and purposes, even                                  barangay upon approval by the
                 without the approval of the local chief                           majority of all the sanggunian
                 executive concerned.                                              members.
            e.   If the ordinance is not returned by the                       b. The punong barangay has no veto
                 local chief executive within the time                             power.
                 prescribed, the ordinance shall be

Review of Ordinances and Resolutions (Sec. 56-58)

                              Ordinances and resolutions by the sangguniang             Ordinances by the sangguniang
                                     panlungsod / sangguniang bayan                                barangay
       Reviewed by           Sangguniang panlalawigan                              Sangguniang panlungsod / bayan
                             1. Approved ordinances                                All barangay ordinances
                             2. Resolutions approving
                                      a. local development plans
  What may be reviewed
                                      b. public investment programs
                                          formulated by local development
  Period for submitting      Within 3 days after approval                          Within 10 days after enactment
copies by the secretary of
the sanggunian concerned
                             Within 30 days after receipt of copies of             Within 30 days from receipt of copies of
    Period for review
                             ordinances and resolutions                            the ordinances and resolutions
                             1. By itself, or                                      By itself
                             2. With the help of the provincial attorney /
                                 provincial prosecutor. The latter must
    Manner of review             submit his written comments or
                                 recommendations to the sangguniang
                                 panlalawigan within 10 days from receipt of
                                 the documents to be examined
                             1. If the sangguniang panlalawigan finds that         1.   If the sangguniang panlungsod /
                                 such an ordinance or resolution is ultra vires,        bayan finds that such ordinance or
                                 it shall declare such ordinance or resolution          resolution is inconsistent with law
                                 invalid in whole or in part.                           and city/municipal ordinances, it
                             2. The sangguniang panlalawigan shall enter its            shall return the same with its
                                 action in the minutes and shall advise the             comments and recommendations to
                                 corresponding city or municipal authorities of         the sangguniang barangay for
                                 the action it has taken.                               adjustment, amendment, or
Ground/s for invalidating,
                             3. Any attempt to enforce any ordinance or any             modification
 and action to be taken
                                 resolution approving the local development        2.   In this case, the effectivity of the
                                 plan and public investment program, after              barangay ordinance is suspended
                                 the disapproval thereof, shall be sufficient           until such time as the revision called
                                 ground for the suspension or dismissal of the          for is effected.
                                 official or employee concerned.                   3.   Any attempt to enforce any
                                                                                        ordinance after the disapproval
                                                                                        thereof, shall be sufficient ground
                                                                                        for the suspension or dismissal of

D2010 88
                                                                                                          UP College of Law

                                                                                          the official or employee concerned.
                               If no action has been taken within 30 days after      If no action is taken within thirty (30)
                               submission of such an ordinance or resolution,        days from receipt of the ordinances, the
     Effect of inaction
                               the same shall be presumed consistent with law        same shall be deemed approved
                               and therefore valid

Effectivity of Ordinances or Resolutions (Sec. 59)                 published once in a local newspaper of general
                                                                   circulation within the city
    1.       Ordinance or resolution approving the local
             development plan and public investment                In the absence of a local newspaper, the ordinance or
             program                                               resolution shall be published in any newspaper of
                                                                   general circulation
Unless otherwise stated in the ordinance or resolution
approving the local development plan and public                    Disciplinary Actions
investment program, the same shall take effect after ten
(10) days from                                                     Grounds (Sec. 60)

        Posting, by the secretary, of a copy thereof in a             1.         Disloyalty to the Republic of the Philippines;
         bulletin board at the entrance of the provincial              2.         Culpable violation of the Constitution;
         capitol / city, municipal, or barangay hall, which            3.         Dishonesty, oppression, misconduct in
         must be done not later than 5 days after its                             office, gross negligence, or dereliction of
         approval; and                                                            duty;
        in at least 2 other conspicuous places in the LGU             4.         Commission of any offense involving moral
         concerned                                                                turpitude or an offense punishable by at
                                                                                  least prision mayor;
The text of the ordinance or resolution shall be                       5.         Abuse of authority;
disseminated and posted in Filipino or English and in the              6.         Unauthorized absence for fifteen (15)
language understood by the majority of the people in the                          consecutive working days, except in the
LGU concerned                                                                     case of members of the Sangguniang
                                                                                  Panlalawigan, Sangguniang Panlungsod,
The secretary to the sanggunian shall record such fact in                         Sangguniang bayan, and Sangguniang
a book kept for the purpose, stating the dates of                                 Barangay;
approval and posting                                                   7.         Application for, or acquisition of, foreign
                                                                                  citizenship or residence or the status of an
    2.       Ordinances with penal sanctions                                      immigrant of another country; and
                                                                       8.         Such other grounds as may be provided in
The gist of all ordinances with penal sanctions shall be
                                                                                  this Code and other laws.
published in a newspaper of general circulation within
the province where the local legislative body concerned            Removal of elective officials based on these grounds may
belongs.                                                           only be done by ORDER of proper court.
In the absence of any newspaper of general circulation
                                                                   Form and Filing of administrative complaint (sec. 61)
within the province, posting of such ordinances shall be
made in all municipalities and cities of the province                   Form of Complaint: It must be VERIFIED
where the sanggunian of origin is situated.                             Where to File:
                                                                       (1) Against an elective official of a province, highly-
    3.       Ordinances enacted by the local legislative
                                                                           urbanized city, independent component city or
             bodies of highly urbanized and independent
                                                                           component city → Office of the President (OP);
             component cities
                                                                       (2) Against an elective municipal official →
                                                                           Sangguniang Panlalawigan, appealable to the
                                                                           Office of the President (OP);
The main features of the ordinance or resolution duly
enacted or adopted shall, in addition to being posted, be

                                                                                                                     89 D2010
Local Government

    (3) Against an elective barangay official →               Duration of Preventive Suspension:
        Sangguniang Panlungsod or Bayan as the case
        may be, non appealable.                                       Any single preventive suspension of local
                                                                       elective official SHALL NOT extend beyond sixty
Notice of hearing (Sec. 62)                                            (60) days.
                                                                      In the event that several administrative cases
The notice of hearing must be sent to the elective official            are filed against an elective official, he cannot
complained of within seven (7) days from filing of                     be preventively suspended for more than ninety
verified complaint which indicates that:                               (90) days within a single year on the same
                                                                       ground or grounds existing and known at the
        An administrative complaint is lodged against
                                                                       time of the first suspension.
        Requiring him to submit his VERIFIED ANSWER          What happens after preventive suspension:
         within fifteen (15) days from receipt of notice
                                                                      The suspended elective official shall be deemed
The disciplining authority shall commence the                          REINSTATED IN OFFICE without prejudice to the
investigation of the case within ten (10) days after                   continuation of the proceedings against him
receipt of the respondent’s answer.
                                                              Duration of Administrative Proceedings (Rendition of
NOTE:                                                         Judgment):
(1) No investigation shall be held within ninety (90) days            One hundred twenty (120) days from the time
immediately prior to any LOCAL ELECTION, and no                        the respondent was formally notified of the case
preventive suspension shall be imposed within the same                 against him.
                                                              NOTE: If the delay in the proceedings of the case of the
(2) If a preventive suspension has been imposed prior to      case is due to his FAULT, NEGLECT, or REQUEST, other
90-day period immediately preceding local election, it        than the appeal duly filed, the duration of such delay
shall be deemed AUTOMATICALLY LIFTED upon start of            shall not be counted in computing the time of
aforesaid period.                                             termination of the case.
Preventive suspension of local elective officials (Sec. 63)           Any abuse of the exercise of the power of
                                                                       preventive suspension shall be penalized as
Who may impose:
                                                                       ABUSE OF AUTHORITY.
        Against an elective official of a PROVINCE,
                                                              Salary of respondent pending suspension (Sec 64)
         COMPONENT CITY → The President thru the                      The suspended official shall not receive any
         DILG Secretary;                                               salary or compensation during the pendency of
        Against an elective municipal official or an                  the suspension
         elective official of a component city → The
         Provincial Governor;                                  If found GUILTY after the         If found NOT GUILTY
        Against an elective barangay official → The           proceeding                        after the proceeding
         Mayor                                                                                   The suspended official
                                                                                                 shall be paid FULL
When to impose:
                                                                                                 salary or
                                                               No compensation will be
        At any time after the issues have been joined,                                          compensation
         when the evidence of guilt is strong, and given                                         including other
         the gravity of offense, then is great possibility                                       emoluments accruing
         that the continuance in office of the respondent                                        during the suspension
         could influence the witnesses or pose a threat
         to the safety and integrity of the records and
                                                              Rights of respondent official (Sec 65)
         other evidence.

D2010 90
                                                                                                                 UP College of Law

    1.   To appear and defend himself in person or by           Period to appeal:
    2.   To confront and cross-examine the witnesses                                    Within thirty (30) days from receipt of
         against him;                                                                    the decision.
    3.   To require the attendance of witnesses and the
         production of documentary evidence in his              Where to appeal:
         favor through the compulsory process of sub
                                                                                                         For the decisions of
         poena or sub poena duces tecum
                                                                                                         Sangguniang Panlungsod
Form and Notice of decision (Sec 66)                            Sangguniang Panlalawigan                 of Component Cities and
                                                                                                         Sangguniang Bayan
The investigation of the case SHALL be terminated within
90 days from the start thereof.
                                                                                                         For the decisions of
The disciplining authority shall render its decision within                                              Sangguniang Panlalawigan
30 days after the end of the investigation.                                                              and the Sangguniang
                                                                Office of the President                  Panlungsod of Highly
Form of decision:                                                                                        Urbanized Cities (HUC) and
                                                                                                         Independent Component
        It shall be in writing;
        It shall state clearly and distinctly the facts and
         the reasons for the decision.

Notice of decision:                                             Decisions of the Office of the President shall be final and
                                                                executory. (see Calingin v. CA, July 12, 2004)
        The notice together with the copies of the
         decision shall IMMEDIATELY be furnished the            Execution pending appeal (Sec 68)

         respondent and all interested parties.
                                                                            An appeal shall not prevent a decision from
Imposable penalty:                                                           becoming final and executory.
                                    It shall not exceed: (1)
                                     the unexpired term of
                                     the respondent; or (2)     2
                                                                    The provision is not explicit whether the decision of Sangguniang
                                     a period of six (6)             Bayan and Sangguniang Panlungsod of Component Cities after
                                     months for every                appeal to Sangguniang Panlalawigan can be further appealed to the
                                                                     Office of the President. But the author of this reviewer humbly
                                     administrative offense
                                                                     believes that pursuant to the doctrine of exhaustion of
                                                                     administrative remedies in Administrative Law, it can be further
SUSPENSION                          It shall NOT be a bar to        appealed to the Office of the President. This view is also bolstered by
                                     the candidacy of the            the last sentence of the same provision which states that “Decisions
                                                                     of the Office of the President shall be final and executory.” The said
                                     respondent so                   statement begs the question: If the decision of the Office of the
                                     suspended as long as            President is final and executory, how about that of the Sangguniang
                                     he meets the                    Panlalawigan?
                                     qualifications required
                                     for the office             3
                                                                  This provision is poorly worded. The drafter might be drunk when
                                                                he/she wrote this provision. The first and second sentences, as written,
                                    Amounts to a bar to
                                                                do not make any sense. One might ask regarding the first sentence,
                                     the candidacy of the       “Why appeal if the decision will become final and executory
REMOVAL                              respondent for ANY         notwithstanding the filing of an appeal?” The author humbly submits
                                     elective position          that the second and third sentences of this provision should have been
                                                                written or was intended to be written this way: “ 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
Administrative appeals (Sec 67)                                 salary and such emoluments during the pendency of the appeal”

                                                                                                                              91 D2010
Local Government

          The respondent official shall be considered as                 this point and shall be ruled with finality within
           having been placed under preventive                            15 days from filing of such protest or challenge.
           suspension during the pendency of an appeal in            4.   COMELEC then verifies and authenticates the
           the event he wins such appeal.                                 signatures gathered. Representatives of the
          In the event the appeal results in                             petitioners as well as the official sought to be
           EXONERATION, he shall be paid his salary and                   recalled shall be duly notified and shall have the
           such other emoluments during the pendency of                   right to participate therein as mere observers.
           the appeal.                                               5.   COMELEC shall announce the acceptance of
                                                                          candidates to the position and thereafter
Recall                                                                    prepare the list of candidates which shall
                                                                          include the name of the official sought to be
By whom exercised (Sec 69)                                                recalled.
It shall be exercised by the registered voters of a local        Election on recall (Sec 71)
government unit to which the local elective official
subject to such recall belongs.                                  Prescribed date of Recall Election:

Ground: Loss of Confidence                                                                        Shall not be later than
                                                                                                  thirty (30) days upon the
Initiation of Recall Process (Sec 70)                            For recall of barangay,          completion of the
                                                                 city, or municipal officials     procedure for initiation of
Contents of the Petition:
                                                                                                  recall process
    1.     The names and addresses of the petitioner
           written in legible form and their signatures                                           Shall not be later than
    2.     The barangay, city or municipality, local                                              forty-five (45) days upon
           legislative district and the province to which the                                     the completion of the
                                                                 For recall of provincial
           petitioners belong                                                                     procedure for initiation of
    3.     The name of the official sought to be recalled                                         recall process
    4.     A brief narration of the reasons and
           justifications therefore.

Process:                                                         The official sought to be recalled shall automatically be
                                                                 considered as duly registered candidate or candidates to
    1.     Petition of a registered voter in the LGU             the pertinent positions and, like other candidates, shall
           concerned, supported by percentage of                 be entitled to be voted upon.
           registered voters during the election in which
           the local official sought to be recalled is elected   Effectivity of recall (Sec 72)
           filed with the COMELEC thru its office in the LGU
           concerned. (Percentage decreases as population        The recall of an elective local official shall be effective
           of people in area increases. Also, the supporting     only upon the election and proclamation of the
           voters MUST sign the petition)                        candidate receiving the highest number of votes cast
    2.     Within 15 days after filing, COMELEC must             during the recall election.
           certify the sufficiency of the required number of
                                                                 Should the official sought to be recalled receive the
           signatures. Failure to obtain required number
                                                                 highest number of votes, confidence in him is thereby
           automatically nullifies the petition.
                                                                 affirmed and he shall continue in office.
    3.     Within 3 days of certification of sufficiency form
           and substance of the petition, the COMELEC            Prohibition from resignation (Sec 73)
           shall provide the official with a copy of the
           petition and causes its publication for 3 weeks       The elective local official sought to be recalled shall not
           (once a week) in a national newspaper and a           be allowed to resign while the recall process is in
           local newspaper of general circulation. Petition      progress.
           must also be posted for 10 to 20 days at
           conspicuous places. Protest should be filed at        Limitation on recall (sec 74)

D2010 92
                                                                                                    UP College of Law

Any elective local official may be the subject of a recall    to prove that the petitioner temporarily left her
election only once during his term of office                  residence to pursue any calling, profession or business to
                                                              satisfy the principle of animus revertendi. The fact that
No recall shall take place within one (1) year from the       she occasionally visits Kananga through the years does
date of the official’s assumption to office or one (1) year   not signify an intention to continue her residence
immediately preceding a regular local election.               therein. Having thus been established as an Ormoc City
                                                              resident, she is disqualified from running as Leyte
Expenses incident to recall election (Sec 75)                 governor since Ormoc City’s charter prohibits its voters
                                                              from voting for provincial elective officials, since it is
All expenses incident to recall elections shall be borne by
                                                              treated like a highly urbanized city which is outside the
                                                              supervisory power of the province to which it is
For this purpose, there shall be included in the annual       geographically attached. The provision in the charter
General Appropriations Act a contingency fund for the         connotes two prohibitions: one from running and the
conduct of recall elections.                                  other from voting for any provincial elective official.
                                                              (Since there was a vacancy in the Office of the Governor,
                         A. Qualifications                    the vice-governor assumed office.)

Sec 39, LGC                                                   Frivaldo v. Comelec (1989)

See above                                                     Juan Frivaldo assumed office as Sorsogon governor in
                                                              1988. On 27 Oct 1988 the League of Municipalities
Abella v. Comelec                                             Sorsogon Chapter, represented by its president Salvador
                                                              Estuye (also suing in his personal capacity) filed with the
Benjamin Abella was a candidate for Leyte governor for        COMELEC a petition for the annulment of Frivaldo’s
the 1988 elections. Emeterio Larrazabal was also a            election on the ground that he was not a FIipino citizen.
candidate for Leyte governor, but was disqualified for        Frivaldo admitted he was naturalized in the US, but
lack of residence. On the day before the elections, his       explained that such was only to protect himself against
wife Adelina Larrazabal then filed her candidacy as his       President Marcos. He said he could not have repatriated
substitute. The following day Silvestre de la Cruz, a         himself since the Special Committee on Naturalization
registered voter of Tacloban City, filed a petition to        (created by LOI 270) had not yet been organized. He
disqualify her, on the ground that she misrepresented         argued that his oath in his certificate of candidacy that
her residence as Kananga, Leyte when in fact she was a        he was a natural-born citizen was a sufficient act of
resident of Ormoc City like her husband. She was              repatriation, and that his active participation in the 1987
however proclaimed as the winning candidate, and thus         elections had divested him of American citizenship under
assumed office while the hearings on her disqualification     US laws, thus restoring his Filipino citizenship.
case continued. She was later on declared by the
COMELEC as disqualified from running as governor. The         WON Frivaldo was a Filipino citizen at the time of his
incumbent vice-governor Leopoldo Petilla then took his        election as Sorsogon governor
oath as Leyte Governor and assumed office, which
COMELEC resolved by ordering Petilla to maintain status       HELD: No
quo ante and refrain from assuming the office of              The alleged forfeiture of his American citizenship due to
governor.                                                     his active participation in Philippine politics does not
                                                              automatically restore his Filipino citizenship. If the
WON Adelina Larrazabal was qualified to run as governor       Committee tasked to handle the repatriation had not yet
of Leyte                                                      been constituted, it only meant that Frivaldo should have
                                                              waited until this was done, or else he should have sought
HELD: No                                                      reacquisition of his Filipino citizenship through other
Adelina Larrazabal lacked the required residence because      means (i.e., direct act of Congress or applied for
she has established her residence at Ormoc City since         naturalization). Frivaldo was then not a Filipino citizen,
1975 and not at Kananga. Her attempt to purportedly           and thus disqualified to vote and run for office since
change her residence one year before the election by          Filipino citizenship is one of the qualifications for voting
registering at Kananga clearly shows that she considers       and for being a candidate for local elective office. (There
herself as an Ormoc City resident. There is no evidence

                                                                                                               93 D2010
Local Government

was then a vacancy in the Office of the Governor, thus        failed to Answer and present evidence; COMELEC
the elected vice-governor assumed office.)                    subsequently cancelled Labo’s certificate of candidacy.
                                                              Labo then moved to stay the implementation of the
Labo v. Comelec (1989)                                        COMELEC decision, which was granted with COMELEC
                                                              issuing an Order that “Labo may still continue to be
Ramon Labo Jr married an Australian citizen in the            voted upon” as mayor in the 1992 elections, but it
Philippines. As the spouse of an Australian citizen, he was   resolved to suspend Labo’s proclamation in the event he
not required to meet normal requirements for the grant        wins the elections.
of citizenship, and was granted Australian citizenship on
28 Jul 1976. His marriage was later declared void for         WON Labo is a Filipino citizen and hence qualified to be
being bigamous. He returned to the Philippines using an       Mayor
Australian passport and obtained an Alien Certificate of
Registration (ACR). He applied for a change in status         HELD: No
from immigrant to returning Filipino citizen, but was         Labo failed to submit proof that he has reacquired his
denied by the Commission on Immigration and                   Philippine citizenship. He claims that he has reacquired
Deportation since he has not applied for reacquisition of     his Filipino citizenship by citing his application for
his Filipino citizenship. He later on ran for and won as      reacquisition of Philippine citizenship filed before the
Mayor of Baguio City. The second-placer Luis Lardizabal       OSG, but despite favorable recommendation by the
filed a petition for quo warranto, alleging that Labo is      Solicitor General, the Special Committee on
disqualified from holding public office on the ground that    Naturalization had yet to act upon his application for
Labo was an alien, and asking that Labo’s proclamation        repatriation. In the absence of any official action or
as Mayor be annulled.                                         approval by the proper authorities, a mere application
                                                              for repatriation does not, and cannot, amount to an
WON Labo is a Filipino citizen and hence qualified to be      automatic reacquisition of the applicant’s Philippine
Mayor                                                         citizenship. (Note: Second-placer Ortega is not entitled to
                                                              be proclaimed as Mayor because he was not the choice
HELD: No                                                      of the sovereign will. The ineligibility of a candidate
Labo is not a Filipino citizen because he has lost his        receiving majority votes does not entitle the eligible
Filipino citizenship by all three modes specified in the      candidate receiving the next highest number of votes to
Constitution: (1) naturalization in a foreign country, (2)    be declared elected.)
express renunciation of citizenship, and (3) subscribing to
an oath of allegiance to support the Constitution or laws     Frivaldo v. Comelec (1996)
of a foreign country. Even if it be assumed that his
Australian citizenship was annulled because his marriage      On 20 Mar 1995, Juan Frivaldo filed his certificate of
was void for being bigamous, that circumstance alone          candidacy for Sorsogon governor in the 1995 elections.
does not automatically restore his Philippine citizenship.    Three days later, another Sorsogon governor candidate,
It does not appear that Labo sought to reacquire his          Raul Lee filed for the cancellation of his Frivaldo’s
Filipino citizenship through any of the three modes           certificate of candidacy on the ground that Frivaldo was
provided by our laws: direct act of Congress,                 not a Filipino citizen. COMELEC granted the petition.
naturalization or repatriation. (Also, the earlier contrary   Frivaldo filed a MR, which was not acted upon until after
COMELEC decision can also be reversed since res judicata      the elections. His candidacy then continued and was thus
does not apply to questions of citizenship.) Not being a      voted upon (he received the highest number of votes). It
Filipino citizen, Labo is disqualified to run for mayor.      was only after the elections that the COMELEC en banc
(There was then a vacancy in the Office of Mayor, thus        affirmed the resolution of its Second Division. By order of
the Vice Mayor assumed office.)                               COMELEC, Lee was proclaimed as governor at 830 PM on
                                                              30 Jun 1995. On 6 Jul 1995, Frivaldo filed a petition with
Labo v. Comelec (1992)                                        the COMLEC praying for the annulment of Lee’s
                                                              proclamation, claiming that since he took his oath of
Ramon Labo Jr filed his certificate of candidacy for mayor    allegiance to the Philippines at 2PM on 30 Jun 1995,
of Baguio City in the 1992 elections. Roberto Ortega also     there was no more impediment to his being proclaimed
filed his certificate of candidacy for the same office, and   as governor. In the alternative, he averred that it was
also subsequently filed for Labo’s disqualification before    the Vice-Governor-elect that should assume the office
the COMELEC on the ground that Labo was an alien. Labo        and not Lee.

D2010 94
                                                                                                    UP College of Law

WON Frivaldo was qualified to be elected as Sorsogon          under the principle of jus soli. He was also a natural-born
governor                                                      Filipino citizen by virtue of the 1935 Philippine
                                                              Constitution, as his father and mother were Filipinos at
HELD: Yes                                                     the time of his birth. At the age of 6, his parents brought
The law does not specify any particular date or time          him to the Philippines using an American passport. His
when the candidate must possess citizenship. Sine             parents registered his as an alien with the Philippine
Frivaldo reassumed his citizenship on 30 June 1995 – the      Bureau of Immigration and was thus issued an Alien
very day the term of office of governor began – he was        Certificate of Registration (ACR). When he attained the
therefore already qualified to be proclaimed, to hold         age of majority, he registered himself as a voter, and
such office and to discharge the functions and                voted in the elections of 1992, 1995 and 1998. On 7 May
responsibilities as of said date. Furthermore, Frivaldo’s     1998, COMELEC granted Mamaril’s petition and
repatriation retroacted to the date of the filing of his      cancelled Manzano’s certificate of candidacy on the
application on 17 Aug 1994, since laws which create new       ground that he was a dual citizen and thus disqualified
rights are given retroactive effect. And even if Frivaldo     from running for any elective position. On 8 May 1998,
was previously declared as not a Filipino citizen by the      Manzano moved for reconsideration of the decision, and
Supreme Court, such decisions declaring the acquisition       the motion remained pending even until after the
or denial of citizenship cannot govern a person’s future      elections. On 31 Aug 1998 the COMELEC en banc
status with finality, because a person may subsequently       declared that Manzano was qualified to run for vice
reacquire, or for that matter lose, his citizenship under     mayor.
any of the modes recognized by law for the purpose.
                                                              (1) WON Manzano possesses dual citizenship, and (2)
SC adds, “And let it not be overlooked that Frivaldo’s        WON he is disqualified from running for and being
demonstrated tenacity and sheer determination to              elected as vice mayor
reassume his nationality of birth despite several setbacks
speak more loudly, in spirit, in fact and in truth than any   HELD: (1) Yes and (2) No
legal technicality, of his consuming intention and burning    Dual citizenship is different from dual allegiance. The
desire to re-embrace his native Philippines even now at       former arises when, as a result of the concurrent
the ripe old age of 81 years.”                                application of the different laws of two or more states, a
                                                              person is simultaneously considered a national by the
Justice Davide DISSENTED, saying that “Section 39 of the      said states. Such a person, ipso facto and without any
Local Government Code of 1991 refers to no other than         voluntary act on his part, is concurrently considered a
the qualifications of candidates for elective local offices   citizen of both states. Dual allegiance, on the other hand,
and their election. Hence, in no way may the section be       refers to the situation in which a person simultaneously
construed to mean that possession of qualifications           owes, by some positive act, loyalty to two or more
should be reckoned from the commencement of the               states. While dual citizenship is involuntary, dual
term of office of the elected candidate. Also, it is only     allegiance is the result of an individual’s volition. In
upon taking the oath of allegiance that the applicant is      including Section 5 in Article IV of the Constitution (“Dual
deemed ipso jure to have reacquired Philippine                allegiance of citizens is inimical to the national interest
citizenship. If the decree had intended the oath taking to    and shall be dealt with by law.”), the concern of the
retroact to the date of the filing of the application, then   Constitutional Commission was not with dual citizens per
it should not have explicitly provided otherwise.”            se but with naturalized citizens who maintain their
                                                              allegiance to their countries of origin even after their
Mercado v. Manzano                                            naturalization. Hence, the phrase “dual citizenship” in RA
                                                              7160 (Local Government Code of 1991) Sec 40(d) and RA
In the 1998 elections, 3 candidates for vice-mayor            7854 (Makati City Charter) Sec 20 must be understood as
competed for the post: Eduardo Manzano, Ernesto               referring to dual allegiance. Thus, persons with mere
Mercado and Gabriel Daza III. Manzano won the                 dual citizenship do not fall under this disqualification.
elections but his proclamation was suspended due to a
pending petition for disqualification filed by Ernesto        The oath of allegiance contained in Manzano’s certificate
Mamaril who alleged that Manzano was not a Filipino           of candidacy is sufficient to constitute renunciation of his
citizen but was instead a US citizen. Manzano was born        American citizenship, effectively removing any
in San Francisco, California, USA and thus acquired US        disqualification he might have as a dual citizen. There is
citizenship by operation of the US Constitution and laws      no merit to the contention that to be effective, such

                                                                                                               95 D2010
Local Government

renunciation should have been made upon Manzano’s              (1) year immediately preceding the day of the election;
reaching the age of majority, since no law requires the        and able to read and write Filipino or any other local
election of Philippine citizenship to be made upon             language or dialect. (Sec. 39(a), LGC)
attainment of the age of majority.
                                                               The term “residence” is to be understood not in its
Manzano’s oath of allegiance to the Philippines, when          common acceptation as referring to “dwelling” or
considered with the fact that he has spent his youth and       “habitation,” but rather to “domicile” or legal residence,
adulthood, received his education, practiced his               that is, “the place where a party actually or
profession as an artist, and taken part in past elections in   constructively has his permanent home, where he, no
this country, leaves no doubt of his election of Philippine    matter where he may be found at any given time,
citizenship.                                                   eventually intends to return and remain (animus
                                                               manendi).” A domicile of origin is acquired by every
Coquilla v. Comelec                                            person at birth. It is usually the place where the child’s
                                                               parents reside and continues until the same is
Coquilla was born of Filipino parents in Oras, Eastern         abandoned by acquisition of new domicile (domicile of
Samar. He resided there until 1965, when he joined the         choice). Petitioner lost his domicile of origin in Oras by
United States Navy. He was subsequently naturalized as         becoming a U.S. citizen after enlisting in the U.S. Navy in
a U.S. citizen. On October 15, 1998, petitioner came to        1965. From then on and until November 10, 2000, when
the Philippines and took out a residence certificate but       he reacquired Philippine citizenship, petitioner was an
still made several trips to the US. On November 10, 2000,      alien without any right to reside in the Philippines save as
he was repatriated and he took his oath as a citizen of        our immigration laws may have allowed him to stay as a
the Philippines. On February 27, 2001, after his               visitor or as a resident alien.
application for registration as a voter of Butnga, Oras,
Eastern Samar was approved, he filed his certificate of        It is not true, as petitioner contends, that he
candidacy stating therein that he had been a resident of       reestablished residence in this country in 1998 when he
Oras, Eastern Samar for “two (2) years.”                       came back to prepare for the mayoralty elections of Oras
                                                               by securing a Community Tax Certificate in that year and
Respondent Alvarez (incumbent mayor of Oras and who            by “constantly declaring” to his townmates of his
was running for reelection) sought the cancellation of         intention to seek repatriation and run for mayor in the
petitioner’s certificate of candidacy on the ground that       May 14, 2001 elections. Evidence shows that when
the Coquilla had made a material misrepresentation in          petitioner entered the country in 1998, he did so as a
his certificate of candidacy by stating that he had been a     visa-free balikbayan visitor whose stay as such was valid
resident of Oras for two years when in truth he had            for one year only. Hence, petitioner can be held to have
resided therein for only about six months since                waived his status as an alien and as a non-resident only
November 10, 2000, when he took his oath as a citizen of       on November 10, 2000 upon taking his oath as a citizen
the Philippines.                                               of the Philippines under R.A. No. 8171. He lacked the
                                                               requisite residency to qualify him for the mayorship of
The COMELEC was unable to render judgment on the               Oras, Eastern, Samar.
case before the elections on May 14, 2001. Meanwhile,
petitioner was elected by a margin of 379 votes, was           Case of Mayor Jesse Robredo
proclaimed mayor, and subsequently took his oath of
office.                                                        CA case
HELD: Petitioner had NOT been a resident of Oras,                                       B. Disqualifications
Eastern Samar at least one (1) year before the elections
held on May 14, 2001 as he represented in his certificate      Sec 40, LGC
of candidacy.
                                                               See above
An elective local official must be a citizen of the
Philippines; a registered voter in the barangay,               Caasi v. CA
municipality, city, or province or, in the case of a
member of the sangguniang panlalawigan, sangguniang            Merito Miguel was elected as the municipal mayor of
panlungsod, or sangguniang bayan, the district where he        Bolinao, Pangasinan in the local elections of January 18,
intends to be elected; a resident therein for at least one

D2010 96
                                                                                                       UP College of Law

1988. Caasi filed a disqualification case against Miguel on     waived his status as such before he ran for election as
the ground that he is a green card holder - hence, a            municipal mayor of Bolinao on January 18, 1988.
permanent resident of the United States of America, not
of Bolinao – in violation of Sec. 68 of the Omnibus             In addition, residence in the municipality where he
Election Code.                                                  intends to run for elective office for at least one (1) year
                                                                at the time of filing his certificate of candidacy, is one of
In his "Application for Immigrant Visa and Alien                the qualifications that a candidate for elective public
Registration" in 1984, Miguel's answer to Question No.          office must possess. Miguel did not possess that
21 therein regarding his "Length of intended stay (if           qualification because he was a permanent resident of the
permanently, so state)," Miguel's answer was,                   United States and he resided in Bolinao for a period of
"Permanently." The green card that was subsequently             only three (3) months (not one year) after his return to
issued identified him in clear bold letters as a RESIDENT       the Philippines in November 1987 and before he ran for
ALIEN. On the back of the card, the upper portion, the          mayor of that municipality on January 18, 1988. The
following information is printed: “Person identified by         Court therefore holds that he was disqualified to become
this card is entitled to reside permanently and work in         a candidate for that office.
the United States.”
                                                                Marquez v. Comelec
HELD: Miguel is disqualified under Sec. 68 of the
Omnibus Election Code on the ground that he is a green          At the time private respondent Eduardo Rodriguez filed
card holder.                                                    his certificate of candidacy for Governor of Quezon, a
                                                                criminal charge against him for ten (10) counts of
An immigrant is a person who moves into a country for           insurance fraud or grand theft of personal property was
the purpose of permanent residence. Miguel's                    still pending before the Municipal Court of Los Angeles
immigration to the United States in 1984 constituted an         Judicial District, County of Los Angeles, State of
abandonment of his domicile and residence in the                California, U.S.A. A warrant issued by said court for his
Philippines. He entered the United States with the              arrest, it is claimed, has yet to be served on private
intention to live there permanently as evidenced by his         respondent on account of his alleged "flight" from that
application for an immigrant's (not a visitor's or tourist's)   country. Private respondent was proclaimed Governor-
visa. As a resident alien in the U.S., Miguel owes              elect of Quezon on 29 May 1992.
temporary and local allegiance to the U.S., the country in
which he resides.                                               Petitioner Bienvenido Marquez, the defeated candidate
                                                                for the elective position of Governor in the Province of
Section 68 of the Omnibus Election Code of the                  Quezon in the 11th May 1992 elections, argues that
Philippines provides that “any person who is a                  Rodriguez is disqualified from being a candidate by virtue
permanent resident of or an immigrant to a foreign              Section 40(e) of the Local Government Code which states
country shall not be qualified to run for any elective          that a “fugitive from justice in criminal or non-political
office unless said person has waived his status as              cases here or abroad” is disqualified from running for any
permanent resident or immigrant of a foreign country in         elective local position.
accordance with the residence requirement provided for
in the election laws. “                                         Rodriguez argues that that term “fugitive from justice” is
                                                                limited to one who has been convicted by final judgment.
To be "qualified to run for elective office" in the             His basis is Article 73(b) of the Rules and Regulations
Philippines, the law requires that the candidate who is a       Implementing the Local Government Code of 1991. It
green card holder must have "waived his status as a             states that “…fugitive from justice refers to a person who
permanent resident or immigrant of a foreign country."          has been convicted by final judgment." The issue in this
Miguel’s act of filing a certificate of candidacy for           case is the meaning of “fugitive from justice”. Note: the
elective office in the Philippines did not of itself            issue of WON Rodriguez is disqualified for being a
constitute a waiver of his status as a permanent resident       fugitive from justice was decided by the Court in the
or immigrant of the United States. The waiver of his            succeeding case of Rodriguez v. COMELEC.
green card should be manifested by some act or acts
independent of and done prior to filing his candidacy for       HELD: The law needs no further interpretation and
elective office in this country. Without such prior waiver,     construction. Section 40(e) of Republic Act No. 7160 is
he was disqualified to run for any elective office. The         clear and it disqualifies "fugitives from justice in criminal
records of this case are starkly bare of proof that he had      or non-political cases here or abroad" from seeking any

                                                                                                                  97 D2010
Local Government

elective local office. The phrase "fugitive from justice"     that animates one's flight from a particular jurisdiction.
includes not only those who flee after conviction to avoid    And obviously, there can only be an intent to evade
punishment but likewise those who, after being charged,       prosecution or punishment when there is knowledge by
flee to avoid prosecution. This definition truly finds        the fleeing subject of an already instituted indictment, or
support from jurisprudence and it may be so conceded          of a promulgated judgment of conviction.
as expressing the general and ordinary connotation of
the term. Article 73 of the Rules and Regulations             Rodriguez' case just cannot fit in this concept. He arrived
Implementing the Local Government Code of 1991, to            in the Philippines from the US on June 25, 1985 while the
the extent that it confines the term "fugitive from           felony complaint in the Los Angeles Court was filed and
justice" to refer only to a person (the fugitive) "who has    the warrant of arrest was issued only on November 12,
been convicted by final judgment," is an inordinate and       1985, almost five (5) months after. It was clearly
undue circumscription of the law.                             impossible for Rodriguez to have known about such
                                                              felony complaint and arrest warrant at the time he left
Rodriguez v. Comelec                                          the US, as there was in fact no complaint and arrest
                                                              warrant — much less conviction — to speak of yet at
        (See Marquez v. COMELEC for background. The          such time. What prosecution or punishment then was
         Marquez decision was promulgated for the 1992        Rodriguez deliberately running away from with his
         elections. This case involves the 1995 elections)    departure from the US? The very essence of being a
                                                              "fugitive from justice" under the MARQUEZ Decision
In the May 8, 1995 election, Rodriguez and Marquez            definition, is just nowhere to be found in the
renewed their rivalry for the same position of governor.      circumstances of Rodriguez. The evidence of petitioner
This time, Marquez challenged Rodriguez' candidacy via        Rodriguez sufficiently proves that his compulsion to
petition for disqualification before the COMELEC, based       return to the Philippines was due to his desire to join and
principally on the same allegation that Rodriguez is a        participate vigorously in the political campaigns against
"fugitive from justice."                                      former President Ferdinand E. Marcos and not to evade
                                                              any charge against him in the US.
The COMELEC, allegedly having kept in mind the
Marquez Decision definition of "fugitive from justice",       When, in good faith, a person leaves the territory of a
found Rodriguez to be one. Such finding was essentially       state not his own, homeward bound, and learns
based on Marquez' documentary evidence consisting of          subsequently of charges filed against him while in the
an authenticated copy of the November 12, 1995                relative peace and service of his own country, the fact
warrant of arrest issued by the Los Angeles Municipal         that he does not subject himself to the jurisdiction of the
Court against Rodriguez, and an authenticated copy of         former state does not qualify him outright as a fugitive
the felony complaint.                                         from justice.

