LOCAL
GOVERNMENTS
Political Law
ATENEO CENTRAL
POLITICAL LAW
BAR OPERATIONS 2020/21
A. GENERAL PRINCIPLES
XIII. PUBLIC CORPORATIONS AND
LOCAL GOVERNMENT
TOPIC OUTLINE UNDER THE SYLLABUS:
XI. PUBLIC CORPORATIONS AND LOCAL
GOVERNMENT
A. GENERAL PRINCIPLES
1. Corporation and Classes of Corporations
2. Government
Owned
or
Controlled
Corporations
3. Municipal Corporations
B. PRINCIPLES OF LOCAL AUTONOMY
C. TERRITORIAL
AND
POLITICAL
SUBDIVISION
1. Province, City, Municipality, Barangay
2. Special Metropolitan Political Subdivision
3. Autonomous Regions
4. Settlement of Boundary Disputes
D. POWERS OF LOCAL GOVERNMENT UNITS
1. Police Power
a. Legislative Power
i. Requisites for Valid Ordinance
ii. Local Initiative and Referendum
2. Power of Eminent Domain (Expropriation)
3. Power of Taxation
4. Corporate and Other Powers
a. Municipal Liability
b. Reclassification of Lands
c. Closure and Opening of Roads
E. LOCAL ELECTIVE OFFICIALS
1. Qualifications
2. Disqualifications
3. Discipline
4. Recall
5. Vacancies and Succession
6. Term Limits
1. CORPORATION AND CLASSES OF
CORPORATION
Definition
A corporation is an artificial being created by
operation of law, having the right of succession and
the powers, attributes, and properties expressly
authorized by law or incidental to its existence.
[Section 2, Republic Act No. 11232, Revised
Corporation Code of the Philippines]
Corporations created by special laws or charters
shall be governed primarily by the provisions of the
special law or charter creating them or applicable
to them, supplemented by the provisions of this
Code, insofar as they are applicable. [Section 4,
Republic Act No. 11232, Revised Corporation
Code of the Philippines]
NOTE: A corporation organized under RA 11232 is
deemed o be a pri a e corpora ion nle i a
GOCC, i.e. majority of the outstanding capital stock
is owned by the government directly or through its
instrumentalities, as defined under RA 10149
[GOCC Governance Act].
Classes of Corporations
1) Private Corporations - It is one that is
incorporated under a general law (i.e. under the
Corporation Code for old corporations or under the
Revised Corporation Code for new corporations)
and which is established for private interest or
purpose. [Article 44(3), Civil Code]
NOTE:
The 1987 Constitution prohibits the
creation of a private corporation by a special
charter or law. Congress shall not, except by
general law, provide for the formation,
organization, or regulation of private corporations.
[Section 16, Article XII, 1987 Constitution]
2) Public Corporations - They are corporations,
institutions and entities for public interest or
purpose created by law; their personality begins
as soon as they have been constituted according
to law. [Article 44(2), Civil Code] These [public]
corporations are treated by law as agencies or
instrumentalities of the government which are not
subject to the tests of ownership or control and
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economic viability but to different criteria relating to
their public purposes/interests or constitutional
policies and objectives and their administrative
relationship to the government or any of its
Departments or Offices. [Boy Scouts of the
Philippines v. Commission on Audit, GR No.
177131, 2011]
The test of economic viability clearly does not apply
to public corporations dealing with governmental
functions (such as the Boy Scout of the
Philippines). The discussion (i.e. Record of the
1986 Constitutional Convention) conveys the
constitutional intent not to apply this constitutional
ban on the creation of public corporations where
the economic viability test would be irrelevant. The
said test would only apply if the corporation is
engaged in some economic activity or business
function for the government. [Boy Scouts of the
Philippines v. Commission on Audit, GR No.
177131, 2011]
3) Quasi-Public Corporations - They are private
corporations that render public service, supply
public wants, or pursue other eleemosynary
objectives. It must be stressed that a quasi-public
corporation is a species of private corporations, but
the qualifying factor is the type of service the former
renders to the public: if it performs a public service,
then it becomes a quasi-public corporation.
[Philippine Society for the Prevention of Cruelty to
Animals v. Commission on Audit, GR No. 169752,
25 September 2007 citing Ruperto G. Martin,
Public Corporations 1-3 (1983)]
Public v. Private v. Quasi-Public
PUBLIC
PRIVATE
QUASI-PUBLIC
Corporations,
institutions
and entities
for public
interest or
purpose
created by
law (or by
authority of
law).
Incorporated
under a
general law
and which is
established
for private
interest or
purpose.
Private
corporations that
render public
service, supply
public wants, or
pursue other
eleemosynary
objectives (ex.
Meralco, PLDT)
4) Municipal Corporations - It is a government
entity recognized, supported and utilized by the
National Government as a part of its government
machinery and functions; a municipal government
actually functions as an extension of the national
government and, therefore, it is an instrumentality
of the latter. [Surigao Electric Co. v. Municipality of
Surigao, GR No. L-22766, 30 August 1968]
2. GOVERNMENT OWNED OR
CONTROLLED CORPORATIONS (GOCC)
CONSTITUTIONAL RULE: Government-owned or
controlled corporations may be created or
established by special charters in the interest of the
common good and subject to the test of economic
viability. [Section 16, Article XII, 1987 Constitution]
The said constitutional provision should not be
construed so as to prohibit the creation of public
corporations or
a
corporate
agency
or
instrumentality of the government intended to
serve a public interest or purpose, which should not
be measured on the basis of economic viability, but
according to the public interest or purpose it serves
as envisioned by paragraph (2), of Article 44 of
the Civil Code and the pertinent provisions of
the Administrative Code of 1987. [Boy Scouts of
the Philippines v. Commission on Audit, GR No.
177131, 2011]
DEFINITIONS
Government-Owned or -Controlled Corporation
(GOCC) refers to any agency organized as a stock
or nonstock corporation, vested with functions
relating to public needs whether governmental or
proprietary in nature, and owned by the
Government of the Republic of the Philippines
directly or through its instrumentalities either wholly
or, where applicable as in the case of stock
corporations, to the extent of at least a majority of
its outstanding capital stock: Provided, however,
That for purposes of this Act, the term "GOCC"
shall include GICP/GCE and GFI as defined herein.
[Section 3(o), Republic Act No. 10149, GOCC
Governance Act of 2011]
Government Instrumentalities with Corporate
Powers (GICP)/Government Corporate Entities
(GCE) refer to instrumentalities or agencies of the
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government, which are neither corporations nor
agencies integrated within the departmental
framework, but vested by law with special functions
or jurisdiction, endowed with some if not all
corporate powers, administering special funds, and
enjoying operational autonomy usually through a
charter including, but not limited to, the following:
the Manila International Airport Authority (MIAA),
the Philippine Ports Authority (PPA), the Philippine
Deposit Insurance Corporation (PDIC), the
Metropolitan Waterworks and Sewerage System
(MWSS), the Laguna Lake Development Authority
(LLDA), the Philippine Fisheries Development
Authority (PFDA), the Bases Conversion and
Development Authority (BCDA), the Cebu Port
Authority (CPA), the Cagayan de Oro Port
Authority, the San Fernando Port Authority, the
Local Water Utilities Administration (LWUA) and
the Asian Productivity Organization (APO).
[Section 3(n), Republic Act No. 10149, GOCC
Governance Act of 2011]
See Also: Instrumentality refers to any agency of
the National Government, not integrated within the
department framework vested within special
functions or jurisdiction by law, endowed with some
if not all corporate powers, administering special
funds, and enjoying operational autonomy, usually
through a charter. This term includes regulatory
agencies, chartered institutions and governmentowned or controlled corporations. [Section 2(10),
Introductory Provisions, Administrative Code of
1987]
NOTE: By being GICP/GCE/instrumentalities, they
are exempt from the real property tax imposed by
LGUs, such as, but not limited to, the following:
1) Manila International Airport Authority [MIAA v.
Court of Appeals, GR No. 155650, 20 July 2006;
MIAA v. City of Pasay, GR No. 163072, 2 April
2009] and Macta-Cebu International Airport
Authority [MCIAA v. City of Lapu-Lapu, GR No.
181756, 2015] NOTE: SC used definition of
Instrumentality under the Administrative Code
of 1987.
2) Light Rail Transit Authority [LRTA v. Quezon
City, GR No. 221626, 2019] NOTE: SC used the
GICP definition under RA 10149.
3) Philippine Heart Center [Phil. Heart Center v.
QC, GR No. 225409, 2020] NOTE: SC used the
GICP definition under RA 10149.
POLITICAL LAW
Government Financial Institutions (GFIs) refer
to financial institutions or corporations in which the
government directly or indirectly owns majority of
the capital stock and which are either: (1)
registered with or directly supervised by the
Bangko Sentral ng Pilipinas; or (2) collecting or
transacting funds or contributions from the public
and places them in financial instruments or assets
such as deposits, loans, bonds and equity
including, but not limited to, the Government
Service Insurance System and the Social Security
System. [Section 3(m), Republic Act No. 10149,
GOCC Governance Act of 2011]
Chartered GOCC refers to a GOCC, including
Government Financial Institutions, created and
vested with functions by a special law. [Section 3(f),
Republic Act No. 10149, GOCC Governance Act of
2011]
Non-chartered GOCC refers to a GOCC
organized and operating under Batas Pambansa
Bilang 68, or "The Corporation Code of the
Philippines." [Section 3(p), Republic Act No.
10149, GOCC Governance Act of 2011]
Related Corporation refers to a subsidiary or
affiliate of a GOCC. [Section 3(w), Republic Act No.
10149, GOCC Governance Act of 2011]
Subsidiary refers to a corporation where at least a
majority of the outstanding capital stock is owned
or controlled, directly or indirectly, through one or
more intermediaries, by the GOCC. [Section 3(z),
Republic Act No. 10149, GOCC Governance Act of
2011] NOTE: Hence, a GOCC as defined under RA
10149.
Affiliate refers to a corporation fifty percent (50%)
or less of the outstanding capital stock of which is
owned or controlled, directly or indirectly, by the
GOCC. [Section 3(a), Republic Act No. 10149,
GOCC Governance Act of 2011] NOTE: Hence,
not a GOCC as defined under RA 10149.
Government Agency refers to any of the various
units of the Government of the Republic of the
Philippines, including a department, bureau, office,
instrumentality or GOCC, or a local government or
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a distinct unit therein. [Section 3(k), Republic Act
No. 10149, GOCC Governance Act of 2011]
A GOCC created through a special charter must
meet two conditions namely: (Twin-Test)
1. it must be created or established by special
charters in the interest of the common good;
[Section 16, Article XII, 1987 Constitution]
and
2. it must be subject to the test of economic
viability. [Section 16, Article XII, 1987
Constitution].
Administrative Relationship of a GOCC
Government-owned or controlled corporations
shall be attached to the appropriate department
with which they have allied functions, as hereinafter
provided, or as may be provided by executive
order, for policy and program coordination and for
general supervision provided in pertinent
provisions of this Code.
In order to fully protect the interests of the
government in government-owned or controlled
corporations, at least one-third (1/3) of the
members of the Boards of such corporations
should either be a Secretary, or Undersecretary, or
Assistant Secretary. [Section 42, Book IV, Chapter
IX, Administrative Code of 1987]
Doctrines:
1) Local Water Districts. A local water district is a
government-owned and controlled corporation with
special charter since it is created pursuant to a
special law. PD 198 constitutes the special charter
by virtue of which local water districts exist. Unlike
private corporations that derive their legal
existence and power from the Corporation Code,
water districts derive their legal existence and
power from PD 198. [Feliciano v. Gison, G.R.
165641, 2010].
2) GOCC performing proprietary functions not
exempt from appeal bond. As a rule, the
government and its attached agencies are
exempted from appeal bonds because it is
presumed that the State is always solvent. This
exemption however does not apply to GOCCs.
Th , hile a GOCC majori
ockholder, he
State, will always be presumed solvent, the
presumption does not necessarily extend to the
GOCC itself. However, when a GOCC performs a
governmental function there is the assurance that
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the government will necessarily fund its primary
functions. Thus, a GOCC that is sued in relation to
its governmental functions may be, under
appropriate circumstances, exempted from the
payment of appeal fees. In this case, BBC is a
GOCC performing not a governmental function but
a proprietary function which is to engage in
commercial television broadcasting. As such, it is
not exempted from appeal bonds [Banahaw
Broadcasting Corporation v. Pacana, G.R. 171673,
2011].
3) Radio Philippines Network, Inc. (RPN) is not
a GOCC. Under the Administrative Code of 1987,
a GOCC is that which refers to any agency
organized as a stock or non- stock corporation
vested with functions relating to public needs
whether governmental or proprietary in nature, and
owned by the government directly or indirectly
through its instrumentalities either wholly, or where
applicable as in the case of stock corporations, to
the extent of at least 51% of its capital stock.
Although there is a controversy as to the amount of
shares
transferred
to
the
government,
administrative agencies, such as the PCGG and
Office of the President agree, that RPN is not a
GOCC. Considering that the construction of a
statute given by administrative agencies deserves
respect, the uniform administrative constructions of
the relevant aforementioned laws defining what are
GOCCs as applied to RPN is highly persuasive.
[Carandang v. Desierto, G.R. 148076, 2011].
NOTE: This definition of a GOCC was still under
the Administrative Code of 1987 and not under
RA 10149.
4) Veterans Federation of the Philippines (VFP)
is a public corporation given its sovereign
functions. As such, it can be placed under the
control and supervision of the Secretary of National
Defense, who consequently has the power to
conduct an extensive management audit of
petitioner corporation. The functions of VFP
enshrined in Section 4 of Rep. Act No. 2640 should
most certainly fall within the category of sovereign
functions. The protection of the interests of war
veterans is not only meant to promote social
justice, but is also intended to reward patriotism. All
of the functions in Section 4 concern the well-being
of war veterans, our countrymen who risked their
lives and lost their limbs in fighting for and
defending our nation. [Veterans Federation of the
Philippines v. Reyes, GR No. 155027, 2006]
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5) The BSP (Boy Scout of the Philippines) is a
public corporation or a government agency or
instrumentality with juridical personality, which
does not fall within the constitutional
prohibition in Article XII, Section 16,
notwithstanding the amendments to its charter.
Not all corporations, which are not government
owned or controlled, are ipso facto to be
considered private corporations as there exists
another distinct class of corporations or chartered
institutions which are otherwise known as "public
corporations." [Boy Scouts of the Philippines v.
Commission on Audit, GR No. 177131, 2011]
6) Philippine National Red Cross (PNRC) is Sui
Generis. The SC ruled that the PNRC is a private
corporation even if incorporated under a special
law (RA 95). In 2009, the SC initially declared
PNRC char er a
ncon i ional, b in 2011,
he SC modified i r ling and declared PNRC
charter as being constitutional. The structure of
the PNRC is sui generis, being neither strictly
private nor public in nature. R.A. No. 95 remains
valid and constitutional in its entirety. [Liban, et al.
v. Gordon, G.R. 175352, 2011]
7) MECO is not a GOCC or government
instrumentality. It is a sui generis private entity
especially entrusted by the government with the
facilitation of unofficial relations with the people in
Taiwan without jeopardizing the country's faithful
commitment to the One China policy of the PROC.
However, despite its non-governmental character,
the MECO handles government funds in the form
of the "verification fees" it collects on behalf of the
DOLE and the "consular fees" it collects under
Section 2 (6) of EO No. 15, s. 2001 from the
exercise of its delegated consular functions.
Hence, under existing laws, the accounts of the
MECO pertaining to its collection of such
"verification fees" and "consular fees" should be
audited by the COA. [Funa v. Manila Economic and
Cultural Office, GR No. 193462, 2014]
3. MUNICIPAL CORPORATIONS
Municipal corporations are now commonly
known as local governments. They are the bodies
politic established by law partly as agencies of the
State to assist in the civil governance of the
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country. Their chief purpose has been to regulate
and administer the local and internal affairs of the
cities, municipalities or districts. They are legal
institutions formed by charters from the sovereign
power,
whereby
the
populations
within
communities living within prescribed areas have
formed themselves into bodies politic and
corporate, and assumed their corporate names
with the right of continuous succession and for the
purposes and with the authority of subordinate selfgovernment and improvement and the local
administration
of
the
affairs
of
the
State. [Mandanas v. Ochoa, Jr., G.R. Nos. 199802
& 208488, [July 3, 2018] citing Black's Law
Dictionary, 6th ed., Nolan, J., & Nolan-Haley, J.,
West Group, St. Paul, Minnesota, 1990, p. 1017]
Elements (LITC):
1. A Legal creation or incorporation;
2. A Corporate name by which the artificial
personality or legal entity is known in which
all corporate acts are done
3. Inhabitants constituting the population
4. Territory
[Public Corporations, Ruperto G. Martin, 1985].
M
D
R
Municipal corporations, being the mere creatures
of the State, are subject to the will of Congress,
their creator. Their continued existence and the
grant of their powers are dependent on the
discretion of Congress. On this matter, Judge John
F. Dillon of the State of Iowa in the United States of
America enunciated in Merriam v. Moody's
Executors, 25 Iowa 163 (1868), the rule of statutory
construction that came to be oft-mentioned as
Dillon's Rule.
The formulation of Dillon's Rule has since
undergone slight modifications. Judge Dillon
himself introduced some of the modifications
through his post-Merriam writings with the
objective of alleviating the original formulation's
harshness. The word fairly was added to the
second proviso; the word absolutely was deleted
from
the
third
proviso;
and
the
words reasonable and substantial were added to
the fourth proviso, thusly: x x x second, those
necessarily or fairly implied in or incident to the
powers expressly granted; third, those essential to
x x x. Any fair, reasonable, doubt.
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The modified Dillon's Rule has been followed in this
jurisdiction, and has remained despite both the
1973 Constitution and the 1987 Constitution
mandating autonomy for local governments. The
LGC has tempered the application of Dillon's Rule
in the Philippines by providing a norm of
interpretation in favor of the LGUs in its Section 5
(a). [Mandanas v. Ochoa, Jr., G.R. Nos. 199802 &
208488, 2018]
Th , he Modified Dillon R le i no
a ed a
follows: [A] municipal corporation possesses and
can exercise the following powers and no others:
First, those granted in express words; second,
those necessarily OR FAIRLY implied or incident
to the powers expressly granted; third, those
essential to the declared objects and purposes of
the corporation-not simply convenient but
indispensable; fourth, any fair, REASONABLE,
SUBSTANTIAL doubt as to the existence of a
power shall be interpreted in favor of the local
government unit concerned.
Nature and Functions (SID)
1. Subordinate branch of the government of the
state.
2. Instrumentality of the state administration.
3. Exercises Delegated powers of government
Dual
Nature/Character
of
Municipal
Corporations
Public/Governmental: it acts as an agent of the
State for the government of the territory and the
inhabitants within the municipal limits. It exercises
by delegation a part of the sovereignty of the State.
It includes the use of legislative, executive and
judicial powers.
Private/Proprietary: it acts in a similar category as
a business corporation performing functions not
strictly governmental or political, those exercised
for the special benefit and advantage of the
community, it is in this character that they are
acting as a separate entity for their own purposes
and not as a subdivision of the State
Types of Municipal Corporations
1) De Jure - one created by law (Congress) or by
authority of law (local legislative council). [The
Local Government Code of 1991 Annotated, R.B.
Rodriguez, 2008.]
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2) De Facto one so defectively created as not to
be a de jure corporation, but nevertheless the
result of a bona fide attempt to incorporate under
existing statutory authority, coupled with the
exercise of corporate powers, and recognized by
the courts as such on the ground of public policy in
all proceedings except a direct attack by the state
questioning its corporate existence. [Daryl Bretch
M. Largo, The Essentials of Local Government
Law in the Philippines 78, 2020 citing Eugene
McQuillin, The Law of Municipal Corporations, Vol.
1 (2nd Ed.)]
Requisites of a de facto municipal corporation
(GLAC)
1. Valid Law authorizing incorporation
2. Attempt in Good faith to organize under it
3. Colorable compliance with law
4. Assumption of corporate powers
[Municipality of Malabang v. Benito, G.R. No. L28113, 1969]
Generally, an inquiry into the legal existence of a
municipality is reserved to the State in a
proceeding for quo warranto or other direct
proceeding, and that only in a few exceptions may
a private person exercise this function of
government. But the rule disallowing collateral
attacks applies only where the municipal
corporation is at least a de facto corporation. For
where it is neither a corporation de jure nor de
facto, but a nullity, the rule is that its existence may
be questioned collaterally or directly in any action
or proceeding by any one whose rights or interests
are affected thereby, including the citizens of the
territory incorporated unless they are estopped by
their conduct from doing so. [Municipality of
Malabang v. Benito, G.R. No. L-28113, 1969]
3) By Prescription one where it is shown that the
community has claimed and exercised corporate
functions, with the knowledge and acquiescence of
the legislature, and without interruption or objection
for period long enough to afford title by
prescription. These municipal corporations have
exercised their powers for a long period without
objection on the part of the government that
although no charter is in existence, it is presumed
that they were duly incorporated in the first place
and that their charters had been lost. when no
charter or act of incorporation of a town can be
found, it may be shown to have claimed and
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exercised the powers of a town with the knowledge
and assent of the legislature, and without objection
or interruption for so long a period as to furnish
evidence of a prescriptive right. What is clearly
essential is a factual demonstration of the
continuous exercise by the municipal
corporation of its corporate powers, as well as
the acquiescence thereto by the other
instrumentalities of the state. [Sultan Osop B.
Camid v. Office of the President , G.R. No. 161414,
2005]
Requisites of a municipal corporation by
prescription (CLAW)
1. Community claimed and exercised corporate
functions
2. With knowledge and Acquiescence of the
Legislature
3. Without interruption or objection
4. For a period Long enough to afford it title by
prescription
[Sultan Osop B. Camid v. Office of the President ,
G.R. No. 161414, 2005]
How validity attacked
The validity of the incorporation and corporate
existence of a municipal corporation may not be
attacked collaterally. It may only be challenged by
the State in direct proceedings such as quo
warranto, which has a prescriptive period of 5 years
from the time the act complained of was committed.
[Municipality of San Narciso, Quezon v. Hon.
Antonio v. Mendez, G.R. No. 103702, 1994]
B. PRINCIPLES OF LOCAL AUTONOMY
Constitutional Rules and Principles:
1) The State shall ensure the autonomy of local
governments. [Section 25, Article II, 1987
Constitution]
2) The territorial and political subdivisions shall
enjoy local autonomy. [Section 2, Article X, 1987
Constitution]
Section 2, Art. X of the Constitution provides that
LGUS
hall enjo local a onom . Thi i
decentralization of administration and not
decentralization of power. (Limbona v. Conte
Mangelin, G.R. 80391, 1989)
POLITICAL LAW
accountable local government structure instituted
through a system of decentralization. [Section 3,
Article X, 1987 Constitution]
4) The President of the Philippines shall exercise
general supervision over local governments.
[Section 4, Article X, 1987 Constitution]
5) Each local government unit shall have the power
to create its own sources of revenues and to levy
taxes, fees, and charges subject to such guidelines
and limitations as the Congress may provide,
consistent with the basic policy of local autonomy.
[Section 5, Article X, 1987 Constitution]
6) Local government units shall have a just share,
as determined by law, in the national taxes which
shall be automatically released to them. [Section 6,
Article X, 1987 Constitution]
7) Local governments shall be entitled to an
equitable share in the proceeds of the utilization
and development of the national wealth within their
respective areas, in the manner provided by law,
including sharing the same with the inhabitants by
way of direct benefits. [Section 7, Article X, 1987
Constitution]
Declaration of Policies
The territorial and political subdivisions of the State
shall enjoy genuine and meaningful local autonomy
to enable them to attain their fullest development
as self-reliant communities and make them more
effective partners in the attainment of national
goals.
The State shall provide for a more responsive and
accountable local government structure instituted
through a system of decentralization whereby local
government units shall be given more powers,
authority, responsibilities, and resources.
The State shall ensure the accountability of local
government units through the institution of effective
mechanisms of recall, initiative and referendum.
All national agencies are required to conduct
periodic consultations with the appropriate LGUs,
NGO , people
organi a ion
and o her
concerned sectors before any project or program is
implemented in their respective jurisdictions.
[Sec.2,LGC]
Unitary Form of Government
3) The Congress shall enact a local government
code which shall provide for a more responsive and
Ours is still a unitary form of government, not a
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federal state. Being so, any form of autonomy
granted to local governments will necessarily be
limited and confined within the extent allowed by
the central authority. Besides, the principle of local
autonomy under the 1987 Constitution simply
means "decentralization." [Lina, Jr. v. Paño, G.R.
No. 129093, August 30, 2001, 416 PHIL 438-451
citing Basco v. PAGCOR, GR No 91649, 1991]
Thus, the principle of local autonomy under the
Con i ion impl mean decen rali a ion . I
does not make the local government sovereign
within a State or an imperium in imperio. [Basco v.
PAGCOR, GR No 91649, May 14, 1991]
3 Facets of Local Autonomy
Local autonomy means a more responsive and
accountable local government structure instituted
through a system of decentralization.
[Villafuerte, Jr. v. Robredo, G.R. No. 195390,
[December 10, 2014], 749 PHIL 841-870 citing
Ganzon v. Court of Appeals, G.R. No. 93252,
August 5, 1991] Thus:
1) FISCAL AUTONOMY. Fiscal autonomy means
that local governments have the power to create
their own sources of revenue in addition to their
equitable share in the national taxes released by
the National Government, as well as the power to
allocate their resources in accordance with their
own priorities. Such autonomy is as indispensable
to the viability of the policy of decentralization as
the other. [Mandanas v. Ochoa, Jr., G.R. Nos.
199802 & 208488, July 3, 2018 citing Pimentel v.
Aguirre, G.R. No. 132988, 19 July 2000] It extends
to the preparation of their budgets, and local
officials in turn have to work within the constraints
thereof. [Villafuerte, Jr. v. Robredo, G.R. No.
195390, December 10, 2014 citing Pimentel v.
Aguirre, G.R. No. 132988, 19 July 2000]
2) ADMINISTRATIVE AUTONOMY.
