I.

HISTORY AND EVOLUTION OF LOCAL GOVERNMENT UNITS

A. In General
B. Pre-Spanis Ti!es
". # Te S$!a%&el C'(e
In 1212, after fleeing from the oppressive regime of Datu Makatunaw in
Borneo, 10 datus set up their own tribal colonies in the Visaan Islands! "ne of them,
Datu #umakwel, established on the Island of $ana the %onfederation of Madiaas
and its constitution, the %ode of Maragtas or the %ode of #umakwel! &he %ode of
#umakwel was considered among the first 'ilipino laws enacted before the $re(
)ispanic times! It consisted of 10 articles, mainl focusing on punishment for la*iness!
+n +merican historian, $aul Morrow debunks the #umakwel %ode as
nothing more than the product of ,uillermo %uino-s imagination! %uino was the first
person to write about the %ode #umakwel in an essa in 1./. wherein he claimed to
have translated the %ode from an ancient 'ilipino document! )owever, %uino
presented no other proof other than his dubious essa! 0evertheless, $aul Morrow
laments, much of the 'ilipino education sstem to this da still preaches the
#umakwel %ode as gospel historical truth!
". ) Te C'(e '* +alan,ia&
Datu 1alantiaw was among the ancient Visaans who built a kingdom with
its own tribal code known as the %ode of 1alantiaw, supposedl around 11/0! It
contains 1. articles, which consists mainl of punishment for criminal acts ranging
from the traditional ones such as homicide, theft and nonpament of debts to the
bi*arre and superstitious such as disrespect for revered trees or killing black cats
during the new moon! &he %ode of 1alantiaw also has feudalistic overtones such as
obligating those with the beautiful daughters to give them up to the sons of chiefs as
well as providing special punishment for those who commit particular crimes against
the tribal headmen as stated in the %ode!
$unishments for the crimes stated in the %ode are cruel b toda-s standards2 for
e3ample, those who sing while traveling b night are beaten for two das while those
who commit homicide and theft are condemned to death b being drowned in the
river or in boiling water!
In 145., 6illiam )enr #cott, another +merican historian revealed the %ode of
1alantiaw as an outright hoa3 perpetuated b forger 7ose Marco! Marco gave the
$hilippine 8ibrar and Museum as ancient document claiming to be the %ode of
1alantiaw in 1412! &he supposed %ode and Marco-s claims on how he obtained the
ancient document had too man discrepancies and anomalous reference to historical
facts that could not have e3isted during the time of the %ode-s supposed e3istence!
"nl recentl have a few historians such as #onia M! 9aide regarded the %ode as a
fraud but, as $aul Morrow sas, the lie still lives on!
C. Te Spanis Era
-. # Har,. /. M$n '* Vi-,'ria #0 Pil. #1)
Fa-,s: Monsignor )art, an archbishop of the ;oman %atholic %hurch based
in Manila, claims that his parish owns the pla*a located in the municipalit of Victoria,
&arlac, claiming to be in peaceful possession of it for more than 50 ears up to 1401!
&he defendant municipalit replied that Victoria was constituted into a town in 1.//
and that the parish of &arlac was established man ears afterwards2 therefore the
latter cannot claim title to the pla*a! <vidence seemed to show that the original owner,
%asimiro &anedo, of the land wherein the pla*a is located, donated said land to the
church in general and not to the town curate, since a permanent curate was not
appointed in Victoria until 1.5=! )owever, from the moment the town was created,
both the town curate and the townspeople have en>oed free access of the pla*a!
#till, Monsignor )art claims the parish of &arlac owns the pla*a on the grounds of 1?
prescription and 2? that the act of the curates and the gobernadorcillos of planting fruit
trees and plants on the pla*a constituted private ownership!
Hel(: Monsignor )art-s contentions are incorrect! ;easons:
1! It was a $hilippine custom then that upon the establishment of a new
town, a large tract of land is alwas reserved in its center for the creation of a pla*a!
Before Victoria became a town it was a mere barrio! It must be assumed that the
principal residents of Victoria wanted to have a public pla*a should their barrio be
converted into a town! &herefore, even before Victoria became a town, the land now
in dispute was alwas intended to be a public pla*a!
2! &here was no sufficient proof that the late %asimiro &anedo intended to
donate the portion of the land intended to be a public pla*a to the church in general
@! It has been full proven that the pla*a has alwas been used b the
people of Victoria from the moment the town was created
A! $la*as destined for public use are not sub>ect to prescription B+rt! 14@5,
the "ld %ivil %ode?
/! $lanting of fruit trees b the curates, etc! do not constitute an act of
private ownership but either evidence of public use or as embellishments for the
benefit of the townspeople!
-. ) R$"i /. Pr'/in-ial "'ar( '* Min('r' 02 Pil. 334
Fa-,s: ;ubi and his fellow Manguianes filed an application for habeas
corpus on the ground that the were being deprived of their libert b the provincial
officials of Mindoro! ;ubi claimed the were being held against their will at a
reservation in &igbao, Mindoro while one Dabalos was imprisoned for having run
awa from the reservation! &he provincial officials of Mindoro however, countered that
the were authori*ed under section 21A/ of the +dministrative %ode of 141= to
implement measures for the advancement of the non(%hristian people of Mindoro b
obliging them to live in one place in order to educate them!
Hel(: &he #upreme %ourt ruled in favor of the provincial officials of Mindoro
on the grounds that:
1! &he were merel e3ercising the police power of the state for a lawful
purpose and through lawful means, which can validl limit the e3ercise of %ivil libert!
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&he #upreme %ourt cited past legislation implemented in the $hilippines which
>ustified the placing in a reservation of the Manguianes such as:
a! Book 5, &itle @ C + compilation of laws implemented during the #panish
forcing the Indios to leave poblaciones Bcommunities? or reducciones in order to
instruct them to the %atholic faith and enable them to live in a civili*ed manner!
b! Decree of the ,overnor(,eneral of 7anuar 1A, 1..1( Decree ordering
the Indios to be governed b the common law and not allowing them, unless with
absolute necessit, to change their residence!
c! 8etter of Instructions b $resident Mc1inle C Dncivili*ed tribes are
allowed to keep their tribal governments, sub>ect to regulation b the +mericans!
d! &he $hilippine Bill of 1402 C &he $hilippine %ommission Bwhich composed
E of the $hilippine 8egislature, the other being the $hilippine +ssembl? was given
e3clusive >urisdiction over the territor inhabited b the Moros and other non(%hristian
tribes of the $hilippines
e! &he 7ones 8aw
2! +lthough the Maguianes were labeled as Fnon(%hristian,G the intent of the
law was not to refer to an particular religions or geographical discrimination but is
predicated on the lack of civili*ation b them, which the measure implemented b the
provincial officials of Mindoro intended to correct!
@! &he measure implemented was a valid delegation of legislative power b
the $hilippine legislature as it was done in accordance with +dministrative %ode of
141=
-.0 Te Ma$ra La&
Hueen ;egent Maria %ristina of #pain, upon the recommendation of
%olonial Minister +ntonio Maura, promulgated the ;oal Decree of Ma 14, 1.4@
which provided for an autonomous local government in the $hilippines! Dnder the
Maura 8aw there was constituted a Municipal &ribunal of five, the captain and A
lieutenants! It was given charge of the active work of governing the municipalit, such
as administration of public works, etc! and the details of ta3ation! In addition, each of
its members was reIuired to have special Iualifications! &hese positions were
honorar! &he term of office was A ears! &he officers, together with 2 substitutes,
were elected b 12 delegates of the principalia! &he principalia was composed of all
persons who has held certain offices Bsuch as cabe*a de baranga or former
captains? or who has paid a land ta3 of $/0! &he ,overnor ,eneral and the provincial
governor retained disciplinar >urisdiction over the council and its individual members,
the $rovincial Board also had supervision of the municipal council BMalcolm, ,ov-t! of
the $hilippines Islands, pp! 54(=1, Document @52, &he Maura 8aw of 1.4@?
-. 5 Te Trea,. '* Paris
&he &reat of $aris officiall ended the #panish(+merican 6ar of 1.4.! It
was ratified b #pain and the Dnited #tates on December 10, 1.4.! It contained 1=
articles, important provisions including:
+rt! 1 C ;elinIuishment b #pain of its claim of sovereignt and title to %uba!
+rt! 2 C %ession to the D!#! of the islands of $uerto ;ico and Marianas! +rt! @ C
%ession to the D!#! of the $hilippines for the sum of J20 million! +rt! 4 C +llowing
#panish sub>ects which are natives of the $hilippines to remain in the $hilippines if
the so desire! &he civil rights and political status of the native inhabitants of the
territories hereb ceded to the D!#! shall be determined b %ongress! +rt! 11 C
;elinIuishment of all civil and criminal >urisdictions over all territories ceded! +rt! 12 C
$rovides for rules on deciding >udicial proceedings pending at the time of the
ratification of the treat!
D. Te A!eri-an Peri'(
(.# Te 6'nes La&
&he 7ones 8aw of 1.4@ was virtuall an +merican(made constitution
providing for a complete form of semi(autonomous government in the $hilippines! It
defined government functions into an e3ecutive to be appointed b the D!#! $resident
with the consent of the #enate, who was called the +merican ,overnor(,eneral in the
$hilippines! &he legislative power was vested in an elective bicameralKlegislature C a
#enate and a )ouse of ;epresentatives! &he >udicial power was e3ercised b the
#upreme(%ourt and other lower courts, with 'ilipino and +merican >ustices! &he
7ones 8aw also e3tended the Bill of ;ights, defined 'ilipino citi*enship and provided
for other safeguards and restrictions!
&he bulk of the 7ones 8aw comprised mainl of defining the e3ecutive,
legislative and >udicial powers of the government!
E. Te 6apanese O--$pa,i'n
e.# T'pa-i' N$en' An7eles8 93 Pil. #)
Fa-,s: 7ose &opacio 0ueno and @ other petitioners ran for and eventuall
obtained seats in the Municipal Board of Manila in 14A0! 6orld 6ar II and the
subseIuent 7apanese occupation however took place! +fter the war, 5 new board
members were appointed b the $resident! 0ueno, et! al! claimed that the
appointment was null and void because 1? their term of office had not e3pired due to
the world war and 2? even if 1? were not true, the still had the right to hold over their
officers until their new successors were elected and Iualified!
Hel(: 0ueno and his goons were incorrect! ;easons:
1? &he word FtermG is different from Ftenure!G &here is no law which
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allows the e3tension of terms of office b reason of war! 2? +s for tenure, the same
ma be shortened or e3tended for various reasons, such as the death of the
incumbent or as otherwise provided b law! &he principle of the right to hold over ma
validl e3tend the tenure of office! )owever, 0ueno, et! al! cannot invoke this right
because under 15 Ba? of the %ommonwealth +ct, the $resident has the discretion of
appointing temporar board members until dul elected board members can be
Iualified!
F. Te P's, :ar Years
*. # R.A. ))358 as a!en(e( ; Te L'-al A$,'n'!. A-,
<ntitled, F+n +ct +mending the 8aws governing 8ocal ,overnments b
Increasing their +utonom and ;eorgani*ing the $rovincial ,overnments,G the +ct
provides for, among other things: $rocedure in establishing the provincial, cit,
municipal and regularl organi*ed municipal district budgets for each fiscal ear,
ta3ation sources2 appropriation of funds for the general welfare of the public2 grant of
the power of eminent domain2 composition of the provincial board2 Iualifications of
members of the provincial board, governors, vice(governors, maors and vice(maor2
appointment power of provincial governor, cit maor and municipal maor2 and
assignment of other powers to the provincial board, municipal board or cit councils!
+n fair and reasonable doubt as to the interpretation of the 8ocal +utonom +ct shall
be resolved in favor of the local government and shall be presumed to e3ist!
*. ) R.A. )094 ; Te Barri' Car,er A-,
FBarriosG are units of municipalities or municipal districts in which the are
located! &he are Iuasi(municipal corporations endowed with such powers as herein
provided in said +ct for the performance of particular government functions to be
e3ercised b and through their respective barrio governments in conformit with law!
Barrios ma be created or its name changed b a petition of the ma>orit of
voters in the areas affected! &he ma sue and be sued and ma be deal with an
real or personal propert in the manner provided b law!
0o barrio ma be created if its population is less than /00 people or out of
chartered cities, or poblaciones of municipalities!
&he +ct also provides for the barrio council headed b the barrio lieutenant!
&he barrio council shall meet with the Iualified voters of the barrio at least once a
ear in a barrio assembl to discuss, among others, election of new officers, raising of
funds and adopt measures for the welfare of the barrio! &he +ct also provides for the
Iualifications of the barrio council members and their powers and responsibilities,
such as the ta3ation power and its sources!
*. 0 R.A. 0124 ; Re/ise( Barri' Car,er A-,
&his +ct is essentiall the same as its predecessor, with the following
pertinent amendments2
1? + plebiscite ma be called to decide on the recall of an member of the barrio
council member or approve an budgetar, supplement appropriations or special ta3
ordinances!
2? ;enaming the barrio lieutenant as barrio captain
@? ;ight of succession in case of vacanc in the barrio captain position Bthere is no
vice(barrio captain in both +cts?!
A? &he municipal maor shall have power of supervision over barrio officialsL
/? $rocedure in barrio council, such as holding of meetings ever month
5? <ffectivel of barrio ordinances Bunless otherwise, after 50 das after its passage
or 1/ das after its confirmation in a plebiscite?
*. 5 R.A. 1#<1 ; Te De-en,rali=a,i'n A-, '* #239
&his +ct further strengthens the autonomous powers of local governments
b providing for the following pertinent provisions:
1? $rovincial and cit governments are empowered to undertake field
agricultural work and rural health work whenever deemed to be necessar to assist in
national programs or services!
2? +ppointment of heads, assistant heads of local officers and their
subordinates @? #uspension and removal of elective local
officials Bgrounds: disloalt to ;$, dishonest, oppression and misconduct in the
office?
A? ;estriction in practice of law b members of provincial, cit or municipal
board /? #uccession to office of vice(governor and vice(maor!
5? 'illing of special vacancies in local legislative bodies!
=? 'illing of elective officers in newl created and newl classified provinces,
cities, municipalities or municipal districts
.? 8ist of actions of provincial, cit and municipal officials and provincial
boards declared immediatel effective!
4? %ertain duties and powers of local chief e3ecutives not to be sub>ect to
direction and review of an national official
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10? ;elease and apportionment of certain government funds
11? %reation of following positions: provincial engineer, cit public
works official, provincial attorne and cit legal officer
12? %reation of 7oint 8ocal ,overnment ;eform %ommission Bfor continuing
studies on local autonom of 8ocal ,overnment and prepare local government code?
G. Te Mar,ial La& Ep'-
7. # P.D. #51
&his decree amended #ection 2 of ;!+! 225A or 8ocal +utonom +ct
because the said section was ineffective in carring out the #ecretar of 'inance-s
power to suspend the effectivel of an local ta3 ordinance which in his opinion is
un>ust, e3cessive or oppressive or contrar to national polic! #aid decree improves
this situation b giving the local legislative bod either @0 das to modif the ta3
ordinance or appeal the suspension order of the #ecretar of 'inance in a court of
competent >urisdiction2 otherwise, the ta3 ordinance or its part of parts in Iuestion is
considered revoked
7. ) B.P. 009 ; Te L'-al G'/ern!en, C'(e '* #2<0
&his %ode provides for the pertinent following provision:
1? ,eneral powers and attributes of local government units!
2? $owers and restrictions of 8ocal ,overnment Dnits to: %reate sources of revenue2
eminent domain2 closure of roads2 suabilit2 enter into contracts2 conve propert2
limited non(liabilit for damages!
@? 0ational supervision over local governments
A? ;elationship between $rovince(cit, province(municipalit2 cit(baranga,
municipalit(baranga2 cit(baranga2 public officials(8,Ds
/? 'iscal matters2 <3penditure of government funds2 preparation of budget
5? ;eIuirement and prohibitions of local gov-t! officials2 vacanc and succession
=? Hualification and election of local gov-t! officials2 vacanc and succession
.? ;ecall, suspension and removal of elective officials
4? %reation of local school boards
10? $ersonnel +dministration
11? #ettlement of municipal and baranga boundar disputes
12? Details on baranga and baranga officials2 municipal and municipal officials2 cit
and cit officials2 province and province officials
H. Te Presen,
h! 1 ;!+! =150 C &he 8ocal ,overnment %ode of 1441! 'rom the 8,% of
14.@, the following pertinent provisions were added:
1? "perative principles of decentrali*ation
2? +uthorit b %ongress or an political subdivision to create, divide,
merge, abolish or alter boundaries
@? <mphasis on general welfare and imposition of basic services and
facilities on political subdivisions
A? ;eclassification of lands
/? +uthorit of 8,Ds to secure and negotiate grants
5? %reation of 8ocal $reIualification, Bids and +wards %ommittee
=? "ther procedural and technical changes
II. PRIMARY LA: AND GENERAL PROVISIONS
A. Rea( Ar,i-le >8 Se-,i'n 2 an( Ar,i-le >VIII8 #2<9 C'ns,i,$,i'n
a!1 +rticle M, #ection 10 C 0o province, cit, municipalit or baranga ma
be created, divided, merged abolished or its boundaries substantiall altered, e3cept
in accordance with the criteria established in the local government code and sub>ect
to approval b a ma>orit of the votes cast in a plebiscite in the political units directl
affected!
NOTE: ;ead the whole of +rticle M of the 14.= %onstitution as well, as it refers to
local, governments in general! It contains 21 sectors! +lso $rof! Dlep must have
meant #eason 10 and not / in his outline!
a! 2 +rticle MVIII, #ec! . ( Dnless otherwise provided b %ongress, the $resident ma
constitute the Metropolitan +uthorit to be composed of the heads of all local
government units comprising the Metropolitan Manila +rea!
JsM4
+rticle MVIII, #ec! 4 C + sub(province shall continue to e3ist and operate until it is
converted into a regular province or its component municipalities are reverted to the
mother province!
0"&<: &here-s no point in reading all other sections of +rticle MVIII! #ee for ourself!
B. Rea( R.A. 92)5?Me,r'p'li,an Manila De/el'p!en, A$,'ri,.@
&his +ct states the polic of the #tate to treat Metro Manila as a special
development and administrative region and certain basic services affecting or
involving Metro Manila as metro wide services more efficientl and effectivel
planned, supervised and coordinated b a development authorit as created herein,
without pre>udice to the autonom of the affected 8,D! +mong its pertinent provisions
are:
1? #cope of MMD+ Bmetro(wide? services: Development planning2
transport and traffic management2 solid waste disposal and
management2 'lood control2 Drban renewal2 *oning and land use
planning2 health sanitation2 Drban protection and pollution control2
pu.blic safet2
2? %reation of Metro Manila %ouncil BMM%? consisting of all maors in
Metro Manila
@? $owers and 'unctions of MMD+, mainl to formulate, coordinate, and
regulate implementation of above metro(wide services
A? 'unctions of MM%, mainl to approve pro>ects of MMD+
/? 'unction of MMD+ chairman: <3ecute policies of MM% and manage
operations of MMD+2 appointment power2 prepare budget of MMD+2
disciplinar power on subordinates2 e3 officio board member Bor his
representative? of departments related to activities of MMD+ such as
D"&%, D"), etc!
5? Institutional linkages of MMD+: 0<D+, 0,"s , accredited people-s
organi*ations
". # L'pe=8 6r. /. COMELEC8 #03 SCRA 300
Fa-,s: Mel 8ope*, et! +l! Iuestioned the validit of $, D! .2A which provides
for the creation of Metro Manila %ommission which shall hold swa over A cities
BManila, Hue*on, %aloocan, and $asa? and 1@ municipalities! $!D! )e sas it runs
counter to +rt! 11, #ec! @ of the 14=@ %onstitution which states that: F0o province, cit,
municipalit or barrio ma be created, divided, abolished, merged or its boundaries
substantiall altered, e3cept in accordance with the criteria established in the 8ocal
,overnment %ode and sub>ect to the approval of the ma>orit of votes cast in a
plebiscite in the unit or units affected!G 0o plebiscite was conducted to vote for the
creation of Metro Manila! )e also claims the $!D! is a denial of the eIual protection
clause as other cities and municipalities were not similarl organi*ed into such! +lso
the $resident cannot e3ercise direct supervision and control over the Metropolitan
Manila %ommission as it runs counter to the autonom of local governments!
Hel(: Mel 8ope* is incorrect! ;easons:
1! +lthough a plebiscite was not conducted, a referendum was held 'eb! 2=,
14=/ wherein the residents of the ,reater Manila area authori*ed the $resident to
reorgani*e the cities and municipalities under the Metro Manila %ommission! &he
reIuirements for a plebiscite were therefore deemed satisfied! Besides, at the time of
the referendum, there was no 8ocal ,overnment %ode in e3istence then which
provided the need for a plebiscite! B virtue of martial law and the absence of an
interim Batasang $ambansa at that time, the $resident had authorit to enact said
$!D!
2! &here is reasonable classification in organi*ing said A cities and 1@
municipalities into a metropolitan area
@! +rticle ., #ec! 2 of the 14=@ %onstitution e3pressl recogni*es the >uridical
entit known as Metropolitan Manila
A! &here is presumption of constitutionalit in the $resident-s power of direct
supervision and control over the Metropolitan Manila %ommission! &he presidential
power of control can and should be constructed to mean that said control is limited to
those that ma be considered national in character!
". ) MMDA /. Bel-Air Assn8 In-.8 0)< SCRA <03
Fa-,s: $ursuant to ;!+! =42A which created the MMD+, MMD+ issued a
notice to the Bel(+ir Village +ssoc! BB+V+? that the former will open 0eptune #treet
owned b the latter in Bel(+ir Village, as well as tear down a perimeter wall owned b
said village! Both actions, the MMD+ said, is necessar for the decongestion of traffic
along the said areas!
B+V+ petitioned the trail court and later on the %ourt of +ppeals to en>oin the
implementation of MMD+-s proposed actions! B+V+-s petition was granted! &he
MMD+ thus now seeks recourse with the #upreme %ourt, claiming among others that
its proposed actions were in the e3ercise of the police power!
Hel(: MMD+ is wrong! &he reason is that ;!+! =42A did not e3pressl or
impliedl delegate an police power to the MMD+, most notabl the power to enact
ordinances necessar for the implementation of its plans, programs and pro>ects
aimed at the deliver of metro(wide services in Metro Manila, without diminution of
the autonomy of the LGUs concerning purely local matters B#ee! 2, ;!+! =42A?
MMD+-s proposed actions were not under the authorit of an ordinance B6hat-s
funn is that the MM%, the governing board of the MMD+, is composed of the
different maors of Metro Manila, and these gus, as mayors per se, have the power
or at least, the political will to enact ordinances?
C. Rea( R.A. 390) ?Or7ani- A-, *'r ARMM AA$,'n'!'$s Re7i'n in M$sli!
Min(ana'B@
Mindanao, encompassing 1@ provinces and 4 cities, through a plebiscite for
that purpose! &his government shall operate within the framework of the ;egional
,overnment! &he e3ecutive power is conferred on the ;egional ,overnor! &he
legislative power is conferred in the ;egional +ssembl! &he #upreme %ourt, the
%ourt of +ppeals and the lower courts shall continue to e3ercise their power as
mandated in the %onstitution2 however, there shall be a #hari-ah +ppellate %ourt
which shall also be learned in Islamic law and >urisprudence! &he #hari-ah %ourt-s
decisions shall be final and e3ecutor sub>ect to the original and appellate >urisdiction
of the #upreme %ourt! &ribal +ppellate %ourts for cases dealing with tribal codes shall
also be established!
&he ;egional ,overnment shall have fiscal autonom or the power to create
its own sources of revenue, sub>ect to the limitations of the %onstitution and this
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"rganic +ct! &he "rganic +ct also provides for: $rotection of ancestral lands,
ancestral domain and indigenous cultural communities2 urban and rural planning and
development2 power to enact laws pertaining to the national econom and patrimon
responsive to the needs of the ;egional ,overnment2 public order and securit2
education, science and technolog and sports development2 social >ustice and
services2 and power to amend or revise the "rganic +ct, either b %ongress or b the
;egional +ssembl, the latter being sub>ect to approval b %ongress!
-. # A""as /. COMELEC8 #92 SCRA )<9
Fa-,s: Datu 'irdausi +bbas, et!al! challenged the constitutionalit of ;!+!
5=@A on the following grounds:
1? ;! +! 5=@A conflicts with the &ripoli +greement Bwhat conflicts the case
doesn-t sa?
2? ;! +! 5=@A provides for the unconditional creation of the +;MM and not
through the mode of a plebiscite as provided in the %onstitution
@? &he %onstitution provides that +;MM shall be approved b a ma>orit of
votes cast in a plebiscite b all voters residing in the provinces and cities affected, but
;!+! 5=@A sas Fb a ma>orit or votes cast by the constituent units in a plebiscite and
onl those provinces and cities where a ma>orit of votes cast in favor of the "rganic
+ct shall be included in the +utonomous ;egion! ;!+! 5=@A thus conflicts the
%onstitution
A? ;! +! 5=@A includes provinces and cities which do not have the same
cultural and historical heritage and other relevant characteristics needed for
admission to the +;MM
/? ;! +! 5=@A violates constitutional guarantee on freedom of e3ercise of
religion as some its provisions run counter to the 1oran
5? &he creation of an "versight %ommittee to supervise the transfer of
power to the +;MM is contrar to the constitutional mandate that the creation of the
autonomous region hinges solel on the result of the plebiscite
=? ;! +! 5=@A sas FNthat onl the provinces and cities voting favorabl in
such plebiscite shall be included in the +;MM! &he provinces and cities which in the
plebiscite do not vote for inclusion in the +utonomous ;egion shall remain in the
e3isting administrative regions: Provided however, that the President may, by
administrative determination, merge the existing regions! &his provision, +bbas
claims, is contrar to the %onstitutional mandate that, F0o province cit, municipalit
or baranga ma be created, divided, merged, abolished or its boundar substantiall
altered, e3cept in accordance with the criteria established with the local government
code and sub>ect to approval b a ma>orit of the votes cast in a plebiscite in the units
directl affected!G B+rt! 10, #ec! 10, 14.= %onstitution?
Hel(: +bbas is wrong! ;easons:
1? ;! +! 5=@A as an enactment of %ongress, is superior to the &ripoli
+greement, being a subseIuent law to the &ripoli +greement Bthough in m opinion it
wouldn-t matter if ;! +! 5=@A was prior to the &ripoli +greement?
2? &he transitor provisions of ;! +! 5=@A does provide for a plebiscite B1
guess nobod reads the transitor provisions?
@? &he framers of the %onstitution must have intended that the ma>orit of
votes must come from each of the constituent units and not all the votes of the
provinces and cities BI couldn-t understand how the >ustices arrived at this conclusion?
A? It is not for the %ourt to decide on the wisdom of the law concerning the
inclusion of provinces and cities which +bbas claims should not be included in a
plebiscite
/? &here is no actual controvers et as to an violation of freedom of
religion, onl a potential one
5? &he creation of an "versight %ommittee is merel procedural and in fact
will aid in the timel creation of the +;MM
=? &he power of the $resident to merge administrative regions is inherent
in his power of general supervision over local governments! Besides, administrative
regions are not territorial or political regions! <3amples of administrative regions are
;egions I to MII and the 0%;
-. ) Ci'n7"ian /. Or"'s8 )51 SCRA )10
Fa-,s: In 1440, $resident +Iuino issued <! "! 0o! A@4 wherein she picked
certain provinces and cities, some of which did not participate in the inclusion to the
+;MM, to the reorgani*ed to new regions Be!g! Misamis "ccidental, which did not
participate in the +;MM plebiscite, was transferred from ;egion M to ;egion MI?!
+Iuino issued said <! "! pursuant ant ;! +! 5=@A, which sas: FN&hat onl the
provinces and cities voting favorabl in suitable plebiscites shall be included in the
+;MM! &he provinces and cities which plebiscite no vote for inclusion in the
+utonomous ;egion shall remain in the e3isting administrative regions! $rovided
however, that the $resident ma, b administrative determination, merge e3isting
regions! 7ames %hiongbian, a #ultan 1udarat congressman, filed a certiorari
prohibition to protest the <! "!, claiming that $resident +Iuino had no power to
reorgani*e administrative regions because said provision in ;! +! 5=@A 1? also states
that provinces, cities which in the plebiscite do not vote for inclusion in the
+utonomous ;egion shall remain the e3isting administrative regions 2? the
%onstitution does not e3pressl provide the $resident the power to merge
administrative regions2 in fact +rt! 10, #ec! 10 of the %onstitution Bsee II of our
outline? prohibits this and @? even granting that the $resident is allowed to merge
administrative regions, there is law setting standard on how it is to be done!
Hel(: %hiongbian is wrong! ;easons:
1? &he sentence FNshall remain in the e3isting administrative regions, is
further Iualif b the phrase, F$rovided however that the $resident ma,
b administration determination merge the e3isting regions!G
2? $ast legislation, particularl ;! +! /@A/ issued in 145., authori*ed the
$resident the help of a %ommission on ;eorgani*ation, to reorgani*e
the different e3ample departments including administrative regions! &his
shows that traditional power to reorgani*e administrative regions has
alwas been lodged in the $resident
@? &he standard is found in ;! +! /@A/ which states Fto promote simplicit,
economic efficienc in the government to enable it to pursue programs
consistent with no goals for accelerated social and economic
development and to improve service transaction of the public business!G
D. Rea( R. A. 3933 ?Or7ani- A-, *'r C'r(illera A$,'n'!'$s Re7i'n '* #2<2@
JsM6
&his +ct provides for creation of the %ordillera +utonomous ;egion B%+;?
shall consist of the cities and provinces that shall vote favorable in a plebiscite
pursuant ant 10, #ec! 1. of the %onstitution! &hose cities and provinces are Benguet,
Ifugao, Muslim $rovince, +bra, 1alinga(+paao and Baguio
&he +ct consists of the following pertinent articles:
1? ,uiding principles and policies similar to that of +rt! 2 of the 14.=
%onstitution
2? Vesting of legislative power in the %ordillera +ssembl2 e3ecutive power
%ordillera governor with a deput governor as well2 creation of
indigenous special courts whose decisions are final and e3ecutor but
sub>ect to the original and appellate >urisdiction of the #upreme %ourt
@? %reation of a ;egional %ommission on +ppointments
A? Measures to protect and develop the ancestral lands and ancestral
domains of indigenous cultural communities as well as the national
econom and patrimon
&he rest of its provisions are roughl similar to the "rganic +ct for +;MM
Bsee11(c? %+; never came to e3istence! "nl Ifugao province voted in favor
of %+;, so the #upreme %ourt in "rdillo v! %"M<8<% ruled that Ifugao
could no constitute itself into the %+;O
(. # Or(ill' /. COMELEC8 #2) SCRA #44
Fa-,s: %+; ;egional +ssembl member +le3ander "rdillo raised the
Iuestion in his petition on whether the province of Ifugao, being the onl province
which voted favorabl for the creation of the %+;, can alone legall and validl
constitute such region!
Hel(: "rdillo-s petition is meritorious! ;easons:
1? #tatutor construction of +rt! M, #ec! 1/ of the 14.= %onstitution shows
that the word FregionG is to be made up of more than one constituent
unit
2? #ection 2 or ;! +! 5=55 sas F&he ;egional ,overnment shall e3ercise
powers and functions necessar for the proper governance and
development of all provinces, cities, barangas and municipalities within
the %+;!G &herefore, %ongress could not have intended that onl a
single province would constitute %+;
@? It would be illogical for Ifugao to have 2 sets of officials, one for Ifugao
and one for the %+;, when Ifugao is the onl member of the %+;
(. ) C'r(illera B'ar( C'ali,i'ns /. COMELEC8 #<# SCRA 521
Fa-,s: $ending the convening of %ongress after $resident +Iuino was
swept into power in 14.5, she issued <! "! 220 which petitioner %ordillera Board
%oalitions claimed created the %+;, thus preempting the constitutional mandate that
%ongress shall be the one to pass an "rganic +ct providing for the creation of %+;!
$etitioner also Iuestions the constitutionalit of the %+; as it runs contrar to +rticle
10, #ec! 10 of the 14.= %onstitution B#ee 11(1?! 'inall petitioner claims the %+; will
interfere with the local autonom of individual cities and provinces in general!
Hel(: %ordillera Board %oalition is wrong! ;easons:
1! &he presumption of constitutionalit of laws shall be applied in the case!
<! "! 220 was actuall envisioned to consolidate and coordinate the deliver of
services of line departments and agencies of the 0ational ,overnment in the areas
covered b the %+; as a step preparator to the grant of autonom to the %ordillera!
It was not intended to preempt %ongress
2! %+; is not a public corporation or a territorial or political subdivision! It is
in the same genre as an administrative region for the purpose of coordinating the
planning and implementation of program and services in the covered areas! &hus no
new territorial or political subdivision was created or merged with another!
@! 8ocal autonom is administrative autonom! In the case of %+; and
Muslim Mindanao, the are granted both administrative and political autonom!
$etitioner has failed to show specificall how the creation of administrative regions
will interfere with local autonom!
(. 0 E.O. 512 (a,e( Ma. #98 #22#
&his <! "! is entitled FDevolving to the +utonomous ;egionG ,overnment of
the +utonomous region in Muslim Mindanao %ertain $owers of the D<%#, the %ontrol
and #upervision "ver Its "ffices in the ;egion and for other "ffices!
&he <! "! aims to implement #ec! 1, +rticle MV of ;! +! 5=@A which states
that, F&he +utonomous ;egion shall establish, maintain and support a complete and
integrated sstem of Iualit education and adopt an educational framework that is
meaningful, relevant and responsive to the needs, aspirations and ideals of the
people in the region!G
&o this end, the ;egional ,overnment is made responsible for the regional
educational framework of the +;MM, such as formulating and implementing
programs to improve education in general in the region!
E. Rea( R. A. 924#8 (a,e( Fe". )08 #221 B%reating the %+;+,+ +dministrative
;egion?
&his +ct is entitled F+n +ct %reating ;egion 1@ to be known as the %+;+,+
+dministrative ;egion, and 'or "ther $urposes!G It consists of the provinces of
+gusan del 0orte, +gusan del #ur, #urigao del 0orte, #urigao del #ur and the cities
of Butuan and #urigao! &he +ct also transfers #ultan 1udarat to ;egion 11!
F. L'-al G'/ern!en, Uni, De*ine(
De*ini,i'n: + political subdivision of the nation or state constituted b law
and possessed a substantial control over local affairs!
#upporting Definition: &he 8,D is autonomous in the sense that it is given
more power, authorit, responsibilities and resources remaining to be an intra
sovereign subdivision of a sovereign nation, but no intended to be an imperium in
imperia state within a state
f! 1 +lvare* v! ,uingona, 7r! 2/2 #%;+ 54/
Fa-,s: #enator )eherson +lvare*, et! al! filed a petition for prohibition with
praer &;" and preliminar prohibitor in>unction assailing ;! +! ==20, #aid ;! +!
provides for a conversion of the municipalit of #antiago, Isabela into a %it! +lvare*
said the municipalit of #antiago failed to meet the reIuirement of #ec! A/0 of the
8,% that, for a municipalit to become a component cit, it must have an annual
income of $20M! &he reason is that in the computation of the average annual income,
JsM7
the Internal ;evenue +llotments BI;+? should have been deducted from the total
income! Instead, the I;+s were added to the total income!
Hel(: +lvare* is wrong! I;+s are the local government unit-s rightful share to
the national ta3es! #ection A/0Bc? of the 8,% provides that Fthe average annual
income shall include the income accruing to the general fund, e3clusive of special
funds, transfers, and an recurring income!G I;+s are a regular, recurring source of
income2 the are not special funding transfers since #ec! 1=Bg? of the 8,% gives a
technical description for the I;+ for purposes of the 8,%
G. L'-al A$,'n'!. eCplaine(
1! +utonom C either decentrali*ation of administration or decentrali*ation of power
B8imbona v! Mangelin?
2! Decentrali*ation of +dministration C "ccurs when the central government delegate
administrative powers to political subdivision in order to broaden the basic
government power and in the process to make local government more responsive
accountableG and F<nsure their fullest development as self(reliant communities make
them more effective partners in the pursuit of national development and progress!G +t
the same time, it relieves the central government of the bureau managing local affairs
and enables it to concentrate or national concerns BSupra?
@! Decentrali*ation of power C +n abdication of political power in favor of local
government units declared to be autonomous! In that case the local government is
free to chart its own destin and shape its future with minimum intervention from
central government authorities! +ccording to a constitution author B'ather Bernas?
decentrali*ation of power amounts to Fself(immolationG since in that event, the
autonomous government becomes accountable not to the central authorities but to its
own constituenc BSupra?
A! 8ocal +utonom, $hilippine %oncept C &he national government does not
completel relinIuish all its power over local governments, including autonomous
regions! "nl administrative powers over local affairs are delegated to political
subdivisions! &he purpose of the delegation is to make governance more directl
responsive and effective at the local levels! In turn, economic, political and social
developments at the smaller political units are e3pected to propel social and
economic growth and development! But to enable the country to develop as whole
the programs and policies effected locally must be integrated and coordinate towards
a common national goal. &hus, polic(setting for the entire countr still lies in the
$resident and %ongress! In Magta>as v! $rce $roperties %orp! Inc!, municipal
governments are still agents of the national government B$imentel v! +guirre?
/! 'iscal autonom C 8ocal government have the power to create their own sources of
revenue in addition to their eIuitable share in the national ta3es released b the
national government, as well as the power to the allocate their resources in
accordance with their own priorities!
7. # Mal'n='8 e,8 al /. Da!'ra8 e,8 al 0## SCRA ))5
0"&<: Dates and peso figures are crucial to this case!
Fa-,s: In 144A, the #angguniang $anlungsod of %aloocan %it issued
"rdinance 0o! 015., authori*ing %aloocan %it maor Macario +sistio 7r! to initiate
e3propriation proceedings for lot 25 of the Masilo <state owned b the %8& ;ealt
Development %orp! +n amount of $@4, @/2,0A=!=/ was appropriated for this purpose!
%8& however countered with an interpleaded and praer for &;" on +ugust 5, 144=,
on the ground that Masilo estate actuall straddled both %aloocan %it and the
municipalit of Malabon2 therefore the %aloocan %it and Malabon municipal
governments should be restrained and %8& must interplead and litigate among
themselves their conflicting rights to claim such ta3es!
In the meantime, the voluntar sale of the %8& propert failed to push
through so the cit government field a suit for eminent domain against %8& on March
2@, 144.!
#ome months afterwards, ;e Malon*o became maor of %aloocan %it!
&he e3propriation of the %8& propert was then declared discontinued, thus the
appropriation of $/0M for the budgetar item F<3propriation of propertiesG could now
be reverted for use in supplement budget! "rdinance 0o! 02/A was then passed
appropriating an amount of $@4, @A@,02.!00 for the immediate repair of offices and
hiring of additional personnel!
Because of this, the office of the $resident B"$?, acting on an administrative
complaint filed against Malon*o et! al!, were ad>udged guilt of misconduct and meted
the penalt of suspension! Malon*o-s refuted the decision, claiming that 1? the
interpleader filed b %8& was an unavoidable discontinuance of the e3propriation
pro>ect2 thus the amount of $@4, @/2,0A=!00 could be reverted into savings and 2?
said amount was could be denominated as F<3propriation of $ropertiesG and
classified under F%urrent "perating <3penditures! &he "$ countered that the amount
of $@4, @/2,0A=!=/ was a capital outla that must be spent for the pro>ect it is
intended for, thus under #ec! @22 of the 8,% it could not be reverted into savings for
another use 2? the filling of the interpleader could not be considered as an
unavoidable discontinuance since months after the interpleader, the %aloocan %it
government even filed an e3propriation case for the %8& propert @? &he
#angguniang $anlungsod, at the time of passing "rdinance 0o! 02/A did not adopt
new or updated rules of procedure for the current ear2 this was shown b the hurried
passage in one da of the said ordinance and A? the appropriation of $/0M for
F<3propriation of $ropertiesG actuall did not e3ist this was merel a subterfuge b
Malon*o to dip his hands into the $@4, @/2! 01=!=/ intended for the %8& propert
e3propriation pro>ect!
Hel(: Malon*o is correct! ;easons:
1? During the oral arguments and pleadings, it was clear that the amount of
$@4, @/2, 01=!=/ and whether it was a capital outla or continuing appropriation was
not the issue2 rather the issue was the budgetar item F<3propriation of $ropertiesG
wherein the amount of $/0M was appropriated for said use but was later
discontinued, and later on, an amount of $@4, @1@, 02.!00 from the $/0M was
appropriated for office repair and other miscellaneous e3penses! Malon*o-s
e3planation that the $/0M was not intended for the purchase of %8& propert but for
e3penses incidental to e3propriation, such as relocation of sIuatters, appraisal fee,
etc! was believed b the %ourt! B#o what happened to the $@4, @/2, 0A=!=/, if
Malon*o-s e3planation is to be believedP 7ustice 1apunan and 2 others dissented,
believing the "$-s argument that there was actuall no $/0M e3isting to fund the
F<3propriation of $roperties item! In fact, Malon*o used the none3istent $/0M
appropriation as a cover(up to illegall spend the $@2, @/2, 0A=!=/ for repair of offices
and hiring of personnel! %an ou sa kickbackP?
2? &he failure to adopt new or updated rules of procedure of the
#angguniang $anlungsod as mandated b #ec! /0 and /2 of the 8,% is not intended
JsM8
to paral*e said #anggunian from doing its >ob! +n interpretation of #ec! /0 and /2 of
the 8,% that will avoid inconvenience and absurdit must be adopted, thus the "$-s
contention is mistaken!
7. ) Se-. #8 Cap,er #8 Ti,le >II8 E. O. )2)
FDeclaration of polic! &he #tate shall ensure the autonom of local
governments! 'or this purpose, it shall provide for a more responsive and
accountable local government structure instituted through a sstem of
decentrali*ation! &he allocation of powers and resources to loose government units
shall be promoted and inter(local government grouping, consolidation a coordination
of resources shall be encouraged! &he state shall guarantee the local government
units their >ust share in national ta3es and their eIuitable shares in proceeds from the
use natural resources, and afford them wider latitude for resource generation!G
7. 0 Pi!en,el /. A7$irre8 G. R. N'. #0)2<<8 6$l. #28 )444
Fa-,s: In 144=, $resident ;amos issued +! "! 0o! @=2 which caught the ire
of #enator +Iuilino $imentel because of certain 2 provisions which state 1? +ll
government departments and agencies, including state universities and colleges,
government(owned and controlled corporation and local government units will identif
and implement measures in 'Q 144. that will reduce total e3penditures for the ear
b at least 2/R of authori*ed regular appropriation for non(personal service items,
along the following suggested areasN and 2? $ending of assessment and evaluation
of the Development Budget %oordinating %ommittee of the emergenc fiscal
situation, the amount eIuivalent to 10R of the Internal ;evenue +llotment BI;+? to
8,Ds shall be withheld! $imentel claims that both provisions do not compl with
#ection 2.A of 8,%, which provides for the A reIuisites before the $resident ma
interfere in local fiscal matters 1? an unmanaged public sector deficit of the national
government 2? consultations with the presiding officers of the #enate and the )ouse
of ;epresentatives and the presidents of various local leagues @? the corresponding
recommendation of the secretaries of the D"', DI8, and DBM and A? an ad>ustment
in the allotment shall in no case be less than @0R of the collection of national internal
revenue ta3es of the third fiscal ear preceding the current one! #peciall, $imentel
claims that there was no showing that there was actuall an unmanaged public sector
deficit and that there was no consultations conducted with the different leagues of
local governments!
Hel(: $imentel is partl correct! ;easons:
1! &he #upreme %ourt is prepared to believe the #olicitor ,eneral-s
assurance that the first provision above stated is merel an advisor or guiding polic
for local e3ecutives to follow, thus local autonom is not interfered upon!
2! &he second provision is violative of local fiscal autonom because its
basic feature, the automatic release of the shares of 8,Ds in the national internal
revenue, is missing! &his is mandated in +rticle 10, #ec! 5 of the %onstitution!
'urthermore, #ection 2.5 of the 8,% provides that the release shall be made directl
to the 8,D concerned within / das after ever Iuarter of the ear and shall not be
sub>ect to an lien or holdback that ma be imposed b the national government for
whatever purpose! &he withholding of 10R of the I;+ is definitel a holdback!
H. P$"li- C'rp'ra,i'n (e*ine(
Definition 1: &hose formed or organi*ed for the government of a portion of the #tate
B+ct 1A/4, #ec!2?
Definition 2: &hose corporations created b the #tate as its own device and agenc
for the accomplishment of parts of its own public works B<liot, Mun! %orp! p! 1?
I. Essen,ial Ele!en,s '* a M$ni-ipal C'rp'ra,i'n
1? + legal creation or incorporation
2! + corporate name b which the artificial personalit or legal entit is known
and in which all corporation acts are done!
@? Inhabitants constituting the population who are invested with the political
and corporate powers which are e3ecuted through dul constituted officers
and agents2
A? a place or territor within which the local civil government and corporate
functions are e3ercised BMartin, $ub! %orp!, 14=1?
6. T&' *'l( -ara-,er '* a !$ni-ipal -'rp'ra,i'nE i,s si7ni*i-an-e
1? ,overnment C the municipal corporation is an agent of the #tate for the
government of the territor and the inhabitants within the municipal limits!
&he municipal corporation e3ercises b delegation a part of the sovereignt
of the #tate!
2? $rivate C the M% acts in a similar categor as a business corporation,
performing functions not strictl government or political! &he M% stands for
the communit in the administration of local affairs wKc is wholl beond the
sphere of the public purposes for which its governmental powers are
conferred
+. :a, is Fe(eralis!F
Definition: + sstem in which political power is divided between a central
Bnational? government and smaller government units!
#upporting Definition: &he central government is often called the federal government
and the smaller units, states or provinces! In a true federal sstem, citi*ens owe their
loalt directl to
the central government, even though the live in states or provinces! &he central
government has direct authorit over the people concerning powers granted to it in
the constitution!
