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LOCAL GOVERNMENTS corporation

Local Government Unit 1. Public or governmental - It acts as


an agent of the State as the
A political subdivision of the State which is government of the territory it occupies
constituted by law and possessed of and its inhabitants within the
substantial control over its own affairs. municipal limits. The municipal
Remaining to be an intra-sovereign corporation exercises, by delegation,
subdivision of one sovereign nation, but a part of the sovereignty of the state.
not intended, however, to be an imperium 2. Private or proprietary - It acts as an
in imperio (empire within empire), the local agent of the community in the
government unit is autonomous in the administration of local affairs which is
sense that it is given more powers, wholly beyond the sphere of public
authority, responsibility and resources purposes, for which its governmental
(Alvarez v. Guingona, G.R. No. 118303, powers are conferred. It acts as
January 31, 2996). separate entity for its own purposes,
and not as a subdivision of the State.
Kinds of Local Governments
NOTE: Not all corporations, which
1. Provinces A political and territorial are not government owned or controlled,
corporate body consisting of several are ipso facto to be considered private
municipalities and cities. corporations. These corporations are
2. Municipalities Consist of groups of treated by law as agencies or
barangays, including municipal instrumentalities of the government which
districts. are not subject to the tests of
3. Cities Consist of more urbanized and ownership or control and economic
developed barangays. viability but to different criteria relating to
a. Highly urbanized cities their public purposes/interests or
Determined by law. constitutional policies and objectives and
b. Cities not raised to highly urbanized their administrative relationship to the
category but their charters prohibit government or any of its Departments or
their voters from voting in provincial Offices.
elections.
c. Component cities Still under the The economic viability test would only
province in some way. apply in cases wherein the corporation is
engaged in some economic activity or
4. Barangays Basic political and business function for the government (Boy
territorial self-governing body corporate Scouts of the Philippines v. COA, G.R. No.
and is subordinate to the municipality 177131, June 7, 2011).
or city of which it forms part.
5. Autonomous Regions A political and DISTINGUISHED FROM GOCC
territorial subdivision that has a certain
degree of freedom from the national Government owned and controlled
government. corporations (GOCC)

PUBLIC CORPORATIONS Any agency organized as a stock or non-


stock corporation, vested with functions
Public corporation relating to public needs, whether
governmental or proprietary in nature, and
It is one created by the State, either by owned by the Government of the Republic
general or special act for purposes of of the Philippines directly or through its
administration of local government, or instrumentalities either wholly or, where
rendering service for the public applicable as in the case of stock
interest. corporations, to the extent of at least a
majority of its outstanding capital stock
Criterion to determine whether a (Sec. 3 (o), Chapter 1 of R.A. 10149,
corporation is a public corporation GOCC Governance Act of 2011).

It is the relationship of the corporation to NOTE: Provided that such agencies are
the state. If it was created by the State as further categorized by Department of
its own agency to help it in carrying out its Budget, CSC, and COA for purposes of the
governmental functions, it is public. exercise and discharge of their respective
Otherwise, it is private. powers, functions and responsibilities (Sec.
2 (13) of E.O. No. 292 Administrative Code
of 1987).

Dual characteristic of public


Elements of a GOCC inhabitants for the purpose of local
government. It is established by law,
1. Any agency organized as a stock or partly as an agency of the State to
non-stock corporation assist in the civil government of the
2. Vested with functions relating to country, but chiefly to regulate and
public needs whether governmental or administer the local or internal affairs
proprietary in nature of the city, town or district which is
3. Owned by the government directly or incorporated.
through its instrumentalities either
wholly, or, where applicable as in MUNICIPAL CORPORATIONS
the case of stock corporations, to the
extent of at least fifty-one (51) of its Essential elements of a municipal
capital stock (Leyson, Jr. v. Office of corporation
the Ombudsman, G.R. No. 134990,
April 27, 2000). 1. Legal creation or incorporation;
2. Corporate name;
Public corporation v. GOCC
NOTE: The Sangguniang Panlalawigan
PUBLIC may, in consultation with the Philippine
BASIS CORPORATIO GOCC Historical Commission, change the
N name of component cities and
Administration Performance of municipalities, upon the
of local functions recommendation of the sanggunian
government or relating to concerned (Sec. 13, LGC).
As to
rendering public needs,
Purpos
service for whether 3. Inhabitants; and
e
the public Governmental 4. Territory.
interest. or Proprietary in
nature. Nature of a municipal corporation
As to Created by the Created by
who state, either Congress or by Every LGU created or recognized under the
create by general act incorporators. LGC is a body politic and corporate
s or special act. endowed with powers to be exercised by it
Through (1) Original in conformity with law. As such, it shall
legislation. charters or exercise powers as a political subdivision of
As to the National Government and as a
special laws or
how corporate entity representing the
(2) General
create inhabitants of its territory (Sec. 15, LGC).
corporation law,
d
as a stock or
non-stock Dual function of Municipal Corporation

CLASSIFICATIONS 1. Public or governmental - It acts as an


agent of the State or the
Kinds of corporations government of the territory it occupies
and its inhabitants. Examples are:
1. Quasi-public corporations - Private a. Delivery of sand and gravel for the
corporations that render public construction of a municipal bridge
service, supply public wants, or (Municipality of San Fernando v.
pursue other eleemosynary objectives. Firme, G.R. No. L-52179, April 8,
While purposely organized for the gain 1901).
or benefit of its members, they are b. The collection and disposal of
required by law to discharge functions garbage as conserving the public
for the public benefit. It must be health is governmental in nature
stressed that a quasi-public (Department of Public Services
corporation is a specie of private Labor Unions v. CIR, G.R. No. L-
corporation, but the qualifying 15458, January 28, 1961).
factor is the type of service the former 2. Private or proprietary - It acts as an
renders to the public: if it performs agent of the community in the
a public service, then it administration of local affairs. As such,
becomes a quasi-public it acts as a separate entity acting for its
corporation (Philippine Society own purposes, and not as a subdivision
for the Prevention of Cruelty to of the State (Bara Lidasan v. COMELEC,
Animals v. Commission on Audit, G.R. G.R. No. L-28089, October 25, 1967).
No. 169752, September 25, 2007). Examples are:
2. Municipal corporations - A a. Maintenance of cemeteries (City of
political and corporate body Manila v. IAC, G.R. No. 71159,
constituted by the incorporation of November 15, 1989).
b. The renting of a city of its private Congress, for, in the exercise of corporate,
property (Chamber of Filipino non-governmental or non-political
Retailers v. Villegas, G.R. No. L- functions, municipal corporations stand
29819, April 14, 1972). practically on the same level as the
National Government or the State as
Q: The plaintiffs are creditors of the private corporations (Hebron v. Reyes, G.R.
City of Manila as it existed during the No. L-9124, July 28, 1958).
Spanish colonial rule. As the
Philippine Islands was ceded to the Types of municipal corporations
United States, the old City of Manila
was reincorporated during the 1. De jure municipal corporations -
American regime. An action was Created or recognized by operation of
brought against the City of Manila law.
upon the theory that the city, under 2. Municipal corporations by
its present charter from the prescription -Exercised their powers
government of the Philippine Islands, from time immemorial with a charter,
is the same juristic person as it which is presumed to have been lost
existed during the Spanish rule and or destroyed.
liable upon the obligations of the old 3. De facto municipal corporations It is
city. Is the present municipality liable where the people have organized
for the civil obligations of the city themselves, under color of law, into
incurred prior to the cession to the ordinary municipal bodies and have
United States? gone on, year after year, raising
taxes, making improvements, and
A: YES. While military occupation or exercising their usual franchises,
territorial cession may work a suspension with their rights dependent quite as
of the governmental functions of much on acquiescence as on the
municipal corporations, such occupation regularity of their origin.
or cession does not result in their
dissolution. The legal entity of the City of NOTE: Inquiries about the legal
Manila survived both its military existence of a de facto corporation is
occupation by, and its cession to, the reserved to the State in a proceeding
United States, and, as in law, the present for quo warranto or other direct
city, as the successor of the former city, is proceeding (Mun. of Malabang, Lanao
entitled to the property rights of its del Sur v. Benito, G.R. No. L-28113,
predecessor, it is also subject to its March 28, 1969).
liabilities. The present city is in every legal
sense the successor of the old. The Q: President Garcia issued EO 353
argument that by the change in the creating the municipal district of San
sovereignty the old city was extinguished Andres, Quezon, by segregating from
in the same manner that the agency dies the municipality of San Narciso 6
upon the death of the principal, loses sight barrios and their respective sitios. By
of the dual character of municipal virtue of EO. 174, issued by President
corporations, government and corporate. Macapagal, the municipal district of
Only such governmental functions as are San Andres was later officially
incompatible with the present sovereignty recognized to have gained the status
may be considered suspended. The juristic of a fifth class municipality.
identity of the corporation is not affected
by the change of sovereignty. The City of The Municipality of San Narciso filed
Manila is liable to its creditors (Vilas v. City a petition for quo warranto with the
of Manila, G.R. Nos. 53-54 and 207, April RTC, against the officials of the
3, 1911). Municipality of San Andres, seeking
the declaration of nullity of EO 353.
In the exercise of corporate, non- The municipality contended that EO
governmental functions, municipal 353, a presidential act, was a clear
governments stand on the same level usurpation of the inherent powers of
as the National Government the legislature and in violation of the
constitutional principle of separation
The constitutional provision limiting the of powers. The Municipality of San
authority of the President over local Andres, however, contended that the
governments to general supervision is case had become moot and academic
unqualified and applies to all constitutional with the enactment of Sec. 442 (d) of
powers of the President as regards the the LGC which provides for the
corporate functions of local governments, continued existence of municipalities
inasmuch as the Executive never had any created by executive orders. Is the
control over said functions. The same Municipality of San Narciso correct?
powers are not under the control even of
A: NO. EO 353 was issued in 1959 but it remains in existence citing the case
was only after 30 years that the of Municipality of San Narciso where
Municipality of San Narciso finally decided the Court affirmed the status of the
to challenge the legality of the EO. Municipality of San Andres as a de
Created in 1959, the Municipality had facto municipal corporation and citing
been in existence for 6 years when the Sec. 442 (d) of the LGC recognizing
Court decided the case of Pelaez v. municipal corporations created by
Auditor General which declared void ab executive order. Is Camid correct?
initio several EOs creating 33
municipalities in Mindanao. The ruling A: NO. The case of Municipality of San
could have sounded the call for a similar Narciso is different from the case of
declaration of the unconstitutionality of EO Andong. Unlike in San Narciso, the
353 but it was not to be the case. Granting Executive Order creating Andong was
that EO 353 was a complete nullity for judicially declared null and void ab initio
being result of an unconstitutional by the Court in the case of Pelaez. Andong
delegation of legislative power, the also does not meet the requisites set forth
Municipality of San Andres created by the by Sec. 442 (d) of the LGC which requires
EO attained the status of a de facto that in order for a municipality created by
municipal corporation. Certain executive order to receive recognition, it
governmental acts all pointed to the must have a set of elective municipal
States recognition of the continued officials holding office at the time of
existence of the municipality, i.e., it being effectivity of the LGC. Andong has never
classified as a fifth class municipality, the elected its municipal officers at all. Out of
municipality had been covered by the 10 th obeisance to the ruling in Pelaez, the
Municipal Circuit Court and its inclusion in national government ceased to recognize
the Ordinance appended to the 1987 the existence of Andong, depriving it of its
Constitution. Equally significant is Section share of the public funds, and refusing to
442(d) of the Local Government Code to conduct municipal elections for the void
the effect that municipal districts municipality. Section 442(d) does not
organized pursuant to presidential serve to affirm or reconstitute the
issuances or executive orders and which judicially dissolved municipalities which
have their respective sets of elective had been previously created by executive
municipal officials holding office at the orders. They remain inexistent unless
time of the effectivity of the Code shall recreated through specific legislative
henceforth be considered as regular enactments. The provision only affirms the
municipalities. The power to create legal personalities only of those
political subdivisions is a function of the municipalities which may have been
legislature. Congress did just that when it created through executive fiat but whose
incorporated Sec. 442 (d) in the LGC. existence have not been judicially
Curative laws are validly accepted in this annulled (Camid v. Office of the President,
jurisdiction, subject to the usual G.R. No. 161414, January 17, 2005).
qualification against impairment of vested
rights. All considered, the de jure status of NOTE:
the Municipality of San Andres in the I. The color of authority required for the
province of Quezon must now be organization of a de facto municipal
conceded (Municipality Of San Narciso v. corporation may be:
Mendez, G.R. No. 103702, December 6, 1. A valid law enacted by the
1994). legislature.
2. An unconstitutional law, valid on its
Q: President Macapagal issued face, which has either:
several executive orders creating 33 a. been upheld for a time by the
municipalities in Mindanao, one of courts; or
which is the Andong in Lanao Del Sur. b. not yet been declared
He justified the creation of such void; provided that a warrant
municipalities under Sec. 68 of the for its creation can be found in
Revised Administrative Code. some other valid law or in the
However, in the case of Pelaez v. recognition of its potential
Auditor General, the Court held that existence by the general laws
these EOs were null and void because or constitution of the state.
Sec. 68 did not meet the II. There can be no de facto municipal
requirements for a valid delegation of corporation unless either directly or
legislative power to the executive potentially, such a de jure corporation is
branch. Among the annulled EOs was authorized by some legislative fiat.
the one creating the Municipality of III. There can be no color of authority in an
Andong. Petitioner Camid is a unconstitutional statute alone, the
resident of Andong and claims that invalidity of which is apparent on its face.
despite the ruling in Pelaez, Andong IV. There can be no de facto corporation
created to take the place of an existing de recognized Sinacabans corporate
jure corporation, as such organization existence. Lastly, Sec. 442 (d) of the LGC
would clearly be a usurper (Municipality of must be deemed to have cured any defect
Malabang v. Benito, G.R. No. L-28113, in the creation of Sinacaban (Mun. of
March 28, 1968). Jimenez v. Baz Jr, G.R. No. 105746,
December 2, 1996).
Creation of municipalities by the
president Essential requisites of de facto
corporation (VACA)
The EOs, which created municipalities
are declared null and void because Sec. 1. Valid law authorizing incorporation
68 of the Revised Administrative code 2. Attempt in good faith to organize
was repealed by the 1935 constitution under it
(Pelaez v. Auditor General, G.R. No. L- 3. Colorable compliance with law
23825, December 24, 1965). Hence, 4. Assumption of corporate powers
municipalities created by an EO could
not claim to be a de facto municipal De facto Municipal Corporation v.
corporation, because there was no valid Municipal Corporation by Estoppel
law authorizing incorporation. (2010 Bar Question)

Q: The Municipality of Sinacaban was DE FACTO ESTOPPEL


created by EO 258 of then President A public corporation A corporation which
Quirino. Based on the technical that exists although is so defectively
description of EO 258, Sinacaban laid it has not complied formed as not to be
claims to 5 barrios located in the
with the statutory a de facto
adjoining Municipality of Jimenez. The
Municipality of Jimenez, while requirements like: corporation but is
conceding that under EO 258 the a. Authorization by considered a
disputed area is part of Sinacaban, a valid law corporation in
nonetheless, asserted jurisdiction b. A colorable and relation to someone
based on an agreement it had with bona fide attempt who dealt with it
the Municipality of Sinacaban which to organize under a and acquiesced in
fixed the common boundaries of the valid law its exercise of its
two municipalities. The Provincial c. An assumption of
Board declared the disputed area to corporate functions
powers conferred
be part of Sinacaban. or entered into a
under the law
contract with it
Jimenez filed a petition in the RTC (Martin, Public
It primarily attends
alleging that in accordance with Corporations, 1985
Pelaez v. Auditor General, the power to the needs of the
general welfare. ed.,p.20).
to create municipalities is essentially
legislative and consequently,
Sinacaban which was created by an REQUISITES FOR CREATION,
executive order, had no legal CONVERSION, DIVISION, MERGER,
personality and no right to assert the AND DISSOLUTION
territorial claim vis--vis Jimenez, of
which it remains part. The RTC, Territorial and political subdivisions
however, held that Sinacaban is a de
facto corporation since it had 1. Barangays
completely organized itself even 2. Municipalities
prior to the Pelaez case and 3. Cities
exercised corporate powers for forty 4. Provinces (Sec.1, Art. X, 1987
years before its existence was Constitution)
questioned. Does the municipality of
Sinacaban legally exist? Authority to create municipal
corporations
A: YES. The factors are present as to
confer to Sinacaban the status of at least a A LGU may be created, divided, merged,
de facto municipal corporation, in the abolished, or its boundaries substantially
sense that its legal existence has been altered either:
recognized and acquiesced publicly and 1. By law enacted by Congress in case of
officially. Sinacaban had been in existence province, city, municipality or
for 16 years when Pelaez v. Auditor any other political subdivision;
General was decided on, yet the validity of 2. By an ordinance passed by the
EO 258 had never been questioned. On the Sangguniang Panlalawigan or
contrary, the State and even the Sangguniang Panlungsod concerned in
municipality of Jimenez itself have the case of a barangay located within
its territorial jurisdiction, subject to
such limitations and requirements
prescribed in the LGC (Sec. 6, LGC). 4. Land requirement - Must be contiguous,
unless it is comprised of two or more
NOTE: Failure to provide for seat of islands, or is separated by a LGU
government is not fatal. Under Sec. 12 of independent to the others. It must be
the LGC, the city can still establish a seat properly identified by metes and
of government after its creation (Samson bounds with technical descriptions,
v. Aguirre, G.R. No. 133076, September and sufficient to provide for such basic
22, 1999). services and facilities. Area
requirements are:
Requisites or limitations imposed on a. Barangay may be created out of
the creation or conversion of a contiguous territory (Sec. 386,
municipal corporations LGC).
b. Municipality 50 sq. km (Sec.
1. Plebiscite requirement Must be 442, LGC).
approved by majority of the votes cast c. City 100 sq. km (Sec.450, LGC).
in a plebiscite called for d. Province 2,000 sq.km (Sec. 461,
such purpose in the political unit or LGC).
units directly affected (Sec 20, LGC).
NOTE: Compliance with the foregoing
NOTE: The residents of the mother indicators shall be attested to by:
province must participate in the a. The Department of Finance (Income
plebiscite to conform to the requirement);
constitutional requirement (Tan v. b. NSO (Population requirement); and
COMELEC, G.R. No. 73155, July 11, c. The Lands Management Bureau of
1986; Padilla v. COMELEC, G.R. No. DENR (Land requirement) (Sec. 7(c),
103328, October 19, 1992). LGC).