The
constitutional guarantee of local autonomy in the
Constitution Art. X, Sec. 2 refers to the
administrative autonomy of local government units
or, cast in more technical language, the
decentralization of government authority. It does
not make local governments sovereign within the
State. Administrative autonomy may involve
devolution of powers, but subject to limitations like
following national policies or standards, and those
provided by the Local Government Code, as the
structuring of local governments and the allocation
of powers, responsibilities, and resources among
the different local government units and local
POLITICAL LAW
officials have been placed by the Constitution in the
hands of Congress under Section 3, Article X of the
Constitution. [League of Provinces of the
Philippines vs. DENR, G.R. No. 175368, April 11,
2013]
3) POLITICAL AUTONOMY. In Cordillera Broad
Coalition v. Commission on Audit, the Court, with
the same composition, ruled without any dissent
that the creation of autonomous regions
contemplates the grant of political autonomy
an
autonomy which is greater than the administrative
autonomy granted to local government units. It held
that "the constitutional guarantee of local autonomy
in the Constitution (Art. X, Sec. 2) refers to
administrative autonomy of local government units
or, cast in more technical language, the
decentralization of government authority. . . . On
the other hand, the creation of autonomous regions
in Muslim Mindanao and the Cordilleras, which is
peculiar to the 1987 Constitution, contemplates the
grant
of political autonomy and
not
just
administrative
autonomy
to
these
regions." [Disomangcop v. Datumanong, G.R. No.
149848, [November 25, 2004], 486 PHIL 398-451
citing Cordillera Broad Coalition v. COA, GR No.
79956, January 29, 1990]
Doctrines:
1) Self-Reliant Communities. The commitment of
the Constitution to
the
policy
of local autonomy which is intended to provide the
needed impetus and encouragement to the
development of our local political subdivisions as
"self-reliant communities." In the words of
Jefferson, "Municipal corporations are the small
republics from which the great one derives its
strength." [Philippine Gamefowl Commission v.
Intermediate Appellate Court, G.R. Nos. 72969-70,
December 17, 1986]
2) Interdependence
with the National
Government. Autonomy is not meant to end the
relation of partnership and interdependence
between the central administration and LGUs, or
otherwise, to usher in a regime of federalism.
[Ganzon vs. Court of Appeals, G.R. No. 93252,
August 5, 1991]
3) National Government intervention consistent
with national goals. Local autonomy does not
rule out any manner of national government
intervention by way of supervision, in order to
ensure that local programs, fiscal and otherwise,
are consistent with national goals. [Villafuerte, Jr.
v. Robredo, G.R. No. 195390, December 10, 2014
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citing Pimentel v. Aguirre, G.R. No. 132988, 19 July
2000]
4) No undue interference by the National
Government.
The objective of "self-reliant
comm ni ie
hro gh local a onom co ld be
blunted by undue interference by the national
government in purely local affairs which are best
resolved by the officials and inhabitants of such
political units. [Belgica v. Ochoa, G.R. No. 208566,
19 November 2013 citing Philippine Gamefowl
Commission v. IAC, G.R. No. 72969-70, December
17, 1986]
NOTE: Thus, the 2013 PDAF Article as well as all
other similar forms of Congressional Pork Barrel is
deemed unconstitutional insofar as individual
legislators (as national officials) are authorized to
intervene (by overriding or duplicating local
programs,
policies,
and
resolutions)
in
purely local matters
and
thereby
subvert
genuine local autonomy. [Belgica, et..al., v. Ochoa,
et. al., G.R. 208566, November 19, 2013]
5) Power to Streamline and Organize. Local
autonomy also grants local governments the power
to streamline and reorganize. This power is inferred
from Section 76 of the Local Government Code on
organizational structure and staffing pattern, and
Section 16 otherwise known as the general welfare
clause. [City of General Santos vs. COA, G.R. No.
199439, April 22, 2014]
NOTE: There shall be a continuing mechanism to
enhance local autonomy not only by legislative
enabling acts but also by administrative and
organizational reforms [Section 3[h], 1991 LGC]
6) Statutory Right of LGUs. Executive agencies
like the DBM cannot disregard statutory right of
LGUs to nominate local officials for appointment.
[San Juan vs. Civil Service Commission, G.R. No.
92299, 1991]
7) National Priority Programs. Under Sec. 17 of
the LGC is that, unless an LGU is particularly
designated as the implementing agency, it has no
power over a program for which funding has been
provided by the national government under the
annual general appropriations act, even if the
program involves the delivery of basic services
within the jurisdiction of the LGU. A complete
relinquishment of central government powers on
the matter of providing basic facilities and services
cannot be implied as the Local Government Code
itself weighs against it. xxx Local autonomy is not
POLITICAL LAW
absolute. The national government still has the say
when it comes to national priority programs which
the local government is called upon to implement.
[Imbong v. Ochoa, G.R. No. 204819, 2014] NOTE:
Applies also to the BARMM.
8) Favoring Local Autonomy. Where a law is
capable of two interpretations, one in favor of
centralized power and the other beneficial to local
autonomy, the scales must be weighed in favor of
autonomy. [San Juan vs. Civil Service
Commission, G.R. No. 92299, 1991]
9) Liberal Construction. Consistent with the
declared policy to provide local government units
genuine and meaningful local autonomy, contiguity
and minimum land area requirements for
prospective local government units should be
liberally construed in order to achieve the desired
results (Navarro vs. Ermita, G.R. No. 180050,
2011).
10) Residual Power. A local government unit may
exercise its residual power to tax when there is
neither a grant nor a prohibition by statute. [Alta
Vista Golf and Country Club vs. City of Cebu, G.R.
No. 180235, 2016]
Decentralization
Power vs. Administration
The constitutional mandate to ensure local
autonomy refers to decentralization. In its broad or
general sense, decentralization has two forms in
the Philippine setting, namely: the decentralization
of power and the decentralization of administration.
1)
Decentralization
of
Power.
The
decentralization of power involves the abdication of
political power in favor of the autonomous LGUs as
to grant them the freedom to chart their own
destinies and to shape their futures with minimum
intervention from the central government. This
amounts
to self-immolation because
the
autonomous LGUs thereby become accountable
not to the central authorities but to their
constituencies.
2) Decentralization of Administration. On the
other hand, the decentralization of administration
occurs when the central government delegates
administrative powers to the LGUs as the means of
broadening the base of governmental powers and
of making the LGUs more responsive and
accountable in the process, and thereby ensure
their
fullest
development
as
self-reliant
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communities and more effective partners in the
pursuit of the goals of national development and
social progress. This form of decentralization
further relieves the central government of the
burden of managing local affairs so that it can
concentrate on national concerns. [Mandanas v.
Ochoa, Jr., G.R. Nos. 199802 & 208488, July 3,
2018]
Decentralization through 2 LGU Groups:
1) The decentralization of power has been given to
the regional units (namely, the Autonomous
Region for Muslim Mindanao [ARMM] and the
constitutionally-mandated Cordillera Autonomous
Region [CAR]).
The regional autonomy of the ARMM and the CAR
aims to permit determinate groups with common
traditions and shared social-cultural characteristics
to freely develop their ways of life and heritage, to
exercise their rights, and to be in charge of their
own affairs through the establishment of a special
governance
regime
for
certain
member
communities who choose their own authorities
from within themselves, and exercise the
jurisdictional authority legally accorded to them to
decide their internal community affairs.
It is to be underscored, however, that the
decentralization of power in favor of the regional
units is not unlimited but involves only the powers
enumerated by Section 20, Article X of the 1987
Constitution and by the acts of Congress. For, with
various powers being devolved to the regional
units, the grant and exercise of such powers should
always be consistent with and limited by the 1987
Constitution and the national laws. In other words,
the powers are guardedly, not absolutely,
abdicated by the National Government.
NOTE: Sec. 20, Art. X of the 1987 Constitution
provides: Within its territorial jurisdiction and
subject to the provisions of this Constitution and
national laws, the organic act of autonomous
regions shall provide for legislative powers over:
(1) Administrative organization;
(2) Creation of sources of revenues;
(3) Ancestral domain and natural resources;
(4) Personal, family, and property relations;
(5) Regional urban and rural planning
development;
(6) Economic, social, and tourism development;
(7) Educational policies;
(8) Preservation and development of the cultural
heritage; and
POLITICAL LAW
(9) Such other matters as may be authorized by law
for the promotion of the general welfare of the
people of the region.
Illustrative of the limitation is what transpired
in Sema v. Commission on Elections, where the
Court struck down Section 19, Article VI of
Republic Act No. 9054 (An Act to Strengthen and
Expand the Organic Act for the Autonomous
Region in Muslim Mindanao, Amending for the
Purpose Republic Act No. 6734, entitled "An Act
Providing for the Autonomous Region in Muslim
Mindanao," as Amended) insofar as the provision
granted to the ARMM the power to create
provinces and cities, and consequently declared as
void Muslim Mindanao Autonomy Act No. 201
creating the Province of Shariff Kabunsuan for
being contrary to Section 5, Article VI and Section
20, Article X of the 1987 Constitution, as well as
Section 3 of the Ordinance appended to the 1987
Constitution. The Court clarified therein that only
Congress could create provinces and cities. This
was because the creation of provinces and cities
necessarily entailed the creation of legislative
districts, a power that only Congress could exercise
pursuant to Section 5, Article VI of the 1987
Constitution and Section 3 of the Ordinance
appended to the Constitution; as such, the ARMM
would be thereby usurping the power of Congress
to create legislative districts and national
offices. [Mandanas v. Ochoa, Jr., G.R. Nos.
199802 & 208488, July 3, 2018]
2) The other group of LGUs (i.e., provinces, cities,
municipalities and barangays) enjoy the
decentralization of administration.
The provinces, cities, municipalities and barangays
are given decentralized administration to make
governance at the local levels more directly
responsive and effective. In turn, the economic,
political and social developments of the smaller
political units are expected to propel social and
economic growth and development. [Mandanas v.
Ochoa, Jr., G.R. Nos. 199802 & 208488, July 3,
2018]
4 Categories of Decentralization
As a system of transferring authority and power
from the National Government to the LGUs,
decentralization in the Philippines may be
categorized into four, namely:
1) Political Decentralization or Devolution.
Political decentralization or devolution occurs when
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there is a transfer of powers, responsibilities, and
resources from the central government to the LGUs
for the performance of certain functions. It is a more
liberal form of decentralization because there is an
actual transfer of powers and responsibilities. It
aims to grant greater autonomy to the LGUs in
cognizance of their right to self-government, to
make them self-reliant, and to improve their
administrative and technical capabilities. NOTE:
Do not confuse with Decentralization of Power.
As used in the Local Government Code, the term
"devolution" refers to the act by which the national
government confers power and authority upon the
various local government units to perform specific
functions and responsibilities. [Sec. 17(e), LGC]
The devolution contemplated in the Local
Government Code shall include the transfer to local
government units of the records, equipment, and
other assets and personnel of national agencies
and offices corresponding to the devolved powers,
functions, and responsibilities. [Sec. 17(i), LGC]
DECENTRALIZATION
OF POWER
The decentralization of
power involves the
abdication of political
power in favor of the
autonomous LGUs as
to grant them the
freedom to chart their
own destinies and to
shape their futures with
minimum intervention
from
the
central
government.
NOTE:
Not absolute; subject
to Constitution. THUS:
1)
Abdication
political power.
of
2)
Limited
to
autonomous regions
(i.e. BARMM);
DEVOLUTION
(POLITICAL
DECENTRALIZATION)
When there is a
transfer of powers,
responsibilities,
and
resources from the
central government to
the LGUs for the
performance of certain
functions. THUS:
1)
Transfer
is
SPECIFIC to certain
functions,
powers,
responsibilities,
and
resources.
(e.g. a
public
hospital
devolved from NG to
LGU);
2) Applied to all LGUs
except
regional
autonomies (since they
have political power
already
through
Decentralization
of
Power that includes
devolution).
2)
Administrative
Decentralization
or
Deconcentration. Administrative decentralization
or deconcentration involves the transfer of
functions or the delegation of authority and
responsibility from the national office to the regional
and local offices. Consistent with this concept, the
LGC has created the Local School Boards, the
Local Health Boards and the Local Development
Councils, and has transferred some of the authority
from the agencies of the National Government, like
the Department of Education and the Department
of Health, to such bodies to better cope up with the
needs of particular localities.
3) Fiscal Decentralization. Fiscal decentralization
means that the LGUs have the power to create
their own sources of revenue in addition to their just
share in the national taxes released by the National
Government. It includes the power to allocate their
resources in accordance with their own priorities. It
thus extends to the preparation of their budgets, so
that the local officials have to work within the
constraints of their budgets.
4) Policy or Decision-making Decentralization.
Lastly, policy or decision-making decentralization
exists if at least one sub-national tier of government
has exclusive authority to make decisions on at
least one policy issue (ex. Regional Development
Councils). [Mandanas v. Ochoa, Jr., G.R. Nos.
199802 & 208488, July 3, 2018]
P
P
G
a S
To safeguard the state policy on local autonomy,
the Constitution confines the power of the
President over LGUs to mere supervision. "The
President exercises 'general supervision' over
them, but only to 'ensure that local affairs are
administered according to law.' He has no control
over their acts in the sense that he can substitute
their judgments with his own." Thus, Section 4,
Article X of the Con i ion, a e : Sec ion 4. The
President of the Philippines shall exercise general
supervision over local governments. Provinces
with
respect
to
component
cities
and
municipalities, and cities and municipalities with
respect to component barangays, shall ensure that
the acts of their component units are within the
scope of their prescribed powers and function .
[Villafuerte, Jr. v. Robredo, G.R. No. 195390, 2014]
citing Limbona v. Mangelin, G.R. No. 80391, 1989]
Power of General Supervision vs. Power of
Control
1) GENERAL SUPERVISION. The President's
power of general supervision means the power of
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a superior officer to see to it that subordinates
perform their functions according to law.
Doctrines:
a) Power to Investigate and Discipline. LGUs are
still under the supervision of the President and
maybe held accountable for malfeasance or
violations of existing laws. "Supervision is not
incompatible with discipline. And the power to
discipline and ensure that the laws be faithfully
executed must be construed to authorize the
President to order an investigation of the act or
conduct of local officials when in his opinion the
good of the public service so requires." Clearly
then, the President's power of supervision is not
antithetical to investigation and imposition of
sanctions. [Villafuerte, Jr. v. Robredo, G.R. No.
195390, 2014 citing Hon. Joson v. Exec. Sec.
Torres, G.R. No. 131255, 1998]
b) Power to Review. Supervision involves the
power to review of executive orders and
ordinances, i.e., declare them ultra vires or illegal.
[Sections 30, 56 and 57, 1991 Local Government
Code].
c) Non-interference. The President has only the
power of supervision over LGUs. He cannot
interfere with the local governments as long as they
act within the scope of their authority. [Pimentel v.
Aguirre, G.R. No.132988, 2000]
d) Bangsamoro Government. The President shall
exercise general supervision over the Bangsamoro
Government to ensure that laws are faithfully
executed. [Sec. 1, Art. VI, RA 11054]
2) CONTROL. This is distinguished from the
President's power of control which is the power to
alter or modify or set aside what a subordinate
officer had done in the performance of his duties
and to substitute the judgment of the President
over that of the subordinate officer. The power of
control gives the President the power to revise or
reverse the acts or decisions of a subordinate
officer
involving
the
exercise
of
discretion. [Villafuerte, Jr. v. Robredo, G.R. No.
195390, 2014 citing Province of Negros Occidental
v. Commissioners, Commission on Audit, G.R. No.
182574, 2010]
Power of Congress over LGUs
Congress exercises power over local government
units through its constitutional power of legislation,
POLITICAL LAW
but not in the form of administrative supervision or
control. Congre re ain con rol of he LGU
although in a significantly reduced degree now than
under previous Constitutions. The power to create
still includes the power to destroy. The power to
grant still includes the power to withhold or recall.
The National Legislature is still the principal of the
LGs, which cannot defy its will, or modify or violate
its laws. [Magtajas vs. Pryce Properties and
Philippine Amusements and Gaming Corporation,
G.R. No. 111097, 1994]
Thus, under the 1987 Constitution, Congress has
the power of the following LGU matters and affairs:
1) Allocate among the different local
government
units
their
powers,
responsibilities, and resources, and provide for
the qualifications, election, appointment and
removal, term, salaries, powers and functions
and duties of local officials, and all other
matters relating to the organization and
operation of the local units [Section 3, Article X,
1987 Constitution].
2) Prescribe guidelines and limitations on
sources of local government revenues and
local power to levy taxes, fees, and charges
provided these are consistent with the basic policy
of local autonomy [Section 5, Article X, 1987
Constitution]. Each local government unit shall
have the power to create its own sources of
revenues and to levy 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 accrue exclusively to the local
governments.
3) Determine the just share in the national taxes
of local governments [Section 6, Article X, 1987
Constitution]. Local government units shall have a
just share, as determined by law, in the national
taxes which shall be automatically released to
them.
4) Provide the manner by which local
governments receive their equitable share in
the proceeds of the utilization and development
of the national wealth within their respective
areas [Section 7, Article X, 1987 Constitution].
Local governments shall be entitled to an equitable
share in the proceeds of the utilization and
development of the national wealth within their
respective areas, in the manner provided by law,
including sharing the same with the inhabitants by
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way of direct benefits.
5) Set the term limits of barangay officials
[Section 8, Article X, 1987 Constitution]. Under
R.A. No. 9164, the current term of office of elective
barangay officials is three years. The term of office
of elective local officials, except barangay officials,
which shall be determined by law, shall be three
years and no such official shall serve for more than
three consecutive terms. Voluntary renunciation of
the office for any length of time shall not be
considered as an interruption in the continuity of his
service for the full term for which he was elected.
6) Prescribe the manner by which sectoral
representatives shall be installed in local
legislative bodies [Section 9, Article X, 1987
Constitution]. Legislative bodies of local
governments shall have sectoral representation as
may be prescribed by law.
7) Define the criteria for the creation, division,
merger, abolition and substantial alteration of
boundaries of local governments [Section 10,
Article X, 1987 Constitution].
8) Establish special metropolitan political
subdivisions [Section 11, Article X, 1987
Constitution]. The Congress may, by law, create
special metropolitan political subdivisions, subject
to a plebiscite 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 executives and legislative assemblies.
The jurisdiction of the metropolitan authority that
will hereby be created shall be limited to basic
services requiring coordination.
9) Pass the organic act of the autonomous
regions [Section 18, Article X, 1987 Constitution].
10) Provide for exemption to devolution such as
nationally-funded projects, facilities, programs and
services since the power of Congress to legislate
on all matters of common interest is plenary.
[Imbong v. Ochoa, G.R. No. 204819, April 8, 2014].
Congress Control over LGU Properties
LGUs are still very much subject to the laws passed
by Congress, including the public properties within
their territorial jurisdiction save for those which
were acquired in their private or corporate capacity.
Thus:
1) The territorial jurisdiction of LGUs are limited to
the land area and physical metes and bounds as
defined in their charters and does not extend to the
POLITICAL LAW
continental shelf for purposes of determining the
equitable share. [Republic v. Palawan, GR No.
170867, 4 December 2018]
2) The Court reaffirmed the established general
rule that "regardless of the source or classification
of
land
in
the
possession
of
a
municipality, excepting those acquired with its own
funds in its private or corporate capacity, such
property is held in trust for the State for the benefit
of its inhabitants, whether it be for governmental or
proprietary purposes. It holds such lands subject to
the paramount power of the legislature to dispose
of the same, for after all it owes its creation to it as
an agent for the performance of a part of its public
work, the municipality being but a subdivision or
instrumentality thereof for purposes of local
administration. [Sangguniang Panlalawigan of
Bataan v. Garcia, Jr., G.R. No. 174964, October 5,
2016]
3) Article 424 of the Civil Code lays down the basic
principles that properties of the public dominion
devoted to public use and made available to the
public in general are outside the commerce of
men (persons) and cannot be disposed of or leased
by the LGU to private persons [Macasiano vs.
Diokno, G.R. no. 97764, August 10, 1992].
4) Pursuant to the Regalian doctrine, any land that
has never been acquired through purchase,
grant or any other mode of acquisition remains
part of the public domain and is owned by the
State. LGs cannot appropriate to themselves
public lands without prior grant from the
government [Rural Bank of Anda vs. Roman
Catholic Archbishop of Lingayen-Dagupan, G.R.
No. 155051, May 21, 2007].
5) A lot comprising the public plaza is property
of public dominion; hence, not susceptible to
private ownership by the church or by the
municipality [Roman Catholic Bishop of Kalibo,
Aklan vs. Municipality of Buruanga, Aklan, G.R. No.
149145, March 31, 2006].
6) A city can validly reconvey a portion of its
street that has been closed or withdrawn from
public use where Congress has specifically
delegated to such political subdivision,
through its charter, the authority to regulate its
streets. Such property withdrawn from public
servitude to be used or conveyed for any purpose
for which other property belonging to the city may
be lawfully used or conveyed. [Figuracion vs. Libi,
G.R. No. 155688 November 28, 2007]
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7) The conversion of the public plaza into a
commercial center i be ond he m nicipali
j ri dic ion con idering he proper
na re a
one for public use and thereby, forming part of the
public dominion. Accordingly, it cannot be the
object of appropriation either by the State or by
private persons. Nor can it be the subject of lease
or any other contractual undertaking [Land Bank of
the Philippines v. Cacayuran, G.R. No. 191667,
April 17, 2013; In an Amended Decision dated April
22, 2015, the Second Division set aside the
decision and remanded the case.]
C. TERRITORIAL AND POLITICAL
SUBDIVISIONS
1. PROVINCE, CITY, MUNICIPALITY,
BARANGAY, SPECIAL METROPOLITAN
POLITICAL SUBDIVISION
Province
it is a cluster of municipalities
or
municipalities
and
component cities, and as a
political and corporate unit of
government,
serves
as
dynamic mechanism for
development processes and
effective governance of
LGU
i hin i
erri orial
jurisdiction
City
it is composed of more
urbanized and developed
barangays, serves as a
general purpose government
for coordination, and delivery
of basic, regular and direct
services
and
effective
governance of inhabitants
within
its
territorial
jurisdiction
Municipality
consists of a group of
barangays
and
serves
primarily as a general
purpose government for
coordination and delivery of
basic, regular and direct
services
and
effective
governance of inhabitants
within
its
territorial
jurisdiction
Barangay
the basic political unit which
serves as primary planning
and implementing unit of
government policies, plans,
programs,
projects
and
activities in a community.
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Autono
mous
Region
Special
Metropolitan
Political
Subdivision
it consists of provinces,
cities, municipalities and
geographical areas sharing
common and distinctive
historical
and
cultural
heritage, economic and
social structures, and other
relevant
characteristics
within the framework of the
Constitution and the national
sovereignty as well as the
territorial integrity of the
Philippines.
Congress may, by law,
create special metropolitan
political subdivisions subject
to
a
plebiscite.
The
component
cities
and
municipalities shall retain
their basic autonomy and
shall be entitled to their own
local
executives
and
legislative assemblies. The
jurisdiction
of
the
metropolitan authority will
hereby be created shall be
limited to basic services
requiring coordination.
Authority to create LGUs (Sec. 7, LGC)
1. By law enacted by Congress
a. Province
b. City
c. Municipality
d. Any other political subdivision
e. A barangay may also be created by law
(Local Government Code, sec. 386)
2. By an ordinance passed by the Sangguniang
Panlalawigan or Panlungsod - Applicable for
barangay located within its territorial
jurisdiction
Power of creation is legislative in nature
The authority to create municipal corporations is
essentially legislative in nature. [Pelaez v. Auditor
General, G.R. No. L-23825 (1965)]
The enactment of an LGC is not a sine qua non for
the creation of a municipality, and before the
enactment of such, the power remains plenary
except that creation should be approved in a
POLITICAL LAW
plebiscite. [Torralba v. Sibagat, G.R. No. L-59180
(1987)]
Requisites for creation, conversion,
division, merger or dissolution of LGUs
Plebiscite Requirement
In accordance with criteria set by the LGC, no
province, city, municipality or barangay may be
created, divided, merged, abolished or its
boundary substantially altered, except in
accordance with the criteria established in the LGC
and subject to approval by a majority of the votes
cast in a plebiscite in the political units affected.
[CONST. ART.X, Sec.10]
The plebiscite must be conducted by COMELEC
within 120 days from the date of effectivity of the
law or ordinance effecting such action, unless said
law or ordinance fixes another date. [LGC, Sec.10]
Plebiscite must be
the political units directly
a c
When the law states that the plebiscite shall be
cond c ed in he poli ical ni direc l affec ed, i
means that the residents of the political entity who
would be economically dislocated by the
separation of a portion thereof have the right to
vote in said plebiscite. [Padilla v. COMELEC, G.R.
No. 103328 (1992)]
Who participates in the plebiscite?
A plebiscite for creating a new province should
include the participation of the residents of the
mother province in order to conform to the
constitutional requirement. (Tan v. COMELEC, GR
No. 73155, July 11, 1986)
The Three-Factor Test
The Court has considered three key factors in
determining whether an LGU is a "political unit
directly affected" by an LGU change or
conversion (for purposes of determining
participation in the plebiscite requirement):
1) Territorial Alteration. Not affected if the metes
and bounds are not changed by law. Redrawing of
legislative district boundaries does not amount to
territorial alteration.
2) Political Effects. Not affected if LGU does not
participate or vote for the local elective officials of,
or if not subject to the administrative supervision
and oversight by, the LGU subject of a plebiscite
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(ex. HUCs and ICCs do not vote for the provincial
elective officials and are not subject to the
provincial oversight.)
3) Economic Effects. No affec ed if LGU IRA
hare remain in ac or if LGU a ing po er i no
diminished. Economic factor pertains strictly to
fiscal or budgetary relations among the political
units concerned, specifically, the sharing of internal
revenue allotments, budgetary allocations, and
taxing powers, all of which are governed by the
pertinent provisions of the LGC and other laws
(thus, other external factors like consumer
spending, tourist arrivals, and prices of basic
commodities will require presentation and
evaluation of evidence). [Del Rosario v.
Commission on Elections, G.R. No. 247610, 2020]
NOTE: The Three-Factor Test (territorial, political,
and economic) i differen from he erifiable
indicators of viability and projected capacity to
provide services of income, land, and pop la ion.
The Three-Fac or Te
i for p rpo e of
determining the political units directly affected
relative to the plebiscite requirement, while the
erifiable indica or of iabili i for p rpo e of
creation or conversion or division for certification by
DOF, Land Management Bureau, and NSO.
When Plebiscite Required
When an LGU is created, divided, merged,
abolished, or its boundaries substantially altered
[LGC, sec. 10]. This includes:
1) Conversion (e.g. from a city to a highly
urbanized city) [Sec. 453, LGC; see also Tobias v.
Abalos, G.R. No. 114783 (1994)]
2) Downgrading (e.g. from an independent
component city to a component city) [Miranda v.
Aguirre, G.R. No. 133064 (1999), on the
downgrading of Santiago, Isabela]
When Plebiscite not Required
There is no need for any plebiscite in the creation,
dissolution or any other similar action on the
following:
1) Legislative Districts: Legislative districts are
not political subdivisions through which functions of
POLITICAL LAW
the government are carried out. [Bagabuyo v.