III. CREATION AND ABOLITION OF MUNICIPAL CORPORATION
#ec! 5, 8,%: +uthorit to create 8ocal ,overnment Dnits! + local
government unit ma be created divided, merged, abolished or its boundaries
substantiall altered either b law enacted b %ongress in the case of a province, cit,
municipalit or an other political subdivision of b ordinance passed b the
#angguniang $anlalawigan or #angguniang $anlungsod concerned in the case of a
baranga located within its territorial >urisdiction, sub>ect to such limitations and
reIuirements prescribed in this %ode!
A. ReG$isi,es *'r -rea,i'n '* L'-al G'/ern!en, Uni,s
JsM9
1! Income! It must be sufficient based on acceptable standards, to provide
for all essential government facilities and services and special functions
commensurate with the si*e of its population, as e3pected of the 8,D concerned!
2! $opulation! It shall be determined as the total number of inhabitants of the
within the territorial >urisdiction of the 8,D concerned!
@! 8and +rea! It must be contiguous unless it comprises 2 or more islands or
is separated b an 8,D independent of the other properl identified b metes and
bounds with technical descriptions and sufficient to provide for such basic services
and facilities to meet the reIuirements of its populace!
%ompliance with the foregoing indicators shall be arrested b the Department of
'inance, the 0#" and the 8and Management Bureau of the D<0;!
B. De-i(e( -asesH
b! 1 Pelae= V. A$(i,'r General8 #1 SCRA 132
Fa-,s: In 145A, $resident Macapagal issued several <"s creating @@ new
municipalities, mainl in 0orthern 8u*on and Mindanao! &he $resident based his
power from #ec! 5. of the ;evised $enal %ode of 141=! Vice $resident <mmanuel
$elae* filed a petition for writ of prohibition with preliminar in>unction, against the
+uditor ,eneral, restraining him from passing in audit an e3penditure of public funds
in implementation of said e3ecutive order andKor an disbursement b said
municipalities!
$elae* contends that: 1? #ec 5. of the ;evised +dministration %ode has
been impliedl repealed b ;!+ 2@=0, the Barrio %harter +ct! 2? #ec! 5. is an undue
delegation of legislative power to the $resident and @? #ec! 5. can allow the president
to interfere in local government affairs!
Hel(: $elae* is correct! ;easons:
1! &he Barrio %harter +ct states that Fbarrios ma not be created nor their
boundaries altered or their names changed e3cept b act of %ongress of the
corresponding municipal board upon petition of the ma>orit of voters in the areas
affected and the recommendation of the municipalit or municipalities in which the
proposed barrio is situatedG &his implies that if the $resident cannot create barrios,
what more municipalitiesP BBut I think this is not a ver good argument co* it-s
impling wa too much?!
2! + law must be: a? %omplete in itself so that there is nothing left for the
delegate to do but to implement the statute and b? 'i3 a standard the limits of which
are sufficientl determinable &he standard set b #ec! 5. is Fas the public welfare
ma reIuireG &his standard, in relation to the law in Iuestion, is so broad that is
virtuall unfettered!
@! &he creation of Municipal %orporation is essentiall legislative in
character! If the president can create municipalities, situations ma arise where he
can submit local officials to his dictation b creating a new municipalit and including
therein the barrio wherein the officials preside, thus said officials- positions would
suddenl becomes vacant! &he power of control b the president over local
government is denied b the 14@/ %onstitution
b! 2 Tan /. COMELEC #5) SCRA 9)9
Fa-,s: B!$! 0o! ../ was passed allowing for the creation of the province of
0egros del 0orte on the Island of 0egros! $etitioner $atricio &an claimed that B!$! no
../ violated +rticle MI, #ection @ of the %onstitution which states: F0o province, cit,
municipalit or barrio ma be created, divided, merged, abolished or its boundar
substantiall altered, e3cept in accordance with the criteria established in the local
government code, and sub>ect to the approval b a ma>orit of the votes in a
plebiscite in the unit or units affectedG! #pecificall, the remaining areas in the
province of 0egros "ccidental were not allowed to participate in the plebiscite for the
creation of 0egros del 0orte! $etitioner also claims the proposed province of 0egros
del 0orte failed to meet the reIuirements of #ec! 14= of the 8,% of 14.@, speciall
that a future province must have at least an area of @,/00 sI! km! 0egros del 0orte,
$etitioner avers, is actuall onl 2,./5!/5 sI km! ;espondent claims the issue was
alread rendered moot and academic as the new province of 0egros del 0orte was
alread proclaimed! Moreover, the area of 0egros del 0orte is reall A,014!4/ sI km,
since the waters falling under the >urisdiction and control of 0egros del 0orte must be
included in the total area of the province!
Hel(: &an is correct! &he plebiscite is declared null and void ;easons:
1? &he phrase Fsub>ect to the approval b a ma>orit of the votes in a
plebiscite in the unit or units affectedG must be construed to mean that the remaining
areas in the province of 0egros "ccidental should have been allowed to participate in
the said plebiscite! &he reason is that cities belonging to 0egros "ccidental will be
added to 0egros del 0orte, thus 0egros "ccidental-s land area will be dismembered!
%ertainl, the people of 0egros "ccidental should have been allowed to vote in the
plebiscite as the are directl affected b the diminution in land si*e of their province!
2? + reading of the last sentence of the first paragraph of #ection 14=
8,% of 14.@ sas! F&he territor need not be contiguous if it comprises 2 or more
islandsG! &he use of the word SterritorG clearl reflects that the law refers onl to the
land mass and e3cludes the waters over which the political unit has control! In other
words, 0egros del 0orte failed to meet the reIuired land area of @,/00 sI! km for it to
become a province!
b! @ Pare(es /. ECe-$,i/e Se-re,ar. #)< SCRA 3
Fa-,s: B virtue of B!$! Blg /5, certain barangas in the municipalit of Maoao,
Ifugao held a plebiscite to determine whether the want to constitute themselves into
the new municipalit of +guinaldo! ,overnor 9osimo $aredes et! al! however claimed
that the rest of the barangas on Maoao should be allowed to participate in the
plebiscite b virtue of +rt! MI, #ec of the 14=@ %onstitution as the other barangas are
also affected b the creation of the municipalit of +guinaldo!
Hel(: $aredes is wrong! $resumption of constitutionalit should be applied in this
case! B!$! Blg! /5 is a reflection of local autonom on the part of the baranga
wanting to constituent themselves into a new municipalit! #aid barangas should be
given leewa in becoming self(reliant communities! Moreover, the people in said
barangas are the ones who will constitute the new municipalit of +guinaldo, not the
other barangas of Maoao e3cluded from B!$! Blg! /5
". A M$n. '* Can(iIa.8 B''l /. Ca )1# SCRA #<)
JsM10
Fa-,s: &he municipalit of %andi>a petitioned the ;&% of &agbilaran, Bohol,
claiming that its boundar line actuall covered barrio $agahat, since the municipalit
of +licia claims to have current territorial >urisdiction over said barrio! &he ;&%
awarded $agahat to %andi>a +licia appealed to the %ourt of +ppeals! &he %+ ruled
in favor of +licia on the grounds that 1? appling the rule of eIuiponderance of
evidence Ba principle in %ivil $rocedure? with %andi>a as plaintiff and +licia as
defendant in the lower court, the court must rule in favor of the defendant! &he
eIuiponderance of evidence rule states: F6here the scale shall stand upon eIuipoise
and there is nothing in the evidence which shall incline it to one side or the other, the
court will find for the defendant! Dnder said principle, the plaintiff must rel on the
strength of his evidence and not on the weakness of defendant-s claim! <ven if the
evidence of the plaintiff ma be stronger than that of the defendant, there is no
preponderance of evidence on his side if such evidence is insufficient in itself to
establish his cause of action!G In this case, both municipalities failed to satisfactoril
back their claims that the owned barrio $agahat: and 2? if %andi>a-s boundar line
claim was true, then not onl would the claim $agahat but also other certain barrios
as well, which would as a result, certainl e3pand %andi>a-s territor far beond than
what the law allows her, %andi>a petitioned is review on certiorari with the #%,
claiming that 1? the %+ misapplied the eIuiponderance of evidence rule and 2? the
municipalit of +licia had no >uridical personalit, having been created under avoid
<!"! B <!"! 0o!25/? since #ec! 5. of the ;+% of 141= from which the said <!"!
derived its authorit, was declared unconstitutional in $elae* v! +udition ,eneral B#ee
III(b 1?!
Hel(: &he Municipalit of %andi>a is incorrect ;easons:
1! &he #% sees no need in reviewing the eIuiponderance rule as it was not
arrived whimsicall or capriciousl b the %+
2! &he Municipalit of +licia was created b virtue of <!"! 25/ in 14A4! 15 ears
late when $elae* v! +uditor ,eneral was promulgated! +nd et even after, various
government acts, most notabl the recognition b the 14.= %onstitution of +licia as
one of the 20 municipalities of the &hird District of Bohol, indicate the #tate-s
recognition and acknowledgement of the e3istence thereof! +licia therefore, can claim
the benefits of #ec! AA2 Bd? of the 8,% of 1441 which states FMunicipal District
organi*ed pursuant to presidential issuances and <!"! and which have their
respective set of municipal officials holding officials holding office at the time of the
effectivit of the code shall henceforth be considered as regular municipalities! #ec!
AA2 Bd? is therefore a curative law in favor of +licia! &he ob>ection against it being a
municipal corporation should have been done before the 8,% was enacted in 1441!
b! / M$ni-ipali,. '* 6i!ene= /. Ba=8 6r. )31 SCRA #<)
0"&<: Dates in this case are important because essentiall 7imene* lost on
account of the slow wheels of >ustice
Fa-,s: In 14A4, $resident Huirino issued <!"! 2/., creating the municipalit
of #inacaban in the $rovince of Misamis "ccidental! In 14.. b virtue of said <!"!
#inacaban filed a claim with the provincial Board of Misamis "ccidental against the
municipalit of 7imene* territorial possession of about / barrios! 7imene* in its repl
with the provincial Board that same ear and later on with the ;&% in 1440, said that
#inacaban had no >uridical personalit to file a suit because it was created under a
void <!"! as promulgated in $elae* +uditor ,eneral and 2? the disputed barrios
belong to 7imene* since in 14/0 the municipalities entered into an agreement dul
approved b the $rovincial Board of Misamis "ccidental back then which recogni*ed
7imene*-s >urisdiction over the disputed barrio in 1442, the ;&% ruled in favor of
#inacaban using as its basis the curative benefits of #ec! 2 of the 8,% of 1441!
+ngril, 7imene* added in its petition with the #upreme %ourt the ;&%-s decision was
null and void because it failed to decide the case within one ear mandated b the
8,% of 14.@ and the %onstitution!
Hel(: 7imene* is incorrect ;easons:
1! #inacaban can claim the benefits of #ec!AA2 Bd? of the 8,% of 1441, since
various government acts through the ears after the $elae* case of 145/ indicate the
recognition b the ears after the $elae* case 145/ indicate the recognition b the
state of the municipalit of #inacaban, most notabl when the 14.= %onstitution
recogni*ed #inacaban as part of the 2
nd
District of Misamis "ccidental!
2! 6hatever agreement #inacaban and 7imene* entered into 14/0 must still
conform with the territorial metes and bounds set forth in <!"! 2/., otherwise the
agreement in void B+ relocation surve was ordered but the results of the surve was
not stated in the case?
@! <ven granting that the ;&% was deliberatel slow, its decision is not
rendered void! &he onl remed left would be to file administrative sanctions against
it!
b! 5 Men(enilla /. Onan(ia 1 SCRA 103
Fa-,s: In 14/A, the maor of the municipalit of 8egaspi appointed <milio
Mendenilla as %hief of $olice! &hen, in 14/4, %ongress passed ;!+! 22@A converting
the municipalit of 8egaspi into the %it of 8egaspi ;!+! 22@A provides that the
position of %hief of $olice of the cit of 8egaspi is to be appointed b the $resident!
&herefore, when 7ose Manuel "nandia was appointed b the $resident %it %hief of
$olice, Mendenilla assailed the legalit of such a move, claiming that his position as
chief of police was not abolished when 8egaspi was converted from a cit to a
municipalit 2? Dnder ;!+! //= his emploment status as %hief of $olice ma not be
abolished e3cept in the manner specified in ;!+! //= and @? &he %ivil #ervice 8aw
guarantees his securit of tenure!
Hel(: Mendenilla is incorrect ;easons:
1! &he position of %hief of $olice of a municipalit is totall different from the position
of the %hief of $olice of a cit! &herefore, ;!+! 22@A abolished the position of
municipalit %hief of $olice and replaced it with a cit %hief of police! In support of
this contention, the #upreme %ourt cited #ec! 45, +rticle MVII of the charter which
provides that the %it Maor the Vice Maor, etc! are allowed to continue in office
upon the effectivit of the charter until the e3piration of their terms in office! 0owhere
does it mention the %hief of $olice in the said list of officials! <3pressio unius est
e3clusio alterius!
2! 0otwithstanding both ;!+! //= and the %ivil #ervice 8aw, it is within the legal
competence of %ongress to enact ;!+! 22@A! %ongress has the plenar power to
make laws, meaning its power to make an kind of law is, in theor, unlimited!
JsM11
Hui*: If the municipalit of a municipal >udge is converted into a cit, can the >udge
continue to serve in the new citP +nswer: Qes! + >udge is not a municipal official! )e
does not derive his power or his appointment from a cit charter2 he derives them
from the %onstitution and other 8aws!
b! = Ma,a. /. CA 0)4 SCRA 940
0"&<: Don-t confuse %#D with %#%
Fa-,s: During his term, Maor Brigido #imon appointed 15 people to
positions in the %ivil #ervice Dnit B%#D? of the local government of Hue*on %it!
#imon-s authorit to appoint was based upon $!D! /1! &he #ecretar of 7ustice
rendered an "pinion, stating that $!D! /1 was never published in the ,a*ette,
therefore, conformabl with the &anada v! &uvera ruling $!D! /1 never became law at
all! &he %ivil #ervice %ommission B%#%? thus ordered the revocation of all
appointments in the %#D! )owever, the effects of such revocation were temporaril
cushioned when the cit council issued an ordinance creating the Department of
$ublic "rder and #afet BD$"#?! +ll present personnel of the %#D, the said
ordinance stated are to be absorbed into the D$"#!
)owever, the regular positions in the D$"# never got filled due to
insufficient number of said positions and lack of funds!
#imon and later on his successor, Maor Ismael Matha, remedied the
situation b offering the %#D personnel contractual appointment! 6hen Matha
refused to renew their appointments, the %#D personnel complained to the %#%! &he
%#% replied b issuing resolutions ordering the %#D personnel reinstated! Matha
now asserts that the %#% cannot order him to reinstate the said personnel as it is! In
effect, giving the appointing power he possesses, as cit Maor to the %#%!
Hel(: Matha is correct! ;easons:
1? 'irst of all, the law applicable is B!$! @@= or the old 8,% and not the 8,% of
1441 since the material events of the case took place during the time of the old 8,%!
2? Dnder B!$! @@=, the power to appoint rests in the local chief e3ecutive in the
case the Maor! 6hen the cit council issued the ordinance allowing for the
absorption of %#D personnel into the D$"#, it specificall made use of the wordings
F$resent $ersonnelG and not positions, thus the cit council arrogated upon itself the
appointing power b dictating who shall occup the D$"# positions! <ven in the local
government level, the separation of powers must be respected!
@? &he reasoning in no! 2 also applies to the %#%! &he %#% claims that b
virtue of the ordinance enacted b the cit council, the %#D personnel became
regular emploees and such the have gained the protection of the %ivil #ervice 8aw!
#uch reasoning is wrong because in the first place the %#D never e3isted at all, thus
the were never part of the %ivil #ervice to begin with! &hus when #imon and later on
Matha offered them contractual appointments, the were at the merc of the
appointing power of the said maors, as the have the option not to renew their
appointments
b! . Sa!s'n /. A7$irre8 0#1 SCRA 10
Fa-,s: ;!+! ./@/ was signed into law creating the %it of 0ovaliches out of
1/ barangas in Hue*on %it! Hue*on %it councilor Moises #amson Iuestioned the
constitutionalit of said ;!+! claiming that 1? certifications as to income, land area and
population of 0ovaliches were not presented during the deliberations that led to the
passage of ;!+! ./@/ 2? a certification attesting to the fact that the mother 8,D,
Hue*on %it, would not be adversel affected b the creation of 0ovaliches cit in
terms of income, land area and population, was also not presented @? a cop of the
petition of concerned barangas calling or the creation of %it of 0ovaliches was not
presented to the Hue*on %it %ouncil, as mandated b the Implementing ;ules of the
8,%, 1441 and A? ;!+! ./@/ failed to specif the seat of government of the proposed
%it of 0ovaliches as mandated b #ec! 11 Ba? of the 8,%, 1441!
Hel(: #amson is wrong! ;easons:
1! &he presumption of constitutionall of laws shall be applied in this case,
meaning that #amson has burden of proof to show that ;!+! ./@/ was
unconstitutional! #amson did not present an proof that no certifications were
presented during the deliberations! +nd even granting that no certifications were
indeed presented, the representatives of the D"', 0#", D<0; and even Hue*on
%it maor Ismael Matha were present during the deliberations! &he official
statements attesting to the income, land area and population of 0ovaliches could
serve the certifications contemplated b law
2! Matha was present during the deliberation! If Hue*on %it would ob>ect
to the creation of the %it of 0ovaliches, he would be the first representative to do so!
But he didn-t!
@! &he failure to provide the H% council a petition of concerned barangas
calling for the creation of the %it of 0ovaliches is not fatal as such petition is meant
onl to inform the H% council of such creation! 6ith the mass media publici*ing the
creation of the cit of 0ovaliches, #amson could not claim he was not informed of the
proposed creation
A! &he failure of ;!+!./@/ to provide a seat of government for 0ovaliches
is not fatal! #ec! 12 of the 8,% provides that a government center shall be
established b the 8,D as far as practicable! ,overnment centers can also serve as
seats of government!
/! &he fact that the %it of 0ovaliches was not included among the 1=
cities and municipalities listed in the ordinance attached to the 14.= constitution does
not mean that a constitutional amendment is necessar in order for 0ovaliches to
become a cit! &he ordinance attached to the %onstitution merel apportions the seat
of the )ouse of ;epresentatives to the different legislative districts in the countr!
0owhere, does it provide that Metro Manila shall be forever composed of 1= cities
and municipalities!
0"&<: the proposed %it of 0ovaliches was later voted down in a
plebiscite held for that purpose
C. H'& are eCis,in7 s$"-pr'/in-es -'n/er,e( ,' pr'/in-esF
T #ec! 10 8,%: Plebiscite e!uirement! 0o creation, division, merger,
abolition or substantial alteration of boundaries of 8,Ds shall take effect unless
approved b a ma>orit of the voted cast in a plebiscite called for the purpose in the
political unit or units directl affected! #aid plebiscite shall be conducted b the
%"M<8<% within 120 das from the date of effectivit of the law or ordinance
effecting such action, unless the law or ordinance fi3es another date!
JsM12
T #ec! A52 8,%: <3isting #ub(provinces <3isting sub(provinces are hereb
converted into regular provinces upon approval of the voters cast in a plebiscite to be
held in the said sub provinces and the original provinces directl affected! &he
plebiscite shall be conducted b the %"M<8<% simultaneousl with the national
elections following the effectivit of this code!
&he new legislative district created as a result of such conversion shall continue
to be represented in %ongress b the dul elected representatives of the original
districts out of which said new province or districts were created unit their own
representative shall have been elected in the ne3t regular congressional elections
and Iualified
&he incumbent elected officials of the said sub(provinces converted into regular
provinces shall continue to hold office until 7une @0, 1442! +n vacanc occurring in
the offices occupied b said incumbent elected officials, or resulting from e3piration of
resulting from e3piration of their terms of office in case of negative votes in the
plebiscite results, shall be filled b appointment b the $resident! &he appointees
shall hold office until their successors shall have been elected in the regular local
elections following the plebiscite mentioned herein and Iualified! +fter effectivit of
such conversion, the $resident shall fill up the position of governor of the newl
created province through appointment if none has et been appointed to the same as
hereinbefore provided, and shall also appoint a vice governor and other members of
the #anggunian $anlalawigan, all of whom shall likewise hold office unit their
successors shall have been elected in the ne3t local election and Iualified!
+ll Iualified appointive officials and emploees in the career service of the
said sub(provinces at the time of their conversion into regular provinces shall continue
in accordance with civil service law, rules and regulation!
% 1! Grin' /. COMELEC8 )#0 SCRA 39)
Fa-,s: $ursuant to #ec! A52, 8,%, a plebiscite to determine whether the sub(
province of ,uimaras Bits mother province was Iloilo? wants to become a regular
province was held simultaneousl with the Ma 11, 1442 elections! &he participants in
the said plebiscite were the residents of Iloilo Be3cept Iloilo cit? and the @
municipalities of ,uimaras! #urprisingl, the ballots issued in the said @ municipalities
did not provided an space for the election of governor, vice(governor and the
members of the #angguniang $anlalawigan of the province of Iloilo! 8D$ Iloilo
governor(candidate #implicio ,rino claims that the %"M<8<% erred in not allowing
the said @ municipalities to vote for the provincial officials of Iloilo, since at the time of
the plebiscite ,uimaras was still a sub(province of Iloilo! ,rino sas if ,uimaras voted
for regular FprovincehoodG then there would have been no need for them at all to vote
for the provincial officials of Iloilo! But what if ,uimaras votes to remain as a sub(
provinceP #hould special election be held for the @ municipalities so that the can
vote for the provincial official of IloiloP
Hel(: "bviousl, ,rino-s petition was rendered moot and academic when
,uimaras voted to become regular province! Besides it-s too late to undo what
%"M<8<% has done! If ,uimaras did vote to remain as a sub province, ,rino-s
petition would have been meritorious!
D. C'n/ersi'n '* a -'!p'nen, -i,. in,' a i7l. $r"ani=e( -i,. an(
re-lassi*i-a,i'n ?i!ple!en,in7 R$les an( re7$la,i'ns8 LGC@.
T Ar, #) C'n/ersi'n '* a -'!p'nen, -i,. in,' a i7l. $r"ani=e( -i,.
a? ReG$isi,es *'r -'n/ersi'n! + component cit shall not be converted into
a highl urbani*ed cit unless the following reIuirements are present:
1! Income latest annual income of not less than $/0M based on 1441
constant prices, as certified b the cit treasure! &he annual income shall included the
income accruing to the general fund e3clusive of special funds, transfers and non(
recurring income and
2! $opulation, which shall not be less than 200,000 inhabitants as certified
b 0#"!
b? Pr'-e($re *'r -'n/ersi'n:
1! ;esolution! &he interested component cit shall submit to the office of the
$resident a resolution of its #anggunian adopted b a ma>orit of all it-s members in a
meeting dul called for the purpose, and approved and endorsed b the cit maor!
#aid resolution shall be accompanied b certifications as to income and population
2! Declaration of conversion! 6ithin @0 das from receipt of such resolution,
the $resident shall, after verifing that the income and population reIuirements have
been met, declare the component cit as highl urbani*ed
@! $lebiscite! 6ithin 120 das from the declaration of the $resident or as
specified in the declaration, the %"M<8<% shall conduct a plebiscite in the cit
proposed to the converted such plebiscite shall be preceded b a comprehensive
information campaign to be conducted b the %"M<8<% with the assistance of
national and local government officials, media, 0,"-s and other interested parties!
c? E**e-, '* -'n/ersi'n
&he conversion of a component cit into a highl(urbani*ed cit shall make it
independent of the province where it is geographicall located
;eclassification B#ee cases below and III(e?
d! 1 Ceni=a /. COMELEC 21 SCRA 930
Fa-,s: on Dec! 22 14=4, the interim Batasang $ambansa enacted B!$! Blg!
/1 providing for local elections on 7an @0, 14.0! Its section @, the sub>ect of
controvers, reads as follows:
333 Dntil cities are reclassified into highl urbani*ed and component comes
in accordance with standard established in the 8,% as province for in +rt MI, #ec A
B1? of the %onstitution! +n cit now e3isting with an annual regular income derived
from infrastructure and general funds of not less than $A0M at the time of the
approval of the act shall be classified as a highl urbani*ed cit! +ll other cities shall
be considered components of the provinces where the are geographicall located!
333 &he registered voters ma be entitled to voter in the election of the official of the
province of which that cit is a component! If it-s charter so provides! )owever, voters
in a highl urbani*ed cit, as hereinabove defined shall no participate nor vote in the
election of the official of the province in which the highl urbani*ed cit is
geographical located!
;obert %eni*a et!al! filed a case as ta3 paers and registered voters in the
cities of %ebu ad Mandaue assailing #ec! @ #peciall, the Iuestioned the use of
JsM13
annual income of a given cit as basis for classification of whether or not a particular
cit is a highl urbani*ed cit whose voters ma no participate in the election of
provincial officials of the province in which the cit is geographicall located! %eni*a
and his fellow goons claim #ec!@ regulates the e3ercise of freedom of suffrage and
violates the eIual protection of the law! Moreover, the attacked ;!+! //14 the law
creating the %it of Mandaue, which went to effect without the benefit of ratification b
the residents of Mandaue in the plebiscite or referendum! &he particularl cited the
charter-s provision dening Mandaue the right to participate in provincial elections!
Hel(: %eni*a et! at! is mistaken! ;easons:
1! &he thrust of the 14=@ %onstitution is towards the fullest autonom of
8,D-s %orollar to independence however, is the concomitant loss of right to
participate in provincial affairs, more particularl the selection of elective provincial
officials since these provincial officials have ceased to e3ercise an government
>urisdiction and authorit over said cit!
2! ;egular annual income of a given cit is substantial distinction for
classification! &he revenue of a cit would show whether or not it is capable of
e3istence and development as a relativel independent economic, social and political
unit! &hus, the eIual protection of the laws in not violated!
@! 'reedom of suffrage is not imperiled since the %onstitution does not give
the cit voter the right to participate in provincial elections for territorial reasons
A! &he cit of Mandaue came into e3istence! In 1454, the constitutional
reIuirement that the creation, alteration, etc! of a cit, province, etc! is sub>ect to a
plebiscite onl came into being when the 14=@ %onstitution was enacted and
therefore cannot be applied retroactivel!
d! 2 T'"ias /. A"al's )02 SCRA #43
Fa-,s: ;obert &obias, et! al! invoking their right as ta3paers and as
residents of Mandaluong %it, assailed the constitutionalit of ;!+! 0o! =5=/, known
as F+n act %onverting the %it of Mandaluong into a )ighl urbani*ed cit known as
the %it of Mandaluong!G &he cited, among others, +rt! VIll, #ec! A4 of ;!+! =5=/,
which provides that F+s a highl urbani*ed cit, the %it of Mandaluong shall have its
own legislative district with the first representative to be elected in the ne3t national
elections after the passage of this +ct! &he remainder of the former legislative district
of #an 7uanKMandaluong shall become the new legislative district of #an 7uan with
its first representative to be elected at the same regionG #aid provision &obias claims
is not germane to the title of ;!+! =5=/ thus being contrar to the one title(one sub>ect
rule since it creates a legislative district whereas the title e3pressl provides onl for
the conversion of Mandaluong into highl urbani*ed cit! +lso, &obias, et! al! contend
that the people of san 7uan should have been made to participate in the plebiscite as
the same involves a change in their legislative district!
Hel(: &obias, et!al! are grossl erroneous ;easons:
1! &he creation of a new legislative district is a natural logical conseIuence
of its conversion into a highl urbani*ed cit!
2! &he contention that the people of #an 7uan should have been made to
participate in the plebiscite on ;!+! =5=/ as the same involved a change in their
legislative district is benefit of merit! &he reason is that the principle sub>ect involved I
the plebiscite was the conversion of Mandaluong into a highl urbani*ed cit! &he
matter of separate district representation was onl ancillar thereto! &hus the
inhabitants of #an 7uan were properl e3cluded from the said plebiscite as the have
nothing to do with the changed in status of neighboring Mandaluong! B&his argument
is rather strange for me?!
d!@ Miran(a /. A7$irre 0#5 SCRA 340
Fa-,s: "n Ma /, 144A ;!+! ==20 was passed converting the municipalit of
#antiago, Isabel into an independent component cit! "n 'eb 1A, 144. ;!+! ./2.
was passed amending ;!+! ==20 on 2 points: 1 #ec! 2 of ;!+! ==20 is hereb
amended b deleting the words, Fan independentG so that the municipalit of #antiago
will be converted into a component cit onl and 2? the voters of #antiago could now
vote again for the provincial officials of the province of Isabela! 7ose Miranda, the
maor of #antiago and other petitioners assailed the constitutionalit of ;!+! ./2.! )e
sas that said law lacks the provision reIuiring that the plebiscite be held for its
ratification! +le3ander +guirre, the <3ecutive #ecretar and other respondents on the
other hand countered that B1? Miranda et! al! had no standing to file their petition 2?
the issue is a political Iuestion and @? ;!+! ./2. did not created divide, etc or after
an boundaries of #antiago it merel reclassified #antiago from an independent
component cit into a component cit!
Hel(: +guirre and his cohorts are gravel mistaken! ;easons:
1! Miranda had standing, he field the petition in his capacit as maor of
#antiago!
2! &he issue is >usticiable, $etitioners assail the constitutionalit of ;!+!
./2., since it runs contrar to article M, #ec 10 of the 14.= %onstitution! &he court
has the power to decide the constitutionalit of an law!
@! &he reclassification will downgrade #antiago-s status from an independent
component cit into a component cit! 'ar reaching changes will then take place! Its
political independence will diminish! &he cit maor will be placed under the
administrative supervision of the provincial governor! "rdinance and resolution
passed b the cit council of #antiago will have to be reviewed b the $rovincial
Board of Isabel! &a3es collected b the cit would then be shared with the province!
+ll these changes merit the need of a plebiscite so that the people at #antiago can air
their side on the issue! Moreover, if a plebiscite can be held for the upgrading of an
8,D, should not a plebiscite be held for its downgrading as wellP
0"&<: Mendo*a-s strong dissent was anchored on +rt! M #ec! 10 of the
14.= %onstitution! #aid section refers to alteration of boundaries of #antiago were
substantiall altered nor an of its income, population or land area been radicall
changes #antiago was neither recreated into another 8,D nor abolished, much less
its boundaries alter! B&his good >ustice is impling the reclassification was
administrative in nature!

E. Classi*i-a,i'n '* pr'/in-es8 -i,ies an( !$ni-ipali,ies ?Rea( E.O. 052@
&his act is entitled Fproviding for a new income classification of provinces, cities
and other municipalitiesG $ertinent provisions include:
#ec! 1! %lassification of provinces and cities! $rovinces and cities e3cept Manila
and Hue*on %it, which shall be considered as special class cities, are hereb
JsM14
divided into 5 main classes according to the annual average income the actuall
reali*ed during the last A calendar ears immediatel preceding as follows: a? 'irst
class $@0M or more b? #econd class $20M($@0M2 c? &hird class $1/M($20M2 d?
'ourth class $10M(1/M, e? 'ifth class $/M(10(M2 f? #i3th class less than $/M
#ec! 2! %lassification of Municipalities 3 3 3 according to the annual average
income the actuall reali*ed during the last A calendar ears immediatel preceding
as follows2 a? 'irst class, $1/M or more b? second class, $10M(1/M c? &hird class,
$/M(10M d? fourth class $@M($/M e? 'ifth class, $1M(@M f? #i3th %lass, less than
$1M!
#ec! @! $eriod of ,eneral ;eclassification of $rovince, %ities and Municipalities!
Dpon the effectivit of this <!"! and for each period of A consecutive calendar ears
thereafter, the #ecretar of 'inance shall reclassif the all provinces, cities, e3cept
Manila and Hue*on %it, 6hich shall remain as special class cities, and
municipalities, on the basis of the foregoing schedules of the average annual income
of each province, cit or municipalit derived during the last A consecutive calendar
ears immediatel such reclassification according to the provisions hereof!
#ec! A! Definition of &erms! +s used this <!"!
a! +nnual Income revenues and receipts reali*ed b provinces, cities and
municipalities from regular sources of the local general and infrastructure funds
including the internal revenue and specific ta3 allotments provided for in $Ds 1AA and
A@5, both as amended but e3clusive of non(recurring receipt, such as other national
ads, grants, financial assistance, loan proceeds, sales of fi3ed assets and similar
others
b! +verage annual income( sum of the Fannual incomeG( sum of the F+nnual
IncomeG as herein defined actuall obtained b a province, cities and municipalities!
#ec! / Dse of income classification of provinces, cities, and municipalities! 333 as
basis for: a? 'i3ing of ma3imum ta3 ceiling imposable b the local government b?
Determination of statutor and administrative aids, 'inancial grants and other forms of
assistance to local government c? <stablishment of salar scales and rates of
allowances per diems, and other emoluments that local government officials and
personnel ma be entitled to d? Implementation of personnel policies on promotions,
transfers, details or secondment, and related matters at the local government levels
e? formulation and e3ecution of local government budget policies and f? Determination
of the financial capabilit of local government units to undertake development
programs and priorit pro>ects
0"&<: &here are = more sections, mainl on salaries and ta3es( ou know,
was to put more mone into the pocket of our bureaucrats
F. Se,,le!en, '* "'$n(ar. (isp$,es? Se-. ##<8 LGC8 Se- #1-#28 IRR@
T #ection 11.! 7udicial ;esponsibilit for settlement of Boundar Dispute!
Boundar dispute between and among 8,Ds shall, as much as possible! Be settled
amicabl! &o this end:
a! Boundar disputes involving 2 or more barangas in the same cit or
municipalit shall be referred for settlement to the #angguniang $anlungsod
#angguniang Baan concerned!
b! Boundar disputes involving 2 or more municipalities within the same
province shall be referred for settlement to the #angguniang $anlalawigan
concerned!
c! Boundar dispute involving municipalities or component cities of different
provinces shall be >ointl referred for settlement to the #angguniang of the province
concerned!
d! Boundar dispute involving a component cit or municipalit on the one
hand and a highl urbani*ed cit on the other or 2 or more highl urbani*ed cities,
shall be >ointl referred for settlement to the respective #angguniang of the parties
e! In the event the #angguniang fails to present an amicable settlement
within 50 das from the date the dispute was referred thereto, it shall issue a
certification to that effect! &hereafter the dispute shall be formall tried b the
#angguniang concerned which shall decide the issue within 50 das from the date of
the certification referred to above!
T#ec! 1/ definition and polic! &here is a boundar dispute when a portion or
a whole of the territorial area of an 8,D is claimed b 2 or more 8,Ds! Boundar
disputes between or among 8,Ds shall, as much as possible, be settled amicabl!
T #ec!15 7urisdictional ;esponsibilit! Boundar disputes shall be referred
for settlement to the following:
a! #angguniang $anlungsod or #angguniang for those involving 2 or more
barangas in the same cit or municipalit as the case ma be!
b! #angguniang $anlalawigan for those involving 2 or more municipalities
with in the same province!
c! 7ointl, to the #anggunian of provinces concerned, for those involving
component cities or municipalities of different provinces!
d! 7ointl, to the respective #angguniang for those involving a component
cit or municipalit and highl urbani*ed cit of 2 or more highl urbani*ed cities!
T #ec! 1= $rocedures for settling Boundar Disputes the are 1? filing of
petition 2? contents of petition @? documents attached to petition Be!g! provincial, cit
or baranga map as the case ma be technical description of the boundaries of the
8,Ds concerned A? 7oint hearing /? failure to settle amicabl Ba certification shall be
submitted to the effect 5? Decision =? +ppeal B&o the proper ;&%?
T#ec 1.! Maintenance of #tatus Huo! $ending final resolution of the dispute,
the status of the affected area prior to the dispute shall be maintained and continued
for all purposes!
T #ec 14! "fficial %ustodian! &he DI8, shall be the official custodian of all
documents on boundar disputes of 8,Ds!
f 1! Ci,. '* Pasi7 /. COMELEC e,.al. 0#5 SCRA #92
Fa-,s: 2 petitions were raised b the %it of $asig and the municipalit of
%ainta respectivel! Both Huestioned the priorit of the suspension of the scheduled
plebiscites for the proposed creation of Baranga 1arangalan and baranga 0apico
Bpursuant to 2 ordinances passed b both cities? %ainta had contended that the
proposed barangas involve areas included in the boundar dispute between her and
JsM15
$asig2 hence the suspension of the scheduled plebiscites is >ustified! $asig however
contends otherwise! Despite this, the %"M<8<% ruled against %ainta and the
plebiscite for the creation of baranga 0apico pushed through! &he core issues now
are 1? whether or not the said baranga dispute is a pre>udicial Iuestion which must
be resolved before an plebiscite can be held and 2? 6hether the plebiscite alread
conducted ratifing the creation of Baranga 0apico has rendered the issue as to it
moot and academic!
Hel(: %ainta is correct! ;easons
1! $asig cannot den that there is a pending boundar dispute between her
and %ainta #urel, whether the area in controvers shall be decided as within the
territorial >urisdiction of the Municipalit of %ainta or the %it of the $asig has material
bearing to the proposed baranga 1arangalan and 0apico! &he importance of
drawing with precise strokes the territorial boundaries of an 8,D cannot be
overemphasi*ed! &he boundaries must be clear for the define the limits of the
territorial >urisdiction of an 8,D! It can legitimatel e3ercise powers of government
onl within the limits of its territorial >urisdiction! Beond these limits, its acts are ultra
vires! 0eedless to state, an uncertaint in the boundaries of 8,Ds will sow costl
conflicts in the e3ercise of government powers which will ultimatel the people-s
welfare!
2! +s was done before in &an v! %"M<8<%, the plebiscite alread conducted
for the creation of Baranga 0apico can be annulled and set aside!
)eld: #% held that the plebiscite should be held in abeance!
f! 2 DI8, "pinion 0o! 151(144A Bstill to search?
G. Na!in7 '* LGU na!in7 '* LGUs an( p$"li- pla-es8 s,ree,s an( s,r$-,$res
T #ec 1@, 8,%, +rt 20(2@, I;;
a! &he #angguniang $anlalawigan ma in consultation with the $hilippine
)istorical %ommission B$)%?, change the name of the following within territorial
>urisdiction:
1! %omponent cities and municipalities upon the recommendation of the
#angguniang concerned!
2! $rovincial roads, boulevards, avenue, thoroughfares and bridges
@! $ublic vocational or technical school and other post(secondar and
tertiar schools
A! $rovincial hospitals, health centers and other health facilities
/! +n other place or building owned b the provincial government!
b! &he #angguniang of highl urbani*ed cities and of component cities
whose charters prohibit their voters from voting for provincial electrical officials,
hereinafter referred to in this code as independent component cities ma in
consultation with the $)% change the name of the following within its territorial
>urisdiction:
1! %it barangas, upon the recommendation of the #angguniang baranga
concerned!
2(/ essentiall the same as Ba? nos! 2(/ above e3cept onl to those within its
territorial >urisdiction!
c! &he sanggunians of component cities and municipalities ma, in
consultation with its territorial!
d! 0one of the foregoing 8,Ds institutions, places, or buildings shall be
named after a living person nor a change of name be made unless for a >ustifiable
reason and in an case not oftener than once ever 10 ears! &he name of an 8,D or
a public place, street or structure with historical, culture or ethic significance shall not
be changed, unless b a unanimous vote of the sanggunian concerned and in
consultation with the $)%!
e! + change in name of a public school shall be made onl upon the
recommendation of the local school board concerned!
f! + change in name of public hospitals, health centers, and other health
facilities shall be made onl upon the local board concerned!
g! In an change of name, the office of the president, the representative of
the legislative district concerned and the bureau of posts shall be notified!

0ote: 8etters Bd? to Bb? are the limitations in the change of name of a local government
unit institution or places or buildings!
T +rt! 20(22 I;; &hese articles are essentiall copied from sec 1@ Ba? Bb? and
Bc?,8,% #ee for ourself
T Ar,.)08 IRR G$i(elines an( li!i,a,i'n
a! 0o name of 8,Ds, public places, street and structures with historical,
culture or ethnic significances shall be changed, unless with unanimous vote of the
sanggunian and in consultation with the 0ational )istorical Institution B0)I?!
b! 0o change in the name of an 8,D shall be effective unless ratified in a
plebiscite called for that purpose!
c! 0aming shall be sub>ect to the following conditions:
1! 0aming after leaving person shall be not followed!
2! + chance in the name shall onl be for a >ust able reason!
@! +n change shall not be made more than once ever ten ears!
A! + chance in name of a local public school shall be made upon the
recommendation of the school board!
/! + chance in name of local public hospital, health center and other health
facilities onl upon the recommendation of the local school board!
5! &he whole line of the street shall have onl!
=! &he name of the famil in a particular communit whose members
contributed significantl to the welfare of the 'ilipino people mabe used!
JsM16
d! &he office of the president, the representative of the legislative district
concerned, and the postal service shall be notified of an change in name of 8,Ds,
public places, streets and structures
H. R$les '* in,erpre,a,i'n8 ?Se- 18 LGC@
T#ec! /! ;ules of Interpretation! In the interpretation of the provisions of this
%ode, the following rules shall appl:
a! +n provision on a power of local government shall be liberall interpreted
its favor, and in case of doubt, an Iuestion thereof shall be reserved in favor of
devolution of powers and the lower 8,D! +n and reasonable doubt as to the
e3istence of the power shall be interpreted in favor of 8,D concerned!
b! In case of doubt, an ta3 ordinance or revenue measure shall be
construed strictl against the 8,D enacting it, and liberall in favor of the ta3 buer!
+n ta3 e3emption, relief of incentive granted b an 8,D pursuant to the provisions
of this code shall be construed strict against the person claiming it!
c! &he general welfare provision of this code shall be liberall interpreted to
give more powers 8,Ds in accelerating economic development and upgrading the
Iualit of life for the people in the communit!
d! ;ights and obligations e3isting on the effective of this code and a rising
out contact or an other source of presentation involving an 8,D shall be governed
b the original terms conditions of contracts or the law in force at the time such rights
were vested!
e! In the resolution of controversies arising under this code where no legal
provision of >urisprudence applies, resort ma be had to the customers and traditions
of the place where the controversies took place!
h!1 Prin-iple '* (e/'l$,i'n ?See Se- #9 A5B ?-@ an( ?i@ LGCJ
T #ec 1=, 8,%! Basic #ervices and 'acilities!
a! 8,Ds shall endeavor to be self(reliant and shall continue e3ercising the
powers and discharging the duties and functions currentl vested upon them! &he
shall also discharge the functions and responsibilities of national agencies and offices
devolved to them pursuant to this code! 8ocal government shall likewise e3ercise
such other powers and discharge such other functions and responsibilities as are
necessar appropriate or incidental to efficient and effective provision of the basic
services and facilities enumerated herein2
UAV 'or a cit
+ll the services and facilities of the municipall and province, and in addition
thereto, the following:
a! +deIuate communication and transportation facilities!
b! #upport for education, police and fire services and facilities
b! 0ational agencies or offices concerned shall devolve to 8,Ds the
responsibilit for the provision of basic service and facilities enumerated in this
section within si3 months from the effect of this code
+s used in this code the term devolution refers to the act b which the
0ational ,overnment confers power and authorit upon the various 8,Ds to perform
specific functions and responsibilities!
c! &he devolution contemplated in this %ode shall include the transfer to
8,Ds of the records ,eIuipment, and other assets and personnel of national
agencies and offices corresponding to the develop powers, function and
responsibilities personnel of said national agencies or office shall be absorb b the
local government units to which the belong or in whose areas the are assigned to
the e3tend that it is administrativel viable as determined b the said oversight
communit $rovided, &hat the right accorded to such personnel pursuant to civil
service law, rules of similar regulation shall not be impaired $rovided for their, &hat
regional directors who are career service e3ecuted officers and other officers of
similar rank in the said regional offices who cannot be absorbed b the 8,D shall be
retained b the 0ational ,overnment, without an revolution of rank, salar or tenure!
h! 2 Ba($a /. C'r(illera B'('n7 A(!inis,ra,i'n8 25 SCRA #4
'acts: In 1445!David Huema as the owner of 2 parcels of land in 8acaga,
8umaba, Villaviciosa, +bra mortgaged said parcels of land of 5,000 to Dra! <rotida
Valera! )e was able to redeem the land of 22 ears later, long after Dra! Valera had
alread died! )e allegedl was able to pa the redemption price of Dra! Valera-s heir!
#pouses 8eonor and ;osa Badua alleged however that Dra! Valera sold the land to
her while she was still alive! )owever, ;osa could not produce the deed of sale
because it was allegedl in the possession of Vice(governor Benesa!
+s Huema was prevented b ;osa from cultivating the land, Huema,
instead of filling a case with the provincial courts, filed it instead with the Maeng &ribal
%ourt of the %ordillera Bondong +dministration B%B+? In 14.4, &he tribal court rule in
favor of Huema when the Baduas refused to vacate the sub>ect land, the Bthe
Baduas? received a warning order from the %ordillera $eople-s 8iberation +rm! &he
Baduas the felid a special and e3traordinar relief with the #%, which was dul treated
as a petition for certiorari and prohibition, Iuestioning the >urisdiction and legal
personalit of the Maeng &ribal %ourt, the %B+ and the %$8+!
Hel(: &he petition is that the %ordillera +utonomous ;egion B%+;? never
came into legal e3istence as a conseIuence of the "rdillo v! %"M<8I% ruling! +s a
result, the Maeng &ribal %ourt was not constituted into an advisor or special court
under ;! +!5=55! Instead, it is >ust an ordinar tribal court with mere advisor and
conciliator power to make peace, settle and compromise! #uch courts are not
considered part of $hilippine >udicial sstem! B analog to the pangkat or conciliator
panels created under $!D!1/0., if the Badua had failed to seasonabl repudiate the
Maeng &ribal %ourt-s decision, said decision would have had the force and effect of a
final >udgment in court! +s was shown, the Baduas did file a timel petition with the
#%!
IV. PO:ERS OF MUNICAL CORPORATION ?MC@
A. S'$r-es '* P'&er
1! %onstitution of a state
2! #tatutes of a state including a? those applicable to all municipal
corporation or to the class to which the particular municipal corporation belongs and
b? special act of the legislature, as far as authori*ed, applicable to the particular
municipal corporation!
@! &he charter
JsM17
A! Doctrine of inherent right of self(government with respect to certain
municipal matters Bapplicable to states which adhere to it?!
