UP 2012 Political Law (Local Government Code)-1

POLITICAL LAW REVIEWER TABLE of CONTENTS

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LOCAL GOVERNMENT LAWTable of Contents

Chapter I. Basic Principles..........................258I. Nature and Status .............................258

A. Definition .......................................258B. Dual Nature...................................258

II. Principles of Local Government Law 259A. State Policy, Principles ofDecentralization.....................................259B. Local Autonomy............................259C. Decentralization ............................259C. Devolution .....................................260

III. The Local Government Code............260A. Effectivity.......................................260B. Scope............................................260C. Rules of Interpretation ..................260

Chapter II. Creation and Dissolution of LGUs.......................................................................261

I. Creation.............................................261A. General Provisions .......................261B. Specific Requirements..................261C. Authority to Create Local GovernmentUnits262D. Creation and Conversion of LGUs263E. Plebiscite.......................................264F. Beginning of Corporate Existence 264

II. Division and Merger; Abolition ..........266A. Division and Merger......................266B. Abolition ........................................266

III. Settlement of Boundary Disputes .267A. Jurisdictional Responsibility forSettlement of Boundary Dispute............267B. Appeal...........................................267C. Maintenance of the Status Quo ....267

Chapter III. General Powers andAttributes of LGUs .......................................268I. Powers in General ...............................268

A. Sources of Powers of LGUs..............268B. Classification of Powers of LGUs......268C. Execution of Powers .........................268

II. Political and Corporate Nature of LGUs268

III. Governmental Powers ....................269A. General Welfare ................................269

1. Police Power .................................2692. Limitations.....................................2703. Abatement of Nuisance ................2714. Closure of Roads ..........................271

B. Power to Generate Revenue ............272C. Eminent Domain................................273D. Basic Services and Facilities ............275E. Reclassification of Lands ..................276F. Corporate Powers .............................277G. Local Legislative Power ....................278

Chapter IV. Local Initiative and Referendum.......................................................................283

A. Definition ...........................................283B. Requirements....................................283C. Procedure .........................................283D. Effectivity of Local Propositions ........283E. Limitations on Initiatives....................283F. Limitations Upon Local LegislativeBodies........................................................284

Chapter V. Municipal Liability.....................285A. Specific Provisions making LGUs Liable

285B. Liability for Torts, Violation of the Lawand Contracts ............................................285C. Personal Liability of Public Official ....286

Chapter VI. Intergovernmental Relations –National Government and LGUs.................287

I. Executive Supervision.......................287A. 1987 Constitution, Art. X, Sec. 2 and4 287B. Administrative Code of 1987, Title XIIChapter I................................................287

II. Consultations ....................................288LGC Sec. 2(c), 26, 27 ...........................288A. Declaration of Policy.....................288B. Maintenance of Ecological Balance

288C. Prior Consultation .........................288

III. Relations with Philippine NationalPolice 289

LGC, Sec. 28 ........................................289IV. Other Relations.............................290

A. Inter-local Relations......................290B. Relations with Non-Governmentalorganizations .........................................290

Chapter VII. Local Officials .........................291I. Elective Local Officials .......................291

A. Qualifications ....................................291B. Disqualifications ...............................292`C. Manner of Election ............................294D. Term of Office ...................................294E. Rules on Succession ........................296F. Recall ................................................299G. Discipline...........................................300

1. Administrative Action ....................3002. Penalties .......................................3023. Power of Tribunals........................303

II. Appointive Officials.............................304A. Appointments ....................................304B. Discipline...........................................306C. Removal ............................................306

POLITICAL LAW REVIEWER TABLE of CONTENTS

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D. Officials Common to All Municipalities,Cities and Provinces ..................................306

III. Provisions Applicable to Elective andAppointive Officials .....................................307

A. Prohibited Interests ...........................307LGC Sec. 89 ..............................................307B. Practice of Profession .......................307C. Prohibition against Appointment .......308

IV. Local Boards and Councils ................308A. Local School Board ...........................308B. Local Health Board............................309C. Local Development Council ..............309D. Local Peace and Order Council ........309

Chapter VIII. Local Government Units .......310A. The Barangay....................................310

1. Katarungang Pambarangay..........3102. Sangguniang Kabataan ................311

B. The Municipality ................................311C. The City.............................................312D. The Province .....................................313

Chapter IX. Miscellaneous and FinalProvisions.....................................................314

A. Posting and Publication of Ordinanceswith Penal Sanctions .................................314B. Penalties for Violation of TaxOrdinances.................................................314C. Provisions for Implementation...........314

Chapter X. Application of LGC toAutonomous Regions and Other Entities..315

I. The Autonomous Region in MuslimMindanao ...................................................315II. Cordillera Administrative Region.......315III. The Metropolitan Manila DevelopmentAuthority.....................................................316

POLITICAL LAW REVIEWER Chapter I. BASIC PRINCIPLES

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Chapter I. Basic Principles

I. NATURE AND STATUSA. DefinitionB. Dual Nature

II. PRINCIPLES OF LOCAL GOVERNMENT LAWA. State Policy, Principles of DecentralizationB. DecentralizationC. Devolution

III. THE LOCAL GOVERNMENT CODEA. EffectivityB. ScopeC. Rules of Interpretation

I. Nature and Status

A. Definition

A Local Government Unit (LGU) is a politicalsubdivision of the State which is constituted bylaw and possessed of substantial control over itsown affairs. Remaining to be an intra sovereignsubdivision of a sovereign nation, but notintended to be an imperium in imperio, the LGUis autonomous in the sense that it is given morepowers, authority, responsibilities and resources.[ Alvarez vs Guingona (1996)]

“Local government” is interchangeable with“municipal corporation. The City of Manila, being a mere municipal

corporation, has no right to impose taxes.[Basco vs PAGCOR (1991)]

Municipal Corporation vs Quasi-municipalcorporation A municipal corporation exists by virtue of,

and is governed by, its charter. A quasi-municipal corporation operates directly asan agency of the state to help in theadministration of public functions. [Singco,(1955)]

B. Dual Nature

Sec. 15, LGC. Every LGU created or recognizedunder this Code is a body politic andcorporate endowed with powers to be exercisedby it in conformity with law. As such, it shallexercise powers as a political subdivision of thenational government and as a corporate entityrepresenting the inhabitants of its territory.

The obligations of the old City of Manilasurvives the cession of the Phil. to the U.S.because of the corporate nature of the city.[Villas vs Manila (1921)]

As a body politic with governmentalfunctions, the LGU has the duty to ensure

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LOCAL GOVERNMENT LAW TEAM

Prof. Gisella Dizon-ReyesFaculty Editor

Sherwin EbaloLead Writer

Paulyne CaspillanKarlo Noche

Writers

POLITICAL LAW

Jennifer GoSubject Editor

ACADEMICS COMMITTEE

Kristine BongcaronMichelle Dy

Patrich LeccioEditors-in-Chief

PRINTING & DISTRIBUTION

Kae Guerrero

DESIGN & LAYOUT

Pat HernandezViktor FontanillaRusell Aragones

Romualdo Menzon Jr.Rania Joya

LECTURES COMMITTEE

Michelle AriasCamille MarananAngela Sandalo

Heads

Katz ManzanoSam Nuñez

Arianne Cerezo

Mary Rose BeleyKrizel MalabananMarcrese Banaag

Volunteers

MOCK BAR COMMITTEE

Lilibeth Perez

BAR CANDIDATES WELFARE

Dahlia Salamat

LOGISTICS

Charisse Mendoza

SECRETARIAT COMMITTEE

Jill HernandezHead

Loraine MendozaMary Mendoza

Faye CelsoJoie Bajo

Members


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the quality of the environment (S16, LGC). Itcannot claim exemption from PD 158 whichimposes the same duty. [Republic vs Davao(2002)]

II. Principles of Local Government Law

A. State Policy, Principles ofDecentralization

Art. X, 1987 Constitution

Sec. 2. The territorial and political subdivisions shallenjoy local autonomy.

Sec. 3. The Congress shall enact a local governmentcode which shallo provide for a more responsive and accountable

local government structure instituted through a system of

decentralization with effective mechanisms of recall, initiative,

and referendum,o allocate among the different local government

units their powers, responsibilities, andresources,

o and provide for the qualifications, election,appointment and removal, term, salaries, powersand functions and duties of local officials,

o and all other matters relating to the organizationand operation of the local units.

Sec. 4. The President of the Philippines shallexercise general supervision over localgovernments.Provinces with respect to component cities andmunicipalities, and cities and municipalities withrespect to component barangays shall ensure that the acts of their component

units are within the scope of their prescribedpowers and functions.

Sec. 5. Each local government unit shall have thepower to create its own sources of revenues and tolevy taxes, fees and charges, subject to such guidelines and limitations as the

Congress may provide, consistent with the basic policy of local

autonomy.Such taxes, fees, and charges shall accrueexclusively to the local governments.

Local Government Code (RA 7160)

Sec. 2 (c) It is likewise the policy of the State torequire all national agencies and offices to conductperiodic consultations with: appropriate local government units, nongovernmental and people's organizations, and other concerned sectors of the community

before any project or program is implemented intheir respective jurisdictions.

B. Local Autonomy

The principle of local autonomy under the1987 Constitution simply meansdecentralization (discussed below). [Bascovs PAGCOR (1991)]

Illustrations The CSC cannot declare the provision “upon

recommendation of the local chief executiveconcerned” as merely directory. Suchprovision is in consonance with localautonomy. [San Juan vs CSC (1991)]

An A.O. may not compel LGUs to reducetheir total expenditures. Supervising officialsmay not lay down or modify the rules. Theserules were made in furtherance of localautonomy. [Pimentel vs Aguirre (2000)]

HOWEVER, the Constitution did not intend,for the sake of local autonomy, deprive thelegislature of all authority over LGUs, inparticular, concerning discipline. [Ganzon vsCA (1991)]

C. Decentralization

NOTE: Decentralization is a means to achievelocal autonomy.

Autonomy is either (1) decentralization ofadministration or (2) decentralization of power.There is decentralization of administrationwhen the central government delegatesadministrative powers to political subdivisions inorder to broaden the base of government power.

Purpose: to relieve the central governmentof the burden of managing local affairs andenable it to concentrate on nationalconcerns.

The President exercises "generalsupervision" over them, but only to"ensure that local affairs areadministered according to law." He hasno control over their acts in the sense thathe can substitute their judgments with hisown. [Limbona v. Mangelin (1989)]

Cf. Decentralization of power is the abdicationof political power in favor of LGUs declared to beautonomous. There is self-immolation whereautonomous government is accountable, not tothe central government, but to its constituents.(Note: not allowed by our Constitution.)

Sec. 1 of AO 372 (Adoption of EconomyMeasures in Government for FY 1998),insofar as it “directs” LGUs to reduceexpenditures by at least 25%, is a validexercise of the President’s power of general


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supervision over LGUs as it is advisory only.Supervisory power, when contrasted withcontrol, is the power of mere oversight overan inferior body; it does not include anyrestraining authority over such body.[Pimentel v. Aguirre, supra]

C. Devolution

(asked in 1999)

Refers to the act by which the nationalgovernment confers power and authorityupon the various local government units toperform specific functions andresponsibilities (Sec. 17, LGC); the transferof power and authority from the NationalGovernment to LGUs to enable them toperform specific functions andresponsibilities (Art. 24, IRR of the LGC).

III. The Local Government Code

A. Effectivity

LGC, Sec. 536 January 1, 1992, unless otherwise provided; After complete publication in at least one (1)

newspaper of general circulation.

B. Scope

RA 7160 (LGC), Sec. 4The LGC shall apply to: provinces cities municipalities barangays other political subdivisions as may be

created by law; and to the extent herein provided, to officials,

offices, or agencies of the nationalgovernment.

C. Rules of Interpretation

LGC, Sec. 5Sec. 5. Rules of Interpretation. - In theinterpretation of the provisions of this Code, thefollowing rules shall apply:

1. In case of doubt on any provision on apower of an LGU: Liberal interpretation

in favor of devolution of powers in favor of existence of power

2. In case of doubt on any tax ordinance orrevenue measure: Construed strictly against LGU

Construed liberally in favor of taxpayer Tax exemption, incentive or relief is

construed strictly against personclaiming it

3. General welfare provisions Liberally interpreted to give more

powers to LGU in accelerating economicdevelopment and upgrading quality oflife for the people of the community

4. Rights and obligations existing on effectivityof LGC: Arising from contracts or other source Shall be governed by

original terms and conditions ofcontract, OR

law in force at the time the rightswere vested

5. Resolution of controversies under the LGC: Where no legal provision or

jurisprudence applies Resort to customs and traditions in the

place where the controversies takeplace

POLITICAL LAW REVIEWER Chapter II. CREATION and DISSOLUTION of LGUs

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Chapter II. Creation and Dissolution ofLGUs

I. CREATIONA. GENERAL PROVISIONSB. SPECIFIC REQUIREMENTS

1. METROPOLITAN POLITICALSUBDIVISIONS

2. HIGHLY URBANIZED CITIES ANDINDEPENDENT COMPONENT CITIES

3. AUTONOMOUS REGIONSC. AUTHORITY TO CREATE LGUSD. CREATION AND CONVERSION OF LGUSE. PLEBISCITEF. BEGINNING OF CORPORATE EXISTENCE

II. DIVISION AND MERGER; ABOLITIONA. DIVISION AND MERGERB. ABOLITION

III. SETTLEMENT OF BOUNDARY DISPUTESA. JURISDICTIONAL RESPONSIBILITY FOR

SETTLEMENT OF BOUNDARY DISPUTEB. APPEALC. MAINTENANCE OF THE STATUS QUO

I. Creation

(Art. X, 1987 Consti.)

A. General Provisions

Sec. 10. No province, city, municipality, or barangaymay be created, divided, merged, abolished, or itsboundary substantially altered, except: in accordance with the criteria established in the

Local Government Code and subject to approval by a majority of the votes cast

in a plebiscite in the political units directlyaffected.

Sec. 13. Local government units may: group themselves, consolidate or coordinate their efforts, services,

and resourcesfor purposes: commonly beneficial to them in accordance with law.

Sec. 14. The President shall provide for regionaldevelopment councils or other similar bodiescomposed of local government officials, regionalheads of departments and other government offices,and representatives from non-governmentalorganizations within the regions: for purposes of administrative decentralization to strengthen the autonomy of the units therein

and to accelerate the economic and social growth and

development of the units in the region.

B. Specific Requirements

1) Metropolitan Political SubdivisionsSec. 11. The Congress may, by law, create specialmetropolitan political subdivisions, subject to aplebiscite as set forth in Section 10 hereof.The component cities and municipalities: shall retain their basic autonomy and shall be entitled to their own local executive and

legislative assemblies.The jurisdiction of the metropolitan authority that willthereby be created shall be limited to basic servicesrequiring coordination.

2) Highly Urbanized Cities and IndependentComponent Cities

Sec.12. Cities that are highly urbanized, asdetermined by law, and component cities whosecharters prohibit their voters from voting forprovincial elective officials, shall be independentof the province.The voters of component cities within a province,whose charters contain no such prohibition, shall notbe deprived of their right to vote for elective provincialofficials.

3) Autonomous RegionsSec. 15. There shall be created autonomous regionsin Muslim Mindanao and in the Cordilleras consistingof provinces, cities, municipalities, and geographicalareas sharing common and distinctive historicaland cultural heritage, economic and socialstructures, and other relevant characteristics within the framework of this Constitution and the

national sovereignty as well as territorial integrityof the Republic of the Philippines.

Sec. 16. The President shall exercise generalsupervision over autonomous regions to ensure thatlaws are faithfully executed.

Sec. 17. All powers, functions, and responsibilities notgranted by this Constitution or by law to theautonomous regions shall be vested in the National Government.

Sec.18. The Congress shall enact an organic act foreach autonomous region with the assistance andparticipation of the regional consultative commissioncomposed of representatives appointed by thePresident from a list of nominees from multi-sectoralbodies.

The organic act shall define the basic structure ofgovernment for the region consisting of theexecutive department and legislative assembly,both of which shall be elective and representative ofthe constituent political units.

The organic acts shall likewise provide for specialcourts with personal, family, and property lawjurisdiction consistent with the provisions of thisConstitution and national laws.


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C. Authority to Create Local GovernmentUnits

LGC, Sec. 6A local government unit may beo created, divided, merged, abolished, or its

boundaries substantially altered either by law enacted by Congress in the

case of a province, city, municipality, or anyother political subdivision, OR

by ordinance passed by the sangguniangpanlalawigan or sangguniang panlungsodconcerned in the case of a barangay locatedwithin its territorial jurisdiction,

o subject to such limitations and requirementsprescribed in this Code.

The authority to create municipalcorporations is essentially legislative innature [Pelaez v. Auditor General (1965)]

The enactment of a LGC is not acondition sine qua non for the creation ofa municipality, and before the enactment ofsuch code, the power remains plenaryexcept that the creation should be approvedby the people concerned in a plebiscitecalled for the purpose. [Torralba v. Sibagat(1987)]

The SC held that sec. 19 of RA 9054 insofaras it grants ARMM Regional Assembly thepower to create provinces and cities is void.(Constitution allows delegation of creatingmunicipalities and barangays only.) [BaiSema v. COMELEC (2008)]

Creations under Sec. 68, Admin Code The alleged power of the President to create

municipalities under Sec. 68 of the AdminCode amounts to an undue delegation oflegislative power. The authority to createmunicipal corporations is essentiallylegislative in nature. The power of control ofthe President over executive departments,bureaus or offices implies no more than theauthority to assume directly the functionsthereof or to interfere in the exercise ofdiscretion by its officials. It does not includethe authority either to abolish or create such.[Pelaez v. Auditor General (1965)]

Effect if created under Sec 68, Admin Code:The municipality is non-existent. It cannot bea party to any civil action [Mun. of Kapalongv. Moya (1988)]

De Facto CorporationsDe facto municipal corporation: There is defectin creation; legal existence has been recognizedand acquiesced publicly and officially.

Requisites: (LACA)(a) valid law authorizing incorporation;(b) attempt in good faith to organize it;(c) colorable compliance with law; and(d) assumption of corporate powers.

There can be no color of authority in anunconstitutional statute. An unconstitutionalact confers no rights, imposes no duties,affords no protection, and creates no office.However, even if the EO was invalid, it doesnot mean that the acts done by themunicipality of Balabagan in the exercise ofits corporate powers are a nullity. This isbecause the existence of the EO is ‘anoperative fact which cannot justly beignored.’ [Malabanan v Benito (1969)]

The Municipality of Sinacban1 possesseslegal personality. Where a municipalitycreated as such by executive order is laterimpliedly recognized and its acts areaccorded legal validity, its creation can nolonger be questioned.

Sinacban has attained de jure status2 byvirtue of the Ordinance appended to the1987 Constitution, apportioning legislativedistricts throughout the country, whichconsidered Sinacban part of the SecondDistrict of Misamis Occidental. Above all,Sec. 442(d) of the LGC of 1991 must bedeemed to have cured any defect in thecreation of Sinacban.

Since Sinacban had attained de factostatus at the time the 1987 Constitution tookeffect on February 2, 1987, it is not subjectto the plebiscite requirement. Thisrequirement applies only to newmunicipalities created for the first timeunder the Constitution.

Attack Against Validity of Incorporation When the inquiry is focused on the legal

existence of a body politic, the action isreversed to the state in a proceeding for quo

1 Sinacban was created by EO 258 of then President ElpidioQuirino, pursuant to Sec. 68 of the Revised AdministrativeCode of 1917.2 De jure: by virtue of the ordinance appended to the 1987Constitution; Sec. 442 (d), LGC curative.

Sec. 442(d), LGC: Municipalities existing as of the date ofthe effectivity of this Code shall continue to exist and operateas such. Existing municipal districts organized pursuant topresidential issuances or executive orders and which havetheir respective set of elective municipal officials holdingoffice at the time of the effectivity of this Code shallhenceforth be considered as regular municipalities.


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warranto or any other direct proceeding.Collateral attacks shall not lie. Proceeding must be: (RST)

1. Brought in the name of theRepublic of the Philippines

2. Commenced by the Sol Gen or thefiscal when directed by the president

3. Timely raised [Municipality of SanNarciso v Mendez (1994)]

The municipality can still be considered tohave attained at least a status closelyapproximating that of a de facto corporationdespite the invalidity of the EO creating it.This is because the State itself recognizedthe continued existence of San Andres whenit classified it as a 5

thclass municipality.

And, more importantly, Sec.442(d) of theLGC cured whatever defect there was in itscreation. [Municipality of San Narciso v.Mendez]

Municipal Corporation by PrescriptionExistence is presumed where the communityhas claimed and exercised corporate functionswith the knowledge and acquiescence of thelegislature, and without interruption or objectionfor a period long enough to afford title byprescription. [Martin, Public Corporations (1977)] The municipality was created under a void

law (S68, AC). But it should be considered ade jure personality because it existed 1 yearbefore the Pelaez case, and variousgovernmental acts indicate the State’srecognition of its existence. [Mun. ofCandijay v. CA (1995)]

D. Creation and Conversion of LGUs

Requirements1. In accordance with the criteria established in

the LGC2. Majority of the votes cast in a plebiscite in

the political units directly affected.

Purpose of plebiscite: to preventgerrymandering (i.e. the practice ofcreating legislative districts to favor aparticular candidate or party) andcreation or abolition of units for purelypolitical purposes.