COMELEC, G.R. No. 176970 (2008)]
2) Administrative Regions: Administrative
regions are not territorial and political subdivisions.
The power to create and merge administrative
regions is traditionally vested in the President.
Hence, the merger of provinces that did not vote for
inclusion in the ARMM into existing administrative
regions does not require a plebiscite. [See Abbas
v. COMELEC, G.R. No. 89651 (1989)]
Ma
a c a
a
a a
If the creation, division, merger, abolition or
substantial alteration of boundaries of an LGU will
cause a material change in the political and
economic rights of a political unit, the residents of
such political unit should have the right to
participate in the required plebiscite. [Miranda v.
Aguirre (1999)]
Hence, in the conversion of a component city to a
highly urbanized city, the residents of the province
must participate. The conversion of the city will,
among others, result in reduction in taxing
jurisdiction and reduced economic viability of the
province. [Umali v. COMELEC, G.R. No. 203974
(2014)]
But the inhabitants of a neighboring city (e.g. San
Juan) are properly excluded from a plebiscite
concerning the conversion of a city (e.g.
Mandaluyong) to a highly urbanized city. [See
Tobias v. Abalos (1994)]
Indicators for the creation or conversion of
LGU (LIP)
1. Land Area
2. Income
3. Population
[Sections 461, 450, 442, 386, LGC]
Considerations in the creation of LGUs
The central policy considerations in the creation of
local government units are economic viability,
efficient administration and capability to deliver
basic services to constituents. The criteria
prescribed by the LGC (income, population, and
land area) are all designed to accomplish these
results. The primordial consideration in the
creation of local government units, particularly a
province is economic viability. [Navarro v. Ermita,
G.R. 180050, 2011].
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The creation, division, merger, abolition, or
substantial alteration of boundaries of LGU should
be approved by a majority of the votes cast in a
plebiscite called for the purpose in the political unit
or units directly affected.
Average
annual
income for
the last 2
consecutiv
e years
B
a
Bo ndarie in Sec 10, Art X is NOT limited to the
physical metes and bounds of the LGU, but also to
its political boundaries. In one case, a city was
converted into an HUC which resulted in material
changes in the economic and political rights of the
people and LGUs, thus, the plebiscite requirement
under Sec 10, Art X should apply. The entire
province stands to be directly affected by the
conversion hence should be included in the
plebiscite. [Naval v. COMELEC, 2014]
Division and Merger of LGUs
Division shall not reduce the income, population,
land area of the LGU to less than the minimum
requirement prescribed. Income classification
should not fall below the current income
classification prior to division [Sec 8, LGC]
Abolition of LGU
When income, population, or land areas are
irreversibly reduced to less than the minimum
standards prescribed for creation as certified by the
national agencies concerned. The law or ordinance
abolishing LGU shall specify the province, city,
municipality or barangay with which the LGU sought
to be abolished will be incorporated or merged.
[Sec. 9, LGC]
Corporate existence of a municipal corporation
Commences upon the election and qualification of
its chief executive and a majority of members of the
Sanggunian, unless some other time is fixed by the
law or ordinance creating it. [Sec. 14, LGC]
Dissolution of Municipal Corporations
Dissolved by a repeal of the charter as a result of:
(AMCD)
1. Annexation,
2. Merger,
3. Consolidation,
4. Division.
Specific Requirements
Income
Populati
on
Land Area
NOTE:
IRA
included
per
Alvarez v.
Guingona.
DOF
Province
Comp
onent
City
P20
M
(199
1
Prices)
P100
M
(2000
prices) per
RA 9009
P50
M
(199
1
Prices)
Highly
Urbani
zed
City
NOTE: RA
9009
raised
income
requireme
nt
for
conversio
n
of
municipalit
y
to
componen
t city from
50M
to
100M.
Total
number
of
inhabita
nts
within
LGU
territory
Generall
y, must
be
contiguo
us
EXCEP
T if
compo
sed of 1
or more
islands.
NSO
Land
Managem
ent
Bureau
250,000 2,000
sq.km
EXCEPT if
composed
of 1 or
more
islands per
Navarro v.
Ermita
(2011)
150,000 100 sq.km.
EXCEPT if
composed
of 1 or more
islands Sec.
450, LGC.
200,000 By requiring
200K
inhabitants,
the law has
effectively
chosen
people over
the land
area
requirement;
thus,
compliant
even if land
area is less
than 100 sq.
m.
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P100
M
(2000
prices)
following
RA 9009
P2.5
M
Municipal
(199
ity
1
prices)
No
requireme
nt
Barangay
150,000
Indepen
dent
Compon
ent City
25,000
100
sq.km.
50 sq.km.
2,000 or
No
5,000 if
requirem
Metro
ent
Manil
except
a or
for
HUCS
contiguity
s
NOTE: IRA included in the income computation as
per Alvarez v. Guingona, GR No. 118303, 1996.
In League of Cities of the Philippines v. COMELEC,
GR No. 176951, 15 February 2011, the SC final
declared as constitutional 16 cityhood laws (i.e.
conversion from municipalities to cities) despite not
being compliant with the amended income
requirement under RA 9009 since they were
pending bills already in Congress prior to the
passage of RA 9009 and the exemption clause are
found in each of the cityhood laws. By allowing
respondent municipalities to convert into
component cities, Congress desired only to uphold
the very purpose of the LGC, i.e., to make the local
government units "enjoy genuine and meaningful
local autonomy to enable them to attain their fullest
development as self-reliant communities and make
them more effective partners in the attainment of
national goals," which is the very mandate of
the Constitution. [League of Cities of the Phils. v.
Commission on Elections, G.R. Nos. 176951,
177499 & 178056 (Resolution), February 15, 2011]
Highly
Urbanized
City
Independent
Component
City
Municipality
Barangay
1. Presidential Declaration
2. Income; and
3. Population
4. Plebiscite
1. Law
2. Income; and
3. Either population or land area
4. Plebiscite
1. Law
2. Income
3. Population and
4. Land area
4. Plebiscite
1. Law or ordinance
2. Population and
3. Territorial Contiguity (no land
area requirement)
4. Plebiscite
1987 Constitution:
(Section 15) The autonomous regions provided by
the Constitution are:
a. Autonomous regions in Muslim Mindanao
b. Autonomous regions in the Cordilleras
Autonomous
regions consist of
provinces,
cities, municipalities, and geographical areas
sharing:
a. common and distinctive historical and
cultural heritage,
b. economic and social structures, and
c. other relevant characteristics.
(Section 16) The President shall exercise general
supervision over autonomous regions to ensure
that laws are faithfully executed.
(Section 18) An organic act shall be enacted for
each autonomous region with the assistance and
participation of the regional consultative
commission
composed
of
representatives
appointed by the President from a list of nominees
from multi-sectoral bodies.
This would define the basic structure of
government for the region, and special courts with
Which requirements must be satisfied?
1. Law
2. Income and
Province
3. Either population or land area
4. Plebiscite
1. Law
Component
2. Income; and
City
3. Either population or land area
4. Plebiscite
To create an autonomous region, a majority
of the votes cast by the constituent units in a
plebiscite called for the purpose is required.
Only those provinces, cities, and geographic
areas voting favorably in such plebiscite shall
be included in the autonomous region.
personal, family, and property law jurisdiction
consistent with the provisions of this Constitution
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and national laws.
(Section 20) The organic act of autonomous
regions shall provide for legislative powers over:
(1)
Administrative organization;
(2)
Creation of sources of revenues;
(3)
Ancestral
domain
and
natural
resources;
(4)
Personal, family, and property relations;
(5)
Regional urban and rural planning
development;
(6)
Economic,
social,
and
tourism
development;
(7)
Educational policies;
(8)
Preservation and development of the
cultural heritage; and
(9)
Such other matters as may be
authorized by law for the promotion of
the general welfare of the people of the
region.
Section 21. The preservation of peace and order
within the regions shall be the responsibility of the
local police agencies which shall be organized,
maintained, supervised, and utilized in accordance
with applicable laws.
RA 11054: Organic Law for the Bangsamoro
Autonomous Region in Muslim Mindanao
Definition
Those who, at the advent of the Spanish
colonization, were considered natives or original
inhabitants of Mindanao and the Sulu archipelago
and its adjacent islands, whether of mixed or of full
blood, shall have the right to identify themselves,
their spouses and descendants, as Bangsamoro.
The present geographical area known as the
Autonomous Region in Muslim Mindanao.
General Welfare Clause
Section 3. The Bangsamoro Government shall
exercise the powers expressly granted, those
necessarily implied therefrom, as well as powers
necessary, appropriate, or incidental for its efficient
and effective governance and those which are
essential to the promotion of general welfare.
Within its territorial jurisdiction, the Bangsamoro
Government shall ensure and support, among
other things, the preservation and enrichment of
culture, promote health and safety, enhance the
right of the people to a balanced ecology,
encourage and support the development of
appropriate and self-reliant scientific and
technological capabilities, improve public morals,
POLITICAL LAW
enhance economic prosperity and social justice,
promote full employment among its residents,
maintain peace and order, and preserve the
comfort and convenience of its inhabitants.
P
P
S
The President may suspend the Chief Minister for
a period not exceeding six (6) months for willful
violation of the Constitution, national laws, or this
Organic Law.
Intergovernmental Relations Body
This
created
the
National
GovernmentBangsamoro
Government
Intergovernmental
Relations Body, hereinafter referred to as
In ergo ernmen al Rela ion Bod , o coordina e
and resolve issues on intergovernmental relations
through regular consultation and continuing
negotiation in a non-adversarial manner.
Unresolved issues shall be elevated to the
President, through the Chief Minister.
Representatives to the IRB
The National Government and the Bangsamoro
Government shall each appoint representatives to
the Intergovernmental Relations Body. The
Intergovernmental Relations Body shall be
supported by a joint secretariat.
Bangsamoro
Participation
in
National
Government
As far as practicable, the Bangsamoro
Government shall be represented in the
departments, offices, commissions, agencies and
bureaus of the National Government that
implement and enforce policies, programs, and
projects of the National Government in the
Bangsamoro Autonomous Region.
The defense and security of the Bangsamoro
Autonomous Region shall be the responsibility of
the National Government.
Annual Block Grant
The National Government shall provide an annual
block grant which shall be the share of the
Bangsamoro Government in the national internal
revenue tax collections of the Bureau of Internal
Revenue and collections of the Bureau of Customs.
The amount shall be sufficient for the exercise of
the powers and functions of the Bangsamoro
Government under this Organic Law and in no case
shall be less than the last budget received by the
Autonomous Region in Muslim Mindanao
immediately before the establishment of the
Bangsamoro Autonomous Region.
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2. SETTLEMENT OF BOUNDARY DISPUTES
Situation v. Where to Settle
SITUATION
WHERE TO SETTLE
Boundary disputes
involving 2 or more
barangays in the same
city or municipality.
The sangguniang
panlungsod or
Sangguniang bayan
concerned.
Boundary disputes
involving 2 or more
municipalities within
the same province
The Sangguniang
panlalawigan
concerned
Boundary disputes
involving
municipalities
or
component cities of
different provinces
Jointly referred for
settlement to the
Sanggunians of the
province concerned
Boundary disputes
involving a component
city or municipality on
the one hand and a
highly urbanized city on
the other, or two (2) or
more highly urbanized
cities.
Jointly referred for
settlement to the
respective
Sanggunians of the
parties
Procedure After Failure of Amicable Settlement
1) In the event the Sanggunian fails to effect an
amicable settlement within 60 days from the date
the dispute was referred thereto, it shall issue a
certification to that effect. [Sec. 118, LGC]
2) Thereafter, the dispute shall be formally tried by
the Sanggunian concerned which shall decide the
issue within 60 days from the date of the
certification. [Sec. 118, LGC]
3) Within the time and manner prescribed by the
Rules of Court, any party may elevate the decision
of the sanggunian concerned to the proper
Regional Trial Court having jurisdiction over the
area in dispute. The Regional Trial Court shall
decide the appeal within one (1) year from the filing
thereof. Pending final resolution of the disputed
area prior to the dispute shall be maintained and
continued for all legal purposes. [Sec. 119, LGC]
Doctrines:
1) According to Section 118 of the Local
Government Code, boundary disputes between
and among municipalities should be referred for
settlement to the sangguniang panlalawigan and
not with the Regional Trial Court. [Municipality of
Sta. Fe v. Municpality of Artao, G.R. No. 140474,
2007]
2) However, there is no law providing for the
jurisdiction of any court or quasi-judicial body over
the settlement of a boundary dispute between a
municipality and an independent component city,
thus, the Regional Trial Court has jurisdiction to
adjudicate it. Under Section 19 (6) of the Judiciary
Reorganization Act, the RTC has exclusive
original jurisdiction in all cases not within the
exclusive jurisdiction of any court or quasi-judicial
agency. [Municipality of Kananga v. Madrona, G.R.
No. 141375, 2003]
3) The technical description, containing the metes
and bo nd of he m nicipali
erri or a
a ed
in an executive order creating the said municipality,
is binding. [Municipality of Jimenez v. Baz, Jr., G.R.
No. 105746, December 2, 1996]
D. POWERS OF LOCAL GOVERNMENT
UNITS
In General
Sources of the powers of LGUs:
1. Constitution
2. Statute
3. Those applicable to all municipal
corporations or to the class to which it
belongs
4. Special acts of the legislature
5. Charter
Four Categories of Powers Exercised by LGUs:
1. Powers expressly granted
2. Powers necessarily implied therefrom
3. Powers necessary, appropriate, or
incidental for efficient and effective
governance
4. Powers essential to the promotion of the
general welfare [Sec. 16, LGC]
REMEMBER: Any provision on a power of a local
government unit shall be liberally interpreted in its
favor, and in case of doubt, any question thereon
shall be resolved in favor of devolution of powers
and of the lower local government unit. Any fair and
reasonable doubt as to the existence of the power
shall be interpreted in favor of the local government
unit concerned. [Sec. 5(a), LGC]
Within their respective territorial jurisdictions,
LGUs shall ensure and support:
(a)
Preservation and enrichment of culture
(b)
Promotion of health and safety
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(c)
Enhancement of the right of the people to
a balanced ecology
(d)
Development of self-reliant scientific and
technological capabilities
(e)
Improvement of public morals
(f)
Enhancement of economic prosperity and
social justice
(g)
Promotion of full employment among
residents
(h)
Maintenance of peace and order
(i)
Preservation of the comfort and
convenience of its inhabitants [Sec. 16, LGC]
1. POLICE POWER (GENERAL WELFARE
CLAUSE)
Definition
The police power is a governmental function, an
inherent attribute of sovereignty, which was born
with civilized government. It is founded largely on
the maxims, "Sic utere tuo et alienum non laedas"
and "Salus populi est suprema lex." Its
fundamental purpose is securing the general
welfare, comfort and convenience of the
people. Police power is the power to prescribe
regulations to promote the health, morals, peace,
education, good order or safety and general
welfare of the people. It is the most essential,
insistent, and illimitable of powers. In a sense it is
the greatest and most powerful attribute of the
government. It is elastic and must be responsive to
various social conditions. (Sangalang, et al. vs.
IAC, 176 SCRA 719). On it depends the security of
social order, the life and health of the citizen, the
comfort of an existence in a thickly populated
community, the enjoyment of private and social life,
and the beneficial use of property, and it has been
said to be the very foundation on which our social
system rests. (16 C.J.S., p. 896) However, it is not
confined within narrow circumstances of
precedents resting on past conditions; it must
follow the legal progress of a democratic way of life.
(Sangalang, et al. vs. LAC, supra). [Binay v.
Domingo, G.R. No. 92389, 1991]
Negatively put, police power is "that inherent and
plenary power in the State which enables it to
prohibit all that is hurtful to the comfort, safety, and
welfare of society." [Ermita-Malate Hotel and Motel
Operators Association, Inc. v. City Mayor of Manila,
G.R. No. L-24693, 1967]
Police power is inherent in the state but not in
municipal corporations (Balacuit v. CFI of Agusan
del Norte, 163 SCRA 182). Before a municipal
POLITICAL LAW
corporation may exercise such power, there must
be a valid delegation of such power by the
legislature which is the repository of the inherent
powers of the State. A valid delegation
of police power may arise from express delegation,
or be inferred from the mere fact of the creation of
the municipal corporation; and as a general rule,
municipal corporations may exercise police powers
within the fair intent and purpose of their creation
which are reasonably proper to give effect to the
powers expressly granted, and statutes conferring
powers on public corporations have been
construed as empowering them to do the things
essential to the enjoyment of life and desirable for
the safety of the people. [Binay v. Domingo, G.R.
No. 92389, 1991]
Thus, that valid statutory delegation of police power
is now the General Welfare Clause in Sec. 16 of
he Local Go ernmen Code: E er
local
government unit shall exercise the powers
expressly granted, those necessarily implied
therefrom, as well as powers necessary,
appropriate, or incidental for its efficient and
effective governance, and those which are
essential to the promotion of the general welfare.
Within their respective territorial jurisdictions, local
government units shall ensure and support, among
other things, the preservation and enrichment of
culture, promote health and safety, enhance the
right of the people to a balanced ecology,
encourage and support the development of
appropriate and self-reliant scientific and
technological capabilities, improve public morals,
enhance economic prosperity and social justice,
promote full employment among their residents,
maintain peace and order, and preserve the
comfor and con enience of heir inhabi an .
Two Branches of the General Welfare Clause
1) General legislative power
Authorizes
municipal councils to enact ordinances and make
regulations not repugnant to law and may be
necessary to carry into effect and discharge the
powers and duties conferred upon the municipal
council by law. [Fernando v. St. Scholastica’s
College, G.R. No. 161107, 2013 citing Rural Bank
of Makati v. Muncipality of Makati, GR No. 150763,
2004]
Examples of General Legislative Power:
a) The ordinances imposing licenses and requiring
permits for any business establishment, for
purposes of regulation enacted by the municipal
council, fall within the purview of the first branch of
the general welfare clause. Moreover, the
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ordinance of the municipality imposing the annual
business tax is part of the power of taxation vested
upon local governments. Hence, the closure of a
business establishment for non-payment of local
business taxes is a valid exercise of police power.
[Rural Bank of Makati v. Muncipality of Makati, GR
No. 150763, 2004]
b) LGU may properly order the removal and closure
(including demolition) of illegally constructed
establishments for failure to secure the necessary
permits. This is because, in the exercise of police
power and the general welfare clause, property
rights of individuals may be subjected to restraints
and burdens in order to fulfil the objectives of the
government. [Aquino v. Municipality of Malay, GR
No. 211356, 2014]
c) In ordering the closure of bingo operations, LGU
was exercising their duty to implement laws and
ordinances which include the local government's
authority to issue licenses and permits for business
operations in the city. This authority is granted to
them as a delegated exercise of the police power
of the State. [City of Bacolod v. Phuture Visions,
GR No. 190289, 2018]
2) Police power proper
Authorizes the
municipality to enact ordinances as may be proper
and necessary for the health and safety, prosperity,
morals, peace, good order, comfort and
convenience of the municipality and its inhabitant,
and for the protection of their property [Fernando v.
St. Scholastica’s College, G.R. No. 161107, 2013
citing Rural Bank of Makati v. Muncipality of Makati,
GR No. 150763, 2004]
Examples of Police Power:
a) Ordinance regulating operation of massage
clinics, but not to regulate the practice of massage,
to prevent the commission of immorality and
the practice of prostitution. [Physical Therapy v.
Municipal Board of the City of Manila, GR No. L10448, 1957]
b) Ordinance requiring registration before entry to
motels to safeguard public morals. [Ermita-Malate
Hotel v. City Mayor of Manila, GR No. L-24693,
1976] NOTE: Ordinance also prohibited renting
rooms more than twice every 24 hours, which was
previously held to be valid in Ermita-Malate Hotel,
BUT which has been rendered unconstitutional in
White Light Corporation v. City of Manila, GR No.
122846, 2009.
c) Ordinance reclassifying land from industrial to
POLITICAL LAW
commercial that consequently prohibited the
operation of an oil depot to safeguard the rights to
life, security, and safety of the inhabitants of
Manila. [SJS v. Atienza, GR No. 156052, 2008;
SJS v. Lim, GR No. 187836, 2014]
d) An ordinance extending burial assistance of
P500 to a bereaved family whose gross income
does not exceed P2,000 a month, has been upheld
by the as a valid exercise of police power. [Binay v.
Domingo, G.R. 92389, 1991]
e) Ordinances regulating waste removal carry a
strong presumption of validity. Necessarily, LGUs
are statutorily sanctioned to impose and collect
such reasonable fees and charges for services
rendered. [Ferrer v. Bautista, G.R. 210551, 2015]
A person is the real party-in-interest to assail the
constitutionality and legality of the ordinances
because he is a registered co-owner of a
residential property in the city and that he paid
property tax which already included the SHT and
the garbage fee. He has substantial right to seek a
refund of the payments he made and to stop future
imposition. While he is a lone petitioner, his cause
of action to declare the validity of the subject
ordinances is substantial and of paramount interest
to similarly situated property owners in the city.
[Ferrer v. Bautista, G.R. 210551, 2015]
f) LGUs can also substantiate its defense of the
power to regulate businesses within its territorial
jurisdiction. [City of Iloilo v. Judge Honrado, G.R.
160399, 2015]
Requisites for Valid Exercise of Police Power
As with the State, the local government may be
considered as having properly exercised its police
power only if the following requisites are met:
(1) The interests of the public generally, as
distinguished from those of a particular class,
require the interference of the State (LAWFUL
SUBJECT); and
(2) The means employed are reasonably
necessary for the attainment of the object sought
to be accomplished and not unduly oppressive
upon individuals (LAWFUL METHOD).
Otherwise stated, there must be a concurrence of
a lawful subject and lawful method. [Lucena Grand
Central Terminal Inc. v. JAC Liner Inc., G.R. No.
148339, 2005; also SJS v. Lim, GR No. 187836,
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2014 and Fernando v. St. Scholastica’s College,
GR 161107, 2013]
Two-Pronged Test to Consider an Ordinance as
a Valid Police Power Measure
To be considered as a valid police power measure,
an ordinance must pass a two-pronged test:
(1) FORMAL (ie whether the ordinance is enacted
within the corporate powers of the LGU, and
whether it is passed in accordance with the
procedure prescribed by law); and
(2) SUBSTANTIVE (i.e., involving inherent merit,
like the conformity of the ordinance with the
limitations under the Constitution and the statutes,
as well as with the requirements of fairness and
reason, and its consistency with public policy).
[Mosqueda v. Pilipino Growers, GR No. 189185,
2016]
For an ordinance to be valid, it must not only be
within the corporate powers of the LGU to enact
and be passed according to the procedure
prescribed by law, it must also conform to the
following substantive requirements: (1) must not
contravene the Constitution or any statute; (2) must
not be unfair or oppressive; (3) must not be partial
or discriminatory; (4) must not prohibit but may
regulate trade; (5) must be general and consistent
with public policy and (6) must not be
unreasonable. [SJS v. Atienza, GR No. 156052,
2008]
Tests to Determine Constitutionality of an
Ordinance
To successfully invoke the exercise of police power
as the rationale for the enactment of an ordinance
and to free it from the imputation of constitutional
infirmity, two tests have been used by the Court
the rational relationship test and the strict scrutiny
test (and also the intermediate scrutiny test):
(1) Rational Basis or Relationship Test
Often applied mainly in analysis of equal protection
challenges. Using the rational basis examination,
laws or ordinances are upheld if they rationally
further a legitimate governmental interest. Under
intermediate review, governmental interest is
extensively examined and the availability of less
POLITICAL LAW
restrictive measures is considered.
Under the rational relationship test, an ordinance
must pass the following requisites as discussed
in Social Justice Society (SJS) v. Atienza, Jr.: As
with the State, local governments may be
considered as having properly exercised their
police power only if the following requisites are met:
(1) the interests of the public generally, as
distinguished from those of a particular class,
require its exercise and (2) the means employed
are reasonably necessary for the accomplishment
of the purpose and not unduly oppressive upon
individuals. In short, there must be a concurrence
of a lawful subject and lawful method. [Fernando v.
St. Scholastica's College, G.R. No. 161107, 2013]
(2) Strict Scrutiny Test
Applying strict scrutiny, the focus is on the
presence of compelling, rather than substantial,
governmental interest and on the absence of less
restrictive means for achieving that interest.
[Fernando v. St. Scholastica's College, G.R. No.
161107, 2013]
The strict scrutiny test applies when a classification
either (i) interferes
with
the
exercise
of
fundamental rights, including the basic liberties
guaranteed under the Constitution,or (ii) burdens
suspect classes. XXX Thus, the government has
the burden of proving that the classification is:
(i) Necessary to achieve a compelling State
interest, and (ii) The least restrictive means to
protect such interest or the means chosen is
narrowly tailored (or narrowly drawn) to accomplish
the interest. [SPARK v. Quezon City, G.R. No.
225442, 2017 citing Disini v. Secretary of Justice,
GR No. 203335, 2014]
Thus, in the curfew ordinances imposed by the City
of Manila, Navotas City, and Quezon City on
minors, there is compelling state interest in
attempting to substantiate legitimate concerns on
public welfare, especially with respect to minors.
As compared to the Manila and Navotas
ordinances, the list of exceptions under the Quezon
City Ordinance is more narrowly drawn to
sufficiently protect the minors' rights of association,
free exercise of religion, travel, to peaceably
assemble, and of free expression. [SPARK v.
Quezon City, G.R. No. 225442, 2017]
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(3) Intermediate Scrutiny Test
There is also the intermediate scrutiny test when a
classification does not involve suspect classes or
fundamental rights, but requires heightened
scrutiny, such as in classifications based on gender
and legitimacy. [SPARK v. Quezon City, GR No.
225442, 2017]
This test has also been applied to regulations or
restrictions affecting the freedom of speech and
expression in relation to determining if it is a
content-neutral regulation. Being a content-neutral
regulation, the same is measured against the
intermediate test, viz.: (1) the regulation is within
the constitutional power of the government; (2) it
furthers an important or substantial governmental
interest; (3) such governmental interest is
unrelated to the suppression of the free expression;
and (4) the incidental restriction on the alleged
freedom of expression is no greater than what is
essential to the furtherance of the governmental
interest.