Rodriguez’s defense is that long before the felony            Dela Torre v. Comelec
complaint was allegedly filed, respondent was already in
the Philippines and he did not know of the filing of the      De La Torre was disqualified by COMELEC from running
same nor was he aware that he was being proceeded             for the position of Mayor of Cavinti, Laguna in the May 8,
against criminally. In a sense, thru this defense,            1995 elections citing as the ground therefor, Section
respondent implicitly contends that he cannot be              40(a) of the Local Government Code which provides that
deemed a fugitive from justice, because to be so, one         those sentenced by final judgment for an offense
must be aware of the filing of the criminal complaint, and    involving moral turpitude or for an offense punishable by
his disappearance in the place where the long arm of the      one (1) year or more of imprisonment within two (2)
law, thru the warrant of arrest, may reach him is             years after serving sentence are disqualified from
predicated on a clear desire to avoid and evade the           running for any elective local position. De La Torre was
warrant.                                                      found guilty (his conviction became final on January 18,
                                                              1991) for violation of P.D. 1612, otherwise known as the
HELD: Rodriguez is NOT a fugitive from justice.               Anti-fencing Law. De La Torre, however, argues that the
 To reiterate, a "fugitive from justice" includes not only    crime of fencing does not involve moral turpitude and
those who flee after conviction to avoid punishment but       that Section 40 (a) of the Local Government Code does
likewise who, after being charged, flee to avoid              not apply to his case inasmuch as the probation granted
prosecution (from Marquez Decision). The definition thus      him by the MTC on December 21, 1994 which suspended
indicates that the intent to evade is the compelling factor

D2010 98
                                                                                                    UP College of Law

the execution of the judgment of conviction and all other     the fact in the performance of his duty to another or
legal consequences flowing therefrom, rendered                would govern his conduct upon assumption that such
inapplicable Section 40 (a) as well.                          fact exists.

HELD: The crime of fencing involves moral turpitude.          As to WON a grant of probation affects Sec. 40(a)’s
Black’s Law Dictionary of “moral turpitude” as “an act of     applicability, the legal effect of probation is only to
baseness, vileness, or depravity in the private duties        suspend the execution of the sentence. Petitioner’s
which a man owes his fellowmen, or to society in              conviction of fencing subsists and remains totally
general, contrary to the accepted and customary rule of       unaffected notwithstanding the grant of probation. In
right and duty between man and woman or conduct               fact, a judgment of conviction in a criminal case ipso
contrary to justice, honesty, modesty, or good morals.”       facto attains finality when the accused applies for
                                                              probation, although it is not executory pending
The elements of the crime of fencing, as defined under        resolution of the application for probation.
P.D. 1612, are:
                                                              Magno v. Comelec
             5.   A crime of robbery or theft has been
                  committed;                                  A petition was filed by Montes for the disqualification of
             6.   The accused who is not a principal or       petitioner Nestor Magno as mayoralty candidate (in the
                  accomplice in the crime of robbery or       2001 election) on the ground that petitioner was
                  theft, buys, receives, possesses, keeps,    previously convicted of direct bribery of which he was
                  acquires, conceals, sells or disposes, or   discharged after application for parole on March 5, 1998.
                  buys and sells, or in any manner deals      COMELEC granted the petition of MONTES and declared
                  in any article, item, object or anything    MAGNO disqualified citing Section 12 of the Omnibus
                  of value, which have been derived from      Election Code.
                  the proceeds of the said crime;
             7.   The accused knows or should have            WON the crime of direct bribery did not involve moral
                  known that the said article, item,          turpitude and WON that Local Government Code, (citing
                  object or anything of value has been        Section 40 ) and not the Omnibus Election Code that
                  derived from the proceeds of the crime      should apply in this situation.
                  of robbery or theft; and
             8.   There is, on the part of the accused,       HELD: Direct bribery is a crime involving moral turpitude.
                  intent to gain for himself or for           The fact that the offender agrees to accept a promise or
                  another.                                    gift and deliberately commits an unjust act or refrains
                                                              from performing an official duty in exchange for some
Moral turpitude is deducible from the third element.          favors, denotes a malicious intent on the part of the
Actual knowledge by the “fence” of the fact that              offender to renege on the duties which he owes his
property received is stolen displays the same degree of       fellowmen and society in general. Also, the fact that the
malicious deprivation of one’s rightful property as that      offender takes advantage of his office and position is a
which animated the robbery or theft which, by their very      betrayal of the trust reposed on him by the public. It is a
nature, are crimes of moral turpitude. And although the       conduct clearly contrary to the accepted rules of right
participation of each felon in the unlawful taking differs    and duty, justice, honesty and good morals.
in point in time and in degree, both the “fence” and the
actual perpetrator/s of the robbery or theft invaded          The Local Government Code and not the Omnibus
one’s peaceful dominion for gain - thus deliberately          Election Code that applies in this situation. Article 12 of
reneging in the process “private duties” they owe their       the Omnibus Election Code must yield to Article 40 of the
“fellowmen” or “society” in a manner contrary to              Local Government Code.
accepted and customary rule of right and duty, justice,
honesty, or good morals                                       The Omnibus Election Code was approved on December
                                                              3, 1985 while the Local Government Code took effect on
The same underlying reason holds even if the “fence” did      January 1, 1992. In case of irreconcilable conflict
not have actual knowledge, but merely “should have            between two laws, the later enactment must prevail,
known” the origin of the property received. The words         being the more recent expression of legislative will. Legis
‘should know’ denote the fact that a person of                posteriores priores contrarias abrogant. In accordance
reasonable prudence and intelligence would ascertain

                                                                                                              99 D2010
Local Government

therewith, Section 40 of RA 7160 is deemed to have              expiration of the term for which he was elected, is
repealed Section 12 of BP 881.                                  disqualified from being a candidate for a local elective
                                                                position under Sec. 40(b) of the LGC.
Section 40 of RA 7160, insofar as it governs the
disqualifications of candidates for local positions,            HELD: Sulong is not disqualified from holding the position
assumes the nature of a special law which ought to              of mayor of Lapuyan.
prevail. The court Citied David vs. COMELEC: RA 7160 is a       Reyes vs. Commission on Elections cannot be applied to
codified set of laws that specifically applies to local         this case because the 1992 decision of the Sangguniang
government units. Section 40 thereof specially and              Panlalawigan has not until now become final. The filing
definitively provides for disqualifications of candidates       of his motion for reconsideration prevented the decision
for elective local positions. It is applicable to them only.    of Sangguniang Panlalawigan from becoming final. While
On the other hand, Section 12 of BP 881 speaks of               R.A. No. 7160 on disciplinary actions is silent on the filing
disqualifications of candidates for any public office.          of a motion for reconsideration, the same cannot be
                                                                interpreted as a prohibition against the filing of a motion
The resolution of the COMELEC declaring Magno                   for reconsideration. Indeed, considering the failure of the
disqualified from the 2001 mayoral elections is hereby          Sangguniang Panlalawigan to resolve respondent’s
reversed and set aside.                                         motion, it is unfair to the electorate to be told after they
                                                                have voted for respondent Sulong that after all he is
Lingating v. Comelec                                            disqualified.

Lingating filed a petition for disqualification against         There being no prohibition against a motion for
SULONG (May 2001 mayoral candidate) alleging that               reconsideration there can thus also be no decision
Sulong was administratively charged, found guilty (by a         finding respondent guilty to speak of.
Sangguniang Panlalawigan February 4, 1992 decision)
and ordered removed from office. Sulong denied that the         Petition for certiorari is DISMISSED; Resolution of the
decision had become final and executory since he filed a        COMELEC en banc is AFFIRMED
motion for reconsideration and/or notice of appeal
thereof on February 18, 1992. He also denied having             Flores v. Drilon
been removed from office.
                                                                The constitutionality of Sec. 13, par. (d) , of R.A. 7227,
Because COMELEC was unable to render judgment                   otherwise known as the "Bases Conversion and
before the May 2001 elections, Sulong was voted for and         Development Act of 1992," under which respondent
proclaimed mayor.                                               Mayor Richard J. Gordon of Olongapo City was appointed
                                                                Chairman and Chief Executive Officer of the Subic Bay
COMELEC (First Division) then declared Sulong                   Metropolitan Authority (SBMA), is challenged in this
disqualified citing Section 40(b) of the LGC THEN the           petition.
COMELEC en banc reversed the resolution of its First
Division, dismissing the petition for lack of merit. The        Petitioners, maintain that the proviso in par. (d) of Sec.
COMELEC en banc found that after having been found              13 infringes on Sec. 7, first par., Art. IX-B, of the
guilty by the Sangguniang Panlalawigan, Sulong was re-          Constitution, which states that "no elective official shall
elected mayor of Lapuyan Zamboanga del Sur in May               be eligible for appointment or designation in any
1992 & 1995 elections. Applying Aguinaldo vs. Santos            capacity to any public officer or position during his
ruling that re-election renders an administrative case          tenure,” because the City Mayor of Olongapo City is an
moot and academic the COMELEC en banc held that the             elective official and the subject posts are public offices;
re-election of Sulong in the 1992 and 1995 elections
would be tantamount to a condonation of the                     HELD: Gordon is ineligible for appointment as SBMA
Sangguniang Panlalawigan decision finding him guilty of         Chairman in light of the fact that he is the elective mayor
dishonesty, malversation of public funds etc.                   of Olongapo.

Lingating, in this Petition for Certiorari, contends that the   The proviso in Sec. 13 (d) of R.A. 7227 violates the
COMELEC en banc erred in applying the ruling in                 constitutional proscription against appointment or
Aguinaldo v. Commission on Elections. He cites Reyes v.         designation of elective officials to other government
Commission on Elections which held that an elective             posts.
local executive officer, who is removed before the

D2010 100
                                                                                                        UP College of Law

Sec. 7 of Art. IX-B of the Constitution expresses the policy     position of Chairman of the Board and Chief Executive of
against the concentration of several public positions in         SBMA.
one person, so that a public officer or employee may
serve full-time with dedication and thus be efficient in                                  C.   Election cases involving
the delivery of public services. It is an affirmation that a                                   Local Elective Officials
public office is a full-time job. Since this is precisely what
the constitutional proscription seeks to prevent, it needs       Galido v. Comelec
no stretching of the imagination to conclude that the
proviso contravenes Sec. 7, first par., Art. IX-B of the         Petitioner Galido and private respondent Galeon were
Constitution. The fact that the expertise of an elective         candidates during the January 1988 local elections for
official may be most beneficial to the higher interest of        mayor of Garcia-Hernandez, Bohol. Petitioner was
the body politic is of no moment.                                proclaimed duly-elected Mayor. Private respondent filed
                                                                 an election protest before the RTC which upheld the
It is argued that Sec. 94 of the Local Government Code           proclamation of petitioner. Private respondent appealed
(LGC) permits the appointment of a local elective official       RTC decision to the COMELEC. Its First Division reversed
to another post if so allowed by law or by the primary           the RTC decision and declared private respondent the
functions of his office. But, the contention is fallacious.      duly-elected mayor. After the COMELEC en banc denied
Section 94 of the LGC is not determinative of the                the petitioner’s motion for reconsideration and affirmed
constitutionality of Sec. 13, par. (d), of R.A. 7227, for no     the decision of its First Division. The COMELEC held that
legislative act can prevail over the fundamental law of          the 15 ballots in the same precinct containing the initial
the land.                                                        “C” after the name “Galido” were marked ballots and,
                                                                 therefore, invalid.
In any case, the view that an elective official may be
appointed to another post if allowed by law or by the            Undaunted, petitioner filed the present petition for
primary functions of his office ignores the clear-cut            certiorari and injunction before SC and succeeded in
difference in the wording of the two (2) paragraphs of           getting a temporary restraining order. In his comment to
Sec. 7 Art. IX-B of the Constitution. While the second           the petition, private respondent moved for dismissal,
paragraph authorizes holding of multiple offices by an           citing Article IX (C), Section 2(2), paragraph 2 of the 1987
appointive official when allowed by law or by the primary        Constitution, that “Final decisions, orders or rulings of
functions of his position, the first paragraph appears to        the COMELEC in election contests involving elective
be more stringent by not providing any exception to the          municipal offices are final and executory, and not
rule against appointment or designation of an elective           appealable.
official to the government post, except as are particularly
recognized in the Constitution itself, e.g., the President       HELD: That decisions, final orders or rulings of the
as head of the economic and planning agency; the Vice-           COMELEC in contests involving elective municipal and
President, who may be appointed Member of the                    barangay offices are final, executory and not appealable,
Cabinet; and, a member of Congress who may be                    does not preclude a recourse to this Court by way of a
designated ex officio member of the Judicial and Bar             special civil action of certiorari under Rule 65. Article IX
Council.                                                         (A), Section 7, 1987 Constitution: “Unless otherwise
                                                                 provided by this Constitution or by law, any decision,
The distinction being clear, the exemption allowed to            order, or ruling of each (Constitutional) Commission may
appointive officials in the second paragraph cannot be           be brought to the Supreme Court on certiorari by the
extended to elective officials who are governed by the           aggrieved party within thirty days from receipt thereof.”
first paragraph. The phrase "shall be appointed" in the
proviso unquestionably shows the intent to make the              The function of a writ of certiorari is to keep an inferior
SBMA posts appointive and not merely adjunct to the              court or tribunal (such as the COMELEC in the exercise of
post of Mayor of Olongapo City. Had it been the                  its quasi-judicial powers) within the bounds of its
legislative intent to make the subject positions ex officio,     jurisdiction or to prevent it from committing a grave
Congress would have, at least, avoided the word                  abuse of discretion amounting to lack or excess of
"appointed" and, instead, "ex officio" would have been           jurisdiction. Nevertheless, SC found no GAD in
used. Therefore, as an incumbent elective official,              COMELEC’s part.
respondent Gordon is ineligible for appointment to the
                                                                 Rivera v. Comelec

                                                                                                                 101 D2010
Local Government

Petitioner Juan Garcia Rivera and private respondent             starting from noon of June 30, 1992 or such date as may
Juan Mitre Garcia II were candidates for the position of         be provided for by law, except that of elective barangay
Mayor of Guinobatan, Albay, during the local elections in        officials: Provided, That all local officials first elected
January 1988. The Municipal Board of Canvassers                  during the local elections immediately following the
proclaimed Rivera as Mayor by a majority of ten votes.           ratification of the 1987 Constitution shall serve until
Garcia filed an election protest with the RTC, Legazpi City      noon of June 30, 1992.
which found Garcia to have obtained 6,376 votes as
against Rivera's 6,222. Rivera appealed to the COMELEC           (b) No local elective official shall serve for more than
which affirmed the RTC decision. Garcia commenced to             three (3) consecutive terms in the same position.
discharge the duties and functions of Mayor of                   Voluntary renunciation of the office for any length of
Guinobatan on 10 October 1990, by virtue of a writ of            time shall not be considered as an interruption in the
execution implementing the COMELEC decision of 6                 continuity of service for the full term for which the
September 1990. Rivera filed this petition for certiorari.       elective official concerned was elected.

HELD: The main thrust of the present petition for                (c) The term of office of barangay officials and members
certiorari is that the respondent COMELEC en banc                of the sangguniang kabataan shall be for three (3) years,
committed grave abuse of discretion when it affirmed             which shall begin after the regular election of barangay
the decision of its First Division, promulgated on 2 May         officials on the second Monday of May 1994.
1990, annulling the proclamation of the petitioner as the
duly elected Mayor of Guinobatan, Albay and when it did          Rivera v. Comelec
not exclude from the total votes of Garcia at least ten
(10) votes which were allegedly misappreciated in                In the May 2004 Synchronized National and Local
Garcia's favor. We have closely scrutinized the                  Elections, respondent Marino "Boking" Morales ran as
challenged COMELEC decision and find that the said               candidate for mayor of Mabalacat, Pampanga for the
decision was not arrived at capriciously or whimsically by       term commencing July 1, 2004 to June 30, 2007.
respondent COMELEC. A painstaking re-evaluation of the           Petitioners,filed with the COMELEC a petition to cancel
questioned 67 ballots was made by the COMELEC en                 respondent Morales’ Certificate of Candidacy on the
banc. Moreover, the appreciation and re-evaluation of            ground that he was elected and had served three
ballots are factual determinations. It is settled that in a      previous consecutive terms as mayor of Mabalacat. They
petition for certiorari, findings of fact of administrative      alleged that his candidacy violated Section 8, Article X of
bodies are final unless grave abuse of discretion has            the Constitution and Section 43 (b) of RA 7160.
marred such factual determinations.                              respondent Morales admitted that he was elected mayor
                                                                 of Mabalacat for the term commencing July 1, 1995 to
                          D. Term of Office: 3-Term              June 30, 1998 (first term) and July 1, 2001 to June 30,
                             Limit Rule                          2004 (third term), but he served the second term from
                                                                 July 1, 1998 to June 30, 2001 only as a "caretaker of the
Sec 8, Art X, Constitution                                       office" or as a "de facto officer" since his proclamation as
                                                                 mayor was declared void by the Regional Trial Court
Section 8, Art. X, Constitution: The term of office of           (RTC)
elective local officials, except barangay officials, which
shall be determined by law, shall be three years and no          HELD: For the three-term limit for elective local
such official shall serve for more than three consecutive        government officials to apply, two conditions or
terms. Voluntary renunciation of the office for any length       requisites must concur, to wit: (1) that the official
of time shall not be considered as an interruption in the        concerned has been elected for three (3) consecutive
continuity of his service for the full term for which he         terms in the same local government post, and (2) that he
was elected.                                                     has fully served three (3) consecutive terms.

Sec 43, LGC                                                      Respondent Morales was elected for the term July 1,
                                                                 1998 to June 30, 2001. He assumed the position. He
Section 43. Term of Office. -                                    served as mayor until June 30, 2001. He was mayor for
                                                                 the entire period notwithstanding the Decision of the
(a) The term of office of all local elective officials elected   RTC in the electoral protest case filed by petitioner Dee
after the effectivity of this Code shall be three (3) years,     ousting him (respondent) as mayor. Respondent Morales
                                                                 is now serving his fourth term. He has been mayor of

D2010 102
                                                                                                    UP College of Law

Mabalacat continuously without any break since July 1,       Borja v. Comelec
1995. In just over a month, by June 30, 2007, he will have
been mayor of Mabalacat for twelve (12) continuous           Private respondent Jose T. Capco, Jr. was elected vice-
years. The framers of the Constitution, by including this    mayor of Pateros on January 18, 1988 for a term ending
exception, wanted to establish some safeguards against       June 30, 1992. On September 2, 1989, he became
the excessive accumulation of power as a result of           mayor, by operation of law, upon the death of the
consecutive terms. Therefore, having found respondent        incumbent, Cesar Borja. On May 11, 1992, he ran and
Morales ineligible, his Certificate of Candidacy dated       was elected mayor for a term of three years which ended
December 30, 2003 should be cancelled. Not being a           on June 30, 1995. On May 8, 1995, he was reelected
candidate, the votes cast for him SHOULD NOT BE              mayor for another term of three years ending June 30,
COUNTED and must be considered stray votes.                  1998. Capco filed a certificate of candidacy for mayor of
                                                             Pateros relative to the May 11, 1998 elections.
Montebon v. Comelec                                          Petitioner Borja, Jr., also a candidate for mayor, sought
                                                             Capco’s disqualification on the theory that the latter
Petitioners Montebon and Ondy and respondent                 would have already served as mayor for three
Potencioso, Jr. were candidates for municipal councilor      consecutive terms by June 30, 1998 and would therefore
of the Municipality of Tuburan, Cebu for the May 14,         be ineligible to serve for another term after that. The
2007 Synchronized National and Local Elections. On April     COMELEC en banc declared Capco eligible to run as he
30, 2007, petitioners and other candidates for municipal     was not elected to the position of Mayor in the 1988
councilor filed a petition for disqualification against      election, but succeeded by operation of law. Thus, it is
respondent with the COMELEC alleging that respondent         not counted as 1 term for the computation of the 3 term
had been elected and served three consecutive terms as       limitation.
municipal councilor in 1998-2001, 2001-2004, and 2004-
2007. Thus, he is proscribed from running for the same       HELD: A textual analysis supports the ruling of the
position in the 2007 elections as it would be his fourth     COMELEC that Art. X, §8 contemplates service by local
consecutive term. Respondent claimed that the service        officials for three consecutive terms as a result of
of his second term in 2001-2004 was interrupted on           election. The first sentence speaks of “the term of office
January 12, 2004 when he succeeded as vice mayor of          of elective local officials” and bars “such official*s+” from
Tuburan due to the retirement of Vice Mayor Petronilo L.     serving for more than three consecutive terms.
Mendoza. Consequently, he is not disqualified from
vying for the position of municipal councilor in the 2007    The second sentence, in explaining when an elective
elections                                                    local official may be deemed to have served his full term
                                                             of office, states that “voluntary renunciation of the office
HELD: While it is undisputed that respondent was elected     for any length of time shall not be considered as an
municipal councilor for three consecutive terms, the         interruption in the continuity of his service for the full
issue lies on whether he is deemed to have fully served      term for which he was elected.”
his second term in view of his assumption of office as
vice-mayor of Tuburan on January 12, 2004. Succession        The term served must therefore be one “for which *the
in local government offices is by operation of law.          official concerned+ was elected.” The purpose of this
Section 44 of Republic Act No. 7160, provides that if a      provision is to prevent a circumvention of the limitation
permanent vacancy occurs in the office of the vice           on the number of terms an elective official may serve.
mayor, the highest ranking sanggunian member shall           Conversely, if he is not serving a term for which he was
become vice mayor. In this case, a permanent vacancy         elected because he is simply continuing the service of the
occurred in the office of the vice mayor due to the          official he succeeds, such official cannot be considered to
retirement of Vice Mayor Mendoza. Respondent, being          have fully served the term now withstanding his
the highest ranking municipal councilor, succeeded him       voluntary renunciation of office prior to its expiration.
in accordance with law. It is clear therefore that his
assumption of office as vice-mayor can in no way be          To recapitulate, the term limit for elective local officials
considered a voluntary renunciation of his office as         must be taken to refer to the right to be elected as well
municipal councilor. Thus, it is an involuntary severance    as the right to serve in the same elective position.
from his office as municipal councilor, resulting in an      Consequently, it is not enough that an individual has
interruption in the service of his 2001-2004 term.           served three consecutive terms in an elective local office,
                                                             he must also have been elected to the same position for

                                                                                                              103 D2010
Local Government

the same number of times before the disqualification can      interruption from being joined together to form a
apply.                                                        continuous service or consecutive terms After three
                                                              consecutive terms, an elective official cannot immediate
Adormeo v. Comelec                                            re-election for a fourth term, The prohibited election
                                                              refers to the next regular election for a fourth term. The
Mayor Adormeo was elected in two consecutive                  prohibited election refers to the next regular election for
elections and served out the full terms. The third time he    the same office following the same office following the
ran, he lost. However during the term of the winning          third consecutive term.
candidate, there was a recall election, which Adormeo
won. He served the unexpired term. Adormeo wants to           Any subsequent election, like a recall election, is no
run again in the next immediately succeeding elections.       longer covered by the prohibition for two reasons:

HELD: The term limit for elective local officials must be         1.       A subsequent election like a recall election,
taken to refer to the right to be elected as well as the                   is no longer an immediate reelection after
right to serve in the same elective position.                              the three consecutive terms.
Consequently, it is not enough that an individual has             2.       The intervening period constitutes an
served three consecutive terms in an elective local office,                involuntary interruption in the continuity of
he must also have been elected to the same position for                    service.
the same number of times before the disqualification can
apply. COMELEC’s ruling that private respondent was not       Mendoza v. Comelec
elected for three (3) consecutive terms should be upheld.
For nearly two years he was a private citizen. The            Petitioners Melanio L. Mendoza and Mario E. Ibarra seek
continuity of his mayorship was disrupted by his defeat       to declare respondent Leonardo B. Roman’s election as
in the 1998 elections. The time between his second term       governor of Bataan on May 14, 2001 as null and void for
and the recall election is sufficient interruption. Thus,     allegedly being contrary to Art. X, §8 of the Constitution.
there was no three consecutive terms as contemplated
in the disqualifications in the LGC.                          HELD: The Constitution does not prohibit elective local
                                                              officials from serving for more than three consecutive
Socrates v. Comelec                                           terms because, in fact, it excludes from the three-term
                                                              limit interruptions in the continuity of service, so long as
A recall was initiated for the position of Victorino Dennis   such interruptions are not due to the voluntary
M. Socrates who assumed office as Puerto Princesa’s           renunciation of the office by an incumbent. Hence, the
mayor on June 30, 2001. Edward M. Hagedorn                    period from June 28, 1994 to June 30, 1995, during
(“Hagedorn” for brevity) filed his certificate of candidacy   which respondent Leonardo B. Roman served as
for mayor in the recall election. A petition was filed to     governor of Bataan by virtue of a recall election held in
disqualify Hagedorn from running in the recall election       1993, should not be counted. Since on May 14, 2001
and to cancel his certificate of candidacy on the ground      respondent had previously served as governor of Bataan
that he is disqualified from running for a fourth             for only two consecutive terms (1995-1998 and 1998-
consecutive term, having been elected and having served       2001), his election on that day was actually only his third
as mayor of the city for three (3) consecutive full terms     term for the same position.
immediately prior to the instant recall election for the
                                                              A recall term should not be considered as one full term,
same post.
                                                              because a contrary interpretation would in effect cut
HELD: These constitutional and statutory provisions have      short the elected official’s service to less than nine years
two parts. The first part provides that an elective local     and shortchange his constituents. The desire to prevent
official cannot serve for more than three consecutive         monopoly of political power should be balanced against
terms. The clear intent is that only consecutive terms        the need to uphold the voters’ obvious preference who,
count in determining the three-term limit rule. The           in the present case, is Roman who received 97 percent of
second part states that voluntary renunciation of office      the votes cast.
for any length of time does not interrupt the continuity
                                                                                       E.   Tenure of Office
of service. The clear intent is that involuntary severance
from office for any length of time interrupts continuity of
                                                              Osmena v. Comelec
service and prevents the service before and after the

D2010 104
                                                                                                       UP College of Law

Petition assailing the constitutionality of R.A. 7056, which    Jainal v. Comelec
desynchronized the national and local elections. This, in
effect, shortened the terms of local officials to be elected    Mayor Salip Aloy Jainal and Julhatab J. Talib were
on November 1992.                                               candidates for Mayor of Indanan, Sulu – Jainal was
                                                                proclaimed the winning candidate. Talib filed a pre-
WON R.A. 7056 is unconstitutional.                              proclamation case with the COMELEC, praying for the
                                                                annulment of certain election returns. Talib claimed that
Held: Yes.
                                                                his official watchers were asked to leave the precincts
R.A. 7056 contravenes Article XVIII, Sections 2 and 5 of
                                                                before the counting and the preparation of the election
the 1987 Constitution which provides for the
                                                                returns. Furthermore, the election returns for these
synchronization of national and local elections. The said
                                                                precincts did not bear the signatures of the members of
law, on the other hand, provides for the de-
                                                                the Board of Election, and the number of votes cast
synchronization of election by mandating that there be
                                                                exceeded the number of voters. The COMELEC then
two separate elections in 1992. The term
                                                                issued a Resolution annulling the proclamation and
“synchronization” in the mentioned constitutional
                                                                ordering a recount. The COMELEC issued an Order
provision was used synonymously as the phrase holding
                                                                directing the Vice-Mayor or any councilor to cease and
simultaneously since this is the precise intent in
                                                                desist from assuming the position of Acting Mayor. Said
terminating their Office Tenure on the same day or
                                                                Order was issued during the pendency of the present
occasion. This common termination date will synchronize
                                                                petition and after Ahajan had already taken his oath and
future elections to once every three years.
                                                                assumed office as Acting Mayor pursuant to resolutions
R.A. 7056 also violated Sec. 2, Art. XVIII of the 1987          issued by the COMELEC.
Constitution which provides that the local official first
                                                                WON the COMELEC Order is valid.
elected under the Constitution shall serve until noon of
June 30, 1992. But under Sec. 3 of RA 7056, these                Held: No.
incumbent local officials shall hold over beyond June 30,       With the nullification of Jainal’s proclamation, the
1992 and shall serve until their successors shall have          position of Municipal Mayor of Indanan, Sulu became
been duly elected and qualified. The Supreme Court,             vacant. Sec. 44 of R.A. No. 7160 and Art. 83, Rule XIV of
quoting Corpus Juris Secundum, states that “it is not           the Implementing Rules of the LGC then apply – the
competent for the legislature to extend the term of             highest ranking sanggunian member shall become
officers by providing that they shall hold over until their     mayor, a tie between or among the highest ranking
successors are elected and qualified where the                  sanggunian members shall be resolved by the drawing of
constitution has in effect or by clear implication              lots, and the successor shall serve only the unexpired
prescribed the term and when the Constitution fixes the         terms of their predecessors.
day on which the official term shall begin, there is no
legislative authority to continue the office beyond that        A permanent vacancy arises when an elective local
period, even though the successors fail to qualify within       official fills a higher vacant office, refuses to assume
the time”.                                                      office, fails to qualify, dies, is removed from office,
                                                                voluntarily resigns, or is otherwise permanently
R.A. 7056 also violated the clear mandate of Sec. 8, Art. X     incapacitated to discharge the functions of his office.
of 1987 Constitution which fixed the term of office of all
elective local officials, except barangay officials, to three   Ranking in the sanggunian shall be determined on the
(3) years. If the local election will be held on the second     basis of the proportion of votes obtained by each
Monday of November 1992 under RA 7056, those to be              winning candidate to the total number of registered
elected will be serving for only two years and seven            voters in each district in the immediately preceding local
months, that is, from November 30, 1992 to June 30,             election.
1995, not three years.
                                                                The vacancy created by the nullification of Jainal’s
                         F.   Vacancies and Succession          proclamation is in the nature of a permanent vacancy
                                                                and may be qualified as a "permanent incapacity to
Sec 44 – 47, LGC                                                discharge the functions of his office. However, Ahajan’s
                                                                assumption of the office of Mayor should be understood
See above                                                       as subject to the result of the recount to be conducted in
                                                                accordance with the issuances of the COMELEC.

                                                                                                                105 D2010
Local Government

Labo v. Comelec (supra)                                      position of Governor, the Court rules that, in order to
                                                             obviate the dilemma resulting from an interregnum, the
Ramon Labo, Jr. was disqualified as Mayor of Baguio City     President, acting through her alter ego, the Secretary of
for non-compliance with the citizenship requirement of       Local Government, may remedy the situation. The
the Constitution.                                            Secretary of Government therefore had the authority to
                                                             designate Menzon as Acting Vice-Governor.
WON the person with the second highest number of
votes cast may assume the position of Mayor.                 (3) The mode of succession provided for in permanent
                                                             vacancies may likewise be observed in case of a
Held: No.                                                    temporary vacancy. Menzon’s appointment is in full
The candidate who obtained the second highest number         accord with the intent of the LGC – the contingency of
of votes cannot occupy the office that was vacant as a       having vacancies in office cannot be set aside. In a
result of the disqualification of the candidate who          republican form of government, the majority rules
obtained the highest number of votes. The simple reason      through a chosen few, and if one of them is
is that, obtaining the second highest number of votes, he    incapacitated or absent, the management of
was obviously not the choice of the people. It would be      governmental affairs will be hampered.
extremely repugnant to the basic concept of the
constitutionally guaranteed right to suffrage if a           The right to be paid the salary attached to the Office of
candidate who has not acquired the majority or plurality     the Vice-Governor is indubitable – Menzon is a de facto
of votes is proclaimed a winner and imposed as a             officer entitled to compensation.
representative of the constituency, the majority of which
have positively declared through their ballots that they     Docena v. Sangguniang Panlalawigan of
do not choose him.                                           Eastern Samar

Menzon v. Petilla                                            Luis Capito, elected as a member of the SPES, died in
                                                             office. Agustin Docena was appointed by the Secretary of
As no Governor had been proclaimed in the province of        Local Government to replace him. Docena took his oath
Leyte, the Secretary of Local Government designated          of office before Speaker Ramon Mitra of the House of
Vice-Governor Leopoldo Petilla as Acting Governor and        Representatives and thereafter assumed office. Socrates
Aurelio Menzon, a senior member of the Sangguniang           Alar was subsequently appointed by the Secretary of
Panlalawigan as Vice-Governor. Menzon took his oath of       Local Government to the position already occupied by
office before Sen. Alberto Romulo. However, in               Docena. In a First Indorsement signed by the Department
Resolution No. 505 of the Sangguniang Panlalawigan,          of Local Government, Alar’s appointment was recalled on
Menzon’s appointment was held to be invalid. In the          the basis of the earlier appointment of Docena. The SPES
meantime, Adelina Larrazabal was proclaimed Governor.        then passed Resolution No. 1, reiterating the recognition
                                                             of Alar.
WON (1) there is a vacancy, (2) the Secretary of Local
Government had the authority to designate, and (3) the       WON Docena’s appointment was permanent.
designation of Menzon is valid.
                                                             Held: Yes.
Held: Yes.                                                   The appointment, having been issued by the Secretary of
(1) There is a vacancy when there is no person lawfully      Local Government and accepted by Docena, had already
authorized to assume and exercise at present the duties      become complete and enforceable for all legal intents
of the office. The office of Vice-Governor was left vacant   and purposes at the time it was supposed to have been
when Petilla was appointed as Governor.                      superseded by the appointment in favor of Alar.
                                                             Docena’s appointment was intended to be permanent
(2) Under CA No. 558 and the Revised Administrative          and as such was valid for the unexpired portion of the
Code of 1987, the President is empowered to make             term of the deceased SPES member. Docena had already
temporary appointments in certain public offices in case     acquired security of tenure in the position and could only
of any vacancies that may occur. Considering the silence     be removed therefrom for the causes and conformably
of the LGC as regards the filling up of vacancies in the     to the procedure prescribed by the LGC.