B. Classi*i-a,i'n '* P'&er
#.@ ECpress8 i!plie( an( ineren, p'&er
a! <3press ( those granted in e3press word b the special charter or
the general law under which corporation is organi*ed!
b! Implied( those granted which arise b natural implication from the
granted of e3press power or b necessar inference from the purposes or function of
the corporation Be!g! an ordinance to prevent fires necessaril carries with it the
authorit to chase fire trunks?!
c! Inherent(those which are necessar and inseparable from ever
corporation, and which come into e3istence as a matter of course as soon as an M%
is created the are:
1! &o have perpetual succession
2! &o sue and be sued, implead, grant and receive b its
corporation name and other acts as a >udicial person
@! &o make b laws and ordinances for the government of the
corporation!
A! &o make and ordinance for the government of the corporation!
0ote: Dsuall these so(called inherent powers are e3pressl provided in M%s charter!
2!? Le7isla,i/e an( eCe-$,i/e p'&ers
a! 8egislative C authorit to make laws
b! <3ecutive C authorit to enforce laws
0"&<: &he test to determine what is legislative and what is administrative is
whether the ordinance is one making a new or one e3ecuting law alread in
e3istence! &he former is legislative2 the latter-s e3ecutive!
@!? In,ra!$ral an( eC,ra!$ral p'&ers
1!? Intramural C those e3ercised within the corporate limits of a municipal
corporation!
2!? <3tramural C those e3ercised without like those given for the protection of
water suppl, prevention of 0uisance, and also for police purposes!
A!? G'/ern!en,al an( !$ni-ipal p'&ers
1!? ,overnmental C those e3ercised b the corporation in administering the
powers of the state and promoting the public welfare within! &he include those which
are legislative, >udicial, public and political! #pecific e3amples are: +dministration of
>ustice, police power2 eminent domain2 promotes public education2 fire prevention and
safet2 and all other powers to be e3ercised b the M% as an agent the #tate, for the
benefit of the public or of the e3ercise of which the corporation receives
consideration!
2!? Municipal C those e3ercised for the specified benefits and advantage of
the urban communit and the include those which are ministerial, preemptor,
private and corporate plans of which the corporation receives no compensation!
/!? !an(a,'r. an( (is-re,i'nar. p'&ers
a!? Mandator C those the e3ercise of which are reIuired of
municipal corporations!
b!? Discretionar C those which the corporations ma perform or not
depending upon own >udgment and discretion!
III. +in(s '* P'&ers
A. P'li-e P'&er ?General :el*are Cla$se@ an( ,e li!i,a,i'ns 'n ,e
eCer-ise ?Se-. #38 LGC@
1! $olice $ower C the power to prescribe regulations to promote health,
moral, peace, education, good order or safet and general welfare of the people! It is
the most essential insistent and illimitable of power! It is elastic and must be
responsive to various social conditions! $olice power is inherent in the #tate but not in
municipal corporations! In order that a municipalit corporation ma e3ercise police
power, there must be a legislative grant which necessaril also sets limits for the
e3ercise of the power!
2! ,eneral 6elfare %lause B#ec! 15, 8,%? <ver 8,D shall e3ercise the
power e3pressl granted, those necessaril implied there from, as well as the powers
necessar, appropriated incidental for its efficient and effective governance, and those
which are essential to the promotion of general welfare! 6ithin their respective
territorial >urisdictions, 8,D-s shall ensure and support among other things, he
preservation and enrichment of culture, promote health and safet, enhance the right
people to balanced ecolog, encourage and support the development of appropriate
the self(reliant scientific and technological capabilities, improve public morals,
enhance economic prosperit and social >ustice, promote full emploment among
their residents, maintain peace and order and preserve the comfort and convenience
of their inhabitant!
@! 8imitations on the e3ercise ( a police power measure ma be struck down
as invalid if it does not meet tests a!? &he interest of the public generall, as
distinguish from those of a particular class, reIuires the e3ercise of the police power
and b!? &he means emploed are reasonabl necessar for the accomplishment of
the purpose and not undul oppressive upon individuals!
#. Bina. . D'!in7' )4# SCRA 14<
Fa-,s: "n #ept 2=, 14.., the Municipalit of Makati, through its %ouncil,
approved ;esolution 0o! 50, which provided for a burial assistance program b the
office of the maor! #aid program aims to e3tend financial assistance of $/00 to
bereaved families whose income does not e3ceed $2, 000! &he %ommission on +udit
B%"+? disapproved ;es! 0o! 50 on the grounds that the said resolution 1!? did not
have an obvious or real connection to the public safet, health, morals or general
welfare in order to be sustained as a legitimate e3ercise of police power2 and 2!? said
resolution onl benefits few individuals when it should benefit the inhabitants of the
municipalit as a whole! Maor 7e>omar Bina now petitions the #% that the
;esolution be declared a valid e3ercise of the police power!
Hel(: &he %"+ is wrong ;easons:
1! %"+ tried to redefine for itself the meaning of police power! $olice power
is not capable of an e3act definition! It is not limited to peace, order, morals and all the
crap but is broadened to deal with conditions which e3ists so as to bring out of them
the greatest welfare of the people b promoting public convenience or general
JsM18
prosperit, and everthing worthwhile for the preservation of comfort of the inhabitants
of the corporation! Bwow?
2! %"+ is not attuned to the changing times! $ublic purpose is not
unconstitutional merel because it incidentall benefits a limited number of persons!
&he drift is toward social welfare legislation geared towards state policies to provide
adeIuate social services, the promotion of the general welfare, social >ustice, as well
as human dignit and respect for human rights!
). A!eri-an Mail Line /. Ci,. '* Basilan ) SCRA 042
Fa-,s: "n #ept! 12, 14//, the %it %ouncil of Basilan %it enacted
"rdinance 0o! 1.0, amending &itle Iv, "rdinance 0o! =, which read as follows:
F+rticle IV ;egulation of berthing, mooring, docking and anchoring at piers or wharves
at an point within the %it of Basilan and for anchoring at an open ba, channel or
an point within the territorial waters of the %it of Basilan!G "rdinance 0o! 1.0 also
added a new paragraph as an amendment with read: F+n foreign vessel engaged in
otherwise trade which ma anchor at an open ba, channel or an loading point
within the territorial limits of the %it of the %it of Basilan for the purpose of unloading
logs or passengers and other cargoes shall pa an anchorage fee of E centavo
B$0!/0? per registered gross ton of the vessel for the first 2A hours or part of thereof
and for succeeding hours part thereof, provided that ma3imum charge shall not
e3ceed $=/ per da, irrespective of the greater tonnage of shippage!G
#everal foreign shipping companies, including +merican Mail 8ines
Iuestioned the validit of such an ordinance with regards to the right of %it of Basilan
to impose such a fee! &he %it of Basilan answered that heir power to enact such an
ordinance is based on a cit-s e3ercise of its revenue raising or of its police power! &o
support their contention, Basilan presented their %harter B;!+! 2..? which states:
F#ec! 1A ,eneral $owers and Duties of the %ouncil! <3cept as otherwise provided b
law, and sub>ect to the conditions and limitations thereof, the %ouncil, the %ouncil
shall have the following legislative powers: a!? &o lev and collects ta3es for general
and special purposes in accordance with law 3 3 3 c? &o enact ordinances for the
maintenance and preservation of peace and good morals 3 3 3 v? fi3 the charges to
be paid b all watercraft at or using public wharves, docks, levees, or landing places!
Moreover, Basilan said the fees in Iuestion are for a regulator purpose, the reason
being the island is a potential haven for smugglers and other illegal activities Bthe
understatement of the centur?! 6ho is correctP
Hel(: +merican Mail 8ine is correct ;easons:
1! 'irst of all, the phrase, in accordance with the law in #ec! 1A a!? of the
%harter means that the %it of Basilan is not given a blanket ta3ation power!
2! It is automatic that the power to regulates as an e3ercise of police power
does not include the power to impose fees for revenue purposes! &hereof, Basilan-s
claim that "rdinance 0o! 1.0 is for a regulator purpose and not >ust for revenue
purpose won-t save said "rdinance from invalidit! Moreover, the ma3imum charge of
$=/ is more than what the 0ational ,overnment imposes for harbor fees!
@! Basilan-s %harter also grants Basilan the power to fi3 charges to be paid
b all watercraft landing at or using public wharves, docks, and levies or landing
places! #aid provision does not authori*e Basilan to collect anchorage fees as can be
shown b the need of Basilan to enact the amendator ordinance! B)uhP <3cuse
meP?
0. Villan$e/a . Cas,ane(a 6r. #15SCRA #5)
Fa-,s: "n 0ov! =, 1451, the municipal council of #an 'ernando passed
;esolution no! 21. allowing some 2A market vendors to construct their stalls along
the vicinit of public market in #an 'ernando, $ampanga! &he action was protested in
%ivil %ase 0o! 20A0 in the %'< of $ampanga and a preliminar in>unction was issued
to prevent construction of said stalls! 6hile the case was pending, the municipal
council then passed ;esolution no! 24 which declared the sub>ect area as a parking
place and a public pla*a, thereb impliedl repealing ;esolution no! 21.! In 145.,
%ivil %ase no! 20 was decided and held that the land occupied b the market vendors
was beond the commerce of man and could not be the sub>ect of private occupanc!
&he decision was apparentl not enforced! &he market vendors even claim
that in 14=1, the municipal government allotted them specific areas for which he paid
dail fees to municipal government! B 14.2, the number of vendors has ballooned to
200! &he clamor to enforce ;esolution no! 24 grew! +fter an investigation b he
municipal attorne, the "I% of the "ffice of the Maor Vicente Macalino, ordered the
demolition of the stall! &he vendors protested Bthe apparentl had little legal basis
co*- all the did was protest?
Hel(: ;esolution no! 24 must be enforced! &he reason is that, under the
%ivil %ode, public pla*as are properties of public dominion to be devoted for public
use! +nd even assuming that here was a lease agreement actuall e3isting between
the vendors and municipal government as the vendors claimed the resolution could
have effectivel terminated the agreement! It is settled that the police power cannot
be surrendered or bargained awa through the medium of a contract! In fact, ever
contract affecting the public interest suffers a congenial infirmit that it contains an
implied reservation of the police power as a postulate of e3isting legal order! &his
power can be activated at an time to change the provision of contract, or even
abrogate it entirel, for promotion and protection the general welfare! Such act will not
militate against the impairment clause, which is sub"ect to and limited by the police
power.
5. De la Cr$= /. Paras #)0 SCRA 132
Fa-,s: &he Municipal %ouncil of Bocaue, Bulacan passed "rdinance 0o! .A
which among others, state: F Being the principal cause in the decadence of moralit
and because of their other adverse effects on the communit as e3plained above no
operator night club, cabarets and dance halls shall henceforth be issued
permitsKlicenses to operate within the >urisdiction of the municipalit and no
licenseKpermit shall be issued to an professional hostess, hospitalit girls and
professional dance for emploment in an of the aforementioned establishments! &he
prohibition 3 3 3 shall include the prohibition in the renewal thereof!G
Vicente de la %ru* and other club owners assailed this "rdinance Bamong
the respondents was <dgardo 8! $aras, the >udge who ruled against them at the
lower court and who was a former +ssociate 7ustice of the #%?, claiming that1!?
Municipalit had no authorit to prohibit a lawful business or calling and 2!? the
"rdinance violated their right to due process and eIual protection of the laws as the
and the professional hostess, et! +l who works for them are being deprived of their
propert rights without due process of law!
Hel(: &he %ourt ruled in favor of de la %ru* ;easons!
1! In the guise of a police regulation, the "rdinance invaded personal or
propert rights personal in the case of those individuals desirous of patroni*ing their
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night clubs, and propert in terms of the investments made and salaries to e earned
b those therein emploed!
2! Dnder the 8,% of 14.@, the #anggunian Baan is allowed to regulate,
among others, the establishment and operation of billiard pools, theatrical
performances, circuses and other forms of entertainmentNG&hat the Municipal
%ouncil of Bocaue is allowed to regulate but not to altogether prohibit such
establishment is all too clear!
1. Velas-' . Ville7as #)4 SCRA 13<
Fa-,s: &he %it of Manila passed "rdinance no! A45A which said, FIt shall be
prohibited for an operator of an barber shop to conduct the business of massaging
customers or other persons in an ad>acent room or rooms of said barber shop, or in
an room or rooms within the same building where the barber shop is located as long
as the operator of the barber shop and the room where massaging is conducted is the
same person!G &omas Velasco and other members of he #ta! %ru* Barber #hop
+ssociation deplored said ordinance as tantamount to deprivation of propert,
specificall of their means of livelihood without due process of law B+stor Villegas, the
respondent, is the maor of Manila at that time!?
Hel(: Villegas- contention doesn-t deserve even an inkling of smpath! &he
reason is that, as indicated in the ordinance, the ob>ective said "rdinance are: 1!? to
be able to impose pament of the license fee for engaging in the business of the
massage clinic under "rdinance no! @5/4 as amended b "rdinance no! A=5=, an
entirel different measure than the ordinance regulating the business of barbershops
and 2!? in order to forestall possible immoralit which might grow out of the
construction of separate rooms for massage of customers! &he #% has been most
liberal in sustaining ordinances based on the general welfare clause!
3. US /. P'!pe.a 0# Pil )51
Fa-,s: "n 7une 1, 141A, #ilvestre $ompea was charged with violation of
municipalit ordinance of Iloilo, <! "! 0o! 1 series of 141A based on section A0 Bm? of
Municipal %od! #aid ordinance, as based from +ct 1@04, states! F6ith the approval of
provincial governor, when a province of municipalit is infested with ladrones or
outlaws the municipalit council is empowered to authori*e the able(bodied male
residents of the municipalit between the ages of 1. to /0 ears, to assist, for a
period not e3ceeding / das in an one month, in apprehending ladrones, robbers
and other lawbreakers and suspicious characters and to act as patrols for the
protection of the municipalit, not e3ceeding one da in each week!G Violation of said
ordinance is penali*ed b a fine not less than $100 or @ months imprisonment or
both! $ompea argues that the said ordinance violates the citi*en provisional right to
libert!
Hel(: $ompea is >ust plain la* Bin other words, $ompea is wrong?! 6a
back during the feudal age, lords of manors have called upon their vassals to defend
the ver land the till upon! <ven up to the time remote towns and countries have
made it obligator upon their citi*ens to defend their territor from felons! &he ancient
obligation to assist in the protection of peace and good order of the communit is still
recogni*ed in all well(organi*ed governments in the Fposse comitatusG Bpower of the
countr?! $osse comitatus is in other words common law and +ct 1@04 is statutor
recognition of such common(law right! "verall, the #tate is simpl e3ercising its police
power!
9. Il'il' C'l( S,'ra7e /. M$ni-ipal C'$n-il )5 Pil 59#
Fa-,s: &he Municipal %ouncil of Iloilo granted the Iloilo Ice %old #torage
%ompan BI%#? authorit to construct an ice cold storage plant in the cit of Iloilo!
#ome time later, residents within the vicinit of said plant complained of the smoke
and fumes emitted b the smokestacks of the said plant! &he Municipal %ouncil thus
ordered the I%# to elevate the sub>ect smokestacks2 otherwise the plant would be
enforced to close down! I%# replied that the Municipal %ouncil has no power under
the Municipal %ode to declare their plant as a nuisance! "nl the counts ma do so!
Hel(: I%# is correct ;easons:
1!? it is conceded that @4B>? of the Municipal code empowers the Municipal
%ouncil to declare and abate nuisances, )owever, there is a distinction between a
nuisance per se and nuisance per accidens! &he first refers to those which are
unIuestionabl and under all circumstances, nuisances! &he second is well obviousl,
the opposite of the first!
2!? &he Iuestion now is whether the Municipal %ouncil has the blanket
authorit to declare anthing as a nuisance! &he court ruled in the negative, the
reason being that everthing would be at the uncontrolled will of the local authorities,
In order words, while the Municipal %ouncil has the power to declare and abate
nuisance it does not have the power to declares such nuisance as a fact and that it
e3ists! "nl the ordinar courts can determine the fact of nuisance! &he ice plant in
Iuestion can be definitel said to be not nuisance per se!
<. Te-n'l'7i-al (e/el'pers8 In-. . CA #20 SCRA #59
Fa-,s: &echnolog Developers Inc! B&DI? is a domestic private corporation
engaged in the manufacture and e3port of charcoal briIuette! It received an order
from +cting Maor $ablo %ru* ordering he full cessation of &DI-s plant in ,uong #ta!
Maria, Bulacan! +lso &DI $lant manager +rmando Meneses was ordered to appear
before the said maor and produce the following a!? Building permit b!? Maor-s
$ermit c!? ;egion III $ollution of <nvironment and 0atural ;esources +nti($ollution
$ermit, and other documents!
&DI was found to lack a Maor-s $ermit and the ;egion III($ollution of
<nvironment and 0atural ;esources +nti($ollution $ermit! 6ithout previous and
reasonable notice to &DI, +cting Maor %ru* ordered the padlock of &DI-s plant!
&DI was granted a writ of preliminar in>unction against the +cting Maor-s
order! Dpon motion for reconsideration, +cting Maor %ru* presented evidence that
&DI-s plant produce ha*ardous fumes which endangered the lives of the people living
nearb! Based on the evidence presented, the trial court dissolved the writ! +n appeal
b &DI with the %+ proves fruitless! &hus, &DI sought relief with the #%!
Hel(: &DIWs petition has no merit! &he simple reason is that &DI failed to
secure a Maor-s $ermit and ;egion III($ollution of <nvironment and natural
;esources +nti($ollution $ermit! &he &emporar $ermit it received from the national
$ollution %ontrol %ommission has alread e3pired!
2. US /. T'ri"i' #1 Pil. <3
Fa-,s: +ct 0o! 11A= regulates the registration, branding and slaughter of
cattle! Its provisions state among others that 1!? no large cattle shall be slaughter or
#illed for food at the municipal slaughterhouse except upon permit secured from the
municipal treasure and 2!? an person violating this +ct shall be punished b line of up
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to $/00 or imprisonment of up to 5 months or both! %onvicted under said +ct, 8uis
&oribio insists that he had not violated an law since! If ou read the provision Iuite
carefull, there was no showing that the animal he slaughtered was committed inside
a municipal slaughterhouse and that thereof, an animal he slaughters elsewhere
does not reIuire a permit from the municipal treasure!
Hel( &oribio is wrong! &he act primaril seeks to protect large cattle of the
$hilippines against them and to make eas the return and recover of such cattle to
their proper owners when lost! #traed or stolen therefore the act can also be
constructed as to reIuire a permit for all slaughter of cattle whether in or out of a
municipal slaughterhouse! +nd if as a result, the language of the statue is fairl
susceptible of two or more constructions, that construction can be adopted which will
tell most to give effect to the manifest intent of the law maker and promote the ob>ect
for which the statue was enacted, and a construction should be re>ected which will
tend most to tender abortive other provision of the statue! &hus, &oribio-s construction
of the law should not be adopted and be replaced instead with the omniscient #%!
+nother reason for the adoption of the second construction is that it is more
attuned to the e3ercise of the police power of the state, in order to protect the
communit from the lost of service of such animals b their slaughter b improvised
owners!
#4. S'li-i,'rs Generall. MMA N'. )45 SCRA N'. <09
Fa-,sH "n Ma 2A, 1440 the Metropolitan Manila +uthorit BMM+? issued
ordinance 0o! 11 series of 1441 authori*ing itself Fto detach the license plates of
motor vehicles for traffic violation was not among the sanction imposed b the Metro
Manila %ommission under $D 150/ and was permitted onl under the conditions laid
down b 8etter of Instruction A@ in the case of stalled vehicles obstructing the public
street! It was there also observed that even confiscation of drivers licenses for traffic
violations was not directl prescribe b the degree nor was it allowed b the decree to
be impose b the commission
Months later, several complaints again proliferated all over metro Manila
concerning the confiscation of driver-s licenses and license plates! #everal officers
offered different defenses >ustifing the confiscation, the more popular once being
that, the confiscations were valid pursuant to ordinance no!= series of 14.. and that
the ,onong decision should be interpreted to mean that onl the confiscation of
license plates are prohibited! Director ,eneral %esar 0a*areno of the $0$ even
insisted that his office has never authori*ed the removal of license plates of illegall
parked vehicles and has in fact, event the directed full compliance of the ,onong
decision in memorandum dated 'ebruar 2., 1441!
"n 7ul 2, 1441, the #% issued a resolution asking the solicitor general and
the MM+ to file their comments regarding the issue! &he solicitor general involves the
view that ordinance no!11 is null and void for begin unrivalled e3ercise of the
delegated legislative power since $D 150/ does not permit and thus impliedl
prohibits, the removal of license plates and the confiscation of driver-s license
B<3presio unuis est e3clusion alterius?! &he MM+ however, invokes <" @42 the law
providing for MM+-s creation, which vested in it among others the responsibilit of
promulgating resolutions and other is issuances of Metropolitan 6ide +pplication,
approval of a code of basic services reIuiring coordination and the e3ercise of its role
making powers! +lso MM+ said that the ordinance cannot be attacked collaterall but
onl in a direct action challenging its validit!
Hel(H &he MM+ is wrong! ;easons:
#@ %onsidering the confusion over what law to follow regarding the
confiscation, with some officers even declaring that ,onong decision was wrong the
#% decided to rule on the issue sIuarel despite the fact that ordinance 0o!11 was
not challenged in a direct action! Besides, the #% sIuarel said, said rule concerning
direct actions is not an infle3ible one!
)@ +s to the merits, the #% admits that the power to promulgate measures to
promote the comfort and convenience of the public and to alleviate the worsening
traffic problems due in a large part to stimulation of traffic rules B<!"! @42 and the
general welfare clause 8,%? is valid delegation of legislative power! But the real
issue is not the validit of the delegation of legislative power! It is the validit of such
e3ercise of delegated power! + municipal ordinance to be valid
a@ Must not contravene the %onstitution
"@ Must not be unfair or oppressive
-@ Must not be partial or discriminator
(@ Must not prohibit but ma regulate trade and
e@ Must be general and consistent with public polic!
##. A-e"e(' Op,i-al C'. In-. / CA 0)2 SCRA 0#5
Fa-,sH +cebedo "ptical %o! applied with the office of the %it Maor Iligan
for a business permit! %it Maor %amilo %abili issued the said permit but sub>ect to
the following conditions!
#@ #ince it is a corporation, +cebedo cannot put up an optical clinic but onl
an optical store!
)@ +cebedo cannot e3amine andKor prescribe reading and similar optical
glasses for patients, because these are function of optical clinics!
0@ +cebedo cannot sell reading and similar ee glasses without a
prescription having been first made b an independent optometrist Bnot its emploee?
or independent optical clinic! +cebedo can onl sell directl to the public without need
of prescriptions, ;a ban and similar ee glasses!
5@ +cebedo cannot advertise optical lenses and eeglasses but can
advertise ;a ban and similar glasses and frames!
1@ +cebedo is allowed to grind glasses but onl upon the prescriptions of an
independent optometrist!
&he #amahan ng "ptometrist ng $ilipinas B#"$I? however, ledged a complaint
against +cebedo, alleging that +cebedo violated all the conditions impose on its
business permit! +cebedo in response, protested the conditions impose b the cit
maor stating that
#@ &he conditions impose are beond what the cit maor can impose
within his authorit as the have no basis in an law or ordinance and
)@ +cebedo-s acceptance of the business permit does not stop it from
challenging the said conditions as ultra vires since a permit is not a
binding contract!
Hel(H +cebedo is correct! ;eason:
#@ &he court has alread ruled in #"$I v! +cebedo International that in the
absence of a law prohibiting the hiring b corporation of optometrist,
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there is then no prohibition against the hiring b corporations of
optometrist
Bthis is in reference to the $o.% conditions of the business permit?! &he
current optometr law B;!+! .0/0? contains no such prohibitions,
)@ a license of contract is not a contract between the sovereignt and the
licensee or permitted and is not a propert in the constitutional sense! +
license is rather in the nature of a special privilege of permission or
authorit to do what is within its term! It is not anwa vested permanent
or absolute! &herefore the business permit in the case at bar not being a
contract +cebedo is not stopped from challenging the conditions therein
as ultra vires!
0@ "verall, the primar purpose of the optometr law in regulating the
practice of optometr to insure that opt metrical services are too be
rendered b competent and licensed person in order protect the health
and phsical welfare of the people from the dangers endangered b
unlicensed practice! #uch purpose ma be full accomplished although
the person rendering the service is emploed b a corporation!
NOTEH In effect, the onl condition challenged b +cebedo was condition
0o! @
NOTEH Is optometr a profession or a mechanical artP Both the ma>orit Bas penned
b >ust $urisima? and dissenting opinions Bas penned b >ustice Vitug? could not agree
on this Iuestion!
Distinction is important because if optometr is a profession, then the
optometr, 8aw should be ree3amined as there is the danger that corporation , in
hiring optometrist, ma be perceived as engaged in the practice of optometr is a
profession, them corporation might compromise the professional accountabilit of
optometr as the motivation to sell eeglasses ma prevail over professional ethics!
'or instance, the control e3ercised b corporations over optometrist hired as
emploees might force said optometrist in sacrificing their professional opinion for the
for the sake of selling the corporation-s products B+ll these arguments about
optometr being a profession is B#! &he #"$I is >ust afraid of the competition offered
b corporation, but the %ourt, in its infinite wisdom not touch on that?
B@ E!inen, D'!ain
#. ReG$isi,es *'r ,e ECer-ise
KSe-. #28 LGC ; E!inen, D'!ain8 +n 8,D ma, through its chief
e3ecutive, and acting pursuant to an ordinance, e3ercise the power of eminent
domain for public use or purpose or welfare for the benefits of the poor and landless
upon pament of >ust compensation pursuant to the provision of the %onstitution and
pertinent laws: provided however that the power of eminent domain ma not be
e3ercised unless a valid and definite offering has been previousl made to the owner
and such offer was not accepted! $rovided further , that the 8,D ma immediatel
take possession of the propert upon the filing of e3propriation proceeding and upon
making a deposit with the proper court of at least 1/R of the fair market value of the
propert based on the current ta3 declaration of the propert to be e3propriated!
$rovided finall that the amount to be paid for the e3propriated propert shall be
determined b the proper court based on the fair market value at the time of the
taking of the propert!
KAr, 0).IRR ; E!inen, D'!ain &en eCer-ise a@ an 8,D ma through its
chief e3ecutive and acting pursuant to an ordinance e3ercise the power of eminent
domain for public use purpose welfare of the poor and landless upon pament of >ust
compensation, pursuant to the provision the %onstitution and pertinent laws b? &he
power of eminent domain ma not be e3ercised unless a valid and definite offer has
been previousl made to the owner and such offer was not accepted!
KAr,8 03 IRR ; a@ if the 8,D fails to acIuire private propert for public use
purpose or welfare through purchase, 8,D ma e3propriate said propert through a
resolution of the #angguniang authori*ing its chief e3ecutive to initiate e3propriation
proceeding b? &he local chief e3ecutive shall cause the provincial, cit or municipal
attorne concern or: in his absence , the provincial or cit prosecutor to file
e3propriation proceeding in the proper court in accordance with rule of %ourt and
other pertinent laws c? &he 8,D ma immediatel take possession of the propert
upon the filing e3propriation proceeding and upon making a deposit with the proper
court of at least 1/R of the fair market value of the propert based on the current ta3
declaration of the propert to be e3propriated
KAr, 098 IRR ; Pa.!en,. &he amount to be paid for the e3propriated
propert shall determined b the proper court based on the fair market value at the
time of the taking of the propert!
KR$le 398 #229 R$les '* Ci/il Pr'-e($re
&his rule consists of 1A sections enumerating the procedure to be followed in
eminent domain! Briefl the rule enumerates the following section: 1? &he %omplaint
2? entr of plaintiff depositing value with 0ational or provincial &reasure Bbut this
section 0o! 2 has been repealed b $!D! 0o! A2? @? defenses and ob>ection A? order
of condemnation /? ascertainment of compensation 5? proceeding b commission =?
report b commission and >udgment thereupon .? action upon commissioner report 4?
uncertain ownershipKconflicting claim 10? right of plaintiff after >udgment and pament
entr not delaed b appeal, effect of reversal 12? cost, b whom paid 1@? recording,
pament and its effect 1A? power of guardian in such proceedings!
$!D! 0o!A2 in a relation to #ection 2 of ;ule 5=, effectivel removes the
discretion of the counting determining the provisional volume! 6hat is to be deposited
is an amount eIuivalent to the assessed value for ta3ation purposes! 0o hearing is
reIuired for the purpose! +ll that is needed is noticed to the owner of the propert
sought to be condemned!
NOTEH #o that ou don-t have to bother reading the crapp 1A sections
enumerated in ;ule =5, let-s use instead the summar given b the %ourt regarding
the % stages of every action of expropriation in 0+$"%"; v! 7ocson:
#@ &he first is concerned with the determination of the authorit of the
plaintiffs to e3ercise the power of eminent domain ant the propert of its e3ercise in
the conte3t of the facts involved in the suit! It ends with an order if not of dismissal of
the action, Fof condemnation declaring that the plaintiff has a lawful right to take the
propert sought to be condemned, for the public use or purpose described in the
complaint, upon the pament of >ust compensation to be determined as of date of the
filling of the complaint!G +n order of dismissal, if this is to be ordained, would be a final
JsM22
one since it finall disposes of the action and leaves the %ourt with nothing more to
be done on the merits! #o too, would an order of condemnation be a final one, for
thereafter, the ;ules e3pressl state in the proceedings before the &rial %ourt, Fno
ob>ection to e3ercise of the right of condemnation Bor the propriet thereof? shall be
filled or heard!
)@ &he second phase of the eminent domain action is concerned with the
determination b the %ourt of the F>ust compensation for the propert sought to be
taken!G &his is done b the %ourt with the assistance of not more than @
commissioners! &he order fi3ing the >ust compensation on the basis of the evidence
before, and findings of, the commissioners will be final too! It would finall dispose of
the second stage of the suit, and leave nothing more for the %ourt to be done b the
%ourt regarding the issue!
0@ )owever, upon the filling of the complaint or at antime thereafter, the
petitioner has the right to take or enter upon the possession of the propert involved
upon compliance with $!D! A2 which reIuires the petitioner, after due notice to the
defendant, to deposit with the $0B in its main office or an of its branches or
agencies Fan amount eIuivalent to the assessed value of the propert for purposes of
ta3ation!G &he assessed value is that indicated in the ta3 declaration!
KDILG Opini'n N'. #4-#223
&he researcher isn-t too keen in going to the DI8, to get their opinions! FRL
)@ P$rp'ses '* eCpr'pria,i'n
a. In the $hilippines, regular provinces are authori*ed to e3ercise the power
of eminent domain for the following purposes: the construction and e3tension of
roads, streets, sidewalks, bridges, ferries, levees, wharves or piers2 the construction
of the public buildings including schoolhouses2 and the making of necessar
improvements in connection therewith2 the establishment of parks, plaground,
pla*as, market places, artesian wells or sstems for the suppl of water, and the
establishment of cemeteries, crematories, drainage sstem, cesspools, or sewage
sstems!
b! Municipalities in regular provinces are authori*ed to e3ercise the power of
eminent domain for an of the following purposes: the construction or e3tension of
roads, streets, sidewalks, bridges, ferries, levees, wharves or piers2 the construction
buildings, including schoolhouses, and the making of improvements on parks,
plaground, pla*as, marketplaces, artesian wells, or sstem for the suppl of 6ater,
and the establishment of cemeteries, crematories, drainage sstem, cesspools, or
sewage sstems!
0@ Illustrative cases:
#. Na,i'nal P'&er C'rp'ra,i'n /. 6'-s'n )43 SCRA 1)4
Fa-,sH &he 0+$"%"; is a ,"%% created and e3isting b virtue of ;+ 0o!
5@4/, as amended, for the purpose of undertaking the development of hdraulic
power, the production of power from an source, particularl b constructing,
operating and maintaining power plants, au3iliar plants, dams, reservoirs, pipes,
mains, transmission lines, power station and other works for the purpose of
developing hdraulic power from an river, creek, lake, spring and waterfall in the
$hilippines and suppling such power to the inhabitants thereof! In order to carr out
these purposes, it is authori*ed to carr out the power of eminent domain!
"n March @0, 1440, 0+$"%"; filled = cases of eminent domain against =
private citi*ens before the ;&% of Bacolod cit for the acIuisition of a right of wa
easement over portion of the parcels of land described in the complaint for its 0egros
$ana Interconnection $ro>ect, particularl the Bacolod &amonton &ransmission 8ine!
&he complaints uniforml a allege that petitioner urgentl needs position of the
affected land to enable it to construct its tower and transmission line in a manner
that-s is compatible with the greatest good while at the same time causing the least
private in>ur, the purpose for which the lands are principall developed will not be
in>ured b the transmission lines as it will onl acIuire a right of easement thereon ,
and it had negotiated with the offered to pa defendants for the portion affected b the
Bacolod &amonton &ransmission 8ine, but the parties failed to reach an agreement
despite long and repeated negotiations, and be pra that, among others, that the ;&%
fi3 the provisional value of the portion of the parcels of land sought to be e3propriated
pursuant to #ec!2, ;ule 5= of the ;ules of the %ourt!
"n 7une 2/, 1440, the ;&%, after finding the e3istence of public interest
which ma be serve b the e3propriation, fi3ed the provisional values of the = sub>ect
areas and directed the 0+$"%"; to deposit the amounts with the $0B in escrow of
the benefits of the defendants pending decision on the merits! &he mar#et values
mentioned in the 'rder are the same values appearing in the fax declarations of the
properties and the notices of (ssessment issued by the (ssessor.
In compliance with said "rder! 0+$"%"; deposited the sum of $2@,
1.0,.2.!00 with the $0B!
&wo of the defendants however, filled motions for reconsideration! &he first
one C filled b 7esus, 'ernando, Michael and Ma! %ristina ,on*aga Bthe ,on*aga
'our? C alleged that the provisional value of the propert involved therein has been
set much to low, the reason being that the e3propriation of their areas Fwould render
the remaining portion practicall at a loss considering that the presence of the
transmission lines will pose a danger to the inhabitants in the area as well as destro
the marketabilit of the remaining potion after e3propriation! Moreover, the sub>ect
areas are located near several posh subdivisions! F&he second one C filled b 8ouis
,on*aga, et, al! C sought for a re(evaluation of the areas owned b them as said
areas were contiguous to the ,on*aga 'our and were thus affected b the same
condition!
&he ;&% granted their motion and the 0+$"%";, in compliance, deposited
the additional amount of $22,.55,.50,00 with the $0B!
"n 7ul 1., 1440 the ;&% 7udge <nriIue 7ocson issued another "rder
increasing the amounts to be received as compensation on the part of the ,on*aga
'our, 8ouis ,on*aga and @ other defendants- amounts! 0+$"%"; in a response
filled a complaint of grave abuse of discretion against the said >udge, saing the
increases he ordered are e3cessive and unconscionable! 0evertheless, due to the
urgent need to complete the interconnection pro>ect as soon as possible, 0+$"%";
deposited the order additional amounts! #till despite doing so, 0+$"%"; claimed
the 7udge stubbornl refused to issue the writ of possession!
Did the 7udge act with grave abuse of discretionP
Hel(: Qes! ;easons:
JsM23
1! &he 7udge ignore $!D!0o!A2 B see the info titled F ;ule 5=,;ules of %ourtG,
page 2= of this reviewer?!)e fi3ed the provisional values of the sub>ect properties at
their market values and dail opportunit profits, something which should not be
done! &he values should be fi3ed at an amount eIuivalent to the assessed value for
ta3ation purpose!
2! More importantl, when the 7udge, although erroneousl, fi3ed the
provisional values of the sub>ect propert and 0+$"%"; in turn deposited the said
amounts, the said 7udge last plenar control over the order fi3ing the amount of the
deposit and has no power to annul, amend or modif it matters of substance pending
the course of the condemnation proceedings! &he reason for this is that a contrar
ruling would defeat the ver purpose of the law which is to provide for a speed and
summar procedure whereb the peaceable possession of the propert sub>ect of the
e3propriation proceedings Fma be secured without the delas incident to prolonged
and ve3atious litigation touching the ownership and value of such lands, which should
not be permitted to dela the progress of the work!G
@! &he 7udge also, in effect, gave the defendants the final authorit to
determine >ust compensation when in fact2 the determination of >ust compensation in
e3propriation proceedings is a >udicial function! Moreover, he did not even appoint the
@ commissioners as mandated b #ec! / of ;ule 5= of %ourt in order to ascertain and
report to him the >ust compensation sought to be taken! )e even ruled that the writ of
possession shall be issued onl after the defendants have received the amounts,
which should not be the ease! +ll these show the gross ignore of the 7udge and his
orders and rulings must be reversed!
). Ci,. G'/ern!en, '* MC /. Eri-,a #)2 SCRA 912
Fa-,s: &he Hue*on %it %ouncil passed "rdinance 0o!511. #(4A entitled F
"rdinance regulating the establishment, maintenance and operation of private
memorial tpe cemeter or burial ground within the >urisdiction of H!% and providing
penalties for he violation thereof! F#aid ordinance provides, among others: F#ec!4 !+t
least 5R o f the total area of the memorial park cemeter shall be seta side for a
charit burial of deceased persons who are paupers and have been residents of H!%
for at least / ears prior to their death, to be determined b competent %it
+uthorities! &he area so designated shall immediatel be developed and should be
open for operation not later than 5 months from the date of approval of the
application!G
'or = ears, the ordinance was not enforced b cit authorities, but when the
H!% %ouncil decided to enforce it b passing a resolution to that effect, )imlaang
$ilipino, Inc! responded b filling a petition for declarator relief, prohibition and
mandamus with preliminar in>unction with the %'I in H!% praing that the ordinance
be declared null and void! #aid petition was granted! &he Iuestion now raised is: Is
the said ordinance a valid e3ercise of the police powerP
Hel(: 0o! ;easons:
1! &he %harter of H!% grants H!%! the power to ta3, fi3 the license fee and
regulate such other Business, trade and occupation as ma be established or
practiced in the %it! &he power to regulate however, does not include the power to
prohibit! + portion, the power to regulate does not include the power to confiscate!
&he ordinance not onl confiscates but also prohibits the operation of a memorial park
cemeter because under #ec! 1@ of said ordinance, violation of its provisions is
punishable b fine, imprisonment andKor that the permit to operate and maintain a
private cemeter shall be revoked or cancelled! #ec!4 is not mere police regulation
but an outright confiscation of private propert without due process of law ma, even
without compensation!
2! 6hen the 8ocal ,overnment %ode of 14.@ provided that a #angguniang
$anlungsod ma provide, for the burial of the dead in such manner as prescribed b
law or ordinance it simpl authori*ed the cit to provide its owned cit owned land or
to bu of e3propriate private properties to construct public cemeteries! <3propriation
however, reIuires pament of >ust compensation! &hus, )imlaang $ilipino Inc!
cannot be said to have impliedl acknowledge seIuestration of 5 R of its propert
without >ust compensation when it accepted the permits to operate from the cit
government!
0. Heirs '* 6$an-' Ar('na /.Re.es #)1 SCRA ))#
Fa-,s: &he $hilippine &ourism +uthorit B$&+? filed A complaints with the
%'I of %ebu %it for the e3propriation of some 2.2 hectares of rolling land situated
in Barangas Malubog and Babag, %ebu %it, under $&+-s e3press authorit, as
mandated in its %harter, F to acIuire b purchase, b negotiation or b condemnation
proceedings an private land within and without the tourist *ones F for the
development into integrated resort and sport comple3es of selected and well( defined
geographic areas with potential tourism value!
&he defendants, numbering A0, filed motions to dismiss on the ground that the
taking was not for $ublic use, specificall that the there is no constitutional provision
authori*ing the taking of private propert for tourism purposes! Moreover, the
defendants claimed that the land the own sub>ect of the e3propriation is actuall
covered b certificate of land transfer B%8&? and emancipation patents
&hereb making the lands e3propriated within the coverage of the land
reform area under $!D 0o!2&he defendants argue that the agrarian reform program
occupies a higher level in the order of priorities than other state policies like those
relating to the health and phsical well(being of the people!
Hel( : &he +rdona-s fort-s petition should be dismissed! ;easons:
1! &he concept of public use is not limited to traditional purposes like the
construction of roads, bridges, parks and the like! $ublic use is not use b the public!G
It also mean, public well(fare and such a concept are broad, and inclusive! &he values
it represents are spiritual, as well as phsical, aesthetic as well as monetar! It is
within the power of the legislature to determine that the communit should be
beautiful as well as health, spacious, as well as clean, well balanced as well as
carefull patrolled!
"nce the ob>ect is within the authorit of %ongress, the right to reali*e it through the
e3ercise of <minent Domain is clear! +s a general rule then, as long as the taking is
public, the power of eminent domain comes into pa!
2! &he fact that private concessionaires such as private firms, food outlets,
etc! will lease the sub>ect areas will not diminish the public character of the
e3propriation B In other words, the place is open to anbod for as long as she or he
can pa?!
@! &he records show that the onl 2 of the A0 defendants have %8&-s or
emancipation patents! +nd those %8&-s in their possession covers onl less than 1
hectare of the 2.2 hectares intended fore e3propriation! Moreover, the less(than 10(
hectare portion of land is not even part of the resort and sports comple3 proper but is
JsM24
part of the @2 hectare resettlement are for all persons affected b the e3propriation!
%ertainl, the human settlement needs of the man beneficiaries of the @2 hectare
;esettlement area should prevail over the propert rights of two of their compatriots!
B&his last sentence did not sit well which 7ustice Makasiar and 2 others dissenters
because the two persons who had %8&-s were convenientl ignored?!
5. Ci,. '* Manila /. Cinese C'!!$ni,. 54 Pil. 052
Fa-,s: "n Dec! 11!1415, the %it of Manila presented a petition in the %'I of
Manila praing that for the purpose of constructing a public improvement, namel the
e3tension of ;i*al +venue, Manila, it is necessar for the %it of Manila to acIuire
ownership in fee simple of certain parcels of land situated in the district of Binondo of
said cit within Block .@ of said district! &he proposed e3tension of ;i*al +venue
however will take a part of the %hinese cemeter, a public cemeter at that the
%hinese %ommunit of Manila thus contended that 1? the %it of Manila cannot
appropriate the cemeter or a portion thereof as said cemeter is public propert, onl
private propert ma be e3propriated and 2? there is no necessit for the
improvement as a whole in the first place! Is the %hinese %ommunit correctP
Hel(: &he %hinese communit is correct as to its contention ;easons:
1! 'irst of all, the matter regarding the e3tent of the court-s authorit in
e3propriation cases must settled! +n e3amination of #ec!2A@ in +ct 0o!140 Bthe
predecessor of toda-s ;ule 5= of the ;ules of %ourt? reveals, Fif the %ourt shall find
upon trial that the right to e3propriate the land e3ists, it shall then appoint
commissioners!G &he %it of Manila contends that since e3propriation is e3clusivel a
8egislative function, the authorit of the courts then is limited to determining the
following a whether a law granting the e3propriation e3ists and b? the value of the
land in Iuestion! &his contention is partl meritorious! &here is no Iuestion that the
court has authorit to fi3 the values of the land Iuestion! +s to the authorit of
determining whether a law granting the e3propriation e3ists, a distinction must be
made between a? laws granting special purpose and b? laws grating a general
authorit! If the law in Iuestion grants e3propriation of a particular parcel of land and
for a specific public purpose, then the %ourt-s would he without >urisdiction to inIuire
into the purpose of that legislation, regardless on whether or not the land in Iuestion
is private or public! But if the 8egislature should grant general authorit to a municipal
corporation then to e3propriate private lands, for public purpose, the courts then
would have +uthorit then to make inIuir and to hear proof, upon an issue properl
presented concerning whether "r not the land in Iuestion was private and whether
the purpose was in fact, public! In the instant case, since the %it of Manila was given
a general grant of authorit to e3propriate private lands under its %harter, the %ourt
has authorit to inIuire on whether the e3ercise of such e3propriation b the %it of
Manila is indeed public( in other words, the %ourt ma inIuire into the necessit of
the e3propriation!
2! +s mentioned above public propert ma be e3propriated provided a
special grant of +uthorit for a particular parcel of land was passed b the 8egislature!
&he %it of Manila was not granted such a special authorit! &herefore, the %hinese
%emeter or a portion thereof ma not be e3propriated!
@! It is a3iomatic that the taking of private propert for public use is not
>ustified unless there is a genuine public necessit for the taking! In the present case,
even if granting that a necessit e3ists for &he opening of the street in Iuestion, the
record contain no proof of the necessit of opening the same through the cemeter!
&he records show that ad>oining and ad>acent lands and have been offered to the cit
free of charge, which will answer ever purpose of the cit!
1. Na,i'nal P'&er C'rp'ra,i'n /. CA )15 SCRA 199
Fa-,s: In 14=., 0+$"%"; took possession of a 21,44/ sI! m! land which is
a portion of 8ot 1 "f the subdivision plan B8;%? $sdX115154 situated in Marawi %it,
owned b Macapanton Mangondato, Dnder the mistaken belief that it forms part of
the public land reserved for use b 0+$"%"; of )droelectric power purposes
under $roclamation 0o! 1@/A of the $resident of the $hilippines dated Dec!@, 14=A!
0+$"%"; alleged that the sub>ect land was until then possessed and
administered b Marawi %it so that in e3change for the cit-s waiver and Iuitclaim of
an right over the propert, 0+$+%"; had paid the cit a :financial assistance : of
$A0 sI! m!
In 14=4, when 0+$"%"; started building its +gus 1 B)droelectric plant?
pro>ect, Mangondato demanded compensation from 0+$"%";! 0+$"%"; refused
to compensate insisting that the propert is public land and that it has alread paid
Ffinancial assistance Fto Marawi %it in e3change for the rights over the propert!
Mangondato claimed that the sub>ect land is his dul registered propert
covered b a &%& in his name that he was not priv to agreement between Marawi
%it and 0+$"%"; and that an $ament made to said cit cannot be considered as
pament to him!
More than a decade later, 0+$"%"; acceded to the fact that the propert
belongs to Mangondato! "n +ugust 1A, 1440, 0+$"%";Ss 0ational power Board
Bhereafter $ower Board? passed a resolution resolving to pa Mangondato the base
price of $A0 per sI!m for onl a 12,1@2 sI!m portion "f the sub>ect propert B$
A./,2.0,001? plus 12R interest per annum from 14=. B$54., .0.!00? pending +
determination b 0+$"%";-s regional legal council on whether $100!00 is the fair
market value of $ropert!