2. Income requirement Must be


sufficient and based on acceptable Corporate existence
standards to provide for all essential
government facilities and services and Corporate existence of LGUs commences
special functions, commensurate with upon the election and qualification of
the size of its population as its chief executive and majority of
expected by the LGU concerned. the members of its sanggunian, unless
some other time is fixed therefor by law
Average annual income for the last or ordinance creating it (Sec. 14, LGC).
consecutive year should be at least:
a. Province P 20M Q: At the end of the 11th Congress
b. Highly Urbanized City P 50M existence, several bills aiming to
c. City P 100M (R.A. 9009 convert certain municipalities into
amending Sec. 450 of LGC) cities were pending. The same were
d. Municipality P 2.5M not, however, passed into law. During
the 12th Congress, RA 9009 was
NOTE: The income requirement for the enacted, amending the LGC which
conversion of municipality to a increased the income requirement for
component city only includes locally the conversion of municipalities into
generated average annual income (RA. cities, from P20M to P100M.
9009 amending Sec. 450 of LGC). Congress deliberated on exempting
the municipalities mentioned earlier
3. Population requirement determined from the new income requirement,
as the total number of inhabitants yet, no concrete action came out of
within the territorial jurisdiction of such deliberations.
the LGU concerned. The
required minimum population shall Through their respective sponsors,
be: the municipalities filed individual
a. Barangay 2,000 cityhood bills containing a
common proviso exempting them
XPN: barangays located in: from the new income requirement.
i. Metro Manila 5,000 The Congress approved the same.
ii. Highly urbanized cities Concerned parties protested that
5,000 such laws allowed a wholesale
conversion of municipalities and is
b. Municipality 25,000 therefore unconstitutional. The
c. City 150,000 challenged cities claim that it was
d. Highly Urbanized Cities 200,000 the intent of the Congress to grant
e. Province 250,000 them exemption from the income
requirement, as per the deliberations
of the 11th Congress. decided to uphold the 2008 ruling. And
finally, on April 12, 2011 it upheld the
a. Are the cityhood laws valid? constitutionality of the creation of the 16
b. What will become of the new cities.
cityhood bills and their
deliberations that were Q: May Congress validly delegate to
pending at the adjournment of the ARMM Regional Assembly the
the 11th Congress? power to create provinces, cities,
and municipalities within the ARMM
A: pursuant to Congresss plenary
a. YES. The cities covered by the legislative powers?
Cityhood Laws not only had conversion
bills pending during the 11th A: IT DEPENDS. There is no provision in
Congress, but have also complied with the Constitution that conflicts with the
the requirements of the LGC delegation to regional legislative bodies
prescribed prior to its amendment by of the power to create municipalities and
RA 9009. Congress undeniably gave barangays. However, the creation of
these cities all the considerations provinces and cities is another matter.
that justice and fair play demanded. Only Congress can create provinces and
Hence, the Court should do no less by cities, because the creation of the same
stamping its imprimatur to the clear necessarily includes the creation of
and unmistakable legislative intent legislative districts, a power only
and by duly recognizing the certain Congress can exercise under Sec. 5 Art.
collective wisdom of Congress. VI of the Constitution and Sec. 3 of the
Congress, who holds the power of the Ordinance appended to it.
purse, only sought the well-being of
respondent municipalities in enacting The ARMM Regional Assembly cannot
the Cityhood Laws, having seen their enact a law creating a national office
respective capacities to become like the office of a district representative
component cities of their provinces, of Congress because the legislative
which was temporarily stunted by the powers of the ARMM Regional Assembly
enactment of RA 9009. By allowing operate only within its territorial
respondent municipalities to convert jurisdiction as provided in Sec. 20 Art. X of
into component cities, Congress the Constitution (Sema v. COMELEC, G.R.
desired only to uphold the very No. 177597, July 16, 2008).
purpose of the LGC, i.e., to make the
LGUs enjoy genuine and meaningful Q: Congress enacted a law creating
local autonomy to enable them to the legislative district of Malolos
attain their fullest development as based on a certification of the
self-reliant communities and make demographic projection from NSO
them more effective partners in the stating that by 2010, Malolos is
attainment of national goals, which expected to reach the population of
is the very mandate of the 250,000, hence entitling it to one
Constitution (League of Cities of the legislative district. Is the law valid?
Philippines. v. COMELEC, G.R. No.
176951, April 12, 2011). A: NO. Congress cannot establish a new
legislative district based on a projected
b. Notwithstanding that both the 11th population of the National Statistics
and 12th Congress failed to act upon Office (NSO) to meet the population
the pending Cityhood bills, both the requirement of the Constitution in the
letter and intent of Sec. 450 of the reapportionment of legislative districts.
LGC, as amended by RA 9009, were
carried on until the 13th Congress, A city that has attained a population of
when the Cityhood Laws were 250,000 is entitled to a legislative district
enacted. The exemption clauses found only in the immediately following
in the individual Cityhood Laws are the election. In short, a city must first attain
express articulation of the intent to the 250,000 population, and thereafter, in
exempt respondent municipalities the immediately following election, such
from the coverage of RA 9009 (League city shall have a district representative.
of Cities of the Philippines v. There is no showing in the present case
COMELEC, G.R. No. 176951, February that the City of Malolos has attained or will
15, 2011). attain a population of 250,000, whether
actual or projected, before May 10, 2010
NOTE: On November 18, 2008, the SC elections. Thus, the City of Malolos is not
ruled the cityhood laws unconstitutional. qualified to have a legislative district of its
On December 21, 2009, it reversed the own under Sec. 5(3), Art. VI of the 1987
ruling. Then again, on August 24, 2010, it Constitution and Sec 3 of the Ordinance
appended to the 1987 Constitution contiguity also as regards to provinces
(Aldaba v. COMELEC, G.R. No. 188078, especially considering the physical
January 25, 2010). configuration of the Philippine archipelago.
The land area requirement should be read
Q: Congress enacted a law together with the territorial contiguity,
reapportioning the whereas the land area, while considered
composition of the Province of as an indicator of viability of LGU, is not
Camarines Sur and created conclusive in showing that Dinagat
legislative districts thereon. Province cannot become a province taking
Frankie challenged the law because into account its average annual income.
it runs afoul to the constitutional Hence, the basic services to its
requirement that there must be at constituents has been proven possible and
least a population of 250,000 to sustainable making Dinagat Province
create a legislative district. ready and capable of becoming a province
COMELEC argued that the (Navarro v. Executive Secretary, G.R. No.
mentioned requirement does not 180050, April 12, 2011).
apply to provinces. Is the 250,000
population standard an Q: Congress passed a law
indispensable requirement for the providing for the apportionment of
creation of a legislative district in a new legislative district in CDO City.
provinces? COMELEC subsequently issued a
resolution implementing said law.
A: NO. Sec. 5(3), Art. VI of the 1987 Zander now assails the resolution,
Constitution contending that rules for the conduct
which requires 250,000 minimum of a plebiscite must first be laid
population apply only for a city to be down, as part of the requirements
entitled to a representative but not for a under the Constitution. According to
province. Zander, the apportionment is a
conversion and division of CDO City,
The provision draws a plain and clear falling under Sec. 10 Art. X of the
distinction Constitution, which provides for
between the entitlement of a city to a the rule on creation, division,
district, on one hand, and the entitlement merger, and abolition of LGUs.
of a province to a district on the other. Decide.
For while a province is entitled to at
least a representative, with nothing A: There is no need for a plebiscite.
mentioned about population, a city CDO City politically remains a single unit
must first meet a population minimum and its administration is not divided along
of 250,000 in order to be similarly entitled territorial lines. Its territory remains
(Aquino and Robredo v. COMELEC, G.R. whole and intact. Thus, Sec. 10, Art. X of
No. 189793, April 7, 2010). the Constitution does not come into play.

Q: Sec. 461 of the LGC provides that No plebiscite is required for the
before a province could be created, it apportionment or reapportionment of
must comply with the 2000-km land legislative districts. A legislative district
area requirement. Art. 9(2) of the is not a political subdivision through
LGC-IRR, however, exempts the which functions of government are
creation of provinces with more than carried out. It can more appropriately be
one island from the said land area described as a representative unit that
requirement. Thus, Dinagat Province merely delineates the areas occupied by
consisting of more than one island, the people who will choose a
with a total land area of 802.12 sq. representative in their national affairs. A
km, and has an average annual plebiscite is required only for the
income of P 82 M as certified by the creation, division, merger, or abolition
Bureau of Local Government Finance of local government units (Bagabuyo v.
was created through a law pursuant COMELEC, G.R. No. 176970, December 8,
to the exception expressly provided 2008).
in the said LGC-IRR provision. Is the
creation of Dinagat Province valid? Q: The Municipality of Dagupan was
converted into the City of Dagupan by
A: YES. When the exemption was virtue of Act No. 170. However, before
expressly provided in Art. 9(2) of the LGC- the government of the city was
IRR, the inclusion was intended to correct organized, the government of the
the congressional oversight in Sec. 461 of Municipality of Dagupan continued to
the LGC and to reflect the true legislative act as a municipality. Are the acts of
intent, which is to allow an exception to the municipality considered to be acts
the land area requirement in cases of non- of the city?
NOTE: It is the duty of the President to
A: NO. After Act No. 170 which created the declare a city as highly urbanized after it
City of Dagupan took effect and before the shall have met the minimum
organization of the government of the City requirements, upon proper application and
of Dagupan, the political subdivision which ratification in a plebiscite by qualified
comprises the territory of the Municipality voters therein (Sec. 453, LGC). The
of Dagupan continued to act as a provision makes it ministerial for the
municipality because the government of President, upon proper application, to
the city had not yet been organized and declare a component city as highly
the other officers thereof appointed or urbanized once the minimum
elected. The conversion of that requirements, which are based on
municipality into a city did not make ipso certifiable and measurable indices under
facto the acts of the elected officials of the Sec. 452 of LGC, are satisfied. The
said municipality the acts of the City of mandatory language shall used in the
Dagupan because the latter can only act as provision leaves the President with no
a city through the city officers designated room for discretion (Ibid.).
by law after they have been appointed or
elected and have qualified. In the Requirements for division and
meantime or during the period of merger of LGUs
transition, the Municipality had to function
temporarily as such; otherwise there would 1. It shall not reduce the income,
be chaos or no government at all within the population or land area of the LGU/s
boundaries of the territory. The status of concerned to less than minimum
the Municipality may be likened to that of a requirements prescribed;
public officer who cannot abandon his 2. Income classification of the original
office although the successor had already LGU/s shall not fall below its current
been appointed, and has to continue income classification prior to division
his/her office whatever length of time the (Sec.8, LGC);
interregnum, until the successor qualifies 3. Plebiscite be held in LGUs affected
or takes possession of the office (Mejia v. (Sec.10, LGC);
Balolong, G.R. No. L-1925, September 16, 4. Assets and liabilities of the
1948). municipality/ies affected by such
organization or creation of a new
Q: Is the conversion of a component municipality shall be equitably
city to a highly urbanized city distributed between the LGUs
considered within the ambit of affected and new LGU (Sec. 1 (3), RA
creation, division, merger, 688).
abolition or substantial alteration
of boundaries under Sec. 10, Art. NOTE: When a municipal district of other
X of the Constitution? territorial divisions is converted or fused
into a municipality all property rights
A: YES. While conversion to an HUC is not vested in original territorial organization
explicitly provided in Sec. 10, Art. X of the shall become vested in the government of
Constitution, the Court nevertheless the municipality (Sec. 1 (4), RA 688).
observes that the conversion of a
component city into an HUC is a Abolition of LGU
substantial alteration of boundaries.
LGUs may be abolished by:
Substantial alteration of boundaries 1. Congress In case of provinces,
involves and necessarily entails a change city, municipality, or any other political
in the geographical configuration of LGU subdivision.
or units. However, the phrase 2. Sangguniang Panlalawigan or
boundaries should not be limited to the Sangguniang Panglungsod In case
mere physical one, referring to the metes of a barangay
and bounds of the LGU, but also to its
political boundaries. It also connotes a XPN: Metropolitan Manila area
modification of the demarcation lines and in cultural communities.
between political subdivisions, where the
LGUs exercise of corporate power ends LGUs may be abolished when its income,
and that of the other begins. And as a population, or land area has been
qualifier, the alteration must be irreversibly reduced to less than the
substantial for it to be within the ambit minimum standards prescribed for its
of the constitutional provision (Umali v. creation, as certified by the national
COMELEC, G.R. No. 203974, April 22, agencies in Sec. 17 to Congress or to the
2014). sanggunian concerned. The law or
ordinance abolishing a LGU shall specify
the province, city, municipality, or
barangay with which the LGU sought to be reviewed by the Provincial Board; taxes
be abolished will be incorporated or collected by the city will have to be shared
merged (Sec. 9, LGC). with the province; and there would be a
reduction in their IRA. Thus, the changes
Required vote on creation, division, are substantial.
merger, abolition, or substantial
alteration of boundaries of LGUs When RA 7720 upgraded the status of XYZ
City from a municipality to an independent
Majority of the votes cast in a plebiscite component city, it required the approval of
called for the purpose in the political unit its people through a plebiscite called for
or units directly affected. that purpose because the consent of the
people serves as a checking mechanism to
NOTE: Said plebiscite shall be conducted any exercise of legislative power. Hence,
by the COMELEC within one hundred there is no reason why the same should
twenty (120) days from the date of not be done when RA 8528 downgrades
effectivity of the law or ordinance the status of their city. The rules cover all
effecting such action, unless said law or conversions, whether upward or downward
ordinance fixes another date (Sec. 10, so long as the result is a material change
LGC). in the LGU directly affected (Miranda v.
Aguirre, G.R. No. 133064, September 16,
A barangay may officially exist on record 1999).
and the fact that nobody resides in the
place does not result in its automatic Q: BP Blg. 885 was enacted creating a
cessation as a unit of local government. new province in the island of Negros
to be known as the Province of
Under the LGC of 1991, the abolition of Negros del Norte. Pursuant to such,
an LGU may be done by Congress in the the COMELEC conducted a plebiscite.
case of a province, city, municipality, or Petitioners opposed this and
any other political subdivision. In the case contended that BP Blg. 885 is
of a barangay, except in Metropolitan unconstitutional and is not in
Manila area and in cultural complete accord with the LGC
communities, it may be done by because the voters of the parent
the Sangguniang Panlalawigan or province of Negros Occidental, other
Sangguniang Panglungsod concerned than those living within the territory
subject to the mandatory requirement of the new province of Negros del
of a plebiscite conducted for the purpose Norte, were not included in the
in the political units affected (Sarangani plebiscite. Are the petitioners
v. COMELEC, G.R. No. 135927, June 26, correct?
2000).
A: YES. The Constitution provides that
Q: Through a plebiscite, RA 7720 took whenever a province is created, divided or
effect and converted Municipality XYZ merged and there is substantial alteration
to an independent component city. RA of the boundaries, the approval of a
8528 was later enacted and amended majority of votes in the plebiscite in the
RA 7720 that downgraded XYZ from unit or units affected must first be
an independent component city to a obtained. The creation of the proposed
component city without the approval new province of Negros del Norte will
of the people of XYZ in a plebiscite. Is necessarily result in the division and
a plebiscite required when a local alteration of the existing boundaries of
government unit is downgraded? Negros Occidental (parent province). Plain
and simple logic will demonstrate that two
A: YES. Sec. 10, Art. X of the Constitution political units would be affected. The first
calls for the people of the LGU directly would be the parent province of Negros
affected to vote in a plebiscite whenever Occidental because its boundaries would
there is a material change in their rights be substantially altered. The other
and responsibilities. affected entity would be composed of
those in the area subtracted from the
They may call the downgrading of XYZ to mother province to constitute the
a component city as a mere transition but proposed province of Negros del Norte
they cannot blink away from the fact that (Tan v. COMELEC, G.R. No. 73155, July 11,
the transition will radically change its 1986).
physical and political configuration as the
rights and responsibilities of its people. As Q: Prior to R.A. 7675 which converts
such, the city mayor will be placed under the Municipality of Mandaluyong into
the administrative supervision of the a Highly Urbanized City, the
provincial governor; the resolutions and municipalities of Mandaluyong and
ordinances of the city council will have to San Juan belonged to only one
legislative district. After the law was 5, 1991).
passed, the people of Mandaluyong
approved of the conversion of the Forms of Local Autonomy:
Municipality of Mandaluyong into a Decentralization of Administration and
highly urbanized city. The turnout at Decentralization of Power
the plebiscite was only 14.41% of the
voting population. Nevertheless, DECENTRALIZATIO DECENTRALIZATIO
there were many who voted "yes" N OF N OF POWER
than those who voted "no." By virtue ADMINISTRATION
of these results, RA. 7675 was The central Involves abdication,
deemed ratified and in effect. Should government merely by the national
the people of San Juan participate in delegates government, of
the plebiscite on whether to convert administrative political power in
Mandaluyong into a highly urbanized powers to political favor of LGUs
city? subdivisions in order declared to be
to broaden the base autonomous. The
A: NO. The principal subject involved in of the government autonomous
the plebiscite was the conversion of power, and government
Mandaluyong into a highly urbanized city. incidentally making becomes
The matter of separate district LGUs more accountable not to
representation was only ancillary thereto. responsive and the central
Thus, the inhabitants of San Juan were accountable. authorities but to its
properly excluded from the said plebiscite constituency
as they had nothing to do with the change It relieves the central (Limbona v.
of status of neighboring Mandaluyong government of the Mangelin, G.R. No .
(Tobias et al. v. Abalos, G.R. No. L-114783, burden of managing 80391, February 28,
December 8, 1994). local affairs and 1989).
enables it to
NOTE: When an inquiry is focused on the concentrate on
legal existence of a body politic, the action national concerns.
is reserved to the State in a proceeding for
quo warranto, which must be timely filed, Scope of Delegated Power
or any other direct proceeding which must
be brought in the name of the Republic Under the Philippine concept of local
(Municipality of San Narciso v. Mendez, autonomy, only administrative powers
G.R. No. 103702, December 6, 1994). over local affairs are delegated to
political subdivisions. In turn, economic,
PRINCIPLES OF LOCAL AUTONOMY political and social developments at the
smaller political units are expected to
Principle of Local Autonomy propel social and economic growth and
development. But to enable the country
Local autonomy means a more responsive to develop as a whole, the programs and
and accountable local government policies effected locally must be
structure instituted through a system of integrated and coordinated towards a
decentralization. Autonomy does not common national goal (Pimentel Jr. v.
contemplate making mini-states out of Aguirre, G.R. No. 132988, July 19, 2000).
local government units, as in the federal
governments of the USA. Autonomy, in Decentralization
the constitutional sense, is subject to the
guiding star, though not control, of the Decentralization is a decision by the
legislature, albeit the legislative central government authorizing its
responsibility under the Constitution and subordinates, whether geographically or
as the supervision clause itself suggest, functionally defined, to exercise authority
is to wean local government units from in certain areas. It involves decision-
over-dependence on the central making by sub-national units. It is typically
government. delegated power, wherein a larger
government chooses to delegate certain
Autonomy, however, is not meant to end authority to more local governments
the relation of partnership and (Disomangcop v. Secretary of Public Works
interdependence between the central and Highways, G.R. No. 149848, November
administration and local government 25, 2004).
units. Local governments, under the
Constitution, are subject to regulation,
however limited, and for no other purpose
than precisely, albeit paradoxically, to
enhance self-government (Ganzon v.
Court of Appeals, G.R. No. 93252, August
Forms of Decentralization: NOTE: The LGC did not fully devolve the
Deconcentration and Devolution enforcement of the small-scale mining law
to the provincial government, as its
DECONCENTRATION DEVOLUTION enforcement is subject to the supervision,
It is administrative in It connotes political control and review of the DENR, which is
nature and involves decentralization, or in charge, subject to law and higher
the transfer of the transfer of authority, of carrying out the State's
functions or the powers, constitutional mandate to control and
delegation of responsibilities, and supervise the exploration, development,
authority and resources for the utilization of the country's natural
responsibility from the performance of resource (League of Provinces of the
national office to the certain functions Philippines v. DENR, G.R. 175368, April,
regional and local from the central 11, 2013).
office. government to the
local government Q: Before the passage of RA. 7160,
This is also referred to units. This is a more the task of delivering basic social
as administrative liberal form of services was dispensed by the
decentralization. decentralization national government through the
since there is actual DSWD. Upon the promulgation and
transfer of powers implementation of the LGC, some of
and responsibilities. the functions of the DSWD were
transferred to the LGUs. Mayor Plaza
It aims to grant II signed a MOA for the Devolution of
greater autonomy to the DSWD to the City of Butuan.
local government DSWDs services, personnel, assets
units in cognizance and liabilities, and technical support
of their right to self- systems were transferred to its city
government, to counterpart. By virtue of the MOA,
make them self- Mayor Plaza issued EO. 06-92
reliant, and to reconstituting the City Social
improve their Services Development Office
administrative and (CSSDO), devolving or adding thereto
technical capabilities 19 national DSWD employees, its
(Disomangcop v. office was transferred from the
Secretary of Public original CSSDO building to the DSWD
Works and building.
Highways, G.R. No.
149848, November Aida, Lorna and Fe refused to
25, 2004). recognize Joaquin as their new head
and to report at the DSWD building.
Consequences of Devolution They contended that the issuance of
EO. 06-92 by Mayor Plaza and the
1. The devolution shall include the designation of Joaquin as Officer-in-
transfer to the LGU the records, charge of the CSSDO are illegal.
equipment, and other assets and Despite Mayor Plazas series of
personnel of national agencies and orders to Aida, Lorna and Fe to report
offices corresponding to the devolved for work at the DSWD building, they
powers, functions, and responsibilities. failed to do so.
2. Personnel of said national agencies or
offices shall be absorbed by the LGUs Is Mayor Plaza empowered to issue
to which they belong or in whose areas EO. 06-92 in order to give effect to
they are assigned to the extent that it the devolution and have authority
is administratively viable. over Aida, Lorna and Fe?