D2010 106
                                                                                                                                     UP College of Law


Sec 469 – 490, LGC

      Position              Necessity                           Qualifications                                                Duties
1. Secretary to the     mandatory position        Qualifications                               a. Attend meetings of the sanggunian and keep a journal of its
Sanggunian                                        a. Citizen of the Philippines                proceedings;
                                                  b. Resident of the LGU concerned             b. Keep the seal of the LGU and affix the same with his
                                                  c. Of good moral character                   signature to all ordinances, resolutions, and other official acts
                                                  d. A holder of a college degree              of the sanggunian and present the same to the presiding
                                                  preferably in law, commerce or public        officer for his signature;
                                                  administration from a recognized             c. Forward to the governor or mayor for approval, copies of
                                                  college or university, and                   ordinances enacted by the sanggunian and duly certified by
                                                  e. A first grade civil service eligible or   the presiding officer;
                                                  its equivalent. (Sec 469[b])                 d. Forward to the sanggunian panlungsod or bayan or the
                                                                                               sangguniang panlungsod of component cities or sangguniang
                                                                                               bayan, copies of duly approved ordinances;
                                                                                               e. Furnish certified copies of records of public character in his
                                                                                               f. Record in a book kept for the purpose, all ordinances and
                                                                                               resolutions enacted or adopted by the sanggunian, with the
                                                                                               dates of passage and publication thereof;
                                                                                               g. Keep his office and all non-confidential records therein open
                                                                                               to the public during the usual business hours;
                                                                                               h. Translate into the dialect used by the majority of the
                                                                                               inhabitants all ordinances and resolutions immediately after
                                                                                               their approval, and cause the publication of the same;
                                                                                               i. Take custody of the local archives and, where applicable, the
                                                                                               local library and annually account for the same; and
                                                                                               j. Exercise such other powers and perform such other duties
                                                                                               and functions as may be prescribed by law or ordinance
                                                                                               relative to his position. (Sec. 469[c])
2. Treasurer            mandatory position        a. Citizen of the Philippines                a. Perform the duties provided for under Book II of the Code
                                                  b. A resident of the LGU concerned           b. Advise the governor or mayor, sanggunian, and other local
                        Appointed by the          c. Of good moral character                   government and national officials regarding disposition of local
                        Secretary of Finance      d. A holder of a college degree              government funds, and other matters relative to public
                        from a list of at least   preferably in commerce, public               finance;
                        3 ranking, eligible       administration or law from a                 c. Take custody of and exercise proper management of the
                        recommendees of           recognized college or university, and        funds of LGU;
                        the governor or           e. A first grade civil service eligible or   d. Take charge of the disbursement of all local government
                        mayor, as the case        its equivalent.                              funds and such other funds the custody of which may be
                        may be (Sec 470 [a])      f. Acquired experience in treasury or        entrusted to him;
                                                  accounting service for at least 5 years      e. Inspect private commercial and industrial establishments in
                                                  in the case of the city or provincial        relation to the implementation of tax ordinances;
                                                  treasurer, and 3 years in the case of        f. Maintain and update the tax information system of the LGU;
                                                  the municipal treasurer. (Sec 470[c])        g. In the case of the provincial treasurer, exercise technical
                                                                                               supervision over all treasury offices of component cities and
                                                                                               municipalities; and
                                                                                               h. Exercise such other powers and perform such other duties
                                                                                               and functions as may be prescribed by law or ordinance. (Sec
3.          Assistant   optional position         a. A citizen of the Philippines,             a. Assist the treasurer and perform such duties as the latter
Treasurer                                         b. Resident of the LGU concerned,            may assign to him.
                        Appointed by the          c. Of good moral character,                  b. Administer oaths concerning notices and notifications to
                        Secretary of Finance      d. A holder of a college degree              those delinquent in the payment of the real property tax and
                        from a list of at least   preferably in commerce, public               concerning official matters relating to the accounts of the
                        3 ranking, eligible       administration, or law from a                treasurer or arising in the offices of the treasurer and the
                        recommendees of           recognized college or university,            assessor. (Sec 471[c])
                        the governor or           e. A first grade civil service eligible or
                        mayor (Sec 471[a])        its equivalent,
                                                  f. Acquired at least 5 years experience
                                                  in the treasury or accounting service in
                                                  the case of the city or provincial

                                                                                                                                                107 D2010
Local Government

                                             assistant treasurer, and 3 years in the
                                             case of the municipal assistant
                                             treasurer. (Sec 471[b])
4. Assessor             mandatory position   a. Citizen of the Philippines,               a. Take charge of the assessor's office,
                                             b. A resident of the LGU concerned,          b. Perform the duties provided for under Book II of the Code,
                                             c. Of good moral character,                  c. Ensure that all laws and policies governing the appraisal and
                                             d. A holder of a college degree              assessment of real properties for taxation purposes are
                                             preferably in civil or mechanical            properly executed;
                                             engineering, commerce, or any other          d. Initiate, review, and recommend changes in policies and
                                             related course from a recognized             objectives, plans and programs, techniques, procedures and
                                             college or university,                       practices in the valuation and assessment of real properties for
                                             e. A first grade civil service eligible or   taxation purposes;
                                             its equivalent.                              e. Establish a systematic method of real property assessment;
                                             f. Acquired experience in real property      f. Install and maintain a real property identification and
                                             assessment work or in any related            accounting system,
                                             field for at least 5years in the case of     g. Prepare, install and maintain a system of tax mapping;
                                             the city or provincial assessor, and 3       h. Conduct frequent physical surveys to verify and determine
                                             years in the case of the municipal           whether all real properties within the province are properly
                                             assessor. (Sec 472[a])                       listed in the assessment rolls;
                                                                                          i. Exercise the functions of appraisal and assessment primarily
                                                                                          for taxation purposes of all real properties in the LGU;
                                                                                          j. Prepare a schedule of the fair market value for the different
                                                                                          classes of real properties;
                                                                                          k. Issue certified copies of assessment records of real property
                                                                                          and all other records relative to its assessment;
                                                                                          l. Submit every semester a report of all assessments,
                                                                                          cancellations and modifications of assessments to the local
                                                                                          chief executive and the sanggunian;
                                                                                          m. In the case of the assessor of a component city or
                                                                                          municipality attend sessions of the local board of assessment
                                                                                          appeals whenever his assessment is the subject of the appeal;
                                                                                          n. In the case of the provincial assessor, exercise technical
                                                                                          supervision and visitorial functions over all component city and
                                                                                          municipal assessors, coordinate with component city or
                                                                                          municipal assessors in the conduct of tax mapping operations
                                                                                          and all other assessment activities, and provide all forms of
                                                                                          assistance; (Sec 472[b])
                                                                                          o.          Exercise such other powers and perform such other
                                                                                          duties and functions as may be prescribed by law or ordinance.
                                                                                          (Sec 472[c])
5. Assistant Assessor   optional position    a. Citizen of the Philippines,               a. Assist the assessor and perform such other duties as the
                                             b. Resident of the LGU concerned,            latter may assign to him
                                             c. Of good moral character,                  b. Administer oaths on all declarations of real property for
                                             d. A holder of a college degree              purposes of assessment. (Sec 473[b])
                                             preferably in civil or mechanical
                                             engineering, commerce, or any related
                                             course from a recognized college or
                                             e. A first grade civil service eligible or
                                             its equivalent.
                                             f. Acquired experience in assessment
                                             or in any related field for at least
                                             3years in the case of the city or
                                             provincial assistant assessor, and 1
                                             year in the case of the city or
                                             provincial assistant assessor. (Sec
6. Accountant           mandatory position   a. Citizen of the Philippines,               a. Take charge of both the accounting and internal audit
                                             b. A resident of the LGU concerned,          services of the LGU;
                                             c. Of good moral character,                  b. Install and maintain an internal audit system in the local
                                             d. A certified public accountant.            LGU;
                                             e. Acquired experience in the treasury       c. Prepare and submit financial statements to the governor or
                                             or accounting service for at least 5         mayor and to the sanggunian;
                                             years in the case of the provincial or       d. Apprise the sanggunian and other local government officials
                                             city accountant, and 3 years in the          on the financial condition and operations of the LGU;
                                             case of the municipal accountant. (Sec       e. Certify to the availability of budgetary allotment to which

D2010 108
                                                                                                                                  UP College of Law

                                               474[a])                                      expenditures and obligations may be properly charged;
                                               f. Incumbent chief accountant in the         f. Review supporting documents before preparation of
                                               office of the treasurer shall be given       vouchers to determine completeness of requirements;
                                               preference in the appointment to the         g. Prepare statements of cash advances, liquidation, salaries,
                                               position of accountant.(Sec 474[c])          allowances, reimbursements and remittances;
                                                                                            h. Prepare statements of journal vouchers and liquidation of
                                                                                            the same and other adjustments;
                                                                                            i. Post individual disbursements to the subsidiary ledger and
                                                                                            index cards;
                                                                                            Maintain individual ledgers for officials and employees
                                                                                            pertaining to payrolls and deductions;
                                                                                            j. Record and post in index cards details of purchased furniture,
                                                                                            fixtures, and equipment, including disposal thereof, if any;
                                                                                            k. Account for all issued requests for obligations and maintain
                                                                                            and keep all records and reports related thereto;
                                                                                            l. Prepare journals and the analysis of obligations and maintain
                                                                                            and keep all records and reports related thereto; and
                                                                                            m. Exercise such other powers and perform such other duties
                                                                                            and functions as may be provided by law or ordinance. (Sec
7. Budget Officer         mandatory position   a. Citizen of the Philippines,               a. Take charge of the budget office;
                                               b. Resident of the LGU concerned,            b. Prepare forms, orders, and circulars embodying instructions
                                               c. Of good moral character,                  on budgetary and appropriation matters for the signature of
                                               d. A holder of a college degree              the governor or mayor,
                                               preferably in accounting, economics,         c. Review and consolidate the budget proposals of different
                                               public administration or any related         departments and offices;
                                               course from a recognized college or          d. Assist the governor or mayor in the preparation of the
                                               university,                                  budget and during budget hearings;
                                               e. A first grade civil service eligible or   e. Study and evaluate budgetary implications of proposed
                                               its equivalent.                              legislation and submit comments and recommendations
                                               f. Acquired experience in government         thereon;
                                               budgeting or in any related field for at     f. Submit periodic budgetary reports to the DBM;
                                               least 5 years in the case of the             g. Coordinate with the treasurer, accountant, and the planning
                                               provincial or city budget officer, and at    and development coordinator for the purpose of budgeting;
                                               least 3 years in the case of the             h. Assist the sanggunian concerned in reviewing the approved
                                               municipal budget officer. (Sec 475[a])       budgets;
                                                                                            i. Coordinate with the planning and development coordinator
                                                                                            in the formulation of the local government unit development
                                                                                            plan; (Sec 475 [b])
                                                                                            j. Exercise such other powers and perform such other duties
                                                                                            and functions as may be prescribed by law or ordinance. (Sec
8. Planning         and   mandatory position   a. Citizen of the Philippines                a. Take charge of the planning and development office
Development                                    b. A resident of the LGU concerned           b. Formulate integrated economic, social, physical, and other
Coordinator                                    c. Of good moral character                   development plans and policies for consideration of the local
                                               d. A holder of a college degree              government development council;
                                               preferably      in    urban     planning,    c. Conduct continuing studies, researches, and training
                                               development studies, economics,              programs necessary to evolve plans and programs for
                                               public administration, or any related        implementation;
                                               course from a recognized college or          d. Integrate and coordinate all sectoral plans and studies
                                               university                                   undertaken by the different functional groups or agencies;
                                               e. A first grade civil service eligible or   e. Monitor and evaluate the implementation of the different
                                               its equivalent                               development programs, projects, and activities in the local
                                               f. Acquired experience in development        government unit concerned in accordance with the approved
                                               planning or in any related field for at      development plan;
                                               least 5 years in the case of the             f. Prepare comprehensive plans and other development
                                               provincial or city planning and              planning documents for the consideration of the local
                                               development coordinator, and 3 years         development council;
                                               in the case of the municipal planning        g. Analyze the income and expenditure patterns, and
                                               and development coordinator. (Sec            formulate and recommend fiscal plans and policies for
                                               476[a])                                      consideration of the finance committee of LGU;
                                                                                            h. Promote people participation in development planning
                                                                                            within the LGU;
                                                                                            i. Exercise supervision and control over the secretariat of the
                                                                                            local development council; and (Sec 476[b])
9. Engineer               mandatory position   a. Citizen of the Philippines,               a. Act as the local building official (Sec 477[a])

                                                                                                                                             109 D2010
Local Government

                                            b. A resident of the LGU concerned,         b. Initiate, review and recommend changes in policies and
                                            c. Of good moral character,                 objectives, plans and programs, techniques, procedures and
                                            d. A licensed civil engineer                practices in infrastructure development and public works in
                                            e. Acquired experience in the practice      general;
                                            of his profession for at least 5 years in   c. Advise the governor or mayor on infrastructure, public
                                            the case of the provincial or city          works, and other engineering matters;
                                            engineer, and 3 years in the case of        d. Administer, coordinate, supervise, and control the
                                            the municipal engineer. (Sec 477[a])        construction, maintenance, improvement, and repair of roads,
                                                                                        bridges, and other engineering and public works projects;
                                                                                        e. Provide engineering services to the LGU, including
                                                                                        investigation and survey, engineering designs, feasibility
                                                                                        studies, and project management;
                                                                                        f. In the case of the provincial engineer, exercise technical
                                                                                        supervision over all engineering offices of component cities
                                                                                        and municipalities; and (Sec 477[b])
                                                                                        g. Exercise such other powers and perform such other duties
                                                                                        and functions as may be prescribed by law or ordinance.
10. Health Officer    mandatory position    a. Citizen of the Philippines,              a. Take charge of the office on health services, supervise the
                                            b. A resident of the LGU concerned,         personnel and staff of said office, formulate program
                                            c. Of good moral character, and             implementation guidelines and rules and regulations for the
                                            d. A licensed medical practitioner.         operation of the said
                                            e. Acquired experience in the practice      b.      Formulate measures for the consideration of the
                                            of his profession for at least 5 years in   sanggunian and provide technical assistance and support to
                                            the case of the provincial or city health   the governor or mayor in carrying out activities to ensure the
                                            officer, and 3 years in the case of the     delivery of basic services and provision of adequate health
                                            municipal health officer. (Sec478[a])       facilities;
                                                                                        c. Develop plans and strategies, implement the same,
                                                                                        particularly those which have to do with health programs and
                                                                                        projects which the governor or mayor, is empowered to
                                                                                        implement and which the sanggunian is empowered to provide
                                                                                        d. Formulate and implement policies, plans, programs and
                                                                                        projects to promote the health of the people;
                                                                                        e. Advise the governor or mayor and the sanggunian on
                                                                                        matters pertaining to health;
                                                                                        f. Execute and enforce all laws, ordinances and regulations
                                                                                        relating to public health;
                                                                                        g. Recommend to the sanggunian, through the local health
                                                                                        board, the passage of such ordinances as he may deem
                                                                                        necessary for the preservation of public health;
                                                                                        h. Recommend the prosecution of any violation of sanitary
                                                                                        laws, ordinances or regulations;
                                                                                        i. Direct the sanitary inspection of all business establishments
                                                                                        selling food items or providing accommodations such as hotels,
                                                                                        motels, lodging houses, pension houses, and the like, in
                                                                                        accordance with the Sanitation Code;
                                                                                        j. Conduct health information campaigns and render health
                                                                                        intelligence services;
                                                                                        k. Coordinate with other government agencies and non-
                                                                                        governmental organizations involved in the promotion and
                                                                                        delivery of health services;
                                                                                        l. In the case of the provincial health officer, exercise general
                                                                                        supervision over health officers of component cities and
                                                                                        municipalities; and
                                                                                        m. Be in the frontline of health services delivery, particularly
                                                                                        during and in the aftermath of man-made and natural disasters
                                                                                        and calamities; and (Sec478[b])
                                                                                        n. Exercise such other powers and perform such other duties
                                                                                        and functions as may be prescribed by law or ordinance.
11. Civil Registrar   mandatory: city and   a. Citizen of the Philippines,              a. Responsible for the civil registration program pursuant to
                      municipal             b. A resident of the LGU concerned,         the Civil Registry Law, the Civil Code, and other pertinent laws,
                                            c. Of good moral character,                 rules and regulations (Sec479[b])
                                            d. A holder of a college degree from a      b. Take charge of the office of the civil registry
                                            recognized college or university,           c. Develop plans and strategies and implement the same,

D2010 110
                                                                                                                               UP College of Law

                                            e. A first grade civil service eligible or   particularly those which have to do with civil registry programs
                                            its equivalent.                              and projects which the mayor is empowered to implement and
                                            f. Acquired experience in civil registry     which the sanggunian is empowered to provide for
                                            work for at least 5 years in the case of     d. Accept all registrable documents and judicial decrees
                                            the city civil registrar and 3 years in      affecting the civil status of persons;
                                            the case of the municipal civil              e. File, keep and preserve in a secure place the books required
                                            registrar. (Sec479[a])                       by law;
                                                                                         f. Transcribe and enter immediately upon receipt all registrable
                                                                                         documents and judicial decrees affecting the civil status of
                                                                                         persons in the civil registry books;
                                                                                         g. Transmit to the Office of the Civil Registrar- General
                                                                                         duplicate copies of registered documents required by law;
                                                                                         h. Issue certified transcripts or copies of any certificate or
                                                                                         registered documents upon payment of the prescribed fees to
                                                                                         the treasurer;
                                                                                         i. Receive applications for the issuance of a marriage license
                                                                                         and issue the license upon payment of the authorized fee to
                                                                                         the treasurer;
                                                                                         g. Coordinate with the NSO in conducting educational
                                                                                         campaigns for vital registration and assist in the preparation of
                                                                                         demographic and other statistics (Sec479[c])
                                                                                         h. Exercise such other powers and perform such other duties
                                                                                         and functions as may be prescribed by law or ordinance.
12. Administrator    mandatory:             a. Citizen of the Philippines,               a. Take charge of the office of the administrator
                     provincial and city,   b. A resident of the LGU concerned,          b. Develop plans and strategies and implement the same
                     optional: municipal    c. Of good moral character,                  particularly those which have to do with the management and
                                            d. A holder of a college degree              administration-related programs and projects which the
                                            preferably in public administration,         governor or mayor is empowered to implement and which the
                                            law, or any other related course from        sanggunian is empowered to provide for;
                                            a recognized college or university,          c. Assist in the coordination of the work of all the officials of
                                            e. A first grade civil service eligible or   the LGU, under the supervision, direction, and control of the
                                            its equivalent                               governor or mayor, and convene the chiefs of offices and other
                                            f. Acquired experience in management         officials of the local government unit;
                                            and administration work for at least 5       d. Establish and maintain a sound personnel program for the
                                            years in the case of the provincial or       LGU designed to promote career development and uphold the
                                            city administrator, and 3 years in the       merit principle in the local government service;
                                            case of the municipal administrator.         e. Conduct a continuing organizational development of the
                                            g. Term is coterminous with that of his      LGU with the end in view of instituting effective administrative
                                            appointing authority (Sec480[a])             reforms;
                                                                                         f. Be in the frontline of the delivery of administrative support
                                                                                         services, particularly those related to the situations during and
                                                                                         in the aftermath of man-made and natural disasters and
                                                                                         g. Recommend to the sanggunian and advise the governor and
                                                                                         mayor on all other matters relative to the management and
                                                                                         administration of the LGU (Sec480[b])
                                                                                         h. Exercise such other powers and perform such other duties
                                                                                         and functions as may be prescribed by law or ordinance.
13. Legal Officers   mandatory:             a. Citizen of the Philippines,               a. Take charge of the office of legal services
                     provincial and city,   b. A resident of the LGU,                    b. Formulate measures for the consideration of the sanggunian
                     optional: municipal    c. Of good moral character,                  and provide legal assistance and support to the governor or
                                            d. A member of the Philippine Bar            mayor, in carrying out the delivery of basic services and
                                            e. Practiced his profession for at least     provisions of adequate facilities
                                            5 years in the case of the provincial        c. Develop plans and strategies and implement the same,
                                            and city legal officer, and 3years in the    particularly those which have to do with programs and projects
                                            case of the municipal legal officer          related to legal services which the governor or mayor is
                                            f. Term of the legal officer shall be        empowered to implement and which the sanggunian is
                                            coterminous with that of his                 empowered to provide
                                            appointing authority.(Sec481[a])             d. Represent the local government unit in all civil actions and
                                                                                         special proceedings wherein the LGU or any official thereof, in
                                                                                         his official capacity, is a party;
                                                                                         e. Draft ordinances, contracts, bonds, leases and other
                                                                                         instruments, involving any interest of the LGU; and provide
                                                                                         comments and recommendations on any instruments already

                                                                                                                                          111 D2010
Local Government

                                                                                           f. Render his opinion in writing on any question of law when
                                                                                           requested to do so by the governor, mayor, or sanggunian;
                                                                                           g. Investigate or cause to be investigated any local official or
                                                                                           employee for administrative neglect or misconduct in office,
                                                                                           and recommend appropriate action;
                                                                                           h. Investigate or cause to be investigated any person, firm or
                                                                                           corporation holding any franchise or exercising any public
                                                                                           privilege for failure to comply with any term or condition in the
                                                                                           grant of such franchise or privilege, and recommending
                                                                                           appropriate action to the governor, mayor or sanggunian, as
                                                                                           the case may be;
                                                                                           i. Initiate and prosecute in the interest of the LGU any civil
                                                                                           action on any bond, lease or other contract upon any breach or
                                                                                           violation thereof;
                                                                                           j. Review and submit recommendations on ordinances
                                                                                           approved and executive orders issued by component units;
                                                                                           k. Recommend measures to the sanggunian and advise the
                                                                                           governor or mayor as the case may be on all other matters
                                                                                           related to upholding the rule of law ;
                                                                                           l. Be in the frontline of protecting human rights and
                                                                                           prosecuting any violations thereof, particularly those which
                                                                                           occur during and in the aftermath of man-made or natural
                                                                                           disasters or calamities; and (Sec481[b])
                                                                                           m. Exercise such other powers and perform such other duties
                                                                                           and functions as may be prescribed by law or ordinance.
14. Agriculturist     mandatory:              a. Citizen of the Philippines,               a. Take charge of the office for agricultural service
                      provincial; optional:   b. A resident of the LGU concerned,          b. Formulate measures and provide technical assistance and
                      city and municipal      c. Of good moral character,                  support in carrying out said measures to ensure the delivery of
                                              d. A holder of a college degree in           basic services and provision of adequate facilities relative to
                                              agriculture or any related course from       agricultural services as provided for under Section 17
                                              a recognized college or university,          c. Develop plans and strategies and implement the same,
                                              e. A first grade civil service eligible or   particularly those which have to do with agricultural programs
                                              its equivalent.                              and projects which the governor or mayor is empowered to
                                              f. Practiced his profession in               implement and which the sanggunian us empowered to
                                              agriculture or acquired experience in a      provide for
                                              related field for at least 5 years in the    d. Ensure that maximum assistance and access to resources in
                                              case of the provincial and city              the production, processing and marketing of agricultural and
                                              agriculturist, and 3years in the case of     aqua-cultural and marine products are extended to farmers,
                                              the municipal agriculturist. (Sec482[a])     fishermen and local entrepreneurs;
                                                                                           e. Conduct or cause to be conducted location-specific
                                                                                           agricultural researches and assist in making available the
                                                                                           appropriate technology arising out of and disseminating
                                                                                           information on basic research on crops, preventive and control
                                                                                           of plant diseases and pests, and other agricultural matters
                                                                                           f. Assist in the establishment and extension services of
                                                                                           demonstration farms or aqua-culture and marine products;
                                                                                           g. Enforce rules and regulations relating to agriculture and
                                                                                           h. Coordinate with government agencies and NGOs which
                                                                                           promote agricultural productivity through appropriate
                                                                                           technology compatible with environmental integrity;
                                                                                           i. Be in the frontline of delivery of basic agricultural services,
                                                                                           particularly those needed for the survival of the inhabitants
                                                                                           during and in the aftermath of man-made and natural
                                                                                           j. Recommend and advise on all matters related to agriculture
                                                                                           and aqua-culture which will improve the livelihood and living
                                                                                           conditions of the inhabitants; (Sec482[b])
                                                                                           k. Exercise such other powers and perform such other duties
                                                                                           and functions as may be prescribed by law or ordinance.
15. Social Welfare    mandatory:              a. Citizen of the Philippines,               a. Take charge of the office on social welfare and development
and     Development   provincial and city;    b. A resident of the LGU concerned,          services
Officer               optional: municipal     c. Of good moral character,                  b. Formulate measures and provide technical assistance and

D2010 112
                                                                                                                              UP College of Law

                                           d. A duly licensed social worker or a        support in carrying out measures to ensure the delivery of
                                           holder of a college degree preferably        basic services and provision of adequate facilities relative to
                                           in sociology or any other related            social welfare and development services as provided for under
                                           course from a recognized college or          Section 17
                                           university,                                  c. Develop plans and strategies and mplement the same
                                           e. A first grade civil service eligible or   particularly those which have to do with social welfare
                                           its equivalent                               programs and projects which the governor or mayor is
                                           f. Acquired experience in the practice       empowered to implement and which the sanggunian is
                                           of social work for at least 5 years in       empowered to provide for
                                           the case of the provincial or city social    d. Identify the basic needs of the needy, the disadvantaged
                                           welfare and development officer, and         and the impoverished and develop and implement appropriate
                                           3 years in the case of the municipal         measures to alleviate their problems and improve their living
                                           social welfare and development               conditions;
                                           officer. (Sec483[a])                         e. Provide relief and appropriate crisis intervention for victims
                                                                                        of abuse and exploitation and recommend appropriate
                                                                                        measures to deter further abuse and exploitation;
                                                                                        f. Assist the governor or mayor in implementing the barangay
                                                                                        level program for the total development and protection of
                                                                                        children up to six (6) years of age;
                                                                                        g. Facilitate the implementation of welfare programs for the
                                                                                        disabled, elderly, and victims of drug addiction, the
                                                                                        rehabilitation of prisoners and parolees, the prevention of
                                                                                        juvenile delinquency and such other activities which would
                                                                                        eliminate or minimize the ill-effects of poverty;
                                                                                        h. Initiate and support youth welfare programs that will
                                                                                        enhance the role of the youth in nation-building;
                                                                                        i. Coordinate with government agencies and NGOs which have
                                                                                        for their purpose the promotion and the protection of all
                                                                                        needy, disadvantaged, underprivileged or impoverished groups
                                                                                        or individuals, particularly those identified to be vulnerable
                                                                                        and high-risk to exploitation, abuse and neglect;
                                                                                        j. Be in the frontline of service delivery, particularly those
                                                                                        which have to do with immediate relief during and assistance
                                                                                        in the aftermath of man-made and natural disaster and natural
                                                                                        k. Recommend to the sanggunian and advise the governor or
                                                                                        mayor on all other matters related to social welfare and
                                                                                        development services which will improve the livelihood and
                                                                                        living conditions of the inhabitants; (Sec483[b])
                                                                                        l. Exercise such other powers and perform such other duties
                                                                                        and functions as may be prescribed by law or ordinance.
16. Environment and    optional position   a. A citizen of the Philippines,             a. Take charge of the office on environment and natural
Natural    Resources                       b. Resident of the local government          resources
Officer                                    unit concerned,                              b. Formulate measures and provide technical assistance and
                                           c. Of good moral character,                  support in carrying out measures to ensure the delivery of
                                           d. Holder of a college degree                basic services and provision of adequate facilities relative to
                                           preferably in environment, forestry,         environment and natural resources services as provided for
                                           agriculture or any related course from       under Sec 17;
                                           a recognized college or university,          c. Develop plans and strategies and implement the same,
                                           e. A first grade civil service eligible or   particularly those which have to do with environment and
                                           its equivalent                               natural resources programs and projects which the governor
                                           f.      Acquired       experience       in   or mayor is empowered to implement and which the
                                           environmental and natural resources          sanggunian is empowered to provide for;
                                           management,         conservation,     and    d. Establish, maintain, protect and preserve communal forests,
                                           utilization, of at least 5 years in the      watersheds, tree parks, mangroves, greenbelts and similar
                                           case of the provincial or city               forest projects and commercial forest;
                                           environment and natural resources            e. Provide extension services to beneficiaries of forest
                                           officer, and 3 years in the case of the      development projects and technical, financial and
                                           municipal environment and natural            infrastructure assistance;
                                           resources officer. (Sec484[a])               f. Manage and maintain seed banks and produce seedlings for
                                                                                        forests and tree parks;
                                                                                        g. Provide extension services to beneficiaries of forest
                                                                                        development projects and render assistance for natural
                                                                                        resources-related conservation and utilization activities
                                                                                        consistent with ecological balance;

                                                                                                                                         113 D2010
Local Government

                                                                                         h. Promote the small-scale mining and utilization of mineral
                                                                                         resources, particularly mining of gold;
                                                                                         i. Coordinate with government agencies and NGOs in the
                                                                                         implementation of measures to prevent and control land, air
                                                                                         and water pollution with the assistance of the DENR;
                                                                                         j. Be in the frontline of the delivery of services concerning the
                                                                                         environment and natural resources, particularly in the renewal
                                                                                         and rehabilitation of the environment during and in the
                                                                                         aftermath of man-made and natural calamities and disasters;
                                                                                         k. Recommend to the sanggunian and advise the governor or
                                                                                         mayor on all matters relative to the protection, conservation,
                                                                                         maximum utilization, application of appropriate technology
                                                                                         and other matters related to the environment and natural
                                                                                         resources; and (Sec484[b])
                                                                                         l. Exercise such other powers and perform such other duties
                                                                                         and functions as may be prescribed by law or ordinance.
17. Architect           optional position   a. Citizen of the Philippines,               a. Take charge of the office on architectural planning and
                                            b. A resident of the LGU concerned,          design
                                            c. Of good moral character,                  b.     Formulate measures for the consideration of the
                                            d. A duly licensed architect.                sanggunian and provide technical assistance and support to
                                            e. Practiced his profession for at least     the governor or mayor in carrying out measures to ensure the
                                            5 years in the case of the provincial or     delivery of basic services and provision of adequate facilities
                                            city architect, and 3 years in the case      relative to architectural planning and design as provided for
                                            of the municipal architect. (Sec485[a])      under Section 17;
                                                                                         c. Develop plans and strategies and implement the same,
                                                                                         particularly those which have to do with architectural planning
                                                                                         and design programs and projects which the governor or
                                                                                         mayor is empowered to implement and which the sanggunian
                                                                                         is empowered to provide for under this Code;
                                                                                         d. Prepare and recommend for consideration of the
                                                                                         sanggunian the architectural plan and design for the local
                                                                                         government unit or a part thereof, including the renewal of
                                                                                         slums and blighted areas, land reclamation activities, the
                                                                                         greening of land, and appropriate planning of marine and
                                                                                         foreshore areas;
                                                                                         e. Review and recommend for appropriate action of the
                                                                                         sanggunian, governor or mayor the architectural plans and
                                                                                         design submitted by governmental and non-governmental
                                                                                         entities or individuals, particularly those for undeveloped,
                                                                                         underdeveloped, and poorly-designed areas;
                                                                                         f. Coordinate with government and NGOs and individuals
                                                                                         involved in the aesthetics and the maximum utilization of the
                                                                                         land and water within the jurisdiction of the LGU, compatible
                                                                                         with environmental integrity and ecological balance.
                                                                                         g. Be in the frontline of the delivery of services involving
                                                                                         architectural planning and design, particularly those related to
                                                                                         the redesigning of spatial distribution of basic facilities and
                                                                                         physical structures during and in the aftermath of man-made
                                                                                         and natural calamities and disasters;
                                                                                         h. Recommend to the sanggunian and advise the governor or
                                                                                         mayor on all other matters relative to the architectural
                                                                                         planning and design as it relates to the total socioeconomic
                                                                                         development of the local government unit; and (Sec 485[b])
                                                                                         i. Exercise such other powers and perform such other duties
                                                                                         and functions as may be prescribed by law or ordinance.
18.       Information   optional position   a. Citizen of the Philippines,               a. Take charge of the office on public information
Officer                                     b. A resident of the LGU concerned,          b. Formulate measures and provide technical assistance and
                                            c. Of good moral character,                  support in providing the information and research data
                                            d. A holder of a college degree              required for the delivery of basic services and provision of
                                            preferably in journalism, mass               adequate facilities so that the public becomes aware of said
                                            communication or any related course          services and may fully avail of the same;
                                            from a recognized college or                 c. Develop plans and strategies and implement the same,
                                            university,                                  particularly those which have to do with public information
                                            e. A first grade civil service eligible or   and research data to support programs and projects which the

D2010 114
                                                                                                                                    UP College of Law

                                               its equivalent.                                governor or mayor is empowered to implement and which the
                                               f. Have experience in writing articles         sanggunian is empowered to provide for;
                                               and research papers, or in writing for         d. Provide relevant, adequate, and timely information to the
                                               print, television or broadcast media of        LGU and its residents;
                                               at least 3 years in the case of the            e. Furnish information and data on LGUs to government
                                               provincial or city information officer,        agencies or offices as may be required by law or ordinance;
                                               and at least 1 year in the case of             and NGOs to be furnished to said agencies and organizations;
                                               municipal information officer.                 f. Maintain effective liaison with the various sectors of the
                                               g. Term of the information officer is          community on matters and issues that affect the livelihood
                                               co-terminous with his appointing               and the quality of life of the inhabitants and encourage
                                               authority. (Sec486[a])                         support for programs of the local and national government;
                                                                                              g. Be in the frontline in providing information during and in the
                                                                                              aftermath of manmade and natural calamities and disasters,
                                                                                              with special attention to the victims thereof, to help minimize
                                                                                              injuries and casualties during and after the emergency, and to
                                                                                              accelerate relief and rehabilitation;
                                                                                              h. Recommend and advise on all other matters relative to
                                                                                              public information and research data as it relates to the total
                                                                                              socioeconomic development of the LGU; (Sec486[b])
                                                                                              i. Exercise such other powers and perform such other duties
                                                                                              and functions as may be prescribed by law or ordinance.
19.       Cooperative   optional: provincial   a. Citizen of the Philippines,                 a. Take charge of the office for the development of
Officer                 and city               b. A resident of the LGU concerned,            cooperatives
                                               c. Of good moral character,                    b. Formulate measures and provide technical assistance and
                                               d. Holder of a college degree                  support in carrying out measures to ensure the delivery of
                                               preferably in business administration          basic services and provision of facilities through the
                                               with special training in cooperatives or       development of cooperatives, and in providing access to such
                                               any related course from a recognized           services and facilities;
                                               college or university,                         c. Develop plans and strategies and implement the same,
                                               e. First grade civil service eligible or its   particularly those which have to do with the integration of
                                               equivalent                                     cooperatives principles and methods in programs and projects
                                               f. Have experience in cooperatives             which the governor or mayor is empowered to implement and
                                               organization and management of at              which the sanggunian is empowered to provide for;
                                               least 5 years in the case of the               d. Assist in the organization of cooperatives;
                                               provincial or city cooperatives officer,       e. Provide technical and other forms of assistance to existing
                                               and 3 years in the case of municipal           cooperatives to enhance their viability as an economic
                                               cooperatives officer. (Sec487[a])              enterprise and social organization;
                                                                                              f. Assist cooperatives in establishing linkages with government
                                                                                              agencies and NGOs involved in the promotion and integration
                                                                                              of the concept of cooperatives in the livelihood of the people
                                                                                              and other community activities;
                                                                                              g. Be in the frontline of cooperatives organization,
                                                                                              rehabilitation or viability-enhancement, particularly during and
                                                                                              in the aftermath of man-made and natural calamities and
                                                                                              disasters, to aid in their survival and, if necessary subsequent
                                                                                              h. Recommend and advise on all other matters relative to
                                                                                              cooperatives development and viability- enhancement which
                                                                                              will improve the livelihood and quality of life of the
                                                                                              inhabitants; (Sec487[b])
                                                                                              i. Exercise such other powers and perform such other duties
                                                                                              and functions as may be prescribed by law or ordinance.
20.        Population   optional position      a. Citizen of the Philippines,                 a. Take charge of the office on population development
Officer                                        b. A resident of the LGU concerned,            b. Formulate measures and provide technical assistance and
                                               c. Of good moral character,                    support in carrying out measures to ensure the delivery of
                                               d. A holder of a college degree with           basic services and provision of adequate facilities relative to
                                               specialized training in population             the integration of the population development principles and
                                               development from a recognized                  in providing access to said services and facilities;
                                               college or university,                         c. Develop plans and strategies and implement the same,
                                               e. A first grade civil service eligible or     particularly those which have to do with the integration of
                                               its equivalent.                                population development principles and methods in programs
                                               f.     Have     experience      in     the     and projects which the governor or mayor is empowered to
                                               implementation of programs on                  implement and which the sanggunian is empowered to provide
                                               population         development          or     for;

                                                                                                                                               115 D2010
Local Government

                                             responsible parenthood for at least 5        d. Assist the governor or mayor in the implementation of the
                                             years in the case of the provincial or       Constitutional provisions relative to population development
                                             city population officer and 3 years in       and the promotion of responsible parenthood;
                                             the case of the municipal population         e. Establish and maintain an updated data bank for program
                                             officer. (Sec488[a])                         operations, development planning and an educational
                                                                                          program to ensure the people's participation in and
                                                                                          understanding of population development;
                                                                                          f. Implement appropriate training programs responsive to the
                                                                                          cultural heritage of the inhabitants; (Sec488[b])
                                                                                          g. Exercise such other powers and perform such other duties
                                                                                          and functions as may be prescribed by law or ordinance.
21. Veterinarian       mandatory:            a. Citizen of the Philippines,               a. Take charge of the office for veterinary services;
                       provincial and city   b. A resident of the local government        b. Formulate measures and provide technical assistance and
                                             concerned,                                   support in carrying out measures to ensure the delivery of
                                             c. Of good moral character,                  basic services and provision of adequate facilities pursuant to
                                             d. A licensed doctor of veterinary           Section 17;
                                             medicine,                                    c. Develop plans and strategies and implement the same
                                             e. Have practiced his profession for at      particularly those which have to do with the veterinary-related
                                             least 3 years in the case of provincial      activities which the governor or mayor is empowered to
                                             or city veterinarian and at least 1 year     implement and which the sanggunian is empowered to provide
                                             in the case of the municipal                 for
                                             veterinarian. (Sec489[a])                    d. Advise the governor or the mayor on all matters pertaining
                                                                                          to the slaughter of animals for human consumption and the
                                                                                          regulation of slaughterhouses;
                                                                                          e. Regulate the keeping of domestic animals;
                                                                                          f. Regulate and inspect poultry, milk and dairy products for
                                                                                          public consumption;
                                                                                          g. Enforce all laws and regulations for the prevention of cruelty
                                                                                          to animals;
                                                                                          h. Take the necessary measures to eradicate, prevent or cure
                                                                                          all forms of animal diseases;
                                                                                          i. Be in the frontline of veterinary related activities, such as in
                                                                                          the outbreak of highly-contagious and deadly diseases, and in
                                                                                          situations resulting in the depletion of animals for work and
                                                                                          human consumption, particularly those arising from and in the
                                                                                          aftermath of man-made and natural calamities and disasters;
                                                                                          j. Recommend and advise on all other matters relative to
                                                                                          veterinary services which will increase the number and
                                                                                          improve the quality of livestock, poultry and other domestic
                                                                                          animals used for work or human consumption; (Sec489[b])
                                                                                          k. Exercise such other powers and perform such other duties
                                                                                          and functions as may be prescribed by law or ordinance.
22. General Services   mandatory:            a. Citizen of the Philippines,               a. Take charge of the office on general services;
Officer                provincial and city   b. A resident of the local government        b. Formulate measures and provide technical assistance and
                                             unit concerned,                              support in carrying out measures to ensure the delivery of
                                             c. Of good moral character,                  basic services and provision of adequate facilities pursuant to
                                             d. A holder of a college degree on           Section 17 and which require general services expertise and
                                             public      administration,      business    technical support services;
                                             administration and management from           c. Develop plans and strategies and implement the same,
                                             a recognized college or university,          particularly those which have to do with the general services
                                             e. A first grade civil service eligible or   supportive of the welfare of the inhabitants which the
                                             its equivalent.                              governor or mayor is empowered to implement and which the
                                             f. Have acquired experience in general       sanggunian is empowered to provide for;
                                             services, including management of            d. Take custody of and be accountable for all properties, real
                                             supply, property, solid waste disposal,      or personal, owned by the LGU and those granted to it in the
                                             and general sanitation, of at least 5        form of donation, reparation, assistance and counterpart of
                                             years in the case of the provincial or       joint projects;
                                             city general services officer, and at        e. Assign building or land space to local officials or other public
                                             least 3 years in the case of the             officials, who by law, are entitled to such space;
                                             municipal general services officer.          f. Recommend the reasonable rental rates for local
                                             (Sec490[a])                                  government properties, whether real or personal, which will
                                                                                          be leased to public or private entities
                                                                                          g. Recommend reasonable rental rates of private properties
                                                                                          which may be leased for the official use of the local

D2010 116
                                                                                                              UP College of Law

                                                                       government unit;
                                                                       h. Maintain and supervise janitorial, security, landscaping and
                                                                       other related services in all local government public buildings
                                                                       and other real property
                                                                       i. Collate and disseminate information regarding prices,
                                                                       shipping and other costs of supplies and other items
                                                                       commonly used by the LGU;
                                                                       j. Perform archival and record management with respect to
                                                                       records of offices and departments of the LGU
                                                                       k. Perform all other functions pertaining to supply and
                                                                       property management performed by the local government
                                                                       treasurer; and enforce policies on records creation,
                                                                       maintenance, and disposal;
                                                                       l. Be in the frontline of general services related activities, such
                                                                       as the possible or imminent destruction or damage to records,
                                                                       supplies, properties, and structures and the orderly and
                                                                       sanitary clearing up of waste materials or debris, particularly
                                                                       during and in the aftermath of man-made and natural
                                                                       calamities and disasters;
                                                                       m. Recommend and advise on all other matters relative to
                                                                       general services; (Sec490[b])
                                                                       n. Exercise such other powers and perform such other duties
                                                                       and functions as may be prescribed by law or ordinance.