$ursuant to the aforementioned resolution, Mangondato paid $1, 1.A!0..!00! "n
Ma 1=, 1441, the power Board passed a resolution resolving to pa Mangondato
$100 per sI!m e3cluding the 12 R interest per annum!
In a letter, Mangondato disagrees with the power board-s new resolution! )e said
that this propert was worth even more than p@00 per sI!m but he was willing to
settle for $@00 per sI!m greed bastard?!
"n Ma 2/,142, 0+$"%"; authori*ed its president to negotiate with Mangondato
for the pament of $100 for the land plus 12 R per annum from 14=. less the
paments alread made 10 Mangodato and to Marawi %it on the portion of his land!
"n 7ul =, 1442, the greed bastard replied b filling a civil case seeking to
recover possession of he propert described in the complaint as 8ot of the subdivision
plan against 0+$"%";, the pament of a $1/, 000 monthl rent until the surrender
of the propert, and the issuance of a &;" and a writ of preliminar mandator
in>unction to restrain 0+$"%"; from proceeding with an construction andKor
improvements on Mangondato-s land or from committing an act of dispossession!
"n 7ul 2=, 1442, 0+$"%"; countered b filling a complaint for eminent
domain against Mangondato! &he lower court then ordered, after dul appointing 2
commissioners, that 0+$"%"; deposit the amount of $10, 44=,/00!00 with the
$0B, provisionall fi3ing the value of the land at $/00 per sI! m!, $100 lower than the
assessed value of the land appearing in its ta3 declaration for 1442 which was $100!
JsM25
In its decision, the lower court denied the recover of possession b
Mangondato but ordered 0+$"%"; to pa the former a monthl rent of $ 1/,000
from 14=. to 1442 with 12 R interest per annum and condemning the propert in
favor of 0+$"%"; effective 7ul 1442 upon pament of $1000 per sI!m! or
$21,44/,000!00 as >ust compensation!
0+$+%"; contested the decision! In its assignment of errors, 0+$"%";
said that the lower court erred in affirming that the >ust compensation for the propert
is its value in 1442, when the complaint was filed, and not its value in 14=., when he
propert was taken b petition, ergo, the court erred in fi3ing the value of >ust
compensation at $1, 000 per sI!m instead of $A0 per sI!m
Hel(: 0+$"%"; is wrong! ;easons:
1! &he general rule in determining >ust compensation in eminent domain is
the value of the propert as of the date of the filling of the complaint #ec!A rule 5=,
;ules of %ourt! 0ormall, the time of taking coincides with the filling of the complaint
for >ust compensation! )owever, if the time of taking does not coincides with the time
of the filling, the rule is that the value of the propert should be computed from the
time the propert as taken into possession from the time he was deprived thereof
while the value itself it-s determined at the time of the filling of the complaint!
2! &he taking for the purpose of determining the value of the propert, is
determined when the following elements concur!
a? &he e3propriator must enter a private propert!
b? &he entrance into private propert must be for more than a momentar
period!
c? &he entr into the propert should be under warrant or color of legal authorit!
d? &he propert must be devoted to a public use or otherwise informall
appropriated or in>uriousl affected!
e? &he utili*ation of the propert for public use must be in such a wa as
to oust the owner and deprive him of all beneficial en>oment of the propert!
In 0+$"%";-s case, element no!@ was not present when 0+$"%"; took
possession of the sub>ect propert in 14=. since 0+$"%"; falsel believed that the
sub>ect propert was public land reserved for its own use under $roclamation 0o!
1@/A! "nl in 1442, when it initiated e3propriation proceedings, did it obtain color of
legal authorit! &he provisional value of the same would then be assessed as of 1442!
3. Pr'/in-e '* Ca!arines S$r /. CA ))) SCRA #90
Fa-,s: "n Dec! 22, 14.., the #angguniang $anlalawigan of the $rovince of
%amarines #ur passed ;esolution 0o!124,#(.., authori*ing, the $rovincial governor
to purchase or e3propriate propert contiguous to the provincial capitol site, in order
to establish a pilot farm for non(food and non( traditional agricultural crops and a
housing pro>ect for provincial government emploees!
$ursuant to the resolution, the $rovince of %amarines #ur, through ,overnor
8uis Villafuerte filed two separate cases of e3propriation against <rnesto and <fren
#an 7oaIuin, with the ;&% of $ill, %amarines #ur! 'orthwith, and the said province
filed a motion for the issuance of the write of possession! &he #an 7oaIuins failed to
appear at the hearing of the motion!
&he #an 7oaIuins filed a motion to dismiss on the ground of inadeIuac of
the price offered for their propert! &he court denied the motion to dismiss and
authori*ed the $rovince to take possession of the said propert upon the deposit with
the %lerk of %ourt of the amount $/, =1A!00, the amount provisionall fi3ed b the trial
court to answer for damages that the #an 7oaIuins ma suffer in the event that the
e3propriation cases do not prosper!
&he trial court ruled in favor of the $rovince! "n appeal, the %+ ruled in favor
of the #an 7oaIuins, stating among others that the trial court suspend the
e3propriation proceedings until after the province shall have submitted toe reIuisite
approval of the Department of +grarian ;eform to convert the classification of the
propert of the private respondents from agricultural to non( agricultural land Bthis is in
deference to the #olicitor ,eneral-s view that the $rovince must first secure the
approval of the Department of +grarian ;eform B D+;? regarding the plan to
e3propriate the lands of the #an 7oaIuins for use as a housing pro>ect!
&he province now defends its e3propriation of the sub>ect lands, claiming its
authorit from #ections A and = of the 8ocal ,overnment %ode of 14.@, and that the
e3propriation was for a public purpose!
Hel(: &he $rovince of %amarines #ur is correct! ;easons:
1! $ublic use now means public advantage, convenience or benefit, which
tends to contribute to the general welfare and the prosperit of the whole communit,
like are sort communit or a housing comple3! In the cage, the e3propriation here is
for public purpose! &he establishment of a pilot center would inure to the direct benefit
and advantage of the people of the $rovince! "nce operational, the center would
make available to the communit invaluable information and technolog on
agriculture, fisher and the cottage industr! Dltimatel, the livelihood of fisherman,
farmers, and craftsmen-s would be enhanced! &he housing pro>ect also satisfies the
public purpose reIuirement of the %onstitution!
2! +s to the issue whether the approval of the D+; Bfor the purpose of
reali*ing the housing pro>ect intent of the e3propriation? is needed before
e3propriation proceedings can continue, the %ourt simpl ruled that the same is not
needed, simpl because the 8:,% of 14.@ nor an other laws does not reIuire the
same!
9. M'(a. /. CA )3< SCRA 1<3
Fa-,s: "n 7ul 2@,, 14.4, the #angguniang Baan of Bumawan in +gusan
del #ur passed ;esolution 0o! A@(.4 authori*ing the Municipal Maor to initiate the
e3propriation of a one B1? hectare portion of 8ot 0o! 51@. C$ls(A along the 0ational
)ighwa owned b $ercival Moda for the site of the Bunawan 'armers %enter and
other ,overnment #ports 'acilities!
#aid ;esolution was approved b then Municipal Maor +nuncio Bustillo and
transmitted to the #angguniang $anlalawigan! &he #angguniang $anlalawigan
however disapproved the resolution on the ground that the Fe3propriation was
unnecessar considering that there are still available lots in Bunawan for the
establishment of government center!G
Dndaunted, the Municipalit of Bunawan nevertheless filed a petition for
<minent Domain against Moda! +fter depositing the necessar amount in
accordance with ;ule 5= of the ;ules of %ourt with the municipal treasurer, the
Municipalit filed a Motion to &ake or <nter Dpon the $ossession of the #ub>ect
Matter!
JsM26
Despite Moda-s opposition and after the hearing of the merits, the ;&%
ruled in favor of the Municipalit, saing that among others, that since the
#angguniang $anlalawigan failed to declare the Municipalit-s resolution as invalid,
the same should be deemed effective! B6ow, the ;&% has 2 different meanings for
Sinvalid- and Sdisapproval-?! +n appeal to the %+ also proved fruitless! In the meantime,
the Municipalit created @ buildings on the sub>ect propert!
Dpon petition b Moda, the #% issued a &;" to prevent the Municipalit
from using the buildings it alread constructed as well as constructing future
buildings! Moda, in his petition to the #%, also adds that since the #angguniang
$anlalawigan disapproved the resolution, the same is void and thus the Municipalit
could not insist in pushing through with the e3propriation!
Hel(: Moda is wrong! ;easons:
1? &he Municipalit-s power to e3ercise the right of eminent domain is not
disputed! #ec! 4 of the 8,)% of 14.@ states, F8,Ds ma, through its head, and
acting pursuant to a resolution of its #anggunian, e3ercise the right of eminent
domain and institute condemnation proceedings for public use or purposeG!
2? + reading of #ec! 1/@, 8,% of 14.@ states, FIf the #angguniang
$anlalawigan B#$? shall find that an municipal ordinance, resolution or e3ecutive
order is beond the power conferred upon the #angguniang baan B#B? or the Maor,
it shall declare such ordinance, resolution or <3ecutive "rder invalid in whole or in
part 333! &he effect of such action shall be to annul the ordinance, resolution or
<3ecutive "rder in Iuestion in whole or in part! &he action of the #$ shall be finalG!
#aid section gives the condition Fif such resolution is beond the power conferred
upon b the #angguniang Baan or Maor 333G! "bviousl, it is well within the power
of the Municipalit to e3ercise the right of eminent domain and thus, the #B has the
capacit to promulgate a resolution pursuant to the e3ercise of such a right! &he #$
therefore, was without authorit to disapprove said resolution!
@! 'inall, Moda claimed the e3propriation against his propert was
motivated b political revenge since he did not support Maor Bustillo-s candidac in
the previous elections! If that were true, then Moda-s petition would have been
meritorious since the taking of private propert for public use must be genuine! &he
#% simpl ruled that there was no evidence to support such claim! Besides, the
records do not show that there was indeed another available propert for the same
purpose!
C@ P'&er '* TaCa,i'n B'ive reIuisites for the e3ercise, publication
reIuirements and public hearing?
Fi/e reG$isi,es *'r ,e eCer-iseH
1! Municipal revenue obtainable b ta3ation shall be derived from such
sources onl as are e3pressl authori*ed b law!
2! &a3ation shall be >ust and uniform in each municipalit!
@! It shall not be in the power of the municipal council to impose ta3 in an
form, whatever upon goods and merchandi*e carried into the
municipalit, or out of the same, and an attempt to impose an import or
e3port ta3 upon such goods in the guise of an unreasonable charge for
wharfage, use of bridges or otherwise, shall be void!
N',e: %ompare this with #ec 1@@ Be? of 8,% 1441, FDnless otherwise provided
herein, the e3ercise of the ta3ing powers of provinces, cities, municipalities and
barangas shall not e3tend to the lev of the following 333 Be? ta3es, fees and charges
and other impositions upon goods carried into or out of, or passing through, the
territorial >urisdictions of 8,Ds in the guise of charges of wharfage, tolls for bridges or
otherwise, or other ta3es, fees or charges in an form whatsoever upon such goods
or merchandise!G
A! In no case shall the collection of municipal ta3es be left to an person!
/! <3cept as allowed b law, municipal funds shall be devoted e3clusivel
to local public purpose!
P$"li-a,i'n ReG$ire!en,sH
1! &wo modes of apprising the public of a new ordinance according to #ec!
A@ 8ocal &a3 %ode Bbased on the +llied &hread v! %it of Manila
case?
a! B means of publication in a newspaper of general circulation,
or
b! B means of posting of copies thereof in the local legislative
hall or premises and 2 other conspicuous places within the
territorial >urisdiction of the local government!
2! $ublication of &a3 "rdinances and ;evenue Measures B#ec! 1.., 8,%
of 1441?
@! 6ithin 10 das after their approval, certified true copies of all provincial,
cit and municipal ordinances of revenue measures shall be
published in full for @ consecutive das in a newspaper of local
circulation! $rovided, however, that in provinces, cities and
municipalities where there are no newspapers of local
circulation, the same ma be posted in at least 2 conspicuous
and accessible places!
P$"li- Hearin7H
#. Pr'-e($re *'r Appr'/al an( E**e-,i/i,. '* TaC Or(inan-es an(
re/en$e Meas$resE Man(a,'r. P$"li- Hearin7s ?se- #<98 LGC '* #22#@
( &he procedure for the approval of local ta3 ordinances and revenue
measures shall be in accordance with the provisions of this %ode: $rovided that an
Iuestion on the constitutionalit or legalit of ta3 ordinances or revenue measures
ma be raised on appeal within @0 das from the effectivit thereof to the #ecretar of
7ustice who shall render a decision within 50 das from the date of the receipt of the
appeal! $rovided, however, that such appeal do not have the effect of suspending the
effectivit of ordinance and the accrual and pament of the ta3, fee or charge therein!
$rovided, finall, that within @0 das after the receipt of the decision or the lapse of
the 50(da period without the #ecretar of 7ustice acting upon the appeal, the
aggrieved part ma file appropriate proceedings with a court of competent
>urisdiction!
2! $ower to 8ev "ther &a3es, 'ees and %harges B #ec! 1.5, 8,% of
1441?
8ocal governments ma e3ercise the power to lev ta3es, fees or charges on
an base or sub>ect not otherwise enumerated herein or ta3ed under the provisions of
JsM27
the 0ational Internal ;evenue %ode B08;%?, as amended, or other applicable laws!
$rovided, that the ta3es, fees or charges shall not be un>ust, e3cessive, confiscator
or contrar to declared national polic2 $rovided further, that the ordinance leving
such ta3es, fees or charges shall not be enacted without an prior public hearing
conducted for the purpose!
#.a Allie( Trea( C'. /. Ci,. Ma.'r '* Manila #00 SCRA 00<
Fa-,s: +llied &hread %o is engaged in the business of manufacturing of
sewing thread and arn under dul registered trademark and labels! It operates its
factories and maintains an office in $asig, ;i*al! In order to sell its products in Manila
and other parts of the $hilippines, +llied &hread %o engaged the services of a sales
broker, 1er and %ompan 8td, the latter deriving commission for ever sale made for
its principal!
"n 7une 12, 14=A, the Municipal Board of the %it of Manila enacted
"rdinance 0o! =/15 imposing on manufacturers, importer, porters or producers,
doing business in the cit of Manila, business ta3es based on gross sales recorded
on a graduated basis! + s used b the "rdinance, Fgraduated basisG meant that F50R
of all sales recorded in the principal offices of all businesses are located in the %it of
Manila, the same shall be ta3able as well b said %it! +s for the branches of
businesses, all sales recorded b it shall be ta3able b the %it of Manila provided
the are also located in the said %it!G
&he Maor of Manila approved said "rdinance on 7une 1/, 14=A! In less
than two months, however, the ordinance underwent a series of amendments! &he
last amendment was approved b the Maor on 7ul 24, 24=A!
)aving affected b the aforementioned "rdinance, being manufacturers and
sales brokers, +llied &hread %o filed a petition for declarator relief contending that
"rdinance =/15 is not valid or enforceable as the same is contrar to #ec /2 of $D
A25, as clarified b 8ocal &a3 ;egulation 0o 1(=1! &o Iuote said ;egulation: F+ local
ta3 ordinance shall go into effect on the 1/
th
da after approved b the local chief
e3ecutive in accordance with #ec A1 of the %ode! In view hereof and considering the
provisions of +rt /A of the %ode regarding the accrual of ta3es a local ta3 ordinance
intended to take effect on 7ul 1, 14=A should be enacted b the local chief e3ecutive
not later than 7une 1/, 14=A!G "therwise stated, +llied &hread %o asserts that due to
the series of amendments in the "rdinance =/15, the same "rdinance fell short of
the deadline set forth b #ec /A of $D A25 that Ffor an ordinance intended to take
effect on 7ul 1, 14=A, it must be enacted on or before 7une 1/, 14/A!G +s mentioned
earlier, the last amendment of the ordinance was approved on 7ul 24, 14=A!
+llied &hread also contended that the Iuestioned "rdinance did not compl
with the necessar publication reIuirement in a newspaper of general circulation as
mandated b #ecA@ of the 8ocal &a3 %ode! Moreover, +llied &hread claimed that it
should not be covered b the said "rdinance as amended2 because it does not
operate or maintain a branch office in Manila and that its principal office and factor
are located in $asig, ;i*al!
Hel(: +llied &hread is wrong! ;easons:
1! "rdinance 0o =/15 was approved b the %it Maor in 7une 1/, 14=A!
&herefore, he made the deadline Bbarel?! &he subseIuent amendments did not in
an wa invalidate nor move the date of its effectivit! &o hold otherwise would limit
the power of the defunct Municipal Board of Manila to amend an e3isting ordinance
as e3igencies reIuire!
2! &he %ourt is persuaded that there was substantial compliance of the law
on publication! &he %it of Manila complied with the second mode of notice!
@! +llied &hread does its business through its agent, 1er and %ompan! &he
power to lev an e3cise ta3 upon the performance of an act or the engaging of an
occupation does not depend on the domicile of the person sub>ect to the e3cise nor
upon the phsical location of the propert and in connection with the act or occupation
ta3ed but depend upon the place in which the act is performed or occupation
engaged in C in this case, upon the place where the respected sales transactions is
perfected and consummated!
#." Re.es /. CA 0)4 SCRA 5<3
Fa-,s: &he #angguniang Baan of #an 7uan, Metro Manila implemented /
ta3 ordinances! +ntonio ;ees and 2 others Bthe ;ees &hree? filed an appeal with
the Department of 7ustice alleging the constitutionalit of these ta3 ordinances
allegedl because the were promulgated without previous public hearings thereb
constituting deprivation of propert without due process of law! #ecretar of 7ustice
'ranklin Drilon however, dismissed the appeal for being filed out of time since the last
of the / ordinances took effect on "ct 24, 2442 while the ;ees &hree filed their
appeal onl on Ma 21, 144@, wa past the @0(da period from the effectivit thereof
for appeal as allowed b #ec 1.= of the 8,% of 144@! &he %+ also ruled in favor of
'ranklin Drilon!
Dndaunted, the ;ees &hree, in a petition for review with the #%, claim that
notwithstanding the @0(da period imposed b the law for appeal, an ordinance
enacted without the reIuisite of public hearing is unconstitutional and thus void from
the beginning B in other words, an action to declare anthing unconstitutional does not
prescribe since it is reduction as absurdum?! +lso the ;ees &hree ask if
constitutionalit of #ec! 1.= can be raised for the first time on appeal! Bsee S$ublic
)earing- of this reviewer?!
Hel(: &he ;ees &hree are wrong: ;easons:
1! &here is a reason wh protests over ta3 ordinances are reIuired to be
done within certain time frames! + municipal ta3 ordinance empowers an 8,D to
impose ta3es! &he power to ta3 is one of the most effective instruments to raise
needed revenues to finance and support the mriad activities of 8,Ds for the deliver
of basic services essential to the promotion of the general welfare and enhancement
of peace, progress and prosperit of the people! %onseIuentl, an dela in ta3
measures would be to the detriment of the public!
2! 6hile it is true that the public hearings are reIuired to be conducted prior
to the enactment of a ta3 ordinance, the ;ees &hree did not show an proof that the
#angguniang Baan of #an 7uan failed to conduct the reIuired public hearings! &he
reason is that the lack of a public hearing is a negative allegation essential to a
petitioner cause of action! )ence, as the ;ees &hree are the ones asserting the lack
of a public hearing, the have the burden of proof! #ince the ;ees &hree failed to
rebut the presumption of validit in favor of the sub>ect ordinances and to discharge
the burden of proving that no public hearings were conducted prior to the enacted
thereof, the %ourt is constrained to uphold their constitutionalit or legalit! &his is true
despite the fact that the #anggunian has the control of records or the better means of
JsM28
proof regarding the alleged, and the ;ees &hree are not relieved from the burden of
proving their averments!
@! "n the validit of #ec! 1.= of 8,% of 1441, the %ourt stresses that the
constitutionalit of an act of %ongress will not be passed upon b the %ourt unless at
the first opportunit that Iuestion is properl raised and presented in an appropriate
case, and is necessar for the determination of the case, particularl where the issue
of constitutionalit is the ver lis mota presented! &he constitutionalit of a statutor
provision should not be entertained b the %ourt where it was not specificall raised
below, insisted upon and adeIuatel argued! &he %ourt finds no real necessit in
tackling the constitutionalit of #ec! 1.= of 8,% of 1441!
). Li!i,a,i'ns 'n !$ni-ipal ,aCin7 p'&er
T #ec! 1@@, 8,% of 1441! %ommon 8imitations on the &a3ing $ower of
8,Ds! Dnless otherwise provided herein, the e3ercise of the ta3ing powers of
provinces, cities, municipalities, and barangas shall not e3tend to the lev of the
following:
a! Income ta3, e3cept when levied on banks and other financial institutions
b! Documentar stamp ta3
c! &a3es on estates, inheritance, gifts, legacies and other acIuisitions mortis
causa, e3cept as otherwise provided therein
d! %ustoms duties, registration of fees of vehicles and wharfages on
wharves, tonnage dues and all other kinds of custom fees, charges and dues e3cept
wharfage of wharves constructed and maintained b the 8,D concerned!
e! &a3es, fees, and charges and other impositions upon goods carried into,
or out of, or passing through the territorial >urisdictions of 8,Ds in the guise of
charges for wharfage, tolls for bridges ort otherwise, or other ta3es, fees in an form
whatsoever upon such goods and merchandise
f! &a3es, fees or charges on agricultural and aIuatic products when sold b
marginal farmers or fishermen
g! &a3es on business enterprises certified b the B"I as pioneer or non(
pioneer for a period of 5 or A ears, respectivel from the date of the registration!
h! <3cise ta3es on articles enumerated under the 0I;%, as amended, and
ta3es, fees or charges on petroleum products!
i! $ercentage on V+& sales, barters or e3changes or similar transactions on
goods and services e3cept as otherwise provided herein
>! &a3 on gross receipts of transportation contractors and persons engaged in
the transportation of passengers or freight b hire and common carriers b air, land or
water, e3cept as provided in this %ode
k! &a3es paid on premiums b wa of reinsurance or retrocession
l! &a3es, fees or charges for the registration of motor vehicles and for the
issuance of all kinds of licenses or permits for the driving thereof, e3cept triccles!
m! &a3es, fees or other charges actuall e3ported, e3cept as otherwise
provided herein
n! &a3es, fees or charges on %ountrside and Baranga Business <nterprise
and %ooperatives dul registered under ;!+! 51.0 and ;!+! 54@. otherwise known as
the %ooperative %ode of the $hilippines respectivel
o! &a3es, fees or charges of an kind on the 0ational ,overnment, its
agencies and instrumentalities, and 8,Ds
KTe Basi- R$le '* M$ni-ipal TaCin7 P'&er
Dnder the now prevailing %onstitution, where there is neither a grant nor a
prohibition b statute, the ta3 power must be deemed to e3ist although %ongress ma
provide statutor limitations and guidelines! &he basic rationale for the current rule is
to safeguard the viabilit and self(sufficienc of local government units b directl
granting them general and broad ta3 powers! 0evertheless, the fundamental law did
not intend the delegation to be absolute and unconditional2 the constitutional ob>ective
obviousl is to ensure that, while the local government units are being strengthened
and made more autonomous, the legislature must still see to it that a? the ta3paer
will not be overburdened or saddled with multiple and unreasonable impositions2 b?
each local government unit will have its fair share of available resources2 c? the
resources of the national government will not be undul disturbed2 and d? local
ta3ation will be fair, uniform, and >ust BM<;+8%" v! $rovince of 8aguna?
).a Pepsi C'la B',,lin7 C'. /. Ci,. '* B$,$an )5 SCRA 9<2
Fa-,s: $epsi %ola seeks to recover the ta3es paid b it to the %it of
Butuan and collected b the letter! $ursuant to its Municipal "rdinance 0o! 110, as
amended b Municipal "rdinance 0o! 122, both series of 1450, which $epsi assail as
null and void and to prevent the enforcement thereof!
$epsi maintains that the disputed ordinance is null and void because B1? it
partakes of the nature of an important ta32 B2? it amounts to double ta3ation2 B@? it is
e3cessive, oppressive and confiscator2 BA? it is highl un>ust and discriminator2 and
B/? section 2 of ;epublic +ct 0o! 225A, upon the authorit of which it was enacted, is
an unconstitutional delegation of legislative powers! #aid "rdinance, as amended,
imposes as a ta3 on an person, association, etc!, of $0!10 per case of 2A bottles of
$epsi(%ola and $epsi paid under protest the amount of $A,425!5@ from +ugust 15 to
December @1, 1450 and the amount of $4,2/0!A0 from 7anuar 1 to 7ul @0, 1451!
Hel(: $epsi-s contentions are partl tenable! ;easons:
(1) &he #econd and last ob>ections are manifestl devoid of merit! Indeed,
independentl of whether or not the ta3 in Iuestion, when considered in relation to the
sales ta3 prescribed b +cts of %ongress, amounts to double ta3ation, on which the
%ourt need not and does not e3press an opinion(double ta3ation, in general, is not
forbidden b the %onstitution! &he $hilippines has not adopted, as part thereof, the
in>unction against double ta3ation found in the %onstitution of the Dnited #tates!
&hen, again, the general principle against , delegation of legislative powers, in
conseIuence of the theor of separation of powers is sub>ect to one well(established
e3ception, namel2 legislative powers ma be delegated to local government to which
said theor does not appl in respect of matters of local concern!
(2) &he third ob>ection is, likewise, untenable! &he ta3 of F$0!10 per case of
2A bottles,G of soft drinks of carbonated drinks in the production and sale of which
plaintiff is engaged or less than $0!00A2 per bottle is manifestl too small to be
e3cessive, oppressive, or confiscator!
(3) &he first and the fourth ob>ection merit, however, serious consideration!
+s amended b "rdinance no! 122, the ta3 is imposed onl upon Gan agent andKor
consignee of an person, association, partnership, compan or corporation engaged
in sellingN soft drinks or carbonated drinks!G +s defined in section @(+ of "rdinance
JsM29
no! 122, a consignee of agent shall mean an person, association, partnership,
compan or corporation who acts in the place of another b authorit from him or one
entrusted with the business of another or to whom is consigned or shipped no less
than 1,000 cases of hard liIuors or soft drinks ever month for resale, either retail or
wholesale!G
+s a conseIuence, merchants engaged in the sale of soft drinks of
carbonated drinks, are not sub>ected to the ta3, unless the are agents andKor
consignee of another dealer, who, in the ver nature of things, must be one engaged
in the business outside the %it! &he intention to limit the application of the ordinance
to soft drinks and carbonated drinks brought into cit from outside thereof becomes
apparent! Viewed from this angle, the ta3 partakes of the nature of an import dut,
which is beond defendant-s authorit to impose b e3press provision of law!
&he ta3 in Iuestion would still be invalid, as discriminator, and hence,
violative of the uniformit reIuired b the %onstitution and the law thereof, since onl
sales b Fagents of consigneeG of outside dealers would be sub>ect to ta3! #ales b
local dealers, not acting for or on behalf of other merchants, regardless of the volume
of their sales, and even if the same e3ceeded those made b said agents or
consignee of producers or merchants established outside the %it of Butuan, would
be e3empt from the disputed ta3!
). " Pr'/in-e '* B$la-an /. CA )22 SCRA 55)
Fa-,s: on 7une 25, 1442, the #angguniang $anlalawigan of Bulacan
passed $rovincial "rdinance 0o! @, known as Fan "rdinance <nacting the ;evenue
%ode of the Bulacan $rovince!G 6hich was to take effect on 7ul 1, 1442! #ection 21
of the ordinance provides as follows: #ec! 21! Imposition of &a3! &here is hereb
levied and collected a ta3 of 10R of the fair market value in the localit per cubic
meter of ordinar stones, sand, gravel, earth and other Iuarr resources, such! But
not limited to marble, granite, volcanic cinders, basalt, tuff and rock phosphate!
<3tracted from public lands or from bed of seas, lakes, rivers, streams, creeks and
other public waters within its territorial >urisdiction!G
$ursuant thereto, the $rovincial &reasurer of Bulacan, in a letter dated
0ovember 11, 144@, assessed private respondent ;epublic %ement corporation
Bhereafter ;epublic %ement? "2,/2A,542!1@ for e3tracting limestone, shale and silica
from several parcels of private land in the province during the third Iuarter of 1442
until the second Iuarter of 144@! Believing that the province, on the basis of above(
said ordinance, had no authorit to impose ta3es o Iuarr resources e3tracted from
private lands, ;epublic %ement formall contested the same on December 2@, 144@!
&he same was however, denied b the $rovincial &reasurer on 7anuar 1=, 144A!
;epublic %ement conseIuentl filed a petition for declarator relief with the ;egional
&rial %ourt of Bulacan on 'ebruar 1A, 144A! &he province filed a motion to dismiss
;epublic %ement-s petition, which was granted b the trial court on Ma 1@, 144@,
which ruled that declarator relief was improper, allegedl because a breach of the
ordinance had been committed b ;epublic %ement!
"n 7ul 11, 144A, ;epublic %ement filed a petition for certiorari with the
#upreme %ourt seeking to reverse the trial court-s dismissal of their petition! &he
%ourt, in a resolution dated 7ul 2=, 144A, referred the same to the %ourt of +ppeals!
In the interim, the $rovince of Bulacan issued a warrant of lev against
;epublic %ement, allegedl because of its unpaid ta3 liabilities! 0egotiations between
;epublic %ement and the province resulted in an agreement and modus vivendi on
December 12, 144A, whereb ;epublic %ement +greed to pa under protest
$1,252,@5A!00, /0R of the ta3 assessed b petitioner, in e3change for the lifting of
the warrant of lev! 'urthermore, ;epublic %ement and the $rovince +greed to limit
the issue for resolution b the %ourt of +ppeals to the Iuestion as to whether or not
the provincial government could pursuant to #ection 21of $rovincial "rdinance 0o! @!
&he %+ ruled that the $rovince had no authorit to issue "rdinance 0o! @,
hence this appeals to the #%!
Hel(: &he decision of the %+ must be sustained! ;easons:
(1) "rdinance 0o! @ is based on #ec! 1/. of the 8,% of 1441
which states: F&he province ma lev and collect not more than ten percent B10R? of
fair market value in the localit per cubic meter of ordinar stones, sand, gravel, earth
and other Iuarr resources, as defined under the 0ational Internal ;evenue %ode, as
amended, e3tracted from private lands! 0eed we sa moreP
(2) It is true that under #ec! 1@@ Bh?, the e3ercise of the ta3ing
powers of provinces, cities, municipalities and barangas shall not e3tend to the lev
of e3ercise ta3es on articles enumerated under the 0ational Internal ;evenue %ode
B0I;%?! #ection 1/1 of the 0I;%, b the wa levies e3cise ta3es on all Iuarr
resources, regardless of origin, whether e3tracted from public or private land! &hus an
8,D ma not ordinaril impose ta3es on stones, sand, earth and other Iuarr
resources, as the same are alread ta3ed under the 0ational Internal ;evenue %ode,
)owever an 8,D can still impose a ta3 on stones, sand, gravel, earth and other
Iuarr resources e3tracted from public land because it is e3pressl empowered to do
so under the 8,D! But again it onl sas F$ublicG &he $rovince of Bulacan cannot ta3
;epublic %ement because it-s e3tracting minerals from FprivateG lands! Don-t forget,
public versus private!
0. O,er Ill$s,ra,i/e CasesH
0. a Bas-' /. PAGCOR #29 SCRA 1)
Fa-,s: +tt! )umberto Basco, the %hairman on the committee of 8aws of
the %it %ouncil of Manila, and @ other lawers, Bthe Basco 'our? filed a petition
seeking to annul the $hil! +musement and ,aming %orporation B$+,%";? because
among others! 1? It waived the Manila %it government-s right to impose ta3es and
license fees, which is recogni*ed b law and 2? for the same reason stated in the
immediatel preceding paragraph, the law has intruded into the local government-s
right to impose local ta3es and license fees in contravention of the constitutionall
enshrined principle of the local autonom!
Hel(: &he Basco four contentions are all unmeritorious ;easons:
1? +n petitioner assailing the constitionalit of the law must reali*e that
said law is armed with the presumption of constitionalit! 6ith this in mind, the
petitioner has the burden of proof to show that the law he wishes to assail is
unconstitutional!
2? &he Basco 'our assailed #ec! 1@ par! 2 of $!D 1.54 which states that
8,Ds cannot impose on $+,%"; ta3es on an kind Be3cept for the /R franchise
ta3? #aid provision, the claim is a violation of local autonom it waives the %it of
Manilas right to impose ta3es and license fees! &he court answered that!
JsM30
a? &he %it of Manila being a Mere municipal corporation has no
inherent right to impose ta3es! &hus, the %harter or statute must
plainl show am intent to confer that power or the municipalit cannot
assume it! Its power to ta3 therefore must alwas ield to a legislative
act which is superior having been passed upon b the state itself
which has the inherent power to ta3!
b? &he charter of the %it of Manila is sub>ect to control b congress! It
should be stressed that Fmunicipal corporation are mere creatures of
%ongressG which has the power to Fcreate and abolish municipal
corporationG due to its legislative powersG %ongress, therefore, has
the power of control over 8ocal! +nd if %ongress can grant the %it of
Manila the power to ta3 certain matters, it can also provide for
e3emption or even take back the power!
c? &he %it of Manila-s power to impose licenses fees on gambling has
long been revoked! +s earl as 14=/, the power of local government
to regulate gambling thru the grant of Ffranchise, licenses or permitsG
was withdrawn b $!D! 0o! ==1 and was vested e3clusivel on the
0ational ,overnment!
$+,%"; is a government owned or controlled corporation with an original
charter, $D 1.54! +ll its stocks are owned b the 0ational ,overnment: it has dual
role, to operate and to regulate gambling casinos! &he latter role is governmental,
which places it in the categor of an agenc or instrumentalit of the ,overnment!
Being an instrumentalit of the ,overnment, $+,%"; should be and actuall is
e3empt from local ta3es! "therwise, its operation might be burdened, impeded or
sub>ected to control b a mere 8ocal ,overnment!
B@? &he states have no power b ta3ation or otherwise, to retard,
impede, burden or in an manner control the operation of constitutional laws enacted
b %ongress to carr into e3ecution the powers vested in the federal government!
&his doctrine emanates from the FsupremacG of the 0ational ,overnment over local
governments! "therwise, mere creatures of the state can defeat 0ational policies thru
e3termination of what local authorities ma perceive to be undesirable activities or
enterprise using the power to ta3 as Fa tool for regulation!G
BA? &he Basco 'our cannot also invoke +rticle M, sec / of the 14.=
%onstitution which sas, F<ach local government unit shall have the power to create
its own source of revenue and to lev ta3es, fees, and other charges sub>ect to such
guidelines and limitation as the congress ma provide, consistent with the basic polic
on local autonom! #uch ta3es, fees and charges shall e3clusivel to the local
government!G &he power of local government to Fimpose ta3es and feesG is alwas
sub>ect to FlimitationsG which %ongress ma provide b law!
0. " Ma-,an Ce"$ In,Nl Airp'r, /. Mar-'s
Fa-,s: Mactan %ebu International +irport +uthorit BM%I++? was created
b virtue of ;epublic +ct 0o! 54/. mandated to Fprincipall undertake to economical,
efficient and effective control, management and supervision of the Mactan
International +irport in the province of %ebu and the 8ahug +irport in %ebu %it,N and
such other +irports as ma be established in the province of %ebu! It is also
mandated to a? encourage, promote and develop international and domestic air traffic
in the %entral Visaas and Mindanao regions as a means of making the regions
centers of international trade and tourism, and accelerating the development of the
means of transportation and communication in the countr2 and b? upgrade the
service and facilities of the airports and to formulate internationall acceptable
standards of accommodation and service!
#ince the time of its creation, petitioner M%I++ en>oed the privilege of
e3emption from pament of realt ta3es imposed b the 0ational ,overnment or an
of its political subdivisions, agencies and instrumentalities in accordance with #ection
1A of its charter!
)owever, on "ct! 11, 144A, the cit of %ebu claimed started demanding
pament on parcels of land belonging to M%I++! &he cit of %ebu claimed that
M%I++ cannot rel on #ec! 1A of its charter because( as M%I++ is a ,"%%( its ta3
e3emption privilege has been withdrawn b #ections 14@ and 2@A of the 8,% as
follows2 F#ec! 14@! 6ithdrawal of &a3 <3emption $rivilege! Dnless otherwise provided
in this code, ta3 e3emptions or incentive granted to, or presentl en>oed b all
persons whether natural or >uridical, including government(owned or controlled
corporations, e3cept local water districts, cooperatives dul registered under ;+ 0o!
54@., non(stock, and non(profit hospitals and educational institutions, are hereb
withdrawn upon the effectivit of this %ode 3 3 3 #ec! 2@A!
<3emptions from ;eal $ropert ta3es! 3 3 3 e3cept as provided herein, an
e3emption from pament of real propert ta3 previousl granted to, or presentl
en>oed b all persons, whether natural or >uridical, including government C owned or
controlled corporation, are herb withdrawn upon the effectivit of this code!
'or its defense, M%I++ relies on #ec! 1@@ Bo? of the 8,% which sas Funless
otherwise provided herein Bin this %ode?, the e3ercise of the ta3ing powers of
provinces, cities, municipalities, and barangas shall not e3tend to the lev of the
following 3 3 3 Bo? &a3es, fees or charges of an kind on the 0ational ,overnment, its
agencies and instrumentalities, and 8,Ds! M%I++ relies on the ruling of Basco v!
$+,%";, which stated that local governments have no power to ta3 instrumentalities
of the 0ational ,overnment and that $+,%";, it is performing both proprietar and
government functions! M%I++ claims that like $+,%";, it is performing a
governmental function as well Bread the first paragraph above again?, thus, it should
be e3empt from ta3ation b the %it of %ebu!
Hel(: M%I++ is wrong! ;easons:
1? Basco v! $+,%"; was decided before the enactment of the 8,% of
1441! It thus finds no application in this case because the arguments here rel heavil
on said 8,%!
2? &hen there is the curious #ec 2@A which states, F<3emptions from ;eal
$ropert &a3! &he following are e3empted from pament of the real propert ta3: a?
;eal propert owned b the ;epublic of the $hilippines or an of its political
subdivisions e3cept when the beneficial use thereof had been granted, for
reconsideration or otherwise, to a ta3able person 3 3 3 e3cept as provided herein, an
e3emption from pament of real propert ta3 previousl granted to, or presentl
en>oed b all persons, whether natural or >uridical, including government(owned or
controlled corporations, are hereb withdrawn upon the effectivit of this code! F%an
M%I++ claim that is parcels of land are basicall owned b the ;epublic of the
$hilippines in %ebu thus lands are e3empt from real propert ta3P &he court
answered no, because under M%I++-s charter, all lands owned b e3isting airports
JsM31
belonging to the ;epublic of the $hilippines in %ebu are transferred to the M%I++,
meaning, there was an absolute conveance of ownership to M%I++! &he ;epublic of
the $hilippines is no longer the owner of the lands in Iuestion, thus M%I++ is not
spared from real propert ta3es!
@? 6hile M%I++ is correct in invoking #ec 1@@ Bo? above which disallows
8,Ds to ta3 the 0ational ,overnment, its agencies and instrumentalities, and 8,Ds,
#ec 1@@ Bo? is also Iualified b the phrase, Funless otherwise provided herein!G Bin this
code?! &he ta3 imposed upon M%I++ concerns real propert ta3es! &hus M%I++ is
also sub>ect to #ec 2@A and for reasons mentioned in no!2?! M%I++ is not spared
from propert ta3es!
A? &he ultimate fact remains that #ec 14@ of the 8,% of 1441 has repealed
the ta3 e3emption privilege en>oed b M%I++ as stated in #ec! 1A of its charter! &his
polic is consistent with the #tate-s polic to ensure genuine and meaningful
autonom to 8,Ds!
NOTE: the F;epublic of the $hilippinesG is not the same as F0ational ,overnmentG
B6owY?! &o better understand this situation, let-s have a rundown of some boring
definitions:
a? ;epublic of the $hilippines C snonmous with F,overnment of
the ;epublic of the $hilippinesG2 the corporate government
entit through which the function of government are e3ercised
throughout the $hilippines, including, save as the contrar
appears from the conte3t, the various arms through which
political authorit is made effective in the $hilippines, whether
pertaining to the autonomous regions, the provincial cit,
municipal or baranga subdivisions or other forms of local
government!
b? 0ational ,overnment C the entire machiner of the central
government Be3ecutive, legislative and >uridical? as opposed to
the forms of local governments!
c? +genc C an of the various units of the ,overnment, including
a department, bureau, office instrumentalit, or ,"%% or a
local government or a distinct unit therein
d? Instrumentalit C an agenc of the 0ational ,overnment, not
integrated within the department framework, vested with
special functions or >urisdiction b law, endowed with some if
not all corporate powers, administering special funds, and
en>oing operational autonom2 usuall though a charter e!g!
regulator agencies, chartered institutions and ,"%%s
0. - MERALCO / Pr'/in-e '* La7$na 043 SCRA 914
Fa-,s: "n various dates! %ertain municipalities of the $rovince of 8aguna,
including, BiZan, #ta! ;osa, #an $edro, 8uisiana, %anluan and %abuao, b virtue of
e3isting laws then effect, issued resolution through their respective municipal councils
granting franchise in favor of petitioner Manila <lectric %ompan BFM<;+8%"G? for
the suppl of electric light, heat and power within their concerned areas! "n 14
7anuar 14.@, M<;+8%" was likewise granted a franchise b the 0ational
<lectrification +dministration to operate an electric light and power service in the
Municipalit of %alamba, 8aguna!
"n 12 #eptember 1441, ;epublic +ct 0o! =150, otherwise known as the
F8ocal ,overnment, %ode of 1441,G was enacted to take effect on 01 7anuar 1442,
en>oing local government units e3pressed therein own sources of revenue and to
lev ta3es, fees and charges, sub>ect to the limitations e3pressed therein, consistent
with the basic polic of local autonom! $ursuant to the provisions of the %ode,
respondent province enacted 8aguna $rovincial "rdinance 0o! 01(42, effective 01
7anuar 144@, imposing a ta3 on business en>oing a franchise!
"n the basis of the above ordinance, respondent $rovincial &reasurer sent a
demand letter to M<;+8%" for the corresponding ta3 pament! M<;+8%", however,
contented that the imposition of a franchise ta3 under #ection 2!04 of 8aguna
$rovincial "rdinance 0o! 01(42, insofar as it concerned M<;+8%", contravened the
provisions of #ection 1 of $!D! //1 which read: F+n provision of law or local
ordinance to the contrar notwithstanding, the franchise ta3 paable b all grantees of
franchises to generate, distribute and sell electric current for light, heat and power
shall be two per cent B2R? of their gross receipt received from the sale of electric
current and from transactions incident to the generation, distribution and sale of
electric current! #uch franchise ta3 3 3 3 shall an provision of the 8ocal &a3 %ode or
an other law to the contrar notwithstanding, be in lieu of all ta3es and assessments
of whatever nature imposed b an national or local authorit on earnings, receipt,
income and privilege of generation, distribution and sale of electric current! B0ote the
italici*ed sentence?
M<;+8%" now contents that 1? the phrase Fshall be in lieu of all ta3es 3 3 3
in sec 1 of $!D! //1 prevents the province of 8aguna from imposing franchise ta3es
on it 2? whether the ordinance is violative of the non(impairment clause and @?
whether the 8,% of 1441 has repealed, modified or amended $!D! //1!
Hel(: +ll contentions b M<;+8%" are incorrect! ;easons:
1? Indicative of the legislative intent to carr out the %onstitutional
mandate of vesting broad ta3 powers to local government units, the 8ocal
,overnment %ode has effectivel withdrawn under #ection 14@ thereof, ta3
e3emptions or incentives therefore en>oed b certain entities! &his is also supported
b #ection 1@= which states, F0otwithstanding an e3emption granted b an law or
other special law, the province ma impose a ta3 on business en>oing a franchise 3 3
3 and also b #ec! /@A, the repealing clause, which declares! F+ll general and special
laws, acts, cit charters, decrees, e3ecutive orders, proclamation and administrative
regulation, or part or parts thereof which are inconsistent with an of the provisions of
this %ode are hereb repealed or modified accordingl!G
2? In the recent case of the %it ,overnment of #an $ablo, etc!,
et al! vs! )on! Beinvenido V! ;ees, et! +l!, the %ourt has held the phrase Fin lieu of all
ta3esG has to give wa to the peremptor language of the 8ocal ,overnment %ode
specificall providing for the withdrawal of such e3emptions, privileged, and that
Fupon the effectivit of the 8ocal ,overnment %ode all e3emptions e3cept onl as
provided therein can no longer be invoked b M<;+8%" to disclaim liabilit for the
local ta3!G
@? 6hile the court has, not too infreIuentl, referred to ta3
e3emptions contained in special franchises as being in the nature of contracts and a
part of the inducement for carring on the franchise, these e3emptions, nevertheless,
are far from being strictl contractual in nature! %ontractual ta3 e3emptions, in the real
sense of the term and where the non(impairment clause of the %onstitution can
JsM32
rightl, be invoked, are those agreed to b the ta3ing authorit in contracts, such as
those contained in special government bonds or debentures, lawfull entered into b
them under enabling laws in which the government, acting in its private capacit,
sheds its cloak of authorit and waives its governmental immunit! &rul, ta3
e3emptions of this kind ma not be revoked without impairing the obligations of
contracts! &hese contractual ta3 e3emptions, however, are not to be confused with
ta3 e3emptions granted under franchise! + franchise partakes the nature of a grant
which is beond the purview of the non(impairment clause of the %onstitution! Indeed,
+rticle MII, section 11, of the 14.= %onstitution, like its precursor provisions in the
14@/ and the 14=@ %onstitutions, is e3plicit that no franchise for the operation of a
public utilit shall be granted e3cept under the condition that such privilege shall be
sub>ect to amended, alternation or repeal b %ongress as and when the common
good so reIuires!