CriteriaLGC, Sec. 7As a general rule, the creation of a localgovernment unit or its conversion from one levelto another level shall be based on verifiableindicators of viability and projected capacity toprovide services, to wit: (IPL)1. Income. - must be sufficient, based on

acceptable standards, to provide for allessential government facilities and servicesand special functions commensurate withthe size of its population.

2. Population. - total number of inhabitantswithin the territorial jurisdiction of the localgovernment unit cozncerned.

3. Land Area. - must be: Contiguous

o unless it comprises two or moreislands or is separated by a LGUindependent of the others;

Properly identified by metes and boundswith technical descriptions; and

Sufficient to provide for such basicservices and facilities to meet therequirements of its populace.

Compliance attested to by: Department of Finance (DOF) National Statistics Office (NSO) Lands Management Bureau (LMB) of

the Department of Environment andNatural Resources (DENR).

Illustrations The requirement on metes and bounds was

meant merely as a tool in the establishmentof LGUs. So long as the territorial jurisdictionof a city may be reasonably ascertained, theintent behind the law (i.e., thedetermination of the territorial jurisdictionover which governmental powers may beexercised) has been sufficiently served. Acadastral type description is not necessary.[Mariano v. COMELEC (1995)]NOTE: The ruling in Mariano is an exceptionto the general rule of proper identificationbecause of its peculiar facts: (1) thelegislature deliberately omitted thedescription in metes and bounds because ofthe pending litigation between Makati andTaguig over Fort Bonifacio; (2) RA 7854provided that the territory of the City ofMakati will be the same as that of theMunicipality of Makati, thus making theterritorial jurisdiction of Makati ascertainable(subject, of course, to the result of theunsettled boundary dispute).

Compliance with population OR land area, inaddition to income, is sufficient to satisfy therequirements in the creation of a city.[Samson v. Aguirre (1999)]

Internal Revenue Allocations (IRAs) formpart of the income of LGUs. The fundsgenerated from local taxes, IRAs andnational wealth utilization proceeds accrue


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to the general fund of the LGU and are usedto finance its operations subject to specifiedmodes of spending the same as provided forin the LGC and its implementing rules andregulations.

As such, for purposes of budget preparation,which budget should reflect the estimates ofthe income of the LGU, among others, theIRAs and the share in the national wealthutilization proceeds are considered items ofincome. [Alvarez v. Guingona (1996)]

NOTES: For provinces and cities, the income

requirement must be satisfied; and EITHERpopulation OR territory.

In the creation of barangays, there is nominimum requirement for area and income.

As to the income requirement, averageannual income shall include the incomeaccruing to the general fund, exclusive ofspecial funds, transfers, and non-recurringincome.

E. Plebiscite

LGC, Sec. 10 No creation, division, merger, abolition, or

substantial alteration of boundaries of localgovernment units shall take effect unlessthere is: Law or ordinance Approved by a majority of the votes cast

in a plebiscite called for the purposein the political unit or units directlyaffected.

Said plebiscite shall be conducted bythe commission on elections(COMELEC)

- Within one hundred twenty (120) days fromthe date of effectivity of the law or ordinanceeffecting such action, unless said law orordinance fixes another date.

Illustrations When the law states that the plebiscite shall

be conducted “in the political unitsdirectly affected”, it means that theresidents of the political entity who would be

economically dislocated by theseparation of a portion thereof have theright to vote in said plebiscite. What iscontemplated by the phrase “political unitsdirectly affected” is the plurality of politicalunits which would participate in theplebiscite. [Padilla v. COMELEC (1992)]

The downgrading of Santiago City from anICC to a component city falls within themeaning of creation, division, merger,abolition, or substantial alteration ofboundaries; hence, ratification in a plebisciteis necessary. There is material change inthe political and economic rights of theLGUs directly affected as well as the budgetpreparation, which budget should reflect theestimates of people therein. It is thereforebut reasonable to require the consent of thepeople to be affected.

Effects of downgrading: (ART)(a) the city mayor will be placed under the

Administrative supervision of thegovernor;

(b) resolutions and ordinances will have tobe Reviewed by the provincial board;

(c) Taxes will have to be shared with theprovince. [Miranda v. Aguirre (1999)]

The creation of a separate congressionaldistrict of Mandaluyong is not a subjectseparate and distinct from the subject of itsconversion into a highly-urbanized city but isa natural and logical consequence of itsconversion…The Court found no need forthe people of San Juan to participate in theplebiscite. They had nothing to do with thechange of status of neighboringMadaluyong. [Tobias v. Abalos (1994)]

F. Beginning of Corporate Existence

LGC, Sec. 14Sec. 14. When a new local government unit iscreated, its corporate existence

o shall commence upon the election andqualification of its chief executive and amajority of the members of its sanggunian,

o unless some other time is fixed therefor bythe law or ordinance creating it.


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Summary: Creation of Specific LGUs3

Requirements ProvinceLGC 460-461

CityRA 9009 (2001)

MunicipalityLGC 441-442

BarangayLGC 385-386

Income Average annualincome, ascertified by theDepartment ofFinance, of notless thanP20,000,000based on 1991constant prices

Average annualincome, ascertified by theDepartment ofFinance, of at leastP100,000,000 forthe last 2consecutive yearsbased on 2000constant prices

Average annualincome, as certifiedby the provincialtreasurer, of atleastP2,500,000.00 forthe last twoconsecutive yearsbased on 1991constant prices

No minimumrequirement forincome

Population 250,000inhabitants

150,000inhabitants

25,000 inhabitants 2,000 inhabitants

5,000 inhabitants, incities andmunicipalities withinMM and othermetropolitan politicalsubdivisions or inhighly urbanized cities

Territory contiguousterritory of at least2,000 km

2

contiguous territoryof at least 100 km

2contiguous territoryof at least 50 km

2No minimumrequirement for area

territory need notbe contiguous if itcomprises 2 ormore islands or isseparated by achartered city orcities which donot contribute tothe income of theprovince

requirement onland area shall notapply where thecity proposed to becreated iscomposed of 1 ormore islands; theterritory need notbe contiguous if itcomprises 2 ormore islands

requirement onland area shall notapply where themunicipalityproposed to becreated iscomposed of 1 ormore islands;territory need notbe contiguous if itcomprises 2 ormore islands

Territory need not becontiguous if itcomprises 2 or moreislands

Manner ofCreation

By an Act ofCongress



By law or by anordinance of thesangguniangpanlalawigan orpanlungsod; In case ofthe creation ofbarangays by thesangguniangpanlalawigan, therecommendation ofthe sangguniangbayan concerned shallbe necessary

3 For creation of specific LGUs, please check LGC 385-386, 441-442, 449-450, 460-461


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Requirements ProvinceLGC 460-461

CityRA 9009 (2001)

MunicipalityLGC 441-442

BarangayLGC 385-386

By an Act ofCongress, to enhancethe delivery of basicservices in theindigenous culturalcommunities

Plebiscite(in LGUsdirectly

affected)

Approval must beby majority of thevotes cast; exceptotherwiseprovided in theAct of Congress,the plebisciteshall be heldwithin 120 daysfrom effectivity ofthe law orordinanceeffecting suchaction

Approval must beby majority of thevotes cast; exceptotherwise providedin the Act ofCongress, theplebiscite shall beheld within 120days fromeffectivity of thelaw or ordinanceeffecting suchaction

Approval must beby majority of thevotes cast; exceptotherwise providedin the Act ofCongress, theplebiscite shall beheld within 120days from effectivityof the law orordinance effectingsuch action

Approval must be bymajority of the votescast; plebiscite shallbe held within suchperiod of time as maybe determined by thelaw or ordinancecreating saidbarangay.

II. Division and Merger; Abolition

A. Division and Merger

LGC, Sec. 8. Division and merger of existing local

government units shall comply with thesame requirements herein prescribed fortheir creation: Provided, however, That such division

shall not reduce the income, population,or land area of the local government unitor units concerned to less than theminimum requirements prescribed inthis Code:

Provided, further, That the incomeclassification of the original localgovernment unit or units shall not fallbelow its current classification prior tosuch division.

The income classification of localgovernment units shall be updated within six(6) months from the effectivity of this Codeto reflect the changes in their financialposition resulting from the increasedrevenues as provided herein.

Effects of Merger1. Legal existence of LGU to be annexed is

dissolved2. Laws and ordinance of the annexing LGU

prevails3. The right of office in the annexed LGU is

terminated4. Title to property is acquired by the annexing LGU5. Debts are assumed by the annexing LGU [Martin,

supra]

Effects of division1. The legal existence of the original

municipality is extinguished2. Property, rights and powers are acquired by

the dividing LGUs [Martin, supra]

B. Abolition

LGC, Sec. 9 A local government unit may be abolished:

when its income, population, or landarea has been irreversibly reduced toless than the minimum standardsprescribed for its creation under Book IIIof this Code, as certified by the nationalagencies mentioned in Section 7 hereofto Congress or to the sangguniangconcerned, as the case may be.

The law or ordinance abolishing a localgovernment unit shall specify the province,city, municipality, or barangay with whichthe local government unit sought to beabolished will be incorporated ormerged.

When there is no dissolution1. Non-user or surrender of charter2. Failure to elect municipal officers3. Change of sovereignty4. Change of name


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III. Settlement of Boundary Disputes

(asked in 2005)

LGC, Sec. 118-119 Boundary dispute—when a portion or the

whole of the territorial area of an LGU isclaimed by two or more LGUs.

Policy: Boundary disputes between oramong LGUs shall, as much as possible, besettled amicably.

A. Jurisdictional Responsibility forSettlement of Boundary Dispute

LGC, Sec. 118If the LGUs involvedare:

Boundary disputesshall be referred forsettlement to:

two (2) or morebarangays in the samecity or municipality

sangguniangpanlungsod orsangguniang bayanconcerned.

two (2) or moremunicipalities withinthe same province

sangguniangpanlalawiganconcerned.

municipalities orcomponent cities ofdifferent provinces

jointly referred to thesanggunians of theprovinces concerned.

a component city ormunicipality on the onehand and a highlyurbanized city on theother; or two (2) ormore highly urbanizedcities,

jointly referred forsettlement to therespectivesanggunians of theparties.

In the event the sanggunian fails to effect anamicable settlement within sixty (60) daysfrom the date the dispute was referredthereto, it shall issue a certification to thateffect.

Thereafter, the dispute shall be formally triedby the sanggunian concerned which shalldecide the issue within sixty (60) days fromthe date of the certification referred toabove.

B. Appeal

LGC, Sec. 119. Within the time and manner prescribed by

the Rules of Court, any party may elevatethe decision of the sanggunian concerned tothe proper Regional Trial Court havingjurisdiction over the area in dispute.

The Regional Trial Court shall decide the

appeal within one (1) year from the filingthereof. Pending final resolution of thedisputed area prior to the dispute shall bemaintained and continued for all legalpurposes.

C. Maintenance of the Status Quo

IRR of LGC, Sec. 18Pending final resolution of the dispute: status ofthe affected area prior to the dispute shall bemaintained and continued for all purposes.

The power of provincial boards to settleboundary disputes is limited to implementingthe law creating a municipality. Thus,provincial boards do not have the authorityto approve agreements which in effectamend the boundary stated in the creatingstatute [Municipality of Jimenez v. Baz(1996)]

The conduct of plebiscites, to determinewhether or not a barangay is to be created,should be suspended or cancelled in view ofa pending boundary dispute between twolocal governments. Precisely becauseterritorial jurisdiction is an issue raised in thepending boundary dispute, until and unlesssuch issue is resolved with finality, to definethe territorial jurisdiction of the proposedbarangays would only be an exercise infutility. [City of Pasig v. COMELEC(1999)]

POLITICAL LAW REVIEWER Chapter III. GENERAL POWERS and ATTRIBUTES of LGUs

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Chapter III. General Powers andAttributes of LGUs

I. POWERS IN GENERALA. SOURCESB. CLASSIFICATIONC. EXECUTION OF POWERS

II. POLITICAL AND CORPORATE NATURE OFLGUs

III. GOVERNMENTAL POWERSA. GENERAL WELFARE (POLICE POWERS)B. POWER TO GENERATE REVENUE

(POWER TO TAX)C. EMINENT DOMAIND. BASIC SERVICES AND FACILITIESE. RECLASSIFICATION OF LANDSF. CORPORATE POWERSG. LOCAL LEGISLATIVE POWER

I. Powers in General

A. Sources of Powers of LGUs

1987 Consti., Sec. 25, Art. II ; Sec. 5-7, Art.X

Statutes, e.g. LGC Charter (particularly of cities) Doctrine of the right of self-government, but

applies only in States which adhere to thedoctrine

B. Classification of Powers of LGUs

Express, Implied, Inherent Public or Governmental, Private or

Proprietary Intramural, Extramural Mandatory, Directory; Ministerial,

Discretionary

C. Execution of Powers

Where statute prescribes the manner ofexercise, the procedure must be followed

Where statute is silent, LGUs havediscretion to select reasonable means andmethods of exercise

II. Political and Corporate Nature ofLGUs

LGC Sec.18

Local government units shall have the powerand authority to generate and applyresources

Establish an organization responsible forimplementation of development plans,program objectives, and priorities.

Own sources of revenues (Sec.5, Art.X,Constitution; Sec.18 LGC) which include: Power to create own sources Levy taxes, fees and charges

o Shall accrue exclusively for theirown use and disposition

o Limitation: guidelines Congress mayprovide

Just share in national taxes (Sec.6,Art.X, Constitution; Sec.18 LGC)o Determined by lawo Automatically and directly released

Equitable share in utilization anddevelopment of national wealth (Sec.7,Art.X Constitution; Sec.18 LGC)o Within respective territorial

jurisdictionso In the manner provided by lawo Sharing with inhabitants by way of

direct benefits Acquire, develop, lease, encumber,

alienate, or otherwise dispose ofproperty (Sec.18 LGC)o Real or personal propertyo Made in a proprietary capacity

Apply resources and assets (Sec.18LGC)o Purpose: productive, development,

or welfare purposeso In the exercise of their governmental

or proprietary powers and functions

Municipal Corporations

LGC Sec. 14. Beginning of Corporate Existence

The election and qualification of chief executive AND majority of the members of the

Sanggunian unless some other time is fixed therefore by

the law or ordinance creating it.

Note: Art.14 applies when the law creating it isSILENT as to the beginning of its corporateexistence.

LGC Sec. 15. Political and Corporate Nature of LocalGovernment Units

Local government unit created or recognizedunder this Code is a Body politic AND Corporate endowed with powers to be

exercised by it in conformity with law Exercise of power (as a):

Political subdivision of the nationalgovernment AND

Corporate entity representing theinhabitants of its territory


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Implications A municipal corporation performs twin

functions. Firstly, it serves as aninstrumentality of the State in carrying outthe functions of a government. Secondly, itacts as an agency of the community in theadministration of local affairs. It is in thelatter character that it is a separate entityacting for its own purposes and not asubdivision of the state. [Lidasan vCOMELEC (1967)]

The holding of a town fiesta is a proprietaryfunction, though not for profit, for which amunicipality is liable for damages to 3

rd

persons ex contractu or ex delicto. [Torio vFontanilla (1978)]

Difference Between the Political Nature andCorporate Nature of LGUs

Political/Governmental

Corporate/Municipal

Political subdivision ofnational government

Corporate entityrepresenting inhabitantsof its territory

Includes the legislative,judicial, public andpolitical

Includes those whichare ministerial, privateand corporate

LGU cannot be heldliable except:o If statute provides

otherwiseArt.2189, Civil Code

Can be held liable excontractu or ex delicto

Examples: Regulations against

fire, disease Preservation of public

peace Maintenance of

municipal plaza Establishment of

schools, post offices,etc.

Examples: Municipal waterworks Slaughterhouses Markets Stables Bathing

establishments Wharves Fisheries Maintenance of parks,

golf courses,cemeteries, airports

III. Governmental Powers

A. General Welfare

LGC Sec.16

This includes: Police Power, Abatement ofNuisance and Closure of Roads

1. Police Power

Preservation of peace and order withinrespective regions (Sec.21, Art. X,Constitution)1. Responsibilities of local police agencies

2. Local police shall be organized,maintained, supervised and utilized inaccordance with applicable laws.

Defense and security of regions (Sec.21,Art.X, Constitution)o Responsibility of National Government

General Welfare Clause (Sec.16 LGC)1. Powers expressly granted2. Powers necessarily implied3. Powers necessary, appropriate or

incidental for efficient and effectivegovernance

4. Powers essential to the promotion ofgeneral welfare

5. Shall ensure and support: Preservation and enrichment of

culture Promotion of health and safety Enhancement of the right of the

people to a balance ecology Development of self reliant scientific

and technological capabilities Improvement of public morals Economic prosperity and social

justice Promotion of full employment

among residents Maintenance of peace and order Preservation of the comfort and

convenience of inhabitants

Nature The police power of a municipal corporation

extends to all the great public needs, and, ina broad sense includes all legislation andalmost every function of the municipalgovernment. Public purpose is notunconstitutional merely because itincidentally benefits a limited number ofpersons. The drift is towards social welfarelegislation geared towards state policies toprovide adequate social services, thepromotion of general welfare and socialjustice [Binay v Domingo (1991)]

To constitute “public use”: The public in general should have equal

or common rights to use the land orfacility involved on the same terms

The number of users is not the yardstickin determining whether property isproperly reserved for public use orpublic benefit [Republic v. Gonzales]

2 Branches of the GWC The General Welfare Clause has 2

branches:(1) the general legislative power which

authorizes municipal councils to enact


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ordinances and make regulations notrepugnant to law as may be necessaryto carry into effect and discharge thepowers and duties conferred upon it bylaw;

(2) the police power, which authorizes themunicipality to enact ordinances as maybe proper and necessary for the healthand safety, prosperity, morals, peace,good order, comfort and convenience ofthe municipality and its inhabitants, andfor the protection of their property.

Here, the ordinances imposing the licensesand permits for any businessestablishments, for purposes of regulationenacted by the municipal council of Makati,falls under the 1

stbranch. [Rural Bank of

Makati, Inc v Municipality of Makati (2004)]

2. Limitations

1. The General Welfare Clause cannot be usedto justify an act that is not specificallyauthorized by law.

2. Powers of the LGUs under the generalwelfare clause (LGC Sec.16) Powers expressly granted to the LGU Power necessarily implied therefrom Powers necessary, appropriate, or

incidental for its efficient and effectivegovernance

3. For ordinance to be valid exercise of policepower [Tatel v. Mun. of Virac (1992)]:

1. Not contrary to the Constitutionand/or statute

2. Not unfair or oppressive3. Must not be partial or discriminatory4. Not prohibit but may regulate trade5. General and consistent with public

policy6. Not unreasonable

Illustrations: Police Power Applies A municipal ordinance prescribing the

zonification and classification ofmerchandise and foodstuff sold in the publicmarket [Eboňa v Municipality of Daet (1950)]

A proclamation reserving parcels of thepublic domain for street widening andparking space purposes [Republic vGonzales]

Condemnation and demolition of buildingsfound to be in a dangerous or ruinouscondition within the authority provided for bymunicipal ordinances [Chua Huat vs CA(1991)]

Regulation and operation of tricycles-for-hireand to grant franchises for the operationthereof. However, this power is still subjectto the guidelines prescribed by the DOTC.Moreover, the newly delegated powerspertain to the franchising and regulatorypowers therefore exercised by the LTFRB.[LTO vs City of Butuan (2000)]

The declaration of an area as a commercialzone through a municipal ordinance.Corollary thereto, the state may interferewith personal liberty with property, business,and occupations. [Patalinhug vs CA (1994)]

Demolition of stalls causing traffic anddeteriorated sanitation [Villanueva vsCastaneda (1987)]

Deny an application for permit or avoid theinjury to the health of residents. [TechnologyDevelopers vs CA (1991)]

Provide for burial assistance to the poor.[Binay vs Domingo, supra]

Abatement of a public nuisance becausestored inflammable materials created adanger to the people within theneighbourhood [Tatel vs Mun. of Virac(1992)]

Rescind contracts [Tamin vs CA (1994)]

Enforcement of fishery laws in municipalwaters including the conservation ofmangroves. [Tano vs Socrates (1997)]

Illustrations: Police Power Does Not Apply The LGU has no power to prohibit the

operation of night clubs, a lawful trade orpursuit of occupation. It may only regulate.[De La Cruz vs Paras (1983)]

“Anxiety, uncertainty and restiveness”among stallholders and traders cannot be aground to revoke the mayor’s permit. TheGeneral Welfare claim is too amorphous.[Greater Balanga vs Mun. of Balanga(1994)]

Butuan city board passes an ordinancerequiring that the sale of tickets to movies,exhibitions or other performances to childrenbetween 7-12 years of age should be at halfprice. The said ordinance was declaredvoid. The theater operators are merelyconducting their legitimate business.


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There is nothing immoral or injurious incharging the same price for both childrenand adults. In fact, no person is undercompulsion to purchase a ticket. [Balacuit vCFI (1988)]

The power of the municipal government toissue fishing privileges is only for revenuepurposes. BUT the power of the LLDA togrant permits is for the purpose of effectivelyregulating and monitoring activities in thelake region and is in the nature of policepower. [Laguna Lake Development Authorityv. CA (1995)]

3. Abatement of Nuisance

LGC sec.447 and 458

Sangguniang Bayan and SangguniangPanlungsod have: Power to regulate activities relative to the

use of land, buildings and structures withintheir jurisdiction To promote the general welfare and For said purpose declare, prevent or

abate any nuisance

Coverage Respondents cannot seek cover under the

General Welfare Clause authorizing theabatement of nuisances without judicialproceedings. That tenet applies to anuisance per se, or one which affects theimmediate safety of persons and propertyand may be summarily abated under theundefined law of necessity [Monteverde vGeneroso (1928)].