De Rama v. CA                                                 to raise these grounds in the original pleading constitutes
                                                              a waiver.
Mayor Conrado de Rama sought for the recall of 14
municipal employees on the ground that they were              Upon the issuance of an appointment and the
“midnight” appointees of the former mayor, in violation       appointee’s assumption of position, he acquires a legal –
of Art. VII, Sec. 15 of the Constitution. The Civil Service   and not only equitable – right to the position, which
Commission declared the appointments in accordance            cannot be taken away either by revocation or by removal
with law and valid (approved by the head of the CSC           without cause and previous notice and hearing. There is
Field Office of Lucena City).                                 no showing that any of the appointees were not
                                                              qualified. They assumed their appointive positions – this
ISSUE: Whether or not the appointments were                   cannot be unilaterally revoked.
unconstitutional. Held: No.
                                                              Rule V, Sec. 9 of the Omnibus Implementing Rules of the
RULING: Rule VI, Sec. 20 of the Omnibus Implementing          Revised Administrative Code provides that an
Rules of the Revised Administrative Code provides that        appointment accepted cannot be revoked by the
appointments may be recalled on the following grounds:        appointing authority and shall remain in force and effect
(1) non-compliance with procedure, (2) failure to pass        until disapproved by the CSC.
through Selection Board, (3) violation of agreement
relative to promotion, (4 violation of other existing civil       a.     Leagues of Local Barangay Units and Elective
service laws.                                                            Officials

No law prohibits local elective officials from making         Sec 491 – 510, LGC
appointments during the last days of his or her tenure.
The “midnight” appointments prohibited by Art. VII, Sec.      Article One. Liga ng Mga Barangay
15 of the Constitution applies only to appointments
made by the President. There were no allegations of           Sec. 491. Purpose of Organization. There shall be an
fraud on the part of the outgoing mayor or that the           organization of all barangays, to be known as the Liga ng
appointments were tainted by irregularities – only            mga Barangay, for the primary purpose of determining
belatedly, as a supplemental pleading on appeal, was it       the representation of the liga in the sanggunians and for
alleged that CSC procedures were not followed (rules on       ventilating, articulating and crystallizing issues affecting
screening, posting of notices, merit and fitness). Failure    barangay government administration and securing,
                                                              through proper and legal means, solutions thereto.

                                                                                                                          117 D2010
Local Government

Sec. 492. Representation, Chapters, National Liga.              in order to promote united and concerted action to
Every barangay shall be represented in said liga by the         achieve country wide development goals;
punong barangay, or in his absence or incapacity, by a
sanggunian member duly elected for the purpose among            (c) Supplement the efforts of government in creating
its members, who shall attend all meetings or                   gainful employment within the barangay;
deliberations called by the different chapters of the liga.
                                                                (d) Adopt measures to promote the welfare of
The liga shall have chapters at the municipal, city,            barangay officials;
provincial and metropolitan political subdivision levels.
                                                                 (e) Serve as a forum of the barangays in order to forge
The municipal and city chapters of the liga shall be            linkages with government and non-governmental
composed of the barangay representatives of municipal           organizations and thereby promote the social, economic
and city barangays, respectively. The duly elected              and political well-being of the barangays; and
presidents of component municipal and city chapters
shall constitute the provincial chapter or the                  (f) Exercise such other powers and perform such other
metropolitan political subdivision chapter. The duly            duties and functions which will bring about stronger ties
elected presidents of highly-urbanized cities, provincial       between barangays and promote the welfare of the
chapters, the Metropolitan Manila chapter and                   barangay inhabitants.
metropolitan political subdivision chapters shall
                                                                Article Two. League of Municipalities
constitute the National Liga ng mga Barangay.
                                                                Sec. 496. Purpose of Organization. There shall be an
Sec. 493. Organization. The liga at the municipal, city,
                                                                organization of all municipalities, to be known as the
provincial, metropolitan political subdivision, and
                                                                League of Municipalities, for the primary purpose of
national levels directly elect a president, a vice-president,
                                                                ventilating, articulating and crystallizing issues affecting
and five (5) members of the board of directors. The
                                                                municipal government administration and securing,
board shall appoint its secretary and treasurer and create
                                                                through proper and legal means, solutions thereto.
such other positions as it may deem necessary for the
management of the chapter. A secretary-general shall be         The league shall form provincial chapters composed of
elected from among the members of the national liga             the league presidents for all component municipalities of
and shall be charged with the overall operation of the          the province.
liga on the national level. The board shall coordinate the
activities of the chapters of the liga.                         Sec. 497. Representation. Every municipality shall be
                                                                represented in the league by the municipal mayor or, in
Sec. 494. Ex Officio Membership in Sanggunians. The             his absence, by the vice mayor or a sanggunian member
duly elected presidents of the liga at the municipal, city      duly elected for the purpose by the members, who shall
and provincial levels, including the component cities and       attend all meetings and participate in the deliberations
municipalities of Metropolitan Manila, shall serve as ex-       of the league.
officio members of the sangguniang bayan, sangguniang
panlungsod, and sangguniang panlalawigan, respectively.         Sec. 498. Powers, Functions and Duties of the League of
They shall serve as such only during their term of office       Municipalities. The League of Municipalities shall:
as presidents of the liga chapters, which in no case shall
be beyond the term of office of the sanggunian                  (a) Assist the National Government in the formulation
concerned.                                                      and implementation of policies, programs and projects
                                                                affecting municipalities as a whole;
Sec. 495. Powers, Functions and Duties of the Liga ng
mga Barangay. The Liga ng mga Barangay shall:                   (b) Promote local autonomy at the municipal level;

 (a) Give priority to programs designed for the total           (c) Adopt measures for the promotion of the welfare
development of the barangays and in consonance with             of all municipalities and its officials and employees;
the policies, programs and projects of the National
Government;                                                     (d) Encourage people's participation in local
                                                                government administration in order to promote united
(b) Assist in the education of barangay residents for           and concerted action for the attainment of country wide
people's participation in local government administration       development goals;

D2010 118
                                                                                                    UP College of Law

 (e) Supplement the efforts of the National Government         (d) Encourage people's participation in local
in creating opportunities for gainful employment within        government administration in order to promote united
the municipalities;                                            and concerted action for the attainment of country wide
                                                               development goals;
 (f) Give priority to programs designed for the total
development of the municipalities in consonance with            (e) Supplement the efforts of the National Government
the policies, programs and projects of the National            in creating opportunities for gainful employment within
Government;                                                    the cities;

 (g) Serve as a forum for crystallizing and expressing         (f) Give priority to programs designed for the total
ideas, seeking the necessary assistance of the National        development of cities in consonance with the policies,
Government, and providing the private sector avenues           programs and projects of the National Government;
for cooperation in the promotion of the welfare of the
municipalities; and                                             (g) Serve as a forum for crystallizing and expressing
                                                               ideas, seeking the necessary assistance of the National
(h) Exercise such other powers and perform such other          Government and providing the private sector avenues
duties and functions as the league may prescribe for the       for cooperation in the promotion of the welfare of the
welfare of the municipalities.                                 cities; and

Article Three. League of Cities                                (h) Exercise such other powers and perform such other
                                                               duties and functions as the league may prescribe for the
Sec. 499. Purpose of Organization. There shall be an           welfare of the cities.
organization of all cities, to be known as the League of
Cities, for the primary purpose of ventilating, articulating   Article Four. League of Provinces
and crystallizing issues affecting city government
administration and securing, through proper and legal          Sec. 502. Purpose of Organization. There shall be an
means, solutions thereto.                                      organization of all provinces, to be known as the League
                                                               of Provinces, for the primary purpose of ventilating,
The league may form chapters at the provincial level for       articulating and crystallizing issues affecting provincial
the component cities of a province. Highly-urbanized           and metropolitan political subdivision government
cities may also form a chapter of the league. The              administration and securing, through proper and legal
National League shall be composed of the presidents of         means, solutions thereto. For this purpose, the
the league of highly-urbanized cities and the presidents       Metropolitan Manila Area and any metropolitan political
of the provincial chapters of the league of component          subdivision shall be considered as separate provincial
cities.                                                        units of the league.

Sec. 500. Representation. Every city shall be                  Sec. 503. Representation. Every province shall be
represented in the league by the city mayor or, in his         represented in the league by the provincial governor, or
absence, by the city vice mayor or a sanggunian member         in his absence, by the provincial vice mayor or a
duly elected for the purpose by the members, who shall         sanggunian member duly elected for the purpose by the
attend all meetings and participate in the deliberations       members, who shall attend all meetings and participate
of the league.                                                 in the deliberations of the league.

Sec. 501. Powers, Functions and Duties of the League of        Sec. 504. Powers, Functions and Duties of the League of
Cities. The League of Cities shall:                            Provinces. The league of Provinces shall:

(a) Assist the National Government in the formulation          (a) Assist the National Government in the formulation
and implementation of the policies, programs and               and implementation of the policies, programs and
projects affecting cities as a whole;                          projects affecting provinces as a whole;

(b) Promote local autonomy at the city level;                  (b) Promote local autonomy at the provincial level;

(c) Adopt measures for the promotion of the welfare            (c) Adopt measures for the promotion of the welfare
of all cities and its officials and employees;                 of all provinces and its officials and employees;

                                                                                                             119 D2010
Local Government

(d) Encourage people's participation in local                 activities of the national league. The board of directors
government administration in order to promote united          on the chapter or national level may create such other
and concerted action for the attainment of countrywide        positions as may be deemed necessary for the
development goals;                                            management of the chapters and of the national league.
                                                              The national board directors of the leagues for
 (e) Supplement the efforts of the National Government        municipalities, cities or provinces shall coordinate
in creating opportunities for gainful employment within       programs, projects and activities of the chapter and the
the province;                                                 national-level league.
(f) Give priority to programs designed for the total          Sec. 507. Constitution and By-laws of the Liga and the
development of the provinces in consonance with the           Leagues. All other matters not herein otherwise
policies, programs and projects of the National               provided for affecting the internal organization of the
Government;                                                   leagues of local government units shall be governed by
                                                              their respective constitution and by-laws which are
 (g) Serve as a forum for crystallizing and expressing        hereby made suppletory to the provision of this Chapter:
ideas, seeking the necessary assistance of the national       Provided, That said constitution and by-laws shall always
government and providing the private sector avenues for       conform to the provisions of the Constitution and
cooperation in the promotion of the welfare of the            existing laws.
provinces; and
                                                              CHAPTER 2. Leagues and Federations of Local Elective
 (h) Exercise such other powers and perform such other        Officials
duties and functions as the league may prescribe for the
welfare of the provinces and metropolitan political           Sec. 508. Organization. (a) Vice governors, vice mayors,
subdivisions.                                                 sanggunian members of barangays, municipalities,
                                                              component cities, highly-urbanized cities and provinces,
Article Five.   Provisions Common to all Leagues              and other elective local officials of local government
                                                              units, including those of the Metropolitan Manila area
Sec. 505. Funding. (a) All leagues shall derive its funds
                                                              and any metropolitan political subdivisions, may form
from contributions of member local government units
                                                              their respective leagues or federations, subject to
and from fund-raising projects and activities without the
                                                              applicable provisions of this Title and pertinent
necessity of securing permits therefor: Provided, That
                                                              provisions of this Code;
the proceeds from said fund-raising projects and
activities shall be used primarily to fund the projects for    (b) Sanggunian members of component cities and
which the said proceeds have been raised, subject to the      municipalities shall form a provincial federation and elect
pertinent provisions of this Code and the Omnibus             a board of directors and a set of officers headed by the
Election Code.                                                president. The duly elected president of the provincial
                                                              federation of sanggunian members of component cities
 (b) All funds of leagues shall be deposited as trust funds
                                                              and municipalities shall be an ex officio member of the
with its treasurer and shall be disbursed in accordance
                                                              sangguniang panlalawigan concerned and shall serve as
with the board of director's resolutions, subject to
                                                              such only during his term of office as president of the
pertinent accounting and auditing rules and regulations:
                                                              provincial federation of sanggunian members of
Provided, That the treasurer shall be bonded in an
                                                              component cities and municipalities, which in no case
amount to be determined by the board of directors. The
                                                              shall be beyond the term of office of the sanggunian
funds of a chapter shall be deposited as chapter funds
                                                              panlalawigan concerned.
and funds of the national league shall be deposited as
national funds.                                               Sec. 509. Constitution and By-laws. The leagues or
                                                              federations shall adopt a constitution and by-laws which
Sec. 506. Organizational Structure. To ensure the
                                                              shall govern their internal organization and operation:
effective and efficient administration, the leagues for
                                                              Provided, That said constitution and by-laws shall always
municipalities, cities and provinces shall elect chapter-
                                                              conform to the provision of the Constitution and existing
level and national-level boards of directors and a set of
officers headed by the president. A secretary-general
shall be chosen from among the national league                Sec. 510. Funding. The leagues and federations may
members to manage the day to day operation and                derive funds from contributions of individual league or

D2010 120
                                                                                                      UP College of Law

federation members or from fund-raising projects or             thereby leaving to the lawmakers full discretion to fix
activities. The local government unit concerned may             such term in accordance with the exigencies of public
appropriate funds to support the leagues or federation          service.
organized pursuant to this Section, subject to the
availability of funds.                                              b. Private counsel/lawyers for elective local
David v. Comelec
                                                                Alinsug v. RTC-Negros Occidental
Petitioners seek to declare as unconstitutional Sec. 43(c)
of R.A. 7160, which limited the term of office of Barangay      Zonsayda Alinsug was a regular employee of the Office of
officials to three years. Petitioners contend that under        the Mayor of Escalante Negros Occidental. Mayor
Sec. 2 of RA 6653 the term of office of barangay officials      Ponsica issued Office Order No. 31, suspending Zonsayda
shall be for five years. This is reiterated in R.A. 6679.       for one month and one day for simple misconduct
Petitioners further aver that although Sec. 43 of RA 7160       categorized as an act of insubordination.
reduced the term of office of all local elective officials to
three years, such reduction does not apply to barangay          Zonsayda filed with the RTC a petition for injunction with
officials because (1) RA 6679 is a special law applicable       damages. Mayor Ponsica, through private practitioner
only to barangays while RA 7160 is a general law which          Samuel SM Lezama, claimed that Zonsayda had not yet
applies to all other local government units; (2) RA 7160        exhausted administrative remedies and that her
does not expressly or impliedly repeal RA 6679 insofar as       suspension was in accordance with law. Alinsug moved
the term of barangay officials is concerned; (3) while Sec.     that the respondents be all declared in default on the
8 of Article X of the 1987 constitution fixes the term of       ground that, since the respondents were sued in their
elective local officials at three years, the same provision     official capacities, they should have been represented by
states that the term of barangay officials "shall be            either the municipal legal officer or the provincial legal
determined by law"; and (4) thus, it follows that the           officer or prosecutor as provided for by Sec. 481 (b) [i]
constitutional intention is to grant barangay officials any     and [3] of the Local Government Code. The respondents
term, except three years.                                       opposed the motion manifesting that the municipality of
                                                                Escalante has no legal officer.
The COMELEC maintains that RA 7160 repealed all other
special laws relied upon by the Petitioner.                     WON private counsel may represent municipal officials
                                                                sued in their official capacities.
WON the term of the barangay officials should be limited
only to three years.                                            Held: Yes.
                                                                It appears that the law allows a private counsel to be
Held: Yes.                                                      hired by a municipality only when the municipality is an
R.A. 7160 was enacted later than RA 6679. In case of an         adverse party in a case involving the provincial
irreconciliable conflict between two laws of different          government or another municipality or city within the
vintages, the later enactment prevails. Also, R.A. 7160 is      province. This has its apparent origin in De Guia v. The
a codified set of laws that specifically applies to local       Auditor General where the Court held that the
government units. It specifically provides that the term        municipality's authority to employ a private attorney is
of office of barangay officials shall be for three years.       expressly limited only to situations where the provincial
With such particularity, the provision cannot be deemed         fiscal would be disqualified to serve and represent it.
a general law.
                                                                But would these proscriptions include public officials?
Petitioners posit that by excepting barangay officials          Not necessarily. It can happen that a government official,
whose "term shall be determined by law" from the                ostensibly acting in his official capacity and sued in that
general provision fixing the term of "elective local            capacity, is later held to have exceeded his authority. On
officials" at three years, the Constitution thereby             the one hand, his defense would have then been
impliedly prohibits Congress from legislating a three year      underwritten by the people's money which ordinarily
term for such officers. This is legally flawed. The             should have been his personal expense. On the other
Constitution did not expressly prohibit Congress from           hand, personal liability can attach to him without,
fixing any term of office for barangay officials. It merely     however, his having had the benefit of assistance of a
left the determination of such term to the lawmaking            counsel of his own choice.
body, without any specific limitation or prohibition,

                                                                                                               121 D2010
Local Government

In the discharge of governmental functions, municipal         WON Atty. Mendiola has the authority to file the petition
corporations are responsible for the acts of its officers,    in behalf of the municipality.
except if and when, the only to the extent that, they
have acted by authority of the law, and in conformity         Held: No.
with the requirements thereof. Also, a government             Private attorneys cannot represent a province or
official sued in his official capacity may engage the         municipality in lawsuits; only the provincial fiscal and the
services of private counsel when the complaint contains       municipal attorney can represent a province or
other allegations and a prayer for moral damages, which,      municipality in their lawsuits. The provision is
if due from the defendants, must be satisfied by them in      mandatory. The municipality's authority to employ a
their private capacity.                                       private lawyer is expressly limited only to situations
                                                              where the provincial fiscal is disqualified to represent it.
The key then to resolving the issue of whether a local        The fact that the provincial fiscal was disqualified to
government official may secure the services of private        handle the case must appear on record. In the instant
counsel, in an action filed against him in his official       case, there is nothing in the record to show that the
capacity, lies on the nature of the action and the relief     provincial fiscal is disqualified; the appearance of herein
that is sought.                                               private counsel is without authority of law.

While the petition below was filed against respondents        Also, the fiscal's refusal to represent the municipality is
as public officials, its allegations were also aimed at       not a legal justification for employing the services of
questioning certain acts that can well bring the case         private counsel. A fiscal cannot refuse to perform his
beyond the mere confines of official functions; thus          functions on grounds not provided for by law without
                                                              violating his oath of office. Instead of engaging the
The petition then went on to claim moral and exemplary        services of a special attorney, the municipal council
damages, as well as litigation expenses, as shown by its      should request the Secretary of Justice to appoint an
prayer. Moral damages cannot generally be awarded             acting provincial fiscal in place of the provincial fiscal
unless they are the proximate result of a wrongful act or     who has declined, (Sec. 1679, Administrative Code).
omission. Exemplary damages, on the other hand, are
not awarded if the defendant had not acted in a wanton,       Furthermore, even assuming that the representation of
oppressive or malevolent manner nor in the absence of         the municipality by Atty. Mendiola was duly authorized,
gross or reckless negligence. A public official, who in the   said authority is deemed to have been revoked by the
performance of his duty acts in such fashion, does so in      municipality when the latter, through the municipal
excess of authority, and his actions would be ultra vires     mayor and without said counsel's participation, entered
that can thereby result in an incurrence of personal          into a compromise agreement with the respondent. A
liability.                                                    client, by appearing personally and presenting a motion
                                                              by himself, is considered to have impliedly dismissed his
Municipality of Pililia v. CA                                 lawyer.

RTC rendered judgment in favor of the Municipality of         Ramos v. CA
Pililla, Rizal, against the Philippine Petroleum
Corporation, ordering the latter defendant to pay the         A petition was filed for the Declaration of Nullity of
amount of P5,301,385.00 representing the tax on               Municipal Ordinances and the contract of lease over a
business due from the defendant under Section 9(A) of         commercial arcade to be constructed in the municipality
Municipal Tax Ordinance No. 1 of said municipality.           of Baliuag, Bulacan. Atty. Romanillos manifested that he
                                                              was counsel for the municipality filing a motion to
When Atty. Mendiola ffiled a petition for certiorari with     dismiss and an amended answer. The provincial
the SC, the PPC filed a motion questioning his authority      attorney, Atty. Regalado, who first filed the answer,
to represent petitioner municipality. The CA dismissed        appeared as collaborating counsel. However, the
the petition for having been filed by a private counsel in    Provincial Fiscal (Regalado) did not appear. It was Atty.
violation of law and jurisprudence but without prejudice      Romanillos who worked the case for the municipality.
to the filing of a similar petition by the Municipality of
Pililla through the proper provincial or municipal legal      The petitioners questioned the personality of Atty.
officer.                                                      Romanillos to appear as counsel of the municipality. In a
                                                              joint statement, Atty. Romanillos withdrew as counsel
                                                              for the municipality and Atty. Regalado, as collaborating

D2010 122
                                                                                                      UP College of Law

counsel adopted the entire proceedings participated            EXCEPT that in interest of substantial justice, the
in/undertaken by Atty. Romanillos. The judge denied the        municipality may adopt the work already performed in
petitioners’ motion to disqualify.                             good faith by such private lawyer, which work is
                                                               beneficial to it, provided:
WON private lawyer is authorized to represent the
Municipality in its Lawsuits?                                      1.   No injustice it thereby heaped on the adverse
Held: NO                                                           2.   No compensation in any guise is paid therefor
General Rule: Private counsel may not represent                         by said municipality to the private lawyer.
municipality or province in lawsuits.
                                                               Unless so expressly adopted, the private lawyers work
Section 1683 of the Revised Administrative Code                cannot bind the municipality. The proceedings already
provides that it is the duty of fiscal to represent            done are declared null and void for being participated in
provinces and provincial subdivisions in litigation EXCEPT     by unauthorized counsel.
in cases where:
                                                               The Court believes that conferring legitimacy to the
    1.   Original jurisdiction is vested in the SC             appearance of Atty. Romanillos would not cause
    2.   The municipality or municipal district in             substantial prejudice on petitioners. Requiring a new trial
         question is a party adverse to the provincial         on the mere legal technicality that the municipality was
         government or to some other municipality or           not represented by a legally authorized counsel would
         municipal district in the same province.              not serve the interest of justice.
    3.   He, or his wife, or child, is pecuniarily involved,
         as heir legatee, creditor or otherwise.               Salalima v. Guingona
The above provision is complemented by Section 3, RA           An administrative complaint was filed against Albay
2264, the Local Autonomy Law. The provision is                 Governor Salalima, Vice-Governor Azafla, and several
mandatory. The municipality's authority to employ a            members of the Albay Sangguniang Panlalawigan
private lawyer is expressly limited only to situations         because of the retainer contract for legal services
where the provincial fiscal is disqualified to represent it.   entered into between the Province of Albay and Atty.
This strict coherence to the letter of the law appears to      Cornago and the Cortes & Reyna Law Firm (private
have been dictated by the fact that the municipality           lawyers), and the disbursement of public funds in
should not be burdened with expenses of hiring a private       payment thereof.
lawyer and that the interests of the municipality would
be best protected if a government lawyer handles its           WON respondents have incurred administrative liability
litigations.                                                   in entering into the retainer agreement and making
                                                               payments pursuant thereto. (The retainer was for a case
None of the exemptions are present in this case. In            filed by NPC against the province).
addition, for the exceptions to apply, the fact that the
provincial fiscal was disqualified to handle the               Held: Yes
municipality's case must appear on record. There is            Sec. 481 of the Local Government Code which is based
nothing in the records to show that the provincial fiscal is   on Section 1681 of the Revised Administrative Code
disqualified to act as counsel for the Municipality. There     requires the appointment of a legal officer to represent
is also no estoppel on the part of the plaintiffs because      the local government unit in all civil actions and special
the legality of the representation of an unauthorized          proceedings wherein the local government unit or any
counsel may be raised at any stage of the proceedings.         official thereof, in his official capacity is a party; EXCEPT
                                                               that in actions or proceeding where a component city or
WON Collaboration with private counsel is allowed?             municipality is a party adverse to the provincial
                                                               government or to another component city or
Held: NO
                                                               municipality, a special legal officer may be employed to
General rule: Private counsel may not represent the
                                                               represent the adverse party.
municipality/province even if only in collaboration with
authorized government lawyers.                                 Local government units cannot be represented by private
                                                               lawyers and it is solely the Provincial Fiscal who can
                                                               rightfully represent them. Moreover, the entire

                                                                                                                123 D2010
Local Government

transaction was attended by irregularities (i.e. No prior       Atty. Cornago which is a different entity, the province
written approval of Solicitor General and COA before the        disbursed money to the Cortes & Reyna Law Firm
disbursements were made, the resolution passed only             although the latter did not appear as counsel for the
authorized the governor to sign a retainer contract with        Province in the SC case, the attorney’s fees were
the Cortes & Reyna Loaw Firm yet he also signed with            unreasonable = P38.5 Million).

                                                                                              DISCIPLINARY ACTIONS

    A.    Sec 60 – 68, LGC                                      Suspension is temporary. It may be imposed for no more
                                                                than sixty days, a longer suspension is unjust and
See above                                                       unreasonable, and nothing less than tyranny. Since the
                                                                Mayor is facing ten administrative charges, the Mayor is
Ganzon v. CA and Artieda v. Santos                              in fact facing the possibility of 600 days of suspension, in
(joint case)                                                    the event that all ten cases yield prima facie findings. The
                                                                Court is not of course tolerating misfeasance in public
A series of administrative complaints (10) were filed           office but it is certainly another question to make him
against Mayor Ganzon (Mayor of Iloilo City) by city             serve 600 days of suspension, which is effectively, to
officials on various charges: abuse of authority,               suspend him out of office. The Court is aware that only
oppression, grave misconduct and others. Secretary of           the third suspension is under questions, and that any talk
Local Government, Hon. Santos, issued a preventive              of future suspensions is in fact premature. The fact
suspension order for 60 days. A second 60 day                   remains, however, that Mayor Ganzon has been made to
suspension was ordered but Mayor Ganzon was able to             serve a total of 120 days of suspension and the possibility
obtain a restraining order and a writ of preliminary            of sixty days more is arguably around the corner which
injunction in the RTC. The second preventive suspension         amounts to a violation of the Local Government Code
was not enforced.                                               which brings to light a pattern of suspensions intended
                                                                to suspend the Mayor the rest of his natural tenure. The
Amidst the two successive suspensions, Mayor Ganzon             Court is simply foreclosing what appears to us as a
instituted an action for prohibition against the                concerted effort of the State to perpetuate an arbitrary
respondent in the RTC. Meanwhile, the respondent                act.
issued a third order for another 60 day preventive
suspension (3rd time in 20 months), designating Vice-           Espiritu v. Melgar
Mayor Malabor as acting mayor. Undaunted, Mayor
Ganzon commenced before the CA, a petition for                  Garing filed a sworn letter-complaint to the Secretary
prohibition. The CA rendered judgment dismissing the            Santos of DILG, the Provincial Governor of Oriental
cases.                                                          Mindoro Espiritu and to the Presidential Action Center,
                                                                charging Mayor Melgar of Naujan. Oriental Mindoro,
WON the several suspensions imposed upon Mayon
                                                                with grave misconduct, oppression, abuse of authority,
Ganzon are proper.
                                                                culpable violation of the Constitution and conduct
Held: No                                                        prejudicial to the best interest of the public service.
The plain truth is that this Court has been uncomfortable       Melgar allegedly assaulted Garing and ordered his arrest
with suspensions because it is out of the ordinary to have      and detention without filing any charges until his release
a vacancy in local government. The sole objective of a          the following day.
suspension is simply "to prevent the accused from
                                                                Mayor Melgar submitted his answer wherein he said that
hampering the normal cause of the investigation with his
                                                                while he was delivering a speech during a graduation
influence and authority over possible witnesses" or to
                                                                ceremony, Garing suddenly clapped causing disturbance
keep him off "the records and other evidence." It is a
                                                                on the part of the audience. When the Mayor ended his
means, and no more, to assist prosecutors in firming up a
                                                                speech, he instructed a policeman to investigate Garing.
case, if any, against an erring local official. Under the LGC
                                                                It appeared that Garing was drunk. The mayor informed
(section 63), a suspension cannot exceed sixty days. It
                                                                Garing to go home but he refused to go and only did so
need not be exactly sixty days long if a shorter period is
                                                                the following morning.
sufficient and it ought to be lifted if prosecutors have
achieved their purpose in a shorter span.

D2010 124
                                                                                                     UP College of Law

The Sangguniang Panlalawigan of Oriental Mindoro               suspension of Mayor Melgar was maintained by the TRO
passed Resolution No 55, recommending to the                   and therefore has already been served, he is deemed
Provincial Governor that the Mayor be preventively             reinstated in office without prejudice to the continuation
suspended for 45 days pending the investigation of the         of the administrative investigation of the charges against
administrative complaint. When the mayor received the          him.
order of suspension, he filed a Petition for Certiorari with
Preliminary Injunction with prayer for Restraining Order       Aguinaldo v. Santos
in the RTC. The RTC judge issued a writ of preliminary
injunction enjoining Governor Espiritu from                    Aguinaldo was the duly elected Governor of the province
implementing the Order of suspension against Mayor             of Cagayan. After the December 1989 coup d'etat was
Melgar. On appeal, Governor Espiritu contends that the         crushed, the DILG Secretary Santos sent a telegram &
trial judge erred in granting the preliminary injunction       letter to Governor Aguinaldo requiring him to show
since the Governor is empowered to place an elective           cause why he should not be suspended or removed from
municipal official under preventive suspension pending         office for disloyalty to the Republic. A sworn complaint
decision of an administrative case against the elective        was also filed by Mayors of several municipalities in
municipal official.                                            Cagayan against Aguinaldo for acts committed during the
                                                               coup. Aguinaldo denied being privy to the planning of the
WON the governor has the power to suspend the mayor            coup or actively participating in its execution, though he
                                                               admitted that he was sympathetic to the cause of the
Held: Yes                                                      rebel soldiers.
Under Section 63 LGC, the provincial governor is
authorized by law to preventively suspend the municipal        The Secretary suspended petitioner from office for 60
mayor anytime after the issues had been joined and any         days from notice, pending the outcome of the formal
of the following grounds were shown to exist:                  investigation. Later, the Secretary rendered a decision
                                                               finding petition guilty as charged and ordering his
    1.   When there is reasonable ground to believe that       removal from office. The Vice Governor Vargas was
         the respondent has committed the act or acts          installed as Governor. Aguinaldo appealed. While the
         complained of.                                        case was pending before the SC, Aguinaldo filed his
    2.   When the evidence of culpability is strong.           certificate of candidacy for the position of Governor of
    3.   When the gravity of the offense so warrants.          Cagayan. Three petitions for disqualification were filed
    4.   When the continuance in office of the                 against him on the ground that he had been removed
         respondent could influence the witnesses or           from office. The Comelec granted the petition. Later, this
         pose a threat to the safety and integrity of the      was reversed on the ground that the decision of the
         records and other evidence.                           Secretary has not yet attained finality and is still pending
                                                               review with the Court. As Aguinaldo won by a landslide
There is nothing improper in suspending an officer
                                                               margin in the elections, the resolution paved the way for
before the charges against him are heard and before he
                                                               his eventual proclamation as Governor of Cagayan.
is given an opportunity to prove his innocence.
Preventive suspension is allowed so that the respondent        WON the Secretary has the power to suspend or remove
may not hamper the normal course of the investigation          local government officials as alter ego of the President
through the use of his influence and authority over
possible witnesses.Since the mayor believed that his           Held: Yes
preventive suspension was unjustified and politically          The power of the Secretary to remove local government
motivated, he should have sought relief first from the         officials is anchored on both the Constitution and a
Secretary of DILG, not from the courts. Mayor Melgar's         statutory grant from the legislative branch. The
direct recourse to the courts without exhausting               constitutional basis is provided by Articles VII (17) and X
administrative remedies was premature. The RTC had no          (4) of the 1987 Constitution which vest in the President
jurisdiction over Special Civil Action No. R-5003 and          the power of control over all executive departments,
gravely abused its discretion in refusing to dismiss the       bureaus and offices and the power of general supervision
case. As a general rule, the office or body that is invested   over local governments. It is a constitutional doctrine
with the power of removal or suspension should be the          that the acts of the department head are presumptively
sole judge of the necessity and sufficiency of the cause.      the acts of the President unless expressly rejected by
However, in this case, since the 60-day preventive             him. Furthermore, it cannot be said that BP337 was

                                                                                                               125 D2010
Local Government

repealed by the effectivity of the present Constitution as    turn over the office to the incumbent vice mayor but he
both the 1973 and 1987 Constitution grants to the             refused to accept the service of the order. Thereafter,
legislature the power and authority to enact a local          Reyes filed a certificate of candidacy with the Comelec
government code, which provides for the manner of             but a petition for disqualification was filed against him.
removal of local government officials. The power of the       Thus, the Comelec canceled Reyes’s certificate of
DILG secretary to remove local elective government            candidacy. However, the Municipal Board of Canvassers
officials is found in Secs. 60 and 61 of BP 337. As to        of Bongabong unaware of the disqualification of Reyes
Aguinaldo’s argument of the want of authority of the          by the Comelec, proclaimed him the duly-elected mayor.
Secretary to appoint Vargas as Governor, Section 48 (1)       The Comelec en banc affirmed. Reyes argues that his
of B.P. Blg. 337 shows otherwise. Equally without merit is    election on May 8, 1995 is a bar to his disqualification.
petitioner's claim that before he could be suspended or
removed from office, proof beyond reasonable doubt is         Garcia, who obtained the highest number of votes next
required because he is charged with a penal offense of        to Reyes intervened, contending that because Reyes was
disloyalty to the Republic which is defined and penalized     disqualified, he was entitled to be proclaimed mayor.
under Article 137 of the RPC. Petitioner is not being         The Comelec en banc denied Garcia’s prayer.
prosecuted criminally, but administratively where the
quantum of proof required is only substantial evidence.       WON the decision of the Sangguniang Panlalawigan is
                                                              not yet final because he has not been served a copy
Aguinaldo’s re-election to the position of Governor of        thereof.
Cagayan has rendered the administrative case pending
before Us moot and academic. It appears that after the        Held: No
canvassing of votes, petitioner garnered the most             The failure of the Sangguniang Panlalawigan to deliver a
number of votes among the candidates for governor of          copy of its decision was due to the refusal of petitioner
Cagayan province. The rule is that a public official cannot   and his counsel to receive the decision. Repeated
be removed for administrative misconduct committed            attempts had been made to serve the decision on Reyes
during a prior term, since his re-election to office          personally and by registered mail, but Reyes refused to
operates as a condonation of the officer's previous           receive the decision. If a judgment or decision is not
misconduct to the extent of cutting off the right to          delivered to a party for reasons attributable to him,
remove him therefor. The foregoing rule, however, finds       service is deemed completed and the judgment or
no application to criminal cases pending against              decision will be considered validly served as long as it can
petitioner for acts he may have committed during the          be shown that the attempt to deliver it to him would be
failed coup.                                                  valid were it not for his or his counsel's refusal to receive
                                                              it. Reyes’s refusal to receive the decision may, therefore,
Reyes v. Comelec                                              be construed as a waiver on his part to have a copy of
                                                              the decision.
Reyes was the incumbent mayor of the municipality of
                                                              Petitioner was given sufficient notice of the decision.
Bongabong, Oriental Mindoro. An administrative
                                                              Rather than resist the service, he should have received
complaint was filed against him with the Sangguniang
                                                              the decision and taken an appeal to the Office of the
Panlalawigan by Dr. Manalo. It was alleged that Reyes
                                                              President in accordance with R.A. No. 7160 Section 67.
exacted and collected P50,000,00 from each market stall
                                                              But petitioner did not do so. Accordingly, the decision
holder in the Bongabong Public Market. Also, that certain
                                                              became final 30 days after the first service upon
checks issued to him by the National Reconciliation and
                                                              petitioner. Thus, when the elections were held the
Development Program of the DILG were never received
                                                              decision of the Sangguniang Panlalawigan had already
by the Municipal Treasurer nor reflected in the books of
                                                              become final and executory. The filing of a petition for
accounts of the same officer; and that he took 27 heads
                                                              certiorari with the RTC did not prevent the
of cattle from beneficiaries of a cattle dispersal program.
                                                              administrative decision from attaining finality. An original
The Sangguniang Panlalawigan found petitioner guilty of
                                                              action of certiorari is an independent action and does
the charges and ordered his removal from office.
                                                              not interrupt the course of the principal action nor the
Reyes filed a petition for certiorari, prohibition and        running of the reglementary period involved in the
injunction with the RTC of Oriental Mindoro. Later, the       proceeding.
Presiding Officer of the Sangguniang Panlalawigan issued
                                                              Consequently, to arrest the course of the principal action
an order for Reyes to vacate the position of mayor and to
                                                              during the pendency of the certiorari proceedings, there

D2010 126
                                                                                                     UP College of Law

must be a restraining order or a writ of preliminary           Councilors. The respondents were charged with having
injunction from the appellate court directed to the lower      violated R.A No. 3019, as amended; Articles 170 and 171
court. In the case at bar, although a temporary                RPC; and R.A. No. 6713. Councilors Dionson and Bercede
restraining order was issued by the Regional Trial Court,      averred that respondent officials, acting in conspiracy,
no preliminary injunction was subsequently issued. The         had caused the alteration and/or falsification of
temporary restraining order issued expired after 20 days.      Ordinance No. 018/92 by increasing the allocated
From that moment on, there was no more legal barrier           appropriation therein without authority from the
to the service of the decision upon petitioner.                Sangguniang Panlungsod of Mandaue City.