0. ( M$ni-ipali,. '* San Fernan(' /. S,a. R'!ana #52 SCRA )9
Fa-,s: &he Municipalit of #an 'ernando, 8a Dnion which was undertaking
a cement road construction around its #upermarket and other municipal pro>ects,
needed sufficient gravel and sand from their source, the Municipalit of 8una, 8a
Dnion but its trucks sent to the latter municipalit to haul said road construction
materials were allegedl charged unreasonable fees per truck load!
#aid fees charged b 8una were based on #ection 1 of "rdinance 0o! 1
enacted b it which reads, F&here shall be collected from an person, partnership or
corporation engaged in an business, occupation or calling or en>oing an privilege
hereunder enumerated the following municipal license andKor fees 3 3 3 F
"n March 1., 145., the Municipalit of #an 'ernando represent b its
incumbent Municipal Maor 8oren*o 8! Dacana filed a complaint for in>unction with
6rit of preliminar In>unction at the %ourt of 'irst Instance of 8a Dnion against the
Municipalit of 8una and its officials and authori*ed agents, praing that the
Municipalit of 8una be immediatel en>oined from preventing #an 'ernando-s its
from obtaining road construction from 8una, 8a Dnion and from leving unreasonable
and after trial to make the in>unction permanent! &he lower court granted said petition!
&he main issue in this case is whether the Municipalit of 8una has the
authorit to pass "rdinance 0o!1 and impose the license fees in Iuestion!
Hel(: &he answer is 0o, but for a surprising reason! &he reason is that
this issue in the case at is governed b $resident Decree 0o! 2@1, enacting a 8ocal
&a3 %ode Bfor $rovinces, %ities, municipalities and Barrios? which took effect on 7ul
1, 14=@! &he %ode provides:
F#<% 10! #and and gravel fee! &he province ma lev and collect a fee of not
e3ceeding twent(five centavos per cubic meter of ordinar stones, sand, gravel earth
and other materials selected from lakes, rivers, streams, creeks and other public
waters within the >urisdiction of the province!
F#<% 22! #pecific limitations on power! <3cept as otherwise provided in this %ode,
the municipalit shall not lev the following:
Ba? &a3es, fees and charges that the province or cit is authori*ed to lev in this
%ode 3 3 3G
#ection 10 of aforesaid decree was later amended b $residential Decree
0o! A25 dated March 14=A, and now reads: #and and gravel ta3! &he province ma
lev and collect a ta3 of not e3ceeding sevent(five centavos per cubic meter of
ordinar stones, sand, gravel earth and other materials e3tracted from public and
private lands of the government or from the beds of seas, lakes, streams, creeks, and
other public waters within the >urisdiction of the province! &he municipalit where the
materials e3tracted shall share in the proceeds of the ta3 herein authori*ed at a rate
of not more than thirt per cent thereof as ma be determined b the $rovincial
Board! &he permit to e3tract the materials shall be issued b the Direction of Mines or
his dul authori*ed representative and the e3traction thereof shall be governed b
regulations issued b the Director of Mines!
Dnder the above(Iuoted provisions of the 8ocal &a3 %ode, there is no
Iuestion that the authorit impose the license fees in dispute, properl belongs to the
province concerned and not to the Municipalit of 8una which is specificall prohibited
under #ection 22 of same %ode Ffrom leving fees and charges that the province or
cit is authori*ed to lev in this %ode! F"n the other hand, Municipalit of #an
'ernando cannot e3tract sand and gravel from the Municipalit of 8una without the
corresponding ta3es or fees that ma be imposed b the province of 8a Dnion!
NOTE: &his is a lous case! &he 8,% wasn-t even used as legal basis in the
decision, but then was an old case! 6hat if we decide this case using the 8,% of
1441P 6as #an 'ernando forming a governmental or proprietar function in
constructing roadsP In either case, based on these of facts alone, can the municipalit
of 8una ta3 the municipalit of #an 'ernandoP
0. e C'!pania General (e Ta"a-'s /. Ci,. '* Manila < SCRA 039
Fa-,s: %ompania ,eneral &abacos de 'ilipinas B&abacalera for short? filed
this action in the court of 'irst Instance of Manila to recover from appellants, %it of
Manila and its &reasurer, Marcelino #armiento also hereinafter referred to as the cit
the sum of $1/, 2.0!00 allegedl overpaid b it as on its wholesale and retail sales of
liIuor for the period from the third Iuarter of 14/A to the second Iuarter of 14/=,
inclusive, under "rdinances 0os! @5@A, @@01, and @.15!
&abacalera-s action for refund is based on the theor tat, in connection with
its liIuor sales, it could pa the license fees prescribe b "rdinance 0o! 22/. but not
the municipal sales ta3es imposed "rdinances 0os! @5@A, @@01, and @.152 and since
it alread paid the license fees aforesaid, the sales paid b the amounting ton sum of
$ 1/,20.!00 under the three ordinance mentioned heretofore is overpament made
b mistake and therefore refundable!
&he cit, on the other hand, contends that for permit issued to it granting
proper authorit to conduct or engage in the sale of alcoholic beverages or liIuorsG
&abacalera is sub>ect to pa the license prescribed b "rdinance 0o! @@/., aside
from the sales ta3es imposed b "rdinances 0os! @5@A, and @.15 that even
assuming that &abacalera is not sub>ect to the pament of the sales ta3es prescribed
b the said three ordinances as regards its liIuor sales, it is not entitled to the refund
for the following reasons: 1? the said amount was paid b the plaintiff voluntaril and
without protest: 2? If at all the alleged overpament was made b mistake, such
mistake was one of law and impose from the plaintiff neglect of dut2 @? &he said
amount had been added b the plaintiff to the selling price of the liIuor sold b it and
passed to the consumers2 A? &he said amount had been alread e3pended b the
defendant %it for public improvement and essential services of the %it government,
the benefits of which are en>oed and being en>oed b the plaintiff!
JsM33
Hel(: &abacalera-s contentions are untenable! 6hat is collected under
"rdinance 0o! @@/. is a license fee for the privilege of engaging in the sale of liIuor a
calling in which it is obviousl not anone or anbod ma freel engage, considering
that the sale of liIuor indiscriminatel ma endanger public health and morals! "n the
other hand, what the three ordinances mentioned herefore impose is a ta3 for
revenue purposes based on the sales made of the same article or merchandise! It is
alread settled on this connection that both a license fee and a ta3 ma be imposed
on the same business or occupation for selling the same article, this not being in
violation of the rule against double ta3ation! &his is precisel the case with the
ordinances involved in the case at bar!
0. * T. /. Tra!pe )14 SCRA 144
Fa-,s: "n 05 7anuar 144A, the Municipal +ssessor of $asig sent a notice of
assessment concerning certain real properties owned b +le>andro B & located in
$asig, Metro Manila! + similar notice for the same reason was also sent to MV;
$icture &ube! Inc! located in $asig, Metro Manila! In a dated 1. March 144A,
petitioners & and MV; $icture &ube Inc! B& and %ompan? through counsel
FreIuested the Municipal +ssessor to consider the sub>ect assessments!G 0ot
satisfied, & and %ompan on 24 March 144A filed with the ;&% of the 0ational
%apital 7udicial ;egion, Branch 15@, presided over b 7udge +urelio &rampe, a
$etition for $rohibition with praer for a restraining order or writ of preliminar
in>unction to declare null and void the new ta3 assessment and to en>oin the collection
of real estate ta3es based on said assessments! &he >udge denied said petition!
& and %ompan now contends that 1?the %ourt gravel erred in holding that
$residential decree 0o! 421, including its implementing rules and regulations, were
e3pressl repealed b ;!+ =150 the %ourt erred in not declaring the confiscator and
oppressive nature of the assessments as illegal ab initio and unconstitutional
constituting a deprivation of propert without due process of law and the %ourt erred
in declaring that & and compan failed to e3haust administrative remedies provided
the law b not paing ta3 although under protest instead B#ec! 2/2, 8,%?! &o put it in
words >ustice $anganiban, who loves to ask a Iuestion before writing his decisions,
are the increased real state ta3es imposed b and collected b the Municipalit of
$asig, effective from the ear 144A, legalP B6ith all due respect to the good 7ustice,
the real Iuestion is: Does the municipal, provincial cit assessor Uas the case ma
beV! +cting alone, have the authorit to prepare the #chedule of Values real propert
as mandated b ;!+! =150, or is the schedule of Values prepared b a group of
assessors as mandated b $!D! 421P "bviousl, we have 2 conflicting laws here?!
Hel(: & and %ompan-s petition is meritorious! ;easons:
1? &o resolve & and %ompan-s first contention, we have to e3amine
certain @ laws! &he first is ;!+! 1/ of $!D! A5A, the ;eal $ropert &a3 %ode which
states, F$reparation of #chedules of Value before an general revision of propert
assessments is made as provided in this %ode, there shall be prepared for the
province or a schedule of Market Value for the different classes of real propert
therein situated in such form and detail as shall be prescribed b the #ecretar of
'inance!G
&he second is #ection 4 of $!D! 421 which states, F$reparation of #chedule
of Value for ;eal $ropert within the Metropolitan +rea! &he #chedule of Value that
will serve as the basis for the appraisal and assessment for ta3ation purposes of real
properties located within the Metropolitan +rea!
#hall be prepared >ointl b the %it +ssessors of the Districts created under
#ection one hereof, with the %it +ssessors of Manila acting as %hairman, in
accordance with the pertinent provisions of $residential Decree 0o! A5A, as
amended, otherwise known as the ;eal $ropert &a3 %ode, and the implementing
rules and regulations thereof issued b the #ecretar of 'inance!G
&he second is #ection 4 of $!D! 421 which states! F$reparation of #chedule
of Values that will serve as the basis for the appraisal and assessment for ta3ation
purposes of real properties located within the Metropolitan +rea shall be prepared
>ointl b the %it +ssessors of the Districts created under #ection one hereof, with
the %it +ssessor of Manila acting as %hairman, in accordance with the pertinent
provisions of $residential Decree 0o! A5A, as amended, otherwise known as the ;eal
$ropert &a3 %ode, and the implementing rules and regulations thereof issued b the
#ecretar of 'inance! +lso, we have #ection 1, same $!D!, which states, FDivision of
Metropolitan Manila into 8ocal &reasur and +ssessment Districts! 'or purposes of
effective fiscal management, Metropolitan Manila is hereb divided into the following
8ocal &reasur and +ssessment Districts:
'irst District Manila
#econd District Hue*on %it, $asig, Marikina, Mandaluong and #an 7uan
&hird District %aloocan %it, Malabon, 0avotas and Valen*uela
'ourth District $asa %it, Makati, $araZaIue, Muntinlupa, 8as $iZas,
$ateros and &aguig
Manila, Hue*on %it, %aloocan %it and $asa %it shall be the respective %enters of
the aforesaid &reasur and +ssessment Districts!
&he third is #ec! 212 of the 8,%, 1441 which states, F$reparation of
#chedule of 'air Market Values! Before an general revision of propert assessment
is made pursuant to the provisions of this &itle, there shall be prepared a schedule of
fair market values b the provincial, cit and the municipal assessors of the
municipalities within the Metropolitan Manila +rea for the different classes of real
propert situated in their respective local government units for enactment b
ordinance of the sanggunian concerned 3 3 3!G
&he Iuestion now is, who will prepared the schedule of 'air Market Values:
the gus under $!D! 421 of the gus under 8,% of 1441P It should be noted that the
8,% did not e3pressl repeal $!D! 421! Did the former impliedl repeal the latter
thenP &he court answered no! I t is a basic rule of statutor construction that repeals
b implication are not favored! +n implied repeal will not be allowed unless it is
convincingl and unambiguousl demonstrated that the two laws are so clearl
repugnant and patentl inconsistent that the cannot co(e3ist! &his is based on the
rationale that the will of the legislature cannot be overturned b >udicial function of
construction and interpretation! %ourts cannot take the place of %ongress in repealing
statutes! &heir function is to tr to harmoni*e, as much as possible, seeming conflicts
in the laws and resolve doubts in favor of their validit and co(e3istence!
It is obvious that harmon in these provisions is not onl possible, but in fact
desirable, necessar and consistent with the legislative intent and polic! B reading
together and harmoni*ing these two provisions, we arrive at the following steps in the
preparation of the said schedule, as follows:
JsM34
a? &he assessors in each municipalit or cit in the Metropolitan Manila
area shall prepare hisKher proposed schedule of values, in accordance
with #ec! 212 ;!+! =150!
b? &hen, the 8ocal &reasur and +ssessment District shall meet per #ec! 4
$!D! 421! In the instant case, that district shall be composed of the
assessors in Hue*on %it, $asig , Marikina, Mandaluong and #an
7uan, pursuant to #ec! 1 of said $!D! In this meeting, the different
assessors shall compare their individual assessments, discuss and
thereafter >ointl agree and produce a schedule of values for their
districts, taking into account the preamble of said $!D! that the should
evolve Fa progressive revenue raising program that will not undul
burden the ta3paers!G
c? &he schedule >ointl agreed upon b the assessors shall the be
published in a newspaper of general circulation and submitted to the
sanggunian concerned for enactment b ordinance, per #ec! 212, ;!+!
=150!
2? +lthough as a rule, administrative remedies must first be e3hausted before
resort to >udicial action can prosper, there is a well(settled e3ception in cases
where the controvers does not involve Iuestion of fact but of la! & and
compan are not merel Iuestioning the amounts of increase in the ta3, the
are Iuestioning the ver authorit and power of the assessor, acting solel
and increase in the ta3, the are Iuestioning the ver authorit and power of
the assessor, acting solel and independentl, to impose the assessment
and of the treasurer to collect the ta3! &herefore, there is no reason for &
and compan to e3haust the administrative remedies provided for in the
8,%, namel #ec 225 Bappeal to the 8ocal Board of +ssessment +ppeals?
and #ec! 2/2 B$ament under protest?!
@? 'inall the court will not pass upon the constitutionalit of the law if the
controvers can be settled on other grounds, like in this case, b
harmoni*ing the conflicting provisions of $!D! 421 and the 8,%!
D@ P'&er ,' Open an( Cl'se R'a(s ?Se-. )#8 LGC8 Ar,. 50-518 IRR@
T #ec! 21! %losure and "pening of ;oads
Ba? +n 8,D ma, pursuant to an ordinance permanentl or temporaril close
or open an local road, alle, park or sIuare falling within its >urisdiction: provided
however, that in the case of permanent closure, such ordinance must be approved b
at least 2K@ of all members of the sanggunian, and when necessar, an adeIuate
substitute for the public facilit that is sub>ect to closure provided!
Bb? 0o such wa or place or an part thereof shall be permanentl closed
Fwithout making provisions for the maintenance of public safet therein! +
propert thus permanentl withdrawn from public use ma be used or conveed
for an purpose for which other real propert belonging to the 8,D concerned
ma be lawfull used or conveed ! $rovided however, &hat no freedom park
shall be closed permanentl without provision for its transfer or relocation to a
new site!
Bc? +n national or local road, alle, park or sIuare ma be temporaril
closed during an actual emergenc, or fiesta celebrations, public rallies,
agricultural or industrial fairs, or an undertaking of public works and highwas,
telecommunications and waterworks pro>ects, the duration of which shall be
specified b the local chief e3ecutive concerned in a written order! $rovided
however, that no national or local road, alle, park or sIuare shall be temporaril
closed for athletic, cultural or civic activities not officiall sponsored, recogni*ed
or approved b the 8,D concerned!
Bd? +n cit, municipalit or baranga ma b a dul enacted ordinance,
temporaril close and regulate the use of an an local street road thoroughfare or
an other public place where shopping malls, #unda, flea or night markets or
shopping areas ma be established and where goods, merchandise, foodstuffs,
commodities, or articles of commerce ma be sold and dispensed to the general
public!
T +rt A@! +uthorit to %lose or "pen! +n 8,D ma, through an ordinance
permanentl or temporaril close or open an road, alle, park or sIuare within its
>urisdictions!
T +rt AA! $ermanent %losure!
Ba? 0o permanent closure of an local road, street,
alle, park or sIuare shall be effected unless there
e3ists a compelling reason or sufficient >ustification
therefore such as, but not limited to change in land
use, establishment of infrastructure facilities,
pro>ects or such other >ustifiable reasons as public
welfare ma reIuire!
Bb? 6hen necessar, an adeIuate substitute for the
public facilit that is sub>ect to closure shall be
provided! 0o freedom park shall be closed
permanentl without provision for its transfer or
relocation to a new site
Bc? 0o such wa or place or an part thereof shall be
permanentl closed without making provisions for
the maintenance of a public sstem therein
Bd? + propert permanentl withdrawn from public use
ma be used or conveed for an purpose for which
other real propert belonging to propert ma be
lawfull used or conveed!
Be? B&he ordinance authori*ing permanent closure must
be approved b at least 2K@ of all members of the
#anggunian! $ublic hearings shall first be
conducted before an ordinance authori*ing
permanent closure of an local roads, alle, park or
sIuare is enacted! 0otices of such hearings and
copies of the proposed ordinance shall be posted
for a minimum of @ consecutive weeks in
conspicuous places in the provincial capitol, or in
the cit, municipal, or baranga hall of 8,D and
within the vicinit of the street or park proposed to
be closed!
JsM35
T +rt! A/! &emporar %losure! +n national of local road, alle, park, or
sIuare ma be temporaril closed during actual emergenc or fiesta celebrations,
public rallies, agricultural or industrial fairs, or undertakings of pubic works and high
was, telecommunications and waterworks pro>ects, the duration of which shall be
specified b the local chief e3ecutive concerned in a written order as follows:
B1? During fiestas for a period not e3ceeding 4 das
B2? During agricultural or industrial fairs or e3positions, for a period as ma
be determined to be necessar and reasonable
B@? 6hen public works pro>ects or activities are being undertaken, for a
period as ma be determined necessar for the safet, securit, health or welfare of
the public or when such closure is necessar to facilitate completion of the pro>ects or
activities
BA? +n 8,D ma temporaril close and regulate the use of an local street,
road, thoroughfare, or public place where shopping malls, #unda market, flea or
night market, or shopping areas ma be established and where goods, merchandise,
foodstuff, commodities, or articles of commerce ma be sold and dispensed to the
general public
B/? 0o national or local road, alle, park, or sIuare shall be temporaril
closed for athletic, cultural, or civic activities not officiall sponsored, recogni*ed or
approved b the 8,D!
Fa-,'rs ,' -'nsi(er in /a-a,in7 a s,ree,
a? &opograph of the propert surrounding the street in the light of
ingress and egress to other streets
b? ;elationship of the street in the road sstem throughout the
subdivision
c? $roblem posed b the Sdead end- of the street
d? 6idth of the street
e? %ost of rebuilding and maintaining the street as contrasted to its
ultimate value to all of the propert in the vicinit
f? Inconvenience of those visiting the subdivision
g? 6hether the closing of the street would cut off an propert
owners from access to a street!
(.# Fa/is /. Ci,. '* Ba7$i' )9 SCRA #434
Fa-,s: &his case took place in Baguio %it!
"n +pril @0, 14/=, +ntonio 'avis bought a parcel of land from the
+ssumption %onvent, Inc! &his land is surrounded b the following areas Bgo get a
pen and paper and draw a map of this land to better understand this case?:
1! 8ot 2(<(@(B(@(B(1 C this lot is owned b +ssumption and is located
southwest of 'avis- land2 this lot was donated to the %it because it was the site for a
proposed road! &his donated road is 'avis- onl means of ingress and egress to
8apu(lapu #treet, a public street!
2! 8apu(lapu #treet C this street is a portion of the Baguio Market
#ubdivision, a big tract of land registered in the name of the %it! 8apu(lapu street is
connected at one end to two lots: a? 8ot 2(<(@(B(@(B(12 and b? a lot owned b "lmina
'ernande*! ,enerall, 8apu(lapu #treet is . m! in width, but at its connecting point
with 8ot 2(<(@(B(@(B(1, it-s onl 2!/ m! in width!
@! 8ot 2/ C this lot is located in the northern portion of Baguio Market
#ubdivision and is right beside 'ernande*-s lot! &he shell "il %ompan leased this lot
in 14A= for its use as a service station! 10 ears later, #hell leased 8ot 2/ again and a
portion of 8apu(lapu #treet as well, reducing the latter-s width to onl / meters! &he
%it approved the renewal of the lease thru ;esolution 0o! 1@2(51!
'avis protested the lease because it reduced the width of 8apu(lapu #treet,
thus B1? his entrance and e3it to and from his propert has become ver difficult2 B2? it
became impossible for his big trucks and trailers to turn around2 B@? it made the area
around it ver dangerous in case of fire2 and BA? it has caused perpetual danger,
annoance, irreparable loss and damage not onl to the public in general but
especiall to 'avis himself! In response, the %it approved ;esolution 21/(51,
converting the remaining / m!(width portion of 8apu(lapu street into an alle Blous
resolutionN?! Dnsatisfied with the %it-s response, 'avis %ommenced suit to annul
the lease contract for the reasons mentioned above and also because of the
following: 1? the power to close streets should be effected thru an ordinance and not
thru a resolution2 2? the %it failed to give notice to owners of contiguous properties
whose rights might be affected2 and @? the cit council of Baguio and municipal bodies
in general, have no inherent right to vacate or withdraw a street from public use,
either in whole or in part, thus there must be a specific grant b the legislative bod to
the cit or municipalit concerned!
Hel(: 'avis contentions are unmeritorious! ;easons:
1? &he embattled resolutions are >ust as good as ordinances! &he ob>ection
is onl of forms, not of substance!
2? 0otice is not needed because the %it %harter reIuires notice onl when
the ordinance in Iuestion also calls for an assessment regarding a pro>ect to be
implemented! In this case, no assessment was called for and was in fact, not
necessar!
@? 6hile 'avis is correct that municipal bodies have no inherent right to
close a public street, still the %it %harter does authori*e Baguio %it to close public
roads in its discretion absent a plain case of abuse, or fraud or collision! 'aithfulness
in public trust is presumed! $ublic interest is served thru 1? savings from cost of road
maintenance2 and 2? gaining b the %it of some income thru leasing!
A? 'avis- private rights were not invaded! 8apu(lapu street does not abut his
parcel of land! &he general rule is that one whose propert does not abut on the
closed section of a street has no right to compensation for the closing or vacation of
the street, if he still has reasonable access to the general sstem of streets! &he
circumstances in some cases ma be such as to give a right to damages to a
propert owner, even though his propert does not abut on the closed section! But to
warrant recover in an such case the propert owner must show that the situation is
such that he has sustained special damages differing in from those sustained b kind,
and not merel in degree, the public generall!
2! "ther illustrative cases:
(.#. Ca"rera /. CA #21 SCRA 0#5
Fa-,s: "n #ept! 14, 1454, the $rovincial Board of %atanduanes passed
;esolution 1/. authori*ing the closure of the old road leading to the %apitol %it of
%atanduanes! + new road was built which traversed the land of ;emedios Bagadiong
JsM36
and several others similarl affected! Bagadiong and friends were given portions of
the old road as compensation for the properties the lost as a result of the
construction of the new road!
"ne man, Bruno %abrera, did not like the idea of the old road being gone!
)e filed a complaint for F;estoration of $ublic ;oad andKor +batement of 0uisance,
+nnulment of ;esolutions and Documents with DamagesG alleging that the old road in
Iuestion was a public road owned b the $rovince of %atanduanes in its
governmental capacit and was thus beond the commerce of man! It stands to
reason then, that said road cannot be the sub>ect of private contracts, such as barter
or e3change! Moreover, %abrera insists, control over public roads lies with %ongress,
not with the $rovincial Board!
Hel(: %abrera is wrong! ;easons:
1? ;esolution 1/. states, in black and white ink, that it is for the closure of a
public road and not for a contract of barter or e3change! ;+ /1./ #ec 11 Ba? B+n +nt
,ranting 'urther 8ocal +utonom to 8ocal ,overnments?, in relation to #ec! 22A5 of
the revised +dministration %ode, is the pertinent law from which ;esolution 1/.
derives its authorit!
2? &he barter or e3change is legal Sco* it-s in accordance with #ec! A12 of
the %ivil %ode, which states: F$ropert of public dominion, when no longer intended
for public use or for public service, shall form part of the patrimonial propert of the
#tate!G
0ote: &he power to open or close roads is e3pressl provided for in +rt! A@,
I;; of the 8,%, 1441!
(.).Da-ana. /. Asis,i' )4< SCRA 545
Fa-,s: 6a back in 7anuar /, 14=4, the Metropolitan Manila %ommission
BMM%? enacted MM% "rdinance =4(02, which allowed certain cit and municipal
public streets and roads to be sites for man vendors applied for licenses to conduct
such activities in said streets!
"n Dec! 20, 14.=, the ;&% of %aloocan %it ruled that the streets were of
public dominion and ordered the demolition of said stalls! But Maor Martine*, who
had advocated the demolition of the said stalls, has been replaced b Maor +sistio!
Maor +sistio did not carr out the order of the ;&%, for humanitarian reasons!
'rancisco Dacana, a concerned citi*en and a resident along )eroes del -45 street,
filed a petition for mandamus to compel the Maor, thru the %it <ngineer, to remove
the said stalls! 6ill the petition prosperP
Hel(: Qes, for the plain and simple reason that public roads cannot be the
ob>ect of leases and thus cannot be bargain awa thru contracts! $ublic roads should
serve the purpose for which the were built: for public use as arteries of travel for
vehicles and pedestrians!
(.0. Ma-asian' /. Di'%n' )#) SCRA 535
Fa-,s: "n 7une 1@, 1440, the municipalit of $aranaIue passed "rdinance
no! 40, series of 1440, which authori*ed the closure of / streets located at Baclaran,
$aranaIue for the establishment there of a flea market! "n 7ul 20, 1440, the
Metropolitan Manila +uthorit approved the said ordinance but sub>ect to the following
conditions:
1! &hat the afore(named streets are not used for vehicular traffic, and that
the ma>orit of the residents do not oppose the establishment of the flea
marketKvending areas thereon2
2! &hat the 2 meter middle road to be used for flea marketKvending area
shall be marked distinctl, and that the 2 meters on both sides of the road shall be
used b pedestrians2
@! &hat the time during which the vending area is to be used shall be clearl
designated2
A! &hat the use of the vending areas shall be temporar and shall be closed
once the reclaimed areas are developed and donated b the $ublic <state +uthorit!
$alanag 1ilusang Baan for #ervice, a service cooperative, then entered
into a contract with $aranaIue for the construction and operation of market stalls in
the said streets!
#ome months later, Brg! ,en! 8ev Macasiano, $0$ #uperintendent of the
Metropolitan &raffic %ommand, entered the picture! )e wrote $alanag a letter
demanding the latter to discontinue the flea market, otherwise the market stalls would
be dismantled! Macasiano-s beef was that "rdinance 0o! 40which authori*ed the
lease and use of public thoroughfares as site for flea markets is not valid because it is
on legal basis! 6as he correctP
Hel(: Qes! ;easons:
1? &he Municipalit of $aranaIue did not follow #ec! 10, %hapter 11, 8,%
14.@, to the letter! Its states that: F%losure of roads! + local ,overnment unit ma
likewise, through its head acting pursuant to resolution of its sanggunian and in
accordance with e3isting law and the provisions of this %ode, states an baranga,
municipal, cit or provincial road, street, alle, park or sIuare! 0o such wa or an
part of thereof shall be close without indemnifing an person pre>udiced thereb! +
propert thus withdrawn form public use ma be used or conveed for an purpose
for which other real propert belonging to the local unit concerned might be lawfull
used or conveed!G
0ote the italici*ed phrase Fand in accordance with e3isting law and the
provisions of this %ode! G&he power to close roads b 8,Ds is still sub>ect to e3isting
law! In this light, +rt! A2A of the %ivil %ode is relevant! It essentiall sas that if public
propert is withdrawn from public use, the propert becomes patrimonial propert of
the 8,D concerned and ma thus be sub>ect to ordinar contracts! &his is all
assuming if the public are still open to vehicular traffic and are thus still devoted to
public use!
2? 'ollowing the argument of the [ 1 above, it goes to show that $aranaIue
did not follow condition as imposed b the MM+ for "rdinance 40 tie be valid! &he
legalit of "rdinance 40, under the circumstances, cannot be sustained!
(.5. San7alan7 /. IAC #93 SCRA 9#2
Fa-,s: +s far back in 14==, Makati, Metro Manila has alwas been plagued
b traffic! 'or this reason, during that time, Maor 0emesio Qabut of Makati ordered
that studies be made on was on how to alleviate the traffic problem, particularl in
the areas along the public streets ad>acent to Bel(+ir Village! &he studies revealed
that the subdivision plan of Bel(+ir was approved b the %ourt of 'irst! Distance of
;i*al on the condition, among others, that its ma>or thoroughfares connecting to
public streets and highwas shall be opened to public traffic! +ccordingl, it was
JsM37
deemed necessar b the Municipalit of Makati in the interest of the general public to
open to traffic +mapola, Mercedes, 9odiac, 7upiter, 0eptune, "rbit and $asco de
;o3as streets! +s a result, the gates owned b B+V+ at 7upiter and "rbit were
ordered demolished!
Maor Qabut >ustified the opening of the streets on the following grounds:
1? #ome time ago, +ala %orporation donated 7upiter and "rbit #treets to
Bel(+ir on the condition that, under certain reasonable conditions and restrictions, the
general public shall alwas be open to the general public! &hese conditions were
evidenced b a deed of donation e3ecuted between +ala and Bel(+ir!
2? &he opening of the streets was >ustified b public necessit and the
e3ercise of the police power!
@? Bel(+ir Village +ssociation-s BB+V+? articles of incorporation recogni*ed
7upiter #treet as a mere boundar to the southwest C thus it cannot be said to be for
the e3clusive benefit of Bel(+ir residents!
A? B+V+ cannot hide behind the non(impairment clause on the ground that
is constitutionall guaranteed! &he reason is that it is not absolute, since it has to be
reconciled with the legitimate e3ercise of police power!
B+V+, on the other hand, contended:
1? ;ufino #antos, president of B+V+, never agreed to the opening of the
said streets
2? B+V+ has alwas kept the streets voluntaril open anwa
Moreover, B+V+ claims the demolition of the gates abovementioned was a
deprivation of propert without process of law or e3propriation without >ust
compensation!
6ho is correct: the Maor or B+V+P
)eld: &he Maor is correct, for the reasons mentioned above! +lso, the
(e!'li,i'n of the gates is >ustified under +rt! A@5 of the %ivil %ode!
F6hen an propert is condemned or sei*ed b competent authorit in the
interest of health, safet or securit, the owner thereof shall not be entitled to
compensation, unless he can show that such condemnation or sei*ure is un>ustified!G
In this case, B+V+ has the burden of showing that the sei*ure of the gates is
un>ustified because police power can be e3ercised without provision for >ust
compensation! &he %ourt is of the opinion that the Maor did not act unreasonabl
nor was the opening of the gates un>ustified! In fact, the gates could even be
considered public nuisances, of which summar abatement, as decreed under +rt!
=01 of the %ivil %ode, ma be carried out b the Maor!
(.1.Ce"$ OC.7en /. Ber-illes 33 SCRA 5<#
Fa-,s: &he sub>ect of the dispute is a portion of M! Borces #treet, Mabolo,
%ebu %it B10 ears from now, would this name reall matterP?!
"ne da, on #ept! 2@, 145., the %it %ouncil of %ebu passed a resolution
declaring the abovementioned street to be abandoned! #ubseIuentl, the council
passed another resolution authori*ing the +cting %it Maor to sell the street Bwhich
was actuall a parcel of land? thru a public bidding! %ebu "3gen and +cetlene %o!
Inc! then bought the said parcel of land!
)owever, when %ebu "3gen tried to have its land registered, the +ssistant
$rovincial 'iscal of %ebu filed a motion to dismiss the application on the ground that it
is a public road intended for public use and thus was outside the commerce of man!
&he Iuestion now is whether the %it of %ebu is empowered to close a cit road or
street!
Hel(: Qes, for the simple reason that the %it %harter of %ebu authori*es the
same B0ote that toda, 8,Ds ma close roads or streets under the authorit of the
8,D of 1441, charter of no charter?!
(.3.Pilapil /. CA )#3 SCRA 00
Fa-,s: &his case spanned for a period of 5 ears onl to reach an
une3pected, tragic conclusion for the spouses %olomida!
#pouses $ilapil own a parcel of land in Bahak, $oblacion, 8iloan, %ebu!
#pouses %olomida, on the other hand, bought a parcel of land located also in Bahak!
0ow this land owned b the %olomidas has for its ingress and egress to the 0ational
;oad a camino vecinal Bbarrio road?! )owever, this camino vecinal transverses the
propert of the $ilapil, which was the root of all their problems!
&he $ilapil denied the e3istence of the camino vecinal! #ocrates $ilapil, the
husband, presented himself as witness Bwhich was lous? as well as <ngineer
<pifanio 7ordan, Municipal $lanning and Development %oordinator of 8iloan! &he
engineer said that while that *oning map of $oblacion, 8iloan made reference to a
camino vecinal, said reference was but a mere proposal of its e3istence to the
#angguniang Baan of 8iloan!
&he %olomidas, on the other hand, relied on old(timers as witnesses C
witnesses such as 'lorentino $epito, who attested to the e3istence of the %amino
vecinal and its availabilit to the general public since practicall time immemorial!
&he trial court ruled in favor of the %olomidas because the *oning map used
as evidence b the $ilapil did not specificall indicate that the amino vecinal was
indeed merel FproposedG since other roads and streets were classified as such! &he
%+ upheld that trial court, basicall because it said that findings of facts b the trial
court, as a general rule, should be undisturbed!
6ould the #% uphold the %+ rulingP
Hel(: 0o! In its infinite wisdom, the #% said that it didn-t matter what opinion
the %olomidas or the engineer gave regarding the e3istence of the camino vecinal!
6hat reall mattered is the *oning plan Bthe Drban 8and Dse $lan? as finall
approved b the #angguniang Baan of the Municipalit of 8iloan! &he *oning plan
showed that the camino vecinal was declared closed! %8"#<DY It-s so crstal clear,
can-t ou seeP +nd it-s beond dispute that the abandonment, closure or
establishment of the camino vecinal is the sole prerogative of the Municipalit of
8iloan under the 8,D of 14.@! &he #% rebuked the parties for not having resorted to
a pre(trial conference which would have prevented the dragging of a trivial case for
si3 ears!
E@ C'rp'ra,e P'&ers ?Se-. ))8 LGC8 Ar,. 538 IRR@
T #ec! 22, 8,%, %orporate $owers! +? <ver 8,D, as a corporate, shall have
the following powers:
1! &o have continuous succession in its corporate name2
2! &o sue and be sued2
@! &o have and use a corporate seal2
A! &o acIuire and conve real or personal propert
JsM38
/! &o enter into contracts2 and
5! &o e3ercise such other powers as are granted to corporations, sub>ect to
the limitations provided in this %ode and other laws!
b? 8,Ds ma continue using, modif, or change their e3isting
corporate seals! $rovided, that newl established 8,Ds or those without corporate
seals ma create their own corporate seals which shall be registered with the DI8,!
$rovided further, that ma change of corporate seal shall also be registered as
provided herein!
c? Dnless otherwise provided in this %ode, no contract ma be
entered into b the local chief e3ecutive in behalf of the 8,D without prior
authori*ation b the sanggunian concerned! + legible cop of such contrast shall be
posted at a conspicuous place in the province capitol or the cit, municipal or
baranga hall!
d? 8,Ds shall en>o full local autonom to the e3ercise of their
proprietar functions and in the management of their economic enterprises, sub>ect to
the limitations provided in this %ode and other applicable laws!
T+rticle A5, I;;! 0ote: It-s e3actl the same as #ec! 22, 8,%!
KM$ni-ipali,. Lia"ili,.
+! General R$le
Municipal liabilities arise from various sources in the conduct of
municipal affairs, both governmental and proprietar! Broadl, claims against
municipalities include all obligations upon all municipal contracts and upon all
outstanding bonds, notes, and warrants issued b them! #trictl, however, these
claims are demands for paments for articles, furnished or services rendered to a
municipalit in the conduct of its affairs, or demands asserting the tort liabilit of the
municipalit!
B! EC-ep,i'ns
1! +s provided b law
a? +rticle 21.4, 0ew %ivil %ode C F$rovinces, cities and
municipalities shall be liable for damages for the death of or in>uries suffered b an
person b reason of the defective conditions of roads, streets, bridges, public
buildings, and other public works their control and supervision!G
CasesH
e.#. Ci,. '* Manila /. Te',i-' ))8 SCRA )39
Fa-,s: "n 7an! 2=, 14/., at about . p!m!, ,enaro &eotico was at the corner
of the "ld 8uneta and $! Burgos +venue, Manila, waiting for a >eepne to take him
downtown! +fter / minutes, he managed to hail a >eepne that came along to a stop!
+s he stepped down from the curb to board the >eepne, and took a few steps he fell
inside an uncovered and unlighted manhole on $! Burgos +venue! &eotico sustained a
lacerated wound in his left eelid, conclusion on his left thigh, the upper left thighN oh
m goodness, ever in>ur imaginableY BDse +tt! Dlep-s tone of voice?! &eotico was
hospitali*ed and the anti(tetanus in>ections administered to him caused allergic
eruptions which reIuired further medical treatment! &eotico filed an action for
damages Bactual and moral damages? against the %it of Manila! &he %it denied
liabilit contending that #ec! A of the %it %harter B;+ A04? should prevail over +rt!
21.4 of the %ivil %ode because the former is a special law intended e3clusivel for
the %it of Manila, whereas the %ivil %ode is a general law applicable to the entire
$hilippines!
Hel(: #ec! A of ;+ A04 refers to liabilit arising from negligence in general
regardless of the ob>ect thereof whereas +rt! 21.4 governs liabilit due to defective
streets in particular! #ince the presentation action is based upon the detective
condition of a road, said +rt! 21.4 is decisive! Dnder +rt! 21.4, it is not necessar for
the liabilit therein established to attach that the defective roads or streets belong to
the province, cit or municipalit from which responsibilit is e3acted! 6hat said
+rticle reIuires is that the province, cit or municipalit has either control or
supervision over said street or road! <ven if $! Burgos were, therefore, a national
highwa, this circumstance would not necessaril detract from its Fcontrol of
supervisionG b the %it of Manila, under ;+ A04! &he %it of Manila is therefore liable
to &eotico for damages!
e.). 6i!ene= /. Ci,. '* Manila #14 SCRA 1#4
Fa-,s: Bernardino 7imene* was the unluck said who fell in an uncovered
opening o the ground located within the premises of the #ta! +na public market! +t
that time, the market was flooded with ankle(deep rainwater which prevented the
opening form being seen! 7imene*, for his part, went to that market to bu bagoong
despite the rains! )e sustained an in>ur due to a rust A(inch nail which pierced his
left leg!
7imene* sued the +siatic Integrated %orporation B+I%? and the %it of Manila
for his misfortune! &he #ta! +na Market at that time was under the administration of
the +I% b virtue of a management and "perating %ontract it had with the %it of
Manila! &he trial court held the +I% responsible but absolved the %it of Manila! Is the
%it of Manila indeed not liableP
Hel(: &he %it of Manila is liable! ;easons:
1? +gain, +rt! 21.4 comes into pla, since the in>ur took place in a public
building!
2? +lso, +rt! 21.4 reIuires that the 8,D must retain supervision and control
over the public work in Iuestion for it to be held liable! &he evidence showed that the
Management and "perating %ontract e3plicitl stated that the %it of Manila retained
supervision and control over the #ta! +na Market! +lso, in a letter to 'inance
#ecretar %esar Virata, Maor ;amond Bagatsing admitted this fact of supervision
and control! Moreover, #ec! @0Bg? of the 8ocal &a3 %ode sas that public markets
shall be under the immediate supervision, administration and control of the %it
&reasurer!
@? 7imene* could not be held for negligence! + customer in a store has
ever right to presume that the owner will compl with his dut to keep his premises
safe for customers! &he owner of the market, on the other hand, was proven to have
been negligent in not providing a cover for the said opening! &he negligence of the
%it of Manila is the pro3imate cause of the in>ur suffered!
0"&<: It is not necessar for the 8,D to have ownership over the public
work in Iuestion2 mere control and supervision is sufficient!
e.0. G$ila,-' /. Ci,. '* Da7$pan #9# SCRA 0<)
JsM39
Fa-,s: 'lorentina ,uilatco, a court interpreter, was about to board a triccle
at a sidewalk located at $ere* Boulevard when she accidentall fell into a manhole
located in said side walk, causing her right leg to be fractured! #he was hospitali*ed
and also as a result, suffered loss of income and moral damages!
,uilatco sued the %it of Dagupan! &he %it replied that $ere* Boulevard,
where the deadl manhole was located, is a national road not under the control and
supervision of Dagupan! It is submitted that it is actuall the Ministr of $ublic
)ighwas that has control and supervision thru the )ighwa <ngineer, who b mere
coincidence, is also the %it <ngineer of Dagupan Bmalas naman namin, %it
<ngineer?!
Is the %it of Dagupan liableP
Hel(: Qes, ;easons:
1? 6e again appl +rt! 21.4! But the bigger Iuestion is , does the %it of
Dagupan have control and supervision over $ere* Boulevard in order for it to be held
liableP &he answer is es! 6hP ;ead on!
2? &he %it of Dagupan argued that the supervision and control over $ere*
Boulevard belongs more to his function as e3(officio )ighwa <ngineer, thus the
Ministr of $ublic )ighwas should be held liable! )owever, the court gave this
arguments: F+lfredo ,! &angco, in his official capacit as %it <ngineer of Dagupan,
as <3("fficio )ighwa <ngineer, as <3("fficio %it <ngineer of the Bureau of $ublic
6orks, and, last but not the least, as Building "fficial for Dagupan %it, receives the
following monthl compensation: $1,.10!55 from Dagupan %it, $200!00 from the
Ministr of $ublic )ighwas, $100!00 from the Bureau of $ublic 6orks and $/00!00
b virtue of $OD 1045, respectivel! &his function of supervision over streets, public
buildings, and other public works pertaining to the %it <ngineer is coursed through
Maintenance 'oeman and a Maintenance <ngineer! +lthough these last two officials
are emploees of the 0ational ,overnment, the are detailed with the %it of
Dagupan and hence receive instruction and supervision from the cit through the %it
<ngineer! &here is , therefore, no doubt that the %it <ngineer e3ercises control or
supervision over the public works in Iuestion! )ence, the liabilit of the cit to the
petitioner under article 214. of the %it %ode is clear!G BDuhP 6hat kind of
e3planation is thatP $ersonall, I can-t understand it, but if the #% sas the %it of
Dagupan is liable, then we must trust the wisdom of the omniscience #%?!
e.5. D$!la' /. CA ##5 SCRA )59
Fa-,s: &hese events took place in Dagupan %it!
"n 'eb! 2., 145A, about 11:@0 p!m!, the spouses <li*alde were driving a
>eep thru &elomes Bridge when suddenl2 the came upon a huge hole about 1 meter
in diameter and . feet deep at the south end of the bridge! &he <li*aldes managed to
avoid the boulders but instead slammed into a truck owned b )ermanos de Qap and
driven b Dulcesimo Duco! &he truck came from the opposite direction on the wrong
lane! &he <li*aldes died as a result of the incident! &he heirs of the <li*aldes included
in defendants in its complaint the %it of Davao and #amuel Dumlao, the %it
<ngineer! #pecificall, Dumlao was sued in his personal capacit!
Dumlao argued that he cannot be held liable is his personal capacit! Is he
correctP
Hel(: Qes!
1? &he allegations in the complaint clearl state that he was being sued in
his official capacit as %it <ngineer!
2? &here was no showing that there was bad faith or malice which would
warrant Dumlao personall liable in connection with the discharge of his duties!
@? &he best that could be imputed to him is an act of culpable neglect,
inefficienc and gross negligence in the performance of his official duties!
b? +rticle 21.0, %ivil %ode F&he obligation imposed b +rticle 21=5
is demandable was onl for one-s own acts or omission, but also for those of persons
for whom one is responsible!
F&he father and, in case of his death or incapacit, the mother, are
responsible for the damages caused b the minor children who live in their compan!
F&he owners and managers of an establishment or enterprise are
likewise responsible for damages caused b their emploees in the service of the
branches in which the latter are emploed or on the occasion of their functions!
F<mploers shall be liable for the damages caused b their
emploees and household helpers acting within the scope of their assigned tasks,
even though the former are not engaged in an business or industr!
F&he #tate is responsible in like manner when it acts thru a special
agent but not when the damage has been caused b the official to whom the task
done properl pertains, in which caused what is provided in +rticle 21=5 shall be
applicable!
F8astl, teachers or head of establishments of arts and trades shall
be liable for damages caused b their pupils and students or apprentices, so long as
the remain in their custod!
F&he responsibilit treated of in this article cease when the persons
herein mentioned proved that the observed all the diligence of a good father of a
famil to prevent damages!
e.1. Pala*'C /. Pr'/in-e '* Il'-'s N'r,e #4) Pil. ##<3
Fa-,s: $alafo3 filed a suit to recover damages from the provincial
government for the death of his son caused b the negligence of a regular chauffer of
the provincial government! &he accident occurred while the chauffer was working at
the highwa construction! &he Iuestions now are: 1? Ma the province be held liableP
2? Does the doctrine of respondent superior applP
Hel(: &he answers to both Iuestions are given below Bobviousl?:
1? &o attach liabilit to the #tate for the negligence of its officer or emploee,
the latter must be not upon whom properl devolved the dut of driving the truck on
that occasion! &his principle applies both to the national and municipal governments!
&he province is liable!
2? &he doctrine of respondeat superior or corporate liabilit for the
negligence or tort of its officers, applies onl where the government is engaged in
proprietar or business functions! 6hen engaged in government functions, as the
construction and maintenance of roads, the doctrine does not appl! &he reason for
the e3emption is the government does not undertake to guarantee to an person the
fidelit of the officers or agents whom it emplos, since that would involve in all its
operations endless embarrassments, difficulties and losses subversive of the public
interest!
JsM40
). Lia"ili,. *'r ,'r,s i* en7a7e( in pr'prie,ar. *$n-,i'n
Cases:
#. T'ri' /. F'n,anilla <1S CRA 122
Fa-,s: &he Municipal %ouncil of MalasiIui, $angasinan passed a resolution
celebrating a town fiesta for @ das on 7anuar, 14/4! &he resolution created on
<3ecutive %ommittee which would oversee the operations of the town fiesta! &he
<3ecutive %ommittee in turn had a sub(committee in charge of building 2 stages, one
of which was for a *ar*uela program!