NOTE: The rights accorded to such A: YES. Section 17 of the Local


personnel pursuant to civil service law, Government Code authorizes the
rules and regulations shall not devolution of personnel, assets and
be impaired. liabilities, records of basic services, and
facilities of a national government agency
3. Regional directors who are career to local government units. Under this
executive service officers and other Code, the term devolution refers to the
officers of similar rank in the said act by which the national government
regional offices who cannot be confers power and authority upon the
absorbed by the LGU shall be retained various local government units to perform
by the national government, without specific functions and responsibilities. As a
any diminution of rank, salary or consequence, EO. 503 was enacted by
tenure (Se. 17 (i), LGC). then President Corazon Aquino to govern
and ensure the efficient transfer of public health and acquisition of
responsibilities to the LGU concerned. territory for water supply the
Section 2 (g) provides: The local chief municipality is granted police power
executive shall be responsible for all beyond its boundaries (Rivera v.
devolved functions. He may delegate such Campbell, G.R. No. 11119, March 23,
powers and functions to his duly 1916).
authorized representative xxx.
4. Mandatory, directory; ministerial,
It is clear that Mayor Plaza is empowered discretionary
to issue EO. 06-92 in order to give effect
to the devolution decreed by the LGC. As Execution of powers of LGU
the local chief executive of Butuan City,
Mayor Plaza has the authority to reappoint 1. Where statute prescribes the manner
devolved personnel and may designate an of exercise, procedure must be
employee to take charge of a department followed.
until the appointment of a regular head 2. Where the law is silent, LGU has the
(Plaza II and Tuazon v. Cassion, G.R. No. discretion to select reasonable
136809, July 27, 2004). means and methods to exercise

Q: When can the local chief executive Governmental powers of LGU


choose not to absorb a national
government agency personnel? 1. Police power
2. Basic services and facilities
A: Absorption is mandatory on the part of 3. Power to generate and apply resources
the local chief executive and incumbent 4. Power of eminent domain
upon the personnel absorbed. The word 5. Taxing Power
shall is used both in Sec. 17 (i) of LGC, 6. Reclassification of Land
and Sec. 2 (a)(2) of EO. 503, which 7. Local legislative power
connotes a mandatory order. 8. Closure and opening of roads
9. Corporate Powers
The only instance that the LGU concerned 10. Liability of LGUs
may choose not to absorb the NGA 11. Settlement of Boundary Disputes
personnel is when absorption is not 12. Succession of Local Officials
administratively viable, meaning, it 13. Discipline of Local Officials
would result to duplication of functions. 14. Authority over police units
However, in the absence of the recognized
exception, devolved permanent personnel Interpretation of powers of LGUs
shall be automatically reappointed
(Sec. 2(12), EO 503) by the local chief Where a law is capable of two
executive concerned immediately upon interpretations, one in favor of centralized
their transfer which shall not go beyond power in Malacanang and the other
June 30, 1992 (CSC v. Yu, G.R. No. beneficial to local autonomy, the scales
189041, July 31, 2012). must be weighed in favor of autonomy
(San Juan v. Civil Service Commission, G.R.
POWERS OF LOCAL GOVERNMENTS No. 92299, April 29, 1991).

Sources of powers of a POLICE POWER


municipal corporation
Nature of the police power of the LGU
1. Constitution
2. Statutes (e.g. LGC) The police power of the LGU is not
3. Charter inherent. LGUs exercise the police power
4. Doctrine of right to self-government under the general welfare clause (Sec. 16,
LGC).
Classifications of municipal powers
General welfare clause
1. Express, implied, inherent
2. Government or public, corporate or LGUs shall exercise powers that are
private necessary, appropriate, or incidental for its
3. Intramural, extramural efficient and effective governance, and
those which are essential to the promotion
NOTE: Extramural powers of general welfare. Within their respective
Boundaries usually mark the limit for territorial jurisdiction, LGUs shall ensure and
the exercise of the police powers by a support, among other things, the
municipality. However, in certain preservation and enrichment of culture,
instances the performance of police promote health and safety, enhance the
functions, the preservation of the right of the people to a balanced ecology,
encourage and support the development of means for achieving that interest
appropriate and self-reliant scientific and (Fernando v. St. Scholasticas College,
technological capabilities, improve public G.R. No. 161107, March 12, 2013).
morals, enhance economic prosperity and Ministerial duty of the Local Chief
social justice, promote full employment Executive
among its residents, maintain peace and
order, and preserve the comfort and The LGC imposes upon the city mayor, to
convenience of their inhabitance (Sec. 16, enforce all laws and ordinances relative to
RA 7160). the governance of the city. As the chief
executive of the city, he has the duty to
Two branches of the General Welfare enforce an ordinance as long as it has not
Clause been repealed by the Sanggunian or
annulled by the courts. He has no other
1. General Legislative Power choice. It is his ministerial duty to do so
Authorizes the municipal council to (Social Justice Society v. Atienza, Jr., G.R.
enact ordinances and make No. 156052, March 7, 2007).
regulations not repugnant to law, as
may be necessary to carry into effect Abatement of nuisance without
and discharge the powers and duties judicial proceeding
conferred upon the municipal council
by law. The abatement of nuisances without
2. Police Power Proper Authorizes the judicial proceedings applies to nuisance
municipality to enact ordinances as per se or those which affect the
may be necessary and proper for the immediate safety of persons and property
health and safety, prosperity, morals, and may be summarily abated under the
peace, good order, comfort, and undefined law of necessity (Tayaban v.
convenience of the municipality and People, G.R. No. 150194, March 6, 2007).
its inhabitants, and for the protection
of their property (Rural Bank of The LGUs have no power to declare a
Makati v. Municipality of Makati, G.R. particular thing as a nuisance unless such
No. 150763, July 2, 2004). a thing is a nuisance per se; nor can they
effect the extrajudicial abatement of a
Requisites/limitations for the nuisance per accidens. Those things must
proper exercise of the police power be resolved by the courts in the ordinary
course of law (AC Enterprises, Inc. v.
3. The interests of the public Frabelle Properties Corp., G.R. No. 166744,
generally, as distinguished from November 2, 2006).
those of a particular class, require
the interference of the state. (Equal Powers deemed implied in the power
Protection Clause) to grant permits and licenses
4. The means employed are reasonably
necessary for the attainment of the Power to issue licenses and permits
object sought to be accomplished include power to revoke, withdraw or
and not duly oppressive. (Due Process restrict through the imposition of certain
Clause) conditions. However, the conditions must
5. Exercisable only within the territorial be reasonable and cannot amount to an
limits of the LGU, except for protection arbitrary interference with the business
of water supply (Sec 16, LGC). (Acebedo Optical Company, Inc. v. CA, G.R.
6. Must not be contrary to the Constitution No. 100152, March 31, 2000).
and the laws.
Object of the permit requirement
NOTE: There must be a concurrence of a
lawful subject and lawful method (Lucena The object of the permit requirement is the
Grand Central v. JAC, G.R. No. 148339 proper supervision of the enumerated
February 23, 2005). businesses, trades or occupation.

Tests when police power is invoked as NOTE: The issuance of permits and
the rationale for the valid passage of licenses is a function of the local chief
an ordinance executive.

1. Rational relationship test An License/permit to do business v.


ordinance must pass the requisites as License to engage in a profession
discussed above.
2. Strict scrutiny test The focus is on the LICENSE/PERMIT TO LICENSE TO
presence of compelling, rather than DO ENGAGE IN A
substantial, governmental interest and BUSINESS PROFESSION
on the absence of less restrictive Granted by the local Board or Commission
authorities. tasked to regulate the prostitution in an establishment
particular profession. masquerading as a massage clinic where
Authorizes the person Authorizes a natural the operation thereof offers to massage
to person to engage in superficial parts of the bodies of
engage in the business the practice or customers for hygienic or aesthetic
or some form of exercise of his or her purposes (Physical Therapy Organization
commercial activity. profession. of the Philippines v. Municipal Board of
Manila, G.R. No. L-10488, August 30,
Q: Acebedo Optical Company applied 1957).
with the Office of the City Mayor of
Iligan for a business permit. The City Q: The Sangguniang Panglungsod of
Mayor issued such permit subject to Marikina City enacted an ordinance
special conditions that the company Regulating the Construction of
cannot put up an optical clinic but Fences and Walls in the City of
only a commercial store; it cannot Marikina. The ordinance provided,
examine patients and prescribe among others, that fences should not
glasses; and it cannot sell eyeglasses be more than 1 meter and fences in
without a prescription from an excess of 1 meter shall be 80% see-
independent optometrist. Samahan thru. It further provided that in no
ng Optometrist ng Pilipinas lodged a case shall walls and fences be built
complaint against Acebedo for within the five meter parking area
violating the conditions which allowance located between the front
resulted in the revocation of its monument line and the building line
permit. Did the City Mayor have the of commercial and industrial
authority to impose special establishments and educational and
conditions in the grant of the religious institutions. Is the ordinance
business permit? valid?

A: NO. Police power is essentially A: NO. It has long been settled that the
regulatory in nature and the power to State may not, under the guise of police
issue license or grant business permits, if power, permanently divest owners of the
for a regulatory purpose, is within the beneficial use of their property solely to
ambit of this power. This power preserve or enhance the aesthetic
necessarily includes the power to revoke appearance of the community. Compelling
and to impose conditions. However, the the respondents to construct their fence in
power to grant or issue licenses or accordance with the assailed ordinance is,
business permits must always be thus, a clear encroachment on their right
exercised in accordance with law, with to property, which necessarily includes
utmost observance of the rights of all their right to decide how best to protect
concerned to due process and equal their property (Fernando v. St.
protection of the law. What is sought by Scholastica's College, G.R. No. 161107,
Acebedo from the City Mayor is a permit to March 12, 2013).
engage in the business of running an
optical shop. It does not purport to seek a Q: Can the City Mayor of Manila
license to engage in the practice of validly take custody of several
optometry. A business permit is issued women of ill repute and deport them
primarily to regulate the conduct of as laborers without knowledge and
business and the City Mayor cannot, consent to the said deportation?
through the issuance of such permit,
regulate the practice of a profession. Such A: NO. One can search in vain for any
a function is within the exclusive domain law, order, or regulation, which even hints
of the administrative agency specifically at the right of the Mayor of the city of
empowered by law to supervise the Manila or the chief of police of that city to
profession, in this case the Professional force citizens of the Philippine
Regulations Commission and the Board of Islands and these women despite their
Examiners in Optometry (Acebedo Optical being in a sense lepers of society are
Company Inc. v. Court of Appeals, G.R. No. nevertheless not chattels but Philippine
100152, March 31, 2000). citizens protected by the same
constitutional guaranties as are other
NOTE: However, certain professions may citizens to change their domicile from
be affected by the exercise of police Manila to another locality (Villavicencio v.
power. An ordinance in Manila was held Lukban, G.R. No. L-14639, March 25,
not to regulate the practice of massage, 1919).
much less restrict the practice of such
profession. Instead, the end sought to be Q: May an LGU require customers to
obtained was to prevent the commission fill out a prescribed form stating
of immorality under the practice of personal information such as name,
gender, nationality, age, address and all their hospitality girls tested for the
occupation before they could be AIDS virus. Both disco pub owners and
admitted to a motel, hotel, or lodging the hospitality girls assailed the
house? validity of the ordinance for being
violative of their constitutional rights
A: YES. The Ordinance was enacted to privacy and to freely choose a
precisely to minimize certain practices calling or business. Is the ordinance
hurtful to public morals such as the valid? Explain. (2010 bar question)
increase in the rate of prostitution,
adultery and fornication in Manila A: YES. The ordinance is a valid exercise
traceable in great part to the existence of of police power. The right to privacy yields
motels, which "provide a necessary to certain paramount rights of the public
atmosphere for clandestine entry, and defers to the exercise of police power.
presence and exit" and thus become the The ordinance is not prohibiting the disco
"ideal haven for prostitutes and thrill- pub owners and the hospitality girls from
seekers". Precisely it was intended to curb pursuing their calling or business but is
the opportunity for the immoral or merely regulating it (Social Justice Society
legitimate use to which such premises v. Dangerous Drugs Board, G.R. No.
could be and are being devoted (Ermita- 157870, November 3, 2008).
Malate Hotel and Motel Operations
Association v. City Mayor of Manila, G.R. This ordinance is a valid exercise of police
No. L-24693, July 31, 1967). power, because its purpose is to safeguard
public health (Beltran v. Secretary of
Q: Mayor Lim signed into law, City Health, G.R. No. 133640, November 25,
Ordinance 7774, which prohibits 2005).
short time admission in hotels,
motels, lodging houses, pension NOTE: Municipal corporations cannot
houses and similar establishments in prohibit the operation of night clubs. They
the City of Manila to protect public may be regulated, but not prevented from
morals. Pursuant to the above policy, carrying on their business (Dela Cruz v.
short-time admission and rate, wash- Paras, G.R. Nos. L-42571-72, July 25, 1983).
up rate or other similarly concocted
terms, are hereby prohibited in Q: The Quezon City Council issued
hotels, motels, inns, lodging houses, Ordinance 2904 which requires the
pension houses and similar construction of arcades for
establishments in the City of Manila. commercial buildings to be
Petitioners argued that the Ordinance constructed in zones designated as
is unconstitutional and void since it business zones in the zoning plan of
violates the right to privacy and the Quezon City, along EDSA. However, at
freedom of movement; it is an invalid the time the ordinance was passed
exercise of police power; and it is an there was yet no building code passed
unreasonable and oppressive by the legislature. Thus, the
interference in their business. Is the regulation of the construction of the
ordinance valid? buildings are left to the discretion of
the LGUs. Under this ordinance, the
A: NO. Individual rights may be city council required that the arcade is
adversely affected only to the extent that to be created, in a way, that building
may fairly be required by the legitimate owners are not allowed to construct
demands of public interest or public his wall up to the edge of the property
welfare. However well-intentioned the line, thereby creating a space under
Ordinance may be, it is in effect an the first floor. In effect, instead of
arbitrary and whimsical intrusion into the using the property for their own
rights of the establishments as well as purposes, property owners relinquish
their patrons. The Ordinance needlessly the use of the space as an arcade for
restrains the operation of the businesses pedestrians.
of the petitioners as well as restricting the
rights of their patrons without sufficient Subsequently, Justice Gancayo sought
justification. The Ordinance rashly equates to be exempted from the application
wash rates and renting out a room more of the ordinance, which the City
than twice a day with immorality without Council responded favorably in his
accommodating innocuous intentions favor.
(White Light Corp., v. City of Manila, G.R.
No. 122846, January 20, 2009). MMDA then sent a notice of
demolition to Justice Gancayco,
Q: The Sangguniang Panlungsod of alleging that a portion of his building
Pasay City passed an ordinance violates the National Building Code in
requiring all disco pub owners to have relation to the ordinance. Is the
Ordinance a valid exercise of police 149 would be meaningless and absurd if
power in regulating the use of made applicable only to the Santolan
property in a business zone? pumping station and not to that part of
the Mariquina River immediately above it
A: YES. In the exercise of police power, and from which the pumping station draws
property rights of individuals may be water for the use of the inhabitants of the
subject to restraints and burdens in order City of Manila (Rivera v. Campbell, G.R.
to fulfill the objectives of the government. No. L-11119, March 23, 1916).
Property rights must bow down to the
primacy of police power because it must Q: The Sanggunian of Cagayan De Oro
yield to the general welfare. It is clear that enacted Ordinance No. 3353
the objective of the ordinance were the prohibiting the issuance of business
health and safety of the city and its permits and cancelling existing
inhabitants. At the time he ordinance was business permits for the operation of
passed, there was no national building casinos; and Ordinance No. 3375-93,
code, thus there was no law which prohibits prohibiting the operation of a casino.
the city council from regulating the Z assailed the validity of the
construction of buildings, arcades and ordinances on the ground that both
sidewalks in their jurisdiction (Gancayco v. violated P.D. 1869 which permits the
City Government of Quezon City, G.R. No. operation of casinos, centralized and
177807, October 11, 2011). regulated by PAGCOR. The
Sanggunian, however, contended that
Q: Rivera was found washing her pursuant to the LGC, they have the
clothing near the Santolan pumping police power to prohibit the
station near Boso-Boso dam. Riveras operations of casinos for the general
act of washing clothing interfered welfare. Was there a valid exercise
with the purity of the water which of police power?
was supplied to Manila by the
Santolan pumping station. She was A: NO. PD 1869 creating the PAGCOR
charged with violation of Sec. 4(f) of expressly authorized it to centralize and
Ordinance No. 149 which prohibited regulate all games of chance including
washing of garments in the waters of casinos. This has not been amended by
any river or water course. Manilas the LGC which empowers LGUs to prevent
municipal board adopted the same or suppress only those forms of gambling
section by virtue of the Acts of the prohibited by law. Casino gambling is,
Philippine Commission and was however, authorized under PD 1869. This
authorized to purify the source of decree has the status of a statute that
water supply as well as the drainage cannot be annulled or amended by a mere
area of such water supply. Rivera ordinance. PAGCOR can set up casinos
contented that the municipal court of with or without the consent of the host
the City of Manila and the Court of local government (Magtajas v. Pryce
First Instance of the City of Manila Properties and PAGCOR, G.R. No. 111097,
had no jurisdiction to try her for the July 20, 1994).
crime committed. Does the CFI of
Manila have jurisdiction over the EMINENT DOMAIN
offense, considering that the washing
of clothes was in the Mariquina River? Eminent Domain

A: YES. Boundaries usually mark the limit Local government units have no inherent
for the exercise of the police powers by power of eminent domain. Local
the municipality. However, in certain governments can exercise such power
instances the performance of police only when expressly authorized by the
functions, the preservation of public health Legislature. By virtue of the Local
and acquisition of territory for water Government Code, Congress conferred
supply the municipality is granted police upon local government units the power to
power beyond its boundaries. The expropriate (Masikip v. City of Pasig, G.R.
Santolan pumping station is a part of the No. 136349, January 23, 2006).
public water supply of Manila with water
taken from that part of the Mariquina However, while the power of eminent may
River, in the waters of which Rivera be validly delegated to LGUs, the exercise
washed clothes. Public water supply is not of such power by the delegated entities is
limited to water supply owned and not absolute. The scope of such delegated
controlled by a municipal corporation, but power is narrower than that of the
should be construed as meaning a supply delegating authority and may be exercised
of water for public and domestic use, only when authorized by Congress, subject
furnished or to be furnished from water to its control and the restraints imposed
works. The provisions of the Ordinance No. through the law conferring the power.
Strictly speaking, the power of eminent
domain delegated to an LGU is in reality 1. Filling of a complaint for expropriation
not eminent but inferior. The national which is sufficient in form and
legislature is still the principal of the LGUs, substance
and the latter cannot go against the 2. Deposit of the amount equivalent to
principals will or modify the same (Beluso fifteen percent (15%) of the fair
v. Municipality of Panay, G.R. No. 153974, market value of the property to be
August 7, 2006). expropriated based on its current tax
declaration.
NOTE: LGUs may, through its local chief
executive and acting pursuant to an NOTE: Upon compliance, the issuance of
ordinance, exercise power of eminent writ of possession becomes ministerial
domain for public use, or purpose, or (City of Iloilo v. Legaspi, G.R. No. 154614,
welfare for the benefit of the poor and the November 25, 2004).
landless, upon payment of just
compensation (Sec. 19, LGC). Phases of expropriation proceedings