[Nicolas-Lewis v. Commission on
Elections, G.R. No. 223705, [2019]
Barangay Police Power
1) The punong barangay, as the chief executive of
the barangay government, shall exercise such
powers and perform such duties and functions for
efficient, effective and economical governance, the
purpose of which is the general welfare of the
barangay and its inhabitants pursuant to Section 16
of the LGC. [Sec. 389, LGC]
2) The Barangay Assembly cannot exercise any
police power. Under Section 398 of the LGC, it can
only recommend to the Sangguniang Barangay the
adoption of measures for the welfare of the
barangay and decide on the adoption of an
initiative. [Sec. 398, LGC]
3) Also, the Liga ng mga Barangay cannot exercise
legislative powers. It is not a local government unit
and its primary purpose is to determine
representation of the liga in the sanggunians, to
ventilate, articulate and crystallize issues affecting
barangay government administration, and to
secure solutions for them through proper and legal
means. [Onon v. Fernandez, G.R. No. 139813,
2001]
a. Local Legislative Power
Requisites of a valid ordinance (CUP PUG)
1. Must not Contravene the Constitution or any
statute
2.
3.
4.
5.
6.
Must not be Unfair or oppressive
Must not be Partial or discriminatory
Must not Prohibit, but may regulate trade
Must not be Unreasonable
Must be General and consistent with public
policy
NOTE: To measure if an ordinance is valid, see
and remember the previous discussions on the
Two-Pronged Test (Mosqueda v. Pilipino
Growers) and the Substantive Requirements
[SJS v. Atienza].
Local Legislative Body
1) Exercised by the Sanggunian (Panlalawigan,
Panglungson, Bayan, Barangay) [Secs. 476, 458,
414, 391, LGC]
2) Presiding Officer:
LEGISLATIVE
BODY
PRESIDING
OFFICER
Sanggun ang
Panlalawigan
Vice-Governor
Sangguniang
Panglungsod
Vice-Mayor
Sangguniang Bayan
Vice-Mayor
Sangguniang Barangay
Punong Barangay
The presiding officer shall vote only to break a
tie.
In the event of the inability of the regular presiding
officer to preside at a sanggunian session, the
members present and constituting a quorum shall
elect from among themselves a temporary
presiding officer. [Sec. 49, LGC]
3) Rules of Procedure: Sangguanian concerned
shall adopt its own rules of procedure. [Sec. 50,
LGC]
4) Mandatory Disclosures: Sanggunian members
are required to do mandatory disclosures that may
result in any conflict of interest (financial, business,
professional). [Sec. 51, LGC]
5) Regular session: Fixed on the first day of
session, 1x a week. [Sec. 52(a), LGC]
6) Special Session: When public interest so
demands, special sessions may be called by the
local chief executive or by a majority of the
members of the sanggunian. [Sec. 52(b), LGC]
7) Quorum: A majority of all the members of the
sanggunian who have been elected and qualified
shall constitute a quorum to transact official
business. [Sec. 53(a), LGC] If there is no quorum,
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presiding officer may declare a recess until quorum
is constituted or majority of members present may
adjourn from day to day and may compel
immediate attendance. [Sec. 53(b), LGC] If If there
is still no quorum despite the enforcement of the
immediately preceding subsection, no business
shall be transacted. [Sec. 53(c), LGC] If
Approval/Disapproval of Ordinances
1) Every ordinance enacted by the sangguniang
panlalawigan, sangguniang panlungsod, or
sangguniang bayan shall be presented to the
provincial governor or city or municipal mayor, as
the case may be.
2) If the local chief executive concerned
APPROVES the same, he shall affix his signature
on each and every page thereof;
3) If the local chief executive concerned
DISAPPROVES the same, he shall VETO it and
return the same with his objections to the
sanggunian, which may proceed to reconsider the
same.
4) The veto shall be communicated by the local
chief executive concerned to the sanggunian within
fifteen (15) days in the case of a province, and ten
(10) days in the case of a city or a municipality;
otherwise (i.e. if the veto is not communicated to
the sanggunian concerned within the prescribed
period), the ordinance shall be deemed approved
as if he had signed it.
5) The sanggunian concerned may override the
veto of the local chief executive by two-thirds (2/3)
vote of all its members, thereby making the
ordinance or resolution effective for all legal intents
and purposes.
6) Ordinances enacted by the sangguniang
barangay shall, upon approval by the majority of all
its members, be signed by the punong barangay.
[Sec. 54, LGC] NOTE: No such veto for the Punong
Barangay since already a member of the
Sangguniang Barangay.
Any attempt to enforce any ordinance or any
resolution approving the local development plan
and public investment program, after the
disapproval thereof, shall be sufficient ground for
the suspension or dismissal of the official or
employee concerned. [Sec. 58, LGC]
Grounds and Limitation on the Veto Power of
the Local Chief Executive
1) The local chief executive may veto any
ordinance of the sanggunian panlalawigan,
sangguniang panlungsod, or sanggunian bayan on
the ground that it is ultra vires or prejudicial to the
public welfare, stating his reasons therefor in
writing.
2) The local chief executive, except the punong
barangay, shall have the power to veto any
particular item or items of an appropriations
ordinance, an ordinance or resolution adopting a
local development plan and public investment
program, or an ordinance directing the payment of
money or creating liability. In such a case, the veto
shall not affect the item or items which are not
objected to.
3) The vetoed item or items shall not take effect
unless the sanggunian overrides the veto in the
manner herein provided; otherwise, the item or
items in the appropriations ordinance of the
previous year corresponding to those vetoed, if
any, shall be deemed reenacted.
4) The local chief executive may veto an ordinance
or resolution only once. The sanggunian may
override the veto of the local chief executive
concerned by two-thirds (2/3) vote of all its
members, thereby making the ordinance effective
even without the approval of the local chief
executive concerned. [Sec. 55, LGC]
Ordinance v. Resolution
ORDINANCE
RESOLUTION
Has the force and
effect of
law
Mere opinion
Has general
application; more or
less permanent in
character.
Third reading is
required
Usually used in the
e erci e of he LGU
governmental
functions
Subject to veto
Temporary in nature
Third reading not required
U
all
ed in he LGU
exercise of proprietary
functions
Only some may be subject
to veto and review
Presumptions regarding local legislation (CRV)
1.
Constitutionality
2.
Regularity
3.
Validity
Requirement After Approval of the Ordinance
1) For Component City and Municipality
Ordinances
PROCESS:
(a) Within three (3) days after approval, the
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secretary to the sanggunian panlungsod or
sangguniang bayan shall forward to the
sangguniang panlalawigan for review, copies of
approved ordinances and the resolutions
approving the local development plans and public
investment programs formulated by the local
development councils. [Sec. 56(a, LGC]
(b) Within thirty (30) days after the receipt of copies
of such ordinances and resolutions, the
sangguniang panlalawigan shall examine the
documents or transmit them to the provincial
attorney, or if there be none, to the provincial
prosecutor for prompt examination. The provincial
attorney or provincial prosecutor shall, within a
period of ten (10) days from receipt of the
documents, inform the sangguniang panlalawigan
in writing of his comments or recommendations,
which may be considered by the sangguniang
panlalawigan in making its decision. [Sec. 56(b),
LGC]
ACTION:
(c) If the sangguniang panlalawigan finds that such
an ordinance or resolution is beyond the power
conferred upon the sangguniang panlungsod or
sangguniang bayan concerned, it shall declare
such ordinance or resolution invalid in whole or in
part. The sangguniang panlalawigan shall enter its
action in the minutes and shall advise the
corresponding city or municipal authorities of the
action it has taken. [Sec. 56(c), LGC]
(d) If no action has been taken by the sangguniang
panlalawigan within thirty (30) days after
submission of such an ordinance or resolution, the
same shall be presumed consistent with law and
therefore valid. [Sec. 56 (d), LGC]
2) For Barangay Ordinanc s - Approved
ordinances shall be forwarded to the sangguniang
concerned for review if consistent with law or city
or municipal ordinances.
PROCESS:
(a) Within ten (10) days after its enactment, the
sangguniang barangay shall furnish copies of all
barangay ordinances to the sangguniang
panlungsod or sangguniang bayan concerned for
review as to whether the ordinance is consistent
with law and city or municipal ordinances. [Sec.
57(a), LGC]
(b) If the sangguniang panlungsod or sangguniang
bayan, as the case may be, fails to take action on
barangay ordinances within thirty (30) days from
receipt thereof, the same shall be deemed
approved. [Sec. 57(b), LGC]
ACTION:
(c) If the sangguniang panlungsod or sangguniang
bayan, as the case may be, finds the barangay
ordinances inconsistent with law or city or
municipal ordinances, the sanggunian concerned
shall, within thirty (30) days from receipt thereof,
return the same with its comments and
recommendations to the sangguniang barangay
concerned for adjustment, amendment, or
modification; in which case, the effectivity of the
barangay ordinance is suspended until such time
as the revision called for is effected. [Sec. 57(c),
LGC]
Effectivity of Ordinances
For Provinces, Component Cities, and
Municipalities
1) Without Penal Sanctions
(a) Unless otherwise stated in the ordinance or the
resolution approving the local development plan
and public investment program, the same shall
take effect after ten (10) days from the date a copy
thereof is posted in a bulletin board at the entrance
of the provincial capitol or city, municipal, or
barangay hall, as the case may be, and in at least
two (2) other conspicuous places in the local
government unit concerned. [Sec. 59(a), LGC]
(b) The secretary to the sanggunian concerned
shall cause the posting of an ordinance or
resolution in the bulletin board at the entrance of
the provincial capitol and the city, municipal, or
barangay hall in at least two (2) conspicuous
places in the local government unit concerned not
later than five (5) days after approval thereof. The
text of the ordinance or resolution shall be
disseminated and posted in Filipino or English and
in the language understood by the majority of the
people in the local government unit concerned, and
the secretary to the sanggunian shall record such
fact in a book kept for the purpose, stating the
dates of approval and posting. [Sec. 59(b), LGC]
2) With Penal Sanctions
(a) The gist of all ordinances with penal sanctions
shall be published in a newspaper of general
circulation within the province where the local
legislative body concerned belongs. In the absence
of any newspaper of general circulation within the
province, posting of such ordinances shall be made
in all municipalities and cities of the province where
the sanggunian of origin is situated. [Sec. 59(c),
LGC]
(b) Ordinances with penal sanctions shall be
posted at prominent places in the provincial capitol,
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city, municipal or Barangay hall, as the case may
be, for a minimum period of three (3) consecutive
weeks. Such ordinances shall also be published in
a newspaper of general circulation, where
available, within the territorial jurisdiction of the
local government unit concerned, except in the
case of Barangay ordinances. Unless otherwise
provided therein, said ordinances shall take effect
on the day following its publication, or at the end of
the period of posting, whichever occurs later. [Sec.
511(a), LGC] NOTE: This should also apply to
HUCs and ICCs.
For Highly Urbanized Cities and Independent
Component Cities
In the case of highly urbanized and independent
component cities, the main features of the
ordinance or resolution duly enacted or adopted
shall, in addition to being posted, be published
once in a local newspaper of general circulation
within the city: Provided, That in the absence
thereof the ordinance or resolution shall be
published in any newspaper of general circulation.
[Sec. 59(d), LGC] NOTE: This should apply to all
ordinances, with or without penal sanctions.
Doctrines:
1)
Notice and hearing not required for
typographical error. A municipal resolution
correcting an alleged typographical error in a
zoning ordinance does not have to comply with the
requirements of notice and hearing, which are
required for the validity and effectiveness of zoning
ordinances. [The Learning Child, Inc. v. Ayala
Alabang
Village
Association,
G.R.
134269/134440/144518, 2010]
2) An ac
hich i o ide of he m nicipali
jurisdiction is considered as a void ultra vires act,
while an act attended only by an irregularity but
remain
i hin he m nicipali
po er i
considered as an ultra vires act subject to
ratification and/or validation. Case law states that
public officials can be held personally accountable
for acts claimed to have been performed in
connection with official duties where they have
acted ultra vires. [Land Bank of the Philippines v.
Cacayuran, G.R. 17165, 2013]
3) Power of Sangguniang Panlalawigan to
declare an ordinance invalid. An ordinance
authorizing the expropriation of parcels of land for
the creation of a freedom park cannot be struck
down for the reason that the municipality has an
existing freedom park still suitable for the purpose
because under Section 56 (c) of the LGC, the
POLITICAL LAW
Sangguniang Panlalawigan can declare the
ordinance invalid only if it is beyond the power of
the Sangguniang Bayan. [Moday v. CA, GR No.
107916, 1997]
4) Unreasonable ordinance is invalid. An
ordinance penalizing any person or entity engaged
in the business of selling tickets to movies or other
public exhibitions, games or performances which
would charge children between 7 and 12 years of
the full price of tickets instead of only one-half the
amount is void because it is unreasonable. It
deprives sellers of the tickets of their property
without due process. A ticket is a property right and
may be sold for such price as the owner of it can
obtain. There is nothing malicious in charging
children the same price as adults. [Balacuit v. CFI
of Agusan del Norte, G.R. No. L-38429, 1988]
5) Liga ng Mga Barangay has no legislative
powers. The Liga ng mga Barangay cannot
exercise legislative powers because it is not a local
government unit and its primary purpose is to
determine representation of the liga in the
sanggunians to ventilate, articulate and crystallize
issues
affecting
barangay
government
administration, and to secure solutions for them
through proper and legal means. (Onon v.
Fernandez, G.R. No. 139813, 2001).
Local Initiative and Referendum
Local Initiative - The legal process whereby the
registered voters of a LGU may directly propose,
enact, or amend any ordinance. It may be
exercised by all registered voters of the provinces,
cities, municipalities, and barangays. [Secs. 120
and 121, LGC]
Initiative on local legislation which refers to a
petition proposing to enact a regional, provincial,
city, municipal, or barangay law, resolution or
ordinance. [Sec. 3(a1), RA 6735]
Thus, a resolution can also be the proper subject
of a local initiative. [SBMA v. COMELEC, G.R.
25416, 1996]
Local Referendum - The legal process whereby
the registered voters of the local government units
may approve, amend or reject any ordinance
enacted by the sanggunian.
The local referendum shall be held under the
control and direction of the COMELEC within sixty
(60) days in case of provinces and cities, forty-five
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(45) days in case of municipalities and thirty (30)
days
in
case
of
barangays.
The COMELEC shall certify and proclaim the
results of the said referendum. [Sec. 126, LGC]
Procedure for Local Initiative
1. Number of voters who should file petition with
Sanggunian concerned:
a. Provinces and cities - at least 1000
registered voters
b. Municipality - at least 100 registered voters
c. Barangay - at least 50 registered voters
2. Sanggunian concerned has 30 days to act on
the petition. If the Sanggunian does not take
any favorable action, the proponents may
invoke the power of initiative, giving notice to
Sanggunian.
3. Proponents will have the following number of
days to collect required number of signatures
a. Provinces and cities - 90 days
b. Municipalities - 60 days
c. Barangays -30 days
4. Signing of petition
5. Date for initiative set by COMELEC if required
number of signatures has been obtained. [Sec.
122, LGC]
Limitations on Local Initiative
(a) The power of local initiative shall not be
exercised more than once a year.
(b) Initiative shall extend only to subjects or matters
which are within the legal powers of the
sanggunian to enact.
(c) If at any time before the initiative is held, the
sanggunian concerned adopts in toto the
proposition presented and the local chief executive
approves the same, the initiative shall be
cancelled. However, those against such action
may, if they so desire, apply for initiative in the
manner herein provided. [Sec. 124, LGC]
POLITICAL LAW
2. The Sanggunian can amend, modify or repeal
the proposition/ordinance within 3 years
thereafter by a vote of ¾ of all its members.
3. For barangays, the applicable period is 18
months. [Sec. 125, LGC]
Grounds for Null and Void Proposition
The proper courts can still declare void any
proposition adopted pursuant to an initiative or
referendum on the following grounds:
1. Violation of the Constitution
2. Want of capacity of the Sanggunian concerned
to enact the measure [Sec. 127, LGC]
2. POWER OF EMINENT DOMAIN
(EXPROPRIATION)
Definition
The power of eminent domain has been defined as
the right of a government to take and appropriate
private property to public use, whenever the public
exigency requires it, which can be done only on
condition of providing a reasonable compensation
therefor. It has also been described as the power
of the State or its instrumentalities to take private
property for public use and is inseparable from
sovereignty and inherent in government. [Masikip
v. City of Pasig, GR No. 136349, 23 January 2006]
REMEMBER: Private property shall not be taken
for public use without just compensation. [Sec. 9,
Art. III, 1987 Constitution] Otherwise stated, private
property can be taken provided: 1) For public use;
2) With just compensation.
Effectivity of Proposition
1. If proposition is approved by a majority of the
votes cast, it will take effect 15 days after
certification by the COMELEC as if the
Sanggunian and the local chief executive had
taken affirmative action.
2. If it fails to obtain required number of votes, it
is considered defeated. [Sec. 123, LGC]
Nature of the Power of LGU Eminent Domain
The power of eminent domain is lodged in the
legislative branch of the government. It delegates
the exercise thereof to local government units,
other public entities and public utility corporations,
subject only to Constitutional limitations. As such,
local governments have no inherent power of
eminent domain and may exercise it only when
expressly authorized by statute. Section 19 of the
Local Government Code of 1991 (Republic Act No.
7160) prescribes the delegation by Congress of the
power of eminent domain to local government units
and lays down the parameters for its exercise.
[Masikip v. City of Pasig, GR No. 136349, 23
January 2006]
Limitations on the Sanggunian
1. The Sanggunian CANNOT repeal, modify or
amend any proposition or ordinance approved
through system of initiative/referendum within
6 months from the date of approval thereof.
Thus, strictly speaking, the power of eminent
domain delegated to an LGU is in reality not
eminent but "inferior" since it must conform to the
limits imposed by the delegation and thus partakes
only of a share in eminent domain. The national
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POLITICAL LAW
legislature is still the principal of the LGUs and the
latter cannot go against the principal's will or modify
the same. [Beluso v. Municipality of Panay, GR No.
153974, 7 August 2006]
adequacy of the compensation, (b) the necessity of
the taking, and (c) the public use character of the
purpose of the taking. [Masikip v. City of Pasig, GR
No. 136349, 2006]
Requisites of Eminent Domain: (POJOC)
1. Expropriation should be for a Public use or
purpose or for the welfare of the poor or
landless.
2. Ordinance authorizing the local chief executive
to subject a certain property to expropriation
3. Payment of Just compensation
4. Valid and definite Offer previously made to
owner which was not accepted.
5. Exercised by the LGU through its Chief
executive. [Sec. 19, LGC]
Just Compensation
1)The de ermina ion of j
compen a ion in
eminent domain cases is a judicial function. Hence,
a statutory provision on a fixed formula in the
computation of just compensation in cases of
acquisition of easements of right of way is not
binding upon the Court. [National Power Corp. v.
Ileto, G.R. No. 169957, 2012]
Jurisdiction
An expropriation suit falls under the jurisdiction of
the RTCs. The subject of an expropriation suit is
he go ernmen e erci e of eminen domain, a
matter that is incapable of pecuniary estimation.
[Barangay San Roque v. Heirs of Pastor, G.R. No.
138896, 2000]
Due Process Requirements
The property owner must be afforded a reasonable
opportunity to be heard on the issues of public use
and just compensation and to present objections to
and claims on them.
It is settled that taking of property for a private use
or without just compensation is a deprivation of
property without due process of law. Moreover, it
has to be emphasized that taking of private
property without filing any complaint before a court
of law under Rule 67 of the Rules of Court or
existing laws is patently felonious, confiscatory,
and unconstitutional.
Judicial notice can be taken of some instances
wherein
some
government
agencies
or
corporations peremptorily took possession of
private properties and usurped the owner's real
rights for their immediate use without first instituting
the required court action. Running roughshod over
the property rights of individuals is a clear and
gross breach of the constitutional guarantee of due
process, which should not be countenanced in a
society where the rule of law holds sway.
[Barangay Sindalan v. CA, GR No. 150640, 22
March 2007]
Judicial Review
Judicial review of the exercise of eminent domain
is limited to the following areas of concern: (a) the
2) The determination of just compensation is a
judicial function and any valuation for just
compensation laid down in the statutes may serve
only as a guiding principle. It may not substitute the
co r o n j dgmen a o ha amo n ho ld be
awarded and how to arrive at such amount.
[Vergara v. Grecia, G.R. 185638, 2016]
3) The amount to be paid for the expropriated
property (i.e. just compensation) shall be
determined by the proper court, based on the fair
market value at the time of the taking of the
property.[Sec. 19, LGC]
4) Under the Rules of Court, however, the court
may issue an order of expropriation declaring that
the plaintiff has a lawful right to take the property
sought to be expropriated, for the public use or
purpose described in the complaint, upon the
payment of just compensation to be determined as
of the date of the taking of the property or the filing
of the complaint, whichever came first. [Sec. 4,
Rule 67, ROC]
NOTE: Which should prevail? 1) Sec. 19, LGC is
substantive law; 2) Sec. 4, Rule 67, ROC is
procedural law. Given that the determination of just
compensation is a judicial function, it is submitted
that the ROC should prevail in view of the rulemaking authority of the Supreme Court under the
Constitution on all matters relating to pleadings,
practice, and procedure.
Requisites for the Immediate Possession by
LGU
The LGU may immediately take possession of the
property:
1) Upon the filing of the expropriation proceedings;
and 2) Upon making a deposit with the proper court
of at least fifteen percent (15%) of the fair market
value of the property based on the current tax
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declaration of the property to be expropriated. [Sec.
19, LGC]
Upon compliance with these requirements, the
issuance by the RTC of a writ of possession
becomes ministerial. [Iloilo City v. Legaspi, G.R.
154614, 2004]
Genuine Necessity of the Taking
The right to take private property for public
purposes
necessarily
originates
from
"the necessity" and the taking must be limited to
such necessity. In City of Manila v. Chinese
Community of Manila, we held that the very
foundation
of
the
right
to
exercise eminent domain is
a
genuine necessity and that necessity must be of a
public character. Moreover, the ascertainment of
the necessity must precede or accompany and not
follow, the taking of the land. In City of Manila v.
Arellano Law College, the SC ruled that
"necessity within the rule that the particular
property to be expropriated must be necessary,
does not mean an absolute but only a reasonable
or practical necessity, such as would combine the
greatest benefit to the public with the least
inconvenience and expense to the condemning
party and the property owner consistent with such
benefit." [Masikip v. City of Pasig, G.R. No. 136349,
2006]
Examples of No Genuine Necessity; Hence,
Constitutes as Unlawful Taking:
1) Taking of portions of a Chinese cemetery for a
public improvement since its already for public use
and there are adjoining and adjacent lands offered
free of charge.
[City of Manila v. Chinese
Community, GR No. L-14355, 1919]
2) Taking of a land currently used by Arellano Law
College as a homesite since only few families will
benefit, which is insignificant compared to
preparing young men and women for useful
citizenship and service to the government and
community. [City of Manila v. Arellano Law
Colleges, GR No. L-2929, 1950]
3) Taking of a private property for sports
development and recreational activities of a
neighborhood
a ocia ion
ince
i
no
categorically for public purpose and there is an
alternative facility in the area. [Masikip v. City of
Pasig, G.R. No. 136349, 2006]
POLITICAL LAW
Public Use/Public Purpose/Public Character
1) Use by the Public or Public Employment.
There is no precise meaning of "public use" and the
term is susceptible of myriad meanings depending
on diverse situations. The limited meaning
attached to "public use" is "use by the public" or
"public employment," that "a duty must devolve on
the person or corporation holding property
appropriated by right of eminent domain to furnish
the public with the use intended, and that there
must be a right on the part of the public, or some
portion of it, or some public or quasi-public agency
on behalf of the public, to use the property after it
is condemned." The more generally accepted view
sees "public use" as "public advantage,
convenience, or benefit, and that anything which
tends to enlarge the resources, increase the
industrial energies, and promote the productive
power of any considerable number of the
inhabitants of a section of the state, or which leads
to the growth of towns and the creation of new
resources for the employment of capital and labor,
[which] contributes to the general welfare and the
prosperity of the whole community." In this
jurisdiction, "public use" is defined as "whatever is
beneficially employed for the community."
[Barangay Sindalan v. Court of Appeals, GR No.
150640, 2007]
2) Cannot Depend on Numerical Count. It is
settled that the public nature of the prospective
exercise of expropriation cannot depend on the
"numerical count of those to be served or the
smallness or largeness of the community to be
benefited." The number of people is not
determinative of whether or not it constitutes public
use, provided the use is exercisable in common
and is not limited to particular individuals. Thus,
the first essential requirement for a valid exercise
of eminent domain is for the expropriator to prove
that the expropriation is for a public use. [Barangay
Sindalan v. Court of Appeals, GR No. 150640,
2007]
3) Contributes to the General Welfare. Modernly,
there has been a shift from the literal to a broader
interpretation of "public purpose" or "public use" for
which the power of eminent domain may be
exercised. The old concept was that the
condemned property must actually be used by the
general public (e.g. roads, bridges, public plazas,
etc.) before the taking thereof could satisfy the
constitutional requirement of "public use." Under
the new concept, "public use" means public
advantage, convenience or benefit, which tends to
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contribute to the general welfare and the prosperity
of the whole community, like a resort complex for
tourists or housing project. [Camarines Sur v. CA,
GR No. 103125, 17 May 1993 citing Heirs of
Juancho Ardano v. Reyes, 125 SCRA 220 (1983);
Sumulong v. Guerrero, 154 SCRA 461 (1987)]
Example: Establishment of a pilot development
center that would inure to the direct benefit and
advantage of the people of the Province of
Camarines Sur. Once operational, the center
would make available to the community invaluable
information and technology on agriculture, fishery
and the cottage industry. Ultimately, the livelihood
of the farmers, fishermen and craftsmen would be
enhanced. [Camarines Sur v. CA, GR No. 103125,
1993]
Rules on Urban Land Reform and Socialized
Housing
If the expropriation is pursuant to an urban land
reform and housing program, LGUs are also
mandated to follow the conditions and standards
prescribed by RA 7279 (Urban Development and
Housing Act of 1992), the law governing the
expropriation of property for urban land reform and
housing, as follows:
1) Prioritize Other Lands. Lands for socialized
housing shall be acquired in the following order:
1. Those owned by the Government or any of
its subdivisions, instrumentalities, or
agencies, including government-owned or
- controlled corporations and their
subsidiaries;
2. Alienable lands of the public domain;
3. Unregistered or abandoned and idle lands;
4. Those within the declared Areas of Priority
Development, Zonal Improvement sites,
and Slum Improvement and Resettlement
Program sites which have not yet been
acquired;
5. Bagong Lipunan Improvement sites and
Services or BLISS sites which have not yet
been acquired; and
6. Privately-owned lands.
Where on-site development is found more
practicable and advantageous to the beneficiaries,
the priorities mentioned in this section shall not
apply (thus, privately-owned lands may be
acquired first). The local government units shall
give budgetary priority to on-site development of
government lands. [Sec. 9, RA 7279]
POLITICAL LAW
2) Prioritize Other Modes of Acquisition. The
modes of acquiring lands for purposes of this Act
shall include, among others, community mortgage,
land swapping, land assembly or consolidation,
land banking, donation to the Government, joint
venture agreement, negotiated purchase, and
expropriation:
Provided,
however,
That
expropriation shall be resorted to only when other
modes of acquisition have been exhausted. [Sec.