WON petitioner’s reelection rendered the administrative        Aside from opposing the motion for preventive
charges against him moot and academic                          suspension, respondent officials prayed for the dismissal
                                                               of the complaint on the ground that the Ombudsman
Held: No                                                       Hagad supposedly was bereft of jurisdiction to try, hear
This case is different from Aguinaldo v. Santos. Here,         and decide the administrative case filed against them
although Reyes brought an action to question the               since, under Section 63 LGC, the power to investigate
decision in the administrative case, the TRO issued in the     and impose administrative sanctions against said local
action he brought lapsed with the result that the decision     officials, as well as to effect their preventive suspension,
was served on petitioner and became final. Thus,               had now been vested with the Office of the President.
because petitioner failed to appeal to the Office of the       The Office of the Deputy Ombudsman denied the motion
President, he was validly removed from office and,             to dismiss and recommended the preventive suspension
pursuant to Section 40(b) of the LGC, he was disqualified      of respondent officials, except City Budget Officer Guido,
from running for reelection.                                   until the administrative case would have been finally
                                                               resolved by the Ombudsman.
It is noteworthy that at the time the Aguinaldo cases
were decided there was no provision similar to Section         A petition for prohibition, with prayer for a writ of
40(b) which disqualifies any person from running for any       preliminary injunction and temporary restraining order
elective position on the ground that he has been               was filed by respondent officials with the RTC. The RTC
removed as a result of an administrative case. R.A. No.        issued a restraining order directed at the Ombudsman,
7160 could not be given retroactive effect. Furthermore,       enjoining him from enforcing the preventive suspension.
the Aguinaldo decision has not yet attained finality. As
indicated earlier, the decision of the then Secretary of       WON the Ombudsman has jurisdiction over the present
Local Government was questioned by the petitioner in           case
this Court and that to date, the petition remains
unresolved.                                                    Held: Yes
                                                               The general investigatory power of the Ombudsman is
Garcia's plea that the votes cast for Reyes be invalidated     decreed by Section 13(1,) Article X1, of the 1987
is without merit. The candidate who obtains the second         Constitution, while his statutory mandate to act on
highest number of votes may not be proclaimed winner           administrative complaints is contained in Section 19 of
in case the winning candidate is disqualified. To              R.A. No. 6770. Section 21 of the same statute names the
simplistically assume that the second placer would have        officials who could be subject to the disciplinary
received the other votes would be to substitute our            authority of the Ombudsman. Taken in conjunction with
judgment for the mind of the voter. The votes cast for         Section 24 of R.A. No. 6770, the Office of the
Reyes are presumed to have been cast in the belief that        Ombudsman correspondingly has the authority to decree
Reyes was qualified and for that reason cannot be              preventive suspension on any public officer or employee
treated as stray, void, or meaningless. The subsequent         under investigation by it.
finding that he is disqualified cannot retroact to the date
of the elections so as to invalidate the votes cast for him.   The argument of the respondents that the disciplinary
                                                               authority of the Ombudsman over local officials has been
Hagad v. Gozo-Dadole                                           removed by the subsequent enactment of the Local
                                                               Government Code of 1991 is without merit. Although
Criminal and administrative complaints were filed in the       Section 63 of the Local Government Code provides that
Office of the Deputy Ombudsman against Mayor Ouano,            preventive suspension can only be imposed by: ". . . the
Vice-Mayor Cañete and Sangguniang Panlungsod                   President if the respondent is an elective official of a
Member Mayol of Mandaue City, by Mandaue City                  province, a highly urbanized or an independent

                                                                                                              127 D2010
Local Government

component city; . . ." There is nothing in the LGC to                                    oppression or grave          of
indicate that it has repealed, whether expressly or                                      misconduct         or   2.   The evidence of
                                                                                         neglect     in    the        guilt is strong
impliedly, the pertinent provisions of the Ombudsman                                     performance        of   3.   The gravity of the
Act. The two statutes on the specific matter in question                                 duty, or                     offense so warrants
are not so inconsistent, let alone irreconcilable, as to                            b.   The charges should      4.   The continuance in
compel us to only uphold one and strike down the other.                                  warrant       removal        office      of   the
                                                                                         from the service, or         respondent could
Well settled is the rule that repeals of laws by implication                        c.   The     respondent’s         influence        the
are not favored, and that courts must generally assume                                   continued stay in            witnesses or pose a
their congruent application. The two laws must be                                        office          would        threat to the safety
absolutely incompatible, and a clear finding thereof must                                prejudice the case           and integrity of the
                                                                                         filed against him            records and other
surface, before the inference of implied repeal may be                                                                evidence
drawn. The rule is expressed in the maxim, interpretare
et concordare leqibus esf optimus interpretendi: “every
statute must be so interpreted and brought into accord                      Salalima v. Guingona (supra)
with other laws as to form a uniform system of
jurisprudence.” All doubts must be resolved against any                     Administratrive Order No. 153 was signed by the
implied repeal, and all efforts should be exerted in order                  President and respondent Teofisto Guingona, which
to harmonize and give effect to all laws on the subject.                    approved the findings of an Ad Hoc Committee holding
                                                                            Salalima et al liable in four (4) consolidated
The authority to conduct administrative investigation                       administrative cases. Petitioners were elective officials
and to impose preventive suspension over elective                           of the Province of Albay, and were handed out penalties
provincial or city officials was at that time entrusted to
                                                                            in the following manner: 1) 5 months suspension for
the Minister of Local Government until it became                            Albay Governor Salalima and 4 months suspension for
concurrent with the Ombudsman upon the enactment of                         the other respondents for abuse of authority, due to the
R.A No. 6770 (Sec. 21 & 24), to the extent of the
                                                                            passage of an illegal ordinance which deprived the
common grant, the LGC did not effect a change from                          barangays of Tiwi and Daraga of their share in
what already prevailed, the modification being only in                      delinquency payments made by Napocor to the
the substitution of the Secretary of Local Government by                    government; 2) 6 months suspension for Salalima and
the Office of the President.                                                Azana, 4 months for all the other respondents for abuse
                                                                            of authority under Section 60 of the LGC, when they
Respondent local officials contend that the 6-month
                                                                            hired private lawyers (Cortes & Reyna Law Firm) to
preventive suspension without pay under Section 24 of
                                                                            represent them in their case in the Supreme Court and
the Ombudsman Act is much too repugnant to the 60-
                                                                            disbursed public money to do so; 3) 4 months suspension
day preventive suspension provided by Section 63 LGC to
                                                                            each for oppression and abuse of authority, when they
even now maintain its application. This contention is
                                                                            assumed jurisdiction and hastily and arbitrarily meted
without merit. The two provisions govern differently and
                                                                            out suspensions to Tiwi Mayor Corral pending the
there is justification for the imposition of the 6 month
                                                                            administrative cases she had filed against the
preventive suspension.
                                                                            respondents; and 4) 5 months suspension to Governor
           Ombudsman                                RA 7160                 Salalima for abuse of authority and gross negligence for
                                                                            failing to impose and collect damages from RYU
6 month preventive suspension           60 day preventive suspension,       Construction Corp when the latter incurred in delay.
                                        at any time after the issues
                                        have been joined
                                                                            Petitioners challenge AO 153 on the grounds that: 1) the
                                                                            AO effectively suspends petitioners for periods ranging
All public officials (Elective     or   Elective officials only after the   from twelve to twenty months; 2) the Office of the
appointive) under investigation.        issues are joined.                  President committed grave abuse of discretion in
                                                                            suspending petitioners for administrative offenses
Grounds for preventive suspension:      Grounds     for       preventive
(S. 24, RA 9770)                        suspension:                         allegedly committed during prior terms.

     1.   The evidence of guilt              1.    There      is     a      Held: 1) Petitioners contend that the challenged
          should be strong, AND                    reasonable ground        administrative order deprived them of their respective
          a.   The charge against                  to believe that the      offices without procedural and substantive due process.
               the     officer    or               respondent      has
               employee       should               committed the act        Their suspensions ranging from twelve months to twenty
               involve dishonestly,                or acts complained       months or for the entire duration of their unexpired

D2010 128
                                                                                                    UP College of Law

term, which was then only seven months, constituted             having been dismissed. On the third instance when Basco
permanent disenfranchisement or removal from office in          was again elected Councilor, petitioner Grego filed with
clear violation of Section 60 of R.A. No. 7160 which            the COMELEC a petition praying for Basco's
mandates that an elective local official may be removed         disqualification, for the suspension of his proclamation,
from office by order of the court. However, Section             and for the declaration of seventh placer Romualdo S.
66(b) of R. A. No. 7160 expressly provides that the             Maranan as the sixth duly elected Councilor of Manila's
penalty of suspension shall not exceed the unexpired            Second District. While the case was ongoing, the Manila
term of the respondent or a period of six (6) months for        City Board of Canvassers proclaimed Basco as a duly
every administrative offense, nor shall said penalty be a       elected councilor for the Second District of Manila,
bar to the candidacy of the respondent so suspended as          placing sixth among several candidates who vied for the
long as he meets the qualifications for the office.             seats. Basco immediately took his oath of office before
Administrative Offense means every act or conduct or            the Honorable Ma. Ruby Bithao-Camarista, Presiding
omission which amounts to, or constitutes any of the            Judge, Metropolitan Trial Court, Branch I, Manila.
grounds for disciplinary action. The Office of the
President committed no grave abuse of discretion in             HELD: Section 40 (b) of the LGC disqualifies those
imposing the penalty of suspension, although the                removed from office as a result of an administrative case
aggregate thereof exceeded six months and the                   from running for any elective position. However, it does
unexpired portion of the petitioners' term of office. The       NOT apply retroactively to those removed from office
fact remains that the suspension imposed for each               before it took effect on January 1, 1992. Well-settled is
administrative offense did not exceed six months and            the principle that while the Legislature has the power to
there was an express provision that the successive              pass retroactive laws which do not impair the obligation
service of the suspension should not exceed the                 of contracts, or affect injuriously vested rights, it is
unexpired portion of the term of office of the petitioners.     equally true that statutes are not to be construed as
2) Governor Salalima could no longer be held liable in          intended to have a retroactive effect so as to affect
connection with the negotiated contract RYU                     pending proceedings, unless such intent is expressly
Construction, nor could the petitioners be held                 declared or clearly and necessarily implied from the
administratively liable for the execution in November           language of the enactment. There is no provision in the
1989 of the retainer contract with Atty. Jesus Cornago          statute which would clearly indicate that the same
and the Cortes and Reyna Law Firm. This is so because           operates retroactively. Lex prospicit, non respicit. As
public officials cannot be subject to disciplinary action for   such, the issue of whether or not Basco’s election to
administrative misconduct committed during a prior              office in the 1988, 1992 and 1995 elections wipe away
term. His reelection to office operates a condonation of        and condone the administrative penalty against him is
the officer's previous misconduct to the extent of cutting      beside the point since he is deemed NOT subject to
off the right to remove him therefor. This doctrine of          disqualification under Sec 40 (b) of the LGC. Also, Basco
forgiveness or condonation cannot, however, apply to            is deemed NOT to have circumvented the prohibition in
criminal acts which the reelected official may have             the Tordesillas decision since under the former Civil
committed during his previous term. 3) The grant of the         Service Decree, (the law applicable at the time of the
power to remove elective local officials by the Oversight       decision) “reinstatement” referred only to an appointive
Committee to “the disciplining authority” in drafting the       position. Moreover, there is no reason why the Manila
Implementing Rules for the LGC is ultra vires; such power       City BOC should not have proclaimed Basco as the sixth
is vested only with the court.                                  winning City Councilor. Absent any determination of
                                                                irregularity in the election returns, as well as an order
Grego v. Comelec                                                enjoining the canvassing and proclamation of the winner,
                                                                it is a mandatory and ministerial duty of the Board of
October 31, 1981 (before the effectivity of the LGC),           Canvassers concerned to count the votes based on such
Basco was removed from his position as Deputy Sheriff           returns and declare the result. Lastly, Romualdo S.
(“with prejudice to reinstatement to any position in the        Maranan, the seventh placer, may NOT be legally
national or local government and its agencies and               declared a winning candidate since Basco was not
instrumentalities or GOCC’s”, in the words of the Court)        disqualified.
upon a finding of serious misconduct in an administrative
complaint lodged by Nena Tordesillas. Basco then ran as         Joson v. Executive Secretary Torres
a candidate for Councilor on two consecutive occasions
and won, with subsequent challenges to his election

                                                                                                             129 D2010
Local Government

Members of the Sangguniang Panlalawigan of Nueva               the power to discipline. The DILG did not err when it
Ecija filed a letter-complaint with the Office of the          recommended preventive suspension, which may be
President charging petitioner Governor Joson with grave        imposed by the Disciplining Authority at any time (a)
misconduct and abuse of authority, praying for his             after the issues are joined; (b) when the evidence of guilt
suspension and removal from office. Governor Joson had         is strong; and (c) given the gravity of the offense, there is
allegedly barged into the Hall during a scheduled session      great probability that the respondent, who continues to
of the SP and angrily kicked the door and chairs in the        hold office, could influence the witnesses or pose a
Hall and uttered threatening words at respondents while        threat to the safety and integrity of the records and
men with firearms encircled the area. Acting on the            other evidence. However, the rejection of petitioner's
complaint, President Ramos ordered Secretary of                right to a formal investigation denied him procedural due
Internal and Local Government Robert Barbers “take             process. The records show that petitioner filed a motion
appropriate preemptive and investigative actions, but to       for formal investigation. An erring elective local official
break not the peace”. Upon recommendation of                   has rights akin to the constitutional rights of an accused.
Secretary Barbers, Executive Secretary Ruben Torres            These rights are essentially part of procedural due
issued an order, by authority of the President, placing        process. The local elective official has the (1) right to
petitioner under preventive suspension for sixty (60)          appear and defend himself in person or by counsel; (2)
days pending investigation of the charges against him.         the right to confront and cross-examine the witnesses
Joson filed a petition for certiorari and prohibition with     against him; and (3) the right to compulsory attendance
the Court of Appeals challenging the order of preventive       of witness and the production of documentary evidence.
suspension and the order of default, which was                 Petitioner's right to a formal investigation was not
dismissed. Petitioner alleges that subsequent to the           satisfied when the complaint against him was decided on
institution of this petition, the SILG rendered a resolution   the basis of position papers. The procedure of requiring
on the case finding him guilty of the offenses charged,        position papers in lieu of a hearing in administrative
whose finding was based on the position papers and             cases is expressly allowed with respect to appointive
affidavits of witnesses submitted by the parties. The          officials but not to those elected. An elective official,
Executive Secretary, by authority of the President, then       elected by popular vote, is directly responsible to the
adopted the findings and recommendation of the DILG            community that elected him. Suspension and removal
Secretary and imposed a six-month suspension. Joson            are thus imposed only after the elective official is
now questions the CA decision affirming his preventive         accorded his rights and the evidence against him strongly
suspension and the implementation of the SILG                  dictates their imposition.
Resoultion without formal investigation.
                                                               Conducto v. Monzon
HELD: An administrative complaint against an elective
official must be verified and filed with the proper            Judge Iluminado Monzon was charged with ignorance of
government office. A complaint against an elective             the law for deliberately refusing to suspend a barangay
provincial or city official must be filed with the Office of   chairman who was charged with unlawful appointment
the President, one against an elective municipal official      before his sala. Barangay chairman Benjamin Maghirang
must be filed with the Sangguniang Panlalawigan, while         was charged with violation of Section 394 of the Local
that of a barangay official must be filed before the           Government Code and Article 244 of the Revised Penal
Sangguniang Panlungsod or Sangguniang Bayan. Joson is          Code for appointing his sister-in-law as barangay
an elective provincial official, thus the complaint against    secretary. The Office of the City Prosecutor dismissed
him was properly filed with the Office of the President.       the complaint, stating that the appointment was made
According to petitioner, the complaint was not verified        before the effectivity of the Local Government Code of
by private respondents. However, the defect was not            1991. Complainant was later able to secure an Opinion
fatal. The requirement was deemed waived by the                from the DILG Director Jacob Montesa, which declared
President himself when he acted on the complaint.              that the appointment issued by Maghirang to his sister-
Petitioner also claims undue delegation of the                 in-law violated the Local Government Code in effect prior
disciplining authority to the DILG. Jurisdiction over          to that of 1991. This prompted the Office of the City
administrative disciplinary actions against elective local     Prosecutor to file an information with the Municipal Trial
officials is lodged in two authorities: the Disciplining       Court of San Pablo. Respondent judge issued a warrant
Authority (the President or the Executive Secretary) and       for Maghirang’s arrest. A motion for suspension was
the Investigating Authority (the DILG, as per A. O. No.        filed pursuant to Sec. 13 of RA 3019 or the Anti Graft and
23). What is delegated is the power to investigate, not        Corrupt Practices Act (which provides that any

D2010 130
                                                                                                     UP College of Law

incumbent public officer or official under criminal            alter, amend, or contravene a provision of law such as
prosecution under Title 7, Book II of the RPC shall be         the LGC. Such power to remove elective local officials
suspended). Respondent judge denied the motion on              from service is lodged exclusively with the courts.
the ground that offenses committed during a prior term
shall not be cause for suspension during the present           Sangguniang Barangay of Don Mariano
term. In denying a motion for reconsideration of the           v. Punong Barangay Martines
same, Monzon stated that preventive suspension only
applies if there is an administrative case against the         Severino Martinez was administratively charged with
official filed at the same time as the criminal charge.        Dishonesty and Graft and Corruption by petitioner
                                                               through the filing of a verified complaint before the
HELD: There is misplaced reliance by the judge upon the        Sangguniang Bayan as the disciplining authority over
case of Pascual vs Provincial Board of Nueva Ecija. The        elective barangay officials pursuant to Section 64 of RA
doctrine of forgiveness or condonation finds no                7160. The complaint was later amended for Dishonesty,
application in criminal liability. It was subsequently held    Misconduct in Office and Violation of the Anti-Graft and
in Ingco vs. Sanchez that the reelection of a public officer   Corrupt Practices Act.
does not wipe away any criminal liability incurred by him
in a previous term. Section 13 of RA 3019 makes it             The Sangguniang Bayan rendered its Decision which
mandatory upon the Court to suspend any public officer         imposed upon Martinez the penalty of removal from
against whom a valid information is filed for a violation      office. The decision was conveyed to the mayor of
of Title 7, Book II of the RPC or any offense involving        Bayombong, Nueva Ecija. The mayor, however, issued a
fraud upon government or public funds or property.             Memo wherein he stated that the Sangguniang Bayan
Respondent judge is fined P5,000 for ignorance of the          has no power to order Martinez’ removal from office.
law and given a warning against committing similar acts        However, the decision remains valid until reversed.
in the future.
                                                               WON the Sanggunian may remove Martinez, an elective
Pablico v. Villapando                                          local official, from office.

An administrative complaint was filed with the                 Held: No.
Sangguniang Panlalawigan of Palawan against then               Section 60 of the Local Government Code conferred
Mayor of San Vicente, Palawan Alejandro Villapando for         upon the courts the power to remove elective local
abuse of authority and culpable violation of the               officials from office. During the deliberations of the
Constitution because he entered into a consultancy             Senate on the Local Government Code,[16] the
agreement with Orlando Tiape, a defeated mayoralty             legislative intent to confine to the courts, i.e., RTCs, the
candidate. Complainants argue that this amounted to            Sandiganbayan and the appellate courts, jurisdiction over
appointment to a government position within the                cases involving the removal of elective local officials was
prohibited one-year period under Article IX-B, Sec. 6 of       evident.
the 1987 Constitution. The Sangguniang Panlalawigan
                                                               In Salalima v. Guingona, Jr., the Court en banc
found respondent guilty and imposed on him the penalty
                                                               categorically ruled that the Office of the President is
of dismissal from service, and was affirmed by the Office
                                                               without any power to remove elected officials, since the
of the President. Vice-mayor Pablico took his oath as
                                                               power is exclusively vested in the proper courts as
municipal mayor in place of Villapando. The Court of
                                                               expressly provided for in the last paragraph of Section 60
Appeals declared the decisions of the SP and OP void,
                                                               of the LGC. It further invalidated Article 125, Rule XIX of
and ordered Pablico to vacate the Office of the Mayor of
                                                               IRR. The Court nullified the rule since the Oversight
San Vicente, Palawan.
                                                               Committee that prepared the Rules and Regulations of
HELD: The last paragraph of Sec. 60 of the Local               the Local Government Code exceeded its authority when
Government Code clearly provides that the dismissal            it granted to the disciplining authority the power to
from service of an erring elective local official may only     remove elective officials, a power which the law itself
be decreed by a court of law. Although Article 124(b),         granted only to the proper courts. Thus, it is clear that
Rule XIX of the Rules and Regulations Implementing the         under the law, the Sangguniang Bayan is not vested with
Local Government Code adds that such removal may be            the power to remove Martinez.
had by the disciplining authority (pertaining to the
                                                               Petitioner contends that administrative cases involving
Sangguniang Panlalawigan), no rule or regulation may
                                                               elective barangay officials may be filed with, heard and

                                                                                                              131 D2010
Local Government

decided by the Sangguniang Panlungsod or Sangguniang           The doctrine of separation of powers is not absolute in
Bayan concerned, which can, thereafter, impose a               its application; rather, it should be applied in accordance
penalty of removal from office. It further claims that the     with the principle of checks and balances. The removal
courts are merely tasked with issuing the order of             from office of elective officials must not be tainted with
removal, after the Sangguniang Panlungsod or                   partisan politics and used to defeat the will of the voting
Sangguniang Bayan finds that a penalty of removal is           public. The local government units are not deprived of
warranted.                                                     the right to discipline local elective officials; rather, they
                                                               are prevented from imposing the extreme penalty of
The aforementioned position put forward by the                 dismissal.
petitioner would run counter to the rationale for making
the removal of elective officials an exclusive judicial        Cases of Sexual Harassment versus elective local
prerogative. In Pablico v. Villapando, the court declared      government officials and local government
that:The law on suspension or removal of elective public       employees, heads of departments
officials must be strictly construed and applied, and the
authority in whom such power of suspension or removal          Civil Service Administrative Rule on
is vested must exercise it with utmost good faith, for         Sexual Harassment and RA No 7877
what is involved is not just an ordinary public official but
one chosen by the people through the exercise of their         See attachments
constitutional right of suffrage. Their will must not be put
to naught by the caprice or partisanship of the                Book I, Title 2, Chapter 4, LGC (Sec 60 –
disciplining authority. Where the disciplining authority is    68)
given only the power to suspend and not the power to
remove, it should not be permitted to manipulate the           See above
law by usurping the power to remove. (Emphasis
supplied.)                                                         B. Disciplinary Actions over Local Appointive
The rule which confers to the proper courts the power to
remove an elective local official from office is intended as   Sec 84 – 89, LGC
a check against any capriciousness or partisan activity by
the disciplining authority.                                    Administrative discipline (Sec 84)
As the law stands, Section 61 of the Local Government          Investigation and adjudication of administrative
Code provides for the procedure for the filing of an           complaints against appointive local officials and
administrative case against an erring elective barangay        employees as well as their suspension and removal shall
official before the Sangguniang Panlungsod or                  be in accordance with the civil service law and rules and
Sangguniang Bayan. However, the Sangguniang                    other pertinent laws.
Panlungsod or Sangguniang Bayan cannot order the
removal of an erring elective barangay official from           The results of such administrative investigations shall be
office, as the courts are exclusively vested with this         reported to the Civil Service Commission.
power under Section 60 of the Local Government Code.
Thus, if the acts allegedly committed by the barangay          Preventive suspension of appointive local officials and
official are of a grave nature and, if found guilty, would     employees (Sec 85)
merit the penalty of removal from office, the case should
be filed with the regional trial court. Once the court         Who may impose:
assumes jurisdiction, it retains jurisdiction over the case
even if it would be subsequently apparent during the                   The local chief executive
trial that a penalty less than removal from office is
                                                               When to impose:
appropriate. On the other hand, the most extreme
penalty that the Sangguniang Panlungsod or Sangguniang                 Pending investigation after filing of
Bayan may impose on the erring elective barangay                        administrative charges against the subordinate
official is suspension; if it deems that the removal of the             official or employee which involves:
official from service is warranted, then it can resolve that                 o Dishonesty
the proper charges be filed in court.                                        o Oppression

D2010 132
                                                                                                          UP College of Law

              o    Grave misconduct                               5.           Reprimand
              o    Neglect in the performance of duty             6.           Other disciplinary actions
              o    If there is reason to believe that the
                   respondent is guilty of the charges      Appeal
                   which would warrant his removal from
                   the service                                            APPEALABLE                       NOT APPEALABLE
                                                                If the penalty imposed is              If the penalty imposed
Duration of Preventive Suspension:                              heavier than suspension of             is suspension without
                                                                thirty (30) days                       pay for not more than
        Not exceeding sixty (60) days                                                                 thirty (30) days

What happens after preventive suspension:
                                                            Where to appeal:
The suspended official shall be automatically reinstated
in office without prejudice to the continuation of the      Civil Service Commission (judgment must be rendered
administrative proceedings against him until its            within 30 days from receipt of appeal)
                                                            Execution pending appeal (Sec 88)
NOTE: If the delay in the proceedings of the case of the
case is due to the fault, neglect, or request of the        An appeal shall not prevent the execution of a decision
respondent, the time of the delay shall not be counted in   of removal or suspension of a respondent-appellant.
computing the period of suspension herein provided.
                                                            In case the respondent-appellant is EXONERATED, he
Administrative investigation (Sec 86)                       shall be reinstated to his position with all the rights and
                                                            privileges appurtenant thereto from the time he had
Who may perform:                                            been deprived thereof.

        Any person or committee duly authorized by the     Prohibited business and pecuniary interest (Sec 89)
         local chief executive
                                                                  1.       Engage in any business transaction with the
How performed:                                                             local government unit in which he is:
                                                                                a. an official, or
The person or committee duly authorized shall conduct                           b. employee, o
hearings on the cases brought against appointive local                          c. over which he has the power of
officials and employees.                                                            supervision, or with any of its
                                                                                d. authorized boards,
The investigating body shall submit their findings and                          e. officials,
recommendations to the local chief executive concerned                          f. agents, or
within fifteen (15) days from conclusion of the hearings.                       g. attorney,
Duration of Administrative Proceedings (Rendition of        whereby money is to be paid, or property or anything of
Judgment):                                                  value is to be transferred, directly or indirectly, out of the
                                                            resources of the LGU to such person or firm;
        90 days from the time the respondent is
         formally notified of the charges.                        2.       Hold such interests in any cockpit or other
                                                                           games licensed by an LGU;
Disciplinary jurisdiction (Sec 87)
                                                                  3.       Purchase any real estate or other property
Imposable penalties:                                                       forfeited in favor of such LGU
                                                                                a. for unpaid taxes or assessment, or
    1.        Removal from service
    2.        Demotion in rank
    3.        Suspension for not more than one (1) year      The provision is unclear whether the imposition of demotion,
                                                            reprimands etc. are also final and not appealable. The provision speaks
              without pay                                   only of suspension without pay for not more than thirty days which is
    4.        Fine in an amount not exceeding six (6)       not appeable.
              months salary

                                                                                                                     133 D2010
Local Government

             b.    by virtue of a legal process at the        instant case, Coloyan, who filed the appeal, cannot be
                   instance of the said local official;       considered an aggrieved party because he is not the
    4.   Be a surety for any person contracting or doing      respondent in the administrative case below. Moreover,
         business with the LGU for which a surety is          The remedy of appeal may be availed of only in a case
         required; and                                        where the respondent is found guilty of the charges filed
    5.   Possess or use any public property of the LGU        against him. But when the respondent is exonerated of
         for private purposes.                                said charges, as in this case, there is no occasion for
                                                              appeal. The CSC decision is set aside and the decision of
Other prohibited businesses and interests as provided         the Quezon City Mayor is reinstated (Complaint against
under R.A. 6713 shall also be applicable.                     Mendez dismissed).

Mendez v. CSC                                                 Macalingag and Carlos v. Chang

Then Acting Register of Deeds of Quezon City Vicente N.       Pursuant to an administrative charge against him for
Coloyan filed an administrative complaint against the         dishonesty, neglect of duty, and act prejudicial to the
petitioner, a legal research assistant in the Quezon City     best interest of the service, an Order of Preventive
Office of the City Attorney, for Gross Misconduct and         suspension was issued against Roberto Chang, then the
Dishonesty, allegedly for having torn off a portion of        acting municipal treasurer of Makati. Said Order was
Transfer Certificate of Title No. 209287 from the registry    signed by Lorinda Carlos, the Executive director of the
book of Quezon City and for having pocketed it. After         Bureau of Local Government, and Victor Macalincag,
three months of investigation, then Quezon City Mayor         Undersecretary of Finance, who was then the acting
Adelina Rodriguez dismissed the said complaint against        Secretary. Chang filed a complaint for prohibition with
the petitioner for insufficiency of evidence. Coloyan         preliminary injunction with the lower court. The trial
appealed to the Merit Systems Protection Board (MSPB)         court found in that in order for preventive suspension to
reversed the decision of the Mayor and dismissed              take effect, there are two steps involved: 1) service of
Mendez from the service. The CSC affirmed the MSPB            the copy the order on the respondent, and 2)
decision. Mendez filed a motion for reconsideration,          designation of his replacement. The order of preventive
assailing the reversal of the city mayor's decision by the    suspension was held to have been incomplete and
MSPB and the CSC on the ground that Coloyan is not an         without effect since an acting municipal treasurer had
aggrieved party or "party adversely affected by the           yet to be appointed to replace Chang.
decision" allowed by law to file an appeal. Moreover, the
petitioner claimed that his exoneration by the city mayor     HELD: Preventive suspension is governed by Sec. 41 of
is unappealable pursuant to Section 37, paragraph (b) of      P.D. 807 or the Civil Service Law, which does not require
P.D. 807.                                                     a replacement to be designated for the Order to take
                                                              effect. BP 337 (the LGC in effect at the time) provides for
HELD: P.D. 807, otherwise known as The Philippine Civil       the automatic assumption of the assistant municipal
Service Law, does not contemplate a review of decisions       treasurer or next in rank officer in case of suspension of
exonerating officers or employees from administrative         the municipal treasurer. There can be no question that
charges. Section 37 paragraph (a) thereof, provides: "The     the Order of Preventive Suspension became effective
Commission shall decide upon appeal all administrative        upon respondent Chang’s receipt thereof. Chang argues
disciplinary cases involving the imposition of a penalty of   that EO 392, which gave rise to the creation of the
suspension for more than thirty days, or fine in an           Metropolitan Manila Authority, vested in the President
amount exceeding thirty days' salary, demotion in rank        of the Philippines the power to appoint the municipal
or salary or transfer, removal or dismissal from office "     treasurer, and thus only the President may suspend or
Said provision must be read together with Section 39          remove him. However, Section 8 of EO 392 provides that
paragraph (a) of P.D. 805 which contemplates: "Appeals,       the appointments made by the President of the
where allowable, shall be made by the party adversely         Philippines shall be subject to the Civil Service Law, rules
affected by the decision . . ." The phrase "party             and regulations. Moreover, the Office of the Municipal
adversely affected by the decision" refers to the             Treasurer unquestionably falls under the Department of
government employee against whom the administrative           Finance. Hence, the Secretary of Finance is the proper
case is filed for the purpose of disciplinary action which    disciplining authority to issue the preventive suspension
may take the form of suspension, demotion in rank or          order. Even assuming that the power to appoint includes
salary, transfer, removal or dismissal from office. In the    the power to discipline (as argued by Chang), Acting

D2010 134
                                                                                                    UP College of Law

Secretary Macalingag, as Secretary of Finance, is the alter   strong; (2) [w]hen the respondent is a recidivist x x x; and
ego of the President. It is therefore within his authority    (3) *w+hen the respondent is notoriously undesirable.”
to preventively suspend Chang.                                Technical rules of procedure and evidence are not strictly
                                                              applied; due process in the administrative context
Garcia v. Pajaro and the City of Dagupan                      cannot be fully equated with that in the strict judicial
Sebastian Garcia is an employee at the City Treasurer’s
Office, Dagupan City. He was ordered suspended by City        The power to discipline is specifically granted by Section
Treasurer Juanito Pajaro and directed the withholding of      47 of the Administrative Code of 1987 to heads of
his salary because of the Formal Charge filed against him.    departments, agencies and instrumentalities, provinces
However, Pajaro continued reporting for work because          and cities. On the other hand, the power to commence
he did not honor the suspension order as the City             administrative proceedings against a subordinate officer
Treasurer acted as the complainant and that there was         or employee is granted by Section 34 of the Omnibus
no complaint against him from the Office of the City          Rules Implementing Book V of the said Administrative
Mayor.                                                        Code to the secretary of a department, the head of office
                                                              of equivalent rank, the head of a local government unit,
Juanito Pajaro, the City Treasurer of Dagupan City,           the chief of an agency, the regional director or a person
claimed that Garcia has been rating unsatisfactory in his     with a sworn written complaint. Further, the city
performance for several semesters, which is the reason        treasurer may institute, motu propio, disciplinary
why he was formally charged. Garcia was preventively          proceedings against a subordinate officer or employee.
suspended for ninety days since the charge is a major         Local Administrative Regulations (LAR) No. 2-85, which
offense. An investigation was scheduled but Garcia failed     was issued by the Ministry of Finance on March 27, 1985,
to appear and testify. Garcia also did not answer the         authorized the minister (now secretary) of finance, the
subpoena. So, Pajaro proceeded with an ex parte               regional director, and head of a local treasury or an
investigation. The Bureau of Local Government Finance         assessment office to start administrative disciplinary
favorably approved the suspension. This was affirmed by       action against officers or employees subordinate to
the Regional Director. Affirming the RTC Decision, the CA     them. In the case at bar, the city treasurer is the proper
held that private respondent was vested with legal            disciplining authority referred to in Section 47 of the
power and authority to institute disciplinary action          Administrative Code of 1987. The term “agency” refers
against subordinate officers and employees. The               to any of the various units of the government including a
appellate court further held that the requisites of           department, a bureau, an office, an instrumentality, a
administrative due process had been fully observed by         government-owned or controlled corporation, or a local
Pajaro while investigating petitioner. But despite being      government or a distinct unit therein. Respondent
informed of the charges against him and being given the       Pajaro, as the city treasurer, was the head of the Office
opportunity to be heard in a formal investigation,            of the Treasurer; while petitioner, a senior revenue
petitioner chose not to answer those charges.                 collector, was an officer under him. Thus, the city
                                                              treasurer is the proper disciplining authority who could
HELD: Under the old and the present Local Government          investigate petitioner and issue a preventive suspension
Codes, appointive officers and employees of local             order against him.
government units are covered by the Civil Service Law;
and such rules, regulations and other issuances duly          Likewise, the old Local Government Code does not vest
promulgated pursuant thereto, unless otherwise                in city mayors the sole power to discipline and to
specified. Moreover, the investigation and the                institute criminal or administrative actions against any
adjudication of administrative complaints against             officers or employees under their jurisdiction. In fact,
appointive local officials and employees, as well as their    there is no provision under the present Local
suspension and removal, shall be in accordance with the       Government Code expressly rescinding the authority of
Civil Service Law and rules and other pertinent laws.         the Department of Finance to exercise disciplinary
                                                              authority over its employees. By the same token, there is
The Administrative Code of 1987, -- specifically Book V       nothing that prohibits the city treasurer from filing a
on the civil service -- is the primary law governing          complaint against petitioner.
appointive officials and employees in the government.
They may be removed or dismissed summarily “(1)               Due process has not been violated. In an administrative
[w]hen the charge is serious and the evidence of guilt is     proceeding, the essence of due process is simply the

                                                                                                             135 D2010
Local Government

opportunity to explain one’s side. Such process requires
notice and an opportunity to be heard before judgment
is rendered. One may be heard, not solely by verbal
presentation in an oral argument, but also -- and perhaps
even many times more creditably and practicably --
through pleadings. So long as the parties are given the
opportunity to explain their side, the requirements of
due process are satisfactorily complied with. This
constitutional mandate is deemed satisfied if a person is
granted an opportunity to seek reconsideration of an
action or a ruling.

In the case at bar, the administrative proceedings were
conducted in accordance with the procedure set out in
the 1987 Administrative Code and other pertinent laws.
First, petitioner was furnished a copy of the May 30,
1990 formal charge against him. Second, Pajaro
requested the approval of the Order of Preventive
Suspension in his June 1, 1990 letter addressed to the
Bureau of Local Government Finance regional director,
who approved the Order in the First Indorsement dated
June 4, 1990. Third, a subpoena dated July 31, 1990 was
issued to petitioner ordering him to testify during an
investigation on August 15, 1990. However, he
admittedly refused to attend the investigation; thus, it
was conducted ex parte. Fourth, the Department of
Finance affirmed Respondent Pajaro’s findings in its
August 1, 1991 Decision.