Requisites for the valid exercise of 1. The determination of the


the power of eminent domain (OPO) authority of the plaintiff to
exercise the power of eminent
1. An Ordinance is enacted by the local domain and the propriety of its
legislative council authorizing the exercise in the context of the facts
local chief executive, in behalf of the involved in the suit.
LGU, to exercise the power of
eminent domain or pursue NOTE: It ends with an order, if not
expropriation proceeding over a dismissal of action, of condemnation
particular private property. declaring that the plaintiff has a
2. It must be for Public use, purpose or lawful right to take the property
welfare or for the benefit of the poor or sought to be condemned, for the
landless public use or purpose described in
the complaint, upon the payment of
NOTE: Property already devoted to just compensation to be determined
public use may not be taken for as of the date of the filing of the
another public use (City of Manila v. complaint.
Chinese Community of Manila, G.R.
No. L-14355, October 31, 1919). An order of dismissal, if this be
ordained, would be a final one, since
it finally disposes of the action and
3. There must be payment of just leaves nothing more to be done by the
Compensation Court on the merits. The order of
4. A valid and definite Offer has been condemnation shall be a final one, as
previously made to the owner of the the Rules expressly state, in the
property sought to be expropriated, proceedings before the Trial Court, no
but said offer was not accepted objection to the exercise of the right of
(Municipality of Paranaque v. V.M. condemnation (or the propriety
Realty Corporation, G.R. No. 127820. thereof) shall be filed or heard.
July 20, 1998).
2. The determination by the RTC of the
Due process requirements in just compensation for the property
eminent domain sought to be taken.
Offer must be in writing specifying: This is done by the Court with the
1. Property sought to be acquired assistance of not more than three
2. The reason for the acquisition (3) commissioners. The order fixing
3. The price offered the just compensation on the basis
of the evidence before, and findings
NOTE: of, the commissioners would be final. It
1. If owner accepts offer: a contract of would finally dispose of the second
sale will be executed. stage of the suit, and leave nothing
2. If owner accepts but at a higher price: more to be done by the Court
Local chief executive shall call a regarding the issue (Brgy. San Roque,
conference for the purpose of reaching Talisay, Cebu v. Hrs. of Francisco
an agreement on the selling price; If Pastor, G.R. No. 138896, June 20,
agreed, contract of sale will be drawn 2000).
(Art. 35, LGC IRR).
NOTE: LGUs prolonged occupation of
Elements for an authorized private property without the benefit of
immediate entry
expropriation proceedings entitles the benefit to the public with the least
landowner to damages (City of Iloilo v. inconvenience and expense to the
Judge Contreras-Besana, G.R. No. 168967, condemning party and the property
February 12, 2010). owner consistent with such benefit
(Masikip v. City of Pasig, G.R. No. 136349,
Satisfaction of public use January 23, 2006).
requirement
Q: May LGUs expropriate a property
In cases where only a few could to provide a right-of-way to residents
actually benefit from the expropriation of a subdivision?
of the property does not diminish its
public use character. It is simply not A: NO. Considering that the residents
possible to provide for all at once, land who need a feeder road are all
and shelter, for all who need them. subdivision lot owners, it is the
Corollary to the expanded notion of public obligation of the subdivision owner to
use, expropriation is not anymore acquire a right-of-way for them.
confined to vast tracts of land and landed However, the failure of the subdivision
estates. It is therefore of no moment that owner to provide an access road does not
the land sought to be expropriated is less shift the burden to the LGU
than half a hectare only. Through the concerned. To deprive respondents of
years, the public use requirement in their property instead of compelling the
eminent domain has evolved into a flexible subdivision owner to comply with his
concept, influenced by changing obligation under the law is an abuse of
conditions. Public use now includes the the power of eminent domain and is
broader notion of indirect public benefit patently illegal. Worse, the
or advantage including in particular, expropriation will actually benefit the
urban land reform and housing (Philippine subdivisions owner who will be able to
Columbian Association v. Panis, G.R. No. L- circumvent his commitment to provide
106528, December 21, 1993). road access to the subdivision in
conjunction with his development permit
NOTE: The passage of RA 7279, the and license to sell from the Housing and
Urban Development and Housing Act of Land Use Regulatory Board, and also be
1992 introduced a limitation on the size relieved of spending his own funds for a
of the land sought to be expropriated for right-of-way (Barangay Sindalan v. CA G.R.
socialized housing. The law expressly No. 150640, March 22, 2007).
exempted small property owners from
expropriation of their land for urban land Q: Municipality of Panay issued
reform (City of Mandaluyong v. Aguilar, resolutions authorizing the municipal
G.R. No. 137152, January 29, 2001). government through the Mayor to
initiate expropriation proceedings. A
petition for expropriation was filed by
the Municipality of Panay. Petitioners
are the owners of parcels of land
which is going to be expropriated by
the LGU.
Satisfaction of genuine necessity
requirement Petitioners argue that such
expropriation was based only on a
The right to take private property for resolution and not on an ordinance
public contrary to Sec. 19 of LGC. Is the
purposes necessarily originates from the exercise of eminent domain by the
necessity and the taking must be Municipality of Panay valid?
limited to such necessity. In City of
Manila v. Chinese Community of Manila, A: NO. The LGC expressly requires an
it is held that the very foundation of the ordinance for the purpose of expropriation,
right to exercise eminent domain is a and a resolution which merely expresses
genuine necessity and that necessity the sentiment of the municipal council will
must be of a public character. Moreover, not suffice. As respondent's expropriation
the ascertainment of the necessity must in this case was based merely on a
precede or accompany and not follow the resolution, such expropriation is clearly
taking of the land. In City of Manila v. defective. While the Court is aware of the
Arellano Law College, the necessity within constitutional policy promoting local
the rule that the particular property to autonomy, the court cannot grant judicial
be expropriated must be necessary, does sanction to an LGU's exercise of its
not mean an absolute, but only a delegated power of eminent domain in
reasonable or practical necessity, contravention of the very law giving it such
such as would combine the greatest power (Beluso, et al. v. Municipality of
Panay (Capiz), G.R. No. 153974, August 7, compensaition is not necessary. Is
2006). the ordinance valid?

Q: NAPOCOR undertook the Agus A: NO. The power to regulate does not
River Hydroelectric Power Plant include the power to prohibit. A fortiori,
Project to generate electricity for the power to regulate does not include the
Mindanao. The project included the power to confiscate. The ordinance in
construction of several underground question not only confiscates but also
tunnels to be used in diverting the prohibits the operation of a memorial park
water flow from the Agus River to the cemetery. There is no reasonable relation
hydroelectric plants. Merry, Pippin between the setting aside of at least 6% of
and Sam belatedly discovered that the total area of a private cemeteries for
one of the underground tunnels of charity burial grounds of deceased
NAPOCOR traversed their land. The paupers and the promotion of health,
said underground tunnel had been morals, good order, safety, or the general
constructed without their knowledge welfare of the people.
and consent.
Section 9 of the assailed Ordinance is not
Merry, Pippin and Sam now seek for a mere police regulation but an outright
recovery of the property and damages confiscation. It is not an exercise of police
because according to them, the power but eminent domain. It deprives a
presence of the tunnel deprived them person of his private property without due
of the agricultural, commercial, process of law and without payment of
industrial, and residential value of just compensation. Instead of building or
their land. Moreover, according to maintaining a public cemetery for this
Merry, Pippin and Sam their land had purpose, the city passes the burden to
also become an unsafe place for private cemeteries. Police power does not
habitation because of the loud sound involve the taking or confiscation of
of the water rushing through the property with the exception of few cases
tunnel and the constant shaking of where there is a necessity to confiscate
the ground. private property in order to destroy it for
the purpose of protecting the peace and
Does the construction of the tunnel order and of promoting the general
constitute taking of land which welfare (Quezon City v. Ericta, G.R. No. L-
entitles Merry, Pippin and Sam to just 34915, June 24, 1983).
compensation?
Q: The municipal council of Baao,
A: YES. There was full taking on the part Camarines Sur, passed an ordinance
of NAPOCOR, notwithstanding that the providing that any person who will
owners were not completely and actually construct or repair a building should
dispossessed. Taking of private property before doing such, obtain a written
for public use, to be compensable, need permit from the Municipal Mayor and
not be an actual physical taking or if said building destroys the view of
appropriation. Compensable taking the Public Plaza or occupies any
includes destruction, restriction, public property, it shall be removed
diminution, or interruption of the rights of at the expense of the owner of the
ownership or of the common and building or house. X filed a written
necessary use and enjoyment of the request for a permit to construct a
property in a lawful manner, lessening or building on a parcel of land adjacent
destroying its value (NAPOCOR v. Hrs. of to their gasoline station. The request
Macabangkit Sangkay, G.R. No. 165828, was denied because the proposed
August 24, 2011). building would destroy the view or
beauty of the public plaza. X
proceeded with the construction of
Q: Petitioner Himlayang Pilipino filed the building without a permit
a petition to annul an ordinance because his former house was
which provides that at least 6% of the destroyed by a typhoon. X was
total area of every private cemetery charged and convicted of violating
shall be set aside for charity burial the Ordinance for having constructed
grounds of deceased paupers. a building that destroys the view of
Petitioner alleged that the ordinance the public plaza without a mayors
is an invalid exercise of the power of permit. Is the ordinance valid?
eminent domain as they were not
paid just compensation. The City A: NO. The ordinance is unreasonable and
government of Quezon City, however, oppressive, in that it operates to
argued that the ordinance is an permanently deprive appellants of the
exercise of police power, hence, just right to use their own property; hence, it
oversteps the bounds of police power, and fee and to comply with existing
amounts to a taking of appellants ordinances governing the issuance of
property without just compensation. But building permits. The engineer
while property may be regulated in the declined to issue the permit as
interest of the general welfare and, in its according to the Urban Commissions
pursuit, the State may prohibit structures Adopted Plan for the Sta. Ana, the
offensive to sight, the State may not, streets will be widened to the
under the guise of police power, respective widths of 22-m. and 10 m
permanently divest owners of the and will affect the proposed building.
beneficial use of their property and Was the engineer correct in not
practically confiscate them solely to issuing the permit?
preserve or assure the aesthetic
appearance of the community. To legally A: NO. The refusal of the city engineer to
achieve that result, the municipality must issue a building permit to private
give the owners just compensation and an landowners constitutes eminent domain
opportunity to be heard. The Ordinance when there is no law or ordinance
was beyond the authority of said requiring private land owners to conform
municipality to enact, and is therefore null to the proposed widening of the street
and void (People v. Fajardo, G.R No. L- approved by the Urban Commission.
12172, August 29, 1958). Where the City has not expropriated the
strip of land affected by the proposed
Q: The Philippine Tourism Authority widening of the street, inasmuch as there
sought the expropriation of 282 is no legislative authority to establish a
hectares of rolling land situated in building line, the denial of this permit
Barangay Alubog and Babag, Cebu would amount to taking of private
City, under an express authority to property for public use under the power of
acquire by purchase or by any other eminent domain without following the
means any private land within the procedure prescribed for the exercise of
tourism zone. Petitioner contended such power. The city engineer required to
that the taking was not for public use issue the building permit upon payment of
and that there is no specific the fees (Hipolito v. City of Manila, G.R No.
constitutional provision authorizing L-3887, August 21, 1950).
the taking of private property for
tourism purposes. Is the contention TAXING POWER
valid?
Nature of the power of taxation of
A: NO. Expropriation by the PTA under PD LGUs
564 of land owned by the local
government for promotion of tourism is a The power to tax is primarily vested in the
valid exercise of the States power of Congress; however, in our jurisdiction, it
eminent domain. The concept of public may be exercised by local legislative
use is not limited to traditional purposes. bodies, no longer merely by virtue of a
Here, as elsewhere, the idea that public valid delegation as before, but pursuant to
use is strictly limited to clear cases of direct authority conferred by Section 5,
use by the public has been discarded. Article V of the 1987 Constitution. The
The States power of eminent domain exercise of the power may be subject to
extends to the expropriation of land for such guidelines and limitations as the
tourism purposes although this specific Congress may provide which, however,
objective is not expressed in the must be consistent with the basic policy of
Constitution. The policy objectives of the local autonomy (Mactan Cebu
framers can be expressed only in general International Airport Authority v. Marcos,
terms such as social justice, local G.R. No. 120082, September 11, 1996).
autonomy, conservation and development
of the national patrimony public interest, Rationale for local taxation
and general welfare, among others (Heirs
of Ardona v. Reyes, G.R. No. G.R No. L- The power of taxation is an essential and
60549, October 26, 1983). inherent attribute of sovereignty. It is a
power that is purely legislative and which
Q: Sps. Hipolito are the registered the central legislative body cannot
owners of a parcel of land in Santa delegate to either executive or judicial
Ana, Manila. They applied for department without infringing upon the
permission to erect a strong-material theory of separation of powers. The
residential building on the lot. For exception, however, lies in the case of
more than forty days, the city municipal corporations, to which said
engineer took no action. Wherefore, theory does not apply. Legislative powers
Hipolito wrote him a letter may be delegated to legislative
manifesting his readiness to pay the governments in respect of matters of local
concern. This is sanctioned by immemorial Constitutional Commissions and local
practice. By necessary implication, governments. The automatic release
legislative power to create political provision found in the Constitution means
corporations for purposes of local self- these local governments units cannot be
government carries with it the power to required to perform any act to receive the
confer on such local government agencies just share accruing to them from the
the power to tax (Pepsi-Cola Bottling Co. national coffers (Civil Service Commission
v. Municipality of Tanauan, G.R. No. L- v. Department of Budget and
31156, February 27, 1976). Management, G.R. No. 158791, July 22,
2005).
ARMMs taxing power
Q: The President, through AO
The ARMM has the legislative power to 372, ordered the withholding of
create sources of revenues within its 10% of the LGUs' IRA "pending the
territorial jurisdiction and subject to the assessment and evaluation by the
provisions of the 1987 Constitution and Development Budget Coordinating
national laws (Sec. 20(2), Art. X, 1987 Committee of the emerging fiscal
Constitution). situation" in the country. Is the AO
valid?
Power to tax by ordinary LGUs v.
Power to tax by Autonomous Regions A: NO. A basic feature of local fiscal
autonomy is the automatic release of the
LGUS LGUS INSIDE shares of LGUs in the
OUTSIDE AUTONOMOUS national internal revenue. This is
AUTONOMOUS REGIONS (I.E. mandated by no less than the
REGIONS ARMM) Constitution. The LGC specifies further
Basis of Taxing Power that the release shall be made directly to
Sec. 5, Art. X, 1987 Sec. 20(b), Art. X, the LGU concerned within five days
Constitution 1987 Constitution after every quarter of the year and shall
Governing guidelines and limitations not be subject to any lien or holdback that
may be imposed by the national
LGC of 1991 Respective Organic
government for whatever purpose. As a
Act
rule, the term "shall" is a word of
command that must be given a
NOTE: Unlike Sec. 5, Art. X, Sec. 20, Art. X
compulsory meaning. The provision is,
of the 1987 Constitution is not self-
therefore, imperative (Pimentel Jr. v.
executing. It merely authorizes
Aguirre, G.R. No. 132988, July 19, 2000).
Congress to pass the Organic Act of
the autonomous regions which shall
Main sources of revenues of LGUs
provide for legislative powers to levy
taxes upon their inhabitants.
1. Taxes, fees, and charges (Sec. 5,
Art. X, 1987 Constitution).
Local Fiscal Autonomy
2. Internal Revenue Allotment (IRA) -
Just share in the national taxes which
Fiscal autonomy means that local
shall be automatically released to
governments have the power to create
them (Sec. 6, Art. X, 1987
their own sources of revenue in addition to
Constitution).
their equitable share in the national taxes
released by the national government, as
NOTE: The current sharing is 40%
well as the power to allocate their
local and 60% national. The share
resources in accordance with their own
cannot be reduced except if there is
priorities. It extends to the preparation of
unmanageable public sector deficit.
their budgets, and local officials in turn
have to work within the constraints
3. Equitable share in the proceeds of the
thereof. They are not formulated at the
utilization and development of the
national level and imposed on local
national wealth within their areas
governments, whether they are relevant
(Sec. 7, Art. X, 1987 Constitution).
to local needs and resources or not.
Further, a basic feature of local fiscal
Principles governing exercise of
autonomy is the constitutionally mandated
taxing and revenue-sharing powers
automatic release of the shares of local
of LGUs
governments in the national internal
revenue (Province of Batangas v. Romulo,
1. Taxation shall be uniform in
G.R. No. 152774, May 27, 2004).
each LGU
2. Taxes, fees, charges and other
NOTE: A no report, no release policy
impositions shall be equitable and
may not be validly enforced against offices
based as far as practicable on the
vested with fiscal autonomy such as
taxpayers ability to pay; it shall be and to avoid duplication in the use of
levied and collected only for public fiscal and physical resources.
purpose; it must not be unjust, 9. Local budgets shall operationalize
excessive, oppressive, or approved local development plans;
confiscatory; it must not be 10. LGUs shall ensure that their
contrary to law, public policy, respective budgets incorporate the
national economic policy, or restraint of requirements of their component
trade; units and provide for equitable
3. The collection of local taxes, fees, allocation of resources among these
charges and other impositions shall component units;
in no case be let to any private 11. National planning shall be based on
person. local planning to ensure that the
4. The revenue collected shall inure needs and aspirations of the people
solely to the benefit of, and be as articulated by the LGUs in their
subject to disposition by, the local respective local development plans
government unit, unless are considered in the formulation of
specifically provided therein. budgets of national line agencies or
5. Each local government unit shall, as offices;
far as practicable, evolve a 12. Fiscal responsibility shall be shared by
progressive system of taxation (Sec. all those exercising authority over the
130, LGC). financial affairs, transactions and
operations of LGUs; and
Principles governing financial 13. The LGU shall endeavor to have a
affairs, transactions and operations balanced budget in each fiscal year of
of LGUs operation (Sec. 305, LGC).