NOTES:The provisions of the Code DO NOT make adistinction between nuisance per se andnuisance per acccidens, thus creating apresumption that LGUs can abate all kinds ofnuisances without need of a judicial order.However, the jurisprudence holds that LGUscan abate extrajudicially only nuisances perse.

4. Closure of Roads

LGC Sec.21

What roads are subject, those withinjurisdiction of LGU Local road Alley Park Square

Permanently close or open Ordinance: Vote of at least 2/3 of all

members of the Sanggunian When necessary, an adequate

substitute for the public facility should beprovided

Make provision for public safety If permanently withdrawn from public

use May be used or conveyed for any

purpose for which other real propertybelonging in LGU may be lawfully usedor conveyed

Freedom park: must have provision forrelocation to new site

Temporary close or open Ordinance May be done:

During actual emergency Fiesta celebrations Public rallies Agricultural or industrial fairs Undertaking of public works and

highways, telecommunications, andwaterworks projects

Duration specified in written order bylocal chief executive

If for athletic, cultural, or civic activities:must be officially sponsored,recognized, or approved by LGU.

Temporary closure and regulation of anylocal street, road, thoroughfare, or any otherpublic place By any city, municipality, or barangay Where shopping malls, Sunday, flea or

night markets, or shopping areas maybe established

Where goods, merchandise, foodstuffs,commodities, or articles of commercemay be sold

Illustrations A public street is property for public use

hence, outside the commerce of man. It maynot be the subject of lease or other contract.Such leases are null and void for beingcontrary to law. The right of the public to usethe city street may not be bargained awaythrough contract. The authorization given forthe use of the city street as a vending areafor stallholders who were granted licensesby the City Government contravenes thegeneral law that reserves city streets androads for public use. It may not infringe uponthe vested right of the public to use citystreets for the purpose they were intendedto serve. [Dacanay vs Asistio (1992)]


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The provincial council has the authority todetermine whether or not a certain property(in this case a provincial road) is stillnecessary for public use [Cabrera vs CA(1991)]

The power of the LGU to enact zoningordinances for the general welfare prevailsover the deed of restrictions. [Sangalang vsIAC(1989)]

The closure of roads under police power isnot eminent domain. No grant of damagesare awarded. [Cabrera vs CA (1991)]

Effect: The determination of the location ofthe camino vecinal through an ordinance willdefeat the testimonies of witnesses as to thelocation of said passageway. [Pilapil vs CA(1992)]

The MMDA does not have police power, butthe LGUs do. There should have been anordinance by the LGU to effect an openingof roads. [MMDA vs Bel Air (2000)]

B. Power to Generate Revenue

LGC Sec.18

Sources of LGU funds: (O-TIU)1. Own sources of revenues2. Taxes, fees and charges: which shall accrue

exclusively for their use and disposition andwhich shall be retained by them

3. Just share in national taxes which shall beautomatically and directly released to themwithout need for any further action (InternalRevenue Allotments)

4. Equitable share in the proceeds from theutilization and development of the nationalwealth and resources within their respectiveterritorial jurisdictions including sharing thesame with the inhabitants by way of directbenefits

Fundamental principles governing the exerciseof the taxing and other revenue-raising powersof LGUs LGC Sec 130(PE-PUB)1. Taxation shall be uniform in each LGU;2. Taxes, fees, charges and other impositions

shall be equitable and based as far aspracticable on the taxpayer’s ability topay; levied and collected only for publicpurposes; not unjust, excessive,oppressive, or confiscatory; not contraryto law, public policy, national economicpolicy, or in restraint of trade;

3. The collection of local taxes, fees, chargesand other imposition shall in no case be leftto any private person;

4. The revenue shall inure solely to thebenefit of, and be subject to dispositionby, the LGU, unless otherwise specificallyprovided herein; and

5. Each LGU shall, as far as practicable,evolve a progressive system of taxation.

Common Limitations on the Taxing Powers ofLGUs Sec 133. LGC1. Income tax (except when levied on banks

and financial institutions)2. Documentary stamp tax3. Estate tax4. Customs duties, registration fees of vessels

and all other kinds of customs fees andcharges

5. Taxes, fees and charges and otherimpositions upon goods carried in or out of,or passing through, the territorial jurisdictionof local government units in the guise ofcharges for wharfage, tolls for bridges orotherwise, or other taxes, fees or charges inany form whatsoever upon such goods ormerchandise

6. Taxes, fees or charges on agricultural andaquatic products when sold by marginalfarmers or fishermen

7. Taxes on business enterprises certified bythe BOI as pioneer or non-pioneer for aperiod of 6 and 4 years, respectively, fromdate of registration

8. Excise taxes9. Percentage taxes or VAT10. Taxes on the gross receipts of transportation

contractors and persons engaged in thetransportation of passengers or freight, andcommon carriers

11. Taxes on premiums paid by way ofreinsurance or retrocession

12. Taxes, fees, charges for the registration ofmotor vehicles and for the issuance of allkinds of licenses or permits for the drivingthereof, except tricycles

13. Taxes, fees, or other charges in Phil.products actually exported, except asotherwise provided therein

14. Taxes, fees or charges, on Countryside andBarangay Enterprises and cooperatives dulyregistered under RA 6810 and theCooperative Code

15. Taxes, fees, or charges of any kind on theNational Government, its agencies andinstrumentalities


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Fundamental principles governing the financialaffairs, transactions and operations of LGUsLGC sec 3051. No money shall be paid out of the local

treasury except in pursuance of anappropriations ordinance or law;

2. Local government funds and monies shallbe spent solely for public purposes;

3. Local revenue is generated only fromsources expressly authorized by law orordinance, and collection thereof shall at alltimes be acknowledged properly;

4. All monies officially received by a localgovernment officer in any capacity or on anyoccasion shall be accounted for as localfunds, unless otherwise provided by law;

5. Trust funds in the local treasury shall not bepaid out except in fulfillment of the purposefor which the trust was created or the fundsreceived;

6. Every officer of the LGU whose dutiespermit or require the possession or custodyof local funds shall be properly bonded, andsuch officer shall be accountable andresponsible for said funds and for thesafekeeping thereof in conformity with theprovisions of law;

7. Local governments shall formulate soundfinancial plans, and the local budgets shallbe based on functions, activities, andprojects, in terms of expected results;

8. Local budgets shall operationalize approvedlocal development plans;

9. LGUs shall ensure that their respectivebudgets incorporate the requirements oftheir component units and provide forequitable allocation of resources amongthese component units;

10. National planning shall be based on localplanning to ensure that the needs andaspirations of the people as articulated bythe local government units in their respectivelocal development plans are considered inthe formulation of budgets of national lineagencies or offices;

11. Fiscal responsibility shall be shared by allthose exercising authority over the financialaffairs, transactions, and operations of thelocal government units; and

12. The LGU shall endeavor to have a balancedbudget in each fiscal year of operation

Cases Sec 234 withdrew all exemptions from real

property taxes, even GOCCs when thebeneficial use of the property has beengranted to a taxable person forconsideration or otherwise. MCIAA is aGOCC and an instrumentality, therefore,

RPT exemption granted under its charter iswithdrawn [MCIAA vs Marcos (1997)]

Tax exemption of property owned by theRepublic refers to properties owned by theGovernment and by its agencies which donot have separate and distinct personalities(unincorporated entities). The properties ofNDC belong to the Government. [NDC vsCebu, (1992)]

LGUs, in addition to administrativeautonomy, also enjoy fiscal autonomy. LGUshave the power to create their own sourcesand revenue, in addition to their equitableshare in the national taxes as well as thepower to allocate resources in accordancewith their own priorities. A basic feature oflocal fiscal autonomy is the automaticrelease of the shares of the LGUs in thenational internal revenue. This is mandatedby no less than the constitution. Anyretention is prohibited. [Pimentel v Aguirre(2000)]

C. Eminent Domain

LGC Sec.19

Eminent Domain -- It is the ultimate right of thesovereign power to appropriate not only publicbut private property of citizens within theterritorial sovereignty to public purpose [CharlesRiver Bridge vs. Warren Bridge, (1837)]

Requisites for a Valid Exercise of EminentDomain (COP-JO)a. Through the Chief Executive of LGUb. Acting pursuant to an ordinancec. For the purposes of:

Public use or welfare For the benefit or the poor and the

landlessd. Payment of just compensation

Amount determined by proper court Based on fair market value at the time of

the takinge. Valid and definite offer made

Right by the State to immediately takepossession: Upon filing of expropriation proceedings Upon deposit with proper court of at least

15% of the fair market value of the property

Article 35 IRR of LGC Offer to buy private property for public use

or purpose shall be in WRITING. It shallspecify the property sought to be acquired,the reasons for the acquisition, and the priceoffered.


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If the owner’s accept the offer in its entirety,a contract of sale shall be executed andpayment made

If the owner/s are willing to sell their propertybut at a price higher than that offered tothem, the local chief executive shall callthem to a conference for the purpose ofreaching an agreement on the selling price.The chairman of the appropriation or financecommittee of the Sanggunian, or in hisabsence, any member of the Sanggunianduly chosen as its representative, shallparticipate in the conference. When anagreement is reached by the parties, acontract of sale shall be drawn andexecuted.

The contract of sale shall be supported bythe following documents: Resolution of the Sanggunian

authorizing the local chief executive toenter into a contract of sale. Theresolution shall specify the terms andconditions to be embodied in thecontract.

Ordinance appropriating the amountspecified in the contract, and

Certification of the local treasurer as toavailability of funds together with astatement that such fund shall not bedisturbed or spent for any purpose otherthan to pay for the purchase of theproperty involved.

Illustrations of Eminent Domain There is no need to get DAR approval

before expropriation [Camarines Sur vs CA(1993)]

There must be genuine necessity of a publiccharacter. There is no genuine necessity ifanother road more ideal is available.[Meycauyan vs IAC (1988)]

The ordinance which requires cemeteries toset aside a portion of their lots to paupers isnot an exercise of police power, but a takingwithout compensation. [QC vs Ericta (1983)]

Eminent domain may be exercised overeasements (property rights), not just landsor personal property. [NPC vs Jocson(1992)]

Necessity does not contemplate theeconomic relief of a few families devoid ofany other public advantage [Manila vsArellano (1950)]

Eminent domain requires an ordinance, notjust a resolution. Res judicata does notapply to expropriation cases [Paranaque vsVM Realty (1998)]

Just compensation shall be determined atthe time of taking, NOT at the time of filing

complaint Although the general rule indetermining just compensation in eminentdomain is the value of the property as of thedate of filing of the complaint, the ruleadmits of an exception: where the SC fixedthe value of the property as of the date itwas taken and not at the date of thecommencement of the expropriationproceedings. Finally, while sec.4, Rule 67 ofthe Rules of Court provides that justcompensation shall be determined at thetime of the filing of the complaint forexpropriation, such law cannot prevail overthe Local Government Code, which issubstantive law. [Cebu vs Apolonio (2002)]

It is possible that the purpose forexpropriation is changed after such isgranted. [Republic vs CA (2002)]

Immediate Entry by the LGU

Requisites for immediate entry of LGU:1. Filing of complaint for expropriation sufficient

in form and substance2. The deposit of the amount equivalent to

15% of the fair market value of the propertyto be expropriated based on the current taxdeclaration [Bardilion v Masili (2003)] Upon compliance with the requirements

for immediate entry, the issuance of awrit of possession becomes ministerial.No hearing is required for theissuance of the writ. The LGC did notput a time limit as to when a LGU mayimmediately take possession of theproperty. As long as the expropriationproceedings have been commencedand the deposit made, the LGU cannotbe barred from praying for the issuanceof writ of possession. [City of Iloilo vLegaspi (2004)]

Socialized Housing The UDHA and the Expropriation by the

LGUs i.e. Sec.9 of the Urban Land andHousing Act, which speaks of PRIORITIESin acquisition) should be read in connectionwith Sec.10 (MODES of acquisition).

If the land sought to be expropriated islocated in urban areas and fall under theUDHA, the LGU must allege compliancewith Secs.9 and 10 for their suit to prosper.Otherwise, it would be premature.

Cases Under the Urban Land and Housing Act,

there is a priority in expropriation of whichthe properties of the government or any ofits subdivision rank number one and


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privately owned properties ranked last. Also,the said act provides that expropriationshould be the last alternative, giving way toother modes of acquisition like communitymortgage and swapping. Otherwise it wouldbe deprivation of property. [FilstreamInternational Inc v CA (1998)]

The UDHA introduced a limitation on thesize of the land sought to be expropriated for

socialized housing. It exempted “smallproperty owners”. The elements of smallproperty owners are: 1. Those owners ofreal property which consists of residentiallands with an area of not more than 300sq.meters in highly urbanized cities (800 inother urban cities); 2. They do not own realproperty other than the same. [City ofManadaluyong v Aguilar (2001)]

D. Basic Services and Facilities

LGC Sec . 17

Barangay Municipality Province CityAgricultural supportservices

Agriculture and fisheryextension and on-siteresearch services andfacilities

Agricultural extensionand on-site researchservices and facilities;organization of farmersand fishermen’scooperatives

See municipality andprovince

Health services Same; health centersand clinics

Same, includinghospitals and tertiaryhealth services


Social welfare services Same Same, including rebelreturnees andevacuees,reliefoperations populationdevelopment services


General hygiene andsanitation

Same See municipality andprovince

Solid waste collection Solid waste disposalsystem orenvironmentalmanagement system

KatarungangPambarangay

N/A N/A N/A

Maintenance of roads,bridges and watersupply systems

Road, bridges,communal irrigation,artesian wells, drainage,flood control

Similar to those formunicipality


Infrastructure facilities(e.g. plaza, multi-purpose hall)

Municipal buildings,cultural centers, publicparks


Information and readingcenter

Information services, taxand marketinginformation systems andpublic library

Upgrading andmodernization of taxinformation andcollection services


Satellite or publicmarket

Public markets,slaughterhouses


Implementation ofcommunity-basedforestry projects

Enforcement of forestrylaws, limited tocommunity-basedforestry projects,pollution control law,small-scale mining law,mini-hydroelectric



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Barangay Municipality Province Cityprojects for localpurposes

School Buildings See municipality andprovince

Public cemetery See municipality andprovince

Tourism facilities Tourism developmentand promotionprograms


Police, fire station, jail Same SameIndustrial research anddevelopment services

Same

Low cost housing andother mass dwellings

Same

Investment supportservices

Same

Inter-municipaltelecommunicationservices

Adequatecommunication andtransportation facilities.

E. Reclassification of Lands

LGC Sec. 20

By a City or Municipality Through an ordinance passed by

Sanggunian After conducting public hearings Provide manner of disposition

Land ceases to be economicallyfeasible and sound for agriculturalpurposes as determined by theDepartment of Agriculture

Land shall have substantiallygreater economic value forresidential, commercial, or industrialpurposes, as determined by theSanggunian

Limited to the following percentage ofthe total agricultural land area at thetime of passage of the ordinance For highly urbanized and

independent component cities: 15% For component cities and first to the

third class of municipalities: 10% For fourth to sixth class

municipalities: 5% Limited by RA 6657 or the

“Comprehensive Agrarian Reform Law” Agricultural lands distributed to

agrarian reform beneficiaries shallnot be affected

Conversion into other purposesgoverned by sec.56 RA6657

Nothing repealing, amending ormodifying RA6657

By the President When public interest so requires Upon recommendation of the NEDA May authorize a city or municipality to

reclassify lands in excess of the limits

Approval of national agency When required, shall not be

unreasonably withheld Failure to act: deemed approval

Within 3 mos. from receipt Proper and complete application for

reclassification Comprehensive Land Use Plans

Enacted through zoning ordinances Shall be the primary and dominant

bases for the future use of landresources

Factors to consider-requirements foro Food productiono Human settlementso Industrial expansion

NOTES: Land use conversion: the act or process of

changing the current use of a piece ofagricultural land into some other use asapproved by the DAR

Reclassification: designation of intendeduse of land within the territory. The land isnot currently used as agricultural, although itis classified as such

Requisites for Reclassification of Land:(PAO)1. Ordinance passed by Sanguniang Bayan or

Panglungsod after public hearingsconducted for the purpose


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2. Agricultural land must either:a. cease to be economically feasible

and sound for agricultural purposes asdetermined by the Department ofAgriculture, OR

b. have substantially greater economicvalue for residential, commercial, orindustrial purposes, as determined bythe Sanggunian concerned

3. Reclassification shall be limited to thepercentages of the total agricultural landarea at the time of the passage of theordinance as prescribed by the LGC

Take note however, of:o LGU need not obtain approval of DAR to

convert or reclassify land from agri to non-agri [Fortich v Corona (1998)]

o DAR is mandated to approve or disapproveapplications for conversion [Roxas v CA(1999)]

F. Corporate Powers

LGC Sec 22

Every LGU, as a corporation has thefollowing powers: (SC-PCSO)a. To have continuous succession in its

corporate nameb. To sue and be suedc. To have and use a corporate seald. To acquire and convey real or personal

propertye. To enter into contractsf. To exercise such other powers as are

granted to corporations Limitations: as provided in LGC and

other laws

Corporate Seal LGUs may continue using, modify, or

change their existing corporate seals Newly established LGUs or those

without corporate seals May create own corporate seals Registered with the DILG Change of corporate seal shall be

registered with the DILG

Contract entered into by local chiefexecutive un behalf of LGU Prior authorization by Sanggunian Legible copy of contract posted at a

conspicuous place in the Provincial capitol or City, municipal or barangay hall

Cases The authority of a municipality to fix and

collect rents for water supplied by itswaterwork system is expressly granted bylaw. However, even without these provisionsthe authority of the municipality to fix andcollect fees from its waterworks would bejustified from its inherent power toadminister what it owns privately. [NAWASAv Dator (1967)]

If the property is owned by the municipalityin its public and governmental capacity, theproperty is public and Congress hasabsolute control over it; if the property isowned in its private or proprietary capacity,then it is patrimonial and Congress has noabsolute control. In which case, themunicipality cannot be deprived of it withoutdue process and payment of justcompensation. [Province of Zamboanga vCity of Zamboanga (1968)]

Authority to Negotiate and Secure Grants

LGC Sec.23

Who may negotiate: Local Chief Executive (upon authority of

Sanggunian) What are negotiated

Financial grants or donations in kind insupport of basic services or facilities

From local and foreign assistanceagencies

Approval by national agency concerned No necessity of securing clearance from

national agency IF with national security implications

Shall be approved by nationalagency concerned

Failure to act on request forapproval within 30 days fromreceipt: deemed approved

Reporting duty: local chief executive shallreport to both Houses of Congress and thePresident Nature Amount Terms Within 30 days upon signing of grant

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G. Local Legislative Power

LGC Sec.48-59

Exercised by (Sec.48) Sangguniang panlalawigan for the

province Sangguniang panglungsod for the city Sangguniang bayan for the municipality Sangguniang barangay for the barangay

Presided by (Sec.49): Vice-governor or vice-mayor or punong

barangay will vote only in case of a tiebecause he is not a member of theSanggunian. [Perez vs Dela Cruz(1969)]

The incumbent local chief executiveacting as the chief executive may notpreside over the sessions of theSanggunian. Why? To ensure betterdelivery of public services and provide asystem of checks and balances betweenthe executive and legislative. [Gamboavs Aguirre]

Inability of the above: members presentand constituting a quorum shall electfrom among themselves a temporarypresiding officer

Who shall certify within 10 days from thepassage of the ordinances enacted andresolutions adopted by the sanggunianin the session over which he temporarilypresided

Internal Rules of Procedure (Sec.50): Adopted/update on the 1

stregular

session following election of itsmembers- within 90 days

Provides for: Organization of the Sanggunian and

the election of its officers Standing Committees

o Creation (Including thecommittees on appropriations,women and family, humanrights, youth and sportsdevelopment, environmentalprotection, and cooperatives;the general jurisdiction of eachcommittee

o Election of the chairman andmembers of each committee Order and calendar of

business for each session Legislative process

Parliamentary procedures (includingthe conduct of members duringsessions)

Discipline of members for disorderlybehavior and absences (withoutjustifiable cause for 4 consecutivesessions)

Penalty: censure, reprimand, orexclusion from the session,suspension for not more than 60days or expulsiono Suspension or expulsion:

requires concurrence of at least2/3 vote of all Sanggunianmembers

o A member convicted by finaljudgment to imprisonment of atleast 1 year for any crimeinvolving moral turpitude shallbe automatically expelled fromthe Sanggunian Other rules as the

Sanggunian may adopt

Quorum (Sec.53) Quorum. Majority of all members of the

Sanggunian who have been elected andqualified

Questions of quorum is raised: thepresiding officer shall immediatelyproceed to call the roll of the membersand announce the results

No quorum: the presiding officer maydeclare a recess until such time as aquorum is constituted OR a majority of the members

present may adjourn from day today and may compel the immediateattendance of any member absentwithout justifiable cause by arrestingthe absent member and present himat the session

No business shall be transacted

Sessions (Sec.52) Regular sessions: fixed by resolution on

1st

day of the session immediatelyfollowing the election of its members Minimum numbers of regular

sessions: once a week(panlalawigan, panlungsod, bayan)and twice a month for theSangguniang Barangay