10, RA 7279]
Section 10 of R.A. 7279 also prefers the acquisition
of private property by "negotiated sale" over the
filing of an expropriation suit. It provides that such
suit may be resorted to only when the other modes
of acquisitions have been exhausted. Indeed, the
Court has held that when the property owner
rejects the offer but hints for a better price, the
government should renegotiate by calling the
property owner to a conference. The government
must exhaust all reasonable efforts to obtain by
agreement the land it desires. Its failure to comply
will warrant the dismissal of the complaint. [City of
Manila v. Alegar, GR No. 187604, 2012]
Failure to prove strict compliance with the
requirements of Sections 9 and 10 of RA 7279 is a
fa al infirmi in he LGU e erci e of he po er of
eminent domain.
Hence, its complaint for
expropriation must necessarily fail. [Estate of JBL
Reyes v. City of Manila, GR No. 132431, 2004]
3) Small Property Owners are Exempted. Where
expropriation is resorted to, parcels of land owned
by small property owners shall be exempted for
purposes of this Act. [Sec. 10, RA 7279] Smallproper o ner are defined b
o elemen : (a)
They are owners of real property which consists of
residential lands with an area of not more than 300
sq. meters in highly urbanized cities, and 800 sq.
meters in other urban cities; and (b) They do not
own real property other than the same. [Sec. 3(q),
RA 7279]
Returning the Property
When private land is expropriated for a particular
public use and that purpose is abandoned, there is
no implied con rac ha he proper ie
ill be
used only for the public purpose for which they
were acquired. Property is to be returned only
when it is expropriated with the condition that when
said purpose is ended or abandoned, the former
owner reacquires the property so expropriated, and
not when the expropriation decree gives to the
entity a fee simple which makes the land the
expropriator the absolute owner of the property.
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[Air Transportation Office v. Gopuco, G.R. No.
158563, 2005]
Role of supervising LGU - The only ground upon
which a provincial board may declare any
municipal resolution, ordinance, or order invalid is
when such resolution, ordinance, or order is
beyond the powers of the LGU. Absolutely no
other ground is recognized by the law. Hence, it
cannot declare the ordinance invalid on the ground
that the expropriation is unnecessary. [Moday v.
CA, GR No. 107916, 1997]
Role of national government - The approval of
the national government is not required of local
governments to exercise the power of eminent
domain.
Procedure for expropriation
NATIONAL
GOVERNMENT
LGUs
1. The filing of a
complaint
for
expropriation
sufficient in form and
substance; and
1.
The filing of a
complaint
for
expropriation sufficient in
form and substance; and
2. The deposit of the
amount equivalent to
15% of the fair market
value of the property
to be expropriated
based on its current
tax declaration (Iloilo
v. Legaspi,
G.R.
154614, 2004).
2. The making of a deposit
equivalent
to
the
assessed value of the
property
subject
to
expropriation.
See:
Local
Government
Code, Sec. 19
See: Rules of Court, Rule
67
and
Robern
Development Corporation
v. Quitain, G.R. 135042,
1999
3. POWER OF TAXATION (POWER TO
GENERATE AND APPLY RESOURCES)
CONSTITUTIONAL RULES
1) Each local government unit shall have the power
to create its own sources of revenues and to levy
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 accrue
exclusively to the local governments. [Section 5,
2) Local government units shall have a just share,
as determined by law, in the national taxes which
shall be automatically released to them. [Section 6,
Article X, 1987 Constitution]
3) Local governments shall be entitled to an
equitable share
in the proceeds of the utilization and development
of the national wealth within their respective areas,
in the manner provided by law, including sharing
the same with the inhabitants by way of direct
benefits. [Section 7, Article X, 1987 Constitution]
Power of Taxation is Not Inherent in LGUs
The power to tax "is an attribute of sovereignty,"
and as such, inheres in the State. Such, however,
is not true for provinces, cities, municipalities and
barangays as they are not the sovereign; rather,
they are mere "territorial and political subdivisions
of the Republic of the Philippines."
The rule governing the taxing power of provinces,
cities, municipalities and barangays is summarized
in Icard v. City Council of Baguio: It is settled that a
municipal corporation unlike a sovereign state is
clothed with no inherent power of taxation. The
charter or statute must plainly show an intent to
confer that power or the municipality, cannot
assume it. And the power when granted is to be
construed in strictissimi juris. Any doubt or
ambiguity arising out of the term used in granting
that power must be resolved against the
municipality.
Inferences, implications, deductions
all these
have no place in the interpretation of the taxing
power of a municipal corporation.
Therefore, the power of a province to tax is limited
to the extent that such power is delegated to it
either by the Constitution or by statute.
Per Section 5, Article X of the 1987 Constitution,
"the power to tax is no longer vested exclusively on
Congress; local legislative bodies are now given
direct authority to levy taxes, fees and other
charges." Nevertheless, such authority is "subject
to such guidelines and limitations as the Congress
ma pro ide. [Pelizloy Realty v. Benguet, GR No.
183137, 2013]
Nature of LGUs power to tax
LGUs have no inherent power to tax except to the
extent that such power might be delegated to them
either by the basic law or by the statute. Under the
1987 Constitution, where there is neither a grant
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POLITICAL LAW
nor a prohibition by statute, the tax power must be
deemed to exist although Congress may provide
statutory limitations and guidelines. The basic
rationale for the current rule is to safeguard the
viability and self-sufficiency of local government
units by directly granting them general and broad
tax powers. Nevertheless, the fundamental law did
not intend the delegation to be absolute and
unconditional;
the
constitutional
objective
obviously is to ensure that, while the local
government units are being strengthened and
made more autonomous, the legislature must still
see to it that (a) the taxpayer will not be overburdened or saddled with multiple and
unreasonable impositions; (b) each local
government unit will have its fair share of available
resources; (c) the resources of the national
government will not be unduly disturbed; and (d)
local taxation will be fair, uniform, and just. [Ferrer
v. Bautista, G.R. 210551, 2015]
the provision is merely an advisory to prevail upon
local executives to recognize the need for fiscal
restraint in a period of economic difficulty. Indeed,
all concerned would do well to heed the President's
call to unity, solidarity and teamwork to help
alleviate the crisis. It is understood, however, that
no legal sanction may be imposed upon LGUs and
their officials who do not follow such advice.
[Pimentel v. Aguirre, GR No. 132988, 2015]
Fiscal Autonomy
Fiscal autonomy means that local governments
have the power to create their own sources of
revenue in addition to their equitable share in the
national taxes released by the national
government, as well as the power to allocate their
resources in accordance with their own priorities.
Scope of Power to Generate and Apply
Resources
Local government units shall have the power and
authority to:
Local fiscal autonomy does not, however, rule out
any manner of national government intervention by
way of supervision, in order to ensure that local
programs, fiscal and otherwise, are consistent with
national goals. Significantly, the President, by
constitutional fiat, is the head of the economic and
planning agency of the government, primarily
responsible for formulating and implementing
continuing, coordinated and integrated social and
economic policies, plans and programs for the
entire country. However, under the Constitution,
the formulation and the implementation of such
policies and programs are subject to "consultations
with the appropriate public agencies, various
private sectors, and local government units." The
President cannot do so unilaterally. [Pimentel v.
Aguirre, GR No. 132988, 2015]
Thus, the directive to "identify and implement
mea re
ha ill red ce o al e pendi re
b
at least 25% of authorized regular appropriation"
does not violate local or fiscal autonomy as it is
merely advisory in character, and does not
constitute a mandatory or binding order that
interferes with local autonomy. The language used,
while authoritative, does not amount to a command
that emanates from a boss to a subaltern. Rather,
Tax Ordinance Strictly Construed Against LGU
In case of doubt, any tax ordinance or revenue
measure shall be construed strictly against the
local government unit enacting it, and liberally in
favor of the taxpayer. Any tax exemption, incentive
or relief granted by any local government unit
pursuant to the provisions of this Code shall be
construed strictly against the person claiming
it. [Sec. 5(b), LGC]
1) Establish an organization that shall be
responsible for the efficient and effective
implementation of their development plans,
program objectives and priorities;
2) Create their own sources of revenues and to levy
taxes, fees, and charges which shall accrue
exclusively for their use and disposition and which
shall be retained by them;
3) Have a just share in national taxes which shall
be automatically and directly released to them
without need of any further action;
4) Have an equitable share in the proceeds from
the utilization and development of the national
wealth and resources within their respective
territorial jurisdictions including sharing the same
with the inhabitants by way of direct benefits;
5) Acquire, develop, lease, encumber, alienate, or
otherwise dispose of real or personal property held
by them in their proprietary capacity and to apply
their resources and assets for productive,
developmental, or welfare purposes, in the
exercise or furtherance of their governmental or
proprietary powers and functions and thereby
ensure their development into self-reliant
communities and active participants in the
attainment of national goals. [Sec. 18, LGC]
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Fundamental Principles of Local Taxation
The following fundamental principles shall govern
the exercise of the taxing and other revenue-raising
powers of local government units:
e)
1) Taxation shall be uniform in each local
government unit;
2) Taxes, fees, charges and other impositions
shall:
(a) be equitable and based as far as
practicable on the taxpayer's ability to pay;
(b) be levied and collected only for public
purposes;
(c) not be unjust, excessive, oppressive, or
confiscatory;
(d) (d) not be contrary to law, public policy,
national economic policy, or in the
restraint of trade;
3) The collection of local taxes, fees, charges and
other impositions shall in no case be let to any
private person;
4) The revenue collected pursuant to the
provisions of this Code shall inure solely to the
benefit of, and be subject to the disposition by,
the local government unit levying the tax, fee,
charge or other imposition unless otherwise
specifically provided herein; and
5) Each local government unit shall, as far as
practicable, evolve a progressive system
of taxation. [Sec. 130, LGC]
Sources of LGU Funds
1) Taxes, fees, and charges which accrue
exclusively for their use and disposition
2) Just share in national taxes which shall be
automatically and directly released to them
3) Equitable share in the proceeds from utilization
and development of national wealth and resources
within their territorial jurisdiction [Sec. 18, LGC]
Common Limitations to Taxing Power of LGUs
Unless otherwise provided herein, the exercise of
the taxing powers of provinces, cities,
municipalities, and barangays shall NOT extend to
the levy of the following:
a) Income tax, except when levied on banks and
other financial institutions;
b) Documentary stamp tax;
c) Taxes on estates, inheritance, gifts, legacies
and other acquisitions mortis causa, except as
otherwise provided herein;
d) Customs duties, registration fees of vessel and
wharfage on wharves, tonnage dues, and all
f)
g)
h)
i)
j)
k)
l)
m)
n)
o)
other kinds of customs fees, charges and dues
except wharfage on wharves constructed and
maintained by the local government unit
concerned;
Taxes, fees, and charges and other
impositions upon goods carried into or out of,
or passing through, the territorial jurisdictions
of local government units in the guise of
charges for wharfage, tolls for bridges or
otherwise, or other taxes, fees, or charges in
any form whatsoever upon such goods or
merchandise;
Taxes, fees or charges on agricultural and
aquatic products when sold by marginal
farmers or fishermen;
Taxes on business enterprises certified to by
the Board of Investments as pioneer or nonpioneer for a period of six (6) and four (4)
years, respectively from the date of
registration;
Excise taxes on articles enumerated under the
national Internal Revenue Code, as amended,
and taxes, fees or charges on petroleum
products;
Percentage or value-added tax (VAT) on sales,
barters or exchanges or similar transactions on
goods or services except as otherwise
provided herein;
Taxes on the gross receipts of transportation
contractors and persons engaged in the
transportation of passengers or freight by hire
and common carriers by air, land or water,
except as provided in this Code;
Taxes on premiums paid by way or
reinsurance or retrocession;
Taxes, fees or charges for the registration of
motor vehicles and for the issuance of all kinds
of licenses or permits for the driving thereof,
except tricycles;
Taxes, fees, or other charges on Philippine
products actually exported, except as
otherwise provided herein;
Taxes, fees, or charges, on Countryside and
Barangay
Business
Enterprises
and
cooperatives duly registered under R.A. No.
6810 and R.A. No. 6938 (Cooperative Code,
now RA 9520) respectively; and
Taxes, fees or charges of any kind on the
National Government, its agencies and
instrumentalities, and local government units.
[Sec. 133, LGC]
Requisites of a Tax Ordinance
1. Notice
2. Actual conduct of public hearing
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Constitutionality or Legality of Tax Ordinances
Any question on the constitutionality or legality of
tax ordinances or revenue measures may be raised
on appeal within thirty (30) days from the effectivity
thereof to the Secretary of Justice who shall render
a decision within sixty (60) days from the date of
receipt of the appeal: Provided, however, That
such appeal shall not have the effect of suspending
the effectivity of the ordinance and the accrual and
payment of the tax, fee, or charge levied therein:
Provided, finally, That within thirty (30) days after
receipt of the decision or the lapse of the sixty-day
period without the Secretary of Justice acting upon
the appeal, the aggrieved party may file
appropriate proceedings with a court of competent
jurisdiction. [Sec. 189, LGC]
Rules on LGU Business Taxes
1) Manufacturers, assemblers, repackers, brewers,
distillers, rectifiers and compounders of liquor,
distilled spirits and wines, millers, producers,
exporters, wholesalers, distributors, dealers,
contractors, banks and other financial institutions,
and other businesses, maintaining or operating
branch or sales outlet elsewhere shall record the
sale in the branch or sales outlet making the sale
or transaction, and the tax thereon shall accrue and
shall be paid to the municipality where such branch
or sales outlet is located. [Sec. 150(a), LGC]
2) In cases where there is no such branch or sales
outlet in the city or municipality where the sale or
transaction is made, the sale shall be duly recorded
in the principal office and the taxes due shall
accrue and shall be paid to such city or
municipality. [Sec. 150(a), LGC]
3) The following sales allocation shall apply to
manufacturers,
assemblers,
contractors,
producers, and exporters with factories, project
offices, plants, and plantations in the pursuit of their
business:
(a) Thirty percent (30%) of all sales recorded in
the principal office shall be taxable by the city
or municipality where the principal office is
located; and
(b) Seventy percent (70%) of all sales recorded
in the principal office shall be taxable by the city
or municipality where the factory, project office,
plant, or plantation is located. [Sec. 150(b),
LGC]
4) In case of a plantation located at a place other
than the place where the factory is located, said
seventy percent (70%) mentioned above shall be
divided as follows:
POLITICAL LAW
(a) Sixty percent (60%) to the city or
municipality where the factory is located; and
(b) Forty percent (40%) to the city or
municipality where the plantation is located.
[Sec. 150(c), LGC]
5) In cases where a manufacturer, assembler,
producer, exporter or contractor has two (2) or
more factories, project offices, plants, or
plantations located in different localities, the
seventy percent (70%) sales allocation mentioned
above shall be prorated among the localities where
the factories, project offices, plants, and
plantations are located in proportion to their
respective volumes of production during the period
for which the tax is due. [Sec. 150(d), LGC]
Withdrawal of Local Tax Exemption Privileges
Unless otherwise provided in the LGC, tax
exemptions or incentives granted to, or enjoyed by
all persons, whether natural or juridical, including
government-owned or - controlled corporations
were withdrawn upon the effectivity of the LGC.
[Sec. 193, LGC]
Privileges Retained: Tax exemption privileges of
the following were not withdrawn by the LGC from
the following:
1. Local water districts;
2. Cooperatives duly registered under R.A. No.
6938; and
3. Non-stock and non-profit hospitals and
educational institutions
[Sec. 193,
LGC; Sec.
234, LGC]
Real Property Taxation
Annual ad valorem tax on real property may be
levied by:
(1) Province; or
(2) City; or
(3) Municipality within Metropolitan Manila Area
(i.e. Pateros is the only one) [Sec. 232, LGC]
Exemptions from Real Property Tax
The following are exempted from payment of the
real property tax:
(a) Real property owned by the Republic of the
Philippines or any of its political subdivisions
except when the beneficial use thereof has been
granted, for consideration or otherwise, to a taxable
person;
(b) Charitable institutions, churches, parsonages or
convents appurtenant thereto, mosques, non-profit
or religious cemeteries and all lands, buildings, and
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improvements actually, directly, and exclusively
used for religious, charitable or educational
purposes;
(c) All machineries and equipment that are actually,
directly and exclusively used by local water districts
and government owned or controlled corporations
engaged in the supply and distribution of water
and/or generation and transmission of electric
power;
POLITICAL LAW
International Airport Authority [MCIAA v. City of
Lapu-Lapu, GR No. 181756, 2015] NOTE: SC
used definition of Instrumentality under the
Administrative Code of 1987.
3) Light Rail Transit Authority [LRTA v. Quezon
City, GR No. 221626, 2019]
4) Philippine Heart Center [Phil. Heart Center v.
QC, GR No. 225409, 2020]
(d) All real property owned by duly registered
cooperatives as provided for under R.A. No. 6938;
and
NOTE: In the LRTA and Philippine Heart Center
Cases, the SC used the GICP/GCE definition
under RA 10149.
(e) Machinery and equipment used for pollution
control and environmental protection. [Sec. 234,
LGC]
REMEMBER: Government Instrumentalities with
Corporate Powers (GICP)/Government Corporate
Entities (GCE) - refer to instrumentalities or
agencies of the government, which are neither
corporations nor agencies integrated within the
departmental framework, but vested by law with
special functions or jurisdiction, endowed with
some if not all corporate powers, administering
special funds, and enjoying operational autonomy
usually through a charter including, but not limited
to, the following: the Manila International Airport
Authority (MIAA), the Philippine Ports Authority
(PPA), the Philippine Deposit Insurance
Corporation (PDIC), the Metropolitan Waterworks
and Sewerage System (MWSS), the Laguna Lake
Development Authority (LLDA), the Philippine
Fisheries Development Authority (PFDA), the
Bases Conversion and Development Authority
(BCDA), the Cebu Port Authority (CPA), the
Cagayan de Oro Port Authority, the San Fernando
Port Authority, the Local Water Utilities
Administration (LWUA) and the Asian Productivity
Organization (APO). [Section 3(n), GOCC
Governance Act of 2011, Republic Act No. 10149]
EXCEPTION TO THE EXEMPTION: Except as
provided herein, any exemption from payment of
real property tax previously granted to, or presently
enjoyed by, all persons, whether natural or juridical,
including all government-owned or controlled
corporations are hereby withdrawn upon the
effectivity of this Code. [Sec. 234, LGC] NOTE:
Withdrawal of exemption from RPT does not apply
to GICPs/GCEs/Instrumentalities of the National
Government; hence, they are not subject to real
property tax as instrumentalities of the National
Government or State are exempt from local
taxation under Sec. 133(o) of the LGC.
Being instrumentalities of the government,
GICPs/GCEs are not subject to real property tax
imposed by the LGUs except when beneficial use
of the real property is granted to a taxable entity,
which shall be liable for the same. Thus, the
following have been held by the SC as being
exempt from real property tax/local taxation:
1) Philippine Amusement and Gaming Corporation
[Basco v. PAGCOR, GR No. 91649, 1991]
2) Manila International Airport Authority and
Mactan Cebu International Airport Authority are
instrumentalities of the government, not a GOCC;
thus, its properties actually, solely and exclusively
used for public purposes, consisting of the airport
terminal building, airfield, runway, taxiway and the
lots on which they are situated, are not subject to
real property tax and the city is not justified in
collecting taxes from petitioner over said
properties. [MIAA v. Court of Appeals, GR No.
155650, 20 July 2006; MIAA v. City of Pasay, GR
No. 163072, 2 April 2009] and Macta-Cebu
Other limitations on taxing powers of LGUs
Taxes
already
imposed
by
National
Government: Generally, LGUs cannot impose
taxes that are already imposed by the National
Government (e.g. income tax, documentary
stamps, estate taxes, customs duties, excise taxes
under the NIRC, VAT) [See generally, Sec. 133,
LGC]
Persons exempted: LGUs cannot impose taxes,
fees, and charges on (a) countryside and barangay
business enterprises; (b) cooperatives duly
registered under the Cooperative Code; and
National
Government,
its
agencies
and
instrumentalities, and local government units. [Sec.
133(n)-(o), LGC]
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Hence, the MIAA, MCIAA, LRTA, PAGCOR,
and Philippine Heart Center, and other
GICPs/GCEs being such an instrumentalities
of the National Government, are exempt from
local taxation.
However, all other GOCCs (which are neither
GICPs nor GCEs) are not exempt from local
taxation. [MIAA v. CA (2006)]
Doctrines:
1) L ca Ta a
R
. The law requires
that a dissatisfied taxpayer who questions the
validity or legality of a tax ordinance must file its
appeal to the Secretary of Justice within 30 days
from effectivity thereof. In case the Secretary
decides the appeal, a period of 30 days is allowed
for an aggrieved party to go to Court. But if the
Secretary does not act after the lapse of 30 days,
a party could already proceed to seek relief in
Court. [Reyes et al v. CA, G.R. 118233, 1999; Sec.
187, 1991 LGC]
2) Power of Secretary of Justice to Review Tax
Ordinance. Section 187 authorizes the Secretary
of Justice to review only the constitutionality or
legality of the tax ordinance and, if warranted, to
revoke it on either or both of these grounds. When
he alters or modifies or sets aside a tax ordinance,
he is not also permitted to substitute his own
judgment for the judgment of the local government
that enacted the measure. Secretary Drilon did set
aside the Manila Revenue Code, but he did not
replace it with his own version of what the Code
should be. He did not pronounce the ordinance
unwise or unreasonable as a basis for its
annulment. He did not say that in his judgment it
was a bad law. What he found only was that it was
illegal. All he did in reviewing the said measure was
determine if the petitioners were performing their
functions is accordance with law, that is, with the
prescribed procedure for the enactment of tax
ordinances and the grant of powers to the city
government under the Local Government Code. As
we see it, that was an act not of control but of mere
supervision. [Drilon v. Lim, GR No. 112497, 1994]
The evaluation involves an exercise of quasijudicial power by the Secretary of Justice. In
deciding the same, the Secretary of Justice must
ascertain the existence of factual circumstances
specifically, whether the tax ordinance was passed
in accordance with the procedure and the
limitations set forth by the LGC. And from there
make a conclusion as to the validity and
applicability of the same to the taxable persons.
Thus, the Court of Appeals is the court vested
POLITICAL LAW
with exclusive original jurisdiction to entertain a
petition for certiorari under Rule 65 questioning the
acts of quasi-judicial agencies. [De Lima v. City of
Manila, GR No. 22286, 2018]
3) Mayor Cannot Grant Local Tax Exemption. A
municipal mayor who is an executive officer may
not unilaterally withdraw such an expression of a
policy thru the enactment of a tax." The waiver
partakes of the nature of an exemption. It is an
ancient rule that exemptions from taxation are
construed in strictissimi juris against the taxpayer
and liberally in favor of the taxing authority (Esso
Standard Eastern, Inc. v. Acting Commissioner of
Customs, 18 SCRA 488 [1966]). Tax exemptions
are looked upon with disfavor (Western Minolco
Corp. v. Commissioner of Internal Revenue, 124
SCRA 121 [1983]). Thus, in the absence of a clear
and express exemption from the payment of said
fees, the waiver cannot be recognized. As already
stated, it is the law-making body, and not an
executive like the mayor, who can make an
exemption. [Philippine Petroleum Corp. v.
Municipality of Pililla G.R. No. 90776, 1991]
Local government units may, through ordinances
duly approved, grant tax exemptions, incentives or
reliefs under such terms and conditions as they
may deem necessary. [Sec. 192, LGC]
4) Administrative Regulations or Executive
I
a c
Ca
L
LGU
P
Taxation. The exercise by local governments of
the power to tax is ordained by the present
Constitution. To allow the continuous effectivity of
the prohibition set administrative regulation (by the
DOF) o ld be an amo n o re ric ing he LGU
power to tax by mere administrative issuances.
Under Section 5, Article X of the 1987 Constitution,
only guidelines and limitations that may be
established by Congress can define and limit such
power of local governments. [Philippine Petroleum
Corp. v. Municipality of Pililla G.R. No. 90776,
1991]
5) The BIR has no authority to determine the
applicability of local ordinances. Besides, even
the Bureau itself states that the exemption shall not
apply if the sand and gravel were to be disposed of
commercially. An exemption from the requirements
of the provincial government should have a clear
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basis, whether in law, ordinance, or even from the
contract itself. (Lepanto Consolidated Mining
Company v. Ambanloc, G.R. 180639, 2010).
6) COA Jurisdiction Despite Local Fiscal
Autonomy. The COA is endowed with enough
latitude to determine, prevent, and disallow
irregular, unnecessary, excessive, extravagant, or
unconscionable expenditures of government
funds. The Court had therefore previously upheld
the authority of COA to disapprove payments which
it finds excessive and disadvantageous to the
go ernmen ; o de ermine he meaning of p blic
bidding; and hen here i fail re in he bidding, o
disallow expenditures which it finds unnecessary
according to its rules even if disallowance will mean
discontinuance of foreign aid; to disallow a contract
even after it has been executed and goods have
been delivered. Thus, LGUs, though granted local
fiscal autonomy, are still within the audit jurisdiction
of the COA. It is only when the COA has acted
without or in excess of jurisdiction, or with grave
abuse of discretion amounting to lack or excess of
jurisdiction, that this Court entertains a petition
questioning its rulings [Veloso v. COA, G.R.
193677, 2011]
7) One Year Redemption Period Counted From
Date of
Sale. Forfeiture of tax delinquent
properties transpires no later than the purchase
made by the city due to lack of a bidder from the
public. This happens on the date of the sale
(auction happened earlier in time), and not upon
the issuance of the declaration of forfeiture
(annotation on the titles happened later in time).
[City of Davao v. Intestate Estate of Amado S.
Dalisay, G.R. 207791, 2015]
8) Ministerial Duty of the Mayor. The mayor has
the ministerial duty to ensure that all taxes and
other revenues of the city are collected, and that
city funds are applied to the payment of expenses
and settlement of obligations of the city, in
accordance with law or ordinance. On the other
hand, under the LGC, all local taxes, fees, and
charges shall be collected by the provincial, city,
municipal, or barangay treasurer, or their dulyauthorized deputies, while the assessor shall take
charge, among others, of ensuring that all laws and
policies governing the appraisal and assessment of
real properties for taxation purposes are properly
executed. Thus, a writ of prohibition may be issued
against them to desist from further proceeding in
the action or matter specified in the petition. [Ferrer
v. Bautista, G.R. 210551, 2015]
POLITICAL LAW
9) Regulatory Fee vs. Cost of Regulation. To
pass judicial scrutiny, a regulatory fee must not
produce revenue in excess of the cost of the
regulation because such fee will be construed as
an illegal tax when the revenue generated by the
regulation exceeds the cost of the regulation.