1. No money shall be paid out of the Requirements for a valid tax


local treasury except in pursuance ordinance
of an appropriation ordinance or
law; 1. The tax is for a public purpose;
2. Local government funds and monies 2. The rule on uniformity of taxation is
shall be spent solely for public observed;
purposes; 3. Either the person or property taxed is
3. Local revenue is generated only from within the jurisdiction of the
sources expressly authorized by law government levying the tax; and
or ordinance, and collection 4. In the assessment and collection of
thereof shall at all times be certain kinds of taxes, notice and
acknowledged properly; opportunity for hearing are provided
4. All monies officially received by a (Pepsi-Cola Bottling Co. v. Municipality
local government officer in any of Tanauan, G.R. No. L-31156,
capacity or on any occasion shall be February 27, 1976).
accounted for as local funds, unless
otherwise provided; Procedural requirements for a valid
5. Trust funds in the local treasury shall revenue ordinance
not be paid out except in the
fulfillment of the purpose for which 1. A prior public hearing on the measure
the trust was created or the funds to be conducted according to the
received; prescribed rules.
6. Every officer of the LGU whose duties
permit or require the possession NOTE: An ordinance levying taxes,
or custody of local funds shall be fees or charges shall not be enacted
properly bonded, and such officer without any prior public hearing
shall be accountable and conducted for the purpose (Figuerres
responsible for said funds and v. CA, G.R. No. 119172, March 25,
for the safekeeping thereof in 1999).
conformity with the provisions of
law; 2. Publication of the tax ordinance,
7. Local governments shall within 10 days after their approval,
formulate sound financial plans and for 3 consecutive days in a
local budgets shall be based on newspaper of local circulation,
functions, activities, and projects in provided that in provinces, cities, and
terms of expected results; municipalities where there are no
8. Local budget plans and goals shall, as newspapers of local circulation, the
far as practicable, be harmonized same may be posted in at least two
with national development plans, (2) conspicuous and publicly
goals and strategies in order to accessible places.
optimize the utilization of resources
NOTE: If the tax ordinance or the effect of suspending the effectivity
revenue measure contains penal of the ordinance and the accrual and
provisions as authorized in Art. 280 of payment of the tax, fee, or charge levied
this Rule, the gist of such tax therein: Provided, finally, that within thirty
ordinance or revenue measure shall be days after receipt of the decision or the
published in a newspaper of general lapse of the sixty-day period without the
circulation within the province where Secretary of Justice acting upon the
the sanggunian concerned belongs appeal, the aggrieved party may file
(Art. 276, IRR of LGC). appropriate proceedings with a court of
competent jurisdiction (RTC) (Sec. 187,
Effectivity of tax ordinance LGC).

In case the effectivity of any tax Tax Protest


ordinance or
revenue measure falls on any date The formal statement, usually in writing,
other than the beginning of the made by a person who is called upon by
quarter, the same shall be public authority to pay a sum of money, in
considered as falling at the beginning which he declares that he does not
of the next ensuing quarter and the concede the legality or justice of the claim
taxes, fees, or charges due shall begin to or his duty to pay it, or that he disputes the
accrue therefrom (Art. 276, IRR of LGC). amount demanded; the object being to
save his right to recover or reclaim the
Q: The Province of Palawan passes amount, which right would be lost by his
an ordinance requiring all acquiescence. Thus, taxes may be paid
owners/operators of fishing vessels under "protest" (Blacks Law Dictionary).
that fish in waters surrounding the
province to invest ten percent (10%) Requisites of a valid tax protest in a
of their net profits from operations LGU
therein in any enterprise located in
Palawan. NARCO Fishing Corp., a 1. Taxpayer first pays the taxes
Filipino corporation with head office 2. There shall be annotation on the tax
in Navotas, Metro Manila, challenges receipts the words "paid under
the ordinance as unconstitutional. protest".
Decide. 3. The protest in writing must be filed
within thirty (30) days from payment
A: The ordinance is invalid. The of the tax to the provincial, city
ordinance was apparently enacted treasurer or municipal treasurer, in the
pursuant to Art. X, Sec. 7 of the case of a municipality within
Constitution, which entitles local Metropolitan Manila Area, who shall
governments to an equitable share in the decide the protest within sixty (60)
proceeds of the utilization and days from receipt (Sec. 252, LGC).
development of the national wealth
within their respective areas. However, NOTE: A claim for tax exemption, whether
this should be made pursuant to law. A full or partial, does not deal with the
law is needed to implement this authority of local assessor to assess real
provision and a local government cannot property tax, but merely raises a question
constitute itself unto a law. In the of reasonableness of correctness of such
absence of a law, the ordinance in assessment, which requires compliance
question is invalid. with Sec. 252 of the LGC (Camp John Hay
Development Corporation v. Central Board
Authority to determine the legality of Assessment Appeals, G.R. No. 169234,
or propriety of a local tax ordinance October 2, 2013).
or revenue measure
Remedies available to the LGUs to
It is the Secretary of Justice who shall enforce the payment of taxes
determine
questions on the legality and 1. Imposing penalties (surcharges and
constitutionality of ordinances or penalty interest) in case of delinquency
revenue measures. (Sec. 168, LGC)
2. Availing local governments liens
Such questions shall be raised on appeal (Sec. 173, LGC)
within thirty days from the effectivity 3. Administrative action through distraint
thereof to the Secretary of Justice who of goods, chattels, and other
shall render a decision within sixty days personal property (Sec. 174(a), LGC)
from the date of receipt of the appeal. 4. Judicial action (Sec. 174(b), LGC)

NOTE: Such appeal shall not have Community tax


properties that are actually, directly and
Community tax is a poll or capitation tax exclusively used in the pursuit of its
which is franchise (The City Government of Quezon
imposed upon person who resides within a City, et al., v. Bayan Telecommunications,
specified territory. Inc., G.R. No. 162015, March 6, 2006).

Exempted from the payment of Elements so that the President may


community tax interfere in local fiscal matters

1. Diplomatic and consular 1. An unmanaged public sector deficit


representatives; of the national government;
2. Transient visitors when their 2. Consultations with the presiding
stay in the Philippines does not officers of the Senate and the House of
exceed 3 months (Sec. 159, LGC). Representatives and the presidents of
the various local leagues;
Real property taxes 3. And the corresponding
recommendation of the secretaries
These are directly imposed on privilege to of the Department of Finance,
use real property such as land, building, Interior and Local Government, and
machinery, and other improvements, Budget and Management (Pimentel, Jr.
unless specifically exempted. v. Aguirre, G.R. No. 132988, July 19,
2000).

Q: Bayantel was granted by


Congress, after the effectivity of
LGC, a legislative franchise with tax
exemption privileges which partly
reads: the grantee, its successors
or assigns shall be liable to pay the CLOSING AND OPENING OF ROADS
same taxes on their real estate,
buildings and personal property, LGUs power to open or close a road
exclusive of this franchise, as
other persons or corporations are LGU may, pursuant to an ordinance,
now or hereafter may be required by permanently or temporarily close or open
law to pay. This provision any local road, alley, park, or square
existed in the companys franchise falling within its jurisdiction; Provided,
prior to the effectivity of the LGC. however, that in case of permanent
Quezon City then enacted an closure, such ordinance must be approved
ordinance imposing a real property by at least two-thirds (2/3) of all the
tax on all real properties located members of the sanggunian, and when
within the city limits and necessary, an adequate substitute for the
withdrawing all exemptions public facility that is subject to closure is
previously granted. Among properties provided (Sec 21(a), LGC).
covered are those owned by the
company. Bayantel asserts that its NOTE: No permanent closure of any local
properties are exempt from tax under road, street, alley, park, or square shall
its franchise. Is Bayantel correct? be effected unless there exists a
compelling reason or sufficient
A: YES. The properties are exempt from justification therefor such as, but not
taxation. The grant of taxing powers to limited to, change in land use,
local governments under the Constitution establishment of infrastructure facilities,
and the LGC does not affect the power of projects, or such other justifiable reasons
Congress to grant tax exemptions. as public welfare may require (Art. 44(a),
IRR, RA 7160).
The term "exclusive of the franchise" is
interpreted to mean properties actually, Limitations of permanent and
directly and exclusively used in the radio temporary closure
and telecommunications business. The
subsequent piece of legislation which A. In case of permanent closure:
reiterated the phrase exclusive of this 1. It must be approved by at least 2/3
franchise found in the previous tax of all the members of the
exemption grant to the company is an Sanggunian and when
express and real intention on the part of the necessary provide for an
Congress adequate substitute for the public
to once again remove from the LGCs facility
delegated 2. Adequate provision for the
taxing power, all of the companys public safety must be made
3. The property may be used or vehicular and pedestrian traffic. The
conveyed for any purpose for NSV Homeowners Association, Inc.
which other real property may be (NSVHAI), filed a petition claiming that
lawfully used or conveyed (Sec the implementation of the resolution
21(a)(b), LGC). would cause grave injustice and
irreparable injury as the affected
NOTE: No freedom park homeowners acquired their properties
shall be closed permanently for strictly residential purposes, and
without provision for its that the subdivision is a place that the
transfer or relocation to a new site homeowners envisioned would provide
(Sec 21(a)(b), LGC). them privacy and a peaceful
neighborhood, free from the hassles of
B. In case of temporary closure: public places; and that the passage of
1. It must be for actual the Resolution would destroy the
emergency, fiesta celebration, character of the subdivision. NSVHAI
public rallies, agricultural or averred that the opening of the gates
industrial fairs, or an undertaking of of the subdivision would not ease the
public works and highways, traffic congestion in the area, and that
telecommunications and water there were alternative routes
work projects available. NSVHAI argued that the
2. Duration of which shall be specified Sangguniang Barangay has no
3. Except for those activities not jurisdiction over the roads and they
officially sponsored or likewise argued that a Barangay
approved by the LGU Resolution cannot validly cause the
concerned (Sec 21(c) LGC). opening of the subject roads because
under the law, an ordinance is required
NOTE: Any city, municipality or barangay to effect such an act.
may, by ordinance, temporarily close and
regulate the use of a local street, road, Should the Sangguniang Barangay
thoroughfare or any other public place pass an ordinance instead of a
where shopping malls, Sunday, flea or resolution to open the subject roads?
night markets, or shopping areas may be
established and where articles of A: NO. LGU's have the power to close and
commerce may be sold or dispensed with open roads within its jurisdiction as
to the general public (Sec. 21(d), LGC). provided for in Sec. 21 of the LGC. This
provision, which requires the passage of an
Material factors to consider in closing ordinance by an LGU to effect the opening
a street of a local road, can have no applicability to
the instant case since the subdivision road
The material factors which a lots sought to be opened to decongest
municipality must traffic in the area have already been
consider in deliberating upon the donated by the Subdivision to, and the titles
advisability of closing a street are: already issued in the name of, the City
1. The topography of the property Government of Paraaque. Having been
surrounding the street in the light of already donated or turned over to
ingress and egress to other streets; Paraaque, the road lots in question have
2. the relationship of the street in the since then taken the nature of public roads
road system throughout the which are withdrawn from the commerce of
subdivision; man, and hence placed beyond the private
3. the problem posed by the 'dead end' rights or claims of NSVHAI. Consequently,
of the street; the width of the BSV Sangguniang Barangay's act of passing
street; the Resolution had for its purpose not the
4. the cost of rebuilding and opening of a private road but merely a
maintaining the street as contrasted directive or reminder to the NSVHAI to
to its ultimate value to all of the cause the opening of a public road which
property in the vicinity; should rightfully be open for use to the
5. the inconvenience of those visiting the general public (New Sun Valley
subdivision; and Homeowners Association Inc. v.
6. Whether the closing of the street Sangguniang Barangay, Barangay Sun
would cut off any property owners Valley, Paraaque City, G.R. No. 156686,
from access to a street (Favis v. City July 27, 2011).
of Baguio, G.R. No. L-29910, April 25,
1969). LEGISLATIVE POWER
Q: The Sangguniang Barangay of BSV
passed a Resolution which directed the Nature of local legislative powers
NSV Homeowners Association to open
Marshmallow and Chocolate Streets to It is a fundamental principle that
municipal ordinances are inferior in powers poses a potential derogation of
status and subordinate to the laws of the individual rights, the law cannot be
State. An ordinance in conflict with a liberally construed to have impliedly
state law of general character and granted such powers to local legislative
statewide application is universally held bodies. The intention of the people,
to be invalid. The principle is frequently through their representatives, to share
expressed in the declaration that these powers with the local legislative
municipal authorities, under a general bodies must clearly appear in pertinent
grant of power, cannot adopt ordinances legislation (Negros Oriental II Electric
which infringe upon the spirit of a state Cooperative Inc., v. Sangguiang
law or repugnant to the general policy of Panlungsod ng Dumaguete, G.R. No. L-
the state. In every power to pass 72492, November 5, 1987).
ordinances given to a municipality, there
is an implied restriction that the Local legislative bodies and their
ordinances shall be consistent with the presiding officers
general law (Batangas CATV v. Court of
Appeals, G.R. No. 138810, September Sangguniang Vice-
Province
29, 2004). Panlalawigan governor
Sangguniang City Vice-
NOTE: The rule against undue City
Panlungsod mayor
delegation of legislative powers applies Municipal Sangguniang Municipal
to LGUs. In the case of Villegas v. Tsai ity bayan Vice-mayor
Pao Ho (G.R. No. 29646, October 10, Sangguniang Punong
1978), a city ordinance was declared Barangay
barangay Barangay
void because it constituted undue
delegation of legislative power to the NOTE: The presiding officer shall vote only
Mayor. The ordinance did not lay down to break a tie (Sec. 49(a) LGC).
any standard to guide the Mayor in the
exercise of his discretion in the issuance In the absence of the regular presiding
or denial of an alien employment permit. officer or his inability to preside at the
sanggunian session, the members present
The Sanggunian and constituting a quorum shall elect from
among themselves a temporary presiding
A sanggunian is a collegial body. officer (Sec. 49(b) of LGC; Gamboa v.
Legislation, which is the principal Aguirre, G.R. No. 134213, July 20, 1999).
function of the sanggunian, requires the
participation of all its members so that
they may not only represent the
interests of their respective constituents Q. May an incumbent Vice-Governor,
but also help in the making of decisions, acting as governor, continue to
by voting upon every question put upon preside over the sessions of the
the body (Zamora v. Caballero, G.R. No. Sangguniang Panlalawigan? If not,
147767, January 14, 2004). who may preside in the meantime?

NOTE: A petition for certiorari filed A: NO. A Vice-Governor who is


against a Sangguniang Panlungsod concurrently an acting governor is actually
assailing the legality of an ordinance will a quasi-governor. For purposes of
not lie since the Sanggunian is not a exercising his legislative prerogatives and
tribunal, board or officer exercising powers, he is deemed a non-member of
judicial or quasi-judicial functions (Liga the SP for the time being. Being the Acting
ng mga Barangay National v. City Mayor Governor, the Vice-Governor cannot
of Manila, G.R. No. 154599, January 21, continue to simultaneously exercise the
2004). duties of the latter office, since the nature
of the duties of the provincial Governor
No power to subpoena and hold call for a full-time occupant to discharge
persons in contempt them. Such is not only consistent with but
also appears to be the clear rationale of
The contempt power and the subpoena the new Code wherein the policy of
power cannot be deemed implied in the performing dual functions in both offices
delegation of certain legislative has already been abandoned.
functions to local legislative bodies.
These cannot be presumed to exist in The creation of a temporary vacancy in
favor of the latter and must be the office of the Governor creates a
considered an exception to Sec. 4 of BP corresponding temporary vacancy in the
Blg. 337 which provides for liberal rules office of the Vice-Governor whenever the
of interpretation in favor of local latter acts as Governor by virtue of such
autonomy. Since the existence of these temporary vacancy. The continuity of the
Acting Governors (Vice-Governor) powers (Sec. 53(b)(c), LGC).
as presiding officer of the SP is suspended
so long as he is in such capacity. Fixing of Sessions

Under Sec. 49(b), (i)n the event of the REGULAR SPECIAL SESSIONS
inability of the regular presiding officer to SESSIONS
preside at the sanggunian session, the By resolution on the When public interest
members present and constituting a 1st day of the session so demands, special
quorum shall elect from among immediately session may be
themselves a temporary presiding officer. following the election called for by the
(Gamboa v. Aguirre, G.R. No. 134213, July of its members chief executive or by
20, 1999). a majority vote
members of
Quorum in the sanggunian sanggunian

Quorum is defined as the number of NOTE: The minimum number of regular


members of a body which when legally sessions shall be once a week for the
assembled in their proper places, will sangguniang panlalawigan, sangguniang
enable the body to transact its proper panlungsod, and sangguniang bayan, and
business or that number which makes a twice a month for the sangguniang
lawful body and gives it power to pass barangay (Sec. 52 (a), LGC).
upon a law, ordinance or any valid act.
Majority, when required to constitute a
quorum, means the number greater than Guidelines in the conduct of a
half or more than half of any total. sanggunian session

The applicable rule on quorum of local 1. It shall be open to public, unless it is


legislative bodies is found in Section 53(a) a closed-door session
of the LGC which provides that a majority 2. No two sessions, regular or special,
of all members of the sanggunian who may be held in a single day
have been elected and qualified shall 3. Minutes of the session be recorded
constitute a quorum to transact official and each sanggunian shall keep a
business. The entire membership must be journal and record of its proceedings
taken into account in computing the which may be published upon
quorum (Zamora v. Caballero, G.R. No. resolution of the sanggunian concerned.
147767, January 14, 2004). 4. In case of special sessions:
a. Written notice to the members
NOTE: The determination of the must be served personally at least
existence of quorum is based on the total 24 hours before the special session
number of members of the sanggunian is held
without regard to filing of a leave of b. Unless otherwise concurred in by
absence (Zamora v. Caballero, G.R. No. 2/3 votes of the sanggunian
147767, January 14, 2004). members present, there being no
quorum, no other matters may be
Procedures to be taken by the considered at a special session
presiding officer if there is a question except those stated in the notice
on quorum (Sec. 52, LGC).