D2010 136
                                                                                                     UP College of Law


Sec 69-75, LGC                                                 For the three-term limit for elective local government
                                                               officials to apply, two conditions or requisites must
See above                                                      concur, to wit: (1) that the official concerned has been
                                                               elected for three (3) consecutive terms in the same local
RA 9244                                                        government post, and (2) that he has fully served three
                                                               (3) consecutive terms.
       See attachments
       This amends Sec 70 – 71 of the LGC                     Here, Morales was elected for the term July 1, 1998 to
                                                               June 30, 2001. He assumed the position. He served as
Rivera v. Comelec                                              mayor until June 30, 2001. He was mayor for the entire
                                                               period notwithstanding the Decision of the RTC in the
In the May 2004 Synchronized National and Local                electoral protest case filed by petitioner Dee ousting him
Elections, Marino Morales ran as candidate for mayor of        (respondent) as mayor. To reiterate, as held in Ong v.
Mabalacat. On January 5, 2004, he filed his Certificate of     Alegre, such circumstance does not constitute an
Candidacy. On January 10, petitioners filed before the         interruption in serving the full term. Section 8, Article X
COMELEC a petition to cancel Morales’ certificate of           of the Constitution can not be more clear and explicit.
candidacy on the ground that the was elected and had           Respondent Morales is now serving his fourth term. He
served three previous consecutive terms as mayor of            has been mayor of Mabalacat continuously without any
Mabalacat contrary to RA 43(b) of RA 7160.Morales              break since July 1, 1995. In just over a month, by June
admitted that he was elected mayor of Mabalacat for the        30, 2007, he will have been mayor of Mabalacat for
term commencing July 1, 1995 to June 30, 1998 (first           twelve (12) continuous years.
term) and July 1, 2001 to June 30, 2004 (third term), but
                                                               This Court reiterates that the framers of the Constitution
he served the second term from July 1, 1998 to June 30,
                                                               specifically included an exception to the people’s
2001 only as a “caretaker of the office” or as a “de facto
                                                               freedom to choose those who will govern them in order
officer” because he was not validly elected as his
                                                               to avoid the evil of a single person accumulating
proclamation as mayor was declared void by the RTC and
                                                               excessive power over a particular territorial jurisdiction
thereafter, he was preventively suspended by the
                                                               as a result of a prolonged stay in the same office.
ombudsman. The COMELEC ruled that Morales was
disqualified to run for public office. Morales’ MR was         Morales maintains that he served his second term (1998
however granted. The COMELEC ruled that his                    to 2001) only as a “caretaker of the office” or as a “de
proclamation before was void and that the discharge of         facto officer.” Section 8, Article X of the Constitution is
the duties is that of a de facto mayor.                        violated and its purpose defeated when an official serves
                                                               in the same position for three consecutive terms.
In the other case filed by Anthony Dee: After Morales
                                                               Whether as “caretaker” or “de facto” officer, he
was proclaimed as the duly elected mayor, Anthony Dee
                                                               exercises the powers and enjoys the prerequisites of the
filed a petition for quo warranto before the RTC. Dee
                                                               office which enables him “to stay on indefinitely”.
reiterated the previous arguments of petitioners. The
                                                               Morales should be promptly ousted from the position of
RTC dismissed Dee’s petition for quo warranto on the
                                                               mayor of Mabalacat. Having found respondent Morales
ground that Morales did not serve the three-term limit
                                                               ineligible, his Certificate of Candidacy dated December
since he was not the duly elected mayor of Mabalacat,
                                                               30, 2003 should be cancelled. In the light of the
but Dee in the May 1998 elections for the term 1998 to
                                                               foregoing, Morales cannot be considered a candidate in
2001. Comelec affirmed.
                                                               the May 2004 elections. Not being a candidate, the
HELD: Morales is disqualified from running as mayor. In        votes cast for him SHOULD NOT BE COUNTED and must
Ong v. Alegre the Court held, thus:                            be considered stray votes. Since respondent Morales is
                                                               DISQUALIFIED from continuing to serve as mayor of

                                                                                                              137 D2010
Local Government

Mabalacat, the instant petition for quo warranto has            and determining the outcome of such notice. Despite his
become moot.                                                    urgent prayer for the issuance of a TRO, Evardone filed
                                                                the petition for prohibition only on 10 July 1990. The
In Labo v. Comelec, this Court has ruled that a second          Court issued a TRO on 12 July 1990 but the signing of the
place candidate cannot be proclaimed as a substitute            petition for recall took place just the same on the
winner. As a consequence of petitioner’s ineligibility, a       scheduled date through no fault of the COMELEC and
permanent vacancy in the contested office has occurred.         Apelado. The signing process was undertaken by the
This should now be filled by the vice-mayor in                  constituents of the Municipality of Sulat and its Election
accordance with Section 44 of the Local Government              Registrar in good faith and without knowledge of the
Code.                                                           TRO earlier issued by this Court. As attested by Election
                                                                Registrar Sumbilla, about 2,050 of the 6,090 registered
Evardone v. Comelec                                             voters of Sulat, Eastern Samar or about 34% signed the
                                                                petition for recall. The right to recall is complementary to
Felipe Evardone the mayor of Sulat, Eastern Samar,              the right to elect or appoint. It is included in the right of
having been elected to the position during the 1988 local       suffrage. It is based on the theory that the electorate
elections. He assumed office immediately after                  must maintain a direct and elastic control over public
proclamation. In 1990, Alexander R. Apelado, Victozino E.       functionaries. It is also predicated upon the idea that a
Aclan and Noel A. Nival filed a petition for the recall of      public office is "burdened" with public interests and that
Evardone with the Office of the Local Election Registrar,       the representatives of the people holding public offices
Municipality of Sulat. The Comelec issued a Resolution          are simply agents or servants of the people with definite
approving the the recommendation of Election Registrar          powers and specific duties to perform and to follow if
Vedasto Sumbilla to hold the signing of petition for recall     they wish to remain in their respective offices. Whether
against Evardone. Evardone filed a petition for                 or not the electorate of Sulat has lost confidence in the
prohibition with urgent prayer of restraining order             incumbent mayor is a political question. It belongs to the
and/or writ of preliminary injunction. Later, in an en banc     realm of politics where only the people are the judge.
resolution, the Comelec nullified the signing process for       Loss of confidence is the formal withdrawal by an
being violative of the TRO of the court. Hence, this            electorate of their trust in a person's ability to discharge
present petition.                                               his office previously bestowed on him by the same
                                                                electorate. The constituents have made a judgment and
HELD: Article XVIII, Section 3 of the 1987 Constitution
                                                                their will to recall Evardone has already been ascertained
express provides that all existing laws not inconsistent
                                                                and must be afforded the highest respect. Thus, the
with the 1987 Constitution shall remain operative, until
                                                                signing process held last 14 July 1990 for the recall of
amended, repealed or revoked. Republic Act No. 7160
                                                                Mayor Felipe P. Evardone of said municipality is valid and
providing for the Local Government Code of 1991,
                                                                has legal effect.
approved by the President on 10 October 1991,
specifically repeals B.P. Blg. 337 as provided in Sec. 534,     However, recall at this time is no longer possible because
Title Four of said Act. But the Local Government Code of        of the limitation provided in Sec. 55 (2) of B.P. Blg, 337.
1991 will take effect only on 1 January 1992 and                The Constitution has mandated a synchronized national
therefore the old Local Government Code (B.P. Blg. 337)         and local election prior to 30 June 1992, or more
is still the law applicable to the present case. Prior to the   specifically, as provided for in Article XVIII, Sec. 5 on the
enactment of the new Local Government Code, the                 second Monday of May, 1992. Thus, to hold an election
effectiveness of B.P. Blg. 337 was expressly recognized in      on recall approximately seven (7) months before the
the proceedings of the 1986 Constitutional Commission.          regular local election will be violative of the above
We therefore rule that Resolution No. 2272 promulgated          provisions of the applicable Local Government Code
by the COMELEC is valid and constitutional.
Consequently, the the COMELEC had the authority to              Garcia v. Comelec
approve the petition for recall and set the date for the
signing of said petition.                                       Enrique Garcia was elected governor of the province of
                                                                Bataan. Some mayors, vice-mayors and members of the
In the present case, the records show that Evardone             Sangguniang Bayan of the twelve (12) municipalities of
knew of the Notice of Recall filed by Apelado, on or            the province constituted themselves into a Preparatory
about 21 February 1990 as evidenced by the Registry             Recall Assembly to initiate the recall election of Garcia.
Return Receipt; yet, he was not vigilant in following up        The mayor of Mariveles, Honorable Oscar, de los Reyes,

D2010 138
                                                                                                          UP College of Law

and the mayor of Dinalupihan, the Honorable Lucila                nothing in the Constitution that will remotely suggest
Payumo, were chosen as Presiding Officer and Secretary            that the people have the "sole and exclusive right to
of the Assembly, respectively. Thereafter, the Vice-              decide on whether to initiate a recall proceeding." The
Mayor of Limay, the Honorable Ruben Roque, was                    Constitution did not provide for any mode, let alone a
recognized and he moved that a resolution be passed for           single mode, of initiating recall elections. Neither did it
the recall of the petitioner on the ground of "loss of            prohibit the adoption of multiple modes of initiating
confidence." The motion was "unanimously seconded."               recall elections. The mandate given by section 3 of
Petitioners filed with the COMELEC a petition to deny             Article X of the Constitution is for Congress to "enact a
due course to the Resolution for failure to comply with           local government code which shall provide for a more
the requirements under the LGC, which dismissed the               responsive and accountable local government structure
petition and scheduled the recall election. Petitioners           through a system of decentralization with effective
filed a petition for certiorari and prohibition with the SC       mechanisms of recall, initiative, and referendum . . ." By
on the ground that section 70 of R.A. 7160 allowing recall        this constitutional mandate, Congress was clearly given
through the initiative of the PRAC is unconstitutional            the power to choose the effective mechanisms of recall
because: (1) the people have the sole and exclusive right         as its discernment dictates. Using its constitutionally
to decide whether or not to initiate proceedings, and (2)         granted discretion, Congress deemed it wise to enact an
that the initiation of a recall through the PRA had de            alternative mode of initiating recall elections to
facto recalled Garcia from office and it effectively              supplement the former mode of initiation by direct
shortens and ends the term of the incumbent local                 action of the people. Congress has made its choice as
officials and (3 )it violated the right of elected local public   called for by the Constitution and it is not the prerogative
officials belonging to the political minority to equal            of this Court to supplant this judgment. The choice may
protection of law. They also argued that the proceedings          be erroneous but even then, the remedy against a bad
followed by the PRAC in passing Resolution No. I suffered         law is to seek its amendment or repeal by the legislative.
from numerous defects, the most fatal of which was the            By the principle of separation of powers, it is the
deliberate failure to send notices of the meeting to sixty-       legislative that determines the necessity, adequacy,
five (65) members of the assembly. The Court granted              wisdom and expediency of any law.
petition on the narrow ground that sending of selective
notices to members of the PRAC violated the due process           As to the second contention, the Court held that
protection of the Constitution and fatally flawed the             Petitioners have misconstrued the nature of the
enactment of Resolution No. 1. Requirement of notice is           initiatory process of recall by the PRAC. They have
mandatory and its non-observance is fatal to the validity         embraced the view that initiation by the PRAC is not
of the resolution to recall Garcia as Governor. Petitioners       initiation by the people. This is a misimpression for
then filed again Urgent Petition reiterating their                initiation by the PRAC is also initiation by the people,
contention that section 70 of RA 7160 is                          albeit done indirectly through their representatives. It is
unconstitutional.                                                 not constitutionally impermissible for the people to act
                                                                  through their elected representatives. Nothing less than
HELD: Section 70 of R.A. 7160 allowing recall through the         the paramount task of drafting our Constitution is
initiative of the PRAC is constitutional. As to the first         delegated by the people to their representatives, elected
contention, the Court stated that the legislative records         either to act as a constitutional convention or as a
reveal there were two (2) principal reasons why this              congressional constituent assembly. More far out is
alternative mode of initiating the recall process thru an         petitioners' stance that a PRA resolution of recall is the
assembly was adopted, viz: (a) to diminish the difficulty         recall itself. It cannot be seriously doubted that a PRA
of initiating recall thru the direct action of the people;        resolution of recall merely, starts the process. It is part of
and (b) to cut down on its expenses. Our lawmakers took           the process but is not the whole process. This ought to
note of the undesirable fact that the mechanism                   be self evident for a PRA resolution of recall that is not
initiating recall by direct action of the electorate was          submitted to the COMELEC for validation will not recall
utilized only once in the City of Angeles, Pampanga, but          its subject official. Likewise, a PRA resolution of recall
even this lone attempt to recall the city mayor failed.           that is rejected by the people in the election called for
This initiatory process by direct action of the people was        the purpose bears no effect whatsoever. The initiatory
too cumbersome, too expensive and almost impossible               resolution merely sets the stage for the official
to implement. Consequently, our legislators added in              concerned to appear before the tribunal of the people so
the a second mode of initiating the recall of local officials     he can justify why he should be allowed to continue in
thru a preparatory recall assembly. To be sure, there is          office. Before the people render their sovereign

                                                                                                                   139 D2010
Local Government

judgment, the official concerned remains in office but his       provided by law. To prevent the holding of the recall
right to continue in office is subject to question. This is      election, petitioner filed before the RTC petition for
clear in section 72 of the Local Government Code which           injunction. After conducting a summary hearing, the trial
states that "the recall of an elective local official shall be   court lifted the restraining order, dismissed the petition
effective only upon the election and proclamation of a           and required petitioner and his counsel to explain why
successor in the person of the candidate receiving the           they should not be cited for contempt for
highest number of votes cast during the election on              misrepresenting that the barangay recall election was
recall."                                                         without COMELEC approval.

As to the third contention, the fear is expressed that the       The Comelec again re-scheduled the recall election,
members of the PRAC may inject political color in their          hence the instant petition for certiorari with urgent
decision as they may initiate recall proceedings only            prayer for injunction the issue being WON the recall
against their political opponents especially those               election to be held on January 13, 1996 is barred by the
belonging to the minority. A careful reading of the law,         SK election to be held on May 1996.
however, will ineluctably show that it does not give an
asymmetrical treatment to locally elected officials              HELD: The issue on recall has become moot and
belonging to the political minority. First to be considered      academic. But the Court held that it would be more in
is the politically neutral composition of the preparatory        keeping with the intent of the recall provision of the
recall assembly, all mayors, vice-mayors and sangguniang         Code to construe regular local election as one referring
members of the municipalities and component cities are           to an election where the office held by the local elective
made members of the preparatory recall assembly at the           official sought to be recalled will be contested and be
provincial level. Its membership is not apportioned to           filled by the electorate.
political parties. No significance is given to the political
affiliation of its members. Secondly, the preparatory            Petitioner's argument is simple and to the point. Citing
recall assembly, at the provincial level includes all the        Section 74 (b) of Republic Act No. 7160, otherwise
elected officials in the province concerned. Considering         known as the Local Government Code, which states that
their number, the greater probability is that no one             "no recall shall take place within one (1) year from the
political party can control its majority. Thirdly, sec. 69 of    date of the official's assumption to office or one (1) year
the Code provides that the only ground to recall a locally       immediately preceding a regular local election",
elected public official is loss of confidence of the people.     petitioner insists that the scheduled January 13, 1996
The members of the PRAC are in the PRAC not in                   recall election is now barred as the Sangguniang
representation of their political parties but as                 Kabataan (SK) election was set by Republic Act No. 7808
representatives of the people. By necessary implication,         on the first Monday of May 1996, and every three years
loss of confidence cannot be premised on mere                    thereafter. The evident intent of Section 74 is to subject
differences in political party affiliation. There is only one    an elective local official to recall election once during his
ground for the recall of local government officials: loss of     term of office. Paragraph (b) construed together with
confidence. This means that the people may petition or           paragraph (a) merely designates the period when such
the Preparatory Recall Assembly may resolve to recall            elective local official may be subject of a recall election,
any local elective officials without specifying any              that is, during the second year of his term of office. Thus,
particular ground except loss of confidence. There is no         subscribing to petitioner's interpretation of the phrase
need for them to bring up any charge of abuse or                 regular local election to include the SK election will
corruption against the local elective officials who are the      unduly circumscribe the novel provision of the Local
subject of any recall petition.                                  Government Code on recall, a mode of removal of public
                                                                 officers by initiation of the people before the end of his
Paras v. Comelec                                                 term. And if the SK election which is set by R.A No. 7808
                                                                 to be held every three years from May 1996 were to be
Danilo E. Paras is the incumbent Punong Barangay of              deemed within the purview of the phrase "regular local
Pula, Cabanatuan City. A petition for his recall as Punong       election", as erroneously insisted by petitioner, then no
Barangay was filed by the registered voters of the               recall election can be conducted rendering inutile the
barangay. The COMELEC scheduled the petition signing             recall provision of the LGC. In the interpretation of a
on October 14, 1995, and set the recall election on              statute, the Court should start with the assumption that
November 13,1995. At least 29.30% of the registered              the legislature intended to enact an effective law, and
voters signed the petition, above the 25% requirement            the legislature is not presumed to have done a vain thing

D2010 140
                                                                                                        UP College of Law

in the enactment of a statute. An interpretation should,          the institution and proceedings of the recall, putting to
if possible, be avoided under which a statute or provision        fore the propriety of the service of notices to the
being construed is defeated, or as otherwise expressed,           members of the Preparatory Recall Assembly, and the
nullified, destroyed, emasculated, repealed, explained            proceedings held, resulting in the issuance of the
away, or rendered insignificant, meaningless, inoperative         questioned Resolution.
or nugatory. It is likewise a basic precept in statutory
construction that a statute should be interpreted in              HELD: The Court ruled that notices were properly sent to
harmony with the Constitution. Thus, the interpretation           the members of the PRA and that the proceedings held
of Section 74 of the Local Government Code, specifically          by the PRA are valid. The Commission regards the
paragraph (b) thereof, should not be in conflict with the         sending of notice one thing, and the completion of
Constitutional mandate of Section 3 of Article X of the           service thereof another, for indeed, the requirement of
Constitution to "enact a local government code which              notice can only be fully satisfied, if there was not only
shall provide for a more responsive and accountable               service, but also completion of service thereof. Personal
local government structure instituted through a system            services were acknowledged by receipts signed, if not by
of decentralization with effective mechanism of recall,           the addressee himself, then, as indicated thereon, by his
initiative, and referendum . . . ." Finally, recall election is   or her spouse, nearest relative or a person of sufficient
potentially disruptive of the normal working of the local         discretion in the member 's residence or office. Service
government unit necessitating additional expenses,                by registered mail was evinced by the return card duly
hence the prohibition against the conduct of recall               signed by the addressee or by persons acting for him.
election one year immediately preceding the regular               There were instances when notices were served but
local election. The proscription is due to the proximity of       were refused, this fact noted in the acknowledgment
the next regular election for the office of the local             receipt by the server and his witnesses. The
elective official concerned. The electorate could choose          circumstances being thus, it was held that there was
the official's replacement in the said election who               complete service of the notices as contemplated in
certainly has a longer tenure in office than a successor          Section 8, Rule 13 of the Rules of Court. That it was Alex
elected through a recall election. It would, therefore, be        David, President of the LIGA ng mga Barangay who sent
more in keeping with the intent of the recall provision of        the notices is of no moment. As member of the PRA, he
the Code to construe regular local election as one                can legally exercise the prerogatives attached to his
referring to an election where the office held by the local       membership in the Preparatory Recall Assembly, sending
elective official sought to be recalled will be contested         notices to the other members of its scheduled
and be filled by the electorate. Nevertheless, recall at          convening. It is evident from the foregoing and,
this time is no longer possible because of the limitation         therefore, the Commission so holds that the
stated under Section 74 (b) of the Code considering that          requirements of notice had been fully complied with.
the next regular election involving the barangay office           Needless to state, the issue of propriety of the notices
concerned is barely seven (7) months away, the same               sent to the PRA members is factual in nature, and the
having been scheduled on May 1997.                                determination of the same is therefore a function of the
                                                                  COMELEC. In the absence of patent error, or serious
Malonzo v. Comelec                                                inconsistencies in the findings, the Court should not
                                                                  disturb the same.
Petitioner was duly elected as Mayor, winning over
former Mayor Macario Asistio, Jr. Barely one year into his        Petitioner's insistence, that the initiation of the recall
term, 1,057 Punong Barangays and Sangguniang                      proceedings was infirm since it was convened by the Liga
Barangay members and SK chairmen, constituting a                  ng mga Barangays, is misplaced. Petitioner observes that
majority of the members of the Preparatory Recall                 "respondent Liga is an organization of all barangays. It is
Assembly of the City of Caloocan, met, and upon                   not an organization of barangay captains and kagawads.
deliberation and election, voted for the approval of              The barangays are represented in the Liga by the
Preparatory Recall Assembly Resolution No. 01-96,                 barangay captains as provided under Section 492 LGC. It
expressing loss of confidence in Mayor Malonzo, and               also provides that the Kagawad may represent the
calling for the initiation of recall proceedings against him.     barangay in the absence of the barangay chairman." The
The Comelec declared the recall proceedings to be in              Liga ng mga Barangay is undoubtedly an entity distinct
order. Mayor Malonzo filed a petition for certiorari with         from the Preparatory Recall Assembly. It just so happens
a prayer for TRO assailing the Comelec’s resolution. The          that the personalities representing the barangays in the
Petition, in the main, raises the issue of the validity of        Liga are the very members of the Preparatory Recall

                                                                                                                 141 D2010
Local Government

Assembly, the majority of whom met on July 7, 1996, and       took place within the one-year prohibited period; (4) the
voted in favor of the resolution calling for the recall of    election case, filed by Wenceslao Trinidad in this Court,
Mayor Malonzo, after deliberation reported in the             seeking the annulment of the proclamation of petitioner
record, in accordance with the existing law. Thus, the        Claudio as mayor of Pasay City, should first be decided
Punong Barangays and Sangguniang Barangay members             before recall proceedings against petitioner could be
convened and voted as members of the Preparatory              filed; and (5) the recall resolution failed to obtain the
Recall Assembly of Caloocan, and not as members of the        majority of all the members of the PRA, considering that
Liga ng mga Barangay. The recall proceedings, therefore,      10 were actually double entries, were not duly
cannot be denied merit on this ground. Any doubt as to        accredited members of the barangays, 40 Sangguniang
the propriety of the proceedings held during the recall       Kabataan officials had withdrawn their support, and 60
assembly should be laid to rest. As the COMELEC               barangay chairs executed affidavits of retraction.
pertinently observes: “The Minutes of the session of the
Preparatory Assembly indicated that there was a session       The COMELEC granted the petition and dismissed the
held. Attendees constitute the majority of all the            opposition. It ruled that the 1,073 members who
members of the Preparatory Assembly, as we shall later        attended the May 29, 1999 meeting were more than
on establish. Rules of procedure, simple they may be          necessary to constitute the PRA, considering that its
were formulated. Deliberations were conducted on the          records showed the total membership of the PRA was
main issue, which was that of petitioner's recall. The        1,790, while the statistics of the Department of Interior
members were given the opportunity to articulate on           and Local Government (DILG) showed that the total
their resolve about the matter. More importantly, their       membership of the PRA was 1,876. In either case, since
sentiments were expressed through their votes signified       only a majority is required to constitute the PRA, clearly,
by their signatures and thumbmarks affixed to the             a majority had been obtained in support of the recall
Resolution. No proof was adduced by Petitioner to             resolution. Hence, this petition.
substantiate his claim that the signatures appearing
thereon represented a cause other than that of adopting       WON the word "Recall" in Paragraph (b) of §74 of the
the resolution.”                                              Local Government Code Includes the Convening of the
                                                              Preparatory Recall Assembly and the Filing by it of a
The charges of graft and corruption, violence and             Recall Resolution
irregularities, before and during the session of the
preparatory recall assembly are largely uncorroborated,       Held: Yes.
and cannot override the substantiated findings of the         Recall is a process which begins with the convening of
respondent COMELEC.                                           the preparatory, recall assembly or the gathering of the
                                                              signatures at least 25% of the registered voters of a local
Claudio v. Comelec                                            government unit, and then proceeds to the filing of a
                                                              recall resolution or petition with the COMELEC, the
Jovito Claudio was the duly elected mayor of Pasay City       verification of such resolution or petition, the fixing of
in the May 11, 1998 elections. On May 19, 1999, several       the date of the recall election, and the holding of the
barangay chairs formed an ad hoc committee for the            election on the scheduled date. However, as used in
purpose of convening the PRA. Richard Advincula was           paragraph (b) of § 74, "recall" refers to the election itself
designated chair. The members of the PRA adopted              by means of which voters decide whether they should
Resolution No. 01, S-1999, initiating Claudio’s recall. The   retain their local official or elect his replacement. Several
petition for recall was filed in the Office of the City       reasons can be cited in support of this conclusion.
Mayor. The COMELEC also posted the petition on the
                                                              First, § 74 deals with restrictions on the power of recall.
bulletin boards of certain public places.
                                                              It is in fact entitled "Limitations on Recall." On the other
Oppositions to the petition were filed by Jovito Claudio,     hand, §69 provides that "the power of recall ...shall be
Rev. Ronald Langub, and Roberto L. Angeles, alleging          exercised by the registered voters of a local government
procedural and substantive defects in the petition, to        unit to which the local elective official belongs." Since
wit: (1) the signatures affixed to the resolution were        the power vested on the electorate is not the power to
actually meant to show attendance at the PRA meeting;         initiate recall proceedings but the power to elect an
(2) most of the signatories were only representatives of      official into office, the limitations in §74 cannot be
the parties concerned who were sent there merely to           deemed to apply to the entire recall proceedings. In
observe the proceedings; (3) the convening of the PRA         other words, the term "recall" in paragraph (b) refers

D2010 142
                                                                                                        UP College of Law

only to the recall election, excluding the convening of the     decide on the performance of their officials. The
PRA and the filing of a petition for recall with the            crystallization and formation of an informed public
COMELEC, or the gathering of the signatures of at least         opinion takes time. To hold, therefore, that the first
25 % of the voters for a petition for recall.                   limitation in paragraph (b) includes the holding of
                                                                assemblies for the exchange of ideas and opinions
Thus, there may be several PRAs held or petitions for           among citizens is to unduly curtail one of the most
recall filed with the COMELEC - there is no legal limit on      cherished rights in a free society. Indeed, it is wrong to
the number of times such processes may be resorted to.          assume that such assemblies will always eventuate in a
These are merely preliminary steps for the purpose of           recall election. To the contrary, they may result in the
initiating a recall. The limitations in §74 apply only to the   expression of confidence in the incumbent.
exercise of the power of recall which is vested in the
registered voters. It is this - and not merely, the             To sum up, the term "recall" in paragraph (b) refers to
preliminary steps required to be taken to initiate a recall     the recall election and not to the preliminary
- which paragraph (b) of §74 seeks to limit by providing        proceedings to initiate recall -
that no recall shall take place within one year from the
date of assumption of office of an elective local official.     1. 1. Because §74 speaks of limitations on "recall" which,
                                                                according to §69, is a power which shall be exercised by
The second reason why the term "recall" in paragraph (b)        the registered voters of a local government unit. Since
refers to recall election is to be found in the purpose of      the voters do not exercise such right except in an
the limitation itself. There are two limitations in             election, it is clear that the initiation of recall
paragraph (b) on the holding of recalls: (1) that no recall     proceedings is not prohibited within the one-year period
shall take place within one year from the date of               provided in paragraph (b);
assumption of office of the official concerned, and (2)
that no recall shall take place within one year                 2. Because the purpose of the first limitation in
immediately preceding a regular local election.                 paragraph (b) is to provide voters a sufficient basis for
                                                                judging an elective local official, and final judging is not
The purpose of the first limitation is to provide a             done until the day of the election; and
reasonable basis for judging the performance of an "The
only logical reason which we can ascribe for requiring the      3. Because to construe the limitation in paragraph (b) as
electors to wait one year before petitioning for a recall       including the initiation of recall proceedings would
election is to prevent premature action on their part in        unduly curtail freedom of speech and of assembly
voting to remove a newly elected official before having         guaranteed in the Constitution.
had sufficient time to evaluate the soundness of his
policies and decisions." The one-year limitation was            As the recall election in Pasay City is set on April 15,
reckoned as of the filing of a petition for recall because      2000, more than one year after petitioner assumed
the Municipal Code involved in that case expressly              office as mayor of that city, we hold that there is no bar
provided that "no removal petition shall be filed against       to its holding on that date.
any officer or until he has actually held office for at least
                                                                WON the Phrase "Regular Local Election" in the Same
twelve months." But however the period of prohibition is
                                                                Paragraph (b) of §74 of the LGC includes the election
determined, the principle announced is that the purpose
                                                                period or campaign period?
of the limitation is to provide a reasonable basis for
evaluating the performance of an elective local official.       Held: No.
Hence, in this case, as long as the election is held outside    The law is unambiguous in providing that "[n]o recall
the one-year period, the preliminary proceedings to             shall take place within . . . one (1) year immediately
initiate a recall can be held even before the end of the        preceding a regular local election." Had Congress
first year in office of a local official.                       intended this limitation to refer to the campaign period,
                                                                which period is defined in the Omnibus Election Code, it
Third, to construe the term "recall" in paragraph (b) as
                                                                could have expressly said so. Petitioner's interpretation
including the convening of the PRA for the purpose of
                                                                would severely limit the period during which a recall
discussing the performance in office of elective local
                                                                election may be held. Actually, because no recall election
officials would be to unduly restrict the constitutional
                                                                may be held until one year after the assumption of office
right of speech and of assembly of its members. The
                                                                of an elective local official, presumably on June 30
people cannot just be asked on the day of the election to
                                                                following his election, the free period is only the period

                                                                                                                 143 D2010
Local Government

from July 1 of the following year to about the middle of
May of the succeeding year. This is a period of only nine
months and 15 days, more or less. To construe the
second limitation in paragraph (b) as including the
campaign period would reduce this period to eight
months. Such an interpretation must be rejected,
because it would devitalize the right of recall which is
designed to make local government units" more
responsive and accountable." Indeed, there is a
distinction between election period and campaign
period. Under the Omnibus Election Code, unless
otherwise fixed by the COMELEC, the election period
commences ninety (90) days before the day of the
election and ends thirty (30) days thereafter. Thus, to
follow petitioner's interpretation that the second
limitation in paragraph (b) includes the "election period"
would emasculate even more a vital right of the people.

WON the Recall RESOLUTION was Signed by a Majority of
the PRA and Duly Verified

Held: Yes.
Petitioner contends that a majority of the signatures of
the members of the PRA was not obtained because 74
members did not really sign the recall resolution.
According to petitioner, the 74 merely signed their
names on pages 94-104 of the resolution to signify their
attendance and not their concurrence. Petitioner claims
that this is shown by the word "Attendance" written by
hand at the top of the page on which the signatures of
the 74 begin.

This contention has no basis. To be sure, this claim is
being raised for the first time in this case. It was not
raised before the COMELEC. Although the word
"Attendance" appears at the top of the page, it is
apparent that it was written by mistake because it was
crossed out by two parallel lines drawn across it.
Apparently, it was mistaken for the attendance sheet
which is a separate document. It is absurd to believe that
the 74 members of the PRA who signed the recall
resolution signified their attendance at the meeting
twice. It is more probable to believe that they signed
pages 94-104 to signify their concurrence in the recall
resolution of which the pages in question are part. The
other point raised by petitioner is that the recall petition
filed in the COMELEC was not duly verified, because Atty.
Nelson Ng, who notarized it, is not commissioned as
notary public for Pasay City but for Makati City. As in the
case of the first claim, this issue was not raised before
the COMELEC itself. It cannot, therefore, be raised now.

D2010 144
                                                                                                     UP College of Law

                                 Human Resources and Development

Book I, Title 3, LGC (Sec 76 – 97)                            Limitation on appointment (Sec 79)

        For Sec 84 – 89, see above                           No person shall be appointed in the career service of the
                                                              local government if he is related within the fourth civil
Title III – Human Resources and Development                   degree of consanguinity or affinity to the appointing or
                                                              recommending authority.
Organization structure and staffing pattern (Sec 76)
                                                              Public notice of vacancy; Personnel Selection Board (Sec
In designing and implementing the organizational              80)
structure and staffing pattern by the LGU the following
factors shall be considered:                                  Requirement in filling up a vacant career position:

    1.   Service Requirements of the LGU;                     Posting of notice of the vacancy in at least three (3)
    2.   Financial Capability of the LGU                      conspicuous public places in the LGU concerned for a
              Subject to the guidelines prescribed by        period of not less than fifteen (15) days.
                  the Civil Service Commission
                                                              Personnel Selection Board
Responsibility for human resources and development
(Sec 77)                                                      Functions:

The local chief executive of every LGU shall be                   1.   To assist the local chief executive in the
responsible for human resources and development of                     judicious and objective selection of personnel
the said LGU.                                                          for employment and for promotion;
                                                                  2.   To assist the local chief executive in the
The local chief executive shall take all personnel actions             formulation of policies that would contribute to
in accordance with the Constitution, pertinent laws, rules             employee welfare.
and regulations including such policies, guidelines and
standards as may be established by the Civil Service          Composition:
                                                                      Headed by the Local Chief Executive;
The local chief executive may employ emergency or                     Members shall be determined by resolution of
casual employees or laborers paid on a daily wage,                     the sanggunian concerned;
piecework, or per job order basis for local projects                  A representative of the Civil Service Commission
authorized by the Sangguniang concerned, without the                   as an ex-officio member;
need for approval or attestation by the Civil Service                 The personnel officer of the LGU also as an ex-
Commission BUT the period of employment of these                       officio member.
workers SHALL NOT exceed six (6) months.
                                                              Compensation of local officials and employees (Sec 81)
Civil Service Law, rules and regulations, and other related
                                                              General rule: It shall be determined by the sanggunian
issuances (Sec 78)
                                                              of their respective LGU.
General rule: All matters pertaining to human resources
and development in LGU’s shall be governed by the Civil       Limitations of the rule:
Service Law and such rules and regulations and other
                                                                  1.   The increase in compensation of elective local
issuances promulgated pursuant thereto.
                                                                       officials shall take effect only after the terms of
Exception: When specified otherwise by the Local                       office of those approving such increase shall
                                                                       have expired;
Government Code.

                                                                                                              145 D2010
Local Government

    2.   The increase in the compensation of the                 session of the sanggunian concerned and duly entered in
         appointive officials and employees shall take           its records.
         effect as provided in the ordinance authorizing
         the such increase;                                      Exceptions:
    3.   The increases as provided shall not exceed the
         limitations on budgetary allocations for personal           1.   The above rule does not apply to sanggunian
         services provided under Title 5, Book 2 of LGC;                  members subject to recall election;
    4.   The compensation as provided may be based                   2.   The same does not apply in cases where existing
         upon the pertinent provisions of R.A. 6758.                      laws prescribe the manner of acting upon such
Exception: The punong barangay, the sangguniang
barangay members, the SK chairman, the barangay                  Grievance procedure (Sec 83)
treasurer, and the barangay secretary shall be entitled to
                                                                 The local chief executive, of every LGU shall establish a
such compensation, allowances, emoluments, and such
                                                                 procedure to inquire into, act upon, resolve or settle
other privileges as provided under Title 1, Book 3 of LGC.
                                                                 complaints and grievances presented by local
(see Sec. 393, LGC)
                                                                 government employees.
Elective local officials shall be entitled to the same leave
                                                                 Practice of profession (Sec 90)
privileges as those enjoyed by appointive local officials,
including the cumulation and commutation thereof.                Governors, city and municipal mayors are prohibited
                                                                 from practicing their profession or engaging in any
Resignation of elective local officials (Sec 82)
                                                                 business other than the exercise of their function as local
Resignation by elective local officials shall be deemed          chief executives.
effective only upon acceptance of the proper authorities
                                                                 Sanggunian members may practice their professions,
as shown below:
                                                                 engage in any occupation, or teach in schools.
Officials tendering              Proper Authority to
                                                                 Exception: During session hours.
resignation                      accept the resignation
Governors, vice-governors,                                       Exception to the exception: Doctors of medicine may
                                 President of the
and mayors and vice-                                             practice their profession even during official hours of
mayors of highly urbanized                                       work ONLY on occasion of emergency PROVIDED; they
cities and independent                                           do not derive any monetary compensation therefrom.
component cities
Municipal mayors,                                                Special rules for Sanggunian members who are also
municipal vice-mayors, city                                      lawyers:
mayors and city vice-
mayors of component cities                                           1.   They shall not appear as counsel before any
                                 Sanggunian to which                      court in any civil case wherein an LGU or any
Sanggunian member                                                         office, agency, or instrumentality of the
                                 he/she belongs
                                                                          government is the adverse party;
Barangay officials               City or municipal mayor             2.   They shall not appear as counsel in any criminal
                                                                          case wherein an officer or employee of the
                                                                          national or local government is accused of an
Copies of the resignation letters of elective local officials,            offense committed in relation to his office;
together with the action taken by the proper authorities             3.   They shall not collect any fee for their
accepting the resignation shall be furnished the DILG.                    appearance in administrative proceedings
                                                                          involving the local government unit of which he
The resignation shall be deemed accepted if not acted                     is an official;
upon by the authority concerned within fifteen (15)                  4.   They shall not use property and personnel of
working days from receipt thereof.                                        the Government except when they are
                                                                          defending the interest of the Government.
Irrevocable resignations by sanggunian members shall be
deemed accepted upon presentation before an open                 Statement of assets and liabilities (Sec 91)

D2010 146
                                                                                                        UP College of Law

Officials and employees of LGU’s shall file their:               No elective or appointive local official shall hold any
                                                                 other office or employment in the Government or any
    1.   Sworn statements of assets, liabilities and net         subdivision, agency or instrumentality including
         worth                                                   government – owned or controlled corporations or their
    2.   Lists of relatives within the fourth civil degree of    subsidiaries.
         consanguinity or affinity in government service;
    3.   Financial and business interests;                       Exception: When otherwise allowed by law or by the
    4.   Personal data sheets as required by law.                primary functions of his position (Ex officio positions)

Oath of office (Sec 92)                                          No candidate who lost in any election shall, within one
                                                                 (1) year after such election, be appointed to any office in
All elective and appointive local officials and employees        the Government or any government – owned or
shall, upon assumption to office, subscribe to an oath or        controlled corporations or their subsidiaries.
affirmation of office in the prescribed form.
                                                                 Exception: Losers in the barangay elections.
The oath or affirmation shall be filed with the office of
the local chief executive concerned.                             Additional or double compensation (Sec 95)

A copy of the oath or affirmation of office of all elective      No elective or appointive local official or employee shall
and appointive local officials and employees shall be            receive additional, double, or indirect compensation.
preserved in the individual personal records file under
the custody of the personnel office, division, or section        Exception: When specifically allowed by law.
of the LGU concerned.
                                                                 No elective or appointive local official or employee shall
Partisan political activity (Sec 93)                             accept any present, emoluments, office, or title of any
                                                                 kind from any foreign government.
No local official or career civil service employee shall:
                                                                 Exception: When Congress gives consent.
    1.   Engage directly or indirectly in any partisan
         political activity or take part in any election,        Pension and gratuities shall not be considered as
         initiative, referendum, plebiscite, or recall           additional, double, or indirect compensation.
         EXCEPT to vote;
    2.   Use his official authority or influence to cause        Permission to leave station (sec 96)
         the performance of any political activity by any
                                                                 Provincial, city, municipal, and barangay appointive
         person or body.
                                                                 officials going on OFFICIAL TRAVEL shall apply and secure
Local officials or career civil service employees MAY            written permission from their respective local chief
express his views on current issues, or mention the              executives before departure.
names of certain candidates for public office whom he
                                                                 The application (for permission to leave station) shall
                                                                 specify the reason for the travel.
Elective local officials may take part in partisan political
                                                                 The permission shall be given or withheld based on:
and electoral activities BUT it shall be unlawful for them
to solicit contributions from their subordinates or subject          1.   considerations of pubic interest;
these subordinates to any of the prohibited acts under               2.   financial capability of the local government unit
the Omnibus Election Code.                                                concerned; and
                                                                     3.   urgency of the travel.
Appointment of elective and appointive local officials;
candidates who lost in an election (Sec 94)                      Should the local chief executive concerned fail to act
                                                                 upon the application within four (4) working days from
No elective of appointive local official shall be eligible for
                                                                 receipt thereof, it shall be deemed APPROVED.
appointment or designation in any capacity to any public
office or position during his tenure.                            Mayors of component cities and municipalities shall
                                                                 secure the permission of the governor concerned for any
                                                                 travel outside the province.

                                                                                                                 147 D2010
Local Government

Local government officials TRAVELING ABROAD shall            appeared as counsel in several criminal and civil cases in
notify their respective sanggunian PROVIDED that when        the city, without prior authority of the DLG Regional
the period of travel extends to MORE THAN THREE (3)          Director, in violation of DLG Memorandum Circular No.
MONTHS, during periods of emergency or crisis or when        80-38. Javellana filed a Motion to Dismiss the
the travel involves the use of public funds, permission      administrative case against him on the ground mainly
from the Office of the President shall be secured.           that DLG Memorandum Circular Nos. 80-38 and 90-81
                                                             are unconstitutional because the Supreme Court has the
Field officers of national agencies or offices assigned in   sole and exclusive authority to regulate the practice of
provinces, cities, municipalities shall not leave their      law. The motion to dismiss was denied.
official stations without giving PRIOR WRITTEN NOTICE to
the local chief executive concerned.                         A few months later, the LGC was enacted which
                                                             provides: "SEC. 90. Practice of Profession.
The written notice shall state the duration of the travel
and the name of the officer whom he shall designate to       "(b) Sanggunian members may practice their
act for and in his behalf during his absence.                professions, engage in any occupation, or teach in
                                                             schools except during session hours: Provided, That
Annual report (Sec 97)                                       sanggunian members who are also members of the Bar
                                                             shall not:
On or before March 31 of every year, every local chief
executive shall submit an annual report to the               "(1) Appear as counsel before any court in any civil case
sanggunian concerned on the socio-economic, political        wherein a local
and peace and order conditions, and other matters
concerning the local government unit, which shall cover      government unit or any office, agency, or instrumentality
the immediately preceding calendar year.                     of the government is the adverse party;

A copy of the report shall be forwarded to the DILG.         "(2) Appear as counsel in any criminal case wherein an
                                                             officer or employee of the national or local government
Component cities and municipalities shall likewise           is accused of an offense committed in relation to his
provide the sangguniang panlalawigan copies of their         office:
respective annual reports.
                                                             "(3) Collect any fee for their appearance in
    I.        Practice of Profession by Mayors,              administrative proceedings involving the local
              Governors and other elective officials         government unit of which he is an official; and

Sec 90, LGC                                                  "(4) Use property and personnel of the Government
                                                             except when the sanggunian member concerned is
See above                                                    defending the interest of the Government.”