[Ferrer v. Bautista, G.R. 210551, 2015]
10) No Levy of Local Taxes on Petroleum
Products. While local government units are
authorized to burden all such other class of goods
i h a e , fee and charge , e cep ing e ci e
taxes, a specific prohibition is imposed barring the
levying of any other type of taxes with respect to
petroleum products. [Petron Corporation v.
Tiangco, G.R. 158881, 2008; Batangas City v.
Pilipinas Shell Petroleum Corp., G.R. 187631,
2015]
11) Fiscal Flexibility of LGU in Fixing Additional
Levy. Setting the rate of the additional levy for the
special education fund at less than 1% is within the
taxing power of local government units. It is
consistent with the guiding constitutional principle
of local autonomy. The option given to a local
government unit extends not only to the matter of
whether to collect but also to the rate at which
collection is to be made. The limits on the level of
additional levy for the special education fund under
Section 235 of the Local Government Code should
be read as granting fiscal flexibility to local
government units. [Demaala v. COA, G.R. 199752,
2015]
12) Amusement Taxes. By operation of Sec. 151
of the LGC extending to cities the authority of
provinces and municipalities to levy certain taxes,
fees, and charges, cities may therefore validly levy
amusement taxes on cinemas subject to the
parameters set forth under the law. [Film
Development Council of the Philippines v. City of
Cebu et al, G.R. 204418, 2015]
However, resorts, swimming pools, bath houses,
hot springs and tourist spots are not proper
subjects of amusement taxes as they do not belong
to the same category or class as theaters, cinemas,
concert halls, circuses, and boxing stadia.
Amusement Places include theaters, cinemas,
concert halls, circuses and other places of
amusement where one seeks admission to
entertain oneself by seeing or viewing the show or
performances.
Accordingly, 'other places of
amusement' must be interpreted in light of the
typifying characteristic of being venues "where one
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seeks admission to entertain oneself by seeing or
viewing the show or performances" or being
venues primarily used to stage spectacles or hold
public shows, exhibitions, performances, and other
events meant to be viewed by an audience.
[Pelizloy Realty v. Benguet, GR No. 183137, 2013]
13) Taxes levied by LGUs shall accrue exclusively
to the LGU and to earmark, if not altogether
confiscate, the income to be received by the LGU
from the taxpayers in favor of and for transmittal to
the Film Development Council of the Philippines, is
repugnant to the power of LGUs to apportion their
resources in line with their priorities. [Film
Development Council of the Philippines v. City of
Cebu et al, G.R. 204418, 2015).
14) A certiorari petition questioning an interlocutory
order issued in a local tax case falls under the
jurisdiction of the CTA. [CE Casecnan Water and
Energy Company, Inc. v. The Province of Nueva
Ecija, G.R. 196278, 2015]
15) The socialized housing tax charged by the city
is a tax which is within its power to impose. Aside
from the specific authority vested by Section 43 of
the UDHA, cities are allowed to exercise such other
powers and discharge such other functions and
responsibilities as are necessary, appropriate, or
incidental to efficient and effective provision of the
basic services and facilities which include, among
others, programs and projects for low-cost housing
and other mass dwellings. The collections made
accrue to its socialized housing programs and
projects. The tax is not a pure exercise of taxing
power or merely to raise revenue; it is levied with a
regulatory purpose. The levy is primarily in the
exercise of the police power for the general welfare
of the entire city. It is greatly imbued with public
interest. [Ferrer v. Bautista, G.R. N210551, 2015]
16) Regulation of Activity and Tax. The garbage
fee is a charge fixed for the regulation of an activity.
It is not a tax and cannot violate the rule on double
taxation. [Ferrer v. Bautista, G.R. 210551, 2015]
Just Share in the National Taxes (formerly
Internal Revenue Allotment (IRA) share of
LGUs)
General Rule: The current sharing is 40% local,
60% national. LGUs shall have a 40% share in the
national taxes based on the collection of the third
fiscal year preceding the current fiscal year. [Sec.
284(c), LGC]
Exception:
That in the event that the national government
incurs an unmanageable public sector deficit, the
President of the Philippines is hereby authorized,
upon the recommendation of Secretary of Finance,
Secretary of Interior and Local Government and
Secretary of Budget and Management, and subject
to consultation with the presiding officers of both
Houses of Congress and the presidents of the
"liga," to make the necessary adjustments in the
allotment of local government units but in no case
shall the allotment be less than thirty percent (30%)
of the collection of national taxes of the third fiscal
year preceding the current fiscal year. [Sec. 284,
par. 2, LGC].
Requisites for Exception:
1. Unmanageable public sector deficit;
2. Recommendation of the Secretaries of (a)
Finance, (b) In ernal and Local Go , and (c)
Budget and Management; and
3. Consultation with (a) heads of both houses of
Congress, and (b) presidents of the liga.
4. Allotment shall not be lower than 30% of the
national taxes collection. [Sec. 284, par. 2,
LGC]
NOTES:
1) The SC in Mandanas v. Ochoa deleted all the
phrase in ernal re en e in the LGC for being
unconstitutional when referring to the just share of
LGUs, particularly in Secs. 284, 285, 287, and 290.
Thus, any mention of "Internal Revenue Allotment"
or "IRA" in Republic Act No. 7160 (Local
Government Code) and its Implementing Rules
and Regulations shall be understood as pertaining
to the allotment of the Local Government Units
derived from the national taxes. [Mandanas v.
Ochoa, Jr., G.R. Nos. 199802 & 208488, July 3,
2018]
2) The Mandanas ruling will only apply starting
with the 2022 budget cycle since the 03 July
2018 decision became final and executory on
10 June 2019. Inevitably, the 2019 Budget can no
longer include the changes brought about by Our
July 3, 2018 decision. The SC said: While the
amounts and the national taxes during the third
fiscal year preceding or in 2016 can already be
determined as of this time, it would be too late to
include the same in the 2019 budget since
Congress had already approved the 2019 General
Appropriations Act (GAA), and we are already in
the last quarter of the year. Neither can the same
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amounts be considered in drawing up the 2020 and
2021 budget because their budget cycles have
already commenced. Notable that for the 2020
budget, Congress is already in the process of
conducting budget hearings to finalize the GAA.
Adding the amounts based on our ruling in the
2020 budget would only disrupt the proceedings
and impede the passing of the GAA. It would also
be imprudent for the Court to compel the Executive
to start from scratch and jettison all existing plans
and allotments to the detriment of the 2020 and
2021 GAA. [Mandanas v. Ochoa, G.R. Nos.
199802 & 208488 (Notice), October 8, 2019]
Automatic Release of Just Share
1) Section 6, Article X the 1987 Constitution
textually commands the automatic release of the
just share in the national taxes, viz.: Section
6. Local government units shall have a just share,
as determined by law, in the national taxes which
shall be automatically released to them.
2) The LGC implements this by providing that the
share of each LGU shall be released, without need
of any further action, directly to the respective
treasurer on a quarterly basis within five (5) days
after the end of each quarter, and which shall not
be subject to any lien or holdback that may be
imposed by the national government for whatever
purpose. [Sec. 286(a), LGC]
Section 6 does not mention of appropriation as a
condition for the automatic release of the just share
to the LGUs. This is because Congress not only
already determined the just share through the
LGC's fixing the percentage of the collections of the
NIRTs to constitute such fair share subject to the
power of the President to adjust the same in order
to manage public sector deficits subject to
limitations on the adjustments, but also explicitly
authorized such just share to be "automatically
released" to the LGUs in the proportions and
regularity set under Section 285 79 of the LGC
without need of annual appropriation. To
operationalize the automatic release without need
of appropriation, Section 286 of the LGC clearly
provides that the automatic release of the just
share directly to the provincial, city, municipal or
barangay treasurer, as the case may be, shall
be "without need of any further action." [Mandanas
v. Ochoa, Jr., G.R. Nos. 199802 & 208488, [July 3,
2018]
POLITICAL LAW
Withholding 10 percent of the LGUs' IRA "pending
the assessment and evaluation by the
Development Budget Coordinating Committee of
the emerging fiscal situation" in the country is
invalid. Such withholding clearly contravenes
the Constitution and the law. Although temporary,
it is equivalent to a holdbacks which means
"something held back or withheld, often
temporarily." Hence, the "temporary" nature of the
retention by the national government does not
matter. Any retention is prohibited. [Pimentel v.
Aguirre, GR No. 132988, 2015]
The National Taxes Included in Mandanas v.
Ochoa
The national taxes to be included in the base for
computing the just share the LGUs shall henceforth
be, but shall not be limited to, the following:
1) The NIRTs enumerated in Section 21 of the
NIRC, as amended, to be inclusive of the
VATs, excise taxes, and DSTs collected by the
BIR and the BOC, and their deputized agents;
2) Tariff and customs duties collected by the
BOC;
3) 50% of the VATs collected in the ARMM, and
30% of all other national taxes collected in the
ARMM; the remaining 50% of the VATs and
70% of the collections of the other national
taxes in the ARMM shall be the exclusive share
of the ARMM pursuant to Sections 9 and 15 of
R.A. No. 9054;
4) 60% of the national taxes collected from the
exploitation and development of the national
wealth; the remaining 40% will exclusively
accrue to the host LGUs pursuant to Section
290 of the LGC;
5) 85% of the excise taxes collected from locally
manufactured Virginia and other tobacco
products; the remaining 15% shall accrue to
the special purpose funds pursuant created in
R.A. No. 7171 and R.A. No. 7227;
6) The entire 50% of the national taxes collected
under Section 106 (VAT on goods/properties),
Section 108 (VAT on services/lease) and
Section 116 (Tax on VAT exempt persons) of
the NIRC in excess of the increase in
collections for the immediately preceding year;
and
7) 5% of the franchise taxes in favor of the
national government paid by franchise holders
in accordance with Section 6 of R.A. No. 6631
and Section 8 of R.A. No. 6632. [Mandanas v.
Ochoa, Jr., G.R. Nos. 199802 & 208488, July
3, 2018]
IRA/National Taxes Allotment
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The share of local government units in the
allotment shall be collected in the following
manner:
(a) Provinces - Twenty-three percent (23%);
(b) Cities - Twenty-three percent (23%);
(c) Municipalities - Thirty-four percent (34%); and
(d) Barangays - Twenty percent (20%) [Sec. 285,
LGC]
IRA/National Taxes Sharing Formula
1) The share of each province, city, and
municipality shall be determined on the basis of the
following formula:
(a) Population - Fifty percent (50%);
(b) Land Area - Twenty-five percent (25%); and
(c) Equal sharing - Twenty-five percent (25%) [Sec.
285, LGC]
2) The share of each barangay with a population of
not less than one hundred (100) inhabitants shall
not be less than Eighty thousand (P80,000.00) per
annum chargeable against the twenty percent
(20%) share of the barangay from the allotment,
and the balance to be allocated on the basis of the
following formula:
(1) Population - Sixty percent (60%); and
(2) Equal sharing - Forty percent (40%) [Sec. 285,
LGC]
20% of National Allotment for Development
Projects
Each local government unit shall appropriate in its
annual budget no less than twenty percent (20%)
of its annual (internal revenue/national taxes)
allotment for development projects. Copies of the
development plans of local government units shall
be furnished the Department of Interior and Local
Government. [Sec. 287, LGC]
Equitable Share of LGUs in the Utilization and
Development of National Wealth
1) Local government units shall have an equitable
share in the proceeds derived from the utilization
and development of the national wealth within their
respective areas, including sharing the same with
the inhabitants by way of direct benefits. [Sec. 289,
LGC]
2) Local government units shall, in addition to the
allotment, have a share of forty percent (40%) of
the gross collection derived by the national
government from the preceding fiscal year from
mining taxes, royalties, forestry and fishery
charges, and such other taxes, fees, or charges,
including related surcharges, interests, or fines,
and from its share in any co-production, joint
POLITICAL LAW
venture or production sharing agreement in the
utilization and development of the national wealth
within their territorial jurisdiction. [Sec. 290, LGC]
3) Local government units shall have a share
based on the preceding fiscal year from the
proceeds derived by any government agency or
government-owned or controlled corporation
engaged in the utilization and development of the
national wealth based on the following formula
whichever will produce a higher share for the local
government unit:
(a) One percent (1%) of the gross sales or receipts
of the preceding calendar year; or
(b) Forty percent (40%) of the mining taxes,
royalties, forestry and fishery charges and such
other taxes, fees or charges, including related
surcharges, interests, or fines the government
agency or government owned or controlled
corporation would have paid if it were not otherwise
exempt. [Sec. 291, LGC]
4) The share in the preceding Section (i.e. Sec.
291) shall be distributed in the following manner:
(a) Where the natural resources are located in the
province:
(1) Province - Twenty percent (20%);
(2) Component City/Municipality - Fortyfive percent (45%); and
(3) Barangay - Thirty-five percent (35%)
Provided, however, That where the natural
resources are located in two (2) or more provinces,
or in two (2) or more component cities or
municipalities or in two (2) or more barangays, their
respective shares shall be computed on the basis
of:
(1) Population - Seventy percent (70%);
and
(2) Land area - Thirty percent (30%)
(b) Where the natural resources are located in a
highly urbanized or independent component city:
(1) City - Sixty-five percent (65%); and
(2) Barangay - Thirty-five percent (35%)
Provided, however, That where the natural
resources are located in such two (2) or more
cities, the allocation of shares shall be based on the
formula on population and land area as specified in
paragraph (a) of this Section (i.e. Sec. 292). [Sec.
292, LGC]
5) The share of local government units from the
utilization and development of national wealth shall
be remitted in accordance with Section 286 of this
Code (i.e. automatic release similar to national
taxes allotment): Provided, however, That in the
case of any government agency or governmentPage 455 of 568
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owned or controlled corporation engaged in the
utilization and development of the national wealth,
such share shall be directly remitted to the
provincial, city, municipal or barangay treasurer
concerned within five (5) days after the end of each
quarter. [Sec. 293, LGC]
6) The proceeds from the share of local
government units pursuant to this chapter shall be
appropriated by their respective sanggunian to
finance local government and livelihood projects:
Provided, however, That at least eighty percent
(80%) of the proceeds derived from the
development and utilization of hydrothermal,
geothermal, and other sources of energy shall be
applied solely to lower the cost of electricity in the
local government unit where such a source of
energy is located. [Sec. 294, LGC]
4. CORPORATE POWERS AND OTHER
POWERS
Corporate Powers: (PSC3)
1. Have Continuous succession in its corporate
name
2. Sue and be sued
3. Have and use a Corporate seal
4. Acquire and convey real or personal Property
5. Enter into Contracts
Requisites of valid municipal contracts: (FOLSID a
ID )
1. It must comply with Formal requirements
2. LGU can exercise such Other powers granted
to corporations, subject to limitations in the
LGC and other laws
3. In case entered into by Local chief executive
on behalf of LGU, prior authorization by
Sanggunian concerned is needed.
4. It must comply with Substantive requirements.
5. LGU has express, implied, or Inherent power
to enter into a particular contract.
6. It must be entered into by the proper
Department, board, committee, or agent.
The doctrine of separate personality of a
corporation finds no application in the Cooperative
Development Authority which was created by virtue
of RA 6939, since it is not a private entity but a
government agency. [Verzosa v. Carague, G.R.
157838, 2011].
For local government infrastructure projects,
Regional Trial Courts may issue provisional
injunctive reliefs against government infrastructure
projects only when:
POLITICAL LAW
1. there are compelling and substantial
constitutional violations;
2. there clearly exists a right in esse;
3. there is a need to prevent grave and
irreparable injuries;
4. there is a demonstrable urgency to the
issuance of the injunctive relief; and
5. when there are public interest at stake in
restraining or enjoining the project while the
action is pending that far outweighs
a. the inconvenience or costs to the party to
whom the project is awarded and
b. the public benefits that will result from the
completion of the project. The time periods
for the validity of temporary restraining
orders issued by trial courts should be
strictly followed. No preliminary injunction
should issue unless the evidence to
support the injunctive relief is clear and
convincing. [Dynamic Builders and
Construction Co., Inc. v. Presbitero, G.R.
174201, 2015]
A municipality is a real party-in-interest and an
indispensable party that stands to be directly
affected by any judicial resolution on the case
assailing the validity of the loan, considering that:
(a) the contracting parties to the loans are the bank
and the municipality; and (b) the municipality owns
the public plaza as well as the improvements
constructed thereon, and must therefore be
impleaded in the case. [Land Bank v. Cacayuran,
G.R. 191667, 2015].
Liabilities arising from construction contracts of
LGUs do not partake of loans or forbearance of
money but are in the nature of contracts of service.
Hence, the rate of legal interest imposable on the
liability to pay for the service is 6% per annum. [WT
Construction, Inc. v. The Province of Cebu, G.R.
208984, 2015]
To Sue and Be Sued
LGUs have the power to sue and be sued. (Local
Government Code, sec. 22(a)(2)). Because of the
statutory waiver, LGUs are not immune from suit.
The OSG may not be compelled to represent local
government units. The LGC vests exclusive
a hori
pon he LGU legal officers to be
counsels of local government units. Even the
employment of a special legal officer is expressly
allowed by the law only upon a strict condition that
the action or proceeding which involves the
component city or municipality is adverse to the
provincial government or to another component
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city or municipalit. [OSG v. CA and Municipal
Government of Suguiran, G.R. 199027, 2014].
A municipality can be sued for damages arising
from injuries sustained by a pedestrian who was hit
by a glass pane that fell from a dilapidated window
frame of the municipal hall. Under Section 24 of the
LGC and Article 2189 of the Civil Code, the
municipality is liable for damages arising from
injuries to persons by reason of negligence of local
government units on the defective condition of the
municipal hall, which is under their control and
supervision.
To Acquire and Sell Property
Properties of the public dominion devoted to public
use and made available to the public in general are
outside the commerce of persons and cannot be
disposed of or leased by the LGU to private
persons. [Macasiano v. Diokno, G.R. 97764, 1992]
Pursuant to the regalian doctrine, any land that has
never been acquired through purchase, grant or
any other mode of acquisition remains part of the
public domain and is owned by the State. LGUs
cannot appropriate to themselves public lands
without prior grant from the government. [Rural
Bank of Anda v. Roman Catholic Archbishop of
Lingayen-Dagupan, G.R. 155051, 2007]
To Enter Into Contracts
Unless otherwise provided in the LGC, no contract
may be entered into by the local chief executive in
behalf of the LGU without prior authorization by the
Sanggunian concerned. A legible copy of such
contract shall be posted at a conspicuous place in
the provincial capitol or the city, municipal or
barangay hall (Local Government Code, sec.
22(c)). Without the council authorization/
ratification, the contract is unenforceable.
While the authorization of local chief executive
need not be in the form of an ordinance, the
obligation (i.e. incurring a loan) which the said local
executive is authorized to enter into must be made
pursuant to a law or ordinance. [LBP v. Cacayuran,
GR No. 191667, 2013]
The prior authorization may be in the form of an
appropriation ordinance passed for the year which
specifically covers the project, cost or contract to
be entered into by the LGU. [Quisumbing v. Garcia,
G.R. 175527, 2008]
Those beyond the powers of the LGU may be
subject to veto of the local executive or review of
POLITICAL LAW
the local legislative for being ultra vires.
Ultra Vires Acts/Contracts
Generally, an ultra vires act is one committed
outside the object for which a corporation is created
as defined by the law of its organization and
therefore beyond the powers conferred upon it by
law. There are two (2) types of ultra vires acts.
VOID
IRREGULAR
ULTRA VIRES
ULTRA VIRES
Those which (a) are Those which (a) are
entered into beyond entered into by the
the express, implied improper department,
or inherent powers of board, officer of agent;
the local government and (b) do not comply
unit, e.g. converting a with
the
formal
public plaza into a requirements of a
commercial center; written contract e.g.,
and (b) do not comply the Statute of Frauds.
with the substantive
requirements of law,
e.g.,
when
expenditure of public
funds is to be made,
there must be an
actual appropriation
and certificate of
availability of funds.
[LBP v. Cacayuran, GR No. 191667, 2013]
a. Municipal Liability
Suability of LGUs
The general rule spelled out in Section 3, Article
XVI of the Constitution is that the state and its
political subdivisions may not be sued without their
consent. Otherwise put, they are open to suit but
only when they consent to it. Consent is implied
when the government enters into a business
contract, as it then descends to the level of the
other contracting party; or it may be embodied in a
general or special law such as that found in Book I,
Title I, Chapter 2, Section 22 of the Local
Government Code of 1991, which vests local
government units with certain corporate powers
one of them is the power to sue and be sued.
[Municipality of Hagonoy v. Dumdum, GR No.
168289, 2010]
Suability vs. Liability
A distinction should first be made between suability
and liability. Suability depends on the consent of
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the state to be sued, liability on the applicable law
and the established facts. The circumstance that a
state is suable does not necessarily mean that it is
liable; on the other hand, it can never be held liable
if it does not first consent to be sued. Liability is not
conceded by the mere fact that the state has
allowed itself to be sued. When the state does
waive its sovereign immunity, it is only giving the
plaintiff the chance to prove, if it can, that the
defendant is liable. [Municipality of San Fernando
v. Firme, GR No. 52179, 8 April 1991 citing United
States of America v. Guinto, supra, p. 659-660]
Additionally, as held in City of Caloocan v. Allarde,
where the suability of the state is conceded and by
which liability is ascertained judicially, the state is
at liberty to determine for itself whether to satisfy
the judgment or not. Execution may not issue upon
such judgment, because statutes waiving nonsuability do not authorize the seizure of property to
satisfy judgments recovered from the action. These
statutes only convey an implication that the
legislature will recognize such judgment as final
and make provisions for its full satisfaction. Thus,
where consent to be sued is given by general or
special law, the implication thereof is limited only to
the resultant verdict on the action before execution
of the judgment. [Municipality of Hagonoy v.
Dumdum, GR No. 168289, 22 March 2010 citing
City of Caloocan v. Allarde, 457 Phil. 543, 553
(2003)]
Death or Injury to Persons or Damage to
Property
Local government units and their officials are not
exempt from liability for death or injury to persons
or damage to property. [Sec. 24, LGC]
NOTES:
1) It is not yet well-settled if Sec. 24 of the LGC
extends to both governmental duties and
proprietary functions.
2) 2 schools of thought: a) Sec. 24 of the LGC
applies to both governmental and proprietary
functions; b) Sec. 24 of the LGC applies to
proprietary functions only and not to governmental
or sovereign functions or duties.
3) It is submitted that Sec. 24 of the LGC applies
only to proprietary functions and will make the LGU
and its officials liable for governmental functions if
the acts are not in good faith, dishonest, malicious,
whimsical, capricious, or arbitrary, which must be
proven in court.
Governmental
Functions
Functions
vs.
Proprietary
Governmental Functions
a) If the injury is caused in the course of the
performance of a governmental function or duty no
recovery, as a rule, can be had from the
municipality unless there is an existing statute on
the matter.
b) No recovery can be had also from municipal
officials so long as they performed their duties
honestly and in good faith or that they did not act
wantonly and maliciously. [Torio v. Fontanilla, G.R.
No. L-29993, L-30183, 1978]
Thus, the municipality cannot be held liable for the
torts committed by its regular employee, who was
then engaged in the discharge of governmental
functions. Hence, the death of the passenger
tragic and deplorable though it may be imposed on
the municipality no duty to pay monetary
compensation. [Municipality of San Fernando v.
Firme, GR No. 52179, 1991 citing Palafox v. Ilocos
Norte, GR No. L-10659, 1958]
Proprietary Functions
a) With respect to proprietary functions, the settled
rule is that a municipal corporation can be held
liable to third persons ex contractu or ex delicto.
[Torio v. Fontanilla, G.R. No. L-29993, L-30183,
1978]
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The celebration of a town fiesta by a municipality is
not a governmental function. The legal
consequence is that the municipality stands on the
same footing as an ordinary private corporation
with the municipal council acting as its board of
directors. It is an elementary principle that a
corporation has a personality separate and distinct
from its officers, directors, or persons composing it
and the latter are not as a rule co-responsible in an
action for damages for tort or negligence (culpa
acquiliana) committed by the corporation's
employees or agents unless there is a showing of
bad faith or gross or wanton negligence on their
(i.e. the councilors who authorized the town fiesta)
part. [Torio v. Fontanilla, G.R. No. L-29993, L30183, 1978]
Leasing of a municipal ferry to the highest bidder
for a specified period of time is not a governmental
but corporate function. Such a lease, when validly
entered into, constitutes a contract with the lessee
which the municipality is bound to respect. Thus,
municipal council liable for damages for revocation
of the fishing without a valid reason. [Mendoza v.
De Leon, GR No. 9596, 1916]
Civil liability of public officials for public acts
General Rule: A public officer is not liable for
damages which a person may suffer arising from
the just performance of his official duties and within
the scope of his assigned tasks.
Exception: When the governmental acts are done
in bad faith, being outside the scope of authority,
such public officer is liable for damages in his/her
personal capacity. [Vinzons-Chatto v. Fortune
Tobacco Corporation, G.R. 141309, 2007]
Liability on Contracts
1) Doctrine of Implied Municipal Liability. A
municipality may become obligated upon an
implied contract to pay the reasonable value of the
benefits accepted or appropriated by it as to which
it has the general power to contract. The doctrine
applies to all cases where money or other property
of a party is received under such circumstances
that the general law, independent of an express
contract, implies an obligation to do justice with
respect to the same. Thus, the LGU was made to
pay fees of private lawyer, who was allowed to
continue as counsel that led him to believe that his
services were still necessary. [Province of Cebu v.
IAC, GR No. 72841, 1987]
POLITICAL LAW
2) Doctrine of Estoppel Not Applicable to Void
Contracts. The doctrine of estoppel cannot be
applied as against a municipal corporation to
validate a contract which it has no power to make,
or which it is authorized to make only under
prescribed conditions, within prescribed limitations,
or in a prescribed mode or manner, although the
corporation has accepted the benefits thereof and
the other party has fully performed his part of the
agreement, or has expanded large sums in
preparation for performance. A reason frequently
assigned for this rule is that to apply the doctrine of
estoppel against a municipality in such case would
be to enable it to do indirectly what it cannot do
directly. Also, where a contract is violative of public
policy, the municipality executing it cannot be
estopped to assert the invalidity on this ground; nor
can it be estopped to assert the invalidity of a
contract which has ceded away, controlled, or
embarrassed its legislative or government powers.