Should there be a question of quorum Q: On its first regular session, may


raised during a session, the presiding officer the sanggunian transact business
shall: other than the matter of adopting or
1. Immediately proceed to call the roll of updating its existing rules or
the members and procedure?
2. Announce the results (Sec. 53 (a), LGC).
Procedures to be taken by the A: YES. There is nothing in the
presiding officer if there is no quorum language of the LGC that restricts the
matters to be taken up during the first
The presiding officer may: regular session merely to the adoption
1. Declare a recess until such time that or updating of the house rules (Malonzo v.
quorum is constituted Zamora, G.R. No. 137718, July 27, 1999).
2. Compel immediate attendance of the
members who are absent without ORDINANCE AND RESOLUTIONS
justifiable cause
3. Declare the session adjourned for lack Ordinance
of quorum and no business shall be
transacted if there is still no quorum As a municipal statute, it is a rule of
despite enforcement of attendance conduct or of action, laid down by the
municipal authorities that must be obeyed Such resolution may operate regardless of
by the citizens. It is drafted, prepared, the name by which it is called (Favis v.
promulgated by such authorities for the City of Baguio, G.R. No. L-29910, April 25,
information of all concerned, under and by 1969).
virtue of powers conferred upon them by
law (United States v. Pablo Trinidad, G.R. Three readings allowed in one day
No. L-3023, January 16, 1907).
There is nothing in the LGC which
Elements of a valid ordinance or prohibits the three readings of a proposed
resolution ordinance from being held in just one
session day. It is not the function of the
1. Must not contravene the constitution courts to speculate that the councilors
and any statute were not given ample time for reflection
2. Must not be unfair or oppressive and circumspection before the passage of
3. Must not be partial or discriminatory the proposed ordinance by conducting
4. Must not prohibit, but may regulate three readings in just one day (Malonzo v.
trade Zamora, G.R. No. 137718, July 27, 1999).
5. Must not be unreasonable
6. Must be general in application and Veto of the Local Chief Executive
Consistent with public policy
(Magtajas v. Pryce Properties
Corporation, Inc., G.R. No. 111097, July The Local Chief Executive may veto
20, 1994). the ordinance only once on the ground
that the ordinance is ultra vires and
NOTE: The mere fact that there is already prejudicial to public welfare. The veto
a general statute covering an act or must be communicated to the sanggunian
omission is insufficient to negate the within:
legislative intent to empower the a. 15 days for a province
municipality to enact ordinances with b. 10 days for a city or municipality
reference to the same act or omission (Secs. 54 and 55, LGC)
under the general welfare clause of the
Municipal Charter (United States v. NOTE: While to veto or not to veto
Pascual Pacis, G.R. No. 10363, September involves the exercise of discretion, a
29, 1915). mayor exceeded his/her authority in an
arbitrary manner when he/she vetoes a
Ordinance v. Resolution resolution where there exists sufficient
municipal funds from which the salary of
the officer could be paid. The Mayors
ORDINANCE RESOLUTION
refusal in complying with the directive of
Law Merely a
the Director of the Bureau of Local
declaration of the
Government that the salary could be
sentiment or
provided for is oppressive (Pilar v.
opinion of a
Sangguniang Bayan of Dasol, Pangasinan,
lawmaking body on
G.R. No. L-63216, March 12, 1984).
a specific matter
General and Temporary in
Items that the local chief executive
permanent nature
can veto
character
Third reading is GR: Third reading
1. Item/s of an appropriation ordinance.
necessary for an is not necessary in
2. Ordinance/resolution adopting local
ordinance resolution
development plan and public
XPN: Unless
investment program
decided otherwise
3. Ordinance directing the payment of
by a majority of all
money or creating liability (Sec. 55,
the Sanggunian
LGC)
members (Roble
Arrastre, Inc. v.
NOTE: Ordinances enacted by the
Villaflor, G.R. No.
sangguniang barangay shall, upon
128509, August
approval by a majority of all its
22, 2006).
members be signed by the punong
barangay. The latter has no veto power.
NOTE: It has been held that even where
the statute or municipal charter requires
Approval of ordinances
the municipality to act by an ordinance, if
a resolution is passed in the manner and
1. By affixing the signature of the local
with the statutory formality required in
chief executive on each and every
the enactment of an ordinance, it will be
page thereof if he approves the same
binding and effective as an ordinance.
2. By overriding the veto of the
local chief executive by 2/3 vote Within 30 days Within 30 days
of all members of the sanggunian after the receipt; after the receipt.
if the local chief executive vetoed the 1. Examine, or
same (Sec. 54, LGC). 2. Transmit to the
provincial
NOTE: A sanggunian may provide for a attorney or
vote requirement different (not majority provincial
vote) from that prescribed in the LGC for prosecutor.
certain (but not all) ordinances as in If it is
amending a zoning ordinance (Casino v. transmitted, the
Court of Appeals, G.R. No. 91192, provincial
December 2, 1991). attorney or
prosecutor must
Effectivity of ordinance or resolution submit his
comments or
GR: After 10 days from the date a copy is recommendatio
posted in a ns within 10
bulletin board at the entrance of the days from
capitol or city, municipal or barangay hall receipt of the
and in at least 2 conspicuous spaces (Sec. document.
59 (a) LGC). When declared valid
If no action has If no action has
XPN: Unless otherwise stated in been taken within been taken within
the ordinance or resolution (Sec. 59 (a), 30 days after 30 days after
LGC). submission. submission.
When invalid (grounds)
Effect of the enforcement of a
disapproved ordinance or resolution If it is beyond the If inconsistent with
power conferred on the law or city or
It shall be a sufficient ground for the the sangguniang municipal
suspension or dismissal of the official or panlungsod or ordinance
employee (Sec. 58, LGC). sangguniang
pangbayan (Sec. Effect: Barangay
Ordinances requiring publication 56, LGC). ordinance is
for its effectivity
suspended until
1. Ordinances that carry with them penal such time as the
sanctions (Sec. 59(c) LGC). revision called is
2. Ordinances and resolutions passed effected (Sec. 57,
by highly urbanized and independent LGC).
component cities (Sec. 59(d), LGC).

Review of ordinances or resolutions

COMPONENY
CITIES AND BARANGAY
MUNICIPAL ORDINANCES
ORDINANCES OR
RESOLUTIONS
Who reviews
Sanggunang Panlalawigan
Sangguniang Panglungsod LOCAL INITIATIVE AND REFERENDUM
or Sangguniang Bayan
When copies of ordinance or Local initiative v. Referendum
resolutions be forwarded
Within 3 days after Within 10 days INITIATIVE REFERENDUM
approval after its enactment The legal process The legal process
Period to examine whereby the whereby the
registered voters of registered voters of
LGU may directly the LGU may
propose, enact or approve, amend or
amend any reject any ordinance
ordinance (Sec. 120 enacted by the
LGC). sanggunian (Sec.
126 RA. 7160).

NOTE: Local initiative includes not only


ordinances but also resolutions as its
appropriate subjects (Garcia v. COMELEC, The local referendum shall be held under
G.R. 111230, September 30, 1994). the control and direction of the COMELEC
within
Limitations on local initiative a. Provinces and cities 60 days
b. Municipalities 45 days
1. It shall not be exercised for more c. Barangay 30 days
than once a year.
2. It shall extend only to subjects or The COMELEC shall certify and proclaim
matters which are within the legal the results of the said referendum (Sec.
powers of the sanggunian to enact. 126, LGC).
3. If at any time before the initiative is
held, the sanggunian concerned Rule on repeal, modification and
adopts in toto the proposition amendment of an ordinance or
presented and the local chief proposition approve through an
executive approves the same, the initiative and referendum
initiative shall be canceled. However,
those against such action may, if they Any proposition or ordinance approved
so desire, apply for initiative in the through an initiative and referendum shall
manner herein provided (Sec. 124, not be repealed, modified or amended by
LGC). the sanggunian within 6 months from the
date of approval thereof.
Procedure in conducting local
initiative It may be amended, modified or repealed
within 3 years thereafter by a vote of of
1. Number of voters who should file all its members (Sec. 125 LGC).
petition with the Sanggunian
concerned: NOTE: In case of barangays, the period
a. Province and cities not less than shall be 18 months after the approval
1000 registered voters thereof (Ibid.).
b. Municipality at least 100
registered voters CORPORATE POWERS
c. Barangay at least 50 registered
voters Corporate powers of LGUs

2. The sanggunian concerned has 30 1. To have continuous succession in its


days to act on the petition. If the corporate name
sanggunian does not take any 2. To sue and be sued
favorable action, the proponents may 3. To have and use a corporate seal
invoke the powers of initiative, giving
notice to sanggunian. NOTE: Any new corporate seal or
3. Proponents will have the following changes on such shall be registered
number of days to collect required with the DILG.
number of signatures
a. Provinces and cities 90 days 4. To a acquire and convey real or
b. Municipalities 60 days personal property
c. Barangay 30 days 5. To enter into contracts

4. Signing of petition in a public place, NOTE: Unless otherwise provided in


before the election registrar or his this Code, no contract may be
designated representatives, in the entered into by the local chief
presence of a representative of the executive in behalf of the LGU
proponent and of the sanggunian without prior authorization by the
concerned. sanggunian concerned. A legible copy
5. Date of initiative is set by COMELEC if of such contract shall be posted at a
the required number of signatures has conspicuous place in the provincial
been obtained (Sec. 122, LGC). capitol or the city, municipal or
barangay hall.
Effectivity of proposition
6. To exercise such other powers as
If the proposition is approved by a granted to corporations (Sec. 22, LGC).
majority of the votes cast, it will take
effect 15 days after certification by the TO SUE AND BE SUED
COMELEC (Sec. 123, LGC).
Proper officer to represent the city in
Rule of COMELEC over local court actions
referendum
GR: The city legal officer is supposed to A: YES. It is true that in case of conflict, a
represent the city in all civil actions and special law prevails over a general law;
special proceedings wherein the city or that the charter of Manila is a special law
any of its officials is a party. and that the Civil Code is a general law.
However, looking at the particular
NOTE: Only the Provincial Fiscal or the provisions of each law concerned, the
Municipal Attorney can represent a provision of the Manila Charter exempting
province or municipality in lawsuits. This is it from liability caused by the negligence of
mandatory. Hence, a private attorney its officers is a general law in the sense
cannot represent a province of that it exempts the city from negligence of
municipality. its officers in general. Art. 2189 of the NCC
provides that provinces, cities, and
XPN: Where the position is as yet municipalities liable for the damages
vacant, the City Prosecutor remains the caused to a certain person by reason of the
citys legal adviser and officer for civil defective condition of roads, streets,
cases (Asean Pacific Planners v. City of bridges, public buildings, and other-public
Urdaneta, G.R. No. 162525, September 23, works under their control or supervision.
2008).
Even though it is a national highway, the
NOTE: Suit is commenced by the local law contemplates that regardless of
chief executive, upon authority of the whether or not the road is national,
Sanggunian, except when the City provincial, city, or municipal, so long as it is
Councilors, by themselves and as under the Citys control and supervision, it
representatives of or on behalf of the City shall be responsible for damages by reason
bring the action to prevent unlawful of the defective conditions thereof (City of
disbursement of City funds (City Council Manila v. Teotico, G.R. No. L-23052, January
of Cebu v. Cuizon, G.R. No. L-28972, 29, 1968).
October 31, 1972).
Q: May LGU funds and properties be
Power of LGU to sue on behalf of seized under writs of execution
community it represents or garnishment to satisfy
judgments against them?
A municipality prejudiced by the action of
another municipality is vested with the A: NO. The universal rule that where the
character of a juridical entity, is a State gives its consent to be sued by
corporation of public interest endowed with private parties either by general or
the personality to acquire and hold special law, it may limit claimants action
property, contract obligations, and bring only up to the completion of proceedings
civil and criminal actions in accordance anterior to the stage of execution and
with the laws governing its organization, that the power of the Courts ends when
and it is entitled to file claims for the the judgment is rendered. Government
purpose of recovering damages, losses and funds and properties may not be seized
injuries caused to the community it under writs of execution or garnishment
represents (Municipality of Mangaldan v. to satisfy
Municipality of Manaoag, G.R. No. L-11627, such judgments. This is based on obvious
August 10, 1918). considerations of public policy.
Disbursements of public funds must be
Q: Teotico was about to board a covered by the corresponding
jeepney in P. Burgos, Manila when he appropriations as required by law. The
fell into an uncovered manhole. This functions and public services rendered
caused injuries upon him. Thereafter by the State cannot be allowed to be
he sued for damages under Article paralyzed or disrupted by the diversion of
2189 of the Civil Code against the City public funds from their legitimate and
of Manila and its local officials. The specific objects (Traders Royal Bank v.
City of Manila assailed the decision of IAC, G.R. No. 68514, December 17,
the CA on the ground that the charter 1990).
of Manila states that it shall not be
liable for damages caused by the NOTE: The rule on the immunity of
negligence of the city officers in public funds from seizure or garnishment
enforcing the charter; that the charter does not apply when the funds sought to
is a special law and shall prevail over be levied under execution are already
the Civil Code which is a general law; allocated by law specifically for the
and that the accident happened in satisfaction of the money judgment
national highway. Is the City of Manila against the government. In such a case,
liable? the monetary judgment may be legally
enforced by judicial processes (City of
Caloocan v. Allarde, G.R. No. 107271,
September 10, 2003). and made available to the public, in
general, are outside the commerce of man
Immunity from Suit and cannot be disposed of or leased by the
LGU to private persons (Macasiano v.
A municipality, as an agency of the State Diokno, G.R. No. 97764, August 10, 1992).
engaged in governmental functions, is
immune from suit (Jayme v. Apostol, G.R. Rules on LGUs power to acquire and
No. 163609, November 27, 2008). convey real or personal property

GR: Municipalities are not liable for torts 1. In the absence of proof that the
committed by them in the discharge of property was acquired through
governmental functions. corporate or private funds, the
presumption is that it came from the
XPN: They are liable only if it can be State upon the creation of the
shown that they were acting in a municipality and, thus, is
proprietary capacity. governmental or public property
(Salas v. Jarencio, G.R. No. L-29788,
NOTE: In permitting such entities to be August 30, 1972; Rabuco v.
sued, the State merely gives the claimant Villegas, G.R. No. L-24661, February
the right to show that the defendant was 28, 1974).
not acting in its governmental capacity 2. Town plazas are properties of public
when the injury was committed or that the dominion; they may be occupied
case comes under the exceptions temporarily, but only for the duration
recognized by law. Failing this, the claimant of an emergency (Espiritu v.
cannot recover (Mun. of San Fernando, La Municipal Council of Pozorrubio,
Union v. Firme, G.R. No. L-52179, April 8, Pangasinan, G.R. No. L-11014, January
1991). 21, 1958).
3. Public plazas are beyond the
TO ACQUIRE AND SELL PROPERTY commerce of man, and cannot be the
subject of lease or other contractual
Property held in trust by LGUs as undertaking. And, even assuming the
agents of the State existence of a valid lease of the public
plaza or part thereof, the municipal
Properties of municipalities not acquired resolution effectively terminated the
by its own funds in its private capacity agreement, for it is settled that
are public property held in trust for the the police power cannot be
State. Regardless of the source or surrendered or bargained away
classification of land in the possession through the medium of a
of a municipality, except those acquired contract (Villanueva v. Castaneda,
with its own funds in its private or G.R. No. L-61311, September 21,
corporate capacity, such property is 1987).
held in trust for the State for the benefit 4. Public streets or thoroughfares are
of its inhabitants, whether it be for property for public use, outside the
government or proprietary purposes. It commerce of man, and may not be
holds such lands subject to the the subject of lease or other
paramount power of the legislature to contracts (Dacanay v. Asistio, G.R. No.
dispose of the same, for after all it owes 93654, May 6, 1992).
its creation to it as an agent for the
performance of a part of it public work, Documents to support the contract
the municipality being but a subdivision of sale entered into by the LGU
or instrumentality thereof for the
purposes of local administration (Salas 1. Resolution of the sanggunian
v. Jarencio, G.R. No. L-29788, August 30, authorizing the local chief executive
1972). to enter into a contract of sale. The
resolution shall specify the terms and
Properties that can be alienated by conditions to be embodied in the
LGUs contract.
2. Ordinance appropriating the amount
Only properties owned in its private or specified in the contract.
proprietary capacity (Province of 3. Certification of the local
Zamboanga del Norte v. City of treasurer as to availability of funds
Zamboanga, G.R. No. L-24440, March 28, together with a statement that such
1968). fund shall not be disbursed or spent for
any purpose other than to pay for the
Art. 424 of the Civil Code lays down purchase of the property involved
the basic principle that properties of (Jesus is Lord Christian School
public dominion devoted to public use Foundation, Inc. v. Mun. of Pasig,
G.R. No. 152230, August 9, 2005).

Congress may transfer property to an Conditions/Requisites under which a


LGU for public or patrimonial local chief executive may enter into a
purposes contract in behalf of his government
unit
A city, being a public corporation, is not
covered by the constitutional ban on 1. The contract must be within the
acquisition of alienable public lands. power of the municipality
Congress may, by law, transfer public lands 2. The contract must be entered into
to a city, an end user government agency, by an authorized officer (e.g. mayor
to be used for municipal purposes, which with proper resolution by the
may be public or patrimonial. Lands thus Sangguniang Bayan)
acquired by the city for a public purpose 3. There must be appropriation and
may not be sold to private parties. certificate of availability of funds
However, lands so acquired by a city for a 4. The contract must conform with
patrimonial purpose may be sold to private the formal requisites of a written
parties, including private corporations contract as prescribed by law; and
(Chavez v. Public Estates Authority, G.R No. 5. In some cases the contract must be
133250, November 11, 2003). approved by the President and/or
provincial governor (Sec. 2068 and
TO ENTER INTO CONTRACTS Sec. 2196, Revised Adm. Code).

Elements of a valid municipal Contracts validly entered into by


contract previous chief executive bind
successor-in-office
1. The LGU has the express, implied
or inherent power to enter into When there is a perfected contract
particular contract executed by the former Governor, the
2. The contract is entered into by the succeeding governor cannot revoke or
proper department board, committee, renounce the same without the
officer or agent. consent of the other party. The
contract has the force of law between
NOTE: No contract may be entered the parties and they are expected to
into by the local chief executive on abide in good faith by their respective
behalf of the local government without contractual commitments. Just as
prior authorization by the nobody can be forced to enter into a
sanggunian concerned, unless contract, in the same manner, once a
otherwise provided (Sec 22(c) LGC). contract is entered into, no party can
renounce it unilaterally or without the
3. The contract must comply consent of the other. It is a general
with certain substantive principle of law that no one may be
requirements: permitted to change his/her mind or
a. Actual appropriation; and disavow and go back upon his/her own
b. Certificate of availability of funds acts, or to proceed contrary thereto, to
the prejudice of the other party (GSIS
4. The contract must comply with the v. Province of Tarlac, G.R. No. 157860,
formal requirements of written December 1, 2003).
contracts. (e.g., Statue of Frauds)
Prior authorization by municipal
NOTE: This includes the power to council
acquire and convey properties by the
LGU through written contracts. Under Section 22(c) of the LGC, the
local chief executive cannot enter into
Void contracts of LGUs do not require a contract in behalf of the LGU without
judicial declaration of nullity prior authorization from the
sanggunian concerned. Such
Contracts entered into by a municipality, authorization may be in the form of an
in violation of existing law, do not require appropriation ordinance passed for the
judicial action declaring their nullity. In the year which specifically covers the
case of Bunye v. Sandiganbayan (G.R. No. project, cost, or contract entered into
122058, May 5, 1999), the Supreme Court by the LGU.
held that contracts which grant a 25-year
lease of the Public Market when the law at However, this rule does not apply
that time BP Blg. 337, limits such leases to where the LGU operated on a
a maximum of five years, are void. reenacted budget. In case of a
reenacted budget, only the annual requirements of a written contract
appropriation for salaries and wages of e.g., the Statute of Frauds (Land Bank
existing positions, statutory and of the Philippines v. Eduardo
contractual obligations, and essential Cacayuran, G.R. No. 191667, April 17,
operating expenses authorized in the 2013).
annual and supplemental budgets for Contracts entered into by a local
the preceding year shall be deemed chief executive may be subject to
reenacted. New contracts entered into constructive ratification
by the local chief executive must
therefore have prior authorization from A loan agreement entered into by the
the sanggunian (Quisumbing v. Garcia, provincial governor without prior
G.R. No. 175527, December 8, 2008). authorization from the Sangguniang
Panlalawigan is unenforceable. The
Ultra vires contracts Sanggunians failure to impugn the
contracts validity despite knowledge of its
Ultra vires contracts are those which: infirmity is an implied ratification that
a. are entered into beyond the express, validates the contract (Ocampo v. People,
implied or inherent powers of the LGU; G.R. No. 156547-51 & 156382-85,
and February 4, 2008).
b. do not comply with the substantive
requirements of law e.g., when Doctrine of estoppel does not apply
expenditure of public funds is to be against a municipal corporation to
made, there must be an actual validate an invalid contract
appropriation and certificate of
availability of funds (Land Bank of the The doctrine of estoppel cannot be applied
Philippines v. Eduardo Cacayuran, G.R. as against a municipal corporation to
No. 191667, April 17, 2013). validate a contract which it has no power
NOTE: Such are null and void and to make, or which it is authorized to make
cannot be ratified or validated. only under prescribed conditions, within
prescribed limitations, or in a prescribed
Estoppel cannot be applied against a mode or manner, although the corporation
municipal corporation in order to has accepted the benefits thereof and the
validate a contract which the municipal other party has fully performed its part of
corporation has no power to make or which the agreement, or has expended large
it is authorized to make only under sums in preparation for performance. A
prescribed conditions, within prescribed reason frequently assigned for this rule is
limitations, or in a prescribed mode or that to apply the doctrine of estoppel
manner, although the corporation has against a municipality in such a case
accepted the benefits thereof and the would be to enable it to do indirectly what
other party has fully performed his part of it cannot do directly (In Re: Pechueco Sons
the agreement, or has expended large Company v. Provincial Board of Antique,
sums in preparation for performance G.R. No. L-27038, January 30, 1970).
(Favis v. Municipality of Sabangan, G.R. No.
L-26522, February 27, 1969). Authority to negotiate and
secure grants
Instance when a defective
municipal contract may be ratified The local chief executive may, upon
authority of
Ratification of defective municipal the sanggunian, negotiate and secure
contracts is possible only when there is financial grants or donations in kind, in
non-compliance with the requirements of support of the basic services or facilities
authority of the officer entering into the enumerated under Sec. 17 of LGC, from
contract and/or conformity with the local and foreign assistance agencies
formal requisites of a written contract as without necessity of securing clearance
prescribed by law. Ratification may either or approval from any department,
be expressed or implied. agency, or office of the national
government or from any higher LGU;
NOTE: An act attended only by an Provided, that projects financed by such
irregularity, but remains within the grants or assistance with national security
municipalitys power, is considered as an implications shall be approved by the
ultra vires act subject to ratification and/or national agency concerned (Sec.23,
validation. LGC).