Special session: may be called by thelocal chief executive or by a majority ofthe members of the Sanggunian-cause:when public interest demands Written notice: served personally at

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residence at least 24 hours beforethe session

Unless otherwise concurred in by2/3 vote of the Sangguniangmembers present, there being aquorum, no other matters may beconsidered except those stated inthe notice Open to the public

UNLESS a closed-door session isordered by an affirmative vote of amajority of the members present(there being a quorum)

In the public interest or for reasonsof secrecy, decency or morality

No 2 sessions may be held in a singleday

Journal and record of its proceedingswhich may be published upon resolutionof the Sanggunian concerned

How many votes required General Rule: Majority of the members

constituting a quorum When the enactment itself specifies the

number of votes required, suchrequirement will govern over the generalrule specified in the charter or the LGC,when such enactment is to be amended.Why? Because the municipal authoritiesare in a better position to determine thevotes required. [Casino vs CA (1991)]

Approval, Veto and Review of Ordinances Every ordinance shall be presented to

the governor or mayor, as the case maybe Approves: affix his signature on

each and every page Disapproves: veto it and return the

same with his objections to theSangguniano Override: 2/3 vote of all its

members making the ordinanceeffective even without theapproval of the local chiefexecutive concerned

o Veto communicated to theSanggunian within 15 days inthe case of a province, and 10days in the case of a city or amunicipality; otherwise, theordinance shall be deemedapproved

Veto (Sec.55): local chief executive mayveto any ordinance on the ground that itis ultravires or prejudicial to the publicwelfare, stating his reasons for writing

Veto an ordinance or resolution onlyonce

Local chief executive (except thepunong barangay) power to vetoany particular item or itemso An appropriations ordinanceo Ordinance or resolution

adopting a local developmentplan and public investmentprogram

o Ordinance directing thepayment of money or creatingliability

o (where the veto shall not affectthe item or items which are notsubjected to)

Review of (component) City orMunicipal Ordinanceso Within 3 days after approval, the

secretary shall forward to theSangguniang Panlalawigan forreview, copies of approvedordinances and the resolutionsapproving the local developmentplans and public investmentprograms formulated by thelocal development councils

o Within 30 days after the receiptof copies, the SangguniangPanlalawigan shall examine thedocuments or transmit them tothe provincial attorney, or ifthere be none, to the provincialprosecutor for examination.Provincial attorney or prosecutorshall: within 10 days fromreceipt, inform the Sanggunianin writing of his comments orrecommendations

Finding: beyond the powerconferred, it shall declare suchordinance or resolution invalid inwhole or in part--action entered inthe minutes and shall advise thecorresponding city or municipalauthorities of the action—(sec 58).Any attempt to enforce anyordinance or any resolutionapproving the local developmentplan and public investment program,after the disapproval, shall besufficient ground for the suspensionor dismissal of the official oremployeeo No action within 30 days after

submission: presumedconsistent with the law and valid

Ordinance enacted by the Sangguniangbarangay shall upon approval by the


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majority of all its members, be signed bythe punong barangay

Review by Sangguniang Panglungsodor Bayano Within 10 days after its enactment,

the sangguniang barangay shallfurnish copies to

o The sangguniang panglungsod orsangguniang bayan concerned forreview as to whether the ordinanceis consistent with law and city ormunicipal ordinances

o No action for 30 days from receipt:ordinance shall be deemedapproved

o Finding: inconsistent with law or cityor municipal ordinances—thesanggunian shall, within 30 daysfrom receipt, return the same with itscomments and recommendations tothe sangguniang barangay foradjustment, amendment, ormodification

Effectivity: suspended until such time asthe revision called for is effected

Summary of Review of Ordinances

Component City or MunicipalityOrdinances and Resolutions

Barangay Ordinances

Reviewed by Sangguniang panlalawigan Sangguniang panglungsod orsangguniang bayan

Furnish copies ofordinances or resolutionwithin

3 days after approval of ordinance orresolution approving the localdevelopment plans and publicinvestment programs formulated by thelocal development councils

10 days after enactment of ALLordinances

Period to examinedocuments

30 days after receipt of copies, afterwhich the ordinance or resolution ispresumed valid if no action is taken.

30 days after receipt of copies,after which ordinance ispresumed valid if no action istakenWithin 30 days, it may also be

transmitted to the provincial attorney orprosecutor for examination; said atty. orprosecutor shall give his writtenrecommendations within 10 days fromreceipt of document

Ground to invalidateordinance or resolution

Ordinance or resolution is beyond thepower conferred upon the Sanggunianconcerned

Ordinance is inconsistent withlaw and city or municipalordinancesIn such case, the sangguniangbarangay may adjust, amend ormodify the ordinance within 30days from receipt from thesangguniang panglungsod orsangguninang bayan


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Effectivity of Ordinances or Resolutions Sec59

General rule: the same shall take effectafter 10 days from the date a copy is posted Exception: unless otherwise stated in

the ordinance or the resolutionapproving the local development andpublic investment program

Ordinances with penal sanctions: gistshall be published in a newspaper ofgeneral circulation within the provincewhere the local legislative bodyconcerned belongs

Absence of any newspaper: postingshall be made in all municipalities andcities of the province where thesanggunian of origin is situated.

Highly urbanized and independentcomponent cities: the main features ofthe ordinance or resolution in addition tobeing posted, shall be published in alocal newspaper of general circulationwithin the city

Absence of local newspaper: anynewspaper of general circulation

Full disclosure of Financial and BusinessInterests of Sanggunian Members

* Conflict of interestSec 50 Upon assumption of office, make a full

disclosure of: His business and financial interests Professional relationship or any

relation by affinity or consanguinitywithin the fourth civil degree

Which he may have with any person,firm, or entity affected by any ordinanceor resolution which relationship mayresult in conflict of interest including: Ownership of stock or capital, or

investment, in the entity or firm towhich the ordinance or resolutionmay apply

Contracts or agreements with anyperson or entity which the ordinanceor resolution under considerationmay affect conflict of interest.

TEST: One where it may be reasonablydeduced that a member of a sanggunian maynot act in the public interest due to some private,pecuniary, or other personal considerations thatmay tend to affect his judgment to the prejudiceof the service or the public

CasesThe LGC does not mandate that no otherbusiness may be transacted on the first regularsession except to take up the matter of adoptingor updating rules. All that the law requires is that“on the 1” regular session…the sanggunianconcerned shall adopt or update its existingrules or procedures”. Until the completion of theadopted or updated rules, the rules of theprevious year may be used. [Malonzo v Zamora(1999)]

Disclosure shall be made in writing andsubmitted to the secretary of the sanggunian

Form part of the record of the proceedingsand shall be made in the following manner: Made before the member participates in

the deliberations on the ordinance orresolution under considerationo If the member did not participate

during the deliberations, thedisclosure shall be made beforevoting on the ordinance or resolutionon second and third readings

o Made when a member takes aposition or makes a privilege speechon a matter that may affect thebusiness interest, financialconnections, or professionalrelationship

Updated rules, the rules of the previous yearmay be used.

The signature of the mayor is not amere ministerial act, but involves theexercise of discretion on the part of thelocal chief executive. [Delos Reyes vSandiganbayan (1997)]

Incidents of Law-Making (Legislative) Power:

Posting and Publication of: Tax ordinances and Revenue measures

Sec188 Within 10 days after approval Certified true copies of all provincial,

city, or municipal tax ordinances orrevenue measures

Published in full for 3 consecutivedays

In a newspaper of local circulation Where no such newspaper:

posted in at least 2 conspicuousand publicly accessible places

Ordinance with penal sanctions Sec 511 At prominent places in the provincial

capitol, city, municipal or barangayhall


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Minimum period: 3 consecutiveweeks

Publication In a newspaper of a general

circulation Within territorial jurisdiction Except: barangay ordinances Effectivity: unless otherwise

provided on the day following itspublication or at the end of period ofposting, whichever is later

Violation by public officer oremployeeo May be meted administrative

disciplinary actiono Without prejudice to filing of

appropriate civil or criminalaction

Duty of Secretary of Sanggunian:o Shall transmit official copies to

the chief executive of OfficialGazette

o Within 7 days following approvalof ordinance

o Purpose for publicationo If with penal sanction: for

archival and reference purposes

Judicial InterventionRules of Court, Rule 63, Sec.4

Actions involving the validity of a localgovernment ordinance: Prosecutor or attorney of the LGU

involved shall be notified and entitled tobe heard;

Alleged to be unconstitutional: SolicitorGeneral shall also be notified andentitled to be heard.

The failure of the SolGen to appear in the lowercourt to defend the constitutionality of anordinance is not fatal to the case. Thedetermination of the question of WON theSolGen should be required to appear “in anyaction involving the validity of any treaty,law, executive order, rule or regulation” is amatter left to the discretion of the Court.Inasmuch as the said requirement is notmandatory, but discretionary, noncompliancetherewith affected neither the jurisdiction of thetrial court nor the validity of the proceedings.[Homeowner’s Association of the Phil. Inc. vMunicipal Board of Manila (1968)]

POLITICAL LAW REVIEWER Chapter IV. LOCAL INITIATIVE and REFERENDUM

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Chapter IV. Local Initiative andReferendum

A. DEFINITIONB. REQUIREMENTSC. PROCEDURED. EFFECTIVITY OF LOCAL PROPOSITIONSE. LIMITATIONS ON INITIATIVESF. LIMITATIONS UPON LOCAL LEGISLATIVE

BODIES

A. Definition

NOTE:Garcia v COMELEC (1994): Both a resolutionand an ordinance may be the proper subjectsof an initiative or a referendum

(Based on LGC Sec. 120-127 and RA 6735:AN ACT PROVIDING FOR A SYSTEM OFINITIATIVE AND REFERENDUM)

Initiative: legal process whereby theregistered voters of a LGU may directlypropose, enact, or amend any ordinance

Referendum: legal process whereby theregistered voters of the LGUs may approve,amend or reject any ordinance enacted bythe sanggunian.

Who may exercise — all registered votersof the provinces, cities, municipalities andbarangays

B. Requirements

a. Referendum or initiative affecting aresolution or ordinance passed by thelegislative assembly of a province or city:o petition must be signed by at least 10%

of the registered voters in the provinceor city,

o of which every legislative district mustbe represented by at least 3% of theregistered voters therein;

o Provided, however, that if the provinceor city is composed only of 1 legislativedistrict, then at least each municipality ina province or each barangay in a cityshould be represented by at least 3% ofthe registered voters therein.

b. Referendum or initiative on an ordinancepassed in a municipality: petition must besigned by at least 10% of the registeredvoters in the municipality, of which everybarangay is represented by at least 3% ofthe registered voters therein

c. Referendum or initiative on a barangayresolution or ordinance: must be signedby at least 10% of the registered voters insaid barangay

C. Procedure

a. Not less than 1,000 registered voters in caseof provinces and cities, 100 in case ofmunicipalities, and 50 in case of barangays,may file a petition with the local legislativebody, respectively, proposing the adoption,enactment, repeal, or amendment, of anylaw, ordinance or resolution

b. If no favorable action thereon is made bylocal legislative body within 30 days from itspresentation, the proponents through theirduly authorized and registeredrepresentative may invoke their power ofinitiative, giving notice thereof to the locallegislative body concerned

c. 2 or more propositions may be submitted inan initiative

d. Proponents shall have 90 days in case ofprovinces and cities, 60 days in case ofmunicipalities, and 30 days in case ofbarangays, from notice mentioned insubsection (b) hereof to collect the requirednumber of signatures

e. The petition shall be signed before theElection Registrar, or his designatedrepresentative, in the presence of arepresentative of the proponent, and arepresentative of the regional assembliesand local legislative bodies concerned in apublic place in the LGU

f. If the required number of signatures areobtained, the COMELEC shall then set adate for the initiative for approval of theproposition within 60 days from the date ofcertification by the COMELEC in case ofprovinces and cities, 45 days in case ofmunicipalities, and 30 days in case ofbarangays

D. Effectivity of Local Propositions

If the proposition is approved by a majority of thevotes cast, it shall take effect 15 days aftercertification by the COMELEC

E. Limitations on Initiatives

a. The power of local initiative shall not beexercised more than once a year.

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b. Initiative shall extend only to subjects ormatters which are within the legal powers ofthe local legislative bodies to enact.

c. If at any time before the initiative is held, thelocal legislative body shall adopt in toto theproposition presented, the initiative shall becancelled. However, those against suchaction may, if they so desire, apply forinitiative in the manner herein provided.

F. Limitations Upon Local LegislativeBodies

Any proposition or ordinance or resolutionapproved through the system of initiative andreferendum as herein provided shall:a. not be repealed, modified or amended, by

the local legislative body concerned within 6months from the date therefrom, and

b. may be amended, modified or repealed bythe local legislative body within 3 years by avote of 3/4 of all its members:

c. Provided, however, that in case ofbarangays, the period shall be 18 monthsafter the approval.

Local Referendum — Any local legislativebody may submit to the registered voters ofautonomous region, provinces, cities,municipalities and barangays for theapproval or rejection, any ordinance orresolution duly enacted or approved.

Courts are not precluded from declaring nulland void any proposition approved forviolation of the Constitution or want ofcapacity of the local legislative body to enactthe said measure.

Cases A resolution may be the subject of an

initiative or referendum. [Garcia vsCOMELEC (1994)]

Initiative: power of the people to proposebills and laws, and to enact or reject them atthe polls independent of the legislativeassembly.

Referendum is the right reserved to thepeople to adopt or reject any act or measurewhich has been passed by a legislative bodyand which in most cases would withoutaction on the part of electors become law.

These law-making powers belong to thepeople and the COMELEC only exercisesadministration and supervision of theprocess. Hence, COMELEC cannot controlor change the substance or the content ofthe legislation.

COMELEC should have prepared for aninitiative, not a referendum. [SBMA v.COMELEC (1996)]

POLITICAL LAW REVIEWER Chapter V. MUNICIPAL LIABILITY

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Chapter V. Municipal Liability

(asked in 1994)

A. SPECIFIC PROVISIONS MAKING LGUSLIABLE

B. LIABILITY FOR TORTS, VIOLATION OF THELAW AND CONTRACTS

C. PERSONAL LIABILITY OF PUBLIC OFFICIAL

A. Specific Provisions making LGUsLiable

LGC, Sec. 24

LGUs and their officials are not exempt fromliability for death or injury to persons or damageto property.

Civil Code, Art. 34

When a member of a city or municipal policeforce refuses or fails to render aid or protectionto any person in case of danger to life orproperty, such peace officer shall be primarilyliable for damages, and the city or municipalityshall be subsidiarily responsible therefor.

Civil Code, Art. 2180, par. 6

The obligation imposed by Article 2176 isdemandable not only for one’s own acts oromissions, but also for those of persons forwhom one is responsible. X X X The State isresponsible in like manner when it acts througha special agent; but not when the damage hasbeen caused by the official to whom the taskdone properly pertains, in which case what isprovided in Article 2176 shall be applicable.

Civil Code, Art. 2189

Provinces, cities and municipalities shall beliable for damages for the death of, or injuriessuffered by, any person by reason of thedefective condition of roads, streets, bridges,public buildings, and other public works undertheir control or supervision.

B. Liability for Torts, Violation of theLaw and Contracts

WHEN LGU IS LIABLECASE DEFENSE

(1) If the LGU fails toperform a governmentalfunction(e.g., maintenance ofroads under CC Art.2189, rendering aid andprotection under CC Art.34)

Exercise of due diligencein the selection andsupervision is not adefense.

(2) If engaged inproprietary functions,

Defense of due diligencein the selection andsupervision available only

if the function involved isa corporate function.RATIO: because thisdefense is available onlyto private employers.

WHEN LGU IS NOT LIABLEIf damage resulted from an act of LGU in theperformance of governmental functions

Illustrations1. On ContractRULE: The LGU is liable only for contracts thatare intra vires. The Doctrine of Implied Municipal Liability

provides that an LGU may become obligatedupon an implied contract to pay reasonablevalue of the benefits accepted by it as towhich it has the general power to contract[Cebu vs IAC (147 S 447)]

BUT the LGU may not be estopped in orderto validate a contract which the LGU is notauthorized to make EVEN IF it has acceptedthe benefits thereunder [San Diego vs Mun.Of Naujan (107 P 112)]

A private individual who deals with a LGU isimputed with constructive knowledge of theextent of the power or authority of the LGUto enter into contracts. Thus, ordinarily, thedoctrine of estoppel does not lie against theLGU.

2. On Tort If in the performance of a governmental

function, the LGU is NOT liableo The prosecution of crimes, even if injury

occurs [Palafox vs Ilocos Norte (1958)] If in the performance of a proprietary

function, the LGU is liableo The improper grant of a ferry service

franchise [Mendoza vs de Leon (1916)]o NOTE: Municipal corporations’ liability to

private persons for the wrongfulexercise of the corporate powers is thesame as that of a private corporation orindividual [Mendoza vs de Leon (1916)]

o Deaths caused by a collapsed stage in atown fiesta [Torio vs Fontanilla (1978)]

o Back pay or wages of employeesillegally dismissed, including thoseinvolving primary governmentalfunctions (eg policemen) [Guillergan vGanzon (1966)]

3. By Express Provision of Law Article 2189, CC

o When a person falls in an open manholein the city streets [Manila vs Teotico(198)]

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o When a person steps on a rusted nail ina flooded public market [Jimenez vsManila (150 S 510)]

o When accidents are caused by defectiveroads even if the road does not belongto the LGU as long as it exercisescontrol or supervision over said road[Guilatco vs Dagupan (171 S 382)]

o Damages suffered through accidents innational roads under the control andsupervision of an LGU (cause is unsaferoad conditions, especially when there isgross negligence [Municipality of SanJuan v. CA (2005)]

o Also exemplary damages may begranted when public officials acted withgross negligence [Quezon City vDacana (2005)]

Article 2180, CCo When the State acts through a special

agent [Merritt vs Government (34 P311)]

4. On Violation of Law When the Mayor refused to abide by a TRO

issued by the court, he may be held incontempt [Moday v CA (1997)]

When the LGU does not pay the statutoryminimum wage (mandated by law) even ifthere is lack of funds [Racho vs Ilagan,Isabela (198)]

C. Personal Liability of Public Official

RULE: The public official is personally liable if heacts beyond the scope of his powers OR if heacts with bad faith

Illustrations Mayor exceeding authority in vetoing a

resolution passed by the Sanggunian [Pilar vSangguniang Bayan ng Dasol (1984)]o [Note that under CC27, a public servant

is personally liable for damages for hisrefusal or neglect to perform his officialduty]

When the officials incorrectly ordered theconstruction of a drug rehabilitation center[Angeles vs CA (21 S 90)]

When officials illegally dismiss an employee[Rama vs CA (148 S 49)]

When the official defies an order ofreinstatement of an illegally dismissedemployee [Correa vs CFI (92 S 312)]

o The Mayor pays for the back salaries ofan illegally dismissed employee[Nemenzo vs Sabillano (25 S 1)]

o The Governor pays for moral damagesfor refusing the reinstatement of anemployee [San Luis vs CA (1989]

A public officer, whether judicial, quasi-judicial or executive, is not personally liableto one injured in consequence of an actperformed within the scope of his officialauthority, and in line of his official duty.[Tuzon v. CA (1992)]

The holding of a town fiesta is a proprietaryfunction, though not for profit, for which amunicipality is liable for damages to 3rdpersons ex contractu or ex delicto.;o that under the principle of respondeat

superior the principal is liable for thenegligence of its agents acting within thescope of their assigned tasks; and

o that the municipal councilors have apersonality distinct and separate fromthe municipality, [ Torio v. Fontanilla(1978)]

Hence, as a rule they are not co-responsiblein an action for damages for tort or negligenceunless they acted in bad faith or have directlyparticipated in the commission of the wrongfulact.

POLITICAL LAW REVIEWER Chapter VI. INTERGOVERNMENTAL RELATIONS

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Chapter VI. Intergovernmental Relations– National Government and LGUs

I. EXECUTIVE SUPERVISIONII. CONSULTATIONSIII. RELATIONS WITH PNPIV. OTHER RELATIONS

I. Executive Supervision

A. 1987 Constitution, Art. X, Sec. 2 and 4

Sec. 4. The President of the Philippines shall exercisegeneral supervision over local governments.Provinces with respect to component cities andmunicipalities, and cities and municipalities withrespect to component barangays shall ensure that the acts of their component

units are within the scope of their prescribedpowers and functions.

GENERAL RULE: The President has control ofall executive departments, bureaus and offices.

Doctrine of Qualified Political Agency. Allexecutive and administrative departmentsare adjuncts of the Executive. The acts ofthe secretaries of departments, performedand promulgated in the regular course ofbusiness are presumptively acts of the ChiefExecutive.