Vicente 'ontanilla was one of the actors of the *ar*uela! 6hile the *ar*uela
was going on the stage where the pla was set collapsed! 'ontanilla, who has at the
rear of the stage, was pinned underneath and died the following da!
&he famil and heirs of 'ontanilla filed a complaint against the Municipalit
of MalasiIui, the Municipal %ouncil and the individual members of the Municipal
%ouncil! %an the be held liableP
Hel(: &he Municipalit of MalasiIui is liable and the individual members of
the Municipal %ouncil are not liable! ;easons:
1? &he basic rule to be first followed is that a municipal corporation cannot
be held liable for an in>ur caused in the course of performance of a governmental
function! 6ith respect to proprietar functions, the settled rule is that a municipal
corporation can be held liable upon contracts and in torts!
2? &he ne3t Iuestion to be answered is that whether the fiesta above(Iuota
was performed b the municipalit in the e3ercise of its governmental or proprietar
function! +ccording to 22.2 of the revised +dministrative %ode, municipalities are
authori*ed to hold fiesta, but it is not their dut to conduct such! &hus, the fiesta is
proprietar in nature! &he same analog can be applied to the maintenance of parks,
which is a private undertaking, as opposed to the maintenance of public schools and
>ails, which are for the public service! B&he ke word then is dut!?
@? Dnder the doctrine of respondent superior Bsee first paragraph of +rt!
21.0?, the municipalit can be held liable for the death of 'ontanilla if a? the
municipalit was performing a proprietar function at that time and b? negligence can
be attributed to the municipalit-s officers, emploees or agents performing the
proprietar function! &he evidence proved that the committee overseeing the
construction of the stage failed to build a strong enough to insure the safet of
*ar*uela participants! 'ontanilla was entitled to ensure that he would be e3posed to
danger on that occasion!
A? 'inall, the municipal council is not responsible! &he Municipalit stands
on the same footing as an ordinar private corporation with the municipal council
acting as its board of directors! It is an elementar principle that a corporation has a
personalit, separate and distinct from its officers, directors, or persons composing it
and the latter are not as a rule co(responsible in an action for damages for tort or
negligence culpa aIuillana committed b the corporation-s emploees of agents
unless there is a showing of bad faith or gross or wanton negligence on their part! &o
make an officer of a corporation liable for the negligence of the corporation there must
have been upon his part such a breach of dut as contributed to or helped to bring
about, the in>ur2 that is to sa, he must be a participant in the wrongful act!
). M$ni-ipali,. '* San Fernan('8 La Uni'n /. Firin7 #21 SCRA 32)
Fa-,s: 8aurence Banino, #r!, along with several other passengers in a
>eepne the were riding in, died after collision involving said >eepne, a privatel
owned graved and sand trucks and a dump truck owned b the Municipalit of #an
'ernando, 8a Dnion, driven b +lfredo Bislig, a regular emploee of said municipalit!
&he heirs included in its complaint the municipalit and the dump trucks driver! &he
municipalit invokes non(suabilit of the #tate! Is it correctP
)eld: Qes!
1? &he general rule is that the #tate ma not be sued e3cept when it gives
consent to be sued! %onsent takes the form of e3press of implied consent!
<3press consent ma be embodied in a general law or a special law! &he
standing consent of the #tate to be sued in case of mone claims involving liabilit
arising from contracts is found in +ct 0o! @0.@! + special law ma be passed to
enable a person to sue the government for an alleged Iuasi C delict!
%onsent is implied when the government enters into business contracts,
thereb descending to the level of the other contracting part, and also when the
#tate files a complaint thus opening itself to a counterclaim!
)unicipal corporations for example, li#e provinces and cities, are agencies
of the State when they are engaged in governmental functions and therefore should
en"oy the sovereign immunity from suit. $evertheless, they are sub"ect to suit even in
the performance of such functions because their charter provided that they can sue
and be sued.
2! + distinction should first be made between suabilit and liabilit! F#uabilit
depends on the consent of the state to be sued, liabilit on the applicable law and the
established facts! &he circumstance that a #tate is suable does not necessaril mean
that it is liable2 on the other hand, it can never be held allowing itself to be sued!
6hen the state does waive its sovereign immunit, it is onl giving the plaintiff the
chance to prove, if it can, that the defendant is liable!G
@! +bout the issue of whether or not the municipalit is liable for the torts
committed b its emploee, the test of liabilit of the municipalit depends on whether
or not the driver, acting in behalf of the municipalit is performing governmental of
propriet functions! +s emphasi*ed in the case of &orio vs! 'ontanilla, the distinction
of powers becomes important for purposes of determining the liabilit of the
municipalit for the acts of its agents which result in an in>ur to third persons!
It has alread been remarked that municipal corporations are suable
because their charters grant them the competence to sue and be sued! 0evertheless,
the are generall not liable for torts committed b them in the discharge of
governmental functions and can be held answerable onl if it can be shown that the
were acting in a propriet capacit! In permitting such entities to be sued, the #tate
merel gives the claimant the right to show that the defendant is not acting in its
governmental capacit when the in>ur was committed or that the case comes under
e3ceptions recogni*ed b law! 'ailing this, the claimant cannot recover!
JsM41
A! In the case at bar, the driver of the dump truck of the municipalit insists
that Fhe was on his wa to 0aguilian ;iver to get a load of sand and gravel for the
repair of #an 'ernando-s municipal streets!G
In the absence of an evidence to the contrar, the regularit of the
performance of official dut is presumed pursuant to #ection @ Bm? of ;ule 1@1 of the
;evised ;ules of %ourt, )ence, 6e rule that the driver of the dump truck was
performing duties or tasks pertaining to his office!
0. Rea( RA 939< ; DIGITEL Fran-ise
&he title states: ;epublic +ct no! =5=., 'ebruar 1=, 144A: +n +ct granting
the Digital &elecommunications $hilippines, Incorporated, a franchise to install,
operates and maintains telecommunications sstems throughout the $hilippines and
for other purposes!
#ection 1@ states: F6arrant in 'avor of the 0ational and 8ocal ,overnment!
&he grantee shall hold the national, provincial, cit and municipal governments
harmless from all claims, accounts, demands or actions arising out of accidents or
in>uries, whether to propert or to persons, caused b the installation and operation of
the telecommunications sstems of the grantee!G
* Liability for +ontract
Municipal corporations are liable on contracts entered into in their behalf b
their authori*ed agents acting within the scope of their authorit, provided that the
municipal corporations are authori*ed to enter into said contracts b their charter!
* Section ,-, LG+. Liability for damages
8,D-s and their officials are not e3empt from liabilit for death or in>ur or
damage to propert!
5. Ci,. '* Manila /. 6AC #92 SCRA 5)0
Fa-,s: &he %it of Manila leased a lot of the 0orth %emeter to Irene #to!
Domingo! &he period of the lease is from 7une 5, 14=1 to 7une 5, 2001!
Irene-s husband died and was buried in said lot on 7une 5, 14=1! &he
authorities of the 0orth cemeter however, ordered the lot e3humed on 7anuar 2/,
14=., according to their interpretation in good faith of +" 0o! /, 14=/, which provided
for a uniform procedure and guidelines in the processing of documents pertaining to
and for the use and disposition of burial lots and plots within the 0orth %emeter, etc!
0aturall, Irene and her famil were shocked, +dding to their disma was
that the remains of her husband was callousl dumped in a warehouse of a cemeter
were thousands of other sacks of bones were kept! &he risk, according to her, of
claiming the wrong set of bones was high! Irene filed a claim for damages against the
cit! 6ill the suit prosperP
Hel(: Qes, reasons:
1! In connection with its powers as a municipal corporation, the %it of
Manila ma acIuire propert in its public or governmental capacit, and
private or propriet capacit! &he 0%% divides such properties into
propert for public use as provincial roads, cit streets, municipal
streets, the sIuares, fountains, public waters, promenades, and public
works for public service paid for b said provisions, cities or
municipalities, all other propert is patrimonial without pre>udice to the
provisions of special laws!
2! In the absence of special law, the 0orth %emeter is a patrimonial
propert of the %it of Manila, which was created b resolution of the
Municipal Board of +ugust 2=, 140@ and 7anuar =, 140A! 6ith its acts
of dominion, there is therefore no doubt that the 0orth %emeter is
within the class of propert which the %it of Manila owns in its propriet
of private character! 'urthermore, there is no dispute that the burial was
leased in favor of the #to! Domingo! )ence, obligations arising from
contracts have the force of law between them! &herefore, a breach of
contractual provision entitles the other part to damages even of no
penalt for such breach is prescribed in the contract!
@! It should also be noted that the %harter of Manila states that it ma sue
and be sued! B virtue if this and the doctrine of respondent superior,
the %it is liable for the negligent acts of its agents in failing to verif the
duration of the lease above( Iuoted! &he agents- reliance in +" 0o!/ is
unavailing because said +" covers onl new leases!
* Doctrine of Implied Municipal Liability (Contra personal liability)
&o hold a municipal corporation for benefits received under an implied
contract:
a! It is necessar to show that the implied contract be
within the contractual powers of the corporation and
that the officers who entered into contract were full
authori*ed!
b! It must be further shown that the benefits were
voluntaril accepted under such circumstances as will
indicate that pament was intended b the parties or
that >ustice and eIuit would reIuire the pament of
compensation!
#. In-i'n7 /. D'!in7' )## SCRA #02
Fa-,s: &his case basicall concerns the implied liabilit of a municipal
corporation in paing the fees of an attorne it hired! But first, the useless facts!
JsM42
&he $hilippines #ugar %ommission B$)I8#D%"M? owned a sugar refiner
at Baranga %aloocan, Balaan, Batangas! )owever, $)I8#D%"M failed to pa the
real state ta3es due on said sugar refiner! #o the $rovincial &reasurer of Batangas
scheduled for the sale of the sugar refiner thru a public auction!
$)I8#D%"M, however, was granted a restraining order maintaining the
status Iuo! In the meantime, Baranga %aloocan, thru +tt! %eferino Inciong,
intervened in the case as it had 10R propert ta3 share to be collected form
$)I8#D%"M! &o make the long stor short, +tt! Inciong eked out a compromise
agreement for both warring parties so everbod went home happ e3cept for +tt!
Inciong!
It seemed that the reIuest of the Baranga %aptain of %aloocan for
petitioner-s legal assistance was not taken up nor approved b the #angguniang
Baranga nor was there an showing that it was approved b the #olicitor ,eneral
and concurred in b %"+ as reIuired under %"+ %ircular 0o! .5 C 2//, dated +pril 2,
14.5!
+lso it seemed that the hiring of petitioner b the $unong Baranga did not
carr with it the approval of the #angguniang Baranga as reIuired under #ection 41
B1(1? of the B!$! @==, nor was there an appropriation therefore2 the hiring was not
approved b the #olicitor ,eneral and concurred in b %"+!
In other words, Baranga %aloocan doesn-t want to pa +tt! Inciong! Is that
correctP
Hel(: "ur companero must be paid! ;easons:
1! 6e don-t want to see a kindred spirit get unpaid or else we
lawers will have to go on strike!
2! +s correctl stated b the "ffice of the #olicitor ,eneral, the
position of respondent %hairman of the %"+ disallowing pament of attorne-s fees to
petitioner +tt! %eferino Inciong is not proper in the light of the following
considerations:
a! &he emploment b Baranga %aloocan of petitioner as its
counsel, even if allegedl unauthori*ed b the #angguniang
Baranga, is binding on Baranga %aloocan as it took no
prompt measure to repudiate petitioner-s emploment!
b! &he decision of the ;&% directing Baranga %aloocan to pa
attorne-s fees to petitioner has become final and e3ecutor
and is binding upon Baranga %aloocan!
c! %"+ %ircular 0o! .5 C 2// cannot diminish the substantive
right of petitioner to recover attorne-s fees under the final and
e3ecutor decision dated +ugust 4, 14.4 of the ;egional &rial
%ourt!
@! &he respondent %"+ %hairman states that $)I8#D%"M paid
the amount of =,144,..=! /1 pesos to the Municipal &reasurer under the +mnest
%ompromise +greement! "ut of this amount, the Municipal &reasurer allocated to
Baranga %aloocan as its share the amount of =14,4..!=/ pesos! &his allocation is
erroneous because pursuant to ;epublic +ct 0o! /AA=, Baranga %aloocan should
onl share from the basic ta3 which is /0R of what $)I8#D%"M paid because the
other half should go to the #pecial <ducation 'und! Dnder the said ;epublic +ct 0o!
/AA=, the rightful share of Baranga %aloocan should be @/4,4AA!@. pesos onl!
&he %hairman praed that in the event the %ourt orders the pament of attorne-s
fees to petitioner this amount of @/4,4AA!@. pesos should be made the basis
therefore! &he %ourt replied in a booming voice, F6)<;<'";<, the petition is
,;+0&<D and respondent is ordered to direct the pament of attorne- fees to
petitioner +tt! %eferino Inciong in an amount eIuivalent to 10R of @/4,44A!@.
pesos!G
). Pr'/in-e '* Ce"$ /. 6AC #59 SCRA 559
Fa-,s: +gain, this case concerns the implied liabilit of a municipal
corporation in paing the fees of an attorne hired C but the attorne ended up with
onl a pittance!
&here was a time when %ebu %it almost became the owner of practicall
the whole of the $rovince of %ebu! &his happened in 'eb! A! 145A when the Vice C
,overnor and the $rovincial Board of %ebu, taking advantage of ,overnor ;ene
<spina-s absence Bhe was awa on an official business trip UowsPV\ donated 210 lots
or @.0 hectares of provincial patrimonial land to %ebu %it! 6hen ,overnor <spina
finall heard of the donation, he filed a case to declare the donation void for being
illegal and immoral! &he defendants in the case were %ebu %it, %it maor #ergio
"smena and the dumb provincial officials responsible for the donation!
,overnor <spina hired +tt! $ablo ,arcia, a private lawer, as his counsel!
+tt! ,arcia toiled for . ears on the case, but for some reason, he was no longer
counsel when the parties settled for a compromise agreement! 0evertheless, +tt!
,arcia claims he is entitled to fees worth @0R of the worth of the properties or @5
million pesos Ba staggering amount, considering that the amount was based on the
peso ( dollar rates of 14=4?!
&he province of %ebu %it however refused to give him even one centavo!
&he said #ec! 15.@ of the ;+% and #ec! @ of the 8ocal +utonom 8aw is clear that
onl the provincial fiscal and municipal attorne can represent a province or
municipalit in its lawsuits! More importantl, if the province of %ebu were to hire a
private lawers Bsuch as when the provincial fiscal is disIualified? the $rovincial Board
must pass a resolution to allow such a move!
&he &rial court awarded attorne-s fees based on Iuantum merit! "n appeal,
the I+% awarded /R worth of properties! &he Iuestions now are 1! #hould the
province pa +tt! ,arcia and 2P If so how much is +tt! ,arcia entitled toP
JsM43
Hel(: &he province must pa +tt! ,arcia but he is entitled onl to Iuantum
merit! ;easons:
1! Ibi Iuid generaliter conceditur2 inest haee e3ception, si non
aliIuid sit contra >us fasIue! B6here anthing is granted
generall, this e3ception is implied2 that nothing shall be
contrar to law and right?! &his simpl means that ever rule, no
matter how strict or harsh, must have an e3ception! )ere, eIuit
comes into pla! &o den +tt! ,arcia compensation for his
professional services would amount to a deprivation of propert
without due process of law!
2! &he argument that the hiring of private lawers b a province
must first gain the approval of the $rovincial Board is absurd!
'irst of all, the service of the $rovincial 'iscal has alread been
engaged b the $rovincial Board! More importantl, it-s so
stupid for the $rovincial Board to pass a resolution grant the
hiring of a private lawer who would litigate against them! &he
$rovincial Board ma >ust not pass such a resolution! &he legal
ma3im which we can use as a basis for this situation is F0emo
tenetur ad impossibileG B&he law obliges no one to perform an
impossibilit?
@! Dntil the contrar is clearl shown, an attorne is presumed to
be acting under authorit of the litigant whom he purports to
represent! )is authorit to appear for and represent petitioner in
litigation, not having been Iuestioned in the lower court, it will
be presumed on appeal that counsel was properl authori*ed to
file the complaint and appear for his client! <ven where an
attorne is emploed b an unauthori*ed person to represent a
client, the latter will be bound where it has knowledge of the fact
that it is being represented b an attorne in a particular
litigation and takes no prompt measure to repudiate the
assumed authorit! #uch acIuiescence in the emploment of an
attorne as occurred in this case is tantamount to ratification!
&he act of the successor provincial board and provincial officials
in allowing +tt! $ablo $! ,arcia to continue as counsel and in
>oining him in the suit led the counsel to believe his services
were still necessar!
A! +tt! ,arcia is entitled onl to Iuantum merit! )e simpl was not
counsel when the compromise agreement was made! )e gets
onl @0,000 pesos,
* .nstances where the municipal mayor was held liable for bac# salaries of,
or damages to dismissed municipal employees, to the exclusion of the municipality
Salcedo vs. +ourt of (ppeals C the municipal maor was held liable for the
back salaries of the %hief of $olice he had dismissed, not onl because the dismissal
was arbitrar but also because the maor refuse to reinstate him in defiance of an
order of the +ommissioner of +ivil Service to reinstate.
0emen*o vs! #abillano C the municipal maor was held personall liable for
dismissing a police corporal who possessed the necessary civil service eligibility, the
dismissal being done without >ustifiable cause and without an administrative
investigation!
ama vs. +ourt of (ppeals( the governor, vice C governor, member of the
#angguniang $anlalawigan, provincial auditor, provincial treasurer and provincial
engineer were ordered to pa >ointl and severall in their individual and personal
capacit damages to some 200 emploees of the province of %ebu who were eased
out from their positions because of their part affiliations!
* .nstance where the municipality was also held liable along with municipal
mayor
0. La7anapan /. Ase(ill' #15 SCRA 099
Fa-,s: #olano 8aganapan was appointed %hief of $olice! )owever, he was
summaril dismissed from his position b respondent Maor <lpidio +sedillo of
1alaaan, 8aguna on the ground that his appointment was provisional and that he
has no civil service eligibilit! ;espondent <pifanio ;agotero was appointed acting
chief of police of 1alaaan, 8aguna on the same da in place of the petitioner!
#ubseIuentl, the Municipal %ouncil of 1alaaan, 8aguna abolished the
appropriation for the salar of the chief of police of 1alaaan, 8aguna! 8aganapan
thus filed a complaint against Maor +sedillo and the Municipalit of 1alaaan for
reinstatement and pament of back wages! Ma 8aganapan be reinstatedP Is the
Municipalit also liableP
Hel(: &he municipalit is liable but 8aganapan cannot be reinstated!
;easons:
1! 8aganapan was summaril dismissed without an semblance
of compliance with due process! 0o charges were filed, no notice or hearing was
made, no nothing! &he %ourt finds no merit in the maor-s contention that, since the
appointments e3tended to 8aganapan as chief of police of 1alaaan, 8aguna, were all
provisional in nature, and not permanent, his services could be terminated with or
without cause at the pleasure of the appointing officer! 6hile it ma be true that
8aganapan was holding a provisional appointment at the time of his dismissal, he was
not a temporar official who could be dismissed at an time! )is provisional
appointment could onl be terminated thirt B@0? das after receipt b the appointing
officer of a list of eligible form the %ivil #ervices %ommission! )ere no such
certification was received b Maor +sedillo thirt B@0? das prior to his dismissal of
8aganapan!
'urthermore, it is of record that, after the summar dismissal of 8aganapan
b +sedillo, the Municipal %ouncil of 1alaaan instead of opposing or at least
protesting 8aganapan-s summar dismissal of his position, even abolished the
JsM44
appropriation for the salar of the %hief of $olice of 1alaaan C 8aguna! &he %ourt
considers this act of the Municipal %ouncil as an approval or confirmation of the act of
respondent Maor in summaril dismissing 8aganapan, as to make said municipalit
eIuall liable as the maor for the reinstatement of 8aganapan and for the pament of
his back salaries!
'inall it should be noted that +sedillo was sued not personall, but in his
capacit as maor!
2! 8aganapan cannot be reinstated! $D A.2, recentl enacted at
that time, calls for the appointment of a permanent %hief of $olice Bknown as #tation
%ommander?, in certain provinces including 8aguna! )is reinstatement is not feasible!
&he Maor and the municipalit are instead liable for pament of back salaries!
5. Sal-e(' /. CA <# SCRA 54<
Fa-,s: +rsenio #alcedo was appointed %hief of $olice of %andelaria,
Hue*on! ;ecords show that #alcedo then held civil service eligibilit, having passed
the D!#! %ivil #ervice <3amination for Messenger and #killed laborer in 142.!
%onsidering his eligibilit appropriate to the position of %hief of $olice, the
%ommissioner of %ivil #ervice validated the same and attested the appointment of
#alcedo as permanent! #ince then #alcedo has discharged the functions of his office
+n administrative complaint for misconduct and serious irregularities was
later filed against #alcedo! It seemed however that the maor of %andelaria,
Venancio Dia wanted him kicked out right awa so he terminated the services of the
poor gu! &he basis of the termination was erroneous and illegal, since #alcedo didn-t
possess the appropriate eligibilit for the position of %hief of $olice Bhis civil service
eligibilit arose form a D!# based test, rememberP?
#alcedo appealed to the %ommissioner of %ivil #ervice! +lthough the
%ommissioner found him guilt of conduct unbecoming of a police officer, he was
nevertheless reinstated and was given a fine and a warning instead!
&he Maor however reall hated the gu! )e refused to have #alcedo
reinstated! &he %+ agrees with the maor!
&he lone issue in this instant action is whether the respondent maor can
legall terminate #alcedo-s services notwithstanding the attestation of the latter-s
appointment as permanent b the %ommissioner of %ivil #ervice!
Hel(: &he maor cannot terminate #alcedo-s services! &he reason is that
even though he did not take the reIuired e3amination either under the "ld or 0ew
%ivil #ervice 8aw, that wasnWt his fault! )is claim to eligibilit came from the D! #! %ivil
#ervice <3amination he took in 142. when the $hilippines was still a D!# %olon!
#alcedo cannot be reIuired to take the e3amination again after his eligibilit had
alread been declared permanent b the %ommission!
&he respondent maor persistentl ignored the order of reinstatement given
b the %ommissioner of %ivil #ervice! )e defied the directive of a superior bod with
final authorit on the matter which is the maorWs dut to compl! 'or acting arbitraril
and without legal >ustification in terminating the services of petitioner and refusing to
reinstate him as %hief of $olice, the maor must be held personall liable for the back
salaries of #alcedo, e3cept for the time #alcedo was suspended!
Le7isla,i/e P'&ers
T ;eIuisites of a valid ordinance
1! Must not contravene the constitution or statute
2! Must not be oppressive
@! Must not impartial, fair and general
A! Must not prohibit, but ma regulate trade
/! Must not contravene common right
5! Must be consistent with public
=! Must not be unreasonable
0"&<: #ee also #olicitor ,eneral V! MM+, p! 2/ of this reviewer
Distinction between an "rdinance and a ;esolution
+n ordinance prescribes a permanent rule of conduct government2 whereas
a resolution is of temporar character onl
T+rticle 10=, I;;! "rdinances and ;esolutions! &he following rules shall govern the
enactment of ordinances and resolutions:
1! 8egislative actions in a general and permanent character shall be enacted in
the form of ordinances, while those temporar characters shall be passed in
the form of resolutions! Matters relating to propriet functions and to private
concerns shall be enacted in a resolution!
2! $roposed ordinances and resolutions shall begin writing and shall contain an
assigned number, a title or caption, an enacting or ordaining clause and the
date of its proposed effectivit! In addition, ever proposed ordinance shall
be accompanied b a brief e3planator note contain the >ustification for its
approval! It shall be signed b the author or authors and submitted to the
secretar to the sanggunian who shall report the same to the sanggunian at
the ne3t meeting!
@! + resolution shall be enacted in the same manner prescribed for an
ordinance, e3cept that it need not go through a third reading for its final
consideration unless decided otherwise b a ma>orit of the sanggunian
members!
A! 0o ordinance or resolution shall be considered on second reading in an
regular meeting unless it has been reported out b the proper committee to
which it was referred or certified as urgent b the local chief e3ecutive!
/! +n legislative matter dul certified b the local chief e3ecutive as urgent
whether or not it is included in the calendar of business, ma be presented
JsM45
and considered b the bod at the same meeting without need of
suspending the rules!
5! &he secretar to the sanggunian of the province, cit or municipalit shall
prepare copies of the proposed ordinance or resolution in the form it was
passed on second reading and shall distribute to each sanggunian member
a cop thereof, e3cept that a measure certified b the local chief e3ecute as
urgent ma be submitted for final voting immediatel after debate or
amendment during the second reading!
=! 0o ordinance or resolution passed b the sanggunian in a regular or special
session dul called for the purpose shall be valid unless approved b
ma>orit of the members present, there being a Iuorum! +n ordinance or
resolution authori*ing or directing the pament of mone or creating liabilit,
shall reIuire the affirmative vote of all the sanggunian members for its
passage!
.! Dpon passage of all ordinances and resolution directing the pament of
mone or creating liabilit, and at the reIuest of an members, of an
resolution or motion, the sanggunian shall record the aes and nas! <ach
approved ordinance or resolution shall be stamped with the seal of the
sanggunian and recorded in a book kept for the purpose!
*(rticle /01 2 /--, ., LG+
+s we go along this reviewer, weWll ferret out the cream from the crap C which
articles deserve to be read again and again and which should be considered stinker,
articles of such >aw ( dropping ineptitude that the hapless law student has no
recourse but to shake her head and mutter, F6hat the hell the were thinkingP!G But
then, this is >ust probabl the author talking la*, so go read the codal instead!
#. Mas-$nana /. Pr'/in-ial B'ar( '* Ne7r's O--i(en,al 92 SCRA 002
Fa-,s: &he case doesn-t reall teach mush (if anthing at all C about the
coordinates and resolution but anwa!!!
+ngel Mascunana and +ngeles Veldeflor lived near a piece of land which
was the sub>ect of controvers of this case! &he two claimed that this piece of land
was actuall part of the e3tension of Burgos #treet! "n this piece of land were
sIuatters and their houses! "ne of the sIuatters was an influential councilor named
8eon &rees!
&he two reIuested the municipal maor of &alisa, 0egros "ccidental that
the land in Iuestion be cleared of sIuatters so that the public can make use of that
portion of Burgos #treet!
+ debate resulted on whether the land had been used as street or has it
been withdrawn form public! &he municipal council of &alisa made an ocular
inspection of the place and declared that there was no reason for opening it to
vehicular traffic Bnote that &rees is a member of the municipal council?! &he
municipal council thus passed ;esolution no! /4 ordering the said land closed! &he
provincial board of 0egros "ccidental approved ;es! 0o! /4 thru its res! 0"! 10@/
Mascunana and Veldeflor filed a complaint with the V%'I of 0egros
"ccidental Iuestioning the validit of the two resolutions! &he wanted the street
opened because it was a propert of public dominion and if the same was not
possible, then the should have been indemnified for damages under #ec! 22A5 of
the ;+% since their properties were ad>acent near the Iuestioned land! &he %'I
however dismissed their complaint summaril in a minute resolution! &he reason, the
%'I e3plained, is that the issue concerns a resolution passed b a municipal
corporation and therefore does not need to be resolved thru an action for declarator
relief! #ection 1, ;ule 5A of the ;ules of %ourt, the pertinent rule to be followed in this
case, refers onl to an ordinance and not a resolution!
#hould the %'I pass on the merits of the case of Mascunana and VeldeflorP
)eld: Qes! + trial courtWs order dismissing a complaint or petitions is
appealable like a final >udgment! +lso, Mascunana, et! al!Ws action is not an action for
declarator relief but an ordinar action for the enforcement of #ec! 22A5 of the ;+%!
&he issue on whether the complaint involved an ordinance or a resolution is
irrelevant!
). Ma7,aIas /. Pr.-e Pr'per,ies 6$l. )48 #225
Fa-,s: &his case is interesting because local autonom was defeated
unwittingl perhaps b the same statute granting it! &he 8,% of 1441!
$+,%";, drunk with the success because it was able to open casinos in
several cites, announce plans of opening one in %agaan de "ro %it! &he reaction of
the #angguniang $anlungsod of said cit was swift: it passed 2 ordinances preventing
the operation of casinos in its territor! Maor $ablo Magta>as, one of the petitioners,
said the ordinances were valid because 1! the #angguniang $anlungsod have the
power to enact ordinances to prevent, suppress and impose appropriate penalties for
gambling and other prohibited games of chance B+rt! A5., 8,%, 1441?2 2! the
ordinance were an e3pression of the police power under the ,eneral 6elfare %lause2
and @! the 8,% of 1441 modified the charter of the $+,%"; as the 8,% of 1441 was
a later enactment of %ongress! Is Magta>as correctP
Hel(: 0o! ;easons:
1! +rt! A. of the 8,% clearl refers onl to prohibit gambling and other games
of chance! %asinos are not prohibited because the are e3pressl allowed
b $!D! 1.54! the law creating $+,%";!
2! &he ordinances in Iuestion cannot contravene $D 1.@4! It must be
remembered that a municipal ordinance to be valid, must among others not
contravene the constitution or any statute. &he reason is that municipal
governments are mere agents of the state!
JsM46
@! &he repealing clause of 8,% of 1441 did not e3pressl repeal $D 1.54!
Implied repeal, on the other hand are not lightl presumed in the absence of
a clear and unmistakable showing of such intention! &here was no sufficient
indication of an implied repeal of $D 1.54! In fact, later enactments after the
8,% of 1441 recogni*e the e3istence of $D 1.54! &he rule in legal
hermeneutics is that statues should not be pit against each other but
instead, ever effort b the courts must be made to harmoni*e them! +s a
becoming respect to a co ( eIual BidioticP? branch of government!
V. INTERGOVERNMENTAL RELATIONS OF PUBLIC CORPORATIONS ?ART. 128
358 IRR@
(rticle 34, .... General supervision of the province over component cites and
municipalities.
a! &he province, thru its governor, shall e3ercise supervisor authorit over
component cities and municipalities within its territorial >urisdiction to ensure that the
act within the scope of their prescribed powers and function! )ighl urbani*e cites
and independent component cities shall be independent of the province!
b! &he scope of the supervision b the province over component cites and
municipalities shall include but not limited to the following:
1! &he governor shall review e3ecutive order issued b the maor of the
component cit or municipalit, sub>ect to the concurrence of the
sangguniang panlalawigan, e3cept as otherwise provided under the
%onstitution and special statutes! If the governor and the sangguniang
panlalawigan failed to act on said e3ecutive order within @0 das form
receipt thereof, the same shall be deemed consistent with law and therefore
valid!
2! &he sangguniang panlalawigan shall review all approved cit or municipal
ordinance and resolution approving the development plans and public
investment programs formulated b the cit or municipal development
councils!
@! &he #$ shall review the ordinances authori*ing annual or supplemental
appropriations of component cities and municipalities in the same manner
and within the same period prescribe for the review of other ordinances of
the 8,D!
A! &he governor shall visit component cities and municipalities of the province
at least once ever 5 months to full understand their problems and
conditions, listen and give appropriate counsel to local officials and
inhabitants, inform the officials and inhabitants of component cites and
municipalities of general laws and ordinances which especiall concern them
and conduct visits and inspections to the end that the governance of the
province shall improve the Iualit of life of the inhabitants!
/! &he governor shall coordinate plans of the province in coordination with
maors of cites and municipalities as well as 0,"Ws concerned to:
a! 'ormulate peace and order plan of the province in coordination with
maors of component cities and municipalities and the 0ational $olice
%ommission!
b! +dopt adeIuate measure to safeguard and conserve land, mineral,
marine, forest and other resources of the province, in coordination with
maors of component cities and municipalities!
c! %oordinate efforts of component cites and municipalities in the national
or regional palaro or sports development activities2 and
d %all conventions, seminars, conferences or meetings of an elective and
appointed officials of the province and component cities and municipalities!
5! &he proceeds of the basic real propert ta3, including interest thereon and
proceeds form the use, leas or disposition, sale or redemption of propert
acIuired at a public auction shall be shared b the province, municipalit
and baranga in the manner prescribed in ;ule MMMI of these ;ules!
=! &he province shall share its collections form the ta3 on sand, gravel and
other Iuantit resources within its component cit and municipalit and the
baranga where said resources are e3tracted!
* (rticle 5,, .. ole of people6s organi7ations, non 2 governmental
organi7ations and the private sector
8,DWs shall promote the establishment and operation of peopleWs
organi*ations, 0,"s and the private sector to make them active partners in the
pursuit of local autonom! 'or this purposes, peopleWs organi*ation, 0,"Ws and the
private sector shall be directl involved in the following plans, programs, pro>ects and
activities of 8,Ds:
a! 8ocal special bodies2
b! Deliver of basic services and facilities
c! 7oint ventures and cooperative programs and undertakings
d! 'inancial and other forms of assistance
e! $referential treatment for organi*ations and cooperatives of marginali*ed
fishermen
f! $referential treatment for cooperatives development and
g! 'inancing, cooperative, maintenance, operation, and management of
infrastructure pro>ects
* /. Between the national government and the local governments8 ,. 9ith P$P8 %.
9ith component cites and municipalities8 -. 9ith People6s and $on 2 Governmental
'rgani7ations :Sec. ,3;%5, LG+<
Sec. ,3. $ational supervision over local governments
JsM47
a! %onsistent with the basic polic on local autonom, the $resident shall
e3ercise general supervision over 8,DWs to ensure that their acts are within the scope
of their prescribed powers and functions!
&he $resident shall e3ercise supervisor authorit directl over provinces,
highl urbani*ed cities and independent component cities, thru the province with
respect to component cities and municipalities and the cit and municipalities with
respect to barangas!
b! 0ational +gencies and offices with the pro>ect implementation functions
shall coordinate with one another and with the 8,DWs concerned in the discharge of
these functions! &he shall ensure the participation of 8,DWs both in the planning and
implementation of the said pro>ects!
c! &he $resident ma, upon reIuest of the 8,D concerned, direct the
appropriate national agenc provide financial, technical or other forms of assistance
to the 8,D! #uch assistance shall be e3tended at e3tra cost to the 8,D concerned
d! 0ational agencies and offices including government C owned or controlled
corporations with field under or branches in a province, cit or municipalit shall
furnish the local chief e3ecutive concerned, for information and guidance, monthl
reports including dul certified budgetar allocations and e3penditures!
Sec. ,5. =uty of national government agencies in the maintenance of ecological
balance :"ust go and read the code or >G+<
Sec. ,?. Prior consultations re!uired :>G+<
Sec. ,1. Powers of local chief executives over the units of the Philippine $ational
Police
&he e3tent of operational management and control of local chief e3ecutives
over the police force, fire protection unit, and >ail management personnel assigned in
their respective >urisdictions shall be governed b the provisions of ;+ 54=/,
otherwise known as the FDI8, +ct of 1440G, the rules and regulations issued are
pursuant thereto!
Sec. ,4. Provincial relations with component cites and municipalities
&he province, thru the governor, shall ensure that ever component cities
and municipalit within its territorial >urisdiction acts within the scope of its prescribed
powers and functions! )ighl urbani*ed cities and independent component cities shall
be independent of the province!
Sec. %0. eview of executive orders
a! <3cept as otherwise provided under the %onstitutions and special statues,
the governor shall review e3ecutive orders promulgated b the component cit or
municipal maor within his >urisdiction! &he cit municipal maor shall review all <"Ws
promulgated b the punong baranga within his >urisdiction! %opies of such orders
shall be forward to the governor or the cit or municipal maor, as the case ma be,
within @ das from their issuance! In all instances of review, the local chief e3ecutive
concerned shall ensure that such <"Ws are within the powers granted b law and in
conformit with provincial, cit or municipal ordinances!
b! If the governor or cit or municipal maor fails to act on said <"Ws within
@0 das of submission, the same shall be deemed consistent with law and therefore
valid!
Sec %/. Submission of municipal !uestion to the provincial legal officer or prosecutor
In the absence of municipal legal officer, the municipal government ma
secure the opinion of the provincial legal officer and in the absence of the latter, that
of the provincial prosecutor on an legal Iuestion affecting the municipalit
Sec %,. +ity and municipal supervision over their respective barangays
&he cit or municipalit, thru the cit or municipal maor concerned shall
e3ercise general supervision after component baranga to ensure that said
barangas act within the scope of their prescribed powers and functions!
Sec %%. +ooperative underta#ings among LGU6s
8,DsW ma, thru appropriate ordinances, group themselves, consolidate, or
coordinate their efforts, services and resources for purposes commonl beneficial to
them! In support of such undertakings, the 8,DWs involved ma, upon approval b the
sanggunian concerned after a public hearing for the purpose, contribute lands, real
estate, eIuipment, and other king of propert and appoint or assign personnel under
such terms and conditions as ma be agreed upon b the participating local units thru
Memoranda of +greement!
Sec. %-. ole of people6s and non 2 governmental organi7ations
8,DWs shall promote the establishment and operation of peopleWs and non C
governmental organi*ation to become active partners in the pursuit of local autonom!
Sec. %3. Lin#ages with people6s and non 2 governmental organi7ations
8,DWs ma enter into >oint ventures and such other cooperative agreements
with peopleWs and non C governmental organi*ations to engage in the deliver of basic
services, capabilit C building and livelihood pro>ects, and top develop local
enterprises designed to improve productivit and income, diversit, agriculture, spur
industriali*ation, promote ecological balance and enhance the economic and social
well C being of the people!
Sec %5. (ssistance to people6s and non 2 governmental organi7ations
JsM48
+n 8,D ma thru its local chief e3ecutive and with the concurrence of the
sanggunian concerned, provide assistance, financial or otherwise to such peopleWs
and non C governmental organi*ations for economic , sociall C oriented,
environmental, or cultural pro>ects to be implemented within its >urisdiction!
REMUIREMENTS AND PROHIBITIONS APPLICABLE TO ALL LOCAL OFFICIALS
AND EMPLOYEES ?Se- 248 258 258 Ar, #998 #928 IRR@
Section 40. Practice of Profession
a! +ll governors, cit and municipal maors are prohibited from practicing
their profession or engaging in an occupation other than the e3ercise of their
functions as local chief e3ecutives!
b! #anggunian officials ma practice their professions, engage in an
occupation, or teach in schools e3cept during session hours! $rovided, that
sanggunian members who are also members of the Bar shall not:
1! +ppear as counsel before an court in an civil case wherein and 8,D or
an office, agenc or instrumentalit of the government is the adverse part
2! +ppear as counsel in an criminal case wherein an official or emploee of
the national or local government is accused of an offense committed in
relation to his office
@! %ollect an fee for their appearance in administrative proceedings involving
the 8,D of which he is an official
A! Dse propert and personnel of the ,overnment e3cept when the sanggunian
member concerned is defending the interest of the ,overnment!
c! Doctors of medicine ma practice their profession even during official hours
of work onl on occasion of emergenc! $rovided, that the official do not
derive an monetar income profession!
Section 4-. (ppointment of elective and appointive local officials8 candidates who lost
in an election
a! 0o elective or appointive local official shall be eligible for appointment or
designation in an capacit to an public office or position during his tenure
Dnless otherwise allowed b law or primar functions of his position, no
elective or appointive local official shall hold an other office or emploment in the
,overnment or an subdivision or agenc, or instrumentalit thereof, including
government C owned or controlled corporation B,"%%? or their subsidiaries2
b! <3cept for losing candidates in baranga elections, no candidate who lost in an
elections shall within 1 ear after such election be appointed to an office in the
,overnment or an ,"%% or in an of the subsidiaries
Section 43. (dditional or double compensation
0o elective or appointive local official or emploee shall receive additional,
double or indirect compensation unless specificall authori*ed b law, nor accept,
without the consent of %ongress, an present, emoluments, office, or title of an kind
form an foreign government! $ensions or gratuities shall not be considered
additional or double or indirect compensation!
(rticle /??. .. Practice of profession. Same as Section 40, LG+
(rticle /?4. . Prohibited business and pecuniary interest.
a! It shall be unlawful for an local government official or emploee whether
directl or indirectl, to:
1! <ngage in an business transaction with the 8,D in which he is an official or
emploee or over which he has the power of supervision or with an of its
authori*ed boards, officials, agents or attornes where mone is to be paid,
or propert or an other thing of value is to be transferred, directl or
indirectl, out of the resources of the 8,D to such person or firm2
2! )old such interests in an cockpit or other games licensed b 8,D
@! $urchase an real estate or other propert forfeited in favor of an 8,D for
unpaid ta3es or assessment or b virtues of a legal process at the instance
of the said 8,D
A! Be a suret for an person contracting or doing business with an 8,D for
which a suret is acIuired2 and
/! $ossess or use an public propert of an 8,D for private purposes
b!, +ll other prohibitions governing the conduct of national public officers relating to
prohibited business and pecuniar interest so provided in ;+ 5=1@, otherwise known
as the %ode of %onduct and <thical #tandards of $ublic officials and <mploees, and
other rules and regulations shall also be applicable to local government officials and
emploees!
;ead #% %ircular 0o! 12 dated 7une @0, 14..
%irculars passed b the #% and administrative agencies are a bit more
difficult to research! &heWre probabl not that important anwa C probabl!
1. Javellana v. DILG 1 !C"# $%&
Fa-,s: +ttorne <dwin 7avellana was a cit councilor of Bago %it, 0egros
"ccidental! )e was accused of engaging in the practice of law without securing
authorit form the ;egional Director of the Department of 8ocal ,overnment! )e also
filed a case against the %it <ngineer, obviousl a fellow cit official! 7avellana
contends that the 2 ordinances and #ec! 40 of the 8,% of 1441 which served as the
basis of the charges against him were unconstitutional because, according to +rticle
VIII #ection / of the 14.= %onstitution, onl the #upreme %ourt ma promulgate rules
and regulations for the practice of law! )e also attacked the said laws for being
JsM49
discriminator for the ganged upon lawers and doctors when other similar
professions like teachers and morticians were not affected!
Hel(: 7avellana is wrong! ;easons:
1! )is contention that #ection 40 of the 8,% of 1441 and D8, Memorandum
%ircular 0o! 40(.1 violate +rticle VII, #ection / of the %onstitution is completel off
tangent! 0either the statute nor the circular trenches upon the #upreme %ourtWs
power and authorit to prescribe rules on the practice of law! &he 8,% and D8,
Memorandum %ircular 0o! 40( .1 simpl prescribes rules of conduct for public
officials to avoid conflict of interest between the discharge of their public duties and
the private practice of their profession, in those instances where the law allows it!
2! #ection 40 of the 8,% does not discriminate against the lawers and
doctors! It applies to all provincial and municipal officials in the professions or
engaged in an occupation! #ection 40 e3plicitl provides that sanggunian members
Fma practice their professions, engage in an occupation or teach in school e3cept
during session hoursG! If there are some prohibitions that appl particularl to lawers,
it is because of all the professions, the practice of law is more likel than other to
relate to or affect the area of public service
). Ville7as /. Le7a=pi ##0 SCRA 02
Fa-,s: ;aul Villegas was an +ssemblman of the Batasang $ambansa form
the province of %ebu! <stanislao 'ernande* was also an +ssemblman Bfrom where,
the case doesnWt sa, but thatWs not important?! Both were accused of violating #ec! 11
+rticle VIII of the 14=@ %harter which states that: F0o member of the 0ational
+ssembl shall appear as counsel before an court inferior to a court without
appellate >urisdiction! &he records show the appeared as counsel for cases which
were e3ercised b the [email protected] in their original "urisdiction! Did the violate the
constitutional prohibitionP
Hel(: Qes! #tated positivel, the constitutional provision allows
+ssemblman to appear onl when the court handling their case e3ercise appellate
>urisdiction! "nl +ppellate >urisdiction is permitted because the office of the
+ssemblman carr so much influence and prestige that the might undul influence
upon the administration of >ustice!
'. N'rie7a /. Sis'n #)1 SCRA )20
Fa-,s: &he name of the gu here is <mmanuel #ison! 6e place emphasi*e
on the name here co* the complainant )ermino 0oriega made such a big deal out of
it 0oriega claimed that #ison, an attorne who works as a )earing "fficer for the
#<%, held himself out to the public as F+tt! Manuel #isonG and under such a gross
misrepresentation of his name handled a case for a close famil friend! 0oriega said
that #ison violated the prohibition on government emploees- form practicing their
professions! #ison replied that the #<%, thru associate commissioner, authori*ed him
to allow as counsel for such and that he did it for free!
Hel(: #isonWs appearance as counsel as cited was an isolated case, the
same therefore did not constitute practice of law since he did not receive pecuniar
benefit B0ote that this case took place before the advent of the %aetano v Monsod
ruling?! &he case against him seemed more like an instrument of harassment 0oriega
since the latter once lost to #ison in a #<% case! &here is simpl no evidence that the
interchanges his name for a fraudulent purpose Bthe guWs entitled to use a nickname
like everbod else, rightP? nor this pleading which revealed his name to be FManuel
#isonG be tainted with deception since it was a mistake of #isonWs part and he
consistentl tried to correct the same b pointing it out in court!
ELECTIVE OFFICIALS
A. M$ali*i-a,i'n an( Ele-,i'n
#. Fri/al(' /. COMELEC )19 SCRA 9)9
Fa-,s: &he dissenting opinion b 7ustice Davide here is both prophetic and
ironic because he spoke that sovereignt cannot be fragmenti*ed because such
fragment cannot be treated as a whole! Davide was talking about the rule that the
popular will of the people Bof #orsogon? in electing 7uan 'rivaldo as governor should
not be frustrated since he garnered the most votes! Qet 'rivaldo won under a cloud
of doubt because he ma not have legall reacIuired his citi*enship in time for the
elections! &o allow 'rivaldo as governor >ust because the popular will of the
electorate should not be frustrated C but setting aside the rule of law in the process C
would be anarch! Davide said B)ow ironic that it was Davide himself who swore in
,M+ as $resident during <D#+ II?