Examples: Q: The City Council of Calamba issued


a. Those entered into by the improper several resolutions authorizing Mayor
department, board, officer of agent; Tiama to negotiate with landowners
b. Those that not comply with the formal within the vicinity of Barangays Real,
Halang, and Uno, for a new city hall the execution of public contracts (Garcia
site and to purchase several lots and v. Burgos, G.R. No. 124130, June 29,
to execute, sign and deliver the 1998).
required documents. Mayor Tiama
then entered into MOA, Deed of Sale, Failure of bidding
Deed of Mortgage, and Deed of
Assignment. When any of the following occurs:
1. There is only one offeror
Thereafter, Ong, a member of the City 2. When all the offers are non-
Council, questioned the lack of complying or
ratification by the City Council of the unacceptable (Bagatsing v.
contracts, among others. Should all Committee on Privatization, G.R. No.
the documents pertaining to the 112399, July 14, 1995).
purchase of the lots bear the
ratification by the City Council of LIABILITY OF LGUs
Calamba?
Scope of municipal liability
A: NO. Sec. 22(c), LGC, provides: (c)
Unless otherwise provided in this Code, no Municipal liabilities arise from various
contract may be entered into by the local sources in the conduct of municipal
chief executive in behalf of the LGU affairs, both governmental and
without prior authorization by the proprietary.
sanggunian concerned. Clearly, when the
local chief executive enters into contracts, NOTE: Tests of liability is the nature of
the law speaks of prior authorization or task being performed.
authority from the Sangguniang
Panlungsod and not ratification. It cannot Rule on the liabilities of LGUs and
be denied that the City Council issued Res. their officials
280 authorizing Mayor Tiama to purchase
the subject lots. LGUs and their officials are not
exempt from liability arising from
NOTE: As aptly pointed out by the death or injury to persons or damage to
Ombudsman, ratification by the City property (Sec. 24, LGC).
Council is not a condition sine qua non for
a mayor to enter into contracts. With the Liabilities of LGUs
resolution issued by the Sangguniang
Panlungsod, it cannot be said that there 1. LGUs shall be liable for damages for
was evident bad faith in purchasing the the death of, or injuries suffered by,
subject lots. The lack of ratification alone any person by reason of the defective
does not characterize the purchase of the condition of roads, streets, bridges,
properties as one that gave unwarranted public buildings, and other public
benefits to Pamana or Prudential Bank or works under their control or
one that caused undue injury to Calamba supervision (Art. 2189, NCC).
City (Vergara v. Ombudsman, G.R. No.
174567, March 12, 2009). NOTE: LGU is liable even if the road
does not belong to it as long as it
Competitive or Public Bidding exercises control or supervision over
the said roads.
Refers to a method of procurement which
is open to participation by any interested 2. The State is responsible in like
party and which consists of the following manner when it acts through a
processes: advertisement, pre-bid special agent; but not when the
conference, eligibility screening of damage has been caused by the
prospective bidders, receipt and opening official to whom the task done
of bids, evaluation of bids, post- properly pertains. In which case, Art.
qualification, and award of contract (Sec 2176 shall be applicable (Art. 2180
5 (h), IRR, RA 9184). (6), NCC).
3. When a member of a city or
Requirement of public bidding municipal police force refuses or fails
to render aid or protection to any
In the award of government contracts, the person in case of danger to life
law requires competitive public bidding. It or property, such peace officer shall
is aimed to protect the public interest by be primarily liable for damages and
giving the public the best possible the city or municipality shall be
advantages thru open competition. It is a subsidiarily responsible therefor (Art.
mechanism that enables the government 34, NCC).
agency to avoid or preclude anomalies in
Bases for municipal liabilities NOTE: The obligation of a municipal
corporation upon the doctrine of an
1. Liability arising from violation of law implied contract does not connote an
enforceable obligation. Some specific
NOTE: Liability arising from violation principle or situation of which equity
of law such as closing municipal takes cognizance must be the
streets without indemnifying foundation of the claim. The principle
persons prejudiced thereby, non- of liability rests upon the theory that
payment of wages to its employees the obligation implied by law to pay
due to lack of funds or other causes or does not originate in the unlawful
its refusal to abide a temporary contract, but arises from
restraining order may result in considerations outside it. The measure
contempt charge and fine. of recovery is the benefit received by
the municipal corporation. The
2. Liability for contracts province cannot set up the plea that
the contract was ultra vires and still
NOTE: retain benefits (Ibid.).
a. LGU is liable provided that the
contract is intra vires or it is ultra Tort liability of LGUs
vires that is only attended by
irregularities, which does not 1. LGU-engaged in governmental
preclude ratification or the function Not liable
application of the doctrine of 2. LGU-engaged in proprietary function
estoppel. Liable

If it is ultra vires, which are entered Q: A collision between a passenger


into beyond the express, implied or jeepney, sand and gravel truck,
inherent powers of the local and a dump truck driven by Monte
government unit or do not comply and owned by the Municipality of
with the substantive requirements San Fernando occurred which
of law they are not liable. resulted to the death of Jessica, a
b. A private individual who deals passenger of the jeepney. The
with a municipal corporation is heirs of Jessica instituted an
imputed with CONSTRUCTIVE action for damages against the
knowledge of the extent of the Municipality. Is the municipality
power or authority of the liable for the tort committed by its
municipal corporation to enter employee?
into contracts.
A: NO. The driver of the dump truck was
3. Liability for tort performing duties or tasks pertaining to
his office he was on his way to get a load
NOTE: They may be held liable for torts of sand and gravel for the repair of San
arising from the performance of their Fernando's municipal streets. The
private and proprietary functions under municipality cannot be held liable for the
the principle of respondeat superior. tort committed by its regular employee,
They are also liable for back salaries who was then engaged in the discharge of
for employees illegally governmental functions. The death of the
dismissed/separated or for its passenger tragic and deplorable though
refusal to reinstate employees. it may be imposed on the municipality
no duty to pay monetary compensation
Doctrine of Implied Municipal Liability (Municipality of San Fernando v. Hon.
Firme, G.R. No. L-52179, April 8, 1991).
A municipality may become obligated,
upon an implied contract, to pay the Q: The Municipality of Malasiqui
reasonable value of the benefits accepted authorized the celebration of town
or appropriated by it as to which it has the fiesta by way of a resolution and
general power to contract. The doctrine appropriated an amount for the
of implied municipal liability has been said construction of 2 stages. One of the
to apply to all cases where money or members of the group to perform a
other property of a party is received play during the fiesta was Fontanilla.
under such circumstances that the Before the dramatic part of the play
general law, independent of express was reached, the stage collapsed and
contract, implies an obligation upon the Fontanilla was pinned underneath
municipality to do justice with respect resulting to his death. The heirs of
to the same (Province of Cebu v. IAC, Fontanilla filed a complaint against
G.R. No. 72841, January 29, 1987). the Municipality. Is the municipality
liable?
Director of the Bureau of Local
A: YES. The town fiesta was an exercise Government that the salary of X be
of a private or proprietary function of the provided for and paid the prescribed salary
municipality. Holding a fiesta, even if the rate, is reckless and oppressive, hence, by
purpose is to commemorate a religious or way of example or correction for the public
historical event of the town, is in essence good, respondent Mayor is liable
an act for the special benefit of the personally to the petitioner for exemplary
community and not for the general welfare or corrective damages (Pilar v.
of the public performed in pursuance of a Sangguniang bayan ng Dasol, Pangasinan,
policy of the state. No governmental or G.R. No. 63216, March 12, 1984).
public policy of the state is involved in the
celebration of a town fiesta (Municipality SUCCESSION OF ELECTIVE OFFICIALS
of Malasiqui v. Heirs of Fontanilla, G.R. No.
L-29993, October 23, 1978). Vacancy

NOTE: There can be no hard and fast rule Absence should be reasonably construed
for purposes of determining the true to mean effective absence, that is, one
nature of an undertaking or function of a that renders the officer concerned
municipality; the surrounding powerless, for the time being, to discharge
circumstances of a particular case are to the powers and prerogatives of his/her
be considered and will be decisive. The office. There is no vacancy whenever the
basic element, however beneficial to the office is occupied by a legally qualified
public the undertaking may be, is that it is incumbent. A sensu contrario, there is a
governmental in essence; otherwise the vacancy when there is no person lawfully
function becomes private or proprietary in authorized to assume and exercise at
character (Ibid.). present the duties of the office (Gamboa,
Jr. v. Aguirre, G.R. No. 134213, July 20,
Q: X was elected as Vice Mayor of 1999).
Dasol, Pangasinan. The Sangguniang
Bayan adopted Resolution No. 1 which Classes of vacancies in the elective
increased the salaries of the Mayor post
and Municipal Treasurer to P18,636
and P16,044 per annum respectively. PERMANENT TEMPORARY
However, the Resolution did not VACANCY VACANCY
provide for an increase in salary of Arises when an Arises when an
the Vice Mayor despite the fact that elected local official: elected official is
such position is entitled to an annual 1. Fills a higher temporarily
salary of P16,044. X questioned the vacant office incapacitated to
failure of the Sangguniang Bayan to 2. Refuses to perform his duties
appropriate an amount for the assume office due to legal or
payment of his salary. The 3. Fails to qualify physical reason such
Sangguniang Bayan increased his 4. Dies as:
salary and enacted a Resolution No. 2 5. Removed from 1. Physical sickness
appropriating an amount as payment office 2. Leave of absence
of the unpaid salaries. However, the 6. Voluntarily 3. Travel abroad or
Resolution was vetoed by the resigns 4. Suspension from
respondent mayor. Can X avail of 7. Permanently office (Sec. 46,
damages due to the failure of the incapacitated to LGC)
respondents to pay him his lawful discharge the
salary? functions of his
office (Sec. 44,
A: YES. The Mayor alone should be held LGC)
liable and responsible and not the whole
Sanggunian Bayan. Respondent Mayor Filling of vacancy
vetoed the Resolution without just cause.
While "to veto or not to veto involves the 1. Automatic succession
exercise of discretion" as contended by 2. By appointment (Sec. 45, LGC).
respondents, respondent Mayor, however,
exceeded his authority in an arbitrary Rules of succession in case of
manner when he vetoed the resolution permanent vacancies
since there are sufficient municipal funds
from which the salary of the petitioner A. In case of permanent vacancy in:
could be paid. 1. Office of the Governor: Vice-
Governor
Respondent Mayors refusal, neglect or 2. Office of the Mayor: Vice-Mayor
omission in complying with the directives 3. Office of the Vice Governor or
of the Provincial Budget Officer and the Vice-Mayor: highest ranking
Sanggunian member or in case of sangguniang panlungsod of
his permanent inability, the component cities and the
second highest ranking sangguniang bayan concerned
Sanggunian member successor (Sec. 45 (a)(2), LGC).
should have come from the same 3. The city or municipal mayor shall
political party appoint the recommendee of the
sangguniang barangay concerned
NOTE: The highest-ranking (Sec. 45 (a)(3), LGC).
municipal councilors succession to
the office of vice-mayor cannot be Hold-over status
considered a voluntary
In case of failure of elections involving
renunciation of his office as barangay officials, the incumbent officials
councilor, since it occurred by shall remain in office in a hold-over
operation of law (Montebon v. capacity pursuant to R.A. 9164 (Adap v.
COMELEC, G.R. No. 180444, April COMELEC, G.R. No. 161984, February 21,
8, 2008). 2007).
4. Office of the Punong Barangay:
the highest ranking sanggunian The last vacancy in the Sanggunian
barangay member or, in case of his
permanent inability, the second It refers to the vacancy created by the
highest ranking sanggunian elevation of the member formerly
member successor may or may occupying the next higher in rank, which
not have come from the same in turn also had become vacant by any of
political party the causes enumerated.

NOTE: For purposes of Q: In the 1997 local elections


succession, ranking in the Calimlim was elected as Mayor,
Sanggunian shall be Aquino as Vice-Mayor and Tamayo as
determined on the basis of the the highest ranking member of the
proportion of the votes Sanggunian. In 1999, Mayor Calimlim
obtained by each winning died, thus Vice-Mayor Aquino
candidate to the total number of succeeded him as Mayor. Accordingly,
registered voters in each district the highest-ranking member of the
in the immediately preceding Sanggunian, Tamayo, was elevated to
local election (Sec. 44 (d)(3), LGC). the position of the Vice-Mayor. Since
a vacancy occurred in the
GR: The successor (by Sangguniang Bayan by the elevation
appointment) should come of petitioner Tamayo to the office of
from the same political party the Vice-Mayor, Governor Agbayani
as the sanggunian member appointed Navarro as Member of the
whose position has become Sangguniang Bayan. Navarro
vacant. belonged to the same political party
as that of Tamayo.
XPN: In the case of vacancy in
the Sangguniang barangay. Respondents argue that it was the
former vice-mayor Aquino who
The reason for the rule is to created the permanent vacancy in the
maintain the party Sanggunian and thus, the appointee
representation as willed by the must come from the former vice
people in the election. mayors political party. Petitioners,
however, contend that it was the
B. In case automatic succession is not elevation of Tamayo to the position of
applicable and there is vacancy in the vice-mayor which resulted in a
membership of the sanggunian, it shall permanent vacancy and thus, the
be filled up by appointment in the person to be appointed to the
following manner: vacated position should come from
1. The President, through the the same political party as that of
Executive Secretary, shall appoint Tamayo, in this case Navarro. Are the
the political nominee of the local respondents correct?
chief executive for the
sangguniang panlalawigan and A: NO. With the elevation of Tamayo to
panlungsod of highly urbanized the position of Vice-Mayor, a vacancy
cities and independent component occurred in the Sanggunian that should be
cities (Sec. 45 (a)(1), LGC). filled up with someone who should belong
2. The Governor shall appoint the to the political party of petitioner Tamayo.
political nominees for the Under Sec 44 of the LGC, a permanent
vacancy arises when an elective official Governor, City or Municipal Vice-
fills a higher vacant office, refuses to Mayor or the highest ranking
assume office, fails to qualify, dies, is sangguniang barangay member shall
removed from office, voluntarily resigns, assume the powers, duties and
or is otherwise permanently incapacitated functions of the said office on the 4th
to discharge the functions of his office. day of absence (Sec. 46, LGC).
Sec 45 (b) of the same law provides that
only the nominee of the political party Termination of temporary incapacity
under which the Sanggunian member
concerned has been elected and whose 1. Upon submission to the appropriate
elevation to the position next higher in sanggunian of a written declaration by
rank created the last vacancy in the the local chief executive concerned
Sanggunian shall be appointed in the that he has reported back to office, if
manner herein provided. The appointee the temporary incapacity was due to
shall come from the political party as that a. Leave of absence;
of the Sanggunian member who caused b. Travel abroad; and
the vacancyThe term last vacancy is c. Suspension
thus used in Sec. 45(b) to differentiate it
from the other vacancy previously 2. Upon submission by the local chief
created. The term by no means refers to executive of the necessary
the vacancy in the No. 8 position which documents showing that the legal
occurred with the elevation of 8th placer causes no longer exist, if the
to the 7th position in the Sanggunian. temporary incapacity was due to
Such construction will result in absurdity legal reasons (Sec. 46(b), LGC).
(Navarro v. CA, G.R. No. 141307, March DISCIPLINE OF LOCAL OFFICIALS
28, 2001).
Grounds for disciplinary actions
NOTE: In case of vacancy in the
representation of the youth and the An elective local official may be
barangay in the Sanggunian, it shall be disciplined, suspended or removed from
filled automatically by the official next in office on any of the following grounds:
rank of the organization concerned (Sec. 1. Disloyalty to the Republic of the
45(d), LGC). Philippines

NOTE: An administrative, not


criminal, case for disloyalty to the
Republic only requires substantial
Rules on temporary vacancies evidence (Aguinaldo v. Santos, G.R.
No. 94115, August 21, 1992).
1. In case of temporary vacancy of the
post of the local chief executive (leave 2. Culpable violation of the Constitution
of absence, travel abroad, and 3. Dishonesty, oppression, misconduct in
suspension): Vice- Governor, City or office, gross negligence, or dereliction
Municipal Vice Mayor, or the highest of duty
ranking sangguniang barangay shall
automatically exercise the powers NOTE: Acts of lasciviousness cannot
and perform the duties and be considered misconduct in office,
functions of the local chief and may not be the basis of an order
executive concerned. of suspension. To constitute a ground
for disciplinary action, the mayor
NOTE: charged with the offense must be
GR: The acting Governor or Mayor convicted in the criminal action (Palma
cannot exercise the power to appoint, v. Fortich, G.R. No. L-59679, January
suspend or dismiss employees. 29, 1987).

XPN: If the period of temporary Before the provincial governor and


incapacity exceeds thirty (30) working board may act and proceed against the
days. municipal official, a conviction by final
judgment must precede the filing by
2. If travelling within the country, the provincial governor of the charges
outside his jurisdiction, for a period and trial by the provincial board."
not exceeding 3 days, he may (Mindano v. Silvosa, et al., 97 Phil.
designate in writing the officer-in- 144-145 [1955]).
charge for the same office. The OIC
cannot exercise the power to 4. Commission of any offense involving
appoint, suspend or dismiss employee. moral turpitude, or an offense
3. If without said authorization, the Vice- punishable by at least prision mayor
5. Abuse of authority IMPOSE LOCAL OFFICIAL
SUSPENSION
GR: Unauthorized absence for 15 BELONGS TO THE
consecutive working days President Elective official of a
province, highly
XPNs: In the case of members of urbanized or
the Sangguniang: independent
a. Panlalawigan component city
b. Panlungsod Governor Elective official of a
c. Bayan component city or
d. Barangay municipality
Mayor Elective official of a
6. Application for, or acquisition of, barangay (Sec 63(a),
foreign citizenship or residence or LGC).
the status of an immigrant of another
country Rules on preventive suspension
7. Such other grounds as may be
provided by the Code and other laws 1. A single preventive suspension shall
(Sec. 60, LGC). not extend beyond 60 days (Rios v.
Sandiganbayan, G.R. No. 129913,
NOTE: An elective local official may be September 26, 1997).
removed from office on any of the grounds 2. In the event that there are several
enumerated above only by an order from administrative cases filed, the
the proper court. The Office of the elective official cannot be
President does not have any power to preventively suspended for more
remove elected officials, since such power than 90 days within a single year on
is exclusively vested in the proper courts the same ground or grounds existing
as expressly provided for in the last and known at the time of his first
paragraph of Sec. 60 of LGC (Salalima v. suspension (Sec. 63(b), LGC)
Guingona, G.R. No. 117589-92, May 22,
1996).