EXCEPTION: Local Government Units The President has no power of control over

local governments, unlike in executiveoffices, departments and bureaus. [Torre vsBayot (1974)]

Illustrations The constitutional provision limiting the

authority of the President over LGUs togeneral Supervision is unqualified. Hence, itapplies to all powers of LGUs, corporate andpolitical alike [Hebron vs Reyes (1958)]

The Sec. of Justice cannot entertain anyprotest involving the election of theFederation of Barangays. Otherwise, he willhave control over LG officials. Worse,ordering a new election is contrary tosupervision [Taule vs Santos (1997)]

The Pres.’ power of general supervisionextends to the Liga ng mga Barangay.Hence, the DILG Sec, as an alter ego of thePres., may not amend the guidelinespromulgated by the National Liga Board[Bito-Onon vs Fernandez (2001)]

The DILG Sec may not be appointed asinterim caretaker to manage and administerthe affairs of the Liga. Such is tantamount tocontrol [National Liga ng mga Barangay vsParedes (2004)]

B. Administrative Code of 1987, Title XIIChapter I

(as amended by RA 6975)

The Department of the Interior and LocalGovernment DILG has primary role of preserving internal

security (including suppression ofinsurgency)

AFP has primary role in preserving externalsecurity

Supportive role of PNP Upon call of President upon

recommendation of peace and ordercouncil

In areas where there are serious threatsto national security and public order insurgents have gained

considerable foothold in thecommunity thereby necessitatingthe employment of bigger tacticalforces and the utilization of highercaliber armaments and betterarmored vehicles

National Supervision over LGU Supervision is exercised:

1. To ensure that acts of localgovernments and their componentunits are within the scope of theirprescribed powers and functions.(Sec. 4, Art. X, Constitution; Sec.25(a) LGC)

2. To ensure that laws are faithfullyexecuted in autonomous regions.(Sec. 16, Art. X, Constitution)

General Supervision President of the Philippines shall

exercise general supervision over: Local governments (Sec.4, Art.

X, Constitution; Sec. 25(a)LGC)

Autonomous regions (Sec.16,Art. X, Constitution)

o Direct supervision over Provinces Highly urbanized cities Independent component cities

o Through the province, with respectto


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Component cities Municipalities

o Through the city and municipality,with respect to barangays

National Agencies National Agencies (Sec. 25 (b),(c),(d)

LGC) With project implementation

functions: ensure participation ofLGUs in planning andimplementation of national projects;

With field units or branches in anLGU: furnish the local chiefexecutive of the LGU concernedwith monthly reports including dulycertified budgetary allocations andexpenditures;

Upon request of LGU, the Presidentmay direct the appropriate nationalagency to provide financial,technical or other forms ofassistance at no extra cost to theLGU concerned.

The petitioners are under the impression that the1987 Constitution has left the President meresupervisory powers, which supposedly excludesdisciplinary authority and the power ofinvestigation.

It is a mistaken impression becausesupervision is not incompatible withdisciplinary authority, and “investigating” is notinconsistent with “overseeing” in supervision,although it is a lesser power than “altering” incontrol. The Constitution did not, for the sake oflocal autonomy, intend to deprive the legislatureor the President of all authority over municipalcorporations, in particular, concerningdiscipline. [Ganzon v. CA (supra)]

Sec. 187 of the LGC authorizes the Secretary ofJustice to review only the Constitutionality orlegality of the tax ordinance and, if warranted, torevoke it on either or both of these grounds. Heis not permitted to substitute his ownjudgment for the judgment of the localgovernment that enacted the measure. Anofficer in control may order the act undone, orredone, or may even decide to do it himself.Thus, the act of the DOJ Secretary in declaringthe Manila Revenue Code null and void for non-compliance with the requirements of the law wasnot an act of control but of mere supervision.[Drilon v. Lim (1994)]

II. Consultations

LGC Sec. 2(c), 26, 27

A. Declaration of Policy

Policy of the State: require all nationalagencies and offices to conduct periodicconsultations (before implementation of anyproject or program) with appropriate local government units nongovernmental and people's

organizations other concerned sectors of the

community

B. Maintenance of Ecological Balance

Sec. 26, LGC

Duty of national agency or government-owned or controlled corporation Involved in planning and implementation

of any project That may cause pollution, climatic

change, depletion of non-renewableresources, loss of crop land, rangeland,or forest cover, and extinction of animalor plant species

Consultation with LGUs, nongovernmentalorganizations, and other sectors concerned

C. Prior Consultation

Sec. 27, LGC

No project or program shall be implemented:

1. Without prior consultation with LGUs, non-governmental and

people's organizations, and otherconcerned sectors of the community,conducted by all national agencies andoffices (Sec. 2(c) LGC)

with LGUs, nongovernmentalorganizations, and other sectorsconcerned (Sec. 26 LGC)o conducted by the national agency or

government-owned or -controlledcorporation

o authorized or involved in theplanning and implementation of anyproject or program that may cause- pollution- climatic change- depletion of non-renewable

resources- loss of crop land, rangeland, or

forest cover- extinction of animal or plant


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specieso Explain the goals and objectiveso Explain its impact upon the people

and the community in terms ofenvironmental or ecological balance

o Measures that will be undertaken toprevent or minimize the adverseeffects

2. Without prior approval of sanggunianconcerned

3. Without provision for appropriate relocationsites for occupants who will be evicted

MEMORANDUM CIRCULAR NO. 521993 All officers and employees of National

Government agencies and offices, includingGOCCs, to strictly comply with the provisions ofthe LGC (and its IRR) on consultation

The provisions on consultation apply only tonational programs and/or projects which areto be implemented in a particular localcommunity. Moreover, Sec. 27 of the LGCshould be read in conjunction with Sec. 26 thus,the projects and programs mentioned in Sec. 27should be interpreted to mean projects andprograms that may:o cause pollutiono bring about climactic changeo cause the depletion of non-renewable

resourceso result in the loss of crop land, range-land or

forest covero eradicate certain animal or plant species

from the face of the planet; ando call for the eviction of a particular group of

people residing in the locality where the saidproject/program will be implemented [Lina v.Paňo (2001)]

NOTES: It shall be the duty of every national agency

or GOCC authorized or involved in theplanning and implementation of any projector program that may cause pollution,climactic change, depletion of non-renewable resources, loss of crop land,rangeland or forest cover, extinction ofanimal of plant species:1. To consult with the LGUs, NGOs and

other sectors concerned; and2. To explain: (a) the goals and objectives of

the project or program (b) its impact uponthe people and the community in terms ofenvironmental or ecological balance; (c)the measures that will be undertaken toprevent or minimize the adverse effectsthereof LGC, Sec. 26

No project or program shall be implementedby government authorities unless:

1. the consultations mentioned above arecomplied with; and

2. sanggunian concerned gave priorapproval LGC, Sec. 27

Occupants in areas where such projects areto be implemented shall not be evictedunless appropriate relocation sites havebeen provided, in accordance with theConst.

III. Relations with Philippine NationalPolice

LGC, Sec. 28

Powers of Local Chief Executives over theUnits of the PNP Extent of operational supervision and

control of local chief executives shall begoverned by RA6975 (DILG Act-‘ of1991) and other rules and regulations over the following:o police forceo fire protection unito jail management personnel

assigned in their respectivejurisdictions

Participation of Local GovernmentExecutives in the Administration of the PNPRA 8551, Sec. 62-65

Operational supervision and control: powerto direct, superintend, and oversee the day-to-day functions of police investigation ofcrime, crime prevention activities, and trafficcontrol includes the power to direct the

employment and deployment of units orelements of the PNP, through thestation commander, to ensure publicsafety and effective maintenance ofpeace and order within the locality

City and municipal mayors shall have thefollowing authority over the PNP units intheir respective jurisdictions:1) Authority to choose the chief of police

from a list of 5 eligibles recommendedby the provincial police director,preferably from the same province, cityor municipality

2) Authority to recommend to the provincialdirector the transfer, reassignment ordetail of PNP members outside of theirrespective city or town residences

3) Authority to recommend from a list ofeligibles previously screened by the


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peace and order council theappointment of new members of thePNP to be assigned to their respectivecities or municipalities without which nosuch appointments shall be attested

Control and supervision of anti-gamblingoperations shall be within the jurisdiction oflocal government executives

Governors and mayors, upon having beenelected and qualified as such, areautomatically deputized as representativesof the National Police Commission in theirrespective jurisdiction As deputized agents of the Commission,

local government executives can inspectpolice forces and units, conduct audit,and exercise other functions as may beduly authorized by the Commission

Grounds for suspension or withdrawal ofdeputation:1. frequent unauthorized absences2. abuse of authority3. providing material support to criminal

elements4. engaging in acts inimical to national

security or which negate theeffectiveness of the peace and ordercampaign

Cases Local executives are only acting as

representatives of NAPOLCOM. Unlesscountermanded by NAPOLCOM, their actsare valid. [Carpio vs Exec Sec (1992)]

The authority of the mayor to choose thechief of police is very limited. In reality, hehas no power of appointment; he has onlythe limited power of selecting one fromamong the list of recommendees. In effect,the power to appoint the chief of police isvested in the Regional Director. [Andaya v.RTC (1999)]

IV. Other Relations

A. Inter-local Relations

Sec 23-33 The province, through the governor, shall

ensure that every component city andmunicipality within its territorial jurisdictionacts within the scope of its prescribedpowers and functions. Highly urbanized

cities and independent cities shall beindependent of the province.

The city or municipality, through the city ormunicipal mayor, shall exercise generalsupervision over component barangays

Review of Executive Orders:o Governor—for E.O.s of component

cities and municipal mayorso City or Municipal Mayor—for E.O.s

of punong barangays.o Task of reviewing executive: ensure

that the E.O.s are within the powersgranted by law and in conformitywith provincial, city or municipalordinances

The LGU may secure the opinion of the ff (inproper order):

1. municipal legal officer,2. provincial legal officer,3. provincial prosecutor

LGUs may consolidate their efforts, servicesand resources for their common benefit

1. Requisite: proper ordinance,through a public hearing for the saidpurpose

B. Relations with Non-Governmentalorganizations

Sec 34-36 LGUs shall promote the establishment of

people’s and nongovernmentalorganizations

They may form joint ventures to engage inthe delivery of certain basic services,capacity building and livelihood projects, etc.

The LGU may provide assistance (financialor otherwise) for economic, socially-oriented, environmental or cultural projectso Requisites: Action by local chief

executive and concurrence of thesanggunian; The project is to beimplemented within the territorialjurisdiction of the LGU

POLITICAL LAW REVIEWER Chapter VII. LOCAL OFFICIALS

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Chapter VII. Local Officials

I. ELECTIVE LOCAL OFFICIALSA. QUALIFICATIONSB. DISQUALIFICATIONSC. MANNER OF ELECTIOND. TERM OF OFFICEE. RULES ON SUCCESSIONF. RECALLG. DISCIPLINE

1. ADMINISTRATIVE ACTION2. PENALTIES

i) SUSPENSIONii) REMOVAL

3. POWER OF TRIBUNALS4. ADMINISTRATIVE APPEALS5. EFFECT OF RE-ELECTION

II. APPOINTIVE LOCAL OFFICIALSA. APPOINTMENTSB. DISCIPLINEC. REMOVALD. OFFICIALS COMMON TO ALL

MUNICIPALITIES, CITIES ANDPROVINCES

III. PROVISIONS APPLICABLE TO ELECTIVEAND APPOINTIVE OFFICIALSA. PROHIBITED INTERESTSB. PRACTICE OF PROFESSIONC. PROHIBITION AGAINST APPOINTMENT

IV. LOCAL BOARDS AND COUNCILSA. LOCAL SCHOOL BOARDB. LOCAL HEALTH BOARDC. LOCAL DEVELOPMENT COUNCILD. LOCAL PEACE AND ORDER COUNCIL

I. Elective Local Officials

A. Qualifications

LGC Sec. 39(Asked in 1992, 2003, 2005)(ACRRA)

1. Citizen of the Philippines2. Registered voter in the place where s/he

seeks to be elected3. Residency, in place where s/he seeks to be

elected, for at least 1 year immediatelypreceding the day of the election

4. Able to read and write Filipino or any otherlocal language or dialect

5. Age requirement:

Candidate for Minimum Age atElection Day

- Governor- Vice-governor- Member of the

SangguniangPanlalawigan

- Mayor- Vice-mayor- Member of the

Sangguniang Panlungsod

23

of Highly Urbanized Cities- Mayor or- Vice-mayor of

independent componentcities, component cities,or municipalities

21

- Member of theSangguniang Panlungsodor Sangguniang Bayan

18

- Punong barangay ormember of theSangguniang Barangay

18

- Sangguniang Kabataan at least 15 years ofage but not more than18 years of age onelection day(as amended underRA 9164)

The COMELEC may not deny due course orcancel a certificate without properproceedings. To receive and acknowledgereceipt of the certificates of candidacy is aministerial duty of the COMELEC. TheCOMELEC does not have discretion to giveor not to give due course to the certificate. Itmay not look into matters not appearing ontheir face. [Cipriano v. COMELEC (2004)]

Citizenship(Asked in 1992)

The LGC does not specify any particulardate or time when the candidate mustpossess citizenship, unlike therequirements for residence and age. Anofficial begins to discharge his functions onlyupon his proclamation and on the day thelaw mandates his term of office to begin.Since Frivaldo reassumed his citizenship onthe very day the term of office began, hewas therefore already qualified to beproclaimed, to hold office and to dischargethe functions and responsibilities thereof.

Nevertheless, qualifications for public officeare continuing requirements which must bepossessed at the time of appointment andduring the entire tenure. [Frivaldo v.COMELEC (1996)]

A mere application for repatriation does notamount to automatic reacquisition of Phil.Citizenship. Official action by the properauthorities is required. [Labo vs Comelec(1992)]

Residency

The residence requirement is rooted in thedesire that officials of districts or localities beacquainted with the needs, difficulties, andother matters vital to the common welfare of


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the constituents. The actual, physical andpersonal presence is substantial enoughto show his intention to fulfill the dutiesof mayor and for the voters to evaluatehis qualifications for the mayorship. A verylegalistic, academic and technical approachto the residence requirement does notsatisfy the rationale for the said requirement.[Torayno v. COMELEC (2000)]

The term “residence” is to be understood asreferring to “domicile” or legal residence, i.e.,“the place where a party actually orconstructively has his permanent home,where he, no matter where he may be foundat any given time, eventually intends toreturn and remain (animus manendi).” Unlike citizenship, which may be

complied with even on the day thecandidate assumes office, residencyrequires that the candidate must havebeen a resident of the municipality “forat least 1 year immediately precedingthe day of the election.” [Coquilla v.COMELEC (2002)]

Age The SK official must not have turned 21

before his election. The petitioner, being 21years and 11 mos. old when she assumedoffice, was over the age limit. [Garvida vsSales (1997)]

B. Disqualifications

(Asked in 1986, 1993, 1994, 1999, 2001)

LGC, Sec. 40

The following persons are disqualified fromrunning for any elective local position:FR-ACIDS1. Sentenced by final judgment for

an offense involving moral turpitudeor for an offense punishable by 1year or more of imprisonment, within2 years after serving sentence

2. Removed from office as a result of anAdministrative case

3. Convicted by final judgment for violatingthe oath of allegiance to the Republic

4. With Dual citizenship5. Fugitives from justice in criminal or non-

political cases here or abroad6. Permanent Residents in a foreign

country or those who have acquired theright to reside abroad and continue toavail of the same right after theeffectivity of this LGC

7. Insane or feeble-mindedSecond-Placer Rule(asked in 2003)

The ineligibility of a candidate receiving themajority of votes does not entitle theeligible candidate receiving the nexthighest number of votes to be declaredwinner.

The rule would be different if the electorate,fully aware of a candidate’s disqualificationso as to bring such awareness within therealm of notoriety, would nonetheless castthe votes in favor of the ineligible candidate.

In such case, the electorate may be said tohave waived the validity and efficacy of theirvotes by notoriously applying theirfranchises or throwing away their votes inwhich case, the eligible candidate obtainingthe next highest number of votes may bedeemed elected. [Labo v. COMELEC(1992)]

RA 8295: An Act Providing for the Proclamationof a Lone Candidate for any Elective Office in aSpecial Election, and for other purposes

Sec. 4. Disqualification In addition to the disqualifications in Sec. 12

and 68 of the Omnibus Election Code andLGC Sec. 40 whenever the evidence of guilt is

strong, the following persons aredisqualified to run in a special election Any elective official who has

resigned from his office byaccepting an appointive office or forwhatever reason which hepreviously occupied but has causedto become vacant due to hisresignation

Any person who, directly orindirectly, coerces, bribes,threatens, harasses, intimidates oractually causes, inflicts or producesany violence, injury, punishment,torture, damage, loss ordisadvantage to any person orpersons aspiring to become acandidate or that of the immediatemember of his family, his honor orproperty that is meant to eliminateall other potential candidate [alsoconstitutes an election offenseunder Sec.5 RA8295 andpunishable under Sec. 264 of theOmnibus Election Code]


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RA 9225: Citizenship Retention and Re-acquisition Act of 2003

Sec 5. Civil and Political Rights and Liabilities:

(1) Those seeking elective public office in thePhilippines shall meet the qualification forholding such public office as required by theConstitution and existing laws and, at thetime of the filing of the certificate ofcandidacy, make a personal and swornrenunciation of any and all foreigncitizenship before any public officerauthorized to administer and oath.

(2) Those appointed to any public office shallsubscribe and swear to an oath of allegianceto the Republic of the Philippines and itsduly constituted authorities prior toassumption of office. Provided, that theyrenounce their oath of allegiance to thecountry where they took that oath;

(3) That right to vote or be elected or appointedto any public office in the Philippines cannotbe exercised by, or extended to, those whoare: candidates for or are occupying any

public office in the country of which theyare naturalized citizens; and/or

in active service as commissionedofficers in the armed forces of thecountry which they are naturalizedcitizens.

Grounds for DisqualificationSec. 40, LGC

Moral Turpitude: Fencing (Dela Torre v. COMELEC

[1996]) Direct bribery (Magno v. COMELEC

[2002])

Dual Citizenship: Not an automatic disqualification; filing

of certificate of candidacy is sufficient torenounce foreign citizenship (declarationunder oath of maintenance of true faithand allegiance to the Constitution of thePhilippines) [Valles v. COMELEC(2000)]

Dual citizenship is not equivalent todual allegiance (a personsimultaneously owes, by some positiveact, loyalty to 2 or more states). What isprohibited is the latter. [Mercado v.Manzano (1999)]

Dual citizenship is the result of theconcurrent application of different lawsof two or more states, wherein a person

is simultaneously considered a nationalby the said states.

Fugitive from justice: Intent to evade must be the compelling

factor which animates one’s flight froma particular jurisdiction. There is intent ifthere is knowledge by the fleeing subjectof an already instituted indictment or of apromulgated judgment of conviction.[Rodriguez v. COMELEC (1996)]

“Green Card” holder:(asked in 1993, 1994) As provided in Caasi v. Court of Appeals,

a Filipino citizen’s acquisition of apermanent resident status abroadconstitutes an abandonment of hisdomicile and residence in thePhilippines. Ugdoracion’s acquisition of alawful permanent resident status in theUnited States amounted to anabandonment and renunciation of hisstatus as a resident of the Philippines; itconstituted a change from his domicile oforigin, which was Albuquerque, Bohol, to anew domicile of choice, which is the USA.[Ugdoracion v. COMELEC (2008)]

Other grounds: Vote-buying (upon determination in a

summary administrative proceeding)[Nolasco v. COMELEC (1997)]

Removal by administrative proceedings:(perpetual disqualification) [Lingating v.COMELEC (2002)]) Removal of a candidate prior to LGC

cannot be used as a ground fordisqualification [Grego v. COMELEC(1997)]

Should be a final determination[Lingating v. COMELEC (2002)]

Subsequent re-election cannot bedeemed a condonation if there wasalready a final determination of his guiltbefore the re-election [Reyes v.COMELEC (1996)]

When re-election considered acondonation: if the proceedings areabated due to elections. In this case,there is no final determination ofmisconduct [Malinao v. Reyes (1996)]

Effect of probation: Probation has no effect to applicability

of Sec. 40(a) as it only suspends theexecution of the sentence [dela Torrev COMELEC (1996)]


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C. Manner of Election

Sec. 41, LGCGovernorVice-governor, MayorVice-mayor(city/municipal)Punong Barangay

Elected at large byqualified voters inrespective units

SK Chairman Elected by registeredvoters of theKatipunan ngKabataan

Regular Members ofSangguniangPanlalawigan,SangguniangPanlungsod andSangguniang Bayan

Elected by district:

1st

and 2nd

-classprovinces= 10regular members

3rd

and 4th-class = 8

5th and 6th-class =6

Provided:If province has morethan 5 districts, eachdistrict shall have 2sangguniangpanlalawiganmembers.

Sangguniang BarangayMembers

Elected at large

Presidents of Leagues of SanggunianMembers of component cities &municipalities shall serve as ex officiomembers of the sangguniang panlalawiganconcerned.

Presidents of Liga ng mga Barangay andPederasyon ng SK elected by theirrespective chapters shall serve as ex officiomembers of the sangguniang panlalawigan,panlungsod and bayan

There shall be one (1) sectoralrepresentative from the following sectors:o Women;o Workers; ando 1 from any of the following:

urban poor; indigenous cultural communities; disabled persons; or any other sector determined by the

sanggunian within 90 days prior toholding of next local election

COMELEC shall promulgate rules forelection of such sectoral representatives.