Thus, the municipality is not estopped from
revoking a contract that was extended without the
requirement of public bidding and hence, void for
being contrary to law and public policy. [San Diego
v. Municipality of Naujan, G.R. L-9920, 1960]
3) Government Justified to Decline Payment for
a Supply Contract in Violation of Laws. of The
government is justified to decline payment of the
purchase price of illegally cut lumber delivered by
a contractor who won a public bidding for the
construction of the Navotas Bridge. All contracts,
including government contracts, are subject to the
police power of the State. Being an inherent
attribute of sovereignty, such power is deemed
incorporated into the laws of the land, which are
part of all contracts, thereby qualifying the
obligations arising therefrom. Thus, it is an implied
condition in the subject contract for the
procurement of materials needed in the repair and
construction of the Navotas Bridge that petitioner
as private contractor would comply with pertinent
forestry laws and regulations on the cutting and
gathering of the lumber she undertook to supply the
provincial
government.
[Guadines
v.
Sandiganbayan, G.R. 164891, 2011]
4) Performance of an Unenforceable Contract.
Since there exists an indication by way of allegation
that there has been performance of the obligation
on the part of respondent, the case is excluded
from the coverage of the rule on dismissals based
on unenforceability under the statute of frauds, and
either party may then enforce its claims against the
other. Thus, the SC reversed the dismissal of a
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POLITICAL LAW
claim against an LGU for the purchase of motor
ehicle no i h anding ha i
no in ri ing
given that there has been delivery performance
already to the LGU. [Municipality of Hagonoy v.
Dumdum, GR No. 168289, 2010]
factor, it being sufficient that a province, city or
municipality has control or supervision thereof.
[City of Manila v. Teotico, GR No. L-23052, 1968;
Municipality of San Juan v. CA, G.R. No. 121920,
2005; Guilatco vs. Dagupan, GR No. 61516, 1989]
Liability for Torts
1) Art. 2180 in relation to Art. 2176 of the Civil
Code.
a) Art. 2176. Whoever by act or omission causes
damage to another, there being fault or negligence,
is obliged to pay for the damage done. Such fault
or negligence, if there is no pre-existing contractual
relation between the parties, is called a quasi-delict
and is governed by the provisions of this Chapter.
3) Art. 34 of the Civil Code. When a member of a
city or municipal police force refuses or fails to
render aid or protection to any person in case of
danger to life or property, such peace officer shall
be primarily liable for damages, and the city or
municipality shall be subsidiarily responsible
therefor. The civil action herein recognized shall be
independent of any criminal proceedings, and a
preponderance of evidence shall suffice to support
such action.
b) Art. 2180. xxx (Par. 6) The State is responsible
in like manner when it acts through a special agent
(i.e. for official governmental acts); but not when
the damage has been caused by the official to
whom the task done properly pertains, in which
case what is provided in Article 2176 shall be
applicable (i.e. when attended by fault or gross
negligence).
Thus, LGU could not be liable for the acts of an
ambulance driver under Art. 2180 for not being a
special agent contemplated by law. And a special
agent, in the sense in which these words are
employed, is one who receives a definite and fixed
order or commission, foreign to the exercise of the
duties of his office if he is a special offfcial) so that
in representation of the state and being bound to
act as an agent thereof he executed the trust
confided to him. this concept does not apply to any
executive agent who is an employee of the active
administration and who in his own responsibility
performs the functions which are inherent in and
naturally pertain to his office and which are
regulated by law and the regulations." [Merritt v.
Government of the Philippine Islands, GR No.
11154, 1916 citing the Supreme Court of Spain,
May 18, 1904; 98 Jur. Civ., 389, 390]
2) Art. 2189 of the Civil Code. Provinces, cities and
municipalities shall be liable for damages for the
death of, or injuries suffered by, any person by
reason of the defective condition of roads, streets,
bridges, public buildings, and other public works
under their control or supervision.
Thus, an LGU is liable for injuries suffered because
of defective roads and manholes. For liability to
arise under Article 2189 of the Civil Code,
ownership of the roads, streets, bridges, public
buildings and other public works is not a controlling
4) Art. 2208 of the Civil Code. In the absence of
stipulation, attorney's fees and expenses of
litigation, other than judicial costs, cannot be
recovered,
except:
XXX (2) When the defendant's act or omission has
compelled the plaintiff to litigate with third persons
or to incur expenses to protect his interest; XXX
(5) Where the defendant acted in gross and evident
bad faith in refusing to satisfy the plaintiff's plainly
valid, just and demandable claim.
Thus, a mayor was held personally liable for
damage and a orne
fee for e oing i ho
reason the sanggunian resolution appropriating the
unpaid salaries of a vice mayor, who was forced to
litigate in order to claim his lawful salary which was
unduly denied him for 3 years and that the mayor
acted in gross and evident bad faith in refusing to
satisfy the plainly valid, just and demandable claim.
[Pilar v. Sangguniang Bayan of Dasol, GR No.
63216, 1984]
However, a mayor cannot be held personally liable
if his actions were done pursuant to an ordinance
which, at the time of the collection, was yet to be
invalidated. [Demaala v. COA, G.R. 199752, 2015]
When a writ was directed at the mayor not in his
personal capacity, but in his capacity as municipal
mayor, it is not irregular whether it was served upon
him during his earlier term or in his subsequent
one. [Vargas v. Cajucom, G.R. 171095, 2015]
Rules on Enforcing Money Claims vs. LGU
GENERAL RULE: Government properties are not
subject to levy and execution to satisfy a money
judgment. However, the SC laid down the following
rules and guidelines:
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1) It is settled jurisprudence that upon
determination of State liability, the prosecution,
enforcement or satisfaction thereof must still be
pursued in accordance with the rules and
procedures laid down in PD 1445 otherwise known
as the Government Auditing Code of the
Philippines (Department of Agriculture v. NLRC,
227 CRA 693, 701-02 [1993] citing Republic v.
Villasor, 54 SCRA 84 [1973]).
2) All money claims against the Government must
first be filed with the Commission on Audit which
must act upon it within sixty days. Rejection of the
claim will authorize the claimant to elevate the
matter to the Supreme Court on certiorari and, in
effect, sue the State thereby [PD 1445 Sec. 4950].
3) However, notwithstanding the rule that
government properties are not subject to levy and
execution unless otherwise provided for by
statute (Republic v. Palacio, 23 SCRA 899 [1968];
Commissioner of Public Highways v. San Diego,
supra) or municipal ordinance (Municipality of
Makati v. Court of Appeals, 190 SCRA 206 [1990]),
the Court has, in various instances, distinguished
between government funds and properties for
public use and those not held for public use.
4) Thus, in Viuda de Tan Toco v. Municipal Council
of Iloilo (49 Phil. 52 [1926]), the Court ruled
that "[w]here property of a municipal or other
public corporation is sought to be subjected to
execution to satisfy judgments recovered against
such corporation, the question as to whether such
property is leviable or not is to be determined by
the usage and purposes for which it is held."
5) The following can be culled from Viuda de Tan
Toco v. Municipal Council of Iloilo:
a) Properties held for public uses
and generally
everything held for governmental purposes
are
not subject to levy and sale under execution
against such corporation. The same rule applies to
funds in the hands of a public officer and taxes due
to a municipal corporation.
b) Where a municipal corporation owns in its
proprietary capacity, as distinguished from its
public or governmental capacity, property not used
POLITICAL LAW
or used for a public purpose but for quasi-private
purposes, it is the general rule that such property
may be seized and sold under execution against
the corporation.
c) Property held for public purposes is not subject
to execution merely because it is temporarily used
for private purposes. If the public use is wholly
abandoned, such property becomes subject to
execution. [Star Special Watchman & Detective
Agency, Inc. v. Puerto Princesa City, G.R. No.
181792, 2014 citing SC Administrative Circular
No. 10-00 dated 25 October 2000]
Summary Rules on Liability for Damages
1) If in the exercise of governmental functions, with
or without negligence - NOT LIABLE
2) If in the exercise of corporate or proprietary
functions:
a) If with authority and within scope of authority, or
without bad faith, or without negligence
NOT
LIABLE
b) If no authority or beyond authority, with bad faith,
or with gross negligence, with malice LIABLE
b. Reclassification of Lands
A city or municipality may, through an ordinance
passed by the sanggunian, after conducting public
hearings for the purpose, authorize the
reclassification of agricultural lands and provide for
the manner of their utilization or disposition in the
following:
(1) When the land ceases to be economically
feasible & sound for agricultural purposes as
determined by the Dept. of Agriculture; or
(2) Where the land shall have substantially greater
economic value for residential, commercial, or
industrial purposes, as determined by the
sanggunian
concerned.
Provided, That such reclassification shall be limited
to the following percentage of the total agricultural
land area at the time of the passage of the
ordinance:
(1) For highly urbanized and independent
component cities - fifteen percent (15%);
(2) For component cities and 1st to the 3rd class
municipalities - ten percent (10%); and
(3) For 4th to 6th class municipalities - five percent
(5%).
HOWEVER: The President may, when public
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interest so requires and upon recommendation of
the National Economic and Development Authority,
authorize a city or municipality to reclassify lands in
excess of the limits set. [Sec. 20(b), LGC]
Approval by national agency
Where approval by a national agency is required
for reclassification, such approval shall not be
unreasonably withheld. Failure to act on a proper
and complete application for reclassification within
3 months from receipt shall be deemed an approval
thereof. [Sec. 20(d), LGC]
NOTES: 1) Those already awarded to Agrarian
Reform Beneficiaries (ARBs) are not affected by
reclassification; 2) After 5 years from award, ARBs
ma appl for con er ion ha i
no longer
economically feasible and sound for agriculture,
BUT failure to convert from conversion approval
shall automatically be covered by CARP [Sec. 26,
RA 6657 as amended by Sec. 22, RA 9700]
OP Memorandum Circular No. 54 (08 June 1993)
Sec. 2 prescribes guidelines governing Sec. 20 of
the LGC, to wit:
1) Prior to the enactment of an ordinance
reclassifying agricultural lands, the sanggunian
concerned must first secure the following
certificates from
the
concerned national
government agencies (NGAs):
(a) A certification from DA indicating: (i) the total
area of existing agricultural lands in the LGU
concerned; (ii) such lands are not classified as nonnegotiable for conversion or reclassification under
AO 20 (1992); (iii) that the land ceases to be
economically feasible and sound for agricultural
purposes.
(b) A certification from DAR indicating that such
lands are not distributed or not covered by a notice
of coverage or not voluntarily offered for coverage
under
CARP.
NOTES: 1) Pursuant to MC 54 s.1993, both DA
and DAR clearances are required for
reclassification or conversion of agricultural lands;
2) However, DAR clearance is not required for LGU
expropriation as held in Camarines Sur v. CA.
c. Closure and Opening of Roads
Power to Open or Close Roads
1) A local government unit may, pursuant to an
ordinance, permanently or temporarily close or
open any local road, alley, park, or square falling
POLITICAL LAW
within its jurisdiction. [Sec. 21(a), LGC]
2) In addition, any city, municipality, or barangay
may, by a duly enacted ordinance, temporarily
close and regulate the use of any local street, road,
thoroughfare, or any other public place where
shopping malls, Sunday, flea or night markets, or
shopping areas may be established and where
goods, merchandise, foodstuffs, commodities, or
articles of commerce may be sold and dispensed
to the general public. [Sec. 21(d), LGC]
Requirements and Conditions for Permanent
Closure
1) Ordinance Approved by 2/3 of Sanggunian
Members. Such ordinance must be approved by at
least two-thirds (2/3) of all the members of the
sanggunian. [Sec. 21(a), LGC]
2) Adequate Substitute. When necessary, an
adequate substitute for the public facility that is
subject to closure is provided. [Sec. 21(a), LGC]
3) Provisions for the Maintenance of Public
Safety. No such way or place or any part thereof
shall be permanently closed without making
provisions for the maintenance of public safety
therein. [Sec. 21(b), LGC]
4) For Other Lawful Use or Conveyance. A
property thus permanently withdrawn from public
use may be used or conveyed for any purpose for
which other real property belonging to the local
government unit concerned may be lawfully used
or conveyed: Provided, however, That no freedom
park shall be closed permanently without provision
for its transfer or relocation to a new site. [Sec.
21(b), LGC]
Requirements and Conditions for Temporary
Closure
1) Any national or local road, alley, park, or square
may be temporarily closed during an actual
emergency, or fiesta celebrations, public rallies,
agricultural or industrial fairs, or an undertaking of
public works and highways, telecommunications,
and waterworks projects. [Sec. 21(c), LGC]
2) The duration of which shall be specified by the
local chief executive concerned in a written order.
[Sec. 21(c), LGC]
3) That no national or local road, alley, park, or
square shall be temporarily closed for athletic,
cultural, or civic activities not officially sponsored,
recognized, or approved by the local government
unit concerned. [Sec. 21(c), LGC] Thus, temporary
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closure for athletic, cultural, or civic activities must
be officially sponsored, recognized, or approved by
the LGU concerned.
NOTE: Temporary closure must be pursuant to an
ordinance as per Sec. 21(a) of the LGC.
Permanent Closure v. Temporary Closure
PERMANENT
TEMPORARY
CLOSURE
CLOSURE
1.
2.
3.
Ordinance must be 1. Should be a National
approved by at
or local road, alley,
least
two-thirds
park, or square
(2/3) of all the 2. Temporarily
members of the
closure during an
Sanggunian
actual emergency, or
When necessary,
fiesta celebrations,
an
adequate
public rallies,
substitute for the
agricultural or
public facility that
industrial fairs, or an
is
subject
to
undertaking of public
closure
is
works and highways,
provided.
telecommunications,
Provisions for the
and
maintenance
of
waterworks projects.
public safety shall 3. The duration of which
be made.
shall be specified by
the
local
chief
executive concerned
in a written order.
If the road, alley, park or square is:
National
Temporary
only.
closure
Local
1.
2.
Temporary
Permanent closure
The passage of an ordinance by an LGU to effect
the opening of a local road can have no
applicability if the subdivision road lots sought to be
opened to decongest traffic in the area have
already been donated to, and the titles thereto
already issued in the name of the City Government.
Having been already donated or turned over to the
City Government, the road lots in question have
since then taken the nature of public roads which
are withdrawn from the commerce of man and
hence, placed beyond the private rights or claims
of he homeo ner
a ocia ion. Accordingl ,
homeo ner a ocia ion a no in he la f l
exercise of its predicated rights when it built
obstructing structures closing the road lots in
question to vehicular traffic for the use of the
general p blic. Con eq en l , baranga
ac of
passing the disputed barangay resolution, the
implementation of which is sought to be restrained
b homeo ner a ocia ion, had for i p rpo e
not the opening of a private road but may be
considered merely as a directive or reminder to the
Appellant to cause the opening of a public road
which should rightfully be open for use to the
general public. [New Sun Valley v. Sangguniang
Barangay, G.R. 156686, 2011]
E. LOCAL ELECTIVE OFFICIALS
1. QUALIFICATIONS
Qualifications: (FR-LAV)
1. Filipino citizen
2. Registered Voter in the:
a. barangay, municipality, city or province
where he intends to be elected
b. district where he intends to be elected in
case of a member of the Sangguniang
Panlalawigan, Sangguniang Panlungsod
or Sangguniang bayan
3. Resident therein for at least 1 year
immediately preceding the day of the
election
4. Able to read and write Filipino or any other
local Language or dialect
5. Age requirement [Sec. 39, LGC]
Age Requirement
POSITION
Candidates for the
position of governor, vicegovernor, or member of
the sangguniang
panlalawigan, or mayor,
vice-mayor or member of
the sangguniang
panlungsod of highly
urbanized cities
Candidates for the
position of mayor or vicemayor of independent
component cities,
component cities, or
municipalities
Candidates for the
position of member of the
sangguniang panlungsod
(not an HUC) or
sangguniang bayan,
punong barangay, or
member of the
AGE REQUIREMENT
At least 23 years old
on election day
At least 21 years
old on election day
At least 18 years
old on election day
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sangguniang barangay
Candidates for the
sangguniang kabataan.
At least eighteen
(18) years of age
but not more than
twenty-four (24)
years of age on
election day. (RA
10742)
2. DISQUALIFICATIONS
Disqualifications (SCRIP- DF)
1. Those Sentenced by final judgment for an
offense involving moral turpitude, or for an
offense punishable by 1 year or more of
imprisonment within 2 years after serving
sentence.
2. Those Removed from office as a result of an
administrative case.
3. Those Convicted by final judgment for violating
the oath of allegiance to the Republic.
4. Those with Dual citizenship.
5. Fugitives from justice in criminal or nonpolitical cases here or abroad.
6. Permanent residents in a foreign country or
those who have acquired the right to reside
abroad and continue to avail of the same right
after the effectivity of this code.
7. The Insane or feeble minded. [Sec. 39, LGC]
Disqualifications under the Omnibus Election
Code:
1) Any person who has been declared by
competent authority insane or incompetent, or
has been sentenced by final judgment for
subversion, insurrection, rebellion or for any
offense for which he has been sentenced to a
penalty of more than eighteen months or for a
crime involving moral turpitude, shall be
disqualified to be a candidate and to hold any
office, unless he has been given plenary pardon or
granted amnesty.
This (sic) disqualifications to be a candidate herein
provided shall be deemed removed upon the
declaration by competent authority that said
insanity or incompetence had been removed or
after the expiration of a period of five years from his
service of sentence, unless within the same period
he again becomes disqualified. [Sec. 12, BP 881]
2) Any candidate who, in an action or protest in
which he is a party is declared by final decision
of a competent court guilty of, or found by the
Commission of having (a) given money or other
material consideration to influence, induce or
corrupt the voters or public officials performing
electoral functions; (b) committed acts of terrorism
to enhance his candidacy; (c) spent in his election
campaign an amount in excess of that allowed by
this Code; (d) solicited, received or made any
contribution prohibited under Sections 89, 95, 96,
97 and 104; or (e) violated any of Sections 80, 83,
85, 86 and 261, paragraphs d, e, k, v, and cc, subparagraph 6, shall be disqualified from continuing
as a candidate, or if he has been elected, from
holding the office. Any person who is a permanent
resident of or an immigrant to a foreign country
shall not be qualified to run for any elective office
under this Code, unless said person has waived his
status as permanent resident or immigrant of a
foreign country in accordance with the residence
requirement provided for in the election laws. [Sec.
68, BP 881]
3) Nuisance Candidate. The Commission may
motu proprio or upon a verified petition of an
interested party, refuse to give due course to or
cancel a certificate of candidacy if it is shown that
said certificate has been filed to put the election
process in mockery or disrepute or to cause
confusion among the voters by the similarity of the
names of the registered candidates or by other
circumstances or acts which clearly demonstrate
that the candidate has no bona fide intention to run
for the office for which the certificate of candidacy
has been filed and thus prevent a faithful
determination of the true will of the electorate. [Sec.
69, BP 881]
4) A verified petition seeking to deny due course or
to cancel a certificate of candidacy may be filed by
the person exclusively on the ground that any
material representation contained therein as
required under Section 74 hereof is false. The
petition may be filed at any time not later than
twenty-five days from the time of the filing of the
certificate of candidacy and shall be decided, after
due notice and hearing, not later than fifteen days
before the election. [Sec. 78, BP 881]
3. DISCIPLINE
Elective officials
Grounds (MA3C D2O):
1. Commission of any offense involving Moral
turpitude or an offense punishable by at
least prison mayor
2. Application or acquisition of foreign
citizenship or residence or the status of an
immigrant of another country
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3. Abuse of authority
4. Unauthorized Absence for 15 consecutive
working days, except in the case of
members
of
the
Sanggunian
Panlalawigan, Sangguniang Panlungsod,
Sangguniang
Bayan,
Sangguniang
Barangay.
5. Culpable Violation of the Constitution
6. Disloyalty to the Republic of the Philippines
7. Dishonesty, oppression, misconduct in
office, gross negligence, dereliction of duty
8. Other grounds as may be provided by the
Code or other laws. [Sec. 66(c), LGC]
Where Filed: A verified complaint against any
erring local elective official shall be prepared as
follows:
(a) A complaint against any elective official of a
province, a highly urbanized city, an independent
component city or component city shall be filed
before the Office of the President;
(b) A complaint against any elective official of a
municipality shall be filed before the sangguniang
panlalawigan whose decision may be appealed to
the Office of the President; and
(c) A complaint against any elective barangay
official shall be filed before the sangguniang
panlungsod or sangguniang bayan concerned
whose decision shall be final and executory. [Sec.
61, LGC]
Appeals: Decisions in administrative cases may,
within thirty (30) days from receipt thereof, be
appealed to the following:
(a) The sangguniang panlalawigan, in the case of
decisions of the sangguniang panlungsod of
component cities and the sangguniang bayan; and
(b) The Office of the President, in the case of
decisions of the sangguniang panlalawigan and the
sangguniang panlungsod of highly urbanized cities
and independent component cities.
Decisions of the Office of the President shall be
final and executory. [Sec. 67, LGC]
If the incident complained of occurred in another
barangay over which a barangay official has no
authority and jurisdiction, the Supreme Court ruled
that he is liable for abuse of authority on the basis
that he participated in the unlawful act as a higher
authority that gave a semblance of legality over that
act and influenced the actions of his codefendants. Here, petitioner was president of the
organization of barangay officials in his
municipality and sat as ex-officio member of the
Sangguniang Bayan, which has power to review
barangay ordinances and authority to discipline
barangay officials. (Bien v. Bo, G.R. 179333, 2010)
Jurisdiction
ELECTIVE
Who may
President
preventively Elective official of
suspend
a province, highly
urbanized or
Independent
component city.
Governor
Elective official of
a component city
or municipality.
APPOINTED
The local chief
executive to any
subordinate
official or
employee under
his authority
pending
investigation.
Mayor
Elective
official of a
barangay.
Duration of
preventive
suspension
Any single
A period not
preventive
exceeding 60
suspension shall days.
not extend beyond
60 days; if
multiple, cannot be
suspended for
more than 90 days
within a single
year for the same
ground or grounds
existing.
When to
Any of the grounds Charges for
preventively provided under RA preventive
suspend
7160, after the
suspension must
issues are joined, involve
when the evidence dishonesty,
of guilt is strong
oppression or
and there is great grave
probability that the misconduct or
continuance in
neglect in the
office could
performance of
influence the
duty, or if there is
witnesses or pose reason to believe
a threat to the
that the
safety and integrity respondent is
of the records and guilty of the
other evidence.
charges which
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would warrant
his removal from
service.
Governing
law
Governed by RA
7160.
Where to file A verified
(disciplinary complaint to:
cases)
President for
provincial, highly
urbanized city,
independent
component city
elective official.
Administrative
Discipline
Governed by the
Civil Service
Law.
The local chief
executive.
Sangguniang
Panlalawigan elective municipal
officials.
of removal from4. Fine in an
office shall be a
amount not
bar to the
exceeding 6
candidacy from
months salary
any elective office.
5. Reprimand
Appeals
Decisions may,
If the penalty
(disciplinary within 30 days
imposed is
cases)
from receipt be
suspension
appealable to:
without pay for
not more than 30
Sangguniang
days, his
Panlalawigan
decision shall be
decisions of
final; if the
componen ci ie
penalty imposed
S.Panglunsod and is heavier, the
the S.Bayan
decision shall be
appealable to the
OP decisions of Civil Service
the Sangguniang Commission
Panlalawigan and which shall
decide the
appeal within 30
days from receipt
thereof.
Sangguniang
Panglungsod of
Highly urbanized
cities and
independent
component cities.
Decisions of OP
are final and
executor.
Preventive Suspension
Disciplinary
jurisdiction
(disciplinary
cases)
Penalty of
Except as
suspension shall otherwise
not exceed his
provided by law,
unexpired term, or the local chief
a period of 6
executive may
months for every impose the
administrative
penalty of:
offense. Nor shall
said penalty be1.
a Removal from
bar to the
service
candidacy of the
respondent as 2. Demotion in rank
long as he is
qualified.
3. Suspension for
Removal - can only not more than 1
be done by a court year without pay
of law; the penalty
Preventive Suspension merely a protective or
preliminary measure; not a penalty and not
considered part of the actual penalty if found guilty.
Purpose: to prevent the accused from using his
position and powers/prerogatives to influence
potential witnesses or tamper with records that may
be vital in the prosecution of the case against him.
Who May Impose Preventive Suspension:
Preventive suspension may be imposed:
(1) By the President, if the respondent is an elective
official of a province, a highly urbanized or an
independent component city;
(2) By the governor, if the respondent is an elective
official of a component city or municipality; or
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(3) By the mayor, if the respondent is an elective
official of the barangay. [Sec. 63(a), LGC]
Applies when:
· After the issues are joined.
· When the evidence of guilt is strong.
· There is great probability that the
continuance in office could influence the
witnesses or pose a threat to the safety and
integrity of the records and other evidence.
·
IMPOSED
BY
RESPONDENT LOCAL
OFFICIAL
President
Elective official of a province,
highly urbanized or
independent component city
Governor
Elective official of a component
city or municipality
Mayor
Elective official of a barangay
When May Preventive Suspension Be Imposed:
Preventive suspension may be imposed at any
time after the issues are joined, when the evidence
of guilt is strong, and given the gravity of the
offense, there is great probability that the
continuance in office of the respondent could
influence the witnesses or pose a threat to the
safety and integrity of the records and other
evidence: Provided, That, any single preventive
suspension of local elective officials shall not
extend beyond sixty (60) days: Provided, further,
That in the event that several administrative cases
are filed against an elective official, he cannot be
preventively suspended for more than ninety (90)
days within a single year on the same ground or
grounds existing and known at the time of the first
suspension. [Sec. 63(b), LGC]
Any abuse of the exercise of the power of
preventive suspension shall be penalized as abuse
of authority. [Sec. 63(d), LGC]
Duration:
SINGLE preventive suspension should not
exceed 60 DAYS.
If SEVERAL administrative cases are filed
against an elective official, he cannot be
preventively suspended for more than 90
DAYS within a single year on the same
ground/s existing and known at the time of the
first suspension.
After the Period of Preventive Suspension:
POLITICAL LAW
Upon expiration of the preventive suspension, the
suspended elective official shall be deemed
reinstated in office without prejudice to the
continuation of the proceedings against him, which
shall be terminated within one hundred twenty
(120) days from the time he was formally notified of
the case against him. However, if the delay in the
proceedings of the case is due to his fault, neglect,
or request, other than the appeal duly filed, the
duration of such delay shall not be counted in
computing the time of termination of the case. [Sec.
63(c), LGC]
The respondent official preventively suspended
from office shall receive no salary or compensation
during such suspension; but upon subsequent
exoneration and reinstatement, he shall be paid full
salary
or
compensation
including
such
emoluments accruing during such suspension.