&he ma>orit opinion however, fortunatel or otherwise, is the
prevailing rule, 'rivaldo filed his certificate of candidac for governor on March 20,
144/! ;aul 8ee, the eventual second placer, filed a petition with the %"M<8<% to
disIualif 'rivaldo because he was not et a 'ilipino citi*en at the time! &he
%"M<8<% ruled in favor of 8ee but since 'rivaldo moved for reconsideration, his
candidac continued! 'rivaldo eventuall topped the elections but on 7une @0, 144/,
the %"M<8<% acting on 8eeWs petition, proclaimed 8ee as governor!
+ week later, 'rivaldo filed a petition claiming that on 7une @0, 144/ Bda of
8eeWs proclamation?, he took his oath of allegiance as a 'ilipino citi*en after his
+ugust 1=, 144A petition for repatriation has been granted! &he %"M<8<% thus
proclaimed 'rivaldo as winner!
8ee contends: 1! that 'rivaldoWs disIualification due to his lack of citi*enship
is a continuing condition and rendered him ineligible to run for governor2 and 2! the
alleged repatriation of 'rivaldo cannot be retroactive!
Hel(: 8ee is wrong Bor mabe, wronged?! ;easons:
1! Dnder #ec! @4 of the 8,% of 1441, there is no showing that a candidate for
an electoral position must be a 'ilipino citi*en at an particular date and time!
+dmittedl, there was the ob>ection that since a candidate must have been a
registered voter beforehand, he must have therefore possessed 'ilipino citi*enship in
order to become a registered voter! &he %ourt gave an e3planation C that the
Iualification of citi*enship for a registered voter and that for a candidate are separate.
&he registration reIuirement of a candidate moreover, is for the purpose of registering
him as a voter in the area or reIuirement of a candidate moreover, is onl for the
purpose of registering him as a voter in the area or territor he seeks to govern! )e
does not actuall have to vote B+ng laoY &he issue is citi*enship, not voting! &he
issue of being a registered voter was merel raised to bolster the claim that the
Iualification of citi*enship is a continuing one and thus cannot be acIuired at a later
time! &he %ourt is saing, F;un now, acIuire citi*enship later,G which is lous! Is this
the wa we treat our precious citi*enshipP?
JsM50
2! &he alleged repatriation of 'rivaldo can be retroactive! $D =2/ declares that
repatriation creates a Fnew rightG in order to cure a defect in the e3isting naturali*ation
law! In 'rivaldoWs cause he was stateless at the time he took his 'ilipino oath of
allegiance since in his comment, he has long renounced his +merican citi*enship Ba
self serving statement?! Moreover since he ran for governor several times prior to
144/, he necessaril must have taken the 'ilipino oath of allegiance several times as
well, which is another indication of renunciation of his +merican citi*enship BDavide
countered that it is the D#, not 'rivaldo, who decides who is and who is not her
nationals, a principle in international law?! &herefore, to prevent pre>udice to 'rivaldo
b letting him remain stateless for a substantial period of time while in the meantime
being deprived of his rights, it is clear then that $D =2/ was intended to be
retroactive! In short, 'rivaldoWs repatriation retracted to +ug 1=, 144A, the da he filed
his application for such and not >ust on 7une @0, 144/!
). Sal'!'n /. NEA #32 SCRA 149
Fa-,s: 0atividad #alomon was a Director for the 8a Dnion <lectric
%orporation B8D8<%"?! Because she was also a Baranga %aptain of 0atividad,
0aguilan, 8a Dnion, the Minister of 8ocal ,overnment of 8a Dnion appointed her as a
member of the sangguniang $anlalawigan of 8a Dnion! &he 0ational <lectrification
+dministration, however, disIualified her from further acting as 8D8<%" director b
authorit of #ec! 21 of $D 254 which sas, F<lective officers of the government,
e3cept barrio captain and councilors, shall be ineligible to become officers andKor
directors of an Belectric cooperative?!G B#ection 21 $D 0o! 254?! &he legal provision
is also incorporated in section @, +rticle IV of the 8D8<%"Ws b C laws which runs: F0o
persons shall be eligible to become or to remain a board member of the cooperative
who holds an elective office in the government above the level of a baranga
captain!G
#alomon simpl argued that she is not an elective officer but an appointive
officer as the facts above show! Is she therefore e3empt form the prohibitionP
)eld: 0o, the spirit of the law would be undermined C that incumbents of elective
offices be prevented form e3erting political influence and pressure on the
management of the cooperative! &he spirit of the law is as much a part of what is was
written Bwow?!
B. Va-an-ies an( s$--essi'n
#. Per!anen, Va-an-ies
* Sec --. Permanent vacancies in the office of the governor, vice 2
governor, mayor and vice mayor.
a. If a permanent vacanc occurs in the office of the governor or maor, the
vice governor or vice maor concerned shall become the governor or maor! If a
permanent vacanc occurs on the office of the governor, vice C governor, maor, or
vice C maor as the case ma be! #ubseIuent vacancies in the said office shall be
filled automaticall b other sangguniang members according to their ranking as
defined therein!
b! If a permanent vacanc occurred in the office of the punong baranga, the
highest ranking sangguniang baranga member or, in the case of his permanent
inabilit, the second highest ranking sanggunian member shall become the punong
baranga!
c! + tie between or among the highest ranking sangguniang members shall
be resolved b the drawing of lots
d! &he successors as defined herein shall serve onl the une3pired portions
of their predecessors!
'or purposes of this chapter, a permanent vacanc arises when an elective
local official fills a higher vacant office, refuses to assume office, fails to Iualif, dies,
is removed from office, voluntaril resigns, or is otherwise permanentl incapacitated
to discharge the functions of his office!
'or purposes of succession as provided in this chapter, ranking in the
sanggunian shall be determined on the basis of the proportion of votes obtained b
each winning candidate to the total number of registered voters in each district in the
immediatel preceding local election!
* Sec -3. Permanent vacancies in the sanggunian
a! $ermanent vacancies in the sanggunian where automatic successions
provided above do not appl shall be filled b appointment in the manner provided:
1! &he $resident, thru the <3ecutive #ecretar, in the case of the #angguniang
$anlalawigan and the #anggunian $anlungsod of highl urbani*ed cites and
independent component cities2
2! &he governor, in case of the sangguniang panlungsod of component cites
and the sangguniang baan
@! &he cit or municipal maor, in case of the sangguniang baranga, upon
recommendation of the sangguniang baan concerned
b! <3cept for the sangguniang baranga, onl the nominee of the political part under
which the sangguniang member concerned had been elected and whose elevation to
the position ne3t higher in rank created the last vacanc in the sanggunian shall be
appointed in the same manner herein provided! &he appointee shall come form the
same political part as that of the sangguniang member who caused the vacanc and
shall serve the une3pired term of the vacant office! In the appointment herein
mentioned a nomination and a certificate of membership of the appointee from the
highest official of the political part concerned are conditions sine Iua non and an
appointment without such nomination shall be null and void and shall be a ground for
administrative action against the official thereof!
c! In case the permanent vacanc in the representation of the outh and baranga in
the sanggunian, said vacanc shall be filled automaticall b the official ne3t in rank
b the organi*ation concerned
). Te!p'rar. Va-an-ies
T Section -5 &emporary vacancies in the office of the local chief executive
a! 6hen the governor cit or municipal maor or punong baranga is
temporaril incapacitated to perform his duties for phsical or legal reasons such as
but not limited to, leave of absence, travel abroad, suspension from office, the vice(
governor, cit or municipal vice(maor or the highest ranking sangguniang baranga
JsM51
member shall automaticall e3ercise the powers and perform the duties of the local
chief e3ecutive concerned e3cept the power to appoint, suspend, or dismiss
emploees which can onl be e3ercised if the period of the temporar incapacit
e3ceeds for @0 working das
b! #aid temporar incapacit shall terminate upon submission to the
appropriate sanggunian of a written declaration b the local chief e3ecutive
concerned that he has to return back to office! In cases where the temporar
incapacit is due to legal causes the local chief e3ecutive concerned shall also submit
necessar documents that said legal causes no longer e3ist!
c! 6hen the incumbent local chief e3ecutive is traveling within the countr
but outside his territorial >urisdiction for period not e3ceeding @ consecutive das, he
ma designate in writing an officer(in(charge of the said office! #uch authori*ation
shall specifies the powers and functions that the local official concerned shall e3ercise
in the absence of the local chief e3ecutive e3cept the power to appoint, suspend, or
dismiss emploees
d! In the event, however, that the local chief e3ecutive concerned fails or
refuses to issue such authori*ation, the vice(governor, the cit or municipal vice(
maor, or the highest ranking sangguniang baranga member, as the case ma be,
shall have the right to assume powers, duties and function of the said office on the A
th
da of absence of the said local chief e3ecutive, sub>ect to the limitation provided in
subsection B%? hereof!
e! <3cept as provided above the local chief e3ecutive in no case authori*ed
an local official to assume the powers, duties and functions, other than the vice(
governor, the cit or municipal vice(maor, the highest sangguniang baranga
member, as the case ma be!
0. Resi7na,i'n
T (rticle 1, .. esignation
a! ;esignation of elective local officials shall be deemed effective onl upon
acceptance of the following authorities:
1! B the $resident, in the case of governor and vice(governor,
maors and vice(maors of highl urbani*ed cities, independent
component cities and municipalities within the Metro Manila and
other metropolitan political subdivisions as ma be created b law!
2! B the governor, in case of municipal maor, municipal vice(
maors, maors and vice(maors of component cities
@! B the sanggunian concerned, in the case of sanggunian members:
and
A! B the cit or the municipal maor, in the case of baranga officials
b! &he DI8, shall be furnished copies of the letters of the resignation letters
of elective local officials together with the action taken b the authorities concerned
c! &he resignation shall be deemed accepted if not acted upon b the
authorit concerned within 1/ das from receipt thereof
d! Irrevocable resignations b sanggunian members shall be deemed
accepted upon presentation before an open session of the sanggunian concerned
and dul entered in its records! &his provision shall not appl to sanggunian members
who are sub>ect to recall elections or to cases where e3isting laws prescribed of
acting upon such resignations!
#. Panis /. Ci/il Ser/i-e C'!!issi'n ))2 SCRA 1<2
Fa-,s: &he %ebu %it Medical %enter B%%M%? is a government hospital of
%ebu %it! "ne da, a new office in said hospital was created b virtue b a valid
reorgani*ation C the +ssistant %hief of )ospital for +dministration! &wo candidates
for the appointive position cropped up! 7aime $anis and Bella Veloso, $anis loved to
crow about his seniorit status and thought he would be chosen for the position!
)owever, the cit maor appointed Veloso, $anis now claims that the appointment of
Veloso was made in violation of law, e3isting civil service rules and established
>urisprudence because the seniorit and ne3t in rank rules were disregarded!
Hel(: $anis is wrong! 'irst, even if granting that Veloso was originall an
outsider as she came from the private sector, it will not prohibit her emploment as
long as she has her civil service eligibilit! #econd, the ne3t rank rule applies onl in
cases of promotion! &he position being fought was newl created! +ssuming
however, that said position could onl be filled up through promotion, still the ne3t in
rank rule is not mandator C it nearl gives preferential treatment! Dltimatel, the
power to appoint lies within the discretion of the local chief e3ecutive vested with the
power, provided that appointee possesses the minimum reIuirements provided b
law!
). Mens'n /. Pe,illa #29 SCRA )1#
Fa-,s: 'or a time, the province of 8ete had not proclaimed an governor!
#o on 'ebruar 15, 14.., the secretar of local government appointed vice(governor
8eopoldo $etilla as acting governor of the province of 8ete!
0ow the position of vice(gu was vacant! &he secretar of local government
thus appointed +urelio Menson, a senior member of sangguniang panlalawigan as
vice(governor!
<verthing would have been fine e3cept for one thing: the 8,% of 14.@ does
not provide for succession of the office of the vice(governor Beven the 8,% of 1441 as
well?! #till, Men*on did serve for more than a ear as vice(governor!
"n 7ul =, 14.4, after some serious debate on the legalit of MensonWs
appointment, the sangguniang panlalawigan issued a resolution holding invalid the
appointment of Menson as vice(governor! &heir reasoning: legall speaking, there is
no vacanc in the office of the vice(governor cause no law recogni*es its e3istence!
+nd granting that such vacanc legall e3ists, the law does not authori*e secretar of
local government to have an appointment thereto! +s a result, poor Menson was not
paid emoluments attached to his office as vice(governor!
6as there reall a vacancP Is Menson entitled to the emolumentsP
Hel(: 1! Menson was appointed precisel to avoid such scenario! Besides,
the law on public officers is clear on the matter! &here is no vacanc whenever the
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office is occupied b a legall Iualified incumbent! In a scenario there is a vacanc
when there is no person lawfull authori*ed to assume and e3ercise at present the
duties of the office!
+ppling the definition of vacanc in this case, it can be readil seen that the
office of the vice(governor was left vacant when the dul elected vice(governor
8eopoldo $etilla was appointed acting governor! In the ees of the law, the office to
which he was elected was left barren of a legall Iualified person to e3ercise the
duties of the vice(governor
2! It ma be noted under commonwealth act no! /.. and the revised
administrative code of 14.=, the $resident is empowered to make temporar
appointments in certain public offices, in case of an vacanc that ma occur!
+dmittedl, both laws deal onl with the filling of vacancies in appointive positions!
)owever, in the absence of an contrar provision in the local government code and
in the best interest of public service, the #% saw no(cogent reason wh the procedure
thus outlined b the two laws ma not be similarl applied in the present case! $etilla
et! al! contend that the provincial board is the correct appointing power! &his
argument has no merit! +s between the $resident who has supervision over local
government as provided b law and the members of the board who are >unior to the
vice(governor, the #% has no problem ruling in favor of the president, until the law
provides otherwise!
@! In view of the foregoing, MensonWs right to be paid the salar attached to
the office of the vice(governor is indubitable! +nd, even granting that the $resident,
acting through the secretar of local government, possesses no power to appoint the
petitioner, at the ver least, the petitioner is de facto officer entitled to compensation!
A! &he #% e3plained that the vacanc must alwas be filled, in this wise: F+
vacanc creates an anomalous situation and finds no approbation under the law for it
deprives the constituents of the right of the representation and governance in their
own local government! In a republican form of government, the ma>orit rules through
their chosen few, and if one of them is incapacitated or absent, etc, the management
of governmental affairs, ma be hampered! 0ecessaril, there will be a conseIuent
dela in the deliver of basic services to the people of 8ete if the governor or the
vice(governor is missingG
0. San77$nian7 Ba.an '* San An(res8 Ca,an($anes /. CA )<5 SCRA
)93
Fa-,s: +ugusto +ntonio was a baranga captain of #apang $ala, #an
+ndres, %atanduanes in March 14.4! &his gu later became president of the
+ssociation of Baranga %ouncils or +B%! &hanks to the 8,% of 14.@, his position
also entitles him to be a member of the sangguniang baan of the Municipalit of
#an +ndres!
Meanwhile, the election for president of the 'ederation of the +ssociation of
Baranga %ouncils B+B%? was for the municipalit! '+B% was for the province was
declared void for lack of Iuorum so the provincial council was forced to reorgani*e!
+s a result, the DI8, secretar, in recognition of +ntonio as a power hungr
politician, designated him as a temporar member of the #angguniang
$anlalawigan! 0enito +Iuino, the +B% vice(president took his place! +ntonio
however, never Iuestioned +Iuino as his replacement! +ntonio tendered his
resignation from the sangguniang baan Bbut not as +B% president? and would later
on serve the sangguniang panlalawigan for 2 ears!
#ome time afterwards, the election for president of '+B% above Iuoted,
which was once declared void, was reversed b the #%! +lso, was found to
unIualified for membership in the #angguniang $anlalawigan so he got promptl
kicked(out!
+ ear passed! &hen +ntonio heard that +Iuino resigned from the
presidenc of the +B%! +ntonio now wants his old >ob back as +B% president! &he
#angguniang Baan refused to take him back, saing he resigned from the
#angguniang Baan a long time ago! +ntonio replied that the third reIuirement for
his valid resignation C acceptance b the president or his alter ego was missing!
Moreover, if his resignation was valid he did not resign as +B% president C and said
position still carries with it the benefit of being an e3(officio member of the
#angguniang Baan! &he #angguniang Baan countered that he either did one of
two things C resignation or abandonment of his old post!
Hel(: +ntonio did not effectivel resign but he did abandon his post!
;easons:
1! ;esignation as the F+ct of giving up or the act of an officer b which
he declines his office and renounces the further right to use it! It is an e3pression of
the incumbent in some form e3pressed or implied or the intention to surrender
renounce and relinIuish the office and the acceptance b competent and lawful
authorit!G &o constitute a complete and operative resignation from public office,
there must be: a! an intention to relinIuish a part of the term2 b! an act of
relinIuishment2 and c! an acceptance b the proper authorit! &he last one is
reIuired b reason of +rticle 2@. of the ;evised $enal %ode!
+ntonio did not effectivel resign because the third element is missing! 6hile
it is true that the 8,% is silent as to who shall accept the resignation of a
#anggunian Baan member, >urisprudence has held that in the absence of statutor
provisions as to whom resignations shall be submitted, the appointing person or
bod shall receive the resignation! &he president or his alter ego is the appointing
person in this case and there was no evidence that either of them have received
+ntonioWs resignation!
2! +ntonio however, abandoned his post! +bandonment of an office has
been defined as the voluntar relinIuishment of an office b the holder with the
intention of terminating his possession and control thereof! &he following clearl
manifest the intention of private respondent to abandon his position: 1! his failure to
perform his function as member of the #angguniang Baan! 2! his failure to collect
the corresponding remuneration for the position, @! his failure to ob>ect to the
appointment of +Iuino as his replacement in the #angguniang Baan, A! his
prolonged failure to initiate an act to re assume his post in the #angguniang Baan
after the #upreme %ourt had nullified his designation to the #angguniang
$anlalawigan!
"n the other hand, the following, the following overt acts demonstrate that
he had affected his intention 1! his letter of resignation from the #angguniang Baan,
2! his assumption of office as member of said #anggunian $anlalawigan @! his
JsM53
faithful discharge of his duties and functions as member of said #anggunian and A!
his receipt of the remuneration for such post!
6hile it was true that +ntonio was designated as member of the #anggunian
$anlalawigan C meaning his appointment there was merel to discharge duties in
addition to his regular responsibilities as a #anggunian Baan Members C still his
e3press and implied acts clearl indicate hi abandonment of the latter!
@! 8astl, +ntonio, who remained +B% president, claims the legal right to be
a member of the #angguniang Baan b virtue of #ection 1A5 of B$ Blg @@=!
)owever, his right thereto is not self C e3ecutor, for the law itself reIuires another
positive act an appointment b the $resident or the secretar of local government
per <" @A2! 6hat +ntonio could have done in order to be able to re assume his post
after +IuinoWs resignation was to seek a reappointment form the $resident of the
secretar of local government! B large, +ntonio cannot claim an absolute right to
the office which! B his own actuations, he is deemed to have relinIuished!
5. Ga!"'a 6r. /. A7$irre 6r. 0#4 SCRA <39
Fa-,s: In the 144/ elections, we have the following winners from 0egros
"ccidental: ;afael %oscolluela as governor2 ;omeo ,amboa as vice governor2 and
Marcelo +guirre and 7uan +raneta as #angguniang $anlalawigan B#$?! 0ow, under
the 8,% of 1441, the vice governor shall also be the officer of the #$! 1eep this in
mind later on!
&he governor went awa on an official trip abroad! Before he left, he
designated vice governor as acting governor! #o the vice governor became acting
governor! But when vice governor ,amboa, who was now acting governor as well,
tried to preside over #$ sessions, some #$ members resented and even filed a case
in court to prohibit him from doing so! &he court even declared ,amboa as
Ftemporaril legall incapacitated to preside over the sessions of the #$ during the
period that he is the acting governor!G 6as the trial court correctP
Hel(: Qes, if ouWll look at the composition of the #$, no presence of the
governor! can be found! #ince ,amboa became acting governor!, he technicall had
given up his #$ membership notwithstanding him being still vice governor! since the
8,% of 1441 is clear that the composition of the #$ should not have even the
slightest hint of governorWs presence C not even his smell! 6hat the law enumerates,
the law necessaril e3cludes! +n acting give smells like a governor! 'or all other
purposes however, ,amboa still remains as vice governor!
In such case, since the vice governor! cannot preside, the #$ members
present and constituting a Iuorum shall elect a temporar presiding officer form
among themselves B#ec A4b, 8,%?
C. Re-all?See 32-918 LGC an( Ar, #15 ; #3)8 IRR@
* Sec 54, LG+. By whom exercised! &he power of recall for loss of
confidence shall be e3ercised b regular voters of an 8,D to which the local elective
official sub>ect to such recall belongs!
* Sec ?0 .nitiation of the recall process
a! ;ecall ma be initiated b a preparator recall assembl or b the
registered voters of the 8,D to which the local elective official to such recall belongs!
b! &here shall be a preparator recall assembl in ever province, cit,
district and municipalit which shall be composed of the following:
1! $rovincial level! +ll the maors, vice C maors and sanggunian
members of the municipalities and component cities
2! %it level: all punong baranga and sangguniang baranga members
in the cit
@! 8egislative district level! In case where sangguniang panlalawigan
members are elected b district, all elective municipal officers in the
district and in cases where sangguniang panlungsod members are
elected b district, all elective baranga officials in the district and
A! Municipal level! +ll punong baranga and sangguniang baranga
members in the municipalit!
c! + ma>orit of all the preparator recall assembl members ma convene in
session in a public place initiate a recall proceeding against an elective official in
the 8,D concerned! ;ecall of cit, provincial and municipal officials shall be validl
initiated through a resolution adopted b a ma>orit of all the preparator recall
assembl concerned during its session called for the purpose!
d! recall of an elective provincial, cit, or municipal or baranga official ma
also be validl initiated on petition of at least 2/R of the total number of registered
voters in the 8,D concerned during the election which the local official sought to be
recalled was elected!
1! + written petition for recall dul signed before the election registrar or his
rep and in the absence of rep of the petitioner and a rep of the official sought to be
recalled and in a public lace in the province, cit or municipalit or baranga as the
case mabe, shall be filed with the %"M<8<% thru its office of the 8,D concerned!
&he %"M<8<% or its dul authori*ed rep shall cause the publication of the petition in
a public and conspicuous place for a period of not less than 10 das nor more than 20
das for the purpose of ratifing the authenticit and genuineness of the petition and
the reIuired percentage of voters!
2! Dpon the lapse of the aforesaid period, the %"M<8<% or its dul
authori*e rep shall announce the acceptance of candidates to the position and
thereafter prepare a list of candidates which shall include the name of the official
sought to be recalled!
*Sec ?/ Alection on recall! Dpon filing of a valid resolution or petition for recall with
the appropriate local office of the %"M<8<%, the %ommission or its dul recogni*ed
rep shall set the date of the election on recall, which shall be not later than @0 das
after the filing of the resolution or petition for recall in the case of the baranga, cit, or
municipal officials and A/ das in the case of provincial officials! &he official officials
sought to be recalled shall automaticall be considered as a dul registered
candidate or candidates to pertinent positions and like other candidates, shall be
entitled to be voted upon!
TSec ?, effectivity of recall. &he recall of an elective local official shall be effective
onl upon the secretion and proclamation of a successor in the person of the
JsM54
candidate receiving the highest number of votes cast during the election on recall!
#hould the official sought to be recalled receive the highest number of votes,
confidence in him is thereb affirmed and he shall continue in office!
*Sec ?% Prohibition form resignation. &he elective local official sought to be recalled
shall not be allowed to resign while the recall process is in progress!
*Sec ?- Limitations on recall
a! +n elective local official ma be the sub>ect of a recall election onl once during the
term of his office or loss of confidence!
b! 0o recall shall take place within 1 ear from the date of the officialWs assumption to
office of 1 ear immediatel preceding a regular local election!
* Sec ?3. Axpenses incidental to recall elections! +ll e3penses incidental to recall
elections shall be borne b the %"M<8<%! 'or this purpose, there shall be included
in the annual ,eneral +ppropriation +ct a %ontingenc fund at the disposal of the
%"M<8<% for the conduct of recall elections!
* #rt 1&$ ( 1)* I"". ECa-,l. ,e sa!e as a"'/e8 "$, &i, a((i,i'n '* O:' !a.
"e re-alle(L ?see "el'&@
#. ReG$isi,es
If thereWs such a thing as reIuisites of a recall, itWs probabl found buried in
#ection 54 and =0 of the 8,% of 1441! &he reIuisites probabl are:
a! Initiation, either thru direct action b the people or thru a preparator
recall assembl2 and
b! <lection
). :' !a. "e re-alle(
(rt /33. . 6ho ma be recalled! +n elective provincial, cit, municipal or
baranga official ma be recalled for loss of confidence in the manner prescribed
in this rule provided that no recall ma be instituted against said elective local
official who have been the sub>ect of a previous recall election held during the
same term of office!

@! ,rounds for recalls

8oss of confidence, which is a political Iuestion
A! 6hen recall ma not be held
#ee #ection =A, 8,% of 1441
/! $rocedure for recall
#ee #ection =0, supra
5! <ffectivit of recall
#ee #ection =2, supra
#. Gar-ia /. COMELEC ))9 SCRA #44
Fa-,s: <nriIue ,arcia was elected ,overnor of Bataan in the 1442
elections! #ome maors, vice maors and #angguniang Baan members of the 12
municipalities of Bataan however convened and constitute themselves into a
$reparator ;ecall +ssembl to initiate the recall of ,arcia! &he $;+Ws first resolution
calling for the recall of ,arcia was however shot down b the #% because it was
found that the backers of the $;+ sent onl selective notices to local officials most
likel smpathetic to their cause! &he $;+ thus cured this defect in their second
resolution! #cared, ,arcia now assails the constitutionalit of #ection =0 of the 8,%
of 1441, which allows a preparator recall assembl to initiate a recall of an elective
official! ,arcia sas that it-s highl possible that the dominant political part in
government can use a recall as a tool in ousting their incumbent opponents2 2? the
;$+ is not reflective of the people-s will2 @? the right to initiate recall rests with the
people itself!
Hel(: ,arcia is wrong reasons:
1? +ll powers are sub>ect to abuse anwa! &o den power because it can be
abused b the grantee is to render government powerless and no people need a
toothless government! &his is the reason behind the presumption that public officials
are actuall performing their duties in good faith!
2? &he $;+ is merel a step in the recall process! &he recall it self still has to
be submitted to the people for affirmation thru an election! &he $;+ is not the recall
itself, thus it cannot be said to be reflective of the people-s will!
@? &he $;+ is also initiation of recall b the people themselves, although
done indirectl through their representatives! &he reason for using $;+ as a mode for
initiating recall is because admittedl, initiating recall thru direct action b the people
is difficult and e3pensive!
A? Davide-s dissent: the power to initiate recall includes the power not to
initiate! &he power to initiate becomes meaningless if another bod is authori*ed to
do it for the electorate! It-s not hard to see that in realit, it-s far eas get ma>orit of
the $;+ to initiate a recall proceeding! In effect a small group can easil negate the
power of the vast electorate to initiate recall Btherefore, the good >ustice is doubtful of
the republican sstem of the government?! 6hat congress should have done is to
reduce the minimum 2/R reIuirement down to 1/ or 20R Bwhich is good idea?!
). E/ar('ne /. COMELEC )45 SCRA 535
Fa-,s: &he gus here calling for a recall of an elective official failed because
the initiated the recall a bit too late!
'elipe <vardone won as maor of municipalit of #ulat, <astern #amar in
the 14.. election! 2 ears later, +le3ander +pelado and friends filed a petition for the
recall of <vardone! &he %"M<8<% approved the signing of the said petition for recall!
&here was some ballhoo regarding a &;" issued b the #% retraining
+pelado and friends from proceeding of the signing of the petition, but that-s not
important! 6hat <verdone complaining about is that the %"M<8<% cannot formulate
rules and regulations governing the procedure of recall elections because according
to the 14.= %onstitution, %ongress is supposed to pass a new local government code
which would provide for the procedure in recall elections! #ince such a code wasn-t
passed at the time, the initiation for recall must fail because there-s no procedure in
e3istence to follow anwa!
JsM55
Hel(: &he initiation of recall must fail, but for a different reason!
1? Its true tat the 8,% of 1441 has et to be passed! )owever, the 8,% of
14.@ BB$ @@=? was still in force in hat time as can be shown in the proceedings of the
14.5 %onstitutional %ommission where the effectiveness of B$ @@= was e3pressl
recogni*ed! B$ @@= authori*es the %"M<8<% to supervise and control recall
elections and promulgate the necessar rules and regulations!
2? )owever, the #% promulgated this decision in 1441! &he 1442 elections
was onl = months awa, B$ @@= disallows the holding of recall elections one ear
immediatel preceding a regular local election!
0. Paras /. COMELEC )35 SCRA 52
Fa-,s: $ati #1 elections ba naman pinatulan ng recall!
Danilo $aras won as $unong Baranga in the 144A baranga elections of
$ula, %abanatuan %it! + petition for his recall as $unong Baranga was filed b the
registered voters of the baranga! $aras managed to dela the holding of the recall
elections @ times Bnote that the term of a $unong Baranga is for @ ears onl?! &he
third attempt at a recall election was slated for 7anuar 1@, 1445! $aras gleefull
noted that the recall action was barred b representation as no recall shall take place!
1 ear immediatel preceding a regular election as managed b #<%!=ABb?, 8,% of
1441!
Hel(: + #angguniang 1abataan B#1? election is not a regular local election,
at least within the contest of #ection =A because said #ection =A, when taken
together as a whole, is intended for elective positions with minimum terms of A ears!
$ara-s interpretation of the statute is too literal and absurd! &he spirit, rather than the
letter of the law, determines it-s contents!
)owever $ara-s delaing tactics worked! &he ne3t regular elections
concerning the baranga office concerned is merel = moths awa! ;ecall is no
longer possible b virtue of same election =ABb?! $ara-s still merges as the winner
BMoral lesson: 6ag mo ng patulan ang #1 elections @ taon lang naman natiis an
eh?!
5. Mer-a(' /. B'ar( '* Ele-,i'ns S$per/is'rs '* I"aan8 Ba,an7as )50
SCRA 5))
Fa-,s: 7ose Mercado was proclaimed #1 chairman of Baranga Mabalor,
Ibaan Batangas during the 1442 elections! )is rival, %risanto $angilinan, filed a
protest with the Board of <lections #upervisors BB<#? on the ground that some votes,
were invalidated b the Board of <lection &ellers BB<&? %hairman without insulting his
fellow members! $angilinan won in the recount
Mercado assailed in the authorit of the B<# act on the protest filed b his
rival! )e said the ground created b $angilinan was in the nature of an election
protest properl cogni*able b the Metropolitan or Municipal &rial %ourt Bas mandated
b #ection 2/2 of the "mnibus <lection %ode? and not b some never heard B<#, a
bod created b the %"M<8<% thru its ;esolution 0o! 2A44!
&he ;&% dismissed Mercado-s complaint saing that ;esolution 0o! 2A44 of
the %"M<8<% did not vest in the ;&% >urisdiction to tr #1 elections! Mercado then
argued at the #% that ;es! 0o! 2A44 was null and void in the first place because #1
elections are governed b the "mnibus <lection %ode and not b some numb
resolution passed without legal basis b the %"M<8<%!
Hel(: Mercado is mistaken! ;easons:
1? &he #1 election is not an election involving elective baranga officials
within the conte3t of the "mnibus <lection %ode and the %onstitution! &he position of
#1 chairman is not include as one of the elective members of the #angguniang
Baranga Bwhich consist of the punong baranga and = regular sangguniang
baranga members?! +n #1 chairman is at best merel an e3(officer member of
#angguniang Baranga! &herefore, #1 elections are not governed b the "mnibus
<lection %ode!
2? +rticle 20@ of the I;; of the 8,% 1441 states that #1 elections shall be
governed b the rules promulgated b the %"M<8<%! &herefore, the B<#, as a
creation of %"M<8<% ;es! 0o! 2A44, has legal authorit to take cogni*ance of the
#1 election protest!
1. Cla$(i' /. COMELEC 0## SCRA 0<<
Fa-,s: 7ovito %laudio won as maor of $asa %it in the 144. elections! In
Ma, 1444, less than a ear later, several baranga chairs gathered to discuss the
filing of a petition for recall against Maor %laudio and the %onvening of the $;+! It
took onl less than 2 weeks for the members of the $;+ to obtain a ma>orit vote for
the passing of a resolution calling for said recall!
%laudio however complained that what his opponents did was contrar to
section =A of the 8,% 1441, because of the word FrecallG in said section should be
interpreted not onl to mean a recall election alone, but is also intended to include the
convening of the $;+ and the filling b it of a recall resolution! If %laudio-s
interpretation is correct, then his enemies ma have indeed violated the statutor
prohibition that Fno recall shall take place within 1 ear from the date of the official-s
assumption to officeG since the $;+ did indeed convene less than a ear from
%laudio-s assumption into office!
%laudio also argued that the phrase Fregular local electionG in said #ection
=ABb? includes the election period for that regular election and not onl the date of
such election!
Hel(: %laudio is wrong! ;easons:
1? &he word recall in #ection =ABb? refers to the recall election and not the
preliminar proceedings to recall! #ection =A speaks of limitations on FrecallG which,
according to section 54, is a power which e3ercised b the registered voters of an
8,D! #ince the voters do not e3ercise such right e3cept in an election, it is clear that
the initiation of recall proceedings is not prohibited within the 1 ear period provided!
2? +nother reason wh the initiation of recall proceedings is not prohibited
within the 1 ear period provided in =ABb? is that to hold the otherwise would be to
undul restrict the constitutional right of speech and of assembl of its members!
Indeed, it would be wrong to assume that such assemblies will alwas eventuate in a
recall election! &o the contrar, the ma result in the e3pression of confidence in
incumbent!
@? &he election period is not included in the phrase Fregular local election!G
%laudio-s interpretation would severel limit the period during which a recall election
ma be held! #uch an interpretation must be re>ected because it would devitali*e the
right of recall which is designed to make 8,D-s more responsive and accountable
JsM56
D. L'-al Ini,ia,i/e an( Re*eren($! ?Se-. #)4-#)98 Ar,. #00-#108 IRR@
T#ec! 120, 8,%! 8ocal initiatives defined! 8ocal initiative is the legal process
whereb the registered voters of an 8,D ma directl propose, enact, or amend an
ordinance!
T#ec! 121! 6ho ma e3ercise! &he power of local initiative and the
referendum ma be e3ercised b all registered voters of the provinces, cities,
municipalities and barangas!
KSe-. #)). Pr'-e($re in l'-al ini,ia,i/e.
a? 0ot less than 1,000 registered voters in case of provinces and cities, 100
in case of municipalities, and /0 in case of barangas, ma file a petition with the
sanggunian concerned proposing the adoption, enactment, repeal or amendment of
an ordinance!
b? If no favorable action is taken thereon b the sanggunian concerned
within @0 das from its presentation, the proponents, thru their dul authori*ed
representatives, ma invoke their power of initiative giving notice thereof to the
sanggunian concerned!
c? &he proposition shall be numbered seriall from ;oman numeral I! &he
%"M<8<% or its designated representative shall e3tend assistance in the formulation
of the proposition!
d? 2 or more propositions ma be submitted in an initiative!
e? $roponents shall have 40 das in the case of provinces and cities, 50
das in the case of municipalities, and @0 das in the case of barangas, from notice
mentioned in subsection Bb? hereof to collect the reIuired number of signatures!
f? &he petition shall be singed before the election registrar, or his designated
rep! in the presence of the representative of the proponent and a rep! of sanggunian
concerned, in a public place in the 8,D, as the case ma be! #tations for collecting
signatures must be established in as man places as ma be warranted!
g? Dpon the lapse of the period herein provided, the %"M<8<%, thru its
office in the 8,D concerned for their approve within 50 das from the date of
certification b the %"M<8<%, as provided in subsection Bg? hereof, A/ das in the
case of municipalities, and @0 das in the case of barangas! &he initiative shall then
be heard on the date set, after which the result thereof shall be certified and
proclaimed b the %"M<8<%!
T#ec! 12@! <ffectivel of local propositions! If the proposition is approved b
a ma>orit of a vote cast, it shall take effect 1/ das after certification b the
%"M<8<% as if affirmative action thereon had been position is considered defeated!
T#ec! 12A! 8imitations of local initiative!
a? &he power of local initiative shall not be e3ercised more than once a ear!
b? Initiative shall e3tend onl to sub>ects or matters which are within the legal
powers of the sanggunian to enact!
c? If at an time before the initiative is held, the sanggunian concerned
adopts in to the proposition presented and the local chief e3ecutive approves the
same, the initiative shall be canceled! )owever, those against such action ma, if the
so desire, appl for initiative in the manner herein provided!
T#ec! 12/! 8imitations upon sanggunian! +n proposition or ordinance
adopted thru the sstem of initiative and referendum as herein provided shall not be
repealed, modified, or amended b the sanggunian concerned within 5 months from
the date approval thereof and ma be amended, modified, or repealed within @ ears
thereafter b a vote of ] of its members: $rovided, that in case of barangas, the
period shall be 1. moths after the approval thereof!
T#ec! 125! 8ocal referendum defined! 8ocal referendum is the legal process
whereb the registered voters of the 8,Ds ma approve, amend or re>ect an
ordinance enacted b the sanggunian!
&he local referendum shall be held under the direction and control of the
%"M<8<% within the 50 das in case of provinces and cities, A/ das in case of
municipalities and @0 das in the case of barangas!
&he %"M<8<% shall certif and proclaim the results of the said referendum!
T#ec! 12=! +uthorit of courts! 0othing in this chapter shall prevent or
preclude the power courts from declaring null and void an proposition approved
pursuant to this %hapter for the violation of the %onstitution or want of capacit of the
sanggunian concerned to enact the said measure!
NOTE: +rticles 1@@(1/@, I;; are roughl the same #ection 120(12= above!
)owever, we should take note of +rt! 1A/, I;;, which basicall states the number of
signature reIuired!
1? In a province or cit C at least 10R of the registered voters therein, with
each legislative district represented b at least @ R of the registered voters therein!
2? In a municipalit C at least 10R of registered voters therein, with each
baranga represented b at least @R of registered voters therein!
@? In a baranga C 10R of registered voters therein!
#. Gar-ia /. COMELEC )09 SCRA )92
Fa-,s: &he #angguniang Baan B#B? ng Morong, Bataan passed ;esolution
0o! 10 wherein agreed to the inclusion of the municipalit of Morong as part of the
#ubic #pecial <conomic 9one in accordance with ;+ =22=
<nriIue ,arcia Bwho-s this guP )is name keeps popping out of nowhere?
and friends filed a petition with the #B to annul the said resolution! 6hen their petition
went unheeded, ,arcia resorted to the power of initiative under the 8,% of 1441! &he
%"M<8<% however denied the petition for local initiative on the ground that under
the 8,% of 1441m the sub>ect of local initiative refers onl to an ordinance and not a
solution! Is the %"M<8<% correctP
Hel(: 0o! and the #% made %"M<8<% pa b dumping tons of legal basis
providing that resolutions can also be the sub>ect of local initiatives thus making the
case as written unnecessaril long! #ome reasons are:
1? #ec! @2 of +rticle VI of the %onstitution sas that initiative and referendum
is a sstem wherein the people can directl propose and enact laws or approve or
re>ect an act or law! &he word FactG makes it clear that resolutions are also included
initiatives!
2? ;+ 5=@/ defines @ sstem of initiative, one of them being initiative on local
legislation which included, among others, resolution!
JsM57
@? In the 8,% itself, #ection 12A sas, FInitiatives shall e3tend onl to
sub>ects or matters which are within the legal powers of the #anggunian to enact!G
Definitel, the scopes of #anggunian-s powers include resolutions which make them
covered under initiatives!
E. Dis-iplinar. A-,i'n ?Ar,. #)58 IRR@
T+rticle 12A! ,rounds for Disciplinar +ction!
a? +n elective local official ma be censured, reprimanded, suspended or
removed from office after due notice and hearing on the following grounds:
1? Disloalt to the republic of the $hilippines!
2? %ulpable violation of the %onstitution!
@? Dishonest, oppression, misconduct in office, gross negligence
or dereliction of dut!
A? %ommission of an offense including moral amplitude or an
offense punishable b at least prison maor which is from 5 ears and 1 da to 12
ears imprisonment!
/? +buse +uthorit
5? Dnauthori*ed absence of 1/ consecutive working das, in the
case of the local chief e3ecutive and A consecutive sessions in the case of members
of the sanggunian panlalawigan, sanggunian panlungsod, sangguniang baan and
sangguniang baranga!
=? +pplication for, or acIuisition of, foreign citi*enship or residence
or the status of an immigrant of another countr2 and
.? such other grounds as ma be provided b the %ode, ;+ 5=1@,
;+% of 14.=, ;$% and all other applicable general and special laws!
b? +n elective local official ma be removed from office on the grounds
enumerated in paragraph a, of this article b order of the proper court, or the
disciplinar authorit whichever first acIuires >urisdiction to the e3clusion if the other!
#. Gr'$n(s *'r S$spensi'n an( Re!'/al ?Se-. 348 LGC@
T#ec! 50 ,rounds for disciplinar action! B#ame as +rticle 12A, I;; above?!
#. Espiri,$ /. Mel7ar )43 SCRA )13
Fa-,s: + certain ;amir ,aring filed a complaint against Maor 0elson
Melgar of 0au>an, "riental Mindoro, charging him with grave misconduct, abuse of
authorit, oppression, culpable violation if the %onstitution Bno kidding, ,aring
practicall threw the revised penal code at him?! ,aring claimed the maor punched
and kick him willfull unlawfull and feloniousl Bou know, the usual FI-m innocent,
believe meG wa of introducing a complaint? while the latter was delivering a public
speech! +fter evaluating the complaint, ,overnor Ben>amin <spiritu had the maor
preventivel suspended for 50 das! Dpon petition b the maor, the ;&% of "riental
Mindoro issued a writ of preliminar in>unction preventing the governor-s order of
suspension! 6as the in>unction properP
Hel(: 0o, ;easons:
1? &he provincial governor of "riental Mindoro is authori*ed b the law to
preventivel suspend the municipal maor of 0au>an at antime after the issues had
been >oined and an of the following grounds were shown to e3ist:
a! 6hen there is reasonable ground to believe that the
respondent has committed the act or acts complained of!
b! 6hen the evidence of the culpabilit is strong!
c! 6hen the gravit of the offense so warrants2 or
d! 6hen the continuance in office of the respondent could
influences the witnesses or pose a threat to the safet and
integrit if the records and other evidence! B8,% of 1.4@?!
2? +s a general rule, the office or bod that is invested with the power of
removal or suspension should be the sole >udge of the necessit and the sufficienc
of the cause! #o, unless a flagrant abuse of the e3ercise of that power is shown,
public polic and a becoming regard for the principle of separations of powers
demand that the action of said officer or bod should be left undisturbed!
). Lla!as /. Or"'s )4) SCRA <55
Fa-,s: Mariano Dn "campo III was the incumbent governor of the province
of &arlac in 14.4! he was charged b the vise governor ;odolfo 8lamas of violating
;+ @014, the +nti(,raft and %orrupt $ractices +ct #pecificall, he was charged with
e3ecuting a loan agreement with a non(stock and a non(profit organi*ation headed b
the governor himself as chairman wherein said agreement was grossl inimical to the
interest of the $rovincial ,overnment Bbecause the loan, among others, did not
provide for interest and securit?! &he Department of 8ocal ,overnment #ecretar
"scar "rbos, after reviewing the governor-s case, slapped a 40 das suspension Bnot
preventive suspension? on the hapless governor! &hereafter, the vise governor took
over as acting governor!
&he governor filed a motion for reconsideration! )owever the D8, secretar,
in the spirit of %hristmas perhaps, filed a resolution granting e3ecutive clemenc to
the governor b reducing his sentence to that portion had alread served!
&he vise governors now Iuestion the legalit of issuing e3ecutive clemenc
or pardon to the administrative case when the same should appl onl to criminal
cases!
Hel(: 8lamas is incorrect! &he 14.= %onstitution makes no distinction as to
criminal or administrative cases! &he phrase Fafter conviction of final >udgmentG does
not make e3plicit reference to criminal cases fact, the %onstitution does not allow
pardon in impeachment cases! &hat the %onstitution does not make a same
e3emption to the administrative cases shows that e3ecutive clemenc can be granted
in administrative cases!
#ection A@ of $D .0= also recogni*es e3ecutive clemenc in administrative
cases Fin meritorious case b commutation or removalG
$adilla-s Dissent: the spirit and intent of pardons is to afford relief from the
enforcement of the criminal which imposes penalt and which appears undul harsh!
&o grant pardons to release private obligations prevent or destro civil rights is plain
abuse!
0. A7$inal(' /. San,'s )#) SCRA 93<
Fa-,s: ;odolfo +guinaldo was elected governor of %agaan in 14..! &wo
ears later, after due no hearing, the Department of 8ocal ,overnment #ecretar 8uis
#antos found +guinaldo-s guilt of disloalt to the ;epublic and of culpable violation
of the %onstitution! #antos ordered +guinaldo-s removal from of $ending criminal
JsM58
charges of disloalt to the republic, under +rt! 1@=, ;$% were also lodged against
him:
+guinaldo Iuestioned the legalit of his removal with the #%! In the
meantime, +guinaldo filed certificate of candidac for governor again! @
disIualification cases were filed against him on the ground he was removed from
office! #till, he was allowed to run and won a landslide victor!
Hel(: #ince +guinaldo was re(elected as governor, the pending
administration case against regarding his removal from office was rendered moot and
academic! &he reason is that the electorate clearl forgiven him for the administrative
misconduct he committed during the last term! &his is the rule along with the theor
that each term is separate from other terms, and that the reelection to office operates
as a condonation of the officer-s misconduct to the e3tent of cutting of the right to
remove him therefore!
&he foregoing rule, however, finds no application to criminal cases pending
against petitioner for acts he ma have committed during the failed coup!
0"&<: Dnder the Iualified agenc doctrine, alter egos of the $resident have
the power to discipline, suspend or remove elective officials under the grounds
provided b law!