D. Term of Office

(Asked in 1995, 2001, 2005, 2006, 2008)

All elective local officials, exceptbarangay officials (Sec. 8, Art. X,Constitution; Sec. 43 LGC) Term of office: 3 years from noon of

June 30, 1992 or the date provided bylaw

All local officials first elected during the localelections immediately following theratification of the 1987 Constitution shallserve until noon of June 30, 1992; No official shall serve for more than 3

consecutive terms for the same position; Voluntary renunciation of the office for

any length of time is not an interruptionin the continuity of his service for the fullterm for which he was elected

Barangay officials and members of theSangguniang Kabataan (Sec. 43 LGC) Term of office: 3 years After the regular election of barangay

officials on the second Monday of May1994

Existing sub-provinces converted intoregular provinces (Sec. 462 LGC) New legislative districts continue to be

represented in Congress by the duly-elected representatives of the originaldistricts out of which the new provincesor districts were created until their ownrepresentatives are elected in the nextregular congressional elections andqualified

Vacancy in the offices occupied byincumbent elected officials or resultingfrom expiration of their terms of office incase of a negative vote in the plebisciteresults: by appointment of the President; appointees shall hold office until

their successors are elected in theregular local elections following theplebiscite

After conversion of the newly-createdprovince, President shall appoint: Governor Vice-governor Members of the sangguniang

panlalawigan…who shall hold office until theirsuccessors are elected in the nextregular local elections and qualified.


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Qualified appointive officials andemployees in the career service of thesubprovinces at the time of theirconversion into regular provinces shallcontinue in office in accordance withcivil service law, rules and regulations.

RA 9164: Synchronized Barangay andSangguniang Kabataan Elections (2002)

Sec. 2 Term of Office Term of office of barangay and sangguniang

kabataan officials: 3 years No barangay elective official shall serve for

more than 3 consecutive terms in the sameposition Reckoned from the 1994 barangay

elections Voluntary renunciation of office for any

length of time shall not be considered asan interruption

RA 9006 Fair Election Act (2001)

Sec. 14 An elective official running for any office

other than the one which he is holding in apermanent capacity, is no longer consideredipso facto resigned from his office upon thefiling of his certificate of candidacy.

Note: Sec. 14 of RA 9006 expresslyrepealed Sec. 67 of BP 881 or the OmnibusElection Code which states that “anyelective official, whether national or local,running for any office other than the onewhich he is holding in a permanent capacity,except for President and Vice-President,shall be considered ipso facto resigned fromhis office upon the filing of his certificate ofcandidacy.”

Section 14 of RA 9006 did not repealSection 66 of the Omnibus election Code,leaving intact Section 66 thereof whichimposes a limitation to appointive officialsand considers them ipso facto resigned fromoffice upon filing of their certificate ofcandidacy

Fariňas v. Executive Secretary (2003):

By the repeal of Section 67, an electiveofficial who runs for office other than the onewhich he is holding is no longerconsidered ipso facto resigned therefromupon filing his certificate ofcandidacy. Elective officials continue inpublic office even as they campaign for

reelection or election for another electiveposition. On the other hand, Section 66 hasbeen retained; thus, the limitation onappointive officials remains - they are stillconsidered ipso facto resigned from theiroffices upon the filing of their certificates ofcandidacy.

Substantial distinctions clearly exist betweenelective officials and appointiveofficials. The former occupy their office byvirtue of the mandate of the electorate. Theyare elected to an office for a definite termand may be removed therefrom only uponstringent conditions. On the other hand,appointive officials hold their office by virtueof their designation thereto by an appointingauthority. Some appointive officials holdtheir office in a permanent capacity and areentitled to security of tenure while othersserve at the pleasure of the appointingauthority.

Another substantial distinction between thetwo sets of officials is that under Section 55,Chapter 8, Title I, Subsection A. Civil ServiceCommission, Book V of the AdministrativeCode of 1987 (Executive Order No. 292),appointive officials, as officers andemployees in the civil service, are strictlyprohibited from engaging in any partisanpolitical activity or take part in any electionexcept to vote. Under the same provision,elective officials, or officers or employeesholding political offices, are obviouslyexpressly allowed to take part in political andelectoral activities.

By repealing Section 67 but retainingSection 66 of the Omnibus Election Code,the legislators deemed it proper to treatthese two classes of officials differently withrespect to the effect on their tenure in theoffice of the filing of the certificates ofcandidacy for any position other than thoseoccupied by them.

Since the classification justifying Section 14of Rep. Act No. 9006, i.e., electedofficials vis-a-vis appointive officials, isanchored upon material and significantdistinctions and all the persons belongingunder the same classification are similarlytreated, the equal protection clause of theConstitution is, thus, not infringed.

What constitutes term of office?

The Constitution contemplates service bylocal officials for three consecutive terms as


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a result of an election. The term limits forelective local officials must be taken to referto:1) the right to be elected and2) the right to serve in the same elective

position. Consequently, it is not enough that an

individual has fully served three consecutiveterms in an elective local office.

He must also have been elected to the sameposition for the same number of timesbefore the disqualification can apply. [Borjav. COMELEC (1998)]

Effect of judicial declaration that the official’sproclamation is void: His assumption of office in 1995 cannot be

deemed to have been by reason of a validelection. Also, he did not fully serve the1995-98 mayoral term by reason ofinvoluntary relinquishment of office as hewas ordered to vacate his post before theexpiration of the term. Although he servedthe greater portion of the said term, heshould not be considered disqualifiedbecause he did not serve three fullconsecutive terms. [Lonzanida v. COMELEC(1999)]

Effect of Recall Elections: An official has served for three consecutive

terms. He was elected in the recall electionfor the term of his predecessor. There wasno violation of the 3-term rule.

The Constitution does not require thatthe interruption be a full term of 3 years.The clear intent of the framers of the law isthat interruption for any length of time issufficient to break an elective localofficial’s continuity of service. [Socratesv. COMELEC (2002)]

Effect of Conversion of the LGU: The mayor of a municipality held his post for

three terms. During his last term, themunicipality became a city and he wasdeclared hold-over mayor by the charter.The said mayor should not be allowed to runagain. If he were allowed to do so, he wouldhave served the same people for a termmore than what is allowed by law [Latasa v.COMELEC (2003)]

E. Rules on Succession

1. Successors in permanent vacancies in officeof local chief executive.Sec. 44, LGC: (Asked in 1995, 1996, 2002,2008)

Permanent vacancy entails that an electivelocal official:DR VaReReQI fills a higher vacant office; refuses to assume office; fails to qualify; dies; is removed from office; voluntarily resigns; or is otherwise permanently incapacitated

to discharge the functions of his office.

Office wherePermanent

Vacancy OccursWho Succeeds into Office

Governor Vice-governorMayor Vice-mayor

Office of thegovernor or [and]vice-governor,mayor or [and] vice-mayor

Highest rankingsanggunian member;

In case of his permanentinability, the 2nd highestranking sanggunianmember;

Subsequent vacancies arefilled automatically by theother sanggunianmembers according totheir ranking.

Office of thePunong Barangay

Highest rankingsanggunian barangaymember;

In case of his permanentinability, the 2nd highestranking sanggunianmember.

A tie between/ among the highest rankingsanggunian members is resolved by drawingof lots.

Successors under S44, LGC serve only forthe unexpired terms of their predecessors.

The ranking in the sanggunian is based onthe immediately preceding local election:

Votes obtained by the winning candidate--------------------------------------------

Total number of registered voters in each district


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2. Permanent vacancies in the sanggunian.Sec. 45, LGC (Asked in 1996, 2002)

If automatic succession as provided in S44does not apply, vacancy is to be filled in byappointment made as follows:

Office where PermanentVacancy Occurs

Who Succeeds intoOffice

Member of SanggunianPanlalawigan orSangguniang Panlungsodof highly urbanized citiesand independentcomponent cities

Person appointed by thePresident, through theExecutive Secretary

Member of SangguniangPanlungsod of componentcities and theSangguniang Bayan

Person appointed by thegovernor

Member of theSangguniang Barangay

Person appointed by themayor, uponrecommendation of theSangguniang Barangayconcerned

Representation of theyouth and the barangay inthe sanggunian

Official next in rank ofthe organizationconcerned

General Rule: The appointee under Sec. 45must be a nominee of the political partyunder which the sanggunian member(whose elevation to the position next higherin rank created the vacancy) had beenelected.

Conditions sine qua non: There must be anomination and certificate of membershipfrom the highest official of the political partyor else the appointment is: null and void ab initio; and a ground for administrative action

against the responsible official. If sanggunian member who caused vacancy

does not belong to any political party, thelocal chief executive shall appoint a qualifiedperson, upon recommendation of thesanggunian.

The appointee under S45 serves theunexpired term of the vacant office. Exception: Sangguniang barangay.

If the vacancy pertains to barangay or youthrepresentation in the sanggunian, thevacancy is automatically filled by the officialnext in rank of the organization concerned.

3. Temporary vacancy in the office of the localchief executive.Sec. 46, LGC.(Asked in 2002)

Examples of local chief executive’stemporary incapacity to perform duties forphysical/legal reasons: leave of absence; travel abroad; suspension from office.

General rule: Vice-governor, city/ municipalvice-mayor, or the highest rankingsangguniang barangay member shallautomatically exercise the powers andperform the duties and functions of the localchief executive. Exception: The power to

appoint/suspend/dismiss employees canbe exercised only if the period oftemporary incapacity exceeds 30working days.

If the local chief executive is traveling withinthe country but outside his territorialjurisdiction for a period not exceeding 3consecutive days, he may designate inwriting the officer-in-charge.

General rule: The local chief executivecannot authorize any local official to assumethe powers/duties/functions of his office,other than the vice-governor, city/municipalvice-mayor, or highest ranking sangguniangbarangay member.

The authorization shall specify the powersand functions that the officer-in-charge shallexercise. Exception: The power to appoint,

suspend and dismiss employees.

If the local chief executive fails/refuses toissue the authorization, the vice-governor,city/municipal vice-mayor, or highest rankingsangguniang barangay member has right toassume the powers, duties, and functions ofthe office on the 4th day of absence. Exception: The power to

appoint/suspend/dismiss employees.

Office whereTemporary

VacancyOccurs

Who Temporarily Succeedsinto Office

Governor Vice-governor (automatically)Mayor Vice-mayor (automatically)Punongbarangay

Highest ranking sanggunianmember (automatically)


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Local chiefexecutivetraveling withinthe country butoutside histerritorialjurisdiction for aperiod notexceeding three(3) consecutivedays

1) Person designated inwriting by the said localchief executive Authorization shall

specify the powersand functions that thedesignate willexercise, except thepower to appoint,suspend, or dismissemployees

2) Vice-governor, vice-mayor or highestSangguniang Barangaymember, if the local chiefexecutive fails or refusesto designate In this case,

assumption into officeshall be on the 4

th

day of absence of thelocal chief executive(automatically)

Cases The LGC is silent on the mode of

succession when there is a temporaryvacancy in the office of the vice-governor.In this case, there was a vacancy when thevice-governor automatically assumed thegovernorship pending the determination ofwho is the local chief executive. Because ofsuch circumstances, the President, throughthe Secretary of Local Government, maymake the temporary appointment. [Menzonv. Petilla (1991)]

A vice-governor who is concurrently anacting governor is actually a quasi-governor.Being the acting governor, the vice-governorcan no longer continue to simultaneouslyexercise the duties of the latter office, sincethe nature of the duties of the governorhinders him from discharging his duties forsuch office. Hence, there is an “inability” onthe part of the regular presiding officer, thevice-governor, to preside during thesanggunian sessions, which calls for theelection of a temporary presiding officer.[Gamboa v. Aguirre (1999)]

The governor has the power to fill a vacancyin the Sangguniang Bayan caused by amember not belonging to any political party.It is the same manner as where the memberbelonged to a political party. Where there isno political party to make the nomination,the Sanggunian where the vacancy occursmust be considered authority for making the

recommendation. The appointing authority islimited to the appointment of thoserecommended to his office. Therecommendation is a condition sine qua nonfor the validity of the appointment. [Fariñasv. Barba (1996)]

4. Termination of the Temporary Incapacity:

Upon submission to the sanggunian of awritten declaration that he has reported backto office. If the temporary incapacity is due to

legal causes, he must also submit thenecessary documents showing that thelegal causes no longer exist.

5. Approval of Leaves of Absence.Sec. 47, LGC.

LOCAL OFFICIAL LOA APPROVED BY: for governors; mayors of

1)highly urbanizedcities or2)independentcomponent cities

The President or hisduly authorizedrepresentative

for vice-governors; for city/municipal

vice-mayors

The local chiefexecutive

for city/municipalmayors ofcomponentcities/municipalities

The governor

for the sanggunianpanlalawigan,panlungsod andpambayanmembers;

its employees

The Vice-governor orcity/municipal vice-mayor

for punongbarangays

The city/municipalmayor

for sangguniangbarangay members

The punong barangay

If the application for LOA is not acted uponwithin 5 working days after receipt, theapplication is deemed approved.


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F. Recall

Sec. 69-75, LGC

(Asked in 2002)

Recall is a mode of removal of a publicofficial by the people before the end of histerm of office. [Garcia v. COMELEC, (1993)]

Who has the power of recall: Power of recallfor loss of confidence is exercised by theregistered voters of the LGU. [S69, LGC]

Effectivity: Upon the election andproclamation of a successor in the person ofthe candidate receiving the highest numberof votes cast during the election on recall.Thus, if the official sought to be recalledreceives the highest number of votes,confidence in him is affirmed and he shallcontinue in office. [S72, LGC]

Prohibition on resignation: An Elective localofficial sought to be recalled is not allowedto resign while the recall process is inprogress. [S73, LGC]

Expenses: The Annual GeneralAppropriations Act contains a provision for acontingency fund at the disposal of theCOMELEC. [S75, LGC]

RA 9244: An Act Eliminating thePreparatory Recall Assembly as a Mode ofInstituting Recall of Elective LocalGovernment Officials, Amending for thePurpose sec. 70-71 of the LGC of 1991.

Sec. 70. Initiation of the Recall Process(PCPVA)

Petition of a registered voter in the LGUconcerned, supported by a percentage ofregistered voters during the election in which thelocal official sought to be recalled was elected.(Percentage decreases as population of peoplein area increases. Also, the supporting votersmust all sign the petition)

Within 15 days after filing, the COMELEC mustcertify the sufficiency of the required number ofsignatures. Failure to obtain the requirednumber automatically nullifies the petition.

Within 3 days from certification of sufficiency,COMELEC provides the official with a copy ofthe petition and causes its publication for 3weeks (once a week) in a national newspaperand a local newspaper of general circulation.

Petition must also be posted for 10 to 20 days atconspicuous places. PROTEST SHOULD BEFILED AT THIS POINT and ruled with finality 15days after filing.

COMELEC verifies and authenticates thesignatures.

COMELEC announces acceptance ofcandidates

Sec. 71. Election on Recall

COMELEC sets election within 30 daysupon completion of previous section inbarangay/city/municipality proceedings (45days in case of provinces)

Officials sought to be recalled areautomatically candidates

Cases A petition for recall that is signed only by the

petitioner but does not bear the names ofthe citizens who have allegedly lostconfidence in the official should bedismissed. [Angobung vs Comelec (1997)]

Whether or not the electorate of themunicipality has lost confidence in theirincumbent mayor is a political question.Loss of confidence is the formal withdrawalby the electorate of their trust in a person’sability to discharge his office previouslybestowed on him by the same electorate.[Evardone v. COMELEC (1991)]

Recall is a mode of removal of a publicofficial by the people before the end ofhis term of office. The people’s prerogativeto remove a public official is an incident oftheir sovereign power and in the absence ofconstitutional restraint, the power is impliedin all governmental operations. Such powerhas been held to be indispensable for theproper administration of public affairs.[Garcia v. COMELEC (1993)]

The Liga ng mga Barangay and thePreparatory Recall Assembly are entirelydifferent entities even if they may have thesame members. [Malonzo vs Comelec(1997)]

NOTE: Under RA9244, the Congress removedthe Preparatory Recall Assembly as a mode ofrecall.

A Regular local election is necessary in order toreplace the local elective official who is sought to


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be recalled. This does not include SK elections.[Paras v. COMELEC (1996)]

Limitations on the Holding of RecallsSec. 74.a. Any elective official may be the subject of a

recall election only once during his term ofoffice for loss of confidence.

b. No recall shall take place:1. Within 1 year from the date of

assumption of office of the officialconcerned Rationale: to provide a reasonable

basis for judging the performance ofan elective local official

2. Within 1 year immediately preceding aregular local election Rationale: a recall election is

potentially disruptive of the normalworking of the LGU necessitatingadditional expenses

“Recall”, as used in par. b, sec. 74prescribing the 1-year limitation, refers tothe “election” itself (not the process ofinitiating the recall proceedings). Thepurpose of the 1-year limitation fromassumption is to prevent premature actionwithout having sufficient time to evaluate theofficial’s performance.

As long as the election is held outside the 1-year period, the preliminary proceedings toinitiate recall can be held even before theend of 1 year from assumption.

The 1-year period before regular localelection does not include the campaignperiod. [Claudio v. COMELEC (2000)]

G. Discipline

1. Administrative Action

AO 23, as amended by AO 159 (1994) and AO66 (1999): Prescribing the Rules andProcedures on the Investigation ofAdministrative Disciplinary Cases

Coverage: administrative disciplinarycharges against – the governors, and members of the

sangguniang panlalawigan; the mayors, vice mayors, and members

of the sangguniang panlungsod of highlyurbanized cities, independentcomponent cities, and component cities;and

the mayors, vice mayors, and membersof the sangguniang panlungsod or

bayan of cities or municipalities inMetropolitan Manila

Disciplining Authority — The President, whomay act through the Executive Secretary May still constitute a Special

Investigating Committee in lieu of theDILG Secretary;

Nothing shall prevent the President fromassuming jurisdiction at any stage of theproceedings over cases to bepreliminarily investigated by the DILG; insuch an event, the same shallimmediately be forwarded to the SpecialInvestigating Committee after it mayhave been constituted by theDisciplining Authority.

Investigating Authority — DILG Secretaryo may constitute an Investigating

Committee in the DILG for the conductof investigation

Grounds for administrative action (discipline,suspension, removal):MAD-VAD-CO1. Disloyalty to the Republic of the

Philippines;2. Culpable violation of the Constitution;3. Dishonesty, oppression, misconduct in

office, gross negligence, or dereliction ofduty;

4. Commission of any offense involvingmoral turpitude or any offensepunishable by at least prision mayor,which is from 6 years and 1 day to 12years imprisonment;

5. Abuse of authority;6. Unauthorized absence for 15

consecutive working days in case oflocal chief executives and 4 consecutivesessions in the case of members of thesanggunian;

7. Application for, or acquisition of, foreigncitizenship or residence of the status ofan immigrant of another country; and

8. Such other grounds as may be providedby the Local Government Code of 1991;Republic Act No. 6713; Republic Act No.3019; Administrative Code of 1987;Revised Penal Code; and all otherapplicable general and special laws.

How Initiated1. by any private individual or any

government officer or employee by filinga sworn written complaint (verified)

2. by the Office of the President or anygovernment agency duly authorized by


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law to ensure that LGUs act within theirprescribed powers and functions

Elective Official againstwhom AdministrativeComplaint is Filed

Where to FileComplaint

Provincial or city official Office of the PresidentMunicipal official Sangguniang

PanlalawiganBarangay official Sangguniang

Panlungsod orSangguniang Bayan

Cases Supervision and discipline. The President is

not devoid of disciplinary powers becausehe merely has supervisory powers under theConstitution. Supervision is not incompatiblewith disciplining authority. [Ganzon vs CA(1991)]

Valid delegation. Under AO 23, thedelegation of the power to investigate to theSec of Interior is valid. What cannot bedelegated is the power to discipline. [Josonvs Torres (290 S 279)]

Prejudicial question? The administrativeinvestigation can proceed even during thependency of an appeal of audit findings tothe Commission on Audit [Salalima vsGuingona (257 S 55)]

Preventive Suspension Sec. 63, LGC(Asked in 1990, 1996)1. Sole Objective: to prevent the accused

official from hampering the investigationwith his influence and authority overpossible witnesses and keep him off therecords and other evidence. [Ganzon v.CA, (1991)][cf. suspension as a penalty]

2. It may be imposed by the DiscipliningAuthority in cases where the respondentis an elective official:

Local ElectiveOfficial of:

Who may impose:

provinces highly urbanized

cities independent

component cities

President, throughthe DILG Secretary

municipalities component city

Provincial Governor

barangay Mayor

3. The governor shall, upon the directorder of the Disciplining Authority,preventively suspend an elective officialof a component city, who is under formaladministrative investigation by the Officeof the President.

4. May be imposed at any time after theissues are joined (after respondent hasanswered the complaint)

5. No preventive suspension shall beimposed within 90 days immediatelyprior to any local election. If thepreventive suspension has beenimposed prior to the 90-day periodimmediately preceding a local election, itshall be deemed automatically liftedupon the start of the period

Grounds for Preventive Suspension: when the evidence of guilt is strong

and, given the gravity of the offense,

there is a great probability that thecontinuance in office of therespondent could influence thewitnesses or pose a threat to thesafety and integrity of the recordsand other evidence

Period: Any single preventivesuspension of local elective officialsshall not extend beyond 60 days;

Provided that, in the event that severaladministrative cases are filed against anelective official: he cannot be preventively

suspended for more than 90 dayswithin a single year

on the same ground or groundsexisting and known at the time ofthe first suspension.