JURISDICTION Preventive suspension under RA


6770 (Ombudsman Act of 1989) v.
PREVENTIVE SUSPENSION Preventive suspension under RA
7160 (LGC)
Preventive suspension may be
imposed: PREVENTIVE PREVENTIVE
SUSPENSION SUSPENSION
1. After the issues are joined; UNDER UNDER THE LGC
2. When the evidence of guilt is strong; RA 6770
3. Given the gravity of the offense, Requirements
there is great
1. The evidence of 1. There is
probability that the continuance in
guilt is strong; reasonable
office of the respondent could
and ground to believe
influence the witnesses or pose a
2. That any of the that the
threat to the safety and integrity of
following respondent has
the records and other evidence (Sec.
circumstances committed the act
63(b), LGC).
are present: or acts
a. The charge complained of;
NOTE: It is immaterial that no
against the 2. The evidence of
evidence has
officer or guilt is strong;
been adduced to prove that the
employee 3. The gravity of the
official may influence possible
involves offense so
witnesses or may tamper with the
dishonesty, warrants
public records. It is sufficient that
oppression or 4. The continuance
there exists such a possibility (Hagad
grave in office of the
v. Gozo-Dadole, G.R. No. 108072,
misconduct or respondent could
December 12, 1995).
neglect in the influence the
performance of witnesses or pose
Persons who can impose preventive
duty; a threat to the
suspension
b. The charges safety and
would warrant integrity of the
AUTHORITY TO RESPONDENT removal from records and other
office; or evidence 81954, August 8, 1989).
c. The
respondents NOTE: The unjust removal or non-
continued stay compliance with the prescribed procedure
in office may constitutes reversible error and this
prejudice the entitles the officer or employee to
case filed reinstatement with back salaries and
against him. without loss of seniority rights.
Maximum period
6 months 60 days Q: Does the Sangguniang Panlungsod
(Hagad v.Gozo-Dadole, G.R. No. 108072, and Sangguniang Bayan have the
December 12, 1995). power to remove elective officials?

Power of the Ombudsman under RA A: NO. The pertinent legal provisions


6770 to conduct administrative and cases decided by this Court firmly
investigation establish that the Sanggunaing Bayan
is not empowered to do so. The most
The Ombudsman and the Office of extreme penalty that the Sangguniang
the President have concurrent Panlungsod or Sangguniang Bayan may
jurisdiction to conduct administrative impose on the erring elective barangay
investigations over elective officials official is suspension; if it deems that the
(Hagad v. Gozo-Dadole, G.R. No. removal of the official from service is
108072, December 12, 1995). warranted, then it can resolve that the
proper charges be filed in court. The
Signing of preventive suspension courts are exclusively vested with the
order power to remove elective officials under
Section 60 of the Local Government
The Ombudsman, as well as his Deputy, Code (The Sangguniang Barangay of Don
may sign Mariano Marcos v. Martinez, G.R. No.
an order preventively suspending 170626, March 3, 2008).
officials. Also, the length of the period of
suspension within the limits provided by Resignation of public elective
law and the evaluation of the strength of officials
the evidence both lie in the discretion
of the Ombudsman (Castillo-Co v. Resignation of elective officials shall be
Barbers, G.R. No. 129952, June 16, deemed effective only upon acceptance
1998). by the following authorities:
1. The President in case of
Effect of an appeal on the preventive Governors, Vice-Governors, and
suspension ordered by the Mayors and Vice-Mayors of highly
Ombudsman urbanized cities and
independent and component cities
An appeal shall not stop the decision 2. The Governor in the case of
from being municipal Mayors and Vice-Mayors,
executory. In case the penalty is city Mayors and Vice-Mayors of
suspension or removal and the component cities
respondent wins such appeal, he shall 3. The Sanggunian concerned in
be considered as having been under case of sanggunian members
preventive suspension and shall be paid 4. The City or Municipal Mayor in case
the salary and such other emoluments of barangay officials (Sec. 82, LGC).
that he did not receive by reason of the
suspension or removal. A decision of the NOTE: The resignation shall be
Office deemed accepted if not acted upon by
of the Ombudsman in administrative the authority concerned within 15
cases shall be executed as a matter of working days from receipt thereof.
course (Office of the Ombudsman v. Irrevocable resignations by sanggunian
Samaniego, G.R. No. 175573, October 5, members shall be deemed accepted
2010). upon representation before an open
session of the sanggunian concerned and
REMOVAL duly entered in its records, except where
the sanggunian members are subject to
recall elections or to cases where existing
Removal
laws prescribed the manner of acting upon
such resignations (Sec. 82(c)(d), LGC).
Removal imports the forcible separation of
the incumbent before the expiration of his
term and can be done only for causes as ADMINISTRATIVE APPEAL
provided by law (Dario v. Mison, G.R. No.
Rule on administrative appeals
2. Sangguniang Panlalawigan Elective
Decisions in administrative cases may, officials of municipalities;
within 30 days from receipt thereof, be
appealed to the following: NOTE: Decision may be appealed to
1. The Sangguniang Panlalawigan, in the Office of the President
the case of decisions of the
Sangguniang Panlungsod of 3. Sangguniang Panglungsod or Bayan
component cities and the Elective barangay officials (Sec. 61,
Sangguniang Bayan; and LGC).
2. The Office of the President, in the
case of decisions of the Sangguniang NOTE: Decision shall be final and
Panlalawigan and the Sangguniang executory.
Panlungsod of Highly Urbanized Cities
and Independent Component Cities DOCTRINE OF CONDONATION
(Sec. 67, LGC).
Q: Can a re-elected public official be
NOTE: Decisions of the Office of the administratively removed from his
President shall be final and executory. post for an alleged offense committed
during his first term of office?
Persons authorized to file
administrative complaint A: NO. Aguinaldos re-election has
rendered the pending administrative case
1. Any private individual or any against him moot and academic. Clear
government officer or employee by then, the rule is that a public official
filing a verified complaint; cannot be removed for administrative
2. Office of the President or any misconduct committed during a prior
government agency duly authorized term, since his re-election to office
by law to ensure that LGUs act operates as a condonation of the officer's
within their prescribed powers and previous misconduct to the extent of
functions (Rule 3, Sec.1, AO 23, cutting off the right to remove him
December 17, 1992). therefor. The foregoing rule, however,
finds no application to criminal cases
A verified complaint shall be filed pending against petitioner for acts he may
with the following: have committed during the failed coup
(Aguinaldo v. Santos, G.R. No. 94115,
1. Office of the President Against August 21, 1992).
elective official of provinces, highly
urbanized cities, independent
component cities, or component cities.

NOTE: It may be noted that the Elective Officials v. Appointive


Constitution places local Officials
governments under the supervision
of the Executive. Likewise, the
Constitution allows Congress to
ELECTIVE APPOINTIVE
include in the LGC provisions for OFFICIALS OFFICIALS
removal of local officials, which
suggests that Congress may exercise
Occupy their Hold their
removal powers. Note also that office by office by
legally, supervision is not
incompatible with disciplinary action virtue of the virtue of their
(Ganzon v. CA, G.R. No. 93252, August mandate of designation
5, 1991).
the electorate. thereto by an
Under AO 23, the President has
delegated the power to investigate
They are appointing
complaints to the Secretary of elected to an authority.
Interior and Local Government. This
is valid delegation because what is office for a Some
delegated is only the power to definite term appointive
investigate, not the power to
discipline. Besides, the power of the and may be officials hold
Secretary of Interior and Local
Government is based on the alter-
removed their office in
ego principle (Joson v. Torres, G.R. No. therefrom only a permanent
131255, May 20, 1998).
upon stringent capacity and
conditions. are entitled to
APPOINTIVE OFFICIALS
security of
Appointive Officials and the Civil
tenure while Service Commission
others serve
The authority granted by the Civil Service
at the Commission (CSC) to a city government to
pleasure of take final action on all its appointments
did not deprive the CSC of its authority and
the appointing duty to review appointments. The CSC is
empowered to take appropriate action on
authority all appointments and other personnel
(Quinto v. actions. Such power includes the authority
to recall appointments initially approved in
COMELEC, G.R disregard of applicable provisions of the
No. 189698, Civil Service law and regulations
(Nazareno v. City of Dumaguete, G.R. No.
February 22, 181559, October 2, 2009).
2010). NOTE: The municipal mayor, being the
appointing authority, is the real party in
Q: Romeo Jalosjos, a member of interest to challenge the CSCs disapproval
Congress, is confined at the National of the appointment of his/her appointee.
Penitentiary while his conviction for The CSCs disapproval of an appointment
statutory rape on two counts and is a challenge to the exercise of the
acts of lasciviousness on six counts is appointing authoritys discretion. The
pending appeal. Jalosjos filed a appointing authority must have the right to
motion asking that he be allowed to contest the disapproval (Dagadag v.
fully discharge the duties of a Tongnawa, G.R. Nos. 161166-67, February
Congressman, including attendance 3, 2005).
at legislative sessions and committee
meetings despite his having been Preventive suspension of appointive
convicted in the first instance of a local officials and employees
non-bailable offense.
The local chief executives may
Jalosjos relied on the ruling preventively
in Aguinaldo v. Santos, which states, suspend, for a period not exceeding sixty
that The Court should never (60) days, any subordinate official or
remove a public officer for acts done employee under his authority pending
prior to his present term of office. To investigation if the charge against such
do otherwise would be to deprive the official or employee involves
people of their right to elect their dishonesty, oppression, or grave
officers. When the people have misconduct or neglect in the
elected a man to office, it must be performance of duty, or if there is reason
assumed that they did this with the to believe
knowledge of his life and character, that the respondent is guilty of the
and that they disregarded or forgave charges which
his fault or misconduct, if he had would warrant his removal from the
been guilty of any. It is not for the service (Sec. 85, LGC).
Court, by reason of such fault or
misconduct, to practically overrule Imposable penalties
the will of the people. Decide.
Except as otherwise provided by law, the
A: The ruling in Aguinaldo v. Santos does local chief executive may impose the
not apply to imprisonment arising from the penalty of:
enforcement of criminal law. It can be
readily seen in the above-quoted ruling 1. Removal from service
that the Aguinaldo case involves the 2. Demotion in rank
administrative removal of a public officer 3. Suspension for not more than one
for acts done prior to his present term of (1) year without pay
office. Moreover, in the same way that 4. Fine in an amount not exceeding six
preventive suspension is not removal, (6) months salary
confinement pending appeal is not 5. Reprimand and otherwise discipline
removal. He remains a congressman subordinate officials and employees
unless expelled by Congress or, otherwise, under his jurisdiction
disqualified (People v. Jalosjos, G.R. Nos.
132875-76, February 3, 2000).
NOTE: If the penalty imposed is (Garcia v. COMELEC, G.R. No. 111511,
suspension without pay for not more than October 5, 1993).
thirty (30) days, his decision shall be final.
NOTE: All expenses incident to recall
If the penalty imposed is heavier than elections shall be borne by the
suspension of thirty (30) days, the COMELEC. For this purpose, the annual
decision shall be appealable to the Civil General Appropriations Act shall include
Service Commission, which shall decide a contingency fund at the disposal of the
the appeal within thirty (30) days from COMELEC for the conduct of recall
receipt thereof (Sec. 87, LGC). elections (Sec. 75, LGC).

Q: Salumbides and Glenda were Q: Goh filed before the COMELEC a


appointed as Municipal Legal recall petition against Mayor Bayron
Officer/Administrator and Municipal due to loss of trust and confidence.
Budget Officer, respectively. A On 1 April 2014, the COMELEC
complaint was filed with the Office of promulgated Resolution No. 9864
the Ombudsman against Salumbides which found the recall petition
and Glenda. They urge the Court to sufficient in form and substance, but
expand the settled doctrine of suspended the funding of any and all
condonation to cover coterminous recall elections until the resolution of
appointive officials who were the funding issue. Petitioner submits
administratively charged along with that the same is a grave abdication
the re-elected official/appointing and wanton betrayal of the
authority with infractions allegedly constitutional mandate of the
committed during their preceding COMELEC and a grievous violation of
term. They contend that the non- the sovereign power of the people.
application of the condonation What Resolution Nos. 9864 and 9882
doctrine to appointive officials have given with one hand (the
violates the right to equal protection affirmation of the sufficiency of the
of the law. Is the contention tenable? Recall Petition), they have taken
away with the other (the issue of lack
A. NO. In the recent case of Quinto v. funding). The COMELEC suspended
COMELEC, it discussed the material and the holding of a recall election
substantive distinctions between elective supposedly through lack of funding.
and appointive officials that could well Did the COMELEC gravely abuse its
apply to the doctrine of condonation. It is discretion when it suspended the
the will of the populace, not the whim of recall election?
one person who happens to be the
appointing authority, which could A: YES. The COMELEC committed grave
extinguish an administrative abuse of discretion in issuing Resolution
liability. Since Salumbides and Glenda Nos. 9864 and 9882. The 2014 GAA
hold appointive positions, they cannot provides the line item appropriation to
claim the mandate of the electorate. The allow the COMELEC to perform its
people cannot be charged with the constitutional mandate of conducting
presumption of full knowledge of the life recall elections. There is no need for
and character of each and every probable supplemental legislation to authorize the
appointee of the elective official ahead of COMELEC to conduct recall elections for
the latters actual reelection. There is 2014. Considering that there is an existing
neither subversion of the sovereign will line item appropriation for the conduct of
nor disenfranchisement of the electorate recall elections in the 2014 GAA, we see
to speak of, in the case of reappointed no reason why the COMELEC is unable to
coterminous employees (Salumbides v. perform its constitutional mandate to
Office of the Ombudsman, G.R. No. enforce and administer all laws and
180917, April 23, 2010). regulations relative to the conduct of x x x
recall. Should the funds appropriated in
RECALL the 2014 GAA be deemed insufficient,
then the COMELEC Chairman may exercise
Recall his authority to augment such line item
appropriation from the COMELECs
It is a mode of removal of a public officer, existing savings, as this augmentation is
by the people, before the end of his term. expressly authorized in the 2014 GAA.
The peoples prerogative to remove a Resolution No. 9864 is therefor partially
public officer is an incident of their reverse and set aside insofar as it directed
sovereign power, and in the absence of the suspension of any and all proceedings
constitutional restraint, the power is in the recall petition (Goh v. Bayron, G.R
implied in all governmental operations No. 212584, November 25, 2014).
Ground for recall
All pending petitions for recall initiated
The only ground for recall of local through the Preparatory Recall Assembly
government officials is loss of confidence. shall be considered dismissed
It is not subject to judicial inquiry. The upon the effectivity of RA 9244 (Approved
Court ruled that loss of confidence as February. 19, 2004).
a ground for recall is a political question
(Garcia v. COMELEC, G.R No. 111511, Recall process
October 5, 1993).
1. Petition of a registered voter in the
This means that the people may petition LGU concerned, supported by
to recall any local elective officials percentage of registered voters during
without specifying any particular ground the election in which the local official
except loss of confidence. There is no sought to be recalled was elected.
need for them to bring up any charge of 2. Within 15 days after filing, COMELEC
abuse or corruption against the local must certify the sufficiency of the
elective officials who are the subject of required number of signatures.
any recall petition.
NOTE: Failure to obtain required
Recall initiation number automatically nullifies petition.

The Recall of any elective provincial, city, 3. Within 3 days of certification of


municipal or barangay official shall be sufficiency, COMELEC shall provide
commenced by a petition of a registered the official with copy of petition and
voter in the LGU concerned and shall cause its publication for three
supported by the registered voters in weeks (once a week) in a national
the LGU concerned during the election in newspaper and a local newspaper of
which the local official sought to be general circulation. Petition must also
recalled was elected subject to the be posted for 10 to 20 days at
following percentage requirements: conspicuous places (Sec. 70, (b)(2),
LGC. Amended by RA 9244).
a. At least twenty-five percent (25%)
in the case LGUs with a voting NOTE: Protest should be filed at this
population of not more than point and ruled with finality within 15
twenty thousand (20,000); days after filing.
b. At least twenty percent (20%) in the
case of LGUs with a voting 4. COMELEC verifies and
population of at least twenty authenticates the signature
thousand (20,000) but not more 5. COMELEC announces acceptance of
than seventy-five thousand (75,000): candidates.
Provided, That in no case shall the 6. COMELEC sets election within 30 days
required petitioners be less than five after the filing of the resolution or
thousand (5,000); petition for recall in the case of
c. At least fifteen percent (15%) in the barangay/city/municipality, and 45
case of LGUs with a voting days in the case of provincial officials.
population of at least seventy-five Officials
thousand (75,000) but not more than sought to be recalled are automatic
three hundred thousand (300,000): candidates (Secs. 70 & 71, LGC).
Provided, however, That in no case
shall the required number of NOTE: The official or officials sought to
petitioners be less than fifteen be recalled shall automatically be
thousand (15,000); and considered as duly registered candidate
d. At least ten percent (10%) in the case or candidates to the pertinent positions
of LGUs with a voting population of and, like other candidates, shall be
over three hundred thousand entitled to be voted upon (Sec. 71,
(300,000): Provided, however, that in LGC).
no case shall the required petitioners
be less than forty-five thousand Effectivity of Recall
(45,000) (Sec. 70 of LGC, as amended
by RA 9244). The recall of an elective local official shall
be effective only upon the election and
NOTE: By virtue of RA 9244, Secs. 70 proclamation of a successor in the person
and 71 of the LGC were amended, and of the candidate receiving the highest
the Preparatory Recall Assembly has number of votes cast during the election
been eliminated as a mode of on recall.
instituting recall of elective local
government officials. Should the official sought to be recalled
receive the highest number of votes, petition for recall (Angobung v. COMELEC,
confidence in him is thereby affirmed, and G.R. No. 126576, March 5, 1997).
he shall continue in office (Sec. 72, LGC).
TERM LIMITS
Prohibition from resignation
Term of office of an elected local
The elective local official sought to be official
recalled shall not be allowed to resign
while the recall process is in progress (Sec. Three (3) years starting from noon of
73, LGC). June 30 following the election or such
date as may be provided by law,
except that of elective barangay
officials, for maximum of 3 consecutive
Limitations on recall terms in the same position (Sec. 43, LGC).

1. Any elective local official may be The term of office of Barangay and
the subject of a recall election only Sangguniang Kabataan elective officials,
once during his term of office for loss of by virtue of RA 9164, is three (3) years.
confidence; and
2. No recall shall take place within one NOTE: The objective of imposing the
(1) year from the date of the officials three-term limit rule is to avoid the evil of
assumption to office or one (1) year a single person accumulating excess
immediately preceding a regular power over a particular territorial
election (Sec. 74, LGC). jurisdiction as a result of a prolonged stay
in the same office.
NOTE: The one-year time bar will not
apply where the local official sought to For a three term rule to apply, the local
be recalled is a mayor and the official must have fully served the term
approaching election is a barangay and been elected through regular
election (Angobung v. COMELEC, G.R. No. election.
126576, March 5, 1997).
Term limit of Barangay officials
Q: Sec. 74 of the LGC provides that
no recall shall take place within one The term of office of barangay officials was
year immediately preceding a regular fixed at
local election. What does the term three years under RA 9164. (19 March
regular local election, as used in 2002)
this section, mean? Further, Sec.43 (b) provides that "no
local elective official shall serve for more
A: Referring to an election where the than three (3) consecutive terms in the
office held by the local elective official same position. The Court interpreted
sought to be recalled is to be actually thissection referring to all local elective
contested and filled by the electorate officials without exclusions or exceptions
(Paras v. Comelec, G.R. No. 123169, (COMELEC v. Cruz, G.R. No. 186616,
November 4, 1996). November 20, 2009).

Q. Will it be proper for the NOTE: Voluntary renunciation of the office


COMELEC to act on a petition for for any length of time shall not be
recall signed by just one person? considered as an interruption in the
continuity of service for the full term for
A: NO. A petition for recall signed by just which the elective official concerned was
one person is in violation of the statutory elected (Sec 43(b), LGC).
25% minimum requirement as to the
number of signatures supporting any