[Sec. 64, LGC]
Suspension as an Administrative Penalty
The penalty of suspension shall not exceed the
unexpired term of the respondent or a period of six
(6) months for every administrative offense, nor
shall said penalty be a bar to the candidacy of the
respondent so suspended as long as he meets the
qualifications required for the office. [Sec. 66(b),
LGC]
Preventive suspension is not a penalty. Not
being a penalty, the period within which one is
under preventive suspension is not considered
part of the actual penalty of suspension.
[Quimbo v. Gervacio, G.R. 155620, 2005]
Removal
An elective local official may be removed by order
of the proper court. [Sec. 60, LGC] NOTE: Upon
the grounds enumerated under Sec. 60 of the LGC.
Local elective officials cannot be removed by local
legislative bodies or the Office of the President.
It is beyond cavil, therefore, that the power to
remove erring elective local officials from service is
lodged, exclusively with the courts. Hence, Article
124 (b), Rule XIX of the IRR of the LGC, insofar as
it vests power on the "disciplining authority" to
remove from office erring elective local officials, is
void for being repugnant to the last paragraph of
Section 60 of the Local Government Code of 1991.
The law on suspension or removal of elective
public officials must be strictly construed and
applied, and the authority in whom such power of
suspension or removal is vested must exercise it
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with utmost good faith, for what is involved is not
just an ordinary public official but one chosen by
the people through the exercise of their
constitutional right of suffrage. Their will must not
be put to naught by the caprice or partisanship of
the disciplining authority. Where the disciplining
authority is given only the power to suspend and
not the power to remove, it should not be permitted
to manipulate the law by usurping the power to
remove. [Pablico v. Villapando, G.R. No. 147870,
[July 31, 2002]
BUT NOTE: Ombudsman may impose penalty of
dismissal even to local elective officials for
administrative
charges
under
EO
292
(Administrative Code of 1987 in relation to CSC
rules), such as for GRAVE MISCONDUCT or
DISHONESTY, or such other executive orders,
laws, or rules under which the respondent may be
charged. The penalty of dismissal from the service
shall carry with it that of cancellation of eligibility,
forfeiture of retirement benefits, and the perpetual
disqualification for re-employment in the
government service, unless otherwise provided in
the decision. [Sec. 10, Rule III, Administrative
Order No. 07 as amended by Administrative Order
No. 17-03 dated 15 September 2003, Rules of
Procedure of the Office of the Ombudsman]
The penalty of removal from office as a result of an
administrative investigation shall be considered a
bar to the candidacy of the respondent for any
elective position. [Sec. 66(c), LGC]
If appointive official, Office of the President may
remove him or her from the his or her position.
(Pablico v. Villapando, G.R. 147870, 2002).
Administrative Appeal
Decisions in administrative cases may, within thirty
(30) days from receipt thereof, be appealed to the
following:
(a) The sangguniang panlalawigan, in the case of
decisions of the sangguniang panlungsod of
component cities and the sangguniang bayan; and
(b) The Office of the President, in the case of
decisions of the sangguniang panlalawigan and the
sangguniang panlungsod of highly urbanized cities
and independent component cities.
Decisions of the Office of the President shall be
final and executory. [Sec. 67, LGC]
Thus:
RENDERED BY
Sangguniang
Panglungsod of
component cities and
Sangguniang Bayan
Sangguniang
Panlalawigan and
Sangguniang
Panglungsod of highly
urbanized cities/
independent
component cities
Office of the President
APPEAL TO
Sangguniang
Panlalawigan
Office of the
President
Final and
executory
The phra e deci ion i final and e ec or mean
that the Sanggunian decision is immediately
executory, but still may still be appealed to the
Office of the President or the Sangguniang
Panlalawigan as the case may be. [Don v. Lacsa,
G.R. 170810, 2007]
Period
30 days from receipt of decision.
Effect
An appeal shall not prevent a decision from
becoming final or executory. The respondent shall
be considered as having been placed under
preventive suspension during the pendency of an
appeal in the event he wins such appeal. In the
event the appeal results in an exoneration, he shall
be paid his salary and such other emoluments
during the pendency of the appeal. [Sec. 68, LGC]
Condonation Doctrine (or Aguinaldo Doctrine)
The condonation doctrine is the doctrine that
provides that a reelected official should no longer
be made accountable for an administrative offense
committed during his previous term.
NOTE:
Doctrine does not apply to criminal offenses or
liabilities.
However, in Carpio-Morales v. CA, the Court
abandoned the "condonation doctrine," explaining
that "election is not a mode of condoning an
administrative offense, and there is simply no
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constitutional or statutory basis in our jurisdiction to
support the notion that an official elected for a
different term is fully absolved of any administrative
liability arising from an offense done during a prior
term." [Carpio-Morales v. CA, G.R. No. 217126-27,
2015]
The abandonment should be prospectively applied.
[Dimapilis v. Commission on Elections, G.R. No.
227158, 2017]
The ruling promulgated in Morales v. Court of
Appeals on the abandonment of the doctrine of
condonation had, indeed, become final only on
April 12, 2016; hence, the abandonment should
be reckoned from April 12, 2016. [Crebello v.
Sandiganbayan, GR No. 232325, 2019]
The Condonation Doctrine, however, does not
apply or extend to appointive officials.
[Salumbides v. Ombudsman, GR No. 180917,
2010]
On Local Appointive Officials
The prohibition on midnight appointments only
applies to presidential appointments. It does not
apply to appointments made by local chief
executives. Nevertheless, the Civil Service
Commission has the power to promulgate rules
and regulations to professionalize the civil service.
It may issue rules and regulations prohibiting local
chief executives from making appointments during
the last days of their tenure. Appointments of local
chief executives must conform to these civil service
rules and in order to be valid. [Provincial
Government of Aurora v. Marco, G.R. 202331,
2015]
That the Province suddenly had no funds to pay for
an appoin ee
alarie
de pi e i
earlier
certification that funds were available under its
2004 Annual Budget does not affect his
appointment, if a Certification that funds were
available was issued at the time of the
appointment. The appointment remains effective,
and the local government unit remains liable for the
salaries of the appointee. [Provincial Government
of Aurora v. Marco, G.R. 202331, 2015]
4. RECALL
Recall is a mode of removal of a public officer by
the people before the end of his term of office. The
people's prerogative to remove a public officer is an
incident of their sovereign power and in the
POLITICAL LAW
absence of constitutional restraint, the power is
implied in all governmental operations. Such power
has been held to be indispensable for the proper
administration of public affairs. Not undeservedly,
it is frequently described as a fundamental right of
the people in a representative democracy. [Garcia
v. COMELEC, GR No. 111511, 5 October 1993]
Who May Exercise: The power of recall for loss of
confidence shall be exercised by the registered
voters of a local government unit to which the local
elective official subject to such recall belongs. [Sec.
69, LGC]
How Recall is Initiated: The Recall of any elective
provincial, city, municipal or barangay official shall
be commenced by a petition of a registered voter
in the local government unit concerned and
supported by the registered voters in the local
government unit concerned during the election in
which the local official sought to be recalled was
elected subject to the following percentage
requirements:
(1) At least twenty-five percent (25%) in the case of
local government units with a voting population of
not
more than twenty thousand (20,000);
(2) At least twenty percent (20%) in the case of
local government units with a voting population of
at least twenty thousand (20,000) but not more
than seventy-five thousand (75,000): Provided,
That in no case shall the required petitioners be
less than five thousand (5,000);
(3) At least fifteen percent (15%) in the case of local
government units with a voting population of at
least seventy-five thousand (75,000) but not more
than three hundred thousand (300,000): Provided,
however, That in no case shall the required number
of petitioners be less than fifteen thousand
(15,000);
(4) At least ten percent (10%) in the case of local
government units with a voting population of over
three hundred thousand (300,000): Provided,
however, That in no case shall the required
petitioners be less than forty-five thousand
(45,000). [Sec. 70(a), LGC as amended by RA
9244] NOTE: Under RA 9244, there is no more
Recall via the Preparatory Recall Assembly.
Recall Process/Procedure: The process of recall
shall be effected in accordance with the following
procedure:
(1) WRITTEN PETITION. A written petition for
recall duly signed by the representatives of the
petitioners before the election registrar or his
representative, shall be filed with the Comelec
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through its office in the local government unit
concerned.
(2) CONTENTS OF THE PETITION. The petition
to recall shall contain the following:
(a) The names and addresses of the petitioners
written in legible form and their signatures;
(b) The barangay, city or municipality, local
legislative district and the province to which the
petitioners
belong;
(c) The name of the official sought to be recalled;
and
(d) A brief narration of the reasons and
justifications therefor.
(3) COMELEC CERTIFICATION. The Comelec
shall, within fifteen (15) days from the filing of the
petition, certify to the sufficiency of the required
number of signatures. Failure to obtain the required
number of signatures automatically nullifies the
petition;
(4) NOTICE AND PUBLICATION. If the petition is
found to be sufficient in form, the Comelec or its
duly authorized representative shall, within three
(3) days from the issuance of the certification,
provide the official sought to be recalled a copy of
the petition, cause its publication in a national
newspaper of general circulation and a newspaper
of general circulation in the locality, once a week
for three (3) consecutive weeks at the expense of
the petitioners and at the same time post copies
thereof in public and conspicuous places for a
period of not less than ten (10) days nor more than
twenty (20) days, for the purpose of allowing
interested parties to examine and verify the validity
of the petition and the authenticity of the signatures
contained therein.
(5) VERIFICATION AND AUTHENTICATION. The
Comelec or its duly authorized representatives
shall, upon issuance of certification, proceed
independently
with
the
verification
and
authentication of the signatures of the petitioners
and registered voters contained therein.
Representatives of the petitioners and the official
sought to be recalled shall be duly notified and shall
have the right to participate therein as mere
observers. The filing of any challenge or protest
shall be allowed within the period provided in the
immediately preceding paragraph and shall be
ruled upon with finality within fifteen (15) days from
the date of filing of such protest or challenge;
(6) CANDIDATES. Upon the lapse of the aforesaid
period, the Comelec or its duly authorized
POLITICAL LAW
representative shall announce the acceptance of
candidates to the position and thereafter prepare
the list of candidates which shall include the name
of he official o gh o be recalled. [Sec. 70(b),
LGC as amended by RA 9244]
The authentication of signatures in a recall petition
is done during the determination of the names,
signatures and thumbmarks of petitioners, not
during the determination of the sufficiency of the
form and substance of the petition. [Sy-Alvarado v.
Comelec, G.R. 216457, 2015]
Conduct of Recall Election:
1) Upon the filing of a valid petition for recall with
the appropriate local office of the Comelec, the
Comelec or its duly authorized representative shall
set the date of the election or recall, which shall not
be later than thirty (30) days upon the completion
of the procedure outlined in the preceding article,
in the case of the barangay, city or municipal
officials, and forty-five (45) days in the case of
provincial officials.
2) The officials sought to be recalled shall
automatically be considered as duly registered
candidate or candidates to the pertinent positions
and, like other candidates, shall be entitled to be
voted upon. [Sec. 71, LGC as amended by RA
9244]
3) The elective local official sought to be recalled
shall not be allowed to resign while the recall
process is in progress. [Sec. 73, LGC]
Effectivity of Recall
1) The recall of an elective local official shall be
effective only upon the election and proclamation
of a successor in the person of the candidate
receiving the highest number of votes cast during
the election on recall.
2) Should the official sought to be recalled receive
the highest number of votes, confidence in him is
thereby affirmed, and he shall continue in office.
[Sec. 72, LGC]
Limitations on Recall
1) Any elective local official may be the subject of
a recall election only once during his term of office
for loss of confidence.
2) No recall shall take place within one (1) year
from the date of the official's assumption to office
or one (1) year immediately preceding a regular
local election. [Sec. 74, LGC]
Funding. All expenses incident to recall elections
shall be borne by the COMELEC. For this purpose,
there shall be included in the annual General
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Appropriations Act a contingency fund at the
disposal of the COMELEC for the conduct of recall
elections. [Sec. 75, LGC] NOTE: Hence,
COMELEC cannot suspend recall because of
supposed lack of funding. [Goh v. Bayron, GR No.
212584, 2014]
5. VACANCIES AND SUCCESSION
When Permanent Vacancy Occurs/Arises: A
permanent vacancy arises when an elective local
official fills a higher vacant office, refuses to
assume office, fails to qualify, dies, is removed
from office, voluntarily resigns, or is otherwise
permanently incapacitated to discharge the
functions of his office. [Sec. 44, LGC]
Grounds for Permanent Vacancy: (F2VR2-DP)
1. Elective local official Fills a higher vacant office
2. Refuses to assume office
3. Fails to qualify
4. Dies
5. Removed from office
6. Voluntarily resigns
7. Permanently incapacitated to discharge the
functions of his office
Filling of Vacancy:
Automatic succession
Appointment
Permanent Vacancies in the offices of the
GOVERNOR, VICE GOVERNOR, MAYOR, VICE
MAYOR
1) If a permanent vacancy occurs in the office of
the governor or mayor, the vice-governor or vicemayor concerned shall become the governor or
mayor.
2) If a permanent vacancy occurs in the offices of
the governor, vice-governor, mayor, or vice-mayor,
the highest ranking sanggunian member or, in case
of his permanent inability, the second highest
ranking sanggunian member, shall become the
governor, vice-governor, mayor or vice-mayor, as
the case may be.
3) Subsequent vacancies in the said office shall be
filled automatically by the other sanggunian
members according to their ranking as defined
herein. [Sec. 44(a), LGC]
Permanent Vacancy in the Punong Barangay: If
a permanent vacancy occurs in the office of the
punong barangay, the highest ranking sanggunian
barangay member or, in case of his permanent
inability, the second highest ranking sanggunian
member, shall become the punong barangay. [Sec.
44(b), LGC]
In Case of Tie Between Highest Ranking
Sanggunian: A tie between or among the highest
ranking sanggunian members shall be resolved by
the drawing of lots. [Sec. 44(c), LGC]
How Long Successors Will Serve: The
successors as defined herein shall serve only the
unexpired terms of their predecessors. [Sec. 44(d),
LGC]
Determining Sanggunian Ranking: Ranking in
the sanggunian shall be determined on the basis of
the proportion of votes obtained by each winning
candidate to the total number of registered voters
in each district in the immediately preceding local
election. [Sec. 44, LGC]
Permanent Vacancies in the Sanggunian
(a) Permanent vacancies in the sanggunian where
automatic succession [provided in Sec. 44] do not
apply shall be filled by appointment in the following
manner:
(1) The President, through the Executive
Secretary, in the case of the sangguniang
panlalawigan and the sangguniang panlungsod
of highly urbanized cities and independent
component cities;
(2) The governor, in the case of the
sangguniang panlungsod of component cities
and the sangguniang bayan;
(3) The city or municipal mayor, in the case of
sangguniang barangay, upon recommendation
of the sangguniang barangay concerned.
(b) Except for the sangguniang barangay, only the
nominee of the political party under which the
sanggunian member concerned had been elected
and whose elevation to the position next higher in
rank created the last vacancy in the sanggunian
shall be appointed in the manner hereinabove
provided. The appointee shall come from the same
political party as that of the sanggunian member
who caused the vacancy and shall serve the
unexpired term of the vacant office. In the
appointment herein mentioned, a nomination and a
certificate of membership of the appointee from the
highest official of the political party concerned are
conditions sine qua non, and any appointment
without such nomination and certification shall be
null and void ab initio and shall be a ground for
administrative
action
against
the
official
responsible therefore.
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General Rule: The successor (by appointment)
should come from the same political party as the
Sanggunian member whose position has become
vacant.
Exception: In case of vacancy in the Sangguniang
barangay.
(c) In case or permanent vacancy is caused by a
sanggunian member who does not belong to any
political party, the local chief executive shall, upon
recommendation of the sanggunian concerned,
appoint a qualified person to fill the vacancy.
(d) In case of vacancy in the representation of the
youth and the barangay in the sanggunian, said
vacancy shall be filled automatically by the official
next in rank of the organization concerned. [Sec.
45, LGC]
VACANCY
Governor, Mayor
Governor, Vicegovernor, Mayor or
Vice-mayor
Highest ranking
Sanggunian member
(who was supposed to
fill the vacant position
of governor, etc.)
In the office of
the Punong
Barangay
SUCCESSOR
Vice-Governor, ViceMayor
Highest ranking
Sanggunian
member
Second highest
ranking
Sanggunian
member
Highest ranking
Sangguniang
Barangay member
OR the 2nd
highest ranking
Sanggunian
member
Temporary Incapacity
When the governor, city or municipal mayor, or
punong barangay is temporarily incapacitated to
perform his duties for physical or legal reasons
such as, but not limited to, leave of absence, travel
abroad, and suspension from office, the vicegovernor, city or municipal vice-mayor, or the
highest ranking sangguniang barangay member
shall automatically exercise the powers and
perform the duties and functions of the local chief
executive concerned, except the power to appoint,
suspend, or dismiss employees which can only be
exercised if the period of temporary incapacity
exceeds thirty (30) working days.
Said temporary incapacity shall terminate upon
submission to the appropriate sanggunian of a
written declaration by the local chief executive
concerned that he has reported back to office. In
cases where the temporary incapacity is due to
legal causes, the local chief executive concerned
shall also submit necessary documents showing
that said legal causes no longer exist. [Sec.
46(a)(b), LGC]
Non-exclusive grounds for temporary vacancy
1. Leave of absence
2. Travel abroad
3. Suspension from office
General Rule: If the position of governor, mayor,
or punong barangay becomes temporarily vacant,
the vice- governor, vice-mayor or highest-ranking
Sanggunian member will automatically exercise
the powers and perform the duties and functions of
the local chief executive concerned.
Exception: He cannot exercise the power to
appoint, suspend or dismiss employees.
Exception to the Exception: If the period of
temporary incapacity exceeds 30 working days.
[Sec. 46, LGC]
Termination of Temporary Incapacity
1. Upon submission to the appropriate
Sanggunian of a written declaration by the
local chief that he has reported back to office.
2. If the temporary incapacity was due to legal
reason, the local chief executive should also
submit necessary documents showing that the
legal causes no longer exist. [Sec. 46, LGC]
Appointment of Officer-in-Charge
1) When the incumbent local chief executive is
traveling within the country but outside his territorial
jurisdiction for a period not exceeding three (3)
consecutive days, he may designate in writing the
officer-in-charge of the said office. Such
authorization shall specify the powers and
functions that the local official concerned shall
exercise in the absence of the local chief executive
except the power to appoint, suspend, or dismiss
employees. [Sec. 46(c), LGC]
2) Except as provided above, the local chief
executive shall in no case authorize any local
official to assume the powers, duties, and functions
of the office, other than the vice-governor, the city
or municipal vice-mayor, or the highest ranking
sangguniang barangay member, as the case may
be. [Sec. 46(e), LGC]
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THUS: 1) For Absence not exceeding 3 days
local chief executive can name ANY official; 2) For
Absence exceeding 3 days - the local chief
executive is limited to designating the vicegovernor, the city or municipal vice-mayor, or the
highest ranking sangguniang barangay member,
as the case may be.
In the event, however, that the local chief executive
concerned fails or refuses to issue such
authorization, the vice-governor, the city or
municipal vice-mayor, or the highest ranking
sangguniang barangay member, as the case may
be, shall have the right to assume the powers,
duties, and functions of the said office on the fourth
(4th) day of absence of the said local chief
executive, subject to the limitations provided in
subsection (c) hereof. [Sec. 46(d), LGC]
Permanent Vacancies in the Sangguniang
Kabataan
(a) In case a Sangguniang Kabataan chairperson
refuses to assume office, fails to qualify, voluntarily
resigns, dies, is permanently incapacitated, is
removed from office, the Sangguniang Kabataan
member who obtained the highest number of votes
in the election immediately preceding shall assume
the office of the chairperson for the unexpired
portion of his or her term. In case said member
refuses to assume the position or fails to qualify,
the Sangguniang Kabataan member obtaining the
next highest number of votes shall assume the
position of the chairperson for the unexpired
portion of the term.
(b) After the vacancy shall have been filled, the
Sangguniang Kabataan chairperson shall, within
thirty (30) days, call for a special Katipunan ng
Kabataan assembly to elect a Sangguniang
Kabataan member to complete the membership of
said sanggunian: Provided, That, such special
assembly is coordinated with the Office of the Local
Government Operations Officer and the
COMELEC of the municipality or city where the
concerned barangay belongs Such Sangguniang
Kabataan member shall hold office for the
unexpired portion of the term of the vacant seat.
For this purpose, any citizen of the Philippines
residing in the said barangay for at least six (6)
months who attains the age of fifteen (15) years old
at the time of the special election and who registers
as member of the Katipunan ng Kabataan before
the Sangguniang Kabataan secretary shall be
entitled to vote in the said special election.
(c) All other vacancies in the office of the
Sangguniang Kabataan shall be filled in
accordance with the immediately preceding
provision.
(d) In case of suspension of the Sangguniang
Kabataan chairperson, the successor, as
determined in subsection (a) of this section, shall
assume the position during the period of such
suspension. [Sec. 19, RA 10742]
NOTE: Republic Act No. 10742, otherwise known
a he Sangg nian Kaba aan Reform Ac of 2015,
has repealed and/or modified accordingly Sections
329, 423-439 of the RA 7160, LGC.
6. TERM LIMITS
CONSTITUTIONAL RULE: The term of office of
elective local officials, except barangay officials,
which shall be determined by law, shall be three
years and no such official shall serve for more than
three consecutive terms. Voluntary renunciation of
the office for any length of time shall not be
considered as an interruption in the continuity of his
service for the full term for which he was elected.
[Sec. 8, Art. X, 1987 Constitution; also Sec. 43(b),
RA 7160]
Term of office: 3 years.
General Rule: No local elective official shall serve
for more than 3 consecutive terms in the same
position.
Exception: The term of barangay officials and
members of the Sanggunian kabataan shall be for
3 years. (R.A. No. 9146)
For the 3-term rule to apply, the local official
must have:
1. fully served the term
2. been elected through a regular election
Not an Interruption to the Full Term (3-Term
Limit Applies Hence, Barred):
1) RUNNING, WINNING, AND SERVING A
DIFFERENT
ELECTIVE
POSITION
IS
VOLUNTARY
RENUNCIATION.
Punong
barangay, while serving 3rd term, ran and won as
municipal councilor and served the full term.
Considered as voluntary renunciation. [Bolos v.
COMELEC, GR No. 184082, 2009]
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2) CIRCUMVENTION. After serving 3 terms as
Punong Barangay, got elected as barangay
kagawad with sister elected as Punong Barangay,
who resigned the following day after oath of office
to allow succession. Considered as a conspiracy
and hence, a circumvention of the 3-term limit.
[Aguilar v. Benlot, GR No. 232806, 2019]
3) CONVERSION. Conversion of a municipality to
a city with no break in the service as a local chief
executive. [Latasa v. COMELEC, GR No. 154829,
2003; Halili v. COMELEC, GR No. 231643, 2019]
4) REAPPORTIONMENT OF DISTRICT. Served
for 2 terms (2004, 2007) as Provincial Board
Member (BM) in the Cam. Sur 2nd dist. Cam. Sur
was reapportioned by RA9716. In 2010 and 2013
he ran and won as BM in the 3rd dist (which is
essentially the same as the old 2nd dist). [Naval v.
COMELEC, GR No. 207851, 2014]
5) MERGER. Municipalities were merged and
converted into a city, but the Punong Barangay
from the former municipality is the same as that in
the city as the new political unit with the same
territory and inhabitants (hence, same group of
voters). [Laceda v. Limena, GR No. 182867, 2008]
6) PREVENTIVE SUSPENSION. Preventive
suspension is not an interruption. Just a temporary
inability; not unseated and continued to hold office;
just temporarily barred to exercise functions.
[Aldovino v. COMELEC, GR No. 184836, 2009]
7) ELECTION PROTEST. Election protest, but
able to serve 3 full terms, including the 2nd term
(fully served) where the proclamation was voided.
[Ong v. COMELEC, GR N0. 163295, 2006; Rivera
v. COMELEC, GR No. 167591, 2007]
An Interruption to the Full Term (3-Term Limit
does not Apply Hence, Not Barred)
1) SUCCESSION. Assumption by succession is by
operation of law. To count as a term, one must
have been elected and fully served. Law allows the
severance to effectuate succession. [Borja v.
COMELEC, GR No. 133495, 1998; Montebon v.
COMELEC, GR No. 180444, 2008]]
a) Vice Mayor to Mayor on 3rd term as Vice Mayor
then served 2 more terms as mayor; not barred to
run for another term as mayor. [Borja v.
COMELEC, GR No. 133495, 1998]
b) Councilor served 3 consecutive terms, but
during 2nd term succeeded as Vice Mayor; not
barred to run again as councilor. [Montebon v.
COMELEC, GR No. 180444, 2008]
2) RECALL ELECTION. Previously served for 3
full terms as mayor, then participated in a recall
election; not barred. The prohibited election refers
to the next regular election for the same office
following the end of the third consecutive term.
Any subsequent election, like a recall election, is
no longer covered by the prohibition for two
reasons. First, a subsequent election like a recall
election is no longer an immediate reelection after
three consecutive terms. Second, the intervening
period constitutes an involuntary interruption in the
continuity of service. [Socrates v. COMELEC, GR
No. 154512, 2002] Previously served for 2 full
terms as mayor (1992-1998), ran for a 3rd term
(1998-2001) but lost, then subsequently
participated in a recall election (2000), which he
won served the unexpired term; not barred to run
again for another term
not elected for 3
consecutive terms, continuity as mayor was
disrupted with the defeat, and was a private citizen
for 2 years prior to the recall election. [Adormeo v.
COMELEC, 147927, 2002]
3) DISMISSAL AS PENALTY. Dismissals [as
penalties] were involuntary interruptions; not
considered to have fully served a 3rd successive
term of office. [Tallado v. COMELEC, GR No.
246679, 2019]
4) ELECTION PROTEST.
a) Unseated during 3rd term as mayor because of
an election protest; not barred as not deemed to
have been elected for that term merely assumed
office as a presumptive winner. [Lonzanida v.
COMELEC, GR No. 135150, 1999]
b) Served as mayor in 2001, 2004, and 2007, but
the 2004 (2nd term) was by virtue of an election
protest and served only the remainder of the 2nd
term; not barred to run in 2010. [Abundo v.
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COMELEC, GR No. 201716, 2013]
c) Unseated for running and winning a 4th term
(NOTE: 4th term was invalidated by the SC in
Rivera v. COMELEC), then relinquished office; not
barred to run in the subsequent election. [Dizon v.
COMELEC, GR No. 182088, 2009]
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