Expiration: the suspended electiveofficial shall be deemed reinstated inoffice without prejudice to thecontinuation of the proceedings againsthim [which shall be terminated within120 days from formal notice of thecase]. However, if the delay in theproceeding of the case is due to hisfault, or request, other than the appealduly filed, the duration of such delayshall not be counted in computing thetime of termination of the case. (sec. 63(c))

Compensation: officer shall receive nosalary or compensation during suchsuspension; but, upon subsequentexoneration and reinstatement, he shallbe paid his full salary or compensation,including such emoluments accruingduring such suspension. (sec. 64)

The provincial governor is authorized topreventively suspend the municipal mayor any


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time after the issues have been joined and anyof the following grounds were shown to exist:o When there is reasonable ground to believe

that the respondent has committed the actor acts complained of

o When the evidence of culpability is strongo When the gravity of the offense so warrantso When the continuance in office of the

respondent could influence the witnesses orpose a threat to the safety and integrity ofthe records and other evidence.

There is nothing improper in suspending anofficer before the charges are heard and beforehe is given an opportunity to prove hisinnocence. Preventive suspension is allowed sothat respondent may not hamper the normalcourse of the investigation through the use of hisinfluence and authority over possible witnesses.When a local government official believes thathe has been wrongfully suspended, the properprocedure is to exhaust administrative remedies,i.e. seek relief from the DILG Secretary, and notto file a case in court. [Espiritu v. Melgar (1992)]

Piecemeal suspensions should not be issued. Ifthere are several administrative cases against apublic official, these cases should beconsolidated for the purpose of orderingpreventive suspension, instead of issuing anorder of suspension for each case. Elective localofficials should be given the benefit ofsimultaneous service of suspension. [Ganzon v.CA (1991)]

NOTE: The ruling in this case as tosimultaneous service of suspension is more ofan exception than the rule, because of thefollowing circumstances:o Three separate orders of 60-day preventive

suspension were issued against Ganzono Another order of preventive suspension was

issued before the SC promulgated thedecision ruling that suspension should notbe issued piecemeal

o The simultaneous service of suspension willlessen the harsh effects of whatever illmotive may be behind the successivesuspension orders issued

Rights of the Respondent Official— Fullopportunity to:o Appear and defend himself in person or

by counselo Confront and cross-examine the

witnesses against himo Require attendance of witnesses and

the production of documentary evidencein his favor through subpoena orsubpoena duces tecum. (sec. 65)

Due process. The petitioner has the right toa formal investigation under AO 23. Wherethe Sec denied the motion for a formalinvestigation and decided the case on thebasis of position papers, the right of thepetitioner was violated. [Joson vs Torres(290 S 279)]

Form and Notice of Decision Shall be terminated within 90 days from

start thereof. Office of the President or Sanggunian

concerned to render decision Within 30 days from end of

investigation In writing Stating clearly facts and reasons

Furnish copies to respondent andinterested parties. (sec. 66 a)

NOTE: Any abuse of the exercise of the powerof preventive suspension shall be penalized asabuse of authority (Nachura).

2. Penalties

a. Suspension Limitations: The penalty of suspension:

shall not exceed the unexpired term ofthe respondent

shall not exceed a period of 6 monthsfor every administrative offense

shall not be a bar to the candidacy ofthe respondent so suspended as longas he meets the qualifications requiredfor the office. (Sec. 66, LGC)

When the respondent has been meted 2 ormore penalties of suspension for 2 or moreadministrative offenses, such penalties shallbe served successively (AO No. 159,Amending AO 23, Prescribing the Rules andProcedures on the Investigation ofAdministrative Disciplinary Cases AgainstElective Local Officials, 1994)

b. Removal

An elective local official may be removed byorder of the proper court. (sec. 60)

The penalty of removal from office as aresult of administrative investigation shall beconsidered a bar to the candidacy of therespondent for any elective position. (sec.66 c)[cf. effect of penalty of suspension]


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Proper court order

Local legislative bodies and/or the Office ofthe President cannot validly impose thepenalty of dismissal or removal from serviceon erring local elective officials. It is clearfrom Sec. 60 of LGC that an elective localofficial may be removed from office onthe grounds enumerated above only byorder of the proper court.

Art. 124 (b), Rule XIX of the Rules andRegulations Implementing the LGC, whichstates that “an elective local official may beremoved from office by order of the propercourt or the Disciplining Authority whicheverfirst acquires jurisdiction to the exclusion ofthe other” is void for being repugnant to Sec.60, LGC.

But remember if it’s appointive, OP mayremove. [Pablico v. Villapando (2002)]

Petitioners contest the administrative actionas being violative of Sec. 60, whichmandates that an elective local official maybe removed from office only by order of thecourt, since the duration of the suspensionbeing 12-20 months exceeded theirremaining terms. The suspension wasallegedly tantamount to a removal.

Held: An administrative offense meansevery act or conduct or omission whichamounts to, or constitutes, any of thegrounds for disciplinary action. The offensesfor which suspension may be imposed areenumerated in Section 60.

Assuming for the moment that the Office ofthe President is correct in its decisions ineach of the subject four administrativecases:

It committed no grave abuse of discretion inimposing the penalty of suspension,although the aggregate thereof exceeded sixmonths and the unexpired portion of thepetitioners’ term of office.

What is important is that the suspensionimposed for each administrative offense didnot exceed six months. [Salalima v.Guingona (1996)]

3. Power of Tribunals

The Ombudsman(Asked in 1999, 2003)

The Ombudsman and the Office of the Presidenthave concurrent jurisdiction to conductadministrative investigations over local electiveofficials. The LGC did not withdraw the power ofthe Ombudsman under RA 6770. [Hagad v.Gozo-Dadole (1993)]

Preventive Suspensionunder RA 6770

Preventive Suspensionunder the LGC

Requirements:

1. the evidence of guilt isstrong; AND

2. that any of thefollowingcircumstances arepresent:o the charge against

the officer oremployee shouldinvolvedishonesty,oppression orgrave misconductor neglect in theperformance ofduty;

o the chargesshould warrantremoval fromoffice; or

o the respondent’scontinued stay inoffice wouldprejudice the casefiled against him

Requirements:

1. there is reasonableground to believe thatthe respondent hascommitted the act oracts complained of

2. the evidence ofculpability is strong

3. the gravity of theoffense so warrants;or

4. the continuance inoffice of therespondent couldinfluence thewitnesses or pose athreat to the safetyand integrity of therecords and otherevidence

Maximum period:6 months

Maximum period:60 days

It is not only the Ombudsman, but also hisDeputy, who may sign an order preventivelysuspending officials. Also, the length of theperiod of suspension within the limits providedby law and the evaluation of the strength of theevidence both lie in the discretion of theOmbudsman. It is immaterial that no evidencehas been adduced to prove that the official mayinfluence possible witnesses or may tamper withthe public records. It is sufficient that there existssuch a possibility. [Castillo-Co v. Barbers (1998)]

The Courts

RA 3019The term “office” in Sec. 13 of RA 3019(pertaining to mandatory preventive suspension)applies to any office which the officer mightcurrently be holding and not necessarily theparticular office in relation to which the official ischarged. The imposition of the suspension,though mandatory, is not automatic or self-operative. A pre-condition is the existence of avalid Information, determined at a pre-suspension hearing. [Segovia v. Sandiganbayan(1999)]


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SandiganbayanPD 1606, as amended by RA 8249

It is the official’s grade that determines his orher salary, and not the other way around. Anofficial’s grade is not a matter of proof but amatter of law which the court must takejudicial notice. Under Sec. 444(d) of theLGC, the municipal mayor shall receive aminimum monthly compensationcorresponding to SG 27. Thus, the casesfiled against the petitioner are within theexclusive jurisdiction of the Sandiganbayan.[Llorente v. Sandiganbayan (2000)]

If the law states that a certain officer iswithin the jurisdiction of the Sandiganbayan,the fact that the officer's SG is below 27does not divest jurisdiction. [Inding v.Sandiganbayan (2004)]

RA 8249 provides that as long as one of theaccused is an official of the executivebranch occupying the position otherwiseclassified as SG 27 and higher, theSandiganbayan exercises exclusive originaljurisdiction. To vest Sandiganbayan withjurisdiction, public office must be an elementof the crime OR that without the publicoffice, the crime could not have beencommitted. [Rodriguez v. Sandiganbayan(2004)]

4. Administrative Appeals

Sec. 67 Within 30 days from receipt of decisions:

Decisions of: May be appealed before:

SangguniangPanglungsod ofcomponent cities

Sangguniang Bayan



SangguniangPanglungsod of: highly urbanized

cities independent

component cities

Office of the President

Office of the President [final and executory; maynot be appealed]

An appeal shall not prevent a decision frombecoming final or executory. If respondent wins the appeal:

o He shall be considered as havingbeen placed under preventivesuspension during the pendency ofthe appeal.

o If condoned, he shall be paid hissalary and other emoluments duringthe pendency of appeal. (sec. 68)

Sec. 68 of the LGC merely provides that an“appeal shall not prevent a decision frombecoming final or executory.” As worded,there is room to construe the provision asgiving discretion to the reviewing officials tostay the execution of the appealed decision.[Berces v. Guingona (1995)]

The phrase “final or executory” in Secs. 67and 68 simply means that administrativeappeal will not prevent the enforcement ofthe decision. [Mendoza vs Lacsina (2003)]

5. Effect of Re-election

Re-election renders the administrativecomplaint against the local official moot andacademic. A public official cannot beremoved for administrative misconductcommitted during a prior term, since the re-election to office operates as a condonationof the officer’s previous misconduct to theextent of cutting off the right to remove himtherefore. But this rule is applicable only toadministrative cases, not to criminal cases.(Asked in 2000) [Aguinaldo v. Santos(1992)]

II. Appointive Officials

A. Appointments

Under the LGC and RAC, the provincialgovernor is not authorized to appoint or evendesignate a person in cases of temporaryabsence or disability. Power resides in thePresident or the Secretary of Finance.[Dimaandal v. COA (1998)]

NOTE: Difference between designation andappointment – In designation, additional tasksare assigned, but there is no correspondingsalary increase.

The Bases Conversion Act provides that themayor of Olongapo shall be appointedSBMA chairman for the first year ofoperations. This violates the constitutionalprohibition against appointment or


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designation of elective officials to othergovernment posts. Appointive officials maybe allowed by law or by the primaryfunctions of his position to hold multipleoffices whereas elective officials are notallowed, except as otherwise recognized inthe Constitution. The provision alsoencroaches on executive power to appoint.(Asked in 1995, 2003) [Flores v. Drilon(1993)]

CSC’s Role in Appointments

It cannot appoint but it can say if a person isqualified or unqualified. If unqualified, it canremove the person from office (basis is theOmnibus Implementing Rules of RAC).

Grounds for RECALL of appointment(NO-VP)1. Non-compliance with procedure or criteria

provided in the agency’s merit promotionplan

2. Failure to pass through the agency’sselection/promotion board

3. Violation of existing collective agreementbetween management and employeesrelative to promotion

4. Violation of other existing civil service lawrules and regulations

In disapproving or approving appointments,CSC only examines the conformity of the appointment with

applicable provisions of law WON appointee possesses the

minimum qualifications and none of thedisqualifications [Mathay v. CSC (1999)]

CSC has no authority to direct that anappointment of a specific individual bemade. It can only attest to WON the personchosen may fill the position. According to BP337, the power to appoint rests exclusivelywith the local chief executive and can’t beusurped by anyone else. [Mathay v. CA(1999)]

The Constitutional prohibition on midnightappointments applies only to presidentialappointments. They do not apply to LGUs.For LGUs, appointments of such nature arevalid as long as these meet all the requisitesof a valid appointment.

The Constitutional prohibition on midnightappointments is confined to appointmentsmade in the Executive Department and doesnot refer to the Members of the SupremeCourt.

The fact that Section 14 and Section 16refer only to appointments within theExecutive Department renders conclusivethat Section 15 also applies only to theExecutive Department. This conclusion isconsistent with the rule that every part of thestatute must be interpreted with reference tothe context, i.e. that every part must beconsidered together with the other parts,and kept subservient to the general intent ofthe whole enactment. It is absurd to assumethat the framers deliberately situated Section15 between Section 14 and Section 16, ifthey intended Section 15 to cover all kindsof presidential appointments. [De Castro v.JBC (2010)]

Once an appointment has been made andaccepted, the appointee acquires a legalright to the position--the appointing authoritycannot unilaterally revoke it without cause,notice and hearing. But the CSC may do soif it decides that the requirements were notmet. [De Rama v. CA (2001)]

Nepotism (asked in 2008) Mayor is not allowed to appoint wife as head

of Office of General Services even if she’squalified because of the prohibition againstnepotic appointments. This is based onSec. 59 Book 5 of RAC. This prohibitioncovers all appointments and original andpersonnel actions (promotion, transfer,reinstatement, re-employment). [Debulgadov. CSC (1994)]

The mayor’s appointment was considerednepotic and therefore prohibited when hemade permanent the appointment of hisdaughter’s husband, who was appointed amere temporary post prior to the latter’smarriage. [CSC v. Tinaya (2005)]

The appointment of Montuerlo was voidbecause the matter was never submitted tothe Sangguniang Bayan for its concurrenceor, even if so submitted, no suchconcurrence was obtained. Even if therewas a verbal concurrence by theSanggunian, such is not the concurrencerequired and envisioned under the law.

The Sanggunian, as a body, acts through aresolution or an ordinance. Absent suchresolution of concurrence, Montuerlo’sappointment failed to comply with themandatory requirement of Section 443(a)and (d) of R.A. No. 7160.


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Without a valid appointment, Montuerloacquired no legal title to the Office ofMunicipal Budget Officer, even if she hadserved as such for ten years. [Montuerlo v.Ty (2008)]

B. Discipline

The appointing authority is generally thedisciplining authority.

Disciplinary Jurisdiction (sec. 87)[Except as otherwise provided by law], thelocal chief executive may impose: Removal from service (cf. elective

officials) Demotion in rank Suspension for not more than 1 year

w/o pay- If not more than 30 days—not

appealable- If more than 30 days—appealable to

the CSC Fine not exceeding 6 months’ salary Reprimand Or otherwise discipline subordinate

officials and employees under hisjurisdiction.

No remedy of appeal if the decision of theadministrative case exonerated the officer oremployee. “Party adversely affected” in PD807 or “The Philippine Civil Service Law”only refers to the government employeeagainst which the case is filed. [Mendez v.CSC (1991)]

The City Treasurer has authority todiscipline his subordinates.

The power to discipline is specifically granted bythe Revised Administrative Code to heads ofdepartments, agencies and instrumentalities,provinces, and cities.

The power to commence administrativeproceedings against subordinate officers isgranted by the Omnibus Rules to the secretaryof department, head of office, head of LGU,chief of agency, regional director, or person withsworn written complaint. The City treasurer mayalso motu proprio institute disciplinaryproceedings against subordinates.

These rules must be reconciled with the LGC,which gives the mayor the authority to instituteadministrative and judicial proceedingsagainst any official or employee of the city. Incases involving the employees of the citytreasurer’s office, the mayor must file his

complaint with the treasurer’s office or with theDOF. [Garcia v. Pajaro (2002)]

[Sangguniang Bayan of San Andres v. CA(1998)]:

Requisites toconstituteresignation:1.Intention torelinquish a part of theterm2.Act of relinquishment3.Acceptance by theproper authority

Essential elements ofabandonment:1. Intent to abandon2. Overt act by which

the intention is tobe carried intoeffect

(Asked in 2000)

C. Removal

In interpreting its own rules as it did, the CSCwas acting within its constitutionally delegatedpower to interpret its own rules. The CSC, byruling that the employee took an automatic leaveof absence, was merely interpreting its own ruleon requirement of approved leave. [CityGovernment of Makati City v. CSC (2002)]

D. Officials Common to AllMunicipalities, Cities and Provinces

a. Secretary to the Sanggunianb. Treasurerc. Assessord. Accountante. Budget Officerf. Planning and Development Coordinatorg. Engineerh. Health Officeri. Civil Registrarj. Administratork. Legal Officerl. Agriculturistm. Social Welfare and Development Officern. Environment and Natural Resources Officero. Architectp. Information Officerq. Cooperatives Officerr. Population Officers. Veterinariant. General Services Officer

Exceptions as to appointments by local chiefexecutive secretary (appointed by vice-governor or

vice-mayor) treasurer (appointed by secretary of

Finance)


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In the barangay, the mandated appointiveofficials are the Barangay Secretary and theBarangay Treasurer, although other officialsof the barangay may be appointed by thepunong barangay.

III. Provisions Applicable to Elective andAppointive Officials

A. Prohibited Interests

LGC Sec. 89Prohibited business and pecuniary interest. Unlawful for any local government

official/employee to directly or indirectly: Engage in any business transaction with

LGU local government unit: in which he is an official/employee; over which he has the power of

supervision; with any of its authorized boards,

officials, agents, or attorneys, if money/property or any thing of

value is to be indirectly transferredout of the resources of the LGU tosuch person or firm;

Hold interests in any cockpit or othergames licensed by an LGU;

Purchase any realty/property forfeited infavor of the LGU for unpaid taxes/assessment; or by virtue of a legal process at the

instance of the LGU. Be a surety for any person contracting

or doing business with the LGU which asurety is required;

Possess/use any public property of theLGU for private purposes.

Other prohibitions governing theconduct of national public officersrelating to prohibited business andpecuniary interest: RA 6713 (Code of Conduct and

Ethical Standards for PublicOfficials/EEs);

Other laws.

The variance doctrine applies here. Asapplied in this case, the Variance Doctrineholds that if the crimes charged include thecrimes proved, then there can be aconviction for the crimes proved. Also, ifcrimes proved include the crimes charged,then there can be a conviction for the crimescharged. [Teves v. Sandiganbayan (2004)]

Elements of unlawfulintervention

Elements of prohibitedinterest

Accused is public officer Public OfficerAccused has direct orindirect financial orpecuniary interest in anybusiness, contract, ortransaction, WONprohibited by law

He has direct or indirectfinancial or pecuniaryinterest in any business,contract, transaction

He intervenes or takespart in his official capacityin connection with suchinterest

He is prohibited fromhaving such interest bythe Const. or law

B. Practice of Profession

LGC, Sec. 90 All governors and mayors are prohibited

from:o practicing their professiono engaging in any occupation other than

the exercise of their functions as localchief executives.

Sanggunian Members mayo Practice their professiono Engage in any occupationo Teach in schools

except during session hours Provided, a member of the Bar

shall not:(1) Appear as counsel before any

court in any civil case wherein alocal government unit or anyoffice, agency, or instrumentalityof the government is theadverse party;

(2) Appear as counsel in anycriminal case wherein an officeror employee of the national orlocal government is accused ofan offense committed in relationto his office.

(3) Collect any fee for theirappearance in administrativeproceedings involving the localgovernment unit of which he isan official; and

(4) Use property and personnel ofthe government except whenthe sanggunian memberconcerned is defending theinterest of the government.


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Doctors of Medicine may practice theirprofession even during official hours of worko only on occasions of emergency

Provided, that the officialsconcerned do not derive monetarycompensation therefrom.

Private Counsel/Lawyers for Elective LocalOfficials

General Rule: A Legal Officer, one of theappointive local officals common to LGUs, istasked to represent the LGU in all civilactions and special proceedings wherein theLGU or any official thereof, in his officialcapacity, is a party. (sec. 481)

By appearing as counsel for dismissedemployees, the city counsellor violated theprohibition against engaging in practice if suchpractice represents interests adverse to thegovernment. [Javellana vs DILG (212 S 475)]

A municipality cannot hire private counsel to filea suit in its behalf. The RAC provides that onlythe provincial fiscal and the municipal attorneycan represent a municipality or its official in itslawsuits, except in cases where:1) original jurisdiction is vested in the SC2) where the municipality is a party adverse to

the provincial government or the case isbetween two municipalities

3) He or his wife/child is pecuniarily involved asheir, legatee, creditor, etc.

While a private prosecutor is allowed in criminalcases, private counsel cannot represent LGUeven if in collaboration with an authorizedgovernment lawyer except that in the interest ofsubstantial justice, the municipality may adoptwork already performed in good faith by theprivate attorney which was beneficial to itprovided.1) no injustice is heaped on adverse party2) no compensation of any guise is paid.

[Ramos v. CA (1981)]

The municipality’s authority to employ aprivate lawyer is expressly limited only tosituations where the provincial fiscal isdisqualified to represent it. For the exceptionto apply, the fact that the provincial fiscalwas disqualified to handle themunicipality’s case must appear onrecord. The refusal of the provincial fiscal torepresent the municipality is not a legaljustification for employing the services ofprivate counsel. Instead of engaging theservices of a special attorney, the municipalcouncil should request the Secretary ofJustice to appoint an acting provincial fiscal

in place of the provincial fiscal who hasdeclined to handle and prosecute its case incourt. [Pillilla v. CA (1994)]

In resolving whether a local governmentofficial may secure the services of a privatecounsel in an action filed against him in hisofficial capacity, the nature of the action andthe relief sought are to be considered. Inview of the damages sought, which ifgranted, could result in personal liability,respondents could not be deemed to havebeen improperly represented by a privatecounsel. [Mancenido v. CA (2000)]

NOTES: Instances when a private lawyer can

represent a LGU When the municipality is an adverse

party in a case involving the provincialgovernment or another municipality orcity within the province

Where original jurisdiction is vested withthe SC

Test as to when a local governmentofficial can secure the services of privatecounsel: Nature of the action and the reliefthat is sought

C. Prohibition against Appointment

No elective official shall be eligible forappointment or designation in any capacityto any public office or position during histenure [Flores v Drilon (1993)]

Except for losing candidates in barangayelections, no candidate who lost in anyelection shall, within one year after suchelection, be appointed to any office in thegovernment or any GOCC or theirsubsidiaries.