Javellana v. DILG                                            Javellana thereupon filed this petition for certiorari
                                                             praying that DLG Memorandum Circulars Nos. 80-38 and
Attorney Erwin B. Javellana was an elected City Council      90-81 and Section 90 of RA 7160 be declared
or of Bago City, Negros Occidental. City Engineer Ernesto    unconstitutional and null and void.
C. Divinagracia filed Administrative Case against
Javellana. Divinagracia's complaint alleged that Javellana   HELD: The Memorandum Circulars and Section 90 of RA
has continuously engaged in the practice of law without      7160 are constitutional. In the first place, complaints
securing authority for that purpose from the Regional        against public officers and employees relating or
Director, Department of Local Government, as required        incidental to the performance of their duties are
by DLG Memorandum Circular No. 80-38 in relation to          necessarily impressed with public interest for by express
DLG Memorandum Circular No. 74-58 of the same                constitutional mandate, a public office is a public trust.
department: that on July 8, 1989, Javellana, as counsel      The complaint for illegal dismissal filed by Javiero and
for Antonio Javiero and Rolando Catapang, filed a case       Catapang against City Engineer Divinagracia is in effect a
against City Engineer Ernesto C. Divinagracia of Bago City   complaint against the City Government of Bago City,
for "Illegal Dismissal and Reinstatement with Damages"       their real employer, of which petitioner Javellana is a
putting him in public ridicule: that Javellana also          councilman. Hence, judgment against City Engineer

D2010 148
                                                                 UP College of Law

Divinagracia, would actually be a judgment against the
City Government. By serving as counsel for the
complaining employees and assisting them to prosecute
their claims against City Engineer Divinagracia, the
petitioner violated Memorandum Circular No. 74-58 (in
relation to Section 7[b-2] of RA 6713) prohibiting a
government official from engaging in the private practice
of his profession, if such practice would represent
interests adverse to the government. Petitioner's
contention that Section 90 of the Local Government
Code of 1991 and DLG Memorandum Circular No. 90-81
violate Article VIII. Section 5 of the Constitution is
completely off tangent. Neither the statute nor the
circular trenches upon the Supreme Court's power and
authority to prescribe rules on the practice of law. The
Local Government Code and DLG Memorandum Circular
No. 90-81 simply prescribe rules of conduct for public
officials to avoid conflicts of interest between the
discharge of their public duties and the private practice
of their profession, in those instances where the law
allows it. Section 90 of the Local Government Code does
not discriminate against lawyers and doctors. It applies
to all provincial and municipal officials in the professions
or engaged in any occupation. Section 90 explicitly
provides that Sanggunian Members "may practice their
professions, engage in any occupation, or teach in
schools except during session hours." If there are some
prohibitions that apply particularly to lawyers, it is
because of all the professions, the practice of law is more
likely than others to relate to, or affect, the area of public

    II.       Civil Service Law, Rules and Regulations;
              Limitations on Appointments; Resignation
              of Elective Local Officials; Preventive
              Suspension of Local Officials and
              Employees; Administrative Investigation;
              Disciplinary Jurisdiction; Additional or
              Double Compensation

                                                                        149 D2010
Local Government

                                          Local Boards and Councils

Book I, Titles 4-7 (Sec 98 – 116)                                                                    Representative in the
Title IV – Local School Boards                                                                       Panlungsod
                                                                                           4.        President of the City
There shall be established in every province, city, or                                               Federation of PTA
municipality a provincial, city or municipal school board                                  5.         Representative of the
respectively.                                                                                        teacher’s organization
                                                                                                     in the city
Composition                                                                                          Representative of the
    i.        Provincial School Board
                                                                                                     personnel of public
    Co - Chairmen            1.   Provincial Governor                                                schools in the city
                             2.   Provincial Division
                                  Schools Superintendent
                                                                 iii.       Municipal School Board
    Members                  1.   Chairman of Education
                                  Committee in the               Co – Chairmen                  1.     Municipal Mayor
                                  Sangguniang                                                   2.     District Supervisor
                                  Panlalawigan                   Members                        1.     Chairman of
                             2.   Provincial Treasurer                                                 Education Committee
                             3.   SK Federation                                                        in the Sangguniang
                                  Representative in the                                                Bayan
                                  Sangguniang                                                   2.     Municipal Treasurer
                                  Panlalawigan                                                  3.     SK Federation
                             4.   President of the                                                     Representative in the
                                  Provincial Federation of                                             Sangguniang Bayan
                                  PTA                                                           4.     President of the
                             5.    Representative of the                                               Municipal Federation
                                  teacher’s organization                                               of PTA
                                  in the province                                               5.      Representative of the
                             6.   Representative of the                                                teacher’s organization
                                  non-academic                                                         in the municipality
                                  personnel of public                                                  Representative of the
                                  schools in the province                                              non-academic
                                                                                                       personnel of public
                                                                                                       schools in the
    ii.       City School Board
Co – Chairmen                1.   City Mayor
                             2.   City Division Schools
                                                             In the event that a province or a city has two (2) or more
                                                             school superintendents, and in the event that a
                                                             municipality has two (2) or more district supervisors, the
Members                      1.   Chairman of Education
                                                             co-chairmen of the local school board shall be
                                  Committee in the
                                                             determined as follows:
                                  Panlungsod                     1.     The DepEd shall designate the co-chairman for
                             2.   City Treasurer                        the provincial or city schools board; and
                             3.   SK Federation

D2010 150
                                                                                                       UP College of Law

    2.   The Schools Division Superintendent shall            The division schools superintendent, city schools
         designate the district supervisor who shall serve    superintendent or district supervisor, as the case may be,
         as co-chairman as in the municipal school board      shall prepare the budget of the school board concerned.
                                                              Such budget shall be supported by programs, projects,
The performance of the duties and responsibilities of the     and activities of the school board for the ensuing fiscal
abovementioned officials in their respective school           year.
boards shall no be delegated.
                                                              The affirmative vote of the majority of all the members
Functions of a local school board                             shall be necessary to approve the budget.
    1.   To determine in accordance with the criteria set     Priorities in the school board budget
         by the DepEd, the annual supplementary
         budgetary needs for the operation and                    1.    Construction, repair, and maintenance of school
         maintenance of public schools within the                       buildings and other facilities of public
         province, city, or municipality, as the case may               elementary and secondary schools;
         be, and the supplementary local costs of                 2.    Establishment and maintenance of extension
         meeting such needs, which shall be reflected in                classes where necessary; and
         the form of an annual school board budget                3.    Sports activities at the division, district,
         corresponding to its share of the proceeds of                  municipal, and barangay levels.
         the special levy on real property constituting the
         Special Education Fund and such other sources        Title V – Local Health Boards
         of revenue as this Code and other laws or
         ordinances may provide;                              There shall be established a local health boards in every
    2.   To authorize the provincial, city or municipal       province, city, or municipality.
         treasurer, as the case may be, to disburse funds
         from the Special Education Fund pursuant to the
         budget prepared and in accordance with                   i.         Provincial Health Board
         existing rules and regulations;
    3.   To serve as an advisory committee to the             Chairman                   Provincial Governor
         sanggunian concerned on educational matters
                                                              Vice – Chairman            Provincial health officer
         such as, but not limited to, the necessity for and
                                                                                          1. Chairman of the
         the uses of local appropriations for educational
         purposes; and                                                                        committee on health of
    4.   To recommend changes in the names of public                                          the sangguniang
         schools within the territorial jurisdiction of the
                                                                                          2. Representative from
         local government unit for enactment by the           Members
                                                                                              Private sector or NGO
         sanggunian concerned.
                                                                                              involved in health
The DepEd shall consult the local school board on the                                         services
appointment of division superintendents, district                                         3. Representative from the
supervisors, school principals, and other officials.                                          DOH in the province

Meetings and quorum
                                                                  ii.        City Health Board
The local school board shall meet at least once a month
or as often as may be necessary.                              Chairman                   City Mayor
                                                              Vice – Chairman            City Health Officer
Any of the co-chairmen may call a meeting.
                                                                                          1. Chairman of the
A majority of all its members shall constitute a quorum.                                       committee on health of
However, when both co-chairmen are present in a                                                the Sangguniang
meeting, the local chief executive concerned, as a matter     Members                          panlalawigan
of protocol, shall be given preference to preside over the                                2. Representative from
meeting.                                                                                       Private sector or NGO
                                                                                               involved in health

                                                                                                              151 D2010
Local Government

                                  services                   A majority of the members of the board shall constitute a
                             3.   Representative from DOH    quorum but the chairman or the vice-chairman must be
                                  in the province            present during meetings where budgetary proposals are
                                                             being prepared or considered.

                                                             The affirmative vote of all the majority of the members
    iii.       Municipal Health Board
                                                             shall be necessary to approve such in proposals.
Chairman                    Municipal Mayor                  Compensation and remuneration
Vice – chairman             Municipal health officer
                            1. Chairman of the               General Rule: The chairman, vice-chairman and
                                committee on health of       members of the local health board shall perform their
                                the sangguniang              duties without compensation or remuneration.
                            2. Representative from           Exception: Members of the local health board who are
Members                         Private sector or NGO        not government officials or employees shall be entitled
                                involved in health           to necessary traveling expenses and allowances
                                services                     chargeable against the funds of the local health board
                            3. Representative from the       concerned, subject to the existing accounting and
                                DOH in the province          auditing rules and regulations.

                                                             Direct national supervision and control by the Secretary
                                                             of Health (Sec 105)
Functions of a local health board
                                                             General Rule: The local health matters in a particular LGU
    1.     To propose to the sanggunian concerned, in        shall be directly controlled and supervised by the local
           accordance with standards and criteria set by     health board.
           the DOH, annual budgetary allocations for the
           operation and maintenance of health facilities    Exception: In cases of epidemics, pestilence, and other
           and services within the municipality, city, or    widespread public health dangers, the Secretary of
           province, as the case may be;                     Health may, upon the direction of the President and in
    2.     To serve as an advisory committee to the          consultation with the LGU concerned, temporarily
           sanggunian concerned on health matters such       assume direct supervision and control over health
           as, but not limited to, the necessity for, and    operations in any LGU for the duration of the emergency,
           application of, local appropriations for public   but in no case exceeding six (6) months. With the
           health purposes; and                              concurrence of the LGU concerned, the period for such
    3.     To create committees, consistent with the         direct supervision and control may be further extended.
           technical standards and administrative
                                                             Title VI – Local Development Councils
           standards of the DOH, which shall advise local
           health agencies on matters such as but not        Section 106. Local Development Councils. Each local
           limited to:                                       government unit shall have a comprehensive
                a. personnel selection and promotion         multisectoral development plan to be initiated by its
                b. bids and awards                           development council and approved by its sanggunian.
                c. grievance and complaints                  For this purpose, the development council at the
                d. personnel discipline                      provincial, city, municipal or barangay level, shall assist
                e. budget review                             the corresponding sanggunian in setting the direction of
                f. operations review                         economic and social development, and coordinating
                g. other similar functions.                  development efforts within its territorial jurisdiction.
Meetings and quorum                                          Comments: The Code has established a local
                                                             development council for every province, city,
The board shall meet at least once a month or as may be
                                                             municipality and barangay. Its primary duty is to initiate
                                                             a comprehensive multisectoral development plan for the

D2010 152
                                                                                                    UP College of Law

LGU concerned, which is submitted to the proper                        shall constitute not less than one-fourth (1/4) of
sanggunian for its approval.                                           the members of the fully organized council.

By initiating the development plan for the LGU                (d) The local development councils may call upon any
concerned, the local development council sets the             local official concerned or any official of national
direction of economic and social development and              agencies or offices in the local government unit to assist
coordinates development efforts within the said local         in the formulation of their respective development plans
government unit. It is not specifically directed by the       and public investment programs.
Code that development planning should start from
below, the local people, and not imposed from the top,        Comments: The local chief executives chair the local
the central government.                                       development councils: (a) the governor for the Provincial
                                                              Development Council, (b) the mayor for the City or
Section 107. Composition of Local Development Councils.       Municipal Development Council and (c) the punong
The composition of the local development council shall        barangay for the Barangay Development Council.
be as follows:
                                                              NGO Members
(a)The barangay development council shall be headed by
the punong barangay and shall be composed of the              The Code gives the NGOs a sizable number of
following members:                                            representatives (not less than ¼ of the total number of
                                                              council members) in the LDCs in recognition of the vital
    1.   Members of the Sangguniang Barangay;                 role that the private sector plays in the development of
    2.   Representatives of nongovernmental                   the different provinces, cities, municipalities and
         organizations operating in the barangay, who         barangays. As members of the LDCs, NGOs can play a
         shall constitute not less than one fourth (1/4) of   substantial role in defining the thrusts of local
         the members of the fully organized council;          development.
    3.   A representative of the congressman.
                                                              Power to Summon Assistance
(b)The City or Municipal Development Council shall be
headed by the mayor and shall be composed of the               The local development councils have the power to
following members:                                            summon any official of an LGU concerned or of the
                                                              national government agency or office in the said LGU to
    1.   All punong barangays in the city or municipality;    assist them in the formulation of their respective
    2.   The chairman of the committee on                     development plans and public investment programs.
         appropriations of the Sangguniang Panlungsod
         or Sangguniang Bayan concerned;                      Section 108. Representation of Nongovernmental
    3.   The congressman or his representative; and           Organizations. Within a period of sixty (6) days from the
    4.   Representatives of nongovernmental                   start of organization of local development councils, the
         organizations operating in the city or               nongovernmental organizations shall choose from
         municipality, as the case may be, who shall          among themselves their representatives to said councils.
         constitute not less than one-fourth (1/4) of the     The local sanggunian concerned shall accredit
         members of the fully organized council.              nongovernmental organizations subject to such criteria
                                                              as may be provided by law.
(c) The Provincial Development Council shall be headed
by the governor and shall be composed of the following        Comments:
                                                              Period to Choose NGO Representatives
    1.   All mayors of component cities and
         municipalities;                                       This section directs that within 60 days from the
    2.   The chairman of the committee on                     organization of the LDC, the NGOs shall choose their
         appropriations of the Sangguniang                    representatives to the council from among themselves.
                                                              It bears repeating that NGO representatives are chosen
    3.   The congressman or his representative; and
                                                              by them. They are not to be appointed by the mayor, the
    4.   Representatives of nongovernmental
                                                              governor nor any other politician.
         organizations operating in the province, who

                                                                                                             153 D2010
Local Government

Accreditation of NGOs                                         Section 110. Meetings and Quorum. The local
                                                              development council shall meet at least once every six
 This section deals with the accreditation of the NGOs by     (6) months or as often as may be necessary.
the local sanggunian concerned according to such criteria
as may be provided by law. Till this date, there is no such   Section 111. Executive Committee.
law yet. The IRR, however, indicate some criteria for the
accreditation of NGOs. The criteria laid down by the IRR      (a) Each local development council shall create an
are helpful guides for accreditation.                         executive committee to represent it and act in its behalf
                                                              when it is not in session. The composition of the
Section 109. Functions of Local Development Councils.         executive committee shall be as follows:

(a)The Provincial, City and Municipal Development                 1.   The executive committee of the Provincial
Councils shall exercise the following functions:                       Development Council shall be composed of the
                                                                       governor as chairman, the representative of
    1.   Formulate long-term, medium-term, and annual                  component city and municipal mayors to be
         socioeconomic development plans and policies;                 chosen from among themselves, the chairman
    2.   Formulate the medium-term and annual public                   of the committee on appropriations of the
         investment programs;                                          Sangguniang Panlalawigan, the president of the
    3.   Appraise and prioritize socioeconomic                         provincial league of barangays, and a
         development programs and projects;                            representative of non-governmental
    4.   Formulate local investment incentives to                      organizations that are represented in the
         promote the inflow and direction of private                   council, as members;
         investment capital;                                      2.   The executive committee of the City or
    5.   Coordinate, monitor and evaluate the                          Municipal Development Council shall be
         implementation of development programs and                    composed of the mayor as chairman, the
         projects; and                                                 chairman of the committee on appropriations of
    6.   Perform such other functions as may be                        the Sangguniang Panlalawigan, the president of
         provided by law or competent authority.                       the city or municipal league of barangays, and a
                                                                       representative of nongovernmental
(b) The barangay development council shall exercise the                organizations that are represented in the
following functions:                                                   council, as members; and
                                                                  3.   The executive committee of the barangay
    1.   Mobilize people’s participation in local
                                                                       development council shall be composed of the
         development efforts;
                                                                       punong barangay as chairman, a representative
    2.   Prepare barangay development plans based on
                                                                       of the Sangguniang Barangay to be chosen from
         local requirements;
                                                                       among its members, and a representative of
    3.   Monitor and evaluate the implementation of
                                                                       nongovernmental organizations that are
         national or local programs and projects; and
                                                                       represented in the council, as members.
    4.   Perform such other functions as may be
         provided by law or competent authority.              (b) The executive committee shall exercise the following
                                                              powers and functions:
Comments: The Barangay Development Council does
essentially the same things for the barangay, although            1.   Ensure that the decision of the council are
there is one thing that it is explicitly empowered to do               faithfully carried out and implemented;
which the other development councils have not been                2.   Act on matters requiring immediate attention or
expressly authorized to do – to mobilize people’s                      action by the council;
participation in local development efforts. It does not           3.   Formulate policies, plans and programs based
mean, however, that other LDCs cannot mobilize popular                 on the general principles laid down by the
participation in local development. In fact, they should               council; and
do so because without popular involvement and support,            4.   Act on other matters that may be authorized by
there will be no substantial development in their                      the council.

D2010 154
                                                                                                UP College of Law

Excom Functions                                             (a) The policies, programs and projects proposed by local
                                                            development councils shall be submitted to the
The main function of the executive committee of a local     sanggunian concerned for appropriate action. The local
development council is to represent it and act in its       development plans approved by their respective
behalf when the council is not meeting.                     sanggunian may be integrated with the development
                                                            plans of the next higher level of local development
Section 112. Sectoral or Functional Committee. The local    council.
development councils may form sectoral or functional
committees to assist them in the performance of their       (b) The approved development plans of provinces, highly
functions.                                                  urbanized cities and independent component cities shall
                                                            be submitted to the Regional Development Council,
Comments: Sectoral/Functional Committees. The Code          which shall be integrated into the regional development
allows the LDCs to create sectoral or functional            plan for submission to the National Economic and
committees to assist them. A sectoral committee may be      Development authority, in accordance with existing laws.
composed of members who come from a particular
sector of society, for example, an urban poor committee     Comments:
or a committee of fisherfolk. Functional committees may
encompass definite duties like a committee on ways and      Sanggunian Approval Needed. Plans, programs and
means or a committee on beautification.                     projects prepared by LDCs do not automatically acquire
                                                            the force of law. They must be submitted to the
Section 113. Secretariat. There is hereby constituted for   sanggunian concerned, which enacts the corresponding
each local development council a secretariat which shall    ordinance to make them enforceable within the territory
be responsible for providing technical support,             of the LGU concerned. The Sanggunian may or may not
documentation of proceedings, preparation of reports        adopt the said plans, programs and projects.
and such other assistance as may be required in the
discharge of its functions. The local development council   Integration with Higher Level LDC Plans. If adopted by
may avail of the services of any nongovernmental            the Sanggunian, the said plans, programs and projects
organization or educational or research institution for     may be integrated with the development plans of the
this purpose.                                               next higher LDC. For example, if the development plans
                                                            of a Municipal Development Council is adopted by the
The secretariats of the Provincial, City and Municipal      municipal Sanggunian, the plans may be made a part of
Development Councils shall be headed by their               the provincial development plan by the Provincial
respective planning and development coordinators. The       Development Council.
secretariat of the barangay development council shall be
headed by the barangay secretary who shall be assisted      Submission to Regional Development Council.
by the city or municipal planning and development           Development plans approved by the Sanggunian of a
coordinator concerned.                                      province, a highly urbanized city or an independent
                                                            component city shall be submitted to the Regional
Comments: LDC Secretariat. The Code does not define         Development Council which shall integrate them into the
the membership of the secretariat of the LDCs but it        regional development plan for submission to the NEDA in
must be headed by the provincial, city or municipal         accordance with existing laws.
Development Coordinators in the case of a province, city
or municipality and by the barangay secretary in the case   The regional development Council has no authority to
of a barangay. The barangay secretary as head of the        disapprove a provincial, city or municipal development
Barangay Secretariat shall be assisted by the city or       plan but it may make its implementation difficult by
municipal planning and development coordinator              recommending its disapproval for funding.
concerned. The reason is that very few, if any, barangay
secretaries would have the expertise to discharge the       Section 115. Budget Information. The Department of
duties of the head of the barangay secretariat on           Budget and Management shall furnish the various local
socioeconomic planning.                                     development councils information on financial resources
                                                            and budgetary allocations applicable to their respective
Section 114. Relation of Local Development Councils to      jurisdictions to guide them in their planning functions.
the Sanggunian and the Regional Development Council.

                                                                                                         155 D2010
Local Government

It is not a requirement for the Department of Budget and        municipality who are appointed by their respective
Management to furnish LDCs with information on                  heads, such as (i) the chief of police; (ii) the Commission
financial resources of and budgetary allocations to the         on Human Rights, if any, in the city or municipality; (iii)
LGUs to guide them in the discharge of their functions.         the commanding general or officer of the armed forces,
                                                                if any, in the city or municipality; (iv) the NBI city or
Title VII – Local Peace and Order Council                       provincial office; (v) the National Security Council; (vi)
                                                                the city or municipal prosecutor’s office or in their
Section 116. Organization. There is hereby established in       absence, the city or municipal attorney; (vii) the DILG, if
every province, city, and municipality a local peace and        any; (viii) the executive director of the Dangerous Drugs
order council, pursuant to Executive Order Numbered             Board; and (ix) 3 representatives of the NGOs and Pos,
Three hundred nine (EO No. 309), as amended, Series of          representing the academic, civic and religious
1988. The local peace and order councils shall have the         organizations in the city or municipality, who are
same composition and functions as those prescribed by           appointed by the mayor upon consultation with the
the said executive board.                                       members of the Council.
Comments:                                                       Local Peace and Order Council Functions
Composition of Peace and Order Council                          The provincial, city and municipal peace and order
                                                                councils have the following duties and functions:
Executive Order No. 309 as amended, Series of 1988,
defines the membership of the local peace and order             (a)       Formulate plans and recommend such measures
council.                                                        to improve or enhance peace and order and public safety
                                                                in their respective areas;
Provincial Peace and Order Council Composition
                                                                (b)       Monitor the implementation of peace and order
 The peace and order council of the province is
                                                                programs and projects at the provincial, city or municipal
composed of the following: (a) the governor as chair; (b)
                                                                levels, and the operation of Civilian Volunteer Self-
the representative of the Sangguniang Panlalawigan,
                                                                Defense Organizations and such other counter-
chosen by its members; (c) the Social Welfare and
                                                                insurgency programs and activities;
Development Officer; (d) the Information Officer; (e) the
Health Officer; and (f) the representatives of the central      (c)       Make periodic assessments of the prevailing
government office or agency in the province who are             peace and order situation in their respective areas and
appointed by their respective heads, such as (i) the PNP        submit a report thereon with recommendations to the
director of the province; (ii) the Commission on Human          chair of the national peace and order council; and
Rights in the province, (iii) the commanding general or
officer of the armed forces, if any, in the province; (iv)      (d)     Perform all other functions assigned by law to
the NBI provincial office; (v) the National Security            the peace and order council.
Council, if any, in the province; (vi) the provincial
prosecutor’s office; (vii) the DILK, if any, in the province;   Regional Peace and Order Council
(viii) the executive director of the Dangerous Drugs
Board; and (ix) 3 representatives of the NGOs and Pos in        In between the national and the local peace and order
the province, representing the academic, civic and              councils, there is another council called the Regional
religious organizations, who are appointed by the               Peace and Order Council, which is composed of their
governor.                                                       counterpart members of the local peace and order
                                                                councils. The Regional Peace and Order Council performs
City/Municipal Peace and Order Council Composition              essentially the same functions as those of the local peace
                                                                and order councils.
The peace and order council of the city or municipality is
composed of the following: (a) the mayor as chair; (b)          Osea v. Malaya
the Sangguniang Panglungsod or Sangguniang Bayan
representative, chosen by the sanggunian from among             Petitioner filed a protest case with the Civil Service
its members; (c) the SWDO; (d) the Information Officer;         Commission alleging that she was appointed as Officer-
(e) the Health Officer; and (f) the representatives of the      in-Charge, Assistant Schools Division Superintendent of
central government office or agency in the city or              Camarines Sur, by the then Secretary of DECS, upon the

D2010 156
                                                                                                  UP College of Law

endorsement of the Provincial School Board of                or reassigned to other positions without violating her
Camarines Sur. However, despite this, President Fidel        right to security of tenure. Indeed, petitioner has no
Ramos, appointed respondent to the position of Schools       vested right to the position of Schools Division
Division Superintendent of Camarines Sur.                    Superintendent of Camarines Sur.

Petitioner claims that the appointment of respondent
was made without prior consultation with the Provincial
School Board, in violation of Section 99 of the Local
Government Code as well as her vested right as the
Schools Division Superintendent of Camarines Sur.

HELD: Section 99 of the LGC applies to appointments
made by the DECS because at the time of the enactment
of the LGC, schools division superintendents were
appointed by the DECS to specific division or location.
However, in 1994, the Career Executive Service Board
issued a Memorandum Circular placing the positions of
schools division superintendent and assistant schools
division superintendent within the career executive
service. Consequently, the power to appoint persons to
career executive service positions was transferred from
the DECS to the President.

In addition, under the circumstances, the designation of
respondent as Schools Division Superintendent of
Camarines Sur was not a case of appointment but rather
in the nature of reassignment. Therefore, Section 99 of
the LGC, which requires prior consultation with the local
school board does not apply.

Appointment should be distinguished from
reassignment. An appointment may be defined as the
selection, by the authority vested with the power, of an
individual who is to exercise the functions of a given
office. When completed, usually with its confirmation,
the appointment results in security of tenure for the
person chosen unless he is replaceable at pleasure
because of the nature of his office.

On the other hand, a reassignment is merely a
movement of an employee from one organizational unit
to another in the same department or agency which
does not involve a reduction in rank, status or salary and
does not require the issuance of an appointment. In the
same vein, a designation connotes merely the imposition
of additional duties on an incumbent official

Petitioner's designation as Officer-in-Charge, Assistant
Schools Division Superintendent, was expressly made
subject to further advice from the DECS. Thus, her
designation was temporary. In fact, there was a need to
recommend her to the President for appointment in a
permanent capacity. Inasmuch as she occupied her
position only temporarily, petitioner can be transferred

                                                                                                           157 D2010
Local Government

                                     Local Taxation and Fiscal Matters

Book II Title 3, LGC                                           Pimentel v. Aguirre (supra)

See above                                                      See above

Shares of LGUs in national taxes

                                            Local Government Units

                                                                                                       THE BARANGAY

Sec 384-439                                                    sangguniang panlalawigan or sangguniang panlungsod,
                                                               subject to approval by a majority of the votes cast in a
CHAPTER I - Role and creation of the Barangay                  plebiscite to be conducted by the Comelec in the local
                                                               government unit or units directly affected within such
Section 384. Role of the Barangay. As the basic political      period of time as may be determined by the law or
unit, the barangay serves as the primary planning and          ordinance creating said barangay. In the case of the
implementing unit of government policies, plans,               creation of barangays by the sangguniang panlalawigan,
programs, projects and activities in the community, and        the recommendation of the sangguniang bayan
as a forum wherein the collective views of the people          concerned shall be necessary.
may be expressed, crystallized and considered, and
where disputes may be amicably settled.                        Section 386. Requisites for Creation.

Comments:                                                      (a) A barangay maybe created out of a contiguous
                                                               territory which has apopulation of at least two thousand
The barangay discharges three seminal functions:               (2,000) inhabitants ascertified by the National Statistics
                                                               Office except in cities and municipalities within Metro
(a) as a basic political unit  the barangay is the smallest   Manila and other metropolitan political subdivisions or in
political entity used for governance in the country.           highly urbanized cities where such territory shall have a
                                                               certified population of at least five thousand (5,000)
(b) as a primary planning and implementing unit  the
                                                               inhabitants: Provided, That the creation thereof shall not
barangay is mandated to plan development projects in
                                                               reduce the population of the original barangay or
its territory and to deliver some basic services of the
                                                               barangays to less than the minimum requirement
government to its people.
                                                               prescribed herein.
(c) as a forum  the barangay gets soundings of the
                                                               To enhance the delivery of basic services in the
views of the people on various topics. It also provides a
                                                               indigenous cultural communities, barangays may be
venue for the settlement of disputes amicably.                 created in such communities by an Act of Congress,
Section 385. Manner of Creation. - A barangay may be           notwithstanding the above requirement.
created, divided, merged, abolished, or its boundary
                                                               (b) The territorial jurisdiction of the new barangay shall
substantially altered, by law or by an ordinance of the
                                                               be properly identified by metes and bounds or by more

D2010 158
                                                                                                     UP College of Law

or less permanent natural boundaries. The territory need       With an appropriate plan for consolidation of barangays
not be contiguous if it comprises two (2) or more islands.     prepared by the governor or city mayor, the local
                                                               sanggunian may consolidate barangays within its
(c) The governor or city mayor may prepare a                   territory based upon the criteria set forth in this section.
consolidation plan for barangays, based on the criteria        Consolidation may be the only way to solve the problem
prescribed in this Section, within his territorial             of hundreds of barangays throughout the country whose
jurisdiction. The plan shall be submitted to the               territorial jurisdictions are ill-defined and which in the
sangguniang panlalawigan or sangguniang panlungsod             urban centers may comprise only a block or two.
concerned for appropriate action. In the case of
municipalities within the Metropolitan Manila area and         In the Metropolitan Manila Area, the consolidation plan
other metropolitan political subdivisions, the barangay        for barangays shall be approved by the Sangguniang
consolidation plan shall be prepared and approved by           Bayan of the municipalities and Sangguniang Panlungsod
the sangguniang bayan concerned.                               of the cities.

Comments:                                                      CHAPTER II - Barangay officials and offices

Unlike provinces, cities or municipalities which need a        Section 387. Chief Officials and Offices.
definite territorial size to be created, all that the Code
requires in terms of area for newly created barangays is       (a) There shall be in each barangay a punong barangay,
that it be contiguous. The Code takes into account the         seven (7) sangguniang barangay members, the
fact that when barangays were created during the               sangguniang kabataan chairman, a barangay secretary,
Marcos years, their territories were not defined by            and a barangay treasurer.
specific metes and bounds and therefore came in
different sizes, some comprising only a block or two in        (b) There shall also be in every barangay a lupong
the city and others covering areas larger than some            tagapamayapa. The sangguniang barangay may form
municipalities. Now, the Code directs that the territory of    community brigades and create such other positions or
the new barangay shall be identified by metes and              offices as may be deemed necessary to carry out the
bounds or by more or less permanent boundaries.                purposes of the barangay government in accordance
                                                               with the needs of public service, subject to the budgetary
The requirement of contiguity of barangay areas is not         limitations on personal services prescribed under Title
mandatory when the barangay comprises two or more              Five, Book II of this Code.
Population Requirement
                                                               Aside from the principal officials for the barangay,
In general, at least 2,000 inhabitants are needed to           namely the punong barangay and the seven Sangguniang
qualify a barangay for creation. But when the barangay         Barangay members, the Sangguniang Kabataan chair, the
being created is within highly urbanized cities or in cities   barangay secretary and the barangay treasurer, there are
and municipalities in the Metropolitan Manila Area or          other important officials in the barangay, namely the
other metropolitan political subdivisions, the population      members of the Lupong Tagapamayapa and the
requirement is 5,000. The population required must be          Community Brigades such as the Tanod Brigade and the
certified by the NSO.                                          Disaster Brigade.

It is also required that the population of the new             Section 388. Persons in Authority. - For purposes of the
barangay does not reduce the population of the original        Revised Penal Code, the punong barangay, sangguniang
barangay from which it is being created to levels below        barangay members, and members of the lupong
the numbers now required by the Code. Nonetheless,             tagapamayapa in each barangay shall be deemed as
barangays may be created by law within areas occupied          persons in authority in their jurisdictions, while other
by indigenous cultural communities even if their               barangay officials and members who may be designated
population may be below the required numbers                   by law or ordinance and charged with the maintenance
stipulated in the Code. The reason for this exemption is       of public order, protection and security of life and
to enhance the delivery of basic services.                     property, or the maintenance of a desirable and
                                                               balanced environment, and any barangay member who
Consolidation of Barangays

                                                                                                               159 D2010
Local Government

comes to the aid of persons in authority, shall be           the members of the Sangguniang Barangay or kagawads
deemed agents of persons in authority.                       and members of the Lupong Tagapamayapa are now
                                                             considered not merely agents of, but as persons, in
Comments:                                                    authority.
Punong barangays, members of Sangguniang Barangays           Protecting Environment as Agents of Persons in Authority
and Lupong Tagapamayapa are considered persons in
authority under this section. For purposes of the Code,      Barangay officials and members designated by law or
the definition of a person in authority in the Revised       ordinance to maintain a desirable and balanced
Penal Code is relevant.                                      environment or who come to the aid of persons in
                                                             authority who protect the environment are considered
Article 152 of the Revised Penal Code states that “any       agents of persons in authority.
person directly vested with jurisdiction, whether as an
individual or as a member of some court or                   Consequences of Being Persons in Authority/Agents of
governmental corporation, board or commission, shall be      Persons in Authority
deemed a person in authority. A barangay captain and a
barangay chairman shall also be deemed a person in           As persons in authority, they are entitled to respect and
authority.”                                                  may request assistance from barangay residents in the
                                                             performance of their duties. Also, because they are
The article also defines an agent of a person in authority   considered persons in authority, if they are physically
as: “Any person who, by direct provision of law or by        harmed, the person responsible may be charged for
election or by appointment by competent authority, is        higher degree felonies than would otherwise be the case.
charged with the maintenance of public order and the         For example, if a barangay resident is attacked physically
protection and security of life and property, such as a      but without any intent to kill and he suffers some
barrio councilman, barrio policeman and barangay leader      injuries, the attacker may be charged for physical
and any person who comes to the aid of persons in            injuries. But if the victim is a barangay official, the charge
authority…”                                                  may be for the more serious offense of assault upon a
                                                             person in authority or upon an agent of a person in
Definition Modified                                          authority for which a higher penalty is imposable.

That definition is now modified. In addition to the          Power to Arrest and Detain
punong barangay, the members of the Sangguniang
Barangay and the Lupong Tagapamayapa are now                 A barangay captain (now called punong barangay) is a
considered not merely as agents of but as persons in         peace officer in the barrio (barangay) and is considered
authority in the Code. But other barangay officials and      under the law as a person in authority. As such, he may
members who may be designated by law or ordinance            make arrests and detain persons within legal limits but if
and charged with the maintenance of public order,            the detention is without legal grounds, the punong
protection and security of life and property, or the         barangay may be charged for arbitrary detention as
maintenance of a desirable and balanced environment,         defined in Article 124 of the Revised Penal Code.
and any barangay member who comes to the aid of
persons in authority continue to be deemed agents of         CHAPTER III - The Punong Barangay
persons in authority.
                                                             Section 389. Chief Executive: Powers, Duties and
Section 388 of the Code provides that “for purposes of       Functions.
the Revised Penal Code, the punong barangay, the
Sangguniang Barangay members and the members of the          (a)The punong barangay, as the chief executive of the
Lupong Tagapamayapa in each barangay shall be                barangay government, shall exercise such powers and
deemed as persons in authority in their jurisdictions…”      perform such duties and functions, as provided by this
This law expands the definition of a person in authority     Code and other laws.
under the Revised Penal Code, wherein among the
                                                             (b)For efficient, effective and economical governance,
barangay officials, only the barangay captain or
                                                             the purpose of which is the general welfare of the
chairman, now called the punong barangay, is expressly
                                                             barangay and its inhabitants pursuant to Section 16 of
considered a person in authority, as provided in Article
                                                             this Code, the punong barangay shall:
152 thereof. Thus, in addition to the punong barangay,

D2010 160
                                                                                                    UP College of Law

    1.    Enforce all laws and ordinances which are           Barangay Chief Executive
          applicable within the barangay;
    2.    Negotiate, enter into, and sign contracts for and   To a lesser extent, the punong barangay is the equivalent
          in behalf of the barangay, upon authorization of    of the governor of a province or the mayor of a city or
          the sangguniang barangay;                           municipality as chief executive for his barangay.
    3.    Maintain public order in the barangay and, in
          pursuance thereof, assist the city or municipal     Power of Appointment
          mayor and the sanggunian members in the
                                                              The appointment of barangay officials by the punong
          performance of their duties and functions;
                                                              barangay is subject to confirmation by the majority of all
    4.    Call and preside over the sessions of the
                                                              the members of the Sangguniang Barangay.
          sangguniang barangay and the barangay
          assembly, and vote only to break a tie;             Some Powers of Punong Barangay
    5.    Upon approval by a majority of all the members
          of the sangguniang barangay, appoint or replace                      Among the more important powers
          the barangay treasurer, the barangay secretary,                       attached to his office by the Code are
          and other appointive barangay officials;                              the (a) enforcement of laws relative to
    6.    Organize and lead an emergency group                                  pollution control and protection of the
          whenever the same may be necessary for the                            environment; (b) administration of
          maintenance of peace and order or on                                  barangay justice or Katarungang
          occasions of emergency or calamity within the                         Pambarangay; and (c) holding of annual
          barangay;                                                             palarong barangay in coordination with
    7.    In coordination with the barangay development                         the Department of Education, Culture
          council, prepare the annual executive and                             and Sports.
          supplemental budgets of the barangay;                                Enforcement of Anti-Pollution Laws.
    8.    Approve vouchers relating to the disbursement                         The punong barangay has the power to
          of barangay funds;                                                    protect the environment and to
    9.    Enforce laws and regulations relating to                              enforce laws against pollution
          pollution control and protection of the                              Palarong Barangay. The punong
          environment;                                                          barangay has the power to conduct the
    10.   Administer the operation of the Katarungang                           annual Palarong Barangay. The idea is
          Pambarangay in accordance with the provisions                         to encourage the youth of the land,
          of this Code;                                                         including those living in the remotest
    11.   Exercise general supervision over the activities                      areas, to participate in sports activities.
          of the sangguniang kabataan;                                          It is hoped that through the palarong
    12.   Ensure the delivery of basic services as                              barangay, they may develop into
          mandated under Section 17 of this Code;                               national, if not international, class
    13.   Conduct an annual palarong barangay which                             athletes.
          shall feature traditional sports and disciplines                     Right to Carry Firearms. The punong
          included in national and international games, in                      barangay is entitled to possess and
          coordination with the Department of Education,                        carry a firearm within his barangay
          Culture and Sports;                                                   while discharging his duties.
    14.   Promote the general welfare of the barangay;
          and                                                 CHAPTER IV - The Sangguniang Barangay
    15.   Exercise such other powers and perform such
          other duties and functions as may be prescribed     Section 390. Composition. The Sangguniang Barangay,
          by law or ordinance.                                the legislative body of the barangay, shall be composed
                                                              of the punong barangay as presiding officer, and the
(c) In the performance of his peace and order functions,      seven (7) regular Sangguniang Barangay members
the punong barangay shall be entitled to possess and          elected at large and Sangguniang Kabataan chairman, as
carry the necessary firearm within his territorial            members.
jurisdiction, subject to appropriate rules and regulations.