5. Y$l' /. CSC )#2 SCRA 594
Fa-,s: Back in 0ovember 2A, 14.5, "fficer(In(%harged +polonio <lasigue of
the municipalit of %alamba, 8aguna terminated the services of &eofilio Mamplata and
A@ other emploees of said municipalit! &he basis municipalit for the termination
was reorgani*ation and the approval of a new starting pattern!
+t first, the later(+genc ;eview %ommittee created under the 'reedom
%onstitution reviewed the case of the said emploees!
&he Merits #stem $rotection Board BM#'B? of the %#% handled the case of
the A@ emploees! $ending the disposition of the case however, <lasigue last in the
maoralt race to 7esus Miguel Qulo!
Qulo was >ust as unsmpathetic as <lasigue regarding the plight of the
dismissed emploees! )owever, the M#'B found no sufficient evidence to prove the
guilt of the dismissed emploees Bthe charges against them were FIuestionable
integritG as insinuated b Qulo? and ordered the reinstatement of some 2. of them
Bwhich was reduced further to 21 due to the death andKor reemploment of some of
them? and pament of their back wages! &he %#% affirmed the M#'B-s decision!
Qulo now tried a different tack: that the termination of emploment of the said
emploees was >ustified under a transitor provision of the 'reedom %onstitution
which states, F+ll elective and appointive officials under the 14=@ %onstitution shall
continue to office until otherwise provided b the proclamation or e3ecutive order or
upon the designation or appointment and Iualification of their successors, if such
appointment is made within the period of 1 ear from 'ebruar 2/, 14.5!G
Hel(: &he argument is devoid of merit! "n his narration of facts, Qulo himself
admitted that private respondent-s services were terminated pursuant to the
reorgani*ation and approval of the new staffing pattern of %alamba on 0ovember @,
14.5! Qulo-s argument to the effect that respondents were separated from the service
b virtue of the 'reedom %onstitution or <3ecutive "rder 0o! 1= is palpabl an
afterthought! It ma be reiterated here that the main reason wh the then inter(
+genc ;eview %ommittee refused to take cogni*ance of the instant case was
because Mamplata et al were not removed pursuant to <3ecutive "rder 0o! 1=, such
declaration b the said %ommittee destros whatever argument Qulo tried to build
using the 'reedom %onstitution as a basis!
More importantl, it is undeniable that private respondent-s emploment with
the municipalit was a lawfull terminated! "n this score alone, the dismissed
emploees ought to and must be reinstated! Illegal removal of career civil service
emploees in violation of their %onstitutional right to securit of tenure will not be
condoned under the guise of reorgani*ation!
1. Gre7' /. COMELEC )95 SCRA 53#
Fa-,s: Back in "ctober @1, 14.1, )umberto Basco was removed from his
position as Deput #heriff b the #% itself after a finding of serious misconduct in an
administrative case filed against him! &he dispositive portion of the decision is
important in this case so its given special mention: F6herefore, finding the respondent
Deput #heriff )umberto Basco of the %it %ourt of Manila guilt of all retirement
benefits and with pre>udice to reinstatement to an position in the national or local
government, including its agencies and instrumentalities or government(owned or
controlled corporations!G
But this gu doesn-t give up in the face of adversit! )e ran for councilor @
times C in 14.., 1442 and 144/ C in the %it of Manila and won each time! )is
second and third campaigns as councilor was however mired b disIualification
lawsuits from left and right as his sins from 14.1 came back to haunt him!
$articularl, his third campaign for councilor ran into some serious legal
obstacle! "ne of them come from #ec! A0Bb? of the 8,% of 1441 which states that
persons running for an elective office are disIualified if the were previousl
removed from office as a result if an administrative case! +nother was that his
proclamation as councilor for the third time was allegedl void because his
disIualification case was still pending! 8astl, it seemed that the #% decision from
14.1 forever barred him from seeking public office! 6ill )umberto F8uckG Basco
overcome the odds and winP
Hel(: Qes, ;easons:
1? &he 8,% of 1441 cannot be applied retroactivel, since no provision
allows for it! Basco misgivings happened wa back in 14.1 long before the inception
of the 8,%!
2? &he suspension of the proclamation of a winning candidate on the ground
of a pending disIualification case lies within the discretion of the %"M<8<%
according to its evaluation of the evidence B#ection 5, ;+ 55A5?! &he findings of facts
and conclusions of the %"M<8<%, absence of a showing of grave, abuse of
discretion, must be generall respected and even given finalit! Besides, absent and
an determination of irregularit in the election returns, it is a mandator ministerial
dut of the Board of %anvassers to count the votes and declare the result!
@? &he 14.1 #% decision uses the word FreinstatementG Bsee above?! ;ules
and regulations issued b the %ivil #ervice %ommission defined reinstatement as the
reappointment of a person who was previousl separated from the service 3 3 3!
"bviousl, Basco is not seeking to get reappointed but to get elected and re(elected!
)e is not therefore barred from seeking public office!
JsM59
). Pr'-e($re ?Se-. <58 LGC@
T#ec! .A! +dministrative discipline! Investigation and ad>udication of
administrative complaints against appointive local officials and emploees as well as
their suspension and removal shall be in accordance in the civil service law and rules
and order pertinent laws! &e result of such administrative investigations shall be
reported to the %#%!
0. Pre/en,i/e S$spensi'n ?Se-,i'n 30-358 <1-<98 LGC8 Ar,. #)98
IRR@ Rea( als' se-,i'n 5)8 PD <49 ?n'& Se-. 1)8 RAC '* #2<9@
T#ection 5@! $reventive #uspension!
a? $reventive #uspension ma be imposed:
1? B the president, if the respondent Is an elective official of a
province, highl urbani*ed or independent component cit!
2? B the governor, if the respondent is an elective official of a
component cit or municipalit!
@? B the maor, if the respondent is an elective official of a
baranga!
b? preventive suspension ma be imposed at an time after the issues are
>oined, when the evidence of guilt is strong, and given the gravit of the offense, there
is great probabilit that the continuance in the office of the respondent could influence
the witnesses or pose a threat to the safet and integrit of the records and other
evidence: provided, that an single preventive suspension of local elective officials
shall not e3tend beond 50 das: provided further, that in the event that several
administrative cases are filed against and elective official, he cannot be preventivel
suspended for more than 40 das within the single ear on the same ground or
grounds e3isting and known at the time of the first suspension!
c? Dpon e3piration of the preventive suspension, the suspended elected
official shall be deemed reinstated in office without pre>udice to the continuation of the
proceedings against him, which shall be terminated within 120 das from the time he
as formall notified of the case against him! )owever, if the dela in the proceedings
of the case is due to his fault, neglect, or reIuest, other than the appeal dul filed, the
duration of such dela shall not be counted in computing the time of termination of the
case!
d? +n abuse of the e3ercise of the power of preventive suspension shall be
penali*ed as abuse of authorit!
T#ec! 5A! #alar of respondent pending suspension! &he respondent official
preventivel suspended from office shall receive salar or compensation including
such emoluments accruing during such suspension!
T#ec! ./! $reventive suspension of appointive local officials and emploees!
a? the local chief e3ecutives ma preventivel suspend for a period not
e3ceeding 50 das an subordinate official or emploee under his authorit pending
investigation if the charged against such officials or emploee involves dishonest,
oppression or grave misconduct or neglect in the performance of dut, or if there is
reason to believe that the respondent is guilt of the charges which would warrant his
removal from the service!
b? Dpon e3piration of the preventive suspension, the suspended official or
emploee shall be automaticall reinstated in office without pre>udice to the
continuation of the administrative proceedings against him until its termination! If the
dela in the proceeding of the case is due to the fault, negligence or reIuest of the
respondent, the time of the dela shall not be counted in the computing of the period
of the suspension herein provided!
T#ec!.5! +dministrative investigation! In an 8,D, administrative
investigation ma be conducted b a person or committee dul authori*ed b the local
chief e3ecutive! #aid person or emploee shall conduct hearings on the cases
brought against appointive local officials and emploees and submit their findings and
recommendations in the local chief e3ecutive concerned within 1/ das from the
conclusion of the hearings! &he administrative cases herein mentioned shall be
decided within 40 das from the time the respondent is formall notified b the
charges!
T#ec! .=! Disciplinar charges! <3cept other wise provided b the law, the
local chide e3ecutive ma impose the penalt of removal from service, demotion in
tank, suspension for not more than 1 ear without an fine in an amount not
e3ceeding 5 months salar, of reprimand and other wise disciplined subordinate
officials and emploees under his >urisdiction! If the penalt imposed is suspension
without pa for not more than @0 das, the decision shall be appealable to the %#%,
which shall decide the case within @0 das from receipt thereof!
T+rticle 12=, I;;! <3actl the same as #ec! 5@, 8,%
T#ec /2, ;+% of 14.=! 8ifting of preventive suspension pending
administrative investigation BBook V, #ubtitle + on %#%, chapter 5?! 6hen the
administrative case against the officer or emploee under preventive suspension is
not finall decided b the disciplining authorit within the period of 40 das after the
date of suspension of the respondent who is not a presidential appointee, the
respondent shall be automaticall reinstated in the service: provided, that when the
dela in disposition of the case is due to the fault, negligent or the petition of the
respondent, the period of dela shall not be counted in computing the period of
suspension herein provided!
1inds of preventive suspension Bwith regards to civil service emploees who
are charged with offense punishable with suspension or removal? Brevised
administrative code of 14.=?
1? $reventive suspension, pending investigation!
2? $reventive suspension pending appeal, if the penalt imposed b
the disciplining authorit suspension or dismissal!
I. Gar-ia /. M'Ii-a 0#5 SCRA )49
Fa-,s: "n Ma =, 14.., %ebu cit maor +lvin ,arcia signed a contract with
'!<! 9uellig for the suppl of asphalt to the cit, A das later national elections were
held and Maor ,arcia won reelection contract, in the other hand, took effect on
#eptember 144.!
JsM60
"n march, 1444, news reports came out that the said purchase of asphalt
was anomalous investigation but the special prosecution officer of the office of the
"mbudsman revealed that B1? the contract for suppl of asphalt to %ebu cit was
designed to favor '!<! 9uellig, B2? the amount Iuoted on the contract was too
e3pensive compared for the amount for which asphalt ma be bought from local
suppliers such as #hell and $etron, particularl considering that the amount was fi3ed
in dollars and was paable in pesos, thus e3posing the cit government to the risk
attendance to a fluctuating e3change rate, and B@? the interest of the cit under the
administrative cases be filed against Mao ,arcia!
&he deput "mbudsman handled ,arcia-s case and recommended 5 moths
preventive suspension against the latter C the ma3imum imposable under ;+ 5==0,
the "mbudsman 8aw! ,arcia now raises the following issues:
1! 6hat is the effect of the reelection of the petitioner on the investigation of
acts done before his reelectionP Did the "mbudsman for Visaas gravel abuse his
discretion in conducting the investigation of petitioner and ordering his preventive
suspensionP
2! +ssuming that the ombudsman properl took cogni*ance of the case,
what law should appl to the investigation being conducted b him, the 8,% ;!+ =150
of the ombudsman law B;!+ 5==0?P 6as the procedure in the law properl observedP
@! +ssuming further that the ombudsman has >urisdiction, is the preventive
suspension of the petitioner based on Fstrong evidenceG as reIuired b lawP
Hel(: &he answers are:
1! ,arcia cannot anmore be held administrativel liable for an act
committed during a previous term! &he meeting of minds to the contract, especiall
with regards to the stipulation deemed pre>udicial to the cit has alread occurred
during the maor-s previous term! It hardl matters that the benefits of the contract
are to be delivered during ,arcia-s current term!
)owever, the ombudsman did not commit the grave abuse of discretion! It
was ,arcia-s misfortune that the office of the ombudsman, as empowered b the
constitution, decided to investigate his case on its own initiative B+rticle MI, #ec! 1@
14.= %onstitution?! &he ombudsman derives his authorit to assume >urisdiction over
,arcia-s case under the constitution and ;+ 55=0, the ombudsman law! +nd the
power of the ombudsman to preventivel suspend an official sub>ect to its
administrative investigation is e3pressl provided b ;+ 55=0 as well!
2! <ither law can appl to ,arcia-s case but since the ombudsman decided,
its own initiative, to investigate ,arcia, ;+ 55=0 must prevail! &here is no violation of
the 8,% of 1441 because ;+ 55=0 is a special law distinct from that of the 8,% and
therefore, administrative complaints filed under ;+ 55=0 must be treated under its
provisions and not with that of the 8,%!
@! &he news reports describing in detail ,arcia-s misdeeds constituted
strong evidence to preventivel suspend ,arcia! )owever, the actual documentar
evidence was obtained after the maor had alread been preventivel suspended!
%onsidering that the purpose of preventing suspension is to enable the investigating
authorit to gather documents without intervention from petitioner, it can now be said
that the purpose in preventivel suspending ,arcia has alread been achieved since
actual documentar evidence has alread been discovered! &he order preventivel
suspending ,arcia is deemed too harsh and should be shortened to the period he
has alread served!
0"&<: duration of preventive suspension under the following laws:
1? 8,% of 1441 C ma3imum of 50 das
2? ;+ 55=0 B"mbudsman 8aw? C ma3imum of 5 moths
@? ;+ @014 B+nti(,raft and %orrupt $ractices +ct? C ma3imum of 40 das!
&he 8,% of 1441 applies to elective officials and emploees but, of
applicable, a special law independent and distinct from the 8,% can be applied to
them instead! &he 14.= ;evised +dministrative %ode applies to appointive officials
and emploees!
). G'n=a7a /. San(i7an"a.an )4# SCRA 5#9
Fa-,s: %ora*on ,on*aga, a public school principal of Malabon Municipal
)igh #chool, was charged with malversation of public funds before the
#andiganbaan! &he #andiganbaan preventivel suspended ,on*aga under ;+
@014, but her suspension was decreed as indefinite!
Hel(: $reventive suspension of indefinite duration is re>ected b the
%onstitution as it raises, at the ver least, Iuestions of denial of due process and
eIual protection of the law, in other words, preventive suspension is >ustifiable for as
long as its continuance is for a reasonable length of time, secondl, preventive
suspension is not a penalt, a person under preventive suspension, especiall in a
criminal action, remains entitled to the %onstitutional presumption of innocence as his
culpabilit must still be established, thirdl, the rule is that ever law has in its favor
the presumption of validit, and that to declare a law unconstitutional, the basis for
such a declaration must be clearl established!
&he rule is that a person charged under ;+@014 or $D .0= serve a
ma3imum of 40 das preventive suspension onl!
0. Gar-ia /. CA 043 SCRA )<9
Fa-,s: this area is an offshoot from the 1441 case of Manila $ublic #chool
&eachers v! 8aguio! In that case, man teachers were fired because of their
participation in a strike which was declared b the #% to be illegal! )owever, 0icanor
Margallo and @ other teachers were able to survive the carnage of dismissals! &hese
survivors however, although the are not participating in the strike, did not report
during the same!
&he D<%# secretar preventivel suspended the survivors for 40 das! 8ater
in the were found guilt as charged and their penalties ranged from dismissal to 5
moths suspension! &he survivors appealed with the Merit #stem and $rotection
Board BM#$B? and later on, with the %#%, and managed to get lighter penalties of
reprimands instead Bin effect the were e3onerated of the graver charges filed against
them?!
&he survivors now want to obtain the salaries during the period for which
the were preventivel suspended! #ince the were also preventivel suspended
pending appeal of their cases and were later declared e3onerated, the claim to be
entitled to back salaries for that period of time as well! #hould theP
Hel(: &he survivors are not entitled to back salaries for the period the were
preventivel suspended pending investigation! )owever, the are entitled to back
salaries for the period the were preventivel suspended pending appeal! ;easons:
JsM61
1? +ctuall, it is possible to obtain one-s back salaries for the period she was
preventivel suspended pending investigation! )owever, 2 reIuisites must concur to
make this possible:
a? &he emploee must be found innocent of the charges which
cause his suspension2 and
b? &he suspension is un>ustified!
)ere, the second element is lacking, the reason being that the preventive
suspension of civil service emploees charge with dishonest, oppression or grave
misconduct, or neglect of dut is authori*ed b the %#%! It cannot, therefore, be
considered Fun>ustified,G even if later the charges are dismissed so as to >ustif the
pament of salaries to the emploee concerned! It is one of those sacrifices which
holding the public office reIuires for the public good! 'or this reason, it is limited to 40
das unless the dela in the conclusion of the investigation is due to the emploee
concerned! +fter that period, even if the investigation is finished, the law provides that
the emploee shall be automaticall reinstated!
2? +n emploee is entitled to back salaries during the preventive suspension
pending appeal! It must be remembered that preventive suspension pending
investigation is not a penalt but onl a means of enabling the disciplining authorit to
conduct an unhampered investigation! "n the other hand, preventive suspension
pending appeal is actuall punitive although it is in effect subseIuentl considered
illegal if respondent is e3onerated and the administrative decision finding him guilt is
reversed! )ence, he should be reinstated with full pa for the period of the
suspension!
&hus, # A= BA? BBook V, %hapter 5, ;+% 14.=? states that respondent shall
be considered as under preventive suspension during the pungenc of the appeal in
the event he wins! "n the other hand, if his conviction is affirmed, if he is not
e3onerated, the period of his suspension becomes part of the final penalt of
suspension or dismissal!
It is precisel because the respondents are penali*ed before his sentence is
confirmed that he should be paid as salaries in the event he is e3onerated! It would
be un>ust to deprive him of his pa as the result of the immediate e3ecution of the
decision against him and continue to do so even after it is shown that he is innocent
of the charges for which he was suspended! Indeed to sustain the government-s
theor would be to make the administrative decision not onl e3ecutor but final
e3ecutor! &he fact is that #!A= B2? and BA? are similar to the e3ecution of >udgment
pending appeal under ;ule @4, #!/ of the ;ules of %ourt ;ule @4 #!/ provides that in
the event the e3ecuted >udgment is reversed, there shall be restitution or reparation of
damages of eIuit and >ustice ma reIuire!
5. Ri7, '* ,e Resp'n(en, ?Ar,. #)28 IRR@
T+rt! 124! ;ight of respondent, I;;! &he respondent shall be accorded full
opportunit to appear and defend himself in person or b counsel, to confront and
cross(e3amine the witnesses against him, and to reIuire the attendance of witnesses
and the production of documentar evidence in his favor thru the compulsor process
of subpoena or subpoena duce-s locum!
/! +dministrative Investigation and +ppeals B+rt! 1@1, I;;?
T+rt! 1@0! Investigation and decision!
a? &he investigation of the case shall be terminated within 40 das from the
start thereof! Dnreasonable failure to complete the investigation after same period of
40 das b the person or persons assigned to investigate shall be a ground for
disciplinar action!
b? 6ithin @0 das after the end of the investigation, the "ffice of the
president or the #anggunian concerned shall render a decision stating clearl and
distinctl the facts and reasons for such decisions! %opies of decision shall be
immediatel furnished the respondent and all interested parties! In case of failure of
the #anggunian concerned to render a decision on the resolution recommended on
the investigation within @0 das after the end of the investigation, the recommended
resolution shall be considered the decision!
c? &he penalt of suspension shall not e3ceed the une3pired term of the
respondent or a period of 5 months for ever administrative offense, nor shall said
penalt be a bar to the candidac of the respondent so suspended as long as he
meets the Iualifications reIuired for the office!
d? &he penalt of removal from office shall be considered a bar to the
candidac of the respondent for an elective position!
T+rt! 1@1! +dministrative appeals, I;;! Decisions in administrative cases
ma, within @0 das from receipt thereof, ma be appealed to the following:
1? &he #angguniang $anlalawigan, in the case of decisions of the
#angguniang $anlungsod of component cities and the #angguniang baan, and
2? &he office of the president, in case of decisions of #angguniang
$anlalawigan, #angguniang $anlungsod of highl urbani*ed cities and independent
component cities, and the sangguniang baan of municipalities within MM+!
Decisions of the office of the president shall be final e3ecutor!
#. 6's'n /. T'nes )24 SCRA #92
Fa-,s: &his is a long boring case! It e3plains in sordid detail what happens
during an administrative investigation +" 2A dated Dec! 1=, 1442 figured prominentl
in this case its entiret if ou want to know more about +" 2A Bas if ou would?
"ne fine morning in #eptember 12, 1445, the #$ of 0ueva <ci>a was about
to start their routine session when ,overnor <duardo 7oson barged into their session
hall! +rmed goons accompanied the governor! &he governor threatened the #$
members because the refused to support governor-s plan to obtain a loan of 1/0M
from the $0B!
&he #$ members did not take the governor-s threat sitting down! &he filed a
complaint with the office of the president B"$?, charging the governor with the grave
misconduct and abuse of authorit!
,overnor 7oson was reIuested to file an answer! Instead, the governor
asked for @ e3tensions of @0 das to file his answer! 6hen @ months pass and 7oson,
instead of filing his answer, filed instead Motion to Dismiss, <3ecutive #ecretar
slapped him with a 50 da preventive suspension!
,overnor 7oson then filed a motion to conduct formal investigation as
mandated b the 8,% and +" 2@! &he DI8,, the department investigating his case,
denied the governor-s motion! $roceedings before the DI8, thus continued without
the benefit of a formal investigation!
JsM62
&he case was resolved using position papers submitted b both parties! In
its resolution, the DI8, found the governor guilt as charged and imposed a 5 months
suspension without pa on him!
7oson now claims he cannot be denied of his right to a formal investigation
granted under +" 21, thus the resolution finding him guilt should be declared null
and void! Is he correctP
Hel(: Qes, re>ection of 7oson-s right to a formal investigation is denial of
procedural due process #ec! XX of +" 2@ states that onl the parties to the case have
the right to decide whether the desire a formal investigation! +" 2@ does not give the
investigating authorit Bwhich is the DI8, #ecretar b specific mandate of +" 2@? the
discretion to determine whether a formal investigation should be conducted! &he
rights of the respondent must be respected B+rt! 124, I;;?!
+nother reason wh 7oson-s right to a formal investigation cannot be denied
is because he is an elective official! &he rules on the removal and suspension of
elective local officials are more stringent because the official has onl a limited term of
office! #uspension and removal will shorten this term of office, thus the official must
be accorded his rights under the law in order that the people who elected him into
office will not be undul deprived of his services! &he procedure of reIuiring position
papers in lieu of a hearing in administrative cases is e3pressl allowed with respect to
appointive officials but not to those elected!
). L$p' /. A(!inis,ra,i/e A-,i'n B'ar( #24 SCRA 32
Fa-,s: 'ructuso +rroo, the "I%K%D", Message %enter and former %D" of
&elecom filed a complaint for dishonest thru falsification Bmultiple? of official
documents against Maria 8upo, who committed said transgression in her capacit as
%hief of $ersonnel if &elecom, ;egion V! the telecom investigator conducted an
informal fact(finding inIuir! )e came out with a memorandum recommending that
8upo be sternl warned and that a repeat of such offense will merit her graver
penalties!
&he #ecretar of the Department of &ransportation and %ommunication
however, e3amined the memorandum! Based on said memorandum, the secretar
filed a resolution slipping5 8upo with 1 ear suspension and suspending her from
promotion for a period of 1 ear!
8upo appealed to the %#%! &he %#% thru its Merit #stem Board ordered
the case to be remanded back to the telecom office for further investigation after
which the administrative action board B++B? was to hear the merits of the case thru a
trial!
&he ++B however proceeded with the trial of the case without waiting for the
investigation to commence!
8upo now complains she was not accorded procedural due process because
no formal charge has been filed against her and that the investigation conducted b
the telecom investigation was not a formal investigation but a mere fact(fact finding
inIuir!
Hel(: 8upo is correct! %omplaints against emploees belonging to the %#%
sstem is governed b $D .0= sas that a formal complaint that should first be filed
after which the respondent must be given the option to submit her self to a formal
investigation if her answer to the complaint is found to be unsatisfactor! )ere, not
onl was 8upo is given a chance to submit her self to a formal investigation, the
D"&% secretar immediatel slapped her with a 1 ear suspension based onl a
mere informal inIuir! +lso, the ++B started hearing her case without the benefit of a
formal investigation!
&he cardinal primar rights of due to process in administrative hearings must
alwas be observed! 8upo must not be denied her right to a formal and full blown
administrative proceeding!
'! ;ead ;+ 5==0 C the "mbudsman +ct of 14.4
;ead the case of ,arcia v! Mo>ica Bsee p! 54? preferabl in it-s
entirel, in order to best see how the "mbudsman +ct was applied in an actual case
,! 1 ;ead +" 0o! 2@, December 1=, 1442
;ead the case 7oson v! &orres, Bsee p! =1? preferabl in its entirel,
in order to best see how +" 2@ was applied in an actual case!
,! 2 ;ead +" 0o! 121, March 10, 1442
VII. +ATARUNGAN PAMBARANGAY LA:
;ead sections @44 to A20, 8,%! B0ot e: the following information on the 1B8 and the
8eague of 8ocal ,overnment Dnits were lifted from the $olitical 8aw ;eviewer b
0achura?!
A. Te Baran7a.
#. Cie* O**i-ials an( O**i-ers
a? &here shall be in each baranga a $B2 = #B members, the #1
chairman, a baranga secretar and a baranga treasurer! &here shall also be in
ever baranga a lupong tagapamaapa! &he #B ma from communit brigades and
create such other positions or officers as ma be deemed necessar to carr out the
purposes of baranga government!
1? 'or purposes of the ;$%, the $B, #B members, lupong
tagapamaapa in each baranga shall be deemed as persons in authorit in the
>urisdiction, while other baranga officials and members who ma be designated b
law or ordinance and charged with the maintenance of public order, protection and
securit of life and propert, or the maintenance of a desirable and balanced
environment, and an baranga member who come to the all of persons authorit,
shall be deemed agents persons in authorit in Milo v! #alonga, 1/2 #%;+ 11@, the
baranga chairman is a public officer who ma be charged with arbitrar detention! In
$eople v! Monton B144.?, it was held that the baranga chairman is entitled to posses
and carr firearm within the territorial >urisdiction of the baranga B#ec! ..B@?, B!$!
@@=?! )e ma not be therefore prosecuted for illegal possession of firearms!
). Te Baran7a. Asse!"l.
&here shall be a baranga assembl composed of all person who are actual
residents of the baranga for at least 5 months 1/ ears of age over citi*ens of the
$hilippines and dul registered in the list of baranga assembl members! It shall
meet at least twice a ear to hear and discuss a semestral report of the #B
concerning its activities and finances as well as problems affecting the baranga!
JsM63
a@ P'&ers '* ,e "aran7a. asse!"l.. Rea( Se-. 02<8 R.A 9#34
0. +a,ar$n7an7 Pa!"aran7a.
a? 8upong &agapamaapa! &here is here b created in each
baranga a 8& composed of the $B as chairman and 10 to 20 members! &he lupon
shall be constituted ever @ ears!
1? $owers of the 8upon Bi? e3ercise administrative
supervision over the conciliation panels2 Bii? meet regularl once a month to provide a
forum for e3change of ideas among its members and the members to share with one
another their observations and e3periences in effecting speed resolution of disputes
and2 Biii? e3ercise such other powers and perform such other duties as ma be
prescribed b law or ordinance!
b? $angkat ng &agapagkasundo! &here shall constituted for each,
dispute brought before the lupon a conciliation panel to be known as the pangkat ng
tagapagkasundo, consisting @ members who shall be chosen b the parties to the
dispute from the list of members of the lupon! #hould the parties fail to agree on the
pangkat membership, the same shall be determined b lots drawn b the lupon
chairman!
c? #ub>ect matter of amicable settlement2 procedure, conciliation,
arbitration, effects of settlement and arbitration award!
5. San77$nian7 +a"a,aan
a? %reation2 composition! &here shall be ever baranga a #1 to be
composed of chairman = members, a secretar and a treasurer! +n official who during
his term of office shall have passed the age of 21 shall be allowed to serve the
remaining position for the term for which he was elected!
1? $owers and functions! ;ead #ec! A25 ;+ =150
b? 1atipunan ng mga 1abataan: #hall be composed of citi*ens of
the $hilippines actuall residing in the baranga for at least 5 months, who are 1/ but
not more than 21 ears of age, who are dul registered in the list of the #1 or in the
official baranga list in the custod of the baranga secretar! )e shall meet once
ever @ months or at the call of the #1 chairman, or upon written petition of at least
1K20 of its members!
c? $ederason ng mga #1! &here shall be an organi*ation of all the
pederason ng mga #1
i? In municipalities, the pambansang pederason
ii? in cities, panlungsod na pederason
iii? In provinces, panlalawigang pederason
iv? In special metropolitan political subdivisions, pangmetropolitang
pederason2
v? "n the national level2 pambansang pederason
B! &he Municipalit! ;ead #ec! AA0(AA= ;+ =150
%! &he %it! ;ead #ec! AA.(/A. ;+ =150
D! &he $rovince! ;ead #ec! A/4( A5., ;+ =150
#. U. /. C'n,reras )09 SCRA #39
Fa-,s: 'elicidad D and #usanna +tade got involved in a catfight
Bnagsasabunutan? involving a dispute over a sublease! +tade and her emploee,
6innie 7avier sustained minor in>uries as a result! +tade later filed 2 criminal cases
for minor in>uries against D with the M&%!
D sought to dismiss the 2 criminal cases on the ground that since the
complaint involved a crime where the penalt is at best arresto menor, the same
should have been first filed with the 8upong &agapamaapa of the proper baranga
Bwhich should have actuall been 1atarungang Baranga?! &he M&% >udge however
denied the motion to dismiss! 6as the denial properP
Hel(: 0o, D managed to seasonabl file her motion to dismiss based upon
a valid ground! #he cannot therefore be said to have waived her right to avail of the
1B to resolve their dispute!
). Feli=ar(' /. CA )00 SCRA ))4
Fa-,s: 0emesio 7ose as owner(lessor of a house and lot located in Ba>ac(
ba>ac, Hue*on %it filed an e>ectment case against lessee Huintin 'eli*ardo in the
M&% of "longapo cit!
'eli*ardo, in his answer, claimed that 7ose-s allegations were false and were
onl meant to evade the reIuirements of $D 1/0. for baranga conciliation! &he M&%
ruled that it could act on the complaint field b 7ose and later on rendered a decision
in favor of 7ose! 'eli*ardo thus filed a petition for certiorari Iuestioning the >urisdiction
of the M&%!
Hel(: 6hen M&% ruled that it could act on the complaint for e>ectment filed
b the private respondent even without prior baranga conciliation proceedings, it
committed a mere error of >udgment and not of >urisdiction! &he #% has held in man
cases that while the referral of a case to the lupong tagapamaapa is a condition
precedent for the filing of a complaint in court, non(compliance therewith cannot affect
the >urisdiction which the court has alread acIuired over the sub>ect matter and over
the person of the defendant!
0. Di$ /. CA )1# SCRA 59)
Fa-,s: $atricia $agba owed spouses Diu a debt worth $=,.52!// incurred in
14..! &he spouses Diu brought the matter to the baranga chairman for resolution2
however $agba twice failed to appear! &he baranga chairman thus gave the go
signal for Diu-s to file their case with the M&%!
&he M&% ruled in favor of $agba! &he ;&% reversed deciding the case on
the merits! &he %+ however ruled once more for $agba agreeing with the latter that
there was no substantial compliance with the procedure outlined in 1atarungang
Baranga 8aw because of the failure b the baranga chairman to constitute a
pangkat to resolve the parties- differences!
6as the %+ correct in its contentionP
Hel(: 0o! <ven though there was a failure to constitute a pangkat should the
baranga chairman, b himself fail to resolve the parties differences still is not denied
that the parties met the office of the baranga chairman for possible settlement! &he
efforts of the baranga chairman, however proved futile as no agreement was
reached! +lthough no pangkat was formed, the #% believes that there was substantial
JsM64
compliance with the law! 'rom the foregoing facts, it is undeniable that there was
substantial compliance with presidential decree 0o! 1/0. which does not reIuire strict
technical compliance with its procedural reIuirements! Dnder the factual antecedents,
it cannot be said that the failure of the parties to appear before the pangkat caused
an pre>udice to the case for private respondents considering that the alread
refused conciliation before the baranga chairman!
&o indulge the $agbas in their stratagem will not onl result in a circuitous
procedure but will necessaril entail undue and further dela in>ustice! &his is
inevitable if this court should dismiss the complaint and reIuire the parties to meet
before the pangkat, onl to bring the case all over again through the hierarch of
courts and ultimatel back to us for decision on the merits! "bviousl, this is the game
plan of the $agbas! 'or, when the $agbas appealed to respondent court, the did not
at all assail the propriet or correctness of >udgment of the ;&% holding them liable to
petitioners for the sum of mone involved! #uch primar substantive issue, therefore,
has been laid to rest, but private respondents would wish to keep the case alive
merel on a con>ured procedural issue invoking their supposed right to confrontation
before the pangkat!
LIGA NG MGA BARANGAY
A. Li7a n7 !7a Baran7a. ( "rgani*ation of all barangas for the primar
purpose of determining the representation of the liga in the sanggunians, and for
ventilating, articulating and crstalli*ing issues affecting baranga government
administration and securing, thru proper and legal means, solutions thereto! ;ead
#ec! A41(A4/!
B! 8eague of Municipalities! "rgani*ed for the primar purpose of ventilating,
articulating and crstalli*ing issues affecting municipal government administration,
and securing, thru proper and legal means, solutions thereto! ;ead #ec! A45(A4.
%! 8eague of %ities! ;ead #ec! A44(/01
D! 8eague of provinces! ;ead #ec! /02(20@
<! 8eague and federation of 8ocal <lective "fficials! ;ead #ec! /0.(/10
I. Galar'sa /. Valen-ia ))9 SCRA 9)<
Fa-,s: Basicall the main issue here is onl how to properl interpret #ection
A4A of the 8,% 1441, which sas:
F<3 officio membership in sanggunians! &he dul elected presidents of the
liga ng mga baranga at the municipal, cit and provincial levels, including the
component cities and municipalities of metropolitan manila, shall serve as e3(officio
members of the sangguniang baranga, sangguniang panlungsod, sangguniang
panlalawigan, respectivel! &he shall serve as such onl during their term of office as
presidents of the liga chapters which in no case shall be beond the term of office of
the #%G
;aul ,alarosa is a president of the 1atipunang Baan of the municipalit of
#orsogon! 8ike the 8,% of 1441, the Bold? 8,% of 14.@ or B$ @@= grants ,alarosa
the right to serve as e3(officio member of the sangguniang baan! )owever, when the
new 8,% of 1441 finall took effect, ;odolfo 8asa filed a case against ,alarosa in
his capacit as ta3paer Iuestioning the right of ,alarosa to remain as an e3(officio
member of the sangguniang baan! 8asa claimed that the new 8,% of 1441
provided for the liga ng mga baranga, which, although admittedl was structurall
and functionall the same as katipunan ng mga baranga, nevertheless abolished the
katipunan ng mga baranga, thereb a new set of officers have to be appointed b
the $resident of the $hilippines! Is 8asa correctP
Hel(: Qes! &he 8,% of 1441 does not e3plicitl provide that upon his
effectivit the katipunan ng mga baranga under B!$ Blg! @@= automaticall became
the liga ng mga baranga under the 8,% and then the president of the +B%
automaticall became the president of the liga whose term as e3(officio member of
the first sangguniang baan un the 14.= constitution is coterminous with that of the
other regular members if the #B on until @0 7une, 1442 pursuant to section A4A of the
8,% in relation to section 2 +rticle MVIII of the 14.= constitution 20 and section / of
;+ 0o! 55@5! absent such e3plicitness and considering B1? that the opening clause of
section A41 is e3pressed in the 1441 and B2? that section A4A speaks of Fdul elected
presidents of the ligaG thereb clearl impling as election after the organi*ation of the
liga, the conclusion to be drawn is that the legislature never intended that section A4A
would appl to the incumbent presidents of the katipunang baan!
&here is, however, no law which prohibits ,alarosa from holding over as a
member of the sangguniang baan! "n the contrar, aforementioned I;;, prepared
and issued b the "versight %ommittee upon specific mandate of section /@@ of the
8,%, e3pressl recogni*es and grants that hold(over authorit to +B% presidents!
&he hold(over rule must be applied, because to the rule other wise would lead to a
vacanc in the office, causing an interruption in the public service!
). AlG$is'la Sr. /. O-'l 050 SCRA )90
Fa-,s: ;amon +rIui*ola won the position of punong baranga of baranga
&ubod, Iligan %it! )e then terminated the services of the baranga treasurer,
baranga secretar utilit workers who were appointed under the term of a previous
punong baranga! &he baranga treasurer and his similarl situated friendl friends
pointed out that section @.4 of the 8,% reIuires that the approval b a ma>orit of the
sangguniang baranga members is needed before the punong baranga can e3ercise
his power of replacing them!
Hel(: It should be noted that the baranga officials who were dismissed are
not provided with a definite of office under the 8,%! &he reason is that the were
merel appointed to their posts b punong baranga! )owever, since the punong
baranga who appointed the respondents has alread stepped down from office, the
are now at the merc of the new punong baranga who also possess the power of
appointment! &he power of appointment is discretionar and thus implies that the
power to remove is also inherent in the former, since b necessit, the new punong
baranga ma choose to remove the incumbent appointive baranga officials in order
to make wa for his choice of new baranga officials!
It would be absurd to give section @.4 an interpretation which would render
impotent the power of a newl elected punong baranga to choose his baranga
officials! "nce the punong baranga has alread appointed his choice officials
however, section @.4 should then be applied in the sense that said officials cannot be
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removed b the punong baranga who appointed them without the approval of the
sanggunian baranga!
VIII. LOCAL SPECIAL BODIES ?ART. #<#-#<<8 IRR@
T+rticle 1.1 names the different local special bodies! &he rest of the articles describe
the compositions and functions of each local special bod! "nl +rticle 1.1 will be
reproduced here!
T+rticle 1.1! 8ocal special bodies! &here shall be organi*ed in the 8,D concerned the
following local special bodies Bever 8,D, from the province down, shall have this
local special bodies the $8<B however shall be governed b ;+ 54=/?
Ba? 8ocal Development %ouncil
Bb? 8ocal $reIualification, Bids and +wards %ommittee
Bc? 8ocal #choll Boards
Bd? 8ocal )ealth Board
Be? 8ocal $eace and "rder %ouncil
Bf? $eople 8aw <nforcement Boards
a? 8D% Bsec! 105, 8,%?! <ach 8,D shall have comprehensive multi(sector
development plan to be instituted b its development council and approved b its
sanggunian! 'or the purpose, the development council at the provincial, cit,
municipal or baranga level shall assist the responding sanggunian in setting the
direction of economic and social development, and coordinating development efforts
within its territorial >urisdiction!
a.#@ EO 5308 Ma. #98 #22#
( <ntitled F<stablishing the relationship between the ;egional
$lanning and Development Board of the +utonomous ;egional ,overnment Bof
Muslim Mindanao? and the national economic and development authorit B0<D+?
boardG
( #ec! 1! &he +;, shall be guided b the snchroni*ed
planning, programming and budgeting sstem B#$$B#? namel: &he Medium C term
$hilippine development plan BM&$D$?, the medium term technical assistance
program BM&&+$? and the regional development investment program B;DI$? in its
planning, programming, and budgeting activities!
( #ec! 2! &he regional planning and development board of
the autonomous regional government shall prepare: a? ;egional Development $lan
B;D$? consistent with the national development policies, goals, ob>ectives and
priorities embodied in the Medium(&erm $hilippine Development $lan BM&$D$?2 and
b? ;egional Development Investment $rogram B;DI$? and regional technical
assistance program which shall be included in the Medium &erm $ublic Investment
$rogram BM&$I$? and the Medium &erm &echnical +ssistance $rogram BM&&+$?!
&he ;D$, ;DI$ and supporting technical assistance
programs shall be submitted directl to the office of the president for review and
evaluation of their consistenc with the M&$D$ and the M&$I$KM&&+$!
( #ec! /! &he 8ocal Development %ouncil Bprovincial,
citKmunicipal? shall be maintained the strengthened in order to ensure continuit in
the development planning process! &he +;, ma choose to reorgani*e the 8D%
through regional legislation!
a. )@ RA 93548 De-e!"er 28 #23)
a? ;+ =5A0, December 4, 1452
b? 8ocal $+B% Bsec! @=, 8,%? C &here shall is hereb created a local
preIualification, bids and awards committee in ever province, cit and municipalit,
which shall be primaril responsible for the conduct of preIualification of contractors,
bidding, evaluation of bids, and the recommendation of awards concerning local
infrastructure pro>ects 3 3 3!
c? 8ocal #chool Boards Bsec! 4., 8,%? C %reation, composition and function!
B&he 8#Bs do the following: 1? determine, in accordance with the criteria set b the
D<%#, the annual supplementar needs for the operation and maintenance of public
high schools in the 8,D concerned2 in other words, the annual school budget2 2?
authori*e the 8,D treasurer to disburse funds pursuant to budget2 @? serve as
advisor committee on educational matters2 A? recommended changer in name of
public schools within its assigned territorial >urisdiction2 /? act as an consultant on
appointment of division superintendent, district supervisor, school officials, etc!?
c! 1? 8"I 1A52, Ma @1, 14./
<hP
d? 8ocal )ealth Board Bsec! 102, 8,%? C %reation and %omposition! B&he
8)B do the following: 1? %onsistent with D") rules, propose to sanggunian
concerned2 2? serve as advisor committee to sanggunian on local appropriations for
public health purposes2 @? consistent with D") standards, create committees which
shall advise local health agencies on matters such as personnel selection and
promotion, etc!
d! 1? sec! 21, <"242
( <ntitled FI0#&I&D&I0, &)< F+DMI0I#&;+&IV< %"D< "' 14.=G
(#ec! 21, %hapter /, #ec! IM on )ealth basicall states that D")
shall review and for the establishment, operation and maintenance
of health agencies funded b local governments!
e? 8ocal $eace and "rder %ouncils B#ection 115, 8,%? C Basicall, the local
peace and order councils will have the same composition and functions as prescribed
in <" @04! <"04, on the other hand is entitled F;<";,+0I9I0, &)< $<+%< +0D
";D<; %"D0%I8G
( #ec! 2! ;esponsibilit of the 0ational $eace and "rder %ouncil! &he
peace and "rder %ouncil the national level shall be responsible for the following
functions:
a? &o prepare and recommended for the approval of the
$resident, proposals, measures, thrusts and strategies that would
effectivel respond to peace and order problems!
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b? &o coordinate and monitor peace and order plans, pro>ects and
operation of %ivilian Volunteer #elf(Defense "rgani*ations such as
other counter(insurgenc programs and activities!
c? &o perform such other duties and functions as the $resident
ma direct!
( #ec! @! Duties and 'unctions of #ub(0ational %ouncils! &he ;egional,
$rovincial and %itKMunicipal $eace and "rder %ouncil shall have the following duties
and functions:
a? 'ormulate plans and recommended such measures which will
improve or enhance peace and order and public safet in their
respective areas of responsibilit!
b? &o monitor the implementation of peace and order programs
pro>ects at the provincial, cit or municipal levels and the operation of
%ivilian Volunteer #elf(Defense "rgani*ations and such as other
counter(insurgenc programs and activities!
c? Make periodic assessments of the prevailing peace and order
situation in their respective areas of responsibilit and submit a report
thereon with recommendations to the %hairman of the 0ational $eace
and "rder %ouncil!
d? $erform all other functions assigned b law, the $resident, or
the 0ational $eace and "rder %ouncil!
e@ Pe'pleNs La& En*'r-e!en, B'ar(
f!1! #ection A@, ;+ 54=/ C #ome features:
( Is created onl b the sangguniang panlungsodKbaan
and found onl in cities and municipalities!
( %omposed of 1 sanggunian member Ban?, 1 baranga captain
Ban?, @ respected members of the communit, at least 1 who is member of the Bar,
or if in absence thereof, an college graduate or principal of central elementar school
( &here must be 1 $8<B for ever municipalit and 1 in ever legislative
district of the cit
( $rocedure in $8<B shall be summar in nature
( $8<B decisions are final and e3ecutor
( &he 0ational $olice %ommission shall establish rules regarding
the graduated penalties which ma be imposed b the $8<B!
*.). Fian=a /. PLEB )50 SCRA #31
Fa-,s: #everal policemen filed two separate complaints against two of
their superiors with the $eople-s 8aw <nforcement Board! In the first complaint, the
alleged that their transfer from the Baguio %it $olice #tation to other stations and
their being dropped from the rolls wore irregularl and illegall made! &he orders
issued b #upt! %amilo #! Dugaen, apparentl upon the direction of #upt! 'lorencio
D! 'ian*a, here petitioner, were, according to respondent policemen, instigated b or
made in retaliation to the raids the conducted on >ueteng operations in Baguio! &he
policemen claim that #upt! Dugaen, their #tation %ommander, twice castigated them
for conducting said raids and ordered the release of the cash and paraphernalia
sei*ed, as well as persona accosted, as a conseIuence of the raids!
In the second complaint, the respondent policemen contend that #upt!
7ul %ordovi* was guilt of grave threats against them in connection with the issue
regarding the first case, although #upt! %ordovi* was not under the command of
#upt! 'ian*a!
'ian*a contended, through counsel that cases of this nature are not within
the competence and >urisdiction of public respondent $8<B since it involves an
internal organi*ational matter of the $0$!
&he respondent policemen answered, however, that although the are
policemen, the do not cease to become citi*ens of the $hilippines despite the
uniform the wear! &he $8<B ruled that the have >urisdiction over the case! &he
0ational $olice %ommission affirmed the $8<B-s stand! +re the $8<B and
0+$"8%"M correctP
Hel(: 0o! 'irst, the complaint is not a citi*en-s complaint because, as
defined under the $8<B rules, a citi*en-s complaint is one filed b a private citi*en
against a member of the $0$ for the redress of in>ur, damage or disturbance cause
b the latter-s illegal or irregular acts! #tatutor construction will tell ou that words of
a statute are to be given their plain, literal meaning! 6hile the policemen are indeed
citi*ens, that cannot be certainl be said to be private citi*ens in their ordinar
meaning!
#econd, nowhere in the $0$-s enabling act does it grant the $8<B
>urisdiction to tr an of the $0$-s members!
8astl, internal disciplinar matters within the $0$ are best solved b the
members of the $0$ themselves as the are the best position to understand the
standard of conduct within its organi*ation! It is doubtful that a civilian bod can
better police the ranks of policemen!



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