IV. Local Boards and Councils

Sec. 98-116

A. Local School Board

Determines the annual supplementarybudgetary needs for the operation andmaintenance of public schools

Authorizes the disbursal of funds from theSpecial Education Fund

Serves as an advisory committee to theSanggunian concerned on educationalmatters

Recommend changes in the names of publicschools.


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Cases The Special Education Fund covers the

salary and benefits of extension classesteachers but not college scholarship funds.[COA Cebu Province v. Province of Cebu(2001)]

The requirement that DECS shall consult thelocal school board in Sec 99, LGC applies toappointments made by DECS, not toappointments made by the Pres. [Osea vsMalaya (2002)]

B. Local Health Board

Proposes annual budgetary allocations forthe operation and maintenance of healthfacilities and services

Serves as an advisory committee to thesanggunian concerned on health matters

Creates committees which shall advice localhealth agencies on personnel and budgetarymatters

C. Local Development Council

Primary duty: to initiate a comprehensivemultisectoral development plan for the LGUwhich is submitted to the sanggunian forapproval and assist the correspondingsanggunian in setting the direction ofeconomic and social development, andcoordinating development efforts within itsterritorial jurisdiction.

D. Local Peace and Order Council

Formulate and recommend such measuresto improve or enhance peace and order andpublic safety

Monitor the implementation Make periodic assessments of the prevailing

peace and order situation

POLITICAL LAW REVIEWER Chapter VIII. LOCAL GOVERNMENT UNITS

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Chapter VIII. Local Government Units

A. THE BARANGAY1. KATARUNGANG PAMBARANGAY2. SANGGUNIANG KABATAAN

B. THE MUNICIPALITYC. THE CITYD. THE PROVINCE

A. The Barangay

LGC Sec. 384-439

The barangay is the basic political unit. Its rolesare:1. Primary planning and implementing unit of

government policies, plans, programs,projects and activities in the community;

2. Forum wherein the collective views may beexpressed, crystallized and considered; and

3. Where disputes may be amicably settled.(Sec 384, LGC)

A barangay captain is a person in authorityand an attack on him would amount to directassault. On the other hand, an attack on abarangay chief tanod who was a merebystander (not in the performance of hisduties) at the time the crime was committed, isnot direct assault as he is merely an agent of aperson in authority. [People v. Recto (2001)]

1. Katarungang Pambarangay

LGC Sec. 399-422

The previous law on Katarungang Pambarangayhas already been revised by the LGC and it hasthree significant features:[Uy v. Contreras(1994)]

PD 1508 Local Government CodeAuthority over criminaloffenses limited to thosepunishable byimprisonment notexceeding 30 days or afine not exceeding P200

Authority over criminaloffenses limited to thosepunishable byimprisonment notexceeding 1 year or afine not exceedingP5,000

No similar provision Disputes arising from theworkplace where thecontending parties areemployed or at theinstitution where suchparties are enrolled forstudy, shall be brought inthe brgy where suchworkplace or institution islocated

No similar provision Prescriptive periods ofoffenses suspendedduring the pendency of

the mediation,conciliation or arbitrationprocess

Quick Facts about Katarungang Pambarangay- nature of proceedings is contractual

1) Subject Matter for Amicable Settlement:All cases EXCEPT those listed under Sec.408:

EXCLUSIONS:a. One party is the government or any

subdivision or instrumentality thereofb. One party is a public officer or employee,

and the dispute relates to the performanceof his official functions

c. Offenses punishable by imprisonmentexceeding 1 yr or a fine exceedingP5,000.

d. Offenses where there is no privateoffended party

e. Dispute involves real properties located indifferent cities or municipalities (UNLESSthey submit their dispute to KP)

f. Dispute where parties who actually residein barangays of different cities ormunicipalities (UNLESS they submit theirdispute to KP)

g. Cases as determined by the President.

Other EXCLUSIONS: Cases under Sec 412(b):1) where the accused is under detention2) where a person has otherwise been

deprived of personal liberty calling forhabeas corpus proceedings

3) where actions are coupled with provisionalremedies such as preliminary injunction,attachment, delivery of personal propertyand support pendente lite

4) where the action may otherwise be barredby the statute of limitations

2) Conciliation is a precondition to filing ofcomplaint in court. Initiatory pleadings, if filed without

compliance with the precondition MAY bedismissed on motion of any interestedparty on the ground that it fails to state acause of action. [Wingarts vsMejia (1995)]

How should the averments be made?Failure to specifically allege the fact thatthere was no compliance with thebarangay conciliation procedureconstitutes a waiver of that defense.General averments are not enough.[Corpuz vs CA (1997)]

An undated certification that merely statesthat the case was set for hearing beforethe barangay but the parties failed toreach an amicable settlement is not the


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contemplated Barangay Certification toFile Action. [Mendova vs Afable(2002)]

3) In all KP proceedings, the parties must appearIN PERSON without the assistance of counselor representative.

EXCEPTION: Minors and incompetents maybe assisted by their next-of-kin who are NOTlawyers.

The Certification to file was improperlyand prematurely issued. No personalconfrontation before a duly constitutedPangkat took place. [Bonifacio LawOffice vs Belosillo (2002)]

Officers Involved1. Lupong Tagapamayapa.

i. It is composed of the punong barangayas chairman and 10 to 20 members. It isconstituted every 3 years.

ii. Powers:1. Administrative supervision over the

conciliation panels2. Meet monthly to provide a forum for

exchange of ideas among itsmembers and the public of mattersrelevant to the amicable settlementof disputes, and to enable variousconciliation panel members to sharewith one another their observationsin effecting speedy resolutions ofdisputes

3. Other powers and duties as may beprescribed by law or ordinance

2. Pangkat ng Tagapagkasundo. There shall be constituted for each

dispute brought before the lupon aconciliation panel

Consisting of 3 members who shall bechosen by the parties to the disputefrom the members of the lupon.

If the parties cannot agree on thepangkat membership, the same shall bedetermined by lots drawn by the luponchairmen

Effect of the settlement agreement andarbitration award The amicable settlement and arbitration

award shall have the force and effect of afinal judgment unless repudiation of thesettlement has been made or a petition tonullify the award has been filed before theproper city or municipal court (Section 416)

REPUDIATION of the settlement agreementmay be made by any party to the disputewithin 10 days from the date of settlement

- file with the lupon Chairman a statementto that effect sworn to before him

- may be made when consent is vitiatedby:a) fraudb) violencec) intimidation

- it shall be sufficient basis for issuance ofthe certification for filing a complaint

2. Sangguniang Kabataan

LGC Sec. 423-439

Creation and CompositionThere shall be in every barangay a sangguniangkabataan to be composed of a chairman, sevenmembers, a secretary and a treasurer. An officialwho, during his term of office, shall have passedthe age of 21 shall be allowed to serve theremaining portion of the term for which he waselected.

RA 9164 (2002) amended Sec. 424 and 428 ofthe LGC by lowering the maximum age of themembers of the Katipunan ng Kabataan andelective officials of the Sangguniang Kabataanfrom 21 to 18 years of age.

An elective official of the SangguniangKabataan should not be more than 21 years(now 18 years) of age on the day of hiselection. “Not more than 21 years old” is notequivalent to “less than 22 years old.”[Garvida v. Sales (1997)]

SK membership is not a property rightprotected by the Constitution. It is only astatutory right conferred by law. Congress mayamend at any time the law to change or evenwithdraw the statutory right. [Montesclaros vsComelec (2002)]

B. The Municipality

LGC Sec. 440-447

Quick Facts about the Municipality

May be created, divided, merged, abolished only byCongress subject to the approval by a majority of hevotes cast in a plebiscite in the LGU directly affected.

Requisites for creation:a. Ave. Annual income: 2.5M for the last 2 years;b. Population: At least 25Kc. Territory: 50 square kilometers


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d. Creation must not reduce land area,population or income of original municipality atthe time of said creation to less than minimumrequirements prescribed therein.

The municipal mayor has the authority toissue permits and licenses for the holding ofactivities for any charitable or welfarepurpose [LGC444(b)(3)]. [Olivarez v.Sandiganbayan (1995)]

The municipal mayor does not have thepower to issue warrants of arrest. The powervested by the previous LGC was repealedby the Consti. [Munez vs Arino (1995)]

The Sangguniang Bayan has the power toprovide for the establishment andmaintenance of public markets in themunicipality. Here, the SB merely mentionedthe plan to acquire the lot for expansion ofthe public market adjacent thereto. Untilthere is proper expropriation, the landownercannot be deprived of his right over the land.[Greater Balanga vs Mun of Balanga (1994)]

C. The City

LGC Sec. 448-458

Quick Facts about the City


Requisites for creation:(i) Ave. Annual income: at least 100M for the last

2 consecutive years (Section 450 of LGC wasamended by RA 9009)- and either one of the following requisites:

(ii) Population: Not less than 150K(iii) Territory: 100 square kilometers

* Creation must not reduce land area,population or income of originalmunicipality at the time of said creation toless than minimum requirementsprescribed therein.

Authority over Officers The Sangguniang Panlungsod has no

authority to issue subpoenas and punish non-members for legislative contempt. Thecontempt power of the legislature is suigeneris and local legislative bodies cannotcorrectly claim to possess it for the samereasons that the national legislature does. Thepower to subpoena witnesses and punish non-members for contempt may not also be impliedin the delegation of legislative power as suchpartake of a judicial nature. [Negros Oriental IIElectric Cooperative v. SangguniangPanlungsod (1987)]

DBM cannot control amount a city wants togive its judges as allowance, as long as cityhas money to do so. [Dadole v. COA (2002)]

Licenses and Permits A permit issued by the mayor to a drugstore

not previously cleared with and licensed by theFDA will be a nullity. However, the issuance ofa mayor’s permit is not mandatory once it isshown that the FDA has licensed the operationof the applicant. The city mayor may onlyrevoke the permits issued for violation of thelocal requirements imposed, not with therequirements of general laws andimplementing administrative rules. [Gordon v.Veridiano II (1988)]

Distinction must be made between the grant ofa license or permit to do business and theissuance of a license to engage in the practiceof a particular profession. A business permitcannot, by the imposition of conditions, beused to regulate the practice of a profession.[Acebedo Optical v. CA (2000)]

License/permit to dobusiness

License to engage in aprofession

Granted by the localauthorities

Board or Commissiontasked to regulate theparticular profession

Authorizes the person toengage in business orsome form of commercialactivity

Authorizes a naturalperson to engage in thepractice or exercise of hisor her profession

NOTE: The power to issue licenses and permitsnecessarily includes the power to revoke, withdrawor restrict through the imposition of certainconditions. However, the conditions must bereasonable and cannot amount to an arbitraryinterference with the business.

The power to suspend or revoke licensesand permits is expressly premised on theviolation of the conditions of these permits.

The mayor has the power to inspect andinvestigate private commercialestablishments for any violation of theconditions of their licenses and permits, buthe cannot order a police raid in the guise ofinspecting the establishments. [Lim vsGaraybas (2002)]

Only the Sanggunian, not the mayor of thecity, has the power to allow cockpits, stadiums,etc. Without an ordinance, he cannot compelmayor to issue him a business license. [Canetv. Dacena (2004)]

Cityhood laws RA 9009 increased the income threshold in

the creation of a city to P100 million, and ineffect amending Sec 450 of the LGC.

A number of municipalities had pendingcityhood bills (stating that they will be


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exempt from the increase in incomerequirement) before the passage of RA9009.

The Court held that RA 9009 will not applyto said municipalities. It states that theintention of the law was to exemptmunicipalities: (1) that had pending cityhoodbills before the passage of RA 9009, and (2)that were compliant with the old incomethreshold.

There is a valid classification as betweenthe municipalities with and without thecityhood bills.

DISSENT: (1) The new income thresholdshould be applied prospectively, (2) theConstitution requires that Congress shallprescribe all the criteria for the creation of acity in the LGC and NOT in any other law,including Cityhood laws, (3) RA 9009 isclear and unambiguous (no need to look atintent of 11

thCongress), (4) the Cityhood

laws violate the equal protection clause.[League of Cities vs Comelec (2009)]

D. The Province

LGC Sec. 459-469

Quick Facts about the Province


Requisites for creation:(i) Ave. Annual income: 20M(ii) Population: Not less than 250K(iii) Territory: 2K square kilometers(iv) Creation must not reduce land area,

population or income of original municipality atthe time of said creation to less than minimumrequirements prescribed therein

POLITICAL LAW REVIEWER Chapter IX. MISCELLANEOUS and FINAL PROVISIONS

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Chapter IX. Miscellaneous and FinalProvisions

A. POSTING AND PUBLICATION OFORDINANCES WITH PENAL SANCTIONS

B. PENALTIES FOR VIOLATION OF TAXORDINANCES

C. PROVISIONS FOR IMPLEMENTATION

A. Posting and Publication ofOrdinances with Penal Sanctions

Sec. 511, LGC General rule: Ordinances with penal

sanctions shall be:(1) posted at prominent places in the

provincial capitol orcity/municipal/barangay hall for at least3 consecutive weeks; &

(2) published in a newspaper of generalcirculation (if available) within theterritorial jurisdiction of the LGU;

Exception: Barangay ordinances.

For publication, the secretary to thesanggunian shall transmit official copies ofordinances to the Official Gazette chiefexecutive office, within 7 days following theapproval of the ordinance. OG may publishordinances with penal sanctions for archivaland reference purposes.

Effectivity of ordinances with penalsanctions: On the day following itspublication, or at the end of the period ofposting, whichever occurs later.

Exception: Ordinance provides otherwise.

Effect of public officer/EE violating anordinance: Administrative disciplinary action,without prejudice to civil/criminal action.

B. Penalties for Violation of TaxOrdinances

Sec. 516, LGC LGU sanggunian is authorized to prescribe

penalties for violation of tax ordinances:(1) Fines should be at least P1,000 but not

more than P5,000; Exception: Sangguniang barangay

may prescribe a fine of at leastP100 but not more than P1,000.

(2) Imprisonment should be at least 1month but not more than 6 months.

Penalties are imposed at the discretion ofthe court.

C. Provisions for Implementation

Mandatory review every 5 years.

S521, LGC Congress shall review LGC at least once

every 5 years and as often as it may deemnecessary;

Primary purpose: Providing a moreresponsive and accountable localgovernment structure.

Transitory Provisions

LGC Sec. 538Deconcentration of Requisite Authority andPower 6 months after the effectivity of LGC, the

national government shall effect thedeconcentration of requisite authority andpowero to appropriate regional offices or field

offices of national agencies or offices(major functions are not devolved toLGUs)

LGC Sec. 539Tax Ordinances or Revenue Measures All existing tax ordinances or revenue

measures of LGUs shall continue to be inforce and effect after the effectivity of thisCode UNLESSo amended by the sanggunian concernedo or inconsistent with, or in violation of,

the provisions of LGC

POLITICAL LAW REVIEWER Chapter X. APPLICATION of LGC to Autonomous Regions and Other Entities

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Chapter X. Application of LGC toAutonomous Regions and Other Entities

I. AUTONOMOUS REGION IN MUSLIMMINDANAO

II. CORDILLERA ADMINISTRATIVE REGIONIII. THE METROPOLITAN MANILA

DEVELOPMENT AUTHORITY

LGC Sec. 526Application of this Code to Local GovernmentUnits in the Autonomous Regions LGC applies to all provinces, cities,

municipalities and barangays in theautonomous regions until such time as theregional government has enacted its ownLGC.

I. The Autonomous Region in MuslimMindanao

Article X Section 15 1987 Constitution: Thereshall be created autonomous regions in MuslimMindanao and in the Cordilleras consisting ofprovinces, cities, municipalities andgeographical areas sharing common anddistinctive historical and cultural heritage,economic and social structures and otherrelevant characteristics within the framework ofthis Constitution and the national sovereignty aswell as territorial integrity of the Republic of thePhilippines

Nature

The autonomous governments of Mindanaoinvolved in this case were created by PD1618, even before the 1987 Const. Theywere never meant to exercise the kind ofautonomy wherein the central governmentcommits an act of self-immolation. In fact,PD 1618 mandates that the “President shallhave the power of general supervision andcontrol over Autonomous Regions. [Limbonav. Mangelin (1989)]

The idea behind the Consti provisions forautonomous regions is to allow the separatedevelopment of peoples with distinctcultures and traditions. [Discomangcop vsDatumanong (2004)] The creation of autonomous regions

does not signify the establishment of asovereignty distinct from the Republic,as it can only be installed within theframework of the Consti and nationalsovereignty. [supra]

Regional autonomy refers to thegranting of basic internal governmentpowers to the people of a particular areaor region with LEAST control andsupervision from the centralgovernment. [supra]

NOTE: Under Sec. 16, Art. X of the Const.,“The President shall exercise generalsupervision over autonomous regions to ensurethat the laws are faithfully executed.”

Effect

Through the passage of the Organic Act of2001 (RA 9054), the devolved powers andfunctions under the LGC could now beapplied to the ARMM. This means that thepowers and functions of a ProvincialGovernor under the LGC are now enjoyed,as a minimum, by a Provincial Governor inthe ARMM. [Pandi v. CA (2002)]

II. Cordillera Administrative Region

EO. 220: Act Creating the CordilleraAdministrative RegionRA 6766: Organic Act of Cordillera AutonomousRegion

In the plebiscite held pursuant to RA 6766,the creation of the Cordillera AutonomousRegion was rejected by all the provincesand city of the Cordillera region exceptIfugao province. Hence, the CordilleraAutonomous region did not come to be.[Ordillo vs Comelec (1990)]

The Cordillera Administrative Region is not apublic corporation or a territorial and politicalsubdivision. It does not have a separatejuridical personality, unlike provinces, citiesand municipalities. Neither is it vested withthe powers that are normally granted topublic corporations, e.g. the power to sueand be sued, the power to own and disposeof property, the power to create its ownsources of revenue, etc.

The CAR was created primarily tocoordinate the planning and implementationof programs and services in the coveredareas. The creation of administrative regionsfor the purpose of expediting the delivery ofservices. [Cordillera Broad Coalition v. COA(1990)]


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III. The Metropolitan ManilaDevelopment Authority

RA 7924 (1995): An act creating the MMDA,defining its powers and functions, providingfunds therefor and for other purposes

Metro Manila is constituted into a specialdevelopment and administrative regionsubject to direct supervision of thePresident.

Cities covered: Caloocan Manila Mandaluyong Makati Pasay Pasig Quezon, and Muntinlupa (marikina? Taguig?)

Municipalities covered: Las Piñas Malabon Marikina Navotas Parañaque Pateros San Juan Taguig Valenzuela

The MMDA shall: perform planning, monitoring and

coordinative functions, and exercise regulatory and supervisory

authority over the delivery of metro-wideservices within Metro Manila

without diminution of the autonomy ofthe LGUs concerning purely localmatters.

Scope of MMDA Services

Services which have metro-wide impact and transcend

local political boundaries or

entail huge expenditures such that itwould not be viable for said services tobe provided by the individual LGUscomprising MM including:1. Development planning, investments

programming, and coordination andmonitoring of plan, program andproject implementation

2. Transport and traffic management,provision for the mass transportsystem and the institution of a

system to regulate road users, trafficengineering services and trafficeducation programs, including theinstitution of a single ticketingsystem in MM

3. Solid waste disposal andmanagement

4. Flood control and seweragemanagement

5. Urban renewal, zoning, and landuse planning, and shelter services

6. Health and sanitation, urbanprotection and pollution control

7. Public safety which include:

the formulation andimplementation of programs andpolicies to achieve public safety,especially preparedness forpreventive or rescue operationsduring times of calamities anddisasters,

coordination and mobilization ofresources and theimplementation of contingencyplans for the rehabilitation andrelief operations in coordinationwith national agenciesconcerned.

The MMDA is not a political unit of thegovernment. It has no police power. There isno grant of authority to enact ordinancesand regulations for the general welfare ofthe metropolis.

The MMDA is not even a "specialmetropolitan political subdivision" ascontemplated in Section 11, Article X of theConstitution. The creation of a "specialmetropolitan political subdivision" requiresthe approval by a majority of the votes castin a plebiscite in the political units directlyaffected. R. A. No. 7924 was not submittedto the inhabitants of Metro Manila in aplebiscite. The Chairman of the MMDA isnot an official elected by the people, butappointed by the President with the rank andprivileges of a cabinet member. In fact, partof his function is to perform such otherduties as may be assigned to him by thePresident, whereas in LGUs, the Presidentmerely exercises supervisory authority. Thisemphasizes the administrative character ofthe MMDA. [MMDA v. Bel Air VillageAssociation (2000).]

Sec. 5(f) of RA 7924 grants the MMDA theduty to enforce existing traffic rules andregulation. Thus, where there is a traffic law


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or regulation validly enacted by thelegislature or those agencies to whomlegislative powers have been delegated,MMDA is not precluded—and is in fact duty-bound—to confiscate and suspend orrevoke driver’s license in the exercise of itsmandate of transport and trafficmanagement, as well as administration andimplementation of all traffic enforcementoperations, traffic engineering services andtraffic education programs.

This is consistent with the ruling in Bel Airthat the MMDA is a development authorityfor the purpose of laying down policies andcoordinating with the various nationalgovernment agencies, people’sorganizations, NGOs and the private sector,which may enforce, but not enact,ordinances. [MMDA v. Garin]

- end of Local Government Law –- end of Political Law –

UP 2012 Political Law (Local Government Code)-1

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