                                                                                                              161 D2010
Local Government

The punong barangay is a part of the Sangguniang                 barangay; monies from grants-in-aid, subsidies,
Barangay of which he is the presiding officer.                   contributions, and revenues made available to
                                                                 the barangays from national, provincial, city or
The Supreme Court has stressed that “*a+ petition or             municipal funds; and monies from other private
protest contesting the election of barangay officer              agencies and individuals: Provided, however,
should be decided by the municipal or metropolitan trial         That monies or properties donated by private
court within 15 days from filing thereof. xxx Election           agencies and individuals for specific purposes
cases, unlike ordinary actions, involve public interest.         shall accrue to the barangay as trust fund;
Time is of the essence in its disposition since the          9. Solicit or accept, in any or all the foregoing
uncertainty as to who is the real choice of the people for       public works and cooperative enterprises, such
the position must soonest be dispelled. It is neither fair       cooperation as is made available by national,
nor just that one of whose right to the office is in doubt       provincial, city, or municipal agencies
should remain in that office for an uncertain period.”           established by law to render financial, technical,
                                                                 and advisory assistance to barangays and to
Section 391. Powers, Duties and Functions.                       barangay residents: Provided, however, That in
                                                                 soliciting or accepting such cooperation, the
(a) The sangguniang barangay, as the legislative body of
                                                                 sangguniang barangay need not pledge any sum
the barangay, shall:
                                                                 of money for expenditure in excess of amounts
    1.   Enact ordinances as may be necessary to                 currently in the barangay treasury or
         discharge the responsibilities conferred upon it        encumbered for other purposes;
         by law or ordinance and to promote the general      10. Provide compensation, reasonable allowances
         welfare of the inhabitants therein;                     or per diems as well as travel expenses for
    2.   Enact tax and revenue ordinances, subject to            sangguniang barangay members and other
         the limitations imposed in this Code;                   barangay officials, subject to the budgetary
    3.   Enact annual and supplemental budgets in                limitations prescribed under Title Five, Book II of
         accordance with the provisions of this Code;            this Code: Provided, however, That no increase
    4.   Provide for the construction and maintenance            in the com- pensation or honoraria of the
         of barangay facilities and other public works           sangguniang barangay members shall take
         projects chargeable to the general fund of the          effect until after the expiration of the full term
         barangay or such other funds actually available         of all members of the sangguniang barangay
         for the purpose;                                        approving such increase;
    5.   Submit to the sangguniang panlungsod or             11. Hold fund-raising activities for barangay projects
         sangguniang bayan such suggestions or                   without the need of securing permits from any
         recommendations as it may see fit for the               national or local office or agency. The proceeds
         improvement of the barangay or for the welfare          from such activities shall be tax-exempt and
         of the inhabitants thereof;                             shall accrue to the general fund of the barangay:
    6.   Assist in the establishment, organization, and          Provided, That in the appropriation thereof, the
         promotion of cooperative enterprises that will          specific purpose for which such fund-raising
         improve the economic condition and well-being           activity has been held shall be first satisfied:
         of the residents;                                       Provided, further, That no fund-raising activities
    7.   Regulate the use of multi-purpose halls, multi-         shall be held within a period of sixty (60) days
         purpose pavements, grain or copra dryers,               immediately preceding and after a national or
         patios and other post-harvest facilities,               local election, recall, referendum, or plebiscite:
         barangay waterworks, barangay markets,                  Provided, finally, That said fund-raising activities
         parking areas or other similar facilities               shall comply with national policy standards and
         constructed with government funds within the            regulations on morals, health, and safety of the
         jurisdiction of the barangay and charge                 persons participating therein. The sangguniang
         reasonable fees for the use thereof;                    barangay, through the punong barangay, shall
    8.   Solicit or accept monies, materials and voluntary       render a public accounting of the funds raised at
         labor for specific public works and cooperative         the completion of the project for which the
         enterprises of the barangay from residents, land        fund-raising activity was under- taken;
         owners, producers and merchants in the

D2010 162
                                                                                                 UP College of Law

    12. Authorize the punong barangay to enter into        barangay facilities, including parking areas, markets,
        contracts in behalf of the barangay, subject to    copra dryers, multipurpose halls and the like; (c) to assist
        the provisions of this Code;                       in the establishment of cooperatives to improve the
    13. Authorize the barangay treasurer to make direct    economic well-being of the barangay residents; (d) to
        purchases in an amount not exceeding One           provide compensation, allowances, per diems and travel
        thousand pesos (P1,000.00) at any one time for     expenses for barangay officials subject to the limitations
        the ordinary and essential administrative needs    provided for in this Code; (e) to authorize direct
        of the barangay;                                   purchases by the barangay treasurer of not more than
    14. Prescribe fines in amounts not exceeding One       P1,000 worth of items at any one time that are ordinarily
        thousand pesos (P1,000.00) for violation of        and essentially needed by the barangay; (f) to prescribe
        barangay ordinances;                               fines of not more than P1,000 for violations of barangay
    15. Provide for the administrative needs of the        ordinances; (g) to adopt measures to combat drug abuse,
        lupong tagapamayapa and the pangkat ng             child abuse and juvenile delinquency; (h) to provide for
        tagapagkasundo;                                    the establishment of non-formal education centers; and
    16. Provide for the organization of community          (i) to provide for the delivery of basic services.
        brigades, barangay tanod, or community service
        units as may be necessary;                         Section 392. Other Duties of Sangguniang Barangay
    17. Organize regular lectures, programs, or fora on    Members. In addition to their duties as members of the
        community problems such as sanitation,             Sangguniang Barangay, Sangguniang Barangay members
        nutrition, literacy, and drug abuse, and convene   may:
        assemblies to encourage citizen participation in
        government;                                        (a) Assist the punong barangay in the discharge of his
    18. Adopt measures to prevent and control the          duties and functions;
        proliferation of squatters and mendicants in the
                                                           (b) Act as peace officers in the maintenance of public
                                                           order and safety; and
    19. Provide for the proper development and
        welfare of children in the barangay by             (c) Perform such other duties and functions as the
        promoting and supporting activities for the        punong barangay may delegate.
        protection and total development of children,
        particularly those below seven (7) years of age;   Section 393. Benefits of Barangay Officials.
    20. Adopt measures towards the prevention and
        eradication of drug abuse, child abuse, and        (a) Barangay officials, including barangay tanods and
        juvenile delinquency;                              members of the lupong tagapamayapa, shall receive
    21. Initiate the establishment of a barangay high      honoraria, allowances, and such other emoluments as
        school, whenever feasible, in accordance with      may be authorized by law or barangay, municipal or city
        law;                                               ordinance in accordance with the provisions of this Code,
    22. Provide for the establishment of a non-formal      but in no case shall it be less than One thousand pesos
        education center in the barangay whenever          (P=1,000.00) per month for the punong barangay and Six
        feasible, in coordination with the Department of   hundred pesos (P=600.00) per month for the
        Education, Culture and Sports, ;                   sangguniang barangay members, barangay treasurer,
    23. Provide for the delivery of basic services; and    and barangay secretary: Provided, however, That the
    24. Exercise such other powers and perform such        annual appropriations for personal services shall be
        other duties and functions as may be prescribed    subject to the budgetary limitations prescribed under
        by law or ordinance.                               Title Five, Book II of this Code;

Comments:                                                  (b) The punong barangay, the sangguniang barangay
                                                           members, the barangay treasurer, and the barangay
Wider powers are now enjoyed by the Sangguniang            secretary shall also:
Barangay than was previously the case.
                                                               1.       Be entitled to Christmas bonus of at least
Among the more noteworthy of its powers are: (a) to                     One thousand pesos (P=1,000.00) each, the
enact tax and other revenue measures authorized by the                  funds for which shall be taken from the
Code; (b) to regulate and charge fees for the use of                    general fund of the barangay or from such

                                                                                                          163 D2010
Local Government

             other funds appropriated by the national         insurance or other benefits during their incumbency,
             government for the purpose;                      chargeable to the barangay or the city or municipal
    2.       Be entitled, during their incumbency, to         government to which the barangay belongs.
             insurance coverage which shall include, but
             shall not be limited to temporary and            Comments:
             permanent disability, double indemnity,
             accident insurance, death and burial             Barangays may now grant honoraria, allowances and
             benefits, in accordance with Republic Act        other emoluments to their barangay officials, barangay
             Numbered Sixty-nine hundred forty-two            tanods and members of the Lupong Tagapamayapa.
             (R.A. No. 6942), entitled "An Act Increasing
                                                              The minimum is P1,000 per month for the punong
             the Insurance Benefits of Local Government
                                                              barangay and P600 for the Sangguniang Barangay
             Officials and Providing Funds Therefor";
                                                              members, Barangay Treasurers and Barangay Secretaries
    3.       Be entitled to free medical care including
                                                              subject, however, to the requirement that not more than
             subsistence, medicines, and medical
                                                              55% of the total annual income actually realized by the
             attendance in any government hospital or
                                                              barangay from local sources during the next preceding
             institution: Provided, That such hospital
                                                              fiscal year shall be set aside for personal services.
             care shall include surgery or surgical
                                                              Increase of honoraria or compensation awarded by the
             expenses, medicines, X-rays, laboratory
                                                              Sangguniang Barangay for their elective members cannot
             fees, and other hospital expenses; In case
                                                              take effect until after their term is over as provided for
             of extreme urgency where there is no
                                                              under Section 391(10).
             available government hospital or
             institution, the barangay official concerned     Among the more noteworthy benefits to which barangay
             may submit himself for immediate medical         officials are entitled are the following: (a) a Christmas
             attendance to the nearest private clinic,        bonus of at least P1,000 each; (b) insurance coverage; (c)
             hospital or institution and the expenses not     free medical care in government hospitals, (d) free
             exceeding Five thousand pesos (P=5,000.00)       education for their legitimate dependent children in
             that may be incurred therein shall be            state colleges or universities and for themselves in state
             chargeable against the funds of the              colleges or universities located in the province or city
             barangay concerned;                              where their barangays belong; (e) appropriate civil
    4.       Be exempted during their incumbency from         service eligibility on the basis of their length of service to
             paying tuition and matriculation fees for        their barangays; and (f) after their tenure of office,
             their legitimate dependent children              preference in appointments to government-owned or –
             attending state colleges or universities. He     controlled corporations.
             may likewise avail of such educational
             benefits in a state college or university        The insurance for barangay officials includes disability
             located within the province or city to which     benefits, double indemnity, accident coverage, death
             the barangay belongs; and                        and burial benefits pursuant to the law that increases the
    5.       Be entitled to appropriate civil service         insurance benefits of local government officials (R.A.
             eligibility on the basis of the number of        6942).
             years of service to the barangay, pursuant
             to the rules and regulations issued by the       The free medical care to which these officials are entitled
             Civil Service Commission.                        includes surgery or surgical expenses, medicines, x-rays,
                                                              laboratory fees and other hospital expenses in
(c) Elective barangay officials shall have preference in      government hospitals.
appointments to any government position or in any
government-owned or -controlled corporations,                 There is no limit as to the number of legitimate
including their subsidiaries, after their tenure of office,   dependent children of barangay officials who are entitled
subject to the requisite qualifications and the provisions    to free tertiary education in state colleges or universities.
of the immediately preceding paragraph.
                                                              Barangay tanods are also entitled to insurance coverage
(d) All duly appointed members of the barangay tanod          and other benefits chargeable to the barangay
brigades, or their equivalent, which shall number not         concerned or to the city or municipality to which the
more than twenty (20) in each barangay, shall be granted      barangay belongs.

D2010 164
                                                                                                     UP College of Law

CHAPTER V - Appointive barangay officials                     Mandatory Barangay Appointive Officials

Section 394. Barangay Secretary: Appointment,                 The barangay secretary and the barangay treasurer are
Qualifications, Powers and Duties.                            mandatory officers who are to be appointed by the
                                                              Punong Barangay subject to the approval of the majority
(a)The barangay secretary shall be appointed by the           of all the members of the Sangguniang Barangay
punong barangay with the concurrence of the majority of       concerned. There are other mandatory barangay officials
all the sangguniang barangay members. The                     like the Lupong Tagapamayapa and the Pangkat ng
appointment of the barangay secretary shall not be            Tagapagkasundo who are mentioned specifically by the
subject to attestation by the Civil Service Commission.       Code.
(b) The barangay secretary shall be of legal age, a           The barangay may create other positions which may be
qualified voter and an actual resident of the barangay        filled by appointment by the punong barangay subject to
concerned.                                                    approval of a majority of the members of the
                                                              Sangguniang Barangay.
(c) No person shall be appointed barangay secretary if he
is a sangguniang barangay member, a government                Civil Registrar Duties of Barangay Secretary
employee, or a relative of the punong barangay within
the fourth civil degree of consanguinity or affinity.         One of the more important duties of the barangay
                                                              secretary is to assist the municipal civil registrar in the
(d) The barangay secretary shall:                             registration of births, deaths and marriages. Another is
                                                              to keep an updated record of all inhabitants of the
    1.       Keep custody of all records of the               barangay containing their names, addresses, places of
             sangguniang barangay and the barangay            birth, sexes, civil statuses, citizenships, occupations and
             assembly meetings;                               other items of information as may be prescribed by law
    2.       Prepare and keep the minutes of all              or ordinance.
             meetings of the sangguniang barangay and
             the barangay assembly;                           Section 395. Barangay Treasurer: Appointment,
    3.       Prepare a list of members of the barangay        Qualifications, Powers and Duties.
             assembly, and have the same posted in
             conspicuous places within the barangay;          (a) The barangay treasurer shall be appointed by the
    4.       Assist in the preparation of all necessary       punong barangay with the concurrence of the majority of
             forms for the conduct of barangay                all the sangguniang barangay members. The
             elections, initiatives, referenda or             appointment of the barangay treasurer shall not be
             plebiscites, in coordination with the            subject to attestation by the Civil Service Commission.
    5.       Assist the municipal civil registrar in the      (b) The barangay treasurer shall be of legal age, a
             registration of births, deaths, and              qualified voter, and an actual resident of the barangay
             marriages;                                       concerned.
    6.       Keep an updated record of all inhabitants of
             the barangay containing the following items      (c) No person shall be appointed barangay treasurer if he
             of information: name, address, place and         is a sangguniang barangay member, a government
             date of birth, sex, civil status, citizenship,   employee, or a relative of the punong barangay within
             occupation, and such other items of              the fourth civil degree of consanguinity or affinity.
             information as may be prescribed by law or
                                                              (d) The barangay treasurer shall be bonded in
                                                              accordance with existing laws in an amount to be
    7.       Submit a report on the actual number of
                                                              determined by the sangguniang barangay but not
             barangay residents as often as may be
                                                              exceeding Ten thousand pesos (P=10,000.00), premiums
             required by the sangguniang barangay; and
                                                              for which shall be paid by the barangay.
    8.       Exercise such other powers and perform
             such other duties and functions as may be        (e) The barangay treasurer shall:
             prescribed by law or ordinance.
                                                                  1.   Keep custody of barangay funds and properties;

                                                                                                              165 D2010
Local Government

    2.   Collect and issue official receipts for taxes, fees,   CHAPTER VI - Barangay Assembly
         contributions, monies, materials, and all other
         resources accruing to the barangay treasury and        Section 397. Composition; Meetings.
         deposit the same in the account of the barangay
         as provided under Title Five, Book II of this          (a) There shall be a barangay assembly composed of all
         Code;                                                  persons who are actual residents of the barangay for at
    3.   Disburse funds in accordance with the financial        least six (6) months, fifteen (15) years of age or over,
         procedures provided in this Code;                      citizens of the Philippines, and duly registered in the list
    4.   Submit to the punong barangay a statement              of barangay assembly members.
         covering the actual and estimates of income and
                                                                (b) The barangay assembly shall meet at least twice a
         expenditures for the preceding and ensuing
                                                                year to hear and discuss the semestral report of the
         calendar years, respectively, subject to the
                                                                sangguniang barangay concerning its activities and
         provisions of Title Five, Book II of this Code;
                                                                finances as well as problems affecting the barangay. Its
    5.   Render a written accounting report of all
                                                                meetings shall be held upon call of the punong barangay
         barangay funds and property under his custody
                                                                or of at least four (4) members of the sangguniang
         at the end of each calendar year, and ensure
                                                                barangay, or upon written petition of at least five
         that such report shall be made available to the
                                                                percent (5%) of the assembly members.
         members of the barangay assembly and other
         government agencies concerned;                         (c) No meeting of the barangay assembly shall take place
    6.   Certify as to the availability of funds whenever       unless a written notice is given one (1) week prior to the
         necessary;                                             meeting except on matters involving public safety or
    7.   Plan and attend to the rural postal circuit within     security, in which case notice within a reasonable time
         his jurisdiction; and                                  shall be sufficient. The punong barangay, or in his
    8.   Exercise such other powers and perform such            absence, the sangguniang barangay member acting as
         other duties and functions as may be prescribed        punong barangay, or any assembly member selected
         by law or ordinance.                                   during the meeting, shall act as presiding officer in all the
                                                                meetings of the assembly. The barangay secretary, or in
                                                                his absence, any member designated by the presiding
Barangay treasurers are appointed by the punong                 officer to act as secretary, shall discharge the duties of
barangay subject to the approval of the majority of the         secretary of the barangay assembly.
members of the Sangguniang Barangay.
The Code prohibits the appointment of a person as
                                                                Barangay Assembly Composition
barangay treasurer if he is a member of the Sangguniang
Barangay, a government employee or a relative of the            Actual residents of a barangay for at least 6 months who
punong barangay within the fourth civil degree of               are citizens of the Republic, at least 15 years of age and
consanguinity or affinity.                                      are registered in the list of barangay assembly members
                                                                compose the Barangay Assembly.
It is absolute only in the case of a relative of the punong
barangay within the fourth civil degree of consanguinity        Barangay Assembly Meetings
or affinity. It is not absolute in the case of a member of
the Sangguniang Barangay or a government employee               Mandatory meetings of the Barangay Assembly are at
who can resign as such and then accept appointment as           least twice a year.
barangay treasurer.
                                                                Meetings may be called by the punong barangay or by at
The barangay treasurer shall be bonded in an amount             least four members of the Sangguniang Barangay or
not exceeding P10,000.                                          upon petition of at least 5% of the assembly members.

Section 396. Other Appointive Officials. The                    Written notice is required to be sent at least one week
qualifications, duties and functions of all other barangay      before the meeting is held except when matters
officials appointed by the punong barangay shall be             involving public safety or security are the main agenda of
governed by the provisions of this Code and other laws          the meeting, in which case, notice for a shorter period is
or by barangay ordinances.                                      allowed.

D2010 166
                                                                                                     UP College of Law

The punong barangay presides at the Barangay Assembly         How
meetings. If he is absent, the acting punong barangay
                                                              (c) A notice to constitute the lupon
takes over or any assembly member selected during the
meeting may act as president officer.                                          which shall include the names of
                                                                                proposed members
Section 398. Powers of the Barangay Assembly. The                              who have expressed their willingness
barangay assembly shall:                                                        to serve
                                                                               shall be prepared by the punong
(a) Initiate legislative processes by recommending to the
sangguniang barangay the adoption of measures for the
                                                                               within the first fifteen (15) days from
welfare of the barangay and the city or municipality
                                                                                the start of his term of office
                                                                               Notice shall be posted in three (3)
(b) Decide on the adoption of initiative as a legal process                     conspicuous places in the barangay
whereby the registered voters of the barangay may                               continuously for a period of not less
directly propose, enact, or amend any ordinance; and                            than three (3) weeks

(c) Hear and pass upon the semestral report of the            Appointment, when discretionary
sangguniang barangay concerning its activities and            (d) Taking into consideration any opposition to the
finances.                                                     proposed appointment or any recommendations for
                                                              appointment as may have been made within the period
Comments:                                                     of posting, the Punong Barangay
Assemblies as Forums. Barangay Assemblies provide the                          shall within ten (10) days thereafter
forum for the discussion of barangay development plans                         appoint as members those whom he
or petitions for the adoption of initiative to enact or                         determines to be suitable therefor
amend a barangay ordinance.                                                    Appointments shall be in writing,
                                                                                signed by the punong barangay, and
CHAPTER VII – Katarungang Pambarangay
                                                                                attested to by the barangay secretary.
Section 399. Lupong Tagapamayapa
                                                              (e) The list of appointed members shall be posted in
What                                                          three (3) conspicuous places in the barangay for the
(a) There is hereby created in each barangay a lupong         entire duration of their term of office; and
tagapamayapa, composed of                                     (f) In barangays where majority of the inhabitants are
                 the Punong Barangay, as chairman            members of indigenous cultural communities, local
                 ten (10) to twenty (20) members.            systems of settling disputes through their councils of
                                                              datus or elders shall be recognized without prejudice to
                 The lupon shall be constituted every
                                                              the applicable provisions of this Code.
                  three (3) years in the manner provided
                  herein.                                     Section 400. Oath and Term of Office.

Who                                                               1.   Upon appointment, each lupon member shall
                                                                       take an oath of office before the punong
(b) Any person                                                         barangay.
                                                                  2.   He shall hold office until a new lupon is
                 actually residing or working
                                                                       constituted on the third year following his
                 in the barangay
                                                                       appointment unless sooner terminated by
                 not otherwise expressly disqualified by
                                                                       resignation, transfer of residence or place of
                                                                       work, or withdrawal of appointment by the
                 and possessing integrity, impartiality,              punong barangay with the concurrence of the
                  independence of mind, sense of                       majority of all the members of the lupon.
                  fairness, and reputation for probity,
                  may be appointed a member of the            Section 401. Vacancies.
                  lupon.                                      Punong barangay shall immediately appoint a qualified

                                                                                                             167 D2010
Local Government

person who shall hold office only for the unexpired                           prepares minutes of the pangkat
portion of the term.                                                           proceedings
Section 402. Functions of the Lupon.                                          submits a copy duly attested to by the
                                                                               chairman to the lupon secretary and to
(a) Exercise administrative supervision over the                               the proper city or municipal court
conciliation panels provided herein;                                          issue and cause to be served notices to
(b) Meet regularly once a month to                                             the parties concerned.

                 provide a forum for exchange of ideas      The lupon secretary shall issue certified true copies of
                  among its members and the public on        any public record in his custody that is not by law
                  matters relevant to the amicable           otherwise declared confidential.
                  settlement of disputes,
                                                             Section 405. Vacancies in the Pangkat.
                 to enable various conciliation panel
                  members to share with one another          Chosen by the parties to the dispute from among the
                  their observations and experiences in      other lupon members.
                  effecting speedy resolution of disputes;   Should the parties fail to agree on a common choice, the
                  and                                        vacancy shall be filled by lot to be drawn by the lupon
(c) Exercise such other powers and perform such other
duties and functions as may be prescribed by law or          Section 406. Character of Office and Service of Lupon
ordinance.                                                   Members.
Section 403. Secretary of the Lupon.                         (a) The lupon members deemd as persons in authority
                                                             (as defined in the RPC) while in the performance of their
                 The barangay secretary concurrently
                                                             official duties or on the occasion thereof.
                  serves as the secretary of the lupon.
                 Records the results of mediation           (b) Lupon and pangkat members serve without
                  proceedings before the punong              compensation without prejudice to incentives.. The DILG
                  barangay                                   shall provide for a system of granting economic or other
                 Submits a report thereon to the proper     incentives to the lupon or pangkat members who
                  city or municipal courts.                  adequately demonstrate the ability to judiciously and
                 Receives and keeps the records of          expeditiously resolve cases referred to them.
                  proceedings submitted to him by the        While in the performance of their duties, the lupon or
                  various conciliation panels.               pangkat members, whether in public or private
                                                             employment, shall be deemed to be on official time, and
Section 404. Pangkat ng Tagapagkasundo. (Conciliation
                                                             shall not suffer from any diminution in compensation or
                                                             allowance from said employment by reason thereof.
(a) Constituted for each dispute brought before the
                                                             Section 407. Legal Advice on Matters Involving Questions
                                                             of Law.
                 consisting of three (3) members
                                                             The provincial, city legal officer or prosecutor or the
                 chosen by the parties to the dispute
                                                             municipal legal officer shall render legal advice on
                  from the list of members of the lupon.
                                                             matters involving questions of law to the punong
                 Should the parties fail to agree on the    barangay or any lupon or pangkat member
                  pangkat membership, the same shall
                  be determined by lots drawn by the                          whenever necessary
                  lupon chairman.                                             in the exercise of his functions in the
                                                                               administration of the katarungang
(b) The three (3) members constituting the pangkat shall                       pambarangay.
elect from among themselves the chairman and the
secretary.                                                   Section 408. Subject Matter for Amicable Settlement;
                                                             Exception Thereto.
Pangkat Secretary Functions
                                                             The lupon of each barangay shall have authority to bring
                                                             together the parties actually residing in the same city or

D2010 168
                                                                                                   UP College of Law

municipality for amicable settlement of all disputes                           punong barangay; otherwise, the same
except:                                                                        shall be deemed WAIVED.
                                                                              Any legal question which may confront
(a) Where one party is the government, or any
                                                                               the punong barangay in resolving
subdivision or instrumentality thereof;
                                                                               objections to venue may be submitted
(b) Where one party is a public officer or employee, and                       to the Secretary of Justice, or his duly
the dispute relates to the performance of his official                         designated representative, whose
functions;                                                                     ruling thereon shall be binding.
(c) Offenses punishable by imprisonment exceeding one        Section 410. Procedure for Amicable Settlement.
(1) year or a fine exceeding Five thousand pesos
(P5,000.00);                                                 (a) Who may initiate proceeding
(d) Offenses where there is no private offended party;                        Upon payment of the appropriate filing
(e) Where the dispute involves real properties located in
                                                                              any individual who has a cause of
different cities or municipalities unless the parties
                                                                               action against another individual
thereto agree to submit their differences to amicable
                                                                              involving any matter within the
settlement by an appropriate lupon;
                                                                               authority of the lupon
(f) Disputes involving parties who actually reside in                         may complain, orally or in writing, to
barangays of different cities or municipalities, except                        the lupon chairman of the barangay.
where such barangay units adjoin each other and the
parties thereto agree to submit their differences to         (b) Mediation by lupon chairman
amicable settlement by an appropriate lupon;
                                                                              Upon receipt of the complaint, the
(g) Such other classes of disputes which the President                         lupon chairman shall within the next
may determine in the interest of Justice or upon the                           working day
recommendation of the Secretary of Justice.                                   summon the respondent(s), with notice
                                                                               to the complainant(s) for them and
The court in which non-criminal cases not falling within
                                                                               their witnesses
the authority of the lupon under this Code are filed may,
                                                                              to appear before him for a mediation
at any time before trial motu propio refer the case to the
                                                                               of their conflicting interests.
lupon concerned for amicable settlement.
                                                                              If he fails in his mediation effort within
Section 409. Venue.                                                            fifteen (15) days from the first meeting
                                                                               of the parties before him
(a) Disputes between persons actually residing in the
same barangay shall be brought for amicable settlement                        he shall forthwith set a date for the
before the lupon of said barangay.                                             constitution of the pangkat.

(b) Those involving actual residents of different            (c) Suspension of prescriptive period of offenses
barangays within the same city or municipality shall be
                                                                              While dispute is under mediation,
brought in the barangay where the respondent or any of
                                                                               conciliation, or arbitration, the
the respondents actually resides, at the election of the
                                                                               prescriptive periods for offenses and
                                                                               cause of action INTERRUPTED upon
(c) All disputes involving real property or any interest                       filing the complaint with the punong
therein shall be brought in the barangay where the real                        barangay. Period RESUMES upon
property or the larger portion thereof is situated.                            receipt by the complainant of the
                                                                               complainant or the certificate of
(d) Those arising at the workplace where the contending
                                                                               repudiation or of the certification to
parties are employed or at the institution where such
                                                                               file action issued by the lupon or
parties are enrolled for study, shall be brought in the
                                                                               pangkat secretary:
barangay where such workplace or institution is located.
                                                                              Interruption shall not exceed sixty (60)
                 OBJECTIONS to venue shall be raised in                       days from the filing of the complaint
                  the mediation proceedings before the                         with the punong barangay.

                                                                                                            169 D2010
Local Government

(d) Issuance of summons; hearing; grounds for                                    or instituted directly in court or any
disqualification                                                                 other government office for
                 The pangkat shall convene not later
                                                                                unless there has been a confrontation
                  than three (3) days from its
                                                                                 between the parties before the lupon
                                                                                 chairman or the pangkat
                 on the day and hour set by the lupon
                                                                                and that no conciliation or settlement
                                                                                 has been reached as certified by the
                 to hear both parties and their
                                                                                 lupon secretary or pangkat secretary as
                  witnesses, simplify issues, and explore
                                                                                 attested to by the lupon or pangkat
                  all possibilities for amicable settlement.
                 For this purpose, the pangkat may issue
                                                                                or unless the settlement has been
                  summons for the personal appearance
                                                                                 repudiated by the parties thereto.
                  of parties and witnesses before it.
                 If party moves to disqualify any             (b) Where Parties May Go Directly to Court.
                  member of the pangkat by reason of
                  relationship, bias, interest, or any other   The parties may go directly to court in the following
                  similar grounds discovered AFTER the         instances:
                  constitution of the pangkat, the matter          1.   Where the accused is under detention;
                  shall be resolved by the affirmative
                  vote of the majority of the pangkat              2.   Where a person has otherwise been deprived of
                  whose decision shall be final.                        personal liberty calling for habeas corpus
                 Should disqualification be decided                    proceedings;
                  upon, the resulting vacancy shall be             3.   Where actions are coupled with provisional
                  filled as herein provided for.                        remedies such as preliminary injunction,
                                                                        attachment, delivery of personal property and
(e) Period to arrive at a settlement -                                  support pendente lite; and
Within fifteen (15) days from the day the pangkat                  4.   Where the action may otherwise be barred by
convenes in accordance with this section. This period is                the statute of limitations.
extendible at the discretion of the pangkat, which shall
not exceed fifteen (15) days, except in clearly                (c) Conciliation among members of indigenous cultural
meritorious cases.                                             communities.

Section 411. Form of settlement.                               Customs and traditions of indigenous cultural
                                                               communities SHALL be applied in settling disputes
                 All amicable settlements shall be in         between members of the cultural communities.
                 in a language or dialect known to the        Section 413. Arbitration.
                  parties                                      (a) The parties may, at any stage of the proceedings,
                 signed by them                               agree in writing that they shall abide by the arbitration
                 and attested to by the lupon chairman        award of the lupon chairman or the pangkat.
                  or the pangkat chairman, as the case
                  may be.                                                       Such agreement to arbitrate may be
                 When the parties to the dispute do not                         repudiated within five (5) days from
                  use the same language or dialect, the                          the date thereof for the same grounds
                  settlement shall be written in the                             and in accordance with the procedure
                  language known to them.                                        hereinafter prescribed.
                                                                                Arbitration award shall be made after
Section 412. Conciliation.                                                       the lapse of the period for repudiation
                                                                                 and within ten (10) days thereafter.
(a) Pre-condition to Filing of Complaint in Court.
                 No complaint, petition, action, or           (b) The arbitration award shall be in writing in a language
                  proceeding involving any matter within       or dialect known to the parties. When the parties to the
                  the authority of the lupon shall be filed    dispute do not use the same language or dialect, the

D2010 170
                                                                                                     UP College of Law

award shall be written in the language or dialect known                       where the consent is vitiated by fraud,
to them.                                                                       violence, or intimidation.
Section 414. Proceedings Open to the Public; Exception.                       Such repudiation shall be sufficient
                                                                               basis for the issuance of the
All proceedings for settlement shall be public and                             certification for filing a complaint.
                                                             Section 419. Transmittal of Settlement and Arbitration.
Provided, however, That the lupon chairman or the
pangkat chairman, as the case may be, may motu proprio       Award to the Court. - The secretary of the lupon shall
or upon request of a party, exclude the public from the      transmit the settlement or the arbitration award to the
proceedings in the interest of privacy, decency, or public   appropriate city or municipal court
                                                                              within five (5) days from the date of
Section 415. Appearance of Parties in Person.                                  the award
                                                                              or from the lapse of the ten-day period
Parties must appear in person without the assistance of
                                                                               repudiating the settlement
counsel or representative, except for minors and
                                                                              and shall furnish copies thereof to each
incompetents who may be assisted by their next-of-kin
                                                                               of the parties to the settlement and the
who are not lawyers.
                                                                               lupon chairman.
Section 416. Effect of Amicable Settlement and
Arbitration Award.                                           Section 420. Power to Administer Oaths.
The amicable settlement and arbitration award shall          The punong barangay, as chairman of the lupong
have the force and effect of a final judgment of a court     tagapamayapa, and the members of the pangkat are
upon the expiration of ten (10) days from the date           hereby authorized to administer oaths in connection
thereof                                                      with any matter relating to all proceedings in the
                                                             implementation of the katarungang pambarangay.
                 unless repudiation of the settlement
                  has been made or a petition to nullify     Section 421. Administration; Rules and Regulations.
                  the award has been filed before the        The city or municipal mayor, as the case may be, shall
                  proper city or municipal court.            see to the efficient and effective implementation and
                 This provision shall not apply to court    administration of the katarungang pambarangay.
                  cases settled by the lupon, in which
                  case the compromise or the pangkat         The Secretary of Justice shall promulgate the rules and
                  chairman shall be submitted to the         regulations necessary to implement this Chapter.
                  court and upon approval thereof, have      Section 422. Appropriations.
                  the force and effect of a judgment of
                  said court.                                Such amount as may be necessary for the effective
                                                             implementation of the katarungang pambarangay shall
Section 417. Execution.                                      be provided for in the annual budget of the city or
                                                             municipality concerned.
The amicable settlement or arbitration award may be
enforced by execution by the lupon within six (6) months     CHAPTER VIII - Sangguniang Kabataan
from the date of the settlement.
                                                             Section 423. Creation and Election. -
After the lapse of such time, the settlement may be
                                                             (a) There shall be in every barangay a sangguniang
enforced by action in the appropriate city or municipal
                                                             kabataan to be composed of
                                                                              a chairman
Section 418. Repudiation.
                                                                              seven (7) members
Any party to the dispute may, within ten (10) days from                       a secretary
the date of the settlement, repudiate the same                                a treasurer
                 by filing with the lupon chairman          (b) A sangguniang kabataan official who, during his term
                 a statement to that effect sworn to        of office, shall have passed the age of twenty-one (21)
                  before him                                 years shall be allowed to serve the remaining portion of

                                                                                                            171 D2010
Local Government

the term for which he was elected.                               the implementation of youth development projects and
                                                                 programs at the national level;
Section 424. Katipunan ng Kabataan.
                                                                 (h) Exercise such other powers and perform such other
Composed of
                                                                 duties and functions as the sangguniang barangay may
                  all citizens of the Philippines actually      determine or delegate; and
                   residing in the barangay for at least six
                                                                 (i) Exercise such other powers and perform such other
                   (6) months
                                                                 duties and functions as may be prescribed by law or
                  who are fifteen (15) but not more than
                   twenty-one (21) years of age
                  duly registered in the list of the            Section 427. Meetings of the Sangguniang Kabataan.
                   sangguniang kabataan or in the official       Meet regularly once a month on the date, time, and
                   barangay list in the custody of the           place to be fixed by the said sanggunian.
                   barangay secretary.
                                                                 Special meetings may be called by the sangguniang
Section 425. Meetings of the Katipunan ng Kabataan.              kabataan chairman or any three (3) of its members
                  At least once every three (3) months                           by giving written notice to all members
                  or at the call of the chairman of the                           of the date, time, place and agenda of
                   sangguniang kabataan                                            the meeting at least one (1) day in
                  or upon written petition of at least                            advance.
                   one-twentieth (1/20) of its member                             Notices of regular or special meetings
                  to decide on important issues affecting                         shall be furnished the punong barangay
                   the youth of the barangay.                                      and the sangguniang barangay.

Section 426. Powers and Functions of the Sangguniang             A majority of the members of the sangguniang kabataan
Kabataan.                                                        shall constitute a quorum.
The sangguniang kabataan shall:                                  Section 428. Qualifications.
(a) Promulgate resolutions necessary to carry out the            An elective official of the sangguniang kabataan must be
objectives of the youth in the barangay in accordance
                                                                                  a citizen of the Philippines
with the applicable provisions of